LEE HON CHUEN v. FUNG KIN SANG AND OTHERS

1989, No.A1105

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-------------------

-----------------------------------------

ASSESSMENT OF DAMAGES

-------------------------------------------

1. These proceedings arise out of an accident which occurred on 25th March 1986 when the Plaintiff, in the course of his employment as a welder with the lst Defendant on a building sits, fell from a height of about 20 feet, sustaining injuries to his back and to his right heel.

2. The writ in this action was issued on 1st March 1989, and judgment for the Plaintiff against both Defendants, for damages to be assessed, was entered by consent on 21st January 1991.

3. Two items of the damages claimed were agreed by the parties, namely special damages in respect of medical and travelling expenses in the sum of $8,364.00, and total loss of earnings during the period of the Plaintiff's sick leave from the date of the accident to 4th May 1987, being $74,592.00.

4. From the medical reports and evidence of Dr. Chiu Hok Ming and Dr. Philip Mao it is clear that the Plaintiff suffered a burst compression fracture of the 1st lumbar vertebra, and a depressed fracture of the oscalcis in the right heel. The fracture of the vertebra was treated with a lower lumbar corset, and that of the heel by plaster of Paris up to below the knee. He was discharged from hospital on 13th April 1986 wearing a lumbo-sacral jacket extending from the pelvis to the chest with the back in slight hyper-extension, i.e. slightly bent backwards. He could only walk with crutches at this stage, and continued to be followed up as an out patient, and, with physiotherapy for about 3½ months. He was able to dispense with the crutches after about 6 months. He was given sick leave until 4th May 1987.

5. However, the Plaintiff did not return to work until September 1988 and claims that he was unable to do so until then because of his injuries, and has suffered a further partial loss of earnings since then.

6. From the medical evidence it is apparent that the Plaintiff sustained two serious fractures, from which he has made a remarkable recovery. Dr. Mao's reports show that by October 1989 he had recovered normal movement of his back with "no handicap whatsoever" and only slight limitation of movement of the right foot, and some shortening of the right Leg. However, he still complained of pain in the back and right foot.

7. Dr. Mao says that the Plaintiff will always now have a weak back and ideally should always wear the lumbo-sacral jacket to prevent further damage. However, he accepted that it is not feasible for a man such as the Plaintiff to wear such a restrictive garment all the time as it would severely hamper him in his work.

8. The Plaintiff did wear the jacket for some time after discharge from hospital, but had ceased to do so all the time by about the end of his sick leave.

9. It is contended on behalf of the Defendants that had he continued to wear the jacket, his back would have recovered earlier, allowing him to return to his pre-accident employment as a welder, and in any event he was sufficiently recovered by the end of his sick leave to have taken up some employment, even if it were of a lighter nature.

10. The evidence as to the effect of the jacket on the healing process of the back I have to say is inconclusive. Neither doctor was able to say that in the Plaintiff's case the healing would have been faster, the effect varying from case to case. While it may have assisted the healing process, the only thing that one can say with certainty on the evidence is that it would have reduced discomfort and prevented further damage. I am not satisfied that by not wearing the jacket the Plaintiff thereby delayed the time he could return to full-time employment at his previous trade.

11. As to when he could have returned to work of a lighter nature than before, Dr. Chiu says he could have done something after three months.

12. I find this unlikely. The Plaintiff was on crutches for 6 months and on sick leave for 13 months. I have already found that there is insufficient evidence that the Plaintiff failed to take proper steps to speed the healing process, and I find Dr. Mao's estimate of 12 months more realistic. In any event the Defendants have accepted the loss of earnings over the sick leave period of 13 months.

13. It is another matter whether he should have sought employment of some kind between the end of his sick leave in May 1987 and September 1988 when he finally started work again.

14. The evidence of Dr. Mao, which I accept, is that when he examined the Plaintiff in May 1988, although he still had a number of complaints of pain and stiffness, he could do other work not requiring lifting heavy weights, and probably could work as a caretaker.

15. The Plaintiff is a skilled welder, and has done nothing else for nearly 30 years, over which time he has built up considerable experience. It is a trade at which he earned a good wage and one to which he wanted to return when he was fit to do so.

16. However, he said in evidence that he did not feel he could do any employment for a long time after his sick leave. He said tht he was still on crutches and receiving physiotherapy. However, while I consider him an honest man who gave evidence as truthfully as he could, I believe his memory was at fault here and that by the end of his sick leave he no longer needed crutches and was no longer receiving physiotherapy.

17. I accept that he went to see another doctor, a Dr. Cheng, whose receipts for consultation and medication were produced, on six occasions during the year May 1987 to April 1988, but there is no evidence as to the nature of the treatment given, which may only have been analgesics.

18. The Plaintiff admitted that during this period he had been to the Labour Department and had been offered employment as a watchman, but said that he felt he could not do such work as he could not sit for a long time.  He did not know how much he would have been paid.

19. On the evidence before me I consider it unlikely that the Plaintiff could have found suitable work immediately upon the expiration of his sick leave in May 1987, and not reasonable to expect him to do so. However, as is clear from Dr. Mao's reports, he was making a remarkable recovery, and at some time in the following 16 months could and should have obtained light employment of some king such as watchman or caretaker. In the circumstances I find that he ought to have returned to light work for half that period, namely 8 months.

20. There is no evidence at all of what, he might have earned at such work. On the evidence of the statistics of the Census and Statistics Department produced by the Plaintiff, to which I shall return later, the lowest paid worker in the building industry in January 1988, i.e. 8 months after his sick leave, was a female labourer earning $153.30 a day. In a 24 day month this would produce $3,679.20. I do not believe that a caretaker or watchman would earn a lot less than that, but Mr. Poon for the Defendants has suggested a figure of $2,000 a month. I consider that a reasonable suggestion of the least that the Plaintiff might have earned and adopt it is the basis of the calculation of his loss of earnings for this period.

21. What then would lie have earned in the period from 5th May 1987 to 4th September 1988 had he not had the accident?

22. Mr. Lai has produced a list of potential earnings based on the statistics referred to earlier, and calculated by equating the Plaintiff's earnings to those of a blacksmith. He claims that this is a valid comparison as the blacksmith is a general metal worker who includes welding as only one of his skills, whereas the Plaintiff is a specialist, an experienced welder who does nothing else.

23. I cannot agree with this reasoning. While I accept that the Plaintiff is a skilled and experienced welder, that is all he can do. A blacksmith by definition is a trained metal worker who has many skills, welding being only one of them. I therefore find that, there being no occupation listed in those statistics that directly equates to that of the Plaintiff, they are of little value in determining the proper wage of a welder on the open market. The only remaining method of calculating what his earnings might have been is to take an average based on his pre-accident earnings of $5,600.00 per month and what his income should have been when he returned to work, were it not for the accident.

24. The Plaintiff started work again on 5th September 1988, with the company which still employs him, but as a casual worker only, assembling metal railings with no welding work, earning $200.00 a day, and for 4 months earned on average, with overtime, $6,041.65 a month.

25. He then transferred to another site where he recommenced work as a welder and his wages increased to $250.00 a day, at which they remained until going up to $300.00 a day in August 1989. During this period he earned an average with overtime of $9,960.67 a month.

26. It is significant that during that period, from January to August 1989, the Plaintiff was working on average of 28 days a month and doing a considerable amount of overtime, and although the Plaintiff says that he was lucky in that there were many idle hours on that site for which he was paid, the site being near the sea and the time of work being governed by the tide, there is no evidence that he was not able to work a full month, indeed, all the evidence is to the contrary, and no evidence that he was not paid the same as any other able-bodied welder.

27. Evidence was also given by Mr. Ng Chi Tang, a private investigator, who was employed by the Defendants to conduct surveillance on the Plaintiff in September 1988. Mr. Ng followed the Plaintiff to work on two days, watched him walk to the bus terminus, get on a bus, change once to another bus and then a taxi and go to work at Yuen Long. He watched him at work and took photographs. He said that he did not see the Plaintiff limp when walking, and although it was not part of his brief to watch for this, if he had limped badly I would be surprised if he had not noted it, and he said the Plaintiff appeared to work normally without limitation of movement. The photographs he took at the time appear to bear this out.

28. This, taken together with the medical evidence of Dr. Mao as to the Plaintiff's recovery leads me to the conclusion that, although the Plaintiff was still suffering some discomfort from his injuries, and may do so for a long time, by the end of 1988 he was sufficiently recovered to resume full time employment with no loss of wages.

29. This has continued to be the case since then, and on his own evidence he is now earning no less than other welders and he is able to work at least the same number of days and the same amount of hours of overtime than before the accident.

30. From the purposes of his partial loss of earnings prior to September 1988, I therefore propose to take a median figure based on the average earnings when he resumed work full-time as a welder from January to August 1989, and his pre-accident earnings, giving a figure of $7,780.34, being $9,960.67 + $5,600.00 divided by two. For those 16 months his loss would accordingly be 8 months at $7,780.34 and 8 months at $5,780.34, allowing for his notional earnings of $2,000.00 per month, giving a total of $108,485.44.

31. The next period to consider is that from September 1988 to January 1989, when he resumed work as a welder. As I have said above, his average earnings during that period were $6,041.65. Taking the same median of $7,780.34, he accordingly suffered a partial loss of $1,738.69 per month for four months, giving a total of $6,954.76.

32. If follows from what I have said above that I find the Plaintiff to have suffered no loss of earnings as a result of the accident since January 1989, and continues to earn the same wages as any other welder doing similar work.

33. There is therefore no continuing loss of wages. However, Mr. Lai has submitted that as the Plaintiff will be at a disadvantage on the labour market should he lose his job, an award should be made for loss of earning capacity.

34. There is some merit in that argument, although he has recovered sufficiently for such a disadvantage to be minor, and he has to his credit learnt to manage well in spite of such discomfort that he still experiences. I consider a proper award in this case would be $10,000.00.

35. The only other matter is an award of general damages for pain, suffering and loss of amenities.

36. Mr. Poon has referred me to a number of cases which he says point to a sum of not more than $150,000.00. Mr. Lai in his submission also puts the appropriate figure at $150,000.00.

37. I agree with them that in the circumstances of this case that is a proper sum to award.

Summary

General damages

Pain suffering and loss of amenities :	$150,000.00
Loss of earning capacity :	$ 10,000.00
	--------------
	$160,000.00

Special damages

Loss of earnings

 

25.3.86 to 4.5.88	$ 74,592.00
5.5.88 to 4.9.88	$108,485.44
4.9.88 to 31.1.89	$    6,954.76 ---------------
	$190,032.20 --------------
Medical and travelling expenses :	$   8,364.00 --------------
Total :	$358,396.20 ========

38. From this must be deducted the sum of $115,332.77 received by the Plaintiff by way of employee's compensation, and interest on that sum conceded by Mr. Lai at $13,444.96, leaving a total of $229,618.47.

39. There will also be in on general damages at 2% from the date of the writ to the date of trial, and on the special damages at 5% from the date of accident to trial.

40. I will hear the parties as to costs.