GURUNG NETRA BAHADUR v. HIP HING CONSTRUCTION CO. LTD.

HCPI 633/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 633 OF 2000

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Judgment

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Introduction

1) On 29 December 2000, interlocutory judgment with damages to be assessed and costs of the action limited to the issue of liability was entered against the defendant by consent. The suit arose out of an industrial accident on 17 August 1999 when the plaintiff, a Nepalese steel bender then aged 33 in the employ of the defendant, was struck by falling timbers at the Tung Chung Housing Authority construction site. A fellow worker was crushed to death while the plaintiff escaped with 'severe left upper limb injury' involving fractures of the elbow and wrist.

2) Upon admission to Princess Margaret Hospital, it was discovered that the plaintiff had sustained an abrasion wound over the lateral aspect of his left arm. Both left wrist and elbow were tender and swollen. There were also multiple abrasions over his back and left leg. There was no neurovascular deficit and cardio-respiratory function was normal. Radiological examination revealed fractures of the styloid and coronoid processes of the ulna. The affected arm was immobilized with a sling. Analgesic and antibiotics were prescribed. The plaintiff was discharged on 25 August 1999 after which he received out-patient orthopaedic, physiotherapy and occupational therapies. He also consulted a private medical practitioner. Subsequent X-rays confirmed that the fractures had united. He was granted sick leave from 17 August 1999 to 8 March 2000. Prevented by his injury to resume his pre-accident employment, the plaintiff found work as an aluminium formworker after July 2000, a job that did not entail heavy manual lifting.

3) The plaintiff was examined by Dr. Danny Tsoi some two years after the mishap on 21 January 2002 for the purpose of this litigation. He was accompanied by a Nepalese interpreter as his spoken English and Cantonese were rather basic at the time.

4) Dr. Tsoi explains that the coronoid process and ulnar styloid are bony projections for attachment of ligaments, tendons and capsule. Strong forces impacting against the elbow and wrist would cause avulsion fracture of the bony projections. Though such injuries are often treated conservatively (as here), avulsion fractures of the bony projections usually signify a very severe form of ligamentous, tendinous or capsular tear. The fractures would eventually heal but residual soft tissue problems such as joint stiffness, pain on exertion and weakness often follow. This would readily explain the plaintiff's complaint of inability to lift heavy objects for long periods and pain in the left elbow and wrist upon exertion at the time of the examination.

5) Dr. Tsoi found there were residual symptoms and sign over both the left elbow and wrist. Both he and the defence doctor, Dr. Chun Siu Yeung detected a mild degree of stiffness in elbow flexion as well as wrist extension accompanied by some arm and forearm muscle wasting. Dr. Tsoi opined that the limitation of movement was principally due to scarring and adhesion of the injured soft tissues around the affected joints and the 2 cm difference in muscle bulk between the two upper limbs was too great to be explained away by physiological means. He observed that the mild degree of wasting was consistent with disuse atrophy, suggesting that the residual pain might hinder normal function of the left upper limb making it difficult for the plaintiff to use his arm in a normal fashion. Dr. Tsoi entertained no doubt that the plaintiff's complaint of reduced endurance in performing heavy manual work was genuine given his injury, joint stiffness, the explicable pain and mild muscle wasting. As more than two years have elapsed, the left upper limb disability was considered to have reached a static stage. Although in theory, the plaintiff was considered physically fit to resume his pre-accident work, his proven reduced endurance in performing heavy manual labour realistically required a change to lighter duties. Dr. Chun saw no reason why the plaintiff could not return to steel bending following expiry of sick leave.

6) The plaintiff was assessed by Dr. Tsoi to have suffered a permanent impairment of 5% of the left upper limb or 3% permanent impairment of the whole person. Dr. Chun's assessment was lower at 1%. He found that the plaintiff's shoulder and wrist had full range of movements with only very mild stiffness at the elbow. His handgrip power was deemed to be strong. Dr. Chun examined the plaintiff without the benefit of an interpreter. That by itself would not necessarily devalue his opinion and findings. However, having considered both medical reports, I prefer the findings of Dr. Tsoi. His approach was well-reasoned, and cogent, providing as it does a realistic basis for the plaintiff's residual complaints, which I find to be amply justified and genuine.

7) In evidence, the plaintiff spoke of feeling weakness in his arm and of a burning sensation in it from time to time. He testified that he was no longer able to play basketball and volley ball, had difficulty sleeping at night and would tire readily when carrying his 18 month old son. He was cross-examined at some length on specific issues and generally with a view to demonstrating a tendency to exaggerate on his part. Put shortly, it was the defence case that he lacked credibility. Having heard him and examined the evidence, I have no doubt that he was a witness of truth. He testified in a convincing and measured way, never once avoiding pointed questions on alleged discrepancies. In his witness statement, his earnings at the time of the accident were stated to have been $850. Upon cross-examination, he volunteered that he was indeed paid only $800 daily. Much criticism was made of this difference, but ultimately it did little to alter my view of his veracity.

PLSA

8) The plaintiff sought damages in the region of $400,000 in his Revised Schedule of Damages. That was said to be conservative. The defence's Answer offered half that amount. This was further reduced to $140,000 in final submissions. The defendant contends that the injuries and disability were comparable to those suffered by the plaintiffs in Yuen Wai Kuen HCPI 957/1996 and Chan Chung Lop HCPI 327/1996 where the awards under this head were respectively, $150,000 and $140,000. Reliance was not surprisingly placed on Dr. Chun's findings.

9) Mr. Clough handed in a digest of cases involving arm and hand injuries spanning the years. It included Yip Mau Leung v University of Hong Kong, HCPI 524/1999, Wai Ching Fong, HCPI 825/1998, Hui Din Fun, HCPI 1284/1999, Chan Pui Kuen, HCPI 661/2000, and Tam King Chiu, HCPI 1458/1999. The remaining digested cases were of some vintage and cannot be viewed as particularly helpful.

10) In assessing the appropriate quantum of damages, one must necessarily be guided by the actual physical injuries sustained and their impact on the general and working life of a given plaintiff. Comparables are at best guides. Reference is made to Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 for a definitive categorization of injuries in rising order of severity, factoring in inflationary consideration. Although the plaintiff stated that his dream for his young family had been shattered by the accident, I conclude that his injuries, albeit significant, fall below the serious injury category. An award of $250,000 would be adequate recompense in my considered view.

Pre-trial Loss of Earnings

11) The plaintiff commenced employment with Po On Engineering Ltd ("Po On") on 6 August 1998 as a steel fixer or bender. His then daily wage of $600 was later increased to $700. By the time of the accident, he was paid $800 per day. Prior to joining Po On, he had worked in scaffolding and transportation.

12) His work with the defendant entailed heavy manual labour and the lifting of steel bars of substantial girth and weight. He was required to cut and bend bars into designated shapes and to bind them together. Both arms and hands were consistently needed to perform his job adequately. The plaintiff is right-handed. Some of the bars he had to lift and carry weighed about 100 kgs. As a consequence of the accident, he testified that he was no longer able to undertake his pre-accident job. I have no reason to doubt him, particularly in light of Dr. Tsoi's comments.

13) Following the accident, the defendant returned a completed Form 2 to the Labour Department. This independent piece of evidence gave details of the plaintiff's employment, daily wage and average monthly salary for the 12 months preceding the accident. The defendant stated that the plaintiff was working 26 days per month on average at $850 per day and averaging $22,100 a month. The defence now sought to distance itself from its own document, preferring to rely on attendance notes partially completed by its witness, Mr. Cheung Chor Kau, whom the plaintiff thought was his employer and knew simply as Mr. Kau. These incomplete notes gave considerably lower monthly salaries and fewer working days for the plaintiff. It is therefore not the least surprising for the defendant to urge reliance upon them in assessing the plaintiff's financial loss.

14) The plaintiff said he was visited in hospital by Mr. Cheung and advised that his daily wage was $850. He did not know why this information was imparted and was given no explanation for the disparity in wage. As far as he knew, Mr. Cheung was his paymaster who paid him but $800 for each day worked. He also knew as a fact that he was working between 26 and 28 days a month before his injury.

15) Mr. Cheung's evidence was as confused as it was confusing. He was asked to mark out data in the attendance notes that he himself had entered. This he initially did quite erroneously as it turned out. He said he had forgotten his reading glasses. His recollection of the plaintiff's salaries and the number of days he had worked, based as it was on a document that he was unable to read properly, must necessarily be flawed. He stated he himself had worked 26 days a month, a fact not borne out by the very document upon which the defendant sought to place great reliance. As Mr. Cheung's evidence progressed, it became apparent that he had only made limited contributions to the document. The names of the payees had been written by someone else who remained unidentified. The plaintiff's name is Gurung Netra Bahadur. The attendance notes referred to a Bahadur, a Netra, and a Gurung Netra Bahadur as workers who had been paid specific amounts of wages. It begs the question whether these names referred to the plaintiff or to a number of individuals, one of whom might have been the plaintiff.

16) Mr. Clough submitted that the provenance of the document had not been established and, there being undoubted gaps in its chronology on account of obvious missing pages for a number of months, Mr. Cheung was patently unable to speak to or produce it as attendance records of any value or weight. With that I am in entire agreement. They also contradicted the defendant's own document, Form 2. These notes are of no further relevance to this exercise. Mr. Cheung's evidence premised upon them must equally be suspect, honest though his intentions might have been. That essentially leaves the plaintiff's evidence and Form 2 for consideration. I shall also make reference in due course to the evidence of Mr. Wo Tak Wing, a representative of the Hong Kong Construction Employees Union with 10 years of steel bending experience.

17) Sick leave commenced with the accident and ended on 8 March 2000. Dr. Tsoi opined that the convalescence period was reasonable for the plaintiff's injuries. In April 2000, the plaintiff assisted a friend and was paid $4,672.78. From the beginning of May 2000 until 4 July 2000, he worked as a crane operator for Pacific Crown Engineering. This employment, entailing no physical activity, paid him a total of $21,067.78. On 5 July 2000, he started working with Ming Tai Construction Engineering as a paneling worker. His daily wage was $500. He was paid every 15 days. Again, the employment was not particularly arduous. He worked about 26 days a month and was paid $13,000 on average per month. This job lasted from 5 July 2000 until 13 June 2001 when the project concluded. His gross earnings from Ming Tai Construction Engineering for the period of about 11 months amounted to $143,000, being $13,000 x 11 months. A short period of unemployment followed. The plaintiff explained that despite genuine efforts to obtain suitable employment, he had been singularly unsuccessful. This I wholly accept. He said work as steel bender was indeed available at the time but he had to forego the offer because of his physical condition. Far from malingering as was suggested, the plaintiff did his best to return to work just as soon as he was able to.

18) On 17 August 2001 he started as a form worker with a sub sub-contractor of the defendant. Between August and September 2001, he managed to work for about 20 days and earned a modest sum of $10,000. His daily wage was $500. From October 2001 to about May 2002, a period of some 8 months, the evidence established that he was able to work about 17 days a month on average at $500 a day. Income for the period amounted to $68,000. In June 2002, he was sent to Lai Chi Kok to work on the Hyundai project upon which he is still currently engaged. With the same daily wage, he averaged $14,000 each month. He said he was kept busy some 28 days every month on the project. His income from June 2002 to about mid October 2002 amounted to about $63,000.

19) Total income receipts from the date of the accident to date therefore amounted to $309,740.56 i.e. ($4672.78 + $21,067.78 + $143,000 + $10,000 + $68,000 + $63,000). That equates to an average of $10,155.43 per month i.e. ($309,740.56 / 30.5 months).

20) At the time of the accident, the plaintiff was paid $800 a day despite the wage information in Form 2. Whether Mr. Cheung or someone else pocketed the difference made no difference. For the purpose of assessing his income pre-assessment but for the accident, I propose to adopt a 26-day working month. That is the figure given in Form 2 although the plaintiff said he sometimes managed 28 days. 26 days was the minimum he achieved pre-accident. From the date of the accident to date, he should have been able to earn $790,400 as a steel bender viz ($800 x 26 x 38 months).

21) I assess his pre-trial loss of income at $480,659.44 i.e. ($790,400 less $309,740.56).

Prospective Loss of Income

22) Mr. Wo, the steel bender union spokesman gave evidence that long term casual workers, that is to say those engaged by employers for long periods would determine their daily wages through negotiations with employers. The union recommended daily wage for such workers is $1,100. The recommendation has not been endorsed by the employers' union. Casual workers' recommended daily remuneration of $1,200 is for workers taken on at short notice as and when needed. Mr. Wo, an ardent believer in equal pay for equal work, was quick to recognize that non-Chinese workers are handicapped in the market place. It is sad but true that Nepalese workers are paid generally less. Their bargaining position is considerably weaker and work generally had to be found through commission agents. This situation is likely to remain for some considerable time despite all goodwill to the contrary, and any merging of the level of wages of Chinese and Nepalese steel benders as contended by the plaintiff remains in the realm of speculation. Reality can be harsh. To obtain work, Nepalese workers like the plaintiff would have to bend with the wind and to accept what is offered.

23) I therefore propose to adopt a multiplicand of $800 for assessing his future loss of income. In light of the general downturn in the economy with fewer building projects, a fact recognized by Mr. Wo, it would not be appropriate to adjust the plaintiff's daily wage upwards. It would be an impossible and unrealistic task even were I to be so minded.

24) For prospective loss, a multiplier of 13 was agreed. The plaintiff was 33 at the time of the accident and 36 at trial. Future loss of income works out at $1,660,552.92, namely [($800 x 26) - $10,155.43] x 12 x 13.

Special Damages

25) These are now agreed at $2,662.

Summary of Awards

PSLA	$250,000
Accrued income loss	$480,659.44
Prospective income loss	$1,660,552.92
Specials	$2,662
Total	$2,393,874.36

26) Credit will have to be given from the above award for employees' compensation payments received to date, details of which plainly through oversight have not been furnished. Additionally, there will be interest on general damages (PSLA) at 2% p.a. from the date of the writ until the date of judgment. Special damages attract interest at half judgment rate from the date of accident to the date hereof. The plaintiff shall have the costs of this assessment with certificate for counsel, the order being nisi in the first instance with liberty to apply within 14 days hereof.