LEUNG BIU v. MOK SEK CHEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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ASSESSMENT OF DAMAGES

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1. This action arose out of an industrial accident which occurred on 20^th September 1992. On that day, the Plaintiff, who was an employee of the Defendant, was working in a site at 4^th Floor, No. 55 Nam Cheong Street, Shamshuipo, Kowloon when his throat was cut by an electric saw that he was holding. It was the Plaintiff's case that the said accident was caused by the negligence, breach of the contract of employment, breach of occupier's duty and breach of statutory duty on the part of the Defendant.

2. The Writ herein was filed on 12^th September 1995. The Defendant gave no intention to defend the action, and interlocutory judgement was entered against him on 5^th September 1996 with damages to be assessed and costs to be taxed.

3. This is the assessment in relation to the damages suffered by the Plaintiff as a result of the accident.

The Plaintiff's Personal Background

4. The Plaintiff was born in mainland China on 2^nd May 1941, and so he is 56 years old now and was aged 51 at the time of the accident. He completed primary education in mainland China and came to Hong Kong in 1961. The Plaintiff then started to work as a carpenter, welder, plumber and part-time lorry driver in various shipyards and construction sites. Due to his poor health, the Plaintiff ceased to work some time in 1990, and he only resumed working as a casual worker about 1 year prior to the accident.

5. The Plaintiff is married with 4 sons and 1 daughter. His 2 elder sons are students studying in universities in Britain, while his daughter (aged 21) and 2 younger sons (aged 24 and 20) are students studying in Hong Kong.

The Plaintiff's Injuries

6. Upon admission to the Caritas Medical Centre immediately after the accident, it was found that there was a deep laceration of about 5cm in the anterior aspect of the Plaintiff's neck below the thyroid cartilage. As a result, exploration and suture were performed and the muscle and wound were cured, and the Plaintiff was eventually hospitalised for 5 days. According to Dr. Tse of the said Centre, the prognosis was good and he did not expect the Plaintiff to suffer any permanent disability. After discharging from hospital, the Plaintiff continued to receive regular out-patient treatment.

7. The Plaintiff was subsequently examined by his medical expert, Dr. Lo Siu-sing, in December 1994. According to Dr. Lo, there was a transverse scar of about 7.5cm long in the Plaintiff's neck just below the thyroid eminence. There was no keloid formation but the skin stuck to the underlying cartilage of the larynx and it moved with the cartilage upon swallowing. There was also significant traction on the larynx through its attachment to the scar while the Plaintiff turned his head, and the same trouble occurred when he raised his larynx to shout loudly. Further examination of the larynx showed that apart from some mild congestion of the vocal cords, there was no other abnormality detected. The Plaintiff also suffered from loss of hearing, but Dr. Lo was of the view that such disability was not caused by the accident itself.

8. The Plaintiff was again examined by Dr. Lo in March 1997, and it was found that there was no material change in the condition of the Plaintiff's neck wound. The adhesion between the skin and laryngeal cartilage caused the Plaintiff to suffer the following disabilities: (i) limitation of neck movement; (ii) reduction of voice; and (iii) residual pain and discomfort. In the opinion of Dr. Lo, it was difficult for the Plaintiff to resume his previous employment as a decoration worker, as such work would require constant movement of the neck and constant shouting, and he suggested the Plaintiff to take up some indoor sedentary jobs instead. Dr. Lo also expressed the view that the Plaintiff should have suffered 4% disability and 4% loss of earning capacity as a result of the accident.

Pain, Suffering and Loss of Amenities (PSLA)

9. In assessing the award under this head of damages, Mr. Wong for the Plaintiff has referred me to the following cases for comparison: Ip Lam Yuk-lin v. Yeung Fat HCA No. 1266 of 1991, 1992 (HKLJ) 99, Hong Kong Macau Hydrofoil Co. Ltd. V. Ng Chan-wai and Others; Claimant: Yeung Leung-yam 1994 AJ Folio 209, 1991 (HKLJ) 126 and Chan Wai-yau v. Ha Hing-yiu HCA No. A5302 of 1988, 1990 (HKLJ) 398. All these cases relate to minor injuries and the quantum for PSLA awarded is all less than $100,000.

10. Mr. Wong has rightly and fairly pointed out that the Plaintiff's injuries fall below the "serious injuries" category as set out in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657. However in assessing such award, one must also bear in mind that the range of damages for PSLA has been adjusted upwards in the relatively recent decision of Chan Pui-ki v. Leung On [1995] 3 HKC 732 and [1996] 2 HKLR 401. Hence having considered the injuries and the permanent disabilities suffered (including the cosmetic impairment) and the subsequent treatment which was undertaken, I consider that the amount of $135,000 suggested by Mr. Wong for PSLA is quite reasonable, and I would therefore make such award accordingly.

Loss of Earnings

11. At the time of the accident, the Plaintiff was working as a casual worker for the Defendant allegedly earning a monthly income of about $13,000 ($500 being the daily wage x 26 days). He was only employed to work at the site in issue a few days prior to the accident, and his duties included undertaking plumbing and drainage works at such site. Save as 2 days of work as a lorry driver, the Plaintiff has not taken up any other kind of employment since the accident. According to the Plaintiff, he has tried to look for jobs through the Labour Department and the Job Centre of the Provisional Airport Authority ("Job Centre") but without any success. The Plaintiff was granted sick leave in various periods from 1992 to 1997.

12. On 9^th January 1995, the Plaintiff was assessed by the Employees' Compensation (Ordinary Assessment) Board to have suffered no (0%) loss of earning capacity.

13. According to Dr. Lo, the Plaintiff cannot resume his work as a decoration worker, and he suggest the Plaintiff to take up indoor sedentary jobs instead. However I find it strange that the Plaintiff has not made any serious effort to find such kind of alternative employment after the accident. According to the record of the Labour Department and the Job Centre, the Plaintiff has all along been looking for work as a carpenter, plumber or formwork worker. If the Plaintiff's injuries are serious to an extent which would prevent him from taking up his pre-accident employment, one would certainly question why the Plaintiff would continue to look for such kind of work after the accident. In my assessment, the Plaintiff has not been completely honest in his evidence and he has exaggerated the effect of his disabilities on his working ability, and I do not believe that the injuries resulting from the accident were the cause of the Plaintiff's unemployment after the accident. Indeed, the Plaintiff's injuries are relatively minor, and I do not accept that such injuries would prevent him from taking up his pre-accident employment.

14. Further in the hearing of assessment, the Plaintiff testified that he had not informed the Labour Department and the Job Centre about his injuries when he registered himself for the job applications, and yet no job interview or job was offered to him. In my assessment, the Plaintiff has already lost his competitiveness in the labour market by reasons quite unrelated to the accident, such as: (i) the Plaintiff is already nearly 57 years of age; (ii) he was only a casual worker at the time of the accident without a stable pattern of employment; and (iii) he has all along been suffering from poor health including stomach pain and loss of hearing, which indeed caused the Plaintiff to cease working at one stage in 1990 and 1991. Hence even had he not been injured in the accident, I doubt very much whether the Plaintiff could have continued to obtain a stable and gainful employment some time after the accident.

15. The Plaintiff was granted sick leave in various periods after the accident. In my assessment, it would have been reasonable for the Plaintiff not to work for a period of 6 months after the accident, and Plaintiff should be able to claim for total loss of earnings suffered during such period of time. Thereafter, the prospect of the Plaintiff in continuing to have a stable and gainful employment was uncertain, and so the Plaintiff cannot, on the balance of probabilities, establish a claim for loss of earnings after the first 6 months. Further as I have mentioned above, I do not accept that the Plaintiff's injuries are serious to an extent which would prevent him from taking up his pre-accident employment, and that is also another reason why I reject the Plaintiff's claim for further pre-trial loss of earnings and loss of future earnings. The Plaintiff's injuries may have some adverse effect on his earning capacity, but I am of the view that such effect should be reflected in the award of loss of earning capacity mentioned below.

16. The Plaintiff's loss of earning can therefore be assessed as follows:

* the sum of $14,300 is the notional monthly income that the Plaintiff would have earned in 1993 after having taking into account the average 10% annual increase in wages

17. There is also one more thing that I would like to mention in relation to the assessment of loss of earnings. The Plaintiff has not produced any evidence to show the average income of some indoor sedentary jobs that the Plaintiff could have been able to undertake. It was only in the final submission that Mr. Wong sought to produce some statistics relating to these jobs by way of supplemental hearsay notice. As the Plaintiff had already closed his case, I disallowed the production of further hearsay evidence at that stage. Facing with such circumstances, Mr. Wong also urged me to take judicial notice of the average income relating to some indoor sedentary jobs, but I did not accept that this should be a proper subject for judicial notice. In any event, I have already disallowed the Plaintiff's claim for further loss of earnings by reason of the matters mentioned above, and so the absence of these statistics does not in any way affect my assessment.

Loss of Earning Capacity

18. The considerations for the award of loss of earning capacity are different from those relating to the award of loss of earnings. The issue here is whether the Plaintiff may be handicapped in getting new work by reason of his injuries. Although the Plaintiff has been assessed by the Employees' Compensation (Ordinary Assessment) Board to have suffered no loss of earning capacity, in my assessment and having considered the permanent disabilities suffered, I am of the view that there is still a real risk that the Plaintiff would be at a disadvantage position in obtaining employment by reason of his injuries resulting from the accident. As I see it, the injuries would have some adverse effect on the earning capacity of the Plaintiff, and such effect should be reflected in an award of loss of earning capacity. Hence the Plaintiff is justified to make a claim for such damages.

19. So far as quantum is concerned, Mr. Wong submitted that the Plaintiff should be able to claim 24 months loss of earnings as his loss of earning capacity. However, the Plaintiff has all along been in his mid-fifties and so his working life would not have been long in any event, I therefore only award a sum of $150,000 for such award, which is approximately equivalent to 8 months notional salary, but for the accident, that can be earned by the Plaintiff now as a construction site or decoration worker.

Other Special Damages

20. The Plaintiff is also claiming for medical, travelling and tonic food expenses incurred as a result of the accident. In my assessment, the amounts of medical and travelling expenses claimed are reasonable, and I therefore award the respective sums of $852 and $3,940 claimed for such expenses. As for the tonic food consumed, the Plaintiff produced receipts in the total sum of $29,900. However, in the absence of supporting evidence as to the advisability and suitability of the tonic food to assist the recovery of the Plaintiff, he can only claim for a conventional award for such expenses. Mr. Wong relied on the case of Chan Pui-ki and suggested a figure of $15,000. However, the injuries suffered by the Plaintiff in the present case are much less serious and so I would only allow a claim of $8,000 for such expenses.

21. The amount of other special damages awarded is therefore as follows:

Conclusion

22. The total sum awarded is therefore $334,396, the breakdown of which appears as follows:

23. There will also be interest on the special damages at the rate of 6.03% p.a., being half the judgement rate, from the date of the accident to the date of the assessment and on the award of PSLA at the rate of 2% p.a. from the date of the Writ to the date of the assessment.

24. I further make an order nisi that the Plaintiff shall have the costs of the assessment to be taxed if not agreed and the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. The order nisi is to be made absolute after the expiration of 14 days from the date of the handling down of this assessment.