CHAN CHUN FAT v. FORTRESS GLORY ENGINEERING LTD

HCPI 832/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO 832 OF 2013

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is the hearing of the claim of the plaintiff (“P”) for damages to be assessed, arising out of an accident happened at work on 29 October 2008 (“Accident”).  At the time of the Accident, P was a delivery worker under the employ of the defendant (“D”).  P was 31 years old at the time and now 37.

2.  The Accident occurred when a trolley of glass panels was being unloaded from a lorry (“the Trolley”).  P was standing on the rear platform of the lorry together with the Trolley as it descended when the glass panels fell out of the Trolley and caused the Trolley to topple over.  A corner of the Trolley hit him in the left knee and he therefore suffered injuries to his back.

3.  P commenced the Employees’ Compensation Case against D in 2009 and eventually settled with D for the sum of HK$50,000 in March 2010.  P confirmed receipt of this sum from D.

4.  P further commenced an action in the District Court under DCPI1612/2011 for the common law claim against D in August 2011.  As D has failed to serve a Defence, interlocutory judgment was entered in favour of P with damages to be assessed and costs on 23 July 2012.  P filed the Revised Statement of Damages (“RSOD”) on 15 August 2013 but D filed neither Answer to the Statement of Damages nor any witness statement to contest P’s claims.  Pursuant to the Order dated 9 September 2013, the action was transferred to the Court of First Instance. 

5.  In the RSOD, P’s claim pleaded is HK$1,502,540.00 plus interest. However, Ms Wong, Counsel for P, submitted in the opening submission that P is now claiming HK$1,694,393.26 due to some adjustments.

Treatment and Disabilities

6.  After the Accident, P attended the Accident and Emergency Department of United Christian Hospital for treatment on the same day.  On examination, there was puncture wound found over the left knee skin surface.  He was discharged the same day and obtained sick leave till 2 November 2008.

7.  Thereafter, due to persistent low back pain and left knee pain, P attended Lee Kee Memorial Dispensary since 3 November 2008.  Physical examination showed abrasion of left knee and tenderness over the low back with decreased range of movement of the spine due to pain. 

8.  P also attended the Physiotherapy Department and Orthopaedic Clinic of the Queen Elizabeth Hospital, and had received treatment in this regard till April 2009.

9.  Intermittent sick leave was granted from 29 October 2008 to 1September 2009 (191 days in total as opposed to 221 days as pleaded in the RSOD).

Dr Tio’s 1^st medical report

10.  According to the 1^st medical report of Dr Tio dated 12 December 2012, P made the following complaints: -

(1) Residual lower back pain rated by P at the scale of 8/10.  The pain is aggravated by walking and standing for over half an hour, days of poor weather, lifting a weight of up to 5 kg and bending forward.  Stiffness of his lower back.

(2) Residual left knee is intermittent and is aggravated by walking 20 – 30 flights of stairs and kneeling for over 2 -3 minutes.

(3) Residual right wrist weakness which has improved by 50%.

11.  Dr Tio opined that P suffered from an injury to his left knee and back as a result of the Accident, and that the mechanism of injury he sustained was compatible with the diagnoses (i.e. soft tissue injury).

12.  Whilst Dr Tio has commented on a pre-existing back injury suffered by P in May 2008, he did not link the same to the symptoms suffered by P due to the Accident.  Dr Tio also did not suggest that there should be any discount or apportionment of damages or by how much.  Ms Wong, Counsel for P, therefore submitted that there is no basis for the Court to make any such deduction.

13.  Insofar as P’s right wrist is concerned, P accepts that the same is largely healed and takes no issue with Dr Tio’s comments at §21 of his 1^st medical report ie the right wrist complaint unrelated to the Accident.

14.  P alleged unable to resume original duty as he was unable to carry heavy weights of more than 5 kg.  Nonetheless, Dr Tio opined that he was able to resume his original duty as delivery worker for glass panels and that P may have some reduction in efficiency upon lifting heavy objects of over 50 pounds. Dr Tio also opined that 2 % permanent loss of earning capacity and whole person impairment is considered appropriate.

Dr Tio’s supplementary medical report

15.  According to the supplementary medical report of Dr Tio dated 11August 2013, P still suffers from the following complaints: -

(1) Residual lower back pain which is at the scale of 8/10.  It is aggravated by sitting for a long time, stationary position for over 10 minutes, lifting a weight over 5 kg for a few minutes, sleeping for over half an hour and by bending forward.

(2) Residual left knee clicks brought about by staircase walking especially when going up.

(3) Residual right wrist weakness.

16.  Although Dr. Tio found no particular abnormality in the physical examination of P on 10 August 2013, he revised his opinion in his supplementary medical report that in light of P’s multiple attempts to resume duties that involved heavy manual work and failed, P was considered unfit to resume his original duty unless he can be exempted from lifting heavy objects of say 75 pounds for a few minutes.  Alternatively, it is opined by Dr Tio that P is physically more fit for other lighter duties such as a car park attendant or petrol station attendant etc.

Quantum

17.  Ms Wong, Counsel for P, submitted in the opening submission that P will adhere to his claims as set out in the RSOD, subject to a few adjustments.

PSLA

18.  Ms Wong for P cited the following cases, which I accept, that  are comparables to support P’s claim for HK100,000 under this head: -

(1) Ko Kam Wai v Sze Hak Fung t/a Chung Fung Co & Anor (unreported, HCPI 292/2005, 11 July 2006)

(2) Tong Siu Wai v Poon Wing Fu [2012] 5 HKLRD 407

(3) Gurung Lachhaman v Gurung Chandra Prakash t/a Metro-construction Co & Anor (unreported, HCPI 672/2008, 29 October 2010)

(4) Tam Kwok Man v The Kowloon Motor Bus Company (1933) Ltd (unreported, HCPI 755/2001, 11 July 2003)

19.  In light of the above comparables, I am of the view that P’s claim for HK$100,000 for PSLA is reasonable and should be awarded.

Pre-trial loss of earnings and MPF

20.  Ms Wong, Counsel for P, sought to adjust the claim under this head from HK$494,215 as stated in the RSOD to HK$547,265.46.

21.  P was earning on average, HK$17,500 per month prior to the Accident. This was calculated on the basis of $400 per lorry of items that he handled, as well as $45 per item per floor that he charged for manual transportation up the stairs.  In each of the months of September and October 2008 when P was employed by D, he had cumulatively borrowed a total of around $12,000 in advance. The rest of his salary was paid to him at the end of the month and this portion of his salary was documented by certificates issued by his employer.

22.  I accept that his pre-trial loss of earnings during the sick leave period of 191 [1]days is HK$116,987.50 [ie HK$17,500 x 191/30 x 1.05 (taking into account of MPF contribution)].

23.  After the sick leave expired on 1 September 2009, P said that he could not resume his pre-accident employment and despite the following attempts at securing manual work, he was unable to sustain any such manual labour for long: -

(1) As a decorative casual worker from 1 June 2010 to 31 March 2011: -

HK$6,000 per month on average x 10 months = HK$60,000

(2) As a construction worker from 1 April to 29 September 2011: -

HK$17,000 per month on average x 6 months = HK$102,000

(3)As a decorative casual worker from 30 September 2011 to March 2013: -

HK$9,600 per month on average x 17 months = HK$163,200

(4) As a rigger from 11 March 2013 to 15 June 2013: -

HK$33,800 per month on average x 97/30 = HK$109,286.67

(5)As a rigger for 3 days on 28 May 2014, 29 May 2014 and 30 May 2014: -

HK$695 x 3 days = HK$2,085.00

24.  On the revised recommendation of Dr. Tio in his supplementary report, P was considered unfit to resume his original duty unless he can be exempted from lifting heavy objects of say 75 pounds for a few minutes.  Alternatively, it is opined by Dr Tio that P is physically more fit for other lighter duties such as a car park attendant or petrol station attendant etc. 

25.  According to Table 8 of the Quarterly Report of Wage and Payroll Statistics (latest issue: December 2013) issued by the Census and Statistics Department of the HKSAR Government, the average monthly salary of a security guard employed on an 8-hour shift is HK$8,358 per month.  Ms Wong, Counsel for P, therefore submitted that HK$8,358 should be adopted as the basis for P’s notional earnings after the expiry of sick leave.

26.  With respect, I disagree with her submission.  Although Dr Tio revised his opinion that P is physically more fit for other lighter duties such as a car park attendant or petrol station attendant etc, Dr Tio did not opine that P is considered unfit to work as a decorative casual worker.  In my view, P was considered by Dr Tio unfit to resume his original duty simply because he cannot lift heavy objects of say 75 pounds for a few minutes.  It is noteworthy that Dr Tio opined in his 1^st report that P was indeed able to resume his original duty as delivery worker for glass panels but P may have some reduction in efficiency upon lifting heavy objects of over 50 pounds.  It was not explained by Dr Tio as to why objects of the weight of 75 pounds were adopted in the supplementary report whereas 50 pounds were said in the 1^st report.

27.  Furthermore, P never mentioned in his first witness statement filed 25 July 2013 that he could not manage to work as a decorative casual worker.  He suddenly changed his evidence in his supplementary witness statement which was just filed before the hearing that he could not work as a decorative casual worker due to the reasons that he could not climb up and down for a long period of time, bend down and knee down to work.  Based on Dr Tio’s expert opinion, I refused to accept P’s evidence that he could not work as a decorative casual worker since there is no evidence before me that a decorative casual worker has to lift an object over 75 pounds.  In my view, it must be correct for Dr Tio to opine that P is physically more fit for a car park attendant or petrol station attendant since such works simply do not require the attendant to carry any heavy object at all.  However, Dr Tio never said that P is physically not fit for a decorative casual worker.

28.  If I am wrong in the above, I consider that P is not entitled to claim under this head by using HK$8,358 as the basis for P’s notional earnings since HK$9,600 being the monthly earnings of a decorative casual worker is indeed used in para 12 of the RSOD.  Ms Chan, Counsel for P rightly conceded that the RSOD is part of the P’s pleadings.  Furthermore, it was attached with a statement of truth duly signed by P before his solicitor.  Therefore, I fail to see how P can revise or adjust the calculations therein at the trial without making a formal application to amend.

29.  In my judgment, the notional earnings for the period of 643 days for which P had not found employment after expiry of sick leave, between 2 September 2009 to 31 May 2010^[2] (272 days), 16 June 2013 to 27 May 2014 (346 days), 31 May 2014 to 24 June 2014 (25 days), is HK$216,048 (ie $9,600 x 643/30 x 1.05).

30.  I accept that P’s earnings after expiry of sick leave, had the Accident not happened, would amount to HK$1,076,775 (ie HK$17,500 x 1,758^[3]/30 x 1.05).

31.  Therefore P’s total loss of pre-trial earnings would amount to HK$519,314.25 {ie HK$1,076,775 + HK$116,987.50 (loss of earnings during sick leave) – [(HK$60,000 + HK$102,000 + $163,200 + HK$109,286.67 + HK$2,085.00) x 1.05] (post-sick leave loss of earnings) – HK$216,048 (notional earnings for 643 days)}

Post-trial loss of earnings and MPF

32.  Ms Wong, Counsel for P, also sought to adjust the claim under this head. Based on the reasons aforesaid, I refused the adjustment sought.

33.  According to Chan Pak Ting v Chan Chi Kuen (No.2) [2013] 2 HKLRD 1, the new net rate of return in assessing multiplier that is relevant to this case is 2.5% (for plaintiffs with future needs exceeding 10 years).  Applying the discount rate of 2.5% to Table 7 of the Personal Injury Tables Hong Kong 2013, the appropriate discount rate comes to 17.29.

34.  P is now 37 years old.  I accept that the standard retirement age is 60 years old and therefore his loss of future earnings would run for another 23 years.  In my view, the multiplier of 9 adopted in the RSOD is reasonable and should be allowed.

35.  On such basis and adopting a multiplier of 9, I allow HK$895,860 [ie (HK$17,500 – HK$9,600) x 12 x 9 x 1.05] under this head.

Loss of earning capacity

36.  The purpose of this head of claim is to compensate for the risk that a plaintiff might lose his employment in the future and suffer loss because of his disadvantage in the labour market even though he is presently employed (See: Moeliker v A Reyolle & Co. Ltd [1977] 1 WLR 132 which was considered in depth by the Privy Council in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B).

37.  Ms Wong, Counsel for P, submitted that recent authorities have shown an inclination to assess loss of earning capacity as equivalent to around 6 months of the plaintiff’s salary [See: Lai Yiu Fong v Fancy Effort Ltd (unreported, 31^st March 2014, DCPI 1547/2012, Master J Chow) (6 months), Ho Chung Wai v La’Cine Cosmetic Works Ltd (unreported, 5 July 2013, HCPI 308/2007, Master Harold Leong) (7 months).]

38.  In view of the above authorities and 2 % permanent loss of earning capacity and whole person impairment of P as opined by Dr Tio, I accept that P’s claim for HK$50,000 (being less than 3 times his original monthly income) is reasonable.  This figure should be awarded.

Special Damages, Medical Travelling expenses and tonic food

39.  For medical expenses, the following items are claimed in the RSOD but Ms Wong, Counsel for P, sought adjustments based on the receipts produced in the hearing bundle: -

(1)	United Christian Hospital	HK$100
(2)	Queen Elizabeth Hospital	HK$560
(3)	Lee Kee Dispensary GOPC	HK$1,485
(4)	Bonesetter	HK$1,200
(5)	Central Kowloon Health Centre GOPC	HK$180
	Total:	HK$3,525

40.  For item (1) above, there is apparently no receipt but there is clear evidence that P did attend the United Christian Hospital A&E Department after the Accident.  For item (2) above, an adjustment is made in light of the production of receipts.  For items (3)-(5), they are as claimed in the RSOD.  I consider that all the amounts claimed are very reasonable.  I therefore accept that these items should be allowed. 

41.  As regards item (4), being the expenses claimed for visiting a bonesetter, P relies on the case of Yu Ki v Chin Kit-Lam and another [1981] HKLR 419 for the purpose of maintaining his claim.  I see no reason not to allow this item.

42.  Insofar as the expenses for tonic food are concerned, Ms Wong for P submitted that the approach of Mui Ling Kwan & Anor v Wong Yin Wah and Ors [1973] HKLR 465 should be adopted. 

43.  Notwithstanding the fact that there is no challenge to this head of claim, P is prepared to concede that HK$2,500 is a more reasonable sum under this head.  I accept his concession.

44.  For travelling expenses, there are no receipts.  P gave oral evidence at the hearing that he had to take taxi to and from the hospitals or clinics.  Based on his medical condition at the material time and the number of trips for his attendance of the medical appointments, I accept that HK$4,400 is reasonable under this head.

45.  The total award for special damages should therefore come to $10,425 [ie HK$3,525 (medical expenses) + HK$2,500 (tonic food) + HK$4,400 (travelling expenses)].

Summary

46.  In light of the above, I come to the conclusion as follows: -

Heads of claim		Amount (in HK$)
1.	PSLA	100,000.00
2.	Pre-trial loss of earnings and MPF	519,314.25
3.	Future loss of earnings and MPF	$895,860.00
4.	Loss of earning capacity	50,000.00
5.	Special damages	10,425.00
	Subtotal	1,575,599.25
	Less EC Payment	(50,000.00)
	Grand total	1,525,599.25

47.  D do pay P the assessed damages in the sum of HK$1,525,599.25.  P is also entitled to interest on PSLA at 2% per annum from the date of the Writ to the date of judgment, and interests on special damages at half judgment rate from the date of the Accident to the date of judgment.

48.  D do pay costs of the assessment of damages with certificate of counsel and P’s own costs be taxed in accordance with the Legal Aid Regulations.