Hussain Kamran v. Khan, Amar Formerly t/a Three Star Recycling Co. (A Firm) and Another

HCPI 953/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 953 OF 2012

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BETWEEN

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ASSESSMENT OF DAMAGES

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1.On 10^th August 2010, the plaintiff suffered personal injuries while being employed by the 1^st defendant as a recycling worker at Flat C, 11^th Floor, Block A, Tung Chun Industrial Building, Kwai Chung, New Territories, Hong Kong.  This action was commenced by the plaintiff against the 1^st defendant for damages which the plaintiff claims to have been caused by the negligence, breach of common duty, breach of the contract of employment and breach of statutory duty by the 1^st defendant, its servants or agent. 

2.The 1^st defendant did not file any notice of intention to defend and interlocutory judgment on liability was entered against the 1^st defendant on 7 March 2013.  Subsequently, the Employees Compensation Assistance Fund Board (“Board”) sought and was granted leave to join in as the 2^nd defendant in these proceedings. 

3.The hearing on assessment of damages took place before me on 16 July 2014 in open court and the plaintiff and the Board presented arguments on costs on 17 September 2014 in chambers.  Despite his presence at the hearing on 16 July 2014, the 1^st defendant did not challenge any of the evidence given or make any submissions. 

4.Evidence adduced took the form of a witness statement and oral testimony of the plaintiff, reports of Government hospitals at which the plaintiff had been given treatment and the medical report of Dr Wong Kwok Shing, Patrick dated 18^th September 2012.  The witness statement was adopted by the plaintiff at the hearing.  No evidence has been put forward by the 1^st defendant or the Board.

BACKGROUND

5.The plaintiff was born in Pakistan on 15 September 1992.  He is single and he came to Hong Kong in February 2010.  He attained secondary school education in Pakistan and speaks Punjabi, Urdu and very little English and Cantonese.  He is right-hand dominant.  At the time of the accident, he had been working at the 1^st defendant’s recycling factory for about 5 months and he now works as a part-time computer packing worker.  He used to play cricket at leisure before the accident.

6.The incident that led to the present action occurred at around 2:30pm on 10^th August 2010.  The plaintiff was extracting wires from air conditioners, a task he performed by using a machete type knife and hammer to split the motor of the air conditioners to get to the copper wiring.  As and when the knife became blunt, the plaintiff had to sharpen it with a hand held electric grinder.  On the day of the accident, the plaintiff was provided with a much larger grinder than the usual one, which was not working.  This grinder was much bigger and so more difficult to hold and operate.  It also had its safety guard missing.  The plaintiff held the knife in his right hand and the grinder in his left.  When he switched on the grinder and placed the blade of the knife on the disc of the grinder, the disc suddenly shattered and became detached from the grinder.  The detached disc hit and cut the right wrist of the plaintiff, causing him to drop the grinder which then hit the bottom joint of his right thumb. 

Medical condition

7.After the accident, the plaintiff was seen at 18:20 hours on 10^th August 2010 at the Accident and Emergency Department (“A&E”) of Yan Chai Hospital (“YCH”).  The relevant report records partial detachment of the nail of his right thumb, decrease in right thumb abduction and extension and normal sensation in thumb, with no foreign body or fracture seen on the X-ray of his right wrist and right thumb.  He was next seen at the Orthopaedics and Traumatology Department of YCH (“O&T”) on 12^th August 2010.  The diagnosis was right wrist wound with cut tendon.  Wound exploration and tendon repair was carried out on that day and the plaintiff was discharged on 13^th August 2010.  His last follow up with O&T was on 8^th April 2011, with residual pain and stiffness on right thumb extension noted on the report.

8.According to the Physiotherapy Report of YCH, the plaintiff was referred for physiotherapy by O&T on 13^th August 2010, the diagnosis being right thumb extensor tendon rupture with repair done.  When the plaintiff first attended the Physiotherapy Department of YCH on 23^rd August 2010, his right thumb was immobilized on static extension splint and he complained of pain over wrist and fingers.  His fingers flexion range was found to be full while extension was 2/3 of normal.  Various physiotherapy treatments were given. 

9.The plaintiff did not follow up with further sessions until he was referred for physiotherapy again by O&T on 27^th October 2010 with the same diagnosis of right thumb extensor tendon rupture.  This time he attended 15 sessions of physiotherapy treatment, beginning on 10 November 2010 when he complained he was unable to extend and abduct his right thumb.  At that time, his active thumb abduction range was full while the extension range was 40⁰ lag and the strength of right power grip was 8 kg and that of the left hand was 43 kg.  When he was discharged on 23 October 2011, his active movement of right thumb extension was 20⁰ lag and the power grip of his right hand was 18 kg while that of the left hand was 54 kg.

10.From 19 August 2010 to 2 February 2011, the plaintiff had occupation therapy sessions to follow up on his right hand splint.  The splint was later removed, followed by a tendon rehabilitation program. The last assessment by the occupation therapy team was carried out on the plaintiff on 12 January 2011, indicating pain at right thumb MCPJ, with grip strength of 12 kgf for right hand and 50 kgf for left hand and lateral pinch of 2 kgf for right hand and 8 kgf for left hand. 

11.For preparation of the expert report, the plaintiff was examined by Dr Wong Kwok Shing, Patrick on 16 August 2012.  Dr Wong found the plaintiff to have attained maximal medical improvement, there being no further treatment for assisting recovery.  In addition, the plaintiff does not require any ongoing symptomatic relief treatment in future for his injury and there is no indication for further surgical treatment.  Dr Wong agrees with the granting of sick leave to the plaintiff from the date of accident to 24 November 2011, that is 15.5 months.

12.The range of motion of the wrists and thumbs of the plaintiff was tested.  The discrepancy between the right wrist and the left wrist was notable.  With the thumbs, the left side outperformed the right side a lot. The results of the grip strength test and thumb pinch test also showed that the right hand of the plaintiff was significantly less strong than the left hand.

13.The report of Dr Wong records the feeling of intermittent pain by the plaintiff over the base of his right thumb and adjacent wrist upon pressure touch, in early morning hours and in cold weather, as well as weakness on the right hand and right thumb numbness or stiffness.  Dr Wong has also referred to the healing of the previous laceration, the absence of muscle wasting, bony lesion or insertion of foreign material, and the reduction in right thumb movement and right hand grip strength. 

14.According to the testimony of the plaintiff at the hearing, he now only feels pain when the weather is very cold, when the spot is accidentally touched or if he lifts heavy objects.  At the request of Mr Sakhrani, the stiffness of the right thumb and the swollen part of the hand where he was hit by the grinder was shown to the court by the plaintiff. 

15.The opinion of Dr Wong on the effect of the injury on the plaintiff’s ability to return to his original work can be found in paragraphs 61 and 66 of his expert report, the contents of which are set out below –

“61. Residual disability and prognosis: The overall prognosis for Mr. Hussain’s right wrist injury should remain satisfactory. He is expected to have some residual pain, in particular upon heavy exertion. Mild stiffness and weakness of his right thumb are likely to persist. Overall functional use of his right hand will be mildly impaired for general purpose and daily activities, more impairment is expected for heavy manual-work or fine use requiring much dexterity.

66. Return to work: From the orthopaedic perspective, Mr Hussain will have difficulty performing full-duty of his pre-accident job as a recycling factory worker.  He will require job modification to avoid handling very heavy object.  His work efficiency and capacity will be reduced after the accident, such as he may need more frequent rest in-between prolonged work.  As an alternative, he may choose to change his job to less-demanding manual work, such as packing worker, cleaning worker or security guard, etc.”

The plaintiff’s work

16.On the evidence of the plaintiff, when he first worked with the 1^st defendant on 16 March 2010, his salary was about HK$8,500 a month.  The plaintiff came to know about this job because the driver of the 1^st defendant was from the same village in Pakistan as him.  The salary of the plaintiff was increased to about HK$10,000 a month in July 2010.  When asked by Ms Leong as to the reason for such increase, the plaintiff said he was paid more because he had gained experience in opening up a motor to get to the materials inside.

17.Further details about the pre-accident employment of the plaintiff were revealed upon questioning by counsel.  The plaintiff was basically paid a fixed income.  Normally, he worked 26 days in a month from 9am to 9pm, 12 hours a day.  If the plaintiff worked on a Sunday, which was not very often and occurred about once every 2 months, the plaintiff would get HK400 and he would be paid on that day.  There were no other allowances.

18.There is no documentary proof of the income of the plaintiff at the time of the accident.  According to the plaintiff, he was paid in cash and he did not then have a bank account or an MPF account.  There is an undated letter signed by the 1^st defendant which records the salary of the plaintiff being HK$8,500 a month.  This was, the plaintiff explained, requested by him from the 1^st defendant around May or June 2010 when he wanted it for submission to the Immigration Department in support of the application of his younger brother to come to Hong Kong. 

19.At the hearing, the plaintiff testified to his attempts in finding work after the expiry of his sick leave in November 2011.  He consulted his uncle on this as his uncle has lived in Hong Kong for around 30 years.  The uncle suggested the plaintiff to find work at a construction site.  When the plaintiff learnt that he would have to carry construction materials up many floors, he realized he could not do it.  The plaintiff had asked his uncle to help him get a job as a security guard, but his uncle turned him down because he did not know Cantonese.  The plaintiff tried to apply for a driving licence so that he could become a driver, but that did not work out, because he could not read the road signs, not being conversant with the Chinese or English language.  He went to the Labour Department to find work as a driver but was told that he had no road experience.  There is no evidence that the plaintiff had checked with the Labour Department on other types of work available.

20.The plaintiff managed to find some light work in January 2012 at a work place where some other Pakistani friends of his are also working.  The work place is like a warehouse to which truckloads of computer screens are delivered, and the plaintiff’s job is to sort out the good screens from the bad and have the good ones re-packed.  The fellow Pakistani workers can tell the plaintiff what the boss wants to be done. 

21.As stated in paragraph 5(d) of the Revised Statement of Damages, since January 2012, the average salary of the plaintiff is around HK$6,000 a month. In response to questions from Ms Leong, the plaintiff indicated that, depending on the work that the employer has for him, sometimes he works for 2 or 3 hours a day and he gets $200 for that day and sometimes he works for 5 hours a day and then he gets $300.  He works between 15-20 days a month, depending on whether there is a need to call in extra hands to help out.  There is also no documentary proof of the salary of the plaintiff with his current employment.

22.According to the plaintiff’s testimony, the Pakistani friends working for his current employer are full time employees because they handle loading and unloading as well, and they each earn HK$15,600 a month.  Owing to his inability to take up such tasks, the plaintiff is only employed on a part time basis.  Ms Leong suggested to the plaintiff that he has not taken reasonable steps to mitigate his loss and specifically asked him if he had tried to secure full time employment with the present employer.  The response of the plaintiff is that he has tried but he cannot work full time because even with the part time job, he sometimes feels pain.  The plaintiff also explained that with his attempts to find other jobs, he did not try working on-job but he came to know that he could not do the other jobs after considering what he would be required to do.

23.Mr Sakhrani had also asked the plaintiff in chief about his attempts to find other work to supplement his income.  The plaintiff testified to having asked his uncle and friends to look for other work, light work, for him but so far nothing has been recommended to him.  The plaintiff was told by his uncle to work at the present job for the time being until something suitable could be found. 

24.A matter worth noting is the lack of evidence showing that the plaintiff has attempted to find work as a cleaning worker, despite that being one of the types of work that Dr Wong opines as being suitable for him.  It should also be noted that the evidence of the plaintiff only shows difficulties in seeking employment owing to the physical disability and language barrier faced by the plaintiff.  There is nothing which tends to show that there is shortage of work available to general labourers or the labour market conditions at the relevant times were otherwise unfavourable to the plaintiff in his job hunting. 

Pain, Suffering and Loss of Amenities (“PSLA”)

25.The plaintiff claims PSLA in the amount of HK$225,000.  In the Revised Statement of Damages, the painful injuries inflicted on the plaintiff were referred to, so were the surgery, hospitalization, physiotherapy and occupational therapy treatment that he went through.  There was also mention of the residual pain and the restriction to the ability of the plaintiff to play cricket in his spare time.  Mr Sakhrani referred to the awards made in the cases of Ng Tat Ping v Cho Shui Leung HCPI 646/2000, 13 June 2001 and Tsui Kim Ming v Charter Form Co. Ltd HCPI 681/2001, 29 October 2002. 

26.The Board thinks the appropriate award should be HK$150,000.  Ms Leong drew my attention to the greater severity of the injuries in the Ng Tat Ping case and the Tsui Kim Ming case.  She in turn cited the cases of Khan Sujad v Ho Ho Kwong formerly trading as A Step Ahead Cleaning Engineering  Company DCPI 339/2004, 23 February 2005, Ng Kai Man Samuel v Chow Yat Tak HCPI 314/2008, 8 April 2010 and Gurung Krishna Jang v Precious Swing Limited HCPI 486/2009, 16 November 2010.  Mr Sakhrani suggested that the Khan Sujad and Gurung Krishna Jang cases actually help the plaintiff because the hand that was injured in those cases appeared not to have been the dominant hand and the person injured in each of those cases could return to his pre-accident work.  

27.Mr Sakhrani also reminded me to take into account inflation, as had been done in the case of Leung Kwun Chuen v Li Shing Kong trading as Lung Hint Design Decoration Co. HCPI 749/2011 22 March 2013.  Ms Leong did not take issue with that and it is her case that the suggestion of HK$150,000 has in fact allowed for inflation.

28.The damages awarded in previously decided cases provide guidance to a certain extent, but since no two cases will be precisely the same, it serves no useful purpose to weigh each and every particular detail of the injuries and their effect in the cited cases against those of the case before me.  Having considered the awards made in the cited cases, the extent of the injuries and the treatments undergone by the plaintiff, the impact on his daily activities, as well as the effect of inflation since the awards made in the cases cited were some time ago, I award the amount of HK$170,000 to the plaintiff for PSLA.

Pre-Trial Loss of Earnings and MPF

29.The lack of any documentary proof of the salary of the plaintiff both for his previous employment and his current part time job is a bone of contention between the plaintiff and the Board.  Ms Leong urged me to be cautious about accepting that there had been an increase of the salary of the plaintiff after 4 months of his employment with the 1^st defendant when his current salary has remained static although the plaintiff has worked for the current employer for over 2½ years. 

30.Despite the absence of documentary proof, I accept that the plaintiff was earning about HK$10,000 a month at the time of the accident.  As suggested by Mr Sakhrani, increment upon completion of probation is not uncommon and the plaintiff did explain that he had become more skillful with the work of extracting wires.  That the plaintiff was paid by cash and that he did not have a bank account at that time can also account for the absence of bank records showing the earnings of the plaintiff at that time. 

31.Another objection of the Board is directed at the argument that there should be allowance of time for the plaintiff to look for work after expiry of sick leave on 24 November 2011.  In the Revised Statement of Damages, the plaintiff claims pre-trial loss of earnings for 17 months at the rate of HK$10,000 per month, of which 15.5 months are attributable to the period covered by the sick leave and 1½ months for allowing time for the plaintiff to look for work.

32.Mr Sakhrani referred me to the Gurung Krishna Jang case in support of the plaintiff’s claim for pre-trial loss of earning for 1½ months between 24 November 2011, when sick leave expired, and January 2012, the time he started working for the current employer.  Pointing to the report of Dr Wong, Ms Leong put it to me that so long as there is job modification, the plaintiff should be able to find a new job shortly after expiry of sick leave had he taken reasonable steps to do so and hence, the 1½ months should be discounted.  Ms Leong drew my attention to the fact that the plaintiff was introduced to both his previous job and the current one by friends.  As she put it, the plaintiff’s case should be distinguished from the situation of a plaintiff who has no such network and has to rely on the assistance of the Labour Department or his or her own efforts to look for employment. 

33.Whether, and if so how much, time should be allowed for looking for employment depends on the circumstances of each case.  Master K Lo allowed time for looking for employment in the Leung Kwun Chuen case after taking into account the age, education and work experience of the plaintiff in the case.  In the Gurung Krishna Jang case, the plaintiff there, a Nepalese, was allowed 3 months to look for work after expiry of sick leave.  However, there was evidence in that case of the high unemployment rate among the Nepalese community in Hong Kong. 

34.The plaintiff in the present case has a much better social network.  He started working for the 1^st defendant within a month of his arrival in Hong Kong and he was able to find the present part-time job after 1½ months from expiry of sick leave.  The new job openings that the plaintiff was looking for do not require any special skill, knowledge or training, nor is there any need for the attendance of a few rounds of interview. 

35.Actually it is the testimony of the plaintiff that he had asked his uncle for referral of job openings, leading not only to his weighing up the possibility of taking up work at a construction site, or working as a driver or security guard, but also to his ultimate realization that those types of work are not something he can handle because of his inability to lift heavy objects or because of language barrier.  As the enquiry conducted did not entail exertion of the injured hand of the plaintiff at all, all such job-hunting efforts could have been undertaken while the plaintiff was still on sick leave.  The plaintiff might have taken some time in trying to secure a full time employment and so reluctant to start work on a part-time basis, but he could have looked for both part-time and full-time employment at the same time.  Whatever the actual reason may be, I see no justification to allow time for looking for new employment in the present case.

36.The plaintiff’s loss of earnings for the period from the date of accident to expiry of sick leave is thus HK$10,000 x 15.5 = HK$155,000.  MPF is claimed and there is no challenge by the Board to the award of an additional 5% of the amount computed.  However, it is the plaintiff’s own testimony that he had no MPF benefits from the 1^st defendant.  Given that the plaintiff should be put in a position had the accident not occurred, the 5% should not be added since he would not have received such amount from the 1^st defendant. As pointed out by HH Judge Simon Leung in Chan Chi Shing v Chan Shu Kuen [2009] HKLRD 259, at paragraph 43, “Damages are compensatory and it is [the plaintiff’s] burden to prove his loss rather than assumed entitlement”.  I therefore make no award for MPF for this period.

37.Next to consider is the multiplicand for the loss of earnings from expiry of sick leave up to trial.  Mr Sakhrani invited me to adopt a figure that is higher than HK$10,000 a month as the notional salary of the plaintiff had the accident not occurred.  Given that statistics on earnings of general labourers on construction sites of public projects show that there has been an increase for the period from August 2010 (around the time of the accident) to April 2014 (around the time of trial), Mr Sakhrani suggested that the same percentage increase should be applied to the salary of the plaintiff was receiving from the 1^st defendant at the time of the accident.  This notional amount is approximately HK$13,000 per month. 

38.I have reservations with applying the same percentage increase to the pre-accident earnings of the plaintiff.  The hot demand for labourers at construction sites is fuelled by the many infrastructure and other development projects going on in Hong Kong.  There is no evidence before me which shows that the same applies in other fields of employment.  It would not however be fair to say that there would not have been any increment at all.  Not having before me any other reliable figures, I will take the mean of HK$10,000 and HK$13,000 and adopt HK$11,500 per month as the notional salary of the plaintiff at the date of trial had the accident not happened.

39.On behalf of the Board, two alternative cases on how damages for this period should be computed were put forward by Ms Leong.  In the first place, it was argued that the plaintiff is capable of returning to his pre-accident employment with no reduction in pre-trial or future earnings.  Ms Leong drew support from the part of the opinion of Dr Wong which says that job modification to avoid handling very heavy object and more frequent rest would be required if the plaintiff is to return to his pre-accident job as a recycling factory worker.  She took this as support that the plaintiff could return to his pre-accident job.

40.I have difficulty with reading the report of Dr Wong in the manner suggested by Ms Leong.  Those remarks of Dr Wong have not taken into account the feasibility of implementing the requisite modification, or the readiness of the employer in accommodating the plaintiff.  At the time of the accident, the plaintiff had to extract wires from discarded air-conditioners for recycling.  These electrical appliances are of fairly heavy weight and it is difficult to see how this can be modified.  The efficiency of the plaintiff will also be very much reduced if he is to take frequent rests.  I agree with Mr Sakhrani that the entire report should be read as a whole and if so read as a whole, returning to his pre-accident work is not a viable option for the plaintiff. 

41.In the second scenario, the Board seeks to rely on the average monthly salaries of male guards under 2-shift systems as published in the Quarterly Report of Wages and Payroll Statistics of the Census and Statistics Department.  The figure for March 2012, around the time when the plaintiff started with his new employment, is HK$9,545 per month.  It is noted in the skeleton submissions of the Board that this figure has been increased to HK$9,867 per month by March 2013.  It is the Board’s suggestion that the HK$6,000 per month current salary that is claimed to be earned by the plaintiff should be substituted by any of these figures. 

42.The plaintiff denies that it is appropriate to extrapolate from the statistics of security guard earnings because the figure is based on two 12-hours shifts.  Mr Sakhrani urged me to consider whether it is realistic in the circumstances, when the Board has adduced no evidence to show that an ethnic minority with modest education and no language skills, but with a significant physical limitation can really compete at a salary of that level.

43.I shall first deal with the salary of the plaintiff with his current part-time employment.  I have explained in the above why I am prepared to accept that the plaintiff was earning HK$10,000 a month at the time of the accident although no documentary proof has been provided.  However, with the salary that the plaintiff is now earning, different considerations are at play.  The plaintiff has been working for this employer for over 2½  years and there has been no explanation from him as to why he has not asked for any income proof from this employer.  The plaintiff also gave evidence that he now has a bank account, but no bank records have been produced.  If the bank statements will not be of assistance say because he is paid in cash and he spends what he earns, then there can be no saving of efforts for the plaintiff to tell the court that that is the case. 

44.The present action was commenced in 2012 and for the purpose of substantiating his claim for special damages, which forms a rather small portion of the total amount of his claim, the plaintiff has produced all the receipts for the relevant medical expenses incurred by him.  These receipts cover the period from 16 August 2010 onwards.  It is clear therefore that from the onset of the case, the plaintiff has been well aware of the importance of documentary records to support his claims.  The plaintiff did not give evidence on whether income proof has been requested from the present employer or whether any personal records of his earnings have been kept, if none can be obtained from the employer.  The incongruity in the way the plaintiff sets out to prove his case for special damages and the pre-trial and post-trial loss of earnings stands out sharply. 

45.That being the case, I agree with Ms Leong that the HK$6,000 per month figure should not be accepted as the current salary of the plaintiff.  To arrive at the figure to be substituted, I will make reference to the average monthly salaries of male guards under 2-shift system.  Since the figure of HK$13,000 per month that was suggested by Mr Sakhrani has taken into account increment up to April 2014, the comparison should be between likes with likes. The March 2013 figure of HK$9,867 per month is around mid way between March 2012 and April 2014 and would be a good reference point. 

46.Mr Sakhrani has voiced concerns about the competitiveness of the plaintiff and the appropriateness of a direct extrapolation of such figure.  I do not agree that the physical condition of the plaintiff poses any real limitation to his working full time, whether on a 2-shift or 3-shift basis, when there is nothing in Dr. Wong’s report to support such a conclusion. Security guard is also a type of employment which Dr. Wong considers the plaintiff to be capable of undertaking without physical limitations. In view of the language barrier issue, I will adopt the mean of the HK$9,867 figure and the current salary as claimed by the plaintiff.  The figure to be adopted as the current monthly salary of the plaintiff is thus (HK$9,867+HK6,000)÷2 =HK$7,934.

47.There is still the question of whether the plaintiff has taken reasonable steps to mitigate his loss.  I have set forth in paragraphs 22 and 23 above the specific questions that were put to the plaintiff by Mr Sakhrani and Ms Leong about his efforts to supplement his income.  In respect of the answers to the questions of Ms Leong, the part where the plaintiff alluded to feeling pain even with the packing job that he is doing at the moment is clearly inconsistent with the opinion of Dr Wong. 

48.The employment mentioned in the report of Dr Wong as being suitable to the plaintiff includes that of a packing worker, cleaning worker or security guard and there is no qualification that he can only work part-time or that he needs frequent rests if he takes on any such work.  The feeling of pain at work was also not mentioned by the plaintiff when he gave evidence in chief about the residual pain that he has.  Noting that the plaintiff was examined by Dr Wong after he had started with his current part-time employment, the difficulties that he faces in such work owing to his physical conditions could have been conveyed to the expert and reflected in the report drawn up, but that had not been done. 

49.Simply looking at the matter from the perspective of his physical limitations, it is the evidence of the plaintiff that his friends at the same workplace are working full time because they have to handle loading and unloading while he himself does not.  There is no mention otherwise that the plaintiff has to lift heavy objects in his present employment.  In light of this and also the aforesaid absence of any qualification in the opinion of Dr Wong about the plaintiff being able to work only part-time if the plaintiff is to be a packing worker, cleaning worker or security guard, I do not find the plaintiff’s account of not being able to work full time as a packing worker because of the residual pain in his hand to be credible.

50.Having reviewed the testimony of the plaintiff as a whole, I find that the plaintiff has failed to make out a case that he cannot work full time as a packing worker because of his physical disability.  I do accept though it is possible that the plaintiff is not working full time in his current employment because the only available opening is for someone who not only packs, but also handles loading and unloading.  It is Mr Sakhrani’s submission that the ability of the plaintiff to find work is affected by not only his medical condition but also the labour market, bearing in mind that the plaintiff is a Pakistani manual worker who does not have much education and the necessary language abilities with a disabled right dominant hand. 

51.The importance of the state of the labour market cannot however be over-emphasized.  The state of the evidence is that the plaintiff has taken no steps to supplement his income other than following the advice of his uncle and waiting for something suitable to come up.  It is not clear whether the plaintiff has asked his uncle and friends to look out for another part-time job for him or whether they are only on the lookout for full-time employment on his behalf.  Similar concerns apply in relation to the enquiry he made with the Labour Department.  Apart from employment as a driver, there is no evidence that the plaintiff has checked with the Labour Department about other job openings, in particular part-time employment.

52.One particular type of job mentioned in the report of Dr Wong as being suitable for the plaintiff is that of a cleaning worker, also without any qualification that the plaintiff can only take up such employment on a part-time basis.  The job of a cleaning worker does not require language skills and the linguistic limitations of the plaintiff should not pose any great obstacle. There is however no evidence that the plaintiff has made any enquiry with his uncle and friends or the Labour Department about such job opportunities. 

53.At the hearing, Ms Leong observed that despite working only a few hours a day, there is no evidence that the plaintiff has made any attempts to look for another part-time job.  There is some truth in Ms Leong’s observation.  Before the accident, the plaintiff worked 12 hours a day, 26 days a month, i.e. 312 hours every month, not counting the few occasions when he worked on Sundays.  With the current part-time job he has, taking the average of 2-5 hours a day (3.5 hours) and 15-20 days a month (17.5 days), he only works approximately 62 hours a month, about 20% of his previous working hours. Even in the busiest of months, the working hours of the plaintiff will only be 100 hours (5x20days), less than one third of his pre-accident working hours.  There is a lot of spare time in his hand. 

54.A plaintiff has to take reasonable steps to mitigate his loss.  For the plaintiff in the present case, who has so much free time for over 2⅟₂ years, a lot more explanations as to the difficulties encountered and accounts as to the attempts made from time to time to find other jobs have to be provided.  Simply waiting for his uncle and friends to introduce him to other suitable jobs for such a long span of time will not be sufficient, in particular when there is nothing to suggest that enquiry about taking up cleaning work has been made.  It is clear from the evidence that the plaintiff has not exhausted reasonable efforts to mitigate his loss. 

55.What should then be the notional current salary of the plaintiff had he taken reasonable steps to supplement his income?  There is nothing before me which points to difficulties, in terms of the market conditions, that are faced by the plaintiff in finding other part-time employment to make good use of the time available to him.  Whether it is a busy month or a slack one, the plaintiff can work for at least two times more the hours that he puts into his current part-time employment.  Even if I am to assume that the plaintiff only works double and not triple of his current working hours, at the rate that he is now paid for his part-time packing work, this means that he can earn HK$7,934 more a month.  If the lower rate at the statutory minimum wage of HK$30 per hour is adopted, he can get about HK$1,860[1] extra each month.  I shall take the mean of these two figures [(HK$7,934+HK$1,860) ÷2], that is the sum of HK$4,897, as the extra earnings that the plaintiff could get had he taken reasonable steps to mitigate.  With this added to the current monthly earning of HK$7,934, the notional current salary of the plaintiff had he taken reasonable steps to supplement his income would be HK$7,934+HK$4,897, ie HK$12,831 per month. 

56.This well exceeds the accepted actual pre-accident earnings of HK$10,000/month or the notional current salary at the time of trial of HK$11,500/month.  Nonetheless some time should be allowed for the plaintiff to take the steps to ensure that he is more gainfully occupied and to find additional part-time employment which fits in with the schedule of his current employment. In the circumstances, I will allow nine months from expiry of sick leave for the plaintiff to secure other part-time employment to supplement his income. 

57.For the above reasons, calculation for the pre-trial loss of earnings after expiry of sick leave should be by way of this formula – [(HK$10,000+HK11,500[2])÷2–HK$7,934] x 9 x 1.05 = HK$26,611.  With the HK$155,000 for the period before expiry of sick leave added to it, I award the sum of HK$181,611 as pre-trial loss of earnings.

Post-Trial Loss of Earnings and MPF

58.In light of the findings above, there would be no loss of earnings post trial.  No award is made under this head.

Disadvantage on the labour market

59.The plaintiff seeks damages under this head on the basis that he will be at a greater risk of becoming unemployed than someone not having been so injured.  In the Revised Statement of Damages, the plaintiff sought an award of HK$180,000, representing 18 months’ pay as a security guard.  In the written opening submissions of the plaintiff, this is revised to HK$156,000, about 12 months’ pay at the notional figure of HK$13,000 a month. At the hearing, Mr Sakhrani further revised the amount and invited me to consider HK$72,000 as an appropriate award, representing 12 month’s pay at HK$6,000 per month. 

60.Ms Leong referred me to the fact that the plaintiff has been at his current job for 2½ years and in her view, there is no reason to suggest that the plaintiff is at risk of losing his job.  Even if an award is to be made for such disadvantage, Ms Leong submitted that the court should adopt the notional earnings of the plaintiff had he taken reasonable steps to mitigate and not the notional figure of what the plaintiff could have earned had the accident not happened. 

61.The case of Robson v Liverpool City Council, CA, 12 January 1993 was cited by Mr Sakhrani in support of the claim of damages under this head. In that case, Neill L.J., at page Q83, made reference to the guidance given in the case of Moeliker v A. Reyrolle & Co. Limited [1976] I.C.R. 253 about the factors to be taken into account for the purpose of assessing the value of the damage to the earning capacity of a plaintiff.  The examples mentioned include a plaintiff’s age; his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both.

62.The plaintiff is a general labourer.  He is not tied to working in one particular area or in one particular field.  The limitations he faces in seeking employment are not induced solely by the injuries he sustained in the accident, but also due to language barrier.  Noting the young age of the plaintiff, the inability of the plaintiff to read, write or speak English or Chinese is a condition that can change in the course of time.  Having taken into account all relevant factors, I do not accept that the plaintiff would suffer significant handicap in the labour market.  I make no award under this head. 

Special Damages

63.The claim of HK$3,911 for medical and travelling expenses is accepted by the Board.  Receipts for expenses in excess of the amount claimed have been produced.  The amount claimed is awarded.

Deductions

64.In the Revised Statement of Damages, the plaintiff indicated that he will give credit for the sum of HK$107,400 received by way of award in his employees’ compensation claim in DCEC No. 1933 of 2011.  At the hearing, Mr Sakhrani asked that no such deduction be made because the plaintiff has not received the awarded sum from the 1^st defendant and so there will not be double counting.  Ms Leong pointed to section 20B of the Employees Compensation Assistance Ordinance (Cap. 365) (“Ordinance”) which provides that the relief payment that the plaintiff can obtain under the Ordinance will be reduced by the amount of compensation which has been paid or is payable under the Employees’ Compensation Ordinance (Cap. 282). 

65.The award in this action will not extinguish that made under the DCEC action.  If credit is not given against the award in this action, the plaintiff will have two awards for that amount.  I therefore do not agree with Mr Sakhrani that there will be no double counting.  The deduction should therefore be made. 

66.In paragraph 8 of his witness statement, the plaintiff says he will give credit also to a cash payment of HK$22,000 made by the 1^st defendant to the plaintiff since the occurrence of the accident.  The total amount to be deducted should therefore be HK$129,400.

Summary

67.The following table sums up the computation of the damages assessed to be payable by the 1^st defendant to the plaintiff:

	HK$
PSLA	170,000
Pre-trial loss of earnings and MPF	181,611
Special damages	3,911
Deductions	(129,400)
Total	226,122

68.I award damages to the plaintiff in the sum of HK$226,122, together with interest on damages for PSLA from date of writ to date of judgment at 2% per annum and interest on the pre-trial loss of earnings and MPF and special damages at half of the judgment rate from date of accident to date of judgment. Interest at judgment rate is to be paid on the net amount of HK$226,122 from judgment until payment.

COSTS

69.Mr Sakhrani sought a costs order against the Board while Ms Leong argued that the court has no jurisdiction to order costs against the Board.  The costs orders in a number of cases were examined and where applicable, the reasoning gone through, with the most recent one being the judgment of Bharwarney J in Kwan Kam Pui v Fung Man and others HCPI 18/2012 30 May 2014. 

70.The learned judge in Kwan Kam Pui has actually gone through the history on the evolution of the scheme administered under the Ordinance at great length and also analyzed the authority on the point before coming to the conclusion that the court’s jurisdiction under section 52A of the High Court Ordinance (Cap. 4) to award costs against the Board which has joined as a party to proceedings commenced by injured employees against their employers for common law damages is not curtailed by the provisions in the Ordinance.  Ms Leong pointed out that the discussions of Bharwarney J on this issue in the case were obiter and invited me to look at the matter differently.

71.Despite her critical analysis, I am not persuaded by Ms Leong and I have come to the same conclusion as that of Bharwarney J.  I agree to the reasons given by the learned judge in the case and I do not think any useful purpose will be served by my repeating them here.  Suffice it to say that the absence of power to order costs against the Board under section 25A or other provisions of the Ordinance does not in any way affect the court’s jurisdiction under section 52A of the High Court Ordinance. I also agree with Mr Sakhrani on his submission that the case of Tu Zhiqiang v Hap Sang Co (a firm) [2012]HKLRD 1075 relied on by Ms Leong does not support her argument that costs cannot be awarded against the Board where it intervenes under section 25A of the Ordinance.

72.Even if I am to find that the court has jurisdiction to order costs against the Board, Ms Leong suggested that the discretion should not be exercised against the Board in the absence of vexatious, dishonest or other improper conduct on its part.  With costs incurred before the intervention of the Board, it is Ms Leong’s submission that even stronger reasons are required for such costs to be borne by her client and plainly no such reasons exist in the present case.  Mr Sakhrani objected to what in his view is a re-writing of the rules to require the court to take into account vexatious, dishonest or other improper conduct in the exercise of its discretion. 

73.In Kwan Kam Pui, Bharwarney J set forth his views as to the usual order firstly where the Board has intervened to dispute liability and quantum or where it has obtained an order to set aside interlocutory judgment for damages to be assessed in order to dispute liability and quantum.  He then gave his view on the usual order where the Board has intervened in order to dispute the injured employee’s claim on quantum only.  In such latter case, the usual order is that the Board ought to pay the costs of the proceedings from the date of its joinder.  Kwan Kam Pui does not support an order against the Board for costs of the proceedings prior to the joinder.  I see no reason to do otherwise in the present case. 

74.As for the costs of the proceedings from the date of the joinder, the learned judge only set forth guidelines as to what the usual order should be. His view is not in any way meant to be mandatory in all cases of such joinder and I still have a discretion to exercise in light of all the relevant considerations. 

75.According to a business registration search conducted by the Board when it applied to be joined as the 2^nd defendant, the 1^st defendant ceased trading as Three Star Recycling Co. on 4 October 2010, right after the plaintiff was injured while working as his employee.  I cannot rule out financial problems as being the reason for his closing down the business.  However, in light of the fairly significant increment (about 17%) of the salary of the plaintiff that took effect in July that year, the outlook of the business around that time should not be too grim.

76.The reason for the 1^st defendant not taking a more active role in the proceedings is unknown to me, nor is the likelihood of the recovery of the awarded amount from the 1^st defendant.  What is clear though is the wrongdoer in this case is the 1^st defendant.  If the costs order is made against the Board, the 1^st defendant will be rid of a significant portion of the loss that results from his wrongdoing, a liability that is his in the first place. 

77.The Board intervenes in the present proceedings under section 25A(b) of the Ordinance.  Unlike a joinder pursuant to section 25A(a) (i) to (iv) of the Ordinance where the chance of recovery of the damages awarded from the employer is rather slim, the position is not as clear for a joinder under section 25A(b).  Although the 1^st defendant did not take an active role throughout the proceedings, there is nothing to suggest that he cannot meet the liability that may be found to be his. 

78.Reducing the net amount of the award the plaintiff can actually receive because of the deduction that has to be made for costs is an unattractive scenario. That is not however a given when the employer, unlike a section 25A(a)(i) to (iv) situation, can be reached and there is no indication of his financial unsoundness.  That being the case, it is my view that allowing the 1^st defendant to benefit from a costs order against the Board is a greater vice that should not be condoned. 

79.Having taken into account all relevant circumstances, it is my conclusion that this is not a case to award the costs of the assessment against the Board.  Costs of the plaintiff and the Board in respect of the assessment, including all costs reserved, shall be paid by the 1^st defendant, with certificate for counsel and to be taxed at District Court scale if not agreed.  The plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations.

Mr Ashok Sakhrani, instructed by Massie & Clement, for the plaintiff

Ms Susanna Leong, instructed by Gallant Y.T. Ho & Co., for the 2^nd defendant

The 1^st defendant in person on 16 July 2014, absent on 17 September 2014