CHAN CHEUK PUI v. MAN CHUN PONG t/a WUIYING (C&H) CONSTRUCTION CO AND OTHERS

HCPI 718/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 718 OF 2012

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim. The plaintiff, Mr Chan, was a construction worker for village houses. He fell from height at a construction site on 20 September 2009. He was 52 years old at the time and is now 59.

BACKGROUND OF THE CLAIM

2.  Interlocutory judgment has been entered against the 2^nd defendant and the claims against the 1^st, 3^rd and 4^th defendants have been dismissed.

PSLA

3.  As a result of the fall, Mr Chan had a laceration on his left scalp and a deep laceration in his left axilla.  He had an operation to explore the axilla wound and it was found that he had injury to his radial nerve (causing radial nerve palsy), a 20% cut of the long head of triceps and a complete cut and thrombosis of the Profunda Brachii artery.

4.  The radial nerve palsy persisted with weakness of the wrist and numbness in his left hand.  He needed to wear a left wrist splint for half a year.

5.  Mr Chan underwent treatment courses in physiotherapy and occupational therapy.  There were some improvement but his condition remained static since 2011 with residual left upper limb weakness and numbness.

6.  Mr Chan also complained of persistent pain at the axilla wound.  The orthopaedic experts reported findings of muscle wasting in the left arm and forearm with mild lag in shoulder movement as well as numbness and paraesthesia in the left hand, although the hand grip was satisfactory.

7.  The orthopaedic experts also agreed that Mr Chan suffered from somewhere between a Axonotmesis (incomplete division of a nerve) and Neuropraxia (physiological interruption of the nerve) and he had a “satisfactory and yet incomplete functional recovery” and the present condition would persist. 

8.  The plaintiff claims HK$450,000 in the Revised Statement of Damages but Mr Clough, Counsel for the plaintiff, submitted that this was on the high side and suggested a range of HK$300,000 to 350,000.

9.  Of the precedents presented by Mr Clough, I found the case of Frank Yu Yu Kai v Chan Chi Keung [HCPI 230/2004] particularly helpful as that also concerned radial nerve palsy (albeit happened during a general anaesthesia operation).

10.  In the Frank Yu case, the plaintiff recovered fully after 1 year and the award was assessed at HK$250,000.  In the current case, the nerve palsy has persisted and there is some permanent disability.  Further, the current injury was traumatic in nature and there was an additional head injury.  As such, I would award HK$350,000 under this head of claim.

PRE-TRIAL LOSS OF EARNINGS (INCLUDING LOSS OF MPF)

11.  The plaintiff was earning HK$16,000 per month at the time of the accident.  This figure was already agreed by the 2^nd defendant in the related Employees’ Compensation proceedings.

12.  According to the plaintiff, this was based on the calculation that he earned HK$800 a day and working 20 days a month.

13.  The plaintiff told the court that he was a type of “formwork” worker on village house constructions.  The difference between his line of work compared to a Carpenter (formwork) worker in the public sector was that he needed not perform any carpentry: the formwork (a sort of mould for concrete) were all pre-fabricated for these village houses (which were more or less of uniform shapes and sizes).  His work therefore involved putting up these pre-fabricated wooden moulds.  Other construction workers would pour concrete into the moulds to form walls, ceiling, roofs etc.  Once the concrete was set, the plaintiff would remove the formwork.

14.  The plaintiff also told the court that his job was less risky than Carpenter (formwork) worker in the public sector because the village houses were only 3 floors in height and therefore did not involve working at great height.  He also said that he could not work in a public sector construction site as any construction worker at all because he lacked certain qualification.

15.  Mr Clough had produced figures of workers in the public sector construction projects by the Hong Kong Census and Statistics Department in order to assess the rise in wages all through the years.

16.  Mr Clough used the wages of “Carpenter (formwork)” and “General workers and labourers” as reference and he suggested taking the average increase as the applicable figure for the current case.

17.  There are some problems with this approach as we are not comparing “like to like”: the public sector construction situation may well be very different from the private sector, especially in a private sector where the plaintiff could only work on village house projects.  I would imagine that in such a confined market, availability of work and wages might well be subject to more market variations and trends.

18.  Further, the plaintiff is not as skilled or qualified as a Carpenter (formwork) in the public sector.  What is clear from the comparative figures between “Carpenter (formwork)” and “General workers and labourers” is the trend that the more skilful workers appear to benefit from a higher rate of increase of wages.

19.  In view of the above, I think a more realistic comparison, as far as the increase in wages is concerned, is with that of “General workers and labourers” in the public sector.

20.  The daily wage of “General workers and labourers” for September 2009 (date of accident) was HK$566.4, for February 2012 (date sick leave ended) was HK$619.10 and for September 2016 (date of trial) was HK$943.8.

21.  The increase of daily wages between September 2009 and March 2011 is 9.3%, and between March 2011 and September 2016 is 52.45%.

22.  On the basis of such increase, I would calculate that the plaintiff’s monthly income would be HK$17,488 in March 2011 and HK$26,660 in September 2016.

23.  The average earnings of the plaintiff during his sick leave should be HK$(17,488 + 16,000)/2 = HK$16,744.

24.  The loss of earnings during the sick leave period (about 29 months) including MPF should be HK$16,744 x 1.05 x 29 = HK$509,854.80.

25.  The average monthly income of the plaintiff from the end of his sick leave to the date of the trial should be HK$(26,660 + 17,488)/2 = HK$22,074.

26.  The loss of earnings from the end of the sick leave to the date of trial (about 55 months) including MPF should be HK$22,074 x 1.05 x 55 = HK$1,274,773.50.

27.  I would accept that the plaintiff’s actual income during this period was HK$694,433.  Thus his actual loss of income was HK$1,274,773.50 – 694,433 = HK$580,340.50.

28.  Therefore, the total pre-trial loss of earnings is HK$ 509,854.80 + 580,340.50 = HK$1,090,195.30.

FUTURE LOSS OF EARNINGS (INCLUDING LOSS OF MPF)

29.  The plaintiff is now 59.  Assuming that he will be retiring at 65, the appropriate multiplier should be 5.70 according to the “Chan Table”.

30.  As calculated above, the plaintiff’s current monthly income should be HK$26,660 but he was actually earning HK$10,000, thus the monthly loss of income is HK$16,660.

31.  Therefore, the plaintiff’s future loss of income including MPF should be HK$16,660 x 1.05 x 12 x 5.70 = HK$1,196,521.20.

LOSS OF EARNING CAPACITY

32.  I accept that the plaintiff will suffer a handicap in the labour market and I would allow 4 months of income or HK$40,000.

SPECIAL DAMAGES

33.  Mr Clough noted that there was a miscalculation of the claim for medical expenses which should be HK$3,900 (instead of HK$8,600).  I would accept this.

34.  I would also allow the claim for travelling expenses of HK$6,020.

35.  As for the claim for tonic food, I would allow HK$5,000.

36.  I would therefore allow a total of HK$14,920 for the claim for Special Damages.

SUMMARY

37.  The award is as follows:-

		HK$
	PSLA	350,000.00
	PRE‑TRIAL LOSS OF EARNINGS	1,090,195.30
	FUTURE LOSS OF EARNINGS	1,196,521.20
	LOSS OF EARNING CAPACITY	40,000.00
	SPECIAL DAMAGES	14,920.00
	TOTAL (EXCLUDING INTEREST)	2,691,636.50
	LESS:
	EMPLOYEES’ COMPENSATION	(498,436.70)
		2,193,199.80

INTEREST

38.  I would allow 2% interest for general damages from the date of issue of the writ to the date of assessment and half judgment rate for special damages from date of accident to date of assessment.

COSTS

39.  I would also give an order nisi for the costs of the action to be paid by the 2^nd defendant to the plaintiff to be taxed if not agreed in the High Court scale and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations with certificate to Counsel.