TSANG YUK MING v. CHOI WING HING t/a WING HING ELECTRICAL CO. AND OTHERS

1989 No. A852

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 26th March, 1986, the 62-year-old male plaintiff was standing on a ladder, painting a wall, when the ladder broke or collapsed, and he fell to the ground.

2. The plaintiff suffered a fracture of the left femur, he was in hospital from 26th March, 1986, until 19th April, 1986, undergoing an Austin-Moore arthroplasty; thereafter he attended the outpatient clinic. He has been unable to work since the accident, and continues to have difficulty in walking, and cannot stand or walk for any lengthy period.

3. On appeal from the District Court dismissal of his claim, the Court of Appeal held that there was a contract of service between the plaintiff as employee and the first defendant as employer. The matter was remitted to the District Court, where an Employees' Compensation award, dated 31st July, 1989, was made. The High Court writ was issued on the 15th February, 1989. Interlocutory judgment was entered against the first Defendant on the 9th November, 1990, for damages to be assessed. Notice of the appointment of assessment of damages was issued on the 18th December, 1990.

4. Hearsay notices were served in respect of medical reports, letters and memoranda from employees unions, from the Commissioner for Census and Statistics, the Commissioner of Labour, sick leave certificates, hospital demand notes, and the Employees' Compensation certificate of award. These are in the plaintiff's bundle marked as exhibits 4 to 13, together with a copy of the Court of Appeal judgment, dated 26th January, 1989, marked 14.

5. At the hearing of the assessment, the first defendant appeared in person. The plaintiff himself gave evidence, and Dr. MAO was called. The first defendant's rights were explained to him, but he declined to cross-examine witnesses, or to give evidence.

6. Oral evidence was given by the plaintiff as to the accident, his injury and hospital admission.

7. The medical report from the Kwong Wah Hospital shows that the plaintiff was admitted on the 26th March, 1986, due to a fracture of the neck of the left femur. Austin-Moore arthroplasty was carried out on the 1st April, 1986. The plaintiff was discharged on the 9th May, 1986, the plaintiff was walking independently with one stick.

8. Dr. MAO produced three medical reports which were marked as exhibits l to 3.

9. Dr. MAO's first report dated 29th March, 1988, explains that an Austin-Moore arthroplasty Is the replacement of the fractured neck of the left femur, together with the head of the femur. In this case a metallic replacement was used, which may result in later complications, such as loosening of the replacement and arthritis. He says that the medical board assessment of 2% loss of earning capacity is totally inadequate. The loss of the head and neck of the left femur is equal to 20% impairment of the lower extremity where there is an arthroplasty in good working condition, as is the case here. In addition, there is a further 3% loss of the lower extremity due to the slight loss of medial rotation, and 5% loss of the lower extremity due to the shortening of the left leg. The total 28% impairment of the lower extremity equals 10% impairment of the whole person. Therefore loss of earning capacity would be at least 30%.

10. In his second report, dated 14th April, 1989, Dr. MAO states that the plaintiff has a 25% impairment of the lower extremity, being 10% impairment of the whole person, which equates to a loss of 30% earning capacity.

11. In his third report, dated 12th February, 1991, Dr. MAO re-stated the assessment at 10% impairment of the whole person equating to 30% loss of earning capacity.

12. In his evidence, the plaintiff says that he worked as a painter under the instruction of the first defendant, that the accident occurred at 10 a.m. on the 26th March,1986. He received $190 per day, and worked an average of between 21 and 25 days per month. Since the accident he has not worked, he can stand or walk for less than 20 minutes.

13. As to special damages, $2,500 was spent on tonic foods; $2,350 for the travelling expenses of his family members for hospital visits, for his outpatient visits, and visits to Dr. MAO; $60 for a walking stick; $432 for hospital fees. He tells of his three visits for examination by Dr. MAO. The defendant has not received any payment under the Employees' Compensation award.

14. I accept the plaintiff as a witness of truth. I accept what he says of his disability, and of his expenditure on tonic food, travelling, hospital fees, and a walking stick. The amounts are fair and reasonable.

15. With regard to the pre-accident earnings of $190 per day, the letter from the Painters' General Union, dated 30th October, 1986, sets out the wage adjustment scheme for painters, with the daily wage adjusted from $175 to $200, effective from 16th November, 1986. A letter from the Commissioner for Census and Statistics, dated 17th March, 1989, shows that the average daily wage of a painter/decorator in March, 1986, was $176.30, and in January, 1989, $299.90. The 1986 figures show that the average daily wage of $176.30 in March, rose to $194.60 in October of that year, $192.10 in November, and $200.70 in December.

16. I accept that the pre-accident earnings were $190 per day, and that the plaintiff worked between 20-25 days per month. I am of the view that the median figure of 22.5 days per month should be used to calculate the loss. That results in a monthly pre-accident figure of $4,275 ($190 x 22.5).

17. As to the current earning rate, the Memorandum from the Commissioner for Census and Statistics dated 8th February, 1991, shows that the daily rate for a painter in November, 1990, was $386.40. The letter, dated 30th September, 1990, from the Hong Kong Construction Industry Employees General Union, which sets out the 1990 proposals for wage adjustments, proposes that the daily wage for painters be adjusted from $340 to $390 (travelling expenses to be calculated separately), effective at 1st November, 1990. I am of the view that the figure of $390 is appropriate for the current daily wage. This would result in a monthly current wage of $8,775 ($390 x 22.5).

18. The Commissioner for Labour in his memorandum dated 2nd May, 1989, considers the plainitff's age, education and working experience, and his complaints, and suggests that he is capable of sedentary work which would allow him to change his position from time to time and would not require prolonged standing or walking, such as a caretaker in a residential building or a passenger-lift operator. The pay for such posts would be in the range of $2,000 to $2,500 per month. I am of the view that the median of $2,250 is appropriate to this case.

19. Pre-assessment loss of earnings would thus be as follows:

($4,275 + $8,775) ÷ 2 x 12 x 5- $2,250 x 12 x 4.67 = $265,410

(The figure of 4.67 takes into account the fact that the plaintiff received sick pay from the date of the accident, 26/3/86, until 4/7/86).

I accept the figures for the other special damages as follows:

20. With regard to the issue of general damages for pain, suffering and loss of amenities, counsel for the plaintiff referred the Court to the recent case of WONG See-mo v. LAM Nam- fui and ors. (t/a Hop Shing Furniture Mfy.), (Civil Appeal No. 21 of 1990), where, in referring to LAU Che-ping, the Court said "But it is necessary for us to deal with the minimum sum to be awarded for pain and suffering and loss of amenities to somebody who comes within the serious injury category at the lowest end of that category - as we consider that this plaintiff does. All things considered - and we are grateful to counsel for the arguments which they have advanced - we are of the view that such sum is now $150,000." In that case the Court increased an award of $70,000 to $150,000.

21. Counsel submitted that this case fell into the lowest category of serious injury, since the plaintiff was left with a disability which mars general activities and enjoyment of life but allows of reasonable mobility. LEE Ting-lam v. LEUNG Kam-ming (`1980) HKLR 657, sets out the categories of injuries and the appropriate awards. LAU Che-ping v. Hoi Kong Ironwares (CA) 1988 (2) HKLR 550, increased the figures for the serious injury category to from $135,000 to $180,000.

22. Counsel referred the Court to two authorities involving similar injuries. YANG Yi-chai v. CHENG Kam-shing & ors., a decision of Master Clay, heard on 19th December, 1984, concerned a plaintiff aged 70, who suffered a fracture of the neck of the right femur, and who also underwent an Austin-Moore replacement. In that case, the plaintiff was awarded $80,000. Counsel submits that the award would be worth $128,000 today, taking, account of inflation.

23. The second case referred to is NG Kam-chu v. LAI Yat-hung and or. (A7735/1935) a decision of Master Woolley, heard on 17th March, 1985, in Which the plaintiff - a Form V student at the time of the accident - suffered a severe comminuted fracture of the head of the left femur, and underwent an Austin-Moore procedure. In that case, medical evidence showed that a further operation would be necessary, and Master Woolley took that into account in his assessment. Master Woolley was referred to YANG Yi-chai and, noting the award of $80,000 made there, said "I accept that in view of the comparative youth of this plaintiff and the serious effect the injuries have had on his enjoyment of life, the award under this, head should be greater", and made an award of $100,000. Counsel for the plaintiff submitted that that award would now be worth $150,000.

24. Bearing these awards in mind, Counsel submits that in this case an award of $120,000 would be appropriate. I accept counsel's submissions, and accordingly make an award of $120,000 for pain, suffering and loss of amenities.

25. Loss of future earnings is claimed on a multiplier of one. The plaintiff is now aged 67-5/12th. Counsel suggested that future monthly earning might be $3,000 taking into account inflation, so that the loss of future earnings would be as follows:

26. $8,775 x 12 x 1 - (say) $3,000 x 12 x 1 = $69,300

27. The plaintiff is now 67½ There is no evidence as to what his plans for retirement were. There are no cases on quantifier. At the assessment the plaintiff appeared to be fit. I am of the view that an award for a further seven months, which will bring him up to his 68th birthday, would adequately and fairly take into Account his future loss of earnings, and I make an award as follows:

28. $8,775 x 7 - (say) $3,000 x 7 = $40,425

29. There is no claim for loss of earning capacity.

30. Counsel produced a schedule of estimated tax of $2,755.80 for the five years since the accident. I have reduced the award for loss of future earnings, and the tax estimate is consequently reduced by approximately $600. I am of the view that a deduction of $2,000 on account of taxation is appropriate, and that this amount should be deducted from the pre-trial loss of earnings, for the purposes of calculating interest on the award.

SUMMARY

Special Damages

General Damages

31. There will be interest on the general damages at the rate of 2% from the date of writ to the date of judgment There will be interest on the special damages at the rate of 5% from the date of the accident to the date of judgment.

32. The first defendant will pay the plaintiff's costs, to be taxed on a party and party basis if not agreed, and the plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations, with certificate for counsel.