CHAN SZE YUEN v. TIN WO ENGINEERING LTD AND OTHERS

HCPI 427/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 427 OF 2008

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ASSESSMENT OF DAMAGES

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1.  The plaintiff, Mr Chan, was a steel binder who suffered a fracture of right calcaneum after a fall at a construction site in Macau on 24 June 2005 (“the foot injury incident”). He was subsequently admitted to a hospital in Hong Kong for an open reduction operation. After discharge, he has received 2 months of physiotherapy and 7-8 sessions of occupational therapy.

2.  Mr Chan was granted sick leave until 1 March 2006 but he claimed that he had already returned to work in October 2005.

3.  Mr Chan continued to work until he suffered a ruptured cerebral aneurysm causing a subarachnoid haemorrhage on 16 November 2006 which was unrelated to his accident (“the stroke incident”). He was admitted for various surgical treatments and was discharged on 29 December 2006. He has not return to work since.

Background of the claim

4.  The claim has been discontinued against the 1^st defendant and settled against the 3^rd defendant.

5.  The 2^nd defendant was a company incorporated in Macau and was held liable by the Court in the Employee’s Compensation claim. However, it has not paid the EC award nor taken any active participation in the current proceedings for a long time. Judgment has been entered.

6.  As a result, the 4^th defendant has stepped in and funded the EC award as well as joining as a party in the current proceedings.

PSLA

7.  In the joint orthopaedic experts’ report by Dr Arthur Chiang Si Chung and Dr Danny Tsoi Chi Wah, both agreed that: -

(a) The x-ray taken on 7 February 2013 showed that the fracture has united with satisfactory alignment.

(b) Physical examination showed mild decrease in movements of the right ankle with some mild and mild to moderate degree of muscle wasting in right thigh and calf.

(c) Future post-traumatic degenerative arthritis was unlikely (less than 20% chance).

(d) Mr Chan should have satisfactory capacity in prolonged walking, standing and in handling of heavier objects. But there would be reduction in efficiency in handling of heavy objects, in prolonged and continuous heavy manual work activities, prolonged squatting and prolonged walking on uneven ground.

8.  Essentially, this is a case of traumatic fracture of the calcaneum which required open surgery but with uncomplicated and reasonably satisfactory recovery.

9.  Mr Lam, Counsel for the plaintiff, and Ms Leong, Counsel for the 4^th defendant, have submitted various cases concerning calcaneum fractures including Tse Hing Wan v Choy Yuen Keung & Ors [HCPI 889/1998], Wong Woon Hei v Dickson Construction Co Ltd & Ors [HCPI 521/2000], Ng Wah Chun v Cheng Wong Chung & Ors [HCPI 164/2001], Wong Wing Chow v Lee Wing Hang Patrick t/a Wing Shun Construction Co. & Anor [HCPI 244/2002] etc.

10.  I have considered these cases and found that the award should be HK$250,000 under this head of claim.

Pre-trial loss of earnings (including loss of MPF)

11.  There are some disputes between the experts regarding the plaintiff’s work capacity.

12.  Dr Chiang stated that: -

“although Mr. Chan had returned to work for one year in the pre-injury job….basing on the capacity and endurance of the right ankle, Dr. Chiang still believes that Mr. Chan might not be able to return to the pre-injury job with a satisfactory capacity…”

Mr. Chan “should be able to work in casual jobs in interior decoration…construction site…cleaner, car park attendant, security guard and delivery worker except those that require delivery of very heavy objects.”

13.  Dr Tsoi stated that: -

“…but for the stroke, Mr. Chan should be able to resume his pre-injury job with mildly reduced capacity and efficiency. Alternative jobs suggested by Dr. Chiang are also suitable…”

14.  Dr Yu Yuk Ling, the single joint neurology expert stated that (obviously from a neurology point of view): -

“Once the cerebral aneurysm is clipped, the risk of rupture causing subarachnoid haemorrhage in the future is zero, even with heavy exertion as required in jobs such as steel-binding. In conclusion, Mr. Chan’s subarachnoid haemorrhage should not compromise his work capacity as a steel-binder.”

15.  It is, of course, appropriate for a medical expert to give an opinion on the physical condition and prognosis of the plaintiff. However, in general, the court is in a far better position to assess the plaintiff’s actual work capacity because it has a chance to hear evidence from the plaintiff (and any other witnesses) on the details of the nature of the pre-injury job, the work system, any “coping mechanism” and “work practice adaptation” after the injury, the supply and demand in the labour market etc, and to hear cross-examinations of such evidence.

16.  I often find the term “reduced work capacity and efficiency” rather vague and meaningless term with regard to actual earning loss.

17.  We do not go to work only when we are 100% fit and efficient. I cannot imagine that, for example, any professional football player only play matches when he is perfectly fit. Any professional (or even amateur) athletes are likely to be affected all through their careers by various old and new injuries, pains or aches due to training etc..

18.  Similarly, “general workers” like us are often affected by various minor ailments, coughs and colds, back pains, headaches, tiredness, jet-lags, hangovers etc which may reduce our work capacity and efficiency.

19.  We all learn to cope and work around such ailments, and still be able to perform at a reasonable level at our work. Our employers do not, in general, deduct our income because we feel jet-lagged returning to work after a holiday and have to drink a few more cups of coffee, or if we have a headache and have to take some painkillers. Thus, any reduction in work capacity and efficiency does not always translate to a loss in income.

20.  On other occasions, even if we have some long term illness or disabilities, a reasonable attitude to work and a sympathetic work environment might mean that we could still cope with our work: change of work practice, working “around” an injury etc.

21.  Such situations may depend upon finding a sympathetic employer and work team. These are the occasions when the court needs to consider a claim under “loss of working capacity/ disadvantage in the labour market” on the account that the plaintiff may be at risk to lose his job and then he may take longer than usual to find a new employer.

22.  Only in relatively rare occasions when one suffered a “career-ending” illness or injury that one can no longer cope with his pre-injury job. This is when the court needs to consider a loss of income claim.

23.  However, whether an injury is “career-ending” or not may also depend on the nature of the job. In a high-performing and competitive job, a slight drop in capacity would have a disastrous effect: eg a back injury in a top professional golfer, a tendonitis in a concert violinist. In a relatively less demanding and competitive job, eg a manual worker, one may still get away with taking pain-killers and more rests with the same injury.

24.  Ironically, it may well be that the professional golfer has more determination and incentive to “push through” serious injuries, but the manual worker, understandably, has much less incentive so decided to “throw in the towel” with relatively less serious injuries. Nevertheless, these are factors that the court should not consider. The court should only assess whether a reasonable worker under those circumstances could or could not cope with his pre-injury work at a reasonable level as demanded by the nature of that job.

25.  The court, with the evidence from the experts as to the medical condition of the plaintiff, and the evidence from the plaintiff (and any other witnesses) regarding all the relevant factors surrounding the nature of the pre-injury work, can determine whether the plaintiff’s medical condition may actually reduces his income, or may only be a disadvantage in the labour market, or both, as the case maybe.

26.  In this case, Mr Chan managed to return to work in October 2005, a little more than 3 months after the foot injury incident, despite the fact that his sick leave would not expire until 3 January 2006.

27.  Mr Chan continued to work until the stroke incident on 16 November 2006. He was admitted on 19 November 2006 received various neurosurgical procedures. He was discharged in late December 2006 and had sick leave until 29 June 2007, but he has not returned to work again.

28.  Mr Chan told the court that there was a labour shortage in Macau and he was urged to return to work after the foot injury incident. He was able to have his work practice modified (to some extent): he took a more supervisory role due to his experience and problem-solving ability, he did not need to personally work on the heavier (bigger gauge) steel bars, and he was taking pain-killers etc.

29.  Mr Chan also stated in his witness statement (as I translate) that initially he was told that his work would only be “supervisory” and “would not be laborious”, but “in reality, I had to do steel-binding. Because I was injured and had an operation, it was very laborious. But I need to work for a living so have to bear it.”

30.  In the same statement, Mr Chan also maintained that he understood Dr Yu’s opinion that: “from a neurosurgical point of view, I was suitable for laborious work.”

31.  He further stated that: “In other words, my inability to return to steel-binding work is entirely due to my foot injury and unrelated to the bleeding in the brain.”

32.  However, I am not convinced by this line of argument.

33.  When questioned by Ms Leong, he told the court how pressurized the job was and how the supervisor would check the progress of the work and would fire those who could not finish the job on time.

34.  The fact remained that Mr Chan had managed to continue to work for more than 1 year until the stroke incident.

35.  This could only happen if Mr Chan’s work capacity as a steel-binder was higher than he alleged, or that his employer was far more accommodating and sympathetic than he alleged, or both.

36.  More importantly, Mr Chan admitted that, after recovery from the stroke incident (by June 2007), he had not attempted to look for a steel-binding job. In fact, there was no evidence to suggest that he attempted to look for any job at all (including those “alternative” jobs that Dr Chiang and Dr Tsoi opined that he was able to do).

37.  If Mr Chan really thought that: -

(a) he “needed to work for living” and had to “bear” with steel-binding before the stroke incident;

(b) he was not “physically” affected by the stroke incident (in other words, his medical condition was the same as when he was working as a steel-binder between October 2005 and November 2006);

(c) but he did not return to steel-binding after June 2007 because he felt not up to standard and might endangered others as a steel-binder etc;

Mr Chan did not provide any explanation (and I see no convincing argument) as to why he should not at least try to look for a lighter job after his recovery from the stroke incident.

38.  In fact, in his witness statement, Mr Chan simply declared that: “I now could not continue to work. I have accepted Government sponsored disability subsidies….”.

39.  The inevitable conclusion must be that Mr Chan has decided to retire from work and for whatever reasons, it could not be due to his (unchanged) physical condition. It would not matter to the court what the real reasons were but one might perhaps speculate from the timing that his concern (despite the reassurance from Dr Yu) about the stroke incident was one of the reasons.

40.  In other words, I find that even without the foot injury incident, Mr Chan would have likely stopped working on 16 November 2006.

41.  It is not in dispute that Mr Chan earned HK$20,020 per month (HK$770 per day for an average of 26 days a month) at the time of the accident as a steel-binder.

42.  His salary slips in the months that he returned to work showed that this remained his daily wage until he stopped working. Therefore, the figures produced by Mr Lam from the statistics table from Census and Statistics Department on what a steel-binder earned on average were irrelevant.

43.  Thus his earnings (including MPF) from 24 June 2005 to 16 November 2006 (about 17.75 months) would have been HK$20,020 x 1.05 x 17.75 = HK$373,122.75

44.  Ms Leong has taken Mr Chan through his bank statements and salary documents. I need not go into details but it would appear that Mr Chan has received income from his employer prior to the date he claimed he returned to work. The court has no way to verify the dispute on why he got paid, but Mr Chan did not deny that he had received such income. There were also some other minor discrepancies.

45.  In any case, I accept that his actual earnings during this period amounted to HK$256,930.25.

46.  Therefore, Mr Chan’s pre-trial loss of income should be HK$373,122.75 – 256,930.25 = HK$116,192.50

Loss of future earnings

47.  As stated above, I find that Mr Chan has decided to retire after his stroke incident which was unrelated to his foot injury incident so there should be no award under this head of claim.

Loss of earning capacity

48.  This claim should be awarded if the plaintiff remained in employment but was at risk at losing his job in the future and thus would suffer a disadvantage in an open labour market due to his disabilities. It should not be awarded if the plaintiff chose to retire due to an unrelated event.

49.  Mr Lam quoted Wong Tang Keung v Lee Wai Engineering Co. Ltd Civil Appeal 165/2012 in support for the claim for loss of earning capacity.

50.  I find that this case can be distinguished in that in Wong, the plaintiff returned to work but was laid off, and, crucially, the plaintiff gave evidence that he tried to seek employment but failed.

51.  In the current case, Mr Chan was not laid off. He stopped working due to the stroke incident and he did not try to seek employment after recovery.

52.  Even if this finding was wrong and Mr Chan did not decide to retire after the stroke incident, a reasonable award under this head should be about 6 months of Mr Chan’s salary or HK$20,020 x 6 = HK$120,120.

53.  And if this HK$120,120 is taken into account in the calculation in paragraph 57 below, the damages in this action is still far below the sums already received by Mr Chan.

Special damages

54.  The medical expenses, out-patient treatment expenses and travelling expenses are agreed by the parties at HK$3,544, HK$2,751.40 and HK$764.80 respectively. I see no reason to alter these figures.

55.  I would allow HK$5,000 as the claim for tonic food.

56.  Total claim under special damages should therefore be HK$12,060.20.

Summary

	HK$
PSLA	250,000.00
Pre-trial loss of earnings	116,192.50
Future loss of earnings	0
Loss of earning capacity	0
Special damages	12,060.20
Total	378,252.70
Less:
Advance payment	(90,968.00)
Employees’ Compensation	(185,301.20)
Settlement sum from 3rd defendant	(850,000.00)
	-748,016.50

57.  The damages in this action is less than all the sums already received by Mr Chan so no damages should be awarded.

58.  I would therefore give an order nisi that the plaintiff’s case be dismissed with cost to the 4^th defendant to be taxed if not agreed with certificate to Counsel.