YUEN YEUNG KWONG v. NGAI MAN WAH JOE

HCPI 858/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 858 OF 2011

(Formerly DCPI NO. 1718 of 2010)

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J U D G M E N T

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Introduction

1.  Plaintiff was injured after being struck by a car driven by the defendant whilst he was walking on the pavement on 11 September 2007.  He now claims damages for personal injuries and this is the hearing for assessment of damages.

2.  Defendant had never entered appearance in this case and thus interlocutory judgment on liability was entered.  The motor insurer in this case failed to provide insurance cover for the defendant in respect of the accident.  It also failed to take over conduct of the defence.

3.  Despite what was said, this court was told that all papers for the assessment of damages hearing had been served by plaintiff’s solicitors on the defendant and the motor insurance company concerned.

4.  Both the defendant and the motor insurer were absent at the hearing and the evidence adduced by the plaintiff was uncontested.

Injuries and treatments

5.  Plaintiff was aged 39 at time of accident and is now aged 45.

6.  According to the medical records, after the accident, he was sent to the Accident & Emergency Department of the Princess Margaret Hospital (“PMH”) where examination revealed that he had an open fracture and near amputation of his right tibia and fibula near the ankle and fracture of the shaft of the left distal femur.  The Archilles tendon was ruptured.  The right foot appeared ischaemic and there was loss of sensation to the sole.  He also had a 7-cm laceration over the right side of his back.

7.  The plaintiff had an emergency operation of open reduction and external fixation to treat the right tibia fracture and vascular repair to the tendon immediately on the day of admission.  The back laceration was also sutured.  He then stayed in the Intensive Care Unit for 4 days and later was transferred to the orthopaedic ward for further management.  He received a total of 4 operations for the fractures of both legs during hospitalization up to 7 November 2007.

8.  On 14 November 2007 he was re-admitted to PMH and underwent 2 more operations of bone graft of the right lower limb fractures and the persistent partial necrosis to skin flap over the right heel.  He stayed in the hospital for another 3 weeks until 6 December 2007.

9.  He had a third admission to PMH for a day on 12 February 2008 for an operation of removal of external fixator.

10.  Plaintiff said he was wheelchair-bound for more than 6 months after discharge from the hospital and had to wear a brace for 10 months until July 2008.  He then had to walk with a quadripod or crutches for many months that followed.  He attended intensive physiotherapy during hospitalization and after discharge from the hospital at PMH and later at Cheung Chau Hospital after he moved home to Cheung Chau for cheaper living.

11.  Plaintiff said he had difficulties attending frequent treatment sessions due to his ambulatory problems and severe pain in the injured lower limbs.  He did home exercises and afterwards continued to do rehabilitative exercises at home.

PSLA

12.  It is submitted by Ms Loh, counsel for the plaintiff that despite numerous operations and treatments, the plaintiff’s right lower leg fractures and right heel did not heal well.  He is left with severe recurrent pain, numbness and weakness of the right ankle and foot and the lower leg.  He had decreased sensation in the right leg by 30% and in the right foot by 80%.  He now walks with a limping gait, cannot run nor handle heavy weight.  He had difficulty walking on slopes, stairs or uneven ground.  As he had been relying too much on the left leg in ambulation, he gets tired easily and sometimes felt pain at the fractured site.

13.  Plaintiff in court, confirming his 2^nd witness statement says when he goes to crowded places and on rainy days, he would take an umbrella with him serving as a walking stick.

14.  Plaintiff said he sometimes get depressed and is always in a low mood due to the unresolved right leg pain and disabilities.  He is scared of moving traffic.  He cannot sleep well, has become withdrawn and stays at home most of the time.

15.  In the Re-revised Statement of Damages, plaintiff claims $580,000 under this head.

16.  Ms Loh submitted that the injuries suffered by the plaintiff should be considered the upper end of the “serious injury” category or lowest end of the “substantial injury” category as set out in Lee Ting Lam v LEUNG Kam-ming, an infant by his next friend LEUNG Shu-wing (CACV 11 of 1980).

17.  She submitted that plaintiff is left with substantially impaired working capacity.  He cannot sit, walk or stand for a long time otherwise his legs and right foot will become numb and painful.  He will be able to, if he can find such work at all, engage in sedentary/part-time light work as a cashier or watchman earning no more than $3,000 to $4,000 per month.

18.  I considered it appropriate, after considering what is before me, to put the plaintiff in somewhere between the middle to near upper end of the serious injury category, the same is defined as

“It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.”

19.  Ms Loh invited this court to consider the following cases:

(a)   Tse Yin Cheong (HCA 6768 of 1985)

(b)   Yang Yi Chai (HCA 1788 of 1984)

(c)   Lee Ching Por [1999] HKLY 519

(d)   Lee Kwan Tong (HCPI 1383 of 1996) [1997] HLKY 444

(e)   Ho Ah Look (HCPI 156 of 1996)

(f)   Lau Tuen Ping (HCPI 1221 of 2000)

(g)   Tse Hing Wan (HCPI 889 of 1998)

(h)   Lawati Bhawani Bikram (CACV 3 of 2002)

20.  The court of appeal in CACV 3 of 2002 accepted that the starting point for serious injury under this head could start at $460,000, relying on Chan Chi Shing v Tsang Fook Metal Engineering CACV 238 of 1999, unreported, 21 December 1999, though they said that at the time, $460,000 was the highest starting point for “serious injury” cases.

21.  The injuries of the plaintiff in the case of Tsang Hing Yuen and Nishimatsu Keenagai Joint Venture (a firm) and Another HCPI 906 of 1998 where plaintiff was awarded in March 2000 the sum of $490,000 under this head was more serious than the present one as the plaintiff in that case suffered also neurological damage resulting from head injury.  He was diagnosed with mild degree of cognitive dysfunction and his memory and concentration were impaired.  He also had decreased walking tolerance similar to the present complaint of the plaintiff.

22.  He had operations on hip, wrist and scalp suture.

23.  Again the plaintiff in the case of Hui Din Fun v Tong Chung Hoi HCPI 1284/1999 had fracture of left and right radius and nerve injury also.  He also had visual impairment after the accident.  His injuries was more serious than the plaintiff in the present case.  Because of the cumulative effect of the neurological and orthopaedic injuries, the Master had put him in the top range of serious injuries and awarded $564,000 under this head.

24.  Considering the injuries and the residual effect of the plaintiff and the authorities before me, I find the award of $500,000 appropriate under this head in the present case and I so award.

Pre-trial loss of earnings

25.  In this case, the plaintiff was granted sick leave by doctors of PMH from 11 September 2007, ie date of accident till 30 September 2009.

26.  Plaintiff in court says his pre-accident monthly earnings was $7,000 per month as a warehouse worker in cold meat warehouse.  I agree as submitted by Ms Loh that nature of work is required strenuous manual labour, that it is necessary to have a strong build and good physique.

27.  Plaintiff said he was enjoying excellent health before the accident but after the accident when he was examined by the orthopaedic expert Dr Chan Chi King on 31 May 2011 he was observed to be walking with limping gait with his right lower limb dragged and he had difficulty in ambulation as submitted by Ms Loh.

28.  Dr Chan Chi King, the orthopaedic expert for the plaintiff in his report dated 25 June 2011 finds the fracture left femur was treated with internal fixation (intramedullary interlocking nail) and had healed in a satisfactory condition.  There is no functional deficit as a result of the said injury.  The implants can be left permanently inside the femur.  If the patient desired of impingement of implants occurred, the implants can be removed.  The cost of such operation with 7 days hospitalization is about $80,000 in the private sector.

29.  The near amputation of the distal right leg was salvaged by emergency operation of external fixation and vascular repair, and subsequent multiple reconstruction surgeries including tendon repair, nerve graft, skin graft and free vascular flap transfer.  Eventually the near amputated distal right leg was preserved successfully.  However the right leg was left with significant functional deficits.  He suffers from persistent numbness and weakness below distal right leg.  He has to walk with a limp and he cannot run.  He is also left with multiple scars over the reconstructed right leg, and right thigh and left foot (due to skin graft and skin flap harvest).  Functionally it would be better if he had an amputation of right leg with fitting of a below knee prosthesis.

30.  Dr Chan considered sick leave up to a period of two years is reasonable.

31.  Because of the functional deficit of the right lower limb, Dr Chan finds the plaintiff cannot resume his duty as a labourer.  Sedentary duty such as cashier, telephone operator etc may be suitable for him.

32.  Relying on the expert view of Dr Chan, the sick leave up to 10 September 2009 should be approved.

33.  As for the period subsequent thereto, it appears that the plaintiff could undertake sedentary work.  Despite the plaintiff says he had follow up on medical treatment all along, it is noted that there was no evidence further follow up since August 2008, probably as the condition of the plaintiff was stabilized. Even if there was follow up, it must be very infrequent.

34.  As to what exactly was the monthly pre-accident earnings of the plaintiff, the court notes that initially in the Revised Statement of Damages, plaintiff said that was $6,500, the same was revised later to $7,000 in the Re-revised Statement of Damages.  In fact, in the witness statement of the plaintiff dated 7 June 2011, again he said his pre-accident earnings was $6,500 per month.  In the supplemental witness statement of the plaintiff dated 17 February 2012, he said $6,500 did not include overtime pay and that he actually earned $6,900 to $7,000 per month in the year of the accident.  He relied on the employer’s return on remuneration from April 2006 to March 2007 where he was said to receive $77,987 (after deducting 5% ie around $350 per month employees contribution for MPF).

35.  He said after the accident, he had received from the employer only $3,400 per month for 2 months during sick leave.

36.  He said he learned from his co worker that had he not met the accident presently he would be earning $8,000 per month in the same job.

37.  Despite what was said by the plaintiff, the Employer’s return of Remuneration and Pensions for the year 1 April 2006 to 31 March 2007 showed that for the subject period, the total wages of the plaintiff was $77,987 (all inclusive) which is equivalent to $6,498.9 per month.

38.  According to the salary slip of the plaintiff for August 2007, ie shortly before the accident, the basic salary of the plaintiff was $6,200 and attendance bonus was $300, out of which the plaintiff was to make contribution of $325, he was therefore only paid $6,175.

39.  In fact, a letter dated 22 November 2007 from his then employer Mingson Industries Ltd stated that the salary of the plaintiff was $6,500 per month.

40.  I reject plaintiff’s case that his pre-accident monthly earnings was $7,000 per month.  The same should clearly be $6,500 per month instead.

41.  In the notification by employer to the Inland Revenue Department of an employee about cease to be employed, the employer of the plaintiff had put $57,162 as the total pay to the plaintiff for period from 1 April 2007 to 14 January 2008.

42.  For the month of September 2007, he was paid $5,183.80 and for the month of October 2007, he was paid $3,600.

43.  It follows that despite what the plaintiff said, for the period, had he not met the accident, he should receive $6,500 x 9 14/30 = $61,533.

44.  The loss of income during this period was therefore actually: - $61,533 - $57,162 = $4,371.

45.  Plaintiff says in his supplemental witness statement that his friends were unwilling to refer him to work because he was disabled and walked with a limping gait.  He said as he could not walk or sit for a long time, he do not think he would be able to find security guard’s work which involve constant patrolling.  He said he had tried to look for work at small shops in Cheung Chau but such work require him to handle heavy goods.  He said he had not been able to find work since the accident and had been relying on traffic accident victims’ compensation received as well as disability allowance of $1,100 per month since mid-2008 and comprehensive social assistance of $3,000 odd to $4,000 odd per month in the past 2 years since sometime in 2009.

46.  In court, he was asked if he did register himself with the Labour Department for work.  He said no.

47.  I am not convinced that he did use reasonable efforts to find a job.  In any event, I do not accept that presently he would only be able to find a part time job earning $3,600 to $4,000 a month.  Bearing in mind, and I take judicial notice that presently the minimum wage in Hong Kong is $30 per hour, what the plaintiff seeks this court to accept is that he can only work less than 4 hours a day.

48.  In his Revised Statement of Damages filed on 27 September 2011, he said because of the functional deficit of his right lower limb, he would only earn about $5,500 per month.  That was a time before we have minimum wage in Hong Kong. Plaintiff was of such belief then, 4 years after the accident when his condition was already stabilized.  Now, in the Re-revised Statement of Damages, plaintiff said he could earn only $4,000 per month.  No explanation was given by the plaintiff as to the reason for this change.  I could not understand why and how he could now earn even less than what he said he could earn more than 1 year ago.

49.  This court could accept that because of his physical problem as said, he would only be able to take up sedentary job fetching a salary less than that of his pre-accident job.  In both the Statement of Damages and the Revised Statement of Damages, he had put $1,000 as the difference in monthly pay for these 2 types of work.  I consider that reasonable.  That would give the figure of $7,000 as the monthly earnings that the plaintiff should be earn presently.

50.  As Dr Chan Chi King in his report stated plaintiff is suitable doing sedentary work such as cashier and operator, the saying of the plaintiff that he could only work part time was not supported by medical evidence.  I do not accept that contention.

51.  Accepting the evidence of Dr Chan that sick leave up to 2 years is reasonable ie from 11 September 2007 to 10 September 2009, the loss of income for the period from 11 September 2007 and 14 January 2008 is, as explained above, $4,371.  From 15 January 2008 to 10 September 2009, the same is $6,500 x 19 27/30 = $129,350.  I do not accept plaintiff is entitled to total loss of earnings for period after the 2 years sick leave period.

52.  I consider it reasonable that plaintiff be entitled to an extra 3 months ie from 11 September 2009 to 10 December 2009 for locating a job, that will give loss of income of $6,500 x 3 = $19,500.

53.  From 10 December 2009 to 18 January 2013: - $1,000 x 37 8/30 = $37,022.66.

54.  Total pre-trial loss of earnings would be: - $4,371 + $129,350 + $19,500 + $37,022.66 = $190,223.66.

55.  The pre-trial loss of MPF would be: - $190,223.66 x 5% = $9,511.18.

56.  Total award under this head is therefore: - $190,223.66 + $9,511.18 = $199,734.84.

Pre-trial expenses

57.  Plaintiff claims $9,200 in total for medical expenses paid and $5,000 for travelling expenses.  He also claims $315 for the quadripod and crutches. I have no problem with these claims.

58.  As for the claim for tonic food in sum of $10,000, in the absence of any supporting medical evidence or receipts supporting the same, I am willing to award a sum of $5,000 under this head.

59.  Total award under this head is: - $9,200 + $5,000 + $5,000 = $19,200.

Future loss of earnings and MPF

60.  Plaintiff was aged 39 at time of accident and is aged 44 years old now. He claims a multiplier of 11 which I accept.

61.  Future loss of earnings under this head is therefore: - $1,000 x 12 x 11 = $132,000.

62.  Future loss of MPF is therefore: - $132,000 x 5% = $6,600.

63.  Total award under this head is therefore: - $132,000 + $6,600 = $138,600.

Future medical and travelling expenses

64.  Although Dr Chan did in his report suggested that if the plaintiff desired or if there was impingement of the implaint, the same could be removed.  There is however no evidence from the plaintiff of such impingement in any of his witness statements or evidence in court.  In fact, he admitted in court that there was no scheduled plan for such implant removal.  Any claim for medical expenses relating thereto is not substantiated.  Further, plaintiff had been receiving medical treatment all along from the public hospital, the fees for such operation would be minimal.

65.  Plaintiff claims $5,000 under this head.

66.  Despite the plaintiff said he had been receiving treatments as late as April 2012, no medical report or medical fee notes/receipts were produced since September 2008.

67.  Solely to cater for possible need for medical treatment in future regarding residual pain, I would award $3,000 under this head.

Loss of earning capacity

68.  As the plaintiff had been compensated for loss of earnings (pre- and post-trial), this court though accepting that the plaintiff would be disadvantaged in the labour market because of his physical shortcomings, finds it reasonable only to award a sum equivalent to 5 months wages.  Plaintiff should be able to earn $1,000 less than earnings from his previous job, ie $8,000 - $1,000 = $7,000.  Therefore, award under this head is $7,000 x 5 = $35,000.  The claim of $100,000 by the plaintiff under this head is clearly excessive.

Summary

	PSLA	$500,000.00
	Pre-trial loss of earnings and MPF	$199,734.84
	Pre-trial expenses	$19,200.00
	Future loss of earnings and MPF	$138,600.00
	Future medical and travelling expenses	$3,000.00
	Loss of earning capacity	$35,000.00
	Total:	$895,534.84

69.  I therefore give judgment in favour of the plaintiff in sum of $895,534.84.

Interests

70.  I also award interest on PSLA at 2% per annum from date of service of writ to date of judgment and on special damages at half judgment rate from date of accident to date of judgment and therefore at judgment rate till date of payment.

Costs

71.  There be order nisi that the defendant shall pay plaintiff cost the same to be taxed if not agreed at High Court scale with certificate for counsel. Plaintiff’s own costs to be taxed in accordance with legal aid regulations.