CHEUNG CHUN WING v. SZETO SAU HA AND ANOTHER

HCP1 231/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 231 OF 1999

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Assessment of Damages

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Introduction

1. The plaintiff, aged 38 at the time of the hearing, was born on 14 February, 1962. On 14 October, 1996 he visited a clinic operated by the 2nd defendant, a medical practitioner for treatment of headache and flue-like symptoms and was administered with an intramuscular injection in the left buttock by the 2nd defendant's nurse, the 1st defendant. The injection unhappily caused injury to the plaintiff's left sciatic nerve and he brought suit to recover damages for loss and damage. Interlocutory judgment was entered on 11 October 1999 and the matter has now come before me for assessment of damages.

The facts

2. The plaintiff began working for Gammon Construction Limited ("Gammon") on 4 November 1991 as an assistant charge-hand erector earning $603 per day. Being the sole provider for the family consisting of his wife and two young children, he generally had to and did work between 29 and 30 days a month. That he was a hardworking construction worker and conscientious family provider with no savings to speak of is clear on the evidence.

3. On 14 October 1996, he was negligently injected with medication by the 1st defendant during consultation with his doctor, the 2nd defendant and suffered injury to his left sciatic nerve. The agreed medical report dated 9 January 1997 from Pamela Youde Nethersole Eastern Hospital revealed that the plaintiff had suffered pain, weakness and numbness in his left leg. The power of his hip and knee was grade 4 (5 being normal motor function) and the sensation of light touch was subjectively diminished over the whole left lower limb. Motor and sensory charts were performed by the physiotherapist and occupational therapist and they demonstrated similar findings. The plaintiff was discharged on 17 October 1996 and regular out-patient clinic follow-up was arranged. The neurological examination on 10 December 1996 gave a similar finding except for a slight improvement in his left lower limb power. Exercise tolerance was 20 minutes.

4. The plaintiff was granted sick leave for approximately 5 months to 18 March 1997, but he decided to return to work less than a month following the mishap at the surgery. He explained that despite feeling continual numbness and pain, there was little option for him as he needed to support his family. He remained in the job until he was made redundant in July 1999 when he was paid a little over $100,000 by way of severance pay. In November 1997, he was promoted to charge-hand erector. Since January 1998, he was able to earn between $693.75 and $723.47 a day.

5. The plaintiff further explained that he was able to discharge his various duties that included heavy lifting and climbing of scaffolding on account of the help given him by his supervisor and fellow workers. Whilst working at the Chak On Estate construction site, his immediate superior had offered him lighter duties that entailed less climbing and heavy lifting. He was also given more supervisory work. In order to manage, he said he had to take more frequent rests. His pain and discomfort were controlled with prescribed painkillers and analgaesic balm and Chinese tonics that his wife had regularly prepared for him. After he was transferred to the Tsing Yi site, he had to work on average 27 days a month from January 1999 until his redundancy in July 1999. He did not receive any special consideration from his new supervisor there. He stated that work had become increasing difficult for him and he had to take more frequent breaks. Since his promotion, his duties became more supervisory and much of the heavy work was done by his subordinates. He said he soldiered on despite his debilitating condition in order to receive the redundancy payment he knew would be forthcoming. Having heard and seen the plaintiff give evidence, I formed the view that he was an honest and credible witness and I accept what he has told the court. Credibility is especially material in the instant case as there was much dispute between the two neurologists as to whether his continuing disability and pain were well founded or feigned.

The medical evidence

6. The plaintiff's consulting physician, Dr. Robert Ho ("Dr. Ho") first examined the plaintiff on 20 November 1997. He found the plaintiff's complaints were consistent with nerve injury as described in his first report dated 13 December 1997. His examination revealed there was a grade 4 plus weakness of left ankle eversion (outward movement of ankle). On sensory testing, there was subjective reduction to light touch and pin prick over the lateral aspect of the left lower leg and dorsum of the left foot. Straight leg raising on the left side induced pain and pulling over the left thigh and buttock at 45 degrees. All these he opined were consistent with lesion of the sciatic nerve following the accident. EMG and nerve conduction studies were carried out in November 1997. No F wave could be elicited on stimulation of the left extensor digitorum brevis over the left ankle. This Dr. Ho explained was an objective test and the result was indicative of probable injury to the motor pathway of the affected lower limb. He concluded that the plaintiff had sustained injury to his left sciatic nerve as a result of the injection to his left buttock. He further stated that there was residual motor impairment that would affect the plaintiff's ability to continue with his present employment. A 25% loss of earning capacity was given.

7. Subsequent examinations by Dr. Ho and Dr. Yu Yuk Ling for the defendants ("Dr. Yu") showed significant improvement of motor function. Nerve conduction tests showed that the F wave had returned.

8. Dr. Yu's opinion (he had examined the plaintiff on three occasions but only two of his report had been disclosed) was that the plaintiff was malingering and exaggerating his complaints. He was quite adamant that the alleged weakness in the left limb was voluntary as his finding of grade 3 to 4 motor power was entirely at odds with the plaintiff's performance as observed in his surgery and as recorded on the video tape. The video tape was made surreptitiously by the defence and it showed the plaintiff walking about with no apparent pain, discomfort or difficulty. As recorded, the plaintiff's gait and demeanour appeared normal. The fact that the plaintiff was able to resume work and secure a promotion reinforced his conclusion. The absent F wave had returned on test he conducted. In short, there was no motor deficit and he was hard pressed to come up with a mechanism on the medical literature that would explain the plaintiff's complaints of continuing pain, numbness and weakness as described by the plaintiff. With no motor deficit and because of the structure of the sciatic nerve, any sensory deficit or disturbance would be mild. He therefore concluded that the plaintiff was deliberately under performing during his examinations and grossly exaggerating his residual complaints. He did however accept that the plaintiff had suffered an injury to the sciatic nerve as a consequence of being negligently injected in the buttock. He was prepared with some reluctance to assess the plaintiff's disability and loss of earning capacity at 5%. This assessment, Dr. Yu added was generous. Dr. Ho estimated permanent disability to be in the region of 8%.

9. Dr. Ho did not accept Dr. Yu's conclusion. He considered that Dr. Yu had been superficial in his approach. In his report dated 16 January 2000, Dr. Ho commented that motor power was essentially normal but that on sensory testing, there was still subjective reduction to pin prick and light touch over the lateral and posterior aspect of the left leg. As for the plaintiff's complaint that he would experience discomfort, pain and numbness after walking or working for a period, he offered that the condition was consistent with fibrous or neuroma formation at the site of the damage. Friction brought on by activities such as walking, lifting and climbing would trigger the sensory disturbance and discomfort complained of. He considered that the plaintiff's ability to do manual work as before had been seriously compromised.

10. Having carefully listened to the doctors' evidence and the reasons given for their findings, I am inclined to prefer Dr. Ho's evidence. He has a wealth of experience (as does Dr. Yu ) in the field of neurology. His explanation for his conclusions make eminent sense even to a layman. I therefore conclude that the plaintiff has suffered and continues to suffer for disability as found. Such condition has made it impossible for him to return to his former work as a charge hand erector. It was against this background that I accept that it was not unreasonable for him to take up employment as a watchman in March 2000.

PSLA

11. The plaintiff contended that his residual disability was genuine (as I have found) and its impact on his life and working ability was such as to bring him within the lower end of the serious injury category. With inflationary adjustment, damages should be in the region of $550,000. Plaintiff's counsel referred to Lai Wah Wai v Castco Testing Centre [1996] 2 HKC 44 and Lai Kin Wah v Hip Hing Construction Co. Ltd [1997] HKLRD C47. These and the authorities the defence referred me to which I have read are useful guides on quantum and approach to assessment, but none of them is on all fours with the instant case. Defence counsel submitted that an award under this head ought not to exceed $150,000.

12. I accept the findings of Dr. Ho for reasons stated. It is patent that the nerve damage has had and will continue to have serious consequences for the plaintiff particularly from the point of view of his working capacity. That he is now no longer fit for construction work of the nature he previously performed is patent. As we have heard, he even experienced some difficulty working for his new employers as a security guard. Hence his change to daily rate. He cannot perform for as many days a month as he would have wished. Doing the best that I can, I consider that an award of $480,000 to be just and proper. This sum I shall award for pain, suffering and loss of amenities.

Pre-trial loss of earnings

13. The evidence established that the plaintiff was engaged by Gammon as an assistant charge-hand erector with a daily wage of $603. On average he worked 29 to 30 days each month. It was admitted that his then monthly income had ranged between $17,487 and $18,090. His employment with Gammon began on 4 November 1991. After the accident and following a brief period of sick leave, he returned to work. In spite of his injury and residual disability, he worked hard at his job. His industry and dependability having been recognised by his employers, he was promoted to charge-hand erector in November 1997 and he held that position until he was made redundant on completion of Gammon's project at Tsing Yi. It was admitted that his salary was increased on 1 January 1998. At the time he was commanding a daily wage of between $693.75 and $723.47.

14. It was the plaintiff's evidence, which I accept, that he had continued to suffer pain in his left buttock and left leg, a condition that was aggravated by his having to undertake heavy lifting and climbing of scaffolding in the course of a working day. After his return to work, a sympathetic foreman had assigned him lighter duties such as joining ironmould and erecting scaffolding. He was also asked to supervise fellow workers. This state of affairs lasted for about one year. He was moved to Tsing Yi from the Chak On Estate Construction site after his elevation to charge-hand erector in November 1997. There his principal responsibility was to supervise workers putting up scaffolding, but he was also required to do some heavy lifting and scaling of scaffolding from time to time. At Tsing Yi, he received no special consideration from the foreman.

15. It was his case that he was able to manage his assigned duties with the help of his fellow workers and later subordinates after his promotion when the nature of his employment became supervisory to an extent. His sympathetic foreman at Chak On Estate had helped and encouraged him to a large degree. In spite of all this, he had to frequently resort to painkillers to get through the working day. He said the Chinese medicine comprising of deer's tail and other herbals prepared by his wife for his consumption had also alleviated his symptoms.

16. On returning to work following his injury, the uncontroverted evidence was that he was only able to work on average 24 to 25 days each month between 31 October 1996 and 31 December 1997. From January 1999 until his redundancy in July 1999, the rush by Gammon to complete its construction project in time put considerable pressure on its work force. Consequently, the plaintiff was obliged to work on average 27 days a month.

17. Following his termination by Gammon in July 1999, despite genuine efforts to seek alternative employment, he was only able to secure work as a security guard for Ever Safety Security Services Co. Ltd on 10 March 2000. I wholly accept as justified the reason he gave for looking for work away from construction sites. He was offered a much-reduced salary of $6,000 per month as a watchman, a job he took as he plainly needed to support his family of which he was the sole breadwinner.

18. As watchman, he was required to work long shifts of 12 hours a day. The constant standing and walking entailed aggravated the pain and weakness in his buttock and left leg. As a result of having had to take days off work because of the on-going litigation and his condition, his employers suggested and he agreed that from 1 April 2000, he should be paid a flat rate of $230 per day.

19. The Government statistics for October 1999 suggested that a steel erector could earn $865.70 per day. The plaintiff's agreed wage was $603 a day at the time of the accident. The appropriate median for assessing past wage loss should therefore be $734.35 ($603 + $865.70 / 2). But for his injury, the plaintiff would have continued in his chosen field from 14 October 1996 to 20 June 2000, the day before the adjourned hearing commenced. What he should have been able to earn is calculated thus:

$734.35 x 29 day per month x 43 months and 35 days, or a total of $941,436.70.

20. His actual earnings from 14 October 1996 to 20 June 2000, I assess as follows:

(a)	14/11/96 to 1/4/97 ($603 x 115 days)	=	$69,345
(b)	1/4/97 to 31/3/98	=	$237,606
(c)	1/4/98 to 31/3/99	=	$231,295
(d)	1/4/99 to 7/99	=	$105,649
(e)	10/3/00 to 20/6/00	=	$19,320
	(10/3/00 to 31/3/00 = 19 days x $230 or $4370 plus April and May 2000 or $5,520 x 2 months = $11,040 plus 1/6/00 to 20/6/00 or 17 days x $230 = $3,910)

21. The plaintiff's loss of earnings to 20 June 2000 amounts to $278,221.70 ($941,436.70 less $663,215). This sum is rounded up to $278,222.

Prospective loss of earnings

22. The plaintiff, a once able-bodied construction worker now aged 38, is no longer able to return to his former employment on account of his disability as I have found on the evidence. For this reason, he will continue to suffer loss of earnings in the future. It was submitted that but for the accident, he could have continued as a construction worker at least until he was 60. This I accept as a realistic assessment of the plaintiff's probable working life. He plainly has a family to support and will undoubtedly choose to work for as long as he is able, being the sole breadwinner with no savings to mention.

23. Prior to his injury, he was working 29 to 30 days each month. Reverting once more to the Government statistical daily wage of $865.70 for steel erectors and adopting a 29-day working month, his prospective monthly salary should be $25,105.30 per month. His testimony was that he was only able to earn $230 per day from 1 April 2000 as security guard. He would average 23 or 24 working days a month. His monthly salary since April would amount to $5,520. I assess his future loss of income at $19,585.30 per month ($25,105.30 - $5,520).

24. In view of his age and the probable duration of his working life, I consider a multiplier of 12 to be appropriate: see Mak Yiu Keung v Ho Cheung Kat (1995) HKLJ 420, Tsang Chung-wan v Li Ming (1998) HKLJ 119, Lo Chi Bun v Leung Wah Kwan (1998) HKLJ 262, Wong Lai Kai v Wu Chan Choi (1999) HKLJ 337 and Tsoi Kwong Ming v Green Valley Landfill Ltd (1999) HKLJ 487.

25. Damages under this head are therefore adjudged to be $2,820,283.20, say $2,820,283 rounded down ($19,585.30 x 12 years).

Loss of earning capacity

26. No award is made under this head in view of the approach I have adopted, a fact which counsel for the plaintiff's fully accepts as being apt.

Special damages

27. Special damages are admitted save as to the claim for tonic food. The agreed items consist of medical and travelling expenses totalling $2,112. This I shall allow as agreed.

28. Of some controversy is the sum of $82,000 expended over a period of about 41 months by the plaintiff for tonic foods comprising of deer's tail and other herbs, which the plaintiff claimed had assisted in alleviating pain. Such tonics were recommended by the wife's friend. In evidence, the plaintiff stated that he was better able to work and suffered less discomfort and pain in the aftermath of the accident for having regularly consumed them. He began taking these preparations two months after his injury in addition to the analgaesic medication prescribed. Some receipts not all of which the plaintiff's wife had retained partially substantiated this claim. In view of the period over which these special preparations were taken and the fact that the plaintiff had benefited from them as he asserted, the amount spent was not so unreasonable as to warrant its total rejection. In the circumstances of the case, even in the absence of independent proof that the tonics were necessary and beneficial for pain management, I propose to allow a reasonable quantum under this head of damage. A fair award would be a sum of $30,000.

29. The total quantum awarded for specials comes to $32,112.

Conclusion

PSLA	$480,000
Past loss of earnings	$278,222
Prospective loss	$2,820,283
Specials	$32,112
Total:	$3,610,617
Less $150,000 if indeed paid according to the defence
Total:	$3,460,617

30. I award the above sum of $3,610,617 to the plaintiff subject to my comment regarding the payment of the $150,000. Credit for the $150,000 will have to be given if the plaintiff has received this amount. There shall be interest at 2% from the date of the writ on general damages and at 5.99% on special damages from the date of the accident to the date hereof. The plaintiff shall additionally have his costs of the assessment including the costs of the aborted first hearing, taxed if not agreed and his own costs are to be taxed in accordance with the Legal Aid Regulations. The order for costs is nisi in the first instance with liberty to apply within 21 days. Certified fit for counsel.