SO SUP NG v. CHUNG PO MOON CATOLE AND ANOTHER

HCPI 662/2012 & HCPI 658/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 662 OF 2012

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 658 OF 2012

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BETWEEN

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ASSESSMENT OF DAMAGES

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BACKGROUND

1.  This is a hearing for assessment of damages suffered by the plaintiff in an accident happened on 3 September 2009, in which he was hit by a forklift truck driven by one chung po moon catole (鍾寶滿)[1] (“Chung”) whilst the plaintiff was working as a transportation worker at a port near hing wah street, Cheung Sha Wan (“Accident”).  as a result, he suffered serious injury to his right leg.

2.  The plaintiff was employed by one Ng Wai Hung (吳偉雄)[2] (“Ng”) at the time of the accident.  in the Form 2 dated 24 December 2009, Ng alleged that the plaintiff was employed by one Hung Wai Cargo Services Limited (雄威貨運有限公司)[3] (“Hung Wai”).  It is noteworthy that Hung Wai was only incorporated on 16 September 2009 ie after the accident[4].

3.  The plaintiff commenced the employees’ compensation proceedings under DCEC 288/2010 against Ng and Hung Wai in March 2010.  Neither Ng nor Hung Wai participated in the proceedings.  Default judgment on liability was entered by HH Judge M Chan (as she then was)against Ng and Hung Wai without resolving the issue of whether Hung Wai could be the plaintiff’s employer before its incorporation.  Nevertheless, for the purpose of this assessment exercise, I do not need to resolve this issue.

4.  At the hearing before HH Judge Chow on 22 September 2011, the learned judge found that the plaintiff’s income for the month immediately preceding the accident was HK$14,630 and awarded the total compensation in the sum of HK$158,568.27. 

5.  On 30 August 2012, the plaintiff commenced the common law action under HCPI 658/2012 against Ng and Hung Wai and on the same day, another common law action under HCPI 662/2012 against Chung and Sino Flyer Limited (奔華有限公司)[5] (“Sino Flyer”). 

6.  By the order of Master Leong dated 22 February 2013, interlocutory judgment on liability was entered against Ng and Hung Wai.  By another Order of Master Leong dated 9 August 2013, interlocutory judgment was entered against Chung and Sino Flyer.

7.  Pursuant to the Order of Master Leong dated 24 September 2013, HCPI 662/2012 was consolidated with HCPI 658/2012.

8.  It is noteworthy that no Statement of Claim was filed in HCPI 662/2012 but just general indorsement, in which the plaintiff was claiming against Chung and Sino Flyer for negligence and/or breach of implied contract of employment and/or breach of common duty of care and/or breach of statutory duty.  In para 12 of the plaintiff’s witness statement dated 9 October 2013, he said that based on the documents provided by the Labour Department to his solicitors, he came to know that Sino Flyer was the principal contractor.  However, it is not very clear to me as to whether Sino Flyer was the principal contractor of Chung, Ng and/or Hung Wai.  Similarly, for the purpose of this assessment exercise, I do not need to resolve this issue.

9.  None of the defendants has participated or filed any documents in these 2 proceedings.

INJURIES AND TREATMENT

10.  After the Accident, the plaintiff was taken to the Accident & Emergency Department (AED) of Princess Margaret Hospital (PMH).  Ambulance crew reported that there was blood loss of ~300 ml before arriving AED.  Physical examination showed grossly deformed right leg with 3 deep lacerations.  Active bleeding was noted.  X-ray showed fractured tibia at proximal and distal 1/3.  Fractured fibula at proximal 1/3 was also noted.  He was admitted to orthopaedics ward for further management.

11.  Examination on admission to orthopaedics ward showed swelling and laceration wounds over right leg and numbness of right big toe.  X-ray showed segmental fracture shaft of right tibia, fracture right medial malleolus and fracture shaft of right fibula.  He was managed initially with wound dressing, splint immobilization and antibiotics.  Operations including (a) surgical toileting and suturing of wounds, (b) closed reduction and intramedullary nail fixation to right tibia and (c) closed reduction and screw fixation to right medial malleolus, were performed on 10 September 2009.  He was referred to inpatient physiotherapy for walking exercise.  He was transferred to Caritas Medical Centre for rehabilitation on 18 September 2009. 

12.  After admission to rehabilitation centre, the plaintiff was referred to physiotherapy and occupational therapy for training.  Upon discharge on 6 October 2009, he was able to walk with elbow crutches.  He was arranged for follow-up by Orthopaedics and Traumatology of PMH.

13.  Infection over right shin was detected on 3 December 2009.  The plaintiff was managed with antibiotics.  Incision and drainage of right shin abscess was performed on 5 January 2010.  Intra-operative finding showed that the abscess had no direct communication with fracture site.  The right shin wound healed up subsequently.  He was referred to vocational rehabilitation on 10 March 2010.  The plaintiff was admitted into PMH from 9 June 2010 to 22 June 2010 for right leg infection.  Incision and drainage of right leg abscess was performed on 9 June 2010.  Right leg wound debridement and removal of implants from right tibia was performed on 15 June 2010.  The infection was managed with a course of antibiotic.  He was referred to vocational rehabilitation again on 28 July 2010.  He was referred to vocational rehabilitation on 10 March 2010.  On latest follow-up on 18 July 2012, he has residual right shin pain after walking for 30 minutes. 

14.  The plaintiff received 24 sessions of physiotherapy therapy in Tuen Mun Hospital from December 2009 to July 2010.  The plaintiff also received 3 sessions of occupational therapy in Tuen Mun Hospital from 13 April 2010 to 27 May 2010.

15.  Sick leave was granted from 3 September 2009 to 8 September 2010.

16.  The plaintiff was examined by the Employees’ Compensation (Ordinary assessment) Board on 17 May 2011.  According to the Form 7 dated 31 May 2011, the plaintiff’s injury was “Right leg, right knee and right ankle injuries resulting in (i) right leg pain and scar; (ii) right knee and ankle stiffness, weakness and numbness”.  The sick leave granted was endorsed.  The loss of earning capacity was assessed at 3.5%.

EXPERT’S OPINIONS

17.  The plaintiff was examined by Dr Johnson Lam on 13 March 2013.  During examination, the plaintiff complained of pain over right leg from knee to ankle.  The pain was intermittent, and could reach up to 6-9/10 (0 being no pain; 10 being maximal pain) in intensity.  The pain was worse at night when relaxed, and there was pain about 4-5 nights a week.  He needed analgesics on average every other day, and about 2-3 times each day when there was pain.  Occasional getting up from squatting position would also induce the pain.  The pain also occurred when lifting heavy objects, say, 10+ lbs in weight.  Activities of daily living were independent.  The plaintiff used to swim, play soccer and cycle.   He was afraid and not confident to return to these sports after injury.

18.  X-ray showed that the fractures over right tibia/fibula and fracture of medial malleolus of right ankle had united in satisfactory position.  There were irregularities at the previous fracture site suggesting mild but acceptable displacement.

19.  In the expert report dated 18 March 2013, Dr Lam expressed the following opinion:-

(1) The diagnosis was segmental fracture shaft of right tibia, fracture right medial malleolus and fracture shaft right fibula;

(2) The treatment received was appropriate.  Further surgery or specific treatment was not required.  He might need analgesics on a need-to basis for residue pain;

(3) The plaintiff’s right leg injuries had reached maximal medical improvement;

(4) Considering the evidences reviewed including the severity of the injuries with multiple fractures, segmental fractures of tibia, complication by repeated infection, progress with treatment and findings at the present assessment, it was likely that the plaintiff still had genuine pain and impairment in the right leg as a residue of the accident. There was retropatellar tenderness over right knee and some stiffness of dorsiflexion of right ankle.  The degree was estimated to be mild to moderate.

(5) Activities that caused increased physical demand on the right lower limb (eg prolonged standing and walking; prolonged squatting; walking a lot of stairs; running) would likely cause discomfort or even pain in the right lower limb (knee, leg or ankle). On the other hand, the plaintiff should be independent in activities of daily living;

(6) With more confidence, a gradual return-to-work program (starting off with less heavy weight, and allowing more rest after prolonged work), and a period of adaptation, the plaintiff should be able to return to his pre-accident job with reduction in work capacity.  He would need more frequent breaks for rest or stretch after prolonged work, prolonged walking or standing.  As an alternative, jobs requiring less physical demand on the lower limbs (eg cleaning worker; shopkeeper) were also suitable;

(7) The plaintiff’s right leg injuries should carry 4% whole person impairment. His right leg injuries should carry 6% loss of earning capacity;

(8) The duration of sick leave granted was appropriate and should be endorsed.

PERSONAL BACKGROUND

20.  The plaintiff was born in February 1974.  He was 35 years old at the time of the Accident and is now 40 and single. He received education up to primary 6.  he is now living and working in China.

QUANTUM

Pain, Suffering and Loss of Amenities

21.  The plaintiff claims damages under this head for $450,000 in the Revised Statement of Damages (“RSOD”).  Mr Wong, counsel for the plaintiff cited me the following authorities.

22.  In Yau Kam Ching v. Cheung Shu Kau[6], the plaintiff, aged 47 at that time, sustained injuries in a traffic accident on 28 April 2009.  X-ray showed fracture left distal tibia and fibula and fracture left medial malleolus.  CT brain scan showed small amount of left parietal traumatic subarachnoid haemorrhage.  Another CT brain scan was done on 29 April 2009 which showed resolving haemorrhage.  An operation was performed on the same day to deal with the scalp wound, the fracture and the degloved wound.  Repeated wound debridement and skin grafting was done on 7 May 2009.   X-ray of left lower limb showed satisfactory alignment after the operation.   She was discharged on 22nd May 2009.  The plaintiff was followed up in the outpatient clinic.  She was able to walk unaided without much pain on 26 February 2010.  The range of motion of left knee was full.  X-ray revealed that the fractures of left tibia and left ankle medial malleolus showed progressive healing.  She was last seen in that clinic on 17 September 2010.  At that time, she could walk unaided with tolerance for a few hours.  Residual ankle stiffness persisted and there was residual foot pain.  Occupational therapy for vocational training was arranged but he plaintiff declined to attend.  The plaintiff was granted sick leaves from 28 April 2009 to 28 May 2010.  Then on 23 September 2012, she was admitted to the hospital again for cellulitis of left foot.  On that occasion, she was granted sick leave from 23 September 2012 to 10 October 2012.  In a review of the Medical Assessment Board, she was assessed to suffer a 4% loss of earning capacity on 4 November 2010.  The experts agreed that she should be able to continue with her pre-injury job as a restaurant waitress but with reduction in efficiency and endurance.  She should rest at regular intervals to relief pain and to prevent rapid deterioration of joint degeneration.  The duration of sick leave up to 28 May 2010 was appropriate.  The experts however disagreed as to the course of future treatment (ie whether the implants should be removed).  As to the plaintiff’s impairment, the plaintiff’s expert put the figures at 6% of whole person and 8% for loss of earning capacity.  On the other hand, the defendant’s expert said it is 4% of the whole person and 4% of earning capacity.  The court held that $350,000 was reasonable.

23.  In Yu Lam v Ma Chak Yin[7], the plaintiff sustained injuries in an accident at work on 12 july 2001. X-rays showed new fractures of the right tibia and fibula and old fractures of the same bones at a more distal location with the plate and screws that were used as fixation devices for that injury still in situ. There was also evidence of fractures of the left transverse process of the L3 vertebra, and the right medial malleolus.  The plaintiff underwent an operation on the same day.  He was transferred to Tai Po Hospital on 2 August 2001 and discharged home on 22 August 2001.  He had a further operation on 6 September 2002 for removal of the locking screws of the right tibia fracture.  At this stage it was found that the L3 transverse process had healed.  The plaintiff was granted sick leave from the period from 12 July 2001 to 25 August 2003.  He underwent physiotherapy between November 2001 and December 2002.  The plaintiff complained that he still suffered pain and swelling in the right leg and pain in the back.  He could not endure the periods of standing, heavy lifting, carrying and squatting, which construction site work required and so he was unable to return to his pre-accident occupation.  The plaintiff’s expert, whose opinions were preferred by the court, gave a total of 10% whole person impairment.  He said that the sick leave period of two years was reasonable.  The plaintiff wanted to have the implants removed.  This should cost about $35,000 and required a month off work.  It was not advisable for the plaintiff to resume pre-accident work.  He was not fit for heavy manual work.  He suggested work of a light to moderate nature such as a filling station worker, messenger, caretaker, watchman etc.  The court started with $500,000 and applied 20% discount for pre-existing condition of the leg, resulting in $400,000.

24.  In Kot Yik Kam v Kwok Kam Hung[8], the plaintiff sustained the following injuries in a traffic accident on 28 February 2003: (a) closed fracture shaft of right ulna bone; (b) closed fracture left distal radius; (c) open fracture at the shaft of right tibia and fibula; (d) closed fracture right medial malleolus; (e) skull fracture at the right temporal region with haematoma in the right temporal lobe and right subarachnoid haemorrhage.  operations including (a) open reduction and internal fixation for her right ulna bone fracture; (b) open reduction and internal fixation for her right malleolus fracture; (c) closed reduction and pop paster for her left distal radius fracture; (d) closed reduction and intramedullary nailing for her right tibial fracture were done on 3 March 2003.  she was regularly follow-up in our out-patient clinic and given physiotherapy for her rehabilitation. She was found to have delay union of the right tibial fracture six months later. Therefore she was arranged to have exploration and bone grafting for her right tibial fracture on 19 August 2003.  Post-operatively it was uneventful.  On last consultation on 17 october 2003, she was able to walk unaided and there was evidence of new bone formation at the tibia fracture site.  Out-patient physiotherapy was discontinued after 19 sessions of treatment because of admission to hospital for further operation. The plaintiff complained that she still felt pain in her knee and leg, could not run or jump, nor could she stand for a prolonged period of time.  She could not carry heavy objects (or her own daughter who was 4 years old).   The experts estimated that the total impairment was 3% to 8% of the whole person.  The physical impairment should not prevent the plaintiff from returning to work as a clerk.  She would be independent in activities of daily living.  The court considered that a sum of $400,000 was reasonable.

25.  In my view, the injuries suffered in the Yau Kam Ching’s case are very similar and close to the present case save that the plaintiff in that case further suffered from “small amount of left parietal traumatic subarachnoid haemorrhage” in his brain which required no surgery.  The other authorities cited above are on the high side.  Thus, I consider that a sum of $330,000 is reasonable and shall be awarded under this head.

Pre-Trial Loss of Earnings and MPF Benefit

26.  It is the plaintiff’s case that he earned an average of $15,000 per month before the Accident.  In DCEC 288/2010, HH Judge Chow accepted that the plaintiff’s income for the month immediately preceding the Accident was HK$14,630.  In para 30 of the plaintiff’s witness statement dated 9 October 2013, he said that his daily wages were in the region between $550 and $600 and that on the base of 26 working days a month, his average monthly wages were in the region between $14,300 and $15,600.  Thus, I accept that he earned an average of $15,000 per month before the Accident.

27.  As a result of the Accident, sick leave was granted from 3 September 2009 to 8 September 2010.  Dr Lam was of the view that it was reasonable.  I therefore consider that the total loss of earnings and MPF benefit during sick leave period is:-

 $15,000 X 12 X 1.05 = $189,000

28.  It is the plaintiff’s case that he was unable to resume his pre-accident employment after the expiry of sick leave by reason of the residual disabilities.  To mitigate his loss, he worked as a sailor in Macau on a causal basis for 8 days and earned a total sum of $6,400.  His contract was not extended because of his comparably low work efficiency caused by his weakened right lower limb. 

29.  The plaintiff testified at the hearing that he started working as a salesman in his uncle’s trading company in Guangzhou in October 2013 up to the date of hearing with a monthly salary of RMB5,000 (around HK$6,250).

30.  Even if I accept that the plaintiff was unable to resume his pre-accident employment after the expiry of sick leave on 8 September 2010 by reason of the residual disabilities, I do not agree that he could only work as a sailor in Macau on a causal basis for 8 days from September 2010 to September 2013 (about 3 years time) and then as a salesman in his uncle’s trading company in Guangzhou from October 2013 onwards with a monthly salary of RMB5,000. 

The plaintiff was testified that he never went to the Labour Department for seeking a suitable job eg cleaning worker, shopkeeper, car park attendant or security guard etc.  Based on the expert opinion of Dr Lam, I am of the view that he is suitable for the jobs requiring less physical demand on the lower limbs (eg cleaning worker, shopkeeper as suggested by Dr Lam).  For the purpose of claiming the future loss of earnings, Mr Wong for the plaintiff submitted that the plaintiff might be able to take up sedentary work such as car park attendant or security guard earning about $9,600 per month.  I accept his submission and will adopt the figure of $9,600 for the purpose of assessing not only the future loss of earnings but also the pre-trial loss of earnings and MPF benefit after sick leave, which  is set out as follows:-

 From 8 September 2010 to 11 July 2014

 ($15,000 – $9,600) X 46 X 1.05 = $260,820

31.  I therefore assess the total pre-trial loss of earnings and MPF benefit as follows:-

 $189,000 +$260,820 = $449,820

Future Loss of Earnings and MPF Benefit

32.  In Chan Pak Ting v Chan Chi Kuen (No 2) [2013] 2 HKC 365, Bharwaney J adopted a discount rate of-0.5% for plaintiffs with needs of less than 5 years, 1% for plaintiffs with needs of less than 10 years and 2.5% for plaintiffs with needs of more than 10 years. 

33.  I accept that the plaintiff would retire at the age of 65. His need is therefore more than 10 years and 2.5% should be used as the rate of return. According to Table 9 (multipliers for loss of earnings to pension age 65 – males) of the Personal Injury Table Hong Kong 2013, the multiplier should be 18.24. I accept the submission made by Mr Wong for the plaintiff to adopt a lower multiplier of 15 and assume that the plaintiff might be able to take up sedentary work such as car park attendant or security guard earning about $9,600 per month. Hence, the future loss of earnings and MPF benefit is assessed as follows:-

 ($15,000 - $9,600) X 12 X 15 X 1.05 = $1,020,600

Loss of earning capacity

34.   The plaintiff claims a sum of $180,000 for loss of earning capacity, which is equivalent to 12 months’ pre-accident income. In light of Dr Lam’s opinion, in particular 4% whole person impairment and 6% loss of earning capacity of the plaintiff, I agree that the plaintiff would suffer from some disadvantage in the labour market because of his disability. However, I consider that 6 months’ pre-accident income for $90,000 is appropriate in the circumstances.

Special Damages

35.   The plaintiff claims for a total sum of $54,570 for medical expense ($7,942), traveling expense ($10,128), tonic food ($35,000) and over-the-counter medication ($1,500). I accept that medical expense for $7,942 and over-the-counter medication for $1,500 are reasonable and shall be allowed. Nonetheless, I am of the view that tonic food for $35,000 is on high side and since no receipt is produced, I will only allow $15,000 for tonic food. As to traveling expense for $10,128, I disagree that those traveling expenses incurred by the plaintiff’s family, namely his brothers, sisters and sisters-in-law shall be allowed since such expenses are too remote. I assess and allow the reasonable traveling expense incurred by the plaintiff himself to be $4,892. Thus, the total sum under this head is $29,334.

Summary of Quantum

36.  The award to the plaintiff is summarized as follows:-

I. Past Pecuniary Losses
(a) Pre-trial loss of earnings including MPF	$449,820
(b) Special Damages	$29,334
II. Future Pecuniary Losses
(a) Post-trial loss of earnings including MPF	$1,020,600
(b) Loss of earning capacity	$90,000
III. PSLA	$330,000
Total	$1,919,754
LESS:  employees’ compensation	($158,568)
Net Total	$1,761,186

37.   Interest shall be awarded at 2% pa for PSLA from date of the Writ (ie 30 August 2012) to the date of judgment.

38.   Interest shall be awarded on pre-trial loss of earnings including MPF, and special damages at 4% pa from the date of Accident (ie 3 September 2009) to the date of judgment.

39.   Regarding costs of this assessment of damages, Mr Wong for the plaintiff submitted a statement of costs and requested me to do the summary assessment under Order 62 rule 9A RHC. However, since the plaintiff is an aided person and the legal representative for him has not expressly waived the right to any further sum of money, such as common fund costs pursuant to Order 62 rule 9C(1)(b) RHC, I think that I shall make an order nisi that costs of this assessment of damages be to the plaintiff with certificate for counsel and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. Such order nisi shall become absolute unless any of the parties apply to vary within 14 days. In case the legal representative for the plaintiff can confirm in writing of the waiver of the right pursuant to Order 62 rule 9C(1)(b) RHC, I am prepared to do the summary assessment on paper without oral hearing as requested.

40.   Last but not least, I shall thank counsel for his helpful submission and assistance.