LEUNG HON KIT v. WONG PO HING AND ANOTHER

HCPI 420/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 420 OF 2013 _________________________ BETWEEN LEUNG HON KIT Plaintiff and WONG PO HING 1st Defendant INNOMECH HONG KONG LTD formerly trading as ASIA BUILDING MATERIALS CO 2nd Defendant _________________________ Before : Master Chow in Court Date of Hearing : 24 and 25 June 2015 Date of Judgment : 21 July 2015 ___________________________ ASSESSMENT OF DAMAGES ___________________________ On 26 May 2010, the plaintiff suffered personal injuries from a fall while being employed by the 1st defendant as a casual construction site worker at certain premises in Fanling, with the 1st defendant being a sub-contractor of the 2nd defendant, the main contractor. This action was commenced by the plaintiff against the 1st and 2nd defendants for damages caused by the negligence, breach of the contract of employment, breach of statutory duties and/or breach of common duty of care on the part of the 1st defendant, his servants and/or agents, and/or the negligence and/or the breach of the statutory duties and/or breach of common duty of care on the part of the 2nd defendant and/or its servants and/or agent. Both the 1st and 2nd defendants did not file any notice of intention to defend and interlocutory judgment on liability was entered against the 1st and 2nd defendants on 7 November 2013. The hearing on assessment of damages took place before me on 24 and 25 June 2015. Leave was applied for by the plaintiff to file a supplemental witness statement on the efforts of the plaintiff in looking for employment from 2014 to date. I granted leave for the plaintiff to do so. Other evidence adduced took the form of an earlier witness statement and oral testimony of the plaintiff, reports of Government hospitals at which the plaintiff had been given treatment, the orthopaedic expert report of Dr Lam Chi Keung, Johnson dated 21 February 2014 and the psychiatric expert report of Dr Wong Chung Kwong dated 23 June 2014, as well as the oral testimony of Dr Lam. Background The case of the plaintiff as borne out by the evidence adduced is set out below. The plaintiff was born in Hong Kong on 5 January 1972 and he is single. He received education in Hong Kong up to Form 4 and can read and write Chinese. The dominant hand of the plaintiff is his right hand. Before the incident that led to the present action, the plaintiff had worked for a number of Japanese restaurants for 11 to 12 years. The last Japanese restaurant that the plaintiff worked at was in Kowloon City and it was operated by Osama Tony. The plaintiff worked there from 10 January 2010 to 4 May 2010. The plaintiff was introduced to the 1st defendant in around 2004 and since then, he had been working as a casual construction site worker for the 1st defendant or other contractors for 3 to 4 days in a month, performing duties like operating the pneumatic drill, cleaning debris and lifting of cement. If the plaintiff did not have to work at the restaurant on a particular day, he would work full day at the construction site earning a daily wage of HK$320; whereas if he had to work at the restaurant, he would only work half day at the construction site earning a wage of around HK$250. In May 2010, the plaintiff left employment with the Japanese restaurant that he was working at because he wanted to take care of his father who had injured his left hand and was living in the Mainland. For this purpose he stayed in the Mainland from 6 to 24 May 2010. Upon returning to Hong Kong on 25 May 2010, the plaintiff got in touch with the 1st defendant for work as a casual construction site worker. This was how he ended up working at the premises in Fanling on 26 May 2010 where he fell from a height of 8 to 9 ft and injured his right wrist. A sum of HK$219,933 was awarded to the plaintiff in his employees’ compensation claim in DCEC No 1635 of 2011 and he agrees to the deduction of this amount from the damages awarded under this action. Medical treatments The plaintiff was taken to the Accident and Emergency Department (“A&ED”) of North District Hospital (“NDH”) on 26 May 2010. X-ray showed fracture of right distal radius and the plaintiff was referred to the Orthopaedic & Traumatology Department (“O&T”) of NDH. The medical report of O&T of NDH refers to fractures at right distal radius and ulnar styloid shown by X-ray and the swelling and deformation of the right wrist of the plaintiff. Closed reduction was done and the injured wrist was rested in a short arm slab. The plaintiff was hospitalized and discharged by the O&T of NDH on 28 May 2010. This report also sets out the opting of continuous conservative management by the plaintiff despite doctors’ advice for operative fracture fixation. At the request of the plaintiff, he was referred to the O&T of Tseung Kwan O Hospital (“TKOH”) for follow up. The wrist did not heal well and the plaintiff consulted the Orthopaedic out-patient clinic of TKOH on 31 May 2010 and was admitted to the O&T of TKOH on 1 June 2010. No carpal tunnel syndrome was found upon physical examination. The relevant medical records indicate that he was advised to undergo surgical intervention but the plaintiff refused. Conservative treatment was opted by him which took the form of a cast being put on his right wrist. Subsequent follow up showed that the fracture healed with some deformity and there was residual pain and stiffness, as well as diminished range of motion of the right wrist. There were a number of subsequent visits by the plaintiff to the A&ED of TKOH, on 17 June 2010, 26 February 2011, 20 August 2011, 1 October 2011, 2 January 2012, 24 January 2012 and 10 April 2012. The plaintiff also went through 25 physiotherapy out-patient sessions at the Physiotherapy Department of TKOH from 6 August 2010 to 8 August 2011. Treatments received were transcutaneous electrical nerve stimulation, ice, magnetopulse therapy and active mobilization exercises. The plaintiff was discharged from physiotherapy with home exercises after the last treatment on 8 August 2011. According to the Physiotherapy Report of TKOH, the overall improvement was 80% and the overall condition was static. There were a number of visits to two other out-patient clinics (“OPC”). From 10 September 2011 to 8 May 2012, the plaintiff attended Mona Fong General OPC for 19 times. He also attended the Jockey Club General OPC on several occasions since 3 September 2011. The plaintiff first attended the Yung Fung Shee Psychiatric Centre on 4 November 2011 and was diagnosed as suffering from adjustment disorder and is on regular psychiatric medications. The conditions noted in the relevant medical report were experience of depressive mood, nightmare, palpitation and poor sleep. On 20 May 2013, the plaintiff first consulted the Department of Anaesthetics of the United Christian Hospital (“UCH”). He was prescribed with analgesic and was referred to occupational therapists for hand splints. Pulsed radiofrequency lesioning of right median and ulnar nerve were performed on 29 October 2013 but his pain condition was found to be similar on subsequent follow up occasions although there was some increase in the function of his right hand. The Occupational Therapy Report of UCH refers to the giving to the plaintiff of an ulnar gutter splint on 26 July 2013 and a based finger splint on 18 November 2013. There is also mention in this report of the active range of motions of right wrist extension and flexion, being 55 and 30 degrees respectively; the right forearm pronation and supination, being 80 and 90 degrees respectively; and the right and left power hand grips, being 19 kgf and 42 kgf respectively. Difficulties in hair washing, key turning and door pushing were also noted. In total, the plaintiff received seven sessions of occupational therapy. Up till now, the plaintiff is attending the Department of Anaesthetics of UCH, Kowloon East Pain Management Centre, Ort Hand and Upper Limb Clinic of TKOH, the Department of Occupational Therapy and Pain Clinic of UCH and Yung Fung Shee Psychiatric Centre for further treatment. As a result of the incident on 26 May 2010, the plaintiff was given sick leave from 26 May 2010 to 20 May 2012, a total of 725 days, and two other days since then. Orthopaedic expert report For preparation of the orthopaedic expert report, the plaintiff was examined by Dr Lam Chi Keung, Johnson on 15 January 2014. Dr Lam had reviewed the medical reports of the various doctors who treated the plaintiff. He noted in his report that the plaintiff had no pre-existing condition in the right wrist. The doctor carried out an examination of the plaintiff and took 5 radiographs, including anteroposterior (“AP”) view and lateral view of both distal radius and AP view of both wrists and hands. In the opinion of Dr Lam, there was intra-articular fracture of the right distal radius and fracture right ulnar styloid at the base which was consistent with the mechanism of injury and accident as described by the plaintiff and that there had been moderate displacement of the radial fracture. At the time of the assessment by Dr Lam, the fracture distal radius had united with significant displacement/malunion and the fracture ulnar styloid had resulted in non-union. As regards the treatment given to the plaintiff, Dr Lam gave his view that surgical intervention would in general give better anatomical results. The operation would, Dr Lam explained, involve the securing of the bones in the right place by the use of steel pins. However, he also mentioned that the conservative treatment opted by the plaintiff could also give acceptable functional result, but some residual pain, stiffness and weakness would be expected. The refusal of the plaintiff of surgical treatment was, in the words of Dr Lam, “not wise but acceptable”. Improvement in the condition of the plaintiff is, in the opinion of Dr Lam, possible. He indicated that the fracture distal radius malunion may benefit from “osteotomy” surgery to improve the loss of volar tilt and decrease of radial inclination. As a result, there may be improvement in the strength in the right hand, but there would still be some residual pain and weakness. Given that osteotomy involves the breaking up of the bone and usually the insertion of some bone graft and internal fixation device to correct the malunion, Dr Lam noted that the plaintiff would not agree to osteotomy operation since he had refused to the simpler surgical treatment earlier. Dr Lam clarified at the hearing that the remarks in his report about the injury of the plaintiff having reached maximal medical improvement at the time of his assessment of the plaintiff were made on the basis that the plaintiff would not undergo the osteotomy operation mentioned. In relation to the plaintiff’s refusal to opt for surgical treatment, Dr Lam testified that a decision of such a nature would often be affected by personal experience and tolerance to pain. In respect of the operation advised by the treating doctors of the plaintiff, Dr Lam remarked that with medium displacement like the present case, closed reduction could lead to reasonable and acceptable recovery. As for the osteotomy operation, Dr Lam indicated that many patients would have worries, especially about the need to break up the bone once again. With respect to either the simpler surgical intervention for treatment of his wrist soon after his injuries or the more complex osteotomy surgery to improve the malunion and non-union of the bones that had occurred, Dr Lam would not regard the plaintiff’s choice of rejecting surgical intervention to be unreasonable. The complaints of the plaintiff noted in the report of Dr Lam include pain in right wrist, feeling of right hand and wrist being covered or bound by a fish net, weakness of right hand, numbness of right hand and insomnia and nightmares. In relation to the pain in the right wrist, the plaintiff complained of pain over the ulnar side, both over the volar and dorsal aspects, all the time which increased after exertion, such as when twisting a door knob, lifting heavy objects (over 5 kg for over 5 minutes). The plaintiff needed analgesics about twice a day. In the opinion of Dr Lam, it was likely that the plaintiff still had genuine pain and impairment in the right wrist, and the degree of residual pain and impairment was estimated to be moderate. In practical terms, activities that cause increased stress to the right wrist would, Dr Lam reported, cause discomfort or even pain in the right wrist although the plaintiff should be independent in activities of daily living. On the question of returning to work, Dr Lam was of the view that with more self exercises to strengthen the right hand and wrist and a period of adaptation, starting off with shorter hours and allowing time for rest or stretch, the plaintiff should be able to gradually return to working as a cook in a Japanese restaurant, but there would be reduction in work capacity with decrease in strength, dexterity and endurance due to pain, stiffness and weakness. On what is meant by decrease in endurance, Dr Lam clariifed that the plaintiff would need to rest after half an hour or an hour of work now whereas in the past he might be able to work non-stop for a few hours. Dr Lam did not consider the plaintiff to be able to return to the full duties of his pre-accident job as a construction site casual worker. Earlier degeneration of the right wrist is to be expected if the plaintiff engages in work that requires heavy physical demand on the right wrist on a regular basis. When clarification from Dr Lam was sought, he pointed out that there would also be risk of degeneration with regard to the more heavy duty work of a chef such as the chopping of lamb rack. Considering the residual pain, stiffness and weakness, malunion of distal radius and non-union of ulnar styloid process at its base, Dr Lam estimated that the right wrist injury should carry 6% whole person impairment. With similar consideration as for assessment of permanent impairment, and considering the functional demand of the usual occupations of the plaintiff, the estimate of Dr Lam of the loss of earning capacity of the plaintiff is 8%. As to the grant of sick leave from 26 May 2010 to 20 May 2012, having considered the severity of injury, the need for rehabilitation and the pre-accident job demand, Dr Lam considered the period of sick leave to be appropriate and should be endorsed. The symptoms of insomnia, nightmares and speaking to oneself which the plaintiff complained of were considered by Dr Lam. His recommendation was to obtain a medical report from the psychiatric clinic to see if assessment by an expert in this field would be beneficial. Psychiatric medical report Dr Wong Chung Kwong conducted a psychiatric examination on the plaintiff on 6 June 2014. In his opinion, the plaintiff was suffering from Adjustment Disorder with Depressed Mood as a result of the accident, which is an adverse psychological reaction to stressors. Four main groups of stressors have been identified by Dr Wong in the present case – (1) the physical symptoms of right wrist pain and weakness; (2) worries about health and future condition of the right hand; (3) worries about work and finance; and (4) the present litigation. In terms of his psychiatric condition, Dr Wong reported that the plaintiff had reached maximal medical improvement. Dr Wong referred to the Guide to the Evaluation of Permanent Impairment, Fifth Edition (American Medical Association, 2004) which recommends the assessment of impairment due to psychiatric disorder according to broad Classes. The 5 listed Classes are “No Impairment”, “Mild Impairment”, “Moderate Impairment”, “Marked Impairment” and “Extreme Impairment”. In the opinion of Dr Wong, the plaintiff was functioning between the two classes of “No Impairment” and “Mild Impairment”, and the notes of the class of “Mild Impairment” read “Impairment levels are compatible with most useful functioning”. Another way of denoting impairment of functioning due to psychiatric disorder is to use percentage figures, although the current trend is not to adopt such an approach. Simply for reference purpose, Dr Wong pointed to Chapter 13 of the aforesaid Guide and estimated the permanent impairment on psychiatric grounds that the plaintiff was suffering to be 4%. The notes in the Guide indicate that the range of 0-14% impairment is assigned to situations where there is mild limitation of activities of daily living and daily social and interpersonal functioning. On the ability of the plaintiff to return to his previous job, Dr Wong’s view is that, purely on psychiatric grounds, he is able to do so with a mild degree of loss of earning capacity. He also gave an estimate of 4% permanent loss of earning capacity by the plaintiff on psychiatric grounds. As for sick leave to be granted on psychiatric grounds, the recommendation of Dr Wong is to grant sick leave for three months from the day of the first psychiatric out-patient session. This period is covered by the sick leave period granted to the plaintiff already mentioned. Dr Wong also recommended the continuation of psychiatric treatment to the plaintiff in Yung Fung Shee Psychiatric Centre for up to about six months after the closure of this litigation. The plaintiff’s work The plaintiff gave a brief description of the duties which he performed while he was a cook. These included slicing of fish, de-boning of chicken wings and chopping whole rack of lamb into pieces. On the evidence of the plaintiff, his monthly salary as a cook at the Japanese restaurant that he worked for from January to May 2010 was HK$9,000 and he was also paid HK$1,000 a month as tips. Such payments were made to him in cash. In addition, the plaintiff was provided with a meal by the restaurant which he estimated to be worth HK$40. The hours of work of the plaintiff at that restaurant were from 4 pm to midnight and he worked for 26 days in a month. The plaintiff has produced tax returns relating to the years of 2006/2007, 2007/2008 and 2008/2009 and a letter from Osama Tony. They show that the plaintiff worked as a cook for several companies during those periods. The salaries of the plaintiff while working at these establishments were of a fairly consistent range. I therefore accept that the plaintiff was earning HK$9,000 per month at his last employment as a cook at the Osama Tony’s restaurant. Although there is no documentary evidence in support, I accept that the plaintiff also received about HK$1,000 a month as tips and was provided with a meal by the restaurant every day he worked there. That means his pre-accident salary as a cook was HK$11,040 (HK$9,000 + HK$1,000 + HK$40 x 26) a month. Information about the frequency of the plaintiff working for the 1st defendant and the daily wages received by the plaintiff for such work is set out in his witness statement. While working as a cook, the plaintiff worked for 3 to 4 days each month for the 1st defendant and he was paid HK$250 for a half day work and HK$320 for a full day work. Payments were made by the 1st defendant in cash. According to the testimony of the plaintiff, his income from such construction work was about $1,000 a month. Upon his return from the Mainland on 24 May 2010, the plaintiff started working for the 1st defendant right away but his intention was to look for long term employment as a cook again and to take up part time construction work on the side only once he resumed working as a cook. The 1st defendant agreed to pay the plaintiff a daily wage of HK$320 and provide a meal that was worth about HK$30 each day. Thus, taking an average of 26 days of work in every month, the monthly income that the plaintiff would be able to make at the time of the accident is HK$9,100 [(HK$320+HK$30) x 26]. The plaintiff had attended some training courses on security guard service. His supplemental witness statement shows that he started to look for employment in 2014, with not much success. He had tried to find work as a cook in Japanese restaurants but no offer came his way when he was tested by potential employers since the food pieces he cut for preparing sushi were of uneven size. For a short period in 2014 and one day in 2015, the plaintiff managed to find work as a security guard and he received a total income of HK$12,520 from such employment. Pain, Suffering and Loss of Amenities (“PSLA”) In the Revised Statement of Damages, it was suggested that the injuries and disabilities of the plaintiff fall within the serious injury category set out in the case of Lee Tin Lam v Leung Kam Ming [1980] HKLR 657. The plaintiff claims PSLA in the amount of HK$450,000 in the Revised Statement of Damages, but this was further revised to the sum of around HK$350,000 in the written opening submissions of his counsel. The cases relied on by the plaintiff are Tsui Kwan Fai v Goldfield N & W Construction Company Ltd DCPI 97/2006, 24 August 2007 and Cheng Yuk Chun v Winson Cleaning Service Company & Ors DCPI 629/2006, 6 July 2007. The award for PSLA in both cases was HK$300,000. In the Tsui Kwan Fai case, the claimant sustained multiple injuries to his face, right upper limb and right shoulder, with X-ray examination showing a fracture of the head of the right radius. There were injuries to the soft tissue in his right wrist and right shoulder. He went first to a bonesetter and sought medical treatment at the Prince of Wales Hospital the following day when the swelling and pain in his right elbow and right wrist worsened. After the accident, the claimant ceased playing basketball and rock climbing, something he enjoyed doing before. The claimant in the Cheng Yuk Chun case fell on a staircase while dragging rubbish down. There were bruises in the forehead and a 1-cm nasal bridge laceration. X-ray showed fracture of the right distal radius and having been treated with close reduction and plaster immobilization, she was discharged the following day. Physiotherapy followed, but bone scan showed the development of Reflex Sympathetic Dystrophy (RSD) which resulted in pain and stiffness of fingers and wrist. Then MRI showed tear of Triradiate Fibrocartilage Cartilage (TFC), while nerve condition test showed mild carpal tunnel syndrome. The claimant was followed up by consultation with psychiatrist and pain clinic. When the RSD symptoms resolved gradually, she was re-admitted for wrist arthroscopy and debridement of the TFC tear and discharged days later. There was also slight unilateral muscle wasting of the right forearm and arm but no entrapment neuropathy of the forearm nerves. The claimant in the Cheng Yuk Chun case still complained about residual pain at the time of trial, and there was still limitation in movement and numbness in her fingers. She was still in low mood and the doctors recommended continuing psychiatrist treatment for 12 months or 2 years, as the experts differed in their opinion as to the duration of such treatment. Having considered the nature and extent of injuries, the treatments undergone, the effect on the daily activities of the claimants and the awards made in the cited cases against those experienced by the plaintiff in the present case, as well as the effect of inflation, I award the amount of HK$280,000 to the plaintiff for pain, suffering and loss of amenities. Pre-Trial Loss of Earnings and MPF In the opening written submissions of the plaintiff’s counsel, Mr Lam has set out the plaintiff’s claims for pre-trial and post-trial loss of earnings in two different scenarios – (1) where the plaintiff can neither resume work as a cook nor as a part-time construction worker and (2) where the plaintiff can resume work as a cook but not as a part-time construction worker. I have in paragraphs 23- 24 above set out the opinion of Dr Lam about the ability of the plaintiff to return to his pre-accident jobs. Having heard the plaintiff on the tasks he had to perform as a chef, there will be real difficulty for the plaintiff to work as a chef. During meal times, it would not be practical for the plaintiff to take a break after an hour or so of work. The unsuccessful attempts of the plaintiff to find work as a cook tend to show that a period of adaptation, starting off with shorter hours and allowing time for rest or stretch, as envisaged by Dr Lam, is not a real option available to the plaintiff. The loss of earnings should therefore be assessed on the basis that the plaintiff can neither resume work as a cook nor as a part-time construction worker. The plaintiff’s claim for pre-trial loss of earnings is divided into four separate periods: - 26 May 2010 to 25 July 2010; 26 July 2010 to 20 May 2012 (expiry of sick leave); 21 May 2012 to 20 July 2012; 21 July 2012 to date of trial. (a) 26 May 2010 to 25 July 2010 On the assumption that the plaintiff would take about two months after returning to Hong Kong from the Mainland in May 2010 to seek employment as a cook, the plaintiff claims loss of earning at the rate of HK$9,100 per month for the first two months. Such calculation is made on the basis that he would have worked for the 1st defendant full time during this period. Such claim of loss for the two months, that is HK$9,100 x 2 = HK$18,200, is appropriate. (b) 26 July 2010 to 20 May 2012 (expiry of sick leave); After the first two months, the claim for loss for this next phase is premised upon the plaintiff resuming working as a cook and as a part-time construction worker. The rate of HK$12,040 [HK$11,040 (salary as a cook) + HK$1,000 (wages from part time construction work)] per month is thus adopted for this period of about 22 months. There is clear support from Dr Lam about the appropriateness of the sick leave granted. The loss of earnings for this period should thus be HK$12,040 x 22 = HK$264,880. (c) 21 May 2012 to 20 July 2012 The plaintiff claims a further two months’ loss of earnings on the basis that it would take about such period of time to find work as a security guard after expiry of the sick leave granted. The attempts made by the plaintiff in finding work as a security guard have not been very successful. I agree therefore to allowing him two months’ time to look for such work. The claim for loss of earnings for these two months at the rate of HK$12,040 per month is therefore accepted, which means the amount is HK$24,080. (d) 21 July 2012 to 24 June 2015 (date of trial) For this period of about 35 months, the plaintiff claims the notional income of a cook during that period and HK$1,000 per month as income of a part-time construction worker, then deducting from this sum the notional income of a security guard during the period. I find this formula of computation appropriate, but the way in which the rates of the various elements in the formula are arrived at requires closer attention. With the notional income of a cook, the plaintiff relies on the average monthly salaries for cooks published in the Quarterly Report of Wage and Payroll Statistics of the Census and Statistics Department (“C&SD”). Data from the reports of March 2012, March 2013 and March 2014 have been taken to arrive at the average of HK$14,858 in question. I accept the adoption of this figure as the notional income of a cook for the period in question. The daily wage of a security guard in September 2014 was, according to the plaintiff’s witness statement, HK$360 and at first this was the figure proposed to be used for arriving at the notional income of a security guard for this 35 months’ period. Mr Lam subsequently produced the statistics on the average salaries of security guards published by the C&SD. Two sets of figures were available, one in respect of security guards working under a 2-shift system and the other in respect of security guards working under a 3-shift system. The plaintiff is an industrious person. When he was a cook before the accident happened, he made use of his spare time to take up part-time construction work. The work as a security guard that he managed to find in 2014 was also one under a 2-shift system. For these reasons, the set of figures to be adopted should be that of the 2-shift system. Extracts from C&SD’s Quarterly Reports of Wage and Payroll Statistics of December 2012, December 2013 and December 2014 were made available. The average of the monthly salaries for guards employed under 2-shift system published in the reports for those periods is HK$10,372. The loss of earnings for this period is therefore (HK$14,858 + HK$1,000 – HK$10,372) x 35 = HK$192,010. The pre-trial loss of earnings for the different periods are added up in the table below. Period Amount 26 May 2010 to 25 July 2010 HK$18,200 26 July 2010 to 20 May 2012 (expiry of sick leave) HK$264,880 21 May 2012 to 20 July 2012 HK$24,080 21 July 2012 to 24 June 2015 (date of trial) HK$192,010 Total HK$499,170 With 5% added to this amount to account for MPF, the award under this head is in the amount of HK$524,129. Post-Trial Loss of Earnings and MPF For post-trial loss of earnings, it is the plaintiff’s case that he would continue to work as a chef or kitchen supervisor in a Japanese restaurant and, on a part-time basis, a construction worker until he attains the age of 65. Based on the discount rate of 2.5%, the multiplier of 16.56 is adopted. As regards the multiplicand, the plaintiff asks that the notional income he can earn as a cook be substituted by the average monthly salary of a cook as published by the C&SD in December 2014, which is HK$16,264. I agree, but to compare apples with apples, the notional income he can earn as a security guard should also be taken from the statistics as at December 2014, which is HK$11,116. The amount should therefore be (HK$16,264 + HK$1,000 – HK$11,116) x 12 x 16.56 x 1.05= 1,2821,818. Disadvantage on the labour market The plaintiff seeks damages under this head on the basis that he has a very long working life ahead and he will suffer disadvantage in the open labour market. The amount claimed is HK$150,000. In support of the claim, Mr Lam referred to the remarks made by Dr Lam about earlier degeneration of the right wrist of the plaintiff if there is heavy regular exertion of that wrist, and his assessment of 8% loss of earning capacity when considering the functional demand of the usual occupations of the plaintiff, as well as the assessment of 4% permanent loss of earning capacity by Dr Wong. The cases of Chan Wai Tong v Li Ping Sum [1985] HKLR 176, Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture [2000] 1 HKLRD 798 and Ng Ching v Link Machinery Works Limited HCPI 112/2004, 11 January 2006 were cited to me. I bear in mind the following passage quoted by Mr Lam from the judgment of the Privy Council in the case of Chan Wai Tong v Li Ping Sum – “A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk…” In the case of Ng Ching v Link Machinery Works Limited, the claimant was found to have fully recovered from the injury at the end of his sick leave and to be capable of returning to his pre-accident job as a machinist. Damages for loss of earnings were assessed on this basis. A sum of HK$130,000 was awarded to the claimant because of the disadvantage that he would be put under by an obvious unsightly scar on his right arm. The claimant in Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture was a carpenter before the accident and future loss of earnings was sought and awarded. The following passage from the judgment of Suffiad J (at page 805D) was quoted by Mr Lam – “There can be little doubt that with the injuries suffered by the plaintiff, he will suffer a real handicap in the labour market. On the other hand, he has been compensated for future loss of earnings as a carpenter on the basis that he will be able to secure alternative employment paying some $8,000 a month. Therefore, the handicap in the labour market ought to be looked at in the light of this alternative employment, paying $8,000 a month. This is to guard against any overlap in compensation. I further take the view that six months of the salary in his alternative employment should be sufficient to compensate the plaintiff under this head. I therefore award the amount of $48,000 for loss of earning capacity.” Loss of future earnings in the present case has been assessed on the basis that the plaintiff will not be able to return to his pre-accident job, and that he will take up employment as a security guard. With the job of a security guard, there is nothing to suggest that there is a risk of the plaintiff losing his employment because of the disability caused by his injuries. The duties of a security guard do not require regular heavy physical exertion on the right wrist of the plaintiff and hence the concern raised by Dr Lam about earlier degeneration does not apply. The assessment of permanent loss of earning capacity by both Dr Lam and Dr Wong was carried out on the basis of the previous occupation of the plaintiff. Further, unlike the Ng Ching case, there is no unsightly scar on the plaintiff. In light of the above, the caveat in the Tsang Hing Yuen case against possible overlap in compensation is apt here. I therefore make no award under this head. Special Damages There are three more items of claim by the plaintiff – HK$400 for medical expenses, HK$10,000 for tonic food and HK$4,000 for travelling expenses. The medical expenses comprise two separate items – HK$320 being fees paid to TKOH and HK$80 for two bottles of bonesetters lubrication wine. The fees paid to TKOH have already been covered by the award for employees’ compensation in DCEC No. 1635 of 2011 and so should not be included. As for the other expenses claimed, although no receipts or other documentary proof is available, the amounts claimed are reasonable. Hence, I award the total sum of HK$14,080 (HK$80 + HK$10,000 + HK$4,000) under this head. Deductions In the Revised Statement of Damages, the plaintiff indicated that he will give credit for the sum of HK$219,933, being the award in his employees’ compensation claim in DCEC No. 1635 of 2011. Summary The following table sums up the computation of the damages assessed to be payable by the 1st defendant to the plaintiff: HK$ PSLA 280,000 Pre-trial loss of earnings and MPF 524,129 Post-trial loss of earnings and MPF 1,282,818 Special damages 14,080 Deductions (219,933) Total 1,881,094 I award damages to the plaintiff in the sum of HK$1,881,094, together with interest on damages for PSLA from date of writ to date of judgment at 2% per annum and interest on the pre-trial loss of earnings and MPF and special damages at half of the judgment rate from date of accident to date of judgment. Interest at judgment rate is to be paid on the net amount of HK$1,881,094 from judgment until payment. COSTS Costs of the plaintiff in respect of the assessment, including all costs reserved, shall be paid by the 1st and 2nd defendants, with certificate for counsel and to be taxed if not agreed. The plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations. (Chow) Master of the High Court Mr Joseph Lam, instructed by Ambrose Ng & Co, for the plaintiff The 1st and 2nd defendants were not represented and did not appear