SO YUK KAM v. LAU KAM YUEN t/a NGAI SHING CONSTRUCTION AND ANOTHER

HCPI5/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES Action no 5 of 2011

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

I. Background

1.  On 20 June 2006, the plaintiff then aged 42 sustained serious injuries to his shoulder when he fell off a raised platform that he was instructed to remove from a carpark in Yuen Long, New Territories.  He brought suit against both defendants in the District Court under DCPI No 1310 of 2009.

2.  By order of Master J Chow on 10 August 2010, interlocutory judgment on liability in favour of the plaintiff was entered against the 2^nd defendant with damages to be assessed and costs.  Leave was also granted to discontinue the action against the 1^st defendant.  The suit was eventually transferred to the High Court for determination.  The assessment of damages was unopposed by the liquidator of the 2^nd defendant.

II.  The Plaintiff’s Injuries and Treatment

3.  The plaintiff sustained a right shoulder dislocation with fracture and much associated pain and bruising to his face and knee.  He was taken to the A & E Department of North District Hospital (“NDH”).  He presented right shoulder squaring.  X-ray of the right shoulder confirmed dislocation with bone fracture fragment.  Reduction of the shoulder joint was performed and he was discharged with analgesics and an arm sling which he wore for over 6 weeks.

4.  Following discharge, the plaintiff attended out-patient follow up at NDH on a number of occasions until August 2006.

5.  On 20 June 2006, the plaintiff received his first occupational therapy at NDH.  The treatment encompassed right shoulder immobilizer, mobilization training for right upper limb, simulated work assessment and simulated work strength and endurance training.

6.  Assessment on 13 February 2007 determined that his physical condition and disability rendered him unsuitable to return to his previous work as a welder.  In all, to 23 July 2007, he underwent 42 sessions of occupational therapy.

7.  On 14 September 2006, the plaintiff was examined at the orthopaedic clinic of NDH.  The examination disclosed tenderness at the greater tuberosity of the right humerus, stiffness in the right shoulder with active abduction of up to 100 degrees and limitation from pain at the end range.  Impingement sign was positive.  X-ray of the shoulder revealed a congruent glenohumeral joint with a mal-united fracture at greater tuberosity.  He was treated conservatively with out-patient physiotherapy that began on 20 September 2006 and work rehabilitation and continued to attend regularly at the orthopaedic clinic of NDH.  He received a total of 47 sessions of physiotherapy until 22 June 2007 to reduce stiffness in the shoulder.

8.  The plaintiff was granted sick leave from the date of the accident to 21 September 2007.

III.  The Orthopaedic Expert

9.  The plaintiff was examined some 4 years after the accident by Dr. William Yuen (“Dr. Yuen”) on 25 June 2010.

10.  X-rays of both shoulders were taken.  They revealed that the fracture in greater tuberosity of the right humerus had healed but the union was not anatomical.  The right humeral head was not as smooth as the left and was more rugged and more prominent.  The space between the humeral head and the acromion was narrowed and thus compromised.

11.  Dr. Yuen opined that the plaintiff had sustained an avulsion fracture of his greater tuberosity on top of a dislocated shoulder.  In his view, fracture dislocation of shoulder was always associated with higher morbidity in terms of pain and stiffness, giving credence to the plaintiff’s complaints of residual pain and stiffness and inability to return to his pre-accident job of welder.

12.  Dr. Yuen further commented that the plaintiff’s rather severe residual pain, stiffness and weakness in the shoulder despite intensive rehabilitation was due to a combination of capsular scarring from the shoulder dislocation and impingement from the mal-united greater tuberosity.  The range of motion in the shoulder had decreased.  Dr. Yuen considered that the plaintiff would be unable to work with his right hand over his head.  As he is right hand dominant, he would have difficulty retrieving trunks from overhead lockers.  Although his right elbow and hand were unaffected, his overall ability to do manual work would be affected if he was required to raise his right hand to shoulder lever with an observed flexion range of just 100.  In his considered opinion, the plaintiff was unable to return to work as a welder which required heavy lifting and using a blow torch at an elevated angle for sustained periods.  Dr. Yuen recommended less physically demanding jobs such as street vendor of light goods, toll-collector and building janitor.

IV.  Pain, Suffering and Loss of Amenities

13.  It is plain on the uncontroverted medical evidence that the plaintiff now aged 49 has suffered a serious injury to his shoulder leaving him with a significant impairment, continual right shoulder pain and stiffness not entirely ameliorated by multiple sessions of physiotherapy and an inability to lift heavy objects.  He has lost his ability to return to work as a welder.

14.  In the Revised Statement of Damages, the plaintiff sought $400,000 as damages under this head of claim but the claim has been slightly increased to $450,000 at the hearing to reflect changes since the filing of that document.

15.  Mr. Sakhrani, counsel for the plaintiff referred to the Personal Injury Tables Hong Kong 2013 for serious injury awards that took into account the effects of price inflation between 1996 and 2012.  The range was from $462,000 to $623,000.  He also cited a number of decisions on quantum: Li Yuk-ching v Secretary for Justice (1998) HKLJ 444, Chung Chi Wing Secretary for Justice, unrep., HCPI 436/1997, Lee Lung Wah & ors. v Lau Kam Shun & anr., unrep., HCPI 1534/2000, Yu Pun Yuen v Ng Kwok Man & ors. [2003] 2 HKLRD F23 and Leung Kwun Chuen v Li Shing Kong t/a Lung Hint Design Decoration Co., unrep., HCPI 749/2011.  I have read these materials and remain fully aware that no two cases are alike.  At best, the decisions offer no more than guidance.

16.  Of the cases cited, Chung Chi Wing, supra is perhaps the most pertinent.  The plaintiff in that case sustained a very painful sprain to his right shoulder and underwent shoulder arthroscopy which revealed an impinged tendon.  He received decompression surgery and manipulation of shoulder joint under general anaesthesia because of severe joint stiffness.  He also attended 85 sessions of physiotherapy.  In July 1998, Suffiad J awarded $350,000 for PSLA.

17.  In the present circumstances, the sum of $450,000 now claimed seems entirely appropriate given the nature of the plaintiff’s injury and residual problems.  The plaintiff is accordingly entitled to an award in that amount under this head of claim.

V.  Loss of Earnings

18.  For some 16 years prior to the accident, the plaintiff worked as a welder, an occupation he can no longer pursue on account of his injury.  His evidence which I accept is that welding is labour intensive requiring physical fitness for heavy manual work, climbing scaffolds and carrying and lifting heavy metal structures.  Such tasks are now beyond him.

19.  Following the expiry of sick leave in September 2007, the plaintiff said he attempted to return to welding by contacting his former co-workers and contractors.  As they were aware of his injury, no referral or job opportunity was forthcoming.  His various attempts to find work as a construction site general worker, gardener, school janitor through the Labour Department, newspaper advertisements and his contacts were equally to no avail.  He was interviewed on a number of occasions but received no job offer.  All this was not surprising in view of his limited education, residual disability and age.

20.  Eventually, the plaintiff secured work as a security guard with Urban Property Management Limited in March 2009.  With allowance, his monthly income was $6,800.  In May 2011, with the implementation of statutory minimum wage, his average monthly salary increased to $7,361.25.

21.  When his security personnel permit expired in October 2011, he had to change to working as cleaning worker for Shun Wah Contracting Company Limited on a temporary basis. His earning for that month fell to $5,775.  The plaintiff’s post accident employment can additionally be seen in the Inland Revenue Department statement at page 114 of the assessment bundle.

22.  With renewal of his security permit in November 2011, the plaintiff was able to return to work as a security guard with Well Born Real Estate Management Limited.  His monthly salary was $8,510.13.  He readily accepts that as of 1 May 2013 he will benefit from the increase in the statutory minimum hourly wage to $30.

23.  At the time of the accident, the plaintiff was earning $700 a day as an experienced welder.  On average he worked a 26-day month and therefore was taking home $18,200 a month.  In the ensuing Employees Compensation Case under DCED No 30 of 2009, his pre-accident earnings as he described went unchallenged and was accepted by Yung DJ as $18,200 per month when giving judgment against the 2^nd defendant.  As counsel submitted on the authority of Wan Chuen Hoi v Wing Shun Engineering Transportation Limited, unrep., HCPI 530/2008, I agree that the matter is now covered by an issue estoppel.

24.  According to the February 2013 statistics from the Census and Statistics Department, a general welder engaged in public sector construction projects can command a monthly average income of $1,052.50.  On the basis of a 26-day working month, but for the accident, the plaintiff would have a current notional salary of $27,365 per month.

25.  As submitted by Mr. Sakhrani (with which I entirely agree), the plaintiff’s past loss of earnings including MPF may be calculated thus:

[($18,200 + $27,365) ÷ 2 x 105% x 83 months] – $277,797 (total from IRD statement, supra) – $96,619 (earnings from 1.4.2012 – 30.3.2013) – $8,632 (being his notional salary for April 2013) = $1,602,447.

26.  I therefore assess loss of earnings with MPF factored in in the sum of $1,602,447.

VI.  Loss of Future Earnings including MPF

27.  But for the accident, the plaintiff previously fully able-bodied and enjoying reasonably good health would in all probability have worked as a welder until about the age of 65.  That represents an additional 16 years of gainful working life given his age of 49 at the time of the assessment hearing.

28.  Adopting a discount rate of 2.5% over 16 years, counsel submitted that the appropriate multiplier is 13.22 by reference to the Actuarial Table 38.  I agree.

29.  I assess the plaintiff’s future loss of earnings and MPF as follows:

($27,365 – $8,632) x 105% x 12 x 13.22 = $3,120,393

30.  He is accordingly awarded this sum as damages under this head of claim.

VII.  Loss of Earning Capacity

31.  An award for such loss is warranted as there is credible evidence that the plaintiff faces a real risk of being disadvantaged in the labour market before the end of his natural working life having regard to the significant residual pain and stiffness of the right shoulder: see Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, and Chan Wai Tong v Li Ping Sum [1985] HKLR 176.

32.  I award the plaintiff the sum of $100,000.

VIII.  Special Damages

33.  The plaintiff additionally claims $5,000 for tonic and nutritious foods during convalescence, $1,000 for travelling expenses on hospital and treatment visits and medical expenses of $710.  These reasonable expenses come to $6,710.  They are allowed in full.

IX.  Future Medical Expenses

34.  The plaintiff admitted that the doctors at NDH had previously recommended surgery which he had refused.  Dr. Yuen has advised him to undergo subacromial decompression surgery to improve the range of movement and to lessen pain.  The procedure would not return his shoulder to normal but to about 80% of its pre-injury state.

35.  The plaintiff testified that he is now amenable to undergoing further operation.  This would entail medical costs of $100,000, physiotherapy of $72,000 and loss of earnings for about 6 months for treatment and recovery. The loss of earnings would amount to $51,660 ($8,200 x 105% x 6).  In all, a total of $223,660 is sought.

36.  The sum claimed is reasonable and would be allowed in full.

X.  Summary of Awards

(A) Pain, Suffering and Loss of Amenities	$450,000
(B) Loss of Earnings	$1,602,447
(C) Loss of Future Earnings	$3,120,393
(D) Loss of Earning Capacity	$100,000
(E) Special Damages	$6,710
(F) Future Medical Expenses	$223,660
Total Damages	$5,503,210

37.  Counsel urged that the ECC award of $277,143 made by Yung DJ below ought not to be deducted from the damages assessed and payable in these proceedings as the sum was not paid and is now the subject of other litigation in the District Court.  I am prepared to accede to such a request, unusual though it may be.

XI.  Conclusion

38.  There shall be judgment in the sum of $5,503,210 with interest at 2% p.a. on the award for PSLA from the date of the service of the writ until the date of judgment and interest at half the judgment rate from the date of the accident until the date of judgment on special damages.

39.  The plaintiff shall have his costs of the assessment including any costs reserved in respect thereof with certificate for counsel, taxed if not agreed. His own costs shall be taxed in accordance with the Legal Aid Regulations.