NGAI LUNG HING v. GOWIN ENGINEERING CO LTD AND ANOTHER

HCPI 211/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 211 OF 2005

____________

____________

_______________

J U D G M E N T

_______________

1.  The plaintiff Mr Ngai was employed as a casual worker by the 1^st defendant (Gowin Engineering) during the course of which he suffered an accident, badly hurting his right arm.  This is his claim in damages.

2.  Prior to trial there were two significant developments.  The head contractor having been joined as 2^nd defendant, the action was discontinued against it.  That was the first.  The second was that the parties agreed that Gowin Engineering should be liable as to 70% of Mr Ngai's loss.

3.  The remaining matter to deal with is the quantum of that loss.

The Trial

4.  Both parties were represented.  Mr Ngai alone was called to give evidence, his witness statement comprising his evidence-in-chief.  Representatives of Gowin Engineering had made statements as well, but declined to appear to confirm their contents or otherwise give evidence.

5.  A Master's order prior to trial directed the production of reports to establish the level of medical treatment and care afforded Mr Ngai without calling the makers of the reports.  Dr Fu Wai Kee and Dr Richard Lau, orthopaedic specialists respectively appointed by the plaintiff and defence, were called upon to make a joint report without their being called as well.

6.  The following emerged from the evidence adduced and reports and other material produced.

History

7.  Mr Ngai was born in Hong Kong in 1972.  On his account he came to be employed by Gowin Engineering in about early 2003.  His duties included general labouring and operating concrete breaking equipment such as pneumatic drills, jack hammers and the like and electrical hand held machines and similar.  He also drove light goods vans.  In addition he was sometimes required to supervise other workmen, in the way of a foreman.  He was paid $700 per day, in cash.  If he chose not to work or if there was no work on any given day he was not paid.

8.  The accident happened on 16 March 2004.  Mr Ngai was then 31 years old.  He had been told to cut or drill a hole in a plank of wood.  He attempted the task.  He used a portable electric grinder installed with a sawing plate.  Whether this was the appropriate tool for the job and whether there was an alternative choice were but are no longer issues.  As he was performing the task the grinder bounced from the plank and the blade cut deeply into his right forearm.

9.  Mr Ngai was at once taken to hospital.  He was operated on in emergency circumstances.  The injury comprised a 70% cut of the brachioradialis muscle bulk; similarly of the extensor carpi radialis longus and extensor carpi radialis brevis.  There was no fracture or other injury to any bone.  Suturing was undertaken of the muscle bulk, and he was discharged three days later.  Follow-up included 9 sessions of outpatient physiotherapy and 26 of occupational therapy during which steady progress was apparent.  It was deemed that he had reached the state of maximal medical improvement by August 2004 and he was discharged.  He was granted a sick leave certificate until 11 October 2004.

10.  On expiry of his sick leave Mr Ngai returned to work for Gowin Engineering.  There he put in a total of about 30 days over a period of 1½ months before he left on his own accord.  It is his case that his right arm was (and remains) weak by comparison with his pre-accident condition and undue exertion causes pain and numbness.  Because of this disability he found he could not undertake the heavy duty labours that he previously had performed, at least without assistance, and chose thus to resign.

11.  Instead he found employment with a company called Sendon Electrical Service as a general labourer, restricted to light duties.  He is so employed to date.  He earns $350 per day when work is available.  Those days vary; on some days there are simply no light duties to perform.  Over the period of his employment they have ranged from 7 to 22 days per month.  Statistically this averages out at 18.15 days per month giving an average monthly income of $6,353.

12.  Mr Ngai said that he became dissatisfied with the level of pay he was receiving from Sendon Electrical, and in August 2005 applied through various avenues to change to a position that paid more.  He produced a notebook whose contents indicated that he applied for eight jobs during this time ranging from security, security supervision, general work and truck driving.  As the notes state and he confirmed, he was unsuccessful in respect of all of them.

The Issues

13.  What was not agreed and now requires my determination are the following:

(1) The average days per month Mr Ngai put in for Gowin Engineering pre-accident.  He says it was 26 days.  The defence counters that it could have been no more than 20.

(2) The severity of the injury insofar as it affects the level of the PSLA award.  Both sides accept this should be below the level of the category designated serious injury, but do not agree by how much.  Mr Ngai asks for $350,000.  The defence retort is that it should be no more than $250,000.

(3) Mr Ngai claims loss of earning capacity as a separate claim.  The defence response is that to include this as well as a loss of future earnings would amount to a double-up of compensation.

(4) On the issue of multiplier for calculation of future earnings Mr Ngai asks that this be 15.  The defence response is that it should be no more than 13.

(5) It is the defence's contention that Mr Ngai has not done enough to realize upon his earning potential; $350 per day averaging $6,353 per month is not enough.  He should be able to drive a van and thereby earn $10,000 per month.  Mr Ngai's response in evidence was that he has shown that he has made a proper attempt to improve his pay without success.  And driving is not really an option given his disability.

What is Agreed

14.  That which is agreed is the calculation of interest as I shall come to, and the special damages, of $2,500. 

15.  Total ECC payments of $195,480 have to be deducted, and of course the final award is to be discounted by Mr Ngai's liability of 30%.

The Joint Report of the Orthopaedic Surgeons

16.  An interesting feature of this is that there is no disagreement in the report and no challenge to the account given by Mr Ngai to them as to the extent of his injury and the limiting effect on his ability to work.

17.  They noted jointly that Mr Ngai having returned to work for Gowin Engineering upon medical clearance, he was obliged to change to a job requiring lighter duties because of his difficulty in handling the power tools.  He told them he suffered from pain and numbness of the right forearm; sometimes this occurred when he was at rest.  His general condition was satisfactory but there was a limited range of flexibility of his right wrist, and his right handgrip was significantly weaker than his left though he is right handed.  From hereon there will be no likely change in his condition, for better or worse.

18.  They went on to state that the treatment Mr Ngai received was reasonable and appropriate as was the length of sick leave.  They assessed the stiffness of the wrist and weakness due to muscle injury at 4% and 6% impairment of the whole person; in total 10%.

19.  They noted and did not question Mr Ngai's complaints of weakness and pain of the right arm on exertion, which prevented use of power tools and resumption of his pre-accident job.  The lighter employment engaged in now was not challenged.  There was no reference to his ability to drive.

Driving, an Option?

20.  In cross-examination Mr Wong for the defence put to Mr Ngai that he could and should be holding out for a job that would pay more and, in particular, that of driving a commercial vehicle.

21.  Mr Ngai said that he held a licence and could drive, but for short spells only before pain and numbness set in.  He believed that driving full-time or for prolonged periods could be dangerous.

Pre-Accident Work History

22.  Mr Ngai said that he worked a six-day week taking Sundays off.  He conceded that if the weather was wet he could not work, but said that in that event he worked the following Sunday to catch up.  He conceded that there was no work during Chinese New Year and the other Lunar holidays, but said that he worked on all other holidays.  And there were no breaks between construction sites during his employment history with Gowin Engineering.

23.  He supported his claim that he was employed for 26 days per month by production of a receipt for payments received for the first 15 days of March 2004; it was the next day that he suffered the accident.  For this half month he was paid for 13 days employed, justifying thus his claim for 26 days per month.

24.  There was no accounting or other evidence from Gowin Engineering to support the contention that Mr Ngai worked on average only 20 days per month.  The defence thus relied on its case put in cross examination that a casual worker paid on a daily basis could realistically achieve no more than the lesser figure.

Analysis

25.  I shall deal first with the dispute as to the number of days Mr Ngai worked pre-accident.  It is his account, not corroborated but also not challenged, that this lasted for about a year.  The defence argument that he could realistically have worked no more than 20 days per month on average was not supported by any accounting evidence.  Yet there was nothing to suggest that proper records would not have been kept.  The one receipt produced, by Mr Ngai, shows that he did put in 13 days of the last 15 before the accident.  But that was for half a month only, too short a period to denote a pattern, and during a season that is usually dry.

26.  Logically there must have been days when the weather would have played a part to prevent work, particularly during the wet months of summer.  Doing the best I can, and allowing for other breaks such as holidays and so on, I think a proper assessment would be 23 days per month.

27.  As to the level of the award for PSLA; both sides provided cases to support their respective positions.  Mr Wong for the defence handed up two cases of significant injury to an arm where in both cases the award was fixed at $200,000.  Mr Law representing Mr Ngai protested that these were cases of fracture of the wrist or arm, which is a much less serious form of injury than the severing of muscle bulk.  He produced a case where the victim had suffered an attack from a man wielding a chopper where the injury was to muscles, tendons and nerves.  He was awarded under this head $380,000. 

28.  I agree that Mr Ngai's injury warrants a higher award than those made to victims who suffered breaks or fractures, though not as high as is asked for.  As I find, the appropriate amount under this head is $300,000.

29.  Next the issue of loss of earning capacity. Given the nature of the work Mr Ngai was undertaking and, as I shall find, can now pursue, I agree with Mr Wong's contention that an additional award under this head is not warranted.

30.  As for the appropriate multiplier; Mr Wong relied on one case where for a victim slightly older than Mr Ngai it was fixed at 12.  Mr Law countered with an array of more recent authorities justifying a figure at or close to 15.  Both counsel accept that each case must be considered on its facts.  My view is that Mr Law has demonstrated his figure is nearer the mark.  But I pay heed to the particular type of heavy duty activity that Mr Ngai used to engage in and but for the accident would probably still be doing, and determine the appropriate figure in his case to be 14.

31.  Finally the type of employment that Mr Ngai should aspire to.  Mr Wong has homed in on driving.  That of course means, prospectively, being available to drive all or most of the day.  Mr Ngai claims that would not be possible.  I agree.  With road safety paramount, I do not think it acceptable that he should be forced into an occupation that would cause pain and perhaps numbness and put his safety and that of other road users at risk.  Furthermore, the orthopaedics take no issue with his engaging in the sort of work he now undertakes.  There is no challenge to that, no suggestion that he is exaggerating his problems or setting his sights too low.  And he did, as I find, make a concerted effort to better himself about a year ago without success.  In the circumstances, I shall fix the level of future earnings at that which he is currently being paid.

32.  I now deal with the level of damages to be awarded under the various heads.

PSLA

33.  This is fixed at $300,000.

Loss of Earnings

Pre-trial

16.3.04 – 11.10.04 (7 months, $700 at 23 days per month)
$700 x 23 x 7	$112,700
1.12.04 – 31.7.06 (20 months, $700 at 23 days per month
less $6,353 per month)
($700 x 23 - $6,353) x 20	$194,940
Pre-trial total	$307,640
Plus MPF	$15,382
	$323,022
	=======
Future
$700 at 23 days per month less $6,353 per month for 14 years)
($700 x 23 - 6,353) x 12 x 14	$1,637,496
Plus MPF	$81,875
	$1,719,371
	=========

Special Damages

34.  These are $2,500.

Interest

35.  This is at 2% on the PSLA from service of the writ to this day.

36.  On the pre-trial loss of earnings and special damages this is at 5.46% from the date of the accident to the date of judgment.

ECC

37.  Mr Ngai received his ECC of $195,480 by instalments, by which amount the award is to be reduced, with appropriate adjustments of interest.

Mr Ngai's Contribution

38.  The total is to be discounted by 30%.

39.  Counsel proposed that I leave the arithmetic to be sorted out by the parties' solicitors which suggestion I gratefully adopt, with liberty to apply if there are difficulties.

Costs

40.  These are nisi.  Mr Ngai having substantially succeeded shall have his costs.