NG SHUI HING v. LEE HING ON RICKY

DCPI 1313/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES NO. 1313 OF 2004

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REASONS FOR DECISION

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Introduction

1. The plaintiff fell down and sustained injuries from a ladder whilst working for the defendant.  Apart from filing a Defence solely denying employment relationship, he was absent from and unrepresented in the Checklist Review and subsequent proceedings.  He remains absent and unrepresented today.   

Issues for this court

2. I have to determine:

(1)   liability;

(2)   quantum. 

Plaintiff’s case on liability

3. The plaintiff himself gives evidence.  He calls no witnesses.  He adopts his statement [dated 6 September 2005, Trial Bundle 30-44 “TB 30-44”] and makes oral supplements.  He is now 49 years of age.  He was born in Hong Kong on 24 November 1956.  He studied up to F.3.  He has over 20 years of experience as an electrician.  He obtained an “A-licence” in 1996.  He also has a taxi licence.  His main job is as a taxi-driver, earning $10,000 per month.  He also earns $7,000 as an electrician on a daily basis (@$700 for 10 days per month), sometimes employed by the defendant.  In the trial on employees’ compensation between the same parties [DCEC 416/2004, judgment handed down on 27 July 2005, para. 13-14, TB 85-86] the Court accepted their employment relationship and the computation of such earnings.        

4. On 11 July 2002, as instructed by the defendant employer cum occupier of House C3, Hebe Villa, no. 18 Che Keng Tuk Road, Sai Kung, N.T. (“the House”), he carried out electrical work there.  At 5 p.m., he was standing astride an 4-foot A-shaped ladder outside the kitchen to fix a plastic tube at the ceiling.  He had to climb down the ladder to get a cord from the floor.  As he drew his right foot round the side of the ladder to join his left foot on the rung, he stepped onto the void between the rungs and fell down.  He injured his left radius and left distal radio-ulnar joint.      

My view on liability

5. There is clear evidence that the defendant failed to provide a safe system and place of work.  The plaintiff had to transfer the tools all by himself in the course of climbing up or down the ladder.  There may be some basis to suggest contributory negligence on his part as he had no good reason to climb down the ladder with tools in both hands.  He ought to have put them down or called upon somebody to help.  However, contributory negligence must be pleaded; the Court is not entitled to so find if not pleaded (HKCP 2004 18/8/7).  Hence there is nothing to assail the finding that the defendant is fully liable for the accident as an employer cum occupier.      

Plaintiff’s case on quantum

6. The heads of claim are set out in his Revised Statement of Damages [dated 5 November 2005, TB 21].  The details are given hereinbelow. 

Pain, suffering and loss of amenities.  

7.  He claims $400,000.00 for pain, suffering and loss of amenities (“PSLA”). 

8. Dr. Wong See Hoi, an orthopaedic specialist, gave a summary of the treatment he had received and the condition he was in as at the medical examination of 21 October 2004 (TB 52-61).  After the accident on 11 July 2002, he received an operation on 29 August 2002 with open reduction and internal fixation done.  Regular physiotherapy and occupational therapy were done after the operation.   Dr. Wong regarded the treatments standard, adequate and appropriate. 

9. Despite the lapse of 2 years, he still complained of on-and-off pain in the left elbow aggravated by lifting heavy objects, repetitive turning and flexion movement of the left elbow.  Dr. Wong found a decreased range of movement of his left elbow and mildly decreased power of his left hand grip.  The prognosis was that the stiffness and weakness of his left elbow were likely to be permanent.  He would have residual pain over his left elbow particular on exertion. 

10. I accept Dr. Wong’s evidence to be credible and reliable.  The plaintiff’s counsel submits that the proper range is between $200,000 and $220,000 according to comparable cases.  In Chung Hok Sung v Li Kam Ming, HCPI 393/1995, the plaintiff was awarded $200,000.  In Ho Bing Cheung v The Incorporated Owners of Mei Foo Sun Chuen – Stage V & Anor., DCPI 66/2004, the plaintiff was awarded $220,000. 

11. I award $200,000 under this head. 

Pre-trial loss of earnings

12. He claims $106,533.33 for pre-trial loss of earnings.

13. The accident took place on 11 July 2002 whereas the trial on 16 December 2005.  He was given sick leave from 11 July 2002 to 14 January 2003, a total of 188 days. 

14. He stated (in para. 34 of his statement, dated 6 September 2005, TB 39-40) that during that period he was unable to do either of his 2 jobs.   He says in Court that he was actually able to drive the taxi but unable to work as an electrician because of decreased hand movement and strength.

15. Dr. Wong regarded the previous course of treatment to be reasonable.  I accept that the sick leave period was appropriate.  He should be entitled to pre-trial loss of income as an electrician.  I award $43,866.67 (being $7,000 x 188/30) under this head.

Loss of MPF

16. He claims $2,193.33 (being $7,000 x 188/30 x 5%) for loss of MPF as an electrician during the sick leave period.  I award this amount under this head. 

Loss of earning capacity

17. He claims $153,000.00 for loss of earning capacity (being $17,000 x 9 months).  This is to compensate his loss for his handicap in the labour market, as for example, he may be more easily dismissed and less likely to be re-employed if dismissed.  Counsel accepts that this figure is arbitrary and cannot explain for the multiplier of “9”.    

18. In Tang Shau Tsan v Wealthy Construction Co Ltd CACV 58/2000 the Court of Appeal adopted a formula based on the percentage of loss of earning capacity.  In Christopher Gordon Young v Lee Chiu CACV 131/2003 Reyes J. pointed out the difficulty with working on the percentage of loss of earning capacity and looked to a rough and ready lump sum instead. 

17. I think the general trend is to look to a lump sum figure unless a formula is clearly helpful.  The plaintiff is now 49 years of age. He has over 20 years’ experience as an electrician.  The nature of his injuries will make him less efficient and less strong to perform his work.  I award $50,000 under this head.   

Special damages

18. He claims $11,412.00 for special damages, comprising medical expenses, traveling expenses and bonsetting fees.  I accept his claim for medical expenses.  He says in Court that he does not know how he computed $6,450 [para. 23(b) TB 20] for “bonesetting fees @$150 x 43 times”.  He has receipts only for 6 daily consultations (namely 11 – 16 July 2002) at $1,350 in total.  He says the bonesetter charged him $100 for 37 other consultations ($3,700 in total) with no receipts issued.  Be that as it may, the total will be only $5,050 instead of $6,450.  As he fails to explain the computations, I will only allow $1,350 (which is $5,100 less than claimed) for bonesetting fees.  I do not propose to reduce his traveling expenses as it is not clear to me how much he spent on traveling to the bonesetter’s clinic and it was only a modest figure of $500 in total for quite a number of various consultations.  

19.  I award $6,312 (being $11412 less $5,100) under this head.      

Conclusion

20. The awards I make are as follows:

21. I award interest at 2% per annum on general damages from the date of service of the Writ of Summons to today, and interest at half of the prevailing judgment rate on special damages from the date of the accident to the date of judgment. 

22. There is no apparent reason why costs should not follow the event.  I order costs nisi to the plaintiff.  The order shall become absolute 14 days from today. 

Dated this 30 December 2005