WONG CHI KWONG v. POLYTRADE RECYCLING (HK) LTD

HCPI 176/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 176 OF 2007

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Coram : Before Master Ho in Court

Date of Hearing: 10 April 2008

Date of Handing Down Decision: 27 May 2008

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was employed as a general labour in the Defendant’s plastics recycling factory.  On 21 October 2004, whilst the Plaintiff was operating a debundling machine, his left leg was caught by the beaters of the machine.  As a result of the accident, the Plaintiff suffered serious injuries to his left leg.

2. On 28 February 2007, a Writ of Summons was issued.  As no notice of intention to defend was filed, Interlocutory Judgment on liability was entered against the Defendant on 30 May 2007 with damages to be assessed.  This is the hearing for the assessment of damages.

3. At the hearing, the Defendant did not appear despite that due notice was given.  The assessment therefore proceeded in his absence.

4. At the assessment hearing, the Plaintiff adopted his witness statement dated 29 June 2007 as his evidence.  His witness statement together with the medical report of Dr. Lau Hoi Kuen dated 22 December 2006 and the supporting documents as contained in the bundle of documents (“the bundle”) approved by the PI Master is all admitted as evidence.

Injuries, treatments and disabilities

5. Following the accident, the Plaintiff was admitted to Tuen Mun hospital for treatment.  He sustained crush injury to his left lower limb which resulted in multiple open wounds in his left groin (4 cm), left thigh (8 cm) and left calf (15 cm).  According to the medical report of Dr. Choi Kai-yin of the Tuen Mun hospital dated 11 April 2006, the wounds were heavily contaminated with tear of soleus and gastrocenemius and contusion of posterior tibial nerve.  There was also evidence of sciatic nerve crash injury and left knee lateral collateral ligament avulsion.

6. On 22 October 2004, wound debridement and exploration were done.  He was also treated with fluid resuscitation and intravenous antibiotics.  According to Dr. Choi, there was mixed growth of Klebsiella, Enterococcus and Clostridium from the wound.  Nerve conduction test showed neuropraxia of nerves.  When the wounds were stabilized, they were closed with partial thickness skin graft on 2 November 2004.  The Plaintiff discharged on 1 December 2004.

7. On 12 December 2004, the Plaintiff was readmitted to hospital because of abscess in the left thigh and leg wounds.  Incision and drainage was done on 16 December 2004.  He was discharged on 24 December 2004 with regular follow-up at the out-patient clinic, physiotherapy and community nursing care.

8. On 28 February 2005, the Plaintiff was readmitted to hospital for the third time because of uncontrolled infection.  Besides antibiotic combination, MRI was done to define the extent of the deep abscess and sinus.  Wild excision of the sinus and abscess and neurolysis of the sciatic nerve were done.  He was finally discharged on 27 April 2005.  Oral antibiotic was continued until October 2005.

9. On 14 October 2005, electrophysiological study done on the Plaintiff revealed residual absent sensory and motor response of left peroneal nerve of regeneration.  Neurological recovery was evidenced by improvement in the foot drop deformity.

10. According to the medical report from the Physiotherapy Department of Pok Oi hospital dated 31 October 2005, the Plaintiff had generalized motor weakness of his left lower limb when first referred to the clinic in January 2005.  He was still observed to have significant motor weakness of his left ankle when being assessed by the physiotherapist in October 2005.  The Plaintiff had attended 10 treatment sessions since January 2005.

11. According to the Occupational Therapy Report of the Tuen Mun hospital dated 27 July 2006, the Plaintiff had attended 13 sessions of work reconditioning and hardening programme since April 2006.  In the last assessment, his performance in climbing ladder and platform were 15 minutes and 10 minutes respectively.  His tolerance in standing was 1 hour and he could demonstrate repetitive pushing (40 lbs) for 5 minutes.  The overall performance was found marginally matching his previous job demand.  His progress was found static.

12. On 14 December 2006, the Plaintiff was assessed by his own doctor, Dr. Lau Hoi Kuen, a specialist in orthopeadics.  According to Dr. Lau’s report dated 22 December 2006, the Plaintiff’s present complaints include numbness and pain in his left leg, circumferentially from the knee down to the ankle and then involving the dorsal and plantar aspects of the foot.  The pain and numbness was intermittent in nature and was associated with:

-  getting up from the seat after sitting for about 2 hours

-  walking for half an hour

-  standing for more than an hour

-  squatting for 5 minutes

-  getting up from the squatting position

-  climbing 2 flights of stairs

The Plaintiff also complained of extensive scarring over his left lower limb and weakness of his left knee and ankle.

13. Physical examination by Dr. Lau revealed that the Plaintiff could walk normally but he could not squat fully.  He has difficulty with walking on heels and could not stand in a stable manner on his left leg alone.  Examination also revealed extensive and multiple scars over the Plaintiff’s left lower limb.

14. Dr. Lau is of the opinion that the active range of movement of the Plaintiff’s left hip and knee has returned to normal but he is left with loss of active dorsiflexion of his left ankle.  Neurological examination by Dr. Lau revealed weakness of the dorsiflexion and eversion of the Plaintiff’s left ankle.  Sensory wise, he still has a small area of mild degree of touch sensation loss over the lateral aspect of the left lower leg.

15. Dr. Lau stated in his report that the Plaintiff has partial recovery from the left peroneal nerve palsy.  The main problem for him is the permanent weakness in the active dorsiflexion of his left ankle.  With the weakness in the active eversion of the right ankle, he also has problem in negotiating uneven surfaces.  Dr. Lau opined that further neurological recovery of the left peroneal nerve palsy cannot be expected.  It is expected that the motor weakness of the Plaintiff’s left lower limb is to be permanent.

16. According to Dr. Lau, the Plaintiff would have difficulty in returning to his pre-injury job in the plastic recycling factory which involved a lot of heavy manual work such as lifting heavy bags of plastic waste.  He was also required to stand for a long period of time during work.  Dr. Lau concluded that the Plaintiff may take up lighter and more sedentary jobs such as salesman in lighter goods, gas station worker, fast food stall worker or security guard.  Dr. Lau assessed the Plaintiff to have suffered 8% permanent impairment of the whole person for the injury to his left lower limb with residual motor weakness and for the multiple scars and pain.  The Plaintiff is also assessed to have 5% loss of earning capacity.

17. The Plaintiff was granted sick leave from the date of the accident up to 15 June 2006.  According to Dr. Lau, the recovery of the Plaintiff’s left lower limb injury was complicated by severe wound infection.  This is partly because of the extensive damage to the soft tissues and partly related to the serious contamination of the wounds.

Pain, suffering and loss of amenities of life (“PSLA”)

18. The Plaintiff is single and was aged 32 at the time of the accident.  He stated that prior to the accident, he used to play badminton, table tennis, soccer and basketball.  He could no longer enjoy these activities and sports after the accident.

19. On this head of claim, Mr. Ng, Counsel for the Plaintiff, has referred me to the following cases:

(a)       Luk Chi Yin v Wong Fung Shing, HCPI 496/1997, unreported, dated 6 November 1998;

(b)       Lau Yiu v Anwell Building Construction Co. Ltd, HCPI 1062/2002, unreported, dated 3 December 2003;

(c)       Liu Hung Fai v Sandvik Hong Kong Ltd, HCPI 934/1005, unreported, dated 18 April 1997;

(d)       Siu Wing Chuen v Ka Hing Transportation Engineering Company Ltd, HCPI 994/2004, unreported, dated 28 February 2007;

(e)       Cheung Koon Wah v Leung Ka Hang & Another, HCPI 76/2002, unreported, dated 30 November 2002;

(f)        Kan Kit Yuk v Chung Kwok Chuen [1997] 2 HKC 21;

(g)       Chan Chi Shing v Tsang Fook Metal Engineering & Others, CACV 238/1999, unreported, dated 21 December 1999; and

(h)       Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD.

20. Mr. Ng submitted that the injuries suffered by the Plaintiff fall within the lower end or just below the lower end of the “serious injury” category as decided in Lee Ting Lam v Leung Kam Ming, [1980] HKLR 657.  He suggested that a sum of $500,000 should be awarded for pain, suffering and loss of amenities of life.  He stated that the Plaintiff had suffered serious injuries as a result of the accident.  There were multiple open wounds to his left groin, left thigh and left calf, with fracture of his left fibula.  He also suffered from severe wound infection which was due to the extensive damage to the soft tissues and severe contamination of the wounds.  He was hospitalized for a total of 3 months and 23 days on 3 separate occasions.  Sick leave was granted to him for more than 1 year and 7 months.  The Plaintiff was also left with extensive scarrings over his left lower limb which is disturbing to him.

21. I have considered the injuries, treatments and disabilities of the Plaintiff as described in the medical reports and as set out above.  I have also considered the authorities cited and am of the view that the injuries of the Plaintiff fall just below the lower end of the “serious injury” category.  As stated by Dr. Lau, the Plaintiff could walk normally and that the active range of movement of the left hip and knee has returned to normal.  The main problem is the permanent weakness in the active dorsiflexion of his left ankle.  However, having considered the injuries and the treatments received by the Plaintiff; the pain and suffering caused by the accident (which according to the Plaintiff, took almost an hour for the firemen to free him from the “teeth” of the beaters) and the operations he received; his present complaints and disabilities; the multiple scars over his left lower limb and the inability to return to his usual sports, I am of the view that a sum of $450,000 would be a reasonable award under this head.

Pre-trial loss of earnings

22. According to the Plaintiff, he received education up to primary 6 level.  He could read and write simple Chinese.  Before the accident, he earned a basic monthly salary of $6,500 plus a monthly diligence bonus of $300.  For the month of August 2004, he received a salary of $6,500 only as he had taken day off that month and lost the diligence bonus.  For the month of September 2004, he received $6,800 as he had not taken leave and was entitled to the diligence bonus (see supporting documents at page 115, page 233 to page 237 of the bundle).

23. For the purpose of calculating the average monthly salary of the Plaintiff, Mr. Ng suggested the Court to adopt a figure of $6,650 (i.e. $6,500 + $300 ÷ 2) as it has been shown that the Plaintiff had received the diligence bonus for the month that he had not taken leave.  I agree.

24. According to the Plaintiff, he continued to receive periodical payments from the Defendant from the date of the accident up to 27 June 2006 when his employment with the Defendant was terminated.  The periodical payments he received amount to a total sum of $102,966 (see supporting documents at page 80 to page 114 of the bundle).

25. After the expiry of his sick leave on 15 June 2006, the Plaintiff attended a security guard training course in August 2006 and obtained a permit to work as a security guard.  However, he subsequently found out from the Labour Department that the job required education up to secondary level.  He would also be required to work 12-hour a day and to patrol the building by walking up and down the stairs.  With his disabilities, he did not think he could cope with the duties of a security guard.  He had not therefore applied to work as a security guard.

26. After the termination of the employment by the Defendant in June 2006, the Plaintiff remained unemployed until May 2007 when he obtained a job as an apprentice in water/electrical work.  He was paid a daily wages of $250.  However, he was only able to work for 15 days and earned a total salary of $3,750.

27. In December 2007, the Plaintiff had also worked for his brother’s decoration business as a general worker.  He worked for 13 days only and earned a sum of $3,250 at the rate of $250 per day.

28. According to Dr. Lau Hoi Kuen, the Plaintiff would have difficulties in returning to his pre-accident job.  He is advised to take up sedentary type of work such as salesman, gas station worker, fast food shop worker or security guard.

29. At the hearing, Mr. Ng accepted that the Plaintiff is under a duty to mitigate his loss.  He referred the Court to the case of Chan Kai Wing v Leung Fat Kee Engineering Factory Co. Ltd HCPI 1163/1999, unreported dated 15 November 2000 and the case of Lai Kwan Hing v Lee Yin Hing trading as King Yip Company & Another HCPI 765/2000, unreported, and submitted that the Court should at least allow the Plaintiff 4 months after the expiry of his sick leave on 15 June 2006 to find a suitable job.  On this matter, the Plaintiff admitted that he should be able to take up work as a gas station attendant 4 months after the expiry of his sick leave (i.e. on 15 October 2006).  However, in light of the fact that the Plaintiff received his last operation back on 28 February 2005 and that the Plaintiff was able to attend the security guard training course in August 2006, which was about 2 months after the expiry of his sick leave, I do not agree with Mr. Ng that the Plaintiff would require 4 months after the sick leave period to find a suitable job.  I believe that 3 months would be a more reasonable time (i.e. in about 15 September 2006) for the Plaintiff to resume normal work, as for example, a gas station attendant.

30. As to the salary of a gas station attendant, Mr. Ng has referred me to the website information of the Labour Department which shows that for the period from around December 2006 to early 2007, the monthly salary of a gas station attendant with an education level of primary 6 ranges from $5,000 to $6,100.  According to the printouts from the website for January 2007, the jobs available to persons in similar position as the Plaintiff (i.e. with an education level of primary 6 and without any experience) are that offered by a Tai Po and a Tsing Yi gas station with a starting salary of $5,000 to $5,500 respectively (see supporting documents at page 215a to page 217 of the bundle).  Mr. Ng submitted that the Court should adopt $5,000 as the notional salary that the Plaintiff could earn as a gas station attendant as the jobs shown in the printouts were offered to normal person and not to person who has disabilities like the Plaintiff.

31. I am prepared to accept the suggested figure of $5,000 as I further note from the printouts that in October 2007, a gas station in Sau Mau Ping area offered a basic monthly salary of $4,950 to person with form 2 secondary education and with some related working experience.  A gas station in Kwai Chung also offered a monthly salary of $5,000 to person with primary 6 level education and with one year working experience in gas station.  In accepting this figure of $5,000, I have also borne in mind that the Plaintiff could only stand for about an hour because of his injuries to his left lower limb.

32. The pre-trial loss of earning would be calculated as follows: -

(a) the notional monthly income of the Plaintiff from date of accident (i.e. 21 October 2004) to the date of the assessment (i.e. 10 April 2008) for about 42 months would be $6,650 per month x 42 months = $279,300.

(b) the income or notional income received by the Plaintiff for these 42 months amounts to $190,966 (i.e. $102,966 + $88,000) which includes: -

(i) $102,966 being the periodical payments received from the Defendant; and

(ii) $88,000 being the notional income of the Plaintiff as gas station attendant from 15 September 2006 to date of assessment (i.e. 10 April 2008) for about 19 months ($5,000 x 19 months = $95,000) less salary $3,750 received as apprentice and $3,290 received as general worker for brother’s business (i.e. $95,000 – $3,750 - $3,250 = $88,000).

(c) the pre-trial loss of income is $88,334 (i.e. $279,300 – $190,966).

Future loss of earnings

33. The Plaintiff was born on 28 October 1972.  He is aged 35 at the date of assessment.  Mr. Ng suggested the Court to adopt a multiplier of 15 having considered the following cases: -

(a)       Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575, a multiplier of 13 was adopted for a Plaintiff aged 38 at the date of trial;

(b)       Ta Xuong v the Incorporated Owners of Sun Hing Bulding [1997] 4 HKC 171, a multiplier of 16 was adopted for a Plaintiff aged 37 at the date of trial;

(c)       Leung Lai Yin v Yeung Kei Chi (trading as Shung Hing Furniture Decorating Construction) & Another, HCPI 317/1999, unreported dated 7 April 2000.  A multiplier of 14 was adopted for a Plaintiff aged 36 at the date of trial; and

(d)       Gurung Netra Bahadur v Hip Hing Construction Co. Ltd, HCPI 633/2000, unreported dated 21 October 2002, a multiplier of 13 was adopted for a Plaintiff aged 36 at the date of trial.

34. I agree with the suggestion.  The future loss of earnings would amount to $297,000 (i.e. ($6,650 – 5,000) x 12 x 15).

Loss of Mandatory Provident Fund contributions (“MPF contributions”)

35. On the basis of the above calculations, the Plaintiff is entitled to loss of MPF contributions which amount to $19,266.70 (i.e. ($88,334 x 5%) + ($297,000 x 5%) = $4,416.70 + $14,850 = $19,266.70).

Loss of earning capacity

36. Mr. Ng relied on British Transport Commission v Gourley [1956] AC 185 and Moeliker v Revrolle [1977] 1 WLR 132 (CA), and sought to claim for loss of earning capacity for the Plaintiff.

37. I have considered the injuries and disabilities suffered by the Plaintiff as per the medical reports referred to above.  In particularly, I have considered the opinion of Dr. Lau Hoi Kuen that the Plaintiff could take up job such as security guard.  However, and in realities, the Plaintiff could not cope with the duties of a security guard as the job requires him to patrol the building by walking the staircases.  In this regard, I accept the Plaintiff’s evidence as per paragraph 25 above and agree that he would be at a disadvantage in finding employment.  In fact, his choice of employment would be restricted because of his disabilities.

38. Mr. Ng suggested the Court to adopt a 18 months’ notional salary as damages under this head.  I am of the view that 12 months would be more reasonable.  The damages under this head would be $60,000 (i.e. $5,000 x 12 months).

Special damages

39. I also accept the claim for special damages in the sum of $24,416.  The claim is supported by receipts and appears to be reasonable.  They include: -

(a)	medical expenses	$16,240
(b)	traveling expenses	$3,056
(c)	fees for medicine	$120
(d)	tonic food	$5,000
		$24,416

Summary

40. The amount of damages awarded is summarized as follows: -

(a)	PSLA	$450,000
(b)	Loss of earnings
	- Pre-trial	$88,334
	- Post-trial	$297,000
(c)	Loss of MPF contributions	$19,266.70
(d)	Loss of earning capacity	$60,0000
(e)	Special damages	$24,416
		$939,016.70

41. The Plaintiff would be entitled to interest at 2% per annum on general damages from date of the writ to date of assessment.  He is also entitled to interest at half judgment rate on pre-trial loss of earnings and special damages from date of accident to the date of assessment.

42. Having considered the amount of damages awarded plus interests thereon, I am prepared to allow costs of the assessment to the Plaintiff to be taxed on High Court Scale if not agreed with Certificate for Counsel.