CHENG YUK LIN v. UNIPRO LTD t/a BLUE SKY BALLROOM

IN THE HING COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION No. 1189 OF 1997

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ASSESSMENT OF DAMAGES

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Background

1. The plaintiff worked for the defendant as a waitress at the defendant's nightclub/karaoke in Yaumatei. On 14.12.94. in the course of her employment the plaintiff slipped and fell on her buttocks, injuring her lower back. Interlocutory Judgment was entered on 12.12.98. with damages to be assessed.

2. The plaintiff was born in Hong Kong on 1.1.59. She was 35 at the time of the accident, and is now 40 years old. She received schooling only up to Primary 6 level. She was divorced in April 1989 and granted custody of the 2 children of the family. The plaintiff's former husband pays her maintenance of $4000 per month. The son aged 15 is still at school, and the daughter aged 21 is unemployed.

PSLA

3. In considering this item, I first had regard to the medical evidence. After the accident, the plaintiff was hospitalized at the Queen Elizabeth Hospital. The X-rays showed diminished lumbar lordosis, but no fractures or bony lesions. There was no neurological deficit. She was treated conservatively with drugs and physiotherapy. After being discharged on 17.12.94. she received out-patient treatment there at the orthopaedic clinic until about July 1996.

4. An MRI was performed on 21.8.95. There were signs that suggested a condition called tethered spinal cord syndrome. According to the report of Dr Ko, the plaintiff was treated with a further course of non-steroidal anti-inflammatory drugs.

5. The plaintiff was treated by a chiropractor for lower back pain. She later attended the Prince of Wales Hospital for physiotherapy treatment about 29 times.

6. The latest report on the physical condition of the plaintiff is that of Dr Arthur Chiang who examined the plaintiff on 11.8.97. Dr Chiang noted that the plaintiff complained of pain on both sides of her back after walking for half an hour; she experienced pain after sitting or standing for half an hour; she could only, carry weights up to 5 kg; she felt pain in her back with changes in the weather. Dr Chiang also noted that she had not complained of walking up stairs; nor of morning pain; nor complained of radiating symptoms to her lower limbs.

7. Dr Chiang found that her gait was normal. The plaintiff's performance in the straight leg raising test was within the normal range; as was the range of motion she could achieve in flexion and extension. The muscle power of both lower limbs were found to be within normal range.

8. Dr Chiang's findings from reading the x-rays were: she had normal curvature of the spine (preservation of lumbar lordosis); there were no significant narrowing of the intervertebral disc spaces; no obvious degenerative changes; no abnormality in the sacro-iliac joints; and no scoliotic tilt of the spine viewed from the front.

Dr Chiang essential findings were:

In short he found the plaintiff's injured back to be in a reasonable state. He found that it was likely she had sustained a soft tissue injury of the lower back. He said "at this stage I think there may not be significant back symptoms on performing the daily activities, and her capacity to perform mild to moderate manual work is likely to be preserved." He added that" I think that she should be able to return to the pre-injury type of job but some reduction in the capacity may be present in some occasions, eg when handling heavy objects is required"

9. Mr Wong urged me to find that for the PSLA award a sum of $300,000 would be appropriate in the present circumstances, citing two decisions of Mr Justice Suffiad dated 12.6.98. and 11.8.98. respectively Lai Ching v Wong Chiu Kwai (t/a Wing Lai) PI No.1192 of 1996; and Ho Chi Ming v Union Rife Hong Kong Ltd PI No.1204 of 1996.

10. Having studied the medical evidence, in my view the plaintiff's injuries falls well below the "serious injury" or lowest category set out in the case of Lee Ting Lam v Leung Kam Ming and Ors [1980] HKLR 657. The plaintiff's injuries even falls below the injuries suffered in the cases of Lai Ching and Ho Chi Ming above. In Lai Ching the plaintiff suffered a prolapsed disc at the L4-5 level with compression of the nerve root. In Ho Chi Ming the plaintiff's 4^th lumbar was fractured and had burst, and inflammation of the arachnoid membrane had set in. The injuries of those plaintiffs are more serious. In Lai Ching there was a finding of 24% total impairment of the whole man, and a 35% loss of earning capacity. In this case Dr Chiang estimated a 3% impairment of the whole man and a 5% loss of earning capacity. In addition, Dr Chiang has found that Madam Cheng only experienced back pain after certain activities or under certain conditions. Taking all the factors into consideration, I find that a sum of $250,000 to be appropriate under this head.

Loss of Earnings

11. After the accident, the plaintiff was granted sick leave intermittently. Around February 1995 the plaintiff was advised by doctors at QEH to try to resume her work. The plaintiff returned to work for the defendant but found that she experienced pain trying to serve drinks. The act of bending down in order to put glasses down on the low tables caused her pain. At the end of April 1995 she stopped, it was too painful working.

12. I accepted the plaintiff's evidence that at the time of the accident she was paid a basic salary of $5300, and as the balance of her income came from tips, she earned about $11,000 per month.

(1) The period from 14.12.94 to 13.2.95

The plaintiff was on sick leave from 14.12.94 to 13.12.94 . Loss of earnings for these 2 months is ($11,000 x 2) = $22,000.

(2) The period from February 1995 to April 1995

As stated above the plaintiff tried to return to her to her job as a waitress for the defendant from about the middle of February 1995 to April 1995. She only managed to earn $15,900 for this period. Her loss of income for this period is [($11,000 x 2.5 months) - $15,900] = $11,600.

(3) The period from 3.5.95 to 24.4.96 (11months and 22days)

From the Table of Indices submitted Mr Wong worked out that 9.2%. was the average for the Consumer Price index in 1995.

Using that figure, the plaintiff would have been earning ($11,000 x 109.2%) = $ 12,012 in December 1995.

The plaintiff's median earnings during this period would be ($11,000 + $12012 & #247; 2) = $11,506.

The plaintiff's loss of earnings for this period is therefore $135,003.73 ($11, 506 x 11 months 22 days).

(4) The period from 25.4.96. to date of trial in 1999

The Table of Consumer Price Indices for the years 1996 to 1998 show annual increases of 6.3%, 5.8%% and 2.9% respectively. Therefore:-

- But for the accident the plaintiff would have been earning $12,768,76 in December 1996 ($12,012 x 106.3%)

- But for the accident the plaintiff would have been earning $13,509.35 in December 1997 ($12768.76 x 105.8%)

- But for the accident the plaintiff would have been earning $13,901.12 in December 1998 ($13.509.35 x 102.9%)

The median for this period is $12,450.65 ie ($11,000 + $13,901.12 & #247;2)

Applying the 5% loss of earning capacity as found by Dr Chiang to the figures, it comes to $24,901.12 ie ($12,450.56 x 40 months x 5%)

A sum of $53,000 advance payment was paid to the plaintiff which had not been taken into account previously when assessing the ECC award. This sum will be taken into account under this head.

The total under this head comes then to:- $140,504.85

Less $53.000 Advance payment received = $140,504.85

Loss of Future Earnings

The plaintiff will continue to suffer a loss of monthly income at the rate of $12,450.56 x 5% = $622.53

13. Mr Wong has suggested a multiplier of 11, and has referred me to Lai Kin Wah v Hop Hing Construction Co Ltd, PI No. 255 of 1996 and Law King Sang v Law Yin Sang PI No.923 of 1995, in addition on the authorities referred to above, In Lai Kin Wah a multiplier of 8 was adopted for a carpenter aged 41 t time of accident, and aged 48 at trial. In Law Sang a multiplier of 12 was adopted for a worker aged 31 at time of accident and aged 38 at trial. In Ho Chi Ming where a multiplier of 10 was adopted , the worker was aged 35 at time of accident and aged 40 at trial. In the light of all the circumstances, I am satisfied that a multiplier of 11 will be appropriate.

Adopting a multiplier of 11, the plaintiff's post-assessement loss of earnings amount to $82,173.96 ie ($622.53 x 12).

Medical Expenses

14. The plaintiff's evidence was that she has spent $1834 on hospital and medical expenses at the Queen Elizabeth and Prince of Wales Hospitals. She also claimed sums of $3760 and $1200 for consulting private doctors and bonesetters. These sums are reasonable and will be allowed.

Travelling Expenses

15. Travelling expenses to and from the Queen Elizabeth and Prince of Wales Hospitals. and for consultations with private doctors and the bonesetter came to $1056. These are reasonable and will be allowed.

Employees' Compensation

16. In the Employees' Compensation action, the plaintiff was awarded the sum of $126,302 with interest at judgment rate on $105,460 from 24.3.98 to the date of payment. I am informed that the judgment has not been satisfied.

Conclusion