CHAN MOK YAU v. 黃吉利 AND ANOTHER

HCPI 913/2016

[2018] HKCFI 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.913 OF 2016

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is a personal injury claim arising out of an accident at work that took place on 23 April 2015 (“Accident”). The Plaintiff was a general labourer in a plastic recycling business and sustained injury to his right ankle.

2.  Interlocutory judgment on liability was entered on 17 October 2017 upon the 1^st and 2^nd defendants’ default in entering any appearance.  This is the hearing for the assessment of damages.  The 1^st and 2^nd defendants were still absent at the hearing.  Upon being satisfied that the 1^st and 2^nd defendants had been given proper notice of the hearing, this court proceeded with the assessment in their absence.

3.  I was informed at the start of the hearing that the 1^st defendant was adjudged bankrupt on 29 November 2017 in HCB 3412/2017.  The official receiver and trustee in bankruptcy have agreed by a consent summons dated 3 May 2018 that leave be given to the plaintiff to continue with the present proceedings against the 1^st defendant on the condition that no judgment or order obtained by the plaintiff shall be enforced against the 1^st defendant without leave of the court and that the plaintiff shall not apply for any order for costs personally against the official receiver or the trustee in bankruptcy in these proceedings.

Background

4.  The plaintiff was born on 24 June 1961 and was 2 months short of his 54^th birthday on the date of the Accident.  He is now 56 years old. He is married with 2 children and received education up to Primary 5.

5.  The Accident took place at around 5pm to 6pm on 23 April 2015. The plaintiff was required to climb up a ladder with a metal spade onto the top of a shredder to clear away a blockage of shredded plastic chips.  The top of the shredder was 10 feet above the ground. The plaintiff fell as he was descending the ladder.  He lost consciousness for a short while.  The ladder landed on his right foot.

Injuries and Treatment

6.  After the Accident, the plaintiff went home and applied some ointment onto his right foot.  As his right foot was severely swollen the next morning, the plaintiff sought treatment from a bonesetter the following day.  He did not see any improvement and attended the Accident and Emergency Unit of Tuen Mun Hospital (“TMH”) on 28 April 2015 complaining of persistent right ankle pain and swelling. Medical examination revealed tenderness over his right ankle and right foot.  He had a swollen right ankle and bruises over his right toes.  His right ankle x-ray showed a bimalleolar fracture.  He was admitted to the Department of Orthopaedics and Traumatology (“O&T”) of TMH for further treatment.

7.  The clinical examination at the O&T of TMH showed local tenderness and bruises over the lateral side of the plaintiff’s right ankle.  His x-ray showed he suffered a distal fibula fracture at his right ankle.  The plaintiff was treated with a cast and discharged 2 days later on 30 April 2015. His cast was taken off after 6 weeks.  He was then transferred to the Physiotherapy Department of TMH for physiotherapy and rehabilitation.

8.  The plaintiff attended 9 sessions of out-patient physiotherapy during the period from 24 July 2015 to 12 October 2015.  The initial clinical findings made on 24 July 2015 showed there was swelling over his right ankle, his right ankle plantar flexion was 40 degrees and dorsiflexion was 20 degrees, muscle strength was graded 4 out of 5 on the Oxford scale, and he could not perform squatting on an objective assessment.  The plaintiff received pulsed electromagnetic field therapy and exercise therapy.

9.  The plaintiff’s condition improved after the physiotherapy treatments.  The final clinical findings on 12 October 2015 showed residual swelling over his right ankle, his right ankle plantar flexion improved from 40 degrees to 50 degrees and dorsiflexion from 20 degrees to 25 degrees, and muscle strength was 5 out of 5 on the Oxford scale.  The plaintiff could perform squatting in full range with mild pain.  He was discharged due to his static progression.

10.  After the completion of physiotherapy, the medical records showed that the plaintiff received work hardening training under a work rehabilitation programme at the Occupational Therapy Department of TMH.  He attended 16 sessions between 8 December 2015 and 22 April 2016.  The initial assessment result showed he continued to suffer from right ankle pain and a reduced range of motions.  His walking tolerance was above 30 minutes but could only walk on stairs at a reduced speed.  He did not manage full squatting, and could lift 14 lbs with one arm and 20 lbs with both arms.

11.  His condition improved slightly after he completed the work hardening training.  The final assessment on discharge showed he could manage full squatting with an adapted posture, and could lift 19 lbs with one arm and 40 lbs with both arms. He also managed ladder climbing.

12.  The plaintiff’s latest follow up with the O&T of TMH was on 18 August 2016. The consultation summary noted the plaintiff still suffered from pain over his lateral ankle region after prolonged walking but managed to walk without aid.  The plaintiff’s condition was stated to be static and was discharged as he had approached maximum medical improvement.

Expert Report

13.  The plaintiff was examined by an orthopaedic expert, Dr Chak Hing Chung Eric (“Dr Chak”), on 18 May 2017, almost 2 years after the Accident.  Pursuant to leave previously granted, I received his written reports dated 14 July 2017 and 30 August 2017 into evidence without the need for him to give oral evidence.

14.  The various treatments and physiotherapy and occupational therapy sessions received by the plaintiff are well summarized in Dr Chak’s reports.  Dr Chak opined his right ankle fracture was consistent with the mode of injury described by the plaintiff.

15.  After reviewing the MRI taken on 21 July 2015, Dr Chak noted that the plaintiff’s right ankle fracture had not healed at 3 months post injury and opined that his injury had led to a delayed union of the fracture.  An x-ray taken on the day of the assessment showed that the fracture had finally healed after the conservative treatment provided by TMH, which he considered was appropriate. He found no evidence of early degenerative changes.

16.  Dr Chak’s physical examination revealed the following:-

1)  He walked into the consultation room unaided with a mild limping gait;

2)  Single leg stance was normal on both sides;

3)  Tip-toe and heel walking was normal;

4)  He squatted fully but complained of right ankle pain;

5)  No deformity on observation;

6)  Normal temperature;

7)  No swelling or effusion;

8)  Tenderness at right distal fibula;

9)  Range of motion of his ankles were as follows

	Right	Left
Flexion	10 degrees	15 degrees
Extension	30 degrees	45 degrees
Eversion	5 degrees	10 degrees
Inversion	25 degrees	35 degrees

10)  Right calf girth was 34 cm, left calf girth was 33.5 cm (0.5 cm less);

11)  Sensation and power of lower limb was normal.

17.  Clinical examination showed there was still stiffness in the plaintiff’s right ankle with a moderate reduced range of motion.  It was noted that the plaintiff still complained of residual right ankle pain which increased with prolonged walking for more than 1 hour and weather changes.

18.  Dr Chak took the view that the plaintiff’s right ankle fracture belonged to Class 1 of the Foot and Ankle Regional Grid for ankle fracture by reference to the Guides to the Evaluation of Permanent Impairment, 6^th edition, published by the American Medical Association.  He took the view that the plaintiff suffered from a lower limb impairment of 8%.  This is equivalent to a 4% impairment of the whole person.  The plaintiff’s loss of earning capacity was estimated at 4%.

19.  Dr Chak was of the opinion that the plaintiff would not be able to resume his pre-accident employment which required him to climb ladders and lift heavy objects of about 50 kgs.  The plaintiff may need to change to a more sedentary job such as a watchman.  The sick leave granted to the plaintiff was considered to be appropriate. According to the medical certificates adduced by the plaintiff, he was granted sick leave from 28 April 2015 to 24 June 2016 (altogether 424 days).

Damages for PSLA

20.  The plaintiff claims HK$250,000 under this head.

21.  I accept the plaintiff’s evidence that he enjoyed good health and was active prior to the Accident.  He used to jog and hike at least twice a month and exercised almost every morning.  Due to the residual pain in his right ankle, he has lost interest in taking part in these activities after the Accident.  I also bear in mind the plaintiff had to walk with crutches for 6 weeks while his ankle was in a cast, as well as Dr Chak’s evidence that the fracture did not heal for 3 months due to a delayed union.

22.  Of the authorities cited by Ms Leung, the best comparables would be Li Chi Sing v Equal Link Limited (unreported, DCPI 1930/2011, 6 March 2013) [2013] HKDC 228 and Cheung Hei Kwong v Kwong Key Construction & Engineering Limited (unreported, HCPI 1260/1999, 13 March 2003) [2003] HKCFI 811.

23.  In Li Chi Sing, the plaintiff in that case slipped and fell.  As a result, he suffered a distal fibula fracture at his left ankle which healed with plate and screws.  There was mild residual ankle pain and stiffness, mild ankle weakness and ankle muscle wasting.  He walked, sat and stood normally.  He could stand on one leg on both sides normally, walk on tiptoes or heels normally and squat fully.  The range of motion for his hip and knees were normal.  He was awarded HK$220,000 for PSLA.[1]

24.  In Cheung Hei Kwong, the plaintiff tripped over a piece of loose jute rope on the ground and lost balance.  He fractured his left ankle and sustained abrasions over his abdomen and chest wall.  He suffered an inversion injury to his left ankle which was grossly swollen.  His left ankle x-ray showed a distal fibula fracture.  The plaintiff still had significant pain in his left ankle one and a half years after the accident, as well as stiffness and weakness on squatting.  There was mild pain in his back and lower limb.  He was awarded HK$200,000 for PSLA.[2]

25.  Guided by the authorities, and taking into account all the relevant circumstances including inflation[3], I award damages for PSLA in the sum of HK$250,000.

Loss of Pre-Trial Earnings

26.  I accept the plaintiff’s evidence that his daily wage was HK$500 with a daily meal and travel allowance of HK$40 and $20 respectively.  He worked 26 days per month.  Therefore, his average monthly earnings was HK$14,560.00 (HK$560 x 26 days) prior to the Accident.

27.  My attention was drawn to the Report on Annual Earnings and Hours Survey published by the Census and Statistics Department in March 2016 and March 2017. I accept Ms Leung’s submission that the percentage increase of median monthly wages at 4.6%[4] and 3.6%[5] for the manufacturing industry is the closest reference for the present case.  Applying the same percentage increases to the plaintiff’s average monthly earnings, his monthly earnings from 1 July 2016 to 9 May 2018 (being the date of this hearing) would be (i) HK$15,229.76 (HK$14,560 x 1.046) for the period from 1 July 2016 to 30 June 2017 and (ii) HK$15,778.03 (HK$15,229.76 x 1.036) for the period from 1 July 2017 onwards.

28.  The plaintiff was granted sick leave for 424 days from 28 April 2015 to 24 June 2016.  I accept the evidence of Dr Chak that this was appropriate.

29.  I also accept Dr Chak’s opinion that his residual right ankle pain, stiffness and reduced range of motion would curtail his ability to resume his pre-accident work as a manual labourer which required him to lift heavy objects and that the plaintiff would have to change to a more sedentary job such as a watchman after the expiry of his sick leave.  Given his limitations and education level, he would require a reasonable period of time to look for suitable employment.  I accept it would be fair and reasonable to allow an extra 3 months after the end of the sick leave period to cater for adjustment and time to search for a new job.  Accordingly, I award damages for full loss of earnings on the basis of his previous average monthly wage from 28 April 2015 to 24 September 2016.

30.  The plaintiff rightly concedes that he should have taken up new employment of a more sedentary nature such as a watchman or a caretaker after 24 September 2016.  His case for damages for loss of earnings for the period from 25 September 2016 up to the date of this hearing is on the basis of his previous average monthly earnings less the notional monthly earnings he would earn as a watchman or a caretaker.  I accept the plaintiff’s case that the expected monthly salary of a watchman or a caretaker would be to the tune of HK$11,000, which is in line with the median monthly wage of employees in the estate management, security and cleaning services sector as published the Census and Statistics Department in its Report on Annual Earnings and Hours Survey.

31.  On the above basis, I award pre-trial loss of earnings for the period from 28 April 2015 up to the date of this hearing in the sum of HK$339,619.55. This is calculated as follows:

Period	Loss of Earnings	Amount
28.4.15 to 24.6.16 25.6.16 to 24.9.16	HK$14,560 x (424/30 days) HK$14,560 x 3 months	HK$205,781.33 HK$43,680.00
25.9.16 to 30.6.17	HK$4,229.76 (HK$15,229.76 – HK$11,000) x (279/30 days)	HK$39,336.77
1.7.17 to 9.5.18	HK$4,778.03 (HK$15,778.03 – HK$11,000) x (313/30 days)	HK$49,850.78
		_____________
		HK$338,648.88

32.  I also award loss of mandatory provident fund benefits during this period in the sum of HK$16,932.44(HK$338,648.88 x 5%).

Future Loss of Earnings

33.  The plaintiff is now 56 years old and says he would retire at the age of 65.  As Dr Chak’s evidence is that the plaintiff is not suffering from any early degenerative condition and there is no evidence showing that he is not able to work until 65, I accept he would have been able to continue his pre-accident work until 65.

34.  According to Chan Pak Ting v Chan Chi Kuen & Anor [2013] 2 HKLRD 1, the discount rate to be applied to select the appropriate multiplier for a plaintiff with a remaining working life not exceeding 10 years is 1% per annum.  Table 9 of Personal Injury Table Hong Kong 2016 gives a multiplier of 8.4 for assessing the plaintiff’s future loss of earnings.

35.  The award for future partial loss of earnings is assessed at HK$481,625.42 [(HK$15,778.03 – HK$11,000) x 12 x 8.4] and further loss of MPF benefits is HK$24,081.27 (HK$481,625.42 x 5%).

Loss of Earning Capacity

36.  The plaintiff claims HK$99,000 under this head on the ground that his inability to carry out work requiring prolonged periods of walking and standing etc as a result of his injuries, coupled with his low education level and lack of special skills, would put him at a real risk of a disadvantage in the labour market.

37.  Based on my findings of the residual disability suffered by the plaintiff, I am satisfied on a balance of probability that there is a substantial and real risk that the plaintiff will lose his job at some time before the estimated end of his working life.  Premised on his notional income of HK$11,000, I award HK$99,000 as general damages under this head on the basis that he would be out of work for about a month every year for his remaining working life of 9 years.

Other Special Damages

38.  I am satisfied the expenses claimed have been reasonably incurred and I award the sum of HK$17,635 as special damages for pre-trial medical expenses, travelling expenses and tonic food.

Interest

39.  In addition, I award interest for PSLA at the rate of 2% per annum from the date of service of the writ to the date of judgment.  I also award interest on pre-trial loss of earnings and MPF benefits and other special damages at the rate of 4% per annum from the date of the Accident to the date of payment of the employees’ compensation awarded in DCEC 1801/2016 and, thereafter, at the same rate up to the date of judgment any remaining balance of such damages after the deduction of the amount of employees’ compensation from those damages.

Summary

40.  Credit will be given for the sum of HK$149,695 awarded in DCEC 1801/2016.  The net sum of the damages assessed is HK$1,078,228.01 plus interest.

41.  A summary of my award is as follows:

	Description	Amount (HK$)
(a)	PSLA	250,000.00
(b)	Pre-trial loss of earnings and MPF ($338,648.88 + $16,932.44 )	355,581.32
(c)	Future loss of earnings and MPF ($481,625.42 + $24,081.27)	505,706.69
(d)	Loss of earning capacity	99,000.00
(e)	Special damages	17,635.00
	Less: Employees’ compensation	149,695.00
	Net Award:	1,078,228.01 (plus interest)

Costs

42.  I make a costs order nisi that the defendants pay the costs of this assessment to the plaintiff to be taxed, if not agreed, and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.