TONG KAI WING v. CHENG WAI LUN ALAN AND ANOTHER

HCPI 582/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 582 OF 2005

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JUDGMENT

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1. The plaintiff was unloading sand bags into a sand spraying container when he fell from a platform of pallets and injured his head and left shoulder.  He was 58 at the time of the accident, namely 11 December 2002.

2. Liability for the accident was conceded by the defendants in the course of the plaintiff’s evidence-in-chief.  This decision therefore is only concerned with the quantum of damages.

Injuries

3. He fell from a height of about four feetonto the ground.  His occipital bone sustained a fracture and he suffered post-concussion syndrome.  I accept that, at the time, there was momentary loss of consciousness.  He regained his composure however and was able to speak to a foreman who came to the scene.

4. He also injured his left shoulder.  As a result he suffered contusions and some decrease in neck movement and tenderness in the upper spine.  There was no neurological deficit.

5. He was discharged from hospital, after three days of tests, on 14 December.  He continued to suffer from headache and dizziness and had some post-traumatic amnesia.  He attended physiotherapy sessions for his shoulder and spinal injuries.

6. The difficulty in this case concerns the fact that one year after the accident the plaintiff was diagnosed with a “frozen shoulder”.  This is an unpleasant condition in which even the slightest movement of the arm and shoulder causes extreme pain.  The plaintiff would certainly be unfit to work with such a condition.

7. Such a condition is not uncommon in men of the plaintiff’s age.  It is often caused by ordinary wear and tear in the shoulder joint leading to inflammation.  It can also be sparked off by an injury.  The debate in this case is whether the injury to his shoulder in December 2002 caused his frozen shoulder in January 2004.  The frozen shoulder rendered him unable to work for about another year (although the evidence as to when he recovered from the frozen shoulder is unsatisfactory).  The time it takes for a frozen shoulder to recover varies from case to case.

8. The medical evidence on the issue has all been in writing.  I have considered the joint report of two orthopaedic experts, Dr David Cheung and Dr Johnson Lam, which was prepared for the purposes of the litigation.  Their report does not help the plaintiff.  The plaintiff’s counsel, Mr Charles T.C. Wong, has urged me to consider all the hospital records and the reports of his own doctors as well.  I have done so but find myself unable to view the joint report any differently as a result.

9. The plaintiff underwent physiotherapy for the frozen shoulder from June 2004 (18 months after the accident) to December 2004 (two years after the accident).  Dr Cheng’s opinion was that there was little relationship between the accident and the frozen shoulder.  Dr Lam agreed that it was “probably another issue”.

10. In my judgment no causal link has been shown between the accident and the frozen shoulder.  The symptoms started over a year later, there is no documentary evidence in hospital records to link them together and the condition itself is one that typically starts quite insidiously.

11. In these circumstances I consider the appropriate award for pain, suffering loss and amenity to be $200,000.  This is slightly more generous than the figure suggested by the defendants’ counsel, Mr Patrick Lim but significantly lower than the figure proposed by Mr Wong.

Sick leave

12. The length of sick leave will therefore be calculated without reference to the frozen shoulder.  Dr Yu Yuk Ling (the neurological expert) stated that nine months was appropriate for his post-concussional syndrome and post-traumatic amnesia.  He has been granted sick leave certificates for a much longer period but that has been because of his shoulder.  I think that it is reasonable to allow 12 months off work altogether, given that he was still experiencing some shoulder pain before he started to complain about the symptoms which led to the frozen shoulder diagnosis.

Pre-accident earnings and post-accident loss

13. The plaintiff had never been work-shy.  He had done the same type of work that he was doing at the time of the accident for 20 years.  However, the work was basically casual in nature.  In the year prior to the accident he had worked reasonably steadily for the same employer (not the defendants).  His MPF contributions statement showed that the employer had paid $3,581 in MPF payments over 10 months.  This indicates a monthly average income of about $7,200.  I accept that he in fact earned a little more than this because of an arrangement he had with his employer.  The details of this arrangement were vague and the plaintiff’s evidence on the matter dubious, however I think the average earnings would have been about $9,000 a month.

14. On 1 December 2002 he started work for the defendants.  He says he was promised 26 days work a month at $600 a day on a particular project which was expected to last three to five months.  I do not believe that he was promised work for 26 days a month.  There was cogent evidence that the sand spraying business was moving to China at this time and has continued to do so ever since.  There was no credible evidence that the plaintiff had ever worked 26 days a month prior to the accident.  I think it is reasonable to assume that he might have had 20 days a month for a few months but after that it was more likely to have been less rather than more.  The figure of $600 a day was not in dispute.

15. I award post-accident loss of income during the 12 months’ sick leave as follows :

$600 a day for 20 days a month for five months followed by seven months at his pre-accident average of $9,000 a month.

($60,000 + $63,000 = $123,000 + 5% MPF = $129,150.)

16. The plaintiff has not been in gainful employment since the accident.  This was partly due to the PCS and other injuries that he suffered, partly due to the frozen shoulder, and partly due to the availability of work.  In my judgment, even if he had not suffered a frozen shoulder, he would not have been able to lift heavy sand bags again (of about 50 kilogrammes each) because of residual injuries sustained in the accident.

17. In my judgment at the time he could have re-entered the labour market he was at a disadvantage due, in part, to the injuries he had sustained.  His opportunity of getting work paid at the same rate that he was earning at the time of the accident had been reduced.

18. Had he not had a frozen shoulder he could have and should have become re-employed in lesser paid work.  Assessing what the level of pay would have been is inevitably speculative.  In my judgment a reasonable level of income would have been $6,000 a month.  This was $3,000 a month less than his normal wage of $9,000 ($12,000 a month should be ignored because it was a one-off short term job.  It would be unrealistic to treat $12,000 as the constant in equations for calculation of loss of income).  On the basis that, but for the frozen shoulder, he would have been fit for lesser work from January 2004, his loss is $3,000 a month from that date up to trial, say 46 months.  This amounts to $138,000 plus 5% MPF, $144,900.

Future Loss

19. He is now 62.  A multiplier of 2 produce a future loss of $72,000 plus 5%, $75,600.  In all these circumstances I do not think that any additional award for loss of future earning capacity is merited.

Special damages

20. The claim for tonic food ($17,360) is excessive.  I award $982 for medical expenses, $2,243 for travelling expenses and $6,000 for tonic food.

Total

PSLA	$200,000
Loss of income during reasonable sick leave (including MPF)	$129,150
Loss of income thereafter up to trial (including MPF)	$144,900
Future loss of income (including MPF)	$75,600
Special damages	$9,225
Less : advance payments	$558,875
	$8,300
	$550,575

21. There will be judgment for the plaintiff in the sum of $550,575 together with interest at rates to be agreed between the parties.  There will be a costs order nisiin the plaintiff’s favour to be taxed, if not agreed, in accordance with Legal Aid Regulations.