LAU TUEN PING v. LAW WAI KWON t/a SUN CHIU KWONG (SHEUNG SHUI) CONSTRUCTION MATERIAL AND OTHERS

HCPI 1221/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1221 OF 2000

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1. Interlocutory judgment on liability was entered against the first defendant on 21 October 2000 as the first defendant did not file any notice of intention to defend. This assessment of damages is conducted pursuant to the interlocutory judgment. As the first defendant had disappeared, the second defendant constituted under the Employees Compensation Assistance Ordinance Cap. 365, joined in under the order dated 17 March 2003 to contest the quantum claimed by the plaintiff.

2. This was an industrial accident that took place on 21 November 1998. The plaintiff was at that time an employee of the first defendant operating a pneumatic drill demolishing a wall at the construction site at 3rd floor, 62 Fuk Hi Street, Wang Chau, Yuen Long, New Territories. In the course of the demolition work, the wall suddenly collapsed and hit the plaintiff. As a result, the plaintiff suffered injuries.

3. Counsel acting for the plaintiff and second defendant agree that the following issues are in dispute:

1. pre-assessment loss of earnings and MPF benefits;

2. future loss of earnings and MPF benefits;

3. loss of earning capacity and

4. pain and suffering and loss of amenities.

Plaintiff's Personal Background

4. The plaintiff was born on 8th March 1958. He was 40 at the time of the accident, now 45 years old. He is married with 2 children. He came to Hong Kong from the mainland in 1979. He was a farmer in the mainland with primary 2 education. After coming to Hong Kong, he worked as a general labourer for 5 or 6 years. Then he worked as a demolition worker in construction sites. He started working for the first defendant since 1994 as a demolition worker whose duty was to operate the power pneumatic drill. He is unable to resume his work as a pneumatic drill operator after the accident.

Plaintiff's Injuries and Treatment

5. By consent, all bundles of documents including the medical reports without calling the doctors are admitted as evidence. According to the medical report of Tun Mun Hospital dated 6 July 1999, the plaintiff was admitted on 21 November 1998 and was discharged on 17 December 1998. The diagnoses and the treatments were as follows:

* Fracture of shaft of femur, closed (left) - treated with operation for open reduction with internal fixation;

* Superficial laceration of foot (right) - treated with debridement and suturing;

* Superficial laceration of knee, leg, ankle (right knee) - treated with debridement;

* 10 cm transverse laceration over right foot dorsum - treated with debridement and suturing;

* 1 cm laceration over the lateral aspect of right knee - treated with debridement and suturing;

* Sternoclavicular joint subluxation - treated conservatively and left to heal by itself.

The plaintiff was hospitalised at the Tun Mun Hospital from 21 November 1998 to 17 December 1998. He was discharged with elbow crutches as walking aids, which were replaced by walking stick some 6 months after discharge. Weight-bearing on left leg started on 22 March 1999, about 4 months after the accident. After discharge from hospital, the plaintiff had received various follow-up out-patient orthopaedic and physiotherapy treatment. All these are not disputed by Miss Loh, counsel acting for the second defendant.

Credibility of Witnesses and Findings of Fact

6. Only the plaintiff himself has given evidence in the hearing. He was cross-examined by Miss Loh. Throughout the proceedings, I find that the plaintiff is, in general, an honest and truthful witness. He has demonstrated that he only received very limited education and he has difficulty in understanding questions that required analysis or logical presentation of the facts. He may not be able to grasp the gist of the question at times. However, he did not shun the questions or beat around the bush in answering questions put by defence counsel. Having said that, I have not been ignorant of the fact that he might have exaggerated on some aspects of his evidence, which I shall deal with in the following analysis. Despite that, I find that as a whole, he is still a reliable and truthful witness.

Pre-Assessment Loss of Earnings & MPF Benefits

7. The disputes between the plaintiff and the second defendant under this item are:

(1) the plaintiff's average monthly wage before the accident;

(2) whether there should be an increase of 5% in the wage over the period from the date of the accident to date;

(3) the time that the plaintiff could have worked after the accident; and

(4) the kind of work that the plaintiff could do after the accident.

The plaintiff's average monthly wage before the accident

8. Mr. Lee for the plaintiff relies on the second defendant's wages records as from 10 November 1997 to 21 November 1998 (averaged $17,921/month), the tax return filed by the first defendant (the employer) for the year 1998/1999 and the special payments or compensation paid by first defendant to the plaintiff (averaged $18431/month). The averaged monthly wage was $18,400. Whilst Miss Loh does not dispute the calculation of the above average wages, she argues that in Form 2 filed by the first defendant to the Commissioner for Labour for the assessment of employee's compensation, the plaintiff's monthly wage should be $15,000, consisting of basic salary $9,000, food allowance $1,000, overtime payment $5,000 and food allowance $1,000. The plaintiff gave evidence that his wage was not comprised of basic salary and food allowance. The way he described his wage was calculated was not easy to follow. It seemed to be arbitrarily decided by the first defendant according to the work being done and whether the plaintiff worked diligently. However, there is no evidence to rebut what he said. Also the wage records do not support the scheme of basic salary. As the information in Form 2 is apparently inconsistent with the contemporaneous wage records and the tax return, Miss Loh in her final submission submits that the Plaintiff's average pre-accident monthly wage should be $16,461, which is the median of $15,000 (Form 2) and $17,921 (wage records). I consider that the contemporaneous wage records are more reliable. Since the special payments or compensation are contained in the contemporaneous records, I decide to adopt the median of the wage records and the tax return for 1998/1999 and the special compensation as the Plaintiff's pre-accident average monthly wage. The amount is $17,291 + $18,431 / 2 = $17,861.

9. I accept that there should be an increase of 5% in wage since the accident up to date as this is supported by the average daily wages of workers engaged in government building and construction projects (page 460-461). The median should be ($17,861+$17,861x105%)/2=$18,307.5

The time the plaintiff should be able to work after the accident

10. Mr. Lee relies upon the sick leave of the plaintiff as from 21 November 1998 to 16 August 2000 and the fact that the plaintiff was unable to get a job despite several attempts before this hearing. The plaintiff gave evidence that he had tried to get a job as a casual worker in fast food restaurants, vegetables stalls or fruit stalls. He was turned down because of his injuries. Mr. Lee also submits that this was also the result of the adverse market condition for the past few years and the low education level of the plaintiff. The plaintiff therefore claims full loss of earnings from the date of the accident to the date of trial.

11. Miss Loh disputes that full loss of earnings should only be allowed up untill no later than June 2000 when the plaintiff was examined by Dr. Chu. She relies upon the opinion of Dr. Lau in a letter 29 November 2001 (page 30). Dr. Lau opined "The earliest time that his injuries could be stabilized so that he could resume more sedentary work (casual construction or decoration worker) should be one and half years". She concedes 19.3 months for this period (21.11.1998 - 30.6.2000). I allow the Plaintiff total loss of earnings from the date of accident to 16 August 2000 (20.8 months). The reasons for my decision are these. First, the Plaintiff was given sick leave up till 16 August 2000. Second, he did attempt to find a job himself during the period before trial. Third, the fact that he could not find a job was due to his low education and the adverse market condition as submitted by Mr. Lee has no casual link with the accident.

The kind of work the plaintiff is able to resume after the accident

12. Both parties agree that he cannot resume his former work as a demolition worker. Mr. Lee submits that the Plaintiff, given his own personal education background and residual disabilities, he may be able to find employment requiring only sedentary non-manual or light manual work with no more than $5,000 to $6,000 per month. Mr. Lee relies upon Dr. Chu's medical report (page 16), which also says that the Plaintiff may not able to manage such work as caretaker or car park shroff because good general mobility is often required.

13. Miss Loh relies upon Dr. Lau's medical report (page 28) and argues that the Plaintiff has recovered quite well and with the mild residual disability of his limbs, he may work as a casual construction worker or decoration worker. She further submits that Dr. Lau's medical report should be preferred to Dr. Chu's because Dr. Lau's examination of the plaintiff was a year later than that of Dr. Chu. Dr. Chu said in his report (page 12) that on the day of assessment, the plaintiff complained of:

1. dejected and general lack of stamina;

2. restricted general mobility;

3. weakness and easy tiredness over the left lower limb;

4. stretching pain over the left thigh which was aggravated by prolonged walking;

5. episodic attack of numbness over the right foot;

6. feeling of weakness and instability over the right knee;

7. mild pain over the sternum on coughing and deep breathing; and

8. weakness and stiffness over the left shoulder.

In Dr. Lau's report (page 24) the plaintiff's complaints were:

1. mild pain at the left sterno-calvicular joint associated with lifting up heavier objects and elevation of the shoulder;

2. numbness of the ulanr 2 fingers of the left hand radiating to the arm;

3. left thigh pain with walking for more than 15 minutes;

4. pain over lateral aspect of right knee;

5. numbness over the right ankle extending to the dorsum of the foot.

It can be seen that the plaintiff's condition has improved when he saw Dr. Lau. She also criticises Dr. Chu's medical report for coming to conclusions inconsistent with the medical findings. Having considered her submissions, I have to say that her criticism cannot be said to be groundless. To quote a prominent example, Dr. Chu in his report (page 9-11) made the following physical examination findings of the plaintiff:

Left lower limb

No wasting of the thigh muscle was observed.

The knee joint was in good alignment. No significant varus (deviated inward) or valgus (deviated outward) mal-alignment.

No shortening of the left lower limb was noted.

Palpitation

No local tenderness elicited.

Movement and power

Left hip and left knee movements were full.

Overall left hip power was estimated as 4+/5 MRC scale (mild to moderate weakness)

Left knee flexion and extension power was estimated as 4/5 MRC scale (moderate weakness)

Right lower limb

Movement and power

Right hip, right knee and right ankle movements were full.

Right foot and toe movements were also normal.

No power weakness was detected over the right lower limb.

Chest and shoulders:

Movement and power

About 10 degree abduction lag and 5 degree external rotation movement lag were observed over the left shoulder. Flexion and extension movements were full.

Overall left shoulder power was estimated as 4+/5 MRC scale (mild to moderate weakness).

The right shoulder was normal.

14. On page 13 of his report, Dr. Chu found that the most severe of those injuries was fracture of the left femur shaft. When he examined the plaintiff on 14 June 2000, the left thigh was grossly normal and the left femoral fracture was clinically healed. Radiological examination revealed that the fracture was in good alignment and bony union was satisfactory. But he concluded, "The main impairment was incomplete functional recover. There was significant weakness of the left hip and left knee. Stretching pain over the left thigh was also experienced. The lower limb weakness and reduced manual tolerance has mandated that a walking stick to be employed on walking for long (fifteen minutes or so) distances. On the whole, mobility and work capacity were significantly impeded".

15. I have to say that Dr. Chu's conclusion seems lacking explanation in view of his medical findings of the plaintiff's left limb as described above.

16. On the other hand, I do not accept Miss Loh's recommendation to accept Dr. Lau's report without reservation. Dr. Lau did not say that the complaints of the plaintiff were feigned or exaggerated. He also found that the plaintiff walked slowly and with a mild limp and he could not squat fully (see page 25). He also found the plaintiff suffer subluxation of the left sterno-clavicular joint in the accident. This accounted for the swelling of the joint as well as the mild pain associated with lifting up of heavier objects or elevation of the left upper limb and he expected the condition of the plaintiff's left shoulder to be permanent. However, in his conclusion, he said that the plaintiff might work as a casual construction worker or decoration worker (page 28). I cannot accept this recommendation without reservation.

17. In the end, I find that the plaintiff is unable to resume work as a construction casual worker as it may require heavy manual work in the construction site. Neither will he be able to resume work as a decorator because he lacks such skill and that the work will require lifting of heavy materials and ladders and raising of his arms, which will cause mild pain to him. I also do not accept that he could work as a building attendant or caretaker as it requires him to walk the stairs for inspection of the property from time to time. Given the injuries and the education level of the plaintiff, I find that he may be able to take up a job as a casual worker in a Chinese restaurant. In his evidence, he said that he had attempted to find a job as a casual worker in the restaurant. According to the Quarterly Report of Wage and Payroll Statistics, the monthly wage of a casual worker in a Chinese restaurant in 2000 was $6,703 (page 234) and $6,738 in 2002 (page 420). The average monthly wage is ($6,703+$6,738) / 2=$6,720.5

18. Accordingly, the pre-assessment loss of earnings and MPF are as follows:

Earnings

($18,307.5 x 20.8)+{($18,307.5 - $6,703)x(52.5 - 20.8)} = $748,658.7

MPF benefits

($18,307.5 - $6,703) x 28.1 x 5% = $16,304.3

Loss of Future Earnings

19. The plaintiff is 45. Mr. Lee submits that the plaintiff will work until 65. Therefore the mutiplier should be 11. He relies upon the following cases:

Ng Kwok Wing v. Lau Ping Kwan [1996] 4 HKC 667

Choi Mei Ho v. Chung Chiu Ying [1997] 2 HKC 706

Lam Chi Fat v. So Kam Sui [1995] HKLRD 529

Ma Kam Yeung v. Fu Hay Kin [1998] HKLRD J22

Yan Fai Wah v. Kong Seung Chuen [1999] HKLRD 387

20. Miss Loh submits that since the plaintiff was a demolition worker, he should not be able to work until the age of 65. She submits that the appropriate should be 8 to 9 and no more than 10. She relies on the following cases:

Lee Loy (1980) 10 HKLJ 233

Yu Kok Wing (2001) 2 HKLRD 306

Thelma G Chavez (2001) HKLJ Part 160

Yan Fai Wah (1999) HKLJ Part 3 493

Luk Chi Yin (1998) HKLRD 337

Yu Heung Yuk (1999) HKLRD 386

21. Although the plaintiff gives evidence that he is a diligent worker and he likes working and that he has seen demolition worker over 60 years of age, I accept the submission of Miss Loh that it is unusual for a demolition worker to work until 65. Having considered the cases, I agree that the appropriate multiplier should be 9. Accordingly, the future loss of earning and MPF benefits are calculated as followed:

($18,307.5 - $6,720.5) x 12 x 9 x 105% = $1,313,965.8

Loss of Earning Capacity

22. The plaintiff claims for $120,000 for loss of earning capacity. Miss Loh argues that the appropriate quantum should be 6-9 months of loss of residual earnings, and in any event no more than $80,000. Having considered the relevant cases, I decide that the appropriate sum for loss of earning capacity should be $100,000.

Pain and Suffering and Loss of Amenities

23. It is common ground that the injury suffered by the plaintiff should be below the "serious injury" category. Mr. Lee proposes that the appropriate award for this item should be $350,000 to $400,000, relying on the following cases:

Chan Chi Shing v. Tsang Fook Metal Engineering CACV No. 238 of 1999

Yuk Kok Wing v. Lee Tim Loi [2003] 3 HKC 314

Ho Wing Chu v. Chan Kwok Keung HCA No. A1267 of 1987, HKPI Service, Vol. 2 para. V [3304], [1986] HKLY 423

Lee Ching Por v. Ban Wu HCA No. A1524 of 1990 HKPI Service, Vol. 2, para. V [3354], [1990] HKLY 519

24. Relying on Dr. Lau's medical report and the following cases, Miss Loh argues that the appropriate amount should be $320,000:

Wong Lai Kai (HCPI No. 962 of 1996) (1999) HKLRD E11

Chan Kui (HCPI No.126 of 1995) (1997) HKLRD 444

Lee Kwong Tong (HCPI No.1383 of 1996) (1997) HKLRD 444

Lee Ching Por (HCA No.A1524 of 1990) (1990) HKLY 519

Wai Ching Fong (2000) HKLRD 370

Liu Siu Ping [1980] HKLRD 565

Li Leung [1981] HKLR 188

Cheung Tsz Ming (HCA No. 5173 of 1980) (1982) HKLJ 390

Yang Yi Chai (HCA No. 1788 of 1984)

To Sai Wo (HCA No., A1149 of 1987)

25. Having considered the medical reports of Dr. Chu and Dr. Lau respectively and the above cases, I consider that the appropriate award should be $360,00.

Agreed Items of Special Damage

26. The following items are agreed:

Medical expenses	$4,444
Travelling expenses	$2,314
Tonic food	$3,000
Damaged clothing	$150
Subtotal	$9,908

Deduction

27. It is agreed that the plaintiff has received employee's compensation for the sum of $575,077.57, which should be deducted from the awards.

28. The account for the awards is as follows:

(1)	Agreed items of special damages	$9,908
(2)	Pre-trial loss of earnings	$748,658.7
(3)	Pre-trial loss of MPF benefits	$16304.3
(4)	Future loss of earnings and MPF benefits	$1,313,965.8
(5)	Loss of earning capacity	$100,000
(6)	PSLA	$360,000
Deduction (employee's compensation)		($575,077.57)
Total		$1,973,759.2

Interest

29. There will be interest at half judgment rate in respect of items (1), (2) and (3) above from the date of the accident to the date of judgment and at 2% per annum in respect of item (6) above from the date of the Writ to the date of judgment. All sums awarded will carry interest at judgment rate from the date of judgment to the date of payment.

Second defendant's liability

30. Miss Loh submits that the liability should be against the first defendant only. The plaintiff should be awarded damages assessed against the first defendant and shall have costs of the whole action against the first defendant accordingly. But there will be no order as to costs between the plaintiff and the second defendant in respect of the whole action including the costs of the adjourned hearing on 25 November 2002. She further submits that the Board's liability only arises in the event that the plaintiff does not succeed in executing the judgment against the first defendant and then makes an application to the Board for payment of the judgment sum in accordance with the Employees' Compensation Assistance Ordinance, Cap. 365 (the Ordinance). Section 20B(3) of the Ordinance provides that the compensation does not include any interest payable on any amount and any costs. On the other hand, Mr. Lee submits that the second defendant should be fully liable as the first defendant. He relies on his interpretation of section 25A (4)(a) of the Ordinance, which provides that it applies to any claim against an employer for compensation where no policy of insurance is known to be in force at the time of the accident and the Board may apply to the court "to join in the proceedings as a party in accordance with Order 15, rule 6 of the Rules of the High Court ..., to take over the defence as if it were the employer in the proceedings...". Mr. Lee further submits that since the Board has applied to join in as the second defendant under the above section, the second defendant should be liable as if it were the employer.

31. Having considered the submissions from Mr. Lee and Miss Loh, I decide that the second defendant should not be liable for the awards, simply because the Board only joined in as the second defendant in the proceedings of the assessment of damages. Interlocutory judgment has been entered against the first defendant. The Board did not seek to join in or to defend the liability of the first defendant. For the same reason, the Board should not be liable for the costs up to the stage of the interlocutory judgment being entered against the first defendant. Costs has already been ordered in the interlocutory judgment against the first defendant. I have no power to disturb the interlocutory judgment. For the assessment of damages proceedings, the question of costs is within my discretion under section 52A of the High Court Ordinance. Under this section, I have full power to determine by whom and to what extent the costs are to be paid. Since the Board has joined in as the second defendant, the Board should be liable for the costs in these proceedings.

32. Finally, Mr. Lee submits that because of the second defendant's decision to contest the quantum for damages, there has been a delay in the plaintiff obtaining judgment of the liquidated sum. The second defendant should therefore be liable for the interest thereby incurred on the judgment sum. Mr. Lee has not pointed out to me under what authority that I have the power to award interest against the second defendant. I accept Miss Loh's submission that interest was part of the interlocutory judgment, therefore I have no jurisdiction to award interest on the judgment sum against the second defendant.

33. I make the order that the awards together with interest be against first defendant only.

Costs

34. I make an order nisi that the second defendant shall pay the Plaintiff the costs of this assessment of damages including costs on 25 November 2002 and any other costs reserved, to be taxed if not agreed. The Plaintiff's costs is to be taxed in accordance with the Legal Aid Regulations. The costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.

35. Finally, I would like to take this opportunity of expressing my thanks to counsel for the plaintiff and the second defendant for their assistance in the assessment of the damages and their interesting arguments.