NG TIN CHUEN v. 黃宗強 AND OTHERS

HCPI 209/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 209 OF 2013

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim concerning an accident at work. Interlocutory judgments have been entered against all 3 defendants and this is an assessment of damages hearing.

I.  Background

2.  The plaintiff was a general labourer employed by the 1^st defendant, who was a subcontractor to the 2^nd defendant which, in turn, was the subcontractor to the 3^rd defendant.

3.  The plaintiff fell from a collapsing working platform on 19 March 2010 and suffered a fracture of the left calcaneum.  He was admitted to Queen Mary Hospital and treated with a short leg cast (no surgery was performed). He was discharged after 6 days.

4.  The plaintiff was then followed up by the specialist clinic and he was referred to have physiotherapy for 6 months.

5.  The plaintiff said that physiotherapy did not help him as he continued to have pain and weakness.

6.  He was granted sick leave for 510 days and was awarded HK$316,880 in the EC Claim.

7.  The 1^st defendant was declared bankrupt on 9 September 2013 and the 2^nd and 3^rd defendants were wound-up on 26 June 2013.  Nevertheless, leave was granted to the plaintiff to proceed with the current claim.

II.  PSLA

8.  The plaintiff’s injury and treatment are stated above.

9.  According to the single orthopaedic expert report of Dr Andrew Miu, during the examination on 25 April 2012, the plaintiff still complained of left hind foot pain on walking for 15 minutes, weakness (cannot carry more than 10 kg) and muscle cramp at bedtime.  On physical examination, there was no finding of muscle wasting and the x-ray showed healed fracture in acceptable alignment with preserved joint space (but with mild irregularity of the articular surface).  There was reduced range of movement and stiffness of the left ankle.

10.  The plaintiff said he could no longer jog or hike.  Dr Mui opined that the plaintiff “would have left foot pain upon prolonged walking or exertion” and he would find “significant difficulties and left foot pain if he walked on uneven ground for a long period of time.”

11.  I have perused the authorities submitted by Ms Tjia, the plaintiff’s counsel.  I find that most of them concerned with more serious fractures of different anatomical sites.

12.  There are two authorities which concerned with calcaneum fractures.  In Chan Chi Shing v Chan Siu Kuen & others [DCPI 229/2007], the plaintiff suffered a fracture of lumbar vertebrate as well as a fracture of calcaneum which required surgery.  The PSLA was HK$350,000 (awarded in 2009).  In Lau Kin Wah v Lam Shu Kan [HCPI 1208/1998], the plaintiff suffered a fracture of calcaneum which required surgery, hospitalization for 6 weeks and the patient was on crutches for 2 years.  The PSLA was 375,000 (awarded in 2000).

13.  I think that both these authorities were of more serious injuries requiring substantively more invasive treatments and more prolonged recoveries compared to the current case.  A reasonable PSLA award in the current case should be HK$300,000.

III.  Pre-trial loss of earnings

14.  The plaintiff has taken 510 days of sick leave (19 March 2010 to 10 August 2011) which Dr Miu assessed as appropriate.

15.  For the plaintiff’s nominal pre-injury income, I will adopt the findings of the learned Judge in the EC Claim as HK$17,000 per month.

16.  The plaintiff informed the court that, before the injury, he did not have steady employment but had relied on his friends to call him about available jobs.  So his employment had always been “freelance” in nature but he had been able to find work this way 20 odd days a month.  His friends had visited him in hospital after the injury and were aware of his injuries. They had stopped calling him afterwards.

17.  The plaintiff said that he had borrowed heavily after the injury but it appeared that he did not actively look for work.  It was only around 2012 when his friends were aware of his debt situation that they started calling him again to offer work.

18.  However, in view of his injuries, the plaintiff could only accept light jobs.  Dr Miu agreed that the plaintiff would not be able to return to his pre-injury duty and it would be better for him to change to lighter duty.

19.  The plaintiff said that he took up firstly a job as a gardener in a development in Repulse Bay with a monthly salary of HK$8,800.  He quitted after 2 months because of the hot sun, mosquitoes and fear of snakes. He claimed that he saw snakes everyday in the grass area of the development. However, he did not want to be transferred to other developments in Tai Wai, Yuen Long etc because of the distance and costs of daily transport so he quitted after 2 months.

20.  The plaintiff said that he then returned to his previous reliance on his friends calling him for available jobs at construction sites, and since he could no longer carry heavy weights, he could only accept work for 8-10 days a month (and earning only H$550 per day).

21.  I am not sure if travel costs from his home (Sau Mau Ping in Kowloon) to Repulse Bay are significantly different from travel costs to the New Territories, or that snakes are such prominent wildlife in Repulse Bay.  In any case, I find that the reasons he advanced for quitting this gardening job were purely personal preferences not related to his injuries.

22.  I would therefore accept HK$8,800 as what a reasonable person with the plaintiff’s injuries would be able to earn.

23.  I also think that the plaintiff has taken a very long sick leave and a reasonable diligent person would have planned his return to work by notifying his friends of his availability for suitable jobs when he was starting to feel better.  Further, the process of how the plaintiff obtained his jobs did not require job-seeking (eg searching in the newspapers, job interviews etc).  He merely needed to call up his friends updating them of his recovery.  As such, there was no reason why he could not commence working again very soon after his sick leave expired.

24.  As such, I think that the plaintiff’s assumption that he would need 3 months to seek a job from the end of his sick leave is not reasonable. I would allow 1 month.

25.  The pre-trial loss of earnings should be:

a) Sick leave period:

HK$17,000/30 x 510 days = HK$289,000

b) Allow 1 month for “job seeking” = HK$17,000

c) Loss of income from 11 September 2011 to date of assessment:

HK$(17,000 -8,800) x 37.5 = HK$307,500

Total = HK$613,500

IV.  Post-trial loss of earnings

26.  The plaintiff is now 58 years old.  I accept the plaintiff’s nominal retirement age as 65.  Applying the “Chan Table” with a discount rate of 1%, the multiplier should be 6.61.

27.  Therefore, the post-trial loss of earnings should be :

HK$(17,000-8,800) x 12 x 6.61 = HK$650,424

V.  Loss of MPF

28.  The plaintiff’s pre-trial loss should be HK$613,500 x 5% = HK$30,675.

29.   The plaintiff’s post-trial loss should be HK$650,424 x 5% = HK$32,521.20.

30.  Total loss of MPF is HK$63,196.20.

VI.  Loss of earning capacity

31.  This head of claim is meant for compensating a plaintiff who has been working after the injury but may be at risk of losing that employment in the future at which time his injury may put him at a disadvantage searching for re-employment in the labour market.

32.  The plaintiff is not working at present and the calculation of loss of future earnings has taken into account of the difference between his nominal pre-injury income and what work he could perform now (but did not for reasons other than caused by the injury).  Indeed, the plaintiff did not show much initiative in trying to find work in the first place and he never indicated that he ever wished to work again.

33.  As such, I think it is not reasonable to allow such a claim in this case.

VII.  Special damages

34.  I would allow the claim of HK$800 for travelling expenses and HK$5,000 for tonic food.

VIII.  Future medical and travelling expenses

35.  I would allow the claim of HK$1,000 under this head.

IX.  Summary

36.  I summarise the above awards as follows:

	HK$
PSLA	300,000
Pre-trial loss of earnings	613,500
Post-trial loss of earnings	650,424
Loss of MPF	63,196.20
Loss of earning capacity	0
Special damages	5,800
Future medical and travelling expenses	1,000
Subtotal (excluding interest)
Minus Employees Compensation	(316,880)
Total:	1,317,040.20

X.  Interest

37.  I would award interest on general damages at 2% per annum from date of writ to date of Judgment, and on special damages from date of accident to date of Judgment at half Judgment rate.

XI.  Costs

38.  There will be an order nisi for the costs of the action be paid by the defendants to the plaintiff to be taxed if not agreed and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.