CHAN CHEUK KI and Another v. POON YU CHEUNG and Another

No.A9146/91

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Plaintiffs were both employed as plasterers on a construction site in Sheung Shui by the first defendant, who was sub-contractor to the second defendant as principal contractor. On 5th November 1988 the plaintiffs were working together standing on a concrete awning which collapsed, causing injuries of a broadly similar nature to each of them when they fell about ten feet to the ground.

2. Interlocutory judgment was entered against both defendants on 19th January 1992. Neither defendant entered appearance to defend, nor did they attend at the hearing of this assessment. Most of the evidence was produced under hearsay notices, and apart from the plaintiffs themselves the only oral evidence was from Dr. Daniel Wu, an orthopaedic surgeon.

The first plaintiff

3. He was first examined on the day of the accident by Dr. Chan Fong Ek of Pok Oi Hospital. The brief report on this examination discloses swellings on both ankles, inability to stand or walk, and fracture of the calcaneum of both heels. This appears at P.13 of the bundle. On his transfer the same day to PMH the above fractures were confirmed and an operation on both feet took place on 14th November, with bone grafting, open reduction and plating. The first plaintiff was then transferred back to Pok Oi for convalescence and physiotherapy. The PMH report was by Dr. Ngar Yuen Chung and appears at P.15 of the bundle. The final examination at PMH is said to have been on 10th March 1989, when signs of incomplete union of fractures were noted, with a recommendation for further treatment including physiotherapy.

4. At P.19 of the bundle is the report of Dr. Yeung Po Sun referring to his examination of the first plaintiff on 13th November 1989. This discloses complaints of pain in both heels on a weather change, and inability to walk for more than two hours due to heel pain. The examination showed inability to walk on heels, pain in both heels, restriction in both heels of all normal movements, old fractures and disruptions to the subtalar joints of both heels, and signs of osteoarthritis in both heels. Plates and screws were inserted to fix the fractures.

5. The first plaintiff was re-admitted to hospital in May 1990 for removal of the screws and plates. EC assessments (Ps.23 & 24) disclose a 3% percent loss of earning capacity and sick leave from 5th November 1988 - 1st September 1989, and from 10th May to 6th June 1990; the second of these periods being immediately after the operation to remove the plates and screws.

6. At Ps.33-36 of the bundle, Dr. Daniel Wu recorded his updated examination of the first plaintiff on 16th January 1995. He noted an inability to walk without aids until 3 months after the initial operation on 14th November 1988, and observed that the first plaintiff had now to be assigned mostly indoor and light work. He noted distortion to the shape of both heels and restriction in the movements of the subtalar and ankle joints. X rays revealed a healed but deformed calcaneum in both heels. The doctor summarised residual deformities typical of a fall and causing stiffness.

7. Dr. Wu's prognosis was pain in bad weather and from exertion, with no significant change likely for 10 years. He assessed a 25% chance of gradual deterioration of the subtalar joints, followed by post-traumatic arthritis. He also noted problems with the tendons and accepted the first plaintiff's complaints of discomfort and disability. The doctor noted that the heel condition restricted the first plaintiff from running, jumping, walking on uneven ground and squatting. He assessed the consequent disability to the whole person as 15% and recommended the wearing of protective heel pads, called "foot orthotics", to minimise the possibility of later arthritis.

8. Dr. Wu also gave oral evidence in which he agreed with Dr. Yeung's findings and confirmed the contents of his own report. He observed that after this type of accident there is usually damage to the subtalar joint, which is below the ankle joint. After subsequent use for perhaps 20 years this may result in degenerative arthritis. This comment related to his assessment of a 25% chance of eventual arthritis, a prognosis which the doctor also made in regard to the second plaintiff.

9. The first plaintiff gave evidence confirming his various hospital attendances, sick leave periods, and treatment. He had residual pain on returning to work, and could not climb ladders, carry heavy weights, work on scaffolding, or work outdoors. He said that he was in a wheelchair for 4-5 months after the accident, but could not remember precisely how long.

10. Mr. Wong for the first plaintiff urged an award for pain, suffering and loss of amenities in the region of $200,000.00. He conceded that the injuries did not fall within the judicially approved category of "serious injury", the threshold of which has recently been raised to $250,000.00 - A.G. v. Chun Yat Nam [1995] 1 HKC 218. Counsel cited an award of $120,000.00 in 1987 in Lau Hi v. Kam Shek Investments Co. Ltd. HCA 5978 of 1986 involving similar injuries, an operation, and permanent disability of comparable severity. I note that an upgrading of this award by even a conservative 8% a year for inflation would produce a figure of around $220,000.00.

11. Counsel also directed my attention to Lam Kwong Ting v. Ho Yau Yuen (1991) HKLJ 127, involving an award of $180,000.00 in 1990. The injuries and permanent disabilities were comparable to those presently considered, although slightly more serious. Again I note that an upgrading for inflation of this award by 8% a year would produce a figure in excess of $260,000.00.

12. The first plaintiff has suffered considerably from this accident. He has spent some 4-5 months in a wheelchair and suffered two operations and prolonged physiotherapy. He has residual disability involving diminished mobility, with an assessed 25% chance of degenerative arthritis in about 20 years time; as he is now only 37 years old this is relevant. Bearing all these factors in mind I assess his compensation for pain, suffering and loss of amenities at $220,000.00

The second plaintiff

13. The second plaintiff was also first examined by Dr. Chan Fong Ek at Pok Oi Hospital on the day of the accident. The brief report at P.12 of the bundle discloses a lacerated wound about 1.5 cm deep on the forehead and marked swelling of the left ankle. He was transferred to PMH the same day, where x-rays revealed a fractured calcaneum of the left heel. He suffered an operation on 15th November 1988 for reduction, fixing and bone grafting of the fracture. This appears from Dr. Ngar Yuen Chung's report at P.25. The patient was transferred back to Pok Oi on 18th November 1988 for post-operative physiotherapy and rehabilitation of the foot. He was discharged on 19th November 1988.

14. The second plaintiff was examined by Dr. Daniel Wu on 11th June 1992, and the report appears at Ps.26-29. The doctor found complaints of pain and of difficulties in climbing and descending stairs to be consistent with this type of injury. He noted widening of the heel area and rigidity of the subtalar joint with minimal movement. The left foot was marginally shorter than the right, probably due to a shortening of the fracture, and tendinitis was noted due to pressure from the widened heel. X-rays showed healing of the original fracture, but with residual deformities and a slight misalignment of the subtalar joint. This causes stiffness in the joint and pain on weight bearing in walking.

15. Dr. Wu made a similar prognosis to that for the first plaintiff of a 25% chance of the subtalar joint developing degenerative arthritis in 20 years' time. Inflammation of the tendon may occasionally require cortisone injections, but deterioration in that area was considered unlikely. The doctor pointed out that the pain on weight bearing would exclude the first plaintiff from jobs requiring excessive walking, and estimated the total physical disability from the heel condition at 5%. He estimated loss of earning capacity at 20% and considered the patient unfit to return to the same work due to the heel condition. He also recommended foot orthotics.

16. On 9th January 1995 Dr. Wu conducted a further examination of the second plaintiff, the report on which is at P.31. The doctor found little improvement save for reduced pain, which caused him to reduce the disability from 5% to 4%. He noted that the patient had returned to work but found working on a ladder painful and often had to take a day or two off to rest the left heel after working for several days consecutively. The long term prognosis remained unchanged. Dr. Wu also confirmed his written opinions in the course of his oral testimony and said he had supplied the second plaintiff with foot orthotics. These had to be cut and made from an impression at a cost of $1,500.00, and would need to be renewed every three years. The doctor's comments, discussed earlier, on the possibility of degenerative arthritis from the damage to the subtalar joint applied equally to this plaintiff.

17. In his own evidence the second plaintiff confirmed his attendances in hospital, his operation, and his physiotherapy treatment. He also said that he had been assessed at 3% loss of earning capacity by the EC assessment board. As with the first plaintiff, his counsel suggested an award around $200,000.00 for pain, suffering and loss of amenities and advanced in support the cases discussed in regard to the first plaintiff's award.

18. Whilst the suffering of the second plaintiff was by no means inconsiderable, it appears to have been less than that of the first plaintiff. One foot was affected and not two; the second plaintiff was not confined to a wheelchair; he was not apparently fitted with a plate and screw; he had one operation as opposed to the first plaintiff's two. I accept on the other hand that the injury to the second plaintiff's left foot appears to be considerably more serious than the individual injuries to the two feet of the first plaintiff. In addition, the second plaintiff suffered a deep laceration to his forehead. Balancing all these factors, I award the second plaintiff $190,000.00 for pain, suffering and loss of amenities.

19. I turn now to the earnings related claims and to the claims for disbursements for the respective plaintiffs. Both plaintiffs are plasterers; both said they were earning $350.00 per day at the time of the accident for a 28 day month; both are now working again as plasterers earning $650.00 per day plus a $40 value meal, although in neither case are they working so many days in the month as previously. Their current earnings are in line with the figures produced for their trade (at P.43) from the Census and Statistics Department of the Hong Kong Government. In both cases the median daily wage for calculating loss of future earnings is therefore $[350.00 + 690.00) x ½] = $520.00.

The first plaintiff

20. The first plaintiff had sick leave from the date of the accident until 1st September 1989, and later from 10th May to 6th June 1990, after the second operation when the plate was removed. This gives rise to a claim for total loss of earnings for a period of 11 months less 8 days, or 10.75 months. The calculation is therefore $(350.00 x 28 x 11.75) = $105,350.00, which sum is duly awarded under this head.

21. The claim for partial loss of earnings from the first plaintiff's return to work upto date of trial is based on his post-accident inability to work a 28 day month. He testified that because of his condition he was obliged to work about 10 days less than his colleagues working a full month. Before the accident he said he had worked almost every day. I accept this evidence, which finds support in the reports of both Dr. Yeung and Dr. Wu. I also accept that this situation will continue indefinitely insofar as Dr. Wu regards significant change as unlikely for the next 10 years. The first plaintiff is of course earning the full daily rate of a plasterer, so the diminution in earnings relates not to the rate at which he is paid but to the lesser number of days he is able to work.

22. The period from accident to trial totals 5 years 11 months and 11 days, or 71.35 months. From this falls to be deducted the 10.75 months for which the first plaintiff has been separately awarded compensation for total loss of earnings. To the balance of 60.6 months is applied the median earnings per day accident to trial and the 10 days per month for which he is no longer able to work. The calculation is therefore $(520.00 x 60.6 x 10) = $315,120.00, which sum is awarded to represent partial loss of earnings from accident to trial once the first plaintiff had resumed employment.

23. For post-trial loss of future earnings the multiplicand is $6,900.00, representing the first plaintiff's present daily rate of $690.00 for the 10 days per month he continues to be unable to work. Mr. Wong argued for a multiplier of 13 from the date of trial and cited several cases supporting his submission. The first plaintiff is now 37 and I agree with counsel that 13 is the appropriate multiplier. The award for loss of future earnings is therefore $(6,900.00 x 12 x 13) = $1,076,400.00.

24. The first plaintiff also claims for loss of earning capacity, and the figure suggested by Mr. Wong is $30,000.00. There is no doubt that the first plaintiff is at a disadvantage in the labour market as against unimpaired fellow workers in his trade. The purpose of such an award is to compensate for the probability that such a person would therefore take longer to find replacement employment if he were to lose his present job. The amount should be relatively modest and the sum of $30,000.00 is duly awarded.

25. The first plaintiff has also given evidence of special damages consisting of $800.00 hospital charges, $1,000.00 for wheelchair hire and physiotherapy treatment, $1,000.00 for his family's expenses visiting him in hospital, $1,700.00 for his own travelling expenses to physiotherapy treatment, and $6,000.00 for nourishing food. He admitted that he could not remember the precise figures for all these items, but I find them reasonable and probable and the total sum of $10,500.00 is awarded.

The second plaintiff

26. The second plaintiff had sick leave from the date of the accident to the 22nd November 1988, and thereafter he was discharged for outpatient treatment. However the report of Dr. Ngar, the PMH Medical Superintendent, indicates that subsequent progress could not be disclosed owing to loss of the outpatient record. Dr. Wu's report of 30th June 1992 shows that the operation for open reduction, internal fixation and bone grafting was on 15th November 1988, and thereafter he was transferred to Pok Oi for physiotherapy and rehabilitation of his left foot. It would be surprising if the second plaintiff required no more than the seven days from 15th to 22nd November to recover from this operation. The report continues that "he was not allowed to put any weight on this foot for the first few months" and his loss of earning capacity was estimated at 20%, that is 5% more than for the first plaintiff. The second plaintiff testified that he was unable to resume work until February 1991, when he obtained a job as a watchman at $4,000.00 a month.

27. I conclude from all these factors that the time during which the second plaintiff was reasonably unable to work far exceeded the 17 days of his sick leave. In the absence of the lost outpatient records from PMH, there remain the second plaintiff's own evidence of when he was able to resume work and the report of Dr. Wu. There are also included in the bundle numerous receipts in the name of the second plaintiff for hospital attendances during 1989. Considering the available evidence, and in the absence of any indication to the contrary, I accept the evidence of the second plaintiff that he was unable to work until February 1991 and place the precise date at the first of that month. This gives a total loss of earnings from the accident to that date of $(350.00 x 28 days x 26.9 months) = $263,620.00.

28. The second plaintiff's first post accident job was as a watchman at $4,000.00 a month, at which he remained for 6 months; I accept that this was a reasonable mitigation of his losses. Thereafter he said that financial pressure forced him to work as a decoration worker, but he was only able to work for 15 days a month at $300.00 a day. After five months of this he resumed his present work as a plasterer, earning the full daily rate of $690.00, but able to work only 18 days each month.

29. Applying the median figure of $520.00 a day, for the 6 months as a watchman the second plaintiff is awarded for loss of earnings $[(520.00 x 28) - 4,000.00] x 6 = $63,360.00. For his 5 months as a decoration worker at $300.00 a day he is awarded $[(520.00 x 28) - 300.00 x 15)] x 5 = $50,300.00. For the remainder of the pre-trial period, that is from 1st January 1992 to 16th October 1995, the second plaintiff was working 18 days a month, 10 days less than an able bodied man in the same trade. For this period of some 3 years 10.5 months the plaintiff is awarded for loss of earnings $(520.00 x 10 x 46.5) = $241,800.00. The total award for pre-trial loss of earnings is therefore $619,080.00.

30. For post-trial loss of future earnings the multiplicand is the same as that for the first plaintiff, - $6,900.00. As with the first plaintiff, this is based on the current daily rate for plasterers multiplied by the 10 days the second plaintiff is unable to work compared to his able bodied colleagues. Dr. Wu's long term prognosis is not optimistic and he noted in his report that the second plaintiff needed to take time off after working for several days in succession. I therefore accept that this situation is likely to continue. Counsel has argued for a post-trial multiplier of 9 for the second plaintiff, who is now aged 48. The authorities cited support this and I accept 9 as the multiplier. The award for loss of future earnings will therefore be $(6,900.00 x 9 x 12) = $745,200.00. The second plaintiff is also awarded $30,000.00 for loss of earning capacity on the principles applied in the case of the first plaintiff.

31. The second plaintiff claimed various disbursements arising from the accident. These are; $1,500.00 for hospital charges - largely supported by receipts in the bundle; $12,000.00 for bonesetter's fees and physiotherapy - these are unsupported by documentary evidence and I allow $5,000.00 as reasonable; $2,000.00 for family expenses in hospital visits - I allow $1,000.00 as reasonable; $1,300.00 for his own travelling expenses for physiotherapy; $5,000.00 for nutritious food; $1,500.00 for foot orthotics as recommended by Dr. Wu. The total award is therefore $16,300.00

Summary - first plaintiff

Special Damages:-

(1)	Pre-trial loss of earnings	$420,470.00
(2)	Disbursements	$10,500.00
		$430,970.00

General Damages:-

(1)	PSLA	$220,000.00
(2)	Loss of earning capacity	$30,000.00
(3)	Loss of future earnings	$1,076,400.00
		$1,326,400.00
Total		$1,757,370.00
Less EC award of $124,179.00		$1,633,191.00

Summary - second plaintiff

Special Damages:-

Pre-trial loss of earnings	$619,080.00
Disbursements	$16,300.00
	$635,380.00

General Damages:-

PSLA Loss of earning capacity Loss of future earning	$190,000.00 $30,000.00 $745,200.00
	$965,200.00
Total:	$1,600,580.00
Less EC award of $291,470.00	$1,309,910.00

32. Both awards will attract interest on the general damages at 2% per annum from writ to judgment, and at 6% per annum on the special damages from the accident date to judgment. Costs are to the plaintiffs with a certificate for counsel.