LAU YIU v. ANWELL BUILDING CONSTRUCTION CO LTD AND OTHERS

HCPI 1062/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1062 OF 2002

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ASSESSMENT OF DAMAGES

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Background

1. The Plaintiff was employed as Owner's Site Representative II of the Development Division of Sino Land Company Limited of the Sino Group. The Sino Group was one of the developers of the site at 2A, Arbuthnot Road and 54 to 56 Wyndham Street, Central, Hong Kong ("Construction Site"). The lst Defendant was the principal contractor for the construction of the superstructure at the Construction Site. The 2nd Defendant was the 1st Defendant's sub-contractor responsible for the steel formwork of the concrete framework at the Construction Site. The 3rd Defendant was the lst Defendant's sub-contractor for the supply and/or installation of reinforced bars to the Construction Site.

2. On 15th May 2000, the Plaintiff was assigned by his employer to visit the Construction Site for the purposes of carrying out a routine inspection. He was at the 5th Floor slab of the superstructure at the Construction Site, when the steel formwork panel on the 5th Floor suddenly collapsed and struck some reinforcement bars which had been placed on top of a light-weight platform beside the steel formwork panel. The reinforcement bars fell from the platform at a height of around 1.6 meters above the ground and hit the Plaintiff, as a result of which the Plaintiff suffered personal injuries.

3. On 21st November 2002, the Plaintiff issued proceedings against the 1st, 2nd and 3rd Defendants for damages sustained as a result of the accident. On 24th January 2003, interlocutory judgment was entered against the 1st and 2nd Defendants, for damages to be assessed. On 11th March 2003, interlocutory judgment was likewise entered against the 3rd Defendant for damages to be assessed. The hearing of the assessment of damages took place on 21st November 2003. The Defendants, who had never taken any part in the defence of the proceedings, were absent at the hearing of the assessment of damages.

The Injuries and the Treatment

4. Very shortly after the accident, the Plaintiff was sent to the Accident and Emergency Department of Queen Mary Hospital ("QMH"). On admission, he was found to be conscious with normal haemodynamic state. There was compound fracture dislocation of the right ankle and a flap wound of 10 cm long over the right leg. Abrasions were seen on the right elbow and forearm. X-ray of the right leg showed segmental fracture of the right fibula and fracture dislocation of the right distal tabia. The Plaintiff was admitted into the Orthopaedic Ward of QMH. The procedures performed were: (1) debridement of wound; (2) suture of skin and subcutaneous tissue of other sites (right leg wound); (3) open reduction of dislocation of ankle; and (4) application of external fixation of compound fracture at tibia and fibula. Further debridement of the right leg wound was performed on 18th May 2000. The Plaintiff was transferred to the Maclehose Medical Rehabitation Centre ("MMRC") for non-weight bearing walking exercise on lst June 2000. On 27th June 2000, the Plaintiff was re-admitted into QMH for removal of the syndesmosis screw and external fixator. On 4th July 2000, the Plaintiff was transferred back to MMRC for rehabitation and non-weight bearing exercise. On 22nd July 2000, the Plaintiff was re-admitted into QMH from MMRC for examination under anaesthetic of the right distal tibiofibular syndesmosis and syndesmosis screw insertion. The operation was done on 24th July 2000. On 29th July 2000, the Plaintiff was discharged from QMH to MMRC for non-weight bearing walking and mobilization exercise.

5. On 10th August 2000, when the Plaintiff attended follow-up treatment, his right ankle was stiff and further mobilization exercise was arranged. On 20th October 2000, the Plaintiff was discharged from MMRC. He could then manage walking with one elbow crutch. On 20th November 2000, the Plaintiff was re-admitted into QMH for an operation to remove the syndesmosis screw. On 23rd November 2000, the Plaintiff was discharged from QMH to MMRC where he had further rehabitation therapies. On 15th December 2000, the Plaintiff was discharged from MMRC. Upon discharge, he was walking with one cane. Thereafter, the Plaintiff attended regular follow-up treatment at QMH. He also attended 26 sessions of physiotherapy at the Alice Ho Mui Ling Nethersole Hospital ("AHNH") from 27th December 2000 to 14th March 2001.

Disabilities and Impairment

6. The Plaintiff was aged 53 at the date of the accident on 15th May 2000 and is aged 56 at the time of the assessment of damages. As a result of the accident, the Plaintiff was granted sick leave from 15th May 2000 to 15th March 2001 - a total of 10 months. Prior to the accident, the Plaintiff was healthy and actively at work. According to the Plaintiff who gave evidence at the hearing of the assessment, his condition had never fully recovered after the accident. Although he had no great difficulty in walking, he experienced difficulties when going up and down stairs. He can no longer jump or run. His work requires him to walk up and down staircases and to move around construction sites. His work also requires him to climb up and jump down from heights and he now cannot do this without assistance and without ladders and other structures to help him climb up and down for inspecting works. He cannot squat fully.

7. I have found the Plaintiff to be an honest and credible witness. He did not exaggerate his discomfort or disabilities in any way. He was also forthcoming in relation to the expenses incurred (which are dealt with under the heading "Special Damages" below).

8. The Plaintiff was examined by Dr. Lam Kwong Chin on 26th October 2001. Dr. Lam's report dated 14th November 2001 confirmed that the Plaintiff had right leg and ankle pains which would grow worse after prolonged sitting or walking. He could tolerate walking for one hour, needed holding onto rails for going downstairs, and was less confident in climbing and walking on uneven grounds in construction sites. There were multiple scars on the right leg.

9. The Defendants have not filed any medical report in the proceedings. The Plaintiff applied and I granted leave on 21st November 2003 that the report of Dr. Lam dated 14th November 2001 be adduced as evidence without calling Dr. Lam to give live evidence.

10. To summarise Dr. Lam's report, Dr. Lam's assessment which was done 17 months after the injury was that the Plaintiff was still walking with a slight limping gait, with less steady weight bearing capacity on the right leg. The Plaintiff had marked muscle wasting of the right lower limb. This was related to the under-use of his right limb after a fracture and showed that the Plaintiff had genuine right lower limb walking disability. Ankle motion was restricted in all pains, virtually nil with inversion or eversion. The x-rays showed that the Plaintiff had a rather comminuted fracture, with remaining screws fixing the posterior malleolar fracture. The ankle joint was also tilted with widening of the medial compartment. According to Dr. Lam, this was due to fracture fragment displacement, and would predispose the Plaintiff to more ankle pain and early degeneration.

11. Dr. Lam assessed the Plaintiff to have suffered 14% impairment of the whole person. He anticipated that as the Plaintiff's articular surfaces are damaged, the Plaintiff is prone to have further deterioration, with gradual increase in ankle pain and stiffness. In Dr. Lam's opinion, the Plaintiff will probably require a further operation in the form of ankylosis of the ankle. This will give a stiff but less painful ankle. The operation is required in about 5 to 10 years' time from 2001, i.e. some time from 2006 to 2011.

Pain, Suffering and Loss of Amenities ("PSLA")

12. Counsel for the Plaintiff contends that the Plaintiff's injuries fall near the lower end of the serious injury category. He has referred me to various cases, including Chan Yiu Ping v. Mok Yuk Kwong HCPI 92 of 1998; Chan Kam Ming v. Huen Po Leung HCPI 436 of 1999; Ho Sik-Tung v. Lau Kin-Sun HCPI 408 of 1999; Yu Kok Wong v. Lee Tim Loi CACV 139 of 2000; Chan Sik Pan v. Wylam's Service Limited HCPI 648 of 1995 and Wong Wing Chow v. Lee Wing Hang HCPI 244 of 2002. These all relate to injuries very similar in nature to those of the Plaintiff in the present case. In the case of Ho Sik-Tung, the plaintiff suffered 15% impairment of the whole person and was granted one year sick leave. His injuries seemed very similar to those of the Plaintiff in this case, and the Court awarded HK$400,000 for PSLA. Although the Plaintiff here took only 10 months sick leave, his evidence was that he had wanted to return to work as soon as possible. The case of Chan Yiu Ping was just outside the serious injury category and a global award of HK$500,000 was considered to be reasonable compensation taking into consideration the psychological impairment to the plaintiff in that case. With these cases in mind, I accept that an award of HK$400,000 to the Plaintiff in this case is reasonable.

Pre-assessment/Accrued Loss of Earnings

13. Before the accident, the Plaintiff worked as an Owner's Site Representative II with monthly earnings of HK$26,850. With double pay and bonus, his average income before the accident was approximately HK$29,647. He was granted sick leave from the accident until 15th March 2001.

14. The evidence adduced on behalf of the Plaintiff was that in October 2000, there were two vacancies for promotion of Owner's Site Representative II to the post of Owner's Site Representative I within Sino Land Company Limited. Mr. Tang Chun Fai, the Senior Manager (Quality) of Sino Land Company Limited and the Plaintiff's supervisor, gave evidence on behalf of the Plaintiff. He confirmed that when there were these two vacancies for promotion, the Plaintiff was on sick leave as a result of the accident on 13th May 2000. After considering the performance and seniority of all the Owner's Site Representatives II under his supervision, Mr. Tang had considered the Plaintiff to be a suitable candidate for promotion and was prepared to recommend him for such promotion. However, because the Plaintiff's injuries from his accident on 15th May 2000 were quite serious and it was uncertain at the time whether and when the Plaintiff could resume his duties, Mr. Tang did not eventually recommend the Plaintiff for promotion. Two other Owner's Site Representatives II were promoted instead.

15. Having heard and seen Mr. Tang giving live evidence, I have no reason to doubt what he said. He was quite forthcoming of the fact that after 2000 until 2003, because of difficulties within the industry, there has been no further internal promotion, but in 2000, he did consider the Plaintiff and would have recommend the Plaintiff for promotion but for the accident.

16. In the light of such evidence, coupled with the records of the Plaintiff's performance appraisals produced in evidence, I am satisfied that the Plaintiff would have been promoted in October 2000 if he had not been injured as a result of the accident. The average monthly earnings of an Owner's Site Representative I is HK$34,179. Accordingly, I allow the Plaintiff's claim for loss of earnings for the period of his sick leave on the basis of five months of his average income as Owner's Site Representative II, and five months of the average income for an Owner's Representative I. The total past loss of earnings are:

HK$29,647 x 5 months	HK$148,235
HK$34,179 x 5 months	HK$170,895
HK$(34,179 - 29,647) x 32 months	HK$145,024
	HK$464,154

Future Loss of Earnings

17. The Plaintiff is now 56 years old. On the authority of Lui Sheung Mok v. Wah Wah Travel Services Ltd. HCPI 1188 of 1999, I accept that there should be a multiplier of 6. The Plaintiff's future loss of earnings is therefore allowed at:

HK$(34,179 - 29,647) x 12 x 6 = HK$326,304

Loss of Retirement Benefit

18. I will allow the Plaintiff's loss of his entitlement to 5% of the earnings as the employer's contribution to the Mandatory Provident Fund which came into force in December 2000. The Plaintiff's total loss of MPF is accordingly HK$29,547:

From 1st December 2000 to 15th March 2001
HK$34,179 x 5% x 3.5 months	HK$5,981
From 16th March 2001 to 15th November 2003
HK$145,024 x 5%	HK$7,251
From 16th November 2003 onwards
HK$326,304 x 5%	HK$16,315
	HK$29,547

Loss of Earning Capacity

19. In his report of 14th November 2001, Dr. Lam expressed his opinion that the Plaintiff's working ability would be affected by his diminished weight bearing ability. In Dr. Lam's opinion, the Plaintiff's work performance would be affected by his ankle problem and it was anticipated that the Plaintiff might not be able to continue to work after a number of years. In the course of giving evidence, the Plaintiff referred to the difficulties he experienced at work in not being able to jump or enjoy the same agility he used to have before the accident, and the problems he now faces when confronted with the need to climb up and down in the course of his site inspections. When Mr. Tang of Sino Land Company Limited gave evidence, he recognised that the Plaintiff's disabilities suffered as a result of his injuries would have impact on the Plaintiff's future prospects. An Owner's Site Representative is required to work in and to visit construction sites. Mr. Tang pointed out that Site Representatives are required to walk up and down staircases on sites as it is not always the case that there are lifts available. They have to work long hours the whole day for such site inspections. Mr. Tang was not very sure whether the Plaintiff's health condition would enable him to do the work required of site representatives. Moreover, Mr. Tang pointed out that since the Plaintiff's discharge from the hospital, the company had tried to arrange work for the Plaintiff which would not require him to climb up flights of staircases. From this, it can be inferred that there is a real and substantial risk that the Plaintiff might lose his current job and that if he does so, he will be at a disadvantage in the open labour market. I therefore allow the Plaintiff's claim for HK$177,882 being 6 months of his average monthly income under this head of damage.

Special Damages

20. I accept and will allow the following items of the Plaintiff's expenses:

	HK$
Medical expenses	15,680.00
Tonic Food	15,000.00
Wheelchair	3,500.00
One pair of air-sport shoes	900.00
Travelling expenses incurred by the Plaintiff	2,511.60
Loss of wife's earning	15,000.00
Travelling expenses incurred by family members	13,058.60
Future medical expenses	80,000.00
Future sick leave	148,235.00
	293,885.20

21. On the tonic food (bird's nests), the receipts evidence expenses incurred of HK$25,000. However, I have only allowed HK$15,000 as expenses reasonably incurred.

22. I have also allowed HK$80,000 as the reasonable costs of the further operation advised by Dr. Lam to be required. Dr. Lam recommended a convalescence period of 3 to 6 months. Bearing in mind that the Plaintiff would be older by the time he takes the operation, I have allowed 5 months as a reasonable period for convalescence in this case, and on that basis, have allowed earnings of HK$148,235 for the 5 months' period of convalescence.

23. In summary, my assessment of damages would be HK$1,691,772.20. After deducting the ECC compensation already received from the employer, the net sum recoverable by the Plaintiff will be HK$1,335,900.20, with interest on general damages from the date of the writ to the date of judgment at 2% per annum, and interest on the pre-trial losses and special damages at 4% per annum from the date of accident to the date of judgment.

24. The Plaintiff will be entitled to the costs of the action, to be taxed if not agreed. The Plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations.