KONG KOON MAN HARRIMAN v. PBIL ADVERTISING LTD AND ANOTHER

HCPI 517/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 517 OF 2012

_________________________

_________________________

__________________________

ASSESSMENT OF DAMAGES
__________________________

I.  Background

1.  The plaintiff was involved in a road traffic accident on 26 July 2010.  Liability has been admitted and this is an assessment of damages.

II.  PSLA

2.  After the accident, the plaintiff was admitted to United Christian Hospital.  His two main injuries were a mild compression fracture of at T12 vertebrae (with no neurological deficit) and a right shoulder injury (tear of the rotator cuff: a “SLAP” type 2 injury).  He was treated conservatively and was discharged on 10 August 2010.

3.  Subsequently, the plaintiff had two procedures on his shoulder due to persistent pain: arthroscopy (with rotator cuff tear repair and acromioplasty) on 5 June 2012, and a further arthroscopy (with acromioplasty) on 25 February 2014.

4.  The plaintiff still complained of on and off shoulder and back pain, with decreased power and range of motion of the right shoulder.

5.  The plaintiff claims HK$350,000 under this head of claim.

6.  The main dispute here is whether the second procedure was caused by the accident or by his in-born condition of a hook-type acromium.

7.  Dr Lam Kwong Chin, the expert Orthopaedic surgeon instructed by the defendants, opined that the second procedure was not caused by the accident but by his in-born condition “which would predispose to impingement”, and he said that during the procedure, the injury was noted to have healed.

8.  Dr Fu Wai Kee, the expert instructed by the plaintiff opined that the second procedure “should just be removal of scars due to previous surgery” which would mean that this was caused by the accident.

9.  The dispute cannot be easily resolved since the medical report from the treating doctor concerning the second procedure was brief.

10.  On balance, I prefer Dr Fu’s opinion because if Dr Lam opined that the in-born “predispose to the impingement”, he needed to give evidence to show the likelihood of such occurrence without any initial injury, and compared that to the likelihood of such occurrence with the current injury.  Without such evidence, it is difficult for the court to assess his opinion that the impingement is completely unrelated to the injury, especially when the plaintiff is raising the “Egg-skull Rule”.

11.  In any case, the dispute between the experts concerns only a remedial procedure and on the whole, the experts were clear and in general agreement about the injuries and residual symptoms.

12.  I have been cited many cases by both Counsels but the relevant one is Yu Pun Yuen v Ng Kwok Man HCPI 293/2002 which concerned a similar rotator cuff injury.

13.  The rotator cuff injury in Yu’s cases was more severe than the present case and there was also a fracture of the right wrist requiring closed reduction and plaster cast.  The award was HK$450,000.

14.  The T12 fracture involved in this case is mild and did not require any active treatment.

15.  As such, I think an award of HK$350,000 is appropriate.

III.  Pre-trial loss of earnings

16.  The plaintiff claimed that at the time of the accident he had two jobs: as a quality inspector at a printing factory (earning an average of about HK$13,500 per month) and as a part-time driver/worker for a logistic company (earning an average HK$5,200 per month).

17.  Whilst there was no dispute between the parties regarding the printing factory job and its pay, there was dispute regarding the part-time job.

18.  The plaintiff claimed that he was paid HK$800 per day from August 2009 to July 2010 working for the logistic company of his brother-in-law.

19.  Very late in the proceedings (in his 7^th Supplemental List of Documents), the plaintiff disclosed a bundle of salary payment slips purported to be from this logistic company.

20.  The plaintiff, however, did not produce any tax returns or MPF etc. to support this part-time employment.

21.  When the plaintiff applied to TAVA on 30 July 2010, he also did not claim for this part-time employment and when crossed-examined, the plaintiff simply said that it did not occur to him to claim this.

22.  There are substantial inconsistencies with the purported salary payment slips as well.  To be able to do this part-time job, the plaintiff needed to be doing the day shift at the printing factory (there was an alternate night shift) plus that he needed to leave work 2 hours earlier than the day shift hours stated in the employment contract.

23.  Even if the plaintiff could ever managed to do so, it would be highly unlikely that he could do so in such frequency as he claimed and as purported in the slips (eg 7 of out the 8 weeks in October and November 2009).

24.  When challenged at cross-examination about how and when these slips were signed, the plaintiff at first stated that he would sign the slips after work and he would be presented with a slip after he has done a few days of work.

25.  When the plaintiff was shown that some of the slips were dated on days he did not work, he came up with a elaborate system whereby he would travel from his home in Tze Wan Shan to have tea with a staff of the logistic company in Tsing Yi to have them signed, and the reason why he travelled all the way to Tsing Yi to have tea was that his mother-in-law lived in Tsing Yi.

26.  If administrative procedures were so important for the company and the plaintiff (for what was just a part-time job paid in cash), it would seem strange that they failed to apply for MPF nor account for such in tax returns because no such documents were produced before the court.

27.  The plaintiff stated that the logistic company ceased business in 2012.  For whatever reason, the key witness to this part-time job, the plaintiff’s brother-in-law, was not called as a witness despite his apparent effort in helping the plaintiff in providing the part-time job as well as apparently locating these pay slips from years before.

28.  There are also many other inconsistencies and I see no need to list them all here, save that I am not convinced by the salary payment slips and I find that the plaintiff’s claim for the part-time employment is completely bogus.

29.  The plaintiff was given a sick leave period of 55 months.

30.  Dr Fu was of the view that Mr Kong’s pre-accident job required heavy manual lifting and in view of his condition, he would be having difficulty in performing this kind of task. He opined that the sick leave was appropriate.

31.  However, during the examination by the experts, he could still raise his right arm above the shoulder horizontal plane (130 degree forward flexion and 120 degrees sideward abduction).  The range was slightly less than when before and after the 1^st arthroscopy.

32.  Dr Lam opined that this might show “submaximal” effort by the plaintiff during examination.

33.  In any case, I agree with Dr Lam opinion that the plaintiff’s residual pain and stiffness (ie loss of full range of motion) would partly affect his capacity in jobs requiring excessive shoulder movement or overhead lifting of weight.

34.  On hearing the evidence from the plaintiff, I do not find that the nature of his job as a quality inspector and as a leader of a team of 3 staff would necessarily involve much “heavy lifting work” and “excessive shoulder movement or overhead lifting of weight”.  The plaintiff did admit that he could normally ask his “juniors” to do the heavier duties.

35.  As such, I cannot see why the plaintiff cannot return to work as a quality inspector in a printing factory.

36.  Accordingly, I would allow 1 year of sick leave for his accident, and an additional 6 months for his first arthroscopy procedure and 6 weeks for his second.

37.  The pre-trial loss of earnings (including loss of MPF) should be: -

HK$13,500 x 20.5 x 1.05 = 290,587.50

IV.  Future loss of earnings

38.  In view of my findings, I would not allow any future loss of earnings but instead allow a more generous loss of earning capacity.

V.  Loss of earning capacity

39.  The plaintiff’s residual symptoms would predispose him to a disadvantage in the labour market: for example, he would need to have a helpful team of “juniors” in his job.

40.  I would therefore give an award of 9 months of salary:

HK$13,500 x 9 = 121,500

VI.  Special damages

41.  There was no dispute in the plaintiff’s claim for vehicle repair cost plus towing fee (HK$18,613).

42.  In view of further expenses incurred for the second arthroscopy procedure, I would allow HK$35,489 for medical expenses, HK$8,000 for travel expenses and HK$4,890 for tonic food.

VII.  Summary

43.  I summarise the above awards as follows:

	HK$
PSLA	350,000.00
Pre-trial loss of earnings	290,587.50
Post-trial loss of earnings	0
Loss of earning capacity	121,500.00
Special damages	66,992.00
Subtotal (excluding interest)
Total:	829,079.50

VIII.  Interest

44.  I would award interest on general damages at 2% per annum from date of writ to date of Judgment, and on special damages from date of accident to date of Judgment at half Judgment rate.

IX.  Costs

45.  I would also give an order nisi for the costs of the action to be paid by the 1^st and 2^nd defendants to the plaintiff to be taxed if not agreed in the District Court scale and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.