CHAND LOK KUMAR v. LEIGHTON - LNS JOINT VENTURE

HCPI 1380/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1380 OF 2014

____________

____________

_______________

J U D G M E N T

_______________

The plaintiff’s claim

1.  In this action the plaintiff claims damages for injury to his right index finger suffered in an industrial accident.  At trial the defendant conceded liability but maintained that the plaintiff’s own negligence contributed to his injury.

2.  The accident took place at a construction site in Sandy Bay, Hong Kong Island.  The defendant was the main contractor responsible for the site.  The plaintiff was an employee of the defendant having worked at the site in different positions for 18 months prior to the accident.  At the time of the accident the plaintiff was a miner and leader of a team of 10 to 15 workers.  His job duties included connecting and installing pipe works, concrete plastering and setting up metal forms inside tunnels. 

3.  The pipes involved in the accident were for pumping and delivering wet concrete.  Each pipe segment was about 1.5m long, about 20cm in diameter.  The segments were joined together by couplings.  The couplings were essentially clamps made up of two semi-circular metal arcs, joined at one end in a hinge and held together at the other end by a bolt (called a “pin” in the pleadings).

4.  On the day in question, 9 January 2014, the foreman, Mr Cheng, spotted a problem with a coupling on a concrete pipe inside the tunnel and told the plaintiff to fix it.  The bolt was coming loose from the clamp.  It had to be fixed quickly for otherwise the pipes could come apart and the concrete which was being delivered inside at high pressure would burst out. 

5.  There is a slight difference between the description of the accident in the incident notification prepared by the investigator on the day (annexed to the plaintiff’s witness statement) and in the evidence of the plaintiff, but neither the investigator nor the foreman had been called by the defendant to give evidence.  I accept the version given by the plaintiff in his evidence at trial.  Upon being instructed by the foreman, the plaintiff fetched a hammer and, holding it in his right hand, tried to hammer the bolt back into position.  A fellow worker also came to help and he too had a hammer.  It seems that he tried to hammer the clamp on the other side so as to fit the hole to the bolt.  It was not very well lit inside the tunnel.  Although the plaintiff and his co-worker both had their helmet headlights on, the lights shifted with their movements.  After a short while the other worker missed his target and hit the plaintiff’s right index finger instead.

6.  The plaintiff was immediately taken to a panel doctor of the defendant where plain radiographs were taken showing comminute fracture in the middle phalanx of the right index finger.  He was taken by a company car of the defendant to Queen Mary Hospital for treatment, where he was admitted to the Orthopaedics Ward.  On the next day (10 January 2014) he was transferred to Duchess of Kent Children’s Hospital.  Private X-ray showed fractured shaft of right index finger middle phalanx with ulnar deviation of distal fragment with a butterfly fragment.  At the plaintiff’s election, open reduction and internal fixation with plates and screws were performed on 13 January.  He was discharged on 15 January 2014.

7.  Thereafter the plaintiff attended physiotherapy, occupational therapy and follow-up appointments at Queen Mary Hospital as well as David Trench Rehabilitation Centre.

8.  In December 2014 the plaintiff was admitted to hospital again for removal of implant and tenolysis.  Again physiotherapy, occupational therapy and follow-up appointments were arranged afterwards.

9.  The plaintiff alleges negligence and breach of various statutory duties on the part of the defendant including the common duty of care under the Occupiers Liability Ordinance (Cap 314), the duty to ensure that the site was safe and without risks to health under the Occupational Safety and Health Ordinance (Cap 509), and the duty to ensure that the site was adequately and suitably lit under regulation 50 of the Construction Sites (Safety) Regulations (Cap 59I).  The plaintiff has not, however, alleged any vicarious liability on the basis that the fellow worker was negligent.

10.  As mentioned above, at the trial the defendant admitted liability while maintaining the contention of contributory negligence.

Contributory negligence

11.  The plaintiff in effect admitted that the mode of operation he and his fellow worker adopted involved risks.  I accept that for the two of them to hammer at the same time in the opposite direction, there was a risk of their hitting each other accidentally.  The plaintiff stated that in normal circumstances he would have asked his colleague not to hammer while he himself was at it.  Ms Siu who appeared for the plaintiff submitted that the plaintiff was instructed by the foreman and had no choice.  The foreman, however, only told the plaintiff to fix it without specifically requiring two workers to hammer together.  What is important to my mind is that it was an urgent situation.  There is no dispute about that.  The plaintiff was called to deal with an emergency.  In those circumstances one could not be too demanding on the plaintiff in terms of his duty to take care for his own safety.  If there was a failure it was a momentary lapse that I would not characterise as contributory negligence.  The foreman who was also at the scene did not stop the two workers hammering together.  I decline to find contributory negligence on the plaintiff’s part.  If I am wrong on this, I would assess it at only 5%.

Quantum

12.  As stated in the revised statement of damages, the plaintiff claims damages in the following amounts:

PSLA	$400,000.00
Pre-trial loss of earnings and MPF	$1,090,423.08
Post-trial loss of earnings and MPF	$8,315,175.96
Loss of earning capacity	$150,000.00
Special damages	$10,000.00
Less
Employee’s compensation received	($332,359.20)

13.  At trial the parties came to agreement on certain matters.  It was agreed that the award for PSLA should be $200,000; special damages (for medical, tonic food and travelling expenses) should be $7,000, and employee’s compensation had already been received in the sum of $347,294.22.  It was also agreed that if a multiplier is needed it should be 17.29.  The remainder is in dispute. 

Loss of earnings generally

14.  By far the largest amount in issue is the claim for post-trial loss of earnings.  The plaintiff was born on 3October 1979.  He earned an average of $40,897.50 per month during 2013, and contends that, had he not suffered the injury, he would have continued in the same job and his present monthly income would have been 20% higher, i.e. $49,077.00.  The plaintiff says he is and will be unable to return to his pre-accident job because of residual right index finger numbness, weak hand-grip and pain, and will have to change to a job with lighter duties such as a part-time security guard earning around $10,000 per month.  The earnings and MPF lost are therefore ($49,077 – $10,000 + $1,000) x 12 x 17.29 = $8,315,175.96. 

15.  The claim for pre-trial loss of earnings has a similar basis.  The plaintiff was given sick leave for the following periods: (a) 9 January to 12 February 2014; (b) 15 February to 16 June 2014; and (c) 5 December 2014 to 11 February 2015, following the operation to remove the implant.  A total of 225 days of sick leave was granted.

16.  After the first two batches of sick leave expired, the plaintiff worked part-time as a security guard from September to November 2014, earning in total a sum of $16,550.  After his sick leave expired in February 2015, the plaintiff found work as a part-time security guard in February and March 2015 and as a part-time shopkeeper between April and August 2015, earning a total sum of $52,600.  From September to December 2015 he again worked as a part-time security guard earning around $6,000 to $7,000 per month (sometimes $5,000).  From January 2016 onwards he has worked as a full-time security guard earning $13,000 per month.

17.  The plaintiff claims pre-trial loss of earnings by reference to his average monthly wages before the accident of $40,897.50.

18.  The critical factual issue affecting the claim for both pre-trial and post-trial loss of earnings is whether the plaintiff could have returned to his former occupation at some point after the accident. The defendant contends he could have done so after 16 June 2014.  The main complaints of the plaintiff in this regard are weakness in gripping power in the right hand, and pain and numbness in the right index finger.

19.  As for numbness, the plaintiff complained of “mild numbness” in this statement of damages dated August 2015 but accepted at trial that the numbness had gone (except perhaps for some time after he wakes up in the morning).  Further, it is notable that the medical assessments from an early date onwards recorded the plaintiff’s sensation in the finger as being normal, showing that there was no significant loss of sensation reported or diagnosed.

20.  The plaintiff is right hand dominant.  Since the accident he had undergone periodic tests of power grip strength.  Power grip, as I understand the evidence, measures the strength of the “hand-shake” type of grip.  There is evidence of submaximal effort on at least one occasion.[1]  Nevertheless, the evidence, summarised in the table below, shows that the plaintiff had since the injury enjoyed a steady increase of his right hand power grip strength.

Date	Power grip strength (kgf)
	Right	Left
7 May 2014	22	40
9 June 2014	24	44
16 June 2014	27.3	43
12 January 2015	27	44
26 January 2015	28	44
9 February 2015	30	42
5 May 2015	38	52

21.  There has been no further assessment after May 2015.  Although the results as of May 2015 show that the plaintiff’s right hand grip was still less strong than the left hand, it had very substantially improved and was close to his left hand grip strength during May 2014 to February 2015. 

22.  There is no evidence to show what the plaintiff’s hand grip strength was before the accident.  Ordinarily, for a right hand dominant person such as the plaintiff, I would expect the right hand grip to be stronger than the left.  But the plaintiff had suffered a right thumb fracture from an industrial accident about 6 years ago, for which he was given 3 months’ sick leave.  I think I should not assume that his right hand grip was necessarily stronger than his left hand grip prior to the present accident.

23.  Nor is there any evidence adduced of what the average hand grip strength is for manual workers generally and, in particular, construction site workers in Hong Kong, or what hand grip strength is necessary for the type of work the plaintiff had to perform in his position before the accident. There is no evidence to show that turning a spanner and carrying pipes, which the plaintiff mentioned in particular in his oral evidence, require particularly strong power grip, as opposed to arm strength coupled with supporting grip.

24.  Ms Siu submitted that the plaintiff’s pinch / pincer grip was also weakened.  The medical evidence sometimes referred to pinch grip and sometimes pincer grip.  It is not clear what actions in the plaintiff’s work would require a pinch grip or a pincer grip.  The assessment on 16 June 2014 shows the pincer grip strength to be 3.8kg (right) and 7.2kg (left).  The pinching test as of 5 May 2015 shows that the right hand strength was 5 kg, compared to 6 kg for the left hand.

25.  There is a complaint of pain upon exertion. However, pain is by its nature a subjective matter.  The evidence that there is shows that, as at the date of the joint examination in September 2014, there had been no muscle wasting of the plaintiff’s right arm.  This suggests that the plaintiff was not suffering from any major right hand disability and that the plaintiff had not avoided general use of his right hand.  It appears that the plaintiff’s condition has significantly improved and his right hand strengthened since.  In these circumstances I do not accept the complaint of pain as being sufficient to prove the plaintiff’s inability to return to his original job.

26.  The OT rehabilitation outcome report of Queen Mary Hospital, based on an assessment on 4 February 2014, noted the plaintiff’s occupation as “tunnel worker” and described its physical demand as “heavy”.  It went on nevertheless to conclude that the plaintiff’s work capacity and his job demands “match without significant limitation”.  In their joint report the experts highlighted that finding.

27.  The plaintiff relies on the opinion of his expert, Dr Chan, that the plaintiff would have difficulty with forceful use of his right hand such as in twisting a towel or using a screwdriver.  His opinion seems however to have significantly relied on the plaintiff’s own complaint of pain and numbness.  As explained above, there is no longer any relevant numbness. Also, Dr Chan referred to “residual … pain, numbness and weakness due to adhesion”.  The problem of adhesion was dealt with by the second operation which was performed in December 2014 and apparently very successful.  Dr Ho, the defendant’s expert, opined that the overall prognosis was good and that the plaintiff should still be able to handle instruments and tools and lift objects and should be able to return to his pre-accident job.  I prefer the opinion of Dr Ho, at any rate in relation to the period after February 2015.

28.  There is no mention in the plaintiff’s witness statement dated 4 August 2015 that the plaintiff made any attempt to return to his occupation before the accident.  In his oral evidence he said he asked his friends to take him to work in construction sites, but that when they saw he had made a claim for compensation and saw the condition of his hand they did not in fact take him to work.  I find this evidence at best equivocal.  I am not satisfied that the plaintiff had tried all he could to return to his previous job but failed to secure a job because of his injury.

29.  On this basis I find that the plaintiff has failed to establish his claim for post-trial loss of earnings.

Pre-trial loss of earnings

30.  As to pre-trial loss of earnings, it is agreed that the plaintiff suffered loss of earnings during the first two batches of sick leave (from 9 January to 16 June 2014), as well as a reasonable period thereafter in which he would be expected to look for employment.  Mr Wong who appeared for the defendant submitted that a period of two months would be reasonable in the circumstances following a 5-month sick leave period. 

31.  Mr Wong further submitted that the second operation that the plaintiff underwent in December 2014 was unnecessary and was not anticipated to improve the plaintiff’s condition.  He submitted therefore that no loss of earnings should be given for the third batch of sick leave.  I do not accept this submission.  As Ms Siu pointed out, the second operation was not solely for the removal of implant, but also for tenolysis, in order to remove the problem of adhesion.  The range of movement of the plaintiff’s finger improved after the operation.  I think it was entirely reasonable for the plaintiff to have opted for the second operation and the period of sick leave granted was appropriate.  Following the 2-month sick leave, I accept Mr Wong’s submission that it would be reasonable to allow one month for finding a job.

32.  As to the period between August and December 2014, on balance I am inclined to the view that the plaintiff should be compensated for loss of earnings during that period.  His right hand power grip was improving throughout and had by then regained some strength but not as much as it had by 2015.  There were still problems caused by adhesion which were dealt with by the operation in December 2014.  There were still implants in the plaintiff’s finger and tenderness in the scar.  Although the experts agreed that by September 2014 the plaintiff had attained maximum medical improvement, I think that given the implants, adhesion and probable loss of confidence in returning to a construction site job pending the further operation in December 2014, it would be appropriate to compensate him for loss of earnings during the period in question as well.

33.  There was therefore pre-trial loss of earnings (including MPF) for the following periods from 9 January 2014 to 11 February 2015, and for one month thereafter, i.e. up to 11 March 2015.  Over that period the plaintiff found some alternative work and earned a total of $26,645 ($16,550 + $5,750 + $11,850 × 11/30), for which credit should be given.  The rate of MPF was the maximum one, i.e. $1,250 before June 2014, and $1,500 as from 1 June 2014.  There was a total of 141 days’ sick leave granted before June 2014. 

34.  Accordingly the amount of pre-trial loss of earnings may be calculated as follows:

          ($40,897.50 + $1,250) x 141/30² + ($40,897.50 + $1,500) x (9 + 11/30) – $26,645

=       $568,712.83

Loss of earning capacity

35.  Damages for loss of earning capacity is compensation awarded for the risk that a plaintiff may lose his employment in the future, and the risk of financial loss because of the disadvantage in the labour market he suffers from his injury.  Both experts agree that the plaintiff has suffered a small degree of physical impairment.  The plaintiff’s expert assessed it as 4% of the whole person; the defendant’s expert 2%.  I am more inclined to the defendant’s expert’s assessment, particularly having regard to the improvement of the plaintiff’s condition after the joint medical assessment.  Mr Wong did not oppose an award for loss of earning capacity and suggested the figure of $100,000.  The plaintiff has pleaded a claim for $150,000 under this head.  The whole person impairment was relatively small but the plaintiff’s wages are relatively high compared to those of a light duty non-skilled job.  Looking at the case in the round I would assess loss of earning capacity at $150,000.

Disposition

36.  There will therefore be judgment for the plaintiff for damages under the following heads:

PSLA	$200,000.00
Pre-trial loss of earnings and MPF	$568,712.83
Post-trial loss of earnings and MPF	$0.00
Loss of earning capacity	$150,000.00
Special damages (agreed)	$7,000.00
Less
Employee’s compensation (agreed)	($347,294.22)
Total	$578,418.61

37.  Interest will be awarded on the PSLA award at 2% p.a. from the date of writ to the date of judgment.  Interest on special damages and pre-trial loss of earnings will be awarded at half judgment rate from the date of the accident to the date of judgment.

38.  There will be an order nisi of costs in favour of the plaintiff.