HO SIK TUNG v. LAU KIN SUN t/a E & J ENGINEERING CO. AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 408 OF 1999

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages. Interlocutory judgment was entered against the 1st defendant on 16 June 1999 against the 2nd defendant on 24 February 2000 in default of intention to defend by the 1st and 2nd defendants. The hearing of assessment was conducted in the absence of the 1st and 2nd defendants and I am satisfied that the defendants were both served with the notice of assessment of damages to their last known address, as evidenced in the affirmation of service of Tang Chi-keung, Leo dated 4 August 2000.

The Plaintiff's Case

2. The plaintiff was employed to do drilling work at a caisson in the construction site where the 1st defendant was the main contractor and the 2nd defendant the subcontractor. On 23 July 1996, an explosion at the caisson injured the plaintiff's right foot. As a result, he suffered the following injuries:

a) a bony fragment protruding out of the skin at medial aspect of the right ankle;

b) marked swelling, poor circulation and cyanotic change of the right foot;

c) compound right Pilon fracture of the distal tibia and fibula;

d) closed fracture of right calcaneum and closed fracture of the 4th and 5th metatarsal bone of the right foot.

3. These were the findings of the doctor at Tang Shiu Kin Hospital, where he was sent on the same day after the accident.

4. He was then transferred to the Pamela Youde Eastern Hospital, Orthopaedic Department, where he underwent emergency operation of close reduction and external fixation of his right foot. He underwent three further operations in the next three weeks and was discharged on 10 August 1996. He was re-admitted to hospital on 12 August 1996 and underwent two more operations. These operations include, according to Dr Leung Wai-yeung of Pamela Youde Nethersole Eastern Hospital, close reduction and external fixation on 23 July 1996, debridement, larvage of wound, adjustment of external fixator, open reduction, fibular plating and skin grafting on 25 July 1996, 31 July 1996 and 6 August 1996, respectively. And further, on 22 August 1996 open reduction, internal fixation and bone grafting.

5. He was discharged on 31 August 1996 and on 31 October 1996, the K-wire and external fixator were removed. He was put on a course of physiotherapy which he attended three times a week, and he attended a total of 50 sessions at the Yung Fung Shu Clinic in Kowloon, where he resided.

6. He was born on 28 December 1950 and therefore at the time of the accident he was 46 years of age. He is now three months short of age 50. He claims he has to rest for between half an hour to one hour before he could start walking each morning. He said he is unable to walk for longer than one hour and he would have painful ankle and pain on top of his feet while he walked up slopes. He has weakness on his right leg generally, unable to climb up or down stairs or a ladder, pain on the right knee while walking and also pain in the back of his right lower leg. He claims that he has to rest from time to time after prolonged standing. And furthermore, he claims he is not able to work for long hours or stand for long hours for his right leg would get swollen and painful. He also said he can no longer enjoy the sports he used to enjoy, and these include running and hiking.

7. On 8 October 1997 he was assessed to have suffered 25 per cent loss of earning capacity. There was some reference to a revision of this loss of earning capacity, but I cannot find any documentary evidence in support of the alleged adjustment.

8. Dr Arthur Chiang gave evidence at the hearing and produced a report he made after examining the plaintiff. I shall not repeat the contents of his report here, save that Dr Chiang found the plaintiff had lost some movement of his right foot due to the Pilon fracture and assessed a 20 per cent chance of development of post-traumatic arthritis later on, and estimated a 10 per cent probability of late post-traumatic changes in the subtalar joint of his right leg.

9. He assessed that the impairment of the whole person of the plaintiff to be 15 per cent, including the chance of late future post-traumatic changes.

PSLA

10. Under the claim for an award of pain, suffering and loss of amenities, it is the plaintiff's case that he was given one year sick leave from 23 July 1996 to 25 July 1997. He had, no doubt, suffered a great deal of pain and discomfort at the time of the accident and during the treatment, particularly since he had to go through two lots of operations in July and August 1996. These included debridement, larvage of wound, adjustment of external fixator, open reduction, fibular plating and skin and bone grafting. He was put on crutches for a few months and had physiotherapy which lasted a period of over 16 weeks.

11. Dr Chiang found in the plaintiff's right leg that there was soft tissue swelling around the medial and lateral side of the right lower leg and ankle, with mild swelling in the toes of the right foot.

12. Mr Lau, counsel for the plaintiff, submits that the award for pain, suffering and loss of amenities should be in the sum of $450,000. He refers to the award of $415,000 by Master O'Donnell in the case of Lau Hi v Kam Shek Investment Company Limited & Another, High Court Action No. A5978 of 1986, where the victim in that case broke both of his calcaneum in the ankle and had to rely on crutches for nine months and was unable to squat or walk down the stairs and had to wear special orthotic shoes.

13. The case of Lam Kwong-ting v Ho Yau-yuen & Another [1990] 2 HKC 381, the plaintiff suffered multiple lacerations and abrasions over both knees and a compound fracture of the left ankle. He was hospitalised for two months and relied on crutches for two months. He was wheelchair-bound later on for a further two months due to complications of post-traumatic arthritis. Master P Chan (as he then was) awarded the sum of $180,000 and placing the plaintiff in the lower end and middle range of the serious injury category. It is said in Butterworth's Hong Kong Personal Injury Service that such an award is equal to $476,280 in 1998.

14. Master A Chung (as he then was) in the case of Siu Wai-man, Ada v Lee Chi-chong HCPI No. 174 of 1994 (the date of assessment was 9 November 1996) awarded $400,000 to the plaintiff under the pain, suffering and loss of amenities award, who suffered bimalleolar of the left ankle. She was granted sick leave for eight and a half months and suffered early osteoarthritic changes in the left ankle.

15. While Seagroatt J, in the case of Lau Kim-wah v Lam Shi-kan, HCPI No. 1208 of 1998, granted an award of $375,000 to the plaintiff who suffered a fracture of the right calcaneum. He was hospitalised for six weeks and had relied on crutches for two years. He was unable to walk for more than half an hour, had difficulties ascending stairs and slopes and squatting down. He was given two years' sick leave in that case.

16. As to the plaintiff in this case, his condition is not as serious as the victims in the cases referred to, although the injuries of the victims in those cases were similar to the injuries suffered by the plaintiff here. After due consideration of the plaintiff's present physical condition, and the assessment of Dr Chiang and the Labour Department's Medical Assessment Board, and based on the cases referred to me, I would assess with the element of inflation in mind that the pain, suffering and loss of amenities award in this case should be in the sum of $400,000.

Pre-Assessment Earnings

17. After hearing evidence from PW2, the plaintiff, and his former workmate, Mr Chung, PW3, I am satisfied that the assessed wage per day for the plaintiff is between $800 to $1,100, working as a caisson worker or a driller, and that it is likely that if his health permits him to do so, the plaintiff could work up to the age of 65.

18. I also accept that it is likely that he would be working 26 days per month, therefore, his pre-assessment income would be $24,700 per month using a median daily wage of $800 plus $1,100 and divided by two, which makes an average daily wage of $950 per day.

19. While he could have worked one year after the injury, that is after the expiry of his sick leave, as a watchman, cleaner and security guard, according to Dr Chiang, the plaintiff failed to take up such forms of employment, except for one week, or rather, six days at a noodle shop earning a total of $1,800. He claims he had tried to look for employment but considers a cleaner's job only taken up by female workers, and that a watchman would have to descend 30-odd floors every hour and he had, for those reasons, failed to pursue such employments. I find this attitude highly unreasonable for someone who was in his late 40s and at present he is approaching age 50. As suggested by Dr Chiang, the plaintiff should be able to find a job. As he is somewhat reluctant to work as a cleaner, a job as a watchman or security guard would be suitable for him.

20. I accept Mr Lau's submission on the loss of future income based on a watchman or a security guard's earnings according to the half-yearly report of wage statistics published by the government's Census & Statistics Department for the year 1997 and 1998. The median income of the plaintiff working as a security guard for the period from 25 July 1997 to today, 12 September 2000, should be $7,116.30 per month. Therefore, the loss of pre-assessment income is the difference between $24,700 and $7,116.30, making $17,583.70. And since there is from 21 July 1997 to 12 September 2000, a total of 37 months and 19 days, the loss of pre-assessment income is in the sum of $661,732.66.

21. As far as the period during sick leave is concerned, I assess the plaintiff would have earned between $800 to $1,100 per day and for 26 days per month. This is based on the evidence of PW3, Mr Chung, a former workmate of the plaintiff, as they were in the same line of work and they were working at the same construction site on the day of the accident. There is no reason why the plaintiff's work opportunities should be any different from Mr Chung, at least there is no such evidence to deviate from the income of Mr Chung during the similar period.

22. Under the employment legislation in Hong Kong, the employee must be given one day off in a week, plus all the statutory holidays. Therefore I cannot accept that the plaintiff should be paid 350 days or 338 days between 23 July 1996 to 25 July 1997 as suggested by the plaintiff working 28 to 29 days a months for 12 months and two days. I will use the same median income of $950 per day for 26 days a month in my assessment. The sick leave period pay should therefore be $950 x 26, multiply by 12 months, plus 2 further days at $950 each. This comes to the sum of $298,300.

23. As the plaintiff was paid by his employer the sick leave pay which, according to Mr Lau, counsel for the plaintiff, the sum of $160,000 has been accounted for in the Employee Compensation award and deducted there. I have been asked to disregard this payment in my assessment of his pay during sick leave. For this reason I have not deducted this amount of $160,000, but I will deduct the amount of $1,800 from the sum of $298,300, which makes a total of $296,500. The pre-trial loss, therefore, consists of the sick leave period and the pre-trial or pre-assessment period, and the sum of $296,500 plus $661,732.66, making a total of $958,232.66.

Post-Assessment Earnings

24. Adopting the income of $24,700 per month as the basis of the monthly income had the plaintiff not been injured, and the wage he is capable of earning now as a security guard or watchman at the wage suggested by Mr Lau, counsel for the plaintiff, of $7,327.60, the difference is $17,372.40.

25. I accept the suggestion that a multiplier of 9 should be used, based on the multiplier used in cases relied on by Mr Lau: the case of Tse Yim-kwong v Mak Yuk-koi & Others, [1989] Hong Kong Law Year Book, 477, Chu Tik-kwan v Liu Tik-for trading as Wing Kwong Metal Spraying Workshop [1989] Hong Kong Law Year Book, 478 and Bozarth v Yuen Ping-chor [1997] Hong Kong Law Year Book, 445, where the plaintiffs, who were all 50 years old at the date of hearing, were given a multiplier of 9.

26. The assessment under this item is therefore the sum of $17,372.40 multiplied by 12 and then multiplied by 9. The sum would come to $1,876,219.20.

Special Damages

27. The amount of special damages and such out of pocket expenses included travelling expenses of $4,200, medical expenses of $3,000, tonic food of $7,000. I would allow the travelling and medical expenses in full. As to the sum for tonic food, I have not seen any receipts for this item, nor have I been shown any particulars or told of any particulars of such food, nor was it taken under the direction of any doctor or herbalist's advice. I would therefore only allow half of what the plaintiff claims. Therefore the amount of $3,500 is allowed. The total of the special damages therefore comes to $10,700.

Summary

The pain, suffering and loss of amenities:	$400,000
Pre-assessment loss of earnings:	$958,232.66
Post-assessment loss of earnings:	$1,876,219.20
Special damages:	$10,700
Deducted by the Employee Compensation Payment	$1,300,070.86
Total:	$1,945,081

Interests

28. On the general damages of pain, suffering and loss of amenities, I would award the sum suggested at 2 per cent per annum from date of writ to the date of payment. As to special damages, I would award half judgment rate from the date of accident to the date of judgment, and thereafter at judgment rate until full payment. As to the awards of pre-assessment loss of earnings and post-assessment loss of earnings, they would be at judgment rate from the date of judgment until full payment.

29. Costs to the plaintiff with certificate for counsel. Plaintiff's costs to be taxed in accordance with Legal Aid regulations.