RAI HARKA RAJ v. PACIFIC CROWN ENGINEERING LTD AND OTHERS

HCPI 672/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 672 OF 2006

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ASSESSMENT OF DAMAGES

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BACKGROUND

1. By the Writ of Summons filed herein dated 4 August 2006, the Plaintiff claimed against the Defendants for damages for personal injury, loss and damage arising out of an industrial accident at Route 9, Ngong Shuen Chau Viaduct, Stone Cutters Island, Hong Kong (“the Site”) on 19 August 2003.

2. Interlocutory judgment on liability was obtained on 11 January 2007 with damages to be assessed.

THE PLAINTIFF’S CASE

3. On 19 August 2003 at about 10:30 a.m., while the Plaintiff and his colleagues were dismantling a steel reinforcement cage at the Site, the cage suddenly collapsed and caused serious personal injuries to the Plaintiff.

4. After the accident, the Plaintiff was sent to the Accident and Emergency Department of Princess Margaret Hospital (“PMH”) for treatment.  The Plaintiff sustained multiple injuries.  Physical examination shown a step at the level of the second and third lumbar spine with swelling of the paraspinal area.  His left leg was swollen and bruised, there were lacerations over his upper back and the power of his lower limbs was decreased.  X ray examination shown fracture of second lumbar vertebra, left tibia and left fibula.  Open reduction and internal fixation was performed for the fractured left tibia on 21 August 2003.  His spinal injuries were treated with spinal orthosis.  The Plaintiff was discharged on 19 September 2003.

5. The Plaintiff was re-admitted on 28 February 2004 and screws were removed from his left foot on 1 March 2004.  Subsequently, the left foot fracture healed and metal plate and screws were removed on 12 October 2004.

6. The Plaintiff received out-patient physiotherapy treatment at Yan Chai Hospital from 19 November 2003 to 23 June 2004. He also received further occupational therapy treatment at the same hospital between 27 March 2004 and 28 June 2004.

7. Apart from receiving out-patient treatments at the Orthopaedics and Traumatology Department, the Plaintiff also received Occupational Therapy from 30 July 2004 to 14 January 2005 and physiotherapy between 12 July 2004 and 17 January 2005 at the PMH.

8. During the first period of hospitalization, the Plaintiff developed urine retention.  Foley catheterization was given, which was weaned off before his discharge.  The urodynamic study performed on 10 March 2004 shown decrease in bladder sensation and straining pattern during voiding.  Uroflowmetry in March 2005 shown normal voiding.  Follow up uroflowmetry in January 2006 shown poor flow rate with straining pattern and increase in residual urine.  Video urodynamic study on 26 January 2006 shown normal filling phase and failure in voiding.  The Plaintiff had to sit and strain to pass urine.

9. In fact, in July 2005, the Plaintiff also complained of erectile dysfunction and penile pain on erection.  Examination shown presence of nocturnal erection at sleep suggesting that the erectile dysfunction was more functional than physical.  Further examination revealed a subcutaneous dorsal plaque of the penis suggestive of Peyronie’s disease.

10. Dr. George C.G. Koo, a specialist in urology for the Plaintiff, found that the Plaintiff’s anal tone was normal but the bulbo cavernosus reflex was very very weak.  He opined that the disabilities suffered by the Plaintiff were compatible with a neuropathic cause.  He acknowledged that while there was no gross clinical neurological deficit detected in the perineum or legs, there was strong temporal relationship between the spinal injury and the bladder dysfunction.  Dr. Koo also believed that the erectile dysfunction was partly psychological (as there was nocturnal erection) and partly neurogenic as suggested by reason of the very weak bulbo cavernosus reflex and its onset following the accident.

11. Dr. C.H. Leong, a specialist in urology for the Defendants, shared the views of Dr. Koo.  Dr. Leong stated it was possible that the Plaintiff had a neuropathic bladder by reason of the injury of the 2nd and 3rd lumbar vertebra.  That, to certain extent, also affect the Plaintiff’s neurologic pathway relating to erection and sexual process.

12. Dr. AU Ka Kau, an expert in Orthopaedics for the Plaintiff, examined the Plaintiff jointly with Dr. LAM Kwong Chin, the expert for the Defendants, on 10 October 2006.  Dr. AU was of the view that the Plaintiff was not fit to return to his pre-accident job, a general labourer at a construction site.  However, the Plaintiff was fit for some sedentary jobs like cashier.  Dr. LAM accepted that the Plaintiff would have difficulty in return to heavy manual work in the construction site.  Yet, the Plaintiff was fit for lighter jobs with lesser walking requirement such as “factory worker, general labourer, cleaning worker, casual labourer, office messenger, storekeeper, salesman, watchman, carpark attendant or jobs of similar nature”.

13. The Plaintiff was granted sick leave for almost 2 years.

14. The Plaintiff is the only witness in this hearing.  He adopted the contents of his witness statements as part of his evidence.

15. The Plaintiff told the Court that while he was born in Hong Kong in 1964, he left for Nepal when he was 3 years old and received  lower secondary education thereat.  The Plaintiff can speak Nepalese and some simple and basic English. The Plaintiff cannot speak punti dialect.  He came back to Hong Kong for permanent settlement in 1997.

16. The Plaintiff was unemployed since after the accident.  He  had tried to look for a job but in vain.  He explained that it was due to his disabilities and inability to speak punti dialect.

17. Under cross examination, the Plaintiff denied that he told the occupational therapist of PMH that he had a standing tolerance and walking tolerance of 90 minutes since August 2004 and had a better standing tolerance and walking tolerance of 2 hours since January 2005 though these were stated in the Work Capacity Evaluation Reports (of divers dates).  The Plaintiff explained that he could only walked for 35 minutes at the material times.  The Plaintiff also expressed that it might be due to mistakes in interpretation done by the his friend who accompanied him to visit PMH ( “the Explanation”).

18. The Plaintiff did not accept that he had a walking tolerance of about 1 hour in July 2006 as stated by Dr. Wong Hin Keung of the Orthopaedics and Traumatology Department of PMH in his report dated 8 August 2006.

19. The Plaintiff told the Court that, at the time of this hearing, he can walk for a short distance of around 30m without using a crutch.  He can walk continuously for 35 to 40 minutes with the aid of a crutch.  He then need to take a rest for 10 to 15 minutes before he can walk again.  He can stand for 5 minutes without a crutch but can stand for 10 to 15 minutes with the aid of a crutch.  The Plaintiff had a sitting tolerance of 2 hours.  He can squat with difficulty if there is support.  The Plaintiff said he cannot stoop and had difficulties in climbing steps.  These disabilities were due to residual back pain and pain at the left ankle.  As to his voiding problem, the Plaintiff said he needed 20 minutes to pass urine.

PAIN, SUFFERING AND LOSS OF AMENITIES

20. This item is not under dispute.  The parties agreed that the Court should award a sum of $700,000.  I agree.

PRE-TRIAL LOSS OF EARNINGS

(a)  Plaintiff’s loss of earnings

21. The Plaintiff was 39 years old when the accident took place in 2003.  He is now almost 44.  He was a worker at construction site earning $15,052.00 per month.  There is no dispute that the Plaintiff is entitled to a sick leave of 2 years.

22. Mr. Hingorani, Counsel for the Plaintiff, submitted that the Court should award a total loss of earnings for the entire pre-trial period.  He submitted that while the experts opined that the Plaintiff was able to take up sedentary job, they only took into account the Plaintiff’s walking ability and failed to consider the disabilities and urological dysfunction of the Plaintiff in full.

23. Mr. Hingorani noted that Dr. LAM had listed a number of jobs which were said to be suitable for the Plaintiff.  However, he submitted that if one examined the job nature carefully, one would find that the jobs would hardly be suitable for the Plaintiff, even accepting the Plaintiff’s standing tolerance was of  2 hours, because Plaintiff cannot bend and does not speak punti dialect.

24. Mr. Wong, Counsel for the Defendant, submitted that, taking all the background circumstances into account, the Plaintiff should be able to find a job 5 months after the expiration of his sick leave.  He further reminded the Court that the Plaintiff did not look for a job until October or November 2007 and that the Plaintiff’s physical conditions (walking and standing tolerance) as recorded in the Work Capacity Evaluation Reports (as mentioned above) were much better than that as described by the Plaintiff in the Court.

25. In Dr. LAM’s report dated 2 November 2006, he noted that, inter alia, there was (i) muscle wasting of left thigh (girth of thigh: 44 cm (right); 42 cm (left)); (ii) limited forward flexion at 20° (normal range is > 60°).  Dr. AU also made the same findings in his report dated 22 October 2006.  In my view, these findings fully support the complaints that the Plaintiff cannot bend and would suffer pain after prolonged walking.  It should be noted that the joint examination took place on 10 October 2006, i.e. 21 months after the Occupational Therapist stated that the Plaintiff had a standing and walking tolerance of 2 hours, when the Plaintiff complained that he had to take a rest after walking for 10 minutes and prolonged walking for 10 minutes and prolonged walking caused burning pain over his left leg, pain on both sides and swelling of left ankle.  It should be noted that Dr. LAM, the Defendant’s expert, did not express any adverse opinion in relation to these complaints. Further, if the Plaintiff had a standing and walking tolerance of 2 hours in 2004, there is no reason why the muscle wasting still existed.

26. For the reasons aforesaid and in the absence of sufficient and clear evidence (i) to contradict the Explanation given by the Plaintiff; (ii) to tell the Court how the occupational therapist obtained the figures as to the Plaintiff’s standing and walking tolerance; and (iii) the exact meaning of standing and walking tolerance, I accept the Plaintiff’s evidence concerning the conditions of his disabilities.

27. While Mr. Wong submitted that the Plaintiff should be able to find a job, there was no suggestion from the Defence what type of job was suitable for the Plaintiff.  In this regard, I fully accept the submissions and conclusion of Mr. Hingorani, who had in his final submission carefully analyzed the nature of the jobs which were stated as suitable for the Plaintiff. The Plaintiff is not fit to work as a factory worker, general labourer, cleaning worker or casual worker because he cannot bend and cannot walk/stand for long period of time. He is also not fit to work as office messenger, storekeeper or salesman as he cannot walk/stand for long time and because of language barrier. For obvious reasons, the Plaintiff is not fit to work as a watchman or car park attendant whose job nature is close to that of a watchman.  Some car park attendants work inside a booth to control the traffic flow and sometimes also act as cashier. This type of work, on the face, is fit for the Plaintiff. Nevertheless, one must also take into account the voiding problem of the Plaintiff. The Plaintiff needs long periods of time in the toilet thereby leaving his post unattended. This clearly renders him not fit for this type of work. In other words, it is my ruling that the Plaintiff cannot take up  the jobs which are said to be suitable to him. 

28. For the reasons aforesaid, I award $15,052 x 58 months (from September 2003 to June 2008) = $873,016 under this head.

(b)  Wife’s loss of earnings

29. Mr. Hingorani submitted that the Court should allow 12 months loss of earnings.  Mr. Wong submitted that 6 months was appropriate.

30. It was the Plaintiff’s case that the wife gave up her job to look after the Plaintiff.  There was no dispute that the Plaintiff required the assistance of his wife to clean himself because he cannot stand for prolonged time and he cannot handle towel and shower hose etc at the same time.

31. In the light of the recovery progress of the Plaintiff, I accepted Mr. Wong’s submission that 6 months is appropriate.

32. The award under this head is $8,000 x 6 months = $48,000.

FUTURE LOSS OF EARNINGS

33. The parties agreed a multiplier of 11.

34. The Plaintiff in his Re-revised Statement of Damages claimed that but for the accident, he would have been promoted to the position of foreman earning $20,000 per month.

35. The only evidence from the Plaintiff is that one of his colleagues, Mr. Thapa Sanjay, was promoted to the rank of foreman in about 3 months after joining the 1st Defendant.  The Plaintiff believed that he possessed the prerequisites and quality to be promoted like Mr. Sanjay.

36. I am not of the view that the Plaintiff had adduced sufficient evidence to prove his claim under this head.  There is no evidence as to (i) what pre-requisites or quality a foreman must possess; (ii) whether there is any vacancy for the post; (iii) how the employer would fill up the vacancy; (iv) if the employer fills up the vacancy by promotion, what are the promotion criteria; and (v) whether there is other competent candidate etc.

37. For this reason and in the light of my ruling in hereinabove, I award $15,052 x 11 x 12 = $1,986,864.  The total entitlement including MPF is $1,986,864 x 1.05% = $2,086,207.20.  As I make full award of loss of earnings, there is no question of loss of earning capacity here and no award is made thereunder.

LOSS OF SERVICE/LOSS OF SOCIETY

38. The Plaintiff claims a lump sum of $50,000.

39. The Plaintiff complained that by reason of his disability, he cannot assist his wife in carrying a load when shopping, carryout household and home improvement work.

40. It is the evidence of the Plaintiff that his wife used to work round the clock either from 11 am to 11 pm or from noon to midnight.  The Plaintiff, on the other hand, worked from 7 am to 7 pm.  It is clear that the Plaintiff cannot have much time to spend with his wife except on rest days.

41. There is evidence that the Plaintiff can lift weight though not good enough to work at a construction site.  It is however good enough to assist his wife while shopping.

42. For the reasons aforesaid, I make no award under this head.

FUTURE MEDICAL EXPENSES

43. The parties agreed a sum of $214,000.

SPECIAL DAMAGES

44. The Plaintiff claimed a total sum of $45,599.  Mr. Hingorani accepted that the costs for medical report at $7,300 should not be claimed here.  As a result, the parties agreed a sum of $38,299.

SUMMARY OF QUANTUM

45. In summary, the award is as follow:

(i)	PSLA	$700,000
(ii)	Pre-trial loss of earnings
	(a)    - Plaintiff’s earnings	$873,016
	- MPF (5% x $873,016)	$43,650.8
	(b)   - Wife’s earnings	$48,000
	- MPF (5% x $48,000)	$2,400
(iii)	Future loss of earnings (including MPF)	$2,086,207.20
(iv)	Future medical expenses	$214,000
(v)	Special damages	$38,299
	LESS	($593,748.39)
(vi)	ECC payment received
(vii)	Interim payment	($1,200,000)
		$2,211,824.61

INTEREST

46. Interest at half judgment rate will be awarded on special damages and pre-trial loss of earnings from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

COSTS

47. I make an order nisi (to become absolute 14 days after the handling down of this judgment) that the Defendant do pay the Plaintiff the costs of this assessment to be taxed if not agreed.  Certificate to Counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.