NG SHING KWAI v. CHAN YU CHUEN t/a SHEUNG MOON CIVIL ENGINEERING CO. AND ANOTHER

HCPI923/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 923 OF 2001

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J U D G M E N T

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Introduction

1. By consent interlocutory judgment on liability against the 1st and 2nd defendants was entered on 23 April 2002 for damages to be assessed and costs of the action limited to the issue of liability.

2. The plaintiff, aged 44 at the time of the accident and 48 at trial, was a concreter employed by the 2nd defendant, the subcontractor of the 1st defendant, the principal contractor of a construction site at Tin Shui Wai.

3. On 24 November 1998 whilst concreting a water tank, a fully loaded skip suspended from a crane fell on him causing him to fall into a water tank sustaining personal injury. He was admitted to and discharged from the Pok Oi Hospital on the same day. He was prescribed analgesics and referred to the orthopaedic clinic for follow-up.

4. After attending the orthopaedic clinic on several occasions, the pain over the injured areas of the plaintiff was relieved. A course of physiotherapy and then occupational therapy followed. The course of treatment did not satisfy the plaintiff as he continued to complain of discomfort and pain. He then resorted to visiting bonesetters, firstly in Hong Kong, then latterly in China as the cost was more reasonable.

5. In evidence the plaintiff testified he felt generally better now. He continues to experience aches at the waist and has difficulty climbing stairs or squatting for long periods. He was given in all sick leave lasting 12 months and 4 days, ending on 28 November 1999.

The medical evidence

6. The plaintiff was X-rayed on admission to Pok Oi Hospital. No bone injury was detected, nor was hospital admission indicated. Diagnosis was multiple contusions of the right shoulder, elbow and back with bruising. On their own, they would appear relatively insignificant requiring no more than plenty of bedrest and painkillers for treatment. However, as happened, the plaintiff's pain and discomfort persisted and follow-up treatment was given.

7. The medical evidence disclosed, this being common ground, that the plaintiff had the following pre-existing conditions at the time of the accident:

1) Advanced osteoarthritic changes at the right elbow. On the medical evidence, particularly from Dr Danny Tsoi, the plaintiff's orthopaedic surgeon, this condition is generally deemed to be uncommon.

2) Moderate to advanced degenerative changes of the back at L4 and facet joints of L5-S1, i.e. the lumbar spine.

8. So far as the elbow condition is concerned, the defence orthopaedic surgeon, Dr David Cheng, who examined the plaintiff over 31/2 years after the accident, it was deemed to be only a mild stiffness which accounted for 2 per cent of the whole person impairment. Dr Cheng took the view after consultation with the plaintiff and having reviewed the medical evidence from the government hospitals that there was no indication as far as he was concerned that the accident had triggered off or aggravated the elbow stiffness.

9. Dr Cheng explained in evidence that the 2 per cent impairment that he considered had resulted had taken into account the "as is" condition of the plaintiff on the date of examination. It is to be noted that neither Dr Cheng nor Dr Tsoi has had the benefit of examining the plaintiff close to the time of the accident so a comparative examination and opinion could not be rendered by them. Dr Cheng was adamant that the accident had neither hastened nor caused deterioration in the degenerative process of the elbow.

10. For his part, Dr Danny Tsoi was able to say that the accident has caused some additional soft tissue trauma on the pre-existing degenerated elbow. He, however, did not mention that the accident had a triggering or aggravating effect on the elbow in his medical report. The contusion injury, according to him, amounted to 2 per cent permanent impairment of the right upper limb.

11. Dr Tsoi was very fair to concede under cross-examination that he was most hesitant to provide a definitive opinion as to whether or not the accident has had any triggering or aggravating effect on the right elbow. However, on the available medical evidence, he did not believe the plaintiff's allegation that his elbow was completely asymptomatic prior to the accident given the advanced degenerative changes discernible in that region.

12. He took the view that patients with a degenerative elbow usually experienced stiffness, particularly those engaged upon heavy manual work would more likely than not experience pain in addition to stiffness. It would seem therefore that the plaintiff's assertion that he was completely symptom-free before the accident cannot be accepted at face value given the advanced osteoarthritic changes in the elbow. In any event, Dr Tsoi formed the view following his examination of the plaintiff's right elbow that the condition presented merely a minor problem.

13. Turning to the lumbar complaint of the plaintiff, Dr Cheng opined that aside from the subjective complaints of residual pain and aches, he was unable to discern any abnormality in that region upon his examination, other than of course the pre-existing degenerative changes. Dr Cheng was steadfast in his opinion that aches and pains, even arising out of soft tissue damage, cannot constitute permanent impairment on any view, particularly where radiological findings had no bearing on the degree of the symptoms.

14. Dr Tsoi was, however, of a contrary opinion in that he considered that the accident did trigger off the onset of back pain. However, he noted that the only abnormality discovered was tenderness over the right paraspinal muscles accounting for 3 per cent permanent impairment of the whole person. Again Dr Tsoi concluded that the plaintiff's back problem only represented a minor problem.

15. As far as concerns the shoulder contusion, Dr Cheng noticed no permanent physical impairment. This is of course aside from the plaintiff's complaints of residual pains and aches in the area. He took the view when he examined the plaintiff that he had exhibited definite signs of incomplete effort with exaggerations. However, this comment was not simply limited to the shoulder complaint but generally to the complaints the plaintiff alleged had resulted from the accident in question.

16. Defence counsel urged me to accept Dr Cheng's opinion as being more representative of the actual physical condition of the plaintiff as caused by the accident. He noted a number of matters in this regard. He submitted that the plaintiff had complained to Dr Tsoi that he had back pain after resting for 15 minutes. Counsel pointed out the fact, an obvious one, that the plaintiff had sat in court for the duration of his evidence with no apparent discomfort. It was also said that the plaintiff had complained to Dr Cheng that he was only able to climb a few steps but that complaint, it was pointed out, was never mentioned to Dr Tsoi. Under cross-examination Dr Tsoi referred to his notes and confirmed that that was so. The plaintiff also said that the government doctors had allegedly told him that he had suffered fracture, a fact not borne out by any government reports that we have been referred to.

17. Finally, counsel made reference to the plaintiff's allegation that the occupational therapist had informed him that he had suffered some sort of internal injury. This was highlighted as further indicia of the plaintiff's tendency to exaggerate.

18. Dr Tsoi found that the contusion of the shoulder muscle with residual inflammation of the muscle accounted for 5 per cent impairment of the right upper limb or 3 per cent permanent impairment of the whole person. Again, he was of the view that the plaintiff's shoulder condition indicated but a minor problem. Dr Tsoi's evidence suggested that the contusion injury might have aggravated the degenerative condition. On an "as is" basis at the time of his examination, he assessed permanent impairment of the right shoulder, right upper limb and back at 5 per cent of the right upper limb, 10 per cent of the right upper limb and 5 to 8 per cent respectively, making a total of 16 to 17 per cent permanent impairment of the whole person. To properly reflect the pre-existing degenerative condition, he assessed permanent impairment of the whole person as caused by the accident at 7 per cent.

19. Dr Cheng gave a lower figure for overall permanent impairment of the whole person of 2 per cent. Dr Cheng considered that there was no permanent impairment of the shoulder and the back despite the pain and stiffness complained of. He was also of the opinion that with the pre-existing elbow condition the plaintiff might well develop symptoms even without the accident by the age of 50 or earlier.

20. That briefly summarises the medical evidence with observations by the two eminent surgeons in this case.

Pain, suffering and loss of amenities

21. The defence primary contention was that the accident did not trigger or aggravate the pre-existing conditions in the plaintiff's right elbow or back and damages for pain, suffering and loss of amenities should be conservative and limited to the contusion to the shoulder. Alternatively if there was exacerbation of the pre-existing complaints, the degree was so trivial or minimal as to call for a substantial reduction of damages under this head.

22. Having carefully reviewed the medical evidence, I consider that Dr Tsoi's diagnosis is to be preferred. His approach was fair and well-reasoned as amply demonstrated inter alia by his view that the plaintiff was unlikely to have been symptom-free vis-à-vis his elbow prior to the accident. I find that the accident had caused the shoulder impairment, aggravated the plaintiff's hitherto asymptomatic but degenerative spine and exacerbated the right elbow condition, the AMA guide produced by defence counsel notwithstanding.

23. In assessing damages for pain, suffering and loss of amenities, it is important to bear in mind that Dr Tsoi opined that the plaintiff's shoulder, elbow and back problems were minor.

24. Reference was made to a number of decisions on personal injury awards. These included Fu Chee-kong (1998) HKLD D32, Lai Wah-wai (1996) HKLY 663, Law King-sang (1997) HKLRD 437, Tsoi Kwong-ming (1999) HKLRD Yr Bk 358, Lai Ching (1999) HKLRD Yr Bk 359, Ho Chi-ming (1999) HKLRD Yr Bk 357, Lee Lap-pang HCPI 1111 of 1997, Chan Tak-chi [1998] 4 HKC 16, Drayton-Thomas v Southend Health Authority (Lexus transcript 26/3/1990), Chan Kam-hoi v Dragages et Travaux Publics [1998] 4 HKC 523 and Lau Chiu-wah v Kwong Key Construction & Engineering Limited (HCPI 1581/98). It is as well that one remembers that the court is concerned with facts and complaints peculiar to the circumstances of the case and that those references, and indeed others, are merely a useful guide.

25. I consider and adjudge that the plaintiff's injuries caused by the accident fell below the serious injury category. In my opinion, an award of $320,000 would be sufficient to compensate him in this regard and I so order.

Past loss of earnings

26. After sick leave ended, the plaintiff briefly returned to work for 12 days completing all the tasks assigned to him as a concrete worker. He testified that he suffered pain in the waist, shoulder, hand and feet. He quit of his own accord. He has not returned to any form of employment to date.

27. Conceding that he was able to do casual work on construction sites, the plaintiff has had no luck finding such employment owing principally to slackness in the trade he said. He reckoned that he would be able to command no more than between $7,000 to $8,000 per month as a casual labourer. Approach to the Labour Department failed to secure him employment as a watchman and his own attempt to find a watchman's job was equally unproductive. He said such employment would have paid between $4,000 to $5,000 monthly.

28. The plaintiff added that he ought to be able to work until the age of 60 but for the accident given good health. The plaintiff was out of work and suffered full wage loss for the period of sick leave of a year. As this period is well-supported by sick leave certificates, the loss is wholly recoverable. He sought and found work for 12 days at the end of 1999 or early 2000. His evidence was that having been in the construction field for nearly 20 years, and in view of his age, opportunity for work elsewhere was difficult to locate. His sick leave officially ended on 28 November 1999. So it is that he was wholly out of work for about an additional year after his sick leave ended. In that time, he was receiving treatment from bonesetters in Hong Kong and in the PRC.

29. It is common ground that the plaintiff was earning $33,020 per month when he met with the accident. Dr Tsoi considered that one year convalescence was reasonable in all the circumstances, particularly on the basis that the plaintiff had attended regular follow-up treatment during that period. He opined that the previous employment involving strenuous manual labour was now without the capacity of the plaintiff to undertake. Dr Cheng noted that the plaintiff with marginal impairment ought to be able to return to his pre-accident work after a reasonable rest period of six months.

30. The sick leave certificates were all issued by government doctors having opportunities to examine the plaintiff. I can fathom no reason for going behind the leave certificates. I will also grant a further period until the end of December 1998 to allow the plaintiff to find alternative employment. The plaintiff has therefore suffered a total loss of income from 24 November 1998 to 31 December 1999 of $436,854.60 being $33,020 x 13.23 months.

31. Dr Tsoi observed that the plaintiff was fit for manual work that did not involve lifting of weights greater than 50 pounds. As a concretor, the plaintiff often lifted weights over 100 catties on his evidence. That the plaintiff was able following convalescence to carry weights and negotiate stairs, Dr Tsoi had no doubt. Both Dr Tsoi and Dr Cheng accepted that the plaintiff should have no difficulty working as a casual or light duty construction site worker. Indeed counsel for the plaintiff conceded that from the year 2000, the plaintiff should have been able to undertake unskilled construction site work earning, the plaintiff says, only about $7,500 per month on average. This information was derived from someone he knew.

32. There is agreed evidence that unskilled construction site labourers have been able to earn about $600 per day since 1999 (see Average Daily Wages of Workers Table). These are reliable data which I would prefer to adopt instead for the purpose of this assessment.

33. It was the plaintiff's own concession, quite fairly given, that had he continued as conceretor he would have seen a reduction in wages to about $25,000 per month. This no doubt reflected the slackness in the trade and the general shrinking of the economy in the last few years. At the time of the accident, the plaintiff was earning $1,270 per day all inclusive. He agreed that there had since been a drop in salary of about $100 per day. On an average concretor's salary of $25,000 per month, it seems that concrete workers would work on average 21 days per month, i.e. $25,000 per month ÷ 1,170.

34. The plaintiff agreed that the amount of work available to both skilled and unskilled construction site workers was the same. I therefore adopt a 21 day working month in this case.

35. From 1 January 2000 to the date of the trial, 26 August 2002, a period of 31.84 months elapsed. Pre-trial loss can be assessed thus: [$25,000 per month - ($600 x 21 days)] x 31.84 months = $394,816. Total pre-trial loss of wages therefore amounts to $436,854.60 + $394,816 = $831,670.60.

Prospective loss of earnings

36. The medical evidence disclosed that the plaintiff's pre-existing degenerative conditions would eventually become symptomatic causing pain and affecting his ability to work until the age of 60 as the plaintiff said he would have liked. Whilst it is difficult to predict the onset of problems in the elbow and lumbar regions, both Dr Cheng and Dr Tsoi concurred that the plaintiff should have obvious problems with his lower back by the age of 55. Dr Tsoi considered that the elbow and back should not be symptom-free by the time the plaintiff reaches the age of about 50 and between 53 and 55 respectively. According to Dr Tsoi, the plaintiff should experience difficulty with his back and elbows by the age of 55.

37. It is therefore clear that even without the accident, the plaintiff may well have to give up working by the age of 55 or sooner. The plaintiff wholly accepts this. Counsel are generally in agreement that the appropriate multiplier for working men aged 48 ranges from 8 to 10. They, however, are at considerable odds over the discount for the plaintiff's pre-existing conditions.

38. Counsel for the plaintiff referred to a number of cases on multipliers. These were To Wai-bun (1982) 12 HKLJ 234, Leung Kwong (1983) 13 HKLJ 425, Lai Chi-fai (1985) HKLY 413, Lau Sun-kiu (1986) 16 HKLJ 305, Chu Tik-kwan (1989) 19 HKLJ 387, Choi Mei-ho [1997] 2 HKC 706, Lai Kin-wah supra, Bozarth [1997] HKLRD 2 445.

39. For his part defence counsel cited Chan Kai-wing v Leung Fat Kee Engineering Factory Company Limited [2000] HKLRDJ 7 and Tsang Hing-yuen v Nishimatsu Kumagai Joint Venture [2000] 1 HKLRD 796.

40. I find a reduced multiplier to be appropriate to reflect the condition and medical findings of the plaintiff. I hold that a reduced multiplier of 4 to be adequate and appropriate in the circumstances. Prospective earning loss is calculated thus: [$25,000 - ($600 x 21 days)] x 4 years = $595,200.

Loss of mandatory provident fund benefits since 1 December 2000

41. This is readily identifiable as MPF contribution is either 5 per cent of salary or a ceiling of $1,000 per month. The figure of $1,000 is apt for present circumstances. Loss under this head is calculated as follows: (pre-trial) $1,000 x 20.84 months = $20,840; (post trial) $1,000 x 48 months = $48,000. Total MPF benefits lost = $68,840.

Loss of earning capacity

42. An award is only appropriate where there is a substantial risk of handicap in the market place arising from the plaintiff's disability caused by the accident. There is indeed such an inherent risk given the plaintiff's age, illiteracy, the manual nature of his employment and the injuries sustained. I award $120,000 under this head.

Miscellaneous expenses

43. These comprise medical and travelling expenses, bonesetters fees, tonic foods and loss of personal effects totalling $39,111 as claimed. Medical expenses of $23,611 for government hospitals are agreed. The sum of $19,400 expended on bonesetters is disputed. The evidence is far from clear in this respect. However, the plaintiff has testified that he had derived some benefit and felt better after consulting bonesetters in Hong Kong and in China. He said that the treatment had offered him a degree of relief for his condition that traditional western treatment had failed to provide. I am prepared to allow a sum of $5,000 for this item. Travelling expenses of $7,000 for follow-up treatment are allowed as I would award $6,000 for tonic food and $2,500 for loss of clothing, shoes and a cellular phone.

44. Special damages therefore amount to $6,000 (tonic food) + $2,500 (loss of personal effects) + $7,000 (travelling) + $23,611 (hospital expenses) + $5,000 (bonesetters) = $44,111.

Conclusion

45. The awards to which the plaintiff is entitled are summarised as follows:

47. There shall be interest at 2 per cent per annum from the date of service of the writ to judgment on general damages and at half judgment rate on pre-trial special damages from the date of the accident to the judgment hereof. The plaintiff shall have the costs of this assessment, taxed if not agreed, with certificate for counsel. There shall be legal aid taxation. Counsel have invited me to make a costs order nisi in the first instance which I accede to. The parties shall have liberty to apply within 14 days from the date hereof.