WONG KI v. WONG TUNG SING AND OTHERS

HCPI 50/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 50 OF 2008

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J U D G M E N T

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1.  The plaintiff was injured at work.  He now claims damages from his employer on the grounds of negligence and/or breach of statutory duty and/or breach of contract of employment.  The plaintiff was an air-conditioning worker.

Employment relationship

2.  Her Honour Judge Mimmie Chan has in a judgment given in an employee compensation case DCEC835/2007 and DCEC74/2008 held that the plaintiff was the employee of the 1st defendant in this action and that the plaintiff was injured in the course and out of such employment.  There is no appeal from this decision.

The parties

3.  The 1st defendant has not appeared at the trial of this action.  The claims against the 2nd and 3rd defendants have been withdrawn prior to the trial.  The plaintiff, therefore, just proved his case.

Background

4.  The plaintiff came from the Mainland to Hong Kong in March 2005.  Prior to coming here, he had learned the craft of air-conditioning works as he expected to work for the 1st defendant upon coming here.  He is related to the 1st defendant as their wives are sisters.  After coming here, the plaintiff commenced working for the 1st defendant in the latter’s air-conditioning business.

5.  The plaintiff’s main duties were to clean, maintain and change air-conditioners.  His daily wages were $400 and he worked six days per week.  The 1st defendant also paid for his meals which he valued at $30 per day.  If he had to do overtime, the 1st defendant would also pay him an allowance for it.  His average overtime allowance before the accident was at HK$1,500 per month. 

Liability

6.  The 1st defendant had not given him any training on how to carry out his duties.  He just observed how the 1st defendant worked and he did likewise.

7.  On 13 August 2005, the 1st defendant together with the plaintiff and two other colleagues went to certain factory premises in Shatin to replace an old split-type air-conditioner with a new one.  There was in the premises an opening on the wall measuring about 1 foot times 8 inches.  It was raining and water was coming through the hole.  The 1st defendant told the plaintiff to choose a glass pane from a pile on the floor and to cut it to the right size to cover the opening.  The 1st defendant also gave him a new glasscutter for that purpose.  But the 1st defendant did not give him any eye protection gear or any other safety gear or device.  The 1st defendant also did not check the pile of glass panes on the floor to see if there was any suitable piece.

8.  The plaintiff then chose a glass pane of about 3 feet times 1½ feet and laid it on a table.  He then cut a line across the glass pane from top to bottom.  He then moved the unwanted part to outside the table and used the other end of the cutter to lightly hammer on the under side of the cut line with a view to break the glass at that line.  He hammered the glass pane once or twice, but the whole pane suddenly broke into granules and one granule shot into his left eye.  He had a sharp pain in the left eye.  He immediately washed his eye with a water tap and removed the glass granule.  He was later told that the pane was of tempered glass.  The 1st defendant then arranged a colleague to take him to the Tai Po Hospital for treatment.  He was transferred to the Prince of Wales Hospital immediately for surgery.

9.  Though the 1st defendant still denies the employment relationship, the findings of Her Honour Judge Chan defeats the denial by issue estoppel (see Fan Hung Shing v Hang Fung Shipping Company Limited HCPI 1192/1995 at page 3). 

10.  In the light of the lack of training to the plaintiff, no provision of any safety equipment to the plaintiff and no consideration of the suitability of the glass pane by the 1st defendant, the 1st defendant obviously failed to provide a safe system of work for the plaintiff.  I find that the 1st defendant is liable to the plaintiff for breach of contract of employment and negligence.  I also find that the 1st defendant has breached section 6(1) of the Occupational Safety and Health Ordinance, Cap. 509 in that he had failed to ensure the plaintiff’s safety and health at work so far as reasonably practicable.  I find that the 1st defendant is liable to pay damages to the plaintiff on all these grounds.

Contributory negligence

11.  The 1st defendant in his amended defence pleaded that the plaintiff was guilty of contributory negligence.  It seems that he merely relied on hearsay information that the plaintiff had the experience of cutting glasses before coming from the Mainland to Hong Kong.  Since the 1st defendant has not taken part in the trial and even if the plaintiff had some experience in cutting glasses, I still do not think that there is sufficient evidence to warrant any finding of contributory negligence on the plaintiff’s part.  I, therefore, hold that the 1st defendant is wholly liable for the plaintiff’s injury.

Medical condition

12.  The plaintiff’s medical condition and the treatments he received have been summarised in a joint expert report prepared by Doctors Tsui Chung Wan and Cheung Ming Kuen, Paul, the ophthalmological experts of the plaintiff and the 3rd defendant (now withdrawn) and dated 23 August 2009.  The report said:

“Mr Wong sustained personal injuries in an industrial accident that occurred on 13th August 2005.  His left eye was hit by a piece of broken glass while he was cutting the glass for installation of an air-conditioner.  The left eye was very painful with immediate loss of vision.  He went to the Accident & Emergency Department of PWH and was admitted to the Department of Ophthalmology & Visual Sciences (DOVS).  Ophthalmic examination showed:

·  Visual acuity right eye 20/10, left eye CF (Counting Fingers);

·  Ruptured left eyeball with corneo-scleral laceration;

·  Penetrating injury to the iris and crystalline lens of left eye.

Emergency operation was performed on the same day under general anaesthesia for primary repair of the corneo-scleral laceration, aspiration of the crystalline lens and anterior vitrectomy.

On the next day, the corneal wound was found leaking, for which Mr Wong had second operation for immediate wound revision.  He was discharged home on 22nd August 2005 with topical and systemic antibiotics.

When Mr Wong attended follow up on 25th August 2005, he was admitted to the DOVS again because intraocular foreign body was suspected on ultrasound examination.  Pars plana vitrectomy was performed under general anaesthesia on 26th August 2005.  During the operation, no foreign body was seen but a small infero-temporal retinal tear was found and was treated with endolaser.  Mr Wong was discharged home on 29th August 2005.

Mr Wong attended regular follow up treatment at the ophthalmic outpatient clinic of PWH.  He was kept on regular topical eye medications.

When Mr Wong attended our joint ophthalmic assessment on 26th February 2008, an asymptomatic inferior chronic rhegmatogenous retinal detachment was found in his left eye.  He was referred to the DOVS of PWH for further management.

On 14th March 2008, Mr Wong was admitted to the DOVS of PWH for operation to repair the retinal detachment under general anaesthesia.  The operation was uneventful and he was discharged home on 18th March 2008.”

13.  I also refer to a medical report by Dr K S Leung of PWH and dated 23 August 2009 on the plaintiff’s condition after the operation on 14 March 2008.  The report said that post-operatively his left eye retina remained intact.  Upon examination on 4 March 2009, his best corrected visual acuity of the left eye was 20/200.  Upon another examination on 14 August 2009, the visual acuity was 20/10 for his right eye and 2/200 for his left eye.  The right eye was unremarkable but the left eye was aphakic (without the lens) and with inferior corneal scar.

14.  On 27 August 2009, a surgery was planned at the PWH for implantation of intraocular lens and pupilloplasty in his left eye under local anaesthesia.  This was suggested in the joint expert report.  However, the plaintiff could not tolerate the pain despite the local injection of anaesthesia.  The operation was thus cancelled.

15.  Apart from his visual problems, the plaintiff also suffers from a relatively minor psychiatric problem.  I quote from a report of Dr Willy Wong of the West Kowloon Psychiatric Centre dated 14 November 2008:

“3. He first attended West Kowloon Psychiatric Centre on 29 September 2008.  He had injury of his left eye during an industrial accident in 2005.  After that accident, he developed depressive mood, loss of interest, negative thoughts, easy irritability, flashbacks of that accident, poor sleep and appetite, vague suicidal idea and worries about his future.  He had no abnormal perception or belief.  He stayed at home most of the time.  His diagnosis was Post-traumatic Stress Disorder with an element of Depression.

He last attended psychiatric follow-up on 13 October 2008.  His mood was still depressed.  He was easily irritable and had poor concentration.  He has no suicidal idea or psychotic symptoms.  He was prescribed an antidepressant medication...”

16.  The plaintiff had a total of four operations and an aborted one.  He was given sick leave from 13 August 2005 (the date of accident) to 27 September 2006, 13 March 2008 to 8 April 2008 and 28 May 2008 to 10 June 2008.

17.  The experts opined that the plaintiff is suffering from 100% visual impairment in his left eye because the visual acuity is limited to hand movement.  There is extremely high hypermetropia of 10 dioptre in his left eye but no hypermetropia in his right eye.  This results in anisometropia or significant difference between the refractive errors of the two eyes.

18.  The correction of hypermetropia and hence the anisometropia by ordinary spectacles is unworkable in the plaintiff’s case as the image perceived by the left eye would be about 30% larger than that of the right eye.  This would result in dizziness, nausea and headache.  If contact lens is used for the correction, the image difference would be reduced to 10%.  But the fitting of contact lens to the plaintiff’s left eye is very difficult because of the presence of a corneal scar.

19.  The significant anisometropia, therefore, cannot be corrected effectively and the visual acuity of the left eye remains at hand movement or 100% impairment, which is equivalent to 20% impairment of the whole person.  The experts suggested a solution of implantation of intraocular lens in his left eye but I have already referred to the aborted attempt to carry out this surgery on 27 August 2009.

20.  Finally, the experts opined in their report:

“As a result of left eye visual impairment, the visual function is defective in several aspects.  The perception of distance and 3-dimensional perception is affected.  The field of vision is constricted.  The fine visual discrimination is also affected.  It is therefore not suitable for Mr Wong to resume his previous job in construction sites.  It is also not suitable for him to take up jobs that require operation of dangerous machines.  The types of jobs he is capable of performing includes delivery worker, security guard, car park attendant, cleaner, cashier, porter and messenger.”

PSLA

21.  In Ho Yam Pan v Tse Tak Ming trading as Ken’s Company HCPI91/1996, the plaintiff was a construction site worker.  He operated a cutting machine to cut a metal rod.  The cutting blade broke into pieces and some pieces hurt his right eye.  Despite surgery, his right eye lost the light perception.  It was assessed to have suffered from 100% permanent disability which was equivalent to 25% impairment of the visual system or 24% impairment of the whole person.  Master Chung (as he then was) assessed PSLA at $450,000.

22.  In Chan Kwok Ping v Hop Yick Engineering Company (a firm) & Another HCPI1230/1995, the plaintiff was a painter working with a spray gun at a construction site.  His right eye was hit by some corrosive alkaline whitewash when he tried to clear the block of the nozzle without turning off the pump.  As a result, a large corneal ulcer developed.  The healing of the ulcer left a vascularised corneal scar.  The visual acuity of the right eye was reduced to 3/60.  Visual disability was assessed at 90% in the right eye.  Cheung J held that the damage fell within the serious injury category and assessed PSLA at $420,000.

23.  In Lai Ka Wai v Lo Tak Cheung trading as Luen Fat Construction Company & Others HCPI1227/1995, the plaintiff was a construction site worker.  A fellow worker at the site negligently handled a joist which broke the plaintiff’s spectacles and blinded his left eye completely.  He was assessed to have suffered 24% permanent disability of his visual system.  Cheung J again placed his injury in the serious category and awarded $450,000 for PSLA.

24.  In Sze Ping Chui v Lau Ching Wai HCPI1051/2001, the plaintiff was a plasterer.  When he chiselled ceramic tiles, some fragments entered his left eye and ruptured the eyeball with a 5mm full thickness linear corneal laceration at the visual axis and a damaged lens.  He underwent a surgery to repair the cornea, removed the damaged lens and implanted an intraocular lens.  He was left with a residual corneal scar and suffered from blurred vision, occasional “light reflection”, discomfort and photophobia in the left eye.  He also had myopia and severe astigmatism.  His visual acuity of this eye was assessed at 35% and permanent disability at 67% or 16% impairment of the whole person.  Master Kwang assessed the damages for his PSLA at $400,000.

25.  Having considered the plaintiff’s medical history, his present visual and psychiatric conditions and impairment and the four cases referred to above, I assess the damages for his PSLA at $450,000.

Pre-trial loss of earnings

26.  The plaintiff gave evidence that before the accident, his income was $400 per day plus meal allowance of $30 per day.  He worked for 26 days in a month.  He also had an average overtime allowance of $1,500 per month.  The total monthly income was at $12,680. 

27.  After the accident, he tried to go back to his previous job in the air-conditioning field.  He was employed by a Sun Lik Company at $350 per day for 13 days before the Lunar New Year in 2007, but he was not employed by this company thereafter.  He earned $4,550 for the 13  days’ work.

28.  Before that, he had also worked for seven days at $400 per day in a company in the Hong Kong International Airport fixing screws to some gadgets for delivery of goods, but he was dismissed afterwards as he had to wear sunglasses to work and often knocked against things.  He earned $2,800 from this job. 

29.  In April 2007, he found a tailor’s job at $7,000 per month but after four months, he was told to leave.  He believed that it was due to his poor eyesight.  He earned $28,000 from this job.  He has not been able to secure any other job since then.

30.  There has been a lapse of about 57 months since the accident.  The plaintiff had been given about 15 months’ sick leave in total.  Counsel suggested that he should be given two more months to find a job.  I agree.  The period of total loss of income is thus 17 months and the amount of loss is:  $12,680 x 17 = $215,560.

31.  The Quarterly Report of Wages and Payroll Statistics published by the Census and Statistics Department for the quarter of June 2009 stated that the average monthly wages for lavatory cleaners and general cleaners in that quarter were $5,219 and $5,343, respectively.  The average was $5,281.  Counsel submitted that this should be the sum that the plaintiff should have earned during the remaining 40 months before trial.  The plaintiff’s loss of earnings during this period was ($12,680 – $5,281) x 40 = $295,960.  I agree and I so award.

32.  His total pre-trial loss of earnings, including MPF, is therefore at ($215,560 + $295,960 – $4,550 – $2,800 – $28,000) x 1.05 = $499,978.50.

Future loss of earnings

33.  The plaintiff was born on 22 June 1973 and is now aged 37.  Counsel referred to Chan Cheuk Ki v Poon Yu Cheung [1995] HKLY530 and suggested a multiplier of 13.  I agree.  The future loss of earnings, including MPF, is thus ($12,680 – $5,281) x 12 x 13 x 1.05 = $1,211,956.20.

Loss of earning capacity

34.  The plaintiff also claims loss of earning capacity.  I think this is an appropriate case for this award.  Counsel suggested 36 months of loss.  I think that is on the high side.  I would adopt 24 months.  The sum is ($12,680 – $5,281) x 24 = $177,576.

Medical expenses and tonic food

35.  The plaintiff claims medical expenses at $7,333 but his claim for such expenses in the EC case was only $1,660.  I allow $1,660 under this heading.  I would, however, allow $3,000 for tonic food.

Travelling expenses

36.  He also claims $5,000 for travelling expenses but gave no detail.  He lives in Cheung Sha Wan.  The Prince of Wales Hospital is in Shatin.  I assume that he has to incur $30 for a return journey to the hospital.  I further assume that he had undertaken 50 such journeys.  That would produce a sum of $1,500 for travelling expenses.  This is what I allow under this head.

Quantum

37.  The summary of the items allowed are: 

PSLA:	$450,000
Pre-trial loss of earnings and MPF:	$499,978.50
Future loss of earnings and MPF:	$1,211,956.20
Loss of earning capacity:	$177,576
Medical expenses:	$1,660
Tonic food	$3,000
Travelling expenses:	$1,500
Less:
EC compensation:	–$482,760
Net quantum:	$1,862,910.70

38.  I also allow interest on the general damages at 2% per annum from the date of the writ which is 19 January 2008.  I further allow interest on the special damages at half of the judgment rate from the date of the accident, that is, 13 August 2005. 

Costs order nisi

39.  I further make a costs order nisi that the 1st defendant do pay the plaintiff costs of this action to be taxed and the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.