WONG NAI HUNG v. GREAT JIM ENGINEERING EQUIPMENT CO LTD AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 15th April 1982 and in the course of his employment with the 1st defendant company the plaintiff was struck by a concrete balancing block falling from a crane during an unloading operation.

2. The writ was issued on 25th February 1985 and interlocutory judgment was obtained against the 1st defendant on 8th October 1985 in default of notice to defend. The action had meanwhile been discontinued against the 2nd defendant on 22nd play 1985.

3. Notice of this hearing and notice under 0. 38 R.S.C. were duly served on 1st defendant, however the hearing proceeded in the absence of representation on its behalf.

4. The following documents were admitted by the court in terms of the hearsay notice :

5. The medical reports of Dr. Kwok and Mr. Wedderburn reveal serious injuries to plaintiff's right hand and left leg, including a shortening of the left leg; Dr. Kwok also mentioned bruising to his left forearm. Mr. Wedderburn's report of 2nd April 1985 summarises the injuries and treatment and I quote it ;

" He thought he had a fracture of the ring finger but I do not think so. X-ray is normal but the Extensor tendon, that is, the tendon on the back of the finger which straightens the finger was divided and it was treated by sutures, and immobilised to take pressure off the repaired tendon. Despite repair of the tendon he h&s loss of movement of the ring finger. The metacarpal phalangeal joint where the fingers join the hand and movement should be 90° is reduced to 40° A At the proximal interphalangeal joint the finger cannot be straightened, the deficit is 20° and he only has 10° of voluntary movement although the examiner can bend it to a position of 60°. Normal movement at this joint should be from 0, the straight position, through 100°. At the terminal joint where movement should be 70° it is reduced to 20°. He has an 80% impairment of the ring finger which is a 3% impairment of the Wholeman.

        His most serious injury was a fracture of the left Femur, bone of the thigh which was obliquely fractured, occupying some Lt inches of bone, at the lowest level which is 4 inches above the knee joint. There was a large laceration and this was treated by surgical toilet and dressings for four months before the wound healed. During this time he was treated by traction, the weight being applied to a pin being driven through the Tibia, 3 inches below the knee. There was delayed union so after the wound had healed on 17.8.82, the fracture was treated with a Jowett Plate and bone graft, a piece of bone being taken from the crest of the left pelvis where there is a neat 3 inch scar. The operation was on 7.8.82 Land he was in the Queen Elizabeth end Kowloon Hospitals for six months. Six weeks after discharge he was re-admitted for a Quadriceps Plasty because of lack of bending of the knee joint. This operation is to lengthen the tendon from the Quadriceps muscle on the front of the thigh which includes the Patella or kneecap in an effort to increase flexion of the knee. He was then sent to the Rehabilitation Centre at Kwun Tong for five months, discharged on 10.8.83 and his sick leave ended in November and he had a Medical Board at the end of 1983 and was awarded 21%.

        He has been told that the bone plate and screws will be removed after 3-4 years from the time of the Medical Board.

        On examination he has 7/8 inch Shortening of the left leg. There is 4 10 inch operation scar on the outer side of the thigh reaching knee level and a 3 inch laceration scar behind the operation scar which is situated just above the knee joint. This scar is slightly sunken. He has marked wasting of the left thigh muscles. The circumference of the thigh is 2 inches less than the right. He has full movement of the leg at the hip but he cannot straighten the knee. The deficit is 7° and he can only bend it from -7 to a position of 80°. He also has some weakness of the cruciate ligaments in the knee. These are the ligaments to prevent the lower leg moving forward and backwards at the knee joint. The examiner bends the knee, in his case to 80°, and then attempts to move the lower leg forward and backward at the knee joint and in his case there is some abnormal movement. The other knee joint ligaments are intact with normal function.

        He also has a loss of 15° of dorsi flexion of the left foot. This is due to the long period of immobility and weakness of the leg.

        X-ray of the leg shows that there was an oblique fracture in the lower half of the bone which is soundly united. The Jowett Plate is on the outside of the Femur and is a transverse prong which penetrates the breadth of the Femur and is only ½ inch from the knee joint and part of his inability to straighten the knee is probably due to the proximity of the metal to the joint. The upper part of the plate is secured by 5 bone screws. In a man of his age metal should be removed because of various hazards and in my opinion there is no need to keep the metal in any longer. It has no function. The fracture is soundly united. He should go back soon and ask for removal of the plate and screws. This will be done by incising through the present scar. He will be in hospital for 4-5 days, have the sutures removed after 10 days and be fit to return to work after three weeks.

        When his sick leave finished he had some difficulty finding work but has now been working for a considerable period in a machinery factory which makes spare parts. He uses a machine and hand tools. He may be standing or sitting during his work. Some of the items are very small such as screws or bolts but other items may be large pieces of machinery. He cannot squat so the other workers tend to help him with the more difficult jobs where heavy weights have to be lifted or awkward positions maintained. Because he cannot do all the forms of work his pay is less than the other workers, he gets $80 a day, whereas the others earn $100 or more.

        This man underwent a long period of treatment. He is cheerful and he has done extremely well to find work which cannot be easy for him. I would judge that he is a good employee because other workers and presumably the management make allowances for his inability to perform all the types of work required. If the metal is removed knee joint movement will not improve, adhesion and scar tissue are now too formed to allow any improvement. From loss of knee joint movement he has a 28% impairment of the leg and 6% from loss of one ankle joint movement : a 34% impairment of the leg is a 14% impairment of the Wholeman : in addition he has a 3% impairment from the ring finger, making a total of 17%.

        As he was engaged in manual labour I consider that the disability as related to loss of earning capacity is higher than the impairment and would consider he has a loss of 25? earning capacity. He is earning less than other workers and it is unlikely that he will be promoted. Also, if there is a shortage of work he is likely to be dismissed before workers who are completely fit. He would find it difficult to find new employment.

        X-ray of the knee itself is normal but on X-ray only bone and not soft tissue are indicated.'

6. From this report I particularly bear in mind, firstly the permanent disability of the finger and leg assessed totally at 17% of the wholeman; secondly the relation of that figure to a 25% imrairment as to earning capacity due to plaintiff's manual occupation; thirdly the 7/8 inch shortening of the left leg; fourthly the need for further surgery to remove the plate and screws in his leg, and finally the comments that he has done well to find work at all in the circumstances.

7. The reports disclose that plaintiff was treated initially for 6 months after the accident in Queen Elizabeth and Kowloon Hospitals, during which time his left leg was operated upon in Queen Elizabeth Hospital on 7th August 1982. Thereafter he was re- admitted for a further operation in Queen Elizabeth Hospital on 29th March 1983 to improve flexibility of the knee joint. He was then sent to the Rehabilitation Centre for five months for what Dr. Kwok describes as "vigorous physiotherapy'". He spent a total of 11 months in hospital.

8. The plaintiff was discharged from the Rehabilitation Centre on 10th August 1983 and continued his physiotherapy as an out-patient. He was assessed by a medical board on 30th November 19833 and a disability of 21% was recommended.

9. I do not propose to reconcile the respective disability figures of the medical board and Mr. Wedderburn. Such assessments are necessarily inexact and Mr. Wedderburn had the benefit of a further 18 months for the plaintiff's condition to clarify. I accept an earnings related disability of 25% to be appropriate.

10. The plaintiff gave evidence and demonstrated the lack of flexion in both his left knee and left ankle. He also said he was unable to squat and this made it particularly difficult to lift weights from the ground. Further difficulties were encountered both walking for any length of time and carrying heavy objects for more than 4 to 5 minutes.

11. The court was shown the principal accident scar on plaintiff's thigh, which was around 10 inches long up the thigh, 2 to 3 inches across and gouged to a depth of about a ½ inch.

12. The plaintiff also, testified as to injuries to the ring finger of his right (preferred) hand with substantial loss of movement. This co-incided with the medical evidence, however the affected finger has subsequently been amputated due to a further accident which plaintiff claimed to be due to his lack of dexterity after the first accident.

13. Counsel conceded that this second accident and its consequences were too remote for consideration at this assessment. Paradoxically therefore I shall be assessing plaintiff's damages for loss of movement in his now absent right ring finger on the pre-amputation circumstances.

14. I accept the medical evidence and the plaintiff's own testimony as the basis for the assessment of damages for pain, suffering and loss of amenities. The question of loss of earnings I shall return to later.

15. Miss Mok for the plaintiff drew my attention to a number of helpful authorities. She submitted that the minimum award for plaintiff's injuries would be in the range $100,000.00 - $120,000.00.

16. In Chu Suen v. Lok Chi Keung, HCA 3524 of 1984, an award of $80,000.00 followed injuries to the leg of a 58-year-old man which were very similar to the plaintiff's injuries, though less serious. The wholeman impairment was only 7% and the injuries did not include the hand as in the instant case. Furthermore, hospital vas for only 2 months, the injured man was 30 years older, and the award was 16 months ago. Bearing all these factors in mind I conclude that the present plaintiff would merit a 50 - 60% increase over that. award.

17. In Liang Yuh Jen v. Kwan Kam Lin, HCA 8233 of 1983, a 48-year-old woman suffered slight shortening of both legs due to a traffic accident; there were no hand injuries as in the present case and wholeman impairment was assessed at 15%. The award of $00,000.00 in August 1984 would give around $125,000.00 today escalated for inflation at the accepted level of 100% per year.

18. I place the plaintiff's injuries in the middle of the range for serious injury suggested in Lee Ting Lam's case. Escalated for inflation over the intervening 6½ years, this would also give a figure of around $130,000.00. In the event I am satisfied that this is the correct level of award and the plaintiff is accordingly awarded 36130,000.00 for pain suffering and loss of amenities.

19. The plaintiff testified that his monthly average earnings for 1981, including average overtime and $11.00 a day for meals and transport, came to $4,069.30. I accept this figure for the initial calculation of his post-accident loss of earnings and apply a % annual escalation for likely wage increases to reach the base-figure for each successive year until this hearing.

20. From the date of the accident until his sick-leave expired, plaintiff's employer paid him $1,600.00 a month, representing 2/3 of his basic salary of 552,400.00. Deducting this figure from $4,069.30 gives a monthly loss of $2,469.30 for 18.5 months. The plaintiff is accordingly awarded $45,682.05 as loss of earnings for the period from the accident to 31st October 1983.

21. For exactly two months from 1st November to the end of December 1983 the plaintiff resumed employment with defendant company. He was paid only his basic wage of 52,400.00 a month plus $11.00 a day for a 26-day month, giving a total of $2,686.00 for each month. Applying per year for the 1½ years since plaintiff's last full-time, employment we have a notional monthly wage of $4,374.50. From this figure is deducted his actual wages to give a monthly loss of $1,688.50. He is therefore awarded $3,377.00 for this period.

22. Plaintiff testified that he was dismissed by defendant company at the end of December as they found he could not perform the work required. He was then unemployed until 26th February 1984. For this period of two months he has suffered a total loss of earnings; that is 2 x $4,374.30 = X8,749.00. That sum is awarded.

23. On 27th February plaintiff commenced work with Builders Federal (H.K.) Ltd. He remained there for 3.5 months until 16th June 1984, earning a total of $10,967.00. This figure is supported by a letter from the employer. The plaintiff's average monthly loss in this employment is therefore his final pre-accident earning figure escalated by 10% for the intervening two years ($4,476.23) less the monthly average of $10,967.00 ¯ 3.5 = $3,133.42. This gives an award of $1,342.81 ℅ 3.5 or $4,699.83.

24. The plaintiff said he left this job in June as they transferred him to working at high levels, which he found to be dangerous with the reduced grip strength in his right hand. I find this an acceptable reason for the change and for the ensuing reduction of income.

25. Until 21st October 1984 plaintiff did casual work welding at ground level and earning an average $1,500.00 a month. His average monthly loss was therefore $4,476.23 less $1,500.00, that is $2,976.23. The award for the period of 4.1 months is accordingly $12,202.54.

26. From 22nd October 1984 until 29th June 1985 plaintiff was employed by Fong's National Engineering Co. Ltd. His total earnings as evidenced by a letter from the employer were $29,985.10 for the 8.3 month period, giving a monthly average of $3,612.66. Deducting this figure from his notional monthly potential escalated by a further 2.5%, the plaintiff's monthly loss for this period is $4,588.13 less $.3,612.66, or $975.47. This gives a loss for the 8.3 month period of $8,096.45, which sum is awarded.

27. For the period 30th dune to 15th September 1985 the plaintiff was unable to find work at all. He said he tried and I accept this. He is accordingly entitled to a total loss of earnings for this period based on a further escalation by 2.5% of his notional monthly earnings. The plaintiff is therefore awarded $4,702.83 ℅ 2.5 months, or $11,757.08 for this period.

28. From 16th September 1985 to date of hearing the plaintiff has been doing odd-jobs with monthly average earnings of 42,600.00. I accept his evidence to that effect and apply that figure to his notional monthly earnings to calculate his loss for this 13.8 month period. I again apply a factor of 5 increase in the notional figure to cover the further lapse of more than a year. The monthly loss is therefore $4,937.97 less $2,600.00, that is $2,337.97; giving a loss for the whole period of $32,264.00. This figure is awarded.

29. The total pre-trial loss of earnings may be summarised as :

30. Loss of future earnings will be calculated by applying the appropriate multiplier to the figure for monthly loss of earnings at the date of hearing. The plaintiff is only 27 and Miss Mok has suggested a multiplier of 16. For a post-trial multiplier I find that rather high and award a multiplier of 14. The award for loss of future earnings is therefore 14 ℅ 12 ℅ $2,337.97 = $392,778.96.

31. There remains the question of special damages, the principal item of which is the surgeon's fee for removal of the plate and screws in the plaintiff's leg. Mr. Wedderburn's letter of 28th January 1986, produced under hearsay notice, assesses this figure at $9,000.00. The plaintiff has testified as to his intention to have this done, and I accordingly award that figure.

32. The remaining special damages may be itemised shortly :-

33. The plaintiff has given evidence supporting these various amounts and the total of $7,966.00 is duly awarded.

Summary

34. There will be interest on the damages for pain suffering and loss of amenities at 2% from date of writ to judgment and on the special damages at 5% from the date of the accident to date of judgment. There will be no interest on the awards for lost earnings, either past or future; in the former case the periodic escalation of the notional monthly figure covers any loss which otherwise would justify interest.

35. Costs are awarded to the plaintiff with a certificate for counsel. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

36. Finally, I understand that an employees' compensation award of $85,520.00 has been made but remains unsatisfied. In the circumstances I do not direct that credit be given for that amount but I record that the total amount recoverable under both awards shall not exceed the amount of this award.