LEUNG KWUN CHUEN v. LI SHING KONG t/a LUNG HINT DESIGN DECORATION CO

HCPI 749/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 749 OF 2011

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J U D G M E N T

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Background

1.  Plaintiff, a demolition renovation worker was injured on 31 October 2008 after he was cut by the electric saw held by himself on the left arm and wrist. He now claims damages for personal injuries against the defendant, his employer at the time of accident.  Interlocutory judgment on liability was entered for the plaintiff on 21 December 2011 as no intention to defend had been given, leaving damages to be assessed and costs to be taxed.  This is the assessment of damages hearing.

2.  Pursuant to the order of Master Ho dated 31 January 2012 in HCB 6906/2011, the plaintiff was granted leave to proceed with the present action against the defendant notwithstanding the fact that a Bankruptcy Order was made against the defendant on 11 January 2012.

Injuries and Treatments

3.  According to the plaintiff, after the accident, he was rushed to the Accident & Emergency Department of Queen Mary Hospital (“QMH”).  Upon physical examination, it was found that the plaintiff sustained 20 cm laceration over medial side of left upper arm, 10 cm laceration over ulnar side of the wrist, decreased sensation over left thumb and index finger and severe bleeding of the left upper limbs wound.

4.  Later, the plaintiff was admitted to the Department of Orthopaedics & Traumatology of QMH.  It was recorded that he sustained electric saw injury during work to his left elbow and left thumb.  There was left wrist laceration and cut of superficing branch of radial nerve.  Emergency operation was performed on the same day.

5.  Doctors later found complete cut of median nerve, brachial artery and vein, musculocutaneous nerve, biceps, branchialis and common nerve origin. Vascular repair and muscle repair was performed.  Repair of left wrist laceration was also performed.

6.  On 3 November 2008, wound closure and partial thickness skin graft and tenodesis of flexor tendon were performed.  There was rupture of biceps near insertion and musculocutaneous nerve was found to be cut.

7.  On 10 November 2008, plaintiff was found to have acute tear of brachial artery and median nerve and bicep-tendon.  The skin graft was 70% taken. Arterial repair and nerve graft was performed.

8.  Further exploration was performed on 17 November 2008 which revealed a small area of necrotic wound edge.  Then, the treating doctors indicated that no further operation was required and the plaintiff was discharged from the hospital on 22 November 2008.

9.  Subsequent to his discharge, the plaintiff commenced rehabilitation in the Physiotherapy and Occupational Therapy Department of QMH.  He attended a total of 11 sessions of occupational therapy at the QMH from 2 November 2008 to 21 January 2009.  Splintage treatment, pressure treatment and remedial activities for active mobilization of his left upper limb were administered to the plaintiff.  Due to geographical reasons, the plaintiff was then transferred to the Tuen Mun Hospital (“TMH”) for further occupational therapy rehabilitation.

10.  As for plaintiff’s physiotherapy treatments, he attended a total of 13 sessions during his period of treatment from 28 November 2008 and up to 21 January 2009.  Again for geographical reasons, the plaintiff was also transferred to the Physiotherapy Department of TMH for further rehabilitation but he continued to attend follow-up treatments at the Hand Clinic of QMH.

11.  On the advice of the plaintiff’s treating doctors in QMH, he was offered further reconstructive surgery to improve his left upper limb function. Palmaris tendon grafting for bicep tendon was performed on 27 July 2009 and subsequent to his operation, he was then referred back to the Physiotherapy Department of QMH.  From 31 July 2009 to 19 August 2009 the plaintiff attended 5 sessions of physiotherapy treatment there.

12.  As for the plaintiff’s physiotherapy treatment at the TMH, his first period of treatment was from 19 January 2009 to 24 July 2009 during which he attended a total 45 sessions.  After the plaintiff’s tendon transplant operation on 27 July 2009, the plaintiff received another 67 sessions of physiotherapy treatment at TMH for the period from 24 August 2009 to 22 June 2010.  The plaintiff’s physiotherapy treatments included microcurrent therapy, whirlpool exercise, ultrasound therapy, electrical stimulation, exercise therapy and reconditioning exercise.

13.  Besides physiotherapy treatments, the plaintiff also attended occupational therapy at TMH which commenced on 6 February 2009.  Initially, the plaintiff was recorded to have no resting pain, but complaints of stretching pain at the scar over his left elbow and forearm during left elbow flexion.  He had persistent numbness at anterior left forearm and 1^st to 3^rd fingers with nil pain sensation.  He had decreased range of motion over his entire left upper limb including shoulder, elbow, wrist and fingers.  The left forearm scar appeared red and raised. 

14.  From 6 February 2009 to 24 July 2009, the plaintiff attended 37 treatment sessions of work hardening program.  The plaintiff underwent a tendon transfer of Palmaris longus to distal bicep for his left hand on 27 July 2009 and thus was referred to the Occupational Therapy Department at TMH again on 28 August 2009.  Upon his last assessment on 20 July 2010, the plaintiff was recorded to still have complaints of numbness and sensation over his radial 3 fingers.  Plaintiff was discharged from occupational treatment after having attended 64 sessions in his second rehabilitation course.

15.  Plaintiff was also seen by a clinical psychologist as he said he had persistent fear and flashback after his injury.  Upon his interview with the treating clinical psychologist doctor, the plaintiff indicated that he also had recurrent thoughts about the maltreatment of one of his treating medical officers which caused damage to his blood vessel and nerve on his left upper limb.  The plaintiff was found to have symptoms of acute distress disorder amounting to subclinical level.

Plaintiff’s present Complaints

16.  Plaintiff said presently, he still suffers from the followings:-

(i) Left arm and fingers still in pain and rigid;

(ii) Numbness in left arm and fingers;

(iii) Cannot bend or flex left arm;

(iv) Left arm feels weak and no strength;

(v) He cannot lift heavy objects;

(vi) His grasping ability of left hand has greatly decreased;

(vii) Injuries affecting his sleep at night;

(viii) Has to take painkillers on a regular basis to soothe his pain; and

(ix) Left arm injuries affecting the muscles and nerves, especially in the neck area, of the left side of his body causing pain.

Medical Expert Evidence

(1) In this case, plaintiff relied on the report of Dr. Lam Kwong Chin (“Dr. Lam”) dated 23 April 2012 compiled subsequent to an examination of the plaintiff on 16 April 2012, i.e. 3½ years after the accident.

(2) During the examination by Dr. Lam, plaintiff complained of residual left upper arm limb pain, numbness, weakness, stiffness and loss of dexterity.

(3) Dr. Lam observed a long surgical scar from the medial side of anterior arm to wrist which was tender on touch.  He was observed to have limited shoulder, elbow and wrist and fingers movement.  There was thinner left arm and forearm muscles and the power was generally weaker, in particular with flexion.  Plaintiff had diffuse sensation loss over forearm and hand, sparing the ulnar side.

(4) Plaintiff complained also of left numbness, over dorsum of outer 3 toes.  It was said that the same was due to sacrifice of the sural nerve for median nerve grafting.

(5) Dr. Lam said the clinical findings were compatible with the injury.

(6) He opined that further treatment of the plaintiff probably would not significantly change the present condition of the plaintiff as he had reached maximal medical improvement.

17.  In view of the condition of the plaintiff, Dr. Lam said that it would be difficult for the plaintiff to return to his preaccident job as a renovation worker or to undertake work which require dexterity and strength of both upper limbs.

18.  On the other hand, he said the plaintiff could take up lighter manual jobs that could be managed by right hand alone or those depending more on the lower limb function such as courier, messenger, car park attendant, watchman and jobs of similar nature.

19.  It is said also that the injury had moderate adverse effect on daily life of the plaintiff but Dr. Lam said plaintiff could handle activities of daily life independently.

20.  Dr. Lam considered the sick leave granted up to 30 November 2010 as acceptable having regard to the treatment injury and progress.

21.  Having regard to the injury to upper extremity and lower limb, Dr. Lam assessed the impairment to the whole person at 34% and 1% respectively, making the total improvement at 35%.

Evidence from the Plaintiff

22.  Plaintiff in court adopted his witness statement dated 14 May 2012.

23.  He said he was born on 24 November 1953 and was aged 54 (in fact just below the age of 55) at time of accident.

24.  According to the plaintiff, he received primary school education in mainland, can read and write Chinese and speaks punti.

25.  Before he came to Hong Kong in 1979, the plaintiff did farming, mining in quarry and transportation work.

26.  He said he is married with 2 sons and his wife is a housewife.

27.  After he came to Hong Kong, he had been working in restaurant as odd job worker, waiter and later he starts doing odd job work in construction/ renovation industry such as clearing debris and sawing wood but most frequently he worked as a demolition worker.

28.  He said before the accident, he enjoyed good health.

29.  Plaintiff said for 20 years prior to the accident, he worked as a demolition worker.  At time of accident, he says he was working on average 23 days a month and earning $600 per day, i.e. $13,800 a month.

30.  Plaintiff said after the accident, he still felt pain and numbness in his left arm and fingers.  There was difficulty in bending and stretching. There was no strength in the left hand which became powerless.  He could not hold heavy object not even a rice bowl with the left hand and there was also sharp decrease in the strength of the left hand fingers.

31.  He said according to the Certificate of Assessment dated 12 October 2010(Form 7), loss of earning capacity permanently caused by the injuries from the accident was 13%, and his injury was stated to be “left upper limb tendon rupture and nerve cut resulting in residual weakness and extensive scaring. The periods of absence from duty necessary as a result of the injury was from 31 October 2008 to 8 October 2010.  The plaintiff did at one time intended to appeal against this assessment but later abandoned the appeal.

32.  He said presently his daily living was very much adversely affected as he could not take heavy things, wrench the towel, button up the shirt or hold the rice bowl.

33.  Plaintiff said as a result of the accident, his working ability was adversely affected and he could not work up till now.  He said he relied on comprehensive social security assistance and had financial difficulty.  He said he did attempt to seek for jobs including that of a security guard and waste recycling worker but no employer was willing to hire him.

34.  Plaintiff said as he could not work despite all the treatments received, he had a lot of stress and he was depressed, devastated and was unable to sleep at night.

35.  He said he had also incurred medical, travelling and tonic food expenses in the sum of $480, $6,930 and $5,000 respectively as a result of the accident.

36.  In court, when asked if he did register himself with the Labour Department for job, he answered in the negative.

37.  He also confirmed himself as a right hand person.

38.  He said he could not return to the preaccident job because both hands are required to operate tools such as the electric saw etc and these equipments are quite heavy.  He said had there not been an accident, he could work in the job until 70 years old.  He said at least he could do odd jobs such as cleaning up the debris, sorting out things at the construction sites and can earn $500 per day.

39.  In court, plaintiff said because of the injury in the left arm, left hand resulting in the scars, he always had felt pain shooting up to the left shoulder, left side of the neck and the left side of the face.  In order to relieve these serious pain and discomfort, he would resort to use the arm sling.

40.  He said he had told of the shooting pain to the Professor Yip of QMH, Ms Lai of the physiotherapy department of TMH and his counsel and solicitors representing him in the present action.

41.  It is agreed however by Ms M Chung, counsel for the plaintiff that this present shooting pain to the face was absent in all medical notes and records as well as witness statement.

42.  Plaintiff was wearing an arm sling in court.  According to his evidence, he would only do so when he was in severe pain.  It is noted however that the plaintiff did not exhibit any discomfort or pain during the whole hearing.

43.  Plaintiff also said he felt uncomfortable when people looked at his scars when he wore short sleeve shirts.

44.  He said he tried to seek jobs such as security guard and worker recycle plastic bottle worker by reading the Oriental Daily newspaper and ringing up these potential employer companies.  He said he left messages and noone returned calls.

45.  In the examination in chief, plaintiff repeated 2 times that he had not attended job interviews.  He confirmed that the above was the only method he used in job seeking.

46.  When asked by this court as to his efforts in job seeking, he changed his evidence and said sometimes he made telephone calls to these companies and sometimes he attended job interviews.

47.  Plaintiff said before the accident he worked 8 to 9 hours a day.

48.  He said the statutory minimum wage now in Hong Kong is $30 per hour.

Analysis of evidence

49.  Throughout the proceedings, the defendant did not enter appearance.  He was also absent on date of assessment hearing.  As such, the evidence of the plaintiff was basically unchallenged.

50.  The nature of injuries of the plaintiff and the treatments he received had been set out above.

51.  The present complaints of the plaintiff as set out in the Revised Statement of Damages was largely consistent with these in the expert report of Dr. Lam save that in the Revised Statement of Damages, the plaintiff did not mention any subsisting problem/ complaints regarding his left leg numbness.

52.  In fact, if one go through the medical notes and records, the left leg numbness appears to be a new complaint which came out for the first time in the report of Dr. Lam after the examination of the plaintiff by Dr. Lam on 16 April 2012.

53.  Actually, this complaint was absent in both Revised Statement of Damages dated 29June 2012, the witness statement of the plaintiff dated 14 May 2012, and the said Form 7.

54.  In court, the plaintiff also did not say anything concerning his left leg.

55.  There was no reason had he informed the doctors of the numbness in the left leg that all of them had coincidentally omitted making note of this in the medical notes and reports.

56.  I am not satisfied that the leg injury had resulted in any permanent disability or discomfort, even if there was, it would not be something significant.

57.  Whilst I accept the complaints of the plaintiff concerning the left arm, elbow, hand and fingers, for reasons said, I find him exaggerating the degree of pain when he mentioned the pain had shot to the left side of the face as demonstrated in court and when he wore the arm sling in court.

58.  According to Dr. Lam, the plaintiff can take up jobs that requires lighter manual jobs than demolition work, work that could be managed by the right hand or those that depend more on the lower limbs, such as cark park attendant, courier, messenger etc.

59.  According to the report of Winnie Fork, Occupational Therapy Department of TMH dated 3 May 2011, the plaintiff could lift 42.5 lbs bilaterally from the floor to his chest, 12 lbs unilaterally from his waist to the overhead region, and his maximum push capacity was 27 lbs.  Decreased pulling pain on exertion was reported, but his work capacity still was below his previous job demand as a construction site worker.  His condition was static, and he was discharged from occupational therapy since 20 July 2010.

60.  It is clear from the evidence given by the plaintiff that he had not really tried or exhausted reasonable efforts to seek a job to mitigate his loss.

61.  Although both in court and in the witness statement plaintiff said he did not work since the accident, the court notes however that in paragraph 31 of the report by Dr. Lam, it read:-

“ 31. He said he had resumed work as a casual labourer since 2011, working for only about 10 days in total in 2011.”

62.  It is clear therefore that the plaintiff had not been telling the truth concerning his work experience/ earning capacity after the accident both in court, his witness statement and the Revised Statement of Damages.  He had actually resumed work as odd job worker after the accident.  In any event, he had failed to prove that there was a total loss of income subsequent to the accident.

63.  He had also not accounted for his wages received since he resumed work in year 2011.

64.  In court, plaintiff said that had there not been the accident, he could have remained in the demolition job or odd job worker until 70 years old, I do not accept that.  The nature of demolition job or even odd job worker is very much strength demanding which clearly is not fit or suitable for those beyond the age of 65.

65.  In court plaintiff did say that the daily wage for a casual labourer doing odd job is $500 per day.  i.e. $11,500 per month(assuming one work 23 days a month).

Quantum

PSLA

66.  Plaintiff claims $650,000 under this head.

67.  Ms. Chung, counsel for the plaintiff had referred this court to the case of Ho Ho Ming v Tse Po Wah & Others HCPI 1168/2003(Hon Suffiad J, 25 September 2006) in which $650,000 was awarded for PSLA, Lam King Tong v Kam Hung Construction (Holdings) Ltd & Another HCPI 1144/2003(Deputy High Court Judge Mayo, 16 November 2004) in which $600,000 was awarded, Chow Cheung Ching v Right Base Construction & Engineering Co Ltd & Another[2002] 2 HKLRD 738 in which $540,000 was awarded for PSLA, Lo Siu Wa v Nuovo Design Ltd, HCPI 84/2010(Master Marlene Ng, 12 April 2012) in which $500,000 was awarded.

68.  The case of Ho Ho Ming is not of much assistance to the court as the injuries of the plaintiff there was much more serious than the plaintiff in this case.  There is 90% impairment of the upper extremity and 54% impairment of the whole person.  In addition, the plaintiff suffered head injuries resulting in loss of consciousness, amnesia, cerebral contusion, injuries to the left brachial plexus predominantly affecting the lower trunk, residual severe headache.

69.  Again, although the plaintiff in the case of Lam King Tong also suffered serious injury to his hand and arm, he also suffer psychiatric problem. He was assessed to have 10% impairment of his whole person due to the psychiatric disability and 5% loss of earning capacity of the whole person due to the psychiatric disability.

70.  In the case of Chow Cheung Ching, similar to the plaintiff, the plaintiff there suffered finger injury fractures, severed tendons nerves.  In addition, he had amputation of the second toe of his left foot.  As a result of the injuries, plaintiff had also received numerous operations.  Although the plaintiff here did not have loss of toe, he had suffered further injury to the left wrist, elbow and arm and scarring.

71.  The case of Lo Siu Wu is another case where the injuries of the plaintiff are substantially hand and fingers injury but plaintiff there is a right hand dominat person and the injuries was done to his right hand.  He was also diagnosed to be suffering from depressive episode, moderate to severe degree and had to received psychiatric treatment.  He was assessed to have moderate to severe depression by clinical psychologies. 

72.  Considering the authorities and having regard to the medical condition of the plaintiff as assessed, his present complaints as proved, the nature of injuries and history of treatments received, residual disability and discomfort which affects on a continuous basis the quality and enjoyment of his life.  I find the plaintiff’s injuries and disability come near the upper range of “serious injury”.

73.  Recent Court of Appeal judgment in the case of Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture CACV 3/2002(25 September 2002), which had taken into account the effect of inflation in Hong Kong since year 1996 have revised the range of award for damages for PSLA in Chan Pui Ki v Leung On [1996] 2HKLR401.

74.  It was said in the case of Lam Chan Hung v Hang Yue Engineering Ltd HCPI 121/2011 that since 2002, the awards for “serious injury” ranges from HK$460,000 - $620,000.

75.  In the “Inflationary Rates Pain, Suffering and loss of amenities(PSLA)” digest in the Personal Injury Tables Hong Kong 2013, the revised range of award for serious injury was said to be between HK$462,000 to $601,000.

76.  In this case, I find it appropriate to award the plaintiff $580,000 under this head.

Pre-trial loss of earnings and MPF

77.  It is unchallenged that at time of accident, the plaintiff was earning $600 per day and that he worked on average 23 days a month.  His preaccident earnings was therefore $13,800 a month.

78.  In the related DCEC Proceedings, plaintiff was also found to be earning $13,800 per month at time of accident.

79.  Plaintiff was granted sick leave from the date of accident i.e. 31 October 2008 to 30 November 2010 (i.e. 25 months).  The same was endorsed by Dr. Lam as bring acceptable.

80.  Since plaintiff did not work during this period, his loss of earnings and MPF from 31 October 2008 to 30 November 2010 would be:-

$13,800 x 25 x 1.05 = $362,250

81.  Although plaintiff was fit to work after the accident, in view of his age, education and work experience, it is reasonable that  he be given 4 months to look and secure a suitable job.

82.  His loss of earnings and MPF from 1 December 2010 to 31 March 2011 would therefore be:-

$13,800 x 4 x 1.05 = $57,960

83.  As said earlier, this court finds that the plaintiff had actually worked as a causal worker in construction site since sometimes in year 2011.

84.  There is no evidence from the plaintiff as to what the present earnings of a demolition worker is and I therefore would treat the same as $600 a day, same rate as at time of accident.  It is also plaintiff’s evidence that the daily wage for an odd job worker at construction site was $500.

85.  Therefore, for the period from 1 April 2011 to 13 March 2013, his loss of earnings and MPF would be the difference between his earnings as a demolition worker and that of a causal worker:-

   $(600-500) x 23 x 23 x 1.05= $56,557.74

   Total pre-trial loss of earnings and MPF would be:-

$362,250 + $57,960 + $56,557.74 = $476,767.74

Post trial Loss of earning and MPF

86.  As said, I find that had there not been the accident, the plaintiff would be able to stay in the demolition job until 65.

87.  His future loss of earnings and MPF per month is therefore:-

$(600-500) x 23 x 1.05 = $2,415

88.  Plaintiff is aged 59 at date of trial and relying on the recent case of Chan Pak Ting v Chan Chi Kwan and others HCPI 239/2011, 7 February 2013, Bharwaney J. assessed a net rate of return, net of inflation, of 1% per annum to assess damages for future losses and expenses not exceeding a period of 10 years.  In the earlier decision of the same case given on 16 October 2012, Bharwaney J. held that ‘the Chan Tables’ in the Personal Injury Tables Hong Kong 2013 ought to be used to select the appropriate multiplier to be adopted to assess future losses and expenses.

89.  Table 9 of the Chan Tables give a multiplier of 5.7, calculated with allowance for projected mortality and a net rate of return of 1% for a person aged 59 at date of trial who could work until age 65.

90.  The plaintiff’s future loss of earnings and MPF is therefore:-

$2,415 x 12 x 5.7 = $165,186  

Loss of earning capacity

91.  Although the plaintiff had been compensated for his future loss of earnings based on his impaired earning capacity, there is a substantial risk that during his working life, he will lose his employment and suffer financial loss because of his disadvantage in the labour market due to his disability. 

92.  I find 3 months of his present earnings and MPF an appropriate sum under this head:-

$500 x 23 x 1.05 x 3 = $36,225

Special Damages

(a) Medical Expenses

The same claimed at $480 is reasonable and allowed.

(b) Travelling Expenses

The plaintiff had received numerous occupational therapy and physiotherapy treatments as well as follow up at hand clinics and hospital, I find the sum of $6,930 claimed reasonable and the same is allowed.

(c) Tonic food

Although no receipts were produced in support of this $5,000 claim, having regard to his injury, I allow the same in full.

I allow a total of $12,410 under the special damages head.

Summary

Conclusion

93.  I therefore give judgment in favour of the plaintiff in sum of $1,270,588.74.

Interest

94.  There be interests for PSLA from date of writ i.e. 17 October 2011 to date of judgment at 2% per annum and interests for special damages including pre-trial loss of earnings at half judgment rate from date of accident to date of judgment.

Cost

95.  I also make an order nisi that costs of the action be to the plaintiff, the same to be taxed if not agreed, with certificate for counsel.

96.  Plaintiff’s own costs be taxed in accordance with legal aid regulations.