FONG MO FUNG v. WONG YICK YING

DCPI2030/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2030 OF 2009

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R U L I N G

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1.  The Plaintiff was injured at work on 14 October 2006 when he was instructed by the Defendant, his employer, to use an electric saw to cut an aluminium plate. The machine rebounded and cut him on the left face and left upper limb.

2.  The Plaintiff brought this action against the Defendant to recover his loss and damage. Default judgment on liability has been entered against the Defendant on 25 March 2010, with damages to be assessed.

3.  The Plaintiff appears before me today for assessment of his damages.

4.  The relevant notice of today’s hearing has been served on the Defendant and the Plaintiff’s solicitor has filed Affirmation of Service. 

5.  I am satisfied that the proceeding has been served and proceed to assess the loss on an ex parte basis under Order 35 rule 1.

6.  The Plaintiff appears by his counsel, Mr Cheung.  There are three witnesses, including the Plaintiff; one Mr Wong Kam-kong, PW1; and Mr Kwok Hing-chun, PW2.  And before today, leave has been granted by this court for two medical expert reports to be adduced, without calling the makers, being the medical report dated 22 September 2009 of Dr Kenneth Ng, a specialist in ophthalmology, and the medical report dated 19 October 2010 of Dr Lam Kwong-chin, a specialist in orthopaedic and traumatology.

7.  Mr Cheung has kindly summarised the injury of Plaintiff from the report of the Dr Lam, Dr Ng, and the medical notes of the United Christian Hospital.

8.  The Plaintiff was injured at work. After the accident, he was sent to the Accident and Emergency Department of the United Christian Hospital.  It was recorded by the treating doctor that the Plaintiff had sustained multiple lacerations by the electric saw he was controlling. 

9.  Physical examination revealed he suffered from:

(a) 8 cm laceration over left face involving left lower eyelid;

(b) laceration at left temporal area;

(c) laceration of left ear;

(d) deep laceration over left wrist with tendon injury and numbness over left little finger;

(e) laceration over left arm.

10.  The Plaintiff was transferred to the Department of Orthopaedic and Traumatology of the United Christian Hospital.  Physical examination further revealed that he suffered from:

• left shoulder deltoid laceration; and
• left wrist laceration resulting in superficial branch of ulnar nerve cut, ulnar artery cut, and flexor carpi ulnaris tendon cut.

11.  Operation was carried out on 14 October 2006 to repair the deltoid, superficial branch of ulnar nerve, ulnar artery and flexor carpi ulnaris tendon. 

12.  He was hospitalised for about a week in the United Christian Hospital, and he was discharged on 21 October 2006. 

13.  While he was still in the hospital, the Plaintiff was also seen by a doctor of the Department of Ophthalmology, for left lower lid full thickness lacerations.  Operation repair the eyelid was done on the day of the accident (i.e., 14 October 2006).  His lid wound recovered well with mild lid notching and cicatricial ectropion.

14.  Wrist extension splint was applied to the Plaintiff from 14 October 2006 until 6 November 2006.  Then the Plaintiff undertook physiotherapy treatment from 8 November 2006 to 19 March 2007, and further received occupational therapy treatment from 13 November 2006 to 9 November 2007.

15.  His condition stabilized, and subsequently he was assessed by the Employees’ Compensation (Ordinary Assessment) Board, and a Certificate of Review of Assessment dated 18 June 2009 was issued, stating that his injury consisted of multiple injuries resulting in left eye scarring, pain, frequent eye discharge and wide visual disturbance, and left ear and left arm pain and scarring, left wrist scarring, pain, weakness, numbness and stiffness.  The sick leave, as certified, was from 14 October 2006 to 9 November 2007. 

16.  I shall refer to the two expert reports on how the Plaintiff is affected by his injury after the treatment. 

17.  In the orthopaedic expert report of Dr Ng, it was assessed that the laceration, scarring of the left eyelid caused lagophthalmos.  This resulted in the eyes could not close completely, and as a result he had on‑and‑off pain and itchiness and intermittent tearing in the left eye.  Dr Ng opines that the Plaintiff may return to his pre-accident job as a decoration worker, but he has to put on spectacles, and his tearing condition would lower his working efficiency.  No further treatment was required. 

18.  And in assessing his working condition, I must of course take into consideration the opinion from the orthopaedic expert.

19.  According to the orthopaedic expert, Dr Lam’s report, dated 19 October 2009, the Plaintiff was diagnosed to have multiple lacerations involving his left face, left shoulder and left wrist. 

20.  In the assessment by Dr Lam on 21 September 2009, the Plaintiff still complained of left hand numbness, pain and weakness.  Dr Lam found that the Plaintiff had multiple scars consistent with the injuries.  He had weaker wrist and handgrip power.  There was the increased sensation over the ulnar side of the left hand and fingers, consistent with the incomplete recovery of the superficial branch of the ulnar nerve.

21.  Dr Lam opined that with the present wrist and hand condition, the Plaintiff will have difficulty in handling strenuous jobs that require lifting of heavy loads due to the residual numbness, pain and weakness.  Jobs with less physical demands are more suitable for him: examples are, cleaning workers, messengers, security guard, store assistant, petrol station attendant, carpark attendant or job of a similar nature.

22.  I accept the two opinions by the two medical experts in my assessment of the damages to be awarded to the Plaintiff.

23.  According to the evidence of the Plaintiff himself, he was aged 63 on the day of the accident, and he is now 67.  He had been working for the Defendant in the past 10-odd years as a casual worker carrying out indoor decoration work, and on the day of the accident he was so employed by the Defendant with a daily wage of $700.  He also worked for a number of other contractors, and he worked about 20 to 22 days a month, with daily wages ranging from $600 to $800.  He claimed an average monthly earning of $14,700 which means 21 days and at a daily rate of $700.  He agreed that he has no written document to record the wages, which were mainly paid in cash. 

24.  He claims that he has not fully recovered after the injury.  His left eye has reduced vision and has itchiness and tearing.  His left hand and finger, and left shoulder felt numbness.

25.  Before the accident, he uses to go hiking and swimming.  He cannot do swimming now and has reduced activity of hiking.  The Plaintiff has studied a course on security guards, and is granted a certificate, but he cannot find a job as a security guard.  He has tried to ask his former employer to give him a job, but he has only occasioned work earning about $1,000 - $3,000 a month.  His pre-trial earning is only $65,000 for the whole period from the day of the accident, to today.

26.  With all this evidence, I now proceed to consider the various heads of claim by the Plaintiff.

27.  The first item of claim is for pain suffering and loss of amenity (“PSLA”).

28.  Mr Cheung has kindly referred me to a number of authorities which included:

• Yeun Pak Cheung v. Chan Ka Leung;
• Chau Tim Kwai v. Ho Keung;
• Ma Kwai Lan v. Chiu Yun Yau and Yip Wai Bun;
• Chan Lai Po v. Au Wai Kit; and
• Lam Wing Ming v. Dragages et Travaux Publics (HK) Limited.

29.  Having read these cases, and having heard the submission from Mr Cheung, I consider two cases to be of particular use to my assessment.

30.  The first case I refer to is the case of Chan Lai Po v. Au Wai Kit, a judgment by Her Honour Judge Mimmie Chan.  In this case, Her Honour has awarded PSLA in the sum of $500,000 to the Plaintiff, and this is a recent judgment given in July 2009.  I refer to the judgment to ascertain the injury suffered by the Plaintiff in that case.

31.  It is a situation when the Plaintiff, one Madam Chan, was carrying out street‑cleaning duty, when she was knocked down by a vehicle driven by the Defendant.  As a result, Madam Chan sustained serious injury.  She complains of headache, dizziness and nausea, and has been diagnosed to have suffered from post-concussion syndrome. The neurological experts estimate that Madam Chan suffered permanent impairment of the whole person, at 5% - and I note that post-concussion syndrome does not apply in our situation.

32.  Madam Chan also complained of intermittent left shoulder pain, weakness and stiffness of the left shoulder, and a decreased range of left shoulder movement.  She also complained of continuous low back pain. 

33.  The Defendant’s expert in that case considered Madam Chan has made good recovery from her shoulder and leg injury. 

34.  For the orthopaedic injury, it is quite similar to the Plaintiff here.  But what makes it different, or more serious, is the eye injury to Madam Chan.  It is recorded in the judgment that:

“As a result of the head injury ... Madam Chan suffers from left traumatic 3rd nerve palsy. She has double vision and photophobia. Further, there are restricted extra-ocular movements of her left eye. Based solely on the condition of her eye, Madam Chan’s expert considered that the level of permanent impairment of the whole person is 34%, based on 30% impairment of the whole visual system.”

35.  So, clearly, the injury to the eye of Madam Chan is very much more serious than the injury to the eye of Mr Fong in our case.

36.  That being the situation, I believe $500,000 is on the high side for Mr Fong’s claim. 

37.  I also refer to another case: Yan Chui Sim v. Paul Y ITC General Contractors Limited & Others.

38.  This is also a case when Mr Justice Suffiad awarded PSLA in the sum of $540,000.  But in this case again, when we look at the injury suffered by the Plaintiff, it is noted that apart from the orthopaedic injury and disability, the Plaintiff also suffered from depression, and there have been psychiatric reports produced showing that she suffered from post traumatic stress disorder as a result of the accident.

39.  In the circumstances, the injury in that case is more serious than the injury of Mr Fong in our case. 

40.  Having fully considered the relevant authority, I come to the view that the pain, suffering and loss of amenity of the Plaintiff in the present case, should be in the region of $350,000.

41.  The next head of claim by Mr Fong is for pre-trial loss of earning. 

42.  It is submitted that Mr Fong, for the past 51 months, has only been able to earn $65,000.  Accordingly, Mr Cheung submitted that I should adopt his evidence that he earned an average of $14,700 per month, multiplying that by 51 months, and after deducting the $65,000 he earned would result in a loss of earning in the region of $700,000 more. 

43.  I would rather approach my assessment by stages. 

44.  First of all, the Plaintiff was granted about 13 months of sick leave, and for that 13 months of sick leave, I have no difficulty in agreeing with Mr Cheung that I should award his full loss. 

45.  It is the Plaintiff’s own evidence that after the injury, he has been able to obtain a certificate for working as a security guard, and it is also the medical experts’ evidence that he could take up some form of work that does not require strenuous efforts.

46.  Given the time of training, and a reasonable time for the Plaintiff to look for an alternative job, it appears to me that a total period of 24 months from the day of accident would be reasonable and would be sufficient to cover his sick leave and time of training in time to look for a job.

47.  It is unfortunate that I do not have any evidence as to the earning of a security guard.  But speaking from evidence produced in other cases, the earning of a security guard would normally be in the region of $6,000 - $6,500. 

48.  Mr Cheung also invited me to adopt the earning of PW3 as the earning of the Plaintiff, which I tend to agree. 

49.  As the Plaintiff is aged 67 today, it is possible that he could not work as efficiently because of his age, and this is indeed the evidence of PW3 that when he reached now 66 he could not work as efficiently as before and, therefore, his earning is around $7,000 - $8,000, when earlier on, he would be working 20 days a month.

50.  Balancing all this, I come to the view that the Plaintiff should be able to take up some jobs or, alternatively, the reason why he could not earn as much as before must be partly contributed to his age, which is not related to the injury.  As such, for the other 27 months when he does not have earnings, I would adopt the monthly loss of earning at $8,000. 

51.  In conclusion, the pre-trial loss of earning for the Plaintiff would be $528,990.

52.  The Plaintiff also claimed loss of earning capacity.  The Plaintiff did not claim any loss of future earnings. 

53.  Looking all the facts of his case, I believe this is not an appropriate case where loss of earning capacity should be awarded and I, therefore, refuse to make any grant under this head. 

54.  Finally, I come to the special damages. 

55.  The Plaintiff claimed the following, which I allow:

• Medical expenses in the sum of $5,140;
• Travel expenses in the sum of $1,808.

56.  The Plaintiff also claimed tonic food in the sum of $26,000 more.  But there is no receipt for this tonic food, and from his own evidence, it is not clear that he had received any advice from reliable sources as to why this tonic food is necessary.

57.  Accordingly, I am of the view that only nominal damages should be allowed, and I will allow a sum of $10,000 for this amount. 

58.  Finally, on interest, the Plaintiff claimed 2% per annum on damages for PSLA from date of service of the writ to the date of judgment, which I agree.  There should also be judgment interest at half-judgment rate on pre-trial loss of earnings and special damages from the date of accident to the date of judgment.

59.  As already conceded by Mr Cheung, the Plaintiff has already been awarded employees' compensation in the sum of $169,780.  Such sum should be deducted from the award I granted herein today. 

60.  I see no reason why the Plaintiff should not be entitled to his legal costs, and I do grant costs to the Plaintiff, with certificate for counsel, and the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations. 

Mr Wallace Cheung, instructed by Messrs. Cheung, Yeung & Co., for the Plaintiff

Defendant, absent