IAU KAU IH v. WAN KEI GEOTECHNICAL ENGINEERING CO. LTD. AND OTHERS

HCPI 130/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.130 OF 2001

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J U D G M E N T

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The accident

1. The plaintiff's claim is for damages for personal injuries sustained by him on 12 July 1999 at a construction site situate at the junction of Apleichau Bridge Road and Lee Nam Road. He was then a welder employed by the 1st defendant. The 3rd defendant was the principal contractor at the site. The 2nd defendant was the sub-contractor responsible for foundation work. The 1st defendant retained the 4th defendant to provide a crawler mounted mobile crane and the crane's operator to lift two cylindrical boring casings placed vertically at the site for water storage purpose. In the process, the main jib of the crane broke and the crane collapsed. The plaintiff tried to escape but was hit by some massive object and sustained injuries. The 5th defendant had previously certified that the crane was in good working order.

Liability conceded

2. On the first day of the trial, all the defendants conceded liability. Judgment was entered by consent for damages to be assessed. At the same time, the defendants and the third parties agreed among themselves as to their respective contribution. That agreement has been embodied in another consent order. It is unnecessary for me to recite its terms save to note that the 1st to 4th defendants agree to instruct one common firm of solicitors to act on their behalf and that the 5th defendant, who acts in person, agreed to make a lump sum contribution. The upshot was that the battle over assessment was fought between Mr Ng for the plaintiff and Mr Law representing the 1st to 4th defendants. The 5th defendant was content to absent himself from the hearing of the assessment. What follows is my assessment of damages and the reasons therefor.

The plaintiff

3. The plaintiff was born in May 1945 and was 54 on the day of the accident. He is 57 at the time of the trial. He came to Hong Kong in about October 1973 and since then had been working continuously as a welder. In October 1998, he started working for the 1st defendant. By the time of the accident, his monthly income from the 1st defendant amounted to $15,340. He says, however, that he worked for the 1st defendant for 20 to 25 days per month, and that in his spare time and rest days, he undertook freelance welding jobs, mainly for a bakery called Tin Li ("Tin Li") Food Company, as well as in construction sites through the introduction of his acquaintances. He claims that he earned $4,000 to $5,000 from these other sources, so that his average monthly income immediately prior to the accident was about $20,000.

Injuries

4. After the accident, the plaintiff was admitted to the Queen Mary Hospital. He was discharged five days later. The clinical diagnosis was "left chest wall, right shoulder, right elbow and right thumb contusion". He also had superficial laceration over his nasal bridge and left orbit of the eye. The main complaint at the time was left chest wall pain. He was suspected to have fractured ribs but the medical reports are not consistent in this regard. Although there is evidence that he did have a rib fracture, it is not clear whether this was caused as a result of an earlier industrial accident or the incident in question.

5. For a period of about six months after the accident, the plaintiff received physiotherapy in the form of traction, electrotherapy and manipulation. In December 1999, he was referred to the Li Ka Shing Specialist Clinic (of the Price of Wales Hospital) because of persistent right wrist and hand pain. He was then recommended to undergo occupational therapy, which he did along with physiotherapy more or less continuously until September or October 2001. From then on, all treatment was discontinued because his injuries have stabilised, and it was thought that further treatment would not help him.

6. The plaintiff was given sick leave for the entire period from the date of the accident up to and beyond the date of the trial. Apart from a brief period referred to below, he did not return to work.

7. Some time about October 2000, the plaintiff was advised by a doctor to see if he could resume his pre-accident work. He returned briefly to work at a construction site in Fotan. It appears that this was arranged by the 1st defendant. He was initially given some light work and only undertook welding work on the last few days. He said his hands trembled when he was doing the welding. He feared that the H-frame he was welding would fall down. He did not have the confidence to do the welding work well. He also had fears upon seeing cranes in a construction site. Eventually he could bear it no more and told the doctor so. He said another reason why he gave up working at the construction site was because his co-workers were complaining that he only did light work and they had to finish his work for him. Some time later, the plaintiff was given another opportunity to work in a godown owned by the 1st defendant. He said unable to perform the work.

8. His present complaints are that he feels pain or numbness in his right hand, right elbow and right thigh especially with prolonged sitting or walking. He is right-handed. His right hand grip has substantially weakened, to the point that it is weaker than his left hand grip by about seven kilograms. He also complains of low back pain, and of having difficulty in having sexual intercourse. He has troubles with nightmares.

9. In a joint medical report prepared by Dr Lam Chi Keung, Johnson (appointed by the plaintiff) and Dr Lau Hoi Kuen (appointed by the defendants) dated April 2002, it was noted that there was still residual stiffness and weakness of the shoulder, wrist and thumb, and that significant residual discomfort was present over the extensor group of muscles of the elbow which contributed to the weakness of the grip. His condition was described as having reached maximum medical improvement.

10. The two doctors found mild wasting of the muscles around the right shoulder, and that the plaintiff had a limited range of motion, with flexion (moving the arm forward), abduction (elevating sideways) and external rotation (rotating outward) decreased to about 74%, 47% and 33% of the normal side respectively. The two doctors regarded this as the most debilitating injury. In his own report, Dr Lau expressed the opinion that the degree of limitation appeared to be inconsistent with the absence of significant muscle wasting. He stated that :

"the impression is that (the plaintiff) may have some residual pain and stiffness of his right shoulder after the contusion injury...this should not be as severe as he is complaining of now. There is probably an element of exaggeration."

11. Another debilitating factor is the low back pain that the plaintiff is suffering from. Here it is not suggested that the plaintiff exaggerates his condition, but rather that this is the result of a pre-existing condition. Both doctors noted that there are quite marked degenerative changes over the lumbar spine. According to Dr Lam, such degenerative changes are common even in asymptomatic individuals of the plaintiff's age. His opinion is that the accident caused a relatively minor back injury resulting in back pain that has persisted. Dr Lau's opinion is that the degenerative changes were pre-existing and that the accident should be regarded at most as the aggravating factor for the pain in his low back.

12. The doctors disagree over the question of whether the plaintiff can resume his previous occupation as a welder. Dr Lam thinks he cannot; while Dr Lau thinks he can, albeit at a reduced efficiency of about 10%. They also disagree over the appropriate duration of sick leave. Dr Lau believes that the plaintiff should be able to resume working about one year after the accident. Dr Lam considers that the sick leave certificates granted from time to time can be relied on and that a period of two years of sick leave is not excessive.

Findings on injuries

13. Any assessment of an appropriate award for pain and suffering and loss of amenities ("PSLA") and for loss of earnings (both pre-trial or post-trial) depends on what are the plaintiff's injuries and disabilities caused by the accident.

14. That the plaintiff has suffered injuries and has a certain degree of disability is not in dispute. As foreshadowed in the medical reports of Dr Lam and Dr Lau, the only two areas in dispute are :

(1) it is alleged by the defendants that the plaintiff has exaggerated his limitation in shoulder movement and

(2) that the plaintiff's back problem was due to a pre-existing condition.

15. The parties have decided not to call medical experts to give oral evidence. The court is left to do the best it can with their reports. I propose to approach their reports in this way. Where the doctors agree, I shall take such evidence into account without regarding myself as bound to accept such evidence. Where, however, the doctors do not agree, I would decline to act on the opinion of one unless I am satisfied, on the basis of other evidence before me, that such opinion is correct.

16. The suggestion that the plaintiff may have exaggerated his right shoulder movements is made rather tentatively by Dr Lau. Dr Lam has not expressed an opinion on the subject. I have to consider the evidence as a whole in determining whether the plaintiff has proved on the balance of probabilities that his disabilities are to the extent that he claims. In this regard, Mr Law asked me to rely on my own observations of the plaintiff while giving evidence in the witness box, and also relied on a tape recording and report of surveillance on the plaintiff's activities conducted by a firm of investigators.

17. In the witness box, the plaintiff complained of pain at various parts of his body due to prolonged sitting. It is right to record that he only registered this complaint when asked. I find nothing remarkable in his manner in giving evidence or generally while in court.

18. The surveillance covered intervals within six days during the months of August and September 2001. From this recording, the plaintiff can be seen walking normally in the vicinity of his apartment, having morning tea at a restaurant, taking a mini-bus, walking up a flight of stairs, and on one occasion, undergoing right arm or hand exercise at the Prince of Wales Hospital. The tape lasts for a little over 20 minutes. Most of the footage covered the plaintiff walking.

19. I do not see how the behaviour of the plaintiff in court or as captured in the tape lends any support for the suggestion that the plaintiff may have exaggerated the limitations on his right shoulder movement. In the end, Mr Law acknowledges that the tape only has limited value.

20. I turn to the issue of the low back pain. It is not disputed that the plaintiff had no back pain prior to the accident, and only developed such pain after the accident. I accept that the plaintiff had degenerative changes over his lumbar spine prior to the accident which predisposed him to back problems. Nevertheless, it is reasonably clear from a temporal perspective that the accident did trigger the onset of the low back pain, and, adopting a common sense approach, I find that it was an effective cause of this disability (see Lee Kin Kai v. Ocean Tramping Co. Ltd [1991] 2 HKLR 232). It does not matter that the plaintiff was, by reason of his pre-existing condition, some one who was vulnerable to this type of disability. The tortfeasor must of course take the victim as he finds him.

21. Mr Law cites the case of Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523 where the plaintiff had a degenerative condition of the spine which had presented no symptoms up to the time of the accident. The trial judge found that the plaintiff's pre-existing condition would, in the absence of a further accident, have deteriorated to such an extent as was likely to force him to give up his pre-accident occupation. Consequently the judge discounted the damages for pain and suffering and loss of amenities as well as the award for loss of earnings, both pre-trial and post-trial. In the Court of Appeal, the approach of the judge was endorsed, save for the discount he gave for the post-trial period. Mortimer VP observed (at p.529C) :

"Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.

When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff's working life is likely to be limited by a pre-existing condition as in this case."

22. There is, in the present case, no evidence before me as to whether the plaintiff's pre-existing condition would, in the absence of the accident, have given rise to the same disability now suffered by the plaintiff. I cannot speculate in the absence of such evidence, and accordingly do not find the case of Chan Kam Hoi to assist the defendants in their attempt to reduce the damages on account of the plaintiff's pre-existing condition.

Pain and suffering and loss of amenities ("PSLA")

23. The plaintiff asks for $400,000 for PSLA. The defendants suggest $250,000 under this head.

24. Counsel for the plaintiff refers me to Lo Chi Bun v. Leung Wah Kwan, HCPI 984 of 1997 where a carpenter was injured in his right hand while operating an electric saw in the course of work. His right middle finger and little finger's extensors were cut and the fingers remained weak and could not be fully extended. He retained only a very poor grip in his right hand and was unable to return to work as a carpenter. In a judgment dated 31 March 1998, Master Cannon awarded him $480,000 for PSLA, placing his injuries at slightly below the lower end of the "serious" category as defined in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

25. Another award relied on by Mr Ng is that of Suffiad J made on 11 February 1998 in Tsang Chung Wan v. Li Ming [1998] HKLJ 119. There, the plaintiff was a formwork carpenter who suffered crush injuries to his right ring and middle fingers. He had a comminuted fracture of the proximal phalanx of right ring finger requiring an operation and K-wire fixation. Skin grafting was performed on the right middle finger and a further operation six weeks later. He received 52 sessions of physiotherapy over the six months following the accident and was granted a total of two years sick leave. PSLA was $400,000. The court placed the plaintiff's injuries at slightly below the lower end of the "serious" category.

26. Mr Ng drew my attention to the case of Chan Tak Chi v. Wong Siu Tao [1998] 4 HKC 16 where Master Cannon allowed an upward adjustment of 20% from the awards in Leung On v. Chan Pui Ki [1996] 2 HKC 565 to reflect inflation from July 1996 to July 1998. He submitted that injuries placed at the lowest end of the "serious" category would now be awarded $480,000 and that his claim for $400,000 is modest.

27. For the defendants, Mr Law referred me to a number of awards which I shall set out below :

(1) Yeung Sze v. Win Art Design & Decoration Co. Ltd, HCPI No.6 of 2000 [2001] 31 HKLR 325. There, a 49-year-old plasterer injured his back when he fell whilst decorating a residential flat. He was granted three days' sick leave, the diagnosis being "buttock/low back contusion". He returned to work, but felt pain again. He was re-admitted to hospital and stayed for three days. He was given sick leave of a total of 15 months over a two-year period. Master Yuen accepted he suffered from chronic low back pain which could be related to the accident and granted $200,000 for PSLA.

(2) Chiu Mo Yuen v. James Catering Equipment Ltd, HCPI No.179 of 1998 [2000] 30 HKLJ 146. There, a 58-year-old general worker suffered a fracture of his left distal radius and a laceration to his left palm when he slipped and fell from a ladder. He was admitted to hospital, underwent an emergency operation and was discharged two days later. He was readmitted for removal of an external fixator some six weeks after the accident. Although the fracture healed, the plaintiff complained of persistent pain over his wrist. Jackson J assessed PSLA at $250,000.

(3) Lee Lap Pang v. Yuen Tat Wah trading as Chong Hing Motor Company and another, HCPI No.1111 of 1997 (Judgment of Deputy Judge To on 21 May 1999). The plaintiff suffered injuries when falling from a structure about 10' high. He suffered right shoulder pain due to biceps and rotator cuff tendenitis (inflammation of the tendon), and right elbow pain due probably to ulna neuritis (disease of the peripheral nerve). The court noted that the plaintiff did not suffer any fracture or laceration and did not have to be hospitalised, although he was given more than two years' sick leave. Though his preferred hand was injured, he did not lose much of his amenities, and was able to carry on his daily activities without difficulties. The judge refused to accept that the injuries fell within the serious injury category and awarded $200,000 for PSLA.

(4) Lee Wai Hung v. Ko Wing Nang trading as Lap Man Scaffolding, HCPI No.1088 of 1996 (Judgment of Master Poon dated 27 May 1998). The plaintiff fell from a height of about 15 to 16 feet while working on a scaffolding. He had a right elbow dislocation with a radial head fracture. He was hospitalised for about 10 days when closed reduction of the right elbow joint was performed and the radial head fracture was reduced and fixed by metal screw. The plaintiff received physiotherapy and occupational therapy for three to four months after discharge and was granted sick leave for a year. His residual disability was limitation on the movement of his right limb and he could no longer work as a scaffolding worker. PSLA was assessed at $250,000.

28. In my judgment, the disabilities suffered by the plaintiff are more serious than those suffered by the plaintiff in Yeung Sze or in Chiu Mo Yuen.

29. Taking into account the other awards cited, viz. Lo Chi Bun, Tsang Chung Wan, Lee Lap Pang and Lee Wai Hung, I consider an award of $400,000 for PSLA would be reasonable in the present case.

Pre-trial loss of earnings

30. The plaintiff claims $732,240 for pre-trial loss of earnings. The defendants contend for a figure in the range of $250,000 to just over $300,000. There are two main issues for the parties' difference.

31. Firstly, the plaintiff claims that he was able to earn $4,000 to $5,000 per month from what he did freelance. This, the defendants dispute, pointing out that the plaintiff has not provided any documentary evidence of the alleged extra earnings.

32. Secondly, the plaintiff claims total loss of earning for the entire pre-trial period, relying essentially on the sick leave certificates. The defendant argues that the plaintiff could resume working either as a welder or a general labourer some time in October 2000, or at any rate, by October 2001 when all the treatment ceased.

33. As for the first of these two issues, I accept the plaintiff as a witness of truth. I accept his evidence that he did undertake some freelance work prior to the accident, and that his income was not confined to the $15,340 he received from the 1st defendant. I would also accept that he earned about $3,000 per month from the work he did for Tin Li and would, at times, be able to earn something extra in construction sites through the introduction of his acquaintances. Such work was, by its nature, not regular, and I accept his estimate of $4,000 to $5,000 per month.

34. However, I must take into account the evidence that Tin Li was wound up about six months after the accident. I also take judicial notice of the general economic condition in Hong Kong for the last couple of years. The plaintiff accepted in cross-examination that the availability of welding work has substantially decreased, although, as he said, this may affect some welders more than others. In these circumstances, it would not be fair to the defendants to adopt a figure of $20,340 for the whole of the pre-trial period as contended for by the plaintiff. Instead, I consider it reasonable to assess the plaintiff's loss for the first six months immediately after the accident at $20,000, but that thereafter, he would be unlikely to be able to earn his extra income from Tin Li or other freelance jobs. However, since he is a very experienced welder, I would consider it reasonable to assume that he would be affected less than others in his trade, so that he would, but for the accident, have been able to retain his earnings from the 1st defendant at $15,340 per month.

35. The next question I have to consider is whether the plaintiff was unable to work whether as a welder or in any gainful employment for the pre-trial period.

36. As to that, I find on the evidence that the plaintiff has, since the date accident, been unable to resume his pre-accident occupation as a welder. I find that this was due to the accident. The job that the plaintiff had as a welder involved handling potentially dangerous equipment. He would be required to work in an environment which required skill, precision and strength. I accept that the plaintiff did try in October 2000 to return to his previous employment and that the failure of such attempt demonstrated that it would be unrealistic to expect him to be able to resume his previous occupation. He explained why he was not able to continue :

"because the work became heavier and heavier and the co-workers' attitude towards me was not good, always complained they have take up two persons' work with one person's salary. And because surface of ground in construction site was undulating, sometimes I step on a surface that was not flat, I feel the pain with those jerking movements. And it takes some strength to hold the welding holder, it requires good eyesight, good balance of the feet and stable hands to do the job well. But the injuries fall on one single side, how could I have been able to do the welding. I could not raise my hands up high and could not bend my arm..."

37. This does not mean that the plaintiff is unemployable. I find merit in the defendants' arguments that the sick leave certificate may well have been given by the medical officers on the basis that the plaintiff would be unable to return to his pre-accident occupation. In any event, they are not binding on me.

38. Indeed, it is the plaintiff's own case on future loss of earnings that he would be able to perform job duties of a lighter nature. Counsel for the plaintiff referred me to statistics provided by the Selective Placement Division of the Labour Department for caretaker or security guard, lift operator, cleaner, packer and shop assistance and to the Report of Wage and Payroll Statistics published by the Census and Statistics Department in respect of garment or general worker, watchman or guard, Chinese restaurant worker, real estate maintenance management or building attendant, etc.

39. On the evidence before me, the condition of the plaintiff has stabilised in October 2001 when he was advised to cease to receive his physiotherapy and occupational therapy. It would be reasonable in the circumstances to consider that he should be looking for employment of a job requiring only light duties near the end of 2001; but in view of the present economic climate, I should allow for a generous period (say four months) for him to look for such employment. Having regard to the figures presented before me, I would take $4,000 as the notional income that the plaintiff would be able to earn with his present disabilities.

40. In the circumstances, I assess pre-trial loss of earnings as follows :

(1) for the period of six months from July 1999 to December 1999 at $20,000 per month = $120,000

(2) for the period of 25 months from January 2000 to January 2002 at $15,340 per month = $383,500

(3) for the period from February 2002 to date of trial at ($15,340 - $4,000) x 5.5 = $62,370.

Total pre-trial loss of earning is $565,870.

Future loss of earnings

41. For the reasons given above, the multiplicand for future loss of earnings would be $15,340 - $4,000 = $11,340 per month.

42. The plaintiff is 57. Mr Ng contends for a multiplier of 6 and Mr Law argues that it should be no more than 4, having regard to the type of work the plaintiff was engaged in.

43. I have been referred to Lui Sheung Lok v. Wah Wah Travel Services Ltd, HCPI No.1188 of 1999 (multiplier of 6 for driver aged 58 at the trial), The Kang Oh v. Wong Yik Fai, HCPI No.791 of 1995 (multiplier of 4 for night shift taxi driver aged 57 at the trial), Lau Hi v. Kam Shek Investments Co. Ltd, HCA No.5978 of 1986, [1988] 18 HKLJ 336 (multiplier of 8 as at the date of trial for a construction site worker aged 53 at the date of accident and 57 at trial, in effect a multiplier of 4 from the date of trial), Lam Hak Sun v. Attorney General, HCA No.A2319 of 1985 [1986] 16 HKLJ 448 (multiplier of 6 applied to a public light bus driver aged 55 at the date of accident of which 37 months were post-trial). I have also been referred to Pang Yau v. Cheung Kwok Hing, OJA 2215 of 1976 [1977] 7 HKLJ 448 where a multiplier of 7 was adopted for a labourer working for the government aged 57 at the date of trial. If the summary of this award is correct, this seems to be an extraordinarily high multiplier particularly since there was evidence that the government would probably have retained him until he was 60.

44. Having considered these authorities and the circumstances pertaining to the present case, I would adopt a multiplier of 5 from the date of trial. Accordingly, I award loss of future earnings in the sum of $11,340 x 12 x 5 = $680,400.

Loss of earning capacity

45. The plaintiff claims for loss of earning capacity. That claim is made on the ground that even assuming that the plaintiff would be able to find a job which he is able to cope with, he would nevertheless be placed in a disadvantage in the market for such jobs by reason of his disability. Mr Ng relied on the judgment of Deputy Judge Chu (as she then was) in Ng Chi Chung v. Lau Kam Ping [2000] 2 HKC 759. It seems to me that the plaintiff would be placed at a disadvantage in the market not only because of his disabilities but also because, as a result of this accident, he has to look for work in a market that he was not accustomed to and would have to compete in that market with others who may be much more experienced than he. Accordingly, I consider it reasonable to allow a modest sum under this head. I would assess this sum on the basis of $4,000 x 9 months = $36,000.

Special damages

46. Medical expenses are agreed at $5,465. Travelling expenses are agreed at $3,400. The only item in dispute is an amount of $5,550 claimed as "tonic food". The evidence shows that the plaintiff spent a sum of $3,023 on Chinese herbalist and another sum of $2,527 (or RMB2,780.30) for consulting doctor in Shenzhen. Whilst it is not appropriate to label these items as "tonic food", I would allow the claim as medical expenses. I find that these sums were reasonably incurred as a result of the accident. The amounts are moderate and I allow the claim in full. In the event, I award special damages in the total sum of $14,415.

Mandatory Provident Fund ("MPF")

47. The plaintiff is entitled to claim the loss of the employer's contribution for MPF. This claim relates to the period from December 2000 onwards when MPF contribution became mandatory. On the findings I made above, I allow the following for the claim for loss of employer's contribution for MPF, viz.

From December 2000 to January 2002 at
$15,340 x 5% per month x 14 = $767 x 14 = $10,738

From February 2002 to date of trial at
($15,340 - $4,000) x 5% x 5.5 = $3,119

For future MPF ($15,340 - $4,000) x 5% x 12 x 5 +
($4,000 x 5% x 9) = $35,820

Total loss of MPF contribution is $49,677

Award and interest

48. In summary, the awards I make, subject to the deduction mentioned below, are :

(1) PSLA		$400,000
(2) Pre-trial loss of earnings		$565,870
(3) Post-trial loss of earnings		$680,400
(4) Loss of earning capacity		$ 36,000
(5) Special damages		$ 14,415
(6) Loss of MPF contribution		$ 49,677
Total		$1,746,362

49. The award must take into account the payments of $261,572.66 + $2,161 already received by plaintiff from his employer on divers days between July 1999 to July 2001 and of the Employees' Compensation award received by the plaintiff on 11 January 2002 in the sum of $149,932.54 in respect of which the plaintiff has already received interest.

50. The net award is $1,746,362 - $261,572.66 - $2,161 - $149,932.54 = 1,332,695.80. There will accordingly be judgment for the plaintiff against each of the defendants in the sum of $1,332,695.80. Interest will be awarded at 2% per annum on the sum of $400,000 from the date of the writ until the date of judgment. Interest on pre-trial loss of earnings and for special damages (less the amount already received by the Plaintiff), i.e. ($565,870 + $14,415 - $261,572.66 - $2,161 -$149,932.54) = $166,618.80, will be awarded at half judgment rates from the date of accident to the date of judgment.

Costs

51. I make an order nisi that the defendants shall bear the costs of the plaintiff, to be taxed if not agreed and that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.