CHUNG HOK SUNG v. LI KAM MING and Another

1995, P.I. No. 393

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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ASSESSMENT OF DAMAGES

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1. On 17 July, 1992, the Plaintiff was injured in an industrial accident when a beam on which the Plaintiff was standing suddenly collapsed and he fell to the ground. On 5 May, 1995, he brought this action against the 2 Defendants by issuing a Writ of Summons. On 26 January, 1996, an Interlocutory Judgment with damages to be assessed was entered against both Defendants for failing to give a notice of intention to defend. This is the decision on hearing the assessment of damages. Although notice of the hearing was served on both Defendants, only the 2nd Defendant ("D2") turned up at the hearing. I considered it appropriate that the hearing should proceed even though the 1st Defendant was absent.

2. Three bundles of documents were produced by the Plaintiff for use at the hearing. One of them was the "Bundle of Agreed Documents". Mr. Kwok informed me that this contains documents which were served on the Defendants in two Hearsay Notices. D2 agreed that the copy documents in the said bundle could be looked at by the Court and the originals need not be produced. The only witness who testified was the Plaintiff. He was cross-examined by D2 only very briefly. D2 did not adduce any evidence nor did he make any submissions.

3. At the beginning of the hearing, Mr. Kwok informed me that the Plaintiff is seeking the following heads of damages:-

(a) pain and suffering and loss of amenities of life;

(b) loss of earnings from the date of accident to the date of the hearing;

(c) loss of future earnings;

(d) loss of earning capacity;

(e) other miscellaneous loss.

4. Save in several aspects which I will specify hereunder, I find the evidence adduced by the Plaintiff to be truthful and reliable and I accept them to be the facts for the purpose of the assessment.

5. Personal Background of the Plaintiff

6. The Plaintiff was born in China on 13 December, 1959. He was 32 years old at the time of the accident and is now 37 years old. He came to Hong Kong in about 1980. He is married and is living with his wife and 3 children in Hong Kong.

7. Since coming to Hong Kong, the Plaintiff has been working as a general labourer in installing telephone cables. Later, he worked as a delivery worker, then an apprentice in metal decoration work and finally as a decorator in metal work. He has worked in the trade of metal decoration work for about 10 years before the accident. When the Plaintiff was working for the 1st Defendant, the Plaintiff earned a daily wage of $400 per day. On average, he worked for 26 to 30 days per month and was also paid an over-time allowance of $1,200 per month. His monthly income was therefore about $12,400 ($400 x 28 + $1,200).

8. Nature of the Injuries and Treatment

9. According to the medical report of Dr. Kwok Hau-yan of the Department of Orthopaedic Surgery of Q.M.H., the Plaintiff suffered fracture of left ulnar and radius. The report also stated that open reduction and internal fixation was performed. No other significant events were noted therein.

10. According to the medical report of Dr. David T. Lee dated 25 January, 1994 (some 1-1/2 years after the accident), the following observations were made:-

(a) snapping of the muscles over the left elbow joint at the lateral aspect due probably to the surgery. The doctor opined that this would only cause some discomfort with very mild impairment for the full mechanic merit of the muscles;

(b) development of "Tennis Elbow" which is muscle fibres attached to the bone having been pulled out;

(c) loosening of the distal radio-ulnar joint due to some damage to the ligament binding the 2 bones at the distal end. This gives rise to some pain and weakness of the left grip of the Plaintiff;

(d) a bursa over the left forearm which is a natural way of self-protection. Sometimes this would give rise to some discomfort.

The doctor concluded that the Plaintiff should be able to be a normal iron grille worker. The weak left upper limb and some discomfort over the elbow and wrist joints would affect his working efficiency (Dr. Lee opined that to be 20% loss of earning capacity).

11. The Plaintiff was medically examined by Dr. David T. Lee again and the doctor compiled another report dated 5 July, 1995 (some 1-1/2 years after the 1st report and about 3 years after the accident). In his 2nd report, Dr. Lee made the following observations:-

(a) the snapping at the elbow is still there and the discomfort arises only when there is a weather change;

(b) the tenderness which was a typical sign of "Tennis Elbow" has subsided;

(c) the subluxation of the distal radio-ulnar joint is still present. Whenever the Plaintiff moves his wrist to the extreme degrees, this would give him some pain. The weakness in the left grip has improved;

(d) the bursa over the left forearm still causes some discomfort.

Dr. Lee opined that the permanent disability has decreased. However, he concluded that the Plaintiff was not able to work as a normal iron grille worker in household decorations. Dr. Lee also maintained his assessment of the loss of earning capacity of 20% despite his earlier observations of the Plaintiff's improvements.

12. The Plaintiff testified as to his post- accident employment in para. 13 to 23 of his witness statement. He made the following remarks in relation to this aspect of the case:-

(a) although the doctor who treated him was prepared to grant him sick leave after 30 November, 1992, the Plaintiff decided to, and in fact did, start to work again in December, 1992;

(b) in December, 1992, the Plaintiff could not work on all the normal working days and could only work 7 days a month because of his injured arm. He also had to avoid work involving holding or carrying heavy objects due to his weak arm;

(c) from January, 1993 to mid-1995, the Plaintiff worked for about 15 days per month because of his injured arm;

(d) from mid-1995 to end of 1995, the Plaintiff worked for 20 days per month because the business in the trade had improved slightly;

(e) from January, 1996 onwards, the Plaintiff worked for 20 days per month.

13. I do not find this part of the Plaintiff's testimony reliable. Dr. Lee concluded in his 1st report that:

"[the Plaintiff] should be able to be a normal iron grill [sic] worker .... ".

He further recorded that:

"[the Plaintiff] has some anxiety for his left forearm conditions therefore I have done a thorough explanation to him of his upper limb conditions in order to help him overcome his anxiety.".

I bear in mind that the above remarks were made after the Plaintiff complained to Dr. Lee inter alia that:

"due to his left upper limb condition he is not able to do normal iron grill work instead he does welding only.".

Further, in Dr. Lee's 2nd report (dated 5 July, 1995), the doctor stated that the Plaintiff's physical condition had actually improved (compared to the time of the 1st report). He assessed the degree of permanent disability to have decreased from 8% to 5%. In these circumstances, I do not accept the opinion of Dr. Lee in the 2nd report that the Plaintiff "is not able to work as a normal iron grill [sic] worker in house decorations, he is only capable of doing works with lighter capacity .... ". On the other hand, I accept that for a period of about one year after the accident, the Plaintiff's left arm was still weak and there was some discomfort. However, these conditions were improving all the time during that period.

14. My findings on the Plaintiff's physical condition after the accident are as follows:-

(a) in the initial period after the injury (from July, 1992 to mid-1993), the Plaintiff had difficulties in working 28 days per month (as he used to) and could only work about 15 days per month;

(b) further, during the aforesaid period, the Plaintiff had to avoid work which involved holding or carrying heavy objects;

(c) from mid-1993 onwards, the Plaintiff should be able to return to his former work of an iron grille worker;

(d) the difficulties which the Plaintiff experienced after mid-1993 in coping with jobs involving work which he used to perform, and which he could work for about 28 days per month, were due more to psychological inhibition after the accident than to actual physical disability.

15. Pain and Suffering and Loss of Amenities

16. Mr. Kwok submitted that the injuries of the Plaintiff fall within the lower end of the "serious injury" category and that an award of $200,000 is appropriate in this case (see item 6 of the "Updated Statement of Damages of the Plaintiff" dated 14 April, 1997 ("the Updated Schedule")): see Leung On v. Chan Pui-ki [1996] 2 H.K.C. 565. Mr. Kwok submitted that the comparable to be considered is Tsang Chin-keung v. Lo Tat-kong (t/a Hung Kwong Glass Works), P.I. No. 806 of 1995. In that case, the plaintiff sustained an injury to the upper part of his left (preferred) hand from an electric saw. At the time of the assessment, he was still suffering from loss of sensation and numbness in the left hand, loss of strength in the hand, constant pain, occasional throbbing and loss of sensation in the left forearm at the site of the nerve graft. He was awarded $365,000 under this head. Having considered the whole circumstance, I find that Mr. Kwok's proposed sum is a fair and reasonable one and I make an award of $200,000 for this head of claim.

Loss of Earnings

(1) Loss of Past Earnings

17. The Plaintiff testified as to his post- accident employment in para. 13 to 23 of his witness statement as follows:-

(a) although the doctor who treated him was prepared to grant him sick leave after 30 November, 1992, the Plaintiff decided to, and in fact did, start to work again in December, 1992;

(b) in December, 1992, the Plaintiff could not work on every working day and could only work 7 days a month because of his injured arm. He also had to avoid work involving holding or carrying heavy objects due to his weak arm. Further, he was only paid $400 per day when the others were paid $430 per day;

(c) from January, 1993 to mid-1993, the Plaintiff worked for a number of sub-contractors. He could only work 13 to 15 days per month and was only paid $420 per day (compared to $460 for others);

(d) from mid-1993 to end of 1994, the Plaintiff worked for only 15 days per month because of his injured arm. He was paid $420-430 per day (compared to $460-470);

(e) from January, 1995 to mid-1995, the Plaintiff worked for about 15 days per month. He was paid $470 per day (compared to $510-520);

(f) from mid-1995 to end of 1995, the Plaintiff worked for 20 days per month because the business in the trade had improved slightly. He was paid $520 per day (compared to $570);

(g) from January, 1996 onwards, the Plaintiff worked for 20 days per month. He was paid $550 (compared to $620). His present salary is $580 per day.

18. In summary, during this period, he was working some 8 to 21 days less than before per month. Further, there was a pay difference ranging from $30 to $70 in relation to his daily wage. On this basis, the Plaintiff claims that his loss of income amounts to $521,876 for the period from the date of the accident to the date of the hearing. This was arrived at as follows:-

(a) the median monthly income from 17 Jul. 1992 to 30 Apr. 1997 is:-

$12,400 + 20,507 ($732.40 x 28: see p. 50, "Bundle of Agreed Documents") ( 2 = 16,453.50;

(b) there were 57.5 months from 17 Jul. 1992 to 30 Apr. 1997;

(c) the income which the Plaintiff should have earned was $946,076 ($16,453.50 x 57.5);

(d) however, according to the Plaintiff's testimony (see para. 17 to 22 of the Plaintiff's witness statement), the actual earnings for the same period totalled $424,200 only (see also p. 2 of the Updated Schedule);

(e) the loss is therefore $521,876 ($946,076 - 424,200).

19. As I observed earlier, I do not accept that the injury sustained by the Plaintiff prevented him from returning to his former job of a metal decoration worker, save for an initial period of about 1 year. I therefore do not accept that there should be any decrease in the daily income after that period. In this connection, I note that in para. 21 of his witness statement, the Plaintiff said

"From Mid 1995 to end of 1995 .... I could work 20 days a month as the business in my trade had improved slightly and I tried hard to cope with the work available to me.".

Later, he said

"From early 1996, I worked as a welder .... and worked 20 days a month." (see para. 22 of his witness statement).

For the above reasons, I reject the calculations advanced by the Plaintiff.

20. I find that the Plaintiff's loss of past earnings should be as set out below:-

(a) the Plaintiff was granted sick leave from 17 July, 1992 to 30 November, 1992. During this period, there was a total loss of income: $12,400 x 4-1/2 months = $55,800;

(b) the Plaintiff's median daily income for the period from July, 1992 to now is $540 ($400 + 680 (see p. 52 of the "Bundle of Agreed Documents") ( 2);

(c) there was a partial loss of earnings for the period from July, 1992 to mid-1993 because of the Plaintiff's inability to:-

(1) work 28 days per month (he could only work 15 days);

(2) return to his former job.

The partial loss for the 12-month period is $540 x (28 - 15) x 12 = $84,240;

(c) the total loss of earnings is therefore $140,040 ($55,800 + 84,240).

(2) Loss of Future Earnings

21. Mr. Kwok submitted that taking into account the multipliers adopted in Tsang Chin-keung (above) and Mak Yiu-keung v. Ho Cheung-kit [1995] 3 H.K.C. 575, a multiplier of 13 is appropriate to the Plaintiff of this case.

22. As regards the multiplicand, Mr. Kwok submitted that I should adopt the figure of $7,440. This was arrived at by deducting the current monthly earnings of a metal decoration worker ($680 x 28 = 19,040: see p. 52 of the "Bundle of Agreed Documents") by the current actual monthly earnings of the Plaintiff ($580 x 20 = 11,600: see para. 22 and 23 of the Plaintiff's witness statement).

23. The Plaintiff submitted that an award of $1,160,640 ($7,440 x 12 x 13) is to be made under this head.

24. As I observed earlier, I do not accept that there is any future loss in the monthly income of the Plaintiff. However, I accept that due to the injuries suffered by the Plaintiff, his working life may be reduced because of the earlier onset of sickness like arthritis. The Plaintiff is now 37 years old. Having observed him and having considered the medical reports, I find that he enjoys general good health. He should be able to work to about 65 years old if there were no injury to his arm. I find that his working life will be shortened by a few years, say 5 years. Taking into account the vicissitudes in life and the element of accelerated payment, I consider that a multiplier of 2 is appropriate.

25. The award under this head is therefore $456,960 which is arrived at as follows:-

(a) $680 x 28 = $19,040 per month;

(b) $19,040 x 12 = $228,480 per annum;

(c) $228,480 x 2 = $456,960.

Loss of Earning Capacity

26. Mr. Kwok submitted that I should make an award under this head if I consider that the Plaintiff suffers no future loss of earnings. It seems to me that this head of claim is different from the claim for loss of future earnings. This is to compensate the Plaintiff's loss for his handicap in the labour market, for example, he may be more easily dismissed and less likely to be re-employed if dismissed. In Fong Pak-lam v. Chan Tai, H.C.A. No. 2279 of 1984, an award of $250,000 was made taking into account the Plaintiff's age, his income before the accident, his employment experience and the nature of his injuries. In Yip Kam-hung v. Leung Sam-nga, H.C.A. No. 7337 of 1986, an award of $50,000 was made. Taking everything into consideration, I find the appropriate award under this head to be $80,000.

Other Miscellaneous Loss

27. The following expenses are supported by documentary exhibits:-

(a) receipt for payment of $129 to Queen Mary Hospital (p. 5 of the "Bundle of Agreed Documents");

(b) 41 receipts for payment of $33 each to Queen Elizabeth Hospital (pp. 24-44 of the same bundle): total sum of $1,353.

28. Although no receipt was produced, I also accept the Plaintiff's claim for the following items to be genuine and reasonable claims:-

(a) $840 being bone-setter's treatment expenses;

(d) $615 being travelling expenses for attending out-patient medical treatment (41 occasions to Q.E.H. at $15 per return trip (see para. 12(B)(ii) of the Plaintiff's witness statement)).

29. There is also a claim by the Plaintiff for $33,000 being the expenses for tonic food. However, the evidence in support of this was nothing more than the oral testimony of the Plaintiff. I do not see any special features in this case to justify such a sum, which Mr. Kwok agreed to be an unusual one, in the absence of supporting documentary evidence: see similar observations in Mak Yiu-keung v. Ho Cheung-kat [1995] H.K.C. 575, 580. Accordingly, I assess the reasonable sum for this item to be $15,000 instead. The other claims by the Plaintiff for out-of-pocket expenses are not allowed.

30. The total award under this head of claim is therefore $17,937.

Conclusion

31. The Defendants have paid $195,902.95 to the Plaintiff under the Employee's Compensation Ordinance. It is common ground that such sum is to be deducted from any award made in this action. Further, the Plaintiff admits (see para. 24 of his witness statement) that D2 also paid him $10,000.

32. The damages payable to the Plaintiff are therefore $689,034.05 (894,937 - 205,902.95) consisting of:-

(1) $200,000 being pain and suffering and loss of amenities of life;

(2) $597,000 being loss of earning;

(3) $80,000 being loss of earning capacity;

(4) $17,937 being miscellaneous expenses;

(5) deduction of $205,902.95 being payments already received.

33. There will also be interest at 5.5% per annum in respect of items (2) and (4) above from the date of accident to date of Judgment and at 2.5% per annum in respect of item (1) above from date of Writ to date of Judgment. All sums awarded will carry interest at judgment rate from date of Judgment to date of payment.

34. This is also an appropriate case for making a costs order nisi under R.S.C. Ord. 44 r. 5B(6) that the costs of the assessment be paid by the Defendants to the Plaintiff to be taxed if not agreed. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.