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HCPI 1030/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
HIGH COURT PERSONAL INJURIES ACTION NO 1030 OF 2013
_________________________
| BETWEEN |
|
|
| |
CHAN KAM CHEONG |
Plaintiff |
| |
and |
|
| |
CHAN TAK YEE (陳德儀) |
1st Defendant |
| |
陳志華(又名陳華) |
2nd Defendant |
| |
EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD |
3rd Defendant |
_________________________
| Before : Master M Wong in Court |
| Date of Hearing : 9 March 2016 |
| Date of Handing Down of Judgment : 8 April 2016 |
_________________________
ASSESSMENT OF DAMAGES
_________________________
BACKGROUND
1. The present proceedings before me are for assessment of damages. The plaintiff and the 3rd defendant have already agreed on the amount of damages. However, as the 1st and 2nd defendants have not entered appearance in any part of the proceedings and the agreement between the plaintiff and the 3rd defendant is not binding on the 1st and 2nd defendants, I still need to proceed with the assessment.
2. On 10 December 2011, the plaintiff was injured by a snapped rope whilst employed by the 2nd defendant as crane operator on a dumb lighter registered in the 1st defendant’s name. The 1st defendant is the 2nd defendant’s daughter.
3. At the time of the accident, the 2nd defendant had no employees’ compensation insurance for the plaintiff. The 2nd defendant was charged for failing to take out insurance policy for employees in breach of section 40 of the Employees’ Compensation Ordinance, Cap 282. He pleaded guilty to the offence and was fined $3,000.00 by a magistrate on 26 June 2014.
4. On 10 December 2013, the plaintiff was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have loss of earning capacity permanently caused by the injury at 24%. He was then awarded employees’ compensation at $349,149.00 with interest by the District Court on 20 October 2014.
5. On 6 June 2014, the plaintiff obtained interlocutory judgment against the 1st and 2nd defendants on liability with damages to be assessed and costs to be taxed. Subsequently, the 2nd defendant was declared bankrupt on 16 December 2015, but the plaintiff obtained leave to proceed against the 2nd defendant on 12 February 2016.
6. On 9 July 2014, the 3rd defendant was granted leave to join in the present proceedings. According to the Court of Appeal judgment in Tu Zhiqiang v Hap Sang Co (a firm) [2012] 1 HKLRD 1075, when the 3rd defendant joins in a common law action under section 25A(a) of the Employees Compensation Assistance Ordinance, Cap 365 (“ECAO”), no judgment may be entered against the 3rd defendant, even though it has taken over the defence as if it were the employer in the proceedings. However, the plaintiff may apply for relief payment from the 3rd defendant when he is unable to recover damages from the 1st and 2nd defendants after reasonable steps have been taken to recover the same from them.
7. The terms of the agreement between the plaintiff and the 3rd defendant are as follows: -
(a) Final judgment be entered against the 1st and 2nd defendants in the sum of $1,318,102.63, being damages net of employees’ compensation in the amount of $658,503.00 together with interest;
(b) The 1st and 2nd defendant do pay the plaintiff’s costs to be taxed if not agreed.
(c) No order as to costs between the plaintiff and the 3rd defendant.
(d) The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.
8. The plaintiff asks for final judgment to be entered against the 1st and 2nd defendants as per the above agreement.
EVIDENCE
9. The plaintiff gave evidence at the hearing and adopted his witness statements to testify about his injuries, treatments and current conditions. The plaintiff also called his wife, Ms Kwok Wai Yee, who adopted her witness statements to testify mainly about her loss of income in caring for the plaintiff and his medical check-ups.
10. The following medical reports are also produced without calling their makers:-
(a) Government hospital reports; and
(b) 4 joint expert reports and 1 supplemental report, namely:-
(i) Joint Orthopaedic Report by Dr Chun Siu Yeung and Dr Fu Wai Kee dated 22 April 2014;
(ii) Joint Ophthalmological Report by Dr Cheung Sek Hong and Dr Tsui Chung Wan dated 30 April 2014;
(iii) Joint Oral-Maxillofacial Report prepared by Professor Nabil Samman dated 30 April 2014; and
(iv) Joint Neurology Report by Dr Y T Kan and Dr Edmund K W Woo dated 22 December 2014 and their supplemental joint report dated 4 March 2015.
11. The 1st and 2nd defendants did not take part in the proceedings and hence there was no evidence produced to contradict the plaintiff’s case. The 3rd defendant has already agreed the quantum with the plaintiff and did not cross-examine the plaintiff or his wife. In the absence of any opposition, I accept the plaintiff’s case as mentioned below in its entirety.
THE PLAINTIFF’S CASE
Injuries and treatments
12. On 10 December 2011, the plaintiff was employed by the 2nd defendant to work on the 1st defendant’s dumb lighter. At about 15:00 hours, the rope that tethered the dumb lighter to a floating dock snapped, and one section of the broken rope recoiled and struck the plaintiff’s face with force causing injuries to the plaintiff.
13. At 16:56 hours, the plaintiff was admitted to the Accident & Emergency Unit of Princess Margaret Hospital, and then to the Intensive Care Unit for multiple fractures to cervical spine (C2 and C7), ribs, orbit (eye socket bone), malar and maxillary bones (centre of face and upper teeth area), with open facial wounds/laceration, and intracranial breeding. 96 hours of mechanical ventilation was required. He was in the Intensive Care Unit from 10 December 2011 to 16 December 2011 and he was readmitted there again on 22 December 2011.
14. The plaintiff was hospitalized from 10 December 2011 to 9 February 2012. He underwent various procedures including surgical toileting, suturing and 3 operations at 18:15 to 18:30 hours on 10 December 2011, 21:00 to 21:35 hours on 10 December 2011 and 12:24 to 17:15 hours on 22 December 2011 respectively.
15. The two operations performed on 10 December 2011 were for dealing with lacerations on the plaintiff’s face. CT scan showed multiple fractures to his skull, in his face and near his left eye. Facial wounds were treated by surgical toilet and suturing. Surgery for open reduction and internal fixation on the C2 fracture was done on 22 December 2011. Between 14 December 2011 to 17 July 2012, halo-traction and later a SOMI brace was applied to the plaintiff.
16. The operation on 10 December 2011 between 21:00 to 21:35 hours was also to deal with laceration on the plaintiff’s lip and removal of a loose tooth. Two more teeth were later found to have subluxation and were removed under local anesthesia. The plaintiff had altogether 3 teeth removed as a result of the accident.
17. As to his eye injuries, the plaintiff was treated with topical eye-drops and systemic antibiotic. Later examination revealed left traumatic mydriasis (dilated pupil) with 200 degree angle recession. Prism glasses were applied, and the plaintiff suffered from binocular diplopia (seeing double images) on all directions. Between 14 February 2012 and 17 April 2015, the plaintiff attended 15 follow-up sessions at the Eye Clinic of Caritas Medical Centre for his eye injuries.
18. The plaintiff received about 29 sessions of physiotherapy treatments at Princess Margaret Hospital. After discharged, he also received 12 sessions of physiotherapy treatments at the same hospital from 19 June 2012 to 15 January 2013.
19. The plaintiff received work rehabilitation treatments (3 sessions per week) from 11 January 2013 to 16 August 2013 (total 93 sessions) at Kwong Wah Hospital. According to the Occupational Therapy Department at Kwong Wah Hospital, the plaintiff should change job in the future given his disabilities and pre-accident job demands.
20. The plaintiff was granted 728 days sick leave from 10 December 2011 to 26 November 2013.
Disabilities
21. As pleaded in the Re-Revised Statement of Damages dated 12 June 2015, the plaintiff’s present conditions are as follows: -
(a) Restriction in cervical spinal movements and neurological impairment of the left upper limb with mild astereognosis (inability to identify object by touch), residual weakness and clumsiness of the left hand and impaired digital dexterity, paraesthesia (tingling sensation), pulling discomfort, decreased sensation (by 50% on the left thumb; by 30% on the left ring finger; and by 50% on the lateral left arm), left index/middle/ring fingers swan-neck deformity (worse at left middle finger);
(b) Range of movement of the neck significantly decreased, including loss of flexion that prevents the plaintiff from looking down to the ground when walking;
(c) Loss of ocular motility of the left eye, and diplopia (corrected by prismatic prescription with regular review for vertical misalignment, and annual examination required to inspect for onset of glaucoma); and
(d) Loss of three upper incisor teeth and hence diminished biting force (replaced by use of partial denture, to be replaced approximately every 5 years).
22. The various experts gave their opinion on the plaintiff’s whole body impairment according to their particular expertise as follows:-
|
Expert |
Whole body impairment |
|
Orthopaedics – Dr Fu |
5% |
|
Orthopaedics – Dr Chun |
3% |
|
Ophthalmology – Dr Cheung & Dr Tsui (jointly) |
6% |
|
Neurology – Dr Kan |
5% |
|
Neurology – Dr Woo |
5% |
|
Oral-Maxillofacial – Professor Samman |
1% |
23. Only Dr Kan gave an opinion as to the “impairment of the whole man”, which he assessed to be at 15%.
QUANTUM
PSLA
24. The plaintiff was almost 50 years old at the time of the accident. His injuries and treatments have already been summarized above. Generally, he still suffers from diplopia (double vision) which impairs his mobility, numbness in his left hand, difficulty in swallowing and speech, restricted neck movement, and fatigue in his back and neck.
25. I accept that the plaintiff’s injuries fall within the category of “serious injury”. The appropriate range for PSLA award should be $400,000.00 to $540,000.00.
26. The following cases are relevant:-
(i) Eye and related injuries
(a) In Kei Yiu Fuk v Wong Ching Nam, HCPI 355/2002, unreported, the plaintiff (age unknown) was assaulted and sustained serious injury to his left eye, with periorbital swelling and bruising, mild diplopia, fractured ethmoid (near nose area) plate, oedema (excessive fluid) of left eye muscle, fractured medial wall and floor of left orbit. He had two operations, was hospitalized for 4 days and sick leave was for some 267 days. The plaintiff complained of loss of eye movement, some double vision and suffered from numbness of left cheek. The diplopia was treated with special glasses. The Court awarded $300,000.00 under PSLA.
(b) In Harvey Kenneth v Welltex International Development Limited & Ors,HCPI 818/1998, unreported, a 27 years old carpenter was injured by a fallen slab of concrete. He sustained fracture of pelvis and extensive damage (compound fracture) to face bones, and deep lacerations and abrasions. Facial injuries were treated by open reduction and reconstructions using bone grafts and titanium plates, but he was readmitted for further operation to remove the plates due to infection in wounds on his face. Upon recovery, he was able to walk reasonably long distances apparently without effort, and he had residual pain on his face, headache and diplopia. Experts opined it to be of mild nature and contributed to only 2% of disability. Fracture of pelvis amounted to 3 - 8% disability. He also suffered from mild post-traumatic stress disorder which the Court believed would recover well. PSLA awarded to him was $450,000.00.
(c) In Cheng Cho Fai v Law Ka Chung, HCPI 1005/2006, unreported, the plaintiff was in a traffic accident and suffered wrist bone fracture, bilateral maxillary fracture, left multiple orbital fracture, 3 mobile teeth, sunken left eye with double vision, enophthalmos (posterior displacement of eye), diplopia and ptosis (drooping upper eye lid), and post-concussional injuries. He had 7 operations over 1 year and 3 months. He was awarded $500,000.00 for PSLA for the eye injuries alone.
(ii) Injuries to neck
(a) In Chan Tak Chi v Wong Siu Tao,HCPI 1223/1996, unreported, a 29 year old man was in a traffic accident and sustained fracture to C5 spine and the right side facet, 5cm laceration to left parietal area of the head, and multiple abrasions. He was hospitalized for 13 days, and 2.5 months later, 5 days. He wore a Halo ring and body jacket for 2.5 months, and had physiotherapy for 1-2 months. He complained of continuing pain in the neck and in the scapula region, and considerable stiffness of the neck. There is some loss of normal curvature of the spine and a slight decrease in the disc height, being a sign of early degeneration. He also suffered a frozen shoulder for about 2.5 years until the end of 1996 and was given more than 2 years' sick leave and follow up. There was a head concussion with a period of loss of consciousness, with post concussion syndrome such as headaches and dizziness requiring painkillers sometimes. There was also a feeling of distress and difficulty in temper control. Total disability was assessed at 9% with loss of earning capacity assessed at 12%. PSLA was awarded at $360,000.00.
(b) In Luk Yee Lam v Orasa Livasiri, HCPI 394/2002, unreported, the plaintiff (40 years old) was in traffic accident and sustained a disc herniation at C5/6 level, with neck and back pain, and numbness and weakness in the upper limbs and hands and his right leg, and reduced sexual desire. The impairment of whole body was 16%, and it was held to be within “serious injury” category, and $400,000.00 was awarded for PSLA.
(c) In Tsoi Wing Tak Michelle v Lau Sze Ni, HCPI 394/2002, unreported, the plaintiff (27 years old) sustained a whiplash injury and had to wear a neck brace for six months. She suffered from residual pain in upper chest, back and neck. There was no neurological or structural damage and the long term prognosis was good, and $180,000.00 was awarded for PSLA.
(iii) Loss of teeth
(a) In Wong Bik Chuen v Hua Min Tourism Automobile, DCPI 2164/ 2009, unreported, the plaintiff was passenger in a traffic accident, and pain, discomfort, bleeding, infection of teeth and gum, and affected his speech. The plaintiff sustained injury to 4 teeth, and underwent root canal treatment and brace wiring for the four affected teeth. PSLA was awarded at $130,000.00.
(b) In Pang Wai Hung v MPC Express Services Company, HCMP 1093/1995, unreported, the plaintiff (aged 22 at accident) tripped and fell and hit his face on the floor, and lost 3 teeth and chipped 2 teeth. $70,000.00 was awarded for PSLA for damage to the teeth.
(c) In So Sau Man v Leung Ming Kwok & Another, DCPI 1276/2005, unreported, the plaintiff (aged 62 at accident) was in a traffic accident and sustained laceration to upper lip, and lost 3 teeth, which were replaced. $100,000.00 was awarded for PSLA.
27. The plaintiff’s eye injuries were not as severe as Harvey Kenneth, supra or Cheng Cho Fai, supra. His neck injuries were overall less severe than Luk Yee Lam, supra, but more severe than Tsoi Wing Tak Michelle, supra, whilst comparable to Chan Tak Chi, supra. Taking into account of the plaintiff’s age, injuries, treatments, disabilities, and the above cases, I find that $400,000.00 as agreed between the plaintiff and the 3rd defendant is an appropriate award for PSLA.
Pre-trial loss of earnings
28. The plaintiff worked as a licensed crane operator for over 30 years. Since around April 2010, the 2nd defendant paid the plaintiff a monthly salary of $17,500.00. The plaintiff also had an additional income from the 2nd defendant’s other customers of about $1,000.00 per month for ad hoc work. Nevertheless, the plaintiff and the 3rd defendant agree to adopt $17,500.00 as the pre-accident salary. As the plaintiff is prepared to waive the additional income and it does not affect the 1st and 2nd defendants’ interest, I will also adopt $17,500.00 as the plaintiff’s pre-accident salary.
29. The plaintiff was issued sick leave from 10 December 2011 to 26 November 2013, ie 728 days or 23.5 months. I will allow the whole period of sick leave as it is reasonable in view of the experts’ views as follows:-
(a) Ophthalmology: experts agreed the entire sick leave period was appropriate.
(b) Orthopaedics: the plaintiff’s expert Dr Fu considered 12 to 18 months would be required for the recovery of the cervical spine injury, although the 3rd defendant’s expert Dr Chun thought 6 months was appropriate.
(c) Neurology: experts agreed 12 months to be appropriate.
30. On top of that, as agreed between the plaintiff and the 3rd defendant, an additional 1.5 months will be added as the nominal time for the plaintiff to look for work. The total period for total loss of earnings is therefore 25 months. The plaintiff’s pre-trial total loss of earning inclusive of MPF is therefore $459,375.00, calculated as follows:-
$17,500.00 x 25 months x 1.05 (MPF) = $459,375.00
31. The plaintiff also suffered pre-trial partial loss of earning as I accept the evidence that he could not return to work as crane operator and had to seek alternative lower income employment.
32. The plaintiff explained the work nature of a crane operator in details in his witness statements, which can be summarized as follows:-
(a) The crane lifts containers, or their VAN frames (frame for containers), of several tens of tonnes in weight by attaching to them with a hook usually. The operator controls the jib (the crane arm)’s movements by hands, through an accelerator and 4 joy sticks, and 4 pedals for the movements of the hook/VAN frame by feet.
(b) A crane operator works in a cab about 30 feet above ground. The cab is usually about 80 feet away from the designation of the containers. The crane operator works with other workers on ground to secure the hook or VAN frame.
(c) Containers are usually stacked (up to 4 or 5 levels) at the docks. This requires precision to avoid them collapsing in bad weather.
33. I accept that the work of a crane operator requires dexterity of the hands and limbs, good hand-eye co-ordination and good spatial perception.
34. As explained by the plaintiff, the effects of his injuries to his work as crane operator are as follows:-
(a) The numbness of the plaintiff’s left hand restricts his control of the accelerator. His left leg is weak, and pressing down on pedals in cab would cause pain to his left shoulder blade and neck, affecting precise landing of the containers.
(b) The diplopia of his left eye and stiffness in neck together impede spatial judgment 80 feet away where the container should land. This can cause accidents.
(c) Crane operation requires 4 to 5 hours of continuous work each shift, over 10 hours a day. However, the plaintiff requires stretching and movement about every 30 minutes. Working in a cab high above ground would exacerbate his injuries.
(d) To reduce diplopia, the plaintiff wears prism glasses, but it does not correct the problem completely. He has to take extra care in gauging distances, which affects walking and climbing stairs. Beyond about 10 feet, the plaintiff’s vision becomes un-focus and blurry.
35. Although most of the experts opined (from their particular expertise only) that the plaintiff would be able to resume work as crane operator, there was no substantive enquiry into the plaintiff’s work nature when the experts interviewed him.
36. However, Dr Kan in his holistic analysis opined that:-
“The impaired digital dexterity in the left hand would not allow him to return to his previous post of a crane operator who is required to work with both hands of normal power and dexterity. In view of his vocational educational background, alternative employment is highly restricted.”
37. This is supported by the report of the Occupational Therapy Department of Kwong Wah Hospital dated 5 November 2013, which assessed the plaintiff on 19 August 2013 and opined that:-
“According to his description, his job duties involved manipulating joy-sticks by both hands and pedals by feet continuously to control the crane; and climbing up and down the metal frame. The operator is required to have good eye sight and spatial perception. According to his performance, his physical ability did not match with the mentioned job demand due to his decreased left hand coordination and impaired vision.
…
… He was suggested to change job in future.”
38. The Department of Orthopaedic and Traumatology of Princess Margaret Hospital also certified that the plaintiff was “permanently unfit” for the job as crane operator due to his “spinal injury with muscle tightness and joint stiffness”.
39. Moreover, the plaintiff’s loss of earning capacity was assessed as follows: -
(a) By the Labour Department:
(i) Orthopaedics & Traumatology - 4%;
(ii) Ophthalmology - 20%.
(b) By the experts:
(i) Orthopaedics:
(1) Dr Fu - 5%
(2) Dr Chun - 3%
(ii) Ophthalmology:
(1) Dr Cheung & Dr. Tsui (jointly) - 15%
(iii) Neurology:
(1) Dr Kan - 30%
(2) Dr Woo - 10%
40. Indeed, after his conditions became stable, the plaintiff looked for alternative jobs. He participated in training programmes and obtained security personnel permit. He also looked for work for injured and disabled workers with his wife’s help. However, he was unable to secure employment.
41. From the above evidence, I have no doubt that the plaintiff can no longer operate cranes.
42. The plaintiff is about 55 years old now. He only studied up to primary one and has difficulty in writing Chinese. In the light of his current medical conditions, the plaintiff’s choice of alternative occupation is very limited. I accept that the plaintiff will have difficulty in working as security guard, which usually involves extended periods of sitting or standing. The plaintiff also walks with difficulty.
43. However, as agreed by the plaintiff and the 3rd defendant, the plaintiff should be able to take up some light duty work, albeit not as security guard. For example, he can work as general cleaner. According to the statistics of the Quarterly Report of Wage and Payroll Statistics issued by the Census and Statistics Department, the average monthly wages of a male general cleaner (on average of 8 hours/day, 26 days/month) was $6,775.00 in December 2011 and $8,377.00 in September 2015.
44. For the purpose of this assessment, the plaintiff and the 3rd defendant have agreed to adopt a median figure of $7,000.00 as salary for an assumed alternative employment. I think this is reasonable and will adopt the same.
45. The period for the pre-trial total loss of earnings is from 10 December 2011 to 9 January 2014 (25 months). The period for the pre-trial partial loss of earnings is therefore from 10 January 204 to the date of assessment, ie 9 March 2016, and it is 26 months.
46. The plaintiff’s pre-trial partial loss of earnings is therefore $286,650.00 calculated as follows:-
($17,500.00 – $7,000.00) x 26 months x 1.05 (MPF) = $286,650.00
47. Thus, the plaintiff’s total pre-trial loss of earnings is $746,025.00 (pre-trial total loss of earnings: $459,375.00 + pre-trial partial loss of earnings: $286,650.00).
Post-trial loss of earnings
48. The plaintiff and his wife have two sons, aged 17 and 13 in 2014. They are a family with low income: the plaintiff earned $17,500.00 (pleaded case was $18,500.00, but now agreed with the 3rd defendant to be at $17,500.00) and the plaintiff’s wife earned $10,000.00.
49. The plaintiff worked as crane operator for over 30 years without any accident except the present one. The plaintiff had all along been in good health, except he had emphysema and degenerative spondylosis. The job nature of a crane operator requires good eyesight and dexterity of hands for the control of cranes, but is not physically strenuous. There is no reason why the plaintiff would not have remained in his job for as long as his health allows. I find that the appropriate retirement age for the plaintiff would be at least 60 to 65. However, as agreed with the 3rd defendant, the plaintiff agrees to adopt 60 as his retirement age, and I will also adopt the same.
50. At the date of assessment on 9 March 2016, the plaintiff is 55 years old. But for the accident, the plaintiff would have continued to work for another 5 years. Adopting the applicable discount rate at - 0.5% and applying Table No. 7 of the Personal Injury Tables Hong Kong 2013, the multiplier is 5.
51. Thus, taking into account of the plaintiff’s MPF, the post-trial loss of earnings is $661,500.00, calculated as follows:-
($17,500.00 – $7,000.00) x 12 months x 5 (multiplier) x 1.05 (MPF) = $661,500.00
Loss of earning capacity
52. The plaintiff’s competitiveness is affected by his conditions caused by the accident. It is unlikely that the plaintiff will have any promotion at work and the work he could take up may not be secured or stable. He may also require time to look for jobs should change of jobs become necessary.
53. The plaintiff and the 3rd defendant agree that a sum of $70,000.00 reflecting about 4 months of the plaintiff’s pre-accident salary is a reasonable compensation for his loss of earning capacity.
54. I accept that the plaintiff has suffered loss of earning capacity as a result of the accident and the amount of $70,000.00 is a reasonable sum to be awarded to the plaintiff under this head of damages.
Pre-trial expenses
55. The plaintiff claims for various expenses incurred as a result of the accident. He was hospitalized at Princess Margaret Hospital from 10 December 2011 to 9 February 2012 and his mobility was severely affected. The hospitalization charges were $700.00, $2,800.00 and $2,600.00, totalling $6,100.00.
56. On 19 November 2012, the plaintiff paid $100.00 for dental treatment at Princess Margaret Hospital.
57. Between 6 March 2012 and 22 October 2013, the plaintiff went for 14 sessions of orthopaedics follow-up. The charge for the first session was $100.00, and all subsequent sessions were $60.00 each. So the total of the charges incurred for orthopaedics follow-up was $880.00 ($100.00 + ($60.00 x 13)).
58. Between 19 June 2012 and 15 January 2013, the plaintiff received 12 sessions of physiotherapy at Princess Margaret Hospital. The charge for the first session was $100.00, and all subsequent sessions were $60.00 each. So the total amount of charges incurred for physiotherapy was $760.00 ($100.00 + ($60.00 x 10)).
59. Between 10 December 2011 and 9 February 2012, the plaintiff was hospitalized for two months after his operation. He could not go to the bathroom by himself and had to wear diapers. Diapers per pack cost $90.00. The plaintiff used 6 packs per week, about 24 packs per month. He therefore spent about $4,320.00 ($90.00 x 48) on diapers. In addition, he used about $1,000.00 worth of wet tissues. The total amount he spent on diapers and tissues was $5,320.00 ($4,320.00 + $1,000.00).
60. The plaintiff paid a total sum of $2,470.00 ($1,170.00 on 19 November 2012 + $1,300.00 11 October 2012) to Dr Tso Wing Chung for the insertion of 3 false teeth. No travel expenses were incurred because Dr Tso’s clinic was within walking distance of the plaintiff’s home.
61. Between 14 February 2012 and 17 April 2015, the plaintiff went for 15 sessions of ophthalmology follow-up at Caritas Medical Centre. The charge for the first 12 sessions was $700.00 and the charges all the 3 subsequent sessions were $60.00 each. So the total amount of the charges incurred for ophthalmology follow-up was $880.00 ($700.00 + ($60.00 x 3)).
62. When the plaintiff was hospitalized, his wife attended to him twice a day for 2 months: once in the afternoon, and once in the evening with their two sons. They travelled by mini-bus and MTR, and each one-way trip cost $11.00 per person: The total amount of the travel expenses was $5,280.00 (wife: $2,640.00 + 2 sons: $2,640.00), calculated as follows:-
(a) Wife: $11.00 x 4 x 60 days = $2,640.00
(b) Two sons: $11.00 x 2 x 60 days x 2 persons = $2,640.00
63. Since the accident, the plaintiff suffered from numbness and pain from the back of his head to his left arm and chest, which required stretching and massage with oil and by a machine. The plaintiff bought a machine at $1,200.00. He also used 6 bottles of oil ($200.00 each). The amount incurred for the cost of massage oil was $1,200.00 ($200.00 x 6).
64. The plaintiff incurred $7,000.00 for nutrition and tonic food. He did not retain receipts for these items. As the plaintiff was hospitalized for almost 3 months and received 728 days of sick leave, I accept that this is a reasonable amount incurred.
65. For the 12 sessions of physiotherapy attended as mentioned above, the plaintiff required his wife’s company. They travelled by mini-bus and MTR, and it cost $11.00 per single trip per person, and a round trip cost $22.00 per person. The total amount incurred on the travelling for physiotherapy was $528.00 ($22.00 x 2 x 12 sessions).
66. For the 93 sessions of occupational therapy at Kwong Wah Hospital, the plaintiff travelled by bus and each round trip cost $10.00. The total amount incurred on the travelling for occupational therapy was $930.00 ($10.00 x 93).
67. For the 14 sessions of orthopaedics check-up at Princess Margaret Hospital, the plaintiff had to be accompanied by his wife. Each trip cost $10.00 per person, and a round trip for two persons cost $40.00. The total amount incurred on the travelling for orthopaedics check-up was $560.00 ($40.00 x 14 sessions).
68. For the 15 sessions of ophthalmology check-up at Caritas Medical Centre, the plaintiff had to be accompanied by his wife, each trip cost $10.00 per person, and a round trip for two persons cost $40.00. The total amount incurred on the travelling for ophthalmology check-up was $600.00 ($40.00 x 15 sessions).
69. On 15 December 2014, the plaintiff bought a pair of prismatic glasses from an optometrist following the prescription by the ophthalmologist and paid $1,200.00 for it. The plaintiff did not retain the receipt, but I accept that the amount spent is reasonable.
70. The total of all the above expenses is $35,008.00 as summarized below:-
|
Expenses |
Amount ($) |
|
i. Hospitalization charges |
6,100.00 |
|
ii. Medical fee for dental treatments |
100.00 |
|
iii. Medical fee for Orthopaedics |
880.00 |
|
iv. Physiotherapy |
760.00 |
|
v. Diapers and tissue papers |
5,320.00 |
|
vi. Dentist (Dr. Tso Wing Chung) |
2,470.00 |
|
vii. Ophthalmology follow-up |
880.00 |
|
viii. Travelling expenses for the plaintiff’s family to visit the plaintiff |
5,280.00 |
|
ix. Massage oil |
1,200.00 |
|
x. Massage machine |
1,200.00 |
|
xi. Nutrition and tonic food |
7,000.00 |
|
xii. The plaintiff and his wife’s travelling expenses for attending physiotherapy |
528.00 |
|
xiii. The plaintiff’s travelling expenses for attending occupational therapy |
930.00 |
|
xiv. The plaintiff and his wife’s travelling expenses for attending Orthopaedics check-ups |
560.00 |
|
xv. The plaintiff and his wife’s travelling expenses for attending Ophthalmology check-ups |
600.00 |
|
xvi. Prismatic prescription glasses |
1,200.00 |
|
Total: |
35,008.00 |
71. I accept that all the above expenses were occasioned by the accident and reasonably incurred by the plaintiff. In fact, the plaintiff has produced receipts for most of the expenses and even where there was no receipt, I have no reason to doubt the plaintiff’s evidence in respect of the same. I therefore allow the plaintiff’s claim for all these expenses in the total sum of $35,008.00.
Future expenses
72. The plaintiff claimed in his pleaded case that he has annual future expenses as follows: -
(a) The expert recommends a bi-annual eye check-up (accompanied by his wife) for prismatic prescription glasses, and annual check-up for glaucoma. The medical fee is $60.00 per visit. Travel expenses comprise $20.00 per return trip per person. The total is $200.00 ($60.00 + $20.00 x 2 persons) x 2 years).
(b) The plaintiff has difficulty in chewing food caused by the diminished bite force as a result of the use of partial denture. The partial denture has to be replaced by a specialist every 5 years and it will cost $20,000.00, ie an annual sum of $4,000.00.
(c) The plaintiff will attend annual orthopaedics check-up (accompanied by his wife). Medical fee will be $60.00 per visit. Travel expense will be $20.00 per return trip per person. The total is $100.00 ($60.00 + $20.00 x 2 persons).
73. However, the plaintiff has agreed with the 3rd defendant to claim a lesser amount as follows: -
(a) The plaintiff will only claim $2,800.00 for such annual expense.
(b) These expenses are required for the remainder of the plaintiff’s life. Assuming a normal life expectancy of 85 years for the plaintiff, with reference to Table No. 1 of the Personal Injury Tables Hong Kong 2013, the applicable discount is 2.5%, and so the multiplier should be 20.87 (even though this figure is for people of 54 years of age and the plaintiff is 55 years old).
(c) The total amount of future expenses is therefore $58,436.00 ($2,800.00 x 20.87).
74. As the plaintiff is willing to claim a lesser amount and I find that the agreed amount of his claim is reasonable, I will allow the sum of $58,436.00 as the plaintiff’s future expenses.
Value of care by the plaintiff’s wife
75. The plaintiff required his wife to assist him in attending various medical check-ups. Between 6 March 2012 and 22 April 2014, the plaintiff’s wife took leave for 29 days from her work to accompany the plaintiff to attend his orthopaedics check-ups and physiotherapy at Princess Margaret Hospital, as well as ophthalmology check-ups at Caritas Medical Centre. As a result, the plaintiff’s wife sustained a loss of income in the sum of $5,636.63.
76. The 3rd defendant agrees with this amount of claim. I am also of the view that the plaintiff is entitled to claim this sum for his wife’s services rendered in caring for him. Thus, the sum of $5,636.63 is allowed.
Credit
77. The plaintiff must give credit of the following 2 sums to his claim for damages:-
(a) The sum of $349,149.00 awarded in the related Employees’ Compensation Case, DCEC 2216 of 2012.
(b) The sum of $309,354.00 paid by the 2nd defendant to the plaintiff as his salary for 18 months from December 2011 to May 2013.
78. The total credit is $658,503.00 ($349,149.00 + $309,354.00).
Total amount assessed
79. I therefore assess the total amount of the plaintiff’s claim for damages at $1,318,103.00 with the breakdown as follows: -
|
Heads of claim |
Amount ($) |
|
(A) PSLA |
400,000.00 |
|
(B) Pre-trial loss of earnings & MPF |
746,025.00 |
|
(C) Post-trial loss of earnings & MPF |
661,500.00 |
|
(D) Loss of earning capacity |
70,000.00 |
|
(E) Pre-trial expenses |
35,008.00 |
|
(F) Post-trial expenses |
58,436.00 |
|
(G) Value of care by the plaintiff’s wife |
5,636.00 |
(H) LESS:
|
|
|
(i) Employees’ Compensation awarded in DCEC 2216 of 2012 |
349,149.00
|
|
(ii) Salary received from the 2nd defendant from December 2011 to May 2013 |
309,354.00 |
|
TOTAL: |
1,318,103.00
|
INTEREST
80. The plaintiff is entitled to claim interest against the 1st and 2nd defendants and I so order as follows: -
(a) PSLA – at 2% per annum from the date of service of writ until the date of judgment;
(b) Pre-trial special damages – at half of the judgment rate from the date of accident until the date of judgment.
COSTS
81. The plaintiff is also entitled to costs against the 1st and 2nd defendants (similar to those in Lau Yuk Hung v Tsang Kwong Ming [2013] 2 HKLRD 614) as follows: -
(a) The 1st and 2nd defendants do pay the plaintiff’s costs of the assessment, including the plaintiff’s costs incurred against the 3rd defendant;
(b) No order as to costs of this action as between the plaintiff and the 3rd defendant; and
(c) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.
82. I therefore grant a costs order nisi in terms of the above.
|
(Michael Wong) |
|
Master of the High Court |
Mr Jonathan Ah-weng, instructed by Patrick Mak & Tse, for the plaintiff
The 1st and 2nd defendants were not represented and did not appear
Ms Susanna Leong, instructed by Gallant Y T Ho & Co, for the 3rd defendant
|