HCPI 312/2021
[2025] HKCFI 3753
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 312 OF 2021
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BETWEEN
| | MOHAMMAD-RIASAT | Plaintiff |
and |
| | WANTON BUSINESS SERVICES LIMITED | Defendant |
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| Before: | Hon Leung J in Court |
| Dates of Hearing: | 14-15 January 2025 |
| Date of the Defendant’s Closing Submission: | 23 January 2025 |
| Date of the Plaintiff’s Closing Submission: | 13 February 2025 |
| Date of Judgment: | 19 September 2025 |
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JUDGMENT
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1. The plaintiff (“MR”) claims damages for injuries sustained in the course of his work under the employ of the defendant (“WBS”) in 2018. This case was originally set down for trial on the Running List in 2023, but was subsequently removed from the List and re-fixed. Both liability and quantum are in dispute.
BACKGROUND
2. At the material times, WBS operated a storage and processing of recycled metal workshop at Yuen Long, New Territories (“the Workshop”). On 6 December 2018, MR began working as a general worker for WBS at the Workshop on daily wage basis. The accident at work happened 6 days later in the afternoon of 12 December 2018.
3. On the day, as part of his job to separate and trim the resalable metal parts from the stock at the Workshop, MR was instructed to cut metal frames and bars by operating a hydraulic shearing machine there (“the Machine”). He carried out the work alone.
4. From where MR was standing to operate the Machine, his left was the guillotine counter and his right was the control panel. The guillotine counter had a resting surface where the material to be cut would be placed. Above it was the guillotine consisting of the clamping jaw and the blade. The dimensions of the Machine were 264 cm long, 64 cm wide and 155 cm high. The resting surface of the guillotine counter was 68.5 cm above the ground. The Machine weighed about 5 tons.
5. In the operation, MR would manually feed the material to be cut onto the resting surface of the guillotine counter to his left, and press the buttons on the control panel to his right. Upon the shearing button being pressed, the guillotine would come down with its clamping jaw side clamping the material while its blade side cutting it. The part of the material on the blade side should be cut loose and fall from that side.
6. At the time, MR intended to cut an angled, roughly L-shaped, metal frame with one member being 100 cm long and the other being 150 cm long. In other words, either member of the frame would far exceed the height of the resting surface of the guillotine counter (68.5 cm) mentioned above. The frame was round in cross section. The evidence shows that it was solid and rigid. As illustrated above, MR used his left hand to hold a member of the frame and placed it horizontally on the resting surface of the guillotine counter. Imagine pictorially the frame lying like a figure ‘7’ on the resting surface, that is, with the other member of the frame jutting out on the other side of the resting surface. MR then pressed the shearing button on the control panel with his right hand, and the guillotine came down.
7. The clamping of the L-shaped frame initiated rotation, and thus that of member of the frame being held in MR’s left hand and the member jutting out on the other side of the resting surface to turn down towards the ground. That member of the frame, now turned to point to the ground, effectively became a lever which caused the Machine to jack up or prop up, but the blade side very quickly cut the frame, thus causing the Machine to lose the leverage and drop. The Machine landed on the right foot of MR, trapping and crushing his forefoot foot. He was rescued by other workers and sent to the hospital by ambulance.
8. The Labour Department conducted investigation into the accident on various dates between December 2018 and March 2019. In its report dated April 2019, the Department concluded that the accident happened in the manner as illustrated above. It pointed out that task-specific risk assessment should have been conducted by a competent person in identifying all associated hazards such as that of the Machine being propped up by the metal bar during the operation. Safe working procedures and measures should have included either trimming the frame to be cut first into straight bars. Alternatively, it should have been ensured that the length of the member of the L-shaped frame jutting out of the guillotine counter would not exceed the height of the resting surface of the guillotine counter. It also recommended sufficient safety information, instruction and training as well as sufficient monitoring and control to ensure that the safety measures were strictly followed.
9. As a result of the accident investigation, WBS was prosecuted for contravention of sections 6A(1), (2)(a) and (3) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“FIUO”). Specifically, WBS failed to provide and to maintain a system of work for cutting metal bars with the use of hydraulic shearing machine that was, so far as was reasonably practicable, safe and without risk to health of MR at work. It also failed to provide such information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety of MR at work. WBS pleaded guilty to both summonses, and was convicted and fined by the Magistrate in June 2019 (Cases FLS 5206 & 5207/2019).
10. MR filed his application against WBS for employees’ compensation in 2020 (DCEC 1325/2020). This was eventually settled at the sum of HK$380,000 (inclusive of interest and advance payment) plus costs in January 2021.
11. With legal aid, MR commenced the present action in September 2021.
12. As mentioned, the trial was at one stage set down for trial on the Running List in 2023. However, legal aid to MR was subsequently discharged, and MR became acting in person since late July 2023. In view of this development, a checklist review was fixed to be heard in August 2023. To accommodate MR, the hearing was vacated and adjourned to September 2023. Upon hearing the parties, the master removed the trial from the Running List. Those acting for WBS then proceeded to set down the case for trial on the Fixture List. Hence the trial before this court.
13. The above background, I find, cannot be disputed as a matter of fact.
THE PLEADED CASES
14. MR contends that WBS was negligent as well as in breach of its implied contractual duty of care as the employer and its common duty of care as occupier under the Occupiers’ Liability Ordinance, Cap 314 (“OLO”). As to statutory duties, WBS is said to have been in breach of sections 6(1), 6(2) and 31 of the Occupational Safety and Health Ordinance, Cap 509 as well as sections 24 and 27 of the Occupation Safety and Health Regulation, Cap 509A (collectively “OSH”).
15. The particulars of breach, albeit elaborate, are essentially based on the alleged failure of WBS to carry out risk assessment as well as to provide and to monitor a system of work which would ensure the safety of MR in operating the Machine in carrying out the metal cutting work.
16. In defence, WBS denies the alleged breach on its part. It contends that MR should have fed the L-shaped metal frame horizontally to the guillotine counter but with the other member of the frame pointing upwards or vertically. MR should have maintained the frame in such position throughout the cutting process. MR is also said to have stood too close to the Machine when it was in operation. He is said to have operated the Machine in the manner which gave rise to the risk of injury unknown to WBS and without fault on its part. On this basis, MR allegedly failed to exercise reasonable care of himself at work, which caused or contributed to the occurrence of the accident.
17. No new issue arises out of the reply, save that MR contends that no training was provided to him except for verbal instruction received on what to do when he commenced his employment and work at the Workshop.
18. Regarding quantum, MR claims damages, net of employees’ compensation received as mentioned above, exceeding HK$4.4 million.
ISSUES
19. Broadly the issues are:
(1) whether the accident was caused by breach of duties on the part of WBS;
(2) whether the accident was caused by or contributed to by the negligence of MR; and
(3) quantum of damages.
WITNESSES
20. MR gave evidence.
21. On behalf of WBS, Mr Law Tak Wing (“Law”), the supervisor of the Workshop at the time, gave evidence.
22. The principles governing the assessment of the evidence of witnesses are often cited. Essentially, the court will take into account, amongst other things, the inherent and relative consistency and plausibility of a witness with reference to the undisputed and indisputable evidence as well as the evidence of the other witnesses. Demeanour of witnesses is not irrelevant but must be taken into account with abundant caution. See for instance Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009 (8 April 2014) at §§77-83.
BREACH OF DUTY
23. Reliance on the OLO is misplaced. The accident arose out of the operation of the Machine in cutting the metal frame. This was not an accident caused by any unsafe condition of the premises. The accident did not arise out of MR’s presence at or access to or egress from that part of the Workshop. This was an activity tort. See for instance Leung Kam v Max Wealth Engineering Ltd[2024] HKCFI 3456 (at §65).
24. The particulars of breach were pleaded with duplication. Further, the particulars founding the alleged breach of OSH substantially overlap with that of FIUO, for which WBS has been prosecuted and convicted as mentioned. Section 19 of the FIUO provides that the Ordinance does not confer a right of action in civil proceedings in respect of breach of section 6A.
25. That said, the convictions, namely, WBS’ failure to provide a safe system of work as well as to give sufficient instructions, training and supervision to MR in respect of operating the Machine to carry out the metal cutting work at the material time is admissible pursuant to section 62 of the Evidence Ordinance, Cap 8. Short of reversing the legal burden on the part of MR, the factual basis constituting the charges, which WBS admitted and hence its convictions, binds it and is relevant to the issue of liability.
26. After coming to Hong Kong in 1992, MR has worked as loading and unloading casual worker, general construction site worker as well as security guard. As mentioned, it was his 7th day at work under the employ of WBS. During the whole period, MR has been carrying out metal cutting work by using the Machine. Counsel for WBS accepts in her submission that MR was at the time not a very experienced worker in his job.
27. According to his declaration to the Labour Department during the accident investigation and his evidence at the trial, MR was verbally told what to do on the first day of his employment by WBS. There was no training or warning as to the risk in operating the Machine at work. Nor was there supervision during the course of his work when the accident happened. He stated the same in his evidence.
28. The Labour Department’s investigation documents, including the photographs depicting the Machine, cast further light on the circumstances surrounding the occurrence of the accident. There were 6 buttons on the control panel of the Machine. The mode button was switched to manual to enable MR to operate the Machine as mentioned above. Amongst others, there was the shearing button and, under it, the stop and inching return button, which controlled the motion of the guillotine. The function of the shearing button speaks for itself while pressing the stop and inching button would halt the shearing motion. No complaint is made about difficulty to reach these buttons from where MR was standing at the time. Nor is that made about their proper functioning at the time.
29. Below the control panel on the body of the Machine were affixed 2 print-outs, one in Chinese and one in English, facing MR. They set out 5 safety guidelines for the operation of the Machine. According to Law, he believed that MR read English, and he also instructed MR to pay attention to those guidelines. Whether or not that is true, the guidelines, literally and properly understood, were essentially geared towards addressing the risk of injury arising out of exposure of body parts to the possible guillotine motion when the Machine was power-on or in operation. These guidelines do not readily appeal to a reader as warning against any other risk of accident arising out of the operation of the Machine.
30. The investigation report of the Labour Department also offered to explain how the Machine dropping from the propped-up state came to land on the foot of MR. The propping up of the Machine was believed to have just slightly shifted its position towards MR. The evidence shows that MR was wearing safety shoes at the time of the accident. However, his shoes could not withhold the weight of the Machine dropping on him. Hence trapping and crushing of his right forefoot.
31. According to Law, the Machine was very heavy and was not expected to vibrate or shift position during its operation until what happened in the present case. He knew of no similar occurrence prior to the accident. In his evidence in court, MR also expressed that he did not expect that to happen. Counsel therefore argues that the risk of the propping up and shifting of position of the Machine in the course of the metal cutting motion was not reasonably foreseeable. But is this the answer to the question of whether WBS should be liable for the accident?
32. One must not lose sight of the fact that the accident in the present case was a composition of various factors in sequence, the propping up and shifting of position of the Machine being the concluding factor. That concluding factor was the immediate physical cause of MR’s injury, but remained a constituent part of the manual operation of the metal cutting by the Machine. The duty of WSB was that towards ensuring a safe system of work involving such operation.
33. The system of work started with the feeding of the metal frame into the Machine. According to Law, the Machine was used to cut metal frames and bars, including H-bars, as well as electric cables of various shapes. In other words, that the material to be cut would come in different shapes, sizes, cross sections and makes was known or reasonably foreseeable. Apparently, so was the possibility that the material being cut could move in the cutting process. Hence Law’s evidence that MR was expected to hold the material to be cut both properly and firmly. MR was adamant, and I accept, that he was holding in his left hand a member of the L-shaped frame after the frame had been placed on the resting surface of the guillotine counter.
34. As mentioned, Law stated his expectation that one member of the L-shaped frame should have been maintained in a vertical position throughout the cutting process. That, it appears to me, is not difficult to understand in the light of what happened in the present case. Pushing the consideration further, one may even suggest that if the worker had actually held the vertical member in his hand on his side, this might have helped ensuring relatively better grip to resist any movement which might be caused by the clamping or shearing motion in the process. In any event, as illustrated above, that was not the manner in which MR was holding the frame at the time.
35. Was it reasonable to leave it to the judgment of MR to how to proceed with the cutting process by operating the Machine, including how to feed and hold the material to be cut? Counsel cites what the court said in So Chung Kwong v Ho Kuen & Anor [2000] 3 HKLRD 241 (at 249F-I) about the circumstances relevant to the consideration of breach and contributory negligence. No quarrel is expected as to that. However, the work process in the present case, contrary to counsel’s submission, cannot be categorised as simple and ordinarily risk-free.
36. As mentioned, the materials to be cut came in various shapes, sizes, cross sections and makes. The risk of accident resulting from movement of the material in the shearing process, if not held properly and tightly, was reasonably foreseeable. In the present case, the risk was compounded by the fact that it was an L-shaped frame round in cross-section as well as hard and rigid weighing some 8 to 10 kg. Further, both members of the frames far exceeded the height of the resting surface of the guillotine counter of the Machine, about which the investigation report of the Labour Department took issue. In these circumstances, it became all the more important for the worker to prepare the metal parts to be cut and, in the case of an L-shaped metal frame, to feed the frame properly as well as to hold it properly and firmly in the cutting process.
37. Before it was reasonable to leave it to his own judgment at work on the spot, the attention of MR should have been brought to the relevant features of the various materials to be cut which could give rise to safety concern in the course of the work as mentioned above. As fairly accepted by counsel, MR was at the time not very experienced in his job. On the basis of the factual constituents of its convictions on its guilty plea to the industrial summonses, WBS admittedly failed to carry out the specific safety risk assessment at the work in question. On the basis of Law’s evidence, the proper manner of carrying out the work in question was actually known or reasonably perceivable, but the same, I find, was not brought to the attention of MR as part of his instruction or training.
38. Law stated that MR was every now and then reminded to pay attention to work safety. However, that, even if true, would have been general and non-specific. That MR managed to carry out his work by operating the Machine for 6 consecutive days before the accident is neither here nor there. The case of Lam Ka Lok Louis v Swire Properties Management Ltd HCPI 914/2003 (30 April 2005) (at §39) cited by counsel is distinguishable.
39. Where it was reasonably foreseeable that personal injury of some kind could result from the absence of a safe system of work involving the manual operation of the Machine, the employer is not absolved from liability for fault causing the accident just because the injury came about in some unforeseeable manner or the particular form of injury was unexpected. See for instance the relevant case law discussed in Charlesworth & Percy on Negligence (16th ed) at §§5-146 to 5-158.
40. All things considered, I find that WBS should still be liable for the accident in the present case.
CONTRIBUTORY NEGLIGENCE
41. In the light of the above discussion, I find that the extent to which MR could be said to have contributed to the occurrence of the accident was at most his failure to stay sufficiently alert to the movement of the metal frame in his hand so as to enable him to react by pressing the stop and inching return button to halt the cutting process.
42. Counsel refers to numerous decided cases. As acknowledged, the comparison is fact-sensitive. In my view, the case of MR falls below the degree of blameworthiness warranted by the circumstances of those cases cited. Therefore, I decline from adopting the 25% contributory negligence as submitted. 10%, I find, should be top rate in the circumstances of this case.
QUANTUM
43. MR advances a claim for a total sum, net of employees’ compensation received, in excess of HK$4.4 million.
Injuries and treatment
44. The following account of the injuries and treatment received by MR as given by counsel is evidenced by the documents.
45. Due to the accident, MR sustained multiple open fractures to the toes of his right foot. An emergency operation was performed on 13 December 2018. The 1st to 4th toes were temporarily fixed with K-wire, and the 5th toe was given revision amputation. The wounds were heavily contaminated with metal dust, and debridement was necessary. The forefoot became infected and gangrenous changes took place at all the remaining toes. Amputation of all the toes at metatarsal level was performed on 20 December 2018. The wound did not heal, and wound coverage was done on 29 December 2018. His condition became stable and he was discharged on 15 January 2019. He was followed up by physiotherapist, occupational therapist, prosthetist and orthopaedic surgeons.
46. MR attended the Prosthetic and Orthotic Department of the Tuen Mun Hospital 8 times between mid-January 2019 and early October 2020. He was prescribed a toe filler which he uses daily by fitting the filler into a sports shoe as well as a cosmetic foot which he uses when he needs to expose his feet such as during religious and social activities.
47. MR has received 40 sessions of physiotherapy at the Pok Oi Hospital, which concluded in January 2020 when his progress became static. He was able to walk indoors independently for 30 minutes with one elbow crutch and prosthesis. The therapist reported that he needed supervision at outdoor walking.
48. MR has received occupational therapy, at the Pok Oi Hospital for 11 sessions for desensitisation training and at the Tuen Mun Hospital for 14 sessions for work conditioning. During the last of these sessions in September 2019, MR was found to be unable to match the demands of his pre-accident job as a general worker in metal recycling.
49. At the initial stage after the amputation, MR was also reported to have suffered from phantom pain at the injured site, and was referred to the Department of Anaesthesia and Operating Theatre Services at the Tin Shui Wai Hospital. Pain interventions were performed on 2 occasions, which MR claimed to have been effective in reducing his pain by half. The medical report suggests that by the time of his discharge from the department in January 2021, he had complete pain relief, entailing pain medication treatment daily for a week. His last appointment was in late March 2022.
Present complaints
50. At the time when he was jointly examined by the orthopaedic experts engaged by the parties respectively in early August 2021, MR still complained about, amongst others, the following problems:
(1) continuous right foot pain with numbness over stump and sole, requiring painkiller daily;
(2) feeling burning sensation with walking or standing for about 30 minutes;
(3) need to use walking stick for outdoor activities while holding furniture indoors;
(4) pain increase when foot hit on something;
(5) swelling and tenderness over scar;
(6) right lower limb weakness; feeling pins and needles during cold weather or in room with air-conditioning on;
(7) inability to run or squat; great difficulty in using stairs with tolerance of up to 10 steps and that in climbing slope;
(8) difficulty in sleeping;
(9) need to sit down for taking shower or changing clothes;
(10) need to be accompanied if using public transport;
(11) inability to do help wife with housework.
Medical expert opinion
51. Dr Lam Yan Kit and Dr Ko Put Shui Peter were instructed on behalf of MR and WBS respectively, who produced their joint expert report dated 5 November 2021 after the joint medical examination mentioned above.
52. Apart from noting down his background information, the experts set out their observation about MR’s ambulation during the examination. They also agreed on the nature of injuries, their complications and the residual symptoms based on the medical records, reports and their examination. They agreed that the treatment, investigation and rehabilitation in the present case were adequate. They too noted that MR’s condition had reached more or less stable and static by late 2019 to early 2020. As mentioned, MR was considered stable enough for referral to medical assessment board for assessment. The experts agreed that no further treatment would be necessary except for the replacement of worn out prosthesis.
53. The experts agreed that MR should be able to cope with his daily activities and social activities, though unable to play cricket or ball game which he claimed to have used to do. The experts did not differ significantly in their assessment of the degree of impairment of the whole person resulting from MR’s injuries. However they differed in respect of the degree of loss of earning capacity suffered by MR.
54. In practical terms, Dr Lam opined that MR should be unable to resume his pre-accident job, but suitable instead for sedentary type of jobs such as cashier or salesman. Dr Ko opined that MR should be able to return to his pre-accident job as a warehouse general worker with mild decrease in work efficiency and effectiveness. The caveat was that MR would have to be accommodated for modified duty, regular short break of about 15-20 minutes after continuous standing for an hour or 2 and relieved from heavy manual labour involving over 10 kg. Alternative jobs not requiring heavy exertion and prolonged standing and walking, such as car-park attendant, security guard, storekeeper, telephone operator, toll collector or cashier, would also be suitable.
55. On 7 June 2022, the medical experts rendered their second joint report whereby they agreed that the cost of replacement of prosthesis quoted by the public hospital is reasonable, which MR has paid HK$28,218.66. This prosthesis is advised to be used only for occasions when he has to expose his feet during social activities. It is expected to last about 3.5 years before replacement on the assumption that he has to attend such activities twice a week.
56. Surveillance on MR was carried out on divers dates between July 2020 and January 2021 as well as in March 2023. The medical experts were given the opportunity of viewing the video recording and perusing the surveillance reports. That led to their third joint report dated 13 April 2023. The experts observed that MR on the occasion in January 2021 used one stick and walked with mild limping gait in sports shoes. He held his stick with his right and left hand interchangeably. The video did not show obvious inconsistency when compared with the findings during the experts’ joint examination.
57. On the first occasion in March 2023, MR was seen using an umbrella, walking with slight limp. He was seen able to climb about 10 steps of stairs slowly with his umbrella as support without holding onto the handrail of the staircase. On the second occasion in March 2023, MR was seen sitting on a bench exercising his right ankle and foot. There was a brief moment when he was able to walk unaided without noticeable limping. Counsel rightly points out that MR actually walked faster than his wife at the time. MR was also able to cope with gentle slopes without problem. The video showed improvement in his ambulatory status. Dr Ko added that MR had obvious further improvement especially in terms of his likelihood of walking independent of aid and his gait stability.
58. Both medical experts maintained their respective assessments on the degree of impairment of the whole person and loss of earning capacity of MR.
59. MR was given sick leave from the date of the accident (12 December 2018) to 17 June 2020. Dr Lam considered that that being endorsed by the MAB was reasonable. On the contrary, referring to, amongst others, the physiotherapy and occupational therapy reports and his referral to medical board assessment by early 2020, Dr Ko opined that MR has reached maximum medical improvement by late 2019 to February 2020 when reasonable sick leave should have ended. Record of his good recovery was confirmed by the Yuen Long outpatient clinic in early March 2020. The record also shows that he defaulted his follow up treatment for hypertension as he decided to take the trip to Pakistan.
60. According to MR, his current orthopaedic follow-up attendance is at annual intervals. The experts are agreed that MR does not need any further treatment apart from replacement of the worn out prosthesis.
61. For the toe filler, the experts agreed that replacement would be needed every 5 years with costs in the private sector at HK$8,000 and minimally if done in the public sector.
Pain, suffering and loss of amenities (PSLA)
62. MR claims general damages in the sum of HK$800,000. Counsel cites the following cases as comparables:
Hung Sau Fung v Lai Ping Wai [2016] HKLRD 106
Lo Ping Kin v Yuen Tsz Shing trading as Wing Tao Professional Recycle DCPI 2474/2013 (27 April 2016)
Ho Yuk Yin v Lau Ah Lung & Anor HCA 2141/1984 (12 November 1985)
Ho For Sang v Lau Sun Choi & Anor [2003] 1 HKLRD A15
63. MR underwent partial amputation of his forefoot, which counsel accepts was serious injury. However, the evidence objectively reveals satisfactory recovery, including noticeable improvement since 2021 and by early 2023. Besides managing his daily activities without assistance, albeit with inconvenience, MR’s need to rely on walking aid outdoors, I find, was exaggerated. To a certain extent, he also manages climbing slope and stairs. He did manage to travel to Pakistan between March 2020 and now.
64. All the circumstances considered, I find the reasonable award should be in the region of HK$700,000.
Loss of earnings
65. In court, MR agreed that, as depicted in the surveillance video recording taken in early 2023, he could walk without support of his umbrella if this was level ground. He added that he used to manage walking even faster before the accident than the speed at which he walked without aid now. However, the fact that MR has been improving to the state as depicted in the surveillance video recording taken in early 2023, in my judgment, is undeniable.
66. Counsel submit that factoring in an additional period of absence from work after the end of reasonable sick leave, MR should be expected to have been capable of resuming work of the appropriate kind by mid-May 2020. I am prepared to allow reasonable period of post-accident absence from work until mid-June 2020. That was a period of 18 months. That brings the period of absence from work to effectively coincide with the end of the reasonable sick leave according to Dr Lam.
67. As mentioned, amongst the conditions of MR is hypertension, which he somehow attributes to the accident. According to him, he was fit before the accident, but became unable to exercise after that. Hence his obesity (nearly 88 kg) and hypertension. Objectively the medical records suggest the state of hypertension after the accident, but there is no prior record of MR’s such state for comparison. No definite finding could be made in this respect. That said, MR himself did not categorise his hypertension as the reason preventing him physically from re-entering the job market at all. This in my judgment must be the case as a matter of common sense.
68. As mentioned, the medical experts expressed different opinion in respect of MR’s capacity to return to his pre-accident job as a general warehouse worker. Dr Lam opined in the negative. Dr Ko’s opinion, though different, was apparently not without qualification as mentioned. The likelihood of MR being accommodated in terms of what Dr Ko recommended in order to enable him to return to his pre-accident job, in my judgment, is unrealistic. Counsel fairly accepts that, so that the accident has effectively rendered MR incapable of returning to his pre-accident work. Realistically MR has become suitable for less physically demanding work such as car park attendant, security guard, store keeper, toll collector or cashier as recommended by both experts.
69. The Plaintiff was born on 27 February 1974 and aged 44 at the time of the accident. He is now about 51.5 years old. Counsel does not argue about the normal retirement age of 65 for manual workers like MR. According to the Personal Injury Tables Hong Kong 2019 Table 9, at 2.5% discount rate the multiplier for age 51 is 11.53 and the multiplier for age 52 is 10.83. Counsel proposes the median of 11.18 as the appropriate multiplier for MR’s working life. I accept that.
70. MR claims monthly earning in the sum of HK$15,600 per month of 26 working days. WBS disputes that. The fact was that MR met his accident on the 7th working day since the commencement of his employment. According to the earnings records of 2 similar workers employed in the Workshop for the year 2018, they worked on average 24.33 days and 24.28 days in a month. Hence basis for believing that MR would have worked and earned as such but for the accident. Objectively that would appear to be reasonable, if one factors in statutory holidays and days when MR might have taken for trips to Pakistan. On this basis, MR would have earned from working for WBS HK$(600 x 24 days) = HK$14,400 per month at the time of the accident.
71. By pleading, MR contends that he would have secured a job as a general worker entitling him to earnings similar to those of construction site general worker, which would exceed $1,000 per day. He testified that he would have asked his friends if they might introduce him to jobs with such higher pay. The factual basis for such contention is unknown, perhaps apart from his own assertion. The fact was that MR met a prior accident in March 1999, which rendered him unable to work for about 5 to 6 years. When he subsequently worked in constructions sites, he had to avoid heavy manual labour. That caused him to change to work as a security guard. It was after changes of jobs, mainly part-time, when he finally joined WBS as a general worker. He was on comprehensive social assistance. For the purpose of the present assessment, I am not convinced about his asserted prospect of taking on or moving to some other jobs giving him higher pays. That I find was sheer self-serving speculation.
72. Counsel proposes to calculate MR’s loss of earnings on the basis of his pre-accident level of earning from WBS, though WBS has apparently closed down the Workshop by now due to business environment. As such, counsel borrows reference from government statistics. The December 2018 edition of the quarterly report of wage and payroll statistics suggested that the earnings of a general worker were HK$12,885. The June 2020 edition suggests that the earnings have increased to HK$14,248. Hence an increase during the period between the accident and the end of reasonable sick leave mentioned above by about 10.6%. Applying this to the average monthly earnings of HK$14,400, one gets the increased level of HK$15,926. The median during the period was therefore HK$15,163. On this basis, loss of earnings plus 5% MPF benefits suffered by MR since the date of the accident until mid-June 2020 should be: HK$15,163 x 18 months x 105% = HK$286,580.70.
73. Counsel proposes to adopt the monthly rate of HK$15,163 for the calculation of further loss of earnings. The reason is that the September 2024 Edition of the statistics actually suggests a minimal drop of about 1% in monthly income level (presumably factoring in the aftermath of COVID-19 pandemic). On this basis, the loss of earnings of MR at HK$15,163 per month plus 5% MPF benefits since the end of reasonable sick leave until now would be HK$15,163 x 63 months x 105% = HK$1,003,032.45.
74. MR should have been capable of taking up alternative job, albeit at lower wages, since mid-June 2020 as mentioned above. His evidence in respect of alleged unsuccessful attempts to find a job after the expiry of sick leave is both unconvincing and actually contradicted by his pleaded stance. By pleading, MR claims on the basis that he would have worked as a security guard earning HK$10,800 a month 3 months after the end of his sick leave. MR must abide by such pleaded stance.
75. That said, the rate of monthly income as a security guard is not substantiated by any documentary evidence. Again borrowing the government statistics, counsel points out that the June 2020 edition suggests such job on shift system should earn about HK$12,912 a month while the September 2024 edition suggested that monthly income has increased to HK$14,936. Hence a median of HK$13,924. I accept such proposition for the calculation.
76. In the premises, had MR resumed working by taking up the alternative job as security guard after mid-June 2020, he would have earned, inclusive of 5% MPF benefits, HK$13,924 x 63 months x 105% = HK$921,072.60. His partial loss of earnings for the period was HK$1,003,032.45 – 921,072.60 = HK$81,959.85.
77. MR’s total loss of earnings and MPF benefits since the accident until now was therefore: HK$286,580.70 + 81,959.85 = HK$368,540.55.
Loss of future earnings & earning capacity
78. On the basis as mentioned above, MR’s loss of earnings, inclusive of MPF benefits, from today until normal retirement will be HK$(15,926 - 14,936) x 12 x 11.18 x 105% = HK$139,459.32.
79. MR claims for loss of earning capacity in the sum of HK$200,000. This would have been to compensate for a person’s handicap in the labour market manifested in the risk of inability, due to disadvantage caused by his disabilities, to remain gainfully employed in his post-accident job: see Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; Chan Wai Tong & Anor v Li Ping Sum [1985] HKLR 176. The usual practice is to award a sum roughly representing the income for a nominal period of unemployment or underemployment as a result.
80. In the present case, MR never returned to work since the end of his sick leave. The above assessment of his loss of earnings is based on his partial loss due to the relatively lower income from his alternative sedentary job which he should have been capable of securing. There is no basis for suggesting the risk of inability to remain so employed due to his conditions attributable to the accident. Hence no further award in respect this head.
Future medical expenses
81. MR claims toe filler prosthesis as advised by the medical experts at HK$8,000 per unit from the private sector for 7 units, ie a total sum of $56,000. As for the cosmetic foot, this is agreed to cost HK$28,218.66 per unit with expected durability of 3.5 years. MR claims 10 replacements at HK$282,186.60.
82. Counsel does not dispute MR’s life expectancy of 83 years. From age 51.5 to age 83, the remaining life expectancy is 31.5. Table 28 shows that for a term certain of 31 years, the multiplier is 21.66 and for 32 years the multiplier is 22.12. Counsel proposes the median of 21.89 as the appropriate life multiplier for the future expenses on prostheses. I accept that.
83. Factoring in the multiplier mentioned above, counsel proposes that for the prosthesis with a life of 5 years, the cost of 5 units should be allowed, ie HK$8,000 x 5 = $40,000 while the cost of 7 replacements of the cosmetic foot should be allowed, ie HK$28,218.66 x 7 = HK$197,530.62. Hence the total future medical expenses of HK$40,000 + 197,530.62.60 = HK$237,530.62. I accept the quantification.
Miscellaneous special damages
84. Medical expenses are claimed at HK$31,018.66, travelling expense at HK$2,000 and tonic food at HK$5,000. Only 2 receipts have been produced, namely that for the cosmetic prosthesis at HK$28,218.66 mentioned above and that for manual wheelchair at HK$1,500. Hence a total amount of HK$29,718.66.
85. Counsel rightly points out that MR was on comprehensive social allowance, and received free medical treatment from the public hospitals. The tonic food, according to MR, was mutton and chicken soup, which would not be expensive. Accepting the readiness of the court to allow nominal sum even in the absence of cogent evidence in support, counsel proposes a total sum of HK$35,000 for all these items of special damages. I find that to be reasonable and allow such sum.
Summary
86. In summary, the quantum is arrived at as follows:
| Pain, suffering and loss of amenities | HK$700,000.00 |
| Pre-trial loss of earnings & MPF | HK$368,540.55 |
| Future loss of earnings & MPF | HK$139,459.32 |
| Future medical expenses | HK$237,530.62 |
| Miscellaneous special damages | HK$ 35,000.00 |
| Total: | HK$1,480,530.49 |
87. Discounted by 10% on account of contributory negligence, the quantum becomes HK$1,332,477.44. Net of employees’ compensation received, the quantum becomes HK$1,332,477.44 – 380,000 = HK$952,477.44.
88. Interest on general damages (PSLA) accrues from the date of writ to today at 2% per annum while interest on pre-trial special damages (loss of earnings and miscellaneous special damages) accrues from the date of accident until today at half judgment rate.
ORDER
89. Judgment is entered in favour of MR against WBS in the sum of HK$952,477.44 with the aforesaid interest. Judgment interest runs at the judgment rate from today until full payment.
90. Following this event, I make a nisi order that WBS shall pay MR’s costs of this action, including any costs reserved, to be taxed on the District Court scale if not agreed. MR’s own costs up to the discharge of his legal aid shall be taxed in accordance with legal aid regulation. In the absence of application within 14 days to vary, the nisi order shall become absolute without further order.
| | (Simon Leung) |
| | Judge of the Court of First Instance |
| | High Court |
The plaintiff appeared in person
Ms Christina Lee, instructed by Chu & Lau, for the defendant