LIU ZHIHUI v. HSIN CHONG CONSTRUCTION (ASIA) LIMITED

1994, No.A3340

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an appeal by the Defendant against an award for interim payment made by the Master in respect of the Plaintiff's claim that arose out of an industrial accident that occurred some time in April 1991, some five years ago.

2. This is a rather simple and straightforward case. It is regrettable that two years has gone by and no application for setting down has yet been taken out by the Plaintiff. If the parties have been acting expeditiously, this case ought to have been tried already by now.

3. The Plaintiff was asked by his supervisor to remove an obstruction, i.e. a long wooden pole weighing something like 150 lbs, from the top of a pile of concrete aggregates in order to clear the space for a lift to be placed thereon for the Plaintiff to work on. That was necessitated by the fact that the workshop that ought to have been assigned for doing such repair work was filled with materials and other articles, leaving no sufficient space for the job to be performed by the Plaintiff there. The Plaintiff was assisted by another co-worker and in the course of removing this object, the Plaintiff slipped and sprained his left ankle. He was taken to the hospital the following day and found to have suffered soft tissue injury. He then was granted sick leave until the 13 May. Thereafter, he, of his own volition, terminated his employment with the Defendant and went back to Mainland China to pursue medical treatment there. According to the documentary evidence he supplied, he received regular treatment at the Li Wan Hospital in Guangzhou. First at a frequency of a treatment per day, and then at less frequency of a treatment every two to three days. This treatment lasted, I believe, until November 1992.

4. The Plaintiff was in Hong Kong under a two-year overseas labour contract with the Defendant that commenced in March 1991. But for the accident, his contract with the Defendant would have ended some time in February/March 1993. The Plaintiff claimed that he was not able to work after the injury until he found alternative employment also as a mechanic in a packing factory.

5. In this application for interim payment, the Plaintiff is claiming for three items of damages only. Firstly, for pain and suffering and loss of amenities; secondly for past loss of earnings, i.e. the 21 months between April 1991 and January 1993 and; thirdly for handicap in the labour market. The Master awarded $90,000 as interim payment to the Plaintiff and against this award the Defendant is now appealing.

6. I am wholly satisfied the Plaintiff had made out a good claim that he will obtain judgment at the trial against the Defendant. The Defendant is alleging contributory negligence against the Plaintiff. I am not satisfied at all there is any likelihood that such allegation of contributory negligence will succeed at the trial to reduce the liability of the Defendant. The pleadings of the Defendant failed to reveal any particulars of the allegation of contributory negligence, and Mr Shum was only able to refer to one particular during the course of his submission; and, that is, that the Plaintiff ought to have synchronized his pace with his co-worker so that he would walk carefully, and keep his balance and not slip. I find such allegation difficult to understand in the circumstances of the case and I am not satisfied at all that this allegation would stand any chance of success at the trial. So for the purpose of this application, I shall ignore any alleged contributory negligence raised by the Defendant. I am satisfied that the Plaintiff had made out a case that he will obtain judgment.

7. The next issue is of course what amounts to order in the interim. There is little authority on the likely amount of damages that will be awarded to a sprained ankle of this nature. I was referred to the case ofWong Sum-mei, a case concerning a fracture limb where an award of $50,000 was made back in March 1995 before the various categories of injuries were raised by the Court of Appeal. Taking into account the increase in damages that would be awarded since the Court of Appeal decision and the element of inflation, I am of the view that an amount of $40,000 would not, by any stretch of imagination, be an over-payment for damages for pain and suffering and loss of amenity.

8. As to the loss of earnings, I agree with Mr Shum that there is a lacuna in the evidence, that I do not have evidence from the Plaintiff at all as to whether he earned any sort of income during the 21 months in question. Medical evidence certainly showed that he was not capable of doing any job that he could have been doing in Hong Kong but for the accident. But, that of course cannot eliminate the possibility of lesser kind of job, for example sedentary sort of job which he could still have pursued in China that would bring him some income. But that deficiency in the Plaintiff's evidence should not, in my view, deprive him of his right to ask for interim payment for a sum at this stage.

9. I am quite satisfied from the evidence before me that an amount of $2,000 loss per month for those 21 months (all within the contractual period of his employment but for the accident) would be the minimum amount recoverable by the Plaintiff, and I say that for the following reasons. There is evidence before me that before he came to Hong Kong, the Plaintiff could only have earned RMB1,700 per month; and after the accident, he earned RMB400 to RMB500, something like four/five years after the accident. So that would give us an idea of the sort of rate of earnings one could have made in Mainland China by a person like the Plaintiff. That of course is a far cry from the $5,200 he was earning prior to the accident in Hong Kong. Also we do have the medical evidence that he was receiving daily treatment for several months, and then less frequent treatments for another several months until November 1992. On the basis of that, I am quite satisfied that $2,000 loss of earnings per month would be the minimum which the Plaintiff would be able to recover from the Defendant; and there will be no risk of over-payment on that basis. That would make a total of something like $82,000 so far.

10. As far as the handicap in labour market is concerned, I agree that there is no recent medical report to throw any light on the current medical condition of the Plaintiff. That would make it very difficult for the Court to come to any sort of conclusion at all on the handicap in labour market as that would depend solely on the current condition of the Plaintiff.

11. However, the Plaintiff of course is also claiming other items of special damages and that would add up to over $10,000. So if one add everything together, the $90,000 award made by the Master would be a very safe award to make in the circumstances of this case and I am satisfied that there will be no risk of over-payment to the Plaintiff if an interim payment of $90,000 was to be made even taking into account the employment compensation award which ought to be deducted, and that is in the sum of slightly less than $6,000.

12. For the reasons given, the award of the Master is confirmed and the appeal is dismissed.