LI PIU KEI v. CHOI KAI MING and CHOY (CHOI) CHONG YIP t/a KAI SHUNG ELECTRICAL REPAIRS AND OTHERS

DCPI 342/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 342 OF 2002

------------------------

------------------------

------------------------

D E C I S I O N

------------------------

1.  This is a claim for damages for personal injuries suffered during work at a construction site on the morning of 29 October 1999. At all material times, the Plaintiff was employed by the 1^st Defendant as an electrician (apprentice). The 1^st Defendant sub-contracted work from the 2^nd Defendant which in turn sub-contracted work from the Principal Contractor viz. the 3^rd Defendant.

2.  Interlocutory Judgments had been entered against all Defendants: the 1^st and 2^nd Defendants failed to give notice of intention to defend and the 3^rd Defendant consented to judgment. The only matter outstanding is the assessment of damages. For this purpose, a hearing was fixed before me. 

3.  Only the Plaintiff appeared at the assessment hearing. The 3^rd Defendant gave clear notice that they did not intend to contest quantum or to appear at the hearing. I was satisfied that notice of the hearing had been given to the 1^st and 2^nd Defendants. I acceded to the request of Counsel for the Plaintiff to conduct the hearing ex parte the Defendants.

4.  I accepted the evidence adduced for the Plaintiff. The Plaintiff himself was the only witness called. I accepted his evidence. 

5.  On 30 April 2007,

I)      I made awards in favour of the Plaintiff against all 3 Defendants as follows:

a)	Pain, suffering and loss of amenities	-	$150,000.00
b)	Loss of pre-trial earnings	-	162,919.35
c)	Loss of future earning capacity	-	54,600.00
d)	Loss of Mandatory Provident Fund	-	8,145.97
e)	Special damages	-	18,406.00
			$394,071.32

II)      I ordered pre-judgment interest (calculated up to 29 April 2007) to be paid as follows:

a)      2% per annum from the date of writ on the amount of $150,000 for pain, suffering and loss of amenities and

b)      ½ judgment rate from the date of injury on the amount of $181,325.35 ($162,919.35 for loss of pre-trial earnings and $18,406 for special damages).

III)     I ordered post-judgment interest to be paid on the amount of $394,071.32 from 30 April 2007 until full payment.

IV)    I ordered the Defendants to pay costs of the Plaintiff with certificate for Counsel, such costs be taxed if not agreed.

For the avoidance of doubt, I confirm that all amounts ordered to be paid by the 3 Defendants are to be paid by them jointly and severally. I now state the reasons for my decision.

6.  Background

The Plaintiff was born in Hong Kong on 20 September 1981. He lives with his family in Sham Shui Po district. The Plaintiff remains a bachelor and was educated up to Form 3 level. At the age of around 15, the Plaintiff started working. He had worked as news-stand attendant, lift-repairing apprentice, air-conditioning repairer, waiter and painting worker. On 22 October 1999, the Plaintiff was employed by the 1^st Defendant as an electrician (apprentice) with a monthly wage $9,100. In order to carry out his work, the Plaintiff had to be able to walk around, climb up and down, squat as well as to remain standing for long periods.

7. What happened to the Plaintiff in this case was that his right foot got entangled by something sharp on the floor of the construction site. His right ankle was cut. There was a “2 cm laceration over the back of his ankle. Intra-operative finding was 50% cut of his Achilles tendon, which was surgically repaired” (see Medical Report of Dr. LAU Yip-kwong at Assessment Bundle page 79). The Plaintiff was aged just over 18 when he was so injured.

8.  The Plaintiff was hospitalised at Queen Elizabeth Hospital (QEH) on 29 October 1999 and was discharged on 2 November 1999 with a short leg plaster cast and 2 elbow crutches. The plaster cast was removed in about 2 months. He thereafter attended the hospital’s outpatient and physiotherapy departments regularly (see Medical Report of Dr. LAU Yip-kwong at Assessment Bundle page 79, medical report of Dr. WONG Chun-kong at Assessment Bundle page 82 and medical report of Dr. LAM Kwong-chin [“Dr. LAM”] at Assessment Bundle page 82).

9.  In July and November 2000, the Plaintiff attended Caritas Medical Centre (“CMC”) because of right leg pain and limping. The Plaintiff received 20 sessions of physiotherapy from CMC. It was found that “…there was 80% improvement subjectively. He still has some tenderness over his right Tendo Achilles and weakness of his right lower limb. The range of motion of right ankle is full” (see medical and physiotherapy report from CMC at Assessment Bundle pages 80 and 81).

10.  In February 2001, the Plaintiff was seen by Dr. LAM. The Plaintiff complained of “right ankle aching and tightness on movement.” The Plaintiff said, inter alia, that he could “...tolerate walking for about 15 minutes, or standing for 20 minutes. No problem with sitting. Could walk fast, but could not run and play soccer. Difficulty with upstairs (sic), need holding out (sic) rails…”  On examination of the right ankle, no ankle deformity or swelling was found. There was a “9cm long zigzag surgical scar at posterior aspect of lower leg, with horizontal arm directly over the tendo Achilles”. The tendo Achilles was found thickened. The right ankle was tender on touch. The Plaintiff had “weaker muscle power at the right ankle, but there was no significant muscle wasting. There was only slight restriction in ankle motion.”  

11.  Dr. LAM was of the view that as the Plaintiff was “still young and the cut was a partial one, good prognosis is expected.” Dr. LAM felt that the Plaintiff could still “work as an electrician with some decrease in the walking tolerance and efficiency” (see medical report at Assessment Bundle page 83 to 89).

12.  Upon follow-up at QEH on 20 June 2001, there was found “...overall improvement about 80-90% with mild right heel pain, some numbness at surgical site and some difficulty to squat down.” (see Medical Report of Dr. WONG Chun-kong at Assessment Bundle page 82).

13.  Sick leave was granted the Plaintiff from 29 October 1999 to and including 25 April 2001 (see Medical Report of Dr. WONG Chun-kong at Assessment Bundle page 82). The Plaintiff did not work during this period. Since 2004, the Plaintiff had been taking courses in computer and electrical engineering. Recently, the Plaintiff found clerical work with the Housing Authority earning $7,000 per month.

14.  When giving evidence before me, the Plaintiff said he still felt occasional pain and weakness in his right ankle. This was especially after walking or standing for 20 minutes, or negotiating stairs for 5 minutes. There were occasions when the Plaintiff felt tightness or stiffness in the right ankle. There would be pain when the weather changed, when it rained or humidity was high. The Plaintiff complained of not being able to play football or jog. The Plaintiff also complained about the 3 scars around his right ankle (see Assessment Bundle page 46 and 47 as well as photographs at page 55 to 61).   

15.  Pain, suffering and loss of amenities

Despite what is stated in the Revised Statement of Damages (Assessment Bundle page 14 at page 25), Counsel for the Plaintiff asked for $150,000 under this head of damages. Counsel relied mainly on the case of LOBO, Helena George v BHAGWANDAS, K. Kripalani, HCPI 1286 of 1996.

16.  The case of LOBO, Helena George concerned a 50 year old domestic helper who suffered a deep cut to her Achilles tendon (it would appear to be that for her left leg). She was hospitalised for 8 days. The severed tendon was repaired and her lacerations stitched. She had substantially recovered. The plaintiff was, however, left with some scarring which had paled and was not keloid. There was “some thickening, or possibly swelling, around the tendon area.” There was 1.5 to 2 centimetre of wasting in the left calf muscle. The Court accepted that the plaintiff was left with some minor disability in that there was difficulty in climbing steps and getting up from a squatting position. The Court accepted that there was residual weakness of the foot or ankle and some pain. $150,000 was considered the proper figure to compensate for pain, suffering and loss of amenities. 

17.  Another 4 cases were mentioned in Counsel’s list of authorities and written opening submission. These were not referred to when Counsel addressed me. However, I will mention them as I do not  think they are not worthy of consideration:

i) WONG Wing Chow v LEE Wing Hang etc., HCPI 244 of 2002        - Though liability was not proved, the Court went on to assess damages. The case involved a 58 year-old construction site worker who fell and hurt his right ankle. He suffered a displaced intra-articular fracture of his right calcaneum. He had an operation by open reduction and internal fixation. He was hospitalised for 18 days. Over a period of about 13 months, he was given physiotherapy and occupational therapy. Though the Court found the plaintiff exaggerating his injuries, the Court accepted that the Plaintiff suffered residual pain. The Court found the condition was such that the right ankle would still permit a reasonable range of movement for daily activity and work under tolerable pain conditions. The Court accepted that the plaintiff could walk unaided and that the plaintiff could squat for 2 minutes and carry 24 pounds of weight for 60 feet. An award of $200,000 was considered appropriate;

ii) HAU Kit Ho v Starway International etc., DCPI 329 of 2002 -  A 54 year-old housewife slipped in the toilet of a restaurant and fractured her left ankle (left lateral malleolus). The left ankle was grossly swollen with a tender spot over the lateral malleolous. Range of movement decreased because of the pain. She had to undergo an operation for open reduction and screw fixation of the fracture. She was hospitalised for 9 days and was discharged using a wheelchair. She received 5 sessions of acupuncture. The leg splint fixed in the operation was removed in about 4 weeks. The healing was satisfactory and x-ray showed good alignment. After about 3 months, she could walk unaided. Over the course of around 1 year, she received 15 injections to relieve pain in her knee, 1 injection to relieve pan in her left ankle and attended 10 consultations for treatment with herbal medicine. There were residual complaints of pain after prolonged walking, mild pain in left heel when she started walking, some blocking feeling in the left ankle when it was  moved at a certain angle and discomfort in the malleolar region of the left lateral ankle when she lowered her body to sit. There was, however, a good chance of improvement with physiotherapy and 30 sessions were recommended. Medical evidence also indicated that after removal of the screws and the physiotherapy, there was a reasonable chance for the plaintiff to return to her daily activities of household chores, morning swimming or hiking. An award of $200,000 was considered appropriate;

iii) LAU Kin Wai Danny v CHAN Wai Sang etc., HCPI 1007 of 2000 – A 29 year-old delivery worker fell and fractured his right calcaneum. There was swelling and tenderness on the right heel. Movement of ankle was satisfactory. He also suffered a small abrasion over his left frontal head region. The plaintiff was treated conservatively and prognosis was satisfactory. He attended follow-up treatment several times at Kwong Wah Hospital. He then sought treatment from bonesetters instead. Medical evidence 2 years later indicated that the fracture was probably a minor one in the category of a hairline crack. There was good range of motion, full muscle power and good function of the right ankle. There was only some residual discomfort and mild residue stiffness and weakness. Prognosis was good and no treatment was needed. Medical evidence also indicated that there was a reduction of 5% in terms of working efficiency which meant that if the plaintiff walked for 3 to 4 hours carrying heavy objects, he would feel some pain. Sick leave for 9 to 12 months was regarded as reasonable. An award of $150,000 was considered appropriate and

iv) WONG Ka Pang James v WONG Chun Wang, HCPI 644 of 1998 – A 35 year-old driver fell and injured his right ankle. The plaintiff was treated in a short leg cast for about 1.5 months.  When he was medically examined some 3.5 months after the injury, he was found to be “able to fully weight bear on his right ankle.” Medical evidence about 1 year after the injury indicated that the plaintiff “…has regained all range of movement and walking ability. There is only some residual pain on stress. Such pain is expected after fracture and torn ligament around major joints.” An award of $150,000 was considered appropriate.

18.  It pays to remind myself the nature of the exercise embarked on when assessing damages in this case viz. ‘As Lord Diplock said in the Privy Council in Paul v Rendell (1981) 34 ALR 569, “The assessment of damages in actions for personal damages is not a science.” Mustill LJ further developed this in Cunningham v Cumberwell Health Authority (1990) 2 Med LR 49 at 53 : “What happens in practice is that the Judge adopts an intuitive process buttressed by reference to previously decided cases.” ’(WONG Ka Pang James, supra, page 6).

19.  Counsel for the Plaintiff asked for $150,000 under this head of damages. I consider the amount within the range of reasonable and acceptable awards that can be made. I award the Plaintiff $150,000.

20.  Loss of pre-trial earnings

This is for the loss of earnings during the sick leave period from 29 October 1999 to 25 April 2001 at the monthly wage of $9,100 (what the Plaintiff was earning from the 1^st Defendant). I accept the Plaintiff’s calculation i.e. $9,100 x 17 28/31 (months). This yields the amount of $162,919.35.

21.  Loss of future earning capacity

I am inclined to think that when considering or making an award under this head, the Court is engaging in an exercise particularly fraught with speculation. I note matters stated in paragraph 14 above. I consider that the Plaintiff will suffer real disadvantage if thrown into the labour market. Counsel suggests an amount equal to 6 months of the wages the Plaintiff was earning at the time of his injury. This will yield the amount

$54,600. I consider the amount reasonable and make the award

accordingly.

22.  Loss of Mandatory Provident Fund (5%)

This is calculated at 5% on the loss of pre-trial earnings of $162,919.35. The amount is $8,145.97. I make the award accordingly.

23.  Special damages

There are 3 components under this head: a) medical expenses ($1,576), b) travelling expenses to and from hospital ($1,830) and c) tonic food ($46,600). I find proved and reasonable the amounts for medical and travelling expenses.  Whilst I consider it reasonable for the Plaintiff to consume tonic food and that there is no need to prove the therapeutic value of such food, I thought the amount claimed to be on the high side (see receipts at page 145 and 146 of Assessment Bundle). All the Plaintiff could say was that his father did not believe in “Western-style” medication and preferred “Chinese-style”. Hence, the various items of tonic food (as listed on the relevant receipts). Given the injuries the Plaintiff suffered, I was only prepared to award him $15,000 under this head as being a reasonable amount.

24. The orders with regards to interest and costs are what I consider the usual orders.