YUEN SIU v. LAU CHOI HAR AND ANOTHER

HCPI 374/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 374 OF 2002

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ASSESSMENT OF DAMAGES

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Introduction

1. On 7 November 2000, the Plaintiff, then a 54 year old worker, was lawfully crossing the road at Hong Nin Road, Kwun Tong, when he was hit by a taxi traveling down the slope against the red light. On 8 May 2002 he issued proceedings in respect of his personal injuries against the 2nd Defendant, being the taxi driver, and the 1st Defendant, being the taxi owner. The action against 1st Defendant was discontinued by consent on 30 September 2002. By Order dated 19 November 2002 of Master B. Kwan, the Plaintiff entered judgment on liability against the 2nd Defendant with damages to be assessed. This is the assessment of damages against the 2nd Defendant.

2. Pursuant to the same Order, the reports of the Government hospitals as to treatment and care of the Plaintiff were accepted as agreed evidence and the reports of the parties' respective orthopaedic consultants were accepted without oral evidence. The Plaintiff was the only witness called at the hearing.

Injuries, treatments and disabilities

3. Immediately after the accident on 7 November 2000, the Plaintiff was taken by ambulance to the Accident and Emergency Department of United Christian Hospital ("UCH"). He suffered multiple abrasion wounds over the left side of his body, contusion of right chest, head injury without loss of consciousness and collapse of lumbar spine L1. He was treated conservatively with a hard corset and discharged 4 days later on 11 November 2000. For about a month thereafter, he could walk only with the support of a walking stick. He was put in a hard corset for about 3 months.

4. Follow up treatment was given by the Department of Orthopaedics and Traumatology, UCH with X-rays and lumbar corset for 3 months. Between November 2000 and May 2001, he underwent physiotherapy with the Physiotherapy Department of Alice Ho Miu Ling Nethersole Hospital ("Nethersole").

5. The UCH report stated that the Plaintiff had "Residual pain and cannot work". He was given 8 months sick leave from 7 November 2000 to 9 July 2001.

6. The Plaintiff was examined by his own orthopaedic consultant, Dr. Brian Chan, on 6 December 2001. Dr. Chan noted that the Plaintiff had made a full recovery from his head injury. The 1st lumbar vertebral has healed with bony union. However, there was some local tenderness and slight limitation of the range of the spine motion. Neurology of the lower limbs was normal. The Plaintiff could walk with normal gait, and he could stand, sit and squat without pain. He had minor impairment with clinical signs of lumbar injury, with some lumbar spondylosis with decreased L3-5 disc spaces and anterior marginal osteophytosis from L1 to L5 vertebrae which were incidental findings and not related to the accident. His main complaints were back pain, right chest pain at night and weakness of the left leg. Dr. Chan concluded that the Plaintiff's conditions were then static after one year from the injury, and further major improvement would be unlikely. He assessed him as suffering 5% impairment of the whole person from the injury with a 5% loss of earning capacity. Dr. Chan advised that the Plaintiff could return to his pre-accident job as a workman II of the home for the aged. However, because of the back pain and stiffness, he should avoid heavy weight lifting.

7. On 8 April 2002, follow-up treatment with UCH showed that the Plaintiff still suffered from residual back pain and stiffness. Fracture L1 healed uneventfully. Sick leave was extended to 7 May 2002.

8. Dr. Lam Kwong-Chin, for the 2nd Defendant, examined the Plaintiff almost 2 years after the accident on 24 October 2002. He agreed with Dr. Chan's rating of 5% permanent impairment of the whole person. The Plaintiff's main complaints then were residual back pain; radiation of numbness to left lower limb, from thigh to calf; right chest pain on lying on right side. Examination showed the Plaintiff had local tenderness compatible with the fracture site at L1 and spinal movement was partially diminished. He also agreed that the Plaintiff could return to his pre-accident work of workman, but because of back pain and stiffness, he also advised the Plaintiff to avoid heavy weight lifting.

9. The Plaintiff has been regularly attending follow-up treatment at UCH, and undertaking physiotherapy sessions first at Nethersole, and thereafter, at 2 other sports centers, and is expected to continue doing so indefinitely.

Mitigation of Damage

10. The main issue between the parties at the hearing was whether the Plaintiff had properly discharged his duty to mitigate his loss by resigning from his former job after expiry of sick leave, to take up new employment at a substantially lower pay. I will deal with this issue first, as a finding on this issue will affect his award under the various heads hereafter.

11. The Plaintiff is a youthful looking 57 year old. Prior to the accident, he used to go jogging at least 4 times a week, each time between 45 minutes to one hour. Since the accident, he has not been able to jog as it would give him back pain. He cannot even walk for over 45 minutes without a rest. He also has sporadic pain and numbness in his left limb, the on-setting of which, he said, could not be predicted but might happen daily or once in several days. His back pain increased whenever he tries to bend over or lift weights about 10 kg. His sleep is affected by his chest pain. He can now only remain in a sitting or standing position for under one hour, and must then seek relief by either getting up to walk around, or to sit down.

12. He has been recommended repeatedly not to lift heavy weights and he has heeded that advice. He claimed that for that reason, he resigned from his former job of Workman II at the Buddhist Sum Ma Shui Ying Care and Attention Home for the Elderly ("the Home").

13. He had in fact held that post for 9 years. His job was general labour duties, which included cleaning windows, sweeping and cleaning floors, tidying beds and rooms and delivering clothes and bedsheets and transporting meals for about 50 elderly residents. He had to carry a heavy metal soup container from a food lift and place it onto a trolley which he would push 20 odd feet to the nurses for distribution to the residents. This container when full, weighed about 60 lbs. He described lifting the container as requiring a degree of strength which he did not now have. He was also responsible, amongst other things, for taking off bedsheets and towel blankets for washing. His method of working was to spread out one sheet on the bed and then quickly fold up a number of the towel blankets and place them at its centre. He would tie up the ends of the first sheet to wrap up the pile of folded blankets to make into a parcel. The parcel would be placed onto the trolley to be taken to be laundered. Each of these parcels weighed about 50 - 60 lbs.

14. He agreed with Defence counsel that he had considered during his sick leave about leaving his former job. On the last day of his sick leave on 7 May 2002, he returned to the Home and had a discussion with his employer. He explained his medical situation and doctors' orders not to lift heavy weights, and requested to be re-assigned some less strenuous work. He also presented his superior with a Reference Letter from Dr. Sun Lun Kit certifying that he had "recovered with residual back pain and radiation leg pain which prevented him to perform his original duty especially the heavy duty." However, he did not receive a sympathetic hearing. According to the Plaintiff, the indication he received was that his job would not change. It was up to him to decide what to do, in view of his doctors' orders. After that discussion, and on the same day, the Plaintiff handed in his resignation.

15. It is the 2nd Defendant's contention that the Plaintiff should not have simply resigned, but instead should have tried out working at his former job first. For example, it was suggested that he could have asked the kitchen staff to fill up the soup container to only half, and carry it twice instead of once. Likewise, by carrying fewer pieces of towel blankets at a time, but repeatedly, he could have discharged the same duties without straining his back. Under vigorous cross-examination, the Plaintiff conceded that perhaps it might have been possible to re-structure the manner in which he carried out his duties, but those thoughts simply had not occurred to him. He explained that he felt that his employers were not supportive of him, and he therefore felt that he had no alternative but to resign. He was earning $10,420 at the time.

16. After resignation on or about 29 May 2002, he secured a job as a nightshift security guard with Guard City Limited at a basic salary of $185 per day, working for about 26 days per month. His job was to patrol outside the Kwong Fuk Estate in Tai Po. His pain required him to sit down every now and then during duties.

17. The 2nd Defendant contends that the Plaintiff was unreasonable in not making more effort to keep his former job. The Home was prepared to take him back. It was the Plaintiff himself who decided to resign and take up a job with much lower pay. Why should the 2nd Defendant bear this loss? The 2nd Defendant further criticizes the Plaintiff for not trying harder to negotiate with his former employer for a change in his job nature, or the way in carrying out the existing tasks.

18. Whether the Plaintiff had acted reasonably is in every case a matter of fact. It is true, as the Plaintiff fairly conceded, that new ways could have been devised whereby he might have been able to discharge the duties of his former job, and that might have led to his not resigning. I accept the Plaintiff's evidence that those possibilities simply did not enter his mind. It could be, that given the same situation, another person might have taken a more positive approach and pragmatically devised new ways of handling his job problem, but it is the Plaintiff in this case, whom we have to consider.

19. The Plaintiff is a man educated up to primary level. Since coming to HK from Mainland China, he had worked in garment factories and construction sites. His former job as a worker in the Home was also of general labour nature. I have observed the Plaintiff in the witness box. He is a simple man of few words. When coaxed by his counsel to describe what he felt after the accident, he merely said "scared" and "painful". He looked as if those adjectives might still apply to his view on life after the accident.

20. A regular jogger before the accident, he had now lost his strength, and was in pain whenever exerting himself. His sleep had been affected. Doctors have repeatedly told him that his condition would never improve. He had returned to his old habit of smoking. He considered resigning, even before his discussion with his superior. This was a job he had been performing for 9 years, and which he had never previously intended to leave before retirement. Through no fault of his own, his whole life had been suddenly disrupted. There was a hint of despair in his outlook which might have prevented him from being more positive and robust in his approach to his former employer.

21. His new job was not an easy one. He had to work the night shift, and walk around to patrol grounds, which he could not do very well except with rest every 45 minutes to an hour. He said his new employer knew about his medical condition, and "did not mind" him. It is not unknown that someone who has undergone a traumatic experience with residual disabilities will become sensitive about whether he is regarded by others as a liability. Although his discussion with his superior, Mr. Lau Fuk Yu, was not described in detail, he came away with the impression that he had no alternative but to resign. From his evidence and demeanor in the box, the Plaintiff does not appear to me to be the type of person who would plead for sympathy or help from his employers if such sympathy was not forthcoming, particularly since he had presented them with Dr. Sun's Reference Letter which clearly spelled out that he could no longer perform his former duties.

22. The Plaintiff had intimate knowledge of the requirements of his job of 9 years. He is the one who feels the back pain, the numbness in the left limb and loss of strength. He is the best judge of whether he could have continued to perform the tasks of his previous job. He concluded, even before going back on 7 May, 2002, that he would no longer be able to carry out the same tasks. Dr. Sun confirmed his view.

23. I find the Plaintiff to be an honest witness. He stated that prior to the accident, he had never imagined leaving his job with the Home until retirement. That his salary was upwardly adjusted even during his sick leave indicates that there was a degree of job security with the Home. I believe that the Plaintiff would not have lightly taken that decision to leave unless he genuinely felt that he had no other alternative. Furthermore, he sought out regular physiotherapy at 2 different sports centers (which I will deal with later) and took tonic food. These factors tell of a man who makes effort in mitigating his loss rather than of the opposite.

24. The onus of proof on the issue of mitigation is on the 2nd Defendant. No evidence has been led to show that the manner suggested by Defence Counsel in execution of the Workman II tasks would have been approved by management or colleagues at the Home, or whether such might be spurned as slowing down the whole operation. The 2nd Defendant, as a tortfeasor, must take his victim as he finds him. I am satisfied that given the circumstances, the outlook and personality of this particular Plaintiff, it was not unreasonable for him to have resigned at the time he did and to take up a new job, albeit at a lower pay.

Pain, suffering and loss of amenities

25. The Plaintiff underwent a traumatic and painful experience in being thrown up on top of a speeding taxi and the subsequent fall. He remained fully conscious throughout the accident and in hospital. He now suffers from back pain, loss of strength, numbness in his left limb which I have described fully above. His sleep suffers. His condition is not expected to improve. He was bed bound in hospital for 4 days. Upon discharge, he had to walk with support of a stick for one month, and he was in a hard corset for 3 months. Since discharge from hospital, he has been and will continue indefinitely to undergo regular outpatient treatment, and physiotherapy.

26. Apart from his loss of health, the Plaintiff has also lost a lifestyle. He had a hobby of jogging along the side of the river in a park in Tai Po for at least 4 days a week. This, he agreed with Defence counsel, meant very much to him. Now he could no longer do what he loved. Defence counsel has urged me to follow Choi Siau Bon v. Chevalier Construction (Hong Kong) Ltd. HCPI 913/2000 where the award for pain suffering and loss of amenities was $150,000 for more severe back injuries coupled with an award of $100,000 for hip fractures. I do not propose to follow that decision, as taking just one part of such a split award may distort what was originally intended to cover the entire head of damages. Instead, I take into regard the cases referred me by the Plaintiff counsel of Lai Ching v. Wong Chiu Kwai HCPI No. 1992 of 1996, Ho Chi Ming v. Union Rife Hong Kong Ltd. HCPI No. 1204 of 1996, Li Yuen Hung v. Yau Yuk Lan (formerly t/a Shek Kam Garment Factory, HCPI No. 1504 of 1995 and Ng Shing Kai v. Chan Yu Chuen t/a Sheung Moon Civil Engineering Company & Anor. HCPI No. 923 of 2001 and Lung Kwong Ying v. So Sai Lo & others [2002] 2 HKLRD 185 regarding awards for back pain, some degree of which was affected by pre-existing but asymptomatic degenerative conditions. The Plaintiff's injuries are not as severe as the victim in some of the other cases, but he is left with residual pain and inconvenience which impinges on his daily life. I grade the Plaintiff to come short of the Serious category, and award him a sum of $300,000 for pain, suffering and loss of amenities.

Pre-Trial Loss of Earnings

(1) 7 November 2000 to 7 May 2002

27. It follows from my finding on mitigation that the Plaintiff is entitled to recover the difference between his actual earnings and what he would have earned had he not resigned. As Workman II at the Home, the Plaintiff was earning on average $10,175.00 per month. From April 2001 onwards, his monthly salary was adjusted to $10,420.00. The Plaintiff was granted sick leave from 7 November 2000 to 7 May 2002. During the sick leave period, the Plaintiff received full pay except for the 4 months from March 2001 to June 1001 when he received only 4/5ths of his monthly pay. His loss of earnings from March 2001 to June 2001 is: $10,175.00 x 1/5 + $10,420 x 1/5 x 3 months = $8,287.

(2) 29 May 2002 to 14 May 2003

28. If not for the accident, the Plaintiff would have stayed in his former job. His resignation from the Home took effect from 29 May 2002. He would have earned $120,524.67 from 29 May 2002 up to date of assessment on 14 May 2003 ($10,420 x 11 months and 17 days). After resignation, the Plaintiff obtained a job working as security guard for Guard City Limited. He worked there for 3 months and received $13,710 during the period. Guard City lost its management contract with the Housing Authority, and laid off the Plaintiff. Effective 2 October 2002, the Plaintiff found new employment as a security guard with Calibre Services Development Limited and has been working in such position since. His basic salary is $ 4,800.00 with overtime. From 2 October 2002 to 14 May 2003, he received $4,800 x 7 months and 17 days = $36,320.

29. The Plaintiff's loss is what he would have earned less his earnings from Guard City and Calibre Services, being $120,524.67 - $13,710 - $36,320 = $70,494.

30. The Plaintiff's Pre-trial loss of earnings is (1) + (2) = $78,781.

Future Loss of Earnings

31. Not having failed to mitigate, it follows also that the Plaintiff is entitled to recover his future loss of earnings. The Plaintiff was aged 54 at the time of the accident and 57 at the time of trial. He had worked all his life in some labour job. He said that had the accident not occurred, he would have worked with the Home at least until he retired. Ordinary retirement age was 60, but if his health condition was good, he expected to continue to work thereafter. There was no evidence before me however of how realistic this expectation was or to what age he would be likely to be engaged. On the other hand, the Plaintiff was healthy and fit for his age and had it not been for the accident, it was likely he would have continued to work beyond retirement age for a few more years in a less taxing job, such as his present one. Taking matters in the round, I would consider a multiplier of 5 would be reasonable in the light of the following cases:- Luk Sheung Lok v. Wah Wah Travel Services Ltd, HCPI No. 1188 of 1999, Lee Ping Foon v. Li Hoi t/a Hoi Tat Construction & Decoration Engineering HKPI No. 541 of 1997, Chan Kam Hoi v. Dragages et Travaux Publics [1998]2 HKJLRD 959 .

32. For multiplicand, since I am not convinced that he would have been able to retain his job at the Home after 60, I use the mean income between what he earned at the Home and as security guard being ($10,420 + $4,800) divided by 2 = $7,610.00 as the starting figure from which his earnings as security guard should be deducted. The Plaintiff's future loss of earnings would be ($7,610.00 - $4,800) x 12 x 5 = $168,600.

Loss of Mandatory Provident Fund ("MPF")

33. As a result of the pre-trial loss of earning and future loss of earnings suffered by the Plaintiff, there will also be a 5% loss of his employer's contribution to MPF to which he would have been otherwise entitled.

Loss of MPF on pre-trial earnings is 5% x $78,781 = $3,939.

Loss of MPF on future earnings is 5% x $168,600 = $8,430.

Total loss on MPF contributions is $3,939 + $8,430. = $ 12,369.

Loss of Earning Capacity

34. The 2nd Defendant urges upon me not to make any award under this head should I rule against him on the mitigation of damages point, because the Plaintiff should be adequately compensated for by his loss of future earnings claim.

35. The compensation under this head is for a person's loss due to his disadvantage in the labour market should his present job terminates, and he will take a longer time to find a new one. From the evidence, the Plaintiff was able to find a job as a security guard almost immediately upon handing in his resignation with the Home. Then when he lost his job with Guard City Limited by end August, 2002, he was again, able to secure a new job with Calibre Services Development Limited in about one month, also as a security guard. No doubt, the Plaintiff's youthful appearance and simple style works in his favour in the labour market. Bearing in mind that his working life is not expected to be long anyway, and his loss of future earnings has been fully compensated for, I decline to make an award under this head.

Special damages

36. The parties have sensibly agreed the following items of special damage:-

 

Item	HK$
Walking crutches	75
Medical expenses	3,389
Travelling expenses	836.80
	4,300.80 =======

Tonic food

37. The Plaintiff claims $5,000 as expenses on tonic food such as nourishing soup with fish maw, birds' nest and chicken essence. The 2nd Defendant accepts that tonic food is good for the Plaintiff but challenges the quantum in the absence of any documentary evidence. I accept the Plaintiff's evidence that he had spent more than $5,000 on tonic food, but was limiting his claim to only a reasonable sum. If his tonic food had aided in his recovery and securing jobs quickly in the labour market, the 2nd Defendant would have benefited already from a lesser award being made under those heads. Accordingly, I would award him $5,000 as claimed.

Subscription and membership fees

38. The Plaintiff incurred Subscription and membership fees when he joined first the Tai Po Sports Association, and subsequently, Fu Shin Indoor Recreation Centre for undergoing physiotherapy exercises. Such physiotherapy was undertaken upon recommendation by the physiotherapist at Nethersole when the hospital terminated treatment on him due to lack of resources. I find it reasonable that the Plaintiff should continue with such physiotherapy to keep up his physical condition. This indicates that he was anxious to mitigate his loss. His changing to Fu Shin where the charges were lower showed that he was not indiscriminate in his efforts. The 2nd Defendant also takes the benefit of such physiotherapy as the Plaintiff's improved physical condition has only worked towards diminishing his other loss. These subscription and membership fees are supported by documentary evidence which is not challenged. I accordingly award the sum of $4,475 being his subscription and membership fees. No claim for future fees was made.

Summary

39. The awards I make in favour of the Plaintiff are:-

(1) Pain, suffering and loss of amenities	$300,000
(2) pre-trial loss of earnings	$78,781
(3) future loss of earnings	$168,600
(4) loss on MPF contributions	$12,368.80
(5) Special damages	$13,775.80
Total:	$573,525.80

Interest

40. I award interest on general damages for pain suffering and loss of amenities of $300,000 at 2% p.a. from date of Writ (8 May 2002) to date of assessment (14 May 2003) being $6,099. Interest on pre-trial loss of earnings and special damages will be awarded at the rate of 4% p.a. from date of accident (7 November 2000) to assessment being $57,792.50. Total interest awarded is $63,891.50.

Conclusion

41. There will be judgment for the Plaintiff in the sum of $637,417.30.

42. There will be an order nisi that the 2nd Defendant do pay the Plaintiff his costs of the assessment to be taxed if not agreed, to be made absolute after the expiration of 14 days from the date of judgment.