LAM HUNG YUI v. MUCK YUN CHUNG formerly known as CHUNG KEE ELECTRICAL WORKS

HCPI 924/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 924 OF 2004

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ASSESSMENT OF DAMAGES

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Introduction

1. By a writ of summons filed herein on 13 October 2004, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages sustained in the course of his employment arising out of the negligence and/or breach of contract of employment and/or breach of statutory duty and/or breach of common duty of care on the part of the Defendant, its servants or agents at Unit No. 3, 15/F, Stelux House, 698 Prince Edward Road East, Kowloon, Hong Kong on 19 November 2001.

2. No Notice of Intention to Defend was filed.  Interlocutory judgment on liability was obtained on 24 February 2006 with damages to be assessed.

The Plaintiff’s Case

3. The Plaintiff was born on 4 March 1972.  He was 29 years old at the time of the accident.  He is now 35 years old.  He adopted the contents of his witness statement as his evidence in this assessment.  He told the court that he was still suffering from soreness, pain, stiffness and numbness at the right elbow and left wrist.

4. The Plaintiff was at all material times a painting/decoration worker employed by the Defendant.

5. On 19 November 2001, while the Plaintiff was performing his duties as instructed by the Defendant, the Plaintiff fell down from a ladder and landed on both hands thereby sustained serious personal injuries.

6. After the accident, the Plaintiff attended the Pamela Youde Nethersole Eastern Hospital (“the Hospital”) for treatment.

7. X-ray showed fracture of right radial head (right elbow fracture) and left distal radius (left wrist fracture).  Open fracture reduction and internal fixation was done for the right elbow fracture while close reduction and external fixator was applied to the fracture left distal radius on 28 November 2002.  The Plaintiff was discharged on 30 November 2001.

8. The Plaintiff then received out-patient treatments at the Hospital on 6 December 2001 and 27 December 2001 respectively.  On 9 January 2002, the external fixator of the left hand was removed.  However he defaulted the scheduled follow up treatment on 24 January 2002.

9. Since 2 January 2002, the Plaintiff received physiotherapy treatment.  Nevertheless, he only attended twice and defaulted further treatment from 21 January 2002 onwards.

10. The Plaintiff returned to Mainland for further treatment for his injuries from bone setter.

11. The Plaintiff was medically examined by his expert, Dr. Danny Tsoi (specialist in Orthopaedics and Traumatology) on 8 January 2004 (almost 3 years after the accident).

12. Dr. Tsoi noted the complaints of the Plaintiff as follows:

	Right Elbow
1.	Pain during change of weather.
2.	Deformed elbow joint.
3.	Soreness over forearm muscle.
4.	Numbness over ulnar side of right forearm and little finger.
5.	Weakened strength of elbow.
	Left Wrist
1.	Stiffness.
2.	Soreness upon change of weather.
3.	Weakened grip strength.

13. Physical examination of the right elbow shown:

1.	Normal alignment.
2.	7 cm surgical scar over lateral side, tender.
3.	Absence of soft tissues swelling.
4.	Strength was preserved.

14. Physical examination of the left wrist shown:

1.	Normal alignment.
2.	Absence of residual soft tissue swelling.
3.	Tenderness over Distal Radio-Ulnar Joint.
4.	4 stab scars along distal radius and 2nd metacarpal for external fixator pin insertion.
5.	Strength was preserved.
6.	Subjective impaired sensation over ulnar side of distal forearm and little finger, motor function of ulnar nerve was unaffected.

15. Radiological examinations of the wrist and elbow shown:

	Right Elbow
1.	Fracture radial head healed up with good alignment.
2.	Degenerative changes of elbow joint were noticed.
3.	Calcification of medial side soft tissue was detected.
4.	2 screws were left inside radial head.
	Left Wrist
1.	Mildly deformed distal radius.
2.	Alignment and length were preserved.
3.	Distal Radio-Ulnar Joint was unremarkable.
4.	Deformed ulnar styloid suggestive of previous trauma.
5.	No sign of degenerative changes was noticed.

16. Dr. Tsoi was of the view that the injury involving fracture radial head was successfully reduced and fixed by 2 screws though with post-traumatic degeneration of the elbow joint.  He noted that some calcification were detected around the medial epicondyle.  The calcified tissue may affect the nerve which explained the numbness and impaired sensation of the distal forearm and little finger.  The doctor opined that if the sensory disturbance to the left forearm and finger progressed or signs of ulnar nerve motor dysfunction developed, the Plaintiff may consider transposing the ulnar nerve anteriorly.  The cost is around $25,000 and the Plaintiff needs 3 months rehabilitation after the surgery.

17. In relation to the left wrist fracture, Dr. Tsoi observed that was a solid union.  The wrist has recovered to a maximal medical improvement and no further treatment is required.

18. Dr. Tsoi concluded that the Plaintiff may encounter some difficulty in resuming his pre-injury job as he may have inconvenience in lifting up heavy objects and performing drilling/hammering work.  He opined that lighter duty work like carpark attendant and restaurant waiter etc are more suitable for the Plaintiff.  Sick leave up to 6 months was reasonable.

19. In his supplemental medical report dated 3 February 2007, Dr. Tsoi stated that the inability to resume his pre-injury job was mainly due to the post-traumatic degeneration caused by the accident. Such degeneration would still develop even if the Plaintiff attended regular follow up treatments in Hong Kong.

20. Nevertheless, Dr. Tsoi opined that if the Plaintiff had attended such follow up, the time to achieve a stage of maximal medical improvement would be shortened.

Pain, Suffering and Loss of Amenities

21. Mr. Shum, Counsel for the Plaintiff, referred the Court to the following authorities and submitted that the Court should award $400,000 under this head.

1.	Ng Shing Kwai v Chan Yu Chuen, HCPI 923/2001 (Master de Souza, 7 September 2002)
2.	Chan Pui Kuen v Lee Oi Wah, HCPI 661/2000 (Deputy Judge Toh, 6 September 2001)
3.	Tsui Nuem v Cheung Wai Kuen, HCPI 374/1998 (Master Jones, 9 December 1998)
4.	Cheung Fat Tim v Wong Siu Ming trading as Kee Construction Co & another, HCA 5079/1991 (Findlay J, 17 January 1995)
5.	Yau Shing Chu v Koo Tsui Koon & others, HCA 3221/1994 (Master Britton, 16 September 1994)
6.	Cheng Loon Yin v Secretary for Justice & another, HCPI 118/2003 (Deputy Judge Carlson, 16 November 2004)
7.	Tsang Hin Cheung v Ng Kit Yeung & another, HCPI 956/2003 (Beeson J, 12 February 2002)
8.	Ho Kwai Hong v Cheung Kok, HCPI 93/2002 (Master Shum, 31 October 2002)

22. I have considered the injuries and disabilities suffered by the Plaintiff, the treatments he received and the relevant authorities.  I am of the view that the award under this head should be at $350,000.

Pre-Trial Loss of Earnings

23. It is the Plaintiff’s case that the Plaintiff earned $300 per day and on average worked 26 days in a month.  His monthly income was thus $7,800 (26 days x $300).  In the absence of evidence to the contrary, I accept the Plaintiff’s figures.

24. The Plaintiff said he was unable to return to his pre-accident job.  He had worked as a car park attendance since 20 April 2002.  The average monthly income for the period April 2002 to December 2006 is $5,657.04.  The average income as from January 2007 onwards is $7,200 per month.

25. The Plaintiff claims total loss of earnings at $39,260 ($7,800 x 5 months 1 day) for the period 19 November 2001 to 19 April 2002.  It should be noted that there is no proper sick leave certificate before the Court certifying the length of sick leave the Plaintiff is entitled to.  I noted Dr. Tsoi’s view that 6 months is reasonable.  Since the external fixator was removed on 9 January 2002 and that the Plaintiff had to receive follow up treatments on 24 January 2002, the Plaintiff must require some further time before recovering to such an extent enabling him to resume work.  In this regard, I accept Dr. Tsoi’s opinion that the Plaintiff is entitled to sick leave for 6 months, i.e. up to May 2002.  I  allow the claim of $39,260.

26. As the Plaintiff is suffering degeneration at the elbow and is still affected by numbness and impaired sensation of the distal forearm and little finger, I accept the view of Dr. Tsoi that the Plaintiff may experience some difficulty in resuming his pre-injury job.

27. In my judgment, the Plaintiff had already tried his best to earn his own living.  I make the following awards:

20 April 2002 to December 2006	$121,077
($7,800 - $5,657.04) x 56.5 months
January 2007 to 30 June 2007	$3,600
($7,800 - $7,200) x 6 months
	$124,677

28. The total award for pre-trial loss of earnings and mandatory provident fund (“MPF”)  is ($39,260 + 124,677) x 1.05 = $172,134.

Future Loss of Earnings

29. Mr. Shum had referred me to the following authorities and submitted that a multiplier of 14 be adopted.

1.	Tsang Hin Cheung v Ng Kit Yeung, HCPI 956/2003 (Beeson J, 3 January 2005)
2.	Chow Tai Loi v Leung Kam Hung, HCPI 320/2002 (Master Jeffries, 24 December 2003)
3.	Shek Kam Ching v Po Kee Construction Engineering Co [2002] 3 HKLRD 795
4.	Au Hon Ling v Ching Hoi Keung, HCPI 416/2003 (Suffiad J, 1 September 2004)

30. I have taken into consideration the age of the Plaintiff and the nature of his current employment.  In all the circumstances of this case, it would be appropriate to adopt a multiplier of 14.  The award under this head including MPF is ($7,800 - $7,200) x 14 x 12 x 1.05 = $105,840.

Loss of Earning Capacity

31. Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C

“

The consideration of this head of damages should be made in two stages.  (1) Is there a “substantial or “real” risk that a Plaintiff will lose his present job at some time before the estimated end of his working life?  (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialize, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff’s chances of getting a job at all, or an equally well paid job.”

32. With the resultant disabilities from the accident, I have no doubt that the Plaintiff will suffer some disadvantage and handicap in the labour market.  Bearing in mind the job nature of his employment, I am of the view that an award of $35,000 is appropriate.

Future Medical Expenses

33. The Plaintiff claimed $25,000 for the operation in future for transposing the ulnar nerve.

34. However, Dr. Tsoi did not explain the probability of such need.  Further, the Plaintiff claimed that his conditions had slight improvement recently.

35. In the absence of clear evidence as to the need of the operation, I make no award under this head.

Special Damages

36. The Plaintiff claimed for

a.	Medical expenses (for treatments in HK)	$3,000
b.	Tonic food	$12,000
c.	Bonesetters’ fees	$31,372
d.	Travelling expenses	$7,000
		$53,372

37. There is no receipt for item (a).  Ms. Shum submitted that there was clear evidence showing that the Plaintiff was hospitalized for 12 days and received 4 out patient treatments and thus the Court should at least award something to the Plaintiff.  I accept this submission and award $1,000.

38. Once again, there is no receipt for item (b).  In the absence of any supporting receipt, I will only allow $3,000.

39. Item (c) is supported by receipts but up to $30,073 only.  There is little evidence as to why the Plaintiff required these treatments and whether they were beneficial to the Plaintiff.  I only award $10,000 under this head.

40. The traveling expenses include that incurred in Hong Kong and for traveling to and from Mainland for treatment.  I can see no reason why the Plaintiff should seek treatment in Mainland.  I only allow $500 under this item.

41. To sum up, I award

PSLA	$350,000
Pre-trial loss of earnings	$172,134
Post-trial loss of earnings	$105,840
Loss of earning capacity	$35,000
Special damages	$14,500
	$677,474

42. Interest at half judgment rate will be awarded for special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

43. I make an order that the Defendant do pay the Plaintiff costs of this assessment to be taxed if not agreed.  Certificate to Counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.