WONG SHU KEUNG v. KAM LUEN CONSOLIDATOR LTD AND ANOTHER

HCPI 686/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 686 OF 2010

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ASSESSMENT OF DAMAGES

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Introduction

1. This is an assessment of damages of injuries brought by the Plaintiff against his employer.

Preliminary matter

2. About one week before the assessment, the insurer of the employer took out a very late application of joinder.  Briefly, Mr Reeves (the matter was later taken up by Mr Lai at the examination of the Plaintiff), solicitor for the insurer, said that the employer had no substantive representation in the proceedings.  Although the insurer had repudiated the policy, the insurer might be required to pay directly to the Plaintiff.  As an interested party, the insurer therefore applied to join in.

3. Mr Wong, Counsel for the Plaintiff, opposed the application for, among other reasons, the insurer did not agree to be submitted to the result of the assessment. On the other hand, Mr Lee, solicitor for the employer, did not object the same.  After hearing from the parties, with reluctance, I allowed the application and made the insurer the 2^nd Defendant of the proceedings with costs reserved.

(a)   Mr Lee agreed that he had not taken active steps in defending the proceedings due to instructions.  No Answer was filed to deal with the Plaintiff’s (Re-Revised) Statement of Damages.  Mr Lee would continue more or less the same stance in the assessment.

(b)   Parties agreed that the bottom line was to assess a reasonable amount of damages payable to the Plaintiff.

(c)   Allowing the solicitor of the insurer to take part in cross-examination of the Plaintiff and making submissions, and without permitting him to adduce any new evidence including an Answer, should put me into a better position to achieve (b).

(d)   Last but not least, the assessment would not be adjourned or left part-heard.

Background

4. The Plaintiff was born on 30 March 1960 in China.  He was educated there until secondary 3.  He then became a carpenter until his arrival in Hong Kong in 1997.  Thereafter, he worked as a causal worker in construction sites.

5. He is married. They have 3 daughters, aged 17, 4, and 2 respectively.

6. Commencing from 1 January 2010, the Plaintiff started to work for the 1^st Defendant.  However, he was injured at work on 11 March 2010.

7. He was taken to the North District Hospital.  Its A & E Department stated in the report of 20 October 2010 that:

“…

The symptoms were:

Fell from height of 10 feet and resulted in bilateral hip pain as recorded by Dr Lui on clinical record. But he claimed that the actual history was that he was hit by a falling steel board when he attended orthopaedic follow up clinic on 22/4/10.

The examination and investigation findings were:

General condition was serious.

BP 140/91 mmHg, Pulse 96/min, …, Temperature 36.6°C.

Abrasion would ~3cm over right shin and left side of face.  Laceration would ~2cm over left knee.  Both hips were irritable. No sensory loss was noted.  Chest was clear without chest wall tenderness. Abdomen was soft and not tender.

XR showed right trochanteric fracture of femur with dislocated left hip.

CXR, SXR, XR pelvis, whole spine, left knee and right leg showed no fracture.

The provisional diagnosis was

Fracture of right femur with dislocated left hip.

…”

8. O & T Department of the same hospital also prepared 2 reports for the Plaintiff.

(a)   “…

Urgent close reduction of left hip and right dynamic hip screw were performed on the same day.  The post-operative course was uneventful.  Full weight bearing walking was advised.  He was transferred to Tai Po Hospital for rehabilitation.

…

  The latest follow-up was on 18 May 2010.  There was much less hip pain.  He was walking with a pair of crutches.  Both hips were not irritable.  The x-rays revealed good alignment and fracture healing.  He will be reassessed in June 2010.  His current condition was not stable for medical assessment.”

   (Report dated 10 June 2010)

(b) “…

On 7 September 2010, the above Mr Wong was first seen again at our outpatient clinic.  The pain severity was rather static.  With a stick, his walking tolerance was around 15 minutes only.  Physiotherapy was stopped.

His latest appointment was on 28 February 2011.  He was able to walk without a stick.  However the tolerance was still around 15 minutes.  Despite static residual pain, he did not need regular analgesics.  Newly taken radiographs showed that the fracture at right proximal femur had healed.

His next outpatient appointment is on 29 August 2011.

…”   

  (Report dated 20 July 2011)

9. The Plaintiff received physiotherapy treatment of about 30 sessions in Tai Po Hospital from 24 March 2010 to 9 April 2010.  Then, he was transferred to Pok Oi Hospital to continue the treatment.  The report dated 10 September 2011 states that:

“…

Mr Wong had received a total of 45 treatment sessions since 4May 2010. Physiotherapy treatments given included hot pack, magnetic therapy, cycling exercise, stepping exercise to right lower limbs. Upon discharge on 13 April 2011, Mr Wong claimed he had overall 60% improvement subjectively. The detailed objective assessment of his right leg on 13 April 2011 was as follows:

Physiological movement of right hip	Active range of movement	Muscle power
Flexion	115°	Grade 5/5
Extension	Full	Grade 5/5
Abduction	Full	Grade 5/5

Gait

walked unaided

”

10. On 9 June 2010, the Plaintiff commenced his EC claim in the District Court.  Further, he started the present claim in the High Court for his common law damages.  The former proceedings have been stayed pending the determination of the latter.

11. Parties appeared before me on 10 April 2013.  Upon hearing from them, I reserved my assessment to be handed down.  In the meantime, I also requested parties to assist me by lodging and serving their skeleton closing submissions.  They all duly complied with the directions.

Agreement

12. In the middle of the hearing, parties helpfully agreed the following heads of claim:

	$
(a)  PSLA	500,000
(b)  Pre-trial expenses (special damages)	40,000
(c)  Post-trial (future) expenses	60,000
	______________
	600,000
	============

Disagreement

13. Hence, they left 3 items to be assessed by the Court, namely, the pre-trial loss of earnings & MPF, post-trial loss of earnings & MPF and loss of earning capacity.

14. To determine the disagreed items among the parties, it is necessary to find, among others (on balance) the appropriate/reasonable period of sick leave that the Plaintiff should take as well as his monthly income before the accident.  In turn, they depend on the assessment of medical evidence and credibility of the Plaintiff testified at the hearing.

Medical evidence: general

15. As usual, all the government reports, including those citied hereinbefore, came before the Court as agreed evidence.  On the other hand, through leave having been granted, the 1^st Defendant did not adduce any expert evidence.  As for the Plaintiff, he has adduced 3 expert reports:

(a)   Orthopaedic expert, Dr Wong;

(b)   Neurological expert, Dr Choa; and

(c)   Dental (Oral and maxillofacial) expert, Dr Chow.

16. Dr Wong said in his report of 14 December 2011:

“Comments

Diagnosis and causation

79. According to Mr Wong, he was a welding worker. While he was working on 11 March 2010, he was hit by a falling metal, he sustained injuries to his head, both hips and left knee.

80. …

81. It is my opinion that Mr Wong sustained the following injuries:

¨ Trochanteric fracture of right femur.

¨ Dislocation of left hip.

¨ Fracture left zygoma.

¨ Abrasion over left side of face, right shin and left knee.

82. According to the medical reports, Mr Wong initially claimed that he fell from about 5 metres and sustained the injuries.

83. It is my opinion that the injuries were compatible with either mode of accident.

…

Working capacity

99. Mr Wong will not be able to resume his pre-accident occupation as a welding worker which demands prolonged weight bearing and squatting, lifting and carrying.

100. He is suitable for sedentary occupations such as cashier or theatre ticketing staff.

Sick leave

101. Mr Wong was recommended sick leave from 11 March 2010 to 28 November 2011 for the injuries. The recommendation was appropriate.

102. He needs another two months for recovery of his implant removal surgery.

…”

17. Dr Choa opined in his report dated 20 April 2012:

“ 6.1.In the accident of March 2010, Wong Shu Keung sustained severe bony injuries to his right leg and minor injuries elsewhere, including a minor head injury. There was no loss of consciousness, no post-traumatic amnesia and no focal neurological deficit. …

6.2.Nevertheless, Wong has been left with persistent left temporal headaches that affect him up to three times a week, sometimes associated with light-headedness. This is a post-traumatic headache analogous to the post-concussion syndrome.

6.3.There is no cure for this type of headache but the natural history is that such headaches gradually improve with time.  In the meantime, Wong would benefit from taking his painkillers regularly instead of on demand.  If this does not work, preventative treatment can be tried.”

18. Finally, on 16 May 2012, Dr Chow concluded that:

“…

In the Oral & Maxillofacial aspects there was left zygomatic arch fracture. The bone healing is satisfactory without visible deformity of the malar region and no neurosensory deficit over the left infra-orbital area. The headache is irrelevant to the previous zygoma fracture. A neurologist should be consulted on this aspect.

From Oral & Maxillofacial point of view, there is no loss of earning capacity and the whole person impairment is 0%.  No further treatment is indicated in this aspect.”

Appropriate period of sick leave

19. The Plaintiff was given sick leave by the government doctors from the accident to 30 June 2013 (37 months roughly).  Mr Wong therefore said that his client should be entitled to loss of pre-trial earnings for such period.  Mr Lee made no submission in this respect.  However, Mr Tai argued that 21 months was the appropriate period.

20. Though being handicapped by the lack of medical evidence for the Defence, Mr Tai in his closing submissions led the Court to go through those of the Plaintiff in a chronological manner.  He attempted to demonstrate that the Plaintiff had been recovered well after the accident, operation and treatments.  Further, by comparing the respective active range of movement on 13 April 2011 (before Tai Po Hospital: 115 degrees was measured) and 15 November 2011 (before Dr Wong: only 100 degree was taken), it showed that the Plaintiff was underperformed. Finally, the permanent disability assessment by Dr Wong upon the Plaintiff was criticized because the doctor mentioned the risk of avascular necrosis. However, there was no evidence of such likelihood.  The doctor also failed to provide for the assessment if the risk would not be materialized.

21. Upon consideration, I have decided to refuse the submission of the 2^nd Defendant.

(a)   The medical evidences adduced by the Plaintiff are either agreed or not challenged. 

(b)   It is trite law that this Court is not bound to agree on the period of sick leave granted by doctors.  At the end of the day, it is a matter of weighing all evidence before the Court.

(c)   Underperformance is serious allegation.  It cannot be substantiated without evidence or sufficient evidence.  Exact scientific measurement may be affected by a number of different factors.  A difference of 15 degrees in 7 months’ time is far from sufficient to support Mr Tai’s proposition.

(d)   As to the criticism on Dr Wong’s assessment on the permanent disability of the Plaintiff, I agree with Mr Wong in his closing submission.  Such comment is neither fair to the Plaintiff nor to Dr Wong.

“10. Firstly the Plaintiff has never pitched his case on the complication of avascular necrosis, other the claim for hip replacement will ensue. More importantly, it does not do any justice to Dr Jack Wong who actually gives two set of figures, one based on no avascular necrosis and the other set with the development of avascular necrosis.

“105. If Mr Wong recovers uneventfully from the implant removal surgery, according to the Guides, he has the following impairments:

¨ Dislocation of left hip joint without avascular necrosis: 10% lower extremity impairment (LEI); if avascular necrosis: 16% LEI.

¨ Trochanteric fracture of right femur with moderate motion of deficit and mal-alignment: 16% LEI.

106. …

107.  Mr Wong suffers from 20% loss of earning capacity (23% if svsacular necrosis occurs)”

…”

22. Hence, on balance, I agree to accept that the sick leaves of about 37 months granted to the Plaintiff by the government doctors are appropriate in the circumstances.

Plaintiff’s income before the accident

23. It is the Plaintiff’s case that he was earning an average of $13,000 per month prior to the accident.  Such sum is provided on the basis of a daily wages of $500 as well as working for 26 days in a month.

24. The 1^st Defendant (as the employer of the Plaintiff) reported to the Labour Department (as per the usual Form 2) on 15 March 2010 that he did pay such sum together with MPF, to the Plaintiff.  Mr Wong further added that it was the basis in which period payment in EC case was made, and the 1^st Defendant paid the same to the Plaintiff accordingly.

25. Despite the above, as well as the fact that the 1^st Defendant has decided not to file any answer to the (Re-Revised) Statement of Damages, Mr Lee purported to adopt the stance of the 2^nd Defendant to the effort that the Plaintiff could not show a track record of 26 working days on a long term, year by year.

26. Mr Tai cross-examined the Plaintiff.  From such evidence, the 2^nd Defendant attempted to establish that the Plaintiff had an unstable employment before the accident.  The Plaintiff was not a normal construction worker.  He was also very hesitant in confirming whether he was unemployed and had to live on social security in the past.  Further,

“The court has frequently acknowledged the reality that a normal construction worker tends to work 22 days a month.

Ho Yuk Sim DCEC 778/2010 2013 judgment.

Electric wiring worker. 22 days.

Kwong Kin Yin HCPI 285/2008 2011 judgment.

Construction worker. 22 days.

Ko Kam Wai HCPI 292.2005 2006 judgment.

Decoration worker. 20 days.

Siu Leong Ching HCPI70/2003 2004 judgment.

Scaffolding worker. 20 days.

Lai Kwan Ming HCPI 765/2000 2001 judgment.

   Carpenter 22 days.”

  (Paragraph 19 of Mr Tai’s closing submission)

The 2^nd Defendant proposed this Court to adopt a figure of $8,000 ($500 x say 16 days).

27. Upon thought, on balance, I have decided to accept the case of the Plaintiff. There is no contradictory evidence adduced by the Defence.  The only written evidence produced by the 1^st Defendant in fact supports the case of the Plaintiff.  No doubt, under the skillful cross-examination of Mr Tai, including a number of questions going to the dispute between the Defendants themselves, the Plaintiff appeared to be hesitated in some of his answers. However, it is insufficient to turn him into an unreliable witness and allow me to reject his case on balance.  The “comparables” referred to by the 2^nd Defendant cannot help it as they are not evidence.  This Court has to view it with care because each case will depend on its own facts.

28. I now move to assessment of the disputed items among the parties.

Pre-trial loss of earnings & MPF

29. As a result of the above rulings, the Plaintiff in entitled to the sum of $423,150 ($13,000 x 31months x 1.05).

Loss of earning capacity

30. As to loss of earning capacity, Mr Lee made no submission.  Mr Tai agreed the sum of $100,000 if there would be no award for post-trial loss of earnings.  Mr Wong asked for $106,788 ($8,899 x 12months).  In light of the age of the Plaintiff and the fact that I will be awarding him post-trial loss of earnings, a period of 6 months is sufficient to compensate the disadvantage in labour market the Plaintiff will suffer in the rest of his working life. Hence, it will be in the sum of $53,394.

Post-trial loss of earnings & MPF

31. Mr Wong advocated that, due to inflation, the daily wage of the Plaintiff would rise to $600.  The Plaintiff also conceded that he would be able to get a job with light duty, like security guard who earned about $8,899 according to government statistics.  I respectfully accept such propositions.

32. Mr Wong and Mr Tai had a narrow dispute as to the multiplier to be applied.  The former said “7” when the latter argued “6”.  I prefer the view of Mr Wong.  The authority of Lam Chan Hung v. Hang Yue Engineering Limited & Others (Judgment of the Hon Bharwaney, dated 12 March 2013) is a good comparable.

33. I therefore will award the Plaintiff the sum of $591,028 (($15,600 -$8,899) x12 x 7 x 1.05).

Summary

34. To sum up, I will award the Plaintiff:

			$
(a)	PSLA		500,000
(b)	Pre-trial loss of earnings & MPF		423,150
(c)	Loss of earning capacity		53,394
(d)	Post-trial loss of earnings & MPF		591,028
(e)	Pre-trial expenses		40,000
(f)	Post-trial expenses		60,000
			1,667,572
	Less: advanced payment		263,500
			1,404,072

Interest

35. For general damages, interest will be calculated at the rate of 2% p.a. from the date of writ until today.  As to special damages, there will be interest at half of the judgment rate from the date of accident to the date hereof.

Costs

36.  Costs usually follow the event.  There appears to be no reason to depart from such general principle.  I therefore make an order nisi that:

(a)   The 1^st Defendant do pay the Plaintiff cost of assessment, including all costs reserved (apart from the joinder application), and half of the costs for the hearing on 10 April 2013 (including certificate for counsel), to be taxed if not agreed.

(b)   The 2^nd Defendant do also pay the Plaintiff:

(i)  Costs of the joinder application, and

(ii)  Half of the costs of the hearing on 10 April 2013 (including certificate for counsel), to be taxed if not agreed.

(c)   The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.