ALAM ZAFAR v. CHEUK FUNG ENGINEERING CO LTD

DCPI 421/2018

[2023] HKDC 617

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 421 OF 2018

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BETWEEN

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DECISION

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INTRODUCTION

1.  This is an application by way of summons taken out by the defendant on 30 November 2022 (“the Summons”) to vary the costs order nisi made by me under §104 of the judgment handed down on 17 November 2022 in this case (“the Judgment”).

2.  The defendant, who is the losing party in this case, applies for the costs order nisi to be varied to the effect that:-

(i) costs of this action be in favour of the plaintiff, such costs to be taxed if not agreed on the Small Claims Tribunal scale; or

(ii) alternatively, costs of this action be in favour of the plaintiff, such costs to be taxed if not agreed on the District Court scale, with certificate for counsel, save and except the costs occasioned by the plaintiff after the filing of the joint expert report on 28 December 2018 to be taxed if not agreed on the Small Claims Tribunal scale.

3.  The plaintiff opposes to the defendant’s application.

4.  By an order dated 21 December 2022, I directed the Summons to be dealt with by way of paper disposal. I gave directions to the parties to lodge their written submissions under the said order.

5.  The defendant’s skeleton submissions prepared by Mr Lawrence Cheung (together with Mr Henry Chung) of counsel[1], was lodged on 3 January 2023 (“D’s Submissions”) while the plaintiff’s skeleton submissions prepared by the plaintiff’s assigned legal aid solicitors was lodged on 17 January 2023 (“P’s Submissions”). The defendant lodged their reply submissions on 20 January 2023 (“D’s Reply Submissions”).

Relevant Factual Background

6.  In the present personal injuries claim, the plaintiff claimed damages against the defendant for injuries sustained by him in the course of his employment with the defendant. The defendant disputed both the issues of liability and quantum at the trial.

7.  The plaintiff did not lodge any employees’ compensation claim arising out of the accident. The writ of summons of these proceedings was first issued on 23 February 2018 in the District Court.

8.  After trial, I found the defendant 100% liable for the accident and awarded a sum of HK$63,340 plus interest and costs on the District Court Scale with certificate for counsel, in favour of the plaintiff.

DISCUSSION

Issues before the court

9.  The following are the issues which need to be resolved by the court under the Summons:-

(a) whether it was reasonable for the plaintiff to commence his claim in the District Court at the time of issuing the proceedings;

(b) if yes, whether there was any reasonable prospect(s) of recovering more than the jurisdictional limit of the District Court after the Joint Medical Report (“JMR”) was obtained from the expert; and

(c) if, at the end of trial, the awarded sum is less than the jurisdictional limit of the District Court, what scale of costs the plaintiff is entitled to.

Relevant legal principles

10.  Mr Cheung for the defendant cited the following principles and authorities in support of the defendant’s application.

11.  The current jurisdiction of the Small Claims Tribunal includes “any monetary claim founded in contract, quasi-contract or tort where the amount claimed is not more than $75,000”: see §1 of the Schedule to the Small Claims Tribunal Ordinance (Cap. 338). It is also known that the Small Claims Tribunal has the jurisdiction to and does adjudicate personal injury claims: see Cheung Yu Tin Alvin v Ho Hon Ka [2006] 2 HKLRD 674 at §47 and Ho Wai Leung v Wan Chi Kuen [2001] 2 HKLRD 284 at 287E-G.

12.  Moreover, §§50 and 97 of Practice Direction 18.1 provides that litigants and their legal advisers should give due consideration as to where the proper venue for their action should lie and in doing so undergo a “realistic assessment of the quantum of damages” and “[t]he costs implication should be explained to the Plaintiff”. Once that exercise has been done and “it becomes clear that a case is within the jurisdiction of a Court other than the Court where the action has been commenced, an application for transfer should be made as soon as possible”.

13.  It is trite that it is within the jurisdiction of the District Court to order costs on the basis of or similar to the scale as applied in the Small Claims Tribunal: see the Court of Appeal’s comments in M Beraha & Co Ltd v Ng Wai Lun [2004] 3 HKC 535 at §§32-33.

14.  In determining the scale on which the costs order shall be taxed, the applicable test is “whether at the time of the commencement of action, it is reasonable for the plaintiffs to have commenced the claims in this court instead of in the Small Claims Tribunal”. In doing so, the court will look at whether the plaintiffs have reasonable prospects of success in bringing the claims before this court when the plaintiffs commenced the action, relying on the evidence available to them at that time: see Wai Chun Incorporation Ltd & Anor v羅民基, unreported, DCCJ 1980/2012, (Deputy District Judge Elaine Liu (as she then was); 26 November 2015) at §35.

15.  Furthermore, Suffiad J explicated the exercise courts should undergo when applying the abovementioned test in Lam Wong Sum Monica v Tam Ka Kit Joe, unreported, HCPI 933/2005, (Suffiad J; 26 June 2006) at §§13 to 15:-

“13. When a solicitor is presented with a prospective claim by a client as a plaintiff in a personal injuries case, if that prospective claim works out to be a border line one, that is one which may on one view exceeds, even though marginally, the District Court jurisdiction but on another view may be assessed at just below the $1 million mark, that solicitor would normally be put in a dilemma as to where to start the claim if at the end of the day, it is the exact amount which is either assessed or settled that matters.

14. It is for this very reason that the court has seen fit to allow for High Court’s scale of costs if such a claim is brought in the High Court, but as it turned out, settled for an amount below the $1 million mark. This is reflected in the very words used being the criteria for the determination of the scale of costs to apply, namely, that the plaintiff had a reasonable prospect of recovering an amount over the District Court jurisdictional limit.

15. It is only where the court having viewed the overall circumstances of the case and obviously the facts of that case and can then say, given all the facts of the plaintiff’s case when pitched at its highest, the plaintiff could not have had any reasonable prospect of claiming beyond $1 million through liability, then in those circumstances would the court order District Court’s scale to apply.” [emphasis added]

16.  Mr Cheung relies on the following cases which indicate how the courts have applied the abovementioned test:-

(i) In Cheung Yu Tin Alvin v Ho Hon Ka [2006] 2 HKLRD 674 (Woo VP, Cheung JA and Suffiad J: 17 March 2006), the plaintiff obtained judgment for HK$27,260 (at the time the monetary limit of the Small Claims Tribunal was HK$50,000), the Court of Appeal allowed the defendant’s appeal and ordered the plaintiff’s costs to be taxed on a scale similar to that of the Small Claims Tribunal and reasoned at §§30-33 and 48-49 that:-

“30. …the plaintiff did not act reasonably to commence this action in the District Court. The medical reports, including that by Dr Lee, indicated that the injuries suffered by the plaintiff were minor. The plaintiff did not attend hospital straightaway after the accident; he returned to his office to work. He suffered no loss of earnings and there was no prospect of any loss of future earnings. He did not require any further treatment and was advised to do exercise to help recover from his residual back pain, but he had not acted on the advice even at the time of the trial on 6 June 2005. The recovery time was described by Dr Lee as between 2 weeks and 2 months. A reasonable assessment of the pain and suffering and loss of amenities would not be anything near the ceiling of the monetary jurisdiction of the Small Claims Tribunal. All these were accepted by the judge and evidenced by his award of $27,260 in favour of the plaintiff.

…

33. In my judgment, the proper scale of costs of the action including the hearing for assessing the quantum of damages should be that similar to that of the Tribunal, which will fairly reflect the amount of damages awarded and have the desirable effect of discouraging litigants from unreasonably selecting the District Court as the forum for a claim of damages that are well under the Tribunal’s jurisdictional limit.

…

48. The only relevant consideration is whether at the commencement of the action, in view of the nature of the injury of the plaintiff, it was reasonable to say that he would recover more than $50,000. I recognize fully that assessment of damages is not an easy task but at the same time any lawyer who practises in this area must be able to tell whether the plaintiff has a serious injury or not and whether his injury has any impact on his earning. In this case from the available evidence one can see that the plaintiff’s injury was extremely minor in nature and could not possibly have affected his earning. He could not possibly have recovered more than $50,000. The sum of $27,260 assessed by the judge was the best indication of the value of the claim. The lawyer was duty bound to advise the plaintiff of the costs implications of suing in the District Court.

49. In the circumstances, it was unreasonable for the plaintiff to persist in pursuing the matter in the District Court, particularly, when the defendant had drawn his attention to the fact that the matter should be dealt with in the Small Claims Tribunal. The only proper way of exercising the discretion was to award costs to be assessed in a manner similar to the costs allowed in the Small Claims Tribunal.” [emphasis added]

(ii) In Lee Tsz Kin Ken v Climax Paper Converters Limited, unreported, HCPI 504/2003, (Tang J (as then he was); 23 July 2004), the court ordered the plaintiff’s costs on the District Court’s scale and reasoned at §4 as follows:-

“In this case, I have found that the plaintiff has exaggerated his disabilities. This is not a case where I simply preferred the evidence of one medical expert to another. A reasonable person in the position of the plaintiff would probably not have exaggerated his disabilities and, on the basis of his actual disabilities, he would probably think that the prospect of recovering more than $600,000 quite poor. However, I am prepared to accept that such a person might think that he has a reasonable prospect of recovering more than $50,000 (the jurisdiction of the Small Claims Tribunal).” [emphasis added]

(iii) In Yim Wai Ling & Anor v Yuen Chik Wah & Anor, unreported, DCCJ 663/2013, (HHJ A Kot; 14 February 2017), after awarding a sum of HK$32,500 in damages to the plaintiff for nuisance, the court granted costs to the plaintiff to be assessed on the Small Claims Tribunal’s scale and reasoned at §§36-37:-

“36. Having said so, this court cannot ignore the fact that the damages awarded fall within the jurisdiction of the SCT. As can be seen from the heads of claim and damages awarded at §1 above, the damages awarded is below $50,000 which is within the jurisdiction of the SCT. It is also not in dispute that the claim for damages in water leakage case is well within the jurisdiction of the SCT. The claim for interest is neither here nor there since the SCT also have the jurisdiction to award interest on an award even if with the interest added, the total award is beyond its jurisdiction limit.

37. Under such circumstances, I failed to see why the plaintiffs should not have commenced these proceedings in the SCT. Hence, the plaintiffs should only be entitled to have its costs of these proceedings to be assessed at a scale as if the claim was being brought in the SCT.”

17.  The plaintiff’s solicitors do not dispute the above general principles cited by Mr Cheung.

18.  However, on top of the cases relied on by the defendant, the plaintiff referred the court to Lee Yau Wai v Yeung Kam Wing, unreported, HCPI 281/2009, (Master Marlene Ng (as she then was); 29 March 2011) where the learned judge summarized the legal principles by referring to Lai Ki v B+BConstruction Company Limited & others [2003] 3 HKLRD 192 as follows:-

“9. In Lai Ki v B+BConstruction Company Limited & others [2003] 3 HKLRD 192, 200, Seagroatt J confirmed and adopted the test as stated by Glyn-Jones J in Hopkins v Rees & Kirby Ltd [1959] 1 WLR 740, 742 as follows:

‘Putting myself as far as I can, in the position of the plaintiff at the time when he issued that writ, am I satisfied that it was then obvious that this was a county court action, or was it an action which, when tried by one judge rather than another, might have resulted in an award exceeding [the jurisdiction limit] excluding any reduction for contributory negligence?’

Seagroatt J further observed at p.197 that “[the] acid test therefore has been, ignoring all questions of contributory negligence, has the plaintiff a reasonable prospect of recovering a sum of money in excess of the [District] Court jurisdiction?” (see also Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Limited HCPI 77/2007, Suffiad J (unreported, 9 September 2008) at para.14).”

19.  Further, Master Marlene Ng reiterated the above principles in Gurung Dhar Bahadur v Po On Construction Engineering Limited & Anors, unreported, HCPI 303/2010, (Master Marlene Ng (as she then was); 4 January 2012).

(i) Whether it was reasonable for the plaintiff to commence the action in the District Court

20.  The plaintiff invites the court to take into account of the following in this case:-

(a) The writ of summons was issued on 23 February 2018. At that time, the lower jurisdictional limit at the District Court was at HK$50,001; and

(b) The lower jurisdictional limit of the District Court was adjusted upward from HK$50,001 to HK$75,001 on 3 December 2018. Such jurisdictional adjustment was launched after the plaintiff had instituted his proceedings in the District Court; and after the joint medical examination was conducted on 11 October 2018: (See Commencement Notices for Jurisdictional Rise of District Court and Small Claims Tribunal and Small Claims Tribunal (Fees) (Amendment) Rules 2018 dated 6 July 2018).

21.  Thus, the plaintiff’s solicitors submit that it is not unreasonable for the plaintiff to commence his claim in the District Court at the time of the commencement of action.

22.  I agree with the plaintiff that given the lower jurisdictional limit has not been adjusted upward on the date of issuing the writ, it was not unreasonable for them to issue the proceedings in the District Court. I am further of the view that given the injuries sustained by the plaintiff in the alleged accident and his alleged loss of income, it was perfectly reasonable for the plaintiff’s assigned solicitors to issue the proceedings in the District Court.

(ii) Was there any reasonable prospect of recovering more than the jurisdictional limit in this case after the JMR was obtained?

23.  The next question is whether there is/are reasonable prospect(s) of recovering more than the jurisdictional limit of the District Court after the JMR was obtained.

24.  It is trite that the Court has a wide discretion in awarding costs, under section 53(1) of the District Court Ordinance, Cap 336:-

“The costs of and incidental to all proceedings in the Court… are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid.”

25.  The usual starting point is costs to follow the event, meaning that the losing party pays the costs of the winning party (See O 62 r 3(2) of the Rules of District Court (“the RDC”), Cap 336H).

26.  O 62 r 5(1)(e) of the RDC provides that the conduct of the parties should be taken into account by the court in exercising this discretion. They include:

“(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

(see O 62 r 5(2))

27.  In Wai Chun Incorporation Limited & Anor v羅民基, supra, Deputy District Judge Elaine Liu (as she then was) set out the approach the court usually adopts, when determining the scale on which the costs order shall be taxed:-

“8. For the purpose of assessing whether a party is reasonable to raise issues which were unsuccessful, the court would allow for a fairly generous margin of error. It is not a policy to discourage a party from placing before the court perfectly reasonable and properly founded submissions, which eventually may not find favour with the court. (Moulin Global Eyecare Holdings Limited (in Liquidation) v Olivia Lee Sin Mei, supra).”

28.  At §§33 – 36, the learned judge further stated as follows:-

“33. This court has a wide discretion in making a costs order, and has the power to award costs on a basis different from that for taxed costs on the District Court scale. (M Beraha & Co Ltd v Ng Wai Lun [2004] 3 HKC 535; Fong Po Shan, supra)

34. It is the defendant’s case that since the amount awarded is within the jurisdiction of the Small Claims Tribunal (that is less than $50,000), the costs awarded shall be taxed on the scale for the Small Claims Tribunal.

35. In determining the scale on which the costs order shall be taxed, the court shall not only look at the outcome of the trial. The proper approach is to consider whether at the time of the commencement of action, it is reasonable for the plaintiffs to have commenced the claims in this court (i.e. District Court) instead of in the Small Claims Tribunal. The court will look at whether the plaintiffs have reasonable prospects of success in bringing the claims before this court when the plaintiffs commenced the action, relying on the evidence available to them at that time. (Lee Tsz Kin Ken v Climax Paper Converters Limited, unreported, HCPI 504 of 2003, 23 July 2004; Wong Wai Tak Belinda v Smart Team International Investment Limited, unreported, DCCJ 1023 of 2009, 19 July 2011).

36. Issuance of a claim will not be taken as unreasonable simply because it turned out to be unsuccessful or simply because it is ambitious. (Ho Wai Leung v Wan Chi Kuen [2001] 2 HKLRD 284) The factors that the court will consider include whether the claim is entirely devoid of merit to have brought before this court, and whether the nature of the action is one that is more appropriately brought before a tribunal which allows legal representation. (Ho Wai Leung, supra; Wong Wai Tak Belinda, supra)” [emphasis added]

29.  In Lui King Tong v Hospital Authority[2019] HKDC 376 at §§11-12, Deputy District Judge Elaine Liu (as she then was) further summarized the considerations the court may take into account when assessing the scale of costs in personal injuries cases which was recited by this court in Siu Lai Yee v Wong King Hay[2021] HKDC 1304:-

“11. There is no dispute that the court has a wide discretion in the award of costs. The discretion shall be exercised judicially. The court has the power to award costs on a basis different from the basis for the taxed costs on the District Court scale. If a reasonable assessment shows that the recoverable damages would not be in a figure near the ceiling of the monetary jurisdiction of the Small Claims Tribunal, it would be unreasonable for the plaintiff to commence the action in the District Court and unjustifiably put the burden of footing the legal costs bill on to the defendant. In such case, the court could order that the plaintiff’s costs be assessed on a scale similar to that for the Small Claims Tribunal cases. (Cheung Yu Tin v Ho Hon Ka [2006] 2 HKLRD 674)

12. When determining the reasonableness of commencing a claim in this court, the court should consider the evidence available to the plaintiff at the commencement of the action. A claim will not be taken as unreasonable simply because it turned out to be unsuccessful or because it is ambitious. (Lee Tsz Kin Ken v Climax Paper Converters Limited, unreported, HCPI 504/2003, 23 July 2004; Ho Wai Leung v Wan Chi Kuen [2001] 2 HKLRD 284; Wai Chun Incorporation Limited v Profit Choice (HK) Limited and other, unreported, DCCJ 1980/2012, 26 November 2015).”

30.  I agree with the plaintiff’s submission that the court must not just look at the ultimate awarded sum to determine the scale of costs.

31.  Unfortunately, the amount of damages awarded is slightly less than the lower jurisdictional limit of the District Court in this case. However, it does not mean that it was unreasonable for the plaintiff to continue with the action in the District Court after obtaining the JMR. While the final award of damages falls within the jurisdiction of the Small Claims Tribunal, with interest added, up to date of the Judgment, the awarded claim would be at a sum of around HK$74,240.61, which only slightly falls short of the jurisdictional limit of the District Court.

32.  By referring to the above principles, I agree that the plaintiff should not be deprived of his costs to be taxed on the District Court Scale just because his pleaded case on quantum (in particular, the heads of PSLA and loss of earning capacity) has failed. I agree that the court shall and will allow a “fairly generous margin of error and not just look at the outcome of the figure of the awarded damages”: (See Wai Chun Incorporation Limited & Anor v羅民基, supra, §8).

33.  In this regard, I echo with what Mr McWalters J (as then he was) said in Ho Ka Yin v Express Security Ltd, unreported, HCPI 344/2008, (McWalters J (as he then was); 20 September 2011) at §9:-

“…With the benefit of hindsight a different assessment might have been made. But issue-based costs orders and taxation at a lower scale are not to be used to discourage litigants from pursuing claims that have a reasonable prospect of success. That the claims did not succeed does not mean that they never had such prospects or were without merit.” [emphasis added]

34.  Furthermore, it has been shown that the plaintiff had made reasonable efforts and diligence in negotiating settlement with the defendant. In the present case, the plaintiff had made various Calderbank offers/sanctioned offers since December 2019. However, there was no response from the defendant until 8 working days before the actual trial itself. Even then, the offer was merely an offer to dispose of the whole claim of the plaintiff but not an offer to settle the claim of the plaintiff. It created no real opportunity for settlement. In my view, the defendant could have made steps to protect itself on costs by making appropriate sanctioned payment in this case if it wished to. Yet it had chosen to do nothing, including not responding to any of the plaintiff’s above offers to settle the matter. They cannot now try to take advantage of a marginally lower than the jurisdictional limit award after trial.

(iii) What is the scale of costs which the plaintiff shall be entitled to?

35.  The final question is what is the proper scale of costs to be awarded in the present case.

36.  On this issue, I agree with the following submissions made by the plaintiff’s solicitors:-

(a) All along the issue of liability in the present claim was in dispute. Notwithstanding the Small Claims Tribunal enjoys the jurisdiction to adjudicate claim founded in tort (see §1 of the Schedule to the Small Claims Tribunal Ordinance (Cap 338)), I agree that the present case is more appropriate to be tried before a tribunal which allows legal representatives: (Wai Chun Incorporation Limited & Anor v 羅民基, supra).

(b) The defendant took issues with almost everything raised by the plaintiff regarding the circumstances of the accident and the safety measures taken by the defendant at the time of or before the accident. It also raised the issue of contributory negligence. Hence, the main crux of the issue of liability goes to the credibility of each of the parties’ witnesses. Thus, it would be more appropriate for the case to be tried in the District Court for the parties to fully argue those matters at the trial by lawyers.

(c) During the trial, both parties’ witnesses, especially the plaintiff and Mr Tam Man Lung (the foreman of the defendant), were extensively cross-examined. Their evidence lasted for almost 2 full days. Significant evidence concerning credibility of the witnesses was elicited through the cross-examination by the parties’ legal representatives.

37.  In light of the above, I agree that the nature of the plaintiff’s claim is more appropriate to be tried in the District Court and the scale of costs of the District Court should therefore be allowed.

CONCLUSION

38.  For the above reasons, I find the plaintiff did not act unreasonably to institute action in the District Court. Having commenced the action in the District Court, it was not unreasonable for him to continue with the action in the District Court even after obtaining the JMR. Hence, I will reject the defendant’s application to vary the costs order nisi stated in the Judgment. I will order the costs order nisi to become absolute.

39.  Costs should follow the event. The defendant who has lost the present application shall pay the costs of the Summons to the plaintiff, such costs to be taxed if not agreed. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Messrs LWC & Co, Solicitors, for the plaintiff, assigned by the Director of the Legal Aid

Mr Lawrence Cheung & Mr Henry Chung, instructed by Messrs Francis Kong & Co, for the defendant

DCPI 421/2018

[2022] HKDC 1346

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 421 OF 2018

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  This is a personal injury (“PI”) claim brought by the plaintiff arising from an accident which occurred in the course of his employment.

B. BACKGROUND

B.1. The Accident

2.  The plaintiff was injured on 15 April 2015 while he was working as a general labourer for the defendant at a hillslope near Nam Fung Road Rest Garden at Nam Fung Road, Hong Kong (“the Site”).

3.  The fact that the plaintiff was under the employment of the defendant is not in dispute.

4.  The plaintiff’s duties at the Site include counting trees, making holes in the tree trunks and fixing detectors into designated trees on a hillslope at the Site under the instructions of Mr Tam, the supervisor/ immediate supervisor of the plaintiff who paired up with the plaintiff (“the Foreman”).

5.  While the plaintiff was doing his task, he slipped and rolled down the hillslope for about 10 feet (approximately 3 metres): (see Exhibit [P-1]). As a result, the Plaintiff sustained injuries to his left shoulder, left elbow and left wrist (“the Accident”).

B.2. The plaintiff’s case

6.  Mr Patrick Szeto for the plaintiff in his opening submissions refers to the amended statement of claim which states that the Accident happened because “(i) the [h]illslope was wet and muddy, (ii) the [p]laintiff was not provided with work and/or safety apparatus, (iii) there were no risks assessment and warning of work hazards and (iv) there was no work/safety instructions given”.

7.  Before the plaintiff perform his duties, he was provided with a plastic hammer, a smartphone containing a mobile app called “Treeapp”, as well as detectors for fixing into the designated trees and to be scanned by the smartphone. On some occasions when the plaintiff needed to make holes in the trees, a drill was provided as well.

8.  According to Mr Szeto, the defendant knew or ought to have known that the plaintiff was not provided with or required to buy a pair of anti-slippery safety shoes; a walking/hiking stick; protective gloves; and equipment or tools to carry the hammer and detectors.

9.  In his witness statement dated 9 October 2018 (“P’s WS”) and his supplemental witness statement dated 29 October 2019 (“P’s Supp WS”), the contents of which have been adopted as part of his evidence-in-chief, the plaintiff stated that it had rained on the day before the Accident and the surface of the hillslope was wet and muddy. Besides, the defendant had neither inspected the Site nor guided the plaintiff in any safety instructions about the Site prior to the Accident.

10.  It is also the plaintiff’s contention that from around 9:30 am to 10:00 am, after the plaintiff had climbed up to the hillslope and moved forward after counting 2 to 3 trees, the plaintiff lost his balance and rolled down the hillslope which has a gradient of 20 to 30 degrees: (see Exhibit [AZ – 2]).

11.  At the time, according to the plaintiff at least, the Foreman was standing at the bottom of the hillslope which was 20 to 25 feet away from where the plaintiff fell.

12.  After the Accident, the plaintiff yelled out in Cantonese that he felt very painful and the Foreman then came to console the plaintiff. He later took the plaintiff to the Queen Mary Hospital (“QMH”) for treatment.

B.3. The defendant’s case

13.  The defendant agrees that the plaintiff was employed as a general labourer to work at the Site on the day of the Accident.

14.  However, the defendant disagrees that there were no safety measures as claimed by the plaintiff. Instead, by the defendant’s “reimbursement policy” which subsidised employees to buy safety footwear; the induction briefing given to the plaintiff when he started his work; and the Foreman’s supervision to ensure the plaintiff wore suitable shoes, the defendant says that it had taken all necessary safety measures at all material time.

15.  Mr Simon So for the defendant also points out in his closing submissions that the Site was not controlled or owned by the defendant, ruling out the possibility of the defendant being the occupier.

16.  The defendant further claims that, from the records of the Hong Kong Observatory, there had not been any rainfall for 3 consecutive days in the Site’s region immediately before the occurrence of the Accident. Further, there was no rainfall recorded on the day of the Accident. Therefore, Mr So contends that the hillslope was neither wet nor muddy.

17.  According to the defendant, at the material time of the Accident, the plaintiff was standing beside the Foreman and another subcontractor called Mr Ng (“Ng”) at the lower part of the hillslope, which is described as “very shallow and gentle” in both the opening and closing submissions of Mr So.

18.  It was also the defendant’s contention that the plaintiff, the Foreman and Ng were not working at the time of the Accident. It has been submitted that if the plaintiff had worked at that time, he would have been counting trees and assisting with registering detectors to the “Treeapp” as an ongoing survey project rather than fixing detectors into trees. Hence, the plaintiff’s original duties were neither one that was governed by the Arboricultural Occupational Safety and Health’s Guidelines (“the Guidelines”) nor tree works according to the understanding of the industry.

19.  As to how the Accident happened, the defendant claims that the plaintiff fell suddenly instead of having slipped. In order words, he had simply lost his balance and fell.

C. DISCUSSION

C.1. Liability

20.  Both liability and quantum are in dispute in the present case.

C.2 Factual issues to be determined

21.  Though Mr So in his closing submissions concedes that most of the plaintiff’s case is not disputable on facts, he seeks to establish that either there was no breach of duty of care on the part of the defendant or the plaintiff was contributory negligent for the Accident.

22.  On this issue, this court has to make findings on the following factual matters before deciding whether the defendant should be held to bear primary liability for the Accident. Then the court has to decide whether the plaintiff is contributorily negligent and, if so, the appropriate level of contributory negligence.

23.  Hence, in relation to the occurrence of the Accident, the court has to make factual findings on the following:-

(a) whether the ground was slippery at the material time of the Accident;

(b) where was the plaintiff standing at the time of the Accident;

(c) was the plaintiff holding any tools at the time of the Accident; and

(d) had the plaintiff started working at the time of the Accident? If so, what was the duty carried out by the plaintiff at the time?

24.  Further, for the safety measures taken at the time of or before the Accident, the court must make factual findings on the following:-

(a) whether the plaintiff knew or ought to know he had to wear/hold safe equipment; and

(b) whether the Foreman had made sure that the plaintiff wore/had any safety equipment before the Accident?

C.2.1 Observations on the credibility of the witnesses from both sides

25.  I have had the opportunity to listen to the evidence given by the plaintiff, the Foreman and Ng in court and observed their demeanour when they gave their evidence.

26.  For the occurrence of the Accident, Mr So for the defendant in his closing submissions disputes that the plaintiff was not credible on the following grounds:-

(a) the extremely brief description given by the plaintiff of how he fell could not help the court to ascertain how the Accident happened;

(b) he failed to explain whether he fell 10 feet from above to the ground or he rolled down 10 feet from the place he stood to the bottom of the hillslope. When he was cross-examined on this issue, all he could say was “OK”; and

(c) he asserted that the Site was raining heavily but the Hong Kong Observatory’s records do not show any rainfall at all.

27.  I do not accept Mr So’s contention that the plaintiff has only briefly described how the Accident happened in his evidence. In fact, in P’s WS, it has been provided that at the material time, “[the plaintiff] had just counted 2-3 trees. When I was moving forward, I slipped and lost my balance and eventually fell on ground”: [B/92] at §5.

28.  Further, in the witness box, the plaintiff drew the position of where he fell; he also clarified he may not have fallen for exactly 10 feet but “could be 2 to 3 feet”, more or less. In this regard, I am satisfied that the plaintiff has adequately assisted the court in knowing how the Accident occurred, given the fact that it was a very simple, straightforward and brief incident.

29.  Hence, I am convinced that the Accident actually took place in the manner as described by the plaintiff and I do not find him incredible in this regard.

30.  Mr So also nitpicked the minor point that some duties of the plaintiff were not provided in P’s WS, but rather, they were raised in P’s Supp WS. I accept matters like drilling of the tree trunk; putting the detector in the hole and hammering were not mentioned in the P’s WS because the plaintiff’s solicitors did not ask him in detail about the Accident at first. In fact, adding more details by way of a supplemental witness statement is a practice encouraged by the court so long as the additional details can assist the court in understanding how an accident took place and provided that they are prepared well before the trial and with plenty of notice given to the opposing party and proper application made to the court.

31.  On quantum, Mr So in his closing submissions also argues that the plaintiff was not credible based on the following:-

(a) the plaintiff was found to be able to take up substituted occupations during the paid sick-leave period from the defendant;

(b) he was absent from physiotherapy sessions at QMH which “helps [the plaintiff] a lot”. During cross-examination, the plaintiff responded that he was in Pakistan during the period when QMH could not contact him. Thus, Mr So in his closing submissions concluded that it was “inherently improbable given that he was able to attend some of those sessions on Monday/Wednesday/Friday”;

(c) he did not frankly disclose 2 sets of settled DCPI/DCEC actions and one action in which he had commenced against his employer; and

(d) 2 surveillance videos illustrate that the plaintiff recovered to a large extent in November 2015 which leads to the conclusion that he was not injured that seriously but he denied that he had much recovered.

32.  In my judgment, even if a witness/ litigant lies about one thing, it does not necessarily mean that he lies about another. As the credibility issues on quantum do not affect the plaintiff’s credibility on the part of establishing the defendant’s liability, I am convinced that liability attaches to the defendant, subject to the below factual findings on facts and credibility in relation to the issue on quantum, which would only affect the amount of damages recoverable by the plaintiff.

33.  On the other hand, although Ng was observed to be an honest and reliable witness, which is something not seriously disputed by the plaintiff’s counsel, I find the Foreman not being a credible witness at all. Some of the reasons are as follows:-

(a) he nitpicked on the point of whether detectors were in plural or singular form, but he was later attempting to say that he did not understand what “detectors” mean; and

(b) he mentioned he had informed the plaintiff of the notice about safety equipment, but I incline to believe the notice was produced after the Accident and before the trial took place (see below in C.3.5.).

34.  Needless to say, as this case involves fact findings, the court follows the often cited guidelines set out by DHCJ Eugene Fung in Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors [2014] HKCFI 650 (unrep, HCA 1734/2009, 8 April 2014) at §§77 to 82:-

[77] Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)…

[78] In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J (as he then was)).

[79] In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

[80] I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ), or from assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

[81] The practical approach to assessing credibility of witnesses in a case…may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining a truth.

[82] Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination…

35.  I remind myself that the above factors are far more important than the witnesses’ demeanour and appearance in the witness box.

C.3. Findings on different factual disputes about the Accident

36.  The factual issues would be discussed under the following sub-headings.

C.3.1. Was the ground slippery at the material time of the Accident?

37.  Mr So submits in both his opening and closing submissions that the hillslope was not wet, muddy or slippery at the time of the Accident. He heavily relied on the Hong Kong Observatory’s records.

38.  When the plaintiff was being cross-examined, he was asked why he thought that the Site had been raining heavily the day before. The plaintiff responded by saying that: “but I assumed that it would be raining there because where I was living [Reclamation Street in Mong Kok] was raining”.

39.  It is a matter of common sense that even though when one place is raining in Hong Kong, it does not mean another part of the territory is raining. This is something beyond dispute. However, Mr Szeto in his closing submissions stated that there had been a rainfall record of 37 mm at the Site 4 days before the Accident and therefore the ground of the Site could still be wet: [F-1/291].

40.  In my judgment, as the hillslope was covered by tall grass, fallen leaves, tree branches, soil and mud, it would absorb and retain any water from the rainfalls, as opposed to any concrete or hard surface which rain water could easily run off from the surface. I therefore agree with Mr Szeto that it would take longer for the ground to dry up than a concrete or dry surface. For those reasons, I accept the plaintiff’s claim that the hillslope was slippery when the Accident took place. I do not find him to be dishonest at all when he said this. In my view, the plaintiff’s allegation on this is consistent with the contemporaneous records in the form of the photos taken by the defendant on the day of the Accident.

C.3.2. Where was the plaintiff standing at the time of the Accident?

41.  Though Mr So for the defendant describes the hillslope as “very shallow and gentle”, from the photographs found on [F-1/253-255] and Exhibit [AZ – 2], I do not accept Mr So’s description at all. Based on the gradient of the hillslope observed from the documents, it is steeper than what the defendant tries to depict.

42.  However, in my opinion, it is not important whether the plaintiff was standing beside the Foreman and/or Ng. The only real issue is whether the plaintiff stood higher up or lower down on the hillslope.

43.  Since I have accepted that the plaintiff is credible concerning his description of the Accident, I will also accept the version that he was standing higher up on the hillslope than the position of the Foreman and Ng.

C.3.3. Was the plaintiff holding any tools at the time of the Accident?

44.  It is the plaintiff’s pleaded case that the plaintiff was given a plastic hammer, a smartphone and detectors at the time of the Accident.

45.  The Foreman accepted that no carrier (e.g. waist bags) had been given to the plaintiff: [B/141] at §6. I accept the plaintiff’s evidence that he had to carry the plastic hammer, smartphone and detectors by his hands in order to carry out his duties, making it difficult for him to keep his balance and prone to fall when walking/working on a slope.

C.3.4. Was the plaintiff carrying out any duty at the time of the Accident?

46.  I find that, as opposed to the defendant’s version that the plaintiff was not working, the plaintiff was actually performing his duties at the material time as supported by the following instances:-

(a) the Foreman, when giving evidence, unequivocally said “the plaintiff, myself and another employee had arrived at the Site on that day around 9:00 am to continue work on the Project”; and

(b) more importantly, if only surveying and risk assessment were carried out (as alleged by the defendant), it is unnecessary for the Foreman to bring the plaintiff as a general labourer at all the material time to the hillslope. The presence of the plaintiff suggests that he had to work at that time, instead of following the Foreman “to learn the surveyor’s skills as alleged by the defendant”.

C.3.5. Did the plaintiff have any knowledge about safetyequipment?

47.  As stipulated as part of the defendant’s company policy, the defendant has a duty to provide proper safety equipment, namely safety shoes, to its employees: [B/146]. The relevant part of the policy reads as follows:

“[employees] must wear appropriate safety equipment…according to safety regulations…must wear appropriate safety shoes…the company is responsible for providing each employee with sufficient safety equipment.” (“根據安全條例 … [員工] 必須穿着合適的安全設備 … 必須穿着合適的安全鞋 … 本公司有責任為每位員工提供足夠的安全設備 …”)

48.  Another part of the defendant’s company policy is that an employee is entitled to purchase safety shoes and get reimbursement for not more than HK$1,000/year: [B/121] at §5. While evidence at trial indicates that the price of a pair of hiking shoes would be around HK$400 and other safety shoes could be cheaper at the time of the Accident, the amount allowed to be claimed is far more than enough for purchasing such safety shoes.

49.  It is the defendant’s pleaded case that the plaintiff was made known of the safety equipment in the induction briefing when the plaintiff became a “new colleague”: [A/59] at §6B(c), which was given by the Foreman or another staff of the defendant. Moreover, it has been alleged that, the Foreman has made sure the plaintiff had worn suitable footwear at all times.

50.  However, the Foreman in the witness box denies the provision of safety equipment by the defendant. This aligns with what he said in [B/121] at §5 that “there is no such legal requirement”, which relied on the trade practice to override the company policy.

51.  When the Foreman was asked to repeat what he had conveyed to the plaintiff about the company policy during the induction briefing, he also could not provide the exact alleged message he gave.

52.  In my judgment, the aforementioned shows the Foreman must have chosen convenience over safety by acting contrarily to the company policy. This explains why the plaintiff said he had not been informed about the company policy or safety measures. I accept the plaintiff’s evidence in this respect and will reject the Foreman’s allegations.

53.  Worse still, when the Foreman alleged that a notice about safety measures had been posted in places like the defendant’s office, it was discovered that the notice only had a commencing date, but without any date showing when it had been drafted or posted. After the defendant’s counsel informed the court that this notice is the only copy/version, with the original nowhere could be found, it makes the whole allegation much more incredible. Thus, I have no hesitation to find that this notice was made up after the Accident.

54.  Thus, in this regard, I prefer the plaintiff’s version to that of the defendant where no safety measures were informed to the plaintiff.

C.3.6. Had the Foreman made sure that the plaintiff wore/had safety equipment?

55.  It is pleaded by the defendant that at all material times, the Foreman made sure the plaintiff had worn suitable footwear.

56.  Nevertheless, the plaintiff’s case is that nobody, including the Foreman, had ever questioned his attire.

57.  The Foreman testified in the witness box that he only instructed the plaintiff to wear sports shoes or casual shoes because if the company policy is strictly and literally followed, a majority of workers could not carry out their work (「字面上嘅啫,如果話要跟, 大家都冇得做」). He also admitted that the company’s uniform was short-sleeve T-shirts instead of long-sleeve ones.

58.  Given the above admissions, it is not difficult for me to conclude that the Foreman did not fulfil his affirmative duty to ensure the plaintiff wore suitable attire on the day of the Accident.

C.4 The defendant’s liability

59.  Bokhary PJ (now NPJ) laid down the well-established principle in Cathay Pacific Airways Ltd v Wong Sau Lai [2006] 2 HKLRD 586 (FACV1/2006, 23 May 2006) at §24:-

“Of course the duty of care owed by employers to employees at common law is a single duty to take reasonable care for his employees’ safety. This is so even though it is convenient to think of the duty as involving the provision of safe co-workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and (where called for) adequate training. As Lord Keith put it in Cavanagh v Ulster Weaving Co. Ltd [1960] AC 145 at p.165, “[t]he ruling principle is that an employer is bound to take reasonable care for the safety of his [employees], and all other rules or formulas must be taken subject to this principle”.

60.  While the defendant was clearly the employer of the plaintiff, there was a serious risk of injury when the Foreman representing the defendant instructed something contrary to the company’s policy and demanded the plaintiff to work under a slippery steep hillslope with both hands occupied. It seems clear to me that the defendant was in clear breach of the employer’s non-delegable affirmative duty of safe equipment and safe system.

61.  For the above reasons, I find the defendant liable for causing the Accident.

C.5 Contributory negligence of the plaintiff

62.  The defendant’s fallback position is that the plaintiff should be found contributorily negligent in causing the Accident.

63.  It is well-established that the burden of proving the plaintiff contributory negligent lies with the defendant who raises the issue: See Clerk & Lindsell on Torts, 23rd ed at §3-98.

64.  Mr So for the defendants in both his opening and closing submissions has cited the following cases:-

(a) in Baron v B French Ltd & Anor [1971] 3 All ER 1111, the plaintiff tripped himself over the rubble in a new hospital’s construction site. Mr Justice Bagnall held at 1117J that the degree of contributory negligence on the part of the plaintiff would be 50% as the plaintiff did not look where he was going; and

(b) in Wenda Betts v Anthony Tokley [2002] EWCA Civ 52 at §6 (per Buxton and Latham LJJ), the plaintiff falling some steps would be 60% contributorily negligent since she should have taken great care when she walked in the dark.

65.  Based on the above-cited authorities, Mr So submits that the contributory negligence on the plaintiff’s part should be in the range of 50% to 60%.

66.  On the other hand, Mr Szeto contends that the plaintiff is not contributorily negligent because the Accident happened under the context of the plaintiff being instructed by his Foreman to be present at the Site.

67.  With respect, I think Mr So has over relied on the English cases the jurisdiction of which has a very different jurisprudence and work culture. They also have a very comprehensive national insurance scheme which covers most if not all accidents happen at work. I think it is fair to say that over the years Hong Kong courts have developed our own jurisprudence on this subject and formed a judicial reluctance to readily make findings of contributory negligence against employees, particularly when they are forced to work in unsafe environment or injured due to lack of suitable equipment, instructions or supervision as in the circumstances of this case.

68.  The judicial sympathy is based on their habitual carelessness about the risks that employees’ work may involve, say for example: Sherma Phadindra v Tin Wo Engineering Co Ltd [2012] HKCFI 1749 (unrep, HCPI 32/2011, 8 November 2012) at §§95 and 96, citing General Cleaning Contractors LD. v Christmas [1953] AC 180 at 189 and 190.

69.  Further, when concluding no contributory negligence in the relatively old case of Tang Shau Tsan v Wealthy Construction Co Ltd [1999] HKLRD (Yrbk) 374 (HCPI 1092/1998, 2 December 1999), Deputy Judge Woolley also said at §14:

“… one has to distinguish between a workman deliberately taking risks, possibly as a shortcut, where he is paid on piece work and wishes to achieve as much as possible in the time available, and one who is using the only method provided to do the best job he can.”

70.  In the present case, the plaintiff seemed to have followed the express instructions from his employer while carrying out his duties. Moreover, the defendant’s allegation that the defendant fell all of a sudden does not in itself suggest a conclusion of any contributory negligence.

71.  In Mohammad Shakil v Lam Siu Kwong & Anor [2008] HKCFI 765 (unrep, HCPI 610/2007, 5 September 2008), Deputy Judge Longley found no contributory negligence on the part of the plaintiff who slipped and fell.

72.  Therefore, on a balance of probabilities, I find contributory negligence is not established on the part of the plaintiff in this case.

D. QUANTUM

D.1. General background and treatments

73.  The plaintiff was born in 1987 in Pakistan and was 27 years old when the Accident occurred. He settled in Hong Kong in 1997. His mother tongue is Punjabi.

74.  He only knows a little bit of Cantonese and English. Hence, he uses a mixture of English, Chinese and gestures to communicate with his colleagues. If necessary, he seeks clarification by repeating what the others say to him to confirm the meaning.

D.2. Surveillance videos and reports

75.  The plaintiff was placed under observation and surveillance in around mid-November 2015, both videos of which were played when Mr So made his opening submissions.

76.  Despite the fact that the plaintiff did not work at any construction sites or perform duties involving heavy items in any of those videos, the following instances especially displayed that he had recovered to a large extent after half a year from the Accident:

(a) he was seen walking with a normal gait and at a normal pace;

(b) there were multiple occasions that he could swing his left hand uninhibitedly while body mobility appeared to be perfectly normal and natural;

(c) he could use his left hand to put on, take off and open the backpack which is considered to be precise tasks with one hand only; and

(d) he could use his left hand to grab things on the floor which involved both the muscles of his left hand and left shoulder.

D.3. Pain, suffering, and loss of amenities (“PSLA”)

77.  Mr Szeto referred to the following decided cases where PSLA awards from HK$200,000 to HK$250,000 have been made between 2012 and 2015:-

(a) Ho Shuk Man v Norman Wong Wai Nok & Anor [2015] HKCFI 1599 (unrep, HCPI 314/2010, 8 September 2015);

(b) Chong Ngan Seng v China Harbour Engineering Company Limited & Ors [2012] HKDC 77 (unrep, DCPI 2078/2009, 3 February 2012); and

(c) Chan Hau Yu v Li Wing Kwai [2014] HKDC 1017 (unrep, DCPI 1883/2012, 5 September 2014).

78.  Mr So submitted that a sum of HK$30,000 should be awarded for PSLA only. He relies on the following cases in support of his contention:-

(a) In Li Kam Wah v Ng Ting Tuen & Anor [2002] HKDC 336 (unrep, DCPI 386/2001, 9 Aug 2002), DDJ Sham awarded HK$50,000 under the head of PSLA for the minor injury to the neck, back, and waist sustained by the plaintiff, notwithstanding the plaintiff being fit to resume pre-accident job and had no fracture;

(b) In Tam Yuen Hoi v Chan Muk Sing & Ors [2003] HKCFI 298 (unrep, HCPI 983/2001, 1 Aug 2003), DHCJ To awarded HK$50,000 for PSLA for the carpenter who fell down the stairs and resulted in the lower back and left buttock injuries. Notably, he neither had any neurological/radiological deficit nor any persistent injury about lower back pain (though the learned judge found it to be exaggerated). He was also fit to resume pre-accident work;

(c) In Lai Ka Yin v Chan Yiu Kei [2009] HKDC 193 (unrep, DCPI 453/2008, 7 January 2009), the victim of a road traffic accident suffered neck and back injuries, as well as soft tissue injury, which caused her to be hospitalized for 3 days to receive physiotherapy. Particularly, she had no fracture and managed to recover fully when the trial took place. HH Judge Mimmie Chan awarded HK$50,000 for PSLA;

(d) In Fazal Ahmed v MTR Corp Ltd [2012] HKDC 889 (unrep, DCPI 29/2011, 25 April 2012), with a similar accident of slip-and-fall, an MTR security guard landed on his back and then his neck on the staircase. Though he had no fracture and was discharged after 3 days, he attended 52 sessions of physiotherapy. HH Judge Simon Leung awarded HK$50,000 for PSLA (if liability attaches); and

(e) In Yip Kwok Shing v Fung Chau Tim [2017] HKDC 712 (unrep, DCPI 2627/2015, 26 June 2017), redness and tenderness over the lower back region were caused by the defendant’s assault. While X-ray revealed no fracture and the plaintiff was analgesically administered and then discharged, HH Judge Andrew Li awarded HK$60,000 for PSLA.

79.  In my judgment, although Mr Szeto in his closing submissions contended that the plaintiff’s early condition was quite serious, when he took up substituted occupations during the paid sick-leave period and was absent from physiotherapy sessions at QMH which “helps [him] a lot”, there is clearly a gross exaggeration of injuries for his subsequent conditions in this case.

80.  Furthermore, from the joint expert report, the loss of earning capacity in the region of 2-3% demonstrates that the plaintiff’s injuries, if any, were minor and insignificant.

81.  Apart from the medical evidence, the two surveillance videos played in court also showed the plaintiff recovered well 7 months after the Accident, for example, he walked with a consistent normal gait and pace, had normal and natural body movements like swinging his left hand uninhibitedly and using his left hand to open backpack.

82.  Lastly, I also agree with Mr So’s submissions that when there had been no fracture and the plaintiff, a right-hander, was injured in his left limb, the PSLA to be awarded should be comparable to the cases cited by Mr So and I consider the injuries suffered by the plaintiff in this case would be slightly less serious than those mentioned in the above cases.

83.  Balancing the aforementioned circumstances, I would find an appropriate PSLA award to be at HK$40,000.

D.4. Pre-trial loss of earnings and MPF benefits

84.  Little room is there for debate that the pre-accident earnings of the plaintiff were at HK$13,000.

85.  From the opening submissions of Mr So, the defendant paid 4/5 of the plaintiff’s salary during sick leave from 15 April 2015 to 15 October 2015.

86.  From the video recordings, the plaintiff was found to be able to take up another job in November 2015. When giving evidence. the plaintiff alleged that he did that because he was in need of money.

87.  In my judgment, I accept Mr So’s submission that the defendant only has to pay 1/5 of the outstanding 8-month salary from April 2015 to November 2015.

88.  Even though Mr Szeto asserted the period of not under employment to be 13 months, I accept Mr So’s submission that the defendant is not liable for the plaintiff’s failure to mitigate his own loss.

89.  Thereby, I would allow a pre-trial loss of earnings of:-

HK$13,000 x 8 months x 1.05 MPF x 1/5 = HK$21,840.

D.5. Future loss of earnings and MPF benefits

90.  Based on my analysis of the joint expert report, surveillance videos and the factual findings I made above, I do not consider the plaintiff is entitled to a claim for any loss of future earnings in this case at all.

91.  I therefore will not allow any award under this head.

D.6. Loss of earning capacity

92.  It is trite that loss of earning capacity is recoverable at some future date during the plaintiff’s working life due to his disadvantage in the labour market which causes him to lose employment and then suffer financial loss: Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314 (CACV139/2000, 23 May 2001) per Keith JA from 319D to 320A.

93.  Yet, if there is evidence showing that the plaintiff could return to his pre-accident job or if he could attain an income not less than the pre-accidental job’s income, damages under the head of loss of earning capacity will not be awarded: Hussain Shaheen Akhtar v Yue Yi Holdings Services Ltd[2021] HKDC 1603 (unrep, DCPI 1932/2016, 23 December 2021) at §§55-56 (per HHJ MK Liu).

94.  In both the plaintiff counsel’s opening and closing submissions, the plaintiff claimed HK$150,000 under this head. An amount of HK$75,000, roughly equivalent to 6 months’ pre-accident monthly income, would also be considered an appropriate fallback sum.

95.  From the joint expert report, other than concluding that the plaintiff might have suffered a loss of earning capacity within the range of 2-3%, experts from both sides agree that the plaintiff is able to return to his pre-injury job as a general labourer in the construction site.

96.  In addition, though the early conditions of the plaintiff were quite serious, he recovered well as revealed by the surveillance videos. Thereby, the alternative employment’s monthly income of HK$12,000 from December 2016 to 25 April 2018 was only slightly less than the original pre-accident monthly income of HK$13,000.

97.  Balancing the aforesaid, I view that the plaintiff does not have a clear disadvantage in the labour market. Hence, I would not make any award under the head of loss of earning capacity in this case.

D.7. Special damages

98.  The plaintiff claimed HK$1,000 for medical expenses and HK$500 for travelling expenses, which has been accepted by the defendant.

99.  Thus, I am satisfied to allow HK$1,500 for the total special damages in this case.

D.8. EC payment

100.  There has been no parallel employees’ compensation claim.

D.9. Summary of damages

101.  Based on the above findings, the following sum as damages will be allowed:-

(a) PSLA	HK$40,000
(b) Pre-trial loss of earnings & MPF benefits	HK$21,840
(c) Future loss of earnings & MPF benefits	Nil
(d) Loss of earning capacity	Nil
(e) Special damages	HK$1,500
Total	HK$63,340

E. CONCLUSION

102.  In conclusion, based on my findings that the defendant should be held 100% liable for the Accident and my calculations for the damages above, the plaintiff will be able to recover HK$63,340 from the present proceedings. Therefore, judgment is entered against the defendant in the sum of $63,340 plus interest in this case.

E.1. Interest

103.  I will allow the claim for interest as follows:–

(a) the usual award for interest at 2% per annum for general damages from the date of writ to date of judgment; and

(b) at half of the judgment rate for special damages from the date of the Accident to the date of judgment.

E.2. Costs

104.  Costs will follow the event. I will make a costs order nisi that the defendant shall pay the costs of this action in favour of the plaintiff. Such costs to be taxed if not agreed on the District Court scale, with certificate for counsel. The plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations. In the absence of any application to vary the same within 14 days after the handing down of the judgment, the order nisi will become absolute.

Mr Patrick Szeto, instructed by Messrs LWC & Co., Solicitors, assigned by the Director of Legal Aid, for the plaintiff

Mr Simon So, instructed by Messrs Francis Kong & Co, for the defendant