HO YUN KAN v. SAM SING TRANSPORTATION CO. (a firm)

1987 No.5191

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Ho Yon Kan has applied to me for assessment of general and special damages as a result of injuries suffered by him on the 13th of September. 1984 whilst he was an employee of the Defendant Sam Sing Transportation Co. Interlocutory judgment was entered in the Plaintiff's favour on the 1st of December 1987 so no question of liability arises. The facts of the claim are that the Plaintiff was working in a hold of a ship named "New Haining" at the material time. The Plaintiff was a stevedore for the Defendant and other companies who are involved in the unloading of ships. On this particular day steel pipes were being, removed from the hold. The pipes were in bundles and while being lifted from the hold, two of these bundles fell and struck the Plaintiff on his left leg fracturing both the tibia and fibula about mid-way between the knee and the ankle. In the first instance, the Plaintiff was admitted to Queen Elizabeth Hospital where the fracture were reduced and a plaster cast applied. However, a week later it was found that the position of the bones at the fracture site were not satisfactory and an operation was carried out whereby a metal plate was inserted with screws into the bones to obtain better position of the fracture. It was also necessary to take bone from the upper tibia to enhance bone healing at the fracture site. The Plaintiff was then transferred for convalescence to the Kowloon Hospital Where he remained until the 21st of November 1984. He was then able to walk with the aid of crutches. He told me that he needed crutches up until about June or July of 1985. On the 6th of August 1987 he was again admitted to hospital for the removal of the plate and screws from his leg. I have perused the reports of Dr. Horsfall and the Consultant Orthopaedic surgeon at Queen Elizabeth Hospital Dr. Fu. It appears from these reports that the fractures have united in the best possible position with the best result that could be hoped for. This man obviously suffered a severe fracture but fortunately no damage to any joint was involved. The permanent disability has been assessed at 5% of the limb and 2% of the whole man. Dr. Fu who was called said that the permanent disability is between 2% and 4% but for the purposes of this decision I accept the assessment of 2% as being the true permanent disability. The Plaintiff has not worked since the accident other than for a few days helping a friend on a part-time basis in his chicken wholesaling business. The Plaintiff now complains of pain in the leg especially when there is a change in weather or after he has walked upstairs or for long periods. Both doctors agree that this would be no more than mild pain and Dr. Horsfall is of the view that the pain is exaggerated by the Plaintiff either through malingering or because it is psychosomatic. I have no doubt that this man does suffer some discomfort at times but it may well be that much of this will disappear after his compensation claim has been settled. What is clear however is that he could not go back to stevedoring which he was doing before or any other heavy work. Dr. Fu thinks that he could do no more than a sedentary type job but Dr. Horsfall is of the opinion that he could do jobs in light industry, farming, cleaning or delivery jobs which might well pay less than what he was earning as a stevedore.

2. The Defendant disputes the Plaintiff's claim in three main respects. The first is the Plaintiff's contention that just prior to the accident, he was earning $5,875.00 per month as a stevedore. Stevedores at that time were earning $116.00 per shift and the Plaintiff maintained that he would work three shifts in a row which means he would be working virtually 24 hours a day and he did this on an average of 16 to 17 times per month. Mr. Tse So was called by the Defendant and he said that whilst it was not impossible that stevedores work 3 shifts in a row it was rare. Sometimes, stevedores work 2 shifts in a row but because stevedores would become more inefficient on the third shift it was only is emergency situations that stevedores were called on to work a full 24 hours in a row. The Plaintiff's evidence as to his income is not supported by any bank statements or wage slips. When the claim was made to the insurers under the Defendant's Employees' Compensation, the Plaintiff signed to the effect that he was working 30 shifts per month which gave him an income of $3,480.00 per month. This would enable him to work a six-day week on single shift and would also give him some double and even the odd triple shift. Mr. Tse So said that this is a generous assessment as most stevedores work 20 to 25 shifts per month. I accept the sum of $3,480.00 as being the Plaintiff's earnings at the time of the accident.

3. The other matter at issue is that the Plaintiff claims that he has been unable to work since the accident right up to the present time because of his injuries. The Defendant argues that there is no reason why the Plaintiff could not have worked welt before this and the reason he has not done so is caused by factors other than the accident.

4. The third matter in dispute is the claim for future loss of earnings.

5. The Plaintiff is now 30 years of age having been born in China in 1957. He came to Hong Kong in 1978. He is not well-educated and has no trade or skills to speak of. Both in China and here he was employed working on ships. In Hong Kong he also worked as a delivery worker from time to time when work as a stevedore was not available. Since he came to Hong Kong he married and has three children aged 5, 4 and 1½ years. Since September 1986 he has been receiving public assistance of $1,700.00 per month. The Plaintiff's wife has mental problems and has difficulty in managing the children by herself. He also tells me that his eldest son suffers from leukemia and has required hospital treatment for this. Prior to the accident, the Plaintiff's sister lived nearby and was able to assist with the children but she has now moved away to another area and so is not available to assist. I am not sure when the sister moved away. The Plaintiff at first said it was about the time of the accident but later he said that it was about the beginning of 1987. He agrees that because of his wife's inability to look after the children on her own, it is now necessary for him to stay at home so that he could not take a job at the moment even if he wanted to because of the need to stay at home and help with the three children. As to the time spent off work there is some disagreement between the doctors both of whom examined the Plaintiff on behalf of the Plaintiff's solicitors. Dr. Fu who gave evidence seems to think that it is by no means unusual for victims who have suffered this sort of accident to have been off work for such a time as the Plaintiff. Dr. Horsfall even though he was the Plaintiff's doctor for the purposes of examination seems quite sceptical that it has been necessary for the Plaintiff to have been off work right up to the present time. Looking at cases of a similar nature and having account to the seriousness of the Plaintiff's injuries and the residual disability I am of the view that he could have worked before this and it is for reasons other than the injuries he has suffered that he has not been working. The injury has not left him with any significant impairment. With the employment situation in Hong Kong as it has been he could have obtained some employment even though it would have been a lighter job than the one he was doing before the accident. I allow two years' loss of earnings from the date of the accident which takes the Plaintiff up to the 13th of September 1986 which was about the time he went on public assistance. This is at the rate for stevedores which changed somewhat during that time. I average this at $125.00 per shift for 30 shifts a month total $3,750.00 x 24 = $90,000.00. As well I allow him a further one month from the 6th of August 1987 when the plate and screws were removed from his leg - 30 shifts at $142.50 = $4,275.00. Deducted from the two amounts is $15,000.00 paid to the Plaintiff under Employees' Compensation.

6. As to pain, suffering and loss of amenities I am satisfied that the Plaintiff did suffer a serious and painful injury. He was in hospital for two and a quarter of months. He was on crutches for about eight months and also had a further operation for the removal of the plate. During the period up to 1985 he would have had pain and discomfort and I am sure he still gets discomfort especially when the weather changes. I refer to the decision of Lee Ting Lam v. Leung Kam Ming and others (1980) Hong Kong Law Report page 657, I would put this injury in the category of the lower range of serious injury cases referred to in that decision. Under this heading I award the Plaintiff the sum of $65,000.00.

7. As to loss of future earnings the Plaintiff's solicitors have invited me to use a multiplier of 14 on the difference between $5,885.00 which was the alleged pre-accident earnings and $3,100.00 which they estimate the Plaintiff would now earn giving damages under this head of $353,695.00. I am not going to attempt a calculation this way. The situation here is that the Plaintiff is not going to work anyway because of the domestic problem and it is not known when he will be able to return to work. It is not known what sort of job he will obtain when he does. In my view the way to approach this is to award a lump sum for loss of future earning capacity. This is the approach taken in a number of other cases and I think it is appropriate here. There is no doubt that the Plaintiff will be restricted in the sort of job he can take in the future because of this accident. He has worked in heavy type labouring jobs both in China and here and he is a person of no particular skill although as Dr. Horsfall said he is young enough to be able to adapt to some new occupation more suitable. Under this head I award the sum of $70,000.00.

8. The only other item in dispute is the claim of $2,000.00 for tonic food. There is no evidence as to this and so I disallow this claim altogether. The agreed special damages amount to $2,012.00. The damages are therefore assessed as follows:-

9. The award of general damages will carry interest at the rate of 2% per annum from the date of writ to date of assessment The special damages including pre-trial loss of earnings will attract interest at the rate of 3.5% from the date of the accident to assessment. The award for loss of earning capacity will not carry interest. Costs are awarded to the Plaintiff against the Defendant and the Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.