YUNG WAI LOK v. WAH KOON DESIGN ENGINEERING LTD

DCPI 3383/2022

[2024] HKDC 983

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3383 OF 0222

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of damages for personal injuries suffered by the plaintiff at work on 11 March 2020 (“the Accident”).

2.  In absence of any notice of intention to defend, interlocutory judgments were entered against the defendant on 24 February 2023, leaving damages to be assessed.

3.  Affirmation of service had been filed by Cheuk Yeuk Sum, Solicitors for the plaintiff to confirm that the order dated 4 December 2023 setting out the date and time of the hearing, the assessment bundle and the plaintiff’s opening submissions, had all been served on the defendant.  The defendant was absent in the assessment hearing.  I was satisfied that notice of the assessment hearing had been duly given to the defendant.  It was the defendant’s choice not to attend the assessment hearing.  I proceeded with the assessment of damages in this case in the absence of the defendant.

4.  The plaintiff instituted the present proceedings against the defendant for (i) pain, suffering and loss of amenities (PSLA); (ii) pre-trial loss of earnings and MPF; (iii) pre-trial expenses; and (iv) loss of earning capacity.

The plaintiff’s case

5.  The plaintiff was born on 23 November 1974 and was aged 45 at the time of the Accident.

6.  The plaintiff pleaded in the Statement of Claim that he was a general worker and employed by the defendant to carry out decoration work at the Shop No 5, Ground Floor, Ka Hing Building, 41-47 Java Road, North Point, Hong Kong (“the Site”) for decorative works such as painting and installing the frame of the signboard at the Site.

7.  On 11 March 2020, in the course of employment, the plaintiff was working at the Site.  At about 9:00 am, the plaintiff and his colleague, were instructed by their supervisor to install the frame of the signboard of the defendant which was about 113 inches (L) × 40 inches (H) × 1.5 inches (W) weighted about 20kgs at Site.  The said signboard was to be installed to the top of the entrance which was about 173 inches above the ground.  The plaintiff and his colleagues was each provided with an A-shaped wooden ladder with 6 steps to help them with their work.  The plaintiff and his colleague was required to carry one end of the frame of the signboard and walk up the wooden ladders.

8.  When the plaintiff was standing on the top of his wooden ladder (about 6 feet above the ground) and trying to install the said frame of signboard, the said wooden ladder suddenly shook cause by movement during the installation work and since no one was holding the said wooden ladder, the plaintiff lost balance and fell onto the floor together with the said wooden ladder and the said frame of signboard.

9.  After the Accident, the plaintiff attended Mr Chan Tze Man, a registered Chinese Medicine Practitioner at Can Chiu Bone Setter Clinic for medical treatment on 11 March 2020 and 12 March 2020.

10.  Due to persistent pain at this right shoulder and right rib, the plaintiff attended the Accident & Emergency Department (“A&E Department”) of Ruttonjee & Tang Shiu Kin Hospital (“the Hospital”) for medical treatment on 13 March 2020.

11.  Upon medical examination, the plaintiff was found to have fracture right greater rubersity of humerus and fracture of right 9^th rib.  He was treated and discharged [C/90].

12.  He was referred to the Occupational Therapy for shoulder immobilizer and further follow up. The plaintiff was treated conservatively and analgesic and discharged.

13.  The plaintiff had been working with the defendant for 10 years.  The plaintiff stated in his Witness Statement dated 19 April 2023 that, at the time of the Accident, the plaintiff would work for 20 days per month and received a daily wage of $1,100.  The salary payment would be made on every 15^th and 30^th day of each month by cash.  The defendant did not make any MPF contribution for the plaintiff.

14.  The plaintiff was granted intermittent sick leave from 13 March 2020 to 30 June 2021 (both dates inclusive).

The plaintiff’s evidence

15.  The plaintiff was the only person to give oral evidence at the Assessment of Damages.  He adopted the Witness Statement dated 19 April 2023 as his evidence-in-chief and gave evidence at the assessment hearing.

16.  The plaintiff’s evidence is that he was 45 at the date of the accident. Single and live with his father and brother.  Prior to the Accident, he had once suffered injury in his forearm in 2008 and such was recovered and he has resumed to normal work thereafter.

17.  The plaintiff complains that he is still suffering from the following problems:

(a)  Pain in the right shoulder, which intensified when engaging in strenuous activities;

(b)  ain in the right arm;

(c)  Could only fall asleep in supine position or lie on the left side otherwise the pain becomes unbearable and wakes the Plaintiff up;

(d)  The right hand is experiencing difficulty in lifting heavy objects which intensifies the pain if holding heavy object with right hand;

(e)  Decreased grip strength on right hand;

(f)  The right shoulder’s injury leading to difficulty in lifting heavy objects;

(g)  Intermittent pain at area of right cheat;

(h)  Due to the need to take pain medication every morning and evening in order to alleviate persistent pain, the plaintiff is experiencing a decline in his physical condition.  Resulting in weakness and deterioration;

(i)  The pain in the right shoulder intensifies whenever it rains, the weather become humid, there is a sudden change in weather, or after lifting heavy objects.

18.  The plaintiff has produced 2 medical reports dated 17 September 2021 and 29 December 2021, a physiotherapy report dated 17 September 2021, an Occupational Therapy Report dated 30 September 2021 and a Declaration of a Chinese Bonesetter dated 30 April 2022.  He has elected not to adduce any expert evidence as to quantum.

19.  In respect of post-Accident work, the plaintiff’s case is that he is not able to resume his pre-accident work as he is no longer able to carry heavy things.  He is now working as a casual painting workers with unstable income and working days.  In general, the post-accident income is lower than his pre-accident income.

20.  On 14 December 2021, the plaintiff was assessed by the Employees’ Compensation (Ordinary Assessment) Board that there was right humerus and right rib injuries resulting in right shoulder greater tuberosity fracture with 2% loss of earning capacity.

Factual findings

21.  Considering the medical reports and the plaintiff’s evidence together, I am satisfied that the plaintiff had proved on balance of probabilities that his physical injuries were caused by the Accident.  Based on this factual findings, I now turn to each head of claim.

PSLA

22.  The plaintiff claims a sum of $400,000 for damages for PSLA.  In support of the claim, the solicitor for the plaintiff cited various cases and I found the following cases are of relevance to the present claim:

(a)  In Lai Yip Ngan v Chan Yuk Lan, [2018] HKDC 1071, the plaintiff suffered right periorbital bruise with tenderness and small conjunctival haemorrhage, and right proximal humerus tenderness and right calf full thickness skin laceration on right posterior calf.  X‑ray examination of the plaintiff’s right shoulder showed fracture of her right proximal humerus with minimal displacement.  Exploration and repair of right calf wound was performed on 30 March 2014.  Collar and cuff was given to the plaintiff for immobilization of her fracture right shoulder.  The plaintiff was discharged on 3 April 2014 but continued to receive further treatment for right shoulder weakness.  The Plaintiff was awarded $312,000 for PSLA;

(b)  In Rai Narayan Parshad v Chit Hing Construction Engineering & Others, HCPI 604/2008, unreported, 22 September 2011, a construction worker, was instructed to use slings and chains to fix the position of a mini lorry so that the mini lorry could be loaded onto the truck bed of the Vehicle. When the plaintiff was proceeding to complete the final adjustments of a sling for the mini lorry to be lifted up by the crane onto the Vehicle, the mini lorry was lifted up by the crane.  As the plaintiff was leaving the underside of the mini lorry, the mini lorry fell down onto the plaintiff.  As a result, the plaintiff suffered the injuries, there was a laceration at the left frontal scalp and bruises at the left parietal scalp, left ear, left side of the neck, left arm and both lower limbs and skin abrasions at the left shoulder and left half of the trunk.  X‑ray showed fractures in the left clavicle and right superior public ramus and CT scan showed left frontal epidural haematoma, bilateral parietal brain contusions and small left pneumothorax.  The plaintiff was awarded $500,000 for PSLA;

(c)  In the case of Rai Shiva Krisha v Woo Loong Scaffoldings Works Co Ltd, [2018] HKCFI 488, the plaintiff was a warehouse laborer employed by the defendant.  The plaintiff, aged 52 at the time, fell from a height of about 2 metres.  He was then admitted to hospital for 1 week and was re-admitted to hospital for exacerbation of right shoulder pain and MRI showed a full thickness tear of the supraspinatus tendon of the right shoulder.  A repair operation (right shoulder arthroscopy and cuff repair with acromioplasty) was performed.  There was apparently good post-operative recovery and a full course of physiotherapy and occupational therapy was completed around 7 months later.  An award of $360,000 was given under the head of PSLA claim.

23.  After considering all the evidence and medical records before me and given the nature of the plaintiff’s injury and the treatment underwent, I am of the view that the plaintiff’s injuries in the present case was less serious than the case as cited above.  I also do not agree that the plaintiff’s injury come within the category of “serious injury” as in the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 as submitted by the plaintiff’s solicitor.  The examples of “serious injury” category cited by the Court of Appeal in the Lee Ting Lam case were “loss of a limb replaced by a satisfactory artificial device” and “bad fractures leaving recurrent pain”, in that case, the injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim.  All these did not happen to the plaintiff in this case.

24.  For the reasons as mentioned and after taking into account of the inflation, I am of the view that the sum of $350,000 should be awarded under this head.

Pre-trial loss of earnings and MPF

25.  In the Witness Statement, the plaintiff stated that he was a general worker and was earning $22,000 per month in average.  The salary payment was made by cash and no documentary evidence could be provided.

26.  As the Plaintiff’s case was unchallenged, I accept the Plaintiff’s case that his monthly wage was $22,000.00.

27.  The plaintiff was granted intermittent sick leave from 13 March 2020 to 30 June 2021 (both dates inclusive).  Sick leave certificates were produced.

28.  I remind myself that sick leave certificate is not an absolute proof that a plaintiff cannot return to some form of work.

29.  From the Medical Report prepared by Dr Mak Kwok Chu Joseph, Department of O&T of Ruttonjee & Tang Shiu Kin Hospital dated 30 September 2021, the Plaintiff was diagnosed with fracture right shoulder greater trochanter.  He was referred to Occupational Therapy for shoulder immobilizer on 13 March 2020.

30.  From another Medical Report also prepared by Dr Mak Kwok Chu Joseph dated 29 December 2021, it states that after various follow up treatments, at his latest follow up on 30 June 2021, the plaintiff’s shoulder range of movement improved compared to when he first attended the Specialist Out-Patient Clinic of Ruttonjee Hospital on 10 June 2020.

31.  His shoulder range of movement was: forward flexion: 160 degree, external rotation at 0 degree abduction: 60 degree.  His hand behind back test shows “reaching L1 vertebral level”, shoulder cuff power was full and the plaintiff’s condition has reached its maximal medical improvement on 30 June 2021.

32.  After considering all the medical evidence and records before me and the nature of the plaintiff’s work, on balance, I am satisfied that these treatment record and sick leave certificate showed that he could not work for the period from 13 March 2020 to 30 June 2021 (both dates inclusive).

33.  I am, therefore, satisfied that, for the period from 13 March 2020 to 30 June 2021, the Plaintiff would have continued to work with the Defendant at a monthly salary of $22,000 ($1,100 × 20), and the pre-trial loss would be:

$22,000/30 days × 475 days = $348,333.33

34.  The Plaintiff’s pre-trial loss of MPF would be:

$22,000 × 5%/30 days × 475 days = $17,416.67

35.  The total amount awarded under this head is therefore $365,750.

Loss of earning capacity

36.  The plaintiff claims a sum representing approximately 12 months of his income at the time of the Accident under this head.  No cases has been submitted by the plaintiff in support of his claim under this head.

37.  The guiding principle for making an award for loss of earning capacity was stated in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141:-

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.

38.  The burden is on the plaintiff to adduce evidence to prove that there is a real or substantial risk that he will lose his employment in the future, and that there is a real or substantial risk that he will suffer financial loss because of his disadvantage in the labour market.

39.  The plaintiff, in his Revised Statement of Damages, asserts that “as a result of the injuries and impairment suffered by the plaintiff, it is clear that the plaintiff had already faced handicap in the labour market”.

40.  When questioned by the court on his present income, the plaintiff answered that he is now earning $1,300 per day and would work for 3-4 days in a week.  In other words, the plaintiff is able to resume his previous job and/or to earn more than his daily rate of his pre-accident salary.  It is true that, on simple calculation, the plaintiff is earning less on a monthly basis, but it is only because of the reduction of his working days.  The plaintiff offers no explanation as to the reason for such reduction and there is no evidence to suggest that the said reduction is contributed by the injury.

41.  In the circumstances, I am not satisfied on the evidence that the plaintiff is having any “real” or “substantial” risk that he is suffering a disadvantage in the labour market due to the injury.  I therefore do not regard that this is an appropriate case to award a separate claim for loss of earning capacity in this case.

Special damages

42.  The plaintiff claims the following items under this head

(a)  Medical expenses:

(i)  )  Ruttonjee & Tang Shiu Kin Hospital: $7,825-

(ii)  ) Chan Chiu Bone Setter Clinic: $1,000-

(iii)  陳雪鴻針炙跌打醫: $450-

(b)  Travelling Expenses: $4,000-

(c)  Tonic food & medications expenses: $15,000-

43.  Receipts for medical expenses are produced and I shall award the claim amount in full.

44.  The plaintiff claims a sum of $15,000 for tonic food, of which the plaintiff can only produce one receipt dated 5 Jun 2021 for an amount of $51.  I accept that the court may award a reasonable sum for tonic food even no documentary proof has been produced: see Tang Yuet Yi, a minor by Tiu Kwai King v Leung Man Chow [2018] HKDC 985.  Having considered all the circumstances, I consider the amount of $15,000 is on the high side and I assess that a reasonable sum should be $10,000.

45.  The plaintiff claiming a travelling expenses for attending follow up medical treatments.  No documentary evidence in support of his claim has been produced nor has he provided any breakdowns in the revised statement of damages or witness statement.  Having said that, given the number of follow up treatments in the public hospital and the physiotherapy treatments, I consider that the amount of travelling expenses as claimed in the amount of $4,000 is reasonable and I would allow the claim amount in full.

Employees’ compensation received

46.  A sum of $228,311.67 has been received by plaintiff as employee’s compensation and should be deducted from the final award to be obtained by the plaintiff in this case.

Summary

47.  The damages awarded to the plaintiff are summarised below:

(a)	PSLA	$350,000
(b)	Pre-trial loss of earnings	$365,750
(c)	Loss of earning capacity	Nil
(c)	Special damages	$23,275
	Sub-total	$739,025
	Less: Employees’ compensation	($228,311.67)
	Total	$510,713.33

Interest and costs

48.  Interest on general damage for PSLA shall run at 2% per annum from the date of the service of the writ to the date of this judgment.  Interest on pre-trial loss of earnings and special damages shall run at half of the judgment rate from the date of accident to the date of judgment.  Post judgment interest of the assessed sum shall run at the judgment rate until payment in full.

49.  I make a costs order nisi that the plaintiff do have costs of the action and costs of the assessment, to be taxed if not agreed.  The costs of the plaintiff be taxed in accordance with the Legal Aid Regulations.  The order nisi shall become absolute unless an application to vary is made within 14 days from the date of this decision.