LAWATI BHAWANI BIKRAM v. TING KAU CONTRACTORS JOINT VENTURE

HCPI 1242/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1242 OF 1999

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Assessment of Damages

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Introduction

1. This assessment arises out of an industrial injury sustained by the plaintiff in the course of his admitted employment as scaffolder/rigger with the defendant, the then principal contractor at the Ting Kau Bridge site. On 8 November 1996 whilst the plaintiff was inside a container unloading a portion of a crane of substantial weight, the crane part suddenly fell on him pressing him into a squatting position and severely damaging his back. His fellow colleagues had to come and extricate him. Interlocutory judgment by consent was entered against the defendant with damages to be assessed on 12 August 2000.

2. The plaintiff seeks general and special damages. There were areas of agreement to be referred to as they become pertinent. It was plain that the principal controversy concerned the extent of the plaintiff's injuries to his lower spine, and its impact on his past and future earning potential and the issue of pain, suffering and loss of amenities. Central to the assessment of loss of pre-trial and post trial income was the nature of the plaintiff's employment. Shortly put, what the plaintiff could have earned but for the accident. Whilst the defendant was prepared to concede that the plaintiff was at all material times engaged as a scaffolder/rigger, as he worked with metal members and not bamboo, the Census and Statistics Department's data on 'Bamboo worker and scaffolder', a category carrying higher wages, relied on by the plaintiff was, not surprisingly, seriously challenged as irrelevant.

3. With that brief overview, I turn to address the various claims.

Pain, suffering and loss of amenities

4. The plaintiff, now 40 having been born on 20 October 1961 and an ex-Gurkha with the British Armed Forces, sustained a serious fracture of the 1st lumbar vertebra. He was admitted to the Orthopaedic and Traumatology Department of Yan Chai Hospital and discharged on 30 November 1996, a period of just 22 days. There was no surgical intervention and he was conservatively treated with bed rest and analgesics. Thereafter, he attended the out patient department of the same hospital for physiotherapy and treatment. His various sick leave periods detailed in the revised statement of damages were agreed.

5. I entertain no doubt that the plaintiff experienced severe back pain at the time of the accident and during treatment. In evidence, he has spoken of continual pain when engaged in daily activities and of a feeling of great frustration of 'feeling old' before his time. When on home leave to Nepal in the year 2000, he said he could not even carry his own luggage home or help around the family farm, a matter of considerable embarrassment to him. He found it difficult to use toilets requiring squatting and his ability to participate in various sporting activities such as football, volleyball, cross-country walking and jogging either curtailed or no longer possible. That he had hitherto been an energetic person enjoying the amenities of life to the full was beyond peradventure in my considered view. Having been raised in Nepal, and having served as a sapper in the Gurkha Regiment, he had a disciplined attitude towards work and a strong sense of family responsibility. He now entertains disquiet about his health and the future of himself and his family. With reduced stamina, endurance, limited education, and continual back pain particularly upon exertion, he sees himself handicapped in the labour market should it become necessary to seek employment in the future.

6. The plaintiff continued to suffer from localised pain over his lower back with emphasis on the left lower back. Pain in the left knee became a feature after the accident. It will be recalled that he was crushed into a squatting position. The continual discomfort experienced has also affected his sexual relations with his wife. Previously, he testified that he would be intimate with her almost daily. Following the accident, intimacy occurred no more than twice weekly. I accept his litany of complaints as being well founded. I adjudge the plaintiff to be a frank and honest witness not given to exaggeration. I wholly accept his evidence.

7. Turning to the medical evidence, and dealing firstly, with the evidence of Dr. Mao, the plaintiff's orthopaedic expert, (as gleaned from his medical reports and viva voce testimony), the fracture of the 1st lumbar vertebra was readily confirmed. At the first examination in July 1998, the plaintiff had principally complained of discomfort in the back. Dr. Mao reported that the plaintiff exhibited a stiff back with some projection of the spine in the area of the 1st and 2nd lumbar vertebrae. He also diagnosed a minimal thoracic scoliosis convex (ie curvature of the spine) to the right and that the lumbar spine revealed lumbar scoliosis convex to the left. The spinal disc spaces were normal except T12/L1 owing to the compression fracture of the body of L1 with marked wedging. At the time, Dr. Mao assessed the plaintiff had suffered a 9% impairment of the whole person and a 12% loss of earning capacity. He opined that it was imperative that the plaintiff should not flex his body forward too much or carry heavy weights.

8. Dr. Mao conducted a further examination in November 2000 and considered that the plaintiff's condition had deteriorated, a fact he confirmed in the witness-box. He reported that the plaintiff's back was stiff with a projecting L1 spine. The space between L1 and L2 was not well preserved. Forward flexion of the back was 80 degrees, giving rise to a 1% impairment of the whole person. All other movements of the back were within normal parameters. Rotation of the lower extremities disclosed medial rotation on the right side of 30 degrees or a 3% impairment of the lower extremity. Medial rotation on the left side was similarly 30 degrees or another 3% impairment of the lower extremity. Previously, this was 25 degrees. Dr. Mao concluded that the Plaintiff had a total of 6% impairment of the lower extremity, equating to 2% impairment of the whole person. This added to his impairment for forward flexion of the back gave rise to a total of 3% impairment of the whole person. X-rays indicated as before the compression fracture of L1 with a 60% collapse of the vertebral body. This on its own was a 12% impairment of the whole person. Dr. Mao therefore revised his assessment on impairment to the whole person to 15%. Loss of earning capacity was similarly raised to 15%.

9. Under cross-examination, Dr. Mao opined that there was no evidence of malingering and that the Plaintiff's account of his complaints was plausible. He readily agreed that pain should not be a prominent factor with L1 compression injury 4 years on, but he also stressed that as the condition improved, it did not mean that there would be no pain. He fully expected pain and discomfort to be localised. Such pain would however not be as bad as before. Exertion, he said, would trigger the onset of pain. This in my view lends support for the plaintiff's assertion that he continues to experience pain as described. Although the plaintiff did not complain to him of spasm in the left leg, such a phenomenon was entirely consistent with irritation to the nerve ending ending up at L1.

10. Under cross-examination, Dr. Mao added that the complaint of pain over the L4, L5 region and slightly to the left could still be attributable to the L1 fracture and did not necessarily involve a different pathology. The spine functions as a whole and injury to one area may well lead to loading in another area of the spinal column as a consequence of compensation.

11. Mrs. Shelley Chow, the plaintiff's Occupational Therapist was satisfied that the plaintiff's complaint of deep low back pain, spasm and numbness in the left leg was entirely consistent with his injury. She also testified that the plaintiff never volunteered that he was in pain and only when asked did he furnish particulars. If anything, she had the impression that he tended to downplay rather than overstate pain. She was quite satisfied, having examined him at length that he had suffered at least what was complained of. It was her opinion that the plaintiff could not reasonably be expected to return to his pre-injury job as a scaffolder.

12. The defendant's Occupational Therapist, Mrs. Tsang opined that there was evidence from some of the tests performed by the plaintiff of under performance. The results of her examination suggested the data obtained might not represent maximal capability. She was however in total agreement that it would not be appropriate for him to return to his former employment.

13. The plaintiff has sought an award of $450,000 to $500,000 under this head of damage. The defendant submitted that $300,000 would be appropriate. In determining quantum, I have considered all the evidence bearing on this issue. I have also read the following authorities which counsel have drawn to my attention. These were Lai Kin Wah v Hip Hing Construction Co. Ltd PI No. 255 of 1996, Ho Chi Ming v Union Rife Hon Kong Ltd HCPI No. 1204 of 1997, Wong Chun Chin v Sun Shing Construction Co (a firm) HCPI 374 of 1997, Fan Hung Shing v Hang Fung Shipping Co Ltd, unreported, HCPI 1192 of 1995, Chan Pui Ki v Leung On and anr [1996] 2 HKLR 395, Wong Tung Ming v Kwok Chiu Hung and 2 others HCPI 928 of 1995 and 88 of 1997 (unreported), Chair Sai Sui v International Country Club Ltd HCPI No. 522 of 1998, Lai Ching v Wong Chiu Kwai HCPI No. 1192 of 1996, Chan Siu Lun v Hui Cho Yee HCPI no. 120 of 1997, and Li Yuk Ching v Secretary of Justice HCPI No. 724 of 1995. I have also referred to Kemp & Kemp, the Quantum of Damages Vol. 1, 1-031.

14. The plaintiff's injury fell near the bottom end of the serious injury category which starts at about $500,000. Having considered the plaintiff's very real loss of amenities, the effect upon his sexual life, his worsened condition and pain and suffering, I consider that an award of $450,000 would be entirely appropriate. I so order.

Pre-trial loss of earnings

15. It was common ground that the plaintiff was earning $13,227.81 p.m. on average at the time of the accident. There was no issue that he had been taken on by the defendant as a scaffolder/rigger assembling metal scaffolds. The evidence revealed that he would also assist in the disassembly and removal of such structures and that working at heights was a feature of his employment. The defendant's employment application which the plaintiff duly completed expressly provided for the position of 'scaffolder'. When hired, an employment card was issued to him describing him as a 'scaffolder' and the returned Form 2 gave an identical job title. On all these matters, there was no argument.

16. Following the accident, the plaintiff was on sick leave from 8 November 1996 to 11 June 1997. He was also unable to work for a continuous period from 24 November 1997 to 26 November 1997. Both periods away from work were supported by sick leave certificates. When he returned to work for the defendant for the first time after the accident, he was assigned duties as a storeman, a job with less physical demand. He held that position from 12 June 1997 to 7 November 1997 when his employment was unilaterally terminated by the defendant. On average, he was earning $17,578 p.m. over this period. The plaintiff explained that the storeroom was quite busy at the time and there was plenty of opportunity for overtime work. Details of income received from the defendant appear at Annexure 4 of his witness statement that he adopted as his evidence. Through the intercession of a friend, the plaintiff returned to work for the defendant as a cleaner from 10 November 1997 at the same salary as a scaffolder until 5 December 1997 except for a period of sick leave lasting just 3 days. He then left the defendant's employ on his own accord, he said on account of back pain resulting from bending and sweeping. There was no dispute that the defendant had paid him a total of $153,569.82 to 22 November 1997 (see Annexure 4 at p.57) in the post accident period.

17. The plaintiff found alternative employment immediately as he commenced work as a security guard for Jardine Securicor Gurkha Service Ltd (Jardine) on 6 December 1997. He had no difficulty passing the medical examination, a prerequisite for the job. He was no longer daily rated as when he was employed by the defendant and additionally enjoyed overtime and medical benefits. In the course of his employment, he was posted to residential, commercial, and building sites. Jardine paid a basic salary of $13,000 p.m. and a bonus of one month on completion of a full year's employment.

18. His basic salary was reduced to $12,580 p.m. in June 1998 on account of the economic downturn. In January 1999 it was increased to $13,000 p.m. but was again cut back to $11,000 p.m. on 1 May 1999. It seems reasonably clear that economic recovery is not anticipated for some considerable time. The plaintiff's total income received from Jardine to 15 December 2000 when he voluntarily resigned has been updated at page 303A of the bundle of documents. Such receipts amounting to $459,528.05 were agreed.

19. On 1 February 2001, the plaintiff started working for another security firm as security guard at a salary of $12,000 p.m. His agreed total remuneration from security employment from 6 December 1997 to 28 February 2001 was therefore $471,528.05.

20. In February 2000 the plaintiff took 3 months' leave, largely unpaid, to visit his family in Nepal. The visit coincided with the completion of one year's service with Jardine. He was at the time only entitled to a week's paid vacation. In this connection, the defence contended that the loss of earnings occasioned by this period of absence fell outside their responsibility.

21. It was the plaintiff's contention that but for the unfortunate mishap, he would have been able to earn considerably more than was the case. He was energetic, able-bodied, still relatively young, and sufficiently skilled to continue to work as a scaffolder on major infrastructure and construction projects such as the substantial Ting Kau Bridge project. His counsel endeavoured to rely on the Government statistics for December 2000 to show that the plaintiff but for his injury could well have expected to attract a salary comparable to that given for 'Bamboo worker and scaffolder'. This I cannot accept as it was patent from the testimony of DW4 Mr Wong Ho Fai (Mr. Wong) that the wage statistics for bamboo worker and scaffolder were not designed or intended to incorporate metal scaffolders. This notwithstanding that data for scaffolders other than bamboo scaffolders might well have been unwittingly returned by Government contractors and included in the published statistics. Mr. Wong further testified that were the Census and Statistics Department to become aware of such errant data, the same would be excised. That incidentally accorded with standing instructions under which its staff operated. The earning statistics for bamboo scaffolders are entirely inapt for present purpose. No statistics have been kept for metal scaffolders. Mr. Chan Ping Kwong (DW2) testified, inter alia, to the lengthy training a bamboo scaffolder had to undergo. The plaintiff freely admitted that he has had no training or experience in putting up bamboo scaffolding. If his earning ability was to be put on par with such highly skilled workers, one cannot but conclude that he had consistently been underpaid by the defendant, a fact that did not sit well with the evidence of DW1, Mr. Shek Wai Nang who maintained that the plaintiff was paid according to the prevailing market rate for scaffolder/rigger.

22. As alternative submissions, the plaintiff sought to rely on the statistics for blacksmith and structural steel erectors. From the evidence of the Census and Statistics Department, monthly wages of $22,100 and $28,488.20 respectively could be expected. There was not a scintilla of evidence that the plaintiff had acquired any experience or training in blacksmithing or structural steel erecting. Still less was there any reliable information of what such jobs entailed. In stating that the plaintiff was incapable of returning to his pre-accident employment, Mrs. Chow seemed to make no distinction between steel scaffolder and steel erector. No elaboration was offered nor was the matter pursued thereafter. In passing she also commented that the work of steel and bamboo scaffolders was probably similar in nature. I do not accept her view in this regard. The plaintiff was engaged by the defendant to assemble and disassemble metal scaffolds. Carrying, fetching and lifting heavy tools and weights were a routine aspect of his employment. These alternative quantifications fall away as well.

23. Mr. Laksamba Budha Raj (Mr. Laksamba) was called as PW4. He was engaged by the defendant on 3 September 1996 as a scaffolder 3 days after the plaintiff was employed. In August 1998 Mr. Laksamba was promoted to scaffolder foreman. When he departed in January 1999, he was earning $22,000 p.m. I consider that his salary as scaffolder foreman offers the most appropriate starting point for determining what the plaintiff might have been able to earn but for the accident. With the plaintiff's working experience, he would have had the potential for being considered for elevation over time. Whether he would have been promoted cannot be determined as a matter of fact.

24. The defendant countered that the best available evidence was the earnings of two other fellow workers, Prasad and Laxman who worked on the Ting Kau Bridge to the completion of the contract. These two Nepalese co-workers drew monthly incomes averaging $13,218.08 and $13,294.66 respectively between April 1999 and March 2000. Their earnings are not useful comparables in my view. They were employed as charge hand scaffolders by the defendant and were amongst the few workers retained purely for maintenance work towards the end of the project. They did not build metal scaffolds. Their salaries reflected the nature of their duties. Mr. Shek was unable to retrieve their salary records and being principally involved with accounts had to admit that he was unclear about any of the particulars of work on the site. Furthermore, it seemed clear that Prasad and Laxman did not work full time towards the end. Particulars relating to them were sparse at best and not particular helpful in my opinion.

25. The plaintiff's pre-assessment earnings to February 2001 were $625,097.87. This is the sum total of his agreed receipts from the defendant of $153,569.82 and $471,528.05 from his security employment. Factoring in his March 2001 salary brings the total receipts to $637,097.87. Adopting the salary of scaffolder foreman of $22,000 as comparable, his pre-trial notional salary crystallises at a figure of ($13,227.10+$22,000/2) $17,613.55. The plaintiff's notional earnings over the period of 52 months from the date of the accident to March 2001 are $915,904.60. Deducting therefrom his actual income of $637,097.87 produces a loss of $278,806.73.

26. I award the plaintiff damages for pre-trial loss of earnings in the amount of $278,806.73.

Prospective loss of earnings

27. In assessing quantum for this head of damages, I adopt a multiplicand of $10,000 pm ($22,000 [scaffolder foreman]-$12,000 [current income]). His present medical condition has been discussed at length. As he is prevented from returning to his pre-accident employment, a continuing loss is inevitable. I am satisfied that the plaintiff has done his level best to mitigate his loss. This is clear from the evidence. As soon as sick leave expired he returned to work and has continued to remain in employment.

28. A multiplier of 14 years' purchase suggested by counsel for the plaintiff seems fair and proper given his age, pre-accident health and the possibility that he might otherwise have remained in work until the age of about 60. Despite his erstwhile robust constitution, it would seem unlikely that he would have carried on as a metal scaffolder beyond the age of 60, given the demanding nature of the employment. Prospective loss is assessed at $1,680,000.00 ($10,000 x 12 x 14).

Loss of earning capacity

29. An award is appropriate where a substantial and real risk of future financial loss is apparent on the evidence on the authority of Moeliker v A Reynolle and Co Ltd[1997] 1 All ER 9. The correct approach to quantifying that risk where a plaintiff is in work is set out in that case.

30. Although the plaintiff has worked almost without a break save for periods of illness and for a matter of weeks after he voluntarily left Jardine, his impairment which has deteriorated on the evidence of Dr. Mao would make him more vulnerable to the vagaries of the market place. He is less able-bodied and no longer capable of performing chores that once came naturally to him. Squatting, lifting of heavy weights such as water bottles, bending, etc have become difficult or impracticable as the case may be. Where employers have a choice, they will doubtlessly prefer to employ someone without any physical disability. That the plaintiff has become less competitive in the job market is plain. There is no security of employment particularly in a shrinking economy where retrenchment is an increasing phenomenon. Every job vacancy even for security personnel would attract keener competition.

31. I find that an award under this head is wholly justified. I award him $100,000 in the circumstances of the case.

Other specials

32. Medical, special foods and travelling expenses are agreed. I accept the evidence of Mrs. Chow that orthopaedic aids in the form of back support, lumbar support cushions and orthopaedic mattresses would ameliorate the plaintiff's on-going complaints. These would cost $16,200. There is an element of replacement costs in the amount claimed. I find this fully justified. The agreed specials and the orthopaedic relief aids amount to $21,174. This sum is awarded as well.

Conclusion

A summary of awards follows:

PSLA	$450,000
Past loss of earnings	$278,806.73
Prospective earning loss	$1,680,000
Loss of earning capacity	$100,000
Other specials	$21,174
Subtotal	$2,529,980.73
Less agreed ECC payment	$405,633.67
Final award	$2,124,347.06

33. I award the sum of $2,124,347.06 to the plaintiff. There shall be interest at 2% p.a. from the date of the issue of the writ to the date of assessment on general damages and at half judgment rate on special damages from the date of the accident to the date of assessment and thereafter at judgment rate until full payment. The plaintiff shall additionally have his costs of the assessment with certificate for counsel, such costs to be taxed if not agreed. Legal aid taxation of the plaintiff's own costs is ordered as well.