Shea Lai Chuen v. Federal Express Pacific, Inc

HCPI 1025/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1025 OF 2003

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Court

Dates of Hearing: 17, 18, 21 and 23 November 2005

Date of Judgment: 26 June 2006

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J U D G M E N T

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1.Lifting heavy articles is a common cause for back injury.  The plaintiff was a senior courier of the defendant.  He hurt his back on 25 September 2000 when lifting a basket of parcels from the ground. 

2.In the morning of 25 September 2000 at the Exchange Square, the plaintiff was transferring some parcels and letters from a delivery van to a trolley for delivery to customers.  When he tried to lift from the ground a plastic basket of parcels and letters to about four feet high so as to place it on top of some boxes already sitting on the trolley, he heard a ‘pop’ sound.  He immediately felt an excruciating pain at his back.  He stopped working immediately and went to St. Paul’s Hospital at Causeway Bay for treatment.  Later on that day, he also went to the A & E Department of the North District Hospital for treatment.

Evidence on Negligence

3.The plaintiff has made three witness statements which he adopted as his evidence in chief.  He joined the defendant in June 1993.  He was promoted to the rank of senior courier in May 1996.  He used to perform well in his work.  His basis wages were the highest for senior couriers.  I am satisfied that he had indeed suffered the accident as he described.  The defendant denied that the accident was caused by its negligence.

4.It was a Monday when the accident happened.  The plaintiff said that there were some 500 to 600 parcels and letters to deliver and collect.  The parcels and articles that had to be delivered weighed about 800 kgs.  Of these parcels, there were about 20 of them which weighed between 1 kg to 25 kgs.  He said he and a colleague one Mr Wong were supposed to deliver and receive all the parcels and letters before 1 p.m. 

5.Monday was the day when there were more parcels and letters to deliver as some mails received in Friday evening and on Saturdays and Sundays could not be delivered until the following Monday morning because some customers did not open for business on Saturdays and Sundays.  These mails had to be delivered on the following Monday morning together with those received in that morning.  The delivery had to be completed before 1 p.m.  The mails received by them from customers in that morning had also to be sent to a collection station before 12-noon for dispatch by air.

6.He also said that the defendant had not provided him with any vocational training on how to lift heavy objects safely and had not given him any waist protection belt or safety belt for his use in the course of his work.  He was adamant that he only received a safety belt on 1 February 2001 which was a few months after the accident.  He also said that after the accident, the defendant also required the staff to do morning physical exercise and to wear safety belts at work.

7.He complained that there was insufficient manpower or time for him to finish the work safely.  He referred to his almost 50 hours of overtime work within the 20 working days before the accident as evidence of the defendant’s insufficient manpower. 

8.He also complained that the trolley provided by the defendant was only of 3.5 x 3 x 2.5 feet and was too small.  Since the trolley was too small, he often had to pile the plastic baskets of parcels and letters to 4 feet high, thus exposing him to the risk of injury to his back.  He said if the trolley was bigger and more stable and there was more manpower, he would not have to pile up the baskets to such height and the risk would have been reduced.

9.He added in his oral evidence that every morning he had to collect the letters and parcels from a conveyor belt at the warehouse in the Western District and carry them over to his van.  He would then place them in the red baskets and arranged them into high piles to quicken the delivery.  He did all these under the supervision of the manager of the warehouse, one Mr Vincent Liu, who was his superior.  Mr Liu also saw him driving the van out of the warehouse every morning.  Mr Liu was thus aware of the quantity of articles that he had to deliver.  He maintained that he was only given the safety belt after his accident.  His case was that he did all the work of picking up and arranging the parcels in the warehouse without a safety belt and Mr Liu was fully aware of it.

10.He was not challenged in cross-examination on the work he did in the warehouse which was in the presence of Mr Liu.  There was no dispute that he was not wearing any safety belt when he was injured.  It was not the defendant’s case that he had worn a safety belt whilst working in the warehouse in the morning but had taken it off when he was working outside.  It was never put to him in cross-examination that he had worn any safety belt when working in the warehouse.  It was only put to him at the end of his cross-examination that he had been provided with a safety belt but he had chosen not to use it.

11.Apart from the above, the defendant disputed most of the plaintiff’s allegations.  The defendant called a station operations manager, one Mr Chan Chi, to give evidence.  Mr Chan has made a witness statement which he adopted as his evidence in chief.  He said he joined the plaintiff on 27 April 1983 as a courier.  He was promoted to station manager in 1998.  He was the plaintiff’s direct supervisor from 1 May 2001 onwards until the plaintiff resigned from the defendant’s employment on 21 September 2001. 

12.He said the defendant always provided a complete inception training course to all newly recruited couriers including the plaintiff.  This practice was already in place in the early 1980 when he joined the plaintiff.  The training was provided by the plaintiff’s Training Department and would last for about a week.  From the computer record, the plaintiff had undergone a 64-hour training in 1993.  A significant part of the training was on how to complete the work safely and effectively.  There were instructions on how to handle dangerous goods; how to use a trolley properly, not to pile up plastic basket of mails and the correct posture for lifting parcels. 

13.He also produced a training manual dated June 2005 which included a part on how to lift parcels safely.  This part of the manual explained clearly the posture that should be adopted for lifting objects from and lowering them onto the ground.  There were also cartoon illustrations.  He said that despite changes made to the manual over the years, it remained more a less the same on the whole. 

14.He also confirmed that he had also been trained on the correct posture for lifting objects in his inception training and he had also seen demonstrations of such postures done by colleagues.  He said the plaintiff had also gone through a 120-hour refresher training course in 1995. 

15.Apart from the inception and refresher trainings, Mr Chan also referred to yearly safety orientation briefings which were held to refresh the memory of the staff and to prevent them from getting slack about safety.  He also produced a record showing the plaintiff’s attendance to such a briefing on 17 April 2000 which was about five months before the accident.  He said the correct posture for lifting would certainly be mentioned in such briefings.

16.He also produced computer records showing that the plaintiff had gone through 26 training courses on work and safety which were in addition to the yearly safety orientation briefings.  He also said that the supervisors of the couriers would carry out unnotified checkrides to see if the couriers would follow the rules of the defendant and discharge their duties safely.  There was such a check on the plaintiff on 14 May 1996.  The evaluation form showed that in the morning when the plaintiff was sorting the parcels and mails, he handled the packages correctly and safely. 

17.Mr Chan also said that the defendant had provided the couriers with uniforms, safety shoes and safety belts for their use at work.  The practice of supplying staff with safety belts in fact started many years ago.  Initially, the members of staff were not required to sign receipts for the belts.  However, many of them had often lost their belts.  They were then asked to sign acknowledgments of receipt for the belts, but no one would be penalised for the loss.

18.He also produced a “received safety belt list” signed by the plaintiff and many other couriers’ acknowledging receipt of safety belts.  The plaintiff signed the list on 28 January 2000 which was about eight months before the accident. 

19.He also referred to the defendant’s system of evaluation of the adequacy of manpower in each district.  The station operation manager would reflect to the defendant of any complaint of insufficient manpower.

20.The defendant also had some deployment staff who would monitor through the central computer the workflow of each courier and the number of items delivered and collected in each district.  If the workload in a particular district was relatively heavy on a certain day, adjustment would be made by deploying couriers from the less busy districts.  There was also an annual assessment of the workload of each courier.  If necessary, they would suggest to employ more staff.

21.The plaintiff replied in his second supplemental witness statement to what Mr Chan had said in the witness statement.  He said Mr Chan had never been responsible for training couriers.  Prior to 1 May 2001, he had also not supervised the plaintiff.  On the inception training, the plaintiff queried the correctness of the computer records as he had only received five days inception training of eight hours per day. 

22.During his employment, he had also not received any publication which was similar to the few pages in the manual produced by Mr. Chan which explained the correct posture to lift objects.  In his oral evidence, he expanded this by saying that he had not received any training manual at all.  He also produced in his statement a recurrence test sheet which that he had gone through on 29 November 1993.  There was no question on how to lift object safely.

23.He said that he was forced to work long hours and to handle heavy loads or large amount of packages alone because of the tight schedule.  He had no alternative but to rush with the work.  He opined that this accident was just something to be anticipated. 

24.On the safety orientation briefing on 17 April 2000, he said it was a usual briefing which couriers would sometimes be given in the morning before starting work.  In this particular briefing, there were some posters put up showing some postures of safe lifting practice.  Unlike other briefings, they were required to sign up for this one, but were only told that they should refer to the posters and lift objects in a safe manner. 

25.On the refresher course in 1995, he said it was not for training couriers or for job safety of couriers.  It was in fact a course for all staff of operations and customers’ service.  They toured around different departments and were briefed on how the departments work.  This course lasted 10 days of 8 hour of each.  All couriers took turn to attend it. 

26.On the “received safety belt list” signed by many couriers, he said that the couriers signed it for audit purpose and to acknowledge the receipt of the safety belt upon signing.  He also produced an audit preliminary plan of the defendant showing that the safety belt distribution list had to be compiled by 31 March 2000.

27.I think the content of the list supports what the plaintiff said.  According to Mr Chan Chi, the practice of supplying safety belt to couriers had started many years ago and the couriers were not required to sign any receipt for them.  The need to sign receipt upon receiving a belt was only introduced later when many couriers had often lost their belts.  If that is true, a courier should only be required to sign a receipt for a belt when he was given one for the first time or as a replacement.  The dates when the couriers acknowledged receipt of the belts should be different as they would not all receive their first or replacement belts on the same day.

28.However, the “received safety belt list”, which contained the signatures of 29 couriers, showed that 25 of them signed on 28 January 2000.  Of the remaining four, one signed on 31 January 2000; two signed on 2 February 2000 and the date for the last one is not clear.  If Mr. Chan was right, I cannot understand why there would be 25 couriers including the plaintiff who would get their first or replacement belts all on 28 January 2000.  On this point, I prefer the plaintiff’s evidence.  However, it does not mean that I also agree that the defendant had not supplied safety belts to the couriers prior to the plaintiff’s accident.  I only do not accept that all the couriers were given safety belts when they signed this “received safety belt list”. 

29.The plaintiff also disagreed that there was any arrangement to deploy staff from the less busy districts to assist those who were very busy.  He also said that the management of the defendant would sometimes prepare some documents purportedly showing that some safety measures had been undertaken, but those documents were only prepared for the sight of the senior management and the measures in fact had not been undertaken.

30.Mr Chan confirmed in his oral evidence that it was after the plaintiff’s accident that the defendant had imposed a mandatory requirement for all couriers to wear safety belts.  However, he only asked the couriers to observe this requirement when they were working in Chai Wan and in the warehouse.  For those who worked in the West of Hong Kong Island, he did not make it compulsory as there were more letters to deliver than heavy parcels.  The belts would also make the couriers feel hot and uncomfortable if they had to go in and out of air-conditioned offices in Central.  The purpose of wearing the belt was to ensure that the courier would not bend his waist but would straighten his legs in lifting heavy objects. 

31.Mr Chan conceded that the computer records he produced on the plaintiff’s training could contain errors of which he did not know, because the input of data was done by others.  However, he maintained that the plaintiff should have received an eight-day or 64-hour inception training which included training on lifting of objects safely.

32.He also confirmed that Monday used to be a busy day when the staff would start collecting cargo at the warehouse at 7:30 a.m. whilst on other days they would only start at 8:00 a.m..

Analysis of evidence

33.The plaintiff had painted an appalling picture on the defendant’s concern for safety.  However, the undisputed fact is that there has been very few accidents encountered by the defendant’s couriers.  The plaintiff’s accident was only one of two serious accidents that Mr Chan was aware of since he joined the defendant in 1993.

34.Mr. Chan readily admitted to things that he was not sure or did not have personal knowledge.  However, he was firm that the defendant had provided inception training including training on safety and on how to handle heavy objects.  He was also firm that the defendant had provided regular half-yearly refresher training to the couriers which included safety training.  I find Mr Chan an honest witness.  

35.I accept that the defendant was indeed concerned about safety and had provided the couriers with safety training as well as safety equipment including safety belts.  There was also an audit requirement to make sure that all couriers should have been provided with safety belts, but Mr Chan had mistakenly used the “received safety belt list”, which was compiled for audit purposes, as evidence that the plaintiff was given a safety belt on the occasion when he signed on this list.  I think this is an honest mistake.  I also do not think that the defendant or its managers would insist that all couriers should sign this list if safety belts had not been given to them either previously or upon signing the list.

36.On the other hand, I do not believe the plaintiff’s evidence that the defendant had given him no safety training or any safety equipment.  According to him, the defendant not only had little or no regard for safety, it had also prepared false documents to put up a false appearance of concern for safety.  I do not find such evidence credible.

37.Apart from safety training and equipment, the plaintiff has also lied that he had suffered from back pain after the expiry of his sick leave in October 2000 to sometime in mid-August 2001.  I find that there was no such pain or, if it existed, it was insignificant.  The plaintiff has also lied about the reason for his taking the annual leave between February and March 2001.  He applied for the leave not because of any back pain, but because of the anticipated birth of his daughter.  He has also lied about the warning letters that he had been given and the cause of his resignation.  I will refer to these matters below.

38.I therefore find that the defendant had given the plaintiff a safety belt prior to his accident on 25 September 2000.  I also find that he had been given training on safety and on how to handle heavy objects safely in his inception training and in subsequent trainings sessions.

39.In any event, the plaintiff admitted in cross-examination that he knew how to lift heavy objects safely.  He said he knew that he should keep his back straight at 90 degrees to floor rather than bend his back.  He knew that he should only use his arms and legs to do the lifting.  He said he had learned these either from the television or from the newspaper.  He also said that the safety training given by the defendant in April 2000 had reminded him of what he had already known.  He also maintained that he had used this safe method in his work every day including the day of the accident, but the accident still happened.

Mandatory requirement to wear a safety belt

40.Though I do not believe in the plaintiff’s evidence, there is still the issue that before the accident, the defendant did not have any mandatory requirement for all couriers to wear safety belts when working.  The defendant just left it to the couriers to decide whether they should wear it.  This was so even when it was a busy Monday morning when there were more parcels and letters to deliver. 

41.I find that Mr Vincent Liu was aware that the plaintiff was not wearing a safety belt when he handled the parcels and letters in that morning inside the warehouse.  If the plaintiff did not wear a safety belt in the warehouse when he was picking up the goods from conveyor belt, Mr Liu should know that it was more likely than not that he would also not wear it when making delivery to the customers. 

42.The mandatory requirement was only imposed after the plaintiff’s accident.  However, Mr Chan did not enforce this requirement indiscriminately.  He only enforced this requirement on those who worked in the warehouse and those who had to carry heavy weight.  I think on a busy Monday morning, even for those who worked in Central may have to wear safety belts as they have more parcels to handle.

43.Nevertheless, the question is whether the defendant should be liable because it had not imposed a mandatory requirement that all couriers who had heavy tasks to perform should wear safety belts.  In other words, whether the system of work for the plaintiff could be regarded as safe without such mandatory requirement. 

44.In Nolan v Dental Manufacturing Co. Ltd [1958] 2 All ER 449, the plaintiff was employed as a tool-setter.  He had been working in the machine shop since 1951 and was an experienced toolsetter.  In the course of work, he had to sharpen his tools on a carborundum wheel two or three times a day.  The total time he spent on the wheel was no more than half an hour a day.  The risk of accident was small, but if an accident should happen, the injury might be serious.  The plaintiff never wore goggles when sharpening tools.  Toolsetters in this factory preferred not to wear goggles.  Strict orders plus supervision would have been required to ensure that goggles were used by toolsetters when sharpening tools.  There was a statutory requirement for goggles to be provided to the toolsetters when sharpening tools on a corborundum wheel.  This duty had not been compiled with in this case.

45.On 5 December 1956, a chip flew off the wheel and struck the left eye of the plaintiff when he was sharpening his tools.  He lost that eye.  He failed to establish that the injury was caused by the defendant’s breach of statutory duty, because he failed to proof that he would have worn the goggles if they had been provided.  The defendants were, however, found liable for having breached their common law duty not to expose the plaintiff to unnecessary risk because in the circumstance of this case, there was an obligation not only to provide the goggles, but also to give strict orders that they were to be used and to supervise the workmen to a reasonable extent to see that the orders were obeyed.  The defendant had not carried out any of these measures and was thus liable to the plaintiff.

46.In Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, an experienced moulder was handling a ladle containing molten metal in a foundry.  The ladle slipped splashing the molten metal on his foot.  He was not wearing protective spats which would have prevented the injury.  His employer had in fact kept a stock of spats which were available for the asking.  He knew about it.  But the employer had not ordered or advised him to wear them.  He sued the employer for negligence.  The foremen gave evidence that had the plaintiff been a learner, he would have advised him about wearing protective clothing, but as the plaintiff was an experienced man, the foremen considered that he did not need any warning because he knew and appreciated the risk of the metal splashing in the course of his work.

47.The County Court Judge considered that the plaintiff was so experienced that he did not require any warning and there was therefore no negligence on the part of the employer.  However, the County Court Judge thought that he was bound by authority to decide otherwise.  Lord Keith of Avonholm said at page 755:

“In the sphere of negligence where circumstances are so infinite in their variety it is rarely, if ever, that one case can be a binding authority for another.  A case may enounce a principle which may be capable of application in other cases, but I know of no principle that in all cases and all circumstances an employer is liable for failing to see that a foundryman is supplied or supplies himself with spats or boots, or at the lowest is “exhorted or pressed with ardour” to avail himself of such protection.”

48.The learned Judge further said at page 756:

“In considering whether there is a common law duty on an employer to provide something, the scope of the obligation must vary with the particular circumstances of the case.  This case is but one illustration of the limit of a nature of the provision in relation to the plaintiff on the assumption that there was a duty to provide spats for him.  Spats were provided for him in the sense that they were available for him if he wished to use them and he knew they were available.  He decided for himself that he did not wish to use them.  In the circumstances of this case I cannot hold that the employers had a further duty to bring pressure to bear on him to use them, a pressure which, on the evidence, he would have ignored and might have resented.  The spats being available, there was, in my opinion, no failure of duty on the part of the employers to provide spats for this workmen.”

The employer’s appeal was allowed. 

49.The next case is Bux v Slough Metals Ltd [1973] 1 WLR 1358.  The plaintiff in this case was a die caster employed by defendants to do piece work in their die-casting foundry.  He had to melt ingots of aluminium alloy in a furnace, lifting out the molten metal with the ladler and pouring it into a die.  He was not given any goggle during training in the first two months of his work.  He was then given a pair of goggles and told to use them at work.  He found them misted up.  He told his superintendent that they were useless.  He then stopped using them.  Nobody persuaded him to wear them.  After having been employed for a year, some molten metals splashed up and as a result he lost one eye and, to a large extent, the other eye.  He claimed the defendants for breach of statutory duty.  He also claimed damages for breach of the common law duty of care by the defendant’s failure to instruct him to wear the goggles and to ensure that he was wearing them. 

50.The trial judge found that the plaintiff would have followed the instructions and insistent advice to wear the goggles.  He assessed contributory negligence at 20%.  The Court of Appeal held that the question whether the employer’s duty extended to instructing, persuading or insisting on use of protective equipment depended on the facts and there was no reason to disturb the judge’s finding of negligence.  However, the Court of Appeal increased the contributory negligence of the plaintiff to 40%. 

51.The last case I would refer to is Chan Kin Ka v Siu Tung Hung and Wong Yiu Sum trading as Wing Hing Spraying Engineering Co. & Anr, HCPI 570/1998 by Sakhrani J.  The plaintiff in that case was aged 54.  He had been educated to primary 5 only when he was in the Mainland.  Before joining the 1^st defendant in October 1994, he had worked as a dip-sum worker for 14 years.  He joined the defendant as a painter.  His duty was to remove rust from iron racks and then paint them.  At the time of the accident, he was working at a height of 30 feet standing on a conveyor belt at the Lamma Power Station.  He was to remove the rust from the screw heads in a framework and then repaint them.  He was using a handheld grinding machine to remove the rust.  The machine had a detachable rotary wire head brush.  When turned on, the wire head brush would spin at high speed.  When this head brush spinning at high speed is pressed against the metal surface, the rust on the screw head would be ground away.  The wires would get shorter upon being used for long. 

52.At the time of the accident, the plaintiff was wearing goggles which he obtained from a colleague.  However, a piece of wire from the head brush threw into his left eye and caused injury.  The learned Judge found that the defendant did not provide him with goggles and the goggles he used were supplied by a colleague.  The learned Judge also found that he had not been given instructions on how to use the goggles and no one told him that he should stop using them if they were not in proper working order.

53.The learned Judge took the view that the process involved was highly dangerous.  There was a high risk that the wires from the head brush or the rust from screw heads would fly into the plaintiff’s eyes.  He thus held that it was not enough to simply provide the plaintiff with goggles with instructions to wear them.  The plaintiff was a very relatively inexperienced painter having worked for only about nine months before the accident.  He had limited education and was of limited intelligence. 

54.The learning Judge thus held that the defendant should have given strict orders and carried out reasonable supervision to ensure that the plaintiff would wear suitable goggles.  He further referred to various authorities including Nolan, Qualcast and Bux.  He very rightly pointed out that each case depended on its own facts.  He held the defendant negligent and the plaintiff had 40% contributory negligence.

Finding on Negligence

55.I do not think it necessary for all couriers to wear safety belts whenever they are at work.  For those who make deliveries and collections in Central, they very often only handle letters and light parcels.  They have to go in and out of air-conditioned offices.  It may not be necessary for them to wear safety belts unless they have to handle heavy objects or when the workload is particularly heavy as in Monday mornings. 

56.In fact, Mr Chan has pointed out that the safety belt can generate heat and discomfort if the couriers have to go in and out of air-conditioned offices.  That is why he only required those who worked in the warehouse and those who handled heavy articles to wear them.  For those who worked in the warehouse, I suppose they did not have to go in and out of air-conditioned offices and they had more opportunities to handle heavy objects.  For the couriers who made deliveries to and collections from offices, it was not easy to formulate a rule to dictate when it was necessary to put on a safety belt. 

57.Different courier has different physical capabilities.  There is no hard and fast rule that can apply to all couriers in all situations.  Given the fact that the job is not very a risky one, if the couriers are provided with proper safety training and proper safety equipment, I think the defendant can rely on the common sense of the couriers to decide when it is necessary or desirable to put on a safety belt. 

58.In the present case, the plaintiff was an experienced senior courier.  He joined the defendant in June 1993.  He was a good performer earning the highest basic wages.  His job exposed him to a risk of injury if he did not wear a safety belt, but it was not highly dangerous.  He had been provided with safety training and safety equipment.  He knew how to handle heavy objects.  He also knew that when handling heavy objects, he should put on a safety belt to protect his waist and back.  In particular on the day when the accident took place, he should know that he should put on the safety belt when handling the parcels.  In the light of all these, I find that the defendant was not negligent in not imposing a mandatory requirement for him to wear a safety belt. 

59.I further find that if he should have put on a safety belt, the accident would not have had happened.  I do not accept his evidence that he had adopted the correct posture to lift the basket and still suffered the accident.  If he should have adopted the correct posture, he would only have used his arms and legs to lift the basket.  If the basket was too heavy for him, he would simply have been unable to lift it.  He would not have injured his back in the cause of lifting it as he would not have bent his back and use it to lift the basket.  To bend his back to lift the basket was the wrong thing to do and the wrong posture to adopt. 

60.I also do not find that the equipment and tools provided by the defendant were insufficient.  The trolley and plastic basket provided were commonly used for delivery purposes.  So long as the he properly used them and not overload them, I think they were sufficient for his purposes.  It seems that he had used them for years.  If he was eager to quicken the delivery and should he be given a bigger trolley, he would simply load more articles onto it.  I also do not think that the defendant would impose a time limit for delivery in total disregard of the amount of work to be done.

61.On these findings, I dismiss the plaintiff’s claim with cost.

Quantum

62.Just in case I were wrong on liability, I would also assess the quantum of damages on the basis that the defendant were fully liable in negligence for the plaintiff’s accident.

63.The plaintiff said in his witness statement that after the accident, he went to St. Paul’s Hospital for examination.  The x-ray examination showed no problem.  He was given some analgesics and three days sick leave.  He returned there on 27 September and 1 October for follow-up treatments and the sick leave was extended to eight days.  He also went to the Shek Wu Hui Jockey Clinic for treatment. 

64.After expiration of his sick leave, he returned to work on 8 October 2000.  He said he returned to work as the defendant was seriously short of manpower and had requested him to resume duty.  The defendant was willing to assign him to some light duties.  He returned to work as he was afraid of losing the job, but he still had acute back pain and needed physiotherapy.  The physiotherapy lasted from 29 September to 12 December 2000. 

65.However he said in his witness statement that from April 2001, the defendant required him to resume heavy manual duties.  He could not cope with such duties.  He then resort to treatment by Chinese bonesetter.  His performance became much worse because of the back pain.  He finally returned to St. Paul’s Hospital for treatment on 4 and 8 September 2001.  He was again given sick leave by thishospital from 4 September to 12 September 2001.  He said the defendant had grievance over his frequent sick leave.  He therefore resigned on 21 September 2001.  The record however shows that he had not taken any sick leave between 8 October 2000 and 3 September 2001. 

66.In his supplemental statement, he said because of his back pain, he took three weeks annual leave from February to March 2001.  After resuming work, he was assigned to convey goods for the outlining islands.  That district was not as busy as the other districts.  Nevertheless, he still felt the back pain because of the work.  He therefore applied on 16 May 2001 for five days of annual leave commencing from 24 September to 28 September 2001.  The application was approved on 17 May 2001.  After the leave was approved, the acting senior manager Mr Vincent Liu thought that because of his injury, he was not fit to do delivery work as a courier.  Liu suggested that he should resign, otherwise he would be dismissed.  If he should be dismissed, he would lose that part of the provident fund which represented the defendant’s contributions.  

67.He further said that after his annual leave in September 2001 was approved, he was assigned to work in the Wanchai District which had a heavy workload.  Owing to severe back pain, he needed a few days sick leave.  The defendant was very unsatisfied about this and wanted him to resign.  He could not endue the pain and the sarcastic remarks of his boss.  He therefore did not even wait for his approved annual leave between 24 and 28 September 2001 and resigned on 21 September 2001.

68.His back plain persisted after leaving the defendant.  He was referred to the Orthopaedics and Traumatology Department of the North District Hospital.  He received treatment there from 21 March 2002 to 14 November 2002.  He had also received an MRI examination, physiotherapy, occupational therapy and pain control treatment.  The diagnosis was sprained injury of lumber spine and prolapse of intervertebral disc of lumber spine. 

69.The hospital had given him injection treatment to the lumber disc protrusion and compression to nerve root.  That however did not stop the pain.  He was then given neuropathic analgesic to control the pain.  He was also given sick leave from 21 March 2002 to 31 October 2002, from 20 December 2002 to 18 February 2003, from 13 May to 19 May 2003 and from 5 August to 11 August 2003. 

70.In addition to the physical injury, he said he also suffered from psychological stress as he was the main financial support of the family.  The back pain also caused him to reduce his social activities.  He could not resume swimming, playing golf or driving vehicles.  His sexual activities were reduced and his relationship with his wife was less close than before.  He also could not have out-door activities with his son and parents.

71.After leaving the defendant, he was employed by TNT Express Worldwide (Hong Kong) Limited as a part-time operation assistant from 15 October 2001 to 31 January 2002 at $45 per hour.  He earned $28,994.28 during this period.  From 3 March 2003, he worked as a bus driver for Tung Shan Bus Service Company Limited at a salary of $7,000 per month.  He quitted the job on 25 August 2003 because of the back pain.  He earned $39,970 during this period.  From 8 January 2004 to 31 January 2004, he worked as a temporary driver with China-way Corporation Limited at $400 per day.  The hours were from 6:30 a.m. to 6:30 p.m.  He earned $9,460 during this period.  His employment with China-way changed to a long term one from February 2004 and his monthly salary was $9,000.  It was increased to $10,000 in March 2004 and to $12,000 in August 2004.  His average monthly income up to 31 October 2004 was $9,986.

72.However, China-way did not allow him further sick leave for treatment at the North District Hospital.  He therefore resigned and left the job on 1 November 2004.  He added in oral evidence that from mid-January 2005, he started working for Messrs. Philip K. H. Wong & Kennedy Wong & Co. as a driver earning $10,000 per month.

73.I now refer to Mr Chan Chi’s witness statement on these matters.  Mr Chan said that the defendant had great concern about the well-being of its staff.  The managers were instructed to ensure that injured staff should have recovered before they were allowed to resume working. 

74.On the annual leave between February and March 2001 which the plaintiff said he had taken because of his back pain, Mr Chan disagreed with his reason for the leave.  Mr. Chan produced a leave application form showing that he had applied on 12 October 2000 for annual leave from 10 February 2001 to 15 March 2001.  The application was approved on 7 December 2000.  Mr. Chan said it was impossible for him to have known that he would require the leave because of the pain four months beforehand.  Mr Chan also pointed out that he had not submitted any medical certificate from 9 October 2000 to 4 September 2001 for reimbursement of medical expanses.

75.On his resignation, Mr Chan referred to the defendant’s disciplinary system.  If a staff member should be given three warning letters within 18 months, he would be liable to dismissal.  The plaintiff had been given a warning letter issued by Mr Vincent Liu on 26 May 2000.  The reason was that he had lost a client’s parcel at sometimes between 21 and 25 May 2000.  He was given another warning letter on 21 August 2001.  It was issued by Mr Chan Chi for his carelessness in causing a collision of a vehicle of the defendant on 13 August 2001.  On 21 September 2001, he was given the third warning letter by Mr Chan because he had lost a client’s parcel on 19 September 2001.  He was on 21 September 2001 liable to immediate termination.  However, for the sake of his record, the defendant was prepared to accept his resignation.  He then submitted his resignation letter with immediate effect.

76.The plaintiff filed a second supplemental witness statement to answer these points raised by Mr Chan.  

77.On his annual leave in February and March 2001, he said after he returned to work on 8 October 2000, he still felt the pain, but he could tolerate it as his duty was of a light nature.  Nevertheless, he followed the medical advice and applied for annual leave to take a rest.  The earliest dates for his annual leave then available were between February and March 2001. 

78.Regarding the lack of sick leave certificate between 8 October 2000 and 3 September 2001, he said Mr Vincent Liu had allowed him to attend physiotherapy during office hours without recording any sick leave.  However, he did not explain why there was no medical report recording his medical treatment during the same period. 

79.On his resignation, he did not deny the existence of the disciplinary system, but he also said that the implementation of the system depended on the attitude of the operations manager towards the particular courier. 

80.He admitted of having received the first warning letter from Vincent Liu on 26 May 2000, but he denied that he was responsible for the loss of parcel.  He said it was the fault of a colleague Mr. Tam Wai Ho.  He said Tam at that time already had received two warning letters.  If Tam should receive a third one, he would be dismissed right away.  Since a parcel had been lost and a warning letter had to be issued, Mr Vincent Liu therefore asked him to shoulder the blame so as to cover up Tam and save Tam’s job.  He agreed so as to help Tam.  The first warning letter was thus a false one as it was issued to him to cover up Tam.

81.This explanation sounds problematic.  If Mr Vincent Liu, as the acting senior manager, had any leeway or discretion on implementing the disciplinary system, he could have exercised his discretion not to dismiss Tam.  He did not have to ask the plaintiff to shoulder the blame.  Furthermore, the warning letter itself contained defendant’s reference code for the lost parcel and the police report number as the lost of parcel had been reported to the police, it would have been easy to track down who was the last person who had scanned the parcel before it was lost.  Vincent Liu was running a great risk for himself for him to ask the plaintiff to falsely assume the blame for Tam. 

82.He also said that despite his co-operation with the manager, the attitude of the management to him took a drastic turn after his accident because he could not handle heavy objects.  He further said that a situation was then created to force him to resign.  He referred to his father’s death as such an incident.  He said Chan Chi was most unsympathetic when he wanted a day-off to arrange for the funeral. 

83.He then referred to the traffic accident in August 2001 and said that he had not been prosecuted by the police for it.  He only bumped into another vehicle because he was hurrying back to the Chai Wan Station and it was difficult to brake the vehicle as it was too heavily loaded.  However he did not appeal against this warning letter when the letter itself stated that he could appeal within seven days.  He explained that the defendant would treat any courier who had appealed against a warning letter as a troublemaker.  If he should have appealed, his career would be jeopardised.

84.On the third warning letter, he was the last person who had scanned the defendant’s reference code on the parcel before it was lost.  He said that he did not know why the parcel was lost but the airway bill was not.  He insisted that he had put the parcel into the mail back at the Admiralty Centre Office.  (Mr. Chan Chi gave evidence that airway bills were put into a separate mailbag.)  He also said that at that time he was given the hint that he should resign, because his back pain incapacitated him from handling the usual workload.

85.His case was that he had committed no or very petty mistakes vis-à-vis the three warning letters.  It was a situation created to force him to resign.  In any case, he was absolutely innocent in relation to the first one.  He said, however, in the light of three warning letters, he knew that the defendant would get rid of him in any event.  He therefore resigned to avoid being dismissed.

86.If he was telling the truth, Mr Vincent Liu was again running a risk when he concurred with Mr. Chan Chi to demand his resignation as the first warning letter was a completely fake one.  It was open to him to report Mr. Vincent Liu to the senior management for making a fake warning letter to cover up Tam Wai Ho. 

Oral evidence on quantum

87.In his oral examination and cross-examination, he repeated that after he had physiotherapy, he had gone to a bonesetter for treatment because of residual back pain.  He said he had such treatment until September 2001, but he produced not a single document or receipt to prove this.  He also said that both Mr Vincent Liu and Mr Chan Chi wanted him to resign.  He however did not appeal against the warning letters as he thought that they were formalities.  He said he intended to leave the defendant after the Chinese New Year and therefore did not appeal.  He  also said that he did not think he could continue working as a courier as he had the pain all the time since May 2001.

88.He agreed that since he did not take any sick leave even for his physiotherapy treatment, he was given the bonus of $200 every month.  He had also earned more overtime payment after resumption of duty in October 2000 than before.

89.He agreed that he had applied on 12 October 2000 for his annual leave from 10February to 5 March 2001.  He also admitted that his daughter was born on 7 February 2001 and he had paternity leave on 8 and 9 February.  His leave then continued with his annual leave from 10 February onwards for three weeks. 

90.If he applied on 12 October 2000 for the annual leave because of his back pain and the then earliest available days were from 10 February to 5 March 2001, then it was an extremely lucky coincidence for him that his daughter was born on 7 February 2001 so that he could have a long leave right from the next day.

91.On the warning letters, he said he did not regard them as serious and did not think that the reason of his resignation was because of them.  However, he was aware that anyone who had been given three warning letters would be dismissed as that was clearly written in each of the letters.

92.On the first warning letter, he said Tam, who had lost the parcel, at the material time was working in a different region and serving a different area in a different line of couriers.  If that was the case, it was strange for Vincent Liu to have asked him to assume the blame for Tam for the lost of the parcel as any simple investigation would have exposed the cover-up for Tam.  Furthermore, he did not suggest that he, Tam and Vincent Liu were of a closely-knit group.  According to what he said, Vincent Liu was quite reckless in asking him to accept the warning letter in place of Tam.

93.On the second warning letter, he said he was in a hurry as a previous colleague had been late.  There were a lot of goods in the vehicle.  He also had to look at the computer to see the signal that was being given to him.  The car in front suddenly braked, he thus bumped into it. 

94.On the third warning letter, he said he had complained to both Chan Chi and Vincent Liu.  After submitting the resignation letter, he had also telephoned the personnel department but was told by a female that there was no used for him to appeal as he had already resigned.

95.However, his story does not appear to be reasonable.  I do not think he was suffering from back pain between early October 2000 when he resumed work and sometime in the middle of August 2001.  He only had pain about two weeks before 4 September 2001 when he went to St. Paul’s Hospital for treatment again.  If he should be suffering from the incessant back pain, there would have been some medical records, sick leave certificates or receipts from doctors or hospitals.  Even bonesetters will issue receipts and letters to confirm treatment given. 

96.On his annual leave in February and March 2001, he applied for it in October 2000.  I do not accept that he made the application on 12 October 2000because of back pain.  I find that he applied for the leave in anticipation of the birth of his daughter on 7 February 2001.

97.I also do not accept his case that he resigned for any reason other than the fact that he had been given three warning letters.  On his case, Vincent Liu knew very well that the first warning letter was a fake one.  However, the demand of Vincent Liu together with Chan Chi for him to resign showed that his story was far from being true.  Despite Vincent Liu not having been called as a witness because he had been transferred out of Hong Kong and there was no direct evidence to contradict his case, I still do not believe that the first warning letter was issued to him so as to cover up Tam.  I find that the first warning letter was genuinely issued to him for the incident referred to in it.

98.If he was indeed innocent but Vincent Liu and Chan Chi wanted him to resign because of his physical disabilities, I cannot see why Liu and Chan would have wanted him to go in such a hurry and could not have waited until after his annual leave was over.  His leave was to commence on 24th September.  I also note that his basic wages were increased to $14,508 per month on 17 September 2001 which was four days before his resignation.  If his superiors were all against him and wanted him to go, I do not believe that he would have been given this pay rise just a few days before he was told to leave.  I find that he had to resign and could not wait for his annual leave because he was liable to immediate dismissal after he had been given three warning letters.

99.He has an explanation for anything that is said against his case.  He protested his innocence on all warning letters but did not appeal against anyone of them.  His case is that despite his attempts to appease his superiors including the use of his own accumulative leave for medical treatment of an injury suffered at work, they still set their faces against him.  His case is too unreasonable to be true.

Medical reports

100.The first report is a radiological report from St. Paul’s Hospital dated 25 September 2000.  This report did not disclose anything abnormal. 

101.The next document is a referral note date 3 September 2001 by Dr Orr Wah Keung of St. Paul’s Hospital to Dr T W Au.  Dr Orr stated in a note that the plaintiff had back pain which was the result of sprained back after lifting heavy object about one year earlier.

102.The next report is dated 4 December 2002 and was issued by the North District Hospital.  It stated that the plaintiff was referred to the clinic of the hospital on 21 March 2002 for persistent back pain.  The next report by this hospital was dated 18 August 2003.  It referred to the MIR Examination on 30 January 2003 which revealed L5/S1 disc protrusion with compression to right S1 nerve root.  There was also mild posterior disc bulge at L4/5 level.  The report also recorded his complaint of persistent low back pain.  There was a further report from this hospital dated 7 October 2003 but it only added that he was given neuropathic analgesia to control his pain.

103.The plaintiff was interviewed by his expert Dr Wong See Hoi on 3 September 2003 and Dr Wong gave an assessment report on 13 October 2003.  The report referred to the findings in the MRI examination and his refusal to an operation on this problem as suggested by the hospital because of his worry about complications of the operation. 

104.The report recorded his complaint of continuous low back pain which was aggravated by exercise, prolong sitting, standing and walking for about two hours.  He could walk without rest for one hour but could not sleep well.  He had left leg numbness which was aggravated by prolonged sitting.  He also had weakness of back and could not do car washing, household chores or sports activities like playing golf.  He also suffered from psychological distress and decreased sexual performance and ability.

105.Dr Wong commented that the disc prolapse was consistent with his accident on 25 September 2000.  Dr Wong recommended laminatomy, removal of protruding disc and decompression of nerve root.  Dr Wong said the success rate of the operation was 90%.  The risk included nerve and vessel damage, wound infection, cord injury with cerebral spinal fluid leakage.  The fees required for the operation was estimated at $20,000 with another $10,000 for 30 sessions of physiotherapy afterwards.  There should also be three months sick leave for him to receive physiotherapy.

106.However, if there was no operation, the plaintiff’s condition was likely to be permanent.  Dr Wong also opined that even after the operation, the plaintiff should still pay special precaution to his back and he was not suitable to resume the job of a courier.  Dr Wong suggested that he should change to sedentary occupation.  Dr Wong assessed his permanent body impairment at 15%.

107.Dr Wong and the defendant’s expert Dr David H F Cheng jointly interviewed the plaintiff on 24 August 20004 and they made a joint assessment report dated 9 October 2004.  The plaintiff again complained to the doctors of persistent back pain which ranged between grade 3 to grade 7 on a scale of one to ten.  It was more serious after a day’s work.  His sitting tolerance was 30 minutes.  There was paraesthesia of the whole right lower limb.  There was no deformity or swelling at his back but some tenderness from L3 to L5 and both paraesspinal origin.  Dr Wong thought that there was decreased power of the whole right lower limb.  Dr Wong also agreed with the MRI report that there was prolapsed disc at L5/S1 with compression to right S1 nerve root.  Mild prognosis disc bulge was also noted at L4/5.

108.Both doctors after reviewing the clinical records agreed that the initial symptoms were not consistent with disc prolapsed with nerve compression.  However, Dr Wong took the view that the right sciatica as noted by Dr Au of St. Paul’s Hospital on 4 September 2001 could be the result of either the gradual development of disc prolapse following the injury on 25 September 2000 or another injury.

109.Dr Cheng noted that there was no neurological deficit and few objective positive findings.  He also opined that the prognosis was good and that surgery was not necessary.

110.Dr Wong noted much improvement in the plaintiff since his previous examination on 3 September 2003.  He also did not recommend surgery.  He however said that if the symptom should fail to respond to the corrective treatment, the plaintiff should resort to surgery. 

111.Dr Cheng assessed the permanent impairment of the whole person at 5% to 8% whilst Dr Wong maintained his assessment of 15%.  Dr Cheng opined that the plaintiff could still carry on afair amount of delivery work if he did it with a sensible approach.  However, Dr Wong advised against it though he opined that the plaintiff could work as a driver. 

112.In the further note of 8 November 2005, Dr Wong added that as there was no evidence of another back injury after the accident on 25 September 2000, the most likely cause for the right sciatica was gradual development of disc prolapse causing compression of S1 root.  He said the accident had led to peripheral tear or weakening of annulus fibrosus.  The repeated loading of the disc by normal daily activities in the course of time led to further progression of the disc.  Finally, the disc prolapsed impinging on the nerve root.  That explained the sciatic pain.

113.Dr Wong further explained in his oral evidence that the patient may not feel any pain until at the prolapsed stage when the nerve root is being impinged upon.  That can explain why the plaintiff did not feel any or any significant pain during the period from October 2000 to sometime in mid-August 2001.  That could also be the reason why he did not need to consult any doctor and did not get any medical and sick leave certificates during this period.

114.Having considered all the medical evidence, I accept that the plaintiff was genuinely suffering from back pain caused by a prolapse of disc causing compression of nerve root S1 since sometimes in mid-August  2001.  I further find that this was a development from his accident on 25 September 2000 as explained by Dr Wong.

PSLA

115.The Employee’s Compensation (Ordinary Assessment) Board reviewed the plaintiff’s disability on 25 June 2003 and certified that he was suffering from “back injury resulting in prolapsed intervertebral disc L5/S1 and back pain”.  The Board assessed his sick leave to be in the following periods: 25 September to 7 October 2000, 4 to 11 September 2001, 21 March to 31 October 2002, 20 December 2002 to 18 February 2003 and 13 to 15 May 2003.  The Board also assessed his permanent lost of earning capacity at 12%.

116.Dr Wong agreed with the sick leave as assessed by the Board.  Dr Cheng thought that a one-year sick leave was reasonable.  The plaintiff was given more sick leave by doctors afterwards until 4 September 2003.  The total period of sick leave was 347 days. 

117.He had continuous low back pain which was aggravated by prolong standing, sitting and walking for about two hours.  He could walk without rest for one hour only.  He had weakness in the lower right limb and weakness of the back.  He could not perform manual work like car washing and household chores.  He could not play golf and other sports activities which he used to enjoy.  He had psychological distress and decreased sexual performance and ability. 

118.His counsel claimed that his case is within the lower range of serious injury category and he should be awarded $350,000 for PSLA.  The defendant however argued that he should get no more than $150,000 for this item.  The defendant relied on four cases which are more relevant than those relied on by the plaintiff.

119.The first case is Lai Ching v Wong Chiu Kwai (trading as Wing Lai and/or Wing Lai Arts Jewellery (a firm) HCPI 1192/1996.  Mr Lai in that case also suffered from back pain.  His symptoms were quite similar to those of the plaintiff but of a more serious nature.  His total impairment of the person was 24%.  Suffiad J found that Lai’s case was outside the serious injury category and awarded him $300,000 for PSLA. 

120.The second case is Lee Yuk Lan v Royaltelle International Ltd (trading as The Royal Garden) HCPI 187/1995.  Miss Lee suffered a fall on 2 January 1994 in the hotel where she was working.  She had a pre-existing condition of scoliosis which slowed down the heeling process.  She had 65 sessions of physiotherapy.  Beeson J accepted that she needed 12 months for recovery and she could not dance during this period.  The learned Judge awarded her $150,000 for PSLA.

121.The third case is Lau Chiu Wah v Kong Key Construction and Engineering Ltd & Ors, HCPI 581/1998.  Mr Lau had a back injury in 1989.  He recovered from it but still had on and off back pain.  He had another back injury in July 1995.  The Medical Assessment Board certified his sick leave for about two years.  He was never hospitalized and had no surgery.  He however suffered from back pain for a long time.  Taking into consideration of the pre-existing degenerative changes to his lumbar spine which would have caused him on and off back pain, Suffiad J awarded him $100,000 for PSLA.

122.The last case is Tam Kwok Man v The Kowloon Motor Bus Co. (1933) Ltd, HCPI 755/2001.  Mr Tam was a bus station regulator.  He suffered a fall on 12 September 1996 when the wheel chair he was sitting on lost one wheel.  He fell and landed on his buttocks and hit the doorsill of the kiosk with the upper part of his back.  He was granted sick leave from 24 September 1996 to 31 October 1998.  The last follow-up was on 23 February 1999 and he still complained of residual back pain.  He attended 22 sessions of physiotherapy between 19 September 1996 and 4 February 1997 and between 8 July 1997 and 30 September 1997.  He defaulted after that.  When experts of both sides examined him on 10 October 2002, he complained of on and off back pain which increased after sitting for 20 minutes.  He also had pain when lying down, disturbed sleep, inability to walk with long strides, intermittent click at the back, back pain during sexual activities and inability to swim and cycle.  There was no deformity, but there was tenderness over the low back and left parasspinal region with some muscle spasm on the left side.  There was also back pain on flexion of the hips. 

123.The doctors commented that he had been given satisfactory treatment and his complaint of pain was subjective.  The doctors opined that he could resume his job as bus station regulator possibly with a small reduction of efficiency.  Beeson J found that it was a minor contusion that he had suffered.  There might be some residual pain, but sick leave for nine months was a maximum.  The learned Judge awarded $150,000 for PSLA. 

124.In the present case, the plaintiff hurt his back and the injury developed into a disc prolapse some 11 months later.  I refer to the complaint he made to Dr Wong and Dr Cheng which I have summarised above.  I accept Dr Wong’s assessment of 15% impairment of the whole person as there is insufficient evidence to show that his impairment had been aggravated by a pre-existing condition.  Considering his overall condition, but for my decision on liability, I would have awarded him $250,000 for PSLA.

Pre-trial loss of earnings

125.I have disbelieved him on the cause of his resignation.  I have also found that he resigned to avoid being dismissed as he had been given three warning letters.

126.After he was dismissed, he found a part-time job with TNT Express Worldwide Hong Kong Limited at an hourly rate of $45.  From 15 October 2001 to 31 January 2002, he earned $28,994.28.  His average income during this period was $8,284.08 per month. 

127.When he was first engaged by the defendant in June 1993, his basic wages were $5,690 per month.  They were increased to $8,078 per month in September 1993 when he completed the probation.  He was promoted to senior courier on 1 January 1997 and the basic wages were increased to $11,107 per month.  They were further increased to $14,508 per month on 17 September 2001, four days before he resigned.  His basic wages were the highest for senior couriers working for the defendant.

128.In addition to his basic wages, he also earned substantial overtime payments.  The Form 2 stated his average income before the accident at $22,357.87.  However, he had spent many years of effort before he was promoted to senior courier with high basic wages.  Since he resigned to avoid a dismissal for cause, I do not think it reasonable to assume that he would have been able to find another job as a courier immediately which would provide him with the same amount of income including overtime.  His part-time job with TNT Express showed that the income for a newly recruited part-time courier could be very low.  Doing the best I can, I would assume that his total income including overtime as a courier cum driver from 15 October 2001 onwards would be at $16,000 per month.

129.His pre-trial loss would have been at [$16,000 x 56.5 - $28,994.28 - $39,970 - $9,460 - ($9,986 x 9) - ($11,000 x 18) =] $537,701.72.

Future loss of earnings

130.The plaintiff is now over 36 years old.  The multiplier should be 14.  The multiplicand should be ($16,000 - $11,000) $5,000 per month.  The future loss of incomes would have been at ($5,000 x 12 x 14 =) $840,000.

Loss of MPF contributions by the employer 

131.Pre-trial loss would have been at ($537,701.72 x 5% =) $26,885.  Future loss would be at ($840,000 x 5% =) $42,000.  The total would have been $68,885.

Loss of earning capacity

132.The plaintiff had worked for the defendant for over eight years.  He did not appear to be a person who would change job frequently.  However, after he had left the defendant’s employ, he had changed his job quite often.  I accept that this was because of his back pain problem.  I agree with the submission of his counsel that the award for loss of earning capacity should be one year of his residual earning at $11,000 per month.  I would have given $132,000 for this item.

Future medical expense

133.Since the plaintiff did not want to undergo the surgery and the above sums are assessed on the basis that his existing conditions will continue, I would not award any sum under this item.

Other damages

134.Medical expenses at $5,960 are agreed.  Travelling expanses at $2,5000 are also agreed.  The claim for bonesetter’s fees is not perused whilst the claim of tonic food is reduced from $8,000 in the revised statement of damages to $5,000 in the original statement of damages.  No evidence has been furnished on the need for such food.  I follow Yu Ki v Chin Kit Lam [1981] HKLR 419 and would have awarded $4,000 for this item.  The total sum under this item would have been $12,460. 

135.Had I found the defendant fully liable for the accident, the total award that I would have made would be ($250,000 + $537,701.72 + $840,000 +$68,885 + $132,000 + $12,460 =) $1,841,002.72.

Interest

136.I would also have ordered interest at 2% per annum on the award for PSLA from the date of writ to today and interest at half of the judgment rate from the date of the accident on the pre-trial loss of income less the amount of employee compensation that had been received before the issue of writ judgment.

Judgment

137.Since I have found against the plaintiff on liability, I thereforedismiss the action.  I further make a costs order nisi that the plaintiff do pay the defendant the costs of this action.  I further order that the plaintiff’s own costs be taxed in accordance with the legal aid regulations.

Ms Diana Cheung, instructed by Messrs Chong, So & Co., for the Plaintiff

Mr Samuel Chan, instructed by Messrs Deacons, for the Defendant