LAI KWAN MING v. LEE YIN HING t/a KING YIP CO. AND ANOTHER

HCPI 765/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 765 OF 2000

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ASSESSMENT OF DAMAGES

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1. The Plaintiff in this action, Lai Kwan Ming, was a carpenter employed by the 1st Defendant, Lee Yin Hing trading as King Yip Company, at a construction site at Tseung Kwan O Area 59, New Territories on 15 September 1997. The 2nd Defendant, China State Construction Engineering Corporation, was the principal contractor of the said construction site. On that day, the Plaintiff was working on a working platform when a metal scaffold originally placed on a roof of one of the buildings at the construction site was blown off by strong wind towards the Plaintiff. In order to avoid being hit, the Plaintiff jumped from the working platform and fell to the ground. His forehead and right leg sustained injury as a result and he was admitted into United Christian Hospital.

2. The present action was commenced on 21 June 2000. By a consent order dated 22 June 2001, the Defendants consented to judgment being entered on liability in favour of the Plaintiff with damages to be assessed. The hearing before me is for assessment of damages.

The medical reports

3. According to the report of United Christian Hospital as contained in a letter dated 6 December 1999 from the hospital to the solicitors for the Plaintiff, the injuries sustained by the Plaintiff and treatment received were described as follow:

"[The Plaintiff] fell from height whilst working on 15 September 1997, resulted in displaced fracture right neck of femur. Emergency operation with screws fixation performed on the same day. Post-operatively, he was discharged on 18 September 1997 and received out-patient physiotherapy for rehabilitation. Subsequent out-patient follow up showed good fracture healing and patient only got mild residual pain on walking."

4. I skip the reference to the percentage of permanent disability assessed by the Medical Assessment Board. Then the report continues:

"Removal of implants was carried out on 6 November 1999 on patient's request. He was last seen on 23 November 1999 at our out-patient clinic with mild wound pain. Next follow up would be on 7 December 1999."

5. On 31 January 2000, the Plaintiff was examined by Dr Arthur Chiang, the Plaintiff's medical expert. Dr Chiang produced a report dated 27 February 2000 which was admitted as evidence at the assessment without the doctor bring called pursuant to the direction of Seagroatt J on 22 June 2001. According to that report, the Plaintiff had progressed to walking unaided about half a year from the injury. The complaints by the Plaintiff to Dr Chiang were as follows:

(1) He has to walk slowly. There was a feeling of weakness in his right hip after walking for about 10 or more minutes. He can manage walking slowly for about an hour.

(2) There was ache in his right hip after standing for about 4 to 5 minutes. More ache would be noted if he stood for over 10 minutes.

(3) His right hip felt tight in the squatting position.

(4) He estimated that he can carry weight of about 10-20 pounds.

6. Dr Chiang also noted that the Plaintiff had no obvious complaint in walking on about 2 to 3 flights of stairs. According to the examination by Dr Chiang, the gait of the Plaintiff was normal. X-ray of the pelvis and the right hip of the Plaintiff were taken on 31 January 2000 and the findings according to Dr Chiang were as follows:

(1) There was a united fracture of the neck of the right femur.

(2) There was slight shortening in the neck of the femur but the general alignment was good.

(3) No sign of avascular necrosis was noted.

(4) There was no narrowing of the joint space of the right hip. No post-traumatic degenerative arthritic changes were noted.

(5) No obvious evidence of osteoporosis was noted in the right hip area.

X-rays also show that the screws for internal fixation were in satisfactory position. Dr Chiang based his opinion on X-rays taken on 15 September 1998 in this regard.

7. Dr Chiang's observations with regard to the Plaintiff included the following. He said that current X-rays show a satisfactory union of the femoral neck fracture. There was a mild shortening of the neck but the overall alignment was satisfactory. No abnormal changes were noted in the right femoral head or the right hip joint. Dr Chiang considered the possibilities of significant residual symptoms. He said in the case of the Plaintiff, because of the satisfactory healing of fracture, the complication of non-union and malunion should not be present. In respect of avascular necrosis, Dr Chiang's opinion was that the chance was likely to be low. From the physical examination, Dr Chiang observed that there was some but mild limitation in the end range of some of the directions of the right hip motion. There was a very mild decrease in the muscle bulk of the right thigh. Basically, the general range of motion of the right hip was satisfactorily preserved. Although there was a mild shortening of the right lower limb, Dr Chiang said it might not be of obvious practical significance. There was also no obvious implant complication. His overall opinion was that the current status of the right hip was likely to be at a reasonable status.

8. Dr Chiang said also that the estimated actual underlying residues might be milder than that described by the Plaintiff to him although Dr Chiang considered that some but milder genuine residues should be presented. These milder genuine residues were exemplified by those in association with the residual stiffness of the right hip and the mild decrease in the muscle bulk of the right thigh. With regard to the earning capacity of the Plaintiff, Dr Chiang said as follows:

"In considering the need for prolonged standing and bending of back, as well as the frequent squatting, strenuous manual work activities and heavy object lifting which are required in a form work carpenter's job, I think he should be able to return to work at that job but with some reduction in his activities. An example of the reduction in the capacity would be ache in the right hip after prolonged work activities. .... At this stage since he had just undergone a surgery for the removal of the screws, it might be preferable for him to work in the lighter form of construction site work, for example, in casual or odd jobs, for about 4 to 6 months' time. This might allow for a further improvement of the strength of the right lower limb after the removal of the screws."

9. The Defendants engaged Dr Chun Siu Yeung as medical expert. His report dated 5 February 2001 was admitted as evidence at the assessment hearing without him being called pursuant to the said direction of Seagroatt J. The Plaintiff was examined by Dr Chun on 5 February 2001 for about half an hour. Dr Chun noticed that both the hands of the Plaintiffs were stained with green paints and were dirty and skin was coarse. On walking the Plaintiff showed a trace of limb, as if trying not to weight bear on right foot. The Plaintiff also told Dr Chun that he was unable to walk on tip-toes and unable to walk on heels. Dr Chun's comments were as follows. There was no wasting of gluteal, thigh and leg muscles to suggest disuse of the lower limb because of significant pain at the hip region. The muscle bulk of the right lower limb indicated that there should be no significant muscle weakness. At the examination, there were suggestions that the Plaintiff was exaggerating his disability. The right hip flexion should be much better than what he demonstrated during measurement on the examination couch. Given the time lapse between the accident and the time of examination, Dr Chun's opinion was that if avascular necrosis developed, it should have occurred the latest at the end of three years and would certainly be detected at the examination. His opinion was that the chance of having avascular necrosis of the femoral head was nil in the case of the Plaintiff. Dr Chun was of the opinion that the Plaintiff should be able to return to work as carpentry worker at construction site.

10. Dr Chiang was invited by the Plaintiff to comment on the report of Dr Chun. In a report dated 19 February 2001, Dr Chiang basically repeated what he had said in his previous report. With regard to the observations by Dr Chun that the Plaintiff exaggerated his disability, Dr Chiang said he had already said in his previous report that the actual underlying disability suffered by the Plaintiff might be milder than that described by the Plaintiff himself. However, Dr Chiang said there was still some but likely mild residues should be present in terms of impairment.

The evidence of the Plaintiff

11. The Plaintiff gave evidence before me. He was born on 2 September 1951 in Mainland China and received primary education up to level 2. He came to Hong Kong in 1984. He had been in good health and he did not smoke. He is divorced and has five children. He lives alone. He was a farmer in Mainland China. After coming to Hong Kong, up to the time of the accident he had been working at construction sites. Between 1984 to 1986, he was a casual worker and from 1996 onwards, he had been a carpenter. At the time of the accident, he was employed by the 1st Defendant as a carpenter and his duties were to fix wooden planks. He was earning $1,200.00 per day and on average he worked 26 days per month. After the accident on 15 September 1997, he underwent surgical operation to fix screw to the broken femur. When he was discharged from hospital on 18 September 1997, he walked with a pair of crutches. He had an operation to remove the hip implants on 6 November 1999 and he was discharged on 8 November 1999. He was granted sick leave from 15 September 1997 to 22 April 1998 and from 6 November 1999 to 7 January 2000. As a matter of fact, the sick leave after the removal of implant was from 6 November 1999 to 7 December 1999 and then there was another sick leave from 24 December 1999 to 7 January 2000.

12. In his oral testimony, the Plaintiff said he did not make any attempt to return to work as a carpenter or to work at the construction site. He said he could not do so because he felt tendon tightening and pain when he stood for 10 or more minutes. He also said he felt bone pain. And he also had pain when he walked for a long time. Neither could he squat because of tendon tightening. He even said that he was not strong enough to stand. He said his conditions remained the same after the removal of implant. If he had to stand, his right leg was not strong enough and there was a tightening feeling on the leg. He also said that because his friends were aware of his problems, they did not give him job at the construction site. However, under cross-examination, he admitted that he had not made any attempt to look for job at the construction site after the accident.

13. The Plaintiff said he has been working as light cleaning worker, watchman and hawker successively on a temporary basis after the end of the first sick leave period as well as some time after the last sick leave period. He said he has been working as hawker by selling vegetable for others. That job required him to work for a few hours a day (on average less than six hours) and he earned sometime $20 and sometime $15 per hour. On average he earned less than $100 per day. He did not have work everyday. Also he had been working at a caféin a job which involved delivery of lunch boxes. For that he earned about $15 per hour and a meal was proved to him. He worked about 2 to 3 hours per day in respect of that job. As a cleaning worker, he also worked for 2 to 3 hours at night earning about $50 to $100 per day. Under cross-examination, he told the court that that job in fact was rubbish collection rather than cleaning. That involved collection of garbage from units in the public housing estate. He had to collect garbage from floor to floor. On two occasions, he worked as a watchman at a building in Kwun Tong but he could not remember the name of the building. For that he earned $120.00 per day. He could only give a very general picture of these jobs because he said he could not remember the names of the employers nor the employment periods. Neither could he produce any documents to verify these employments. Salaries were paid in cash and there was no pay slip. From 23 April 1998 to 5 November 1999, the Plaintiff said his income for this period was about $65,000.00. Although when he was cross-examined, he tried to give the names of some of his employers, the best he could do was to describe them as a Mr Chan or a Madam Chan.

14. Regarding the paint on his hands noticed by Dr Chun, the Plaintiff's explanation was that on the day when he went to the clinic of Dr Chun for examination, a man on the bus carried two uncovered buckets of paint rush past him. To prevent the paint from being spilt over his body, he pushed away the buckets with his hands and as a result, his hands were covered with paint. He said he was not working on the day in question.

The assessments on the credibility of the Plaintiff

15. According to the Plaintiff's evidence, he could not have been doing very well in terms of his financial situation after the accident. According to him, between 22 April 1998 and 6 November 1999 he earned in total a sum of $65,000.00. This means on average he earned less than $4,000.00 per month during that period of time. On top of that I notice from documents contained in the bundle (letters dated 10 and 11 July 2001 from Plaintiff's solicitors to Social Welfare Department and the reply thereto from the Social Welfare Department dated 20 July 2001), the Plaintiff also received comprehensive Social Security Assistance during that period of time in the sum of about $2,400.00 per month. Taking this into account, the average income of Plaintiff in each month was about $6,000.00 per month. Out of that he had to pay about $500.00 rent and about $500.00 utilities charges. He also had to pay for his own food and travelling and other daily necessities. $6,000.00 should be barely sufficient for him. Also according to his evidence, he did not have a steady employment. All the jobs he had undertaken during that period was only temporary ones and he did not have work every day. One would expect such a person to live a very frugal life style and spend very little on unnecessary items. However, when one examined his bank account record, a very different picture emerged.

16. The Plaintiff has been asked by the Defendants' solicitors to produce statements of his bank accounts. Pursuant to such request, the Plaintiff produced an 'account history listing' in respect of his account with the Bank of China, account number 012-881-1-020986-2. The history record was from 4 June 1998 to 1 March 2001. The Plaintiff said it was an account opened in July 1998. From that history, there were a lot of transactions which involved quite substantial sums of money ranging from several thousands to $60,000.00. Two of the deposits were in fact compensation paid pursuant to Employee's Compensation proceedings, those are, a sum of $46,472.00 deposited on 23 September 1998 and $25,920.00 deposited on 29 August 2000.

17. Apart from those, the Plaintiff told me in witness box that most of the other transactions involving large sums were gambling transactions. Counsel for the Defendants had gone through a substantial number of the transactions shown in this account history with the Plaintiff during cross-examination. According to the Plaintiff's answers quite a substantial number of the deposits into the account were winnings from gambling. These included:

$9,000.00 on 27 June 1998,
$8,000 on 15 September 1998,
$4,500.00 on 23 September 1998,
$1,000.00 on 24 September 1998,
$20,000.00 on 29 September 1998,
$5,200.00 on 3 October 1998,
$4,000.00 on 20 November 1998,
$20,000.00 on 21 April 1999,
$41,000.00 on 24 June 1999,
$20,500.00 on 26 June 1999,
$18,000.00 on 26 June 1999,
$60,000.00 on 6 July 1999,
$20,000.00 on 29 July 1999,
$20,000.00 on 14 August 1999.

The Plaintiff also said these included some of the withdrawals made by him, i.e. money withdrawn by him from the same account which he said was also used for gambling purposes. If that were true, that means the Plaintiff had spent quite substantial amount in gambling during this period of time. One only needs to look at the record to come to this conclusion. The Plaintiff himself told me that as far as this particular account was concerned, the transactions were basically those he withdrew for gambling and he deposited for his winnings therefrom. He also said that the income and expenditure for his daily living were not channelled through this account. The Plaintiff only revealed in witness box that apart from this Bank of China account, he had two other bank accounts, one with the Hong Kong and Shanghai Banking Corporation and the other one with the Bank of Communication. He said he has lost the passbook for the Hong Kong and Shanghai Banking Corporation account and there was no transaction in that account since then. He was vague in respect of the date when this loss occurred. He said 3 years and then corrected himself and said 4 or 5 years ago. When his own counsel asked him why he did not cancel it, his answer was that he thought when he had money he would deposit the money into that account. But he said he did not deposit any money into it throughout the past few years. With regard to the Bank of Communication account, he only said he forgot whether he had told his solicitors about that when the Defendants' solicitors asked for disclosure of bank accounts.

18. I do not accept these as good explanation as to why the Plaintiff did not disclose all his bank accounts when he was asked to do so for the purpose of this action. In the absence of any evidence to the contrary, I would assume (as a court is entitled to expect from its officer) that the Plaintiff's solicitors had duly advised the Plaintiff to give full disclosure of his bank accounts when requested to do so by the Defendants. Whilst on its own, this failure may not be very significant, I have to consider this in the light of the other evidence placed before me.

19. I do not believe the Plaintiff told me the truth when he gave evidence about his post accident employment history. There is no way that a man with an unsteady employment earning so little as the Plaintiff (as he would have me believed) would spend so much on gambling at the same time. I reject his evidence that these transactions in his Bank of China account were for gambling purposes. In my judgment, on the balance of probabilities, the Plaintiff had other income sources which he refused to tell the court. I need not speculate what these sources of income might be. Suffice for me to say that I do not accept that he earned only $65,000.00 between April 1998 and November 1999.

20. Another reason why I disbelieve the Plaintiff is his exaggeration as to his disabilities. In this regard, as I have mentioned, both doctors who have examined him, i.e. Dr Chiang and Dr Chun, were of the opinion that the Plaintiff could return to his pre-accident job and that the Plaintiff had exaggerated in respect of his disabilities. When the Plaintiff gave evidence before me, he continued to exaggerate his suffering. Whilst I can understand that there might be some residual disabilities in a very mild form (as put forward by Dr Chiang), I find as a fact that it came nowhere near to the conditions which the Plaintiff described to me in court. If he could not stand or walk for more than 10 minutes and if he has weakness in his leg to the extent he described, he would not be able to undertake the garbage collection job which he said he has been doing after the accident. That job involved collection of garbage from a lot of units in a public housing estate and the Plaintiff had to do that from floor to floor. Although he was provided with a handcart, it still involved a lot of manual work and substantial amount of walking. Further, as Dr Chiang stated in his report, the Plaintiff did not complain about climbing two to three flight of stairs.

21. Neither do I accept Plaintiff's evidence with regard to how the paints got onto his hands before he was examined by Dr Chun. It is against one's common experience and knowledge that there would be a man carrying two uncovered buckets of paint on a bus. In my judgment, the reasons why the Plaintiff was vague and general about his post accident employment history was that he was actually trying to withhold information in that regard. Of course the matter is within his personal knowledge and it is very difficult for the Defendants to adduce positive proof that the Plaintiff was actually employed at a particular construction site after the accident. The matter was within the sole knowledge of the Plaintiff. In view of the lack of full and frank disclosure from the Plaintiff, the court is entitled to draw adverse inference against him.

Pain, suffering and loss of amenities

22. In respect of loss of amenities, the Plaintiff said that before the accident he was fond of playing basketball and swimming. He said he could no longer enjoy these hobbies after the accident. The Plaintiff was 46 years old at the time of accident. Both counsel agreed that the injuries suffered by the Plaintiff fall below the serious injury category. However, they disagreed as to the appropriate award under this head. Counsel for the Plaintiff argued that a sum of $400,000.00 was appropriate under this head while counsel for the Defendants submitted that the award should be $200,000.00. Although counsel for the Plaintiff cited 6 cases in her written opening on this point, she acknowledged in her closing submissions that 4 of them concerned injuries much more serious than those suffered by the Plaintiff in the present case. She only referred me to two cases in her oral submissions. The first one was Lee Ching Por and Ban Wu, HCA No. 81524 of 1990, Master Jones, 5 October 1990. In that case the Plaintiff suffered a subtrochanteric fracture of the right femur. The medical report disclosed a deformed right thigh and fractured femur was fixed with plates and screws. It is not clear from the judgment how the thigh was deformed. Apparently, the fracture was more serious and complicated than that the one suffered by the Plaintiff in the present case since it has to be treated with fixation with plates and screws. Counsel for the Plaintiff emphasised that the eventual recovery of the plaintiff in that case was similar to the Plaintiff in the present case. However, according to the judgment, the plaintiff in that case had undergone 2 years intensive physiotherapy and he was still walking with a mild limb. There were also damages to the muscles of the hip and thigh (see page 5 of the judgment). Master Jones awarded a sum $160,000.00 for pain, suffering and loss of amenities in that case. That was at the lower end of the serious injury category. Counsel for the Plaintiff accepted that the Plaintiff in our case suffered less than the plaintiff in that case but she said it was just slightly less serious.

23. The other case cited by counsel for the Plaintiff was Yu Shee Pui v Urban Council, HCA No. 252 of 1979, Liu J 19 May 1991. Only an extract from the Butterworth Hong Kong Personal Injuries Service was produced to me. According to the summary in that extract, the Plaintiff suffered fractured neck of left femur and was hospitalised for ten days. He underwent two operations. He has some wasting of his thigh and calf muscle. He was unable to walk long distance without discomfort and unable to squat and had difficulty getting in and out of bed. He still had to undergo an operation to remove steel pin in his leg at a future day. In 1981 an award of $50,000.00 was made for pain, suffering and loss of amenities. According to the conversion provided by the Butterworth Hong Kong Personal Injuries Service, the equivalent of that in 1998 was $256,725.00. Counsel for the Plaintiff did not agree with that conversion. She submitted that the award was just below the serious injury categoy at the material time.

24. Counsel for the Defendants cited four cases in relation to award for pain, suffering and loss of amenities. The first one was Ip Yiu Fai v Chan Che Kwong PI No. 445 of 1998, 16 January 1999. In that case, Registrar Chu (as she then was) awarded $200,000.00 under this head to a plaintiff who was injured in the course of his employment and had a fractured right pelvic rim. Open reduction and internal fixation were performed. He also experienced difficulty in passing urine and catherterization of the bladder was carried out. He was hospitalised for about 5 months and granted sick leave for 326 days. He could not handle heavy manual labour and he would experience pain if the pelvic and hip were under stress. Doctor advised against prolonged standing, squatting and climbing as well as horse riding. He had been enjoying horse riding before the accident. The second case cited by counsel for the Defendant was Lam Pik Kuen v Lee Fai Ming, HCPI 7 of 1998, 18 May 2000. Deputy High Court Judge McMahon awarded $150,000.00 for pain, suffering and loss of amenities to a plaintiff who had a fracture of her left superior and inferior pelvic rami. Her fractured bones healed satisfactorily but doctor found that her pelvic sympasis was irregular causing per left groin pain. She would be unable to stand continuously for more than 3 to 4 hours at one time without 10 to 15 minutes rest and was unfit for heavy work. The third case was Wong Lai Kai v Wu Chan Choi, PI No. 962 of 1996, 22 April 1999. Pang J awarded $264,250.00 for pain, suffering and loss of amenities to a plaintiff who had a fracture of the head of the left fibula. He also had complication with regard to the ligament of his left knee. Subsequently, he also suffered from deep vein thrombosis of the left leg. Although counsel for the Plaintiff was right in pointing out that none of these cases concerned with fracture of the femur, I am of the view that they could still be useful as a reference although I must bear in mind that the injuries were different.

25. The fourth case cited by counsel for the Defendant was Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306. Again that was not a case which concerned with fracture of femur. The plaintiff in that case broke his right shin bone and fractured bones in his right ankle and his left heel. His treatment included insertion of plate into his left heel and bone crafting and external plates and pins were used to help his right ankle in place. He was hospitalised for about 3 weeks. In the first instance, Master Wong awarded $275,000.00 as damages for pain, suffering and loss of amenities. The Court of Appeal considered that these injuries did not come close to the bottom of the bracket for injuries in the serious injury category. However, the Court of Appeal also reached the conclusion that the award of Master Wong was so low as to warrant interference and taking the starting point for serious injury award to be $460,000.00, the Court of Appeal awarded $350,000.00 to that Plaintiff.

26. Of all these cases, I find the Court of Appeal decision to be most useful as guidance. Using that Court of Appeal decision as a reference and comparing that with the other cases cited by counsel, I find that those other cases cited by counsel for the Defendant were awards on the low side whilst the decision of Master Jones cited by counsel for the Plaintiff was on the high side. Further I noted that the decision of the Master Jones was decided without the benefit of submission from the defendant and the learned Master placed the injuries of the Plaintiff in that case within the serious injury category. I am of the view that the injuries suffered by the Plaintiff in the present case were less serious than the plaintiff in Yu Kok Wing. In assessing damages under this head, I mainly relied on the evidence of the doctors because I have found the Plaintiff to be an unreliable witness due to his exaggeration. In this respect, there is no material difference between the opinion of Dr Chiang and those of Dr Chun. I would regard an award around three-fifth of the starting point of serious injury category as appropriate award in this case. Taking $460,000.00 as the starting point for serious injury, the appropriate award for this Plaintiff for pain, suffering and loss of amenities is $276,000.00 and I will award this sum to him accordingly.

Accrued loss of earnings

27. I now turn to damages for loss of earnings. After the accident, the Plaintiff was granted sick leave until 22 April 1998. He had the operation to remove the screws on 6 November 1999 and sick leave was granted to him until 11 December 1999. Another stretch of sick leave was granted from 24 December 1999 to 7 January 2000. Although there is no evidence as to why there was a break between 8 December to 23 January 1999, it is reasonable to infer that he was still under convalescence after the operation for removal of the implant during that period and it was probably due to the fact that he was still not fit to go back to work that the doctor granted a further stretch of sick leave between 24 December 1999 to 7 January 2000. I therefore regard 24 December 1999 to 7 January 2000 as one stretch of sick leave. So I am prepared to accept that it was reasonable for the Plaintiff not to go back to work after the removal of implant until the end of the second stretch of sick leave, that is after 7 January 2000. Further, given the economic situation from 1998 to 2000, it would take some time before the Plaintiff could get job even he started to look for one immediately after he was fit to go back to work. During the time that he looked for work, he would have no income and I would allow damages on the basis of total loss of income during that period as well. Given the fact that he had undergone two separate periods of sick leave, that means he had to be looking for job at least twice. Looking at the matter broadly, I am of the view that it is reasonable to award the Plaintiff compensation for total loss of income for a period of one year.

28. As to the notional earning for the purpose of calculating the loss of earnings, both counsel agreed to adopt the figure of $1,200.00 as the daily wage. However there is disagreement as to the number of days of work in each month. Counsel for the Defendants suggested that due to the deterioration of the economic situation in Hong Kong, the number of days of work available for construction site worker, such as the one the Plaintiff had engaged in prior to the accident, should be reduced to 20 days per month. She made this submission by reference to the calculation of the quantum by Deputy Judge Woolley in the case of Tang Shau Tsan v Welfree Construction Co. Limited HCPI No. 1092 of 1998, 2 December 1999. In that case Deputy Judge Woolley had to assess loss of earning from May 1996 to December 1999. Apparently, he accepted the submission that due to economic recession, the working days per month for a construction site worker was only 20 days although prior to that accident, the plaintiff in that case worked to 26 days a month. That case has gone to the Court of Appeal in Civil Appeal No. 58 of 2000. In the appeal, the plaintiff argued that the award by Deputy Judge Woolley was too low but the appeal was dismissed. It is clear from the judgment of the Court of Appeal that there were evidence before Deputy Judge Woolley to support the finding of 20 days of work. At page 3 of the judgment of the Court of Appeal, Rogers JA (as he then was) said this:

"Having heard the evidence, particularly of Mr Chan speaking of his current experience as an employer, the judge came to the conclusion that the likely number of days now worked by a carpenter is something in the region of 20."

29. So counsel for the Plaintiff was right in her submission that there might be specific evidence placed before Deputy Judge Woolley to support such a finding. She was equally right in pointing out that we do not have similar kind of evidence in the present case. However, she was also constrained to accept that there had been economic downturn since 1999 and she submitted that a reduction of number of working days to 22 to 24 days would be more appropriate.

30. On this issue, I agree with counsel for the Plaintiff that one cannot adopt the finding of Deputy Judge Woolley in that case and treated that as a substitute for proper evidence in our case. At the same time, the court is entitled to make an adjustment in view of the downturn of the economic situation in Hong Kong. In the absence of evidence, I would adopt a notional number of working days of 22 days per month. Hence, the loss of earning suffered by the Plaintiff during the sick leave period and the time lapse required for looking for jobs is $1,200 x 22 days x 12 months = $318,800.00.

31. In addition, there is medical evidence to suggest that the Plaintiff also suffer a partial loss of income for another period of 4 to 6 months. In his report dated 27 February 2000, Dr Chiang said:

"At this stage, since [the Plaintiff] had just undergone a surgery for the removal of the screws, it might be preferable for him to work in the lighter form of construction site work, for example, in casual or odd jobs, for about 4 to 6 months time. This might allow for a further improvement of the strength of the right lower limb after the removal of the screws."

32. In his report dated 5 February 2001, Dr Chun did not comment on this. I accept the evidence of Dr Chiang and hold that it was reasonable for the Plaintiff to engage in a lighter form of construction site work for a short period of time after the sick leave for the second operation ended on 7 January 2000.

33. There is a dispute as to when these 4 to 6 months referred to by Dr Chiang should start to run. Counsel for the Defendants submitted that even on the evidence of Dr Chiang, it started to run from the end of the second operation, that is from November 1999. On the other hand, counsel for the Plaintiff suggested that it should start to run from 27 February 2000, i.e. the date of Dr Chiang's report. In my view, the crucial issue is: what was a reasonable period of time for which the Plaintiff should be allowed for taking up a lighter form of construction site work to improve the strength of his right lower limb? I do not think Dr Chiang was referring to a 4 to 6 months from the date of operation because obviously there was a period of sick leave after the operation when the Plaintiff could not work at all. On the other hand, I do not agree that it should start from the date of Dr Chiang's report. In my judgment, the 4 to 6 months should start from the end of the sick leave period, i.e. 7 January 2000. Bearing in mind that I have already given some allowance for time required to find job after the end of sick leave period, that period would overlap with part of these 4 to 6 months. I will therefore only award a partial loss of earnings for 4 months. Based on the statistic provided by the Census & Statistics Department for average daily wages of workers engaged in Government building and construction projects, the average earning for a unskilled labourer at the construction site was about $600.00 per day. Hence the damages for partial loss of earnings is ($1,200.00 - $600.00) x 22 days x 4 months = $52,800.00.

34. Other than these two sums, i.e. $316,800.00 for total loss of earnings and $52,800.00 for partial loss of earnings, I find the Plaintiff failed to establish any further loss of earnings. This is because I, for reasons which I have already set out in the above paragraphs dealing with the assessment of his evidence, find him to be withholding relevant information to the court with regard to his post accident employment history and my rejection of his evidence in this aspect. One has to remember that the burden of proof is on the Plaintiff to prove his loss of income. Since I have rejected his evidence, I have to assess such loss on the basis of the medical evidence. On those evidence, only these two amounts of damages were justified. The total figure for accrued loss of earnings is therefore $360,800.00 + $52,800.00 = $369,600.00. It has to be deduced from that figure a sum of $175,552.00 being sick leave payment received by the Plaintiff. The net figure is therefore $194,048.00.

Handicap in the labour market

35. In the wake of the medical evidence that the Plaintiff was able to return to his pre-accident job, Plaintiff's counsel did not ask for any damages for loss of future earnings. She however asked for an award for handicap in the labour market in the sum of $100,000.00. The basis of her submission was Dr Chiang's observation that there would be some reduction in the Plaintiff's activities. The original formulation of the claim in the revised statement of damages was defective and the Plaintiff's counsel had to apply for leave to amend the same in her closing submissions. I have dealt with the said application and the formulation of the claims in the amendments in my written ruling on the application for leave to amend.

36. Counsel for the Defendants submitted that there was not enough evidence to warrant such an award. She submitted that the reduction of activities referred to by Dr Chiang was a reference to reduction after prolonged work activities. She further submitted that there was no medical evidence to support the assertion in paragraph 14 of the amended revised statement of damages that the jobs available to the Plaintiff would be limited.

37. The Court of the Appeal has recently considered this head of damages in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306 at page 311 to 313. In that judgment, Keith JA highlighted the criteria for such an award in the case of worker who was not working for one employer continuously. At page 312J to 313B, his Lordship said this:

"In the Plaintiff's case, the question which the Master should have asked was whether there was a substantial or real risk that, as a result of his reduced capacity and as a result of the great possibility of the onset of degenerative arthritis, the Plaintiff would not be able to obtain as much casual work as a painter as he would have done if he had continued to be able-bodied. If there was such a risk, the Plaintiff was entitled to an award for loss of future earning capacity to the extent that that loss has not been reflected in the award for loss of future earnings."

38. In the present case, there is no evidence that there would be onset of degenerative arthritis in the case of the Plaintiff. Further, the Plaintiff in Yu Kok Wing was 38 years old at the time of accident whilst the Plaintiff in the present case was 46 years old at the time of the accident. Even accepting these distinctions, I am of the view that there is sufficient evidence in the present case to warrant an award under this head. The reduction in activities (as mentioned by Dr Chiang) implies that the Plaintiff would suffer some disadvantage in competing for jobs. Given the nature of construction site employment, the Plaintiff would have to look for new jobs from time to time. In the light of the current economic condition and the keen competition for jobs, no matter how mild the residual disability of the Plaintiff is, he would be less agile in the performance of his duties which would involve working at considerable height and occasional jumping and climbing, the sort of activities which would demand a lot from his limbs. I therefore conclude that it is appropriate to make an award in this case particularly as no award is made for loss of future earnings.

39. As to the quantum for this award, I was referred by counsel for the Plaintiff to the judgment of Browne LJ in Moeliker v Reyrolle [1977] 1 WLR 132. At page 141E, his Lordship said:

"Clearly no mathematical calculation is possible. Edmund Davies LJ and Scarman LJ said in Smith v Manchester Corporation 17 KIR 1, 6, 8, that the multiplier/multiplicand approach was impossible or inappropriate, but I do not think that they meant that the court should have no regard to the amount of earnings which a plaintiff may lose in the future, nor to the period during which he may lose them. What I think they meant was that the multiplier/multiplicand method cannot provide a complete answer to this problem because of the many uncertainties involved. The court must start somewhere, and I think the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the assessment will not have been reached unless the court has already decided that there is a "substantial" or "real" risk that a plaintiff will lose his present job at sometime before the end of his working life, but it will now be necessary to go on and consider - (a) how great this risk is; and (b) when it may materialise - remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job and then finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market - that is, what would be his chances of getting a job, and an equally well paid job. Again, all sorts of variable factors will, or may, be relevant in particular cases - for example, a plaintiff's age; his skills; the nature of his disabilities; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tried to working in one particular area; the general employment situation in his trade or his area, or both. The court will have to make the usual discount for their immediate receipt of a lump sum and for the general chances of life."

40. In Yu Kok Wing, the Court of Appeal awarded a figure of $112,500.00 to the Plaintiff in that case for loss of earning capacity. That figure was arrived at by taking his earnings to be $750.00 a day and estimated unemployment of 15 days per year as a result of his reduced capacity. That was then applied to a multiplier of 10.

41. Since this is an award for handicap suffered by the Plaintiff due to his disability, he should only be compensated for the additional number of days he would be out of work due to his disabilities rather than all the number of days he would be out of work by reason of the casual nature of his unemployment. This is particularly important in the current economic condition. A lot of healthy workers are out of work for considerable period of time. In so far as the Plaintiff would be out of work for the same number of days as other construction site workers who are healthy and able, the Plaintiff cannot get compensation for such non-working days in this action. However, as I have already said, due to his residual disabilities, I am satisfied that the Plaintiff would be disadvantaged in looking for job and it would take him a little bit more time to get a new job than a healthy and able worker. Obviously, the Plaintiff in our case is less disadvantaged than the Plaintiff in Yu Kok Wing because there is no evidence of any possibility of onset of degenerative arthritis in our case. Given the mild nature of residual disabilities, I estimate that he would suffer an additional ten days' unemployment in each year as a result of his disabilities. In the light of his age (50 at the time of this assessment), I would apply a multiplier of 7. Adopting $1,200.00 as his salary per day, the award is therefore $1,200.00 x 10 days x 7 = $84,000.00.

Conclusions

42. Parties have agreed on special damages in the sum of $4,500.00. In summary, my assessment of the quantum are as follows:

(a)	PSLA	$276,000.00
(b)	Accrued loss of earnings $316,800.00 + $52,800.00 - $175,552.00	$194,048.00
(c)	Loss of earning capacity	$84,000.00
(d)	Special damages	$4,500.00
(e)	Interest on PSLA at 2% per annum from day of writ $276,000.00 x 2% x 15/12 months	$6,900.00
(f)	Interest on accrued loss of earnings and special damages at half judgment rate from day of accident, ($194,048.00 + $4,500.00) x 5.43% x 4 years	$43,125.00
		$608,573.00
		=========

Against that, credit has to be given to the Defendant for ECC payment over and above the sick leave pay in the sum of $51,840.00. The net figure is therefore $556,733.00.

43. Final judgment in the sum of $556,733.00 will be entered in favour of the Plaintiff. I also make an order nisi that the Plaintiff shall have the costs of the action to be taxed against the Defendant, if not agreed and that the Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulation save and except the costs in relation to the amendment of the revised statement of damages and the hearing on 28 September 2001 (as to that I have already made order for costs in my ruling on the amendment). The order nisi would be made absolute after expiration of 14 days from the day of the handing down of this assessment.