CHAN CHI MING v. SZE HING SANG AND ANOTHER

HCPI 531/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 531 OF 2011

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ASSESSMENT OF DAMAGES

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1. At the material time, the plaintiff was a demolition worker in the employ of the 1^st defendant.  He was deployed to work in a construction site at House B10, Hillgrove, 18 Cape Drive, Chung Hom Kok, Hong Kong (“the site”).  And the 2^nd defendant was the principal contractor of the site and the 1^st defendant was the subcontractor.

2. According to the evidence of the plaintiff which I shall come to shortly, on 28 July 2008, he was instructed by the 1^st defendant to carry out demolition work with a co-worker to demolish the platform of the garden at the 2^nd floor of the site using a portable electric rotary hammer drill.  When he was working at the far left corner of the garden terrace, part of the concrete slab suddenly collapsed.  As a result, the plaintiff fell down from a height of about 12 feet and sustained personal injuries.

3. This action was instituted by the plaintiff to recover his loss and damages against the 1^st and 2^nd defendant.  It is noted that the 1^st and 2^nd named 1^st defendant were bankrupt.  Pursuant to order given by Master R Lai (as he then was) on 16 December 2011 in HCB 6731/2010 and another order of even date given in HCB 8872/2010, leave was granted to the plaintiff to proceed against the 1^st defendant notwithstanding the bankruptcy orders.  Further, the 2^nd defendant was wound up on 2 May 2012 and by an order given by Master Ho on 9 August 2012 in HCCW 57/2012, leave was granted to the plaintiff to proceed with this action against the 2^nd defendant.

4. By an order given by Master J Chow on 31 August 2012, interlocutory judgment on liability was entered against both defendants with damages to be assessed.  Proceedings have been served on the defendants and the official receiver and liquidators.  The defendants are absent and the official receiver and liquidators have elected not to attend for today’s hearing.  I therefore proceed to assess the claim of the plaintiff on ex-parte basis.

5. For today’s assessment, there is only one factual witness, namely the plaintiff himself.  And for medical expert evidence, the plaintiff relied on the expert report prepared by Dr Fu Wai Kee dated 14 March 2012 and by the order of Master J Chow given on 31 August 2012, the said report may be adduced without calling the maker.

6. According to the evidence of the plaintiff, he was born on 2 June 1962 in Mainland China.  He settled in Hong Kong in September 2001.  In Mainland China, he received education up to primary 4 level.  He can read about 60-70% Chinese words but can hardly write in Chinese.  He does not know English.

7. The plaintiff began working at construction site in 2001.  His work was mainly to remove waste, dismantling all unwanted items, such as walls, doors and cupboards.  His position can be called dismantler, chipping gunners, and rock breaking driller.  He was 46 at the time of the accident, and is 51 now.

8. From about January 2007 to the date of accident, ie 28 July 2008, he was employed by the 1^st defendant at the daily wages of HK$700 without double pay or bonus.  His duty was mainly to remove cement walls, brick walls, platforms, floorings and tiles, using a rotary hammer drill or chipping gun.  He became a permanent worker of the 1^st defendant on or about 27 September 2007 with a daily wage of HK$700.  For the month immediately before the accident, his monthly earnings was HK$14,700, representing 21 days’ wages. The plaintiff said in his evidence that for the 10.1 months before the accident, his average monthly salary was HK$14,693.06.  And for calculating his loss of earnings during his sick leave, his counsel Mr Wong invited me to accept his evidence that his pre-injury earning is HK$14,700 per month.  I agree and so found.

9. On 28 July 2008 at about 10 am, when the plaintiff was working with another colleague to demolish the garden platform using a rotary hammer drill, the platform suddenly collapsed.  He fell from a height of about 12 feet and was injured.  After the accident, he lost consciousness briefly and after he came round, he was still not very conscious.  He was sent to the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital (“Nethersole Hospital”) for treatment.

10. The plaintiff gave an account of his injury and treatment in his witness statement.  I am grateful to counsel for summarizing in his written submission the injury and treatment from the various medical report adduced by the plaintiff from the treating clinic/hospital.

11. On admission, the plaintiff was transferred to surgical ward.  According to a medical report dated 24 December 2008 by Nethersole Hospital, on admission to surgical ward, the plaintiff complained of right chest pain, physical examination showed tenderness over the right lower chest.  CT thorax, abdomen and pelvis showed multiple rib fracture (right 10^th to 12^th ribs) and fracture of right transverse processes of L1 to L4.  There was also a small right pneumothorax and pleural effusion.  He was treated with pain control by right paravertebral block on 1 August 2008.  He remained stable and was discharged on 7 August 2008.  The plaintiff had been hospitalized for 11 days.

12. According to a medical report of the Kwong Wah Hospital dated 30 July 2009, the plaintiff attended the Accident and Emergency Department of Kwong Wah Hospital on 25 February 2009 for persistent back pain since the accident in July 2008.  Examination showed tenderness over thoracic spines and right posterior chest wall.  Limbs power was normal.  X-ray of chest, right lower ribs, thoracic and lumbar spines revealed the degenerative changes of lumbar spines but no fracture.  He was prescribed with analgesic and was referred for physiotherapy.

13. According to a medical report prepared by Kwong Wah Hospital dated 23 December 2011, the 1^st appointment for physiotherapy was given on 15 May 2009, but the plaintiff did not turn up.  He started physiotherapy treatment on 15 July 2009.  He complained of upper back pain radiating to the scapular region.  Physical examination showed full range of motion in back but with resting pain over the upper back.  Straight leg raising test was 80 degrees on both sides.  Palpation showed diffuse tenderness and spasm over the upper back muscle.  Treatments including magnetic therapy, heat therapy and exercise therapy were given.  There was over 30% improvement after 9 sessions of treatment.  The plaintiff defaulted the treatment session on 16 October 2009.

14. According to the plaintiff, he returned to the Accident and Emergency Department of Kwong Wah Hospital on 7 January 2010 for right hand pain.  The plaintiff also returned to Nethersole Hospital on 3 February 2010 and 30 April 2010 for persistent pain over injured area.  X-ray on 30 April 2010 showed no abnormality.

15. On 1 March 2010, the plaintiff attended Yau Ma Tei Jockey Club General Out Patient Clinic for low back pain and chest wall pain.  According to a report from Yau Ma Tei Jockey General Out Patient Clinic dated 29 November 2011, the plaintiff tried to resume duty but could not tolerate the persistent pain while lifting heavy object.  The report records that the plaintiff could walk unaided.  There was tenderness over right chest wall around the 8^th to 10^th ribs over posterior right auxiliary line with no bruise was noticed.  No focal tenderness over low back with no limitation of movement was detected.  He was treated with analgesics.

16. Sick leave was given to the plaintiff intermittently from 28 July 2008 to 26 March 2011.  The period has been set out in paragraph 15 of his witness statement which I do not repeat.  A total of 838 days was recommended by doctors. 

17. According to Form 9 dated 26 August 2010 issued by the employees’ compensation (ordinary assessment) board, the injury was described as “ribs fracture resulting in back pain and non-verifiable radicular complaint”.  The loss of earning capacity was assessed at 5% and sick leave was endorsed up to 12 August 2010.

18. The plaintiff said in his witness statement that because of the injury, he can no longer return to his previous job.  He still suffers the following sequela:

(a)  pain at his right chest, especially when he straightens his neck backward or raise his head;

(b)  unable to lie on his left due to the pain in his left chest;

(c)  persistent pain in his cervical, thoracic and lumbar vertebral especially when he raises his head;

(d)  aggravated pain in cervical, thoracic and lumbar vertebral after prolonged sitting, standing or walking (about 15 minutes); and

(e)  intermittent pain in his right knee.

19. According to the plaintiff, he had tried to return to work after the sick leave period.  In about May 2011, he had worked as a general worker at a metal framework site for 13 days.  He earned a total sum of HK$8,500.  However, because of the persistent pain in his cervical, thoracic and lumbar vertebral, he quitted the job.

20. On the referral by the Labour Department, he had applied for the position of security guard at Park Central.  He was not engaged because of his poor standard in Chinese writing.

21. In early August 2012, the plaintiff applied to Easy Living Property Management Limited for the position of security guard.  But he was only employed as a cleaning worker, mainly to water the plants and clean the rubbish in the estate.  His monthly salary was HK$6,944.  When he watered the plants, he had to drag a hose dozens of metres long filled with water, which he estimated to weight about 40-50 catty.  His upper back to lower back were always painful when he dragged along the heavy hose.  In the end, he quitted the job after working for 40 days.  His earning for this period is about $9,034.67.

22. It is not disputed that the plaintiff had studied the relevant course after he recovered and was qualified to be a security guard.  He gave evidence saying that he was not engaged because of his low Chinese education level and that he could not prepare written report properly.  He was unemployed except for the above mentioned engagement.

23. The plaintiff also said in his evidence that but for the accident, he would be prepared to work until 65 or that when his physical strength could not allow him to be a demolition worker.  He agreed that his work required strength but he had seen people of over 60 still working in construction site.  He also said that in recent years, the daily wages of a demolition worker has increased to almost HK$1,000.  Mr Wong invited this court to assess his future earning at the rate of HK$900 per day and to assess some of his loss during sick leave period by using a medium figure between HK$700 and HK$900, namely HK$800 per day.  Statistics prepared by Census and Statistic Department of the Hong Kong Government have been produced and I shall refer to them later.

24. The plaintiff was examined by Dr Fu on 27 February 2012.  In the report, Dr Fu has also referred to the various medical report prepared by the treating clinic/hospitals of the plaintiff which I do not need to repeat.  The plaintiff still complained of right chest pain, left chest pain, neck, thoracic and lumbar spine pain and right knee pain to the expert.  In conclusion, Dr Fu opines that as a result of the accident on 28 July 2008, the plaintiff suffered from fracture right transverse process of L1 to L4 and fracture right 9^th to 12^th ribs with small pneumothorax.

25. Concerning the plaintiff’s complaint of right knee and neck pain, from documents available, neck or knee injury has not been documented all along.  Dr Fu opines that further evidence is required to say the neck and right knee pain is related to the alleged accident.

26. The plaintiff complained of multiple pain over chest and whole spine. Physical examination revealed tenderness over chest with very limited movement of neck and back.  However, the range of movement of neck and back was observed to be much better when distracted.  X-ray of chest revealed good rib fracture healing with normal lung.  The fracture transverse process has also healed well.  The severity of pain and stiffness is difficult to explain on clinical ground.  Dr Fu believed there are non-organic component in his complaints.

27. Dr Fu opines that the plaintiff has reached maximum medical improvement and no further treatment is required.  For this kind of multiple ribs fractures, some residual pains over the fracture ribs are expected.  He will have some problem in performing heavy manual lifting and exertion.  On the other hand, he should have no problem in walking and activities of daily living.  Dr Fu considers the plaintiff cannot return to his pre-accident job that would require climbing and heavy manual lifting.  He should shift to lighter duties such as security guard or cashier.

28. On the appropriate sick leave, Dr Fu opines that the sick leave he received as stated in Form 9 is appropriate.  Since the Form 9 was given in August 2010, the plaintiff has received further sick leave. 

29. I shall now move on to the individual item of claims. 

30. The first head of damages is for PSLA.  Mr Wong referred me to 3 cases when the plaintiff had rib injury.  In particular, he invited me to consider the case of Lam Wai Chun v Tam Chi Wai HCPI 1352/2000.  The plaintiff was aged 51 at the time of the accident and suffered 4 fractured ribs.  She was hospitalized for some 14 days and was on sick leave for 2 months.  She has residual chest pain.  And after accident, she suffered from adjustment disorder.  A sum of HK$300,000 was awarded for PSLA.  Mr Wong accepted that there is no adjustment problem in our case but he asked me to bear in mind the length of sick leave and the plaintiff still suffers from residual pain.

31. He also referred me to the case of Chung Chun Man v Chow Wai Kin HCPI 713/2004.  The plaintiff also suffered multiple injuries including fractures of 4 right ribs, a right pneumothorax, a right lung contusion, liver laceration and laceration to right flank of the abdomen in a traffic accident.  Exploratory laparotomy revealed small lacerations of the liver and spleen causing haemoperitioneum.  He had sick leave from 11 August to 27 October 2001 and from 25 January to 5 May 2002.  At the joint examination 3 years after the accident, the plaintiff still complained of residual tightening pain at the right chest, aggravated even on normal breathing and worse on exertion.  Deputy Judge Muttrie awarded PSLA at HK$350,000. 

32. I consider the injuries of plaintiffs in both cases are more severe than the plaintiff.  I also bear in mind the comments of Dr Fu that some of his pain cannot be explained.  I would not accept the severity of pain as claim by the Plaintiff in full.  While accepting that there would be residual pain from fractural ribs, bearing in mind the sick leave and the other comments by Dr Fu, the appropriate award of PSLA in this case should be $250,000.

33. For the pre-trial loss of earning, Mr Wong divided the plaintiff’s claim into 2 parts.  The first is the period from the date of accident until his last day of sick leave.  The issue I have to decide is whether I should accept the sick leave certificate and the evidence of the plaintiff that he could not work in those days.  It is also the evidence of Dr Fu that he agreed with the sick leave approved by the assessment board in Form 9.

34. It is trite that this court is not bound by the sick leave certificate to conclude that the plaintiff could not work on a certain date.  The defendants have not denied the plaintiff cannot work on the day when he has sick leave certificate.   Having considered all the evidence, I found that the plaintiff cannot return to work until 26 March 2011.

35. And the loss of earning for this period has been considered in DCEC 840/2010. According to the evidence then introduced, the Plaintiff’s earning is $14,700 per month and this has been the figure used for assessing the compensation under the Employees Compensation Ordinance.  Mr Wong invited me to include a provision for MPF. 

36. Mr Wong also invited me to adopt the evidence of the plaintiff that he could earn more from the same job had he not met with this accident, at the rate of $900 per day.  I agree.  For the purpose of calculating the loss of earning during sick leave period, I would adopt the median figure of HK$800 per day and on the evidence of the plaintiff that he works 21 days a month, to assess his loss at $800 x 21 x1.05 = $17,640.  I am aware that in the DCEC action, the plaintiff used the amount of $14,700 as his monthly earning.  The monthly earning in the DCEC action is assessed according to the Employees Compensation Ordinance.  The Plaintiff is entitled to claim his common law claim based on assessment of what he could have earned.

37. Accordingly, the loss of the plaintiff during his sick leave would be HK$(16,800 x 32x1.05) =564,480.

38. It is the plaintiff’s evidence that he cannot return to work after the sick leave.  That must be read together with the expert evidence of Dr Fu, present for the plaintiff.  From the opinion of the expert, the plaintiff could return to work as a security guard or cashier.  And it must follow that he could handle job of similar nature.  It is not disputed that the plaintiff has a certificate for security guard.

39. It is the evidence of the plaintiff that he cannot work as a security guard because he cannot fill in reports.  I would be surprised that if clerical work is a necessity, he would still be granted the necessary certificate for security guard.  .

40. And indeed, the plaintiff has been employed as a cleaning worker.  While he complained that the job he had been employed require pulling a tape containing water of 40-50 catty, that is not a common factor to other cleaning work.  I see no reason why the plaintiff could not obtain other employment as a security guard, cleaning worker, or job of similar nature.

41. After all, evidence shows that there are only a few attempts by the plaintiff to look for work.  Accordingly, I conclude that having considered the evidence of the plaintiff, I fully agree with the opinion of Dr Fu that the plaintiff would have difficulties in returning to his pre-accident work. Nevertheless, he is able to carry out certain work which does not require heavy lifting, including cleaners and security guard.  I am not satisfied with the evidence of the plaintiff that he cannot return to any gainful job as alleged. Accordingly, from the last day of his sick leave allowance, the plaintiff would be able to resume work as a security guard or cashier, but at a lower wage than his pre-accident job.

42. Mr Wong also suggests that there should be a reasonable period for the plaintiff to look for a job.  I accept his submission that 3 months should be allowed, namely from April to June 2011.  The loss would be $16,800 x 3 x 1.05 = 52,920.   But there should be a reduction of $8,500 being his actual earning during this period.

43. As mentioned above, for the purpose of calculating the loss of earning after sick leave lapsed, I would adopt the median figure of HK$800 per day and on the evidence of the plaintiff that he worked 21 days a month.  But there should be deduction on how much he could earn as a security guard.  Mr Wong invited me to adopt the statistic figure of HK8,567 which I agree.  Hence his loss from July 2011 to November 2013 would be ($800 x 21) - $8,567 = $8,233 per month.  And his pre-trial loss after the above mentioned 3 months shall be $8,233 x 29 x 1.05 = 250,694.85.  As I have deducted the earning of a security guide in assessing his loss, to be fair to the plaintiff, I do not deduct his actual earning in August 2012 as his monthly earning is less than my deduction.

44. I shall now move on to consider his loss of future earnings.

45. For assessing the plaintiff’s loss of future earnings, Mr Wong invited me to adopt the daily earning of HK$900 as the plaintiff’s earning.  And on the basis that he works 21 days, his monthly earning would be HK$18,900.  I agree. As I have ruled above, the plaintiff should be able to return to work as a security guard, cleaner or worker of similar alike, his actual loss must be deducted by the possible earning for such jobs.  Mr Wong accepted that the wage of a security guard had also been increased and proposed to follow the statistics that he presented and to take away HK$9,873 from the loss of the plaintiff.  I agree.

46. Mr Wong also referred to me to the judgment of Mr Justice Bharwaney giving in the case of Chan Pak Ting v Chan Chi Kuen [2013] 2 HKC 365. It is held by His Lordship that the net rate of return on investment of 4.5% was no longer valid in Hong Kong.  And for compensation for more than 10 years, the rate of return is 2.5%.  He submitted that according to table 9 of the personal injury table Hong Kong 2013, the multiplier for the plaintiff, assuming he retires at the age of 65, should be 11.52.  He suggests rounding down to 11.

47. There is no evidence on the retirement age of a demolition worker.  The plaintiff said a lot of workers over 60 are still working in the construction site.  He agrees that his job nature require strength.  According to the table, in assessing the correct multiplier, the court should also take into account other factors that would affect the earning capacity.  In this particular case, the exact age of retirement is not clear.  And the plaintiff is not certain whether he could continue to work until 65.  In those circumstances, I would further round down the multiplier to 10.  Accordingly, the future loss of earning is as follows: -

    (HK$18,900 – HK$9,873) x 12 x 10 x 1.05 = HK$1,137,402.

48. The plaintiff also claims a sum of HK$27,537 for loss of earning capacity which represents 3 months’ income of security guard.  I accept that the plaintiff had some disadvantage in the labour market because of his residual pain and I award the same.

49. The plaintiff also claims a total sum of HK$29,405 for medical expenses, travelling expenses and tonic food.  Having heard his evidence and submission by counsel, I allow these items.

50. From the award, there should be deduction on the award under Employees Compensation Action.  The damages are as follows –

a.	PSLA	250,000
b.	Sick Leave	564,480
c.	3 months’ allowance	44,420
d.	Pre-trial loss of earnings	250,694.85
e.	Post trial loss of earnings	1,137,402
f.	Loss of earning capacity	27,537
g.	Special damages	29,405
Less
DCEC award with interest received		428,457.55

51. And for interest, the plaintiff is entitled to interest on general damages at 2% per annum from the day of writ until today and at half the judgment rate on pre-trial loss of earning and special damages.

52. I also give an order nisi that costs of the action be to the plaintiff with certificate for counsel to be taxed if not agreed.  The plaintiff’s own costs shall be taxed according to Legal Aid Regulation.