LEE PING FOON v. LI HOI t/a HOI TAT CONSTRUCTION & DECORATION ENGINEERING

1997, NO. PI-541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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Assessment of Damages

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1. The Plaintiff was a carpenter by profession. On 23.1.1995, he was employed by the Defendant to work at Flats A-B 3/F. No. 16 Victory Lane, Mongkok, Kowloon. At about 2:15 p.m. that day, he was hitting a steel nail into the ceiling beam with a hammer when the nail head broke. He was not wearing any safety goggles and the nail head struck his left eye, resulting in a large corneal laceration.

2. The Writ herein was filed on 9.5.1997 whereby the Plaintiff claimed against the Defendant for damages in breach of statutory duty, breach of employment contract and negligence. It is common ground that the Defendant had not taken out any insurance policy covering the Plaintiff's employment nor the work to be undertaken at the site in question. The Defendant filed no defence in this case. Interlocutory judgment was entered against him on 19.6.1997 for damages to be assessed and costs.

3. The medical reports and records, receipts for medical expenses and employee's compensation records were produced at the assessment. The Plaintiff also gave evidence. The Defendant adduced no evidence.

4. The Plaintiff stated that he was 55 at the time of the accident and is now aged 57. He had only been working for the Defendant for 12 days before the accident occurred. He was paid $620 a day by the Defendant and he worked 26 days a month on average. In addition, he worked occasionally for other fellow tradesmen or friends in the evenings to obtain extra income. He said he worked between 8 to 12 evenings a month with between half to one and a half sessions every evening.

5. The medical reports show that, after the accident, the Plaintiff was admitted to Queen Elizabeth Hospital ("QEH") and later transferred to the Hong Kong Eye Hospital ("the Eye Hospital") for preliminary examination. He was then sent back to QEH for an operation to repair the lacerated wound and to reposition and suture back the corneal tissue. He was hospitalised from 23.1.1995 to 25.1.1995. As his wound was still leaking, he had a second operation on 6.2.1995 for a conjunctival flap to be done. He was then found to have a traumatic cataract so that a third operation for left cataract extraction was performed on 27.2.1995. He stayed in Buddhist Hospital for convalescence and was only discharged on 10.3.1995. Thereafter, he attended follow up treatment at the Eye Hospital until now. He had been granted sick leave from 23.1.1995 to 9.1.1996.

6. According to the Plaintiff, he had a typhoid fever as a small boy, as a result of which, he has poor vision in his right eye since childhood. The medical reports show that the right eye had no light perception and it was totally blind. The Plaintiff therefore used to rely on his left eye. He stated that he enjoyed good eye sight in his left eye and he could work as good as any other decoration worker. The Plaintiff now complains of pain watering and photophobia in the left eye. It is also sensitive to wind. He can barely see and can at best make out a blurred outline of the objects in front of him. He has not been working since the accident.

7. Employee compensation in the amount of $1,324,119.62 was awarded to the Plaintiff on 21.2.1997. The Plaintiff stated that he had received only $16,053 from the Defendant with the balance remaining outstanding.

Pain Suffering and Loss of Amenities ("PSLA")

8. The Plaintiff was hospitalised for nearly 5 weeks in total and had undergone 3 eye operations. He was granted approximately 11-1/2 months sick leave. He is now virtually unable to see.

9. Miss Lee submitted that the Plaintiff's injuries fall within the "substantial injury" category in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. This is because the Plaintiff was initially a left eyed man and the accident had effectively left him a totally blind man. Relying on the English case of Welch v. Albright & Wilson Ltd. digested in Butterworths Personal Injuries Litigation Service I/21 and the English authority of Guidelines for the Assessment of General Damages in Personal Injury Cases 3rd Edition at pp.10-11 & 33-34, it was contended that there should be upward adjustment to reflect the more serious consequences of the loss of vision of one eye on this Plaintiff, who was already an one eyed man.

10. I was also referred to several other cases for reference and comparison cases. In my view, the cases of Fong Pak Lam v. Chan Tai t/a Tai Yuen [1987] HKCL E33, Chan Kwok Ping v. Hop Yick Engineering Co. & Anr. [1997] HKLRD E39, Ho Yam Pan v. Tse Tak Ming t/a Ken's Co. [1997] HKLRD E32 and Wong Wan Tak v Suen Yiu Pan t/a Chiu Kee Saw Mill & Anr. [1991] 2 HKC 63 provide comparable cases in that the nature and extent of the injuries sustained therein are similar to those of the Plaintiff here. In all these cases, the awards made fall within the category of "serious injury". I do not consider the case of Au Leung v. Yip Yim Choi [1985] HKCL A42, in which an award within the "substantial injury" was made, to be an appropriate comparable as the injuries involved were much more serious than that of the present Plaintiff.

11. Considering the authorities cited, I agree that the Plaintiff's injuries should come within the category of "serious injury" since the Plaintiff was left with "a disability which mars his general activities and enjoyment of life". I also accept that there should be an upward adjustment in the award to reflect the graver consequences, hence the greater sufferings suffered by the Plaintiff, of the loss of the only remaining good eye. I will place the Plaintiff's PSLA at the upper end of the "serious injury" category. The range for this category had been revised to between $400,000 and $540,000 in Leung On v. Chan Pui Ki Civ. App. 263 of 1995. Taking into account inflation at about 10% since the delivery of the Court of Appeal judgment in July 1996 to the date of assessment, the award to be made under this head is $600,000.

Loss of Earnings / Earning Capacity

(1) Pre-trial Loss of Earnings

12. At the time of the accident, the Plaintiff was paid $620 a day by the Defendant and he worked 26 days a month on average, giving a monthly income of $16,120. In addition, he also occasionally took up extra work for others in the evenings. Taking 9 evenings as an average, the extra work would yield $5,580 per month (i.e. $620 x 9). The total monthly earning was therefore $21,700 (i.e. $16,120 + $5,580).

13. On the basis of a 10% annual rise, the total monthly earnings would have risen to $26,257 at the hearing for assessment of damages (i.e. $21,700 x 1.1 x 1.1). The median income for the pre-trial period is therefore $23,978.50 (i.e. 1/2 x ($21,700 + $26,257)).

14. The pre-trial loss of earnings from the date of accident on 32.1.1995 to the date of the assessment on 16.1.1997 is : $23,978.50 x 35 months = $839,247.50.

(2) Loss of Future Earnings

15. Doctor Paul Cheung, who examined the Plaintiff in May 1997, considered him to have suffered a 95% disability in his left eye, which is in addition to the 100% disability in the right eye already sustained. The loss of earning capacity was assessed at 95%. Doctor Cheung also observed that the disability of the left eye may be reduced to 70% to 80% by a future surgery at the cost of about $65,000. In the doctor's opinion, the chance of the Plaintiff getting any job is very slim and the kind of job that he can manage is also very limited, such as telephone operator and masseur. In my judgment, before the Plaintiff can take up the type of employment indicated by the doctor, he will have to undergo some training. Given that he is now aged 57, it is unlikely that employers are prepared to offer such training and employment to him. Adopting a pragmatic approach, I will assess the Plaintiff's future loss of earnings on a 100% basis.

16. The Plaintiff was born in 1940 and was aged 55 at the accident. Miss Lee submitted that 5 would be an appropriate multiplier. For that purpose, she referred me to several authorities. In the cases of Au Leung v. Yip Yim Choi, supra, Law Hing v. Leung Tin Kan & Anr. [1989] HKLD A33 and Li Yuen Hung v. Yau Yuk Lan [1996] HKLD 663-664, the Plaintiffs were all manual labourers aged 57 at the time of the trial or assessment and multipliers of 4 and 5 were adopted for calculating the future loss of earnings.

17. I consider that it is reasonable to expect that, but for the accident, the Plaintiff would have continued working for some time as a carpenter. However, in view of the condition in his right eye, it is probable that he would have to give up working earlier than his fellow tradesmen. A multiplier of 4 will be appropriate in the circumstances for calculating the future loss of earnings.

18. The future loss of earnings is therefore assessed at : $26,257 x 12 months x 4 = $1,260,336.

(3) Loss of Earning Capacity

19. As the Plaintiff has been awarded loss of future earnings on a 100% basis, Miss Lee very fairly and rightly did not pursue this head of claim.

Other Special Damages

20. The claims under this head comprise medical expenses, travelling expenses and costs of tonic food. The hospital charges and the outpatient follow up treatment expenses were supported by receipts. The travelling expenses for attending the treatment, though not borne out by receipts, were of a reasonable amount. As for the tonic food consumed, the Plaintiff's evidence in Court is that he had spent about $2,000 to $3,000 on this. He is therefore to be awarded $2,500 for the purchase and consumption of tonic food.

21. The amount of special damages to be recovered is as follows :-

(1)	Hospital charges	$2,345
(2)	Outpatient follow up treatment	$ 80
(3)	Travelling expenses	$ 800
(4)	Tonic food	$2,500
	Total :	$5,725

Conclusion

22. The total sum awarded is therefore $1,381,188.88, the breakdown of which appears as below :-

Special Damages
Pre-trial loss of earnings	$ 839,247.50
Other special damages	$ 5,725.00	$ 844,972.50

Plus :

General Damages
Pain suffering & loss of amenities	$ 600,000.00
Loss of future earnings	$1,260,336.00	$1,860,336.00

Less :

Deduction
Employees' Compensation Award		$1,324,119.62
		$1,381,188.88
	rounded up to	$1,381,189.

23. There will also be interest on the special damage at the rate of 5.84% p.a. from the date of the accident to the date of the assessment and on general damages at 2% p.a. from the date of the Writ to the date of the assessment.

24. I also make an order nisi that the Plaintiff shall have the costs of the assessment to be taxed against the Defendant, if not agreed, and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulation. The order nisi is to be made absolute after the expiration of 14 days from the date of the handing down of this assessment.

(C. Chu)
Master