WONG SUN MING v. CHUNG KAM TIM t/a VIKING CONTRACTORS CO.

HCPI 117/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 117 OF 1999

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Assessment of Damages

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Introduction

1. The plaintiff, a construction worker now aged 46 having been born on 26 February 1954 fell off a scaffolding during the course of his employment with the defendant on 9 February 1996, injuring his spine and right wrist. Interlocutory judgment for damages to be assessed was entered on 16 February this year. The plaintiff was the sole witness at today's hearing. Albeit his testimony was unchallenged as the defendant had chosen not to participate in these proceedings since the filing of the claim, I formed the view that he was an honest, straightforward and reliable witness. There was no reason to doubt the veracity of his evidence which I wholly accept for present purposes.

The medical findings

2. In all there are three medical reports, the fullest of which was that of Dr. Richard Lau dated 18 September 1999. The remaining two were from two doctors of Queen Mary Hospital both dated not long after the industrial mishap.

3. The medical evidence clearly demonstrated that the plaintiff had suffered a wedge fracture of his 2nd lumbar vertebra. He was treated and discharged on 15 February 1996. The assessment of Dr Li Ka Kin dated 13 August 1996 confirmed residual back pain which the plaintiff testified still recurs from time to time with the onset of inclement weather. When that happens, he said he would be unable to turn up for work. This I accept.

4. Dr. Lau opined that the plaintiff's spinal condition had improved 80% in the year following the accident. The plaintiff's complaints to him were of increased back pain with the change of weather, discomfort over the left shoulder, the right elbow and wrist and defective sexual activity on account of the back pain. He found the plaintiff's general condition to be satisfactory, that his gait though steady was slow and that he could not fully squat. There was a slight reduction in grip strength in the right hand.

5. The eight sick leave certificates exhibited as P2 were for a shorter period than what was considered appropriate by Dr. Lau. He was of the view that with the plaintiff's medical condition and injuries, the appropriate duration should have been eighteen months from the date of the accident. With this I concur. Impairment to the whole person was put at 10% and loss of earning capacity (a matter not strictly within the doctor's brief and field of expertise to offer) at 28%.

PSLA

6. I consider that the plaintiff's injuries fall below the serious injury category. They were by no mean inconsequential. His residual disability has made it impossible for him to return to his former employment. A number of cases on quantum have been drawn to my attention. These I have read. No cases are on all fours with the instant case. The cases mentioned are Lai Ching v Wong Chiu Kwai, PI No. 1192 of 1996, Law King Sang v Law Yin Sang, PI No. 923 of 1995, Kwan Wing Sang v Chi Chiu Engineering Co. Ltd., PI 1045 of 1995 and Chan Siu Lun v Hui Cho Yee, PI 120 of 1997. Doing the best that I can, I adjudge damages under this head at $330,000.

Pre-trial loss of earnings

7. The plaintiff was engaged as a plumber earning $19,500 at the time of his fall. He was working about 26 days a month and daily rated at $750. It was submitted that he would have remained a plumber working on construction sites but for the accident. This I hold to be true. I allow for a 10% increment of that salary for the year 1997 and for no increase thereafter to reflect the economic downturn as suggested by counsel. His salary as a plumber would therefor have increased to $21,450 pm ($750 x 110% x 26 days).

8. Upon the basis that he was only able to return to work as suggested on 9 August 1997 and not before on the evidence of Dr. Lau, his loss of earnings from the date of accident till then would be calculated thus.

9. The median salary for the period I assess at $20,475, being the average of his wage at the time of the accident and the notional salary reflecting a 10% increment. As it was justified for him to be off work for 18 months, his loss for the period from 9 February 1996 to 8 August 1997 amounts to $368,550 ($20,475 x 18 months).

10. The plaintiff returned to work doing lighter duties in a construction site on 9 August 1997 earning a reduced salary of $650 per diem or $16,900 pm. His loss of earnings from then to today, just two days short of 35 months I quantify at $123,825 ($20,475 less $16,900 x 35 months less 2 days' wages totalling $1300).

11. His pre-trial loss of earnings therefore comes to $492,375 ($368,550 plus $123,825).

Future loss of earnings

12. A multiplier for a hard-working construction worker such as the plaintiff who intends to work as long as his health and physical condition would permit in my judgment should be 8 as submitted given his current age of 46. As he is no longer fit to return to his pre-trial employment and will continue to earn less in the future, I will award him a sum of $436,800 under this head. This is arrived at as follows: $21,450 - $16,900 x 12 x 8.

Loss of earning capacity

13. The circumstances of the case warrant an award under this head of claim. The plaintiff testified that he continues to suffer from back pain resulting on occasions when he was unable to report for work. He is no longer able to climb scaffoldings or lift heavy weights. His continuing disability exposes him to a real risk of losing his employment in a competitive market. It would be right and proper to award a sum of $100,000 to reflect his handicap and possible difficulty in securing alternative suitable employment. I so order.

Special damages

Medical expenses
(a) Hospitalization at Queen Mary Hospital
The claim of $360 supported by exh. P1 is allowed.

(b) Out-patient treatment at Sai Ying Pun Polyclinic
8 visits were made at $40 per visit. This claim is supported by exh. P2 and the plaintiff's evidence. I allow $320 in this regard.

(c) Bone-setter's fees
Between 50 and 60 visits were made by the plaintiff to this Chinese medical practitioner in Dongkuan in China. No receipts were offered. The only evidence of the amounts paid was in exhs P3 and 4. These consultations were not prescribed by any medical practitioner in Hong Kong. The plaintiff said his condition had improved through these visits. Counsel asked for an award in respect of 52 visits. I will allow this claim as it is not uncommon for Chinese to resort to traditional medical care. The amount claimed is not unreasonable in any way and the medical attention received has benefited the plaintiff. The claim of $24,364 is awarded.

(d) Tonic food
The plaintiff said he spent about $3000 on special tonics such as deer tail that made him feel better. This amount is not extravagant and I award the sum now claimed.

(e) Travelling expenses
I award $160 for 8 visits to the Sai Ying Pun Polyclinic at $20 per visit as claimed. Additionally, as the visits to the bone-setter were allowed, I will also factor in a sum of $15,600 for 52 visits across the border to Dongkuan at $300 per visit. Counsel has sought reimbursement for 52 visits.

Interests

14. There will be interest at 2% per annum from the service of the writ to the date hereof on general damages and at half the judgment rate from the date of the accident to today on the special damage and past loss of earnings awards. The plaintiff shall also have his costs of this assessment taxed if not agreed against the defendant. His own costs shall be taxed in accordance with the legal aid regulations.