LEE LUK PO v. SIN SZE t/a NGAI LUNG IRON WARE ENG

HCPI 1085/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1085 OF 2014

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JUDGMENT
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1.  This is an assessment of damages for personal injuries arising from an accident at work which occurred on 16 April 2011. The defendant is absent. He did not contest the proceedings and interlocutory judgment for damages to be assessed was entered against him. Notice of proceedings had been served on the Employees’ Compensation Assistance Fund Board (“the ECAS Fund Board”) but they chose not to intervene in the proceedings.

2.  At the time of the accident, the plaintiff was employed by the defendant as an ironware worker and his work involved welding work.  When the plaintiff was working on the rooftop of a warehouse with a view to carrying out repairs to the rooftop, the tin plates of the roof cracked and gave way and he fell a distance of some 6 metres from the rooftop, landing on his back and suffering injuries to his back and his hands.  He remained conscious and he remembered suffering severe pain in his back and hands.

3.  He was sent to the Accident & Emergency Department of the Pok Oi Hospital and then, from there, to Tuen Mun Hospital.

4.  A clinical examination and X-rays revealed that he had suffered from a fracture of the spine at T12 and that the proximal interphalangeal joints of both middle fingers of both his hands were dislocated.  Fortunately, there was no neurological deficit in his lower limbs.  The fracture at T12 was treated conservatively with thoracolumbarsacral orthosis.  The dislocation of the middle fingers was managed with closed reduction and finger splintage.  He was in hospital for some 24 days, and discharged on 9 May 2011.

5.  He then was followed up at the outpatient clinic of the Tuen Mun Hospital and subsequently referred to the orthopaedics department of Tseung Kwan O Hospital for further follow-up.  He also had eight sessions of physiotherapy at the Kwong Wah Hospital.  In the course of his rehabilitation and convalescence, he also sought treatment from private practitioners.

6.  He was granted sick leave by the Tuen Mun Hospital from the date of the accident on 16 April 2011 up to 22 July 2011, and he obtained further sick leave certificates from the Tseung Kwan O Hospital from 20 June 2011 to 10 October 2011.

7.  The total amount of sick leave he obtained was 178 days and this, in fact, was the subject of a finding in the employees’ compensation proceedings against the defendant who was the respondent in those proceedings.  Just as the current proceedings are undefended, so too were the employees’ compensation proceedings undefended.

8.  The plaintiff had splints to his middle fingers for a period of some two months and he was able to remove the orthosis for his back in September 2011.

The Expert Opinion

9.  The plaintiff was granted leave to adduce into evidence an expert report which he had obtained from Dr Tio Man-kwun, Peter, (“Dr Tio”), who had examined him on 25 March 2015. Turning to his report, which has been adduced before me without the need for him to give oral evidence, I note that he recorded in his report the findings of the CT scan that had been conducted on 23 June 2011 which revealed the collapsed fracture at the anterio-superior aspect of T12 vertebra, that no retropulsion of bone fragments was seen in the spinal canal, and that the intervertebral foramina was patent.  The decrease in disc space between T11 and T12 was mild. In that regard, the plaintiff is fortunate because the fall could have resulted in far more serious back injury.

10.  During Dr Tio’s examination of the plaintiff, the plaintiff complained to him of intermittent pain which occurred daily, lasting some 10 to 20 minutes.  He rated the pain to be in the region of 2 to 3 out of 10.  He had to take medication four to five times a month.  The pain was aggravated by bad weather and he also felt his ability to lift heavy weights had been reduced and that he would suffer pain if he was lifting weights of up to 30 to 40 catties.

11.  Dr Tio had caused X-rays also to be taken which showed degenerative changes over the lumbar and thoracic spines and they also showed the collapsed T12 vertebra with less than 25 per cent collapse.  Dr Tio was of the view that the fracture of the T12 vertebra and the dislocation of the joints of the middle fingers resulted from the accident.  He also considered that the treatment provided to the plaintiff was reasonable and appropriate.

12.  During his examination, there was residual pain over the thoracolumbar junction.  The range of movement was good.  There was no neurological deficit over his limbs.  The latest X-rays showed that there was a good healing of the T12 collapse and a residual reduction in height of less than 25 per cent.

13.  Given his current condition, Dr Tio was of the view that he could be expected to have reduced efficiency in resuming his duty as a metallic worker and welder on account of pain over his back when he had to climb, when performing heavy manual work, or on prolonged standing and bending of his back.  He was of the view that the plaintiff’s endurance and power would also be moderately reduced and that he might need intermittent breaks of 15 minutes after working for some two hours.

14.  The prognosis was considered to be fair with on and off pain over the fracture.  He considered the sick leave that had been granted to be reasonable and appropriate, given the severity of the injury and the pre-accident job of the plaintiff.

15.  Finally, he offered the opinion that the degree of impairment of the whole person suffered by the plaintiff was 4 per cent.

16.  I accept the opinion of Dr Tio.

Damages for PSLA

17.  I now turn to address the various heads of claim, the first claim being the claim for pain, suffering and loss of amenities (“PSLA”).

18.  The plaintiff was 38 years old at the time of the accident and is now 42 years old.  He was born in China and received education up to Secondary 2.  He came to Hong Kong in 2000 and worked in the construction industry since then.  He became an ironware worker in 2008 and that work required him to perform welding works and he had to climb ladders and work at height.

19.  I have already mentioned his residual problems which were recorded in Dr Tio’s report.  I was referred to a number of authorities on PSLA which I have carefully considered.  In the light of those authorities, and given his back injury, the dislocation of the two middle fingers, and his residual problems, I have no difficulty awarding damages for PSLA in the sum of $280,000 in this case.  Thankfully, he does not suffer any continuing effects of the dislocation.

Loss of Earnings

20.  I now turn to consider the claim for pre-trial loss of earnings.  In the employees’ compensation proceedings, Deputy District Judge Cheung found that the plaintiff earned $18,750 per month on average at the time of the accident, working some 25 days a month and earning $750 a day.

21.  It is the evidence of the plaintiff, in §29 of his witness statement, that ironware workers doing the sort of work that he was doing before the accident could earn $950 a day today.  However, because the scope of the work that he could do is greatly minimised, by reason of his continuing disabilities in that he can no longer do welding work and he cannot climb ladders and bamboo scaffolds, the daily wage that he can earn is only $850. I accept this evidence.

22.  Against these figures of $750 a day, before the accident, and $950 a day today, I have to look at the Census and Statistics figures for metalworkers at the time of the accident and in May 2015, when the plaintiff’s witness statement of Mr Lee was prepared.  Those figures show that, at the time of the accident, the daily rate was $799.1 and that, in May 2015, it was $1,127.

23.  Taking into account the disparity between the plaintiff’s wages and the Census and Statistics wages, I am not persuaded that I ought to take the Census and Statistics figures into account in assessing the claim for loss of earnings in this case.

24.  The claim for partial loss of earnings has to be broken down into different periods.  The first period of claim will relate to the period covered by the sick leave certificates in respect of which I am satisfied that I ought to make an award for full loss of earnings.

25.  As found by the Deputy District Judge, sick leave was granted to the plaintiff for some 178 days from 16 April 2011 to 10 October 2011.  Also as found by the Deputy District Judge, he earned an average of $18,750 (working 25 days a month at $750 per day).  I award $111,250 as damages for full pre-trial loss of earnings during this period ($18,750 x 178 days ÷ 30 days).  I also add to that the value of the MPF benefits that was lost and I award the sum of $116,813 ($111,250 x 1.05) as full pre-trial loss of earnings, including loss of MPF benefits, for this period.

26.  After the expiry of sick leave, the plaintiff returned to work on construction sites as a casual worker starting from 15 October 2011, but he was only able to work some 15 days a month.  He was not able to cope with the long working hours and he dared not work to the full extent that he used to before, when he returned to the workplace after his accident.

27.  I am satisfied that it was reasonable for the plaintiff to curtail the amount that he worked during that period from the middle of October 2011 to March 2012, when he was working only 15 days a month at a daily wage of $500 and earning some $7,500 per month ($500 x 15 days). I award partial loss of earnings for this period on the basis of his actual reduced earnings during this period because I find that it was reasonable for the plaintiff to curtail the amount that he worked during this period as he had just come back to the workplace.  The award I make for partial loss of earnings, including loss of MPF benefits, during this period is $64,969 {($18,750 - $7,500) x 5.5 months x 1.05}.

28.  He was able to increase his working capacity to some 20 days a month from April 2012, when he continued to work as a casual worker on construction sites earning an increased pay of $600 per month, and he did that for the period from April 2012 to July 2014. He has resumed working as an ironworker since August 2014.

29.  It was his evidence that ironworkers without any disability who worked to full capacity are able to work 25 days a month, earning $950 per day.  It is appropriate to calculate a median wage for this period of time based on the pre-accident earnings of $750 per day, which the plaintiff earned, and the $950 per day which is the current wage he could have earned but for this accident.  The median of these two figures comes to $850 per month.

30.  I am satisfied that he has suffered partial loss of earnings during the following two periods in question.  Firstly, the partial loss of earnings and loss of MPF benefits for period from April 2012 to July 2014, which I calculate in the sum of $271,950 as follows: {$21,250 per month ($850 x 25 days) - $12,000 per month ($600 x 20 days)} x 28 months x 1.05.  The final period for the award of partial loss of earnings is from August 2014 to July 2015, which is a period of 12 months.  I have found that, during this period, he was able to return to work as an ironware worker but that, limited by his residual disabilities, he could only work 20 days a month, and that he could only earn $850 per day, making an average monthly income of $17,000.  For this period of 12 months, I award, as partial loss of earnings and loss of MPF benefits, the sum of $53,550, calculated as follows:  {($21,250 - 17,000) x 12 months x 1.05}.

31.  I award the total of all the above sums as pre-trial loss of earnings.

32.  I now turn to consider the claim for future loss of earnings.  The plaintiff is now 42 years old and I accept his evidence that ironware workers can work up to the age of 65, if not beyond.  On that basis, I adopt a multiplier of 17.13 from the Chan Tables for loss of earnings from his current age of 42 to retirement age of 65.

33.  The current monthly earnings of an ironware worker working a full 25 days per month at a daily wage of $950 amounts to $23,750.  The plaintiff can only earn $17,000 per month, as stated above. On that basis, I award future loss of earnings, including loss of MPF benefits, in the sum of $1,456,907 {($23,750 - $17,000) x 12 months x 17.13 x 1.05}.

34.  As I have awarded substantial sums by way of pre-trial loss of earnings and future loss of earnings by taking full account of his reduced capacity, I conclude that this is not an appropriate case to make an additional award for damages for loss of earning capacity.

Special Damages

35.  I turn now to the special damages claim.  I am satisfied that these have been incurred and that they have been reasonably incurred, and I award the total sum of $20,484 as special damages.

Summary

36.  A summary of my awards is set out below:

PSLA	$280,000
Pre-trial Full Loss of Earnings & MPF Benefits	$116,813
Pre-trial Partial Loss of Earnings & MPF Benefits	$390,469
Future Loss of Earnings & MPF Benefits	$1,456,907
Special Damages	$20,484
Net award:	$2,264,673

Interest

37.  I now turn to deal with interest.  I award interest on damages for PSLA at 2 per cent per annum from the date of service of the writ to the date of judgment.  I also award interest on special damages and pre-trial loss of earnings at 4 per cent per annum from the date of the accident to the date of judgment.

Employees’ Compensation

38.  Finally, I deal with employees’ compensation.

39.  Employees’ compensation was assessed and awarded by the Deputy District Court Judge in the sum of $141,412.  That amount has still not been received.  The plaintiff intends to commence bankruptcy proceedings against the respondent in the employees’ compensation proceedings, who is the defendant in these proceedings, to try to recover this amount and, if he is unsuccessful in doing so, the plaintiff intends to apply to the ECAS Fund Board for a relief payment in the amount of the employees’ compensation that he was awarded and in respect of the costs of the employees’ compensation proceedings.

40.  As the plaintiff has not received the amount of the employees’ compensation he was awarded by way of relief payment, I am not obliged to deduct this amount from the award of damages I make in the common law proceedings.  However, given the near certainty of payment from the ECAS Fund Board, I have no hesitation in acceding to the request made on behalf of the plaintiff that this amount should be deducted from my award of damages.  Clearly, doing so will facilitate a dual claim to be made to the ECAS Fund Board in respect of the amount of the employees’ compensation and in respect of the amount of common law damages. Accordingly, I deduct the amount of the employees’ compensation from my gross award, and I award damages in the net sum of $2,123,261 ($2,264,673 - $141,412).

Costs

41.  I now turn to costs.  It heartens me to know that the plaintiff’s solicitors, Messrs B Mak & Co., and the plaintiff’s counsel, Miss Mona Chhoa, have heeded the plea that I made in §20 of my decision in Chi Yuk Pui v Grace Mind Corporation Limited, HCPI 917/2014, 22 May 2015, that solicitors and counsel acting in this type of case, where the legal costs incurred will deplete any relief payment subsequently obtained from the ECAS Fund Board, should consider acting on a pro bono basis.

42.  When I directed Messrs B Mak & Co. to provide me with their statement of costs, I received their undertaking on behalf of themselves, and on behalf of Miss Chhoa, that they will not claim any costs from the plaintiff that had not been recovered from the defendant employer, save for disbursements.

43.  On that basis, I am willing to dispense with a summary assessment of costs, save for the disbursements, which I summarily assess and allow in the total sum of $36,958.80, inclusive of the fee of the expert, Dr Tio, in the sum of $15,750.  This total amount of $36,958.80 can be recovered from the relief payment to be made by the ECAS Fund Board in respect of common law damages.

44.  I also award costs of the entire action, including the assessment of damages, against the defendant, to be taxed, if not agreed, on the High Court scale. I do so to cover the unlikely event that the anticipated enforcement proceedings against the defendant turn out to be fruitful. The likelihood of that happening is extremely remote such that this order is likely to remain on file with no further steps being taken to tax these costs.