YAU SAU MAN v. GOOD TAKE KITCHEN CO LTD

DCPI 2247/2016

[2021] HKDC 19

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2247 OF 2016

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ASSESSMENT OF DAMAGES

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1.  The plaintiff met with an accident at work on 24 November 2013. She was then employed by the 1^st defendant and was working as a kitchen helper in its Chinese restaurant known as Good Take Kitchen situated in Yau Ma Tei.

2.  On 1 November 2016, the plaintiff commenced this action against the 1^st defendant claiming against it damages for personal injury.

3.  On 25 January 2018 and upon the default of the 1^st defendant to file the Defence, interlocutory judgment on liability was entered against it with damages to be assessed.  The 1^st defendant thus far has been absent in the proceedings.

4.  On 9 May 2018, the Employees Compensation Assistance Fund Board (“the Fund Board”) was given leave to join in the action as the 2^nd defendant in respect of the assessment of damages.

5.  This was the assessment of damages.

6.  The 1^st defendant did not appear to contest.  I was satisfied that it had due notice of today’s hearing and that the hearing bundles and the plaintiff’s opening submissions had been duly served to it.  I therefore proceeded with the assessment in the 1^st defendant’s absence.

7.  In the hearing, I was informed by the plaintiff and the Fund Board that they had come to an agreement as to the amount of damages the Fund Board would pay the plaintiff, in the total amount of HK$156,550 (net the employees’ compensation already received in the sum of HK$68,800), should she apply under section 20A of the Employees’ Compensation Assistance Ordinance Cap 365 if and when she is unable to recover from the 1^st defendant the damages awarded.  Ms Loh, appearing on behalf of the Fund Board, therefore essentially maintained a neutral stance but has rendered assistance to the court in relation to the appropriate amount of award of PSLA.

8.  In the hearing, Mr Mak, appearing on behalf of the plaintiff, no longer sought awards for the amounts as claimed in the Revised Statement of Damages, but sought awards in the following much lesser amounts:-

PSLA	HK$120,000
Loss of pre-trial earnings	HK$64,575
Loss of earning capacity	HK$30,000
Special damages	Medical expenses: HK$2,200 Travelling expenses: HK$2,575 Tonic food: HK$6,000
Interest	At usual rates and to be calculated
Less Employees’ compensation	(HK$68,800)
Total :	HK$156,550 (not including interest)

The accident, injury, treatment, present complaints and the opinion of the orthopaedic experts

9.  At about 10:40 am on 24 November 2013 and while carrying two baskets of vegetables in the kitchen, the plaintiff stepped on one of the stainless steel grates covering the drainage which suddenly collapsed into the drainage and the plaintiff lost balance and fell with her knees hitting the ground.  She was injured and felt immediate pain.

10.  She then took a taxi to the Accident and Emergency Department (“A&E”) of Kwong Wah Hospital for Treatment.  Physical examination showed bruises over right knee and left foot.  Radiographs did not show any fracture.  She was discharged with analgesics and was given 4 days sick leave.

11.  On 28 November 2013, the plaintiff attended Wan Tsui Government Clinic GOPC (“WCGC”) for right knee and left foot pain.  On January 2014, she attended A&E of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for right knee pain.

12.  On 16 January 2014, the plaintiff first attended physiotherapy treatment in PYNEH.  On initial assessment, the plaintiff walked unaided with mild limping gait.  She could not squat.  There was found diffused tenderness over right anterior knee and mild stiffness over patella.  She received 18 sessions of physiotherapy and progress was satisfactory.  She was discharged on 4 June 2014 with home exercises.

13.  In the meantime, she also attended Shau Kei Wan Jockey Club GOPC, Sai Wan Ho Health Centre and Chai Wan Health Centre for treatment on diver days for persistent pain.  She received a total of 123 days of sick leave from the treating doctors.

14.  The plaintiff now complained of on and off right knee pain, which would be aggravated by squatting, standing for over 30 minutes, walking for over an hour and walking up stairs.

15.  The plaintiff was examined on 12 July 2018 by the orthopaedic experts – Dr Fu Wai Kee engaged by the plaintiff and Dr Danny Tsoi by the Fund Board.

16.  Both doctors agreed:-

(a)  over the diagnosis that the plaintiff suffered from contusion injury of right knee and left foot;

(b)  the treatment she received was appropriate and she has reached maximal medical improvement;

(c)  the left foot injury recovered well with no residual impairment; and

(d)  the sick leave given by the treating doctors was appropriate and reasonable.

17.  Dr Fu opined that the plaintiff would have some difficulty in long period of walking, standing and squatting, that she could return to her work but the efficiency would be reduced and she would have some difficulty in lifting heavy loads, squatting and walking for a long period.  Dr Fu opined that the plaintiff suffered from a loss of earning capacity of 3%.

18.  Dr Tsoi opined that any residual pain on prolonged activity should be minimal, that the plaintiff would be able to return to her pre-injury job, and her loss of earning capacity was 1%.

Pain, suffering and loss of amenities

19.  The plaintiff was born in 1970 and was 43 years old at the time of the accident.  She was educated in the Mainland up to primary 6.

20.  I accept her evidence, which was uncontested, that she still suffered from some mild residue in the form of some on and off pain over her right knee, and difficulty in walking and standing for a long period.

21.  I have considered the cases cited by Mr Mak in which the award for PSLA ranged from HK$145,000 to HK$300,000.  In those cases, the plaintiff’s injuries were more serious.  I do not think they are comparable to the plaintiff’s present situation.  I have also considered the cases cited by Ms Loh, particularly Li Ting Fai v Woo Chi Keung (DCPI 807 of 2007) and Lo Wing Kwong v Wong Ka Wai Ruby (DCPI 1617 of 2006) in which the award of HK$90,000 and HK$80,000 for PSLA was respectively assessed.  I accept that when using the last 2 cases as a reference, I should allow certain increase to reflect inflation.

22.  In the round, I consider an award for PSLA in the sum of HK$110,000 reasonable, and would so assess.

Pre-trial loss of earnings

23.  It is the plaintiff’s evidence and admitted by the Fund Board, which I find, that the plaintiff was paid a monthly salary of HK$15,000 by the 1^st defendant prior to the accident.  Both experts endorsed the treating doctors’ sick leave period of 123 days.  The plaintiff’s pre-trial loss of earnings, including MPF, therefore is: HK$15,000 x 123/30 x 1.05 = HK$64,575.

Future loss of earnings and loss of earning capacity

24.  The plaintiff no longer pursued an award for loss of future income, in my view rightly.  I therefore make no award thereon.

25.  Mr Mak submitted, and I accept, that the plaintiff has been able to hold onto her present job with the Hospital Authority because the physical demand of this present job is less than the one she had when the accident occurred; however, with the residue, the plaintiff would suffer a disadvantage in the labour market if in the future she were to require to seek another job.  In the circumstances, I accept that the amount of HK$30,000 claimed, which roughly represents two months’ salary, is reasonable and appropriate, and I so award it as the plaintiff’s loss of earning capacity.

Special damages

26.  I think the amount claimed for medical expenses in the sum of HK2,200 and travelling expenses in the sum of HK$2,575 are reasonable and would so award.  For tonic food, as there were no receipts produced in support, I would assess it broadly at HK$5,000 as being reasonable.

Summary of awards and disposal

27.  To recap, I assess award for PSLA at HK$110,000, for pre-trial loss of earnings at HK$64,575, for loss of earning capacity at HK$30,000 and special damages in the total sum of HK$9,775.  They total to HK$214,350.

28.  I award the usual interest to the plaintiff - on general damages at 2% per annum from the date of writ to the date of this assessment, on pre-trial loss of earnings and special damages at half judgment rate from the date of the accident to the date of this assessment, then on all sums at judgment rate from date of this assessment until full payment.

29.  I therefore enter judgment against the 1^st defendant in the sum of HK$214,350 plus the said interest accrued up to the date of this assessment but net therefrom the employees’ compensation in the sum of HK68,800.

30.  Both the plaintiff and the Fund Board ask that there be no order as to costs as between them. I so order.

31.  I order on a nisi basis that the 1^st defendant do pay (a) the plaintiff her costs of the action, including all costs reserved, save the costs of the proposed Re-revised Statement of Damages and the proposed supplemental witness statement of the plaintiff and (b) the Fund Board its costs; both to be taxed if not agreed.  The plaintiff’s own costs incurred while she was granted legal aid be taxed in accordance with the Legal Aid Regulations.  The above costs order nisi shall become absolute unless within 14 days any party applies to vary.

32.  It remains for me to thank Mr Mak and Ms Loh for their assistance.