LEE CHING POR v. BAN WU

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff was a welder in the defendant's employ and was injured on 2nd April 1987 whilst dismantling a metal funnel used in the process of concreting. In the course of this work, a piece of metal became unexpectedly disengaged, fell through the funnel and hit the plaintiff in the upper right thigh.

2. The plaintiff sued and obtained interlocutory judgment on 31st May 1990 in default of entry of appearance. The present hearing is to assess the damages pursuant to that judgment and is held in the absence of the defendant after due notice. Various supporting documents as to the plaintiff's medical condition were admitted by the court under hearsay notice filed without response.

3. The plaintiff, who was 40 at the time, was sent to Princess Margaret Hospital after the accident. He testified that he suffered considerable pain in his leg, which had been crushed by the falling metal. He said he lost consciousness almost immediately after the accident, regaining it in the hospital a couple of hours later. He said the pain was still severe and lasted about four days, necessitating pain killers.

4. Two medical reports were produced under the hearsay notice, one from Dr. C.Y. Lam, consultant in the Orthopaedic and Traumatology unit at Princess Margaret Hospital; the other from Dr. Yeung Po Sun, a private practitioner. The court can only assume that Dr. Yeung is a consultant surgeon from the initials after his name on the letterhead. Nowhere in his report does he state his precise qualification and field of specialised expertise to lend weight to the conclusions in his report.

5. The court emphasises that practitioners seeking, entirely laudably, to save costs by producing medical documents under hearsay notice should ensure that those documents are largely self-explanatory.

6. Similarly, both reports refer to the plaintiff having suffered a "subtrochanteric fracture of the right femur". If this condition holds any medico-legal implications beyond those of a simple fractured femur, they are lost on the court without explanation. It is again incumbent on practitioners to ensure that reports produced under hearsay adequately explain the more esoteric aspects of their own contents.

7. Dr. Yam's report is brief. It discloses a deformed right thigh and the fractured femur already mentioned. The latter was fixed with plates and screws on 7th April 1987, whereafter post-operative recovery was uneventful. Normal walking was resumed six months after the accident and the plates and screws were removed in April 1989 after sound union of the bone. A medical assessment board held on 25th September 1989 assessed permanent disability at 5% owing to residual pain and stiffness of the right hip. Dr. Yam's report is dated 9th February 1990.

8. Dr. Yeung's report is dated 23rd February 1990 and is rather more detailed. It discloses that the plaintiff was transferred to Pok Oi Hospital for physiotherapy after the operation, whereafter he underwent intensive physiotherapy for two years before he could walk independently.

9. It is not clear from the medical reports how long the plaintiff spent as an in-patient in Pok Oi Hospital, and the plaintiff himself could not recall. This omission is probably not significant as Dr. Yeung's indication of 2 years intensive physiotherapy should be sufficient to evaluate the plaintiff's post-operative suffering. Dr. Yeung assessed the earnings related impairment at 15%.

10. Dr. Yeung's physical examination of the plaintiff on 23rd February 1990 disclosed the following:

Physical Examination

Walking:

mild limp.

can squat fully but getting up needed assistance.

can walk on tip-toe and on heels with some difficulty.

 

Right thigh:

a 22 cms scar in the lateral side of the upper part of the thigh. 

a bony prominence was felt in the fracture site.

mild pain in the scar and the bony prominence.

hip movement was restricted in flexion of 90° (left hip flexion : 120°)

other hip movement full.

hip flexion and abduction power was weaker than the left hip.

thigh girth same as left side.

knee movement normal.

11. The doctor concludes his report with the following comments:

12. In his evidence, the plaintiff confirmed that he now walked with a limp and somewhat more slowly than previously. He said he had to use crutches both prior to the removal of the plates and for a couple of months thereafter. He said he still felt a little pain, especially in rainy weather. I accept this evidence, which is confirmed by indications to Dr. Yeung at the time of the examination.

13. The plaintiff said that he was now unable to do more than light work, and I note that this is also confirmed by Dr. Yeung's opinion. He has been working sporadically as a relief worker in the restaurant business, but has been unable to find regular employment.

14. As to recreational activities, the plaintiff said he was no longer able to swim, nor to play ball games such as football or basketball. He did not however explain why he could not swim, nor did he elaborate on the degree to which his claimed inability represented a deprivation in terms of his pre-accident habits. In the circumstances I am unable to place great weight on this aspect of his evidence, although some diminution of recreational enjoyment will logically follow.

15. In evaluating the award for pain, suffering and loss of amenities I find only rough parallels in earlier cases. The one case cited in court, Chui Po Hing v. Lo Suen (HCA 1434 of 1988) disclosed more serious injuries and partial amputation. This attracted an award of $240,000 in February 1990.

16. The Court in Chu Suen v. Lok Chi Keung (HCA 3524 of 1984) considered a roughly comparable permanent disability, with two months' in hospital followed by an undisclosed period of physiotherapy. The award was $80,000 in July 1985, which would equate to perhaps $120,000 today.

17. The injuries and disability in Yang Yi Chai v. Cheng Kam Shing (HCA 1788 of 1984) were broadly similar but less serious than the present case and also attracted an award of $80,000 in March 1985. Another case within the broad range of similarity is Chan Long Ying v. Wong Chick Chung (HCA 2110 of 1985), when $90,000 was awarded in October 1985.

18. The more recent case of Lam Kwong Ting v. Ho Yau Yuen (HCA 1582 of 1990), involved disability and hospital treatment of comparable degree, although due to lower leg injuries. The award in August 1990 was $180,000.

19. The tenuous authority to be derived from precedent in this case leads me to an award in the region of $150,000. Some of that precedent is old and the awards need updating to bring them to contemporary relevance. These earlier awards were also before the Court of Appeal itself revised the guideline figures in Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650.

20. These guidelines now establish a range of $135,000 - $180,000 for the lowest category of disablement, described as serious. The intervening 26 months have seen an inflation of around 20% in the cost of living, giving a lower figure of approximately $160,000. I place the plaintiff at the lower level of the serious category, and finding a degree of mutual support between the guidelines and the cases, I award $160,000 for pain, suffering and loss of amenities. In reaching this figure I make no allowance for the cosmetic factor of the scar on the thigh as I find it carries no implications of suffering beyond those of the injuries as a whole.

21. I turn to the claim for loss of earnings and note that the plaintiff was a welder at the time of the accident earning a claimed $250 per day for an average 26 day month. The daily rate he said was increased to $270 on 1st January 1988, and increased again on 1st January 1989 to between $290 and $300, depending on the job. 

22. The first post-accident employment was obtained on 1st August 1989, when the plaintiff said he took a job as a casual restaurant worker at $80 per day. He was on relief and only worked when there were vacancies, resulting in around 10 days a month employment. This situation is apparently continuing and the work still attracts only $80 per day.

23. The figures given by the plaintiff for his claim for loss of earnings are unsupported by documentary or other independent evidence. They are however uncontradicted, and arise from the evidence of a man who struck me as simple and straightforward in personality. I therefore accept them as a basis for his claim.

24. The plaintiff said he was given sick leave to 3rd February 1988. I take this to mean that he was medically unable to work at least until that date, which is confirmed by the Certificate of Assessment from the Employees Compensation Board. This Certificate, produced under hearsay notice, also discloses a further period from 7th to 23rd November 1988 when the plaintiff was similarly certified.

25. There are accordingly several months when the plaintiff was not working but when he apparently could have done from a purely medical standpoint. There is also the issue of his present employment and whether or not he is fully mitigating his loss.

26. The plaintiff's injuries are a grave disadvantage in his particular field of welding in construction work. I accept his inability to do heavy work and his suitability for only light work or casual employment. The plaintiff's own testimony and Dr. Yeung's report are ample ground for this conclusion.

27. Given the removal of the screws and plates as late as April 1989, and the plaintiff's inability to walk unaided for two more months, it is unsurprising that he did not work until August 1989.

28. Equally unsurprising is the plaintiff's failure to find more remunerative employment despite efforts to do so. In all the circumstances I find no failure to mitigate his loss, and accept the plaintiffs present earnings as a basis for calculating his loss both pre-trial and post-trial.

29. The particulars of loss pleaded and supported by the plaintiff's evidence will give the following pre-trial loss of earnings. I shall assume an approximate 9% increase in earnings at the commencement of 1990, in line with the previous 2 years.

30. The total pre-trial loss of earnings is accordingly the sum of the above figures amounting to $296,656, which is duly awarded.

31. Loss of future earnings will be calculated on a monthly loss of $322 x 26 less $80 x 10, giving a multiplicand of $7,572. I am urged by plaintiff's solicitor to apply a multiplier of 11, however I find a post-trial multiplier of 10 appropriate to his present age of 43. The award for loss of future earning will therefore be $7,572 x 10 x 12 = $908,640.

32. The plaintiff claims $1,653 for medical expenses from the accident and a bundle of receipts is produced in support. This sum is awarded. He also claims travelling expenses of $500, tonic food costs of $3,000, and $100 for damaged clothing. Although there are no receipts for these amounts, they are reasonable and usual in such circumstances and the sum of $3,600 is awarded.

33. The total award is therefore:

34. The award for pain, suffering and loss of amenities will carry interest at 2% per annum from writ to this judgment. The special damages award and the award for pre-trial loss of earnings will attract interest at 5% per annum from the accident to this judgment. The plaintiff is awarded costs, with his own costs to be taxed under the Legal Aid Regulations.