Li Wan Choi v. Choi Wan Hing and Another

HCPI 1200/98

In The High Court of the

Hong Kong Special Administrative Region

Court Of First Instance

Personal Injuries Action No. 1200 of 1998

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Assessment Of Damages

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Introduction

1. The Plaintiff 3 months shy of his 44th birthday, having been born on 25 July 1956 suffered personal injuries on 30 September 1997 when a five and a half tonne lorry driven by the 1st defendant, his fellow employee and owned by their employer, the 2nd defendant was involved in a traffic accident. The plaintiff, then a furniture delivery worker launched proceedings, claiming damages for personal injuries. On 12 March 1999, interlocutory judgment on full liability was entered against the defendants for damages to be assessed.

The Facts

2. Following the accident, the plaintiff was initially admitted to and treated at Pok Oi Hospital where fractures of his pelvis, left femur and left tibia were diagnosed. Later that day, he was transferred to Tuen Mun Hospital where upon more detailed examination, it was discovered that he had the following injuries:

(a) Subtrochanteric fracture of left femur;

(b) Fracture of left medial malleolus;

(c) Fracture of 5th lumbar vertebra (pars interarticularis) with spondylolisthesis;

and

(d) Fracture of pelvis

3. Emergency surgery followed involving open reduction and dynamic hip screw for the left femur fracture, close reduction and percutaneous screw fixation for the left medial malleolus, and close reduction with application of external fixator for the pelvic fracture.

4. On 4 October 1997 internal fixation for the fractured pelvis and posterior spinal fusion at L5/S1 level were performed. The plaintiff was then transferred to intensive care. When his condition became stabilized, he was moved to the Orthopaedic Ward on 7 October 1997. On 11 November 1997, he was transferred to Margaret Trench Rehabilitation Centre for occupational and physiotherapy training.

5. The plaintiff was eventually discharged on 23 January 1998, nearly 4 months after the accident to begin intensive occupational training and follow-up treatment. At the time of discharge, he was able to walk unassisted with a walking stick. By April 1998, he could move about with a slight limp. In short, there was significant improvement in his condition.

6. On 6 March 1999, the plaintiff sustained a fracture at the base of his right metatarsal bone when a young boy bumped into him, causing the plaintiff to lose his balance and twisting his right foot. The plaintiff once more found himself in Tuen Mun Hospital where he was treated with a plaster. But for the accident, in all probability, this additional injury might well have been averted. It is a matter appropriate for consideration in quantifying his loss and damage.

Quantification of the Plaintiff's loss

The Medical Assessments

7. The plaintiff was examined by his own physician, Dr. Julian Chang (Dr. Chang) on 29 April 1999 and by the defendants' expert, Dr. Chun Siu Yeung (Dr. Chun) on 25 March of the same year. Both medical experts testified at the hearing.

8. Dr. Chang diagnosed wasting of the plaintiff's left limb with decreased sensation on the entire right lower extremity. There was discernible limitation of movement in the left hip and intensive sclerosis of the right sacroiliac joint. There was also parasthesia down the right lower limb not present before the accident, a condition possibly attributable to screw fixation or disturbance to a nerve during the leminectomy procedure. Dr. Chang opined that the plaintiff has sustained a permanent physical disability of 9% and a corresponding loss in earning capacity of 10%. As at April 1999, Dr. Chang concluded that the plaintiff's condition was stable with no further improvement anticipated.

9. By letter dated 10 June 1999 in response to a request for clarification from the Director of Legal Aid, Dr. Chang further advised that the plaintiff could return to work as a deliveryman provided the job did not involve heavy lifting or jumping on and off from height such as a platform or truck. Alternative employment as messenger, waiter, salesman, hawker, or caretaker was said to be open to the plaintiff.

10. The findings of Dr. Chun closely mirrored the diagnosis and prognosis of Dr. Chang. He concluded that the plaintiff's permanent impairment of the whole person was 8%. Loss of earning capacity was assessed to be 15%. He commented that the plaintiff should be able to rejoin the workforce as a delivery worker or waiter.

11. The plaintiff's condition apparently remained stable until 25 September 1999 when he suddenly experienced debilitating lower back pain radiating to his right buttock. He attended the Tuen Mun Hospital and was admitted for investigation and pain control. He was discharged after five days and granted additional sick leave. Although the new complaint had lessened following his discharge from hospital, it was his case that his ability to sit and stand for long had been impaired. He also said that his sexual libido had been adversely affected by the accident, causing a measure of dissatisfaction for his wife.

12. Since the accident, the plaintiff has not resumed work, he and his family having had to rely on public assistance in the interim. His request for re-employment by the 2nd defendant was turned down.

13. The plaintiff was further examined by Dr. Chang on 8 March 2000 in the afternoon of the 1st day of the assessment hearing for the purpose of updating his recent condition and to reassess his degree of permanent physical disability and loss of earning capacity. This in the event resulted in the loss of an afternoon's sitting with costs implications. In my considered view, such reappraisal if thought necessary should have been undertaken well before the trial. There was time enough for such matters to have been considered and appropriate steps taken. I find the lateness of the medical investigation necessitating an adjournment quite unjustified and the reason proffered by counsel for the plaintiff for not conducting it earlier most unconvincing. The fact remains that these proceedings are distinct and separate from the claim for employees' compensation and the appeal against the assessment of the Employees' Compensation (Ordinary Assessment) Board ought not to have had any bearing on whether the plaintiff should be re-examined for his common law claim. I shall make an appropriate cost order in this regard as sought by the defence in due course.

14. Reverting to the latest medical assessments, following an MRI scan, Dr. Chang diagnosed a new prolapsed disc at L3/4 impinging on the L4 nerve root. He opined that this discovery would account for the pain episode experienced by the plaintiff on 25 September 1999. The scan revealed dehydration of the L3/4 and T11/12 disc, a condition indicative of degenerative changes in the plaintiff's spine. Dr. Chun agreed with the prolapsed disc diagnosis but neither he nor Dr. Chang were able to conclude whether the prolapse was in any way related to the accident. Such a condition was as consistent with natural degeneration of the spine as it was with increased stress having been brought to bear on the L3/4 disc following spinal fusion.

15. Dr. Chang commented that the newly discovered condition was eminently treatable. Coupled with a course of physiotherapy, he fully expects the plaintiff to return to the condition he was in back in April 1999. Following treatment, Dr. Chang saw no reason why the plaintiff cannot return to work as a waiter.

16. It was the plaintiff's contention that as he has experienced no back problems prior to the accident, or if there was pre-existing degeneration of the spine, the condition was exacerbated by the injuries sustained in the accident. Taken in that light, it was submitted that it was more probable than not the prolapse was caused by the accident. Drawing on the inconclusive state of the medical findings, the defence countered that the plaintiff's burden of proving nexus has not been discharged on a balance of probabilities. With that I entirely agree. It is wholly wrong to hold the defendants responsible for the prolapse given the state of the medical evidence.

Damages for pain, suffering and loss of amenities

17. It was common ground that as a result of the accident, the plaintiff had received two series of major operations on four parts of his body and had been hospitalized for nearly four months. The plaintiff urged quantification for PSLA for the multiple injuries to be made at a sum of $700,000. A much lower figure of $450,000 was considered by the defence to be appropriate in the circumstances.

18. A number of cases on assessment have been cited. These included Chan Kui v Lee Fai HCPI No. 126 of 1995 (a case falling just below the "serious injury" category and involving fractures to left tibia and right 5th metatarsal bone where impairment to the whole person was assessed at 7% to 8%. $350,000 was awarded for PSLA). In Lee Kwan Tong v Liu Yee Lim HCPI No. 1383 of 1996, PSLA attracted a sum of $440,000 for fractured shaft of right femur and compound fracture of right tibia resulting in pelvic tilt and the onset of osteoarthritis. With total impairment at 12%, the injuries were held to fall within the lowest end of the "serious injury" category). Cheung Ping v Pak Kee Transportation Co. Ltd. HCPI No 963 of 1997 involved 8% impairment and fracture of left distal tibia and fibula. $440,000 awarded for the injuries falling just below the "serious injury" category. In Chow Siu Ping v Hop Lee Iron Works & anr HCPI No. 103 of 1999, a case of multiple injuries to the back, wrists and hearing, $900,000 was assessed as proper. In Chan Chi Shing v Tsang Fook Metal Engineering & anr CACV No. 238 of 1999, a case falling into the lower end of the category of serious injury, the plaintiff sprained his back resulting in a prolapsed disc impinging on a nerve. Numbness, pain and diminished ankle reflex were consequences of the nerve impairment. Total impairment fixed at 15% was compensated by an award of $460,000, an assessment undisturbed on appeal. The plaintiff there was assessed as fit to undertake a light job which did not involve bending down or bending his back. Bozarth v Yuen Ping Chor & anr HCA No. A5814 of 1993 was a substantial injury category case with serious residual disabilities where a sum of $650,000 was awarded under this head. There were other cases supplied all of which I have perused. Helpful though all these citations undoubtedly are, none is on all fours with the instant case.

19. The plaintiff has claimed significant residual disabilities, an assertion not borne out by the evidence. His injuries albeit extensive when viewed cumulatively have not comprised the quality of life and his prognosis seems fairly optimistic. None of his individual injuries falls within the serious category of injury as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. Doing the best that I can, I adjudge that his various injuries taken together should be recognised by an award under this head of $550,000. This quantum is wholly appropriate in the cirucumstances.

Past loss of earnings

20. There was no controversy that the plaintiff was earning a basic monthly salary of $8,000 plus a month's extra pay as annual bonus at the time of the accident. Equally undisputed was the fact that he was making longer daily runs than his supervisor, DW2 Chung King-on (Mr. Chung) and was therefore able to reap more tips from customers. The Plaintiff claimed that he was taking in tips ranging between $150 and $200 per day and was therefore taking home $13,917 each month on average. In support of this assertion, he relied on his average monthly family expenditure. The amount of tips received by him was the subject of much scrutiny during the trial and Mr. Chung's testimony was offered to demonstrate the unreliability of the plaintiff's claim in this regard.

21. Mr. Chung's evidence was credible and reliable. It was to the following effect. With the all too well-known economic downturn, business for the company had actually dropped in 1998 and 1999. The damaged vehicle had not been replaced and being called upon to make additional deliveries, his tips had increased. On average, prior to the date of the accident, his share of tips was about $2000 a month. He most fairly conceded that he was unaware of how much gratuity the plaintiff was receiving at the time, and accepted that it must have been greater than his as the plaintiff was then undertaking approximately 30% more deliveries each day. The plaintiff asserted that his monthly tips were between $5,000 and $6,000. I find the plaintiff's evidence wholly unconvincing in this connection. As the defence submitted, were this to be true, doubtless his lawyers would have been apprised of it much earlier. Pleasant and helpful though the plaintiff might have been to customers, tipping essentially turned on the whim and generosity of customers as a matter of common sense. As Mr. Chung put it, sometimes one was tipped and sometime not.

22. Deliveries of furniture were and continue to be made to all manner of residence. Where no lifts are available, extra charge per floor for porterage is levied, but this fact has been factored in when Mr. Chung stated his average tips.

23. On the evidence, it would be right and proper to increase Mr. Chung's tips by 30% to arrive at a realistic figure for the plaintiff. I find that the plaintiff's monthly share of gratuity was $2,600.

24. As previously stated, the plaintiff's salary was $8,000 with an annual bonus in like amount. His average month salary would therefore be ($8,000 X 13/12) $8,666.67 rounded up. In light of the poor performance of the economy, it is quite unjustified to apply any percentage of notional increase for the period between the date of the accident and today: see Seagroatt J's observation in Lau Kin Wan v Lam Shu Kan HCPI No. 1208 of 1998. To do so would also be wholly wrong in view of Mr. Chung's evidence that business since the accident has actually fallen.

25. The plaintiff was granted sick leave from 30 September 1997 to 20 October 1999, or 26.66 months. It will be recalled that Dr. Chang, his own expert had considered in mid 1999 that the plaintiff's condition was stable and that he could return to gainful employment. As the prolapsed disc was totally unrelated to the accident on my finding, pre-trial loss of earnings calculated on the basis of his sick leave period would be just and proper. I quantify this loss at ($8,666.67 + $2,600 X 24.66 months) $277,836.08.

Future loss of earnings

26. I am not persuaded on the evidence, that an award under this head is appropriate. The medical evidence was sufficiently clear. The plaintiff can return to work as a waiter of which he has had experience in the past. From 1985 to 1995 he worked in restaurants as waiter, captain and eventually manager. He earned thirteen months salary annually and shared the tips. The restaurant field presents a viable option for employment for the future.

27. The plaintiff said his backache would make it difficult for him to set tables. There are breaks at work between lunch and dinner sessions when he can rest. With treatment and physiotherapy of finite duration as recommended by Dr. Chang, his potential for return to waiting with eventual prospects of promotion and a larger share of tips remains. It should be actively considered and exploited. Counsel for the defendants made reference to the September 1999 Government statistics for wages of waiters in Chinese restaurants to demonstrate that an award for loss of post-trial earnings was inappropriate. I concur. The evidence as it stands would suggest that no future loss would be sustained. This head of damage therefore fails entirely. Before leaving off, I agree that a multiplier of 12 is appropriate should loss have been established.

Loss of earning capacity

28. This was agreed at $36,000.

Loss of retirement benefits

29. This claim is incompetent as the plaintiff should be able to resume working in the near future. With the imminent introduction of mandatory provident fund, the claim is unsustainable.

Cost of future medical expenses

30. An award of $15,000 as claimed is justified on the evidence.

Miscellaneous special damages

31. The quantum was agreed at $15,928.

Conclusion

32. Summarised, the awards are as follows:

PSLA	$550,000
Pre-trial loss of earnings	$277,836.08
Loss of earning capacity	$36,000
Future medical cost	$15,000
Miscellaneous Specials	$15,928
Total	$894,764.08
Less ECC award	$184,000
Net	$710,764.08

33. There will be judgment against the defendants jointly and severally for the sum of $710,764.08. Interests on general damages at 2% from the date of the writ to today and at half judgment rate i.e. 5.77% from the date of accident to today on special damages apply. Interest at judgment rate to accrue until payment.

34. I make an order nisi that the plaintiff's costs, taxed if not agreed, of the assessment are to be borne by the defendants, with liberty to the parties to apply within 14 days hereof, failing which, the order is to become final. The assessment is certified fit for counsel.

35. I have hitherto mentioned the costs occasioned and thrown away by the adjournment. For reasons already stated, these should be paid by the plaintiff, taxed if not agreed as the defence. Timely steps to update the plaintiff's medical assessments had plainly not been taken. For avoidance of doubt, this order is not nisi.

36. There shall additionally be legal aid taxation of the plaintiff's own costs.