TSAI SHIH CHIEH v. MOK SIU FAI

1998 PI No.198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES No. 198 of 1998

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ASSESSMENT OF DAMAGES

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1. On 8.4.95. the plaintiff was walking across King's Road when he was knocked down by a private car negligently driven by the defendant. The defendant was subsequently convicted of Reckless Driving in relation to this incident. Judgment in default of Defence was entered against the defendant on 15.5.98. The plaintiff was aged 46 at the time of the accident and 51 at the date of the hearing. He was a long term casual construction site worker.

2. After the accident the plaintiff was taken to Queen Mary Hospital. He was found to be slightly confused with a Glasgow Coma Scale of 13/15 (note 1 below). There were deep lacerations all over his face, including those at the left eyebrow, the upper lip and gum. Debridgement and suturing was done. His right fibula suffered a hairline fracture. The next day he was transferred to the Tung Wah Hospital for convalescence. After he was discharged from the Kwong Wah Hospital on 18.4.95. he received outpatient treatment at the Sai Ying Pun Clinic.

3. When the plaintiff was reassessed on 8.5.95 and 5.6.95. his condition was much improved, and no neurological deficit was found. The complaints were that his right knee was still painful, and an upper incisor tooth was found to be loose. Treatment for these complaints was arranged at the orthopaedic department of the Pamela Youde Nethersole Eastern Hospital. He attended 6 sessions of treatment at the outpatients' department.

4. The plaintiff was examined by Dr Arthur Chiang on 11.9.96. Dr Chiang was not called to give evidence. In his report the doctor's findings regarding the injury to the right knee were : no soft tissue swelling and no tenderness at the fibula fracture area; gait was normal, and thigh and calf circumferences were equal; right patella stress test and grinding test elicited some pain; some tenderness in the fracture area on palpitation; flexion and extension were equal for both knees; power tests for both knees were normal. From the X-rays Dr Chiang found that the fracture of the right fibula had united; the joint space of the right knee was well preserved; the patella articular surface was normal; and the patella alignment was good. However Dr Chiang also found some residual symptoms. He thought that the pain that the plaintiff experienced in the patella stress tests would be unlikely to be severe. He advised a course of physiotherapy treatments to stretch and strengthen the quadriceps, and advised ultrasound treatment of the plaintiff's injured right patella.

5. Dr Chiang reported that facial scar between the plaintiff's left upper lip and nostril was visible but faint. The plaintiff's complaints to Dr Chiang were : numbness in the scar; loosening of the upper 1st and 2nd incisors; pain in the right knee after 1 1/2 hours of walking; pain whenever he squats; pain on rainy days; pain when heavy objects over 20 lbs are lifted; and inability of climbing on to scaffolding.

6. Dr Chiang assessed a 3% impairment of the whole man; and a 5% loss of earning capacity.

7. The plaintiff was examined by Dr Edmund Woo on 29.10.96. in respect of his neurological status. The plaintiff told Dr Woo that he suffered from frequent recurring bifrontal and bitemporal headaches which would sometimes last for hours, and on occasion for days. The plaintiff took over the counter analgesics with only partial relief. About 4 or 5 times a month, these attacks of dizziness and headaches would force him to take a rest during work. He might have to rest for half and hour or more if he was plagued by one of these attacks.

8. In addition the plaintiff complained that he sometimes suffered from vertigo; and occasional giddiness; he has become irritable and short tempered; and that his memory and concentration were impaired. The plaintiff told Dr Woo that the memory lapses some-times resulted in reprimands from his superiors at work.

9. Dr Woo commented that the complaints of headaches, dizziness, impaired memory and concentration were all consistent with a diagnosis of post-concussional syndrome. Dr Woo regarded those complaints as permanent. He found it unlikely that the plaintiff would have any further significant improvement from the symptoms. He assessed the plaintiff to have suffered a 10% impairment of the whole man; and a loss of earning capacity at 10% to 15%. As Dr Woo was not called to give evidence the court was unable to elicit from him details of the basis of these assessments.

10. The plaintiff gave evidence and told the court that he was born on 2.6.48. in China. He worked as a farmer before coming to Hong Kong in 1978. After arriving in Hong Kong he worked in factories before becoming a casual labourer. He is married with 5 children. They are now aged 21 to 29 and self supporting except for the second son who is deaf and unemployed. The plaintiff's wife would occasionally seek casual employment in factories to supplement the family's income prior to the accident. She no longer has any outside employment.

11. At the time of the accident, the plaintiff was a long term casual worker at the construction sites of Sanfield Building Contractors Ltd. His wages were calculated on a daily basis, at a basic wage of $165 per day; with an over-time allowance of $82.50 and a daily meal and travel allowance of $47. In addition he would be awarded an attendance bonus of $495 when he completed 28 days work. He told the court that on average he worked every single day of the month, save for his bi-annual trips to China. Each time he went to China he would stay for about one month.

Pain, Suffering and Loss of Amenities

12. Counsel submitted that the award for PSLA should be in the region of $324,000. In relation to the knee injury Counsel referred me to the cases of Liu Hing Fai v Sandvik Hongkong Ltd & Anor PI No. 934 of 1995; PI No.791 of 1995 [1997] HKLY 445; Luk Chi Yin v Wong Fung Shing PI No. 496 of 1997 [1998] 2 HKLRD L24.

13. In relation to the neurological damage in the form of post-concussional syndrome, Counsel referred me to the cases of Kung Kit Shing v Star Synthetic Flower Factory & Ors (1987) HKLJ 251; Liu Suet Un v Yu Man Fai & Anor (1987) HKLJ 380; Hong Yau Kai v Chan Choi Shun (1988) HKLJ 334; Hong Kong Macau Hydrofoil Co Ltd v Ng Chan Wai & Yeung Ying (1991) HKLJ 126; and Bhaktabahadur Limbu v Lai Chi Por HCA No.A4730 of 1988 (Unrep) HKLY 522.

14. The award for PSLA comprises two elements, pain and suffering, and the loss of amenities. The reference to decided cases are for reference and guidance, but at the end of the day each case must be decided upon its own facts. The pain and suffering, and loss of amenities of the plaintiff can be summarized in this way. His right fibula was fractured near the kneecap. There were deep facial lacerations which needed suturing. He suffered a mild concussion. He was hospitalized for 10 days. His knee hurts whenever he walks long distances and in inclement weather. He cannot squat or climb scaffolding any more. His incisors have been loosened. There is a faint but unsightly scar by his eyebrow and another one near his nose. He suffers from bouts of dizziness and headaches severe enough for him to have to stop work. These headaches can last for hours or days. There has been a change in his personality, he says that he is now irritable and short tempered unlike before. Finally, he says his memory and concentration are impaired.

15. I have considered the authorities submitted, the medical reports, and the points raised by Counsel. In my view this is a case where the award for pain, suffering and loss of amenities should be below the "serious" category in the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. In the light of the injuries, and the factors listed in the paragraph above, a sum of $275,000 is awarded under this head.

Loss of Earnings

16. The Inland Revenue Return for April 1994 to March 1995 at page 74 of the Bundle shows that the plaintiff's income for the year prior to the accident was $101,668. The Inland Revenue Return for April 1995 to March 1996 at page 75 of the Bundle shows that the plaintiff's income for the year of the accident had dropped to $53,002.

17. The plaintiff said that before the accident he would go back to China twice a year, and stay for about a month on each occasion. This practice continued after the accident. This meant that the yearly earnings reflected only 10 months of labour. Using the figures above the plaintiff's approximate monthly earnings before the accident were $10,166.80.

18. After the accident the plaintiff was given sick leave from 9.4.95 to 8.9.95. During this sick leave period he received no income at all. Counsel has helpfully worked out the sick leave period to be 154 days.

19. The loss of earnings during the sick leave period is therefore :

154 x $10,166.80/30 days = $52,189.57

Loss of Earning Capacity

20. The claim for Loss of Earning Capacity was made on the following basis. Counsel said "It is submitted that given actual prejudice has been suffered by the plaintiff and the fact that he is now unable to secure a job as stable as before, and that there is no claim made in respect of Loss of Future Earnings in this action, the court should follow the normal course by awarding a sum roughly equivalent to one year's salary of the plaintiff. See Poon Man Chun v Lee Sau Yee HCA No.A2294 of 1992 (19 April 1994, Kaplan J) HKLJ (1994) 291."

21. Since the hearing I have been given a copy of Mr Justice Kaplan's judgment in Poon Man Chun. Unfortunately Mr Justice Kaplan did not explain what method he used to assess the sum for loss of earning capacity. He said "I think that the justice of this case requires an award under this head limited to $100,000 which is approximately one year's salary." (at the top of page 9 of the judgment)

22. Mr Choi has now supplied me with the following authorities on the assessment of loss of earning capacity : Chan Wai Tong & Anor v Li Ping Sum [1985] 1 WLR 396; Lam Tai Sun v Chow Kam Wah HCA No.5040 of 1987; Lee Hon Chuen v Fung Kin Sang & Leung Chiu HCA No. A1105 of 1989; Chan Si Mui v Kong Hung Keung & Ors HCA No. A4977 of 1991; Siu Kwai Hung v National Fortune Investment Ltd & Anor PI No. 577 of 1995; Chung Hok Sung v Li Kam Ming & Anor PI No 393 of 1995; Chan Kui v Lee Fai t/a Fai Kee Timber PI No.126 1995; Tsang Chung Wan v Li Ming & Ors PI No.1063 of 1996; Leung Biu v Mok Sek Cheung PI No.910 of 1995; Siu Wai Man Ada v Lee Chi Chong & Anor PI No.174 of 1994; Liu Jianhui v Mayho Graham PI No.350 of 1995; Poon Man Chun v Lee Sau Yee HCA No.2294 of 1992.

23. These cases do not appear to support the contention that the courts normally award a sum equivalent to one year's salary for loss of earning capacity, even though they are helpful in providing some guidance in the approach to be adopted.

24. In Chan Wai Tong & Anor v Li Ping Sum [1985] 1AC 466 it was said that

"A claim for loss of 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....Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment."

25. Mr Justice Chan (as he then was) in Siu Kwai Hung v National Fortune Investment Ltd & Anor PI No.577 of 1995 provided the most useful guidance in how the figure for loss of earning capacity should be calculated. The judge first referred to the principles in McGregor on Damages, 15th Edn para 1466 :

"...There is the possibility that the earnings the plaintiff is now making may be cut down because the injury has depreciated his value an an employee, for a partial disability frequently does not affect a man's wages or salary immediately but nevertheless he would seem at a disadvantage in the labour market should he have to look for fresh employment; the courts have accepted that this factor too must be taken into account...An alternative course, with the plaintiff disadvantaged in the labour market, is to make a separate award for this head of damage, distinguishing between the loss of actual earnings-of which indeed there will be none if the plaintiff has continued in employment at the same wage as formerly- and the loss of earning capacity represented by the physical handicap produced by the injury. This is the course which the courts today take in this area. The development along these lines started in the mid 1970s with the decision in Smith v Manchester Corporation - indeed damages for handicap in the labour market are commonly referred to as 'Smith v Manchester damages'- and a cluster of further Court of Appeal decisions-In Moeliker v Reyrolle & Co the need to show a substantial, rather than a negligible, risk of the plaintiff's being thrown on the labour market"

26. The judge went on to quote a passage from the judgment of Browne LJ in Moeliker at (1977) 1 WLR 132, 141 :

"Where a plaintiff is in work at the date of the trial, the first question on this head of damage is : what is the risk that he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful' risk : see Davies v Taylor (1974) AC 207, Lord Reid at p212 and Lord Simon of Glaisdale at p220. Scarman LJ in Smith's case referred to a 'real' risk, which I think is the same test. In deciding this question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of particular cases. For example the nature and prospects of the employer's business; the plaintiff's age and qualifications; his length of service; his remaining length of working life; the nature of his disabilities; and any undertaking or statement of intention by his employers as to his future employment. If the court comes to the conclusion that there is no 'substantial' or 'real' risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.

The court must start somewhere, and I think the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the assessment will not have been reached unless a court has already decided that there is a 'substantial' or 'real' risk that the plaintiff will lose his job at some time before the end of his working life, but it will now be necessary to go on and consider-(a) how great this risk is; and (b) when it may materialise - remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job and finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market - that is, what would be his chances of getting a job, and an equally well paid job. Again, all sorts of variable factors will, be relevant in particular cases - for example, a plaintiff's age, his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both. The court will have to make the usual discounts for the immediate receipt of lump sum and for the general chances of life."

27. Bearing in mind the passages quoted above, I now turn back to the circumstances of the present case. The plaintiff has already been dismissed by Sanfield Contractors. The risk that he might lose his job has become reality. He is now employed on average only 8 or 9 days a month as a casual construction site worker, earning about $350 a day. The plaintiff is now 51 years old. He was only educated up to Form 1 in China. He used to be a farmer, and has no formal training in any trade. Due to his injured knee, he is now unable to climb up any scaffolding in construction sites. This handicap may be very significant to prospective employers looking for construction site workers. It can be seen that all these factors make him extremely vulnerable in the labour market. For these reasons I feel that counsel's submission of an award equivalent to 12 months wages is too modest. In my view a sum equivalent to 18 months wages is more appropriate, after making a discount of 6 months for the immediate receipt of a lump sum, and for "the general chances of life" referred to by the learned judge in Moeliker.

28. The award for loss of earning capacity is therefore :

$10166.80 x 18 = $183,002.40

Loss of Future Earnings

29. No claim has been made under this head of Damages

Out of Pocket Expenses

30. The hospital fees of $54 and $802 are allowed. Out-patient expenses of $80 for the Tung Wah Hospital, $160 for the Sai Ying Poon Polyclinic, and $536 for the Pamela Youde Hospital are allowed. The travel expenses totalling $2478 claimed are unusually high. But there are the special circumstances of the case to be considered. The plaintiff has large family, and it would be reasonable that his wife and 5 children would wish to visit him after the accident, so in the circumstances I am prepared to accept that the sums claimed are reasonable. A sum of $5000 has been claimed for tonic food. In Mui Ling Kwan v Wong Yin Wah [1973] HKLR 465. Briggs CJ said"At least since Shearman v Follandit has been customary to claim as special damages a sum for extra nourishment. And the courts have almost invariably allowed a reasonable sum for such a claim."

31. The sum claimed for tonic food is reasonable and will be allowed.

32. The total award for out of pocket expenses is therefore :

$9560 (being $54+$802+$80+$160+$536+2478+$5000+$450)

Physiotherapy Treatment

33. Dr Chiang had suggested in his report that the plaintiff's injured knee might benefit from a course of 20 physiotherapy treatments. These treatments were estimated to cost about $300 each. The plaintiff has said that he had intended to undergo the treatments but was unable to afford them as yet. I am satisfied that this item is reasonably claimed and will be allowed. The award under this head is $6000 (being $300 x 20).

SUMMARY

PSLA	$275,000
Loss of Earnings	$52189	.57
Loss of Earning Capacity	$183,002	.40
Out of pocket expenses	$9560
Physiotherapy Treatments	$6000
Total Gross Award	$525,751	.97

Interest

34. Interest on the award for PSLA will be awarded at 2% p.a. from the date of the writ 26.2.98.

35. Interest on Loss of Earnings and Out of Pocket Expenses will be awarded at half judgment rate from 26.2.98. until 15.10.99. and thereafter at full judgment rate until payment.

36. I will leave it to the plaintiff's solicitors to calculate the interest.

Costs

37. The plaintiff is awarded his costs of the assessment, to be taxed if not agreed. The plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.