LEUNG HING SUM v. YAU LEE CONSTRUCTION CO. LTD. AND OTHERS

HCPI 422/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 422 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of personal injury compensation consequent upon an interlocutory judgment entered in favour of the plaintiff against all 3 defendants on 20 October 2000 for damages to be assessed.

2. The plaintiff worked as a metal worker for 20 years prior to the accident. Since September 1996 he was employed by the 3rd defendant to install metal fence at a construction site in Choi Wan Estate, Kowloon. The 1st defendant was the principal contractor of the site. The 2nd defendant was a sub-contractor while the 3rd defendant was a sub-sub-contractor.

The Accident and the Plaintiff's Injuries

3. On 13 May 1997 the plaintiff was carrying out his work. Whilst drilling on the ground the plaintiff struck an underground cable and an explosion resulted. The plaintiff was engulfed in fire and was physically and electrically burnt. He was hospitalized for over one month from 13 May 1997 to 18 June 1997 during which time skin grafting and debridement operations were performed on him. Pressure therapy and physiotherapy were administered. He had to wear the pressure jacket for some 2 years and was granted continuous sick leave for about 2 1/2 years till 10 December 1999.

4. The injuries sustained by the plaintiff were 3 folds: (i) electrical and physical burns resulting in physical and cosmetic disabilities; (ii) electrical thermal trauma to his maxilla teeth; and (iii) development of post-traumatic adjustment disorder.

Burns giving rise to physical and cosmetic disabilities

5. The plaintiff suffered 36% second degree burns to his face, lips, neck, anterior trunk and both of his upper limbs. Four years on from the accident, the plaintiff still had patches of scars on his body over his face, neck, chest and extensively over his left and right upper limbs. The scars over his face and neck were less noticeable after 4 years of maturation while the scars on his two arms and hands were either hypopigmented or hypertrophic. Hypopigemented scars also developed at the donors sites of his two thighs.

6. Due to scar contracture, the plaintiff experienced pulling discomfort over his left elbow, his two wrists and the web space of his right hand. As a result the strength of his upper limbs and his hand grip were reduced. At the day of the assessment hearing the plaintiff still experienced pain, irritation and itchiness round the scars in the region of his elbow and wrists.

7. Plastic surgeon Dr. Gordon Ma assessed the plaintiff to be suffering from a 5% permanent impairment on account of his scar itchiness and 4% permanent disability on account of his scar contracture, culminating in a total loss of 9% of permanent impairment.

Thermal trauma as a result of the electric shock received

8. In addition to his physical burns, the plaintiff was found to have suffered thermal induced pupitis as a result of the electric shock he received. A few of his upper anterior teeth were still hypersenitive to cold air and hot water 5 months after the accident. The labial surfaces of those upper anterior teeth showed enamel pitting which resembled the look of melted enamel. Treatment including scaling, polishing, composite resin fillings were given.

Psychological Disabilities

9. The plaintiff, aged 51, used to be an optimistic person. He used to enjoy playing basketball, badminton and swimming. After the accident he became withdrawn. He had no further desire to participate in social and sporting activities. He felt inferior and entertained a sense of unworthiness. Suicidal thoughts developed occasionally. He felt depressed and was anxious on account of his unemployment. He had difficulty in falling asleep and developed insomnia. His insomnia was aggravated by the itchiness of his scars at night. His sexual urge dropped and his sexual activities reduced from once a week to less than once a month. Tranquillizer was prescribed to help him sleep.

10. Dr. Chan Chung Mau diagnosed the plaintiff to be suffering from post-traumatic depression with impairment in his psychological, social and occupational functioning. In December 1999 Dr. Chan assessed the plaintiff to be suffering from psychological impairment in the range of 15% to 20% and recommended psychiatric treatment. In February 2000 Dr. Chan recommended the plaintiff to receive 26 to 40 sessions of medication and psychotherapy treatment at HK$1,200 -HK$2,000 per session.

Compensation for pain, suffering and loss of amenities

11. The plaintiff was fully conscious at the time of the accident. He sensed and felt the charring of his own skin, which he saw shrunk, cracked and peeled off with the flesh underneath exposed. In his description it was very painful. His teeth were electrified, resulting in hypersensitivity for 5 months and change in coloration of some of his anterior upper teeth. He was hospitalized for over a month, went through debridement and skin grafting twice. His injuries necessitated his continuous absence from work for about 2 1/2 years. He was required to wear the pressure jacket during the 2 years of his recuperation period. His sex life was affected.

12. With reference to the quantum of compensation awarded in cases put forward by counsel for both parties, I consider the plaintiff to have sustained injury in the top range of serious injury in light of his cumulative physical, dental, cosmetic and psychological injuries. I am prepared to award him a sum of HK$540,000 compensation .

13. I accept the submission of defence counsel that in light of the present economic climate and the current composite consumer price index, adjustment on account of inflation is unnecessary.

Pre-trial Loss of Earnings

14. There was no dispute that the plaintiff was earning HK$15,600 per month prior to the accident. D1 signed and acknowledged that the plaintiff ought to be allowed an 8.33% increase in his salary and be re-adjusted to HK$16,900 for the year of 1997/1998. In light of the economic downturn in late 1997, I am prepared to accept the evidence of defence witness Mr. Law Yuk Ming that there was no adjustment of salary in 1999. The rate of increase of daily wages of the defence witness in the year of 2000 was 4.6% ($680-$650/$650), representing the general increase of wages in the construction industry in the year of 2000.

15. At the expiration of his sick leave period the Plaintiff sought alternative employment. Despite of his attempts to secure alternative employment the plaintiff was not able to obtain a job until 23 March 2000 when Young's Engineering Company Limited engaged him as an air-conditioner worker at a monthly salary of HK$5,500.

16. The median income of the plaintiff during the period he was unemployed from May 1997 to March 2000 was HK$16,769 {1/4 [$15,600 + $16,900 + $16,900 + 1.046%($16,900)]}.

17. According to the information provided by Young's Engineering Company Limited, the plaintiff received a total of HK$58,169 for the period from 23 March 2000 to 31 December 2000. For the period from January 2001 to March 2001 the plaintiff received a basic salary of HK$5,500 per month. In January 2001 he was paid an overtime allowance of HK$468. Hence the total income the plaintiff received from Young's Engineering company from 23 March 2000 to 9 April 2001 was HK$76,787 ($58,169 + 3 x $5,500 + $468 + 9 days/30 days x $5,500)

18. The plaintiff was granted sick leave from 13 May 1997 to 10 December 1999. But for the accident, he would have been able to continue to work as a metal worker in the construction industry. The plaintiff had made reasonable efforts to secure alternative employment but was unable to obtain employment until 23 March 2000. The period of pre-assessment loss of earnings was a total of 47 3/4 months from 13 May 1997 to 9 April 2001. The plaintiff's loss of accrued earning from the date of the accident to the date of the assessment would be HK$ 723,932 ($16,769 x 473/4 months - $76,787).

Post- trial Loss of Earnings

19. The plaintiff was aged 47 at the time of the accident and was aged 51 at the day of the trial. I accept the plaintiff's testimony that he was not able to withstand hot working environment on account of the adverse effect of his sweat on his scars. He confirmed that he intended to work till 60 years of age. Taking into account other judicial decisions I am prepared to adopt a multiplier of 7 in the computation of his future loss of earnings. The plaintiff's loss of future earnings would be HK$ 946,596 ($16,769 -$5,500) x 12 x 7)

Loss of Mandatory Provident Fund

20. The plaintiff was entitled to the employer's contribution of 5% of his income since December 2000. His loss of employer's contribution in his mandatory provident fund would be HK$49,724 {5% [($16,769 - $5,500) x 4 1/4 months from December 2000 to 9 April 2001 + ($16,769 - $5,500) x 12 months x 7]}.

Loss of Earning Capacity

21. With the extent of the plaintiff's injuries, the risk of being made redundant during economic downturn is not negligible. I am prepared to award the sum of HK$11,000 representing 2 months of the plaintiff's income.

Special Damages

Hospital and medical expenses

22. The defendants had no quarrel with the plaintiff about the sum of HK$11,303 hospital and medical expenses incurred by the plaintiff. The medical bill in respect of the plaintiff's consultation with Dr. Chan Chung Mau was a head of litigation expenses rather than medical fees incurred towards securing treatment for the defendant.

Travelling expenses

23. The plaintiff claimed a sum of HK$9,800 travelling expenses, being the taxi fare for attending the United Christian Hospital, Dr. Ma and Dr. Chan. I accept it would be reasonable for the plaintiff to utilize taxi service during the time that he was required to be in his pressure jacket. Hence the sum of HK$8,300 of taxi fare in attending treatments at the United Christian hospital were reasonably incurred. The plaintiff agreed that he could have taken public transport to attend Dr. Ma. Hence the reasonable sum of travelling expenses would be the return journey from the plaintiff's home in Tseung Kwan O to Dr. Ma's clinic in Central (2 x $7 PLB fare from the plaintiff's home in Tseung Kwan O to Kowloon Tong and $ 10 MTR fare from Kowloon Tong to Central). Since the consultation with Dr. Chan was for litigation purpose, the traveling expenses in attending Dr. Chan would likewise be an item of litigation expense. Total travelling expenses allowable were HK$8,334 ($8,300 + $34).

Domestic Helper service fees

24. The plaintiff engaged domestic helper from June 1997 to January 1998 to help in applying medication and to put on his pressure therapy jacket. He was also not fit enough to attend to his daily activities during the time when his wife was at work. He paid Madam Ho HK$3,500 a month for 7 months from 20 June 1997 to 20 January 1998. I accept the sum of HK$24,500 to be reasonably incurred.

Damaged clothing and wedding ring

25. The defendant did not dispute that they were liable to the plaintiff for the sum of HK$1,200 in respect of his burnt clothes and destroyed wedding ring.

Tonic food

26. On tonic food the plaintiff was claiming a sum of HK$101,390 for the birds nest he consumed for the purpose of assisting his skin growth. Though the plaintiff was able to produce the receipt in respect of the tonic food he consumed, falling short of scientific proof of the medical value of the special food save its psychological benefit, I am prepared to allow a sum of HK$25,000 in respect of the tonic food the plaintiff consumed during his recuperation period of 2 1/2 years.

Future medical expenses

27. The plaintiff claimed a sum of HK$31,200 - HK$80,000 for psychiatric treatment recommended by Dr. Chan in February 2000. With the gradual improvement of the plaintiff's health condition and the stablisation of his psychological condition after he secured his new employment, I accept the lower range of additional psychological counseling recommended to him; i.e. a sum of HK$31,200 for 26 sessions of counselling at HK$1200 per session, to be reasonable.

Employee Compensation

28. The Plaintiff was awarded a sum of HK$556,586.49 compensation pursuant to the Employees' Compensation Ordinance. Credit ought be given to the said sum in the present common law damages award.

Award

29. I accept the following to be reasonable and fair quantification of the Plaintiff's damages:-

(a) Pain, Suffering and Loss of Amenities	540,000
(b) Loss of pre-trial earnings	723,932
(c) Loss of future earnings	946,596
(d) Loss of mandatory provident fund	49,724
(e) Loss of earning capacity	11,000
(f) future medical expenses	31,200
(g) medical expenses	11,303
(h) traveling expenses	8,334
(i) domestic help	24,500
(j) damaged clothing and wedding ring	1,200
(k) tonic food	25,000
	HK$2,372,789
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30. As credit ought be given in respect of the sum of HK$556,586 employee's compensation awarded to the plaintiff, I award the plaintiff the sum of HK$1,816,203 ($2,372,789 - $556,586) compensation.

31. I award interest on the head of pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. I also award interest on the loss of pre-trial earnings and the special damages for items (g) to (k) at half the judgment rate from the date of the accident to the date of judgment. Post judgment interest accrues from the date of judgment until payment.

32. I further award costs nisi against the defendants in favour of the plaintiff. Unless parties apply to be heard on the question of costs, this order nisi would become absolute at the expiration of 14 days from today. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.