TSE HON WAI v. PO HONG SCAFFOLDING CO LTD AND OTHERS

HCPI 427/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 427 OF 2006

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JUDGMENT

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1. This is a personal injuries claim in which the issue of liability was conceded by the defence at the outset of the hearing.  Moreover damages for pain suffering and loss of amenity was agreed at $350,000 and special damages relating to medication and other minor medical and travel expenses were also agreed at $4,660.  The remaining issues on quantum were contested.

2. When aged 21, on 22 March 2004, the plaintiff was working as a scaffold dismantler.  He had about one year’s experience in such a job at the time.  Whilst working an object fell from a height and struck his right eye.  He is now, effectively, blind in that eye.  He has received $306,000 in the employee’s compensation proceedings.

3. In relation to the outstanding issues on quantum the plaintiff’s (represented by Mr Simon Lam of counsel) and the defendants’ (represented by Mr Andrew Li of counsel) respective assessments are far apart.  I shall now deal with each issue in turn.

(1) PAST LOSS

4. There are three sub-issues under this heading.

(a) Daily wage

5. At the time of the accident the plaintiff was earning $610 a day.  He had started as a dismantler about a year earlier, on an apprentice’s daily pay and had recently achieved the level of $610 a day, being the pay given to a dismantler at the “medium level”.

6. The plaintiff’s case is that he would now be a master scaffolder which, according to government statistics, commands a daily wage of $1,100.  The claim is otherwise unsupported by evidence.  The evidence upon which I rely came from Mr Tse Po Wah for the 1^st defendant.  Mr Tse had 27 years’ experience, was a master dismantler and was currently earning $860 a day.  He said that, assuming the plaintiff’s performance was good, he could become a master dismantler in about six to seven years after the accident. 

7. For the purposes of past loss, I take the plaintiff’s daily wage to be $610 at all times.

(b) Average monthly income

8. The evidence shows that the plaintiff worked for the 1^st defendant from early December 2003 to the date of the accident, a period of three to four months. 

9. He in fact worked a total of 25 days during that period and was paid a total of $14,940.  On average therefore he worked about seven days a month. 

10. The plaintiff suffered from a bout of Hepatitis B during January 2004 and this, he submits brought the average figure down.  I accept this even though the number of days actually worked in January is not much lower than the number of days in December and February.

11. His claim is based on the argument that, but for accident, he would have worked 26 days a month.  There is no evidence to support this contention.  There is no reliable evidence as to how many days he worked per month for different employers during 2003.  There is no evidence that scaffold dismantlers would have been gainfully employed on a full time basis during 2004 to the present time.  Mr Tse of the 1^st defendant informed the court that his “regulars” worked about 12 days a month during this time and with the improving economy about 15 days a month is about average.

12. I accept Mr Tse’s evidence in this regard although I attach no weight to his evidence that the plaintiff was lazy.

13. In short, I accept that the plaintiff’s pre-accident average was affected by his hepatitis but his claim for 26 days a month is wholly untenable.  Erring on the generous side I think a figure of 50% of the plaintiff’s contention is appropriate, namely 13 days a month.

(c) The length of sick leave

14. The doctors who treated the plaintiff approved his sick leave for just under 19 months after the accident.  However, in June 2006, the plaintiff was examined by the joint medical expert Dr Paul Cheung who opined that, normally, six to nine months’ sick leave would be appropriate after such an injury.  Whilst I do not doubt the genuineness of Dr Cheung’s opinion, this particular plaintiff was still attending follow-up appointments with his doctors for 18 months after the accident.  His condition was still being treated and monitored and I consider it reasonable for the plaintiff to regard himself as sick whilst his doctors continued to so certify.  Dr Cheung’s opinion came over six months after the plaintiff had found new employment.

15. I will treat him as being fit for work from October 2005 onwards, in round terms 18 months after the accident.

16. A further 17 months has passed up to the date of trial.  During that time he has been a casual decoration worker earning about $4,000 a month.  As will be seen from my findings under “Future loss” I consider his earning capacity from the time he became fit for work to have been $5,800 a month.

17. His past loss to date of trial is therefore :

($610 x 13 x 18) + ($610 x 13 – $5,800 x 17)

=   $142,740 + $36,210

=   $178,950 x 1.05 (for MPF payments)

=   $187,898.

(2)       FUTURE LOSS

18. The nature of the work he is now capable of doing is not in dispute.  Nineteen examples have been quoted together with the government figures as to the appropriate level of pay for each one.  The best the court can do is take an overall view.  Considering the wide variety of jobs (all admittedly fairly menial) available to him, his earning capacity is best assessed as being the average of the nineteen examples quoted, namely $5,800 (approximately).

19. He is still a young man, now 24, and has since the accident, married.  The parties’ submissions as to the appropriate multiplier differ only slightly.  The plaintiff argues for 18 to 19 years, the defence say 16.  I will take 17 years.

20. For the purpose of calculating future loss I also accept that he would have attained the level of master scaffolder had he remained in the same employment.  However it would not have been as soon as the plaintiff suggested.  I accept Mr Tse’s evidence.  I think his earnings would have increased to master level (namely $860 per day for 15 days a month) seven years after the accident in 2011.

21. Therefore his future loss for four years is :

$7,930 – $5,800 = $2,130 x 12 = $25,560 per annum.

22. For the remaining 13 years it is :

$12,900 – $5,800 = $7,100 x 12 = $85,200 per annum.

23. ($25,560 x 4) + ($85,200 x 13) = $1,209,840

$1,209,840 x 1.05 = $1,270,332.

(3) LOSS OF EARNING CAPACITY

24. It is agreed that because of this sort of injury for a man of this age some award is appropriate under this heading.  I think a figure equivalent to 12 months of his current wages would be appropriate.  I award $48,000.

25. His total damages are therefore as follows :

PSLA	$350,000
Agreed special damages	4,660
Past loss	187,898
Future loss	1,270,332
Loss of earning capacity	48,000
	1,860,890
Less ECC payment	306,000
Total :	$1,554,890
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INTEREST

26. I award 2% on $350,000 from the date of the writ to judgment and half the judgment rate on the balance of $1,204,890 from the date of the accident to judgment.

27. There will be judgment for the plaintiff in the sum of $1,554,890 with interest as above plus a costs order nisi to be taxed if not agreed.