KHAN AMIR v. KWOK YUI CHOR AND ANOTHER

HCPI 422/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 422 OF 2009

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is an assessment of damages suffered by the Plaintiff on 2 June 2006 when his back and waist were hit by a machine.

Background

2.  The Plaintiff was a Pakistani.  He was educated up to the primary level.  In 1992, he came to Hong Kong as a dependant of his father.  He thereafter worked as a general laborer in factories and warehouses.

3.  In about March or April 2006, he was introduced to the Defendant in the business of recycling of metals.  He earned $260 per day and worked about 26 days each month.  Before he met the accident, he had worked for the Defendant for about 2.5 months.

4.  On the date of the accident, he was asked to dismantle a machine when the same fell onto him.

5.  The medical report by the A & E Department of Tuen Mun Hospital dated 18 July 2007 stated that:

“……

Patient was conscious but was bed bound because of back pain. His blood pressure was within normal range. There was no sign or symptom of head or neck injury. Examination of chest and abdomen were unremarkable.

His right upper back was tender and congested. His lumbar spine was very tender but no deformity was noted. There was no incontinence or lower limb numbness. Patient’s left dorsal foot was also tender and swollen.

X-rays of chest and left foot were normal. X-ray of lumbar spine showed fracture of third lumbar spine vertebral body. Patient was immobilized in spinal board. He was given intravenous morphine for pain relief.

He was admitted to Orthopaedic and Traumatology Ward for further management.

The mode of injury was compatible with blunt trauma.

……”

6.  Further, the O & T Department of Tuen Mun Hospital stated on 23 July 2007 that:

“ 1. ……

2. There was multiple fracture in the spine including 2^nd to 5^th lumbar spine associated with lower limb weakness. The motor power of the lower limb recovered after 2 days.

3. The fractures of the spine were treated conservative. He was transferred to Pok Oi Hospital for rehabilitation. He was discharged from Pok Oi Hospital on 3^rd July, 2006.

4. He received rehabilitation training after discharge.  There is residual symptom but the progress became static.  There is no plan of surgical intervention……”

7.  By the Certificate of Assessment (Form 7) issued by the Employees’ Compensation (Ordinary Assessment) Board dated 18 June 2007, it set out that:

“……

(a) Injury: BANK INJURY RESULTING IN (i) FRACTURE OF L3 AND L4; (ii) BACK STIFFNESS AND PAIN

(b) Period(s) of absence from duty necessary as a result of the injury:

	from	to
	02/06/2006	24/07/2006
	04/08/2006	01/12/2006
	06/12/2006	29/03/2007

(c)     Loss of earning capacity permanently caused by the injury: **22%”

8.  On 17 October 2008, under DCEC 87/2007, Deputy District Judge Frederick HF Chan ruled in favour of the Plaintiff and ordered for him a sum of $172,296.96 together with interest and costs.

9.  The Plaintiff commenced the present common law damages claim on 29 May 2009.  Interlocutory judgment on liability was obtained in his favor on 7 December 2009, leaving damages to be assessed.  He also relied on a further medical report dated 6 August 2009 and prepared by his own orthopaedic expert Dr. Patrick Wong. He opined that:

“ 55. ……

56. Present Condition: In this assessment held >3 years after the accident, Mr. Khan mainly complains of residual low back pain, difficulty climbing stairs and inability to carry heavy objects.

Physical examination shows essentially normal ambulatory ability, except for difficulty with squatting. The lumbar spine lordotic curve is reduced and active movement is very much reduced. There is tenderness over the lower lumbar spine but no muscle spasm. The simulation tests for non-organic symptom are largely negative. There is no objective neurological deficit found over his lower limbs. His subjective sense of reduced sensation right lower limb is probably related to non-specific radicular symptom rather than genuine loss of sensation due to neutral tissue interruption.

Radiological examination of the lumbar spine shows residual deformity of L3 and L4 vertebrae, ankylosis L2 and L3.

57. Residual disability and prognosis: Considering the Three Columns Concept for spinal stability, Mr. Khan’s fractures L3 and L4 involved all three columns. Such fractures are a lot more severe than the more common anterior wedge collapse fracture which involved only the anterior column. Although his fractures appear to have healed up reasonably solid at this stage, the residual deformity and bony fusion result in altered biomechanics in the lumbar spine. Fortunately there is no permanent neurological deficit as a result of the fractures. Overall prognosis for his spinal fractures is fair. He is expected to have moderate residual back pain in particular with heavy exertion and stressful posture. There will be much stiffness and weakness of his lumbar spine as well. Such impairment is likely to be permanent.

In addition, as the L3 burst fracture was found to have bulging posterior L3 body with indentation onto the thecal sac narrowing the space of the spinal canal, there will be significant increased risk of developing spinal stenosis at a later stage of his life probably 20 or more years later. There is no way to tell exactly the amount of increased risk at this stage. A rough estimation is around 30-40% (considering the MRI report and the increased AP length of the vertebral body on updated X-ray). Majority of patients with mild to moderate spinal stenosis can be managed conservatively. Only severe cases will require surgical intervention. It is reasonable to assume he will require orthopaedic consultation and physiotherapy about 5 times ($1,000 each including medication) and 20 sessions ($400 each) respectively in one year for 5 years for the increased risk.

58. ……

62. Return to work: From the orthopaedic perspective, Mr. Khan is NOT fit to returning to his pre-accident job as a metal work laborer. He will only be suitable to perform light to moderate manual work such as machine operator, security guard, cleaning worker, shop-keeper, etc.

……”

10.  I heard the Assessment of Damages on 9 September 2010.  Ms. Amanda Lee of Counsel represented the Plaintiff and the Defendant was absent.  I had before me sufficient evidence showing that the Defendant was duly informed of the hearing.

Evidence

11.  The Defendant has not taken any step in the present proceedings.  There is only one witness at the Assessment, i.e. the Plaintiff.  His evidence was not contradicted in any way and was supported by other documentary evidence before me, including the said Government hospital reports and report of Dr. Wong.  On balance, the Plaintiff’s evidence is accepted.

PSLA

12.  Ms. Lee submitted a number of authorities wherein the victims suffered different degrees of injuries to their spines.  I agree with her that Tang Wing Pui v Ho Pui Ling t/a Wing Hing Meat Co (Pork Dept), HCPI364/2001 (9/11/2005) is a better comparable to the present case.  By taking into account the factor of inflation as well as the risk of developing spinal stenosis, I will award the sum of $300,000 to him under the head of PSLA.

Pre-trial loss of earnings and MPF

13.  Sick leave was granted to the Plaintiff for about 10 months from 2 June 2006 to 29 March 2007.  Ms. Lee asked me to allow some 3 months’ time for the Plaintiff to try to take up a new light duty job.  I think that it is reasonable.  Ms. Lee further submitted that the new light duty job (machine operator, security guard, cleaning worker, shop keeper, etc. as described by Dr. Wong as light to moderate manual worker) should generate a monthly income of $5,000.  She submitted to me a quarterly report of average monthly salaries for cleaner in March 2010 to support.  I think however that it is a bit on the low side and will stick to the reported average figure of $5,587 for the “Cleaner (general)”.

14.  Hence, the loss of earning and MPF up to trial amounts to $139,077 [$6,760 x 13 x 1.05 + $(6,760 – 5,587) x 38 x 1.05].

Future loss of earning and MPF

15.  As to future loss of earning, I accept Ms. Wong’s calculation, apart from her suggestion of $5,000.  The Plaintiff’s loss of earning is therefore $206,917 [$(6,760 – 5,587) x 12 x 14 x 1.05].

Loss of earning capacity

16.  The Plaintiff will be disadvantaged in his future time when he might be left without income in between jobs.  A period of 12 months is not unreasonable.  I will grant him a sum of $67,044 ($5,587 x 12) under the heading of loss of earning capacity.

Special damages

17.  $5,000 is awarded to the Plaintiff for medical expenses and travelling expenses as reasonable sums in the circumstances.

Summary

18.  In the end, to sum up, the Defendant should pay the Plaintiff the followings:

Interest and costs

19.  As to interest, the Plaintiff is entitled to interest at 2% per annum from the date of Writ to the date hereof on PSLA, pre-trial loss of earning and MPF, future loss of earning and MPF as well as loss of earning capacity. Regarding special damages, interest is to be calculated at half judgment rate from 2 June 2006.

20.  There is also an order nisi that the Defendant shall pay costs of the Plaintiff regarding the Assessment of Damages, on District Court Scale, to be taxed, if not agreed.