XIAO RONGHUA v. CHIU YUNG

HCPI 569/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 569 OF 2011

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ASSESSMENT OF DAMAGES

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I. Background

1.  The plaintiff is a construction site worker trained to perform various jobs including metal work, welding and wood work.

2.  In course of working for the defendant on 13 August 2008, the plaintiff fell from a height of about 6 metres and suffered a compound fracture and dislocation of left wrist, left elbow dislocation with radial head fracture (with transient interosseous nerve palsy), and a compression  fracture of T12 vertebrate.

3.  The plaintiff was admitted on the same day to Tuen Mun Hospital via the Accident and Emergency Department.  He underwent a debridement, exploration and external fixation operation for his left wrist, and a close reduction procedure for his left elbow.

4.  On 21 August 2008, a further revision operation was performed in the left wrist involving open reduction, K-wire fixation, revision external fixation of left compound perilunate dislocation with carpel tunnel release.

5.  The plaintiff was discharged on 23 September 2008 for further physiotherapy and occupational therapy.

6.  Unfortunately, the plaintiff’s recovery was complicated by avascular necrosis of lunate with progressive carpel subluxation causing stiff wrist and finger with neuralgic pain.

7.  A further operation was performed on 23 March 2009 with proximal row carpectomy (surgical removal of a row of 3 small bones of the wrist), denervation, release of left wrist capsule and radical styloidectomy.  The plaintiff had a short arm cast for 4 weeks afterwards.

8.  Post-operatively, the plaintiff’s wrist and finger movements improved with reduction of pain.

9.  After another 6 months’ of rehabilitation (in total, the plaintiff  attended 82 sessions of physiotherapy and 197 sessions of occupational therapy), the plaintiff was referred to the Medical Assessment Board on 4 November 2009.  The Certificate of Assessment, issued on 10 March 2010, stated that the plaintiff suffered a 32% permanent loss of earning capacity.

10.  On 9 July 2010, the plaintiff was awarded HK$880,468.47 plus interest at 8% per annum in the Employee’s Compensation Claim.

11.  The plaintiff initiated the current personal injury claim on 10 August 2011 and Interlocutory Judgment was entered on 6 February 2012.

12.  The plaintiff now comes before this court for assessment of damages.

II.  Pain, suffering and loss of amenities (“PSLA”)

13.  According to Dr Johnson CK Lam, the joint single Orthopaedics expert, the plaintiff still has the following residual disabilities: -

(a) Left hand and wrist: weakness (supported by the objective finding of muscle wasting in the left forearm on physical examination) with residual pain, stiffness and occasional tremor.  There are also unsightly scars.

(b) Low back: intermittent pain exacerbated by bending, straining, moderate walking, prolonged sitting and carrying moderate weight. He is still taking analgesics.

14.  Although the plaintiff is independent in daily activities, he can no longer play badminton.

15.  I have perused the cases of Ho Chong Peng v Yue Hin Engineering Co HCPI 1025/2004 [2005]HKCU 1701, 1 December 2005and Lam Kwong Sum v Wong Hau Ling t/a Sun Tin Wo Garage & Ors, HCPI 643/2010 [2013] HKCU 879, 14 April2013.

16.  I note the multiple fractures suffered by the plaintiff, the multiple remedial surgeries required, the length of rehabilitation, and the fact that the plaintiff was injured in his left and dominant hand.

17.  I am of the view that the plaintiff’s injuries and residual disabilities are slightly more severe that those in the reference cases so I award HK$475,000 under the PSLA head of claim.

III.  Pre-trial loss of earnings and MPF

18.  At the time of the accident, the plaintiff was employed by the defendant earning HK$630 a day.  He said that he had earned HK$650 a day and worked for 27 days the previous month, earning a total of HK$17,550.  The plaintiff had also produced a letter from a decoration company showing that he had worked 28 days between 3 April 2008 and 29 May 2008 at $800 per day (earning HK$22,400 in about 2 months, or about HK$11,200 per month).

19.  The plaintiff claimed that his average income was about HK$19,305 per month.

20.  According to the plaintiff, the nature of work was that one would maintain contact with several construction/decoration companies and to attend to any casual jobs when available.

21.  The plaintiff said that he was paid in cash and did not have the habit of paying this into any bank account or keeping any records of his income.

22.  In view of the economic condition at the time, and the casual nature of the Plaintiff’s employment, I think it is unreasonable to expect that he would be able to work 27 days every month all along.

23.  It seems to me that, on a good month, the plaintiff may earn, as he said, about HK$17,550 or more, but on others, like the 2 months of April and May 2008 as shown in the letter from the decoration company, he was earning some HK$11,200 per month.

24.  Nevertheless, I appreciate that the demand in construction / decoration industry has improved since 2008 and I have also taken into consideration the increase in daily pay rate of general construction workers and welders in recent years.

25.  As such, I think that a reasonable estimation of his average monthly income would be about HK$16,000 during the pre-trial trial had he not been injured.

26.  The plaintiff returned to work in around November 2011 but, due to his various disabilities including weakness in his dominant hand and back pain, he was only able to earn an average of HK$8,420 per month.

27.  The Plaintiff’s pre-trial loss of earnings should therefore be: -

(a) From 13 August 2008 to 31October 2011 (about 38.6 months): HK$16,000 x 38.6 = HK$ 617,600

(b) From 1 November 2011 to trial date (about 19 months): HK$(16,000 – 8,420) x 19 = HK$144,020

Total = HK$761,620

28.  Loss of MPF should be 5% of HK$761,620 = HK$38,081.

29.  I therefore award HK$799,701 under this head of claim.

IV.  Future loss of earnings and MPF

30.  The plaintiff argued that with the increase of daily rate of a general welder since January 2012, if the plaintiff could be able to work for 27 days a month, his income would be HK$24,502.5.

31.  The plaintiff was unable to work as a general welder (despite being qualified for the job with the necessary certificates) because his dominant hand was weak and he was unable to hold a steady pose required for heavy welding jobs.

32.  As such, he was only able to find job as a casual gas welder/raw material cuter and from around July or August 2012, he was earning around HK$12,750 per month and working about 15 days a month.

33.  The plaintiff is 47 years old now and he is expected to work until 62 or 63 years old.  He proposed a multiplier of 10.

34.  I think that the construction is a rather cyclical industry and, despite the plaintiff’s claim of the high demand on welders at this moment in time, it may be unreasonable to expect that an average casual welder will be able to find work 27 days a month for the next 15 years.

35.  On the other hand, I am impressed that the plaintiff is a diligent worker even now when he is somewhat disadvantaged by his injuries.  It is reasonable to estimate that his future monthly income should be around HK$22,000 had he not been injured.

36.  Future loss of earnings should be: -

HK$(22,000-12,750) x 12 x 10 = HK$1,110,000

37.  Loss of future MPF should be: -

HK$1,110,000 x 5% = HK$55,500

38.  I therefore award HK$1,165,500 under this head of claim.

V.  Loss of earning capacity

39.  With his disabilities, the plaintiff is clearly at a disadvantage in the labour market as a welder and I would award HK$76,500 (or equivalent of 6 month’s income) under this head.

VI.  Special damages

40.  The plaintiff is claiming HK$1,674 and HK$8,310 for reimbursement of medical and travel expenses respectively.  These are not unreasonable and should be allowed.

41.  I also allow HK$8,000 for the claim of tonic food.

VII.  Employees’ compensation

42.  The plaintiff shall give credit to the sum of HK$880,468.47 as employees’ compensation award by His Honour Judge S T Poon on 9 July 2010 under DCEC 703 of 2009.

VIII.  Interest

43.  Interest on PSLA is 2% per annum from date of writ to date of judgment (1.75 years), and is HK$16,625.

44.  Award on special damages (including pre-trial loss of earnings) is covered by the employees compensation so no interest is awarded.

IX.  Summary

45.  I summarise the above awards as follows:

	HK$
PSLA Interest	475,000 16,625
Pre-trial loss of earnings and MPF	799,701
Future loss of earnings and MPF	1,165,500
Loss of earning capacity	76,500
Medical expenses	1,674
Tonic food expenses	8,000
Travelling expenses	8,310
Less employees’ compensation	(880,468.47)
Total:	1,670,841.53

X.  Cost

46.  I also make an order nisi that the defendant shall pay the plaintiff’s costs of this action to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.