LI YUEN HUNG v. YAU YUK LAN

1995, No. PI504

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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Assessment of Damage

1. Liability was conceded by the Defendant on the first day of the hearing. I am only concerned with the assessment of damage sustained by the Plaintiff in an accident on 16th May 1989. She was a sewing worker in the employ of the Defendant's factory. On 16th May 1989, a bundle of clothes which weighed about 25 lbs fell on her back. She also claimed that two co-workers who were handling the clothes also fell on her back during the accident.

Medical reports

Dr Sein Tun

2. She was in great pain after the accident and she was taken to the Fanling Hospital. She stated that on her way to the hospital, her legs gave way and she fell down twice. According to the report of Dr Sein Tun dated 22nd April 1991, no external visible wound was found. The X-ray of the lumbar spine showed no fracture nor gross deviation of the spinal column. The Plaintiff was treated and discharged. No permanent disability was expected.

Subsequent examination

3. When she returned home, there was another occasion when she fell down because her legs gave way. She was seen by the Orthopaedic Specialist Clinic of the Chinese University on 10th November 1989 on referral by the Fanling Hospital. Clinical examination did not reveal significant limitation in her trunk movement and there was no mark spasm of the back muscles, both lower limbs showed no detectable neurological impairment. X-ray of the lower backbones was taken and showed no signs of recent trauma, but there was some degenerative changes along the lumbar spine comparable to her age.

4. There were follow-up treatments from March to November 1990. Clinical examination did not reveal any abnormality of her spine and lower limbs that could account for her complaint of transient paralysis of the lower limbs after prolonged standing. X-ray of the lower spine was repeated on 16th November 1990 and found no abnormality other than the mild degenerative changes. In the consultation on 11th January 1991, the same symptoms of lower back pain had neither improved nor deteriorated.

5. On 13th February 1991 she was assessed by the Medical Board at a 2% permanent incapacity.

Dr David Lee

6. On 10th June 1991, she was examined by Dr David Lee. Her complaint to Dr David Lee was that she had constant low back pain and she could not carry any heavy object, otherwise she would have attack of severe back pain together with weakness of both lower limbs. He found that there was no neurological deficit over her lower limbs but when she stood, she had marked spasm of sacro spinalis muscle. Dr David Lee said that this was a natural way of muscle guard to protect a deranged lumbar spine. The spasm of the muscle was not pretendable and the Plaintiff's complaint of constant low back pain was genuine. X-ray examination showed that she had a quite advanced spondylolytic changes of her whole lumbar spine. There was a severe degree of wear and tear. She had multiple traction spur formations which indicated that she had degenerative discs in her lumbar spine. Dr David Lee said that these findings indicated that the Plaintiff had a very vulnerable lumbar spine for giving rise to symptoms such as severe low back pain. Dr David Lee was of the view that the accident on 16th May 1989 was a triggering factor which made her severe spondylosis to be symptomatic. A symptomatic spondylosis is a permanent disability for a manual labourer and he assessed the Plaintiff's permanent disability caused by her lower back pain in the region of 10% and her loss of earning capacity in the region of 20%.

Medical examination and treatment between January 1992 to October 1994

7. On 6th January 1992, she went to the Queen's Elizabeth Hospital for consultation of her back pain. Physical examination was unremarkable apart from some muscle spasm over the back. She was referred to physiotherapy treatment. Examination revealed degenerative disc of L2/3, L3/4 and L4/5, but no definite nerve group compression. Conservative treatments with physiotherapy and medication were continued.

8. Her back pain did not improve and she was subsequently admitted to the Kowloon Hospital for in-patient non-operative treatment in the form of physiotherapy between December 1992 and January 1993.

9. She was again follow-up in the orthopaedic out-patient clinic regularly between February 1993 and October 1994. Her back pain was much the same and she complained of left leg radiation pain. MRI performed on 12th October 1994 showed that degenerative changes in multiple disc levels with osteophytosis. Mild posterior disc bulging was at the L2/3 and L3/4 levels causing flattening anterior borders of the thecal sac. At L4/5 level, there was mild central posterior disc focal bulge suggestive of herniation. The anterior border of thecal sac was indented and both lateral recess became stenotic. The corresponding nerve roots might be compressed in this disregard.

10. According to Dr Y.Y. Lam, a disc prolapse at three levels was equivalent to 15% loss of earning capacity in accordance with the Employee's Compensation Ordinance.

Dr Lee Po Chin

11. On 20th November 1995, the Plaintiff was examined by Dr Lee Po Chin, an expert retained by the Defendant. Examination revealed no back tenderness. There was spasm of the paraspinal muscles on the left side. Trunk flexion was slightly limited; extension of the back was painful so was left rotation. The straight leg raising test was normal on both sides. There was slight decrease power of the dorsiflexor muscle of the left big toe. Radiological examination of the lumbar spine revealed degenerative changes at L2/3 and L4/5 intervertebral disc. There was no evidence of neurological compression.

12. Dr Lee Po Chin said that the cause of the Plaintiff's symptoms is degenerative arthritis of the lumbar intervertebral joints. It is generally believed that the cause of degeneration is aging. Occasionally the condition is aggravated by trauma and the resultant arthritis can become persistent. In this type of case the initial symptoms are usually severe and they fail to resolve completely upon treatment. In the Plaintiff's case, the course of event seems to differ from this pattern. The initial symptoms were relatively mild. Dr Lee Po Chin was of the view that in December 1992, the Plaintiff had an episode of severe pain with symptoms of nerve root compression and it is possible that this attack was responsible for the residue symptoms that the Plaintiff is now experiencing. Dr Lee Po Chin, however, made it clear that he did not dispute that the Plaintiff had suffered a trauma or an accident nor was his evidence that the present condition of the Plaintiff was mainly due to natural cause of degeneration. He certainly did not wish to argue that the injury of the Plaintiff had no part to play in the subsequent symptoms. Dr Lee agreed that with her present symptoms, her working capacity would be affected. The main disability is that of lifting weights.

Surgery

13. Although Dr Lee Po Chin in his report stated that surgical treatment with fusion of the spine could be considered, he clarified in his testimony that the chance of success is generally 70 to 75% for a single disc. When it involved two discs, then the good results falls to 60% in the long term. He was of the opinion that the Plaintiff is suffering from 5% disability and 10% loss of earning capacity.

14. Both Dr Jimmy Wong and Dr David Lee would not recommend surgery. Dr Lee was of the view that because of the multiple traction spurs, the operation may not relieve the pain sustained by the Plaintiff and it would involve a major operation in order to achieve a pain free body.

Pain, suffering and loss of amenities

15. I accept Dr David Lee's evidence that the Plaintiff's complaint of back pain was genuine. I accept his evidence that the degeneration was due to ageing and the work nature of a manual worker. She obviously had a degenerated back but the trauma on 16th May 1989 triggered the symptoms. Although after three days of her sick leave, she continued to work in the Defendant's factory for another five months, I am satisfied that during this period she was suffering pain and that she only continued work because she feared that the employer might use the excuse of her taking sick leave to dismiss her.

16. Mr Wong, Counsel for the Defendant submitted that the injuries sustained by the Plaintiff do not fall within the serious injury category as laid down by Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. This category of injuries gives rise to disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim. Mr Wong submitted that the quantum in this case should be pitched at three quarter of the lowest end of the serious injury award.

17. I have considered the injuries of the Plaintiff very carefully and I agree that her injuries do not come within the serious categories of injuries as laid down by Lee Ting Lam. I agree with Mr Wong's submission that the quantum should be assessed at about three quarter of the bottom award of the serious injury category.

18. The next question is, what is the range of damages for this category. Mr Wong submitted that in the absence of actuary or economist evidence being adduced in this case, I should not adopt the approach in Chan Pui Ki v. Leung On and KMB [1995] 3 HKC 732, in which I suggested that the range of award for pain and suffering in Hong Kong should be revised upwards. The issue, however, is not whether in the absence of such evidence, the approach should not be adopted (and it is wholly artificial for me to ignore the findings I made in that case) but rather, whether awards in Hong Kong for injuries below the serious injury categories are in fact about the same or in some cases may be higher than the equivalent UK awards as recently submitted in other cases I have dealt with. I will, for the purpose of calculating the award in the present case, rely on the range of awards for serious injury set out in A G v. Chun Yat Nam [1995] 1 HKC 218 in which the Court of Appeal revised the level to a starting point of $250,000. Mr Wong submitted that a 10% increase p.a. for inflation should be applied to this figure increasing the level to $275,000. I think it is more appropriate to adopt a figure of $280,000 to reflect inflation. 3/4th of this figure is $210,000

Loss of earnings

Pre-trial loss

19. Mr Wong has very helpfully summarised the Defendant's arguments in a written submission. The Defendant is not disputing that the Plaintiff is entitled to both pre-trial and post-trial loss of earnings.

20. The Plaintiff came to Hong Kong in 1975 from China. Prior to coming to Hong Kong, she was a school teacher in China. After coming to Hong Kong, she had taken up various jobs. She had worked as a teacher, teaching music for about two years. She also became a worker in restaurant selling dim sum, delivering food and washing dishes. She had also worked as a sewing worker in various factories for an accumulated period of five to six years. I have no doubt that she would continue to work if she had not suffered the accident in 1989. The issue in this case is on the quantum.

21. The Defendant is prepared to accept that the Plaintiff's average monthly income before the accident was at $1,888. The sum is the average of the earnings of the Plaintiff immediately before the accident. She was paid once every 15 days. Between 1st to 15th April, she was earning $600 to $700, and from 15th to 30th April, her wage was $985 to $988. For the third period, she earned $1,144. Taking the highest figures, the average monthly income was at $1,888 i.e. ($700 + $988 + $1,144) ( 3 x 2.

22. Mr Wong also agreed that the Plaintiff's wages would also be increased annually by reference to inflation and he applied a 10% increase p.a. since 1989 for the purpose of calculating the wage increase which gives a figure of $3,679.18 per month. The median wage would be ($3,679.18 + $1,888) ( 2 = $2,783.59 per month.

23. The Plaintiff's evidence is that she was earning $1,000 per wage period before she took up the employment with the Defendant. Based on the evidence I have heard, I accept the calculation of the wages submitted by Mr Wong. The updated figure of $3,679.80 is based on inflation only. The sum is very modest indeed: in 1991, the earning of the Plaintiff as a dishwasher was already $3,300 per month.

Period for which she is entitled to recover total loss of income

24. After the accident she took three days of sick leave and then resumed work. She was dismissed by the Defendant sometime in September but was shortly reinstated and she worked in the Defendant's factory until October 1989 when she left the job on her own accord. Thereafter she did not take up employment again till early 1991 when she worked as a dish washing worker in a fast food restaurant for one month.

25. Mr Wong accepted that the Plaintiff would require a reasonable period for rest, recovery and treatment and he was prepared to accept that this period should last until 16th July 1991. This date is about 11/2 months after Dr David Lee's report in which he said that the Plaintiff was capable of taking up part-time employment. The period is from 1st November 1989 to 16th July 1991 at 20.5 months, the full loss of salary is $2,783.59 x 20.5 months less $3,300 earned as a dish washing worker = $53,763.59 or rounded up to $53,764.

26. This approach is correct, after the accident and her subsequent departure from the Defendant's employ, the Plaintiff continued to seek medical treatment from the various hospitals. Looking at the matter globally including the fact that she was in hospital for about a month to receive in-patient physiotherapy treatment between the end of 1992 and the beginning of 1993, I think the period of 20.5 months is a reasonable period in which a claim for total loss of income could be based. The sum of $53,764 is awarded under this head.

Period for which she is entitled to partial loss

27. Mr Wong submitted that from 17th July 1991 to the date of judgment, the Plaintiff is not entitled to claim for total loss of wages, instead she is only entitled to a partial loss. By July 1991, she was capable of taking up lighter employments as recommended by the doctors including thread end cutting worker or a part-time quality controller in a garment factory. Mr Wong adopted the $2,000 figure as suggested by Dr David Lee as the rate of a part-time worker. Adopting a 10% inflation rate since 1991, the projected income of a part-time garment factory worker today will be in the region of $3,221. The median income of a part-time factory worker is $2,610.50 (i.e. ($3,221 + $2,000) ( 2).

28. Mr Wong submitted that the loss of income for the period 16th July 1991 to the date of judgment (which he treated as 17th April 1996) at 57 months is the difference of the wage of a full-time worker and a part-time worker at ($2,783.59 - $2,610.50) x 57 months = $9,866.13.

29. Although this is an approach that I would accept, I disagree with Mr Wong's calculation on one matter, namely the earning of a part-time worker at $2,000. Dr David Lee is no doubt a very experienced medical practitioner who is involved in a lot of industrial accident cases and the sum of $2,000 is based on the knowledge of the earnings of workers he has come across in his practice. However, one thing that should be borne in mind is that the actual wage of the Plaintiff at the time of the accident was less than $2,000 and she was working on full-time basis. It cannot be reasonable to adopt $2,000 as the wage of a part-time worker when her actual wage was below that figure. There may be a number of reasons why her salary was so low. One reason may well be that the work available to the workers was small as she said in her evidence that many garment factories had moved to China. Furthermore, when Dr David Lee said that the Plaintiff could return to work of a lighter nature such as thread end cutting worker or a part-time quality controller, he qualified this by saying that she should be able to take up any job where there was no need for her to lift heavy things or to bend her body frequently, but he said that "She cannot ask to have someone as her assistant to lift the things. It's impossible for her. So it might as well don't let her go back to work."

30. Realistically while she might be able to perform the light duty job, the actual working environment would not enable her to have such a job. Dr David Lee also said that if the Plaintiff was to work as a part-time quality controller, she could only work 50% of the normal working hour. In my view, the notional income that should be adopted is $944 which is half of the Plaintiff's pre-accident wages of $1,888. The doctors had assessed various percentage of disability. It would be artificial to apply these percentages to the wage of the Plaintiff as a full-time worker in order to arrive at a notional figure of what she would be capable of earning. The percentage of disability is aimed at calculating the compensation under the Employees' Compensation Ordinance.

31. Applying a 10% increase for inflation since 1989 to the figure of $944, the current level is $1,840. The median notional wage for part-time worker is ($1,840 + $944) ÷ 2 = $1,392.

32. The partial loss of earnings from 16th July 1991 to date of judgment at 57.5 months is $1,392 x 57.5 = $80,040.

Post-trial loss of earnings

33. The Plaintiff was born on 21st October 1938. She was 51 years of age at the time of the accident. She is now 57. She has worked throughout her life. I could see no reason why she would not have continued to work but for the accident. Mr Wong invited me to adopt a conventional multiplier of 4. He has shown that the multiplier is in fact smaller if the Watson & Wyatt Actuarial Table is used. I accept that multiplier 4 should be adopted. In so doing I have considered the following cases.

34. Chan Yuk Lee v. Chan Chiu Ying [1988] HKCL 45, male, aged 57 at time of the accident and 63 at time of the trial, a multiplier of 3.

35. Chan Sit Mui v. Kong Hung Keung & Other, [1974] Hong Kong Law Digest p.78, female, aged 58, multiplier of 3.

36. Au Leung v. Yip Yim Choi [1985] HKLY 419, aged 57 at time of the accident, 60 at the time of the trial, multiplier of 5.

37. Fung Yiu v. Cheung Siu Ping [1986] HKLY 423, male, aged 56 at time of the accident, 59 at the time of the trial, multiplier of 4.

38. The partial loss of future earnings is ($3,679 - $1,840) x 12 x 4 = $88,272.

Special damages

39. The Plaintiff is seeking special damages in the sum of $31,822 (see pp.141 and 143 of the Bundle). They include hospital fees, payment to the Legal Aid Department, purchase of medicine and tonic food. The Defendant accepted this sum other than two items, namely, the payment of legal aid fees of $7,920 and payment of medicine and tonic food in the sum of $2,500. The payment to the Legal Aid Department should be deducted and would form part of the legal cost of the Plaintiff. The medicine and tonic food would be considered under the claim for nourishing food and should be deducted as well. Hence, the special damages are in the sum $21,402.

Nourishing food

40. The Plaintiff is claiming $30,000 for nourishing food. They include (鹿尾羓) deer-penis, (杜仲) doo-chun, (龍眼) lung-ngai, (天麻) tin-mar, various types of medicinal wine, essence of chicken and essence of bee honey. The receipts produced amounted to $698. The Plaintiff said that she has not kept many of the receipts because she did not know initially that she could recover the cost of purchasing the nourishing food. Mr Wong is prepared to accept a sum of $7,320.50. I think this sum is about right and to round up the figure I would award $7,400 for nourishing food.

Summary

Pain, suffering and loss of amenities	$210,000
Pre-trial loss of earning
(i) total loss	$53,764
(ii) partial loss	$80,040
Post-trial loss of earning	$88,272
Medical and travelling expenses	$21,402
Nourishing food	$7,400
Total	$460,878
less ECC award	$65,095
	$395,783

Interest at 2% per annum would be awarded on the general damage (pain, suffering and loss of amenities) from the date of the service of the writ, namely, 1st March 1993 to the date herein at 38 months.

$210,000 x 2% x 38/12 months = $13,300.

41. 6% interest on special damages is awarded from date of the accident, namely, 16th May 1989 to the date herein at 83.5 months.

$97,511 (i.e. $53,764 + $80,040 + $21,402 +$7,400 - $65,095) x 6% x 83.5/12 months = $40,711.

42. There shall be judgment to the Plaintiff in the sum of $449,794

(i.e. $395,783 + $13,300 + $40,711) together with the costs of the action. There shall also be interest at judgment rate from the date hereof to payment.

[Mr Wong informed Court of payment into court of $600,000 on 12th April 1996.]

Court: (1) Plaintiff is entitled to costs of the action up to 12th April 1996 and the Defendant is entitled to costs of the action after payment in.

(2) Payment out of $150,206 from the money in Court to the Defendant forthwith.

(3) Payment out of $250,000 from the money in Court to the Plaintiff forthwith.

(4) Balance of $199,794 to remain in Court until the conclusion of the taxation of costs of the parties and if any balance is due to the Plaintiff after adjusting the parties' costs, the balance is to be paid out to the Plaintiff forthwith.

43. If the Defendant's taxed costs after adjusting the Plaintiff's taxed costs is more than $199,794, then the sum is to be paid out to the Defendant forthwith.

(P. Cheung)

Judge of the High Court