HARVEY KENNETH v. WELLTEX INTERNATIONAL DEVELOPMENTAL LTD. AND ANOTHER

HCPI 818/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 818 OF 1998

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J U D G M E N T

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1. In this action the plaintiff claims damages for personal injuries suffered by him on 27 October 1997 in an accident at work in the course of his employment with the 1st defendant, a subcontractor of the 2nd defendant. The plaintiff, who was then 4 days short of his 27th birthday, is a carpenter by trade, having undergone training and apprenticeship in England and Australia, and was employed by the 1st defendant as a shuttering carpenter at a construction site in Central which was part of the MTR Hong Kong Station project. He and his fellow workers were removing shuttering from the walls of an air duct below the floor of the station concourse, working in hot and humid conditions with poor lighting, when a slab of concrete, about 4 metres by 2 metres and several centimetres thick, and weighing about two tons, fell from the roof of the working area on to the top of the plaintiff, causing injuries to his face and pelvis.

LIABILITY

2. At the hearing of this action Ms Alice Tsang for the defendants conceded that they were liable for the accident, but submitted that the plaintiff was partly responsible for the accident to the extent of 20%. In support of this contention she said that the plaintiff, as an experienced worker, should have taken elementary precautions, and that there was the possibility that he and his colleagues had removed the scaffolding props holding up the concrete, which was a temporary roofing to the area they were in, to provide themselves with more working space.

3. It was not clear what precautions the plaintiff was expected to take, in the absence of any apparent danger from the concrete, which he believed to be part of the roof, and there is no evidence of the allegation that he had interfered with the supports. Both the plaintiff and his witness Mr Parsons say that they were working in the normal way and had not removed any of the props. The defendants' only witness, Mr Cheung Kwok Keung, admitted that, although he was the safety officer in respect of this part of the site, he only visited the accident site after it had happened for the first time. He said he saw props on the ground and thought that the plaintiff might have removed them. In the absence of any other direct evidence, this does not begin to support a case that the plaintiff had done something to cause this accident. With a temporary concrete slab roof, supported only every 4 metres by a scaffolding prop, and apparently with water leaking into the area from core drilling being carried out above, it is easy to see in hindsight that this was a very dangerous area for the plaintiff to be expected to work, but I am satisfied that none of that danger was created by the plaintiff himself, and he was accordingly not contributorily negligent for the accident.

QUANTUM

4. The plaintiff was fortunate in not being more severely crushed by the concrete, owing to a pile of sand upon which the slab partly came to rest. He did, however, without losing consciousness, suffer a fracture of the posterior column of his right acetabulum, extensive damage to the bones of his face, together with a deep laceration, and a number of other lacerations and abrasions. He was taken to Queen Mary Hospital where the laceration was sutured and it was discovered that he had suffered a compound fracture of the right zygoma and maxilla. The fracture to the pelvis was treated by skin traction and bed rest, while, on 7 November 1997, the facial injuries were treated by open reduction and reconstruction using bone grafts from the ribs and titanium plates. He also reported suffering from diplopia, double vision, in the right eye on upward extreme gaze. He was discharged on 9 December 1997 with crutches, but was readmitted in October 1998 because of infection in the wound site on his face, and a further operation was performed to remove the fixation plate. He continued to attend regular follow up clinics after discharge from hospital and, since February 1999, a psychiatric clinic.

5. It is apparent from the medical reports that the plaintiff has recovered extremely well from serious injuries which I will deal with in turn in looking at his residual disabilities.

Fractured pelvis

6. The fracture of his pelvis has united well without displacement and both Dr Lau Hoi Kuen and Dr Arthur Chiang report a full range of movement in the right hip with no abnormality seen on x-ray. However, both also reported his complaint that he has pain in his hip after prolonged walking or sitting, and tenderness in the muscles. They also noted that he had not had any physiotherapy which they considered would improve his condition to the extent that this injury would not prevent him from pursuing his former occupation. Their assessment of his impairment was between 3% (Dr Chiang) and 8% (Dr Lau). However, this also took into account low back pain he reported on examination in 2000. An MRI done in August 2000 showed degenerative changes to the spine unconnected with the injuries and from the reports it seems probable that the pain is muscular from fibrosis and scarring at the injury site. This again would improve with physiotherapy.

7. I have also seen a video taken by an investigation company for the defendants, which showed that the plaintiff certainly can, and does walk reasonably long distances, apparently without effort, although I accept his evidence that it can still produce some discomfort. This seems to me to be a comparatively minor disability now, and would certainly be so were the plaintiff to undergo a course of physiotherapy, which I am prepared to allow as a future medical expense of $6,000.00, being 20 sessions at $300.00.

Facial injuries

8. From the physical point of view these were the worst of the injuries suffered by the plaintiff. He had a severe fracture of the facial bones on the right side requiring extensive surgery and reconstruction and further surgery for removal of the plate a year later. He now has some scarring on the face and a long noticeable surgical scar over the top of his head just behind the hairline. There is also a scar on his chest over the donor site for the bone graft.

9. The plaintiff still suffers from residual pain in the right side of his face with altered sensation and some mandibular dysfunction. He also experiences headaches and still complains of diplopia. This latter is clearly not a very limiting disability, and, indeed, one of the hospital reports states that there was no diplopia when he was seen in February 1998. If it still exists at all, it is a minor ailment. The other effects of the facial injuries are permanent, but not seriously disabling, the doctors putting the disability at no more than 2%, and not such as to interfere with his working ability.

Psychiatric/psychological disability

10. It will be apparent from the above that the physical injuries the plaintiff received at the time of the accident have resulted in only minor residual disability, none of which would prevent him returning to his pre- accident work at the conclusion of his sick leave in late 1999, or certainly after further treatment by way of physiotherapy. However, the shocking experience of the accident itself has caused mental disturbance which all the experts who have reported on him agree needs further treatment.

11. He was first seen by Dr Josephine Wong in February 1999, having been referred by the plastic surgeon who no doubt had noted the symptoms. At that stage he complained of low mood, sleep disturbance, social withdrawal and anxiety in addition to flashbacks of the accident associated with anxiety and avoidance of situations which reminded him of it. He was diagnosed as having post traumatic stress disorder (PTSD) and depression. Over the next 20 months he was seen by no less than four psychiatrists and a psychologist. There is no disagreement among them as to the diagnosis, and, indeed, as to the severity, the general consensus being that the condition is relatively mild and would respond to proper treatment with a strong possibility, although not certainty, of him being restored to his mental state before the accident. The main problem here is the fact that these disorders have created in his mind a fear of returning to the sort of work he did before, and he cannot now imagine working in the same conditions, or on any construction site where there may be potentially dangerous situations and sudden loud noise, and it is claimed by Mr Lam on his behalf that this produces a severe loss of earning capacity.

12. I am satisfied that these symptoms are genuine, though mild, and presently do constitute a problem with him finding suitable work. It is equally clear from the medical evidence that he would benefit to a large degree by a course of treatment, after which it is possible he may return to work he did before, although I accept that there will probably be a remaining reluctance to do something which would place him in a situation similar to that at the time of the accident, which was clearly a terrifying experience.

Pain suffering and loss of amenities

13. While this was a serious accident resulting in injuries which were severe, and might well have been worse, the plaintiff has made an excellent recovery and has the prospect, after further treatment, of recovering almost fully. Taking the totality of the plaintiff's injuries, and bearing in mind the painful operations and lengthy subsequent treatment, I consider a proper award under this head would be $450,000.00.

LOSS OF EARNINGS

Pre-trial

14. There is no dispute that the plaintiff was on sick leave from the date of the accident to 31 October 1999 and that his average earnings at the time of the accident were $36,049.00 per month. During the period of his sick leave he was paid 4/5 ^ths of his pre-accident salary leaving a net loss for this period of $67,383.50.

15. It is, however, the defendants' contention that there should be no award for loss of earnings thereafter. The basis for this is that the plaintiff's failure to obtain employment since his sick leave expired is unconnected with his medical condition. Ms Tsang cites the fact that the plaintiff has to obtain an employment visa to work here at all, and there is no certainty that he will get one, and that there are less opportunities in the construction industry. She also mentioned the fact that the 1st defendant had closed down its operation here completely in 1998. I do not consider this relevant as the plaintiff's skills were clearly in demand and, for the reasons I shall come to shortly, I have no doubt he would have found work with other employers. As to his requirement for a visa, this again does not seem to me to be a reason to suppose he could not work at all. The plaintiff is a skilled and well trained carpenter, and the evidence shows that such workers are much in demand, to the extent that there were on the 1st defendant's contract alone some 20 expatriate workers with similar skills. The 1st defendant seems to have had no difficulty in acquiring a work visa for him in 1997, and renewing it later that year for a further two years, apparently while he was still in hospital and on the basis that he was to be offered work on a further contract after he recovered. This was denied by the defendants, but in the absence of any direct evidence from anyone from the 1st defendant as to the situation, that in an affidavit from the company's accountant lacking precise information, and the source, I accept the plaintiff's evidence that he was verbally offered further employment and that he collected his new visa from the 1st defendant's offices after he was discharged from hospital.

16. As to present employment opportunities, one of the plaintiff's colleagues with the 1st defendant, Mr Parsons, gave evidence as to his work experience after the 1st defendant left. He said that there had been ample opportunities for work in his field since 1997, although it was a bit slow in 1998 and the rate paid for the work had decreased. He said that he was now earning $27,500.00 per month with a month's bonus and considered the plaintiff, with similar skills could earn the same, making about $30,000.00 a month on an annual basis. He also said that there were many large construction projects under way in the next few years and could see no reason why such work opportunities should be less.

17. I accept this evidence and consider that, were it not for the accident, the plaintiff would now be earning the equivalent of $30,000.00 a month, and would have been since the end of his sick leave.

18. It was originally the plaintiff's case that he could no longer work at all. However, he now accepts that he can work, albeit in more limited fields, and has been offered employment as a warehouse supervisor at a salary of $12,000.00 a month, subject to obtaining a visa. His claim now is for the difference between that and $30,000.00 from October 1999. I am not sure, however, that this is the correct approach. While the plaintiff's mild psychiatric disorder may have prevented him from returning to his former work, it is apparent from Mr Parsons' evidence that other work in the carpentry field has been available. Indeed, he offered the plaintiff a position as his partner in a short-lived business venture of his own. The plaintiff was able, during 1998, to take holidays round Asia, either with others or by himself, on an almost monthly basis, and from the medical reports it is clear that he was not seriously disabled. In my view, he could, and should, have secured employment immediately after October 1999, although I accept that, his choice being limited by his psychiatric problems, he would have earned less than before.

19. Doing the best I can on the evidence before me, I consider that his earning capacity to the date of trial was reduced as a result of his injuries to the extent of one third, giving a monthly loss of $10,000.00, and a total loss from 1 November 1999 of $166,452.00 (16 20/31 x $10,000.00). After deducting a further 15% in respect of tax, this comes to $141,484.20.

20. The total pre-trial loss of earnings is accordingly $208,867.70.

Future loss of earnings

21. The most important aspect of considering the plaintiff's future loss is the effect of treatment. Both the defendant's expert Dr Singer and the plaintiff's, Dr Connell and Dr Chen, agree that he needs, and would benefit from, treatment, although I have to accept that there is no certainty of a complete cure from his psychiatric complaint. It is apparent from those experts' reports that any course of treatment would last at least 5 months and possibly a year, following which his mental state will be much improved and his capacity for work in a similar field, if not the same, as before, greatly increased.

22. I accordingly assess his loss for the next 12 months to be the same as before trial, but following that period, to be a decrease in earning capacity of no more than 15%.

23. As to a multiplier, Mr Lam has directed my attention to a number of authorities in support of his contention that a figure of 15 is appropriate, and I accept this.

24. The sum awarded for future loss of earnings is accordingly $876,000.00, being 12 months x $10,000.00 and $30,000.00 x 15% x 12 x (15 - 1), less 15% in respect of tax, but adding 5% for the Mandatory Provident Fund contribution an employer would otherwise pay, leaving a figure of $788,400.00.

Loss of earning capacity

25. The plaintiff here also claims a sum to compensate for loss of earning capacity, and the defendants concede this only on the basis that there is no award for loss of future earnings.

26. I am not satisfied that such an award is appropriate. In arriving at a figure for loss of future earnings, I have taken into account his loss of earning capacity, which I do not consider should be quantified separately. The principal enunciated in Moeliker v. Reyrolle & Co. Ltd [1977] 1 WLR 132, and as since clarified and followed, is that an award for loss of earning capacity should be made where a plaintiff is still in employment, but there is a real risk of him losing that employment and being thrown on to the job market with a disability. It is clear that this was not intended to overlap with an award for loss of earnings, but was to compensate for a risk of future unemployment. Where an award is made as here for assessed loss of earnings, such an award is, in my view, inappropriate. I accordingly make no award under this head.

Special damages

27. Medical and travelling expenses accrued of $10,312.00 has been agreed. As to future medical expenses, as is apparent from the above I am satisfied that the plaintiff requires physiotherapy treatment, the cost of which I assess at $6,000.00, and psychiatric treatment. He defendants dispute the cost of the latter in the private sector, agreeing only to the more modest cost of that in Government clinics. However, I do not consider private treatment a particular luxury. It has the benefit of flexibility, without having to wait for appointments, and treatment, the frequency and nature of which can be geared to the plaintiff's convenience and requirements. The cost of this quoted by the experts varied from $25,000.00 to $80,000.00. I will allow a median figure of $55,000.00, making a total of future expenses of $61,000.00.

SUMMARY

General damages
Pain suffering and loss of amenities	$450,000.00
Loss of future earnings	$788,400.00
Future medical expenses	$ 61,000.00
Special damages
Pre-trial loss of earnings	$208,867.70
Medical and travelling expenses	$ 10,312.00
	$1,518,579.70
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28. There will also be interest on special damages at 6.04% p.a., being half the current rate on judgment debts, from the date of the accident, and on general damages at 2% from the date of the writ, both to the date hereof.

29. I make the usual order nisi that the defendants pay the costs of the plaintiff to be taxed.