BISHWAKARMA BHAKTA BAHADUR v. PACIFIC CROWN SECURITY SERVICES LTD AND ANOTHER

HCPI 232/2015

[2019] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 232 OF 2015

________________

BETWEEN
	BISHWAKARMA BHAKTA BAHADUR	Plaintiff
	and
	PACIFIC CROWN SECURITY SERVICES LIMITED	1st Defendant
	DRAGAGES HONG KONG LIMITED and CHINA HARBOUR ENGINEERING COMPANY LIMITED and VSL HONG KONG LIMITED trading as DRAGAGES–CHINA HARBOUR–VSL J.V.	2nd Defendant

________________

Before:

Deputy High Court Judge Leung in Chambers

Date of Hearing:	23 October 2018
Date of Decision on Costs:	25 February 2019

_____________________________

DECISION ON COSTS

_____________________________

1.  After trial of this personal injury action, this court handed downjudgment on 30 August 2018 (“the Judgment”) with an order nisi as to costs. By summonses filed on 12 and 13 September 2018, the defendants and the plaintiff respectively apply to vary the costs order on the basis of their respective sanctioned offers made prior to the trial. The Director of Legal Aid, represented by the former assigned solicitors for the plaintiff, also appeared at the hearing of the summonses and made submissions in respect of his costs position.

Background

2.  The Judgment should be referred to for the background details.  Briefly, the plaintiff claimed against the defendants for damages in excess of HK$1,200,000.  Both liability and quantum were in dispute, until the defendants conceded liability when the trial began.  The plaintiff maintained his pleaded case on quantum, but adjusted that downward to slightly over HK$1,000,000 in his closing submission.  At the end, I assessed the quantum to be HK$464,815.  Since this fell short of the compensation in the employees’ compensation case (“EC Case”) in the sum of HK$483,875.50 received by the plaintiff, the plaintiff ended up with no award.

3.  Upon dismissal of the claim in the circumstances, I made an order nisi that the defendants shall have the costs of the action subject to the following qualifications:

(1)  To reflect that the defendants disputed liability but conceded only when the trial commenced, their costs recoverable from the plaintiff shall be reduced by 20%.

(2)  Costs shall be taxed, if not agreed; the plaintiff’s own costs up to the discharge of his legal aid certificate[1] shall be taxed in accordance with the Legal Aid Regulations.

The relevant pre-trial events and sanctioned offers

4.  The plaintiff was assisted by legal aid until the legal aid certificate was discharged at the end of March 2016.  He has since been represented by his present solicitors.

5.  On 14 November 2016, the plaintiff accepted the defendants’ sanctioned payment in the EC Case.  Hence the compensation mentioned above.  He therefore argued that it was not unreasonable for him to have commenced and maintained this action until then.  As to this, the parties are ad idem.

6.  The plaintiff should therefore be entitled to his costs of this action against the defendants up to 14 November 2016.  As will be discussed below, the effect of this costs position is material to the consideration of the parties’ applications.

7.  On 16 November 2016, the defendants put forward a sanctioned offer for the plaintiff to discontinue this action with the defendants agreeing to bear their own costs.  On 5 December 2016, the plaintiff challenged the validity of the offer.  Indeed, this offer had no effect, as it failed to provide for the plaintiff’s costs pursuant to Order 22, rule 20 of the Rules of the High Court (“RHC”).  For the present purpose, nothing further turns on the significance of this offer.

8.  Since then, the parties had attempted mediation.  The plaintiff had also made further discovery.

9.  By letter dated 22 March 2017 to the plaintiff, the defendants set out their assessment of the quantum in the sum of HK$466,064.  In other words, the plaintiff was said to expect no award in this action on top of the compensation in the EC Case.   The defendants therefore invited the plaintiff to discontinue the action and offered to bear the plaintiff’s costs up to the date of acceptance of the offer.  The offer was open to acceptance until 19 April 2017.

10.  On 4 May 2017, the plaintiff wrote to the defendants, stating that he would apply to the court for an order that should the court decides the issue of liability in his favour, he would be entitled to costs on liability to be taxed on an indemnity basis.  The plaintiff also put forward a sanctioned offer for the defendants to admit liability with costs on liability to the plaintiff to be taxed on the District Court scale.

11.  By letter dated 31 May 2017, the defendants rejected the plaintiff’s offer, and denied any basis for the plaintiff’s claim of entitlement to his costs on liability on an indemnity basis.  On the contrary, the defendants argued that if the plaintiff failed to beat their sanctioned offer, they would be asking for costs against him on an indemnity basis.

12.  Between the defendants’ sanctioned offer in late March and the end of 2017, the relatively significant steps taken in this action consisted of specific discovery in late 2017 and the plaintiff’s application for the setting down of the case for trial.

13.  The next letter came from the plaintiff in January 2018, after he has applied for setting down of the case for trial in the Running List.  By the letter, the plaintiff asked the defendants to consider a last ditch offer for avoiding a full blown trial.

14.  On 11 January 2018, the defendants replied by asking the plaintiff to consider discontinuing the action and offered to bear the plaintiff’s costs up to and including the day of mediation, ie, 3 March 2017.

15.  The plaintiff did not accept that.  Instead, on 22 January 2018, he made a Calderbank offer, suggesting to accept in full and final settlement of this action a sum of HK$80,000, inclusive of interest, on top of the compensation in the EC Case and plus costs on the District Court scale.  The defendants did not respond to the offer, which could only be taken to be refusal.

16.  On 22 February 2018, the plaintiff also took out his summons for limiting the admissibility of the joint neurological expert report dated 22 July 2016 to the issue of liability, and to expunge the rest of it.  The Judge in charge of the Personal Injury List directed the summons to be dealt with by the trial judge.  The summons was eventually withdrawn during the trial, with the consequential costs to the defendants.  As explained in the Judgment[2], I would have dismissed the summons in any event.

Variations sought by the parties

17.  The defendants now seek variation of the costs order nisi as follows:

(1)  The costs of this action from 14 November 2016 up to the conclusion of the trial be to the defendants to be taxed on an indemnity basis;

(2)  The above should not be subject to any deduction; and

(3)  The costs of this application be to the defendants to be taxed on a party and party basis.

18.  The plaintiff seeks variation of the costs order nisi as follows:

(1)  Costs of this action prior to the settlement of the EC Case on 14 November 2016 be to the plaintiff;

(2)  Costs of this action thereafter be to the defendants, subject to deduction of 40%; and

(3)  No part of the costs of this action to the defendants shall be taxed on an indemnity basis.

19.  During the hearing, the defendants also accepted that it was not unreasonable for the plaintiff to have commenced and maintained this action until the compensation in the EC Case was ascertained.  This happened on 14 November 2016 when the plaintiff accepted the defendants’ sanctioned payment in the EC Case.  They also accepted that the plaintiff should not be made to bear their costs on the higher basis until after the expiry of the 28-dayperiod available to him to accept the defendants’ sanction offer dated22 March 2017.

20.  With the adjustment of position during the hearing mentioned above, the parties are ad idem that the plaintiff should have his costs of this action up to 14 November 2016, and the costs thereafter should be to the defendants on the basis that the plaintiff had no basis for maintaining this action that produced no award.  The parties differ when it comes to whether the defendants’ costs after 19 April 2017 should be taxed on an indemnity basis.

21.  The major differences between the parties therefore boil down to the following questions:

(1)  Whilst the defendants should have their costs of this action after 14 November 2016, whether they are entitled to their costs after 19 April 2017 to be taxed on an indemnity basis on the basis of the plaintiff’s refusal to accept their sanctioned offer dated 22 March 2017.

(2)  Whether any part of the defendants’ costs should be subject to deduction, and, if yes, by how much.

Question (1)

22.  The basis for the defendants’ claim of entitlement to seek indemnity costs after 19 April 2017 is their sanctioned offer dated 22 March 2017.  By not getting any award of damages, the plaintiff failed to beat the offer.  In principle, the defendants should be entitled to costs of this action from the latest date for accepting the offer, ie, 19 April 2017, to be taxed on an indemnity basis.  I do not think this can be disputed as a matter of principle.

23.  In arguing against that, and actually question (2) as well, the plaintiff kept on focusing on his discontent about the defendants’ position in respect of the dispute on liability and how they ran their defence on both liability and quantum, including specifically the obtaining and use of the neurological expert evidence.

24.  In my view, the plaintiff’s argument fell out of line with what happened.

25.  To begin with, it is important to note that all the essential steps and costs in connection with the preparation of pleadings and evidence (including the obtaining of expert evidence) had already been taken and incurred by the time the EC Case was settled on 14 November 2016.  As mentioned, the defendants accept that the plaintiff is entitled to his costs of this action, which would include his costs of and occasioned by such steps taken by 14 November 2016.  The defendants’ costs of this action from that date would not include such costs.  The sanctioned offer dated 22 March 2017 would not have changed that.  In fact, had the plaintiff accepted the offer, he would have become entitled to his costs of this action even further up to the date of acceptance of the offer.

26.  In other words, in terms of costs consequence, the plaintiff’s complaint about the steps taken by the defendants in respect of the dispute on liability and quantum, as well as the costs incidental to those, should not operate against the defendants’ entitlement to any part of their costs incurred after 14 November 2016 or the taxation of such costs on the higher basis.

27.  It served no purpose of the plaintiff in this action unless he succeeded on both liability and quantum.  The plaintiff maintained that he had a good case on both. It is notable that the Calderbank offer made by the plaintiff in January 2018, after applying for setting down of the case for trial, sought a sum of HK$80,000, which was drastically lower than his pleaded claim.  The plaintiff was proved wrong.  The risk of not even managing to achieve that was what the plaintiff decided to take. He has no reason now not to face the consequence of his decision.  Yet notwithstanding that, the plaintiff in reality managed to recover his costs of this action up to 14 November 2016, which, as mentioned, already covered those incurred in connection with all the substantial steps taken in this action.

28.  In the circumstances, the plaintiff really cannot rely on his complaint about how the defence was run as the basis for further denying the defendants’ claim of entitlement to take advantage of their sanctioned offer to protect their costs position, when he manages to recover his costs incurred in all the substantial steps in meeting such defence.  It should also be noted that there is in these applications no question of whether such costs of the plaintiff payable by the defendants should be taxed on a higher basis on the ground of how the defence was run.

29.  As to the plaintiff’s complaint about the defendants’ approach in relation to the neurological expert report, I need say no more than what was explained in the Judgment[3].  That has no material bearing on the present question.

Question (2)

30.  The defendants argued that there should be no deduction whereas the plaintiff argued that there should be deduction of 40% of the defendants’ costs recoverable from the plaintiff.

31.  As stated in the Judgment, it is relevant to consider the defendants’ concession on liability only when the trial began, and whether that has occasioned costs unnecessarily.

32.  Notwithstanding the factual dispute raised by the defendants, they tendered no witness on liability.  Their key contention in respect of liability was the pre-existing condition of the plaintiff, which brought about the obtaining of the neurological expert evidence.  However, the joint report of the neurological experts dated 22 July 2016 did not substantiate that such condition caused or contributed to the accident.  It has become clear that the dispute on liability could not realistically be maintained.

33.  Again, the plaintiff complained about having to address the dispute on liability raised by the defendants.  However, as discussed above, the reality of the matter is that the plaintiff will recover his costs of all the essential steps taken by him in this action up to 14 November 2016, which would include the costs of preparing to address such dispute.  The defendants are not recovering any part of their such costs from the plaintiff.  Whilst the plaintiff still had to prepare to address the dispute on liability up to and including opening of this trial, the conduct of the case after 19 April 2017 and this trial on such basis has not brought about any material addition or waste of costs as a result of such dispute[4].

34.  In the circumstances, whether or not the defendants should not have disputed or should have conceded liability earlier, the costs occasioned by such position of the defendants to the plaintiff by 14 November 2016 are now effectively recovered from the defendants.  The same complaint should not operate to further deprive the defendants of their costs after that date up to the conclusion of the trial.

The Director of Legal Aid (“the Director”)

35.  As mentioned, the legal aid certificate in respect of the plaintiff was discharged in March 2016. The plaintiff has since been represented by his present solicitors.

36.  The originally assigned solicitors for the plaintiff now appeared to make submissions on behalf of the Director.  Apart from supporting the plaintiff’s application, the Director mainly made the point that any costs against the plaintiff after the discharge of legal aid should be borne by the plaintiff personally.  Any costs borne by the plaintiff personally mentioned above shall not be set off against his costs during the aided period which he now recovers from the defendants.  In other words, the Director gets to keep the plaintiffs’ costs during the aided period that are recovered from the defendants.

37.  The defendants’ position is that the above is a matter between the plaintiff and the Director.  I agree.

38.  During the hearing, the solicitor for the plaintiff confirmed his acceptance of the position of the Director as summarized above.  I do not find it necessary to make any order to such effect as a matter between the plaintiff and Director.

Conclusion and order

39.  For the above reasons, I vary the costs order nisi, and make an absolute order in the following terms:

(1)  The defendants do pay the plaintiff’s costs of this action up to and including 14 November 2016, to be taxed on a party and party basis.

(2)  The plaintiff do pay the defendants’ costs of this action from 15 November 2016 up to 19 April 2017, to be taxed on a party and party basis, and thereafter on an indemnity basis.

(3)  For the avoidance of doubt, I certify the engagement of counsel.

(4)  The plaintiff’s own costs of this action up to the discharge of the legal aid certificate remain to be taxed in accordance with the Legal Aid Regulations.

40.  As to the costs of these applications, the defendants’ side is as a whole the succeeding side.  I therefore order that the defendants shall have such costs, to be taxed on a party and party basis (as requested).  I make no order as to the costs of the Director’s appearance in the hearing.

 
 

	(Simon Leung)
	Deputy High Court Judge

  

Mr Ng Kwok Tung Gordon, of MCA Lai Solicitors LLP, for the plaintiff

Mr Cao Yuan Shan, instructed by Norton Rose Fulbright Hong Kong, for the 1^st and 2^nd defendants

Mr Chan Chit, of Chan Lawyers, for the Director of Legal Aid

HCPI 232/2015

[2018] HKCFI 1912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 232 OF 2015

________________

BETWEEN
	BISHWAKARMA BHAKTA BAHADUR	Plaintiff
	and
	PACIFIC CROWN SECURITY SERVICES LIMITED	1st Defendant
	DRAGAGES HONG KONG LIMITED and CHINA HARBOUR ENGINEERING COMPANY LIMITED and VSL HONG KONG LIMITED trading as DRAGAGES–CHINA HARBOUR–VSL J.V.	2nd Defendant

________________

Before:  Deputy High Court Judge Leung in Court

Dates of Hearing:  16 and 17 July 2018

Date of Judgment:  30 August 2018

________________

J U D G M E N T

________________

1.  The plaintiff (“Bishwakarma”) claims against the 1^stdefendant (“PCSS”), as his employer, and the 2^nd defendant (“Dragages”), as the principal contractor, of the construction site where he sustained personal injury in the course of work on 2 December 2013.

2.  Bishwakarma started to work for PCSS as a general labourer on 11 November 2013.  He worked at one of the construction sites of the Hong Kong Kong–Zhuhai–Macao Bridge project.  After working there for 16 days, he had an accident at work whereby he slipped and fell, and his face hit an iron pillar.  He was sent to the Princess Margaret Hospital (“PMH”), where he was diagnosed to have suffered from left tripod fracture injury.

3.  The defendants used to deny liability, and raised the issue that the accident, if it happened, was the result of Bishwakarma’s pre-existing physical condition.  Liability was conceded on the first day of the trial.  The trial was therefore on the quantum of damages.

Injuries, treatment and complaints

4.  Bishwakarma had no wound or loss of consciousness as a result of the fall, but felt pain on his face and around his left eye.  At the hospital, facial swelling and tenderness were found.  He was treated and discharged.  For suspected fracture of his orbital rim, he was referred to eye surgeon for further management.  Left facial tripod fracture was eventually confirmed.

5.  Due to alleged persistent pain on his left face, Bishwakarma continued his follow-up attendance at the PMH and Tuen Mun Eye Clinic.  In late April 2015, he started to attend Yuen Long Jockey Club General Outpatient Clinic (“YLJCGO”).  The sick leave issued by these bodies lasted until almost the end of July 2015, some 20 months in total.

6.  Bishwakarma still complained about:

(1)  persistent pain, tenderness and numbness of the left facial tripod;

(2)  headache, and need to take painkillers;

(3)  difficulty in chewing and biting; and

(4)  sleep disturbance.

7.  Bishwakarma also claimed loss of confidence and low self-esteem.

Orthopaedic expert opinion

8.  Bishwakarma was examined on 17 July 2015 by Dr Wally Law and Dr David Cheng, as orthopaedic experts instructed on behalf of him and the defendants respectively.  They produced their joint report dated 22 September 2015.  On 15 January 2016, Dr Law produced his supplemental report.

9.  The orthopaedic experts observed that Bishwakarma demonstrated good general health.  No wound or scar or facial nerve palsy was found.  Mild tenderness over the inferior orbit left side was detected.  So was reduced sensation to light touch on the left face below the left eye.  His eye movement was normal.  There was no hearing deficit or any other limb or spinal problem. X-ray revealed that the fracture had healed up without a trace.  The experts shared their diagnosis that there was no internal haemorrhage or visual involvement or hearing complications.  They also agreed that the treatment received by Bishwakarma was standard and appropriate, and he has reached maximum medical improvement.

10.  As to the complaint about persistent numbness and pain on the left face, Dr Law opined that this was compatible with the involvement of the infra-orbital nerve.  In his supplemental report, Dr Law added that it was well documented that concomitant injury to the infra-orbital nerve was very common in cases of tripod fracture.

11.  Dr Law opined that Bishwakarma would have persistent symptoms affecting his chewing and jaw movement, and the infra-orbital involvement would permanently cause him symptoms.  In his supplemental report, Dr Law added that the trauma to the face, the fracture and the associated bleeding, together formed scar tissue on the subcutaneous plane of the left face.  During movement of the jaw, the movement of the soft tissue of the face causes traction to such scar and the injured infra-orbital nerve, thereby causing symptoms described by Bishwakarma.

12.  Dr Cheng disagreed.  Whilst he agreed that infra-orbital nerve injury was one of the possible complications of tripod fracture, the possibility in the present case was based on the subjective complaints of Bishwakarma.  Even if there were an infra-orbital nerve contusion, the nerve was a pre-sensory nerve, and movement of jaw and chewing was controlled by an entirely different set of cranial nerve.

13.  Dr Law recommended further treatment for his left face pain and numbness on a required basis.  Oral painkillers would be necessary once every 3 months. Dr Cheng opined that the prognosis was good, and recommended no further treatment.

14.  As to Bishwakarma’s working capacity, Dr Law opined that the persistent symptoms caused by the fracture and the neurological complications would cause him distress and affect his work efficiency as a construction worker.  Dr Cheng considered the effect of the injury on Bishwakarma to be mild, and he was perfectly capable of resuming his pre‑accident job or taking up any job he would wish.  Even if there were some irritation of the infra-orbital nerve of the face, this should be temporary, and should not affect his work in any way.

15.  Dr Law considered the sick leave granted to Bishwakarma was reasonable and appropriate.  Dr Cheng opined that the contusion should take no more than 1 to 2 months to settle, and the factures should heal in 3 months.  In the absence of limb or body injury, sick leave of up to 4 months would be reasonable.  Dr Cheng specifically commented that the 20 months of sick leave was not justified in this case.

Neurological expert opinion

16.  Bishwakarma was examined on 17 June 2016 by Dr Kan Yiu Ting and Dr Brian Choa, as neurological experts instructed on behalf of him and the defendants respectively. They produced their joint report dated 22 July 2016.

17.  Whether the joint neurological expert report is and should be admissible in its entirety formed the subject matter of the summons taken out by Bishwakarma on 28 February 2018 and before me on the first day of the trial.

18.  There is no dispute that the neurological experts were instructed to give their opinion on the issue of causation between the pre-existing condition[1] of Bishwakarma and the alleged slip-and-fall accident.  As mentioned, the issue was raised in the defence.  However, in their joint report dated 22 July 2016, the experts collectively went beyond the ambit of their engagement, and gave their opinion on both the causation issue and the neurological impact of the tripod fracture injury on Bishwakarma—essentially what would have been expected of a full medical expert report.

19.  Bishwakarma then revised his statement of damages in September 2016.  In the same month, PCCS and Dragages filed their answers.  In answering the pleading as to alleged injury to the infra-orbital nerve and its alleged consequential persistent symptoms as well as permanent impact on Bishwakarma, PCSS and Dragages referred to the opinion of the neurological experts in these respects in their joint report.

20.  Notwithstanding the above, the master subsequently directed that the joint neurological report should be adduced without oral evidence without qualification save that this would be subject to the trial judge’s direction.

21.  By his summons, Bishwakarma now sought to limit the joint neurological expert report to the causation issue or alternatively to have the other parts of the joint report expunged.  PCSS and Dragages opposed.  At the hearing, Ms Leung for Bishwakarma eventually decided not to press on with the application. I accordingly dismissed the summons with costs to the defendants in any event to be taxed, if not agreed.

22.  I would have dismissed the summons in any event.  I should explain why, as this would be relevant to the evaluation of the medical expert opinion.

23.  There is no dispute that the court has the power to give direction in respect of expert evidence, albeit already adduced with previous leave of the court.  In the present case, the joint neurological expert report was adduced expressly subject to direction of the trial judge.

24.  It is not a rule that medical expert evidence beyond the scope of its instruction to the experts must face mandatory exclusion.  All depends on the circumstances of each case, including the relevance of the evidence, the assistance that such evidence will render to the court in respect of the issues in dispute and any prejudice to any party if such evidence is admitted.  The discretion of the court will be exercised accordingly.

25.  In the present case, Bishwakarma alleges injury to the infra-orbital nerve as a complication of his tripod fracture.  This allegedly caused him persistent pain and numbness on his left face.  Those were the persistent symptoms that would allegedly compromise his work efficiency as a construction worker.  He based such allegation on the opinion of Dr Law.  At one stage, PCSS and Dragages indeed queried whether Dr Law, as an orthopaedic expert, was in a position to give an opinion on the neurological impact of the fracture injury.  This was one of the reasons why Dr Law produced his supplemental report dated 15 January 2016.

26.  Dr Law claimed expertise on the relevant neurology both on the basis that his specialty in orthopaedic and traumatology involves management of trauma, which would require knowledge of injury in all body parts including the face and nerves.  He considered that concomitant injury to the infra-orbital nerve is very common in tripod fracture, with reference to the published works he cited.  Dr Law saw no difference in how Dr Cheng approached the issue.

27.  However, as mentioned, Dr Cheng only stated in the joint report that the involvement of the infra-orbital nerve was a possible complication of tripod fracture, and in the present case this would at the very highest be based on the subject complaints of Bishwakarma.  Whilst Dr Cheng also continued to express his opinion on the neurological impact on the working capacity of Bishwakarma, he made clear that he did so, merely assuming that the infra-orbital nerve was in fact involved.

28.  It is obvious that Dr Law and Dr Cheng differed materially in respect of whether the infra-orbital nerve was injured and, if yes, its precise impact on Bishwakarma.  I would be skeptical about being asked to rely exclusively on the orthopaedic experts in respect of these issues, especially when they differed the way they did.

29.  In the circumstances, neurological expert evidence for the purpose of resolving the uncertainty of and difference between the orthopaedic experts would have been relevant, even in the absence of the causation issue mentioned above that originally triggered the need for such expert evidence.  Such neurological expert opinion is in fact available to assist the court now.

30.  Is any party prejudiced by admitting the neurological expert evidence in respect of the neurological impact of his injury?  In the circumstances of this case, I do not think so.  Let alone whether or not the point taken on behalf of Bishwakarma now was before the master when he ordered that the joint neurological report, in its entirety subject to the direction of the trial judge, should be adduced into evidence back in December 2016, the fact was that both sides’ neurological experts had the same opportunity of considering the issue after joint medical examination of Biswakarma as well as the study of the medical records and the orthopaedic expert reports.  Indeed, the neurological experts came up with an agreed opinion after that.  It would be artificial for Bishwakarma now to ask the court to accept the joint neurological expert opinion on the causation issue but to exclude the rest of the report, when it can hardly be suggested that the rest of the report is somehow less reliable[2] or that he would be unfairly prejudiced.

31.  The neurological experts shared the following opinion:

(1)  The symptoms of Bishwakarma were consistent with an incomplete injury to the infra-orbital nerve due to fracture orbital floor.  This would amount to 2% impairment of the whole person and, given the lapse of time, should be regarded as permanent.

(2)  The paresthesia, dysesthesia and diminished sensations in the upper lid and eyebrow were anatomically inconsistent with an injury to the infra-orbital nerve or any other nerve possibly afflicted in the type of fracture as revealed by the CT scan.  This phenomenon was probably due to a subconscious exaggeration of the impaired sensation over the adjacent areas.  No additional impairment rating on this account would be justified.  The frontal headache did not appear to be significant or disabling to any extent and would not attract a separate impairment assessment either.

(3)  The impairment from an incomplete injury to the pure sensory infra-orbital nerve would not cause any risk, inconvenience or restraint in any occupation.  Hence no reduction in working or earning capacity.  Bishwakarma was not medically incapacitated from resuming his pre-accident job.

(4)  The fracture would have healed well and the sensory disturbances settled in months.  6 months of sick leave was recommended.

(5)  No further treatment was recommended.  The partial injury to a pure sensory nerve in the face was a minor problem, and no further assessment by other specialists was recommended.

Pain, suffering and loss of amenities (“PSLA”)

32.  This is agreed at HK$230,000.

Pre-trial loss of earnings

33.  Immediately prior to the accident, Bishwakarma earned a daily wage of HK$750.  Overtime and overnight allowance of HK$82 per hour and HK$150 per hour respectively were payable.  For assignment to work offshore, Bishwakarma was entitled to an extra HK$150 per shift of work.  For the 16 days of work immediately prior to the accident, Bishwakarma earned a total sum of HK$16,982 from PCSS.  In court, he confirmed that he had indeed been sent to work offshore and overnight during the 16 days.  The wage record shows he had overtime pay for 1 hour and HK$4,500 allowance for overnight and offshore work during the 16 days.  It is also common ground that Bishwakarma was and would have been required to work for 26 days a month.

34.  Mr Cao for the defendants argued that there was no guarantee in respect of the work assignment and thus Bishwakarma’s entitlement to the allowances, had he not met the accident.  Put this way, his argument cannot be wrong in principle.  However, the court has to do the best it could and, in doing so, take a realistic view of the matter.  In the circumstances of this case, the best and fair way to factor in such uncertainty would be to assess Bishwakarma’s pre-accident income by reference to his average daily income over the 16 days before the accident.  On this basis, but for the accident, Bishwakarma could expect his monthly income, on a similar pattern as the 16 days, to have been HK$(16,982 ÷ 16 × 26) = say HK$27,600.  Indeed he projected this figure in his witness statement.

35.  However, the above figure exceeds what was pleaded in the revised statement of damages, whereby he claimed to have been able to earn HK$27,300 per month but for the accident.  In the absence of amendment, he must abide by his pleaded case.  Mr Chan did not say otherwise in his closing.

36.  As mentioned, Bishwakarma has been given sick leave for a total of 607 days (20 months) since the accident until late July 2015.  Amongst the sick leave certificates, the one dated 17 July 2014 for a period of 204 days was subject to scrutiny during the trial, because of the duration of sick leave given and the record of his condition as “surgical problem”, when Bishwakarma has received not surgical operation as such as a result of the accident.  In my view, this is probably red herring.

37.  First, Bishwakarma was at one stage referred to the eye surgeon of PMH for further management upon his complaint about persistent pain.  Against this background, I see not much should arise out of how a single treating doctor might choose to categorise the patient’s condition in the sick leave certificate during follow-up.  Second, Bishwakarma accepted in court that the duration of sick leave was explained by the waiting time before the following follow-up appointment.

38.  However, this is not to say that the reasonableness of the sick leave obtained by Bishwakarma is free from scrutiny[3]. In this respect, Dr Law’s opinion stands in substantial contrast with that of Dr Cheng and the neurological experts.  In court, Bishwakarma agreed that it was when the PMH stopped giving him further sick leave after late April 2015 that he changed to attend YLGOPC for addressing his alleged persistent symptoms.

39.  Mr Cao also drew my attention to the fact that Bishwakarma travelled to Nepal for cataract extraction with intra-ocular–lens implant in late January 2014, which was two months after the accident.  He questioned how seriously Bishwakarma was suffering at the time when he managed to undertake such a trip.  Miss Leung for Bishwakarma submitted that not much weight should be attached to that observation, in the absence of cross examination in that particular respect during the trial.  In my view, the evidence, even without reference to such episode, suffices for my conclusion in respect of the reasonableness of the sick leave.

40.  Seeing Bishwakarma give evidence, and considering his evidence as well as the medical evidence, I find that the sick leave obtained by Bishwakarma went far beyond what would have been reasonable in his circumstances.  I do not accept as a matter of fact that the condition of Bishwakarma was such that sick leave in excess of 6 months would be necessary.  Giving Bishwakarma some benefit of doubt, I find for the present purpose that sick leave for a period of 8 months would be generous yet reasonable.

41.  In line with the above, I also do not accept as a matter of fact that Bishwakarma has become medically incapacitated, be it due to his tripod fracture or its neurological impact, to resume his pre-accident job after the expiry of his sick leave.  It follows that his pre-trial loss of earnings (MPF benefits included) was as follows:

HK$27,300 × 1.05 × 8 months = HK$229,320.

Loss of earning capacity

42.  Since August 2015, Bishwakarma has been working as a security guard until now.  There is no claim for loss of future earnings.  This must mean that Bishwakarma accepts that he could have been able to resume his pre-accident job after the expiry of the sick leave even for the duration as he claims. However, he claims for loss of earning capacity.

43.  Bishwakarma asserts disadvantage due to his alleged disabilities in the labour market, and claims a lump sum award equivalent to 12 months of earnings from the pre-accident job.  Evidence to prove the risk of not being able to retain his job or to seek another job offering him a similar income level in the future due to his condition would be mandatory[4].

44.  I prefer the opinion of Dr Cheng and the neurological experts to that of Dr Law in this respect.  Accordingly, I doubt the basis for this head of claim.  This is the kind of case where the evidence really leaves no room to consider allowing any extent of this head of claim.

Other special damages

45.  Medical and travelling expenses in the total sum of HK$4,495 was agreed.

46.  Bishwakarma claims future medical expenses on the basis that he would require medical treatment for his alleged persistent pain in the face.  In court, Bishwakarma’s stance was he still had pain and there might still be some injury or disease and therefore the possible need for treatment in the future.  He claims for future medical expenses for the next 10 years in the sum of HK$20,000.  This is based on the opinion of Dr Law, which I do not prefer.  The opinion of Dr Cheng and the neurological experts in common points to no such necessity.

47.  On the evidence, I am not convinced that Bishwakarma will have any long lasting symptoms perhaps except for headache or pain on the left side of his face occasionally.  Whilst I doubt whether Bishwakarma’s occasional need for oral painkillers for the alleged headache in the future would differ materially from that of any ordinary people, I am prepared to allow a nominal sum of HK$1,000.

Summary

48.  The award will be as follows:

	PSLA	HK$ 230,000
	Pre-trial loss of earnings(MPF included)	HK$ 229,320
	Medical expenses	HK$ 2,495
	Travelling expenses	HK$ 2,000
	Future medical expenses	HK$ 1,000
	Total:	HK$ 464,815

49.  As Bishwakarma has to give credit to the employees’ compensation already received in the sum of HK$483,875.50, no award will be made.

Disposition

50.  In view of the above outcome, the claim should be dismissed with costs to the defendants, subject to the following qualifications:

(1)  To reflect the responsibility of the defendants for their stance and the resultant costs incurred in respect of liability, which was conceded only on the first day of the trial, the defendants’ costs recoverable from the Bishwakarma shall be deducted by 20%.

(2)  Costs shall be taxed, if not agreed; Bishwakarma’s own costs up to the discharge of the legal aid certificate shall be taxed in accordance with legal aid regulations.

(3)  The costs order is nisi, and shall become absolute in the absence of application within 14 days to vary.

51.  I thank counsel for their assistance.

	(Simon Leung)
	Deputy High Court Judge

Mr Vod K S Chan and Miss Shannon Leung, instructed by MCA Lai Solicitors LLP, for the plaintiff

Mr Yuan Shan Cao, instructed by Norton Rose Fulbright Hong Kong, for the defendant