HUI DIN FUN v. TONG CHUNG HOI

HCPI-1284/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF INSTANCE

PERSONAL INJURIES LIST NO. 1284 OF 1999

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ASSESSMENT OF DAMAGES

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1. This is an assessment for personal injury compensation.

2. The Plaintiff sustained injuries whilst at work. He took out a writ of summons on 15 November 1999. In default of notice of intention to defend, interlocutory judgment was granted in his favour against the Defendant on 16 February 2000 for damages to be assessed.

Personal Particulars of the Plaintiff

3. The Plaintiff was born on 28 October 1955 in Fujian in the mainland. He received secondary school education in the mainland and was able to read and write Chinese. He came to Hong Kong in 1973 and worked as a manual labourer in the factories. He subsequently worked as a security guard before he took up the works of a manual labourer in the refurbishing industry about a year before the events giving rise to the present claim.

4. The Plaintiff was 41 years of age at the time of the accident and is now aged 45. He is married and has 3 children.

The employment of the Plaintiff

5. The Plaintiff had been employed by the Defendant on a casual basis on three previous occasions. In April 1997 the Defendant again engaged the Plaintiff to work for him in one of his decoration contracts. During the months of April, May and June 1997 the Plaintiff worked for the Defendant for a few days each month. He was unable to recall the number of days he had worked for the Plaintiff.

6. According to the Plaintiff, he was paid a daily wage of HK$300 by the Defendant The Plaintiff said he was underpaid by the Defendant as the usual daily wages of a decoration worker was HK$500 per day. When he was not working for the Defendant he worked for other decoration contractors. He was paid approximately $400-$450 per day by the other contractors. . His employers provided him with lunch and afternoon tea, which was worth approximately HK$50 per day. The Plaintiff said he worked 20 days a month on average. He was unable to provide documentary proof on his monthly intake.

7. In the absence of evidence to the contrary I accept the Plaintiff to have received daily wages ranging from $300 to $450 with food allowance of $50 per day and he worked about 20 days a month.

The Accident and the Plaintiff's Injuries

8. On 16 June 1997, whilst working for the Defendant, the Plaintiff slipped and fell from the outer wall of the 6th floor of the building. He landed on the ground floor and lost consciousness. He was admitted into the Queen Elizabeth Hospital. He regained continuous memory some 10 days later.

9. The Plaintiff was found by the doctors at Queen Elizabeth Hospital to have sustained the following injuries:-

(a) left acute subdural haematoma.

(b) Right eyebrow laceration.

(c) Fractured right radius and ulna.

(d) Fractured left radius

(e) Left 3rd cranial nerve palsy.

10. The Plaintiff was treated in Queen Elizabeth Hospital until 12 August 1997 when he was transferred to Kowloon Hospital for rehabilitation. During the course of his treatment the Plaintiff had complication of wound infection and cross-union of radius and ulna. He underwent multiple operations including treatment of fractures, operation to relief nerve compression and tendon transfer to improve the function of his left hand.

11. For the purpose of ascertaining the Plaintiff's extent of injuries, orthopaedic and neurological examinations were arranged for the Plaintiff.

12. According to the orthopaedic practitioner, the Plaintiff had the following deficiencies in his motor functions in May 2000:-

(a) Decreased motor power in the left handgrip and pinch power of left thumb.

Decrease in sensation on the radial side of the left hand. Loss of sensation in all of the appendages of the left hand and a limitation of movement of the left thumb. Loss in left elbow extension, pronation and left wrist flexion. Assessed to be 31% impairment of the left upper limb.

(b) Loss in flexion, extension, supination in the right elbow. Limitation in right wrist movements. Assessed to be 11% impairment of the right upper limb.

13. Combining the above findings the Plaintiff's orthpaedic impairment was assessed at 25% of his whole person.

14. According to the neurological surgeon, the Plaintiff was found to have suffered acute subdural hematoma and oculomotor palsy at the time of the accident, resulting in post-traumatic amnesia and permanent impairments in his psychomotor functions. The Plaintiff had the following residual neurological deficiencies in May 2000:-

(a) Mild cognitive impairment in memory and intelligence. The Plaintiff was able to perform most of his daily activities satisfactorily. His cognitive impairment was assessed to have resulted in 5% impairment of his whole person.

(b) Mild mood impairment showing signs of frustration, despair, irritability and insomnia. This was medically assessed to have resulted in 3% impairment of the Plaintiff's whole person.

(c) Visual impairment of the left eye in that the visual acuity in the left eye remains poor and there was diplopia when the Plaintiff looked to the left. The visual deficiency was assessed to have resulted in 8% of impairment of the Plaintiff's whole person.

(d) A feeling of giddiness. This was medically assessed to cause a nuisance but resulting in no significant impairment.

15. Combining the above deficiencies the Plaintiff was assessed to have 16% neurological impairment of his whole person.

16. The neurological surgeon found the Plaintiff's movements at his shoulders to be painless and full in range and power. Movements at the elbow were likewise practically normal. Pronation and supination were mildly reduced in either arm. Movements at both wrists and hands were moderately restricted, with corresponding reduction in power. Sensation to pin prick and touch was mildly impaired in the first 3 digits of the left hand. The Plaintiff's handwriting was slow but legible.

17. The neurological surgeon was also of the opinion that given the relatively poor educational and vocational background of the Plaintiff, the Plaintiff's restriction to work in the future would likely be due to his impaired limbs and vision rather than his mildly impaired cognition.

Compensation for pain, suffering and loss of amenities

18. A person's injuries would be considered to be within the category of serious injuries if the injuries leave a disability which mars general activities and enjoyment of life, but allows reasonable mobility to him, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.

19. When the injuries required treatment in hospital for many months and leave the person with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the person's life, the person would be considered to have sustained substantial injuries.

20. The Plaintiff's treatment was complicated by his wound infection and the cross-union of his ulna and radius. His disability, after treatment, included decreased in motor power and loss of sensation of his left and right upper limbs. He suffered vision impairment in his left eye and a mild mental cognitive deficiency affecting his memory, intelligence and his power to concentrate. His neurological impairment was assessed to be 16% of the 'whole man' while his orthopaedic impairment in respect of his left hand and right upper limb was assessed to be 25% of his whole person.

21. I accept the accumulative effect of Plaintiff's neurological and orthopaedic injuries placed him within the top range of serious injuries. I award him a sum of HK$564,000 for his pain, suffering and loss of amenities. Adjustment on account of inflation was permitted ( per Litton, V-P in CHAN Pui Ki [1996]2 HKLR 401 ). From the Hong Kong Monthly Digest of Statistics, the average cumulative composite consumer price index from 1997 to 2000 was 2.3% ( the average of [1/2 (5.2% + 6%) + 1/2 (4.7% + 5 %) + 1/2 (-3.8% -2.3% ) + 1/2 ( -5.1% - 5% )] ). Hence the sum of compensation would be adjusted to HK$576,972 ( $564,000 x 1.023 ) on account of inflation.

Loss of Accrued Earnings

22. It is slightly difficult to make accurate assessment of the Plaintiff's monthly income at the time of his accident. He had no recollection of the days he worked. He kept no records of his income. Accepting his uncontradicted evidence of daily intakes of HK$350, HK$450 and HK$550, his average daily income would be HK$450 ( 1/3 of the sum total of $350 + $450 + $550 ). Accepting his evidence that he worked on average 20 days a month, his average monthly income would be $9000 ( 20 x $450 ).

23. The Plaintiff was granted sick leave from 16 June 1997 to 17 December 1998. But for the accident, he would have been able to continue to work as a decoration labourer. The Plaintiff never engaged in any work since the day of the accident. The pre-assessment loss of earning was a period of 42 and 2/3 months from 16 June 1997 to 4 January 2001. The Plaintiff's loss of accrued earning from the date of the accident to the date of the assessment would be HK$ 384,000 ( $9000 x 42 2/3 months ).

Loss of Future Earnings

24. I found the Plaintiff prone to exaggeration as a witness. To quote an example, he claimed through his legal adviser in his statement of damages a taxi fare of HK$79 for his journeys to and from the hospital. He maintained the same contention in his witness statement. Yet when testifying in court, he stated his taxi fare was HK$95. When confronted with his witness statement he modified his statement in court and said the taxi fare was usually HK$79 but it would be $95 when there was traffic congestion.

25. The Plaintiff was medically examined in July 1999 in respect of his speech impairment. After the examination the doctor wrote in his report " Contrary to what the victim had alleged - that the accident had rendered him an exuberant but clumsy talker, I found him to be reasonably articulate and rational in his speech."

26. Both orthopaedic and neurological surgeons were of the opinion that the Plaintiff would be able to engage in sedentary jobs such as cashier or lift operator. Alternatively the Plaintiff should be able to perform simple work as those of a janitor, office assistant or messenger provided the work did not require the Plaintiff to walk fast, for long hours or to climb stairs or ladders

27. It was counsel's submission that with the level of the Plaintiff's education, his mental incapacity, reduced motor functions of his upper limbs and visual impairment, his chance of getting employment is slim. No evidence has been placed before me of the Plaintiff's attempts to look for a job.

28. But for the accident, the Plaintiff would likely be able to remain to work as a labourer in the construction industry. The Plaintiff was aged 41 at the time of the accident and 45 at the time of the assessment. In line with previous judicial decisions I am prepared to adopt a multiplier of 10.

29. According to the statistics of the wages of workers engaged in government building and construction projects published by the Census and Statistics Department in November 2000 ( the latest published edition ), the average daily wage of a labourer was HK$611.50 per day. Assuming that the Plaintiff was working 20 days a month in accordance with his usual working pattern, his monthly income would be HK$12,230 ( $611.5 x 20 ).

30. Both the orthopaedic and the neurological practitioners were of the opinion that the plaintiff had the ability to engage in simple work such as lift operator, janitor, office assistant or messenger. According to the latest average monthly salaries statistics published by the Census and Statistics Department in September 2000, the average monthly salary of a messenger or office assistant in the printing, publishing and allied industries is HK$7,778 and HK$7943 as a messenger or office assistant in the import and export of clothing, footwear and allied products industries. Given the fact that the Plaintiff's mental and physical disability would put him in a worse bargaining position I accept the salary he would likely be able to get would be about HK$5000 per month.

31. The Plaintiff's notional loss of future income would be HK$ 867,600 { ( $12,230 - $5,000 ) x 120 months } .

Special Damages

32. The Plaintiff spent HK$9,696 in his medical consultation and travelling :-

(a) Hospital fees	$ 9,520
(b) physiotherapy treatment	176
(c ) travelling expenses ($79 x 124 times )	9,796
	HK$ 19,492

Employee Compensation

33. The Plaintiff was awarded a sum of HK$286,836 compensation pursuant to the Employees' Compensation Ordinance. Credit will be given to the said sum in the present common law damages assessment.

Award

34. I accept the following to be reasonable and fair assessment of the Plaintiff's damages :-

(a)	Pain, Suffering and Loss of Amenities	576,972
(b)	Loss of accrued earnings	384,000
(c )	Loss of future earnings	867,600
(d)	medical and traveling expenses incurred	19,492
(e)	adjustment on account of Employee Compensation awarded	( 286,836 )
		HK$ 1,561,228
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35. I award interest on the head of pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. I also award interest on the loss of accrued earnings, medical and travelling expenses at half the judgment rate from the date of the accident to the date of judgment.

36. Post judgment interest accrues from the date of judgment until payment.

37. I award costs nisi against the Defendant in favour of the Plaintiff. Unless parties apply to be heard on the question of cost, this order nisi would become absolute at the expiration of 14 days from today. The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.