BIJAY RAI v. PACIFIC CROWN ENGINEERING LTD. AND ANOTHER

HCPI 1045/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1045 OF 1998

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J U D G M E N T

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THE PLAINTIFF'S CLAIM

1. The plaintiff's claim is for damages arising from injuries sustained by him while working on 9 November 1996 at the New Terminal Building, Chep Lap Kok Airport. The plaintiff was employed as a labourer by the 1st defendant. The 2nd defendant was the principal contractor for the construction works and sub-contracted inter alia the supply of labour at the site to the 1st defendant. On 9 November 1996, the plaintiff was operating an abrasive wheel in motion mounted on a portable grinder in order to cut a protruding floor bolt on Level 7 of the processing terminal at the Airport when the said abrasive wheel fractured and a piece or pieces of the wheel flew off and struck the plaintiff's right lower leg, causing him severe injuries.

2. The plaintiff was taken to Tuen Mun Hospital where he was diagnosed as being in shock. He had a 15 to 20 cm long wound over the anteriomedial aspect of the right leg with active bleeding and a compound fracture over the metaphysial and diaphysial junction of his right tibia and fibula.

3. Revascularisation with external fixation of the fracture was attempted but was unsuccessful and an above-knee amputation was performed on 11 November 1996. The plaintiff was transferred to Pok Oi Hospital on 6 December 1996 for rehabilitation. He was fitted with a prosthesis at the stump of the thigh and was finally discharged from hospital on 4 February 1997 with the aid of a walking stick.

4. It was pleaded that the plaintiff suffered from eczema and itchiness of the skin over the stump of the amputated leg, pain at the stump and groin when he walked with the prosthesis attached; he could not squat or climb slopes of stairs, could not walk for more than 20 minutes and the prosthesis being thinner than his natural leg caused him embarrassment and distress. He used to have a very active life including walking, playing footfall and volleyball and he could no longer pursue these activities. He could no longer return to his pre-accident employment and had not worked since the accident. He was only fit for sedentary work.

ADMISSION OF LIABILITY

5. On the first day of the trial, the defendants through their counsel admitted 100% liability. Judgement was entered for the plaintiff accordingly. The trial then proceeded simply on the question of quantum.

THE PLAINTIFF'S EVIDENCE

6. The plaintiff gave evidence that he was born on 22 February 1972 in Nepal. He married a Nepalese woman who had the right of abode in Hong Kong and therefore he was entitled to live and work in Hong Kong. He came to Hong Kong in December 1995. He was educated in Nepal up to Middle 4 level and left school in 1990. He spoke some Nepali, Hindi and some English but not Cantonese. He gave evidence about how the accident occurred and said that in September 1999 he purchased a hydraulic prosthesis which was fitted for him by the staff of Queen Elizabeth Hospital.

7. In his statement which he adopted, he said that the original prosthesis came up to near the top of his thigh where it was kept on by a belt. This had a strap on it that was tied under the thigh and when he walked it tended to rub against his leg causing him pain. He also had feelings like an electric current (in the nerve ends) at the site of the amputation. The prosthesis was heavy and it was difficult for him to walk any distance. The part that fitted around his leg cracked which caused problems. He fell over many times due to stepping on stones or walking on uneven surfaces.

8. His second leg which he purchased used a suction method but was rather unstable when he walked and there were problems with the fitting of it onto his stump. After walking a relatively short distance, the socket of the prosthesis slid up his leg and rubbed him in the region of his lower groin causing pain.

9. The plaintiff gave evidence that he and his wife separated two years ago. After he received his injuries, his relations with his wife became bad because of constant quarrelling. Even up to the date when he gave evidence in November 2001, he said he could not walk properly and fell down many times. He said there was chafing and itching in the area of the thigh. He found it very difficult to walk up and down stairs because it was very hard to lift up his artificial leg. After walking for about 20 minutes, it would then start to hurt his bone on the back and also on the front groin where the top of the leg came up to. He could not lift up his leg and he could not walk fast. If there was something in front of him, he could not go over it. Since 21 September 2001, he had been suffering from tuberculosis for which he was receiving treatment. The stump hurt when he walked and it gave him pain at night which sometimes would not allow him to sleep. The bottom of the stump on the back of the leg was red and itchy and there were rashes all over the groin. He had phantom limb sensations and when he slept he had to lie on his back and not on his side because if he did that, it hurt. It was very difficult for him to sleep comfortably.

10. He did not consider his present prosthesis satisfactory and he wished to try a new computer leg known as a C-Leg. The present prosthesis was not satisfactory because it hurt when he walked and air got into the space of the suction in the area where the screw was in the prosthesis. He had had his present leg for over two years and the hospital said it was time to change it for a new one. He said when air got into the prosthesis, walking hurt and the artificial leg came off when he sat down, so when he stood up, he had to put it on again. The last time he fell was two weeks before he gave evidence when he fell in hospital. He fell because the leg could not adjust and when he got up, it twisted and he fell. If the surface was uneven, he would not be able to walk.

11. In September 2000, he registered with the Selective Placement Division of the Labour Department and he was interviewed for a job only once in July or August 2001, but he did not receive an offer for the job because a knowledge of Chinese was required. Since the accident he had made no other applications for jobs. He was interviewed once for a job at the MTR Club for the job of a receptionist. He did not apply for other jobs because his physical condition was not good and it was very difficult for him to walk and his language skills were not that good. He said that he knew he could not get jobs.

THE PLAINTIFF'S MEDICAL EVIDENCE

12. The plaintiff called Dr Lau Hoi Kuen who examined him on 22 May 1998 and 7 March 2001. In his first report, written after the first examination, Dr Lau said he found patches of eczema over the skin over the stump and mild tenderness over the tip of the stump. He found that the plaintiff had itchiness due to eczema of the skin and pain at the tip of the stump and groin due to local pressure points with the prosthesis. He found the plaintiff had problems in walking up and down stairs and slopes and difficulties in squatting and prolonged standing or walking. He commented that the plaintiff would benefit from having a more sophisticated model of prosthesis which was lighter in weight and consumed less energy to operate. In his view the plaintiff would need to have a replacement of the prosthesis every four to five years.

13. On 7 March 2001, the date of the second examination, Dr Lau found that the plaintiff walked with a mild limp. He found patches of eczema over the skin over the stump, especially near the scrotum. There was mild tenderness over the tip of the stump. He commented that the plaintiff still had problems with walking up and down stairs and slopes and difficulties in squatting and prolonged walking. In his opinion, the appropriate period of time for the plaintiff to rest should be at least 11/2 years from the accident. Dr Arthur Chiang who gave evidence for the defence agreed with this last opinion. Dr Lau was of the opinion that the plaintiff had suffered 75% loss of his earning capacity but because of his poor educational background and the difficulties in finding a sedentary job, it might well mean that the plaintiff could never be employed again and thus had suffered 100% loss of earning capacity.

14. In his evidence, Dr Lau said that the hydraulic prosthesis which the plaintiff wore on 7 March 2001 was not satisfactory. It should provide for a proper transfer of weight from the limb to the prosthesis and not to the tip of the stump. There should not be excessive friction around the rim of the socket and it should provide enough mechanical help.

EVIDENCE OF TWO OCCUPATIONAL THERAPISTS

15. The plaintiff was examined by two registered occupational therapists, one employed by the defendants, Ms Alice Tsang, on 18 July 1998 and 29 July 1998 and the second by Mrs Shelley Chow who was instructed by the plaintiff's solicitors and who examined him on 12 January 2000. In brief, Ms Tsang was of the opinion that the plaintiff when examined by her was not putting in a maximum effort and she was of the opinion that he was showing reluctance to exert all the effort that he in fact was capable of doing. Mrs Shelly Chow, on the other hand, did not have such an experience and she was of the opinion that the plaintiff was genuinely doing all the tests required of him and exerting his maximum effort. I prefer the evidence of Mrs Chow to Ms Tsang if only because Mrs Chow's examination was at least 18 months after the examination by Ms Tsang. Mrs Chow was of the opinion that the plaintiff might find it difficult to compete with able-bodied job applicants as :

(1) He has a pre-existing work-related injury with subsequent personal injury litigation proceedings which may prejudice an employer from hiring him as he may be regarded as more of a liability than an asset.

(2) He has the physical deficits mentioned. He has physical limitations in terms of his agility, mobility and endurance in addition to sensory disturbances and pain.

(3) He has a lack of Cantonese language skills and cannot read or write Chinese characters.

(4) He has a limited range of work experience, mostly construction work.

(5) He has been off work for 31/2 years and may have lost his work skills and work habits.

(6) He may have a low tolerance to a normal work day as he has become generally deconditioned, having been away from work for so long.

(7) His long absence from open employment may make a potential employer suspicious of hiring him.

(8) He may only be able to manage part-time work initially.

(9) He may not pass the pre-employment medical examination due to his pre-existing injury.

(10) He must wear a prosthesis and cannot fit workboots easily over this.

(11) Any employment he finds may not be full-time and permanent, compared with his pre-injury job where he found he was employed full-time.

(12) He walks with a limp.

16. In relation to the C-Leg system, this is what Mrs Chow said in a letter dated 5 October 2001 to the plaintiff's solicitors :

"The C-Leg system is a microprocessor-controlled swing and stance hydraulic prosthetic knee joint which can assist to prevent tripping, adapts to the user's movements and automatically adjusts to the user's gait speed as it is constantly monitoring and making adjustments 50 times per second using its built-in sensors.

All new C-Leg systems are now provided with Sliders software which can be adjusted to the safety requirements and activity level of the user and therefore enhance walking at varied speeds over level and uneven surfaces including slopes and stairs (using a reciprocal gait rather than 2 feet on a step). The prosthesis also assists basic stance stability and in reducing pressure and shear forces over the stump therefore improving comfort.

The C-Leg reduces the strain and reliance on the unaffected leg and hopefully reduces physical stresses and strains on the unaffected side, which reduces excessive loading and potential overuse injuries.

The C-Leg allows up to 4 degrees of knee flexion in the stance feature so total knee joint extension when standing is no longer required. There is damping in the knee joint extension lock so that this is more relaxed and natural and easier to perform."

17. In evidence, Mrs Chow said that the plaintiff at the time of the examination was wearing a prosthesis which was of the model Otto Bock 3R60 with a suction socket. She had recommended in her report that he might upgrade this prosthesis to a better model, e.g. Otto Bock 3R80. In evidence, she said that the C-Leg was superior to even the 3R80 model and the C-Leg could adjust constantly.

EVIDENCE ON THE C-LEG

18. The plaintiff also called Mr Leung Kam Lun, an assistant professor of the Hong Kong Polytechnic University. He was familiar with the 3R60, 3R80 models and the new C-Leg. He had fitted a C-Leg onto a patient. Mr Leung said that the 3R60 and 3R80 could only enable the wearer to take one step at a time but for the C-Leg, it changed automatically. Mr Leung mentioned that by September 2001 more than 300 models of the C-Leg had been sold in the USA and that the first time he saw a C-Leg was at a conference in 1997 or 1998. He had fitted a C-Leg onto a patient who tried it for one month but eventually could not pay for it. He recommended the C-Leg and said that it could serve the patient better because the quality of life for patients was very important. He said that the C-Leg was a state of the art model in modern prosthesis. The advantages are that the computer of the C-Leg can change the walking speed and the C-Leg affords the wearer stability and flexibility.

19. The plaintiff also called the manager of Otto Bock Hong Kong Limited, Mr Peter Goldberg. Mr Goldberg was a fully certified prosthetist and orthotist. He had worked for the company for 31/2 years and had been a manager for the Hong Kong operation for 11/2 years. He said that the C-Leg was his company's most dynamic prosthetic knee that incorporated both electronic stance phase and swing phase control aided by a hydraulic cylinder. The "C" in C-Leg stands for "computerized". The knee incorporates a microchip which enables it to calculate various data. The tube adaptor is able to measure the torsion and the angle between the ankle and the foot and the microchip is able to define the angle and speed of the knee. The data collected from this will calculate the resistance required at various positions of the gait cycle. This will result in defining the position and speed of the leg when in use. The microchip calculates this approximately 50 times a second, thereby calculating the resistance applicable. The functions of these units are integrated. The process enables the leg itself to adjust its position when in use. This is especially useful when the user is engaged in tasks which often cause problems such as going up and down slopes. It enables the user to go down steps just by placing one foot on each step instead of having to place two feet on each step, as is common when using an ordinary prosthesis. It also provides much greater stability, for example, on uneven surfaces. Conventional prostheses such as his company's hydraulic prosthesis which the plaintiff was using had limited adjustments and were not able to constantly vary the resistance according to the patient's gait, therefore the variances required not self-adjusting and the user must further use his muscles in his residual limb as well as the sound side to have better control of the prosthesis. This can cause greater strain on the stump and also on the non-affected leg as this may be over-relied upon, often with a consequent effect on the person's gait which in itself may cause problems. The C-Leg was far superior to any conventional or micro-processor leg available and the feedback from users had been excellent.

20. In evidence he said that the C-Leg was launched in 1992 in Germany and approximately 1,000 had been sold world-wide. It was launched in USA in 1993 and so far 300 to 400 had been sold. He expects the C-Leg to last six to seven years depending on the age of the user.

21. The plaintiff also called Mr Cho Sau Shan who is a qualified prosthetist and orthotist working in Queen Elizabeth Hospital. He was the treating prosthetist for the plaintiff since 1997 and was familiar with the plaintiff's case and injuries. Mr Cho was of the opinion that the C-Leg was suitable for the plaintiff and he recommended the C-Leg over other prostheses. The reason for the recommendation was that the plaintiff needed great stability when walking which was why he chose the model 3R60. However, the 3R60 was a mechanical joint swing phase and could control only one speed. He said that the C-Leg speeds could be pre-set and the speed could adjust itself.

AWARD OF DAMAGES

Pain, suffering and loss of amenities

22. In Lee Ting Lam v. Leung Kam Ming, an infant by his next friend Leung Shu Wing [1980] HKLR 657, substantial injury is said to be the category which extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh so that an artificial leg cannot be used satisfactorily. The plaintiff was an active sportsman before the accident who enjoyed playing football and volleyball. He was a talented athlete at school. He can no longer now play sports. He was happily married and he and his wife had planned a family. His wife has now left him and he has very limited prospects of remarrying. He has difficulties in mobility with his prosthesis. He has pain, discomfort and sleep disturbances. He still suffers from depression and some trauma which are aggravating features of his medical condition. He was in hospital for three months and had a lengthy period of rehabilitation and physiotherapy afterwards. The wearing of the prosthesis chafes his stump and the lower abdomen, causing pain, soreness, discomfort and redness. He has considerable limitations on his mobility and he encounters difficulties wearing the present prosthesis. He also suffers from sleep disturbance, depression and sexual problems.

23. I take into account the effect that all these injuries have had and will have on his life including the depression that he has suffered and will continue to suffer. I take into account the fact that he is still young and was very active in sports. The prospects of his re-marriage are not good. The mobility problems will always be there and his sleep will continue to be disturbed. I consider that the injuries sustained by the plaintiff and the effect upon him attract an award in the mid-upper range of the substantial category and under this head I award him $720,000.

LOSS OF EARNINGS

Pre-trial loss of earnings and interest thereon

24. The plaintiff's last six months' average wages at the time of the accident were $15,527.69 per month. The plaintiff was entitled when he was working for the defendants to a one-month bonus at the end of the year based on his basic salary of $11,000 per month. Adding this sum of $11,000 his annual income was $197,332.28 giving an average annualized monthly wage of $16,444. This figure is accepted by the defendants in their Answer to the Revised Schedule of Damages. I find that if the plaintiff had carried on working, his salary would have increased by an average of 5% per annum for the two years of 1997 and 1998. However, I find that after the Asian economic crisis began to affect Hong Kong as from January 1999 there would not only have been no increases in the plaintiff's salary after that date but there might have been decreases. For the purposes of calculation, I will adopt the figure of $16,444 on the basis that any increases of salary for 1997 and 1998 would be off-set by a salary decrease as from January 1999. I award the plaintiff total loss of earnings on the basis that given his injuries and the fact that his language skills in Cantonese and English are extremely limited and given the present economic climate of Hong Kong, it is most unlikely that he will be able to find any job even at a much reduced salary.

25. I find that after the accident the plaintiff has not been malingering nor has he tried to exaggerate the effects of his injuries. I find that by registering in September 2000 with the Labour Department's Selective Placement Division and subsequently going for one job interview as result of that registration, he has done all that he can to find another job in the present economic climate. His disability and demoralization from the devastating injury had led to his being unable to find any work. On the date of the accident on 9 November 1996 up to the date of judgment, 17 April 2002, the lapse of time is five years, five months and ten days, which is equivalent to 65 1/3months.

26. Pre-trial loss of earnings are therefore calculated at $16,444 X 65 1/3 which gives a total of $1,074,341.

FUTURE LOSS OF EARNINGS

27. I have found above that, given the nature and extent of the plaintiff's injury, his very limited language skills and the uncertain economic future of Hong Kong, it is most unlikely that the plaintiff will be able to find any kind of work up until the day he retires. I therefore adopt as the multiplicand the figure of $16,444 and as the multiplier I adopt the figure of 14 which I find is a reasonable figure for a construction site worker who in the case of this plaintiff is 30 years old. The future loss of earnings will therefore be $16,444 X 12 X 14 and that gives the total of $2,762,592.

LOSS OF FUTURE EARNING CAPACITY (SMITH V. MANCHESTER CORPORATION AWARD)

28. In view of my awarding full loss of earnings to the plaintiff, there will be no award under this head.

PAST EXPENSES/SPECIAL DAMAGES

29. These are agreed at $51,000.

FUTURE PECUNIARY LOSSES

30. The main contested item is the cost of the C leg. All the experts agree that this is the best on the market. Ms Alice Tsang did not know enough about it and so she did not recommend it for the plaintiff. However she agreed that it would be suitable for the plaintiff if it can do what the manufacturers say it can. I find that the C leg is appropriate and reasonable for the plaintiff. With the C leg the plaintiff will have better mobility climbing up stairs and he will not have to apply as much pressure from the weight bearing groin as he does when operating his present hydraulic model. In addition the C leg will of itself automatically adjust to the walking speed of the wearer as opposed to the hydraulic model which has to be removed to adjust the tempo of the knee joint. The C leg price at the five years warranty level is $161,000. How long it will last will depend on the degree of usage. Mr Goldberg claims that the C leg can last much longer than the five year warranty period, even up to ten years. I find that the period of the warranty is a sound estimate of the longevity of the C leg. I adopt a life time multiplier of 18 and, on that basis, I award the plaintiff the cost of four C legs at $161,000 each, thereby giving the total of $644,000. The other items that I award the plaintiff are as follows :

b)	Walking aids/crutches $500 every 3 years	3,000
c)	Walking stick $140 every 2 years	1,260
d)	Rubber ferrules $21 per year	378
e)	Ultralight wheelchair for long distance travel $4,200 every 4 to 5 years	16,800
f)	Shower/commode chair $850 every 3 years	5,100
g)	Shower bath bench $580 every 2 to 3 years	3,480
h)	Grabrails and cost of installation nos every 6 years $450 + 300 X 3 X 2.5	6,750
i)	Rubber non-slip bathmat $80 X 15	1,440
j)	Right shoe heel insert - private sector	5,540
	$165 X 2 pairs of shoes each year = $330 X 15
k)	Long handled reacher	250
l)	2 pairs heavy duty boots per year @$900	32,400
m)	Portable urinals	375
n)	Shoehorns, long	100
o)	Travel by taxi $1,000 per year	18,000
p)	Bandages, silk scarves, stump socks	35,406
q)	Anti itch powder	7,560
r)	Talcum powder $600 per year	10,800
s)	Moisturising/anti-abrasive/chafing/antiseptic Lotion	21,600
t)	Stump socks @$1,000 per year	18,000
u)	General dispensary items $500 per year	9,000
	SUB TOTAL	841,239
Future medical treatment
	Fitting of prosthesis $44 X 5	220
	Follow up visits per fitting $44 X 4 X 5	880
	Associated travel expenses for fittings $150 X 5 X 5	3,750
	Total future pecuniary losses	$846,089

This gives the total of $846,089. From all the awards the employees' compensation award of $1,410,330 paid on 24 December 1997 has to be deducted.

INTEREST

31. Interest on PSLA at 2% is payable from date of writ (7 October 1998) to date of judgment. On pre-trial loss of earnings and pre-trial expenses up to 24 December 1997, interest is payable at 5.795% (being half judgment rate) from the date of accident until 24 December 1997 (date of payment of ECC award). In view of the fact that the ECC award exceeds the total amount of pre-trial loss of earnings and special damages awarded herein, I make no award for interest for the period from 24 December 1997 to judgment. I leave it to the parties to work out the amounts of interest payable.

SUMMARY

PSLA	$720,000
Pre-trial loss of earnings	1,074,341
Future loss of earnings	2,762,592
Special damages	51,000
Future pecuniary loss	846,089
Grand Total	5,454,022
Minus ECC	1,410,330
Net Total	$4,043,692

32. There shall be judgment to the plaintiff accordingly together with the costs of the action. Interest at judgment rate is to be awarded from date of judgment to payment.