HO CHUNG WAI v. LA'CINE COSMETIC WORKS LTD

HCPI 308/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

 PERSONAL INJURIES ACTION NO. 308 OF 2007

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim. The Plaintiff was a stock keeper employed by the Defendant. He was hit in the right leg by a “runaway” goods trolley at the Defendant’s premises on 20 April 2004.

2.  Judgment on liability was entered on 28 July 2008 and the case now comes before this Court for assessment of Damages.

I.  Background

3.  After the accident, the Plaintiff returned to work the next day (21 April 2004) but had to attend Kwong Wah Hospital Accident & Emergency Department because of increasing pain and swelling (to the extent that he could not bend his right knee).

4.  X-ray showed no fracture and the clinical diagnosis was contusion. The A&E doctor referred the Plaintiff for follow-up with the Orthopaedics Outpatient Clinic and granted a period of sick leave.

5.  On the same day, the Plaintiff attended a private Orthopaedic surgeon, Dr. Chau Yat Sang. The Plaintiff was admitted to St. Teresa’s Hospital 2 days later (23 April 2004). A MRI scan showed various areas of bone marrow contusion but, more importantly, a traumatic popliteal cyst.

6.  Dr. Chau performed an excision of popliteal cyst on 26 April 2004.

7.  Post-operatively, the Plaintiff still have residual pain which improved with physiotherapy. He tried to resume work but returned to see Dr. Chau on 3 August 2004 because of pain and swelling after lifting heavy weight at work. The symptoms persisted despite further physiotherapy, medications and rest.

8.  The Plaintiff was admitted to St. Teresa’s Hospital again on 18 October 2004 and a repeat MRI scan revealed recurrence of the popliteal cyst.

9.  Dr. Chau tried various conservative treatments but with little improvement. Therefore, a second excisional operation was performed on 7 April 2005.

10.  After this second operation, the Plaintiff had some improvement in the pain in his right calf but his knee pain persisted. The pain was aggravated by walking and required the use of a walking stick. The Plaintiff also required sleeping pills for knee pains at night.

11.  A further MRI was performed on 6 October 2005 which showed a residual popliteal cyst, chondromalacia (degeneration of cartilage) in various areas of the right knee joint, and mild joint effusion.

12.  Despite further treatment like intra-articular injections, there was still residual pain and tenderness, worst with prolonged standing or walking associated with muscle wasting in the right leg. Dr. Chau last saw the Plaintiff on 8 June 2006 and he opined that there was little chance of further improvement.

13.  The Plaintiff returned to work after the expiry of his sick leave but he was made redundant on the same day by the Defendant.

14.  The Plaintiff had since initiated an Employees’ Compensation claim (DCEC 276/2006) and had received a sum of HK$253,829.92.

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

15.  The Plaintiff’s expert, Dr. Lam Yan Kit, was in general agreement with Dr. Chau.

16.  Dr. Lam’s view was that the Plaintiff had a pre-existing popliteal cyst which was traumatized by the accident and unfortunately led to repeated inflammation, pain and swelling. Further, after 2 surgical attempts to excise the cyst, further surgery was not recommended as the risk of recurrence was high. Conservative treatment had been tried but shown not to be helpful, so further active treatment was not recommended. The Plaintiff’s condition would be static with long term residual pain which required oral analgesics from time to time.

17.  As for his current condition, the Plaintiff informed the Court that he was taking on average about 4 tablets of Panadol a day (he obtained a large supply from follow-up consultations for his high blood pressure at Kwong Wah Hospital) and he also required a stronger triangular-shaped blue pain-killer (possibly Voltaren) about twice a week. He had consulted another private orthopaedic surgeon about 7 months ago to see if further treatment could be done. He had received another intra-articular injection which he said helped a little with the pain.

18.  There is substantial “objective” evidence to support the Plaintiff’s complaints: e.g. muscle wasting in the right leg found by both doctors, the findings of the MRI scans etc..

19.  The Plaintiff also exhibit reasonable “pain behaviour” after the accident. He did not “wait-out” the A&E sick leave period before re-attending. Instead, on hearing that there was a waiting list of several months for Orthopaedics referral in the public sector, he immediately consulted a private Orthopaedics surgeon. This was the behaviour one would expect for a patient who had genuine pain and real concern to get better.

20.  Further, I was impressed that the Plaintiff was seeking reimbursement for the costs of 3 walking sticks.

21.  When I questioned this, the Plaintiff explained that the plastic handles of his first 2 walking sticks broke and he bought his current one from a China goods store. This was made of wood and was of a sturdier built, though less comfortable to hold as it lacked soft foam covers that the plastic ones had.

22.  Clearly, the Plaintiff’s walking stick was not “just for show” and he must have been using it extensively.

23.  Having considered the cases submitted by the Plaintiff’s Counsel, Mr. Wong (Yu Kok Wing v Lee Tim Loi t/a Tim Wan Painting and Decoration Works [2001] 2 HKLRD 306, Li Wan Kei v Hyundai Engineering & Construction Co. Ltd. HCPI No. 577 of 2004 and Yeung Yuk Yiu v Cheung Tung Ho & anor. HCPI No. 573 of 2004), I agree that the appropriate reward under PSLA should be below the “serious injury” category and the claimed HK$350,000 was reasonable.

III.  Pre-trial loss of earnings and MPF

24.  The Plaintiff’s pre-accident salary was HK$11,970.50 a month as shown in the Employees’ Compensation “Form 2”.

25.  As a stock keeper, he was required to work in a 3-storry warehouse with no lift and have to move goods around occasionally etc..

26.  Both Dr. Chan and expert Dr. Lam were of the view that he could not resume his previous job and required a “sedentary” job “that did not require frequent walking or standing”.

27.  So far, the Plaintiff remained unemployed. He gave evidence in Court on his job hunting efforts e.g. joining the employment centre of the Labour Department, attending various unsuccessful interviews for office clerk jobs, trying to work as a delivery van driver and a minibus driver etc..

28.  The Plaintiff thought that his chance of a successful interview was hampered by his obvious limp, and for any job that require even some physical exertion like driving, his tolerance was restricted by swelling and pain in his right knee.

29.  Despite his continued unemployment, the Plaintiff, in his Statement of Damages, assumed that he could obtain suitable employment within 3 weeks of his sick leave expiring (on 30 December 2006), and earning a “notional” income of HK$6,000 per month.

30.  I have 2 observations: firstly, given the Plaintiff’s evidence in Court about his employment difficulties, I think it is reasonable to allow up to 1 year for him to look for a suitable job.

31.  Secondly, I see no evidence to support how this “notional” income was derived from so I have asked Mr. Wong to assist the Court.

32.  Mr. Wong kindly produced an excerpt from “Quarterly Report of Wage and Payroll Statistics” dated March 2007 published by the Census and Statistics Department.

33.  This showed that the monthly salaries of suitable “sedentary” jobs ranged from HK$5,496 for “Service workers in Transport services” to HK$8,617 for “General worker at Air cargo forwarding services”. I will take a mid-point figure of HK$7,000 as the “notional” salary.

34.  Mr. Wong also suggested that the Plaintiff’s expected salary from the Defendant should rise with the Consumer Price Index.

35.  I would observe that, whilst we all wished to be blessed with such a considerate employer, realistically, one’s salary would invariably be link to many factors including job performance, competition for the job, profit of the employer, overall economic environment etc.. There would be far too much speculation to suggest how one’s salary would change over a period of time.

36.  Further, from the time that the Plaintiff was deemed able to find that suitable “notional” job onwards, one might argue that, for any change in  the salary of the pre-accident job, there might well be a similar change in the salary in the “notional” job. Rather than to compound speculation upon speculation, it would be more reasonable to assume that the loss of earnings, or the “gap” between the Plaintiff’s pre-accident and his “notional” salary, might remain roughly the same over a period of time.

37.  As such, my calculation of the pre-trial loss of earnings (including loss of MPF) is as follows :-

a. For the period of sick leave plus one year allowance for job hunting (20 April 2004 to 30 December 2007, or about 32.5 months) :-

HK$11,970.50 x 32.5 x 1.05 = HK$408,493.31

b. From then to trial date (about 67 months) :-

HK$(11,970.50 - 7,000) x 67 x 1.05 = HK$349,674.68

38.  Thus the total claim under this head should be HK$758,167.99.

IV.  Future loss of earnings and MPF

39.  The Plaintiff is 49 years old now. According to the recent decision of Mr. Justice Bharwaney in Chan Pak Ting v Chan Chi Kuen & anor.  HCPI 235 of 2011, the suitable multiplier for a 49 year old until the pension age of 65 should be 12.86.

40.  Thus, the claim under this head should be :-

HK$(11,970.50 - 7,000) x 12 x 1.05 x 12.86  = HK$805,399.94

V.  Loss of earning capacity

41.  There is no doubt that the Plaintiff has a significant disadvantage in the labour market. I would award a lump sum of HK$84,000 under this head of claim.

VI.  Special damages

42.  I would award reimbursement of medical expenses (HK$128,128), travelling expenses (HK$2,260), tonic food (HK$4,000) and, of course, the 3 walking sticks (HK$450).

43.  The total award under this head of claim is HK$134,838.

VII.  Employees’ compensation

44.  Credit will be given to the Employees Compensation of HK$253,829.92 already paid.

VIII.  Interest

45.  Interest should be calculated as follows :-

a. Interest on PSLA at the rate of 2% per annum from the date of the Writ to the date of Judgment

b. Interest on special damages at half judgment rate from the date of the accident to the date of Judgment

IX.  Summary

46.  I summarise the above awards as follows:

	HK$
PSLA	350,000
Pre-trial loss of earnings and MPF	758,167.99
Future loss of earnings and MPF	805,399.94
Loss of earning capacity	84,000
Special damages	134,838
Less employees’ compensation	( 253,829.92)
Total:	1,878,576.01

47.  The total claim should therefore be HK$1,878,576.01 plus interest as calculated above.

X.  Cost

48.  I also make an order nisi that the defendant shall pay the plaintiff’s costs of this action to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.