CHENG KWOK SANG v. MAXIM'S CATERERS LTD

HCPI 237/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 237 OF 2001

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J U D G M E N T

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1. This is an assessment of damages, liability having been conceded by the defendant to the extent of 82%. The proceedings arise out of an accident sustained by the plaintiff on 5 January 1999, in the course of his employment with the defendant as a captain in their restaurant in Telford Plaza, Kowloon, when he slipped and fell from a metal ladder which gave access to storage space on the mezzanine floor. He was sent to the United Christian Hospital where he was found to be suffering from injuries to his head, left eye, left elbow and right knee.

2. The injuries to the head and eye, a laceration and mild blurring of vision, proved to be of a temporary nature only, but x-ray examination of the right knee and left elbow revealed a fracture of the right patella and the left radial head. The knee injury was treated by open reduction with partial patellectomy, tension band wiring and screw fixing. A second operation was performed later to remove broken wires. The left arm fracture was treated with a long arm cast for six weeks. He was discharged from hospital on 18 January 1999 and continued to be followed up in the out patients department, and attended physiotherapy treatment once or twice a week for about two years.

3. The plaintiff, who is now aged 47, complains of pain in his right leg exacerbated by prolonged standing, walking or even sitting, stair climbing and squatting. He also says that he has pain and weakness in his left arm. Having seen the medical reports from United Christian Hospital, as well as those from the parties' experts, Dr Au Ka Kau for the plaintiff, and Dr Lau Man Tsang for the defendant, I am satisfied that there is justification in his complaint in respect of his leg, and that the problem is very real, in that it does cause him difficulties and pain if he is required to remain on his feet for long periods. The defendant produced a video film of the plaintiff taken by covert surveillance and claimed that this showed him walking long distances normally, and even running once. I did not get that impression from the film. While he was certainly able to walk some distance without resting, he appeared to walk comparatively slowly for someone of his age, more in the manner of an older man, with an obvious, albeit not pronounced, limp, and the brief spell of running was merely hastening for a few yards while crossing a road when a vehicle approached.

4. As to his arm injury, there is less evidence of this causing him any appreciable problem. X-rays show the fracture satisfactorily united with normal joint space, and there is no muscle wasting. The film shows him using the left arm normally, including holding a teapot while filling it, and the pain he claimed to suffer in the elbow was, as Dr Lau pointed out, not at the site of the fracture. I consider it more likely that the only substantial disability now is as a result of the knee injury, which both doctors agree represents a 5% impairment.

5. It is clear, however, that this does prevent him resuming his previous occupation as a restaurant captain, which involved long hours of work, for most of which he would be on his feet attending to customers, requires regular treatment by painkillers, and, perhaps understandably, when pain is present, affects his mood. This situation is permanent.

PAIN SUFFERING AND LOSS OF AMENITIES

6. I have had my attention drawn to a number of similar cases to assist me in placing a figure on general damages. The first of these was Kwok Wing Ming v. Wong Lin Lun HCPI 1341 of 1996 where the plaintiff also suffered a fracture of the patella assessed by the doctors at 8% disability, and was awarded $360,000.00 in 1998. This would be a similar sum today given the lack of appreciable inflation since then. In Liu Hung Fai v. Sandvik Hongkong Ltd & anor. HCPI 934 of 1995 a 69 year old lady with the same injury, but clearly affected to a far greater degree because of her age, was awarded $400,000.00 in 1997. A third case, that of Lee Chun Fat v. Chan Kin Wo & anor. HCPI 1306 of 2000, decided in May 2002, where a sum of only $300,000.00 was awarded to a plaintiff whose injuries appear to be more severe, I do not consider to be a good guide to a proper figure in this case.

7. Taking all the circumstances of this case into account, I consider a sum of $350,000.00 should be awarded under this head.

LOSS OF EARNINGS

(1) Pre-trial loss

8. There is no dispute that, prior to the accident, the plaintiff's average monthly earnings were $16,199.00 with at least one free meal a day which the defendant values at $7.00 to $8.57 per meal. As the plaintiff sometimes worked shifts of up to 12 hours, I consider it likely that he had more than one meal regularly. Taking a figure of $8.00 for each meal and a month of 30 days, I give a figure of $480.00 a month as the value of those meals, making a total of $16,679.00 per month. The plaintiff was granted sick leave by the hospital from the date of the accident to 9 January 2001, but was allowed further sick leave by the defendant until 1 August 2001, a total of about 31 months. However, from January 2000, the annual bonus of $1,000.00 was discontinued, giving a sum $83.33 less per month, or $16,595.67.

9. However, it is clear on the evidence that the restaurant business has suffered together with the economy as a whole since at least early 1999, and it is submitted by Mr Lam for the defendant that the proportion of the plaintiff's salary which comprised tips and overtime, and consequently the average income, would have been less even had he not had the accident. In support of this he produced the salary records of another captain in the same restaurant, showing her monthly average $15,830.00 for the two years from 1 August 1999. I think that I can also take judicial notice of the fact that this period has been a bad time for the industry, with many closures. In the circumstances, although the average income would depend on some imponderables, such as amount of overtime worked, it would seem sensible and fair to make some deduction from the plaintiff's pre-accident income to recognise the financial situation restaurants such as this face.

10. I consider a reasonable figure for his average earnings during this period, had the accident not occurred, to be $16,000.00 a month. This gives a sum of $496,000.00 for the 31 months to 31 July 2001.

11. For the next period, from 1 August 2001 to the date of trial, I have to take into account a further reduction in view of the removal, from 1 January 2002, of the year-end double pay, further reducing the monthly income by $866.67. The comparative captain's income went down by more than that again, to $14,487.00. I have to reflect the overall reduction in the plaintiff's likely earnings and take a figure of $15,000.00 for this period.

12. However, as I have said, he had returned to work on 1 August 2001 but only earned a total of $139,708.10 to the end of December 2002, and has not worked since then. This is an average of $8,218.00 a month giving a loss of earnings of $6,782.00 a month. This is in spite of being on the same rate of pay as before, although, as I shall look at shortly, he has been given only light duties rather than returning to those of a captain. The reason for the shortfall is the lack of overtime, for which Mr Lam concedes he may claim, and the unpaid sick leave he has taken, which Mr Lam says he should not be able to claim. The reason he says is that, after 31 months from the accident, when regular treatment has ceased, and his condition stabilised, further sick leave should not be permitted. He say also that the plaintiff is able to treat the pain with analgesics and should be able to continue to work.

13. I regret that I find this a particularly hard line to take. If a man has been injured and left with an ongoing disability, if any time off work is a result of that disability, then the court must take it into account both in calculating what earnings he has lost and what his likely earnings will be in the future. All the sick leave is recorded and was approved by a doctor and in relation to his injuries. I accordingly find that he is entitled to the whole of the difference between what I have found he might have earned and his actual earnings. For the later period this is $255,000.00 ($15,000.00 x 17 months) - $139,708.10 = $115,291.90, making the total loss of earnings pre-trial $611,291.90.

14. Mr Lam submits that the sum paid to the plaintiff by way of sick leave payments of $367,694.50 should be deducted from this sum rather than the total damages, otherwise interest will be payable on money he has already received. I think that there is merit in this argument and will accede to his request, making the balance under this head $243,597.40.

(2) Future loss of earnings

15. The case for the plaintiff as to future loss is that he expects to lose his employment once this action is over and will only be able to secure comparatively low paid employment with light duties, and in this regard Mr Ng has referred me to various statistics showing wages in other occupations suitable for him with averages of between $4011.80 to $6,800.00 per month. The flaw in this argument, as I see it, is that there is no evidence that the defendant intends to dispense with the plaintiff's services. Indeed, rather the opposite appears to be the case, as his employers have made strenuous efforts to accommodate him in duties he is able to do, while paying him the same basic wage as before, in order to help him to re-integrate into the working environment. To this end, he was given duties first at a desk in the restaurant known as the business department which seems to be manned usually by deputy managers and involved in arranging future bookings and banquets. The duties assigned to the plaintiff were in the nature of dealing with telephone calls, making announcements through the loudspeakers, photocopying and folding menus. He says that on some occasions he did do odd jobs in the restaurant such as filling teapots, but I accept the evidence of Miss Lee, a manager, that the staff were requested not to ask him to perform heavy duties.

16. There seems to have been an attitude problem while the plaintiff was in this department, according to him on the part of other staff, but on his part if the evidence of Miss Lee is right. For the purposes of this judgment I do not need to decide who was right, except to say that it did not work out then as anticipated and the plaintiff was moved to the "po cho fong", a room where his duties were mainly folding napkins and putting chopsticks into paper covers. At the same time the management were discussing with him where he would like to work in the longer term.

17. All this does not seem to me the behaviour of an employer who is intent on getting rid of an employee. Indeed, they have shown themselves to be generous, in allowing him to delay returning to work long after his sick leave expired, sympathetic to his situation, and generally a caring employer who wishes to do the best they can for him. In Hong Kong it is not always so. The only support the plaintiff can put forward for his fear of being removed is that he heard it happened to someone else, which, without more, is scanty evidence of ill will on the defendant's part, and the fact that he was not sent on a training course with other captains. As to this, I accept the evidence of the defendant's witnesses, that he was not selected because he was not then dealing with customers, and he was taking so much sick leave that he may not have been able to attend it all. Bearing in mind that the defendant was paying for the training per person attending, this seems eminently reasonable, and hardly evidence that they are about to sack him.

18. Having said that, it seems to be accepted by the defendant that they cannot go on indefinitely paying him the high basic salary of a captain while he can no longer perform the duties of that post, and when he, and they, have decided where he should work, his salary will inevitably be lower. I have no doubt that they will be able to find a place for him, as the defendant is a large organisation with some 70 restaurants and 12500 employees. It may be possible for him to return to the business department, or to another job such as stock attendant, where any difficulties presented by his disability would be alleviated by pairing him with an able bodied partner. The decision is largely up to the plaintiff himself, and it appears that he has delayed making any decision until these proceedings are concluded.

19. This of course makes the task of assessing his post-trial earnings particularly difficult, and based mainly on guesswork. From the evidence, I consider it unlikely that he would return to the business department, where the loss of earnings would be least, and that the stock attendant/storekeeper post is that most likely to be accepted. As I have said, I am satisfied that he will continue to be employed in some capacity, and I will take the average income including tips of a storekeeper last year as a guide to his likely earnings. Without the year end double pay which has been suspended, the average monthly earnings of a grade B storekeeper was $8213.38. On this sum, the plaintiff's continuing loss will be $6,786.62 ($15,000.00 - $8,213.38).

20. As to the multiplier, again I have had a number of authorities drawn to my attention, and in the light of these, and bearing in mind the plaintiff's age of 47, and a retirement age in the defendant company of 60, but also bearing in mind that many in this trade could and do continue to work elsewhere beyond that age, I consider a proper figure is 9.

21. The future loss is accordingly:? $6786.62 x 12 x 9 = $732,954.96.

LOSS OF EARNING CAPACITY

22. The plaintiff is clearly entitled to some recognition of the disadvantage he would suffer if he has in the future to seek employment on the open market. However, as I have found above, I consider the chances of this happening are not high. Mr Lam has offered the sum of $50,000.00, which seems to me a fair sum which I will award accordingly.

LOSS OF MPF BENEFIT

23. This is easily calculable on the figures above. The loss pre-trial is 5% of the net loss of earnings of $234,597.40, which is $11,729.87, and the future loss is the same percentage of the future loss I have found of $732,954.96, being $36,647.75, making a total of $48,377.62.

OTHER SPECIAL DAMAGES

Medical expenses

24. These are supported by receipts and I see no reason why they should not be allowed in full in the sum of $8,933.00.

Travelling expenses

25. These are agreed at $7,475.00

Tonic Food

26. The plaintiff claims $15,000.00. This is unsupported by any receipts or, indeed, detailed explanation of his purchases. I consider this to be a case where a nominal sum should be allowed and agree with the defendant's suggested figure of $5,000.00.

27. The total of other special damages is accordingly $21,408.00.

SUMMARY

28. I accordingly award damages to the plaintiff in the following sums:

	$
General damages	350,000.00
Loss of earnings pre-trial	243,597.40
Future loss of earnings	732,954.96
Loss of earning capacity	50,000.00
Loss of MPF	48,377.62
Other special damages	21,408.00
	1,446,337.98
x 82%	1,185,997.14
Less balance of ECC payment	132,000.00
	1,053,997.14

29. There will be interest on the general damages at 2% from the date of writ, and on special damages and the balance of pre-trial loss of earnings at half the judgment rate being 4.0465% from the date of accident, both to the date hereof. There will also be an order nisi that the plaintiff have his costs to be taxed with a certificate for counsel with liberty to apply generally in respect of any perceived errors in the figures used in this judgment.