CHEUNG FAT TIM v. WONG SIU MING trading as KEE CONSTRUCTION CO. and Another

1991 No. A5079

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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The Background

1. The plaintiff was, for some 26 years until 14 July 1988, a steel binder. A steel binder is a person who manipulates very heavy steel bars for use in re-enforcing concrete. At times, he works on scaffolding some distance from the ground. He was doing so on 14 July 1988. He fell. He fell when he was descending a scaffolding because he placed his foot on a metal bar that gave way under him. He did not fall very far; perhaps ten or twenty feet. He was able to arrest his descent some ten to fifteen from the ground by grabbing another metal bar.

2. As industrial accidents go, this was not a serious incident, and, in all probability, this court would have heard nothing of it, but for one thing. Unfortunately, at the time of his fall, the plaintiff's right elbow was already severely arthritic and, possibly, injured by some earlier trauma. The accident in July 1988 triggered consequences that were very serious, resulting eventually in a total elbow replacement, with several severe complications.

3. The plaintiff now pursues the defendants, who were his employers and occupied the site on which the plaintiff was working at the time of the accident, for damages.

Liability

Liability for the accident was denied by the defendants on the pleadings, and Mr Coleman, who appeared for the defendants, tested the plaintiff's evidence in cross-examination. However, while not admitting liability, Mr Coleman did not, in his closing address, seek to argue that liability had not been established. He was right not to do so. My impression of the plaintiff was that he was a reasonably honest witness, and I believe his evidence was substantially the truth. The plaintiff's statement of claim makes the standard allegations of breaches of the contract of employment, negligence and breach of statutory duties usually made against the defendants in this sort of case. There is no doubt that the defendants are liable under one or more of the particulars alleged.

The Central Issue

4. As might be supposed from what I said earlier about the condition of the plaintiff's elbow at the time of the accident, the main dispute between the parties is the quantum of damages. There is no doubt as to the principle involved: The defendants are liable for the damages suffered as a direct consequence of the accident, even if these were more serious than they might have been if the plaintiff had not suffered from the already damaged elbow, but they are not responsible for what the plaintiff would have suffered from his pre-existing condition without the intervention of the accident on 14 July 1988.

5. The difficulty is determining what consequences would have ensued from the already defective elbow if the accident had not happened.

The Evidence

The Plaintiff

6. The plaintiff says that he had not suffered any fracture to his right elbow before 14 July 1988. He says he has suffered some pain in his arms since the seventies. He says that because of the heavy manual nature of his work, he used to feel occasional pain in the right elbow region, particularly after a strenuous day at work. Usually, after a good night's rest, he was able to resume work the next day. Occasionally, however, he would visit a bone-setter if the pain became unbearable. The bone-setter would usually give him some herbal ointment, and he would take a day off work. This might happen three or four times in a year. The pain he has suffered since 14 July 1988 was more painful and severe in intensity than that before the accident.

7. The plaintiff says that in about 1984, while working, his head was hit by a metal bar and his right arm was hurt. He suffered an abrasion to his arm, but not a fracture. In view of the medical evidence, it is probable that the plaintiff did suffer a fracture in this, or some other, incident, but I accept that, as the medical evidence indicates is quite possible, that the plaintiff was unaware of the extent of the injury.

The Medical Evidence

8. Dr Hung Lung Kim, a senior lecturer in orthopaedics at the Chinese University, says that when the plaintiff was examined in July 1988 he was suffering only mild pain around the right elbow and there was no swelling. He says the x-rays revealed that there was quite definite and marked arthritis in the elbow joint with an old fracture at the neck of the radius. After conservative treatment, the plaintiff suffered "quite genuine", persistent and progressively worsening pain in the right elbow, so an operation was performed on 19 May 1989. At the time of the operation, it was confirmed that the plaintiff had advanced arthritis in the right elbow. The elbow was so badly degenerated that it was decided to perform a total artificial joint replacement operation. Dr Hung says there is no doubt that the plaintiff had old injuries and long-standing arthritis in the right elbow in July 1988, but it is possible that he had not felt anything prior to July 1988, and the accident then provoked and suddenly accelerated the condition to a noticeable level, which eventually became unbearable. Arthritis is a disease causing degenerative, irreversible changes; the degeneration could be slow or rapid. There is no fixed time within which one could say the disease would reach a particular stage.

9. The accident and the plaintiff's pre-existing condition were described to Dr Hung. He said that such an accident would cause serious damage to a joint already arthritic.

10. If there had been no accident in 1988, the plaintiff's condition, Dr Hung said, would have deteriorated over the years. His disability is partly related to the accident which triggered off an acute flare-up in an already destroyed joint. "It can be said that without the provocative accident, Mr Cheung could have been able to continue using his diseased elbow relatively normally for another 3-5 years before the pain would become noticeable and drive him to seek treatment.". Later, Dr Hung expressed the view that it is highly likely that, without the accident, the plaintiff's right elbow would have deteriorated with time, but it is impossible to predict when the condition would have become bad enough to prevent the plaintiff from continuing to work as a steel binder. It is possible that the plaintiff would not have experienced any difficulty. The 3-5 year period given was a "personal guess" based on all the information available to him, but it was difficult to assess the period with any degree of precision. Even during that time-frame, the plaintiff could have continued working with treatment. The treatment would be drugs, physiotherapy and, as the last resort, surgery.

11. Professor Chow Sheu Ping, a professor in the Department of Orthopaedic Surgery at the University of Hong Kong, says that there are so many variables that it is very difficult to predict a time-frame for deterioration of the elbow if the accident had not happened. He would not himself predict a time-frame of 3-5 years as Dr Hung had done. When pressed as to when the plaintiff would have been obliged to stop working, Dr Chow said that he would give a time-frame of a few years to ten years; the upper range would be 12-15 years if things went very well, down to a few years if deterioration was very rapid.

12. Dr Lam Kwong-chin, an orthopaedic surgeon, says that Dr Hung's opinion relating to a time-frame of 3-5 years is a fair and justified one. He would expect an operation to be necessary sooner or later; the elbow would have to be replaced because it was beyond repair. Degeneration would progress faster and faster.

13. The medical evidence is in agreement in saying that, without the accident, the plaintiff would, at some stage, have suffered further deterioration in the condition of his right elbow. At some time, his condition would have prevented him from working. At some time, there was a probability that he would have faced an operation similar to that performed on him. Where there is a difference is in relation to when that time would be, and the degree to which it is possible to estimate the range within which that time might occur.

The Approach

14. The approach urged by Mr Coleman is, as Mr Ramanathan aptly described it, a "surgical one". I should, he says, find that at a particular time - he suggests 4 years from the accident - the plaintiff would have been unable to continue to work. He also says that I should make no award for the pain and suffering involved in the operation itself because this would have been incurred in any event.

15. Mr Ramanathan suggests that my approach should be to assess the damages as if the plaintiff had not been suffering from the pre-existing condition, and then discount the award to take account of this condition.

16. If there had been a greater degree of probability and consistency in the medical evidence regarding the prognosis for the plaintiff if the accident had not happened, Mr Coleman's approach might have been acceptable. The medical evidence is not, even on the version most favourable to the defendants, that the plaintiff would have been obliged to stop working within 3-5 years. This version is that, within this time-frame, treatment would, at an educated guess, have commenced, but the plaintiff could have continued to work. The degree to which the treatment might have arrested the progress of the disease, and relieved the symptoms, is totally unknown. There are too many imponderables to be able to make a reliable assessment. It is true that, after the accident, the deterioration was rapid, but this says nothing about what the deterioration might have been if the elbow had been left undisturbed and the disease had continued on its course without some trigger to accelerate its progress. There are indications that, for the plaintiff, the progress of the disease was reasonably slow, although accelerating. He had suffered some symptoms since the seventies, and, throughout most of the eighties, although the disease was having some effect, he was able to work with the occasional day off.

17. I also disagree with Mr Coleman that I should, in essence, ignore the operation because it was inevitable at some time in the future. It may be that, given the present state of medicine, it is probable that the plaintiff would have been obliged to undergo an operation at some time, but this may have been many years after 1989. We all know that medical knowledge increases, surgical techniques improve, new treatments emerge and new drugs come onto the market as time goes on. It may be that if the plaintiff underwent an operation later rather than sooner, it would be a less risky surgical procedure, with less likelihood of the recognised complications that eventuated in this case. It may even be that, with new treatment and drugs, the operation could have been postponed; perhaps avoided. The operation, with the attendant consequences, was a direct result of the accident. The chances of the plaintiff having to undergo the operation at some time in any event is, in my judgment, best dealt with by making a substantial discount of the damages that would otherwise be awarded.

18. In these circumstances, I believe that the approach suggested by Mr Ramanathan is a just and proper one. I will assess damages that I would have awarded if the plaintiff had not suffered from the pre-existing condition, and then make a discount to take account of this.

Pain and Suffering, and Loss of Amenities

19. It is undoubtedly so that the plaintiff has had a very hard time, and will continue to do so. Mr Coleman has not sought in any way to minimise this. The plaintiff suffered several recognised, but unfortunate, complications in the course of his treatment. The artificial joint loosened, dislocated and became infected. He underwent seven operations on his elbow. He must have suffered a great deal of pain and inconvenience. He is severely handicapped in undertaking normal human activities.

20. Mr Ramanathan suggests that the injury falls within the upper end of the serious category mentioned in Lee Ting Lam v. Leung Kam Ming (1980) HKLR 657 and Chun Yat Nam v. Attorney General CA 1994, No. 92; that is, justifying an award of between $250,000 and $335,000. I would assess the injury within this range and would have awarded $300,000 in ordinary circumstances.

21. When it comes to selecting a discount that would be appropriate to take account of the plaintiff's pre-existing condition, one enters a world that is largely speculative. Making the best guess I can, taking into account the factors I have already mentioned, I would think that 25% was reasonable. Accordingly, I award the sum of $225,000 under this head.

Loss of Earning Capacity

22. This head of general damages is intended to compensate an injured person where as a result of his injury his chances in the future of getting and keeping work is diminished. The plaintiff claims separately as a head of special or actual damage for loss of future earnings.

23. It is true that the plaintiff is at greater risk in the labour market as a result of the accident than he would have been otherwise. The plaintiff is still undergoing treatment, and it is likely that this will continue. Employers are not enthusiastic in employing people who may have to leave their employment to visit hospitals for treatment. On the other hand, the plaintiff is a strong man, apart from his injury. He impressed me as a hard worker and a determined man. It is probable that he will be able to find work for some time, if only of a casual kind, without lengthy periods of unemployment.

24. It is difficult to assess damages under this head, but, doing the best I can, I would fix them at $50,000, but again discount this figure by 25% to take account of fact that the plaintiff's pre-existing condition would also have affected his chances on the labour market.

25. Accordingly, under this head, I award the sum of $38,500.

Special Damages

Pre-trial Loss of Earnings

26. In the Employees' Compensation proceedings in the District Court, it is recorded that "At the time the applicant was employed . . . as a iron bender receiving an average monthly salary of $9100 the amount of which is not in dispute.". It appears from the note of proceedings that the " . . . agreed monthly salary [was] $9100 . . .". On the other hand, the plaintiff told Professor Chow in July 1993 that his monthly salary was about $12,000.

27. The plaintiff told me that he earned $350 per day, plus $10 for travelling and $10 for food. He was also paid a day's wages for every four hours overtime worked. He says he worked overtime sometimes 1 or 2 days a month, sometimes ten days; on average 5 or 6 days a month. He says that, when the figure of $9,100 was calculated for the District Court proceedings, overtime was not taken into account.

28. The plaintiff has not convinced me that his evidence regarding his average monthly income is entirely accurate, but I accept that the figure of $9,100 that featured in the proceedings in the Distruct Court did not take account of overtime. I also do not think I should take into account the travelling allowance, which, if he were not working, he would not have expended. I will take his average working month as 26 days, with 2 days overtime, making 28 days at $360 per day, giving a figure of $10,080 per month. The evidence is that his earnings today would be, without the travelling allowance, $870 per day. This rate, at 26 days per month, because the evidence is that the plaintiff's type of work is no longer so plentiful, would give a monthly salary of $22,620. The pre-trial median salary would be, therefore, $16,350. Over a period of 78 months until today, the amount earned would have been $1,275,300. The amount earned in this period was $135,616, leaving a loss of $1,139,684.

29. To take account of the fact that at some point over the period from the date of the accident to the present the plaintiff's pre-existing medical condition might well have effected on his ability to earn at the rate at which he would otherwise have done so, I believe it would be just to discount this last figure by 25%. Accordingly, in my judgment, the proper award under this head is $854,763.

30. I do not make any deduction in respect of income tax. The reality is that is very unlikely that a person in the plaintiff's social position, doing the type of work he did, earning wages in the manner in which he did, being a married man with four children, in this salary bracket, would have paid any tax, even if he had some legal liability to do so.

Post-trial Loss of Earnings

31. The plaintiff was born on 26 September 1940, so he will attain the age of 55 years on 26 September 1995.

32. The evidence of Mr Lee Kwong Chung, who is the Secretary of the Hong Kong and Kowloon Steel Binders Association, is that, "roughly", the age of retirement of a steel binder to a less strenuous job is about 55. The plaintiff was not qualified to do a less strenuous job, except at a lower salary level.

33. Under this head, I think it fair to allow only one year at the present salary level of $22,620, that is $271,440 and 4 years at half that level; that is, $11,310 X 48, being $542,880, giving a total sum of $814,320.

34. In my view, this sum must be discounted considerably because, as time marches on, the chance of the plaintiff's earning capacity being strongly effected, or even eliminated, by his pre-existing condition must increase. I would discount it by 50%, giving an award under this head of $407,160.

Loss of Wife's Earnings

35. There is a claim for loss of the wife's earnings in the sum of $3,659. Mr Coleman makes some mild criticism of this, and suggests it should be reduced somewhat. I do not agree. The claim involves some 38 days loss of earnings over a period of two years. This is not unreasonable having regard to the treatment and operations undergone by the plaintiff, and what one would expect from a dutiful wife. I award this sum.

Nourishing Food

36. The plaintiff also claims $10,000 for nourishing food and tonic. This is a reasonable amount for a period of more than six years; less than $5 a day. $10,000 is awarded under this head.

Other Special Damages

37. The other items of special damage, amounting to $8,916, are agreed. This sum is also awarded.

Total of Damages

Interest

38. The award of $263,500 general damages will bear interest at the rate of 2% from the date of the issue of the writ.

39. The awards of $854,763 in respect of pre-trial loss of earnings and the special damages amounting to $22,575 will carry interest at the rate of 5.36% from 14 July 1988.

The Result

40. In the result, there will be judgment for the plaintiff in the sum of $1,165,661 together with interest as I have mentioned.

The Costs

41. I am aware of no reason why the plaintiff should not have his costs. Accordingly, I make an order nisi accordingly.