LAI CHI FAI v. LAM BOR AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

_________________________

ASSESSMENT OF DAMAGES

_________________________

1. The plaintiff was an iron worker employed by the lst Defendant, who as a sub-contractor of the 2nd defendant was engaged in carrying out renovation and construction work on the 3rd defendant's premises. On the 26th January 1979 the plaintiff in the course of his employment was standing on a machine about 30 feet above ground level helping to winch iron base through a narrow gap in the ceiling. Without warning in the course of the lifting operation the iron base measuring 17 feet x 4 inches x 8 inches slipped from the chain by which they were attached - to the which being operated by the 1st Defendant. In so doing the iron bars fell near the Plaintiff and another worker standing on the machine causing them to be knocked off balance and to fall to the ground. In this fall the Plaintiff sustained serious injuries including concussion, severe head injuries, fractured right ulna, fractured 1st and 2nd lumbar vertebrae on the right side and multiple abrasions and lacerations.

2. The Plaintiff, who also suffered post-traumatic amnesia, spent a total of 38 days in Princess Margaret Hospital and later underwent occupational therapy at Kowloon Hospital for 4 months. The fracture of the right ulna did not unite when treated with a plaster cast and an operation was necessary to insert a bone plate and bone screws. Although this treatment proved successful, the Plaintiff is left with a 15º restricted movement when his right hand is held with the thumb to the front and turned to expose the back of the hand to the front. This disability is assessed as 2% of the right arm which is 1% impairment of the whole man. The Plaintiff complained of lower back pain, insomnia, headaches, poor memory and speech difficulties after his accident. Furthermore, he has difficulty in passing urine and in control of his bladder which causes him both embarrassment and discomfort. Following both psychiatric and psychological examinations and testing the Plaintiff showed definite signs of organic brain damage and was described in the expert medical reports and evidence as functioning at a moderate grade mental deficiency. As a result of his head injury received in this accident the Plaintiff's permanent psychiatric disability has been assessed at 40% which assessment is accepted. Despite supportive psychotherapy and medication over a period of years since the accident his condition remains stable being classified as a case of post traumatic dementia with reactive depression. From the expert medical evidence adduced and from observation of the Plaintiff at the hearing the conclusion that his working ability in open employment is very limited and that he is unlikely to be gainfully employed for the rest of his life is accepted.

3. The question of liability for the Plaintiff's accident was not disputed by the 1st and 2nd Defendants and interlocutory judgment was entered against them on 30 April 1982 after they had both failed to file a defence to this action. Insofar as the 3rd Defendant is concerned, a consent order was made on 8 February 1984 to discontinue the action against it upon an ex-gratin payment of $100,000 to the Plaintiff without any admission of liability on its part. Counsel for the 2nd Defendant briefly cross-examined the 3 witnesses called at the hearing on 13 February 1985. Apart from this the 1st and 2nd Defendants took little part in the proceedings, although they both elected to give evidence themselves which was not particularly relevant to the matter in hand. Both the 1st and 2nd Defendants had been advised of their rights at the beginning of this hearing. As neither the 1st nor the 2nd Defendants were covered by any form of insurance to cover injuries to workers on the site in question this assessment is likely to be an empty award or at best one that will be met by monthly instalments.

4. Turning to the assessment of damages for the Plaintiff in this case it will be considered under the following heads:-

1.    Pain, suffering and loss of amenities

5. Miss Chan, Counsel for the Plaintiff, in her final submission relied on the following decisions under this head. Firstly, LI Ting-chun v. LI Ting-fai HCA No. 1257 of 1980 reported in 11 HKLJ 120 as a case where the Plaintiff suffered more serious head injuries and was awarded $180,000. Secondly, LEE Ting-lam v. LEUNG Kam-ming (1980) H.K.L.R. p. 657 in which 4 categories of disablement are outlined end she suggested that the present case fell somewhere between the categories of "substantial injury" and "gross disability" so that the starting under this head should be $100,000. Thirdly, relying on LI Ping-sum v. CHAN Wai-tong (1983) C.A. 53 as authority to increase the earlier awards by 50% and on more recent assessments of damages to allow an additional increase of 10% in awards for inflation since 1983. On this basis Counsel for the Plaintiff suggested an award of $165,000.

6. For my part the Plaintiff's injuries in this case should be classified as "substantial injury" in terms of LEE Ting-lam's case with a starting figure of $90,000. Allowing for a 50% increase in awards as provided in LI Ping-sum's case and the latest trend to allow an additional 10% for inflation since that case was decided in October 1983 I would award a total sum of $144,000 for pain, suffering and loss of amenities. From this sum awarded as general damages $100,000 should be deducted as the ex-gratia payment already made by the 3rd Defendant leaving a balance of $44,000.

2.    Loss of earnings

7. I accept that because of his injuries the Plaintiff has not been able to work since the date of his accident. Although evidence was called from the Census and Statistics Department to show that the average daily wage of blacksmiths has almost doubled since 1979 when the Plaintiff had his accident, I am not satisfied that the Plaintiff as an unskilled iron worker comes within the classification of a blacksmith. I accept that the Plaintiff was employed by the 1st Defendant as an iron worker at the daily rate of $90 on the date of this accident. I would only allow a 24 day working month taking into account days off, annual leave and availability of work for the Plaintiff who was employed on a casual basis. I would allow the Plaintiff an annual increase of $10 in the daily rate as an unskilled iron worker. On this basis the Plaintiff's loss of past earnings are assessed as follows:-

The Workmen's Compensation award to the Plaintiff for this accident was $80,000 as against the 1st and 2nd Defendants. This award has been reduced by $33,109 for interim payments made in the meantime. By virtue of Section 26(1) of the Employee's Compensation Ordinance the sum to be deducted from the award for past earnings is the amount of compensation actually paid which in this case is $33,109.

8. As to the claim for loss of future earnings the expert medical evidence that the plaintiff is most unlikely to be gainfully employed in the future is accepted. The Plaintiff was 40 years of age at the date of this accident and he appropriate multiplier would appear to be 13. Taking into account the period of 6 years already assessed as past earnings the balance is 7 years. Adopting the same multiplicand formula as that used to assess past earnings over the last 12 months the assessment under this head is as follows:-

$140 a day x 25 days a month x 84 (7 years)   = $294,000.00

Loss of Future earnings                                 = $294,000.00

Special Damages

A claim for bonesetter fees was disallowed as no receipts produced or evidence called to support such a claim.

SUMMARY OF ASSESSMENT

9. There will be interest on the general damages awarded for pain, suffering and loss of amenities at the rate of 2% per annum from the date of service of the writ to the date of judgment. There will be no interest on the sum awarded for loss of future earnings but on the remaining special damages interest will be awarded at the rate of 5.6% from the date of the accident until the date of judgment.

10. There will be no order for costs to the Plaintiff against the unrepresented let and 2nd Defendants and the Plaintiff's own costs to be taxed under the Legal Aid Regulations.