LI FAT TSANG v. 信達工程公司 AND ANOTHER

HCPI 558/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 558 OF 2000

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J U D G M E N T

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LIABILITY

1. This is a claim for damages for personal injuries and consequential loss arising out of an accident which happened at a construction site in Kennedy Town on 16 September 1997. The Plaintiff was a concrete cement worker stated in his identity card to have been born on an unspecified day and month in 1951 and put forward by his counsel as 47 at the time of the accident. He looks to be that sort of age, and I will proceed accordingly.

2. A Defence signed by a firm of solicitors was filed on behalf of both Defendants, the first being a firm and the second being a limited company. But at the trial neither Defendant either appeared or was represented. It is admitted in the Defence that the Plaintiff was employed by the 1st Defendant. Although it is not admitted in the Defence that the 1st Defendant was a sub-contractor of the 2nd Defendant, I am satisfied on the Plaintiff's testimony that the 1st Defendant was indeed a sub-contractor of the 2nd Defendant and that the 2nd Defendant was the main contractor. That the 2nd Defendant was the main contractor is, I might add, also evidenced by the Form 2 which it submitted in respect of the Plaintiff's claim for employees' compensation. Eventually employees' compensation in the sum of $602,930.00 was paid to the Plaintiff by the Defendants, although it is pleaded in the Defence that they did so without any admission of liability.

3. The work on which the Plaintiff was engaged when he was injured was being carried out in a condition of semi-darkness. It was 7:30 p.m. in the month of September, and the sun had set. The Plaintiff and a number of other workers were engaged in work which involved positioning a concrete funnel carried by the arm of a crane. For illumination they had to rely on small hand torches provided by the 1st Defendant's foreman. In such conditions the Plaintiff was unable properly to manage the moving arm of the concrete funnel, was unable to maintain his balance, lost his footing, fell and was injured.

4. Upon the while of the evidence, I find the following facts. The place of work was so inadequately lit as to be unsafe, and the 1st Defendant was accordingly in breach of its duty to provide its employee, the Plaintiff, with a safe place of work. The 2nd Defendant was an occupier of the construction site, and such were the conditions there that it was in breach of its duty to the Plaintiff under the Occupier's Liability Ordinance, Cap. 314. There is a causal connection between both of these breaches and the accident. The Plaintiff fell because it was too dark. Both Defendants are therefore jointly and severally liable to the Plaintiff for damages for the personal injuries and consequential loss which he suffered. He was not in any way contributorily negligent. So the Defendants' joint and several liability to him is 100%. This leaves the matter of quantum.

QUANTUM

5. Initially the Plaintiff's injuries were diagnosed as minor. He was given analgesics and four days' sick leave. However, the pain persisted so he sought further medical treatment. His complaints, which I find are genuine and result from the accident, may be summarized as follows. He suffers persistent back pain and weakness and numbness of the right leg. These symptoms get worse at night. He is unable to sit for more than 20 minutes without his leg becoming numb or stand for more than 40 minutes without suffering back pain. Walking for more than 10 minutes causes him pain, and he is limited in his ability to stand, run, jump or squat. His sleep is frequently disturbed, and his sex life has been adversely affected by his back pain. He suffers considerable emotional stress.

6. Turning to the medical opinion on the Plaintiff's condition, this comes from Dr Au Ka-kau, an orthopaedic specialist who examined the Plaintiff. Dr Au produced two reports on the Plaintiff which he verified when he testified. On the whole of Dr Au's testimony, which I accept, I find as follows.

7. Dr Au examined the Plaintiff in July 2000. His findings on that examination were as follows:

(i) tenderness at the lumbo-sacral region;

(ii) muscle spasm at the right paraspinal region;

(iii) impairment of spinal movement;

(iv) muscle wasting of the right leg;

(v) weaker motor power of the right leg; and

(vi) osteoarthritis in lower thoracic spine and L1-5.

Those things resulted from the accident.

8. Dr Au recommended an MRI scan. This was done, and Dr Au further reported in March 2001 with the benefit of what the MRI scan showed, which is that the Plaintiff's problem was caused by a degenerative change in L5/S1 with a small posterior disc bulging and no encroachment onto the nerve root. Dr Au's opinion, which I accept, is that the accident damaged the intervertebral disc causing the Plaintiff's back pain, and that the pain in the Plaintiff's right leg was caused by the compression of nerve tissue by the prolapsed disc.

9. It is also Dr Au's opinion, again which I accept, that the Plaintiff's body impairment was category II; that his total body impairment is 8% while his loss of earning capacity is 12%; that further medical treatment would not help the Plaintiff; that his condition is unlikely to improve with time; and that he would not be able to perform heavy work again in the future, although he is fit for light or sedentary work.

Pain and suffering and loss of amenities

10. Mr Dunn for the Plaintiff submits that an award of $300,000.00 would be appropriate to compensate the Plaintiff in respect of pain and suffering and loss of amenities. Having regard to the Plaintiff's injuries and their consequences, and in the light of the past awards, I regard the figure proposed by Mr Dunn as reasonable and appropriate. Accordingly I award $300,000.00 for pain and suffering and loss of amenities.

Pre-trial loss of earnings

11. As to pre-trial loss of earnings, I find these facts. At the time of the accident the Plaintiff was earning $28,600.00 per month on average. But in August 2000 the average earnings for the work which he had been doing dropped to around $26,000.00 per month. By mid-July 2000 the Plaintiff had, as Dr Au said, recovered sufficiently to take up light or sedentary work. Such work would have brought him around $7,000.00 per month.

12. Mr Dunn proposed the 35-month period of September 1997 - July 2000 for pre-trial total loss of earnings. But the accident happened towards the middle of September 1997. So I do not accept that starting date. I do, however, accept that ending date. I accept it even though the Plaintiff could have taken up light or sedentary work by mid-July 2000. After all, it is reasonable to allow some time to find such work. So I will proceed on the basis of pre-trial of total loss of earnings for 341/2 months at the rate of $28,600.00. This means ($28,600.00 x 34.5) $986,700.00.

13. I accept Mr Dunn's proposal that pre-trial partial loss of earnings be for the 23-month period of August 2000 - June 2002 at the rate of ($26,000.00 - $7,000.00) $19,000.00. This comes to ($19,000.00 x 23) $437,000.00.

14. Accordingly, I assess pre-trial loss of earnings at ($986,700.00 + $437,000.00) $1,423,700.00.

Post-trial loss of earnings

15. The Plaintiff was 47 years old at the time of the accident and he is now 52 years old. I accept Mr Dunn's proposal of a multiplier of 6. I also accept Mr Dunn's proposal that the Plaintiff's future monthly earnings be taken at the rate of ($26,000.00 - $7,000.00) $19,000.00. This comes to (6 x 12 x $19,000.00) $1,368,000.00.

Medical Expense

16. Receipts have been produced to support the Plaintiff's claim of a total of $3,652.00 spent on medical expenses. This is fully recoverable and I award such sum for medical expenses.

Travelling expenses

17. Travelling expenses are claimed at $7,830.00 in respect of the Plaintiff's visits to various clinics and doctors. The details in support of this head of claim are set out in the Plaintiff's witness statement which he verified by his testimony which I accept. I award the $7,830.00 claimed.

Tonic Food

18. $30,000.00 is claimed in respect of tonic food and related substances, which I think is intended to mean Chinese medicine. The evidence on this is rather vague. Doing the best I can, I purpose to award $10,000.00 under this head.

19. The total award for special damages i.e. medical, travelling and tonic food expenses comes to ($3,652.00 + $7,830.00 + $10,000.00) $21,482.00.

Total award of damages subject to deduction

20. The total award of damages which I make, subject to deduction of the employees' compensation paid, is as follows:

(i)	Pain and suffering and loss of amenities	$300,000.00
(ii)	Pre-trial loss of earnings	$1,423,700.00
(iii)	Post-trial loss of earnings	$1,326,000.00
(iv)	Special damages by way of medical, travelling and tonic food expenses	$21,482.00
Total:		$3,071,182.00
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21. I award interest on the award for pain and suffering and loss of amenities in the sum of $300,000.00 at the rate of 2% from the date of the writ i.e. 12 May 2000 until judgment and thereafter at the judgment rate of 8.72% until payment. I also award interest on the award for pre-trial loss of earnings in the sum of $1,423,700.00 and the award for special damages in the sum of $21,482.00 at the rate of 4.36% from the date of the accident i.e. 16 September 1997 until judgment and thereafter at the judgment rate of 8.72% until payment. There will of course be no interest on the sum of $1,326,000.00 for post-trial loss of earnings. As Mr Dunn rightly concedes, the Plaintiff must give credit for the $602,930.00 employees' compensation which the Defendants had paid him. That sum of $602,930.00 will be deducted from the total award of damages and interest.

22. I make an order for costs in favour of the Plaintiff against both Defendants, and order legal aid taxation of the Plaintiff's own costs.