CHAN MING v. WAYFINE INVESTMENT LTD.

HCP1 148 OF 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 148 OF 1997

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Assessment of Damages

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Introduction

1. On 2 April 1994, exactly 7 years previously, the plaintiff, now aged 41 having been born on 31 March 1960, sustained injuries whilst in the employment of the defendant, a company which I understand is insolvent. On the day in question, the plaintiff was engaged as a casual delivery and transport worker by the defendant. As he was assisting a delivery of heavy computer components at the loading bay in Times Square, Causeway Bay, a quantity of the goods fell off a trolley, hitting his left foot and trapping that limb at the ankle causing him significant injuries. The ensuing ECC proceedings plainly established that plaintiff was indeed injured in the course of his employment with the defendant, a fact the defendant had challenged to no avail. The common law claim for damages was instituted on 17 February 1998. Judgment of liability was entered on 4 January 2001 with damages to be assessed. The defendant did not appear at the assessment.

2. The plaintiff briefly took the witness stand to elaborate on his claim. In so doing, he adopted his witness statement as his evidence. There being no participation from the defence, there was no basis not to accept his testimony, which I find to be credible, honest and above all, not given to exaggeration, a common failing in personal injuries actions. The assessment was straightforward enough, and the task was made the easier by counsel's assistance.

Pain, suffering and loss of amenities

3. Two medical reports have been made available. The initial and very brief one was issued by Dr. Choi Kok-kwok of Queen Mary Hospital dated 21 November 1994. It confirmed that the plaintiff had suffered a fracture of his left lateral malleolus. Open reduction, internal fixation and bone grafting were undertaken on 30 April 1994. The plaintiff was discharged from hospital on 7 May 1994. He remained on sick leave until 10 March 1995.

4. On 30 October 1996, the plaintiff was examined by Dr. Arthur Chiang, an orthopaedic surgeon. Dr. Chiang's report was comprehensive and I shall revert to it again shortly.

5. The evidence revealed that the plaintiff was discharged from hospital in May 1994 with his leg still in plaster. This was removed some 4 weeks later. In the interim, he had to use crutches and attend follow-up treatment at Sai Ying Pun Clinic. Physiotherapy at Kowloon Rehabilitation Centre followed and by October 1994, the plaintiff was able to walk unaided. For a considerable period after the accident, the plaintiff continued to experience stiffness, and pain after prolonged periods of walking or standing. At the time of his examination by Dr. Chiang, the plaintiff was still walking with a mild limp, a feature that no longer obtains today.

6. Dr. Chiang found that the fracture had healed well with good alignment. No post-traumatic degenerative change in the ankle joint was noted. The range of motion test revealed a residual limitation in the dorsiflexion, eversion and inversion of the left ankle. There was no discernible muscular wastage and a reasonable recovery was anticipated. Dr. Chiang opined that the degree of impaired range of motion in the left ankle would permit relatively symptom free daily activities. With prolonged manual work or unduly long hours of standing, he expected left ankle symptoms to arise. He was of the view that the plaintiff has by dint of the residual limitation suffered a 3% permanent impairment of the whole person and that prospective osteoarthritic changes were unlikely.

7. These findings are consistent with the plaintiff's present complaints of mild pain in the ankle and of difficulty standing for longer than an hour at a time. Sitting, squatting, or lifting heavy weights for long periods would also cause a measure of discomfort in the affected leg. The plaintiff testified that he is able to run again. He is currently unemployed and receiving social welfare assistance of $3,310 each month.

8. Counsel drew my attention to two cases on ankle injuries, one being more pertinent than the other. They are Sui Wai Man v Lee Chi Chong & anr, PI No 174 of 1994, and Lam Kwai Yip v Yuen Yun Kui, HCA No A12617 of 1994. As in all assessments, such awards provide at best a comparative view, being no more than a useful guide or starting point. The plaintiff's injuries do not come close to the serious injury category nor has it been suggested that this is so. Mr. Wright submitted that an award of $200,000 in the instant case would be fair and appropriate. I agree. That is the sum I shall award the plaintiff under this head. Interest on this quantum over 3.85 years at 2% pa from 17 February 1997 (the date of the writ) amounts to $15,400.

Pre-trial loss of earnings

9. The plaintiff explained that prior to the accident, he was principally earning a living as a construction worker with a daily wage of $500. Taking an average over a 12-month period, he said he would be working at construction sites for 8 months with another two months as a casual worker when he would earn just $300 a day. For the remaining two months, he would generally be unemployed. When in work, he would work 25 days a month. It was during a particular hiatus that a friend recommended him to work for the defendant. From these figures, it can readily be established that the plaintiff's pre-accident earnings averaged $115,000 per annum.

10. Post accident, the plaintiff was able to find work. In 1996 he worked as a waiter in a dai pai dong earning $200 a day. He remained at this job for 4 months only as the long hours brought on pain in his ankle. In all, he earned about $22,400. In 1995 he found employment as a document courier for 12 days, but again had to give up work because of ankle pain. He said he earned $2,520 in total for that job. Between November 1999 and March 2000, he secured employment in a knitting factory, a job that paid $280 a day. On average, he was only able to work 2 to 3 days a week and earned about $10,000 at the time. I am satisfied that he was able to and did earn $34,920 from these three jobs.

11. The plaintiff testified that he fully intends to return to full employment and has registered with the Labour Department for the purpose. Despite his efforts, he was unable to find work other than those listed above. That was not for want of endeavour, a fact I wholly accept to be truthful. The downturn in the economy in recent years was a factor he cited for his difficulty in finding work.

12. Mr. Wright quite properly made reference to the Quarterly Report of Wage and Payroll Statistics, June 2000 in formulating the plaintiff's claim for past and future loss of earnings. The all industry sectors index for March 1994 was 116.1. The equivalent for March 2000 was 149.3, an increase of 33.2 over the intervening period. He submitted that wages would have increased by 28.6% or 33.2 divided by 116.1. That I am prepared to accept.

13. It has been established that the plaintiff was able to earn $115,000 per year. Applying this percentage of increase, the plaintiff's notional earnings would have increased over time to $147,890 ($115,000 x 1.286). His median wages would therefore be $147,890 +$115,000 divided by 2, or $131,445 per annum but for the accident. 7 years have elapsed since the accident. In that time, he should have been able to amass $920,115 ($131,445 x 7 years).

14. The plaintiff was off work a full year. Mr. Wright very fairly conceded that credit must be given for the plaintiff's earning capacity prior to the trial. From the evidence of the three jobs that he was able to secure, it is patent that his daily wage was $200 in 1996, $210 in 1995 and $280 in November 1999 and the same when he left the knitting factory in March 2000. That produces a daily average of $230 ($200+$210+$280 divided by 3). When last employed, he earned $280 per day. The average earning rate would therefore be ($230+$280 divided by 2) or $255 a day.

15. On a 25 day working month, the plaintiff should have been able to earn $255 x 25days x 10 months of each year, or $63,750 per annum. It will be recalled that the plaintiff even at the best of times was idle for two months of the year. With one year in convalescence, up to trial, the plaintiff should have been able to earn $63,750 pa x 6 years or $382,500. Deducting the wages actually earned up to the date of the hearing of $34,920, net pre-trial loss can be assessed at $920,115 less $382,500 or $537,615.

16. With interest at 6.25% pa for 7 years, an award of interest under this head comes to $235,206.50 (rounded up).

Future loss of earnings

17. The plaintiff accepts that for prospective loss, it would only be fair and right that his full earning potential calculated on a 12-month working year as distinct from 10 months as was his practice in the past should be adopted. That being so, and accepting that he is now capable of earning $280 per diem, his expected annual income would be $84,000 or $280 x 25 days x 12 months. As was calculated, his notional wages at the date of the trial amount to $147,890. This therefore produces a net future annual loss of $147,890 less $84,000 or $63,890 pa. I am persuaded that a multiplier of 12 is appropriate in the circumstances, given the plaintiff's age and the probability that his working life might well extend to about 65. His future loss of income can be assessed at $766,680 or $63,890 x 12 years' purchase.

Specials

18. These come to $4,471 and are both reasonable and modest. They are allowed in full. Interest at 6.25% pa over 7 years additionally amounts to $1,956.

Conclusion

19. I make the following awards:

PSLA	$200,000
Interest	$ 15,400
Pre-trial loss	$537,615
Interest	$235,206.50
Prospect loss	$766,680
Specials	$4,471
Interest	$1,956
Total award:	$1,761,328.50
Less ECC Award inclusive of interest	$156,207.22
Net award	$1,605,121.28

20. The plaintiff shall have his costs of this assessment, taxed if not agreed, with certificate for counsel.