CHAN YUK LEE v. CHAN CHIU YING AND OTHERS

1985 No.A235

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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D E C I S I O N

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1. The Plaintiff Mr. Chan Yuk Lee was at the material time employed by the lst Defendant as a demolition worker.

2. On the 31/1/1982 at about 8.00 a.m. whilst working in an area in a building being demolished, the 1st Defendant fell through a hole in the upper floor and landed on the Plaintiff's head. The impact caused the first and second cervical vertebra to be fractured this being known as a Jefferson fracture or in layman's terms a broken neck.

3. The proceedings were brought against four defendants. Judgment was entered against the first and fourth defendants by default on the 1st August 1985 and against the 2nd and 3rd defendants after a lengthy hearing on the 20th March 1987 with damages to be assessed by a Master. All defendants were notified of this hearing for assessment of damages but none appeared at the hearing.

4. At the time of the accident in 1982 the Defendant was 57 years of age. He turned 63 in April of this year having been born in 1925. He has always worked in labouring type jobs first as a mason and then as a demolition worker. His wife lives in Singapore and he has two children. A daughter who is married and a son aged 14 years. He did remit money to them but has been unable to do so since the accident as he hasn't had enough money.

5. After the accident, he was admitted to the Kwong Wah Hospital where he remained for a total of 75 days. For 53 days he was placed in traction which meant he could hardly move at all. After 60 days he was able to walk. Approximately six months after discharge he had cramps and numbness in his hands and forearms as well as restricted movement in his neck.

6. He was once again admitted to hospital for approximately one month. During this admission he was offered surgery to fuse the base of the skull to the cervical spine. The Plaintiff refused this operation.

7. This is described by Dr. Ng as major major surgery and he agrees that the Plaintiff should not have the operation. The risks are high and the result doubtful. I take the view that the Plaintiff was justified in refusing the surgery offered.

8. I have considered the medical reports of Dr. Wedderburn and Dr. Ng Shi Hon who also gave evidence at the hearing. The Plaintiff is now left with the following disabilities -

(1) Pain over his neck and shoulder with limitation of neck movements.

(2) Intermittent numbness of his arms and hands.

(3) Weakness of his right hand and both lower limbs. He cannot now walk fast and feels tired easily.

9. These symptoms are permanent. Both Dr. Wedderburn and Dr. Ng are of the opinion that he definately cannot go back to doing his previous job. He is now only fit for a job such as a watchman, liftman or caretaker. Not only does he have the disabilities referred to but there is now a weakness in the neck. Any disruption could damage the spinal cord. There is therefore a real damage if he tried to do such a job again that he could be seriously injured.

10. Dr. Ng estimates his loss of earning capacity at 20% of the whole man.

11. Dr. Mao considers his impairment to be 14% of the whole man which is in line with Dr. Wedderburn's assessment.

12. Dr. Mao also says that it would be advisable for him to wear a cervical collar for the rest of his life because of the risk of damaging the spinal cord.

13. At the time of the accident in 1982 the Plaintiff was earning $170.00 per day. He tells me that this has increased now to $220.00 per day. Mr. Burke says that his information has it that indeed the increase is more than that. However, I accept these figures in estimating his pre-trial loss of earnings. The Plaintiff says prior to the accident he worked 27 days per month giving a monthly income of $4,590.00.

14. He was on sick leave to the 8th December 1982, a total of 10.25 months, so his loss of earnings in this period is $4,590.00 x 10.25 = $47,047.00. For the remainder of the period, namely, from 9/12/82 to date of this hearing, I take the figure of $5,265.00 per month which was the figure suggested to me by Mr. Burke who acted for the Plaintiff. This, is the median between $170.00 per day (i.e. $4,590.00 per month) and $220.00 per day (i.e. $5,940.00 per month). The total is 64.75 months.

15. From the 9th December 1982, on balance I consider that the Plaintiff could have obtained a watchman/caretaker type of job earning $1,400.00 per month rising to $1,900.00 per month.

The median is $1,650.00 per month.
The figure for this period of 64.75 months is therefore $5,265.00 - $1,650.00 = $3,615.00 x 64.75 months =	$234,071.25
Plus	$47,047.50
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Total pre-trial loss of earnings :	$281,118.75
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16. As to future loss of earnings the Plaintiff says he would have worked to age 68. Dr. Ng thought 65 years.

17. He is now 63 years of agenand apart from his disabilities is in good health.

18. I consider that the multiplier should be 3. I refer to a letter produced to me from the Labour Department. It would be difficult for him to obtain any job now as a caretaker/watchman because of his age. On balance I make no deduction from his future loss of earnings. The figure therefore is $5,940.00 x 36 = $213,840.00.

19. As to pain and suffering and loss of amenities, I was invited by Mr. Burke to award a figure of $72,500.00. 1 was referred to various authorities in support of this amount but the one most relied on was Lam Tak 129/82 an assessment by Master Betts where the Plaintiff suffered similar injuries to this man.

20. Under the heading of pain and suffering and loss of amenities the Plaintiff in that case was awarded $45,000.00,

21. Mr. Burke argued that with inflation since 1982 the figure should now be $72,500.00.

22. This Plaintiff was 57 years of age at time of accident. He had to undergo a long period of traction. He is now permanently disabled and has a weakness in his neck. It is advisable that he wear a cervical collar because of this weakness to his neck and the susceptibility to injury.

23. I fix the damages under this heading at $65,000.00.

24. The only other matters are items of special damage. They are -

Bonesetters fees	$500.00
Nourishing food	$1,200.00
Travelling expenses for outpatient treatment to hospital	$218.00
Travelling expenses to bonesetters	$20.00
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Total :	$1,938.00
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I allow all these.
The award therefore is :
General damages for pain and suffering and loss of amenities	$65,000.00
Pre-trial loss of earnings	$281,118.75
Future loss of earnings	$213,840.00
Other special damages	$1,938.00
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	$ 561,896.75
Less Employees Compensation paid	$23,064.27
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Total award:	$538,832.48
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25. Interest on the general damages at the rate of 2% from date of accident to date of this assessment. There will be no interest on future loss of damages but interest at 3.5% per annum on the other special damages.

26. The Defendants are ordered to pay the Plaintiff's costs of this assessment. The Plaintiff's own costs to be taxed under the Legal Aid Regulation.