NG KAI MAN SAMUEL v. CHOW YAT TAK t/a KAM KEE STEVEDORE & TRANSPORTATION CO

HCPI 314/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 314 OF 2008

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ASSESSMENT OF DAMAGES

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Introduction

1. This is an Assessment of Damages for the Plaintiff’s injuries suffered at an industrial accident.

Background

2.  The Plaintiff was born in Hong Kong on 15 August 1960.  He received local education up to the secondary level at Form 4. 

3. From about 1985, the Plaintiff started to work for the Defendant as a crane operator.  As he later accumulated some years of experience, the Defendant also regarded him as a foreman to assign and supervise other crane operators and workers.

4. On 9 May 2005, the Plaintiff met the subject accident.  At about 3:45 pm, he worked on a barge and was examining the crane parts thereon when his right thumb was caught.  He struggled to “pull” it out and rushed to the United Christian Hospital (“UCH”) for treatment.

(a)   The Report dated 5 February 2008 of A&E Department, UCH states:

“……

Physical examination showed distal amputation of right thumb.  X-ray right thumb showed fracture distal phalanx.

He was admitted to orthopaedic ward for further management.

……”

(b)   The Report dated 19 February 2008 of O&T Department, UCH set out:

“……

Physical Examination

General: Stable

Specific: Right thumb distal phalanx partial amputation.

……

Treatment:

Revision amputation on 9/5/05.  Excisional debridement, suturing on 12/5/05.

Progress:

The patient was recently followed up on 21/3/06.  The right thumb stump was healed, there are decreased problem of hypersensitivity and the patient already resumed duty.

Sick Leave Period: 9/5/05 – 11/4/06 [sic. 08]

……”

(c)   The Physiotherapy Department at UCH also provided a Report on 10 March 2008.

“……

4.   Mr. Ng attended the first treatment session on 5^th July 2005.  He reported having injury on duty on 9^th May 2005 with his right thumb crushed by machine during work.  Right thumb amputation and revision of amputation were done in hospital afterwards.  Physiotherapy treatment in form of Magnetopulse Therapy, Desensitization program, mobilizing, stretching and strengthening exercises was given to his right thumb.  Mr. Ng completed the rehabilitation program with total 8 sessions of treatment received and was discharged on 6^th September 2005.  Subjectively, Mr. Ng reported 60% improvement upon discharge.

5.   The physical condition of Mr. Ng at initial assessment on 5^th July 2005 and final assessment on 6 September 2005 were as following:

		Initial Assessment on 5th July 2005	Final Assessment on 6th September 2005
A) Range of Motion of Right Thumb
i)	Metacarpophalangeal Joint	0o Extension to 40o Flexion with pain at end range	Full range and pain free
ii)	Interphalangeal Joint	10o lack in Extension to 20o Flexion with pain at end range	Full range and pain free
iii)	Opposition	Full range and pain free	Full range and pain free
B) Muscle Strength
i)	Gross Hand Grip	Right 32 kg & Left 36 kg	Not measured
ii)	Pinch Grip	Right 2.5 kg & Left 4 kg	6 kg for both sides

……”

(d)   The Plaintiff also attended occupational therapy at UCH.  The relevant Report dated 28 February 2008 says:

“……

Summary of patient’s progress

Mr. Ng was referred for desensitization and initial assessment was done on 30-9-05.  He complained of persistent numbness and pain over tip of right thumb with decreased lateral pinch and power grip.  Therefore, hand class was arranged for him since 10-10-05.

After almost 3 months of training, his hypersensitivity over stump decreased.  His right thumb active range of motion was full and power grip was 30kgf, which was 65% of unaffected side.  His right lateral pinch was 5.5kgf, which was 48% of unaffected side.  He worked to operate crane to hang containers and was suggested to use silicone gel tubing to protect right thumb at work.  He was discharged on 4-1-06 as his progress was plateau off.

……”

5. On the other hand, on 25 July 2006, the Employee’s Compensation Board assessed the injury of the Plaintiff as:

“……

(b) Injury: right thumb injury resulting in half distal phalanx amputation and pain ……

(d) Loss of earning capacity permanently caused by the injury: 12% ……”

6. Although the Plaintiff suffered from the above injury and was granted almost one year’ sick leave, he indeed resumed work only a few days after the accident.  After the resumption, he could not operate the crane as before, became tired easily and the wound hurt him a lot.  However, the Defendant needed him for supervision and arrangement of jobs as it was busy at the moment.  He received a total of $300,000 salary during his sick leave period.

7. Later, when the Defendant ceased business, the employment of the Plaintiff was also terminated.  Under Labour Tribunal Claim no. LBTC 3753/2006, the parties reached settlement of the Plaintiff’s claim therein.

8. Thereafter, the Plaintiff worked as:

(a)   a crane operator for 2.5 months from 1 September 2006 to 15 November 2006,

(b)   a transportation worker for about 15 months from 20 July 2007 to 31 October 2008, and

(c)   a day shift taxi driver from 15 April 2009 onwards until the present Assessment.

9. In the meantime, on 23 April 2007, the Plaintiff also commenced his EC proceedings DCEC 70/2007 and they were subsequently settled at $205,887.77.

10. With regard to the present common law claim, it was instituted on 2 May 2008.  The Defendant conceded liability on 17 July 2008 and thereafter parties proceeded with assessment of damages.  Both the Plaintiff and the Defendant have adduced their respective witness statement(s), but the latter was unable to testify at the hearing before me as he was suffering from cancer and admitted to the hospital a week before the scheduled assessment.  As to expert evidence, the Plaintiff instructed an orthopaedic expert Dr. Wong to prepare a report. It was admitted without oral evidence.  On the other hand, the Defendant chose not to adduce any expert evidence.

11. I heard the matter for 2 days in January 2010.  Mr. Simon Ho of Counsel represented the Plaintiff and Mr. Norman Nip of Counsel acted for the Defendant.  Upon hearing from the parties, I reserved my decision to be handed down.  I now do so.

Issues

12. Mr. Nip identified 2 issues in dispute.

(a)  How serious was the Plaintiff’s injury and whether he could have resumed to his pre-accident job?

(b)   What are the proper damages to be awarded to the Plaintiff in the circumstances?

I respectfully adopt the above and add that this Court needs to decide one further question, namely: Is the Plaintiff a credible witness?

Is the Plaintiff credible?

13. The Plaintiff was the only witness testified in this Assessment.  He produced 3 witness statements and adopted the same as his evidence-in-chief.  He orally supplemented further particulars and was thereafter cross-examined in details by Mr. Nip.

14. Out of the cross-examination, Mr. Nip asked me not to accept the Plaintiff as a credible or reliable witness.  Counsel drew my attention to various matters, including gross exaggeration of claim, poor memory of the Plaintiff, inconsistent version of facts, exaggeration of sufferings and evolving case of the Plaintiff’s case throughout the proceedings.

15. Having reviewed the Plaintiff’s evidence before me, I have decided to accept his case on balance as he told this Court while he was testifying in the witness box.

(a)   The Plaintiff claimed about $2.9 m in these proceedings, but upon counsel’s advice, he conceded and reduced it to $1.7 m.  Such reduction was caused by the change of his monthly income from $9,108 to $15,000 for the purpose of calculating his loss.  When being challenged, he explained that it was  “開天殺價，落地還錢” and “每一件物品都有討價還價餘地”.  Mr. Nip described it as gross exaggeration of claims.  However, I take a different view.  $2.9 m is the best case for the Plaintiff that his solicitor suggested.  When the matter was passed to Mr. Ho who advised him a more conservative approach.  The Plaintiff agreed to it.  In my view, it is a reasonable concession in the present case.  Further, the Plaintiff could not be described as “dishonest” when he was telling the truth to the Court, i.e. the agenda or tactics as advised by his legal adviser.  Certainly, when such concession only came at the time of Assessment, it will have a bearing on the costs issue herein.

(b)   Mr. Nip drew my attention to various “inconsistencies” or “uncertainties” on the part of the Plaintiff’s evidence as to his working experience, division of work between supervision and crane operation as well as monthly amount of tea allowance.  However, my impression is that the Plaintiff is largely a credible witness, save that there are some inconsistencies of details of his case.  For the present purpose, it suffices for me to accept that the Plaintiff started working for the Defendant since 1985.  As the time went on and his experience gained, before the subject accident, 70%-80% of his job duties was to operate the crane himself, the other 20-30% being work arrangement and supervision.  As to the tea allowance, it was about $3,000 per month.

(c)   Mr. Nip told the Court that the Plaintiff had exaggerated his pain, especially in light of the surveillance video as well as the evasive and argumentative attitude during cross-examination.  In these respects, the Plaintiff had adduced a number of medical evidence, including various government hospital reports and the one done by his own expert Dr. Wong.  All these medical evidence are largely in line apart from some minor discrepancies.  With due respect to the doctors preparing the government hospital reports, I prefer to accept the observations of Dr. Wong when there were differences among them because the latter had well considered the former as well as examined the Plaintiff in some details.  On balance, I agree to accept Dr. Wong’s opinions, including the followings:

“   60.   Present condition: In this assessment, Mr. Ng complains of various problems as a result of his right thumb distal portion amputation including residual hypersensitivity, reduced dexterity, weakness, reduced efficiency and inability to play some of his usual sports.  Physical examination shows loss of distal 1 cm of his right thumb, widened stump end, loss of nail, reduced sensation and numbness stump end.  Movement of right thumb is essentially normal.  Updated x-ray shows loss of distal 11 mm of the distal phalanx right thumb.

    61.   Residual disability and prognosis: Considering the above, the overall prognosis for Mr. Ng’s right thumb injury is fair.  There is no doubt that his right hand function will be impaired to certain extent because of physical loss of distal 1 cm of his right thumb.  Majority of his complaints are genuine and are compatible with his injury and the physical findings in this assessment, and previous progress recorded.  The most affected aspect is likely to be his right hand’s dexterity in performing fine movements.

    62.   Social life, sports and daily activities: Mr. Ng is capable of managing his activities of daily living.  He will definitely encounter difficulty playing racket-sports using his right hand, but not to the extent that he is unable to participate at all.  His social life is unlikely to be much affected by his right thumb injury.”

(d)   Finally, as to the complaint of “evolution” of the Plaintiff’s case, I see it as explaining in further details as to why the Plaintiff says that he is no longer able to work as a crane operator/supervisor.  There is no inconsistency of his case when he added particulars of his job nature, including the need to climb the “cat-ladder” and to carry/use spanner and hammer for maintenance work.

Can the Plaintiff return to this pre-accident job?

16. Whether the Plaintiff can or cannot resume his pre-injury job is often a major dispute in PI action because it affects the future loss of income to be awarded.  In the present case, such issue is further complicated by the fact that, as a matter of fact, the Plaintiff did resume his pre-injury job, not upon the expiry of his about one year sick leave, but after a few days of the meeting of his injury.  Further, after the cessation of the business of the Defendant and a few months’ work as a crane operator in a new company, he was unable to perform the job any further.

17. Upon careful thought, I have decided to accept the Plaintiff’s case.

(a)   His resumption of job a few days after the accident is peculiar.  But for his 20 years of working relationship with the Defendant, it would not have happened.

(b)   The above fact is not made known to the doctors and expert who have prepared the medical reports before me.

(c)   With the permission of the parties, I took a closer look at the left thumb of the Plaintiff.  I saw that almost the whole of the distal part of the thumb was lost.  No nail was left there.  To borrow the description of Mr. Ho, in light of such injury, the thumb can no longer perform a “locking” function to grasp objects firmly.  Without these, it would be difficult, if not impossible, to perform fine control of a crane, as well as maintenance of the same as described by the Plaintiff, including the climbing of the “cat-ladder” as well as carrying/using spanner and hammer.

(d)   During examination, the Plaintiff told me that he did keep renewing his crane operator licence.  He would try resuming such career, if possible.  It is understandable as he was in the field for more than 20 years.  However, in my view, in open market, on balance, he will not be able to resume his pre-injury job any more.

Damages to be awarded

18. With the above findings, I proceed to assessment of the damages to be awarded to the Plaintiff.

PSLA

19. Both Counsel have submitted a number of authorities assisting me to come up with a reasonable compensation for the pain, suffering and loss of amenities for the Plaintiff.  I do not propose to go through each of them as each case has its own special features.  With the above findings, it suffices for me to refer to the case of Wong Tai Yan v Transward Stevedore Ltd. & Another (unrep., HCPI 1080/2006, 9 October 2009, Suffiad J.).  I find this authority bearing similar features and extent of injury as in the present one although the Plaintiff herein suffered a bit lesser.  I will award the sum of $200,000 to the Plaintiff in the circumstances.

Pre-trial loss of earnings and MPF

20. On balance, I accept the Plaintiff’s case that his pre-accident income is $26,360 on average.  Mr. Ho conceded that the Plaintiff could and should have been able to earn $15,000 per month when he was only working as a taxi driver.  I also agree with Mr. Ho that a period of 4 months time would be needed for the Plaintiff to locate new jobs in between.  With these, I will allow the sum of $791,490 as his loss of pre-trial loss of earnings and MPF [$(26,360 x 55 – 300,000 – 62,500 – 221,000 – 15,000 x 7.5) x 1.05].

Future loss of earnings and MPF

21. The Plaintiff was 44 at the time of the accident, and 49 at the time of the assessment.  In light of the job description he told me at the hearing, I view that a multiplier of 6 is fair in his case.  Therefore, his future loss of earnings and MPF are $858,816 [$(26,360 – 15,000) x 12 x 6 x 1.05].

22. No loss of earning capacity is to be awarded to the Plaintiff.

Special damages

23. A total sum of $9,873 medical, traveling and tonic food expenses was claimed.  They were not disputed, I so order accordingly.

Summary

24. To sum up, the Plaintiff will be awarded the followings:

	$
PSLA	200,000
Pre-trial loss of earnings and MPF	791,490
Post-trial loss of earnings and MPF	858,816
Special damages	9,873
	1,860,179
Less: Employee compensation	205,887
	1,654,292

Interest and costs

25. The Plaintiff is also awarded interest on PSLA at 2% per annum from the date of Writ herein until the date hereof.  As to loss of pre-trial loss of earnings/MPF and special damages, interests are calculated at half of the judgment rate from the date of the accident until today.

26. I have the benefit of the parties’ written submission on costs to be summarily assessed by me.  Having taken into account the concession of case by Mr. Ho at the outset of the Assessment and the supply of further details of the Plaintiff’s case as time went on, I will order the Defendant to bear half of the Plaintiff’s costs of the Assessment.  My ruling is:

		$
B:	Manual Work $7,614 x 1/2	3,807
C:	Communications $4,000 x 40 hours x1/2	80,000
D:	Professional Work $4,000 x 40 hours x 1/2	80,000
E:	Counsel $155,000 x 1/2	77.500
F:	Disbursement $19,438 x 1/2	9.719
		251,026