LAU YUK HUNG v. TSANG KWONG MING AND OTHERS

HCPI 284/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 284 OF 2010

------------------------

BETWEEN

------------------------

-----------------

JUDGMENT

-----------------

1.  The plaintiff claims damages for personal injuries sustained in an accident at work on 16 January 2008, when he was employed by the 1^st defendant as a fire extinguishing system technician.

2.  On the day in question, he fell from a wooden ladder and sustained personal injuries, including injuries to his right wrist and right ribs.  He commenced employees’ compensation proceedings against the 1^st defendant.  After trial, the 1^st defendant was found to be his employer and adjudged liable to pay employees’ compensation to him. 

3.  These proceedings for common law damages were commenced on 5 June 2010.  On 25 November 2010, interlocutory judgment was entered against the 1^st defendant for damages to be assessed.  Thereafter, the action continued with the 2^nd defendant contesting liability until 30 July 2012, when the plaintiff discontinued his claim against the 2^nd defendant.  Consequently, the 2^nd defendant also discontinued third party proceedings against the third party.

4.  On 20 August 2012, pursuant to my order, the Employees’ Compensation Assistance Fund Board (“ECA Fund Board”) was joined in the proceedings as the 3^rd defendant. They appeared before me as an interested party.

5.  From the time that interlocutory judgment was entered against the 1^st defendant, and up to the present, notices of hearings were served on the 1^st defendant at various stages of the case management of these proceedings, but he did not participate in any of those hearings at which various checklist orders were made, including orders for expert reports to be adduced in written form without the need to call their makers.  He was also served with notice of today’s hearing but he has failed to appear.

6.  Upon the intervention of the ECA Fund Board, the plaintiff’s solicitors and the solicitors for the ECA Fund Board entered into discussions culminating with an agreement that the Fund Board would not contest the assessment of damages, if the plaintiff’s claims were limited to the net amount of $420,000.

7.  The plaintiff gave evidence before me indicating his agreement to limit his claims to that amount and, in particular, he agreed that, notwithstanding that he had made claims for larger amounts, he was willing to limit his claim for special damages to the sum of $7,360, and that he was willing to limit his claim for future loss of earnings to a claim for loss of earning capacity.

8.  Be that as it may, I still have to be satisfied that he has established before me, and adduced before me sufficient evidence to justify, his various claims. 

9.  The first head of claim I need to look at is the claim for damages for pain, suffering and loss of amenities. 

10.  The plaintiff was examined by orthopaedic specialists, Dr Wong See Hoi and Dr Danny Tsoi Chi Wah on 22 September 2009.  In their joint report dated 6 October 2009, they confirmed that the plaintiff suffered from right distal radius and ulna fracture and right 11th rib fracture after he fell from a height at work on 16 January 2008.  They assessed the plaintiff to suffer from an impairment of the whole person, of about 5 to 6%, according to Dr Wong, and about 4%, according to Dr Tsoi. 

11.  Prior to the accident, the plaintiff was in good health and physical condition.  As a result of the accident, and notwithstanding that more than four years have passed since then, he still suffers from intermittent attacks of right wrist pain, intermittent attacks of right chest pain and rib pain upon deep breathing. 

12.  Mr K KLeung, who appears for the plaintiff, sought damages for PSLA in the sum of $280,000 in his written opening.  This, in fact, is the amount that was agreed as appropriate between him and Miss Grace Ho, who appears for ECA Fund Board.  Having had regard to the evidence of the plaintiff, as contained in his witness statement, and the joint orthopaedic experts’ report, I agree that I ought to assess and award damages for pain and suffering and loss of amenities in this amount.

13.  I turn now to consider the claims for loss of earnings.  In the employees’ compensation proceedings, Her Honour Judge Mimmie Chan, as she then was, found that the plaintiff earned $11,000 per month prior to the accident.  After the accident, the plaintiff was granted sick leave for about nine and a half months.  Mr Leung submitted that I should allow a further two and a half months as being a reasonable period for the plaintiff to search for suitable alternative employment before returning to gainful employment. 

14.  I agree, and I assess damages for pre-trial loss of earnings for a period of 12 months from the date of the accident in the sum of $11,000 per month.  This translates to the sum of $138,600, if one also includes loss of MPF benefits for this period, which I also award. 

15.  As I have said, the plaintiff no longer claims damages for future loss of earnings and is agreeable to limit his claim to a claim for damages for loss of earning capacity.  Having regard to the opinions of the orthopaedic specialists and to the plaintiff’s own evidence, I find that the plaintiff does suffer a reduction in work efficiency and capacity, as a result of the injuries suffered, and that he suffers a real handicap in the labour market. 

16.  Having regard to his current age of 44, and to his past employment prior to the accident, I assess and award damages for loss of earning capacity in the sum of $120,000. 

17.  I am satisfied on the evidence that I should also award the sum of $7,360 as special damages for pre-trial expenses. 

18.  A summary of my award is as follows:  PSLA : $280,000; pre-trial loss of earnings and loss of MPF benefits : $138,600; loss of earning capacity : $120,000; special damages : $7,360, which makes a total of $545,960. 

19.  I deduct from this amount the amount of employees’ compensation paid in the sum of $125,960 and award the sum of $420,000 as damages for personal injuries, net of the payment of employees’ compensation.  I, therefore, enter judgment in favour of the plaintiff against the 1^st defendant in the sum of $420,000. 

20.  I also enter judgment against the 1^st defendant for interest as follows: interest on damages for pain, suffering and loss of amenities in the sum of $280,000 at 2% per annum from the date of service of the writ to the date of judgment, and interest on pre-trial loss of earnings in the sum of $138,600, and other special damages in the sum of $7,360, at 4% per annum from the date of the accident to the date of judgment.

21.  I also order that the 1^st defendant do pay the plaintiff’s costs of the assessment, including the plaintiff’s costs incurred against the 3^rd defendant, the ECA Fund Board, to be taxed on the District Court scale if not agreed.

22.  As this is the subject matter of agreement between the solicitors for the plaintiff and the solicitors for the ECA Fund Board, I am prepared to order that there be no order as to costs of this action as between the plaintiff and the 3^rd defendant.

23.  Finally, I direct that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. 

24.  I cannot conclude my judgment without expressing my disquiet at the state of affairs where, as a result of the amendments to the provisions of the Employees’ Compensation Assistance Ordinance, Cap. 365, injured persons, who are unable to recover payment from their employers are required, nevertheless, to prove their claim for common law damages in court, and incur the costs of proving their case in court, before they can claim payment from the ECA Fund Board, but who, when they claim payment after obtaining such judgment, are told that the ECA Fund Board is not liable to pay interest on those damages that have been awarded and, more surprisingly, that the ECA Fund Board is not liable to pay the costs incurred in proving the case in court and obtaining that judgment against the employer. 

25.  These amendments were effected, I believe, after the Asian crisis in 1998, for historical reasons which no longer apply. 

26.  It seems to me that this state of affairs is incongruous and that steps should be taken to end it as quickly as possible.  If statutory legislative intervention is not available in the foreseeable future, perhaps resort should be had to proceedings by way of judicial review to assess the validity of these provisions, and, particularly, the provision regarding the non-payment of incurred costs.