RAI NARAYAN PARSHAD v. CHIT HING CONSTRUCTION ENGINEERING AND OTHERS

HCPI 604/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 604 OF 2008

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BETWEEN

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JUDGMENT

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BACKGROUND

1.  The plaintiff’s claim is for damages for injuries sustained by him on 23 August 2005 by reason of an accident at a construction site in Lamma Power Station (“the Site”).  He was then a construction site worker employed by the 1^st defendant.  The 1^st and 2^nd defendants were the contractors responsible for the construction works at the Site.  The 3^rd defendant was the registered owner of a lorry-mounted crane (“the Vehicle”).

2.  On the day of the accident, the plaintiff was instructed to use slings and chains to fix the position of a mini lorry so that the mini lorry could be loaded onto the truck bed of the Vehicle.  When the plaintiff was proceeding to complete the final adjustments of a sling for the mini lorry to be lifted up by the crane onto the Vehicle, the mini lorry was lifted up by the crane.  As the plaintiff was leaving the underside of the mini lorry, the mini lorry fell down onto the plaintiff.  As a result, the plaintiff suffered the injuries which have given rise to the claim brought in the present Action.

LIABILITY CONCEDED

3.  By a Consent Summons dated 21 July 2011, the parties jointly applied for orders, inter alia, that :

(a)  Interlocutory judgment on liability be entered in favour of the plaintiff against the 1^st, 2^nd and 3^rd defendants with damages to be assessed; and

(a)  The 1^st, 2^nd and 3^rd defendants do pay the plaintiff’s costs of this action on liability and the plaintiff’s costs of, occasioned by and incidental to the Third Party Notice filed on the 4^th day of May 2009 in any event up to the date of the order to be made herein to be taxed if not agreed.

4.  Accordingly, judgment on liability was entered in favour of the plaintiff against the 1^st, 2^nd and 3^rd defendants and an order for costs was made in terms of the orders sought in the Consent Summons.  What follows is my assessment of damages and the reasons therefor.

QUANTUM

Matters agreed between the parties

5.  On the first day of trial, the parties asked for time to discuss and agree certain matters.  The parties eventually informed me that the following matters had been agreed :

(a)  the plaintiff’s pre-accident monthly earnings were $9,299.20;

(b)  the sick leave period required for recovery was 9 months;

(c)  the multiplier to be adopted for calculation of the plaintiff’s future loss of earnings should be 11.5; and

(d)  special damages were agreed at $10,000.

6.  Further, although Counsel for the defendants, Mr Wong Chi Kwong, informed me on the first day of trial that there was a difference between the parties on the issue of the damages which should be awarded to the plaintiff for pain, suffering and loss of amenities (albeit one smaller than had been indicated in the pleadings), in his final submissions, Mr Wong conceded that the plaintiff’s claim of $500,000 for this head of damages is reasonable and is agreed to by the defendants.

The plaintiff

7.  The plaintiff was born in 1969 and was 36 on the day of the accident.  He is 42 at the time of the trial.  In his witness statement, he stated that he had received education up to high school in Nepal. During his testimony during the trial, it was clarified that he had received education up to the Hong Kong equivalent of Form 1 or 2.  He came to Hong Kong in 1996 and since December 1996, he had worked as a general labourer on different construction sites, employed by different employers.  In September 2003, he started working for the 1^st defendant.  By the time of the accident, he was paid $420 per day. 

8.  He says, however, that the 1^st defendant did not offer him sufficient working days, and that he took up a part-time job as an assistant rigger, mainly taking care of the safety of the children who joined the programme in Treasure Island Ltd (“Treasure Island”).  He claims that he earned $520 per day from this part-time job, so that his average monthly income immediately prior to the accident was around $12,000.  Furthermore, the 1^st defendant had made its contribution to his mandatory provident fund at 5% of his monthly income every month.

Injuries and treatment

9.  After the accident, the plaintiff was transferred by helicopter to the Accident & Emergency Department of Pamela Youde Nethersole Eastern Hospital.  At Pamela Youde Nethersole Eastern Hospital, the plaintiff was recorded to have the following clinical findings and injuries :

(i)  Glasgow Coma Scale (GCS) was 12/15;

(ii)  Laceration at the left frontal scalp and bruises at the left parietal scalp, left ear, left side of the neck, left arm and both lower limbs;

(iii)  Skin abrasions at the left shoulder and left half of the trunk;

(iv)  X-ray showed fractures in the left clavicle and right superior public ramus; and

(v)  CT scan showed left frontal epidural haematoma, bilateral parietal brain contusions and small left pneumothorax.

The plaintiff was operated on, the procedures carried out during the operation consisting of craniotomy, clot evacuation and insertion of EVD for intracranial pressure monitoring on the same day.  He was in the intensive care unit until 30 August 2005.  Thereafter, he was transferred to the neurosurgical ward where he remained until 2 September 2005. 

10.  The plaintiff was then transferred to Tung Wah Eastern Hospital on 2 September 2005 for further rehabilitation and physiotherapy treatments.  He was discharged seven days later on 9 September 2005.

11.  A Medical Report of Dr Yuen Ka-hong of Tung Wah Eastern Hospital dated 20 May 2010 recorded that when he was transferred to that hospital, his general condition was good and his blood pressure was normal. There was no focal neurological deficit.  However, the report stated that he was noted to have had deranged liver function since 30 August 2005, a condition which later subsided spontaneously.  The report went on to state that neurologically, the plaintiff showed good rehabilitation progress and he only showed occasional diplopia.  Mentally, he was fully alert and the limb power was normal.  He could walk unaided under supervision although there was mild decrease in dynamic balance.  His Barthel Index was 88/100 upon discharge.  For reasons which will become apparent in the following discussion, the finding that limb power was normal is noteworthy.

12.  On discharge, the plaintiff was required to attend follow-up visits at various clinics including the Orthopaedic Clinic and Department of Neurology in Pamela Youde Nethersole Eastern Hospital, and the Department of Ophthalmology in Tung Wah Eastern Hospital.  He was also referred to undergo physiotherapy at Ruttonjee and Tang Shiu Kin Hospital, where he was required to do some light exercise for the purpose of strengthening his shoulders.

13.  At the follow-up visits to the opthalmological clinic of the Tung Wah Eastern Hospital, the plaintiff complained of diplopia on downgaze consistent with a right fourth cranial nerve palsy.  At the follow-up visits to the neurosurgical clinic of the Pamela Youde Nethersole Eastern Hospital, the plaintiff complained of diplopia and occasional headache with no dizziness or vomiting.  The plaintiff has continued to attend follow-up visits at the neurosurgical clinic of the Pamela Youde Nethersole Eastern Hospital and the opthalmological clinic of the Tung Wah Eastern Hospital.

14.  A report dated 19 May 2010 of Dr Choi Wing Tai (written for Dr Wong Chi Keung, Consultant Neurosurgeon) of the Department of Neurosurgery of the Pamela Youde Nethersole Eastern Hospital reported that at his follow-up visit at the Neurosurgical Out-Patient Clinic on 17 July 2009, he was in stable condition.  His GCS was 15/15 with full limb power but he still had residual headache.  Again, for reasons which will become apparent from the discussion below, the finding that the plaintiff had full limb power is significant and is relied upon by Mr Wong in his final submissions. 

15.  A report dated 12 May 2010 of Dr Wu Kai-wah, Associate Consultant of the Department of Opthamology of the Tung Wah Eastern Hospital, recorded that the plaintiff’s binocular diplopia had slightly improved with time but there was still residual esophoria with left hyperphoria in primary gaze.  The binocular diplopia was worse on downgaze.  It was also reported that the plaintiff was wearing prismatic glasses and that he accepted the then current conditions and was not keen for strabismus surgery.  In the course of the plaintiff’s oral testimony, he stated that he did not need to wear glasses before the accident and that the glasses were prescribed to address the problem of the binocular diplopia he suffers from as a result of the accident.  However, he added that whilst the glasses alleviated the problem, they did not fully correct it.

The medical expert evidence

16.  Dr Lam Kwong Chin, Dr Cheung Sek Hong and Dr Edmund Woo, the parties’ joint experts, each conducted examinations and assessments of different aspects of the plaintiff’s condition :

(a)  Dr Lam assessed and reported on the plaintiff’s orthopaedic condition;

(b)  Dr Cheung assessed and reported on the plaintiff’s opthalmological condition; and

(c)  Dr Woo assessed and reported on the plaintiff’s neurological condition.

Dr Lam’s evidence

17.  Dr Lam examined the plaintiff on 1 December 2006.  His report is dated 21 December 2006.  He recorded the following significant findings from his examination of the plaintiff :

(a)  The plaintiff could stand on his right side single-legged with stability but was less steady on his left side.

(b)  The plaintiff could stand on tiptoes but was unsteady if he walked on them.

(c)  There was a 20 cm surgical scar at the forehead and the plaintiff complained of tenderness at the forehead, left temporal and occiput.  He also complained of numbness of his left face.

(d)  The plaintiff complained of numbness of the left side body.

(e)  The plaintiff complained of numbness of the whole left upper limb.

(f)  There was bony prominence at mid clavicle, with minimal tenderness.

(g)  The plaintiff complained of numbness of the whole left lower limb and of tenderness at the left groin.

18.  In his commentary on the plaintiff’s condition, Dr Lam left the assessment of the plaintiff’s head and eye injuries to the neurological and opthalmological experts respectively.  He commented that the plaintiff’s recovery from both his chest and abdominal injuries were good and there was no ratable permanent impairment.

19.  As regards the shoulder injury, Dr Lam noted that the plaintiff did not have specific complaint about his left shoulder at the assessment.  His examination of the plaintiff showed that he had a bony prominence at mid clavicle with minimal tenderness, corresponding to the fracture site.  The shoulder movement was good and an X-ray showed that the fracture had healed in good alignment, with slight prominence over the fracture site.  Dr Lam commented that the fracture of the clavicle was not a serious fracture and that in general, shoulder movement was not affected.  The functional recovery was already a good one and the residual impairment was 1% of the whole person.

20.  Dr Lam’s views on further treatment and prognosis were that if only the clavicular fracture was considered, there was no physical hindrance for the plaintiff to return to work as a construction site worker or to have any type of manual work suitable for an average male of his age, body build and working experience.

Dr Woo’s evidence

21.   Dr Woo examined the plaintiff on 5 January 2007.  In his report dated 10 January 2007, while discussing the history of the plaintiff’s injuries and treatment, Dr Woo noted, inter alia, the following :

(a)  At the follow-up visits to the opthamological clinic of the Tung Wah Eastern Hospital, the plaintiff complained of diplopia on downgaze consistent with a right fourth cranial nerve palsy.

(b)  At the follow-up visits to the neurosurgical clinic of the Pamela Youde Nethersole Eastern Hospital, the plaintiff complained of occasional headache only.  He had no dizziness or vomiting.  He walked unaided.  The diplopia was noted.

(c)  The plaintiff alleged when he saw Dr Woo that he had headaches since the accident.  It was described as a constant pain at the top of his head and was said to have been present all day every day since his injury.  It was aggravated when he looked up, at which point he might lose his posture and fall down.  The plaintiff asserted that he had not been given any analgesic medications by the doctors at the Neurosurgical Out-patient Clinic of the Pamela Youde Nethersole Eastern Hospital except on one occasion about a month before he saw Dr Woo; he was prescribed 3 drugs for a week but they had no beneficial effect on his headache. He did not take any over-the-counter analgesic medication either.

(d)  The plaintiff related dizziness.  It may be associated with vertigo.  It occurs when he is standing or when he lies in a supine position.

(e)  The plaintiff complained of diplopia on looking down which was not corrected by head tilt to either side.  The plaintiff also claimed that he would vomit if he tilted his head to either side but Dr Woo noted that the plaintiff demonstrated such tilting repeatedly during the interview but showed no sign of any discomfort, nausea or vomiting.

(f)  The plaintiff noted an impairment of his memory.  He may forget where he had placed his belongings.  He may lose his train of thoughts.

(g)  The plaintiff complained that the left side of his body, from head to toe, was numb and insensitive to pain.

(h)  The plaintiff claimed that he had not returned to any gainful employment since the accident, nor had he made any attempt to do so.

22.  Dr Woo reported that on neurological examination, it was found that on mental state examination, the plaintiff demonstrated impairment in tests of calculation and concentration.  Other tests of cognitive functions, including orientation, registration, memory, language, general knowledge and abstract thinking, were normal and his responses appeared prompt and accurate.

23.  Segmental examination showed normal fundoscopy and visual fields.  His extraocular eye movements were full but he complained of diplopia on downgaze; it was not corrected by head tilt to either side.  When he wrote, he closed his left eye in order to minimize the effect of the diplopia.  There was no nystagmus, not even on rapid changes in body positions. His neck was supple with a full range of movements; there was no paracervical muscle spasm.  In the limbs, there were no focal motor deficits.  All deep tendon reflexes were normally present and symmetrical.  Both plantar responses were flexor.  There were no primitive reflexes or paratonia to suggest frontal lobe dysfunction.

24.  On testing sensation, the plaintiff demonstrated partial nociceptive and proprioceptive loss down the entire left half of the body.  The margin of nociceptive loss on the trunk extended over onto the right paramedian chest wall and abdominal wall.  In the test of vibration sense on the forehead, the plaintiff related that vibration was normally perceived when the tuning fork was placed on the right but it was significantly impaired when the tuning fork was placed on the left.

25.  Dr Woo noted that the plaintiff’s co-ordination, gait and station were normal. 

26.   Dr Woo’s comments on the plaintiff’s condition were as follows :

(a)  As a result of the head injury, the plaintiff had residual headache, non-specific dizziness and subjectively impaired memory, akin to the diagnosis of a mild post-concussional syndrome.  There was no cognitive, vestibular or physical deficit.

(b)  He had diplopia on downgaze.  The characters of the diplopia was suggestive, though atypical, off a fourth cranial nerve palsy.  In such a cranial nerve palsy, the extraocular eye movements often appear normal but the diplopia is typically pronounced on boundaries and is corrected by head tilt.

(c)  As only 17 months had elapsed since the injury, further improvement in the plaintiff’s neurological functions may be expected in the next 7 months (that is, until 2 years after the accident).  As it stood at the date of Dr Woo’s report, the post-concussional syndrome accounted for 2%, while the diplopia (equivalent to mild visual loss) accounted for 20%, using a combined total of a 22% of the whole person.

(d)  The plaintiff had received appropriate treatment.  There was no further pharmacological or surgical treatment and there was no indication of any regular neurological/neurosurgical evaluation.

(e)  The plaintiff’s diplopia would limit his ability in taking up his pre-injury occupation as a general labourer on construction sites.  He was more suited for simple manual tasks such as messenger or delivery worker.

(f)  Most recovery of neurological functions after a severe head trauma occurs within the first year of the accident, although some further, minor improvement can continue up to 2 years.  With the plaintiff’s head injury and his favourable early clinical course, he should have recovered sufficiently by August 2006 (one year after the accident) to be able to resume gainful employment.

(g)  The sensory impairment down the left side of the plaintiff’s body deserved mention. 

His extradural haematoma and cerebral contusion were sited over the left frontal region.  If such intracranial lesions should cause sensory loss, the sensory loss should affect the right, and not the left, half of the body.  Vibration sense on the forehead is perceived by bone conduction so that its intensity should be the same irrespective of whether the tuning fork is placed on the left or the right.  The plaintiff related that he could perceive the vibration when the tuning fork was placed on the right but significantly less so on the left.  This was non-physiological.

In a left hemisensory loss, the margin of the nociceptive impairment should be at the left paramedian region; this is due to overlapping sensory innervation across the middle line from the contralateral right site.  In the plaintiff’s case, the margin of the sensory loss was on the right paramedian region.  This was again non-physiological.

The above discrepancies militated against an organic neurological basis for the plaintiff’s alleged sensory impairment on the left half of his body.  Such symptoms were more likely to be the residual effect of the bruises he sustained during the acute phase of the accident.

Dr Cheung’s evidence

27. Dr Cheung examined and assessed the plaintiff on 17 July 2007.  His report was prepared on 17 October 2007.

28.   Dr Cheung noted the following from his examination of the plaintiff :

(a) Corrected distant visual acuity was 0.8 for each eye with optical corrections of -1.50D (that is shortsightedness of 1.5 dioptres) and -).25/ -0.25 x 90° (that is shortsightedness of 0.25 dioptre and astigmatism of 0.25 dioptre at 90° axis) for the plaintiff’s right and left eye respectively.

(b) Intraocular pressure was measured to be within normal limits.

(c) Ocular motility examination showed vertical binocular diplopia with a slanting angle between the 2 images for all downward directions of gazes.  It was worst for laevodepression (that is down-and-left direction of gaze) and least on dextrodepression (that is down-and-right direction of gaze).

(d) The rest of the plaintiff’s ocular examination was unremarkable.

29.   In his discussion of the plaintiff’s condition, Dr Cheung commented, inter-alia, as follows :

(a) The plaintiff suffered from bilateral trochlear nerve paresis as a result of his head injury. This caused the symptom of binocular diplopia which was worse on looking down, such as when reading and walking down the staircase.

(b) The plaintiff had had serial Hess chart investigations which were performed on 27 October 2005, 8 December 2005, 6 January 2006, 7 February 2006 and 7 March 2006.  Dr Cheung explained that Hess chart investigation investigates the action of individual extraocular muscles of each eye.  Serial Hess chart investigations therefore identifying the muscle(s) which is/are affected by the nerve paresis, and document its or their recovery, and the muscle sequelae in response to the underaction of the muscle(s) and their progression and recovery.

(c) As judged from the Hess chart investigations, the plaintiff suffered from underaction of superior oblique muscles of both eyes and the muscles sequelae.  They then progressed and recovered with passage of time.  Hess chart investigation on 7 March 2006 showed that the plaintiff had generally recovered from bilateral trochlear nerve paresis.  Investigation on the state showed mild residual underaction of superior rectus muscle of his left eye.

(d) The above findings corresponded to the plaintiff’s symptom of vertical binocular diplopia on looking down which was worse for laevodepression.

(e) Binocular single vision chart which was performed on 7 February 2006 showed that the plaintiff’s field of binocular single vision was impaired. It extended 65° superiorly, 30° to the left, 50° to the right and 20° inferiorly.

(f) As was pointed out by the plaintiff himself, he had difficulty in walking down staircases.  He needed to close one eye, usually his right eye, when walking down the staircases.  Otherwise, he would experience binocular diplopia.

(g) It was therefore not advisable for the plaintiff to return to his pre-incident job as a manual labourer at construction sites because this might involve walking up and down staircases, climbing up and down skeletons etc.  He should refrain from operating dangerous machinery.

(h) The kinds of jobs which the plaintiff could do included caretakers, car park attendants, messengers, etc.

(i) The plaintiff had not exaggerated his visual handicap.  His complaints were genuine.

(j) The plaintiff should be able to commence on the jobs listed in (h) after July 2006.

Summary

30. As the parties have agreed on the amount of damages which should be awarded to the plaintiff in respect of pain, suffering and loss of amenities, the more important aspects of the medical evidence pertains to his loss of earnings.  In this regard, whilst Dr Lam concluded that if only the plaintiff’s clavicular fracture was considered, there was no physical hindrance for him to return to work as a construction site worker or to have any type of manual work suitable for an average male of his age, both Dr Cheung and Dr Woo concluded that the plaintiff’s diplopia condition would preclude his ability in taking up his pre-injury occupation as a general labourer on construction sites and that the plaintiff is suited for simple manual tasks such as messenger, delivery worker, caretakers or car park attendants, etc.

Pain, suffering and loss of amenities (“PSLA”)

31. As I have indicated above, the defendants have conceded that the plaintiff’s claim of $500,000 under this head of damages is reasonable.  I accordingly award such sum for PSLA.

Pre-trial loss of earnings

The parties’ contentions

32.   In the Revised Statement of Damages dated 9 August 2010, it was contended by the plaintiff that after the sick leave period, taking into account that the plaintiff may be able to perform light duty work such as cashier, caretakers, car park attendants, messengers and the salary for those jobs is approximately $5,000, the plaintiff’s loss of earnings before the notional trial date was :

[$9,785 x 9 months x 1.05] + [($9,785 – $5,000) x 63 x 1.05] = $408,996

33. The figure of $9,785 was, of course, the figure which the plaintiff contended was his average monthly salary before the accident.  The figure of 9 months represented the period of sick leave and the number 63 represented the number of months from the expiration of the sick leave to the notional date of trial.  What is, however, important in what was pleaded in the Revised Statement of Damages is that the plaintiff accepted that he may be able to perform light duty work and that his monthly income from such work should be taken into account and deducted in the calculation of his pre-trial loss of earning.

34. In the plaintiff’s Opening filed the week before the trial, it was indicated that the plaintiff intended, subject to obtaining leave from the Court, file further evidence together with a Re-revised Statement of Damages before the commencement of trial.  There was, however, no indication what amendment(s) would be sought to be made to the Revised Statement of Damages.  In any event, no application for leave to further amend the Amended Statement of Damages was ever made.  Nor did counsel for the plaintiff, Mr Albert Cheung, indicate in his opening oral submissions that the plaintiff would contend for a different case in relation to pre-trial loss of earnings than what had been pleaded in the Revised Statement of Damages.  Instead, all that was stated in the plaintiff’s Opening in relation to pre-trial loss of earnings was a repetition of the figure of $9,875 average income per month and the sick leave period of 9 months.

35. It was accordingly surprising that in the plaintiff’s Closing, Mr Cheung sought to argue, as his primary case on pre-trial loss of earnings, that for the period after the expiry of sick leave, save for the period from mid-November 2010 until the trial (when the plaintiff had been able engaged in employment earning him $2,400 per month) and save for the deduction of a very small amount of $3,600 which the plaintiff said he had been able to earn from work he had done between April and September 2008, the plaintiff should be entitled to claim the full amount of $9,299.20 monthly (being the agreed amount of the plaintiff’s pre-accident monthly earnings) without any deduction made for income which could be earned from light duty work as had been conceded in the Revised Statement of Damages should be made.

36. Mr Cheung argued, as his alternative, fallback position, that after the expiration of the sick leave period, a further 6 month period should be allowed for the plaintiff to look for new employment and that from December 2006 to trial, a deduction of $5,824 per month should be made from the agreed pre-accident monthly income of $9,299.20.

37. Mr Wong objected to the plaintiff’s attempt (under his primary case) to resile from his case as pleaded in the Revised Statement of Damages.  He argued that the plaintiff should not be allowed to do so as the plaintiff’s case, as pleaded in the Revised Statement of Damages, was what the defendants had taken into account in taking steps to protect their position on costs.

38. For his part, Mr Cheung argued that the plaintiff should not be held to his case as pleaded in the Revised Statement of Damages. Referring to the word “notional” in that pleading to refer to the date for trial, he argued that all the figures pleaded were notional.

39. I drew Mr Cheung’s attention to para. 18/12/52 of Volume 1 of Hong Kong Civil Procedure 2011 where it is stated as follows, in relation to the statement of special damages in personal injury cases :

“It should be emphasised that such a statement takes on the character of a pleading, so that it cannot be departed from at the trial, unless prior leave to amend is obtained. It constitutes the further and better particulars of the allegation that the plaintiff has suffered loss and damage.”

40. I asked Mr Cheung if he was able to point to any authority to the contrary effect.  Mr Cheung informed me that he was not able to do so.

41. In the light of the foregoing, I am not prepared to allow the plaintiff to resile from the concession made in the Revised Statement of Damages.  As the learned editors of Hong Kong Civil Procedure 2011 have opined (and no authority to the contrary has been drawn to my attention), the statement of damages cannot be departed from at the trial, unless prior leave to amend is obtained.  Despite having indicated that an application to amend the Revised Statement of Damages would be made, no application was in fact made by the plaintiff to do so.  Nor did Mr Cheung even mention in his opening submissions that the plaintiff would be contending for a different case than that pleaded in the Revised Statement of Damages.  The defendants would accordingly have conducted their case during trial based on their understanding of the plaintiff’s case as pleaded.  Further, as Mr Wong has argued, the plaintiff’s case, as pleaded in the Revised Statement of Damages, was what the defendants had taken into account in taking steps to protect their position on costs.  The plaintiff cannot accordingly be allowed, only in his closing submissions, to put forward a different case to that contended for in his pleading.

42.   In the light of my ruling above, the plaintiff’s case (being his alternative, fallback case) on pre-trial loss of earnings is as follows :

Sick leave		[$9299.20 x 9 months x 1.05]
6 month period for the plaintiff to look for new employment		[$9299.20 x 6 months x 1.05]
Employment from Dec 2006 to present		[($9299.20 - $5824) x 57 x 1.05]
Less wages earned from 1 Apr 2008 to 26 Sep 2008		Less $3600
Total		$350,853.12

43.   The defendants, on the other hand, contend that the pre-trial loss of earnings should be awarded as follows :

Sick leave		[$9299.20 x 9 months x 1.05]
3 month period for the plaintiff to look for new employment		[$9299.20 x 3 months x 1.05]
Employment from August 2006 to present		[($9299.20 – $7428) x 60 x 1.05]
Total		$297,218.88

44. The matters in controversy between the parties in relation to the plaintiff’s pre-trial loss of earnings are accordingly :

(a) the reasonable length of time which should be allowed for the plaintiff to look for alternative employment after the expiry of the agreed sick leave period; and

(b) the notional income that the plaintiff would be able to earn with his present disabilities.

The plaintiff’s evidence relating to his post accident employment

45. In the plaintiff’s witness statement dated 25 August 2009, he stated that after his sick leave period, he asked his friends and relatives to refer suitable jobs to him but without success.  However in his affirmation dated 7 June 2010, the plaintiff stated he was unemployed for the period from 1 August 2006 up to the date of his affirmation except for the period between 1 April 2008 and 26 September 2008 during which time he had a part-time job as a security guard at Treasure Island.  He also stated that he was paid $3600 which he received in the form of cash for this job.  The plaintiff had, in his witness statement, stated that he had worked for Treasure Island before the accident at times when the 1^st defendant had not offered him sufficient working days.  At the time, he had a part-time job as assistant rigger and his job duty was to take care of the safety of the children who joined the programme in Treasure Island.

46. In his oral testimony during trial, the plaintiff testified that he is now working for a company called ISS Facility Service Ltd and had done so since November 2010.  He stated that he works 6 days a week for 3 hours per day and that his work involves being a cleaner in a garment shop.  He is one of 2 cleaners working there and his main duty is to wipe and clean tables and glass whilst his colleague cleans and sweeps the floor.  He is paid $30.77 per hour.

47. Under cross-examination, the plaintiff claimed that he works only 3 hours per day because he is unable to find a full-time job.  He claimed that he had tried without success to find a job as a security guard as well as in building management.  He said that he could not find a job in building management because he speaks only a little Chinese.  He also said that he speaks a few words of English.

48. The plaintiff claimed that if he is able to find a full-time job, he would be prepared to do it but that he could only work 6 to 7 hours.  He said that he had found some jobs which required him to work 10 to 12 hours, but that he is unable to work such long hours because he is unable to concentrate.  He has eye problems and if he looked at something for a long time, he would have neck pain.  He also claimed that the whole of his left side is impaired and that he could sometimes not feel his left side.

49. The plaintiff also claimed that he cannot lift more than 4 to 5 kg on his left hand and that his left hand cannot hold anything for a long time.  He said that his left hand cannot lift like his right hand but he admitted that he is right-handed.  He said that his left hand is not working properly.  He said that his left hand is not like before and that he still has problems with it.  When it was pointed out to him in cross-examination that Dr Lam had recorded in this report that the plaintiff “did not have any specific complaint at left shoulder”, the plaintiff claimed that he did tell Dr Lam that his shoulder was painful but that Dr Lam had not written this down.

50. When asked about his work at Treasure Island in 2008, he said that his duties there involved looking after children from 7 p.m., when he started work, until 10 p.m. He was then allowed to sleep (when the children went to bed) unless any of the children called him to assist them.  He admitted that his duties there were fairly light.  However, he claimed that he was unable to continue to work at Treasure Island because he could not do the work there.  This was because he had a severe headache problem and that after his headache he could not see properly and had double vision.  He claimed that he could not sleep and that he would have a headache when he woke up.  Therefore, having worked there for about 7 days over a period of about 1 to 2 months, when he was called again twice to go work at Treasure Island, he did not go. 

51. He claimed that his duties at Treasure Island in 2008 differed from his duties there prior to the accident because he could no longer do the same work that he was able to do prior to the accident.  When asked what work it was that he was unable to do after the accident, he said that he was no longer able to distribute food to children because he had visual problems and he could not concentrate because of headaches.

52. He reiterated that after the accident he had tried to but could not find a job because of language problems and his eye problem.  He claimed that he could not find a full-time job as he could only do light jobs, was unable to lift heavy things and could not work long hours.  He claims that he had been called to attend an interview for the position of car park attendant, but because of language problems, he was disqualified.  He also claimed that he had made 2 attempts to seek employment as a caretaker but have been unsuccessful with both attempts because he was not able to read and write Chinese.  He mentioned that he had found jobs in construction sites but when Mr Wong asked him about these, he said that his friends did not want to take him to construction sites.

53. When asked if he had approached the Labour Department to look for a job, he initially said that he always tried to find jobs through his network of Nepalese friends and so he did not go to the Labour Department.  He said that he did not go because he knew that if he went there, there would be the same language problems that he had previously encountered.  When challenged that he had not gone to the Labour Department because he had no real intention to get a full-time job, he said he would not find any light jobs in the Labour Department and that he would be able to find many jobs through his network of friends if he was physically capable.

54. However, when further challenged as to why throughout the past 5 years, he had not even made one attempt to go to the Labour Department to seek work, he claimed that he had in fact gone to the Labour Department to check for jobs but that he had not found any light jobs or jobs suitable for him.  He said that he had gone to the Labour Department to see what jobs were available but that as he did not think he would get jobs through the Labor Department, he had never applied.

Reasonable length of time to look for alternative employment after the expiry of the agreed sick leave period

55. Mr Wong accepted that the courts would usually allow a reasonable period for the plaintiff to look for alternative employment.  He submitted that the courts will usually adopt a period of 3 months as reasonable.  In particular, he referred to Gurung Tiki Maya v. Shum Shing Cheung & Another, HCPI 168 of 2008, unreported, 20 February 2009, in which Sakhrani J had allowed 3 months for a Nepalese lady who, like the plaintiff in this case, had been injured whilst working in a construction site, to look for alternative employment.  In that case, sick leave had been agreed at 14 months and, the court had found that the plaintiff was unable to return to her former job in a construction site.  Although the medical evidence, which the court accepted, was that the plaintiff could work in a job of a nature not requiring heavy exertion like clerical duties, petty cleaner, office work, cashier and car park attendant, the court found that the choice of alternative jobs was limited in view of her language skills since she did not speak English and spoke only limited Cantonese.

56. Mr Wong also referred to Iau Kau Ih v. Wan Kei Geotechnical Engineering Company Ltd & Ors, HCPI 130 of 2001, unreported, in which Deputy High Court Judge B. Yu, SC took into account the then prevailing poor economic climate and allowed what he stated to be “a generous period” of 4 months for the plaintiff (who was unable to return to his pre-accident employment as a welder in a construction site) to look for alternative employment.

57. Mr Cheung, however, contends that the reasonable period which should be allowed for the plaintiff to look for alternative employment, taking into account the plaintiff’s personal background, is 6 months.  He relies on Ha Ka Hei v. Décor One Design & Engineering Ltd, HCPI 105 of 2010, unreported, 17 June 2011, in which Master K.K. Pang allowed a period of 6 months for the plaintiff to seek alternative employment.  It is, however, not clear why the learned Master allowed the period of 6 months in that case.  I note also that the learned Master arrived at his findings in that case without the assistance of competing evidence or arguments as the defendant had not entered an appearance in the action.  Nor has Mr Cheung explained what it is about the plaintiff’s personal background which makes a period of 6 months appropriate.

58. I am of the view that the plaintiff’s personal background is very similar to that of the plaintiff in Gurung Tiki Maya v. Shum Shing Cheung & Another.  Like the plaintiff in that case, the plaintiff used to work on a construction site, is unable to return to his former employment on construction sites because of his injuries and is only able to undertake unskilled work such as messenger, delivery worker, caretaker or car park attendant.  Further, like the plaintiff in that case, the plaintiff is Nepalese and has limited ability to speak English and Cantonese.

59. Given that the parties have agreed that the sick leave period required for recovery was 9 months, the plaintiff should have been able to start looking for employment in or about the end of May 2006.  There is no evidence before me about the state of the economy or the job market at the time (which was, as I have noted above, a factor which Deputy High Court Judge B. Yu, SC took into account in Iau Kau Ih v. Wan Kei Geotechnical Engineering Company Ltd & Ors in allowing a “generous period” of 4 months for the plaintiff in that case to seek new employment).  Nor has Mr Cheung invited me to take those matters into account in arriving at my decision as to what was a reasonable period for the plaintiff to seek alternative employment.  I find that it would be reasonable to allow the plaintiff a period of 3 months after the expiration of the sick leave period to seek employment.

Notional monthly income which the plaintiff would be able to earn with his present disabilities

60. Mr Cheung contended that the notional monthly income which the plaintiff would be able to earn should be taken to be $5,824.  This figure is arrived at by multiplying the current minimum wage of $28 by 8 hours and then taking that the plaintiff would work 26 days per month ($28 x 8 hours per day x 26 days per month = $5,824).  The authority cited by Mr Cheung in support of this approach was again Ha Ka Hei v. Décor One Design & Engineering Ltd.

61. Mr Wong argued, relying on the Average Monthly Salaries of Selected Occupations dated 27 September 2010 published by the Wages & Labour Costs Statistics Section of the Census & Statistics Department, that assuming the plaintiff could return to work as a security guard, he would be able to earn at least $7,428 per month.  Mr Wong also argued, in the alternative, that if the Court finds that the plaintiff is able to perform work as a cleaner, adopting the plaintiff’s current hourly wage ($30.77) and assuming the plaintiff works 9 hours per day and 26 days a month, his notional monthly income would be $7,200.18 ($30.77 x 9 hours x26 days).

62. Whilst I accept the plaintiff’s evidence that he has, by reason of his limited ability to speak Chinese and English, had some difficulty in gaining employment in certain jobs which Dr Woo and Dr Cheung opined he was capable of performing, I am of the view that the plaintiff has exaggerated his inability to find full-time employment.  I find his explanations as to why he could not continue to work at Treasure Island, why he can only undertake light jobs and why he is only able to work 6 to 7 hours per day unconvincing.  I find that he has exaggerated the continuing effects of his injuries.

63. In particular, the plaintiff’s claims that his left hand is weak, that he still has problems with it and that he cannot lift heavy objects are at odds with the medical evidence.  As noted above, Dr Lam’s opinion (even as at December 2006) was that the plaintiff’s recovery from his physical injuries were good, there was no ratable permanent impairment and there was no physical hindrance for the plaintiff to return to work as a construction site worker or to have any type of manual work suitable for an average male of his age, body build and working experience.  This is confirmed by the Medical Report of Dr Yuen Ka-hong of Tung Wah Eastern Hospital dated 20 May 2010 which recorded that the plaintiff’s limb power was normal and by the report dated 19 May 2010 of Dr Choi Wing Tai of the Department of Neurosurgery of the Pamela Youde Nethersole Eastern Hospital which reported that at the plaintiff’s follow-up visit at the Neurosurgical out patient clinic on 17 July 2009, he had full limb power.

64. Additionally, the plaintiff’s claims that he is unable to concentrate, that he would have neck pain if he looked at something for a long time, that the whole of his left side is impaired and that he was unable to sleep is not reflected in or supported by any of the medical evidence including the evidence of the joint medical experts.

65. I also find the plaintiff’s testimony about whether or not he had sought to find work through or with the assistance of the Labour Department contradictory and implausible.  As I have noted above, whilst he initially stated that he had not gone to the Labour Department to seek assistance with finding employment but had relied on his friends to try to find work, he changed his story and said that he had in fact gone to the Labour Department but had done so only to see what jobs were available.  However, he claimed had not applied for any jobs as he did not think he would get jobs through the Labour Department.  I find that the plaintiff did not go to the Labour Department at all to try to seek employment.  If he had really done so, it is inconceivable that he would not have mentioned this in his witness statement.  Nor would he have said that he had not approached the Labour Department to look for a job when first asked whether he had done so.  His subsequent claim that he had just gone to the Labour Department to see what jobs were available but that he had never applied for any jobs because he did not think he would get jobs through the Labour Department is incredible.  It simply makes no sense that if the plaintiff were genuinely attempting to seek employment, he would have gone to the Labour Department only to see what was available without actually applying for any job. 

66. As I accept that the plaintiff would, by reason of his limited ability to speak Chinese and English, have some difficulty in gaining employment as a security guard, I do not think it appropriate to adopt the figure of $7,428 as his notional monthly income as suggested by Mr Wong. With his limited language skills, he may be forced to accept a salary lower than the average as evidenced by the Average Monthly Salaries of Selected Occupations even if he were able to gain employment as a security guard.

67. The plaintiff is currently actually earning $30.77 per hour.  Mr Cheung has not explained why, given that the plaintiff is earning $30.77 per hour, I should proceed on the assumption that he can only earn the minimum wage of $28 per hour.  I do not therefore think it would be appropriate to base his notional monthly income on the minimum wage of $28 per hour.  I do not accept the plaintiff’s testimony that he is only able to work 6 to 7 hours a day.  As I have stated above, I am of the view that he has exaggerated the continuing effects of his injuries and their effect on his ability to work.  I am of the view that the plaintiff should be able to work a normal 8 hour working day.  I am therefore of the view that plaintiff’s notional monthly income should be taken to be $30.77 x 8 hours x 26 days = $6,400.16 per month.

68. In this regard, Mr Wong submitted that if the plaintiff’s notional monthly income should be based on his hourly wage, it should be calculated based on a 9 hour working day.  The basis for his submission that the calculation should be based on a 9 hour working day is a paragraph in the Witness Statement of Tsang Kwong Cheong, a partner in the 1^st defendant, to the effect that the plaintiff’s working hours when he was working in his previous employment on the construction site was from 8 a.m. to 6 p.m.  However, Tsang Kwong Cheong was not called as a witness during the trial.  His witness statement is accordingly not evidence before me—see para.38/2A/11 of Volume 1 of Hong Kong Civil Procedure 2011.  In any event, even if the defendants can rely on the aforesaid evidence, it is only evidence as to the plaintiff’s working hours in his previous employment before his accident.  It is not evidence of the number of hours he is currently able to work per day.  I do not therefore accept Mr Wong’s submission that the plaintiff’s nominal monthly income should be calculated based on a 9 hour working day.   

Summary of findings on pre-trial loss of earnings

69.   In the circumstances, my assessment of the plaintiff’s pre-trial loss of earnings is as follows :

Sick leave	[$9,299.20 x 9 months x 1.05]
	= $87,877.44
3 month period for the plaintiff to look for new employment	[$9,299.20 x 3 months x 1.05]
	= $29,292.48
Employment from Dec 2006 to present	[($9,299.20 - $6,400.16) x 60 x 1.05]
	= $182,639.52
Total	$299,809.44

Post-trial Loss of Earnings

70. For the reasons stated above, the multiplicand for post-trial loss of earnings would be $9,299.20 - $6,400.16 = $2,899.04.  The parties have agreed that the multiplier to be adopted should be 11.5.  Accordingly, I award the sum of $2,899.04 x 12 x 11.5 x 1.05 = $420,070.90 in respect of the plaintiff’s post-trial loss of earnings. 

Loss of earning capacity

71. Mr Cheung submits, relying on Mo Hee Yuk v Gammon Skanska Ltd & Anor, HCPI 502 of 2004, unreported, Deputy High Court Judge L. Chan, 18 May 2006, that I should award the sum of $200,000 under this head.

72. Mr Wong, however, submits that I should follow the “formula” in Yu Kok Wing v. Lee Tim Loi [2001] 2 HKLRD 306, as followed by Sakhrani J in Gurung Tiki Maya v. Shum Shing Cheung & Another, and award an amount equal to half of the plaintiff’s nominal monthly income multiplied by the agreed multiplier of 11.5.  This would yield a figure of $6,400.16 ÷ 2 x 11.5 = $36,800.92.

73. In Yu Kok Wing v. Lee Tim Loi, Keith JA stated that it is important to remember what an award for loss of future earning capacity is actually for.  He referred to the opinion of Lord Fraser of Tullybelton in the Privy Council in Chan Wai Tong v. Li Ping Sum [1985] HKLR 176 at p. 183B-D, in which it was stated that the award is intended :

“... 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—see Moeliker v. A. Reyrolle & Co. Limited[1977] 1 WLR 132, 140, where Browne L.J. dealt fully with this matter. 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. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant.”

74. Keith JA also stated that it is useful to remember what Browne LJ actually said in Moeliker at p. 142 A-C :

“The consideration of this head of damages should be made in two stages. 1. Is there a ‘substantial’ or ‘real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

75. Adopting the two stage approach in Moeliker, Keith JA proceeded to consider the circumstances of the plaintiff and found that it was inescapable that there must be a real risk that his reduced capacity would prevent him occasionally from obtaining casual work of the kind which he would have been able to get if he had continued to be able-bodied.  He opined that assessing the extent of that risk is highly speculative but, stated that, doing the best he could, he estimated that the plaintiff would experience 15 days’ unemployment a year as a result of his reduced capacity.  He then adopted the same multiplier as had been adopted for assessing the plaintiff’s loss of future earnings as the multiplier that should not be taken for assessing the plaintiff’s loss of earning capacity.

76. It therefore appears to me that in assessing loss of earning capacity, there is no “formula” as such to be adopted as submitted by Mr Wong.  Instead, what the Court needs to do is to first assess whether there is any ‘substantial’ or ‘real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life.  If there is, the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the matters set out in the above quotation from the judgment of Browne LJ in Moeliker.  In adopting the approach which he did in Yu Kok Wing v. Lee Tim Loi, I do not understand Keith JA to have been holding or advocating that there is a formula to be adopted in assessing and quantifying the present value of the risk of the financial damage.  Instead, as Keith JA made clear in his judgment, he was simply trying his best to assess the risk and to quantify the present value of the risk on the facts of the case before him.  In adopting the same multiplier as had been adopted for assessing the plaintiff’s loss of future earnings as the multiplier that should not be taken for assessing the plaintiff’s loss of earning capacity, what Keith JA was doing was to take into account the number of years left in the plaintiff’s working life.

77. In the present case, I do accept and find that the circumstances of the plaintiff are such that there must be a real risk that the plaintiff will lose his present job at some time before the estimated end of his working life and that he will then suffer financial loss because of his disadvantage in the labour market by reason of his reduced capacity.  After all, even before the accident, the plaintiff had never been in secure, long term employment.  Instead, since he came to Hong Kong in 1996, he had worked as a general labourer on different construction sites, employed by different employers.  Even when working on construction sites, there were times when he was not given sufficient work and had to otherwise supplement his income.  Given his present age, his limited language skills and education and his continuing to suffer from diplopia, if he was to lose his job, I find that he will certainly be disadvantaged in the labour market.

78. However, I do not accept that the present value of the risk of the financial damage which the plaintiff will suffer if that risk materializes is as much as $200,000 as contended for by Mr Cheung.  The sum of $200,000 would represent just over 31 months’ nominal monthly income for the plaintiff.  That would be over 22% of the rest of the plaintiff’s working life.  I do not accept that the plaintiff would risk being unemployed for 22% of the rest of his working life by reason of his disadvantage in the labour market.  Indeed, even in Mo Hee Yuk v Gammon Skanska Ltd & Anor, the sum of $200,000 awarded represented only about 14.6 months of the plaintiff’s nominal monthly wages although it is not clear from the judgment what percentage of the remainder of the plaintiff’s working life 14.6 months would represent.

79. Doing the best I can, and taking into account all the circumstances of the plaintiff and his disability caused by the accident, I award the sum of $50,000 under this head.

Other Special Damages

80. These have been agreed at $10,000 and I award this sum.

Conclusion

81. The plaintiff is entitled to the following damages :

PSLA	$500,000.00
Pre-Trial Loss of Earnings (including MPF benefits)	$299,809.44
Post-trial Loss of Earnings (including MPF benefits)	$420,070.90
Loss of earning capacity	$50,000.00
Other special damages	$10,000.00
	$1,279,880.34

82. From the sum of $1,279,880.34 must be deducted the sum of $532,376 being the amount of employees’ compensation received by the plaintiff.  I therefore give judgment to the plaintiff against the defendants for damages in the sum of $747,504.34.

83. The plaintiff is also entitled to interest.  Mr Wong has submitted (and Mr Cheung agrees) :

(a) that the plaintiff is entitled to interest on general damages at 2% p.a. from the date of the Writ (20 August 2008) until the date of judgment;

(b) that the plaintiff is entitled to interest on special damages from the date of the accident to the date of judgment at half judgment rate (now at 4%); and

(c) that credit has to be given for the interest accrued on the sum received by the plaintiff for employees’ compensation.

I so order.

84. As agreed by counsel, the detailed calculations in respect of interest are to be left to the solicitors for the parties.

COSTS

85. I make an order nisi that the defendants pay the costs of this action to the plaintiff to be taxed on the District Court scale, if not agreed.