WONG KAM SHU v. NG WAI ON

HCPI 146/2008

IN THE HIGH COURT OF THE

HONG KWONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 146 OF 2008

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ASSESSMENT OF DAMAGES

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1.  At all material times the Plaintiff was an interior decoration worker employed by the Defendant.  On 5 March 2005, the Plaintiff was working for the Defendant at Ground Floor, Po Chi Court, 15 Ship Street, Wanchai, Hong Kong (“the said Premises”).  Just before the accident, the Plaintiff was working with the Defendant to dismantle an air duct from the ceiling of the said Premises.  The Defendant was standing on a ladder which was placed on wooden planks so as to increase the height of that ladder for the Defendant to reach the ceiling.  The Plaintiff was standing on another ladder to unscrew the air duct from the ceiling.  The Defendant lost his balance and he gripped onto the air duct causing the air duct to fall down from the ceiling.  The air duct hit the ladder on which the Plaintiff was standing, causing the Plaintiff to fell from the ladder and sustained injury to his heel, and cut the upper lip of the Plaintiff.

2.  The present proceeding was instituted by the Plaintiff against the Defendant to recover damages for his injury.  The Defendant was absent and could not be located throughout.  Proceeding was served on the Defendant by substitute service under an order of Court.  Default judgment on liability against the Defendant has been entered on 11 November 2008.  The matter comes before me for assessment of damages.  Notice of today’s proceeding has again been served by substitute service on the Defendant and the relevant affirmation of service has been filed with the Court.

3.  In the Revised Statement of Damages dated 13 February 2009, the Plaintiff claimed the following heads of damages: -

(a)	Pre-trial loss of earning	$692,600
(b)	Loss of MPF	$34,630
(c)	Medical expenses	$6,000
(d)	Travelling expenses	$3,000
(e)	Tonic food and medicine	$7,000
(f)	Loss of future earning	$1,319,436
(g)	Future loss of MPF	$65,971.80
(h)	Loss of earning capacity	12 months' earnings
(i)	Future medical expenses	$60,000
(j)	PSLA	$300,000
(k)	Interest

4.  The Plaintiff had taken out an employee’s compensation action in the District Court, being DCEC 21/2006.  The action had been concluded on 17 March 2009 and the compensation was awarded to the Plaintiff at $222,769 with interest and costs.  Such amount would be deducted from the final award herein.

5.  The Defendant is absent in today’s assessment.  I proceed with the assessment on ex-parte basis.  The burden rests on the Plaintiff to prove his loss and damages.  There is only one witness in this case, the Plaintiff himself.  He has given one witness statement dated 5 January 2009 and a supplemental witness statement dated 11 May 2009.  The Plaintiff adopts both statements as his evidence in chief.

6.  According to the evidence of the Plaintiff, after the accident, the Defendant sent him to see a bone setter.  Since his right ankle suffered severe pain, the Plaintiff attended the Accident and Emergency Department of the Kwong Wah Hospital for treatment on 7 March 2005.  X-ray examination revealed that there was fracture in his right ankle.  He was admitted to the Orthopaedic Ward of Kwong Wah Hospital for further treatment on the same day and was discharged on 10 March 2005.

7.  After discharged, the Plaintiff continued to attend follow-up treatment at Kwong Wah Hospital.  The last follow-up treatment was on or about 8 July 2005.  As part of his treatment, on about 26 April 2005, the Plaintiff received physiotherapy treatment at Kwong Wah Hospital.  The physiotherapy course ended on or about 14 July 2005.  Further, for the period from 28 April 2005 to 11 August 2005, the Plaintiff received occupational therapy treatment at Kwong Wah Hospital.  He last attended Kwong Wah Hospital for treatment in or about August 2005.  Thereafter, no follow-up had been arranged by Kwong Wah Hospital.  The Plaintiff said his right ankle was still swelled and hurt.  He did attempt to return to Kwong Wah Hospital for treatment but the appointment was scheduled to 2007.  At the same time, he could not afford the medical expenses for consulting private practitioner.  He could only consult bone setter for bone setter treatment on his right ankle.

8.  On the assessment of his injury and the medical treatment given to the Plaintiff, leave was granted by Master Kwan on 19 December 2008 to introduce medical evidence from one orthopaedic consultant Dr. Danny Tsoi and his medical reports dated 18 March 2006 and 16 June 2008 respectively shall be adduced without oral evidence.  The reports of the government hospital as to the treatment and care of the Plaintiff are to be adduced as agreed evidence without calling the makers.

9.  According to a medical report by the Occupational Therapy Department of Kwong Wah Hospital dated 2 November 2005, it is stated that upon final assessment on 11 August 2005, the Plaintiff reported 80% subjective recovery.  He complained of mild ankle pain when walking on level ground.  Objective assessment revealed mild persistence swelling of his right ankle.  The range of movement of his right ankle had improved a lot.  He could sustain full squat for 4 minutes and 20 seconds.  In the ladder climbing test, he achieved 43 repetitions in 5 minutes (normal subject: 40 to 60 repetitions).  But his right single leg standing tolerance was significantly poorer than his left leg.  He was able to lift the weight of 65 pounds from the floor to shoulder level and the carry a weight of 55 pounds for 50 meters.  He walked on level ground and climb stairs with normal gait and good stability.  His self-reported walking tolerance was 2 hours unaided.  He could climb stairs for 10 cycles continuously (one cycle equal down one flight of stairs, then up one flight of stairs).

10.  The report also commented that the Plaintiff used to be a renovation worker.  Based on the final assessment result, the Plaintiff was able to manage part of his job duties.  He might encounter difficulties in heavy weight lifting and task, which involved prolonged walking.

11.  According to another report from the Physiotherapy Department of Kwong Wah Hospital dated 14 November 2005, the Plaintiff was first examined on 26 April 2005.  He was then found to have swelling redness and a slight increase of temperature of his right ankle.  Right ankle ranges were limited.  He was given treatment and after a total of 12 sessions of treatment, the Plaintiff claimed that there was about 70% improvement of his right foot.  Right ankle ranges were full and painless.  As the condition became stable and static, the Plaintiff was therefore discharged.

12.  I also refer to the medical report by Dr. Tsoi dated 18 March 2006.  Dr. Tsoi opined that the fracture right heel was consistent with the mode of injury and no pre-existing factor was identified.  He considered all the treatment received by the Plaintiff from various clinics were standard and appropriate.  On physical examination, it revealed a deformed hind foot.  The range of motion was also reduced.  The wasting of the calf muscle could explain the weakened right ankle.  At the time of the examination, the Plaintiff complained of residual right heel pain.  Dr. Tsoi opined that his complaints are genuine.

13.  Dr. Tsoi further opined that the Plaintiff injured right heel has attended a stage of maximum improvement and no further active treatment was required.  Analgesics might be required on need-to-basis but should not be too much.  It would be about $500 per year.  He suggested that there was higher than normal chance of developing traumatic degeneration of the subtalar joint.  Should the pain arising become intolerable, fusion of the subtalar joint might be required.  The total cost for such medical treatment was estimated at $60,000.  And the chance of requiring subtalar joint fusion in the future was about 10%.

14.  Dr. Tsoi opined that the Plaintiff would have difficulty in resuming his pre-injury job.  He would have problem when standing on rung of ladder, working in squatting position or walking on uneven surfaces.  Jobs with moderate demand without climbing, heavy weight lifting and walking on uneven services are more suitable for him, such as security guard, indoor cleaning worker, store assistant, restaurant receptionist and messenger.

15.  The Plaintiff claims that he could not returned to his pre-accident work.  This is supported by the medical report of Dr. Choi.  The medical reports from Kwong Wah Hospital mentioned above also support the claim of the Plaintiff that he could not handle all the duties of his pre-accident work.  I accept his evidence that he cannot return to his pre-accident work because of his injuries.

16.  I should now proceed to consider the individual claim of the Plaintiff.  To begin with, I would consider his claim for loss of earnings.

17.  According to the evidence of the Plaintiff, at the time of the accident, he was working for the Defendant earning a daily wage of $500.  He had been working for the Defendant for about 2 years and on the average, he worked 28 days per month.  Accordingly, he claimed a monthly income of $14,000.

18.  In the written opening of Mr. Kwok, Counsel appearing for the Plaintiff, he relied on a judgment given by Deputy District Judge B. Mak in DCEC 21/2006 that the monthly earning of the Plaintiff should be $11,800.  The Plaintiff is prepared to reduce the monthly earning from $14,000 to the said sum of $11,800.  Upon reading the judgment of the Deputy Judge, I noted that the evidence of the Plaintiff in the employee compensation case is that he worked 23 to 24 days a month.  It is not disputed that I am not bound by the finding of the Deputy Judge.

19.  I was also referred to the supplemental witness statement of the Plaintiff.  In paragraph 2, he gave more details about the earning and working record with the Defendant from May 2004 to February 2005.  It is sufficient for me to say that according to these additional records, the Plaintiff cannot substantiate his initial claim that he worked 28 days a month.  I note he also claimed that he had been working for some other contractor while employed by the Defendant and he had some additional income.  Looking at the whole pattern of his employment record, and relying on his own witness statement, I come to the conclusion that he can only prove that he worked 23 to 24 days a month.  Accordingly, I come to the same conclusion that his pre-trial loss of earning, even taking into account the wages that he earned from other contractor, would be $11,800.

20.  On sick leave, sick leave was granted to the Plaintiff by Kwong Wah Hospital from 7 March 2005 to 18 August 2005.  Since then, the Plaintiff has been consulting bone setter as aforesaid, and he was given sick leave recommendation by bone setter for non-continuously period in October and November.  Further, in October, he had visited Kwong Wah Hospital once and was given sick leave for 7 and 8 October 2005.

21.  It is the evidence of the Plaintiff that after the sick leave period of August 2005, he had attempted to return to work but he could not cope.  He gave up the job and remained unemployed until 2007.  In about late 2007, he started to work as a causal worker in a construction site.  The work did not require climbing.  Since his right ankle was injured, he could not climb up and down as his right ankle felt uncomfortable.  He could not work in a squatting position for a long period of time.  Therefore, the nature of job he could take up was more limited and the potential employers were more reluctant to employ him.  His daily wages was lowered to $450.

22.  Mr. Kwok on behalf of the Plaintiff accepted that the Plaintiff should have taken up employment of those suggested by Dr. Tsoi.  Mr. Kwok suggested that given the Plaintiff was receiving bone setter treatment in October and November 2005, the Plaintiff could not return to work yet.  Counsel further submitted that the Plaintiff’s sick leave expired in November 2005.  He should be given a reasonable period for recuperation.  He suggested a period of 3 months. 

23.  Given the unchallenged evidence of the bone setters’ certificate, and the evidence of the Plaintiff, I accept the Plaintiff is under disability for the month of October and November.  A period of 3 months for recuperation is reasonable.

24.  The government statistic has been produced for security guard, indoor cleaning worker, store assistant, restaurant receptionist and messenger.  According to the government statistic, monthly earning for such kind of work ranges from $5,335 to $7,770.  Counsels submitted that a fair estimate for the Plaintiff hypothetical average monthly earning after sick leave if he took up employment according to the suggestion of Dr. Tsoi should be $7,000.  I agreed with Counsel’s submission.

25.  Accordingly, the pre-trial loss of earning should consist of the following: -

(a)  Loss of earning during sick leave and period of disability - $11,800 x 12 = $141,600; and

(b)  From 5 March 2006 to 17 June 2009, ($11,800 - $7,000) x 39.5 = $189,600.

26.  It is also the evidence of the Plaintiff that during the period before trial, he had taken up odd jobs and earned the total sum of $52,000 which should be deducted from the allowance.  Summing up, the total pre-trial loss of earning would be in the sum of $279,200.

27.  There should be an award for loss of MPF being 5% of $279,200, i.e. $13,960.

28.  As found above, the Plaintiff is not able to return to his pre-accident job, he would suffer a loss of earning of $4,800 per month.  The Plaintiff is aged 46.  It is submitted by Counsel that a multiplier of 9 would be a fair one.  I accept the submission of the Counsel and accordingly allowed the post-trial loss of earning at [($11,800 - $7,000) x 12 x 9] =$518,400.  There should also be award of future loss of MPF at $25,920.

29.  The Plaintiff also claims loss of earning capacity which represented 12 months’ earning.  Given the nature of the injury, I found that a sum of $50,000 is appropriate and accordingly award the same.

30.  The Plaintiff also claims an award of PSLA in a sum of $300,000.  Further to what I have stated above on his physical condition, the Plaintiff also set out in his witness statement that after the accident, he still has the following problems: -

(a)  Swelling and pain in his right ankle;

(b)  Pain and uneasiness in right ankle when squatting and climbing up and down;

(c)  Right lower limb cannot bear weight;

(d)  When walking after a sitting position, the pain in right ankle will accurate;

(e)  When getting up from bed in the morning, the pain in right ankle will accurate;

(f)  When climbing up and down staircase and walking (especially walking on uneven road), there is uncomfortable feeling in the right ankle.

31.  Counsel referred me to the case of Chong Yiu Tat v Fong Man Chi and others [2003] HKCU 1432 and Chu Kwong Sang v Chuen Wo Transportation Limited and others [2004] HKCU 1514 in support.  Mr. Kwok further submitted that while Dr. Tsoi opined that there may be necessary for a future operation, since the probability is only 10% the Plaintiff would not claim as damages.  However, he submitted that I should take that into consideration in assessing the PSLA.

32.  I accept the submission of counsel and found that PSLA should be in the sum of $300,000 and accordingly make such an award.

33.  It is the evidence of the Plaintiff that he spent $6,000 on medical expenses, including government hospital and bone setter.  There were some receipts produced by the bone setter of about $3,000.  I accept his evidence that he had spent the sum and accordingly award $6,000.

34.  The Plaintiff also claimed traveling expenses for $3,000.  There is no record of the expenses.  Accordingly, I would award a nominal sum of $2,000 as traveling expenses.

35.  The Plaintiff also claimed a sum of $7,000 for his expenses on tonic food.  There was no receipt produced and there is no evidence as to why they are needed.  In those circumstances, the Court will only award a nominal sum and award a sum of $4,000.

36.  Finally, according to Dr. Tsoi’s recommendation, the Plaintiff may need some pain killer and he estimated about $500 per year is reasonable.  Adopting his opinion, I award the sum of $500 for the period of 9 years, making a total of $4,500.  In summing up, I make the following award to the Plaintiff: -

	Pre-trial loss of earning	$279,200
	MPF thereon	$13,960
	Future loss of earning	$518,400
	MPF thereon	$25,920
	PSLA	$300,000
	Special damages	$13,000
	Loss of earning capacity	$50,000
	Analgesics	$4,500
	Total:	$1,204,980
	Less ECC	$222,769
	Damages: -	$982,211

37.  For general damages, there will be interest at the rate of 2% per annum from the date of Writ herein to the date hereof.  As for the special damages, interest will be calculated at half of the judgment rate from the date of accident to the date hereof.

38.  I also give an order nisi that the Plaintiff do have costs of this action including all costs reserved to be taxed at High Court scale if not agreed.  There will be certificate for Counsel for today’s hearing.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

39.  Finally, there was one costs order left open by Master Kwan.  On 10^th December 2008, the Plaintiff filed one Supplemental List of Document consisting of medical reports from Kwong Wah Hospital and the bone setter, and issued a Hearsay Notice covering the same set of document.  On 4 February 2009, the Plaintiff filed another Supplemental List of Document exhibiting the Statistic I mentioned above, and issuing another Hearsay Notice on the same document.  The Lists and Notices were served by substituted service on the Defendant.  The costs of these matters are left to the trial Master.

40.  There is no objection to the cost incurred.  On the face of it, the statistic should be included in the 1^st Supplemental List.  I would allow cost of the 1^st Supplemental List and Hearsay Notice and disallow cost relating to the 2^nd Supplemental List and Hearsay Notice.

41.  Last, may I thank counsel for his assistance.