CHEUNG KOON WAH v. LEUNG KA HANG AND OTHERS

HCPI 76/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSON INJURIES ACTION NO. 76 OF 2002

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ASSESSMENT OF DAMAGES

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Introduction

1. By a writ issued on 26th January 2002 and the Statement of Claim filed on 22nd March 2002, the plaintiff claims against his ex-employers, the 1st, 2nd and 3rd (referred jointly as "the defendants") for damages arising from an injury to his right leg while working as a seaman on the dumb steel lighters owned and operated by the defendants.

2. On 22nd April 2002, interlocutory judgment was entered against the defendants for default of the notice of intention to defend with damages to be assessed.

3. At the hearing, the defendants did not turn up. I am satisfied that the defendants had been duly served with the Notice of Appointment of Assessment of Damages and I therefore proceed with the assessment in their absence.

Evidence

4. At the assessment, counsel for the Plaintiff called the plaintiff to give evidence. I admitted the plaintiff's witness statement dated 19th January 2001 as evidence-in-chief. Pursuant to the order of Mr. Registrar C. Chan dated 11th June 2002; I admitted the medical report of Dr. Kwok Tik Koon of Kwong Wah Hospital as agreed evidence. By the order of Master Kwan dated 23rd August 2002, the medical report of Dr. Au Ka Kau dated 3rd December 2001 was admitted by me without calling the doctor. A copy of the plaintiff's Hong Kong Identity Card, the Employment Contract, Wage receipts, two Certificates of Compensation Assessment and three receipts from Kwong Wah Hospital where the plaintiff received medical treatment were admitted into evidence by virtue of the hearsay notices issued by the plaintiff.

5. At the hearing, the plaintiff produced 10 sick leave certificates and an appointment card for the physiotherapy treatment at Kwong Wah Hospital, which were all admitted by me into evidence. After having carefully listened to the plaintiff's evidence, I accept his evidence. I also accept the evidence of Dr. Kwok and Dr. Au contained in their respective reports.

Plaintiff's injury, treatment and disabilities

6. I accept that the plaintiff was born on 30th May 1964. He was injured on 16th July 1999 when he was hit by a thick rope tied to a lighter. As a result of the accident, the plaintiff's right tibia and fibula were fractured. According to the medical report of Dr. Kwok of Kwong Wah Hospital, an emergency operation was performed on the plaintiff on admission by intramedullary nailing of his right tibia. He was hospitalized for about two weeks. He was admitted again for 1 day for wound discharge from the right leg. Thereafter the plaintiff attended follow-up treatment and was admitted into hospital for 3 days for the removal of the intramudullary nail.

7. The plaintiff said that he attended about 44 follow-up treatments and more than 44 sessions of the physiotherapy upon discharge from the hospital. The plaintiff was only able to produce a copy of the appointment card for physiotherapy treatment. After having observed him giving evidence in court, I accept his evidence. As shown in From 5, the Certificate of Compensation Assessment, which is admitted as evidence, the plaintiff was granted sick leave of a total of 305 days from the date of accident to 25th May 2000. The plaintiff also said that he was further granted sick leave from 11th December 2000 to 1st March 2001, a total of three and a half months, which is supported by the sick leave certificates produced by the plaintiff at the assessment.

8. From the comments made by Dr. Au in his report, I find that the plaintiff seems to have recovered well from the injury. Dr. Au found in his report that there was wasting of the plaintiff's right calf muscle. Dr. Au further confirmed that the plaintiff's impairment would be permanent and that he suffered a 14 percent loss of the earning capacity and 7 percent impairment of the body. Dr. Au is of the opinion which I accept that the plaintiff is not fit to return to his previous job as a sailor and that he is fit for job of light or sedentary in nature such as office assistant, receptionist, messenger, cashier, operator, security guard, carpark attendant etc.

9. During the assessment, the plaintiff told me that he suffered from piercing pain on the right leg when the weather changed. There are scares in the right leg and he feels embarrassed about them. He also had difficulty of climbing stairs. He could only squat for a short while and he could not kneel. I accept his evidence.

10. The plaintiff said that in July 2000 after the first period of the sick leave expired; he only worked for 4 days as a causal sailor earning a total sum of $2,000 as he was sacked after 4 days. He further told me that he was unable to obtain a job as a sailor as he now walked with a limb and he was not offered a job when an employer learnt of his condition.

11. The plaintiff is now 38 and he told me he is illiterate. He said he would do anything if he were offered a job. However up till the date of the assessment, he was still unable to find a job.

12. After having observed the plaintiff and considered very carefully his evidence, I accept his evidence.

Pain, suffering and loss of amenities

13. Having found the relevant facts above, I now turn to the different heads of damages claimed by the plaintiff. In the Revised Statement of Damages, the plaintiff claims a sum of $400,000 under this head. Counsel for the plaintiff, Mr. Cheung, relied on a number of authorities, including Poon Chung Fai v Leung Ka Shing and Anr [2001] 31 HKLJ 169, HCPI 1050 of 1999, judgment of Beeson J, dated 8 December 2000; Kong Lai Mei vYu Wing Fong & Anr. [2001] HKEC 629, HCPI No. 381 of 2000, the judgment of Master Yuen dated 1 June 2000; Ho Sik Tung v Choi Wan Hing and Anr [2001] HKEC 221, HCPI No. 408 of 1999, the judgment of Master Wong dated 12 September 2000.

14. In considering the appropriate level of award to be made under this head, I have taken into account the plaintiff's injuries both physical and mental including the embarrassment he felt about the numerous scars on his right leg. After having considered the facts and authorities cited before me, I find that the plaintiff's injuries are comparatively less serious than those plaintiffs in the cases cited. I consider that the present case falls below the bottom end of the serious injury category according to the case of Lee Ting Lam v Leung Kam Ming [1980] KHLR 657, the appropriate award I make is therefore in the sum of $350,000.

Pre-Trial Loss of Earnings

15. The plaintiff claims total loss of earnings before trial. I accept the plaintiff's evidence that since the accident he has not been able to find an employer who is prepared to employ him. I accept that the plaintiff has suffered total pre-loss of earnings although theoretically the plaintiff is capable of doing light sedentary work.

16. In the Revised Statement of Damages, the plaintiff claims a total sum of $21,000 per month as his pre-accident monthly income. However as the plaintiff was injured seven days after he commenced his employment with the defendants and despite of the plaintiff's evidence that he earned a daily wage of $700, the plaintiff counsel was prepared to rely on the employment contract, which confirmed a monthly salary of $16,000. I accept this as the correct figure and the pre-trial loss, that is, from 16th July 1999 onward until the date of assessment, a total of 40 months, is in the sum of $640,000 (i.e. $16,000 multiplies 40). The plaintiff worked for 4 days and earned a sum of $2,000 before the date of the assessment hearing. This sum is deducted from the total sum of $640,000, giving an award of $638,000 under this head.

Post-Trial loss of earnings

17. As to this head of claim, counsel for the plaintiff urges this court to adopt a multiplicand of $10,000. During the assessment hearing, I expressed the concern that the plaintiff had submitted no evidence in supporting this figure. Counsel's submission on this figure is on the basis that the plaintiff but for the accident would have been able to continue with his pre-accident job as a sailor earning a monthly sum of $16,000 on the date of the assessment. As advised by Dr. Au, the plaintiff is only fit to do light sedentary work, Mr. Cheung therefore suggested that it was reasonable to assume that there was a loss of $10,000 for the plaintiff's future earnings.

18. I have great difficulty of accepting the figure suggested by counsel as there is a complete lack of evidence on the current wage level in respect of both of a sailor as well as an alternative employment suitable to the plaintiff, both of which evidence is required for determining the appropriate multiplicand. After the assessment hearing, counsel submitted to me two quarterly reports of the Wages and Payroll Statistics of March 2002 and June 2002 published by the Census and Statistics Department in connection with the average monthly salaries of various jobs suitable for the plaintiff in different industries, such as cashier, clerk, public area cleaner, service worker and general worker. Despite of my disapproval of the way these documents were submitted to me, I am however prepared to accept them, as there is no injustice caused to the defendants. In calculating the average monthly salary of the employment likely to be obtained by the plaintiff, I adopt the wages listed for the various jobs suitable for the plaintiff for the eight industries set out in the June 2002 Statistics and obtain a figure of $7,000. I adopt this figure as the plaintiff's post-trial monthly earning.

19. The next problem I am facing however is also the absence of evidence to support counsel's submission of a figure of $16,000 as the plaintiff's pre-accident income on the date of assessment. In the absence of evidence, I am not persuaded to accept this submission in light of the economic downturn of the Hong Kong economy. It is widely accepted that Hong Kong in the recent 2 or 3 years has suffered deflation instead of inflation, which Hong Kong has enjoyed for many years. In recognizing this downward economic trend, I take the view that an appropriate downward revision should be applied to the plaintiff's pre-accident salary. In the circumstances, doing the best I can, I find that there should be a reduction of 10 percent in the plaintiff's pre-accident income on the date of assessment. This gives the sum of $14,400. The appropriate multiplicand I shall adopt is $7,400 ($14,400 minuses $7,000).

20. As for the multiplier, Mr. Cheung submits that a multiplier of 13 be adopted. The plaintiff is now 38 and having considered the authorities submitted by Mr. Cheung set out above, I consider a multiplier of 13 is appropriate. The future loss of earnings therefore is of $ 7,400 x 13 x 12, which amounts to a total sum of $1,154,400.

Loss of Earning Capacity

21. The plaintiff also claims loss of earning capacity for reason of his disabilities. The law in respect of this head of claim is an award of damages for handicap in the labour market. The plaintiff claims a sum of $84,000 based on the case of Li Wan Choi v Choi Wan Hing and Anr. [2000] HKEC1198CA. In light of the plaintiff's disabilities, which, I accept, would be permanent, an award under this head to compensate him for any future financial loss is appropriate. The sum of $84,000 is reasonable and I award the plaintiff this sum under this head.

Special Damages

22. The plaintiff claims $3,492 for medical expenses, $6,390 for traveling expenses incurred by himself and his family members visiting him while he was in the hospital, $3,500 for tonic food and $50 for damaged clothing. The medical expenses are largely borne out by the evidence and as to the remaining items, they do not seem to be exaggerated, I accept them being reasonable expenses. I therefore award a total sum of $13,432.

Conclusion

23. In conclusion, the award that I make in favour of the plaintiff is as follows:

(1) pain, suffering, loss of amenities of life, $350,000;

(2) pre-trial loss of earnings,638,000;

(3) future loss of earnings, $1,154,400;

(4) loss of earning capacity, $84,000;

(5) special damages,13,432.

24. There will be interest of 2 percent from the date of writ (26th January 2002) to the date of judgment, that is 30th November 2002 on the sum of $350,000 for general damages in respect of pain, suffering and loss of amenity of life. The total amount of interest is $5979 (that is $350,000 multiplies 2 percent divided by 12, multiplies 10 and 1/4).

25. As for the interest on the pre-trial losses consisting of pre-trial loss of earnings and special damages in the total sum of $651,432, there should be deducted in the calculation a sum of $160,853.33 representing the ECC payment from the date of the receipt of the payment by the plaintiff. The plaintiff had received almost the entire amount of the payment but was not able to tell me the date of the receipt. Looking at the date of the certificate of assessment in respect of the plaintiff's EEC payment, which is 12th July 2000, I therefore adopt the date of receipt by the plaintiff as 31st July 2000. Interest before the receipt of the ECC payment on the sum of $651,432 will be at half of the judgment rate, that is 4.0625 percent from the date of accident to 31st July 2000 (that is from 16th July 1999 to 31st July 2000, a total of 12 and a half months), which amounts to total sum of $27,567. ($651,432 multiplies 4.0625 percent divided by 12, multiplies 12 and half months). The total sum inclusive of interest from the date of accident to date of the receipt of the EEC payment is in the sum of $678,999.

26. The ECC payment is to be deducted from the total sum of $678,999, which amounts to a remaining balance of $518,148.67. Interest on the sum of $518,148.67 will be calculated at the same rate from 1st August 2000 to the date of judgment (that is from 1st August 2000 to 30th November 2002, a total of 30 months), which amounts to a total sum of $52,624 (that is $518,148.67 multiplies 4.0625 percent divided by 12, multiplies 30). The total award for special damages inclusive of interest is therefore in the total sum of $570,773.

27. The total damages awarded in respect of the plaintiff's claim are in the total sum of $2,165,152.

Order

28. Judgment in the sum of $2,165,152 with interest on this judgment sum at judgment rate from the date of judgment until payment.

29. Costs order nisi that the costs of this assessment be to the plaintiff, to be taxed if not agreed, with certificate for counsel. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.