LIU CHEUNG KEUNG v. NG CHI KEUNG

HCPI 272/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 272 OF 2008

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BETWEEN

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ASSESSMENT OF DAMAGES

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1.  At all material times, the Plaintiff was employed by the Defendant as a plumber. On 25 April 2005, whilst the Plaintiff was trying to get some tools from an equipment bag provided by the Defendant, a metal spring, which was not properly secured, suddenly bounced out from the bag. It hit and shattered the eye glasses that the Plaintiff was wearing. As a result of the accident, the Plaintiff’s left eye was injured by the shattered glass.

2.  On 12 April 2008, the Plaintiff commenced the present claim against the Defendant. Notice of intention to defend was not filed by the Defendant, interlocutory judgment on liability was thus entered against the Defendant on 19 November 2008 with damages to be assessed. This is a hearing for the assessment of damages.

3.  At the hearing, the Defendant failed to appear nor has he filed any witness statement or expert evidence. The assessment proceeded in his absence.

4.  At the assessment hearing, the Plaintiff adopted his witness statement dated 16 December 2008 as his evidence. As no evidence has been adduced by the Defendant to contradict the Plaintiff’s claim, I accept the Plaintiff’s evidence as per his witness statement. I also admit as evidence the government hospital reports; the 2 medical reports prepared by Dr. Paul M.K. Cheung dated 14 February 2007 and 4 May 2009 together with all other supporting documents as contained in the bundle of documents (“the bundle”).

Injuries, treatments and disabilities

5.  After the accident, the Plaintiff was sent to the Accident and Emergency Department of the Princess Margaret Hospital for treatment of his left eye. On examination, he was found to have distorted iris of the left eye with hyphaema. Suspicious foreign body was seen in the left eyeball. The visual activity was found to be markedly decreased. He was immediately transferred to the Caritas Medical Eye Unit for further treatment.

6.  Upon examination by the doctor at the Department of Ophthalmology of the Caritas Medical Centre, the following findings were reported (see the medical report of Dr. Thomas Tai dated 14 April 2009, at page C6 of the bundle): -

(a)  visual acuity of the left eye was hand movement;

(b)  ruptured left eyeball with linear full thickness corneo-scleral laceration;

(c)  iris prolapse;

(d)  iridodialysis from 8 to 12 o’clock position;

(e)  hyphaema of 3 mm;

(f)  traumatic cataract;

(g)  B scan (ultrasound) showed flat retina and normal vitreous echogenicity; and

(h)  CT scan showed ruptured left eyeball with no intraocular foreign body.

7.  On 26 April 2005, emergency operation was performed on the Plaintiff to repair the ruptured eyeball. He was hospitalized until 4 May 2005. Thereafter, he had attended regular follow-up treatment at the Caritas Medical Centre.

8.  On 22 September 2005, another surgery was done on the Plaintiff for cataract extraction and implantation of intraocular lens at the Caritas Medical Centre. According to the Plaintiff, the stitches which remained in his left eye after the surgery sometimes displaced or protruded. This had caused pain and discomfort to his left eye. He stated that he had on 8 occasions sought medical treatment for the removal or trimming of the protruded stitches.

9.  According to the witness statements filed by the Plaintiff and which has been adopted as his evidence, he stated that as a result of the accident, he has the following disabilities in his left eye: -

(a)  blurring of vision;

(b)  occasional pain and discomfort;

(c)  double image.  He has to rely on his right eye for reading as a result his right eye would get tired easily;

(d)  pain and discomfort caused by the displacement or protrusion of the stitches after the surgery.

10.  Sick leave was granted to the Plaintiff for about 11 months from 25 April 2005 to 26 March 2006 save and except one or two odd days in between on which no sick leave was granted (see page D3 to D21 of the bundle). But practically speaking and for the present purposes, I accept that the Plaintiff was out of work from 25 April 2005 to 26 March 2006. After 26 March 2006, single day sick leave was granted to the Plaintiff on a number of occasions (see page D22 to D26 of the bundle).

11.  The Plaintiff was also examined by his own ophthalmology expert Dr. Paul Cheung. In his report dated 14 February 2007 (see page C7 to C12 of the bundle), he is of the opinion that: -

(a)  The best corrected visual acuity of the Plaintiff’s left eye was 20/200.  This is usually considered to be equivalent to 50% impairment in visual acuity.  The blurring of vision is consistent with the findings of corneal scar and maculopathy in the eye.  There was probably some degree of pre-existing maculopathy which had deteriorated as a result of the injuries.

(b)  The Plaintiff’s left eye is pseudophakic (i.e. the crystalline lens had been removed by surgery and replaced by an intraocular lens).  Pseudophakia is generally considered to be an additional impairment in visual function.

(c)  There is also total loss of accommodation (accommodation is the auto-focusing ability of the eye for near vision) resulting in very poor vision for reading and close work.  There are also pupil abnormalities with a slightly dilated pupil and iridodialysis.

(d)  The effect of the pseudophakia and the abnormal pupil have resulted in an additional 40% impairment in the eye.  Thus, the overall permanent visual impairment in the Plaintiff’s left eye is assessed to be 70%.

(e)  The Plaintiff’s complaint of blurring of vision in his left eye is genuine and is consistent with the findings on medical examination.  The injuries are also consistent with the circumstances of the accident.

(f)  The Plaintiff’s complaint of discomfort is not supported by physical findings.  There was no evidence of inflammation in the left eye.

(g)  The condition of the Plaintiff’s left eye is stable and no further treatment is required.  There is no treatment that can improve his visual acuity.

(h)  The visual acuity of the Plaintiff’s right eye was 20/40, which was a pre-existing condition not related to the accident.

(i)  Because of the visual impairment in his left eye, it is not suitable for the Plaintiff to return to his pre-accident job as a plumber.  The types of job that he is capable of performing include transport worker, warehouse worker, car park attendant, cleaner, watchman, cashier, factory worker, masseur and porter.

(j)  The period of sick leave granted to the Plaintiff is appropriate for his condition.  He should have been capable of returning to some gainful employment after the expiry of the sick leaves (i.e. after 26 March 2006).

12.  In this supplemental medical report dated 4 May 2009, Dr. Paul Cheung commented that the stitches protruded would cause grittiness and irritation to the Plaintiff. This is however, and according to Dr. Cheung quite common. He stated that when this occurs, the stitch could be easily removed during medical examination and no operation is required. He further commented that the removal of the stitches would not affect the cornea and there would not be any residual damage. These incidences of protruding stitches are very minor problem and do not affect the prognosis of the Plaintiff’s condition.

Pain, suffering and loss of amenities of life (“PSLA”)

13.  On this head of claim, Mr. Chan, Counsel for the Plaintiff, has referred me to 2 cases namely: -

(a)  Sze Ping Chui v Lau Ching Wai [2002] HKLRD (yearbook), HCPI 1051 of 2001, 27 September 2002, by Master Kwang;

(b)  Kwan Shek Sang v Chan Kam Wah [2003] 2 HKLRD 967.

14.  Mr. Chan submitted that the injuries and disabilities suffered by the Plaintiff in this case are comparable to, and may be more serious than, the injuries and disabilities suffered by the injured worker in the Sze Ping Chui case. In that case, the injured worker was found to have a ruptured eyeball on his left eye with a 5 mm full thickness linear corneal laceration at the visual axis. The lens in his eye was also damaged. Urgent operations were done to repair the cornea; to remove the damaged lens and for implantation of an intro-ocular lens. He was left with a residual corneal scar and suffered from blurred vision, occasional “light reflection”, discomfort and photophobia in the left eye. The injured worker was also found to have myopia and severe astigmatism. After taking into account of the pseudophakic condition of the eye, his visual acuity was assessed at 35% and the permanent disability of the left eye was assessed at 67%. Mr. Chan submitted that the Plaintiff in the present case seemed to have suffered more serious injuries and disabilities than the injured worker as the Plaintiff was assessed to have 70% permanent disability of the left eye. He stated that in the Sze Ping Chui case, Master Kwang has allowed an award of $400,000 as PSLA and that having taken into account of inflation from September 2002, a sum of $450,000 should be awarded to the Plaintiff in present case.

15.  I have considered the injuries, treatments and disabilities of the Plaintiff as set out in the medical reports adduced. In considering the amount of award for PSLA, I have taken into account of the rather serious disabilities now suffered by the Plaintiff in his left eye; the 2 operations performed on him and the regular medical treatments he had to attend. I have also considered the pain and discomfort caused by the protruding stitches as well as the failure on the part of the Plaintiff to enjoy a normal life because of his impaired vision in the left eye. Having considered all these matters, I agree and accept that it is reasonable to award a sum of $450,000 to the Plaintiff as PSLA.

Pre-trial loss of earnings

16.  The Plaintiff was aged 52 at the time of the accident. He received education up to primary 6 level. He is a divorcee and residing with his daughter. According to the Plaintiff, he had worked as a plumber (master level) for over 20 years. At the time of the accident, he earned a daily wages of $800. He used to work 26 days a month with a monthly salary of $20,800. He stated that before the accident, he had worked for the Defendant for 3 days and received a total sum of $2,400 from the Defendant (see the bank account records at page D49, D52 and D55 of the bundle).

17.  At the hearing, the court has raised with the Plaintiff as to whether he has documentary proof to support his claim that before the accident, he had worked for 26 days a month. He replied in the negative. He explained that he was paid by his employers in cash and that the employers in his field always tried to hire him as he had a good reputation in terms of his workmanship. He was also known to be a responsible worker. Without any evidence from the Defendant to contradict what the Plaintiff had stated, I am prepared to accept that before the accident, he had worked for 26 days a month with a salary of $800 per day or $20,800 per month ($800 x 26 = $20,800).

18.  According to the Plaintiff, he could no longer return to his pre-accident job because of his disabilities in the left eye. This is confirmed by Dr. Cheung who is of the opinion that the Plaintiff is not suitable to return to work as a plumber due to his visual impairment in the left eye. Dr. Cheung stated that the Plaintiff is only suitable to take up job as a transportation worker, car park attendant, cleaner, watchman, cashier, factory worker, masseur and porter (collectively referred to as “the suitable jobs”). Dr. Cheung added that the Plaintiff should have been capable of returning to some gainful employment after the expiry of his sick leave i.e. after 26March 2006.

19.  In his witness statement, the Plaintiff stated that in December 2006, he had returned to work in the construction site as a casual labourer doing light duty work. He worked for about 11 to 12 days a month with a monthly salary of about $4,800 or $400 per day (see the Certificate of Earnings issued by his employer at page D75 of the bundle). However, in view of the expert opinion of Dr. Cheung, Mr. Chan submitted that the Plaintiff is prepared to accept that he should be able to take up the suitable jobs as recommended by Dr. Cheung in about 3 months after expiry of his sick leave. Mr. Chan also suggested the court to accept a figure of $7,500 as representing the average monthly income that the Plaintiff would have earned if he were to take up the suitable jobs as recommended by Dr. Cheung.

20.  I have considered the salary statistics of various occupations issued by the Census & Statistics Department (see page D57 to D61 of the bundle). I note that in December 2006, the average monthly salary of a general worker, messenger; general cleaner and guard (in security and investigation) is $7,481, $7,699, $5,073 and $6,941 respectively. For March 2009, the respective average monthly salary is $7,425, $7,912, $5,269 and $7,200. Based on the above statistics, I am prepared to accept the figure of $7,500 suggested by Mr. Chan as reasonable, that is to treat that the Plaintiff was able to earn a monthly salary of $7,500 after the accident. However, I do not agree with Mr. Chan that it would take the Plaintiff another 3 months after the expiry of the sick leave to resume employment. I am of the view that an allowance of 2 months would be reasonable. In the premises, the Plaintiff’s pre-trial loss of earnings should be calculated as follows: $20,800 x 13 months + ($20,800 – $7,500) x (57 – 13 months) = $855,600.

Future loss of earnings

21.  The Plaintiff was born on 31 January 1953. He was aged 56 on the date of the assessment (i.e. on 29 January 2010). He would be 57 two days after the assessment hearing. Mr. Chan submitted that a multiplier of 5 should be adopted. He referred the court to the case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, where the Court of Appeal took the view that for a man aged between 53 and 54, the appropriate multiplier would be about 7. But having taken into account of the particular circumstances of that case, the Court of Appeal reduced the multiplier from 7 to 5. I agree that in this case it is reasonable to adopt a multiplier of 5. The future loss of earnings of the Plaintiff would thus amount to $798,000 i.e. ($20,800 – $7,500) x 12 x 5.

Loss of Mandatory Provident Fund Contributions (“MPF contributions”)

22.  I agree that the Plaintiff is entitled to loss of MPF contributions which should be calculated as follows: -

$855,600 x 5% = $42,780

+ $798,000 x 5% = $39,900

Total: $42,780 + $39,900 = $82,680

Loss of earning capacity

23.  Mr. Chan submitted that by reason of the Plaintiff’s injuries and disabilities, his competitiveness in the labour market would be reduced and that he would lose his future job more readily than his competitors. He submitted that a sum of $50,000 should be awarded to the Plaintiff as damages for loss of his earning capacity. In view of the Plaintiff’s visual impairment in his left eye, I accept that he would be at a disadvantage in finding employment in the labour market. I agree and allow the claim for $50,000 as damages for loss of earning capacity.

Special damages

24.  Mr. Chan submitted that in the Re-Revised Statement of Damages, the Plaintiff claims a total sum of $13,700 as his medical expenses, travelling expenses, the costs of tonic food and costs of the damaged eye glasses. However, as the Plaintiff could not provide all the necessary receipts to support the claims, he reduced the amount of his claims for special damages to only $5,000. I accept this is reasonable and would allow it.

Discount for pre-existing condition

25.  Mr. Chan submitted that Dr. Cheung has in his report dated 14 February 2007 referred to a pre-existing maculopathy in the Plaintiff’s left eye. Mr. Chan argued that such pre-existing condition should not be a ground to reduce the amount of damages to be awarded to the Plaintiff. He stated that the injuries (as a result of the accident) had in fact caused a deterioration of the pre-existing maculopathy in the Plaintiff’s left eye. More importantly there is no evidence to suggest that the Plaintiff had any problem with his eyes before the accident. Rather, and as mentioned by Dr. Cheung, it was the injuries that had caused a deterioration of the pre-existing maculopathy in the Plaintiff’s left eye. Also, it was the accident that had actually caused a rupture of the Plaintiff’s left eyeball leaving a residual corneal scar and causing his left eye to be pseudophakic. Mr. Chan relied on the said Chan Kam Hoi case (see paragraph 21 above) to support his argument.

26.  I have considered the submissions by Mr. Chan and agree that there is no evidence which indicates that the present disabilities suffered by the Plaintiff in his left eye are in any way caused by or attributed to his pre-existing maculopathy in the left eye. On the evidence, it was the injuries that had led to a deterioration of his pre-existing malculopathy. I agree that there should be no deduction in the amount of damages to be awarded to the Plaintiff.

Summary

27.  The amount of damages awarded is summarized as follows: -

(a)  PSLA	$450,000
(b) Loss of earnings
- pre-trial	$855,600
- post-trial	$798,000
(c)  Loss of MPF contributions	$82,680
(d)  Loss of earning capacity	$50,000
(e)  Special damages	$5,000
	$2,241,280

28.  Credit will be given for the employee’s compensation received by the Plaintiff in the sum of $620,000. Thus the net damages awarded to the Plaintiff would be $1,621,280 (i.e. $2,241,280 – $620,000).

29.  The Plaintiff would be entitled to claim interest at 2% per annum on general damages from date of the writ to the date of assessment. Interest at half the judgment rate would be allowed for the award on pre-trial loss of earnings and special damages from date of the accident to the date of assessment.

30.  I also allow costs of the assessment to the Plaintiff to be taxed on High Court Scale if not agreed with Certificate for Counsel. The Plaintiff’s own costs be also taxed in accordance with the Legal Aid Regulations.