LIMBU MUNI PARSAD v. HYUNDAI ENGINEERING & CONSTRUCTION CO LTD

HCPI 1167/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1167 OF 2003

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J U D G M E N T

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1. The Plaintiff claims damages from the Defendant for injuries by him in the course of his employment by the Defendant.

The Facts

2. The Defendant is and was at all material times the principal contractor at Tung Chung Station Development Package II Phase site. The Plaintiff was employed by the Defendant as a direct labourer (hacker).

3. On the 31 October 2001, the Plaintiff was working on the site. He was standing on an aluminum ladder and smoothing the ceiling when the ladder tilted suddenly causing the Plaintiff to fall with his back landing on the ground which was covered with bricks and construction debris.

4. The Plaintiff alleged that he complained to the Defendant about the instability of the ladder prior to the accident but was ignored.

Liability

5. The Defendant had conceded liability in this case.

Quantum

6. There is no dispute that the Plaintiff suffered a compression wedge fracture L2 vertebrae and contusion of the abdomen.

7. Issue is taken as to whether the Plaintiff suffered a possible right shoulder contusion.

8. The medical report of Dr Wong, PW2, [Divider 3 page 10-14] stated his prognosis that the right shoulder contusion had resulted in "mild reduction of the right shoulder movement and some residual pain", otherwise the "overall function of the right upper limb remains satisfactory".

9. In court, Dr Wong explained that when he examined the Plaintiff there was definitely something wrong with his right shoulder, and, after considering the history of the fall, Dr Wong's opinion was that the shoulder complaint could have been a "post traumatic frozen shoulder" i.e. the injury was not caused by a direct force or impact on the shoulder but is a result of an inflammation or tightening up of the shoulder caused by the fall from a height. Dr Wong also noted that the Plaintiff did not complain of a contusion on his left shoulder although Dr Wong found that there was similarly reduced movement in his left shoulder thus Dr Wong believed that it was more likely than not that Plaintiff was telling the truth about his right shoulder.

10. Dr Lau, DW1, in his report [Divider 3 page 16-24] found that there was no muscle wasting in the shoulder regions but that there were limitations in the "active movements of both shoulders". But, Dr Lau said that since the Plaintiff only complained of the right shoulder a few months after the accident and in the absence of muscle wastage, he believed the shoulder symptoms were unrelated to the accident" even if they were genuine.

11. In court, Dr Lau agreed that during his examination of the Plaintiff he found that the Plaintiff was unable to move his shoulders well and that it was possible that the Plaintiff could be in pain but that pain cannot be supported by any medical evidence.

12. Both doctors agree that there were no muscle wasting or obvious deformity in the upper limbs or shoulder. Thus it would tend to disprove the Plaintiff's contention that he could not use his right hand effectively. I am inclined to accept Dr Wong's opinion that the Plaintiff has what is called a post traumatic frozen shoulder as a result of the fall.

13. I was impressed with Dr Wong's evidence in the witness box which showed a thorough and unbiased assessment of the Plaintiff's disability real and perceived. Dr Lau's evidence, however, did not inspire the same confidence particularly his opinion that the Plaintiff could "probably resume his pre-accident job at the construction site" at the end of his sick leave as he sounded a little uncertain. Under cross-examination, Dr Lau had to admit that he had not bothered to find out what kind of job responsibilities the Plaintiff had at the construction site prior to the accident.

14. I find therefore that Dr Wong's diagnosis that the Plaintiff may have a genuine complaint about his right shoulder contusion as persuasive. I accept Dr Wong's conclusion that the Plaintiff may have suffered a traumatic frozen shoulder. Dr Wong also observed that upon examination of the Plaintiff, he find that the Plaintiff's left shoulder may also have a similar problem but the Plaintiff only complained of the right shoulder. Both Doctors agree however that there was no muscle wasting thereby indicating that the Plaintiff may have exaggerated his symptoms.

15. I accept that the Plaintiff had a traumatic frozen shoulder as a result of the fall and he had some physical discomfort but was able to use his right arm and shoulder normally.

16. As for the abdomen contusion, as Mr Wong pointed out, it is well documented in the medical reports from Princess Margaret Hospital and Dr Wong's report and Dr. Lau did not take issue with it.

I therefore find that Plaintiff did suffer a stomach contusion as a result of the fall.

17. As for the impairment of the whole person, Dr Wong assessed the Plaintiff's impairment at 8% and loss of earning capacity at 10% whilst Dr. Lau assessed the Plaintiff's impairment of the whole person and loss of earning capacity at 6% respectively.

18. As I have said, I accept that the Plaintiff had exaggerated his impairment so I find that the Plaintiff's impairment of the whole person is at 7% and his loss of earning capacity at 8%.

Pain, Suffering and loss of amenity of life

19. The Plaintiff suffered a compression wedge fracture of L/2 vertebrae, a traumatic frozen shoulder and abdomen contusion. The spine has healed with no neurological deficit apart from some residual pain needing occasional analgesics, and his right shoulder has mild limitation and residual pain. The Plaintiff was hospitalised for about 6 days after the accident and was given sick leave for about 10 months.

20. I have considered the cases of Yeung Sze v Win Art Design and Decoration Co. Ltd (HCPI 6 of 2000) and Rai Bina v Pacific Crown Engineering Ltd and Others (HCPI 338 of 2001) and I consider that they serve as good guidelines but each case is, of course, based upon its own facts.

21. I am satisfied that this case does not belong to the serious injury category and I consider that an award of $200,000 is appropriate for the Plaintiff's pain, suffering and loss of amenities, after taking into account inflation.

Pre-trial loss of earnings

22. The Plaintiff was a hacker earning about $16,000 a month at a daily wage of $450 at the time of the accident. This is not disputed by the Defendant. However, the Defendant argues that from 1 May 2002, all "hackers" were transferred to the post of "General Labour" responsible for rubbish disposal and their daily wages was reduced to $350 a day.

23. It is clear from the evidence that the transfer of each "hacker" to the "General Labour" post requires the signed consent of the "hacker" and in this case, no evidence has been forthcoming as to whether had the Plaintiff refused to give his consent and is sacked whether he would have been able to get another "hacker" job at another construction site for $450 a day. I, therefore, accept that since no consent for transfer had been obtained from the Plaintiff for the last 4 months of his sick leave, he would have a loss of earnings (450 x 26 x 4) of 46,800 and for the first 6 months of his sick leave he would have a loss of earnings of $96,000 (16,000 x 6) thus making a total loss of earnings for the 10 months' of sick leave period of $142,800, (i.e. 31 October 2001 to 27 August 2002).

24. The above calculation is based on the fact that I accept that the Plaintiff could have remained at his "hacking" job for the last 4 months working a total of 26 days and earning $11,700 a month. I accept that the Defendant had transferred the other Nepalese workers to rubbish disposal when the site became less busy in the last 4 months and therefore the Plaintiff would not have been able to work overtime and as the Plaintiff had agreed, without overtime he would only work for 26 days a month.

25. After the expiration of his sick leave, the Plaintiff, according to Dr Wong, whose evidence I accept, said that the Plaintiff could do light to moderate manual work though he could not return to his pre-accident job. The Plaintiff thus could have mitigated his loss from 27 August 2002 to date of trial. The evidence show that prior to working on a construction site, the Plaintiff had worked as a security guard or cleaner and I see no reason why he could not have done so after his sick leave was over. According to the Wage and Payroll Statistics supplied by the Census and Statistics Department of the HK Government, in June 2002, a general cleaner would have earned $5,300 a month and a guard in real estate could have earned $7,749 per month. In March 2004, a cleaner would have earned $5,085 a month and a guard in a real estate would have earned $7,251 per month, the Plaintiff admitted he used to earn $7,000 to $8,000 a month as a security guard.

26. Taking into consideration the Plaintiff's apparent lack of expertise in the Punti dialect, he would have encountered some difficulty working as a guard in a real estate position. I, therefore, find that the Plaintiff could have found a job as a cleaner or guard at $6,000 per month to mitigate his loss.

27. The Plaintiff concedes that after his sick leave period, but for the accident he would be able to resume his work as a "hacker" earning $450 a day working 26 days. Thus he could have earned $11,700 per month, and the Plaintiff calculates the pre-trial loss of earnings from 27 August 2002 to date of trial as 23 months.

Therefore:

I would award $273,900 as the pre-trial loss of earnings.

Post-trial loss of earnings

28. The Plaintiff is now aged 40 and at the date of the accident was aged 37. Following the case of Fung Kwok Ki v Wing Sang Construction Co. Ltd & Others [HCPI 757 of 2002] I would adopt a multiplier of 12.

29. I consider therefore that the calculation under this head is as follows:

Loss of MPF contributions

30. The Plaintiff is entitled to a monthly contribution from the Defendant under the MPF Scheme of 5% of his monthly salary. Therefore:

Pre-trial loss

$16,000 x 5% x 6	=	$4,800
$11,700 x 5% x4	=	$2,340
$11,700 x 5% x 23	=	$13,455
		$20,595

Post-trial loss

$5,700 x 5% x 12 (months) x 12 (years)	=	$41,040
Total loss of MPF = $41,040 + $21,595	=	61,635

Loss of earning capacity

31. As Browne L.J. said in Moliker v A. Reyrolle & Co. Ltd. (1977) 1 WLR 132 at p.142 A-C:

"The consideration of this head of damages should be made in two stages. 1. Is there a 'substantial' or 'real' risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff's chances of getting a job at all, or an equally well paid job."

32. It is clear that the Plaintiff in this case will no longer be able to work as a "hacker" and that because of the Plaintiff's lack of education and language skills his choice of jobs which do not entail hard physical labour is limited and there is a real risk that he may suffer a substantial period of unemployment.

33. Therefore I award the Plaintiff the sum of $140,400 (11,700 x 12 months) for loss of earning capacity.

Medical and Travelling expenses

34. This has been agreed between the parties at $5,000.

Employment compensation award

35. The amount of $305,000 which had been given to the Plaintiff under the employment compensation award would be deducted from the total amount of damages awarded by this court.

Summary

Interest

37. The interest on past pecuniary losses and expenses calculated at half the current judgment rate from the date of the accident to date of judgment and thereafter at full judgment rate.

38. Interests on general damages for pain, suffering and loss of amenities will carry interest at 2% from the date of service of the writ to the date of judgment and thereafter at judgment rate.

39. I shall leave the actual calculation of the interests to the solicitors of the Plaintiff to work out.

Order

40. There will be judgment for the Plaintiff in the sum of HK$1,196,755 together with interests to be calculated in the manner already stated above.

Costs

41. There will be a cost order nisi that the Defendant do pay the costs of this action to the Plaintiff, to be taxed if not agreed.