29.4.2016 CasesLegal Document Export

HCPI
1380/
2014
IN
THE
HIGH
COU
RT
OF
THE
HON
G
KON
G
SPE
CIAL
ADMI
NIST
RATI
VE
REGI
ON
COU
RT
OF
FIRS
T
INST
ANC
E
PER
SON
AL
INJU
RIES
ACTI
ON
NO
1380
OF
2014
____
____
____
BET
WEE
N
Cases.Legal - 1 / 76
CHA
ND
LOK
KUM
AR
Plaint
iff
and
LEIG
HTO
N
LNS
JOIN
T
VEN
TUR
E
Defe
ndant
____
____
____
Befor
e:
Hon
G
Lam
J in
Court
Date
of
Heari
ng:
15 &
18
April
2016
Date
of
Judg
ment:
29
April
2016
____
____
____
___
JUD
GM
ENT
____
____
____
___
The
plaint
iff's
claim
1. In
this
actio
n the
plaint
iff
claim
s
dama
ges
for
injury
to his
right
index
finger
suffer
ed in
an
indus
trial
accid
ent.
At
trial
the
defen
dant
conc
eded
liabilit
y but
maint
ained
that
the
plaint
iff's
own
negli
genc
e
contri
buted
to his
injury.
2.
The
accid
ent
took
place
at a
const
ructio
n site
in
Sand
y
Bay,
Hong
Kong
Islan
d.
The
defen
dant
was
the
main
contr
actor
respo
nsibl
e for
the
site.
The
plaint
iff
was
an
empl
oyee
of the
defen
dant
havin
g
work
ed at
the
site
in
differ
ent
positi
ons
for 18
mont
hs
prior
to the
accid
ent.
At
the
time
of the
accid
ent
the
plaint
iff
was
a
miner
and
leade
r of a
team
of 10
to 15
work
ers.
His
job
dutie
s
inclu
ded
conn
ectin
g and
install
ing
pipe
work
s,
concr
ete
plast
ering
and
settin
g up
metal
forms
insid
e
tunne
ls.
3.
The
pipes
involv
ed in
the
accid
ent
were
for
pump
ing
and
deliv
ering
wet
concr
ete.
Each
pipe
segm
ent
was
about
1.5m
long,
about
20cm
in
diam
eter.
The
segm
ents
were
joine
d
toget
her
by
coupl
ings.
The
coupl
ings
were
esse
ntially
clam
ps
made
up of
two
semicircul
ar
metal
arcs,
joine
d at
one
end
in a
hinge
and
held
toget
her at
the
other
end
by a
bolt
(calle
da
pin
in the
plead
ings).
4. On
the
day
in
quest
ion, 9
Janu
ary
2014,
the
forem
an,
Mr
Chen
g,
spott
ed a
probl
em
with
a
coupl
ing
on a
concr
ete
pipe
insid
e the
tunne
l and
told
the
plaint
iff to
fix it.
The
bolt
was
comi
ng
loose
from
the
clam
p. It
had
to be
fixed
quickl
y for
other
wise
the
pipes
could
come
apart
and
the
concr
ete
which
was
being
deliv
ered
insid
e at
high
press
ure
woul
d
burst
out.
5.
Ther
e is a
slight
differ
ence
betw
een
the
descr
iption
of the
accid
ent in
the
incid
ent
notifi
catio
n
prepa
red
by
the
inves
tigato
r on
the
day
(anne
xed
to the
plaint
iff's
witne
ss
state
ment)
and
in the
evide
nce
of the
plaint
iff,
but
neith
er the
inves
tigato
r nor
the
forem
an
had
been
calle
d by
the
defen
dant
to
give
evide
nce. I
acce
pt the
versi
on
given
by
the
plaint
iff in
his
evide
nce
at
trial.
Upon
being
instru
cted
by
the
forem
an,
the
plaint
iff
fetch
ed a
ham
mer
and,
holdi
ng it
in his
right
hand,
tried
to
ham
mer
the
bolt
back
into
positi
on. A
fellow
work
er
also
came
to
help
and
he
too
had a
ham
mer.
It
seem
s that
he
tried
to
ham
mer
the
clam
p on
the
other
side
so as
to fit
the
hole
to the
bolt.
It
was
not
very
well
lit
insid
e the
tunne
l.
Altho
ugh
the
plaint
iff
and
his
cowork
er
both
had
their
helm
et
headl
ights
on,
the
lights
shifte
d
with
their
move
ment
s.
After
a
short
while
the
other
work
er
miss
ed
his
target
and
hit
the
plaint
iff's
right
index
finger
inste
ad.
6.
The
plaint
iff
was
imme
diatel
y
taken
to a
panel
docto
r of
the
defen
dant
wher
e
plain
radio
graph
s
were
taken
showi
ng
com
minut
e
fractu
re in
the
middl
e
phala
nx of
the
right
index
finger
. He
was
taken
by a
comp
any
car of
the
defen
dant
to
Quee
n
Mary
Hospi
tal for
treat
ment,
wher
e he
was
admit
ted to
the
Ortho
paedi
cs
Ward
. On
the
next
day
(10
Janu
ary
2014)
he
was
transf
erred
to
Duch
ess
of
Kent
Child
ren's
Hospi
tal.
Privat
e Xray
show
ed
fractu
red
shaft
of
right
index
finger
middl
e
phala
nx
with
ulnar
devia
tion
of
distal
fragm
ent
with
a
butter
fly
fragm
ent.
At
the
plaint
iff's
electi
on,
open
reduc
tion
and
intern
al
fixati
on
with
plate
s and
scre
ws
were
perfo
rmed
on 13
Janu
ary.
He
was
disch
arged
on 15
Janu
ary
2014.
7.
Ther
eafter
the
plaint
iff
atten
ded
physi
other
apy,
occu
patio
nal
thera
py
and
follow
-up
appoi
ntme
nts at
Quee
n
Mary
Hospi
tal as
well
as
David
Trenc
h
Reha
bilitati
on
Centr
e.
8. In
Dece
mber
2014
the
plaint
iff
was
admit
ted to
hospi
tal
again
for
remo
val of
impla
nt
and
tenol
ysis.
Again
physi
other
apy,
occu
patio
nal
thera
py
and
follow
-up
appoi
ntme
nts
were
arran
ged
after
ward
s.
9.
The
plaint
iff
alleg
es
negli
genc
e and
breac
h of
vario
us
statut
ory
dutie
s on
the
part
of the
defen
dant
inclu
ding
the
com
mon
duty
of
care
under
the
Occu
piers
Liabili
ty
Ordin
ance
(Cap
314),
the
duty
to
ensur
e that
the
site
was
safe
and
witho
ut
risks
to
healt
h
under
the
Occu
patio
nal
Safet
y and
Healt
h
Ordin
ance
(Cap
509),
and
the
duty
to
ensur
e that
the
site
was
adeq
uatel
y and
suita
bly lit
under
regul
ation
50 of
the
Cons
tructi
on
Sites
(Safe
ty)
Regu
lation
s
(Cap
59I).
The
plaint
iff
has
not,
howe
ver,
alleg
ed
any
vicari
ous
liabilit
y on
the
basis
that
the
fellow
work
er
was
negli
gent.
10.
As
menti
oned
abov
e, at
the
trial
the
defen
dant
admit
ted
liabilit
y
while
maint
ainin
g the
conte
ntion
of
contri
butor
y
negli
genc
e.
Contr
ibutor
y
negli
genc
e
11.
The
plaint
iff in
effect
admit
ted
that
the
mode
of
opera
tion
he
and
his
fellow
work
er
adopt
ed
involv
ed
risks.
I
acce
pt
that
for
the
two
of
them
to
ham
mer
at the
same
time
in the
oppo
site
direct
ion,
there
was
a risk
of
their
hittin
g
each
other
accid
entall
y.
The
plaint
iff
state
d that
in
norm
al
circu
msta
nces
he
woul
d
have
aske
d his
colle
ague
not to
ham
mer
while
he
hims
elf
was
at it.
Ms
Siu
who
appe
ared
for
the
plaint
iff
subm
itted
that
the
plaint
iff
was
instru
cted
by
the
forem
an
and
had
no
choic
e.
The
forem
an,
howe
ver,
only
told
the
plaint
iff to
fix it
witho
ut
speci
fically
requir
ing
two
work
ers to
ham
mer
toget
her.
What
is
impor
tant
to my
mind
is
that it
was
an
urgen
t
situat
ion.
Ther
e is
no
dispu
te
about
that.
The
plaint
iff
was
calle
d to
deal
with
an
emer
genc
y. In
those
circu
msta
nces
one
could
not
be
too
dema
nding
on
the
plaint
iff in
terms
of his
duty
to
take
care
for
his
own
safet
y. If
there
was
a
failur
e it
was
a
mom
entar
y
lapse
that I
woul
d not
chara
cteris
e as
contri
butor
y
negli
genc
e.
The
forem
an
who
was
also
at the
scen
e did
not
stop
the
two
work
ers
ham
merin
g
toget
her. I
decli
ne to
find
contri
butor
y
negli
genc
e on
the
plaint
iff's
part.
If I
am
wron
g on
this, I
woul
d
asse
ss it
at
only
5%.
Quan
tum
12.
As
state
d in
the
revis
ed
state
ment
of
dama
ges,
the
plaint
iff
claim
s
dama
ges
in the
follow
ing
amou
nts:
PSLA
$400,
000.0
0
Pretrial
loss
of
earni
ngs
and
MPF
$1,09
0,423
.08
Posttrial
loss
of
earni
ngs
and
MPF
$8,31
5,175
.96
Loss
of
earni
ng
capa
city
$150,
000.0
0
Speci
al
dama
ges
$10,0
00.00
Less
Empl
oyee'
s
comp
ensat
ion
recei
ved
($332
,359.
20)
13. At
trial
the
partie
s
came
to
agree
ment
on
certai
n
matte
rs. It
was
agree
d that
the
awar
d for
PSLA
shoul
d be
$200,
000;
speci
al
dama
ges
(for
medi
cal,
tonic
food
and
travel
ling
expe
nses)
shoul
d be
$7,00
0,
and
empl
oyee'
s
comp
ensat
ion
had
alrea
dy
been
recei
ved
in the
sum
of
$347,
294.2
2. It
was
also
agree
d that
if a
multi
plier
is
need
ed it
shoul
d be
17.29
. The
remai
nder
is in
dispu
te.
Loss
of
earni
ngs
gener
ally
14.
By
far
the
large
st
amou
nt in
issue
is the
claim
for
posttrial
loss
of
earni
ngs.
The
plaint
iff
was
born
on
3Oct
ober
1979.
He
earne
d an
avera
ge of
$40,8
97.50
per
mont
h
durin
g
2013,
and
conte
nds
that,
had
he
not
suffer
ed
the
injury,
he
woul
d
have
conti
nued
in the
same
job
and
his
prese
nt
mont
hly
inco
me
woul
d
have
been
20%
highe
r, i.e.
$49,0
77.00
. The
plaint
iff
says
he is
and
will
be
unabl
e to
retur
n to
his
preaccid
ent
job
beca
use
of
resid
ual
right
index
finger
numb
ness,
weak
handgrip
and
pain,
and
will
have
to
chan
ge to
a job
with
lighte
r
dutie
s
such
as a
parttime
secur
ity
guard
earni
ng
aroun
d
$10,0
00
per
mont
h.
The
earni
ngs
and
MPF
lost
are
theref
ore
($49,
077
$10,0
00 +
$1,00
0) x
12 x
17.29
=
$8,31
5,175
.96.
15.
The
claim
for
pretrial
loss
of
earni
ngs
has a
simila
r
basis
. The
plaint
iff
was
given
sick
leave
for
the
follow
ing
perio
ds:
(a) 9
Janu
ary to
12
Febr
uary
2014;
(b)
15
Febr
uary
to 16
June
2014;
and
(c) 5
Dece
mber
2014
to 11
Febr
uary
2015,
follow
ing
the
opera
tion
to
remo
ve
the
impla
nt. A
total
of
225
days
of
sick
leave
was
grant
ed.
16.
After
the
first
two
batch
es of
sick
leave
expir
ed,
the
plaint
iff
work
ed
parttime
as a
secur
ity
guard
from
Sept
embe
r to
Nove
mber
2014,
earni
ng in
total
a
sum
of
$16,5
50.
After
his
sick
leave
expir
ed in
Febr
uary
2015,
the
plaint
iff
found
work
as a
parttime
secur
ity
guard
in
Febr
uary
and
Marc
h
2015
and
as a
parttime
shop
keep
er
betw
een
April
and
Augu
st
2015,
earni
ng a
total
sum
of
$52,6
00.
From
Sept
embe
r to
Dece
mber
2015
he
again
work
ed as
a
parttime
secur
ity
guard
earni
ng
aroun
d
$6,00
0 to
$7,00
0 per
mont
h
(som
etime
s
$5,00
0).
From
Janu
ary
2016
onwa
rds
he
has
work
ed as
a fulltime
secur
ity
guard
earni
ng
$13,0
00
per
mont
h.
17.
The
plaint
iff
claim
s pretrial
loss
of
earni
ngs
by
refer
ence
to his
avera
ge
mont
hly
wage
s
befor
e the
accid
ent of
$40,8
97.50
.
18.
The
critic
al
factu
al
issue
affect
ing
the
claim
for
both
pretrial
and
posttrial
loss
of
earni
ngs
is
whet
her
the
plaint
iff
could
have
retur
ned
to his
forme
r
occu
patio
n at
some
point
after
the
accid
ent.
The
defen
dant
conte
nds
he
could
have
done
so
after
16
June
2014.
The
main
comp
laints
of the
plaint
iff in
this
regar
d are
weak
ness
in
grippi
ng
powe
r in
the
right
hand,
and
pain
and
numb
ness
in the
right
index
finger
.
19.
As
for
numb
ness,
the
plaint
iff
comp
laine
d of
mild
numb
ness
in
this
state
ment
of
dama
ges
dated
Augu
st
2015
but
acce
pted
at
trial
that
the
numb
ness
had
gone
(exce
pt
perha
ps for
some
time
after
he
wake
s up
in the
morni
ng).
Furth
er, it
is
notab
le
that
the
medi
cal
asse
ssme
nts
from
an
early
date
onwa
rds
recor
ded
the
plaint
iff's
sens
ation
in the
finger
as
being
norm
al,
showi
ng
that
there
was
no
signifi
cant
loss
of
sens
ation
repor
ted or
diagn
osed.
20.
The
plaint
iff is
right
hand
domi
nant.
Since
the
accid
ent
he
had
under
gone
perio
dic
tests
of
powe
r grip
stren
gth.
Powe
r grip,
as I
under
stand
the
evide
nce,
meas
ures
the
stren
gth of
the
hand
shak
e
type
of
grip.
Ther
e is
evide
nce
of
subm
axim
al
effort
on at
least
one
occa
sion.
[1]
Neve
rthele
ss,
the
evide
nce,
sum
maris
ed in
the
table
below
,
show
s that
the
plaint
iff
had
since
the
injury
enjoy
ed a
stead
y
incre
ase
of his
right
hand
powe
r grip
stren
gth.
Date
Powe
r grip
stren
gth
(kgf)
Right
Left 7
May
2014
22 40
9
June
2014
24 44
16
June
2014
27.3
43 12
Janu
ary
2015
27 44
26
Janu
ary
2015
28 44
9
Febr
uary
2015
30 42
5
May
2015
38 52
21.
Ther
e has
been
no
furthe
r
asse
ssme
nt
after
May
2015.
Altho
ugh
the
result
s as
of
May
2015
show
that
the
plaint
iff's
right
hand
grip
was
still
less
stron
g
than
the
left
hand,
it had
very
subst
antial
ly
impro
ved
and
was
close
to his
left
hand
grip
stren
gth
durin
g
May
2014
to
Febr
uary
2015.
22.
Ther
e is
no
evide
nce
to
show
what
the
plaint
iff's
hand
grip
stren
gth
was
befor
e the
accid
ent.
Ordin
arily,
for a
right
hand
domi
nant
perso
n
such
as
the
plaint
iff, I
woul
d
expe
ct the
right
hand
grip
to be
stron
ger
than
the
left.
But
the
plaint
iff
had
suffer
ed a
right
thum
b
fractu
re
from
an
indus
trial
accid
ent
about
6
years
ago,
for
which
he
was
given
3
mont
hs'
sick
leave
.I
think
I
shoul
d not
assu
me
that
his
right
hand
grip
was
nece
ssaril
y
stron
ger
than
his
left
hand
grip
prior
to the
prese
nt
accid
ent.
23.
Nor
is
there
any
evide
nce
addu
ced
of
what
the
avera
ge
hand
grip
stren
gth is
for
manu
al
work
ers
gener
ally
and,
in
partic
ular,
const
ructio
n site
work
ers in
Hong
Kong
, or
what
hand
grip
stren
gth is
nece
ssary
for
the
type
of
work
the
plaint
iff
had
to
perfo
rm in
his
positi
on
befor
e the
accid
ent.
Ther
e is
no
evide
nce
to
show
that
turnin
ga
span
ner
and
carryi
ng
pipes
,
which
the
plaint
iff
menti
oned
in
partic
ular
in his
oral
evide
nce,
requir
e
partic
ularly
stron
g
powe
r grip,
as
oppo
sed
to
arm
stren
gth
coupl
ed
with
supp
orting
grip.
24.
Ms
Siu
subm
itted
that
the
plaint
iff's
pinch
/
pince
r grip
was
also
weak
ened.
The
medi
cal
evide
nce
some
times
referr
ed to
pinch
grip
and
some
times
pince
r grip.
It is
not
clear
what
actio
ns in
the
plaint
iff's
work
woul
d
requir
ea
pinch
grip
or a
pince
r grip.
The
asse
ssme
nt on
16
June
2014
show
s the
pince
r grip
stren
gth to
be
3.8kg
(right
) and
7.2kg
(left).
The
pinch
ing
test
as of
5
May
2015
show
s that
the
right
hand
stren
gth
was
5 kg,
comp
ared
to 6
kg for
the
left
hand.
25.
Ther
e is a
comp
laint
of
pain
upon
exerti
on.
Howe
ver,
pain
is by
its
natur
ea
subje
ctive
matte
r. The
evide
nce
that
there
is
show
s
that,
as at
the
date
of the
joint
exam
inatio
n in
Sept
embe
r
2014,
there
had
been
no
musc
le
wasti
ng of
the
plaint
iff's
right
arm.
This
sugg
ests
that
the
plaint
iff
was
not
suffer
ing
from
any
major
right
hand
disab
ility
and
that
the
plaint
iff
had
not
avoid
ed
gener
al
use
of his
right
hand.
It
appe
ars
that
the
plaint
iff's
condi
tion
has
signifi
cantl
y
impro
ved
and
his
right
hand
stren
gthen
ed
since
. In
these
circu
msta
nces
I do
not
acce
pt the
comp
laint
of
pain
as
being
suffici
ent to
prove
the
plaint
iff's
inabili
ty to
retur
n to
his
origin
al
job.
26.
The
OT
rehab
ilitatio
n
outco
me
repor
t of
Quee
n
Mary
Hospi
tal,
base
d on
an
asse
ssme
nt on
4
Febr
uary
2014,
noted
the
plaint
iff's
occu
patio
n as
tunn
el
work
er
and
descr
ibed
its
physi
cal
dema
nd as
heav
y. It
went
on
never
thele
ss to
concl
ude
that
the
plaint
iff's
work
capa
city
and
his
job
dema
nds
matc
h
witho
ut
signifi
cant
limita
tion.
In
their
joint
repor
t the
exper
ts
highli
ghted
that
findin
g.
27.
The
plaint
iff
relies
on
the
opini
on of
his
exper
t, Dr
Chan
, that
the
plaint
iff
woul
d
have
difficu
lty
with
forcef
ul
use
of his
right
hand
such
as in
twisti
ng a
towel
or
using
a
scre
wdriv
er.
His
opini
on
seem
s
howe
ver to
have
signifi
cantl
y
relied
on
the
plaint
iff's
own
comp
laint
of
pain
and
numb
ness.
As
expla
ined
abov
e,
there
is no
longe
r any
relev
ant
numb
ness.
Also,
Dr
Chan
referr
ed to
resid
ual
pain,
numb
ness
and
weak
ness
due
to
adhe
sion.
The
probl
em of
adhe
sion
was
dealt
with
by
the
seco
nd
opera
tion
which
was
perfo
rmed
in
Dece
mber
2014
and
appar
ently
very
succ
essfu
l. Dr
Ho,
the
defen
dant'
s
exper
t,
opine
d that
the
overa
ll
progn
osis
was
good
and
that
the
plaint
iff
shoul
d still
be
able
to
handl
e
instru
ment
s and
tools
and
lift
objec
ts
and
shoul
d be
able
to
retur
n to
his
preaccid
ent
job. I
prefe
r the
opini
on of
Dr
Ho,
at
any
rate
in
relati
on to
the
perio
d
after
Febr
uary
2015.
28.
Ther
e is
no
menti
on in
the
plaint
iff's
witne
ss
state
ment
dated
4
Augu
st
2015
that
the
plaint
iff
made
any
attem
pt to
retur
n to
his
occu
patio
n
befor
e the
accid
ent.
In his
oral
evide
nce
he
said
he
aske
d his
friend
s to
take
him
to
work
in
const
ructio
n
sites,
but
that
when
they
saw
he
had
made
a
claim
for
comp
ensat
ion
and
saw
the
condi
tion
of his
hand
they
did
not in
fact
take
him
to
work.
I find
this
evide
nce
at
best
equiv
ocal.
I am
not
satisfi
ed
that
the
plaint
iff
had
tried
all he
could
to
retur
n to
his
previ
ous
job
but
failed
to
secur
ea
job
beca
use
of his
injury.
29.
On
this
basis
I find
that
the
plaint
iff
has
failed
to
estab
lish
his
claim
for
posttrial
loss
of
earni
ngs.
PreCases.Legal - 56 / 76
trial
loss
of
earni
ngs
30.
As to
pretrial
loss
of
earni
ngs,
it is
agree
d that
the
plaint
iff
suffer
ed
loss
of
earni
ngs
durin
g the
first
two
batch
es of
sick
leave
(from
9
Janu
ary to
16
June
2014)
, as
well
as a
reaso
nable
perio
d
there
after
in
which
he
woul
d be
expe
cted
to
look
for
empl
oyme
nt. Mr
Wong
who
appe
ared
for
the
defen
dant
subm
itted
that a
perio
d of
two
mont
hs
woul
d be
reaso
nable
in the
circu
msta
nces
follow
ing a
5mont
h sick
leave
perio
d.
31.
Mr
Wong
furthe
r
subm
itted
that
the
seco
nd
opera
tion
that
the
plaint
iff
under
went
in
Dece
mber
2014
was
unne
cess
ary
and
was
not
antici
pated
to
impro
ve
the
plaint
iff's
condi
tion.
He
subm
itted
theref
ore
that
no
loss
of
earni
ngs
shoul
d be
given
for
the
third
batch
of
sick
leave
. I do
not
acce
pt
this
subm
ission
. As
Ms
Siu
point
ed
out,
the
seco
nd
opera
tion
was
not
solely
for
the
remo
val of
impla
nt,
but
also
for
tenol
ysis,
in
order
to
remo
ve
the
probl
em of
adhe
sion.
The
range
of
move
ment
of the
plaint
iff's
finger
impro
ved
after
the
opera
tion. I
think
it was
entire
ly
reaso
nable
for
the
plaint
iff to
have
opted
for
the
seco
nd
opera
tion
and
the
perio
d of
sick
leave
grant
ed
was
appro
priate
.
Follo
wing
the 2mont
h sick
leave
,I
acce
pt Mr
Wong
's
subm
ission
that it
woul
d be
reaso
nable
to
allow
one
mont
h for
findin
ga
job.
32.
As to
the
perio
d
betw
een
Augu
st
and
Dece
mber
2014,
on
balan
ce I
am
inclin
ed to
the
view
that
the
plaint
iff
shoul
d be
comp
ensat
ed for
loss
of
earni
ngs
durin
g that
perio
d. His
right
hand
powe
r grip
was
impro
ving
throu
ghout
and
had
by
then
regai
ned
some
stren
gth
but
not
as
much
as it
had
by
2015.
Ther
e
were
still
probl
ems
caus
ed by
adhe
sion
which
were
dealt
with
by
the
opera
tion
in
Dece
mber
2014.
Ther
e
were
still
impla
nts in
the
plaint
iff's
finger
and
tende
rness
in the
scar.
Altho
ugh
the
exper
ts
agree
d that
by
Sept
embe
r
2014
the
plaint
iff
had
attain
ed
maxi
mum
medi
cal
impro
veme
nt, I
think
that
given
the
impla
nts,
adhe
sion
and
proba
ble
loss
of
confi
denc
e in
retur
ning
to a
const
ructio
n site
job
pendi
ng
the
furthe
r
opera
tion
in
Dece
mber
2014,
it
woul
d be
appro
priate
to
comp
ensat
e him
for
loss
of
earni
ngs
durin
g the
perio
d in
quest
ion
as
well.
33.
Ther
e
was
theref
ore
pretrial
loss
of
earni
ngs
(inclu
ding
MPF)
for
the
follow
ing
perio
ds
from
9
Janu
ary
2014
to 11
Febr
uary
2015,
and
for
one
mont
h
there
after,
i.e.
up to
11
Marc
h
2015.
Over
that
perio
d the
plaint
iff
found
some
altern
ative
work
and
earne
da
total
of
$26,6
45
($16,
550 +
$5,75
0+
$11,8
50
11/30
), for
which
credit
shoul
d be
given
. The
rate
of
MPF
was
the
maxi
mum
one,
i.e.
$1,25
0
befor
e
June
2014,
and
$1,50
0 as
from
1
June
2014.
Ther
e
was
a
total
of
141
days'
sick
leave
grant
ed
befor
e
June
2014.
34.
Accor
dingl
y the
amou
nt of
pretrial
loss
of
earni
ngs
may
be
calcul
ated
as
follow
s:
($40,
897.5
0+
$1,25
0) x
141/3
02 +
($40,
897.5
0+
$1,50
0) x
(9 +
11/30
)
$26,6
45 =
$568,
712.8
3
Loss
of
earni
ng
capa
city
35.
Dam
ages
for
loss
of
earni
ng
capa
city is
comp
ensat
ion
awar
ded
for
the
risk
that a
plaint
iff
may
lose
his
empl
oyme
nt in
the
future
, and
the
risk
of
finan
cial
loss
beca
use
of the
disad
vanta
ge in
the
labou
r
mark
et he
suffer
s
from
his
injury.
Both
exper
ts
agree
that
the
plaint
iff
has
suffer
ed a
small
degre
e of
physi
cal
impai
rment
. The
plaint
iff's
exper
t
asse
ssed
it as
4% of
the
whol
e
perso
n; the
defen
dant'
s
exper
t 2%.
I am
more
inclin
ed to
the
defen
dant'
s
exper
t's
asse
ssme
nt,
partic
ularly
havin
g
regar
d to
the
impro
veme
nt of
the
plaint
iff's
condi
tion
after
the
joint
medi
cal
asse
ssme
nt. Mr
Wong
did
not
oppo
se an
awar
d for
loss
of
earni
ng
capa
city
and
sugg
ested
the
figure
of
$100,
000.
The
plaint
iff
has
plead
ed a
claim
for
$150,
000
under
this
head.
The
whol
e
perso
n
impai
rment
was
relati
vely
small
but
the
plaint
iff's
wage
s are
relati
vely
high
comp
ared
to
those
of a
light
duty
nonskille
d job.
Looki
ng at
the
case
in the
round
I
woul
d
asse
ss
loss
of
earni
ng
capa
city
at
$150,
000.
Dispo
sition
36.
Ther
e will
theref
ore
be
judg
ment
for
the
plaint
iff for
dama
ges
under
the
follow
ing
head
s:
PSLA
$200,
000.0
0
Pretrial
loss
of
earni
ngs
and
MPF
$568,
712.8
3
Posttrial
loss
of
earni
ngs
and
MPF
$0.00
Loss
of
earni
ng
capa
city
$150,
000.0
0
Speci
al
dama
ges
(agre
ed)
$7,00
0.00
Less
Empl
oyee'
s
comp
ensat
ion
(agre
ed)
($347
,294.
22)
Total
$578,
418.6
1
37.
Intere
st will
be
awar
ded
on
the
PSLA
awar
d at
2%
p.a.
from
the
date
of
writ
to the
date
of
judg
ment.
Intere
st on
speci
al
dama
ges
and
pretrial
loss
of
earni
ngs
will
be
awar
ded
at
half
judg
ment
rate
from
the
date
of the
accid
ent to
the
date
of
judg
ment.
38.
Ther
e will
be an
order
nisi
of
costs
in
favou
r of
the
plaint
iff.
(Godf
rey
Lam)
Judg
e of
the
Court
of
First
Insta
nce
High
Court
Ms
Rach
ael
Siu,
instru
cted
by
LIMS
, for
the
plaint
iff Mr
CK
Wong
,
instru
cted
by
WMC
Partn
ers,
for
the
defen
dant
[1] An
asse
ssme
nt on
19
May
2014,
wher
e the
coeffi
cient
of
variat
ion
betw
een
differ
ent
attem
pts
exce
eded
15%,
possi
bly
indic
ating
subm
axim
al
effort.
[2]
141
days
of
sick
leave
were
grant
ed
befor
e
June
2014

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