CHUNG YIU KWAN v. EAGLE ENGINEERING CO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION No 528 of 1995

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ASSESSMENT OF DAMAGES

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1. This case arises out of an industrial accident which occurred on 22^nd June 1992. The plaintiff was at the time f the accident employed by the defendant as a driver and fitter of air-conditioning and metal kitchen equipment units.

2. The writ was issued on 13^th June 1995. By an order dated 5^th June 1996 Master O'Donnell gave leave to effect Substituted service on the defendant. Interlocutory judgment with damages to be assessed was obtained on 31^st October 1997.

3. Hearsay notices and the plaintiff's list of documents were filed on 28^th September 1998. The defendant has not filed any Counter Notice. The notice of appointment of damages was issued on 16^th November 1998.

4. At the assessment hearing the plaintiff was represented and called two witnesses. The defendant did not appear and was unrepresented.

5. The plaintiff's statement dated 21^st October 1998 was admitted into evidence. The plaintiff also gave oral evidence.

6. The plaintiff was born in Hong Kong on 15^th August 1966. He was educated up to Form 3 secondary school. He had worked as a kitchen worker and labourer in the vegetable market and as a driver before he started working for the defendant in 1991. At the time of the accident he was 26 years old and earning a monthly salary of $7500 per month.

7. On the day of the accident, the plaintiff had been instructed by one of the partners of the defendant to install a metal smoke hood at a site in Wong Chuk Hang. As the plaintiff and a co-worker were attempting to install the smoke hood to the ceiling, the metal hood fell on to the plaintiff.

8. The metal hood weighed approximately 500 to 600 lbs. It fell from a height of about 9 feet and hit the plaintiff's left shoulder and left lower leg at the lateral aspect.

9. The plaintiff was sent to Queen Mary Hospital. There was a 7cm laceration over the left shoulder, and a 10cm laceration over the lateral aspect of the left calf. His wounds were treated and sutured.

10. According to the report of Dr Cheung Ho Man of the Queen Mary Hospital, operative repair was done and no major neurovascular injury was found. He was discharged on 24^th June 1992 and asked to attend follow up treatment at Sai Ying Pun Clinic.

11. The plaintiff attended the Sai Ying Pun Clinic about two times and the Tuen Mun Hospital about five times. He went to see a bonesetter about his left leg initially, and later for his sprained back. The plaintiff complained that the injury to his left leg meant that he was not able to put any weight on his left side. His attempts at compensating for that weakness in turn caused him to sprain his back on many occasions.

12. The plaintiff complained that his left leg remained very weak, and unable to bear much weight. Whenever he carried any heavy object, he experienced severe pain at his left ankle. He was unable to run nor to crouch down. The plaintiff felt embarrassed by the unsightly scar on his left shoulder because it resembled a chop wound, leading others to think that he had been injured in a gang fight.

13. Dr David Lee examined the plaintiff in August 1994. He found muscle wastage of 1/2 cm on the left leg compared to the right.

14. Dr Brian Chan Kwok Pui gave oral evidence and his report dated 9^th September 1998 was admitted into evidence. Dr Chan set out the history of the accident, the documents supplied to him, and the results of his physical examination of the plaintiff which took place on 18^th August 1998. Dr Lau's findings were similar to those of Dr David Lee in that the plaintiff now carries unsightly scars on his shoulder and left calf; there has been loss of mobility in his left leg. Dr Chan also found evidence of muscle wasting in the injured leg. He found that the leg injury had curtailed the plaintiff's participation in soccer, and had affected his ability to lift heavy objects.

15. Dr Chan concluded that the plaintiff has suffered a 4% impairment of the whole person and a 10% loss of earning capacity.

Pain Suffering Loss of amenities

16. The plaintiff sought $350,000 under this head of damage.

17. Counsel for the plaintiff conceded at the outset that the injuries here are not sufficiently serious to fall within the "serious injury" category, but submitted that the Chan Pui Ki case provided a useful starting reference point.

18. This heading of damages has two elements. Under the pain and suffering aspect, the plaintiff cannot be said to have undergone anything exceptional. His stay at Queen Mary Hospital was 2 days only. He did not have to have any lengthy or painful treatments such as traction or skin grafts. The plaintiff's scars may be unsightly, but they are situated in areas which would not normally be seen. The shoulder scar would be covered by clothing even in the summer. The scar in the lower left leg would normally be covered up by socks and/or trousers.

19. Counsel stressed that the plaintiff was a very keen sportsman. As a result of his leg injury he has now been deprived of participating in basketball, table tennis, badminton and especially his favourite game of soccer. It was argued that in the circumstances the plaintiff had "suffered a very substantial loss of enjoyment of life by reason of the curtailment of his sporting and physical activities, which was what the category of "loss of amenities" was meant to cover," citing Chun Yat Nam v AG For and on behalf of the Commissioner of Police Civ App No 92 of 1994.

20. The court has to assess the effect of the deprivation, the effect of the loss of amenities upon the plaintiff in this case. One important consideration must be to assess how long the plaintiff would be deprived of those amenities. For instance the loss of enjoyment of participation in sport would only be of limited duration, whereas the loss of one's sight would affect one for the rest of one's life.

21. The length of time a person has to enjoy participation in sport would in general depend on the type of sport. For instance one would expect to be able to participate in some of the less vigorous sports until one was much older. The sports enjoyed by the plaintiff prior to his injury are all sports participated in by the young and vigorous. Players rarely participate in basketball and soccer over the age of 35. A 40 year old soccer player is unheard of, whereas golfers and lawn bowlers may play successfully well into middle age and beyond. In the circumstances I find that the plaintiff would not have been able to participate in badminton, table tennis, basketball or soccer past the age of 38 or thereabouts. Therefore period the plaintiff would have been deprived of the amenities would have been approximately 12 years from the date of the accident.

22. Counsel for the plaintiff could not call in aid any decision in support of her contention that the award for PLSA should be in the region of $350,000. She only referred me to Master Chu's decision in Lam Kwai Yip v Yuen Yun Kui A12617 of 1994 where $250,000 was awarded for PSLA. That plaintiff was hospitalized for 8 days and was given 177 days of sick leave. His doctor gave evidence that he would probably develop arthritis. Whilst the loss of amenities in that case cannot compare with this case, it can be argued that this plaintiff endured less by way of pain and suffering.

23. Taking into account the total effect of the injuries in this case, and taking into account all the factors discussed above, using my best judgment, I make an award of $300,000 under this head.

Pre-trial Loss of Earnings

24. I have considered all the evidence adduced under this head. I accept the evidence adduced from the tables of the Census and Statistics Department that the plaintiff's earnings as a driver/technician would have increased at the rate of about 10% per annum.

25. The plaintiff was granted 22 days' sick leave after the accident. He gave evidence that the defendant did not give him any sick leave pay at all. I accept that he is entitled to [$7500÷30 x 22] = $5500.

26. The plaintiff was then laid off by the defendant for about half a month. I accept that he is entitled to [$7500÷30 x 15]=$3750.

27. From about August 1992 to October 1993 the plaintiff worked as a driver for an establishment called San Po Poultry. He earned $7500 a month. I accept that had the plaintiff remained working for the defendant his wages would have increased by about 10% from about June 1993, making his monthly income about $8250. I accept that he is entitled to claim for loss of wages for the period from June 1993 to October 1993. [8250-$7500 x months]=$3750.

28. From about November 1993 to November 1994 the plaintiff worked for the Hong Kong Housing Services for Refugees at the Pillar Point camp as a Regulatory Assistant. I am informed the work was akin to that of a security guard and did not involve any clerical duties. He earned an average of $7500 per month. This was increased to $8060 from November 1994 after completion of a year's service. I accept that from November 1993 to June 1994, his loss of income would be [$8250-$7500=$750 per month]. Eight months at $750 per month comes to $6000.

29. Factoring in the 10% yearly inflation from June 1994, the plaintiff's loss of income would be $9075 per month. The plaintiff's loss of income from June 1994 would be [$9075-7500=$1575 per month]. From July to October is 4 months. The loss of income for that period is 4 x $1575=$6300.

30. The plaintiff's salary was increased to $8060 from November 1994, so his loss of income from that date would be [$9075-$8060=$1015 per month]. The plaintiff lost this job when the administration of the refugee camp was transferred elsewhere in December 1994. Two months at a loss of $1015 per month comes to $2030.

31. The plaintiff was unemployed from December 1994 to March 1995. Three months loss of income at $9075 per month comes to $27,225.

32. From about April to June of 1995, returned to work at the San Po Poultry for $6000 per month. As calculated above, the plaintiff's income would have been $9982 from June 1995. The loss of income for April and May 1995 [$9075-6000 x 2=$6150]; plus the [$9982-$6000=$3982]. The loss of income for that period comes to $6150+$3982=$10132.

33. The plaintiff was employed at the San Po Poultry at about $7500 per month from July 1995 to February 1996. That establishment ceased business in February 1996. The loss of income for that period would be at the rate of [$9982-$7500=$2482] per month. The loss of income for that period would therefore be 8 months x $2482=$19856.

34. From about March 1996 to about May 1997 the plaintiff was employed as a driver by the Wing Hop Farm at a daily wage of $250 per day. He worked 24 to 25 days a month, which came to about $6250 a month. The loss of income for March 1996 to May 1996 would be [$9982-6250=$3732 per month] $3732 x 3=$11196.

35. The 10% increase for inflation from June 1996 would make the plaintiff's nominal salary $10981.

36. The loss of income from June 1996 to May 1997 would be 12 months at [(10981-$6250=$4731 per month) x 12 =$56772.

37. From about June 1997 to February 1998 the plaintiff worked as a driver delivering for Yat Da vegetables until that establishment ceased business. He received a daily wage of $300 and worked an average of 25 days a month, making it $7500 per month. The 10% increase for inflation from June 1997 would make the plaintiff's nominal salary $12079 per month. The plaintiff's loss of income for this 9 month period would be [($12079-7500=$4579) x 9]=$41211.

38. The plaintiff was out of work in March 1998. The loss of income for this period would be $12079.

39. From April 1998 the plaintiff was a night shift driver for Yan Kee seafood. He was paid $8500 a month. He became unemployed when the seafood company ceased trading in June 1998. For the period of April and May 1998 his loss of income would be [(12079-8500=$3579) x 2=$7158].

40. The 10% increase for inflation from June 1998 would raise the plaintiff's nominal salary to $13286, The loss of income for June 1998 would be [$13286-8500=$4786].

41. There is a lacuna in the evidence relating to the plaintiff's occupation for the months of July and August 1998. I am told that he was unemployed from September 1998 to 12th January 1999. If I assume that the plaintiff was unemployed from 5 months July 1998 to January 1999, the loss of income for this period would be [5 x $13286]=$66430.

42. Since registering with the Labour Department, the plaintiff has now secured a job as an apprentice butcher earning $250 per day. He works a 24 day month. His loss of income is therefore [$13286-(250 x 24)=13286-6000]=$7286 per month.

43. The plaintiff's pre-trial loss of earnings come to a total of $287,710. That is $5500+ $3750 +$6000 +$6300 +$2030 +$27225 +$10132 +$19856 +$11196 +$56772 +$41211 +$12079 +$7158 +$4786 +$66430 +$7286.

Post trial Loss of Earnings

44. The plaintiff was born on 15^th August 1966. He was 26 at the time of the accident. He is now 32 years old.

45. From the cases referred to by counsel, I accept that an appropriate multiplier would be 15.

46. The plaintiff's notional earnings at present would be $13286 per month. [($13286 less his present earnings $6000=$7286) x I5 x I2 =$1,311,480.

Loss of Earning Capacity/Handicap in the market

47. In Lau Che-ping v Hoi Kong Ironwares Godown Co Ltd [1988] 2HKLR 650, Cons LJ said at page 655 "This bead of damages is intended to reflect: "the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market."

48. The court has to evaluate the present value of that future risk: see Moeliker v A. Reyolle & Co Ltd [1977] WLR 132,140 where Browne L.J. dealt fully with the matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on, inter alia, the claimant's age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment."

49. Just as in Lau Che Ping's case, there is no direct evidence before me that once placed, the plaintiff is likely to lose this new job as an apprentice butcher. The demands of this new job would not put the plaintiff in any particular disadvantage. As a butcher he would be able to shift his weight often whilst standing. There would be no need for him to have to put his body weight on his left leg for long periods.

50. In the assessment of handicap in the labour market, the factors one would have to take into account are first, as a newly hired worker he would be the most vulnerable if the employer considers redundancies. Second, his injuries would place him at a disadvantage when compared to an able-bodied man. I will also accept, in the light of the plaintiff's difficulties in locating employment post accident that in the natural order of things he may be unemployed in the next 15 years. A global sum of $100,000 was submitted by counsel to be the appropriate sum. In the light of all the circumstances, I will award the sum of $100,000 claimed.

Medical Expenses

51. Although no documentary evidence was adduced under this head, I accept that the plaintiff incurred the sums claimed, and that the sum of $5754 claimed under this head is reasonable. I will allow the sum claimed.

Travelling expenses

52. A sum of $3450 was claimed. Part of that sum was for taxi fares for the plaintiff's parents to visit him in Queen Mary Hospital from Tuen Mun. Mr Justice Cheung allowed sums for travelling expenses for the plaintiff's parents/family to visit the plaintiff whilst he was injured in hospital in Pang Wai Chung v Hoi Tat Rubber Factory PI 793 of 1995, and in Lee Hon Cheung v Chan Tang Kai & North Sea Company Ltd HCA004522 of 1991.

53. In the circumstances, I will allow the sum $3450 claimed.

Special and Nutritious food

54. A total claim of $23,000 was originally made under this head. It was made up of a claim for $6000 for Chinese herbal medicine and a claim for $17,000 for tonic food.

55. At the assessment hearing counsel for the plaintiff submitted that since the plaintiff had not produced any receipts relating to the purchase of nourishing food and Chinese herbal medicine, and since the plaintiff had not adduced any medical evidence justifying their consumption, the plaintiff made a concession under this head and would only claim for the sum of $5000.

56. Even though the claim has now been reduced to $5000, the court still has to decide whether such a claim can be allowed. The Full Court considered a claim for nourishing food in Mui Ling-Kwan v Wong Yin-Wah & Ors [1973] HKLR 465. McMullin J said at p478 "I think however there should always be evidence to show that a special diet was adopted not wholly as a self-prescription of favourite delicacies but on the advice of some qualified person on whose judgment the court can rely, it being left to the court to decide in each given case, having regard to the nature of the advice and the efficacy of the prescription, whether it was in all the circumstances justifiable."

57. The evidence given by the plaintiff was that his mother had sought the advice of a friend and of a herbalist before purchasing the herbal medicine or nutritious food. The mother of the plaintiff did not give evidence. The herbalist who gave advice to the plaintiff's mother was not named. There was no evidence to show what sort of nutritious food had been recommended by this unnamed herbalist, nor why he had recommended it. Of the one kind of nutritious food named by the plaintiff it was unclear whether this had been purchased at the recommendation of the mother's friend, or the unnamed herbalist. On the evidence adduced it is not possible for the court to decide that any herbal medicine or nutritious food was justified in the circumstances. This is not a sustainable claim in my view and I reject it.

Damaged clothing

58. The sum of $200 for clothing damaged in the course of the accident is allowed.

SUMMARY

Interest

59. I award interest on the awards for pain, suffering and loss of amenities (PSLA) at 2% per annum from the date of the writ 13^rd June. 1995 to the date of the assessment, 3^rd February 1999. I award interest on the pre-trial loss of earnings and special damages at half the judgment rate per annum from the date of the accident 22^nd June 1992 to the date of the assessment, 3^rd February 1999. I will leave it to the plaintiff to calculate the interest.

Costs

60. The plaintiff is awarded his costs, to be taxed if not agreed, and the plaintiff's own costs are to be taxed in accordance with Legal Aid regulations.