LEE LUNG WAH AND OTHERS v. LAU KAM SHUN AND ANOTHER

HCPI 1534/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1534 OF 2000

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JUDGMENT

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Background

1. The present claims arose from a traffic accident on 13 November 1999. All five plaintiffs were injured when, after breaking down, their car was hit by a public light bus. Their action commenced on 29 December 2000. By 20 November 2002, judgment was entered for all against the 1st defendant - the PLB driver. Before me is the assessment of damages for the 2nd and 5th plaintiffs.

The 2nd Plaintiff

Injuries

2. By a report of the Orthopaedics and Traumatology Department, North District Hospital, the 2nd plaintiff ("P2)") suffered both head injury and dislocation of the right acromio-clavicular ("AC") joint. Nothing, however, is mentioned in the way of treatment of the former. Open reduction and fixation only, was performed on his shoulder. In any event, P2 recovered well from this operation and was discharged on 20 November 1999. With the implant also removed on 12 January 2000, he proceeded to and received physiotherapy (shoulder mobilization exercises) until August 2000. In total, 408 days of sick leave were granted to him 12 of which were in hospital. Follow-up appointments are said to continue in North District Hospital.

3. To complete the picture, P2's left eye became blurred after the accident. Examination by Tuen Mun Hospital on 14 November 1999 recorded a finding of commotio retinae. Visual acuity was down to 6/36. Dr Ho, his own ophthalmologist, saw him on 6 September 2001 and diagnosed it as a case of traumatic optic nerve damage. The prognosis he gave was "poor". Permanent disability to the left eye and visual system as a whole was rated at 25% and 6% respectively.

4. As of now, P2's residual complaints include poorer hearing, poorer eyesight, constant nervousness and headaches. By nervousness, he really means pressure from being unsure whether he could return to his previous occupation. By headaches, he refers to a moderate yet daily cycle of pain which affects his memory and prompted a CT scan. Even for his right arm and shoulder, they are still stiff, weak and painful. This pain is subdued by analgesics and makes lifting anything more than 5 lb out of the question. As a matter of fact, lifting heavy objects gives P2 chest pain - as do weather changes. Finally, his left thumb is deprived of sensation.

5 ． According to Dr Wong, P2's other expert, the problems with P2's arm and shoulder are due to ligament and other tissue injuries commonly found but not reported in AC joint dislocation. The 50% subluxation of the joint and 5 mm widening of the coraco-clavicular space (both Dr Wong's findings) support such a proposition. The widening of coraco-clavicular space, in particular, means that the transfer of force from body trunk to upper limb is diminished. P2's major impairments lie in the loss of right shoulder joint movements and weakness of right hand grip-power.

6. In the same way, Dr Wong attributes P2's chest pain to contusion injury to the anterior chest wall. This pain, though chronic, is not, however, expected to be continuous. As for P2's thumb, it is not contested that the numbness was due to radial nerve damage (his left forearm suffered abrasion) but no adverse effect can be found on its movement.

7. In Dr Wong's opinion, all P2's impairments have attained their maximal medical improvement. An orthopaedist, however, he cannot comment on the headaches or other conditions. I should add that by order of a Master dated 31 December 2001, Dr Ho and Dr Wong are all the medical evidence that can be called on P2's behalf.

Pain Suffering and Loss of Amenities

8. According to Dr Chun, defence expert, P2 may have some pain on the right shoulder, but only when heavily exerted, and only because his AC joint is still slightly out of place. In any event, this pain is unlikely to be of the scale reported. Because there was no rib fracture, Dr Chun is unable to explain P2's chest pain, unless it is an exaggeration which, in fact, is Dr Chun's opinion of P2's overall condition. To support this contention, Dr Chun refers to tests and measurements he performed on P2. He points to the non-bell-shape curve results of the Javar test on hand grip power and lack of muscle wastage on P2's right arm and shoulder. According to Dr Chun, these findings suggest submaximal effort during the tests and inconsistency with his complaints.

9. In my judgment, P2's complaints are, to a large extent, real. I note that even Dr Chun concedes that ruptured ligaments are often found in AC joint traumas. I accept Dr Wong's contention that a certain amount of movement, as opposed to great exertion, is enough to prevent muscle wastage. I note with interest Dr Chun's finding that P2's left forearm was larger than his right and dominant one by 0.5 cm. As regards the Javar test, I accept Dr Wong's explanation that, because of the palm size of orientals, the readings from the "II" position are the most indicative and that they, in the present case, do give rise to a bell-shape curve.

10. All in all, I accept Dr Wong's findings that P2 suffers 10 % upper extremity impairment by loss of right shoulder movement and 20% upper extremity impairment by loss of right hand grip power. I accept that there would be pain in his shoulder particularly when in exertion. As for the rest of his orthopaedic conditions (loss of sensation to left thumb and chest pain) I find that they are at best insignificant. The same applies to his headaches and other complaints that are not supported by medical evidence. In my judgment, these conditions and the 6% overall visual impairment bring P2 just within the "serious injury" category. An award of $500,000 is proper under this head.

Pre-Trial Loss of Earnings

11. P2 was a bar-bender. It is not disputed that he had a daily wage of $1,200. The wage records also show that he worked an average of 21.88 days a month, but only in the employment of the 1st and 5th plaintiffs. His evidence is that he would have another two days' work from other sources. It follows that 24 days at $1,200 per day for 13 and a half months (14 November 1999 to 28 December 2000) is his loss of earnings during the sick leave period - or so it is claimed.

12. As regards subsequent developments, P2's case is that he tried but was unfit to return to bar-bending. As a substitute, he found employment as a general construction site worker and $43,600 was all that he earned between January and July 2001. On 29 October 2001, he started work with the Drainage Services Department and $96,000 is what he should have earned up to the time of the present judgment ($6,000 x 16 months). It follows that the actual loss that he has suffered during this period (26 months from the expiry of his sick leave till now) is the income that he could allegedly have earned as a bar-bender ($1,200 x 24 days x 26 months) less $43,600 less $96,000.

13. In my judgment, P2 was and is unfit to go back to bar-bending. His shoulder pain, if only in exertion, is enough to prevent him. That said, I have great doubts on the amount of work available even if he could return to it. Given how the economy has slipped since the time of his accident, it is for him to persuade me why, in the construction industry, he should not have been amongst the hardest hit. It is true that the 5th plaintiff says that business remains good for the 1st plaintiff, particularly from government projects, but they are nothing more than bald assertions. The 1st plaintiff has not been asked to give evidence. In all the circumstances, I feel I have no alternative but to cut back on the number of days worked as a multiplier. Doing the best I can, and not losing sight that what I want to achieve is an average over the 26-month period, I will pitch it at 15 days a month.

14. On another note, I understand that people in the bar-bending business do not pay tax. They simply do not cross paths with the IRD. The 5th plaintiff admits as much in evidence. Although I am appalled by this situation, I am not however prepared to make any adjustment to reflect this obligation. The main reason being, with so much of P2's personal circumstances unknown, it is not at all clear whether and to what extent he might be caught by the tax provisions.

15. To conclude, P2's loss of earnings during the sick leave period should be -

$1,200 x 15 days x 13.5 months = $243,000

And his loss of earnings between the expiry of his sick leave period and now should be -

($1,200 x 15 days x 26 months) - ($43,600 + $96,000)

= $328,400

It follows that his total pre-trial loss of earnings should be $571,400.

Future Loss of Earnings

16. P2 is aged 46. Given the highly strenuous nature of the bar-bending business, he could not have continued for a very long time and a multiplier of 7 is, in my view, appropriate. Looking into the future, he is unlikely to leave his employment at the Drainage Services Department. Even if he does, given his background, he is unlikely to earn much more than $6,000, his present salary. In the circumstances, his award under this head should be -

[($1,200 x 15 days) - $6,000] x 12 x 7 = $1,008,000

Loss of Mandatory Provident Fund

17. Whether his employer in the bar-bending business would, in fact, have made the contribution, P2 is entitled to damages under this head.

18. Given that the MPF came into operation on 1 December 2000, and the employer's daily contribution should be $30, the award up to time of the present judgment (27 months) should be -

($30 x 15 days x 27 months) - ($139,600 actual pre-trial

earnings x 5%) = $5,170

As regards his future loss of MPF contribution, the award should be -

[($30 x 15 days) - ($6,000 x 5%)] x 12 x multiplier of 7

= $12,600

19. The total award under this head is therefore $17,770.

Loss of Earning Capacity

20. This head is not included in the Revised Statement of Damages. No issue was, however, taken by the defence to P2's claim for $100,000 during final submissions. In all the circumstances, I find it to be a reasonable amount. It is what P2 will get.

Other Special Damages

21. The defence have no quarrel with items 17 to 23 as pleaded in P2's Revised Statement of Damages. They amount to $11,620. As for item 24, tonic foods, I agree that in the absence of medical evidence on advisability, $17,552 is an amount hard to justify. I will reduce it to $5,000. In other words, the 2nd plaintiff will have a total award of $16,620 under this head.

Interest

22. Interest will be awarded for general damages for pain suffering and loss of amenities at 2% per annum from the date of the writ.

23. Interest will also be awarded for pre-trial loss of earnings and all special damages at half judgment rate from the date of the accident.

The 5th Plaintiff

Injuries

24. The 5th plaintiff ("P5") sustained the following injuries during the accident - bilateral pneumothorax, mild right haemothorax and right middle lobe lung contusion. He was treated conservatively with chest drain insertion and hospitalized for 10 days. Thereafter, he was granted 253 days of intermittent sick leave till 3 August 2000. Follow-up treatment at the hospital discontinued about a month and a half earlier on 23 June 2000.

25. P5 complains of the following residual impairments - constant headaches and sleeplessness; constant difficulty in breathing; constant and serious chest pain; inability to lift heavy objects and to use force; pain and weakness in both legs particularly when climbing up stairs; serious loss of memory; poor eyesight; sexual impotence. These are in his witness statement.

26. Before me, P5 explains that not only have his headaches not improved, they have worsened. He now feels dizzy in fast, crowded conditions and is afraid to go near the yellow line on MTR platforms. Because of these headaches, he has had a couple of CT scans and is seeing some neurologists. Turning to his chest, his rib cage is now deformed. His sternum is in "knife-scraping" pain and requires constant stroking. Even breathing hurts so his movement is seriously affected. Because of the swelling in the accident, his legs are, to date, still weak, painful and in need of acupuncture. For some reason, his eyesight has also deteriorated. His urinary frequency has gone up to 30 times a day which, amongst other things, affects his sex drive (as opposed to sexual ability). Doctors have suggested kidney or urinary tract problems as the cause but can think of no cure.

27. By the same order dated 31 December 2001, (see above) medical evidence in support of P5 is confined to one orthopaedist. This is provided by Dr Wong, the same expert for P2. According to Dr Wong, fractures with residual deformity can be seen in P5's left 2nd and 4th ribs, but not anywhere near the sternum. His chest pain could, however, be the result of soft tissue injuries caused by impact. In any event, his opinion is that all P5's orthopaedic impairments have reached their maximal medical improvement.

Pain Suffering and Loss of Amenities

28. Like P2, P5's condition is contested.

29. Healed fractures with slight displacement were all that Dr Chun, for the defence, could find in him. Physical examination on his spine, knees and pelvis revealed no abnormalities. He was able to squat and walk (even on tiptoes) and gave no sign of tenderness when tapped on the ribs and sternum. While on the point, Dr Wong concedes that apart from words, no objective evidence can be found to support his complaint of chest pain.

30. The same lack of support by medical evidence applies to P5's other conditions. Dr Wong did refer to a brain scan and intravenous urogram in May 2000 but both were normal. On the whole, P5's complaints remain his own bald assertions. I should add that had there be anything else of significance, no attempt was ever made to appeal against the Master's order to put it in evidence. In any event, I am not impressed by P5 as a witness. I find in him a tendency to exaggerate. I note that when defence counsel put to him that he was not stroking his chest in a video taken by private investigators, all he could say was that he might have stopped for a moment.

31. While I will not dismiss P5's complaints as completely false, I do not think he is entitled to anything more than $300,000. That is what I award him.

Pre-Trial Loss of Earnings

32. As pointed out, P5 and the 1st plaintiff were sub-sub-contractors in the bar-bending business. They were partners and, to cut a long story short, made their profits by having less men do more work. To make this possible, not only did he and the 1st plaintiff joined in the manual labour, they worked alone during the after hours. At least that is what he claims.

33. Either way, P5's wage records show that he worked an average of 22.84 days. At $1,200 a day, (see above) $27,600 is about what he should earn in a month. It follows that his claim for loss of salary during the sick leave period (8 months and 19 days from 14 November 1999 to 3 August 2000) should be in the region of $237,360. As for what he should have made as a sub-sub-contractor, his accounts show a monthly average of $21,878 so his claim for loss of profit over the same period ($21,878 x 8.6 months) is $188,150.

34. Moving on, P5's case is that he found himself no longer fit to be a bar-bender. It also meant giving up the sub-sub-contracting business. Instead, he stayed on as one of the 1st plaintiff's general workers but the bad air and physical toil in the construction site soon stopped him. It was only because of financial pressure that he was back between December 2000 and July 2001. His total income for this and the earlier period combined was $81,700. Since mid-January 2002, he has found less strenuous employment as a caretaker at $5,500 a month.

35. While I accept P5's evidence on previous income, my problem is, again, with the availability of work since the time of his accident. I do not feel I can rely on his bald assertions that business remains good with his partner the 1st plaintiff (see above). I feel the situation is best reflected by first, pitching his number of days worked at the same level as P2 and second, lowering his projection of profit by 35% to $14,220 per month. For the same reasons that apply to P2, however, there will be no adjustment to reflect the tax situation. This is how, in my judgment, P5's loss of earnings should be calculated for the sick leave period.

36. As to what happened afterwards, I note that even Dr Wong, his own expert, concedes that P5 could, orthopaedically speaking, return to bar-bending. Dr Wong concedes that when he said P5 could not in his report, it was partly based on the proposition that the chest pain would affect his concentration. On the whole, I am not convinced that P5 has these chest pains, at least not to the extent that he claims. I am not persuaded that he had no alternative but to change his employment. He will have no award for loss of earnings after the sick leave period.

37. In sum, this is all that P5 should get for his pre-trial loss of earnings -

($1,200 x 15 days x 8.6 months) + ($14,220 x 8.6 months) = $277,092

Future Loss of Earnings

38. Because I am not convinced that he cannot return to the bar-bending business, P5 will have no award under this head.

Loss of Mandatory Provident Fund

39. P5 was a sub-sub-contractor. He was in nobody's employment. He will have no award under this head.

Loss of Earning Capacity

40. This head is not included in the Revised Statement of Damages. No issue was, however, taken by the defence to P5's claim for $100,000 during final submissions. In all the circumstances, I find $100,000 to be a reasonable amount. It is the award P5 will have under this head.

Other Special Damages

41. The defence concede to items 84, 85 and 87 in the Revised Statement of Damages, $36,883 in all. They contest the fees for bone-setting (item 86) and tonic foods (item 88), $53,990 in total. Without any medical evidence on their advisability, I agree that the latter expenses are hard to justify. I will substitute them by a sum of $8,000. The total award that P5 will have under this head is, therefore, $44,883.

Interest

42. Interest will be awarded for general damages for pain suffering and loss of amenities at 2% per annum from the date of the writ.

43. Interest will also be awarded for pre-trial loss of earnings and all special damages at half judgment rate from the date of the accident.

Costs

44. I order costs nisi in favour of the 2nd and 5th plaintiffs.