CHAN KUI v. LEE FAI t/a FAI KEE TIMBER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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JUDGMENT

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          This action arose out of the injuries sustained by the Plaintiff in an industrial accident which occurred on 16 March, 1992. At the time, the Plaintiff was working as a wood sawing worker of the Defendant. On 23 July, 1996, interlocutory judgment was entered against the Defendant in default of acknowledgement of service/notice of intention to defend. This is the Judgment in relation to the assessment of damages suffered by the Plaintiff as a result of the said accident.

2. The following evidence was adduced in the course of the hearing:-

No evidence was adduced by the Defence. At one stage, Mr. Ting applied for an adjournment for the purposes of (a) preparing a witness statement of the Defendant's son, and (b) making discovery of documents. As I understood from Mr. Ting, the only evidence which the Defence wished to elicit is the current wages of the Defendant's employees. Mr. Barlow opposed the adjournment on the ground that the proposed evidence will not materially assist the assessment. Mr. Barlow said that the current level of income could be ascertained by the Court either adopting the rate of payroll inflation set out in Leung On v. Chan Pui-ki [1996] 2 H.K.C. 565, or by the Court taking judicial notice of the approximate rate of wage increase of manual workers in Hong Kong. I agreed with Mr. Barlow and refused the application.

3. At the time of the accident, the Plaintiff was 57 years old and is now nearly 61 years old, having been born in Hong Kong in February, 1936. He received primary education and has been working since he was about 13 years of age: see the re-examination of the Plaintiff. The Plaintiff started to work for the Defendant since about March, 1988 until the time of the accident. The Plaintiff is married. His wife works as a casual worker in a congee shop and his son and daughters are respectively about 17, 21 and 23 years old (see the Occupation Therapy Evaluation Report, p. 154 of the Bundle).

4. The injuries sustained by the Plaintiff were set out in the following:-

5. In summary, the Plaintiff suffered a minor head injury and fractures to his left tibia and right fifth metatarsal bone base. No further comments were made by the doctors in relation to the head injury. The fracture at the left tibia was compound fracture (fracture with a wound). Operations were undertaken at the left knee region of the Plaintiff. The first operation involved debridement, close reduction and intramedullary nailing. The second operation involved soleal flap and skin grafting. Later, because of persistent left knee pain, the intramedullary nail was removed.

6. When Dr. Chiang examined the Plaintiff on 10 May, 1994, he observed the following:-

Dr. Chiang opined that there was a 2-3% impairment of the lower limb and a 10% impairment of the whole person.

7. When the Plaintiff was examined by Mrs. Alice Tsang on 22 and 23 March, 1995, she found the following:-

Mrs. Tsang opined that the Plaintiff suffered from a 7% impairment of the whole person and that he would be fit to be employed in work such as a watchman, light cleaning worker, carpark attendant, cashier and shop-keeper.

8. Dr. Chiang re-assessed the Plaintiff again on 27 September, 1996. The Plaintiff told the doctor that there was some improvement in the pain of the left lower leg. Left anterior knee pain was noted at a later stage of the period between May, 1994 and September, 1996. The other complaints were:-

The reductions in range of movement and muscle power of the left knee and left ankle have slightly improved. He found the impairment to the whole person to be 8%.

9. The effect of the injuries on the Plaintiff has been set out in the aforesaid medical reports as well as the Occupational Therapy Evaluation Report of Mrs. Alice Tsang dated 22 May, 1995 (item 26 of the Bundle). The Plaintiff also testified as to how the injuries affected and still affect him. The effect of the Plaintiff's injuries on him generally will be dealt with under the heading "Pain and Suffering and Loss of Amenities". I shall deal with the effect of his injuries on his employment, if any, under the present heading.

10. The Plaintiff testified that despite his diligence in trying to find alternative employment, he has not been able to do so. I accept his testimony that it is quite impossible for him to engage in the same kind of work as what he used to do before his injury. However, I do not find his testimony to be entirely reliable in relation to his unfitness to do other kinds of work, or that there was no other kind of suitable work available. Over this issue, I rather prefer the conclusions made by Mrs. Tsang in her report. Having come to this view, I consider that the Plaintiff only suffered (still suffers and will suffer) a partial loss of income.

11. The following items of loss are agreed by the parties:-

12. Mr. Barlow agreed that the Plaintiff had been paid $154,514.94 by way of employees' compensation payment and that this sum should be deducted from whatever may be the sum awarded in this action. At the beginning of the hearing, the parties also agreed that the Plaintiff's monthly income at the time of the accident was $6,890. In view of this, I was a bit surprised that questions were asked of the Plaintiff in cross-examination as to what he was paid around that time. I can only assume that such questions were intended to relate to the issue of loss of future earnings.

13. Mr. Barlow submitted that the injuries suffered by the Plaintiff should fall within the "Serious Injury" category as set out in Lee Ting-lam v. Leung Kam-ming [1980] H.K.L.R. 657. I bear in mind that in Lee Ting-lam, the Court of Appeal reminded the Courts that there is no rigid distinction among the 4 categories of injuries and the 4 categories are merely guidelines: see p. 659 thereof. The "Serious Injury" category has been said to be:

".... those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain. The general range is from $60,000 to $80,000." (at p. 659 thereof).

14. With respect to Mr. Barlow, I do not consider that the injuries suffered by the Plaintiff, fortunately for him and for the Defendant, fall within that category, but rather fall slightly below that. If the injuries suffered had fallen within this category, the present day range (after adjustment for inflation of 10% per annum) would have been from about $420,000 to about $570,000: compare Chan Pui-ki at pp. 574-576. On the other hand, Mr. Ting submitted that the loss should be $200,000. Having considered the injuries suffered, the subsequent treatment which was undertaken, and the present day physical condition of the Plaintiff as described in the various reports, I consider that an award of $350,000 is appropriate.

15. The Plaintiff remained in the medical institute until the beginning of May, 1992: see para. 26 of his witness statement. Thus, from 16 March, 1992 to April, 1992 inclusive, he suffered a total loss of income. As stated earlier, I consider that the Plaintiff only suffered a partial loss of income after he became able to work again, that is, from May, 1992 to today. However, I notice that Mr. Ting in his final submissions informed me that he agreed with the quantum set out in para. 3(d)(i) and (ii) of the "Revised Schedule of Damages", namely, the loss of income from May, 1992 to April, 1993 and from May, 1993 to April, 1994 should be $82,680 and $89,268 respectively. Such being the case, I do not propose to make any adjustment to the amount of loss prior to May, 1994 save as set out below.

16. Furthermore, there is evidence that the Plaintiff has been gainfully employed during the following:-

These will have to be deducted from the award made under this head (unless the amount he actually received is less than the amount payable for a reasonably suitable job at the relevant time).

17. The Defence has not adduced any evidence as to what a watchman, cleaning worker or shop-keeper would have earned monthly during the period from May, 1994 to today. However, in assessing the partial loss of earnings in this action, I consider that I can have regard to the following:-

Taking all these into account, I consider that in May, 1994, the Plaintiff ought reasonably to be able to find a suitable job with a monthly income of no less than $4,500.

18. The annual payroll inflation rate referred to in Chan Pui-ki was 12.5%: see pp. 589-590 thereof. In the "Revised Schedule of Damages", the Plaintiff adopted an annual rate of 10%. I do not consider such rate unreasonable and will therefore adopt it as the basis for calculation.

19. The amount of loss under this head is therefore as follows:-

20. As regards the multiplier which should be adopted, Mr. Barlow submitted that it should be 7 whereas Mr. Ting submitted that it should be 4. The "Multiplier Table for Non-fatal cases (up to July 1996)" submitted by the Defence shows that for males aged from 56 to 61, multipliers ranging from 6 to 3 have been used. When the Plaintiff was cross-examined, he said that he intended to work up to at least 65 years old. I agree with Mr. Barlow's submissions that for someone like the Plaintiff, who has persistently been gainfully employed since young age and who used to enjoy good health, it is likely that he will be able to work to that age and I therefore accept this part of the Plaintiff's testimony. In other words; the Plaintiff would be able to work for at least 4 to 5 years more. On the other hand, I ought to take into account the vicissitudes in life and the fact that any award under this head carries an element of accelerated income: see Chan Pui-ki, at pp. 580-581. Bearing these in mind, I consider the appropriate multiplier to be 4.

21. The amount of loss under this head is therefore as follows:-

22. Mr. Barlow fairly conceded that if I consider the Plaintiff suffers a total loss of future earning in not being able to work at all, no award should be made under this head. However, as I stated earlier, I do not find that such is the case and the Plaintiff only suffers a partial loss of income. It is therefore appropriate to consider whether the Plaintiff suffers any, and if so, what extent of, loss of earning capacity.

23. A "loss of earning capacity" is sometimes called a "handicap in the labour market". It aims to compensate for a person's higher chance of being out of work by reason of his injuries, for example, by being more likely to be dismissed and less likely to be re-employed. Mr. Barlow invited me to make an award of $100,000 under this head. On the other hand, Mr. Ting submitted that the loss should be $20,000 to $30,000. Bearing in mind the Plaintiff's old age and the limited range of work he would in any event be able to do because of his age, ability and qualifications (which are unrelated to the injuries), I do not consider it appropriate that the award should be as much. A sum of $60,000 would be the appropriate award.

24. The Plaintiff's claim under this head is $11,000. Having considered his testimony, especially the cross-examination, I find that the appropriate award should be $3,000 as suggested by Mr. Ting.

25. The total award is therefore:-

The total is $927,718.

26. The deduction to be made is the amount employees' compensation payment which was $154,514.94. The final award is $773,203.06.

27. Interest rates on the above sums are agreed to by the parties as follows:-

28. The parties agree that a costs order nisi can be made pursuant to R.S.C. Ord. 42 r. 5B(6).

29. There is no reason being advanced as to why the usual rule that costs are to follow the event should not apply in this case. In view of my earlier conclusion, I make a costs order nisi that the costs of the assessment of damages are to be paid by the Defendant to the Plaintiff, to be taxed if not agreed. Since the Plaintiff is legally aided, I also order that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.