RAI PREM KUMAR v. RAI BABU RAM t/a SUNRISE CONSTRUCTION CO. AND ANOTHER

HCPI 1421/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1421 OF 2000

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J U D G M E N T

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1. The plaintiff was injured in an industrial accident on 4 January 2000. The accident occurred whilst the plaintiff was using a hand-held electrical grinding machine to remove concrete from a formwork mould at a construction site at Sheung Shui. Whilst using the grinder, a particle flew from the work he was undertaking and struck him in the right eye. He was wearing no protective equipment such as goggles. He experienced worsening pain and discomfort and eventually after attending a number of hospitals, the damage to the right eye was found to be so severe as to warrant its removal and on 15 January 2000, the eye was enviscerated. He remained in hospital until his discharge on 23 January 2000 and subsequently attended the eye clinic as an outpatient. He was eventually fitted with an artificial eye and was given sick leave until 4 May 2000. Liability is admitted by the defendants.

2. The medical reports from two doctors show that there is 100% lost of vision in the right eye occasioned by its removal and that the left eye is normal. Dr Tsui Chung Wan warns of there is a risk of sympathetic ophthalmia affecting the normal left eye and notes that since binocular vision is impossible, the 3-dimensional perception and the judgment of distance, as well as fine visual discrimination are defective. The visual field is also constricted, especially on the right side. Mr Rai is therefore advised not to take up jobs require good stereoptic vision or operation of dangerous machinery. He should not work in a dangerous environment, such as construction sites or work at height, since his poor vision function may make him more prone to accident, and any injury to the normal left eye may render him totally blind. He is better employed as a telephone operator, security officer, car park attendant, cleaner, watchman or messenger.

3. Dr Tsui found him to have a cosmetic disability due to the prosthesis as a result of the injury which he assessed of a 4% impairment of the whole person. He found Mr Rai to have a 24% impairment of the whole person which together with the cosmetic disability to be equivalent to a 29% impairment of the whole person with the loss of earning capacity of 54%. Dr Cheung agrees in the main with that evaluation and the places of disability at 24% of the whole person and does not address any quantum of disability for cosmetic purposes.

4. I heard the plaintiff in evidence as to the effects of the disability and as to his working history and his ability to work in future. He claims to suffer significant and difficulties as a result of the loss of his eye, finding it, he says, impossible to read, to watch television and to pursue activities of that nature. He says he suffers from pain and has to visit an outpatient's clinic twice a month for further treatment. He makes no claim for special damages under that head but when tested on a matter in cross-examination, produced several copies of appointment slips for outpatient treatment. These did not cover the whole period nor were they regular but he testified that he did not have possession of the balance of the slips and that nonetheless maintained his position as to the frequency of his visits for medical treatment. It was put to him that to neither of the doctors who examined him for the purposes of this action did he complain of headaches or pain or difficulty of vision in respect of watching television, reading and similar pursuits. He maintained that he did make such statements to the doctors and that his evidence was that the attendance took place with the services of an interpreter. Having seen him and heard him give evidence, and having seen him tested by cross-examination, I am satisfied that he still has persisting headaches and he finds it is difficult to read, to watch television and perform tasks of a that nature. I am also satisfied that he makes regular attendances to outpatient clinics as a result of pain in the eyes, the pain being related to both his eyes. I am satisfied that he having taken up employment as a security guard on 22 August 2001, left that employment on 2 March 2002 because in February 2002 he had been transferred to duties requiring him to monitor close circuit television's screens and that he was unable to do so as a result of strain to his left eye. I am further satisfied that he resigned from that job as a result of his disability and not from a disinclination to work and that his failure to work other than for the one period as a security guard from the time he was no longer granted sick leave until the day of trial was a result of an inability to obtain employment suitable to his disabled condition rather than any desire not to work at all.

5. The first head of damage for me to consider, liability having been admitted, is that of pain and suffering and loss of amenities. The plaintiff's injury falls within the category of serious injury. Both parties are in agreement as to that. That being accepted Mr Wright for the plaintiff then refers me to the case of Yu Kwok Wing v. Lee Tim Loi, CACV139/2000, in which Keith JA said :

"It is not contended by Mr John Wright for the Plaintiff that the Plaintiff's injuries came within even the lower end of the category of 'serious injury', which is the lowest of the four categories of disabling injuries first set out in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 and accepted ever since. The range of awards for injuries in that category was said in Chan Pui Ki v. Leung On [1996] 2 HKLR 401 in July 1996 to be $400,000.00-$540,000, though that range has to be adjusted to take into account inflation since then. ..."

and further :

"... what the Court of Appeal held in Chan Chi Shing v. Tsang Fook Metal Engineering (unrep., CACV 238 of 1999, [1999] HKEC 837) to be the bottom of the bracket for injuries in the serious injury category taking inflation into account, i.e. $460,000..."

6. It is clear by a simple calculation from the figure of $460,000 arrived at by the Court of Appeal as the lower limit of the category that the inflation percentage contemplated by Keith JA in Yu Kwok Wing was 15% from the date of delivery of judgment in Chan Pui Ki in 1996 to the date of delivery of the judgment in Yu Kwok Wing on 23 May 2001. Mr Wright therefore urges me to accept that the bracket for serious injury now runs from $460,000 to $621,000, being the bracket set out in Chan Pui Ki plus a margin of 15%.

7. Mr Wong for the defendants however refers me to the consumer price index which he produced before me which indicates the changes year-on-year for the composite consumer price indices as well as that affecting various bands of income within the community from 1996 until July 2002. The composite consumer price index at July 1996 when the judgment in Chan Pui Ki was delivered, was 98.8. It then rose through 1997 and 1998 when it went to a decline until July 2002 when it was 94.9. Whilst he does not claim that the bracket for serious injury should be reduced Mr Wong argues that the 15% inflation perceived by the Court of Appeal without the benefit of the consumer price index before it is not a true measure of inflation and that I should, at the very best do no more than adopt the bracket set out in Chan Pui Ki.

8. I have not had the benefit of any analysis as to what the consumer price index means in that relation to an award of damages but broadly the argument must be that it is cheaper now to live than it was in 1996 by a small margin and therefore the plaintiff ought not to have any benefit of inflation since that date. On the other hand, the Court of Appeal has pronounced on the matter in the judgment in Yu Kwok Wing, as far as this head of damages is concerned, that there had been the degree of inflation found by Keith JA at that point. I propose therefore to follow what Keith JA said in Yu Kwok Wing and to take the band of serious injury to be from $460,000 to $610,000. Having considered the degree of disability suffered by the plaintiff, the effects it has on his daily life, the effect of possible albeit rare complications involving his left eye and all other factors going to the decision in respect of pain and suffering and loss of amenities, I am of the view that an appropriate figure for this head of damage would be that of $550,000.

Loss of earnings

9. The plaintiff had been working in Hong Kong since 1996, having been a primary school teacher in Nepal. From 1996 until the date of the accident on 4 January 2000, the plaintiff had undertaken employment with Sun Hung Kai as a labourer at a salary of $11,500; at Y&T Engineering Co. as a labourer, the salary of $15,550; with Dragages as a labourer, the salary of $16,500; as a labourer with Unicon Contrete with a salary of $13,500 until his employment by the 1st defendant with a salary of $10,680 also as a labourer. Mr Wright contends for the plaintiff but for the accident, he would have continued to earn salary in the region of the median figure earned in the period 1996 to the date of the accident, being a sum of $13,536 per month. Mr Wright further contends that that sum should be payable for the whole period from the date of the accident to the date of judgment. There would be appropriate adjustment for the loss of salary for the period when he was employed by the security company. Mr Wong for the defendants argues that firstly, there has been an economic downturn and a general trend of reducing income in the last few years and further that the amount of work available to construction labourers has reduced, there being high unemployment and given the evidence of the plaintiff that he could not find any job which gave him a higher income he resorted to working for the defendants. It further contended by Mr Wong that the whole of the period should not be eligible for loss of earnings but only the period of sick leave together with a further period of three months thereafter. Mr Wong also agrees that payment should be made for the reduced income for the period August 2000 to September 2002 at the difference between the rate of $8,000 per month which Mr Wong says is the amount that could be earned by the plaintiff as a security guard and the sum of $10,680 a month being the figure paid to the plaintiff by the defendants at the time of the accident.

10. Firstly, I am satisfied on the evidence of the plaintiff that he is entitled to his loss of earnings for the period from the accident to the date of judgment with an appropriate adjustment for the period of his employment by the security company during that period. I do so upon the basis that I am satisfied that the plaintiff during the period from the end of his sick leave and other than the period when he worked for the security company gave his best endeavours to finding employment, going to agencies and seeking employment through friends but was unable to secure employment.

11. I have considered the level at which the rate of pay of the plaintiff should be assessed in the light of Mr Wong' s arguments as to the downturn in the construction industry and deflation in the period 1996 to 2002 together with the average daily wages of workers engaged in government building and contract projects, figures from the Census and Statistics Department, Hong Kong Special Administrative Region placed before me by Mr Wright. In that table the average daily wages in June 2002 for unskilled labourer were $617.50 per day which on the basis of a 26 day-month would yield a figure of $16,055 per month. It seems to me reasonable that the figure claimed by the plaintiff should be a median figure of his employment from 1996 to the date of the accident, particularly bearing in mind the figures from the Census and Statistics Department and accordingly I adopt as the monthly wages of the plaintiff for the calculation of his loss of earnings this sum of $13,536. He is therefore entitled at the date of judgment to the sum of $13,536 multiplied by the 321/2 months being $439,920 from the accident to the date of judgment less his earnings during that period of $51,156, making a total of $388,764, to which must be added the Mandatory Provident Fund contribution of an employer which would have accrued from 1 December 2000 and would be the sum of $11,993 making a total of 400,757.

Disadvantage on the labour market

12. This award is to compensate the plaintiff for the handicap he will suffer in the labour market as a result of his disability I accept that he is 28 years of age and that the restrictions placed upon him by Dr Tsui as to his choice of employment and the difficulties of obtaining employment with that disability are matters which I must take into account in assessing this head of damage. I accept the authorities in particular that of Yu Kwok Wing which held there is no set form of calculating such an award and it is up to the judge to take into account all the circumstances and do his best. Taking all the effects into consideration, I am of the view that $100,000 is the appropriate figure for this head of damage.

Future loss of earnings

13. Future loss of earnings are to be calculated using the same figure that I adopted for pre-trial loss of earnings less an appropriate figure for what the plaintiff might earn in a course of employment open to him as a result of his disability. The multiplier has been agreed by the parties at 15. To assist me in determining the amount which the plaintiff might earn, I am assisted by two pieces of evidence.

14. Firstly, by a table of average monthly wages, compiled by the Selective Placement Division of the Labour Department who deal with the placement of persons having a disability such as that suffered by the plaintiff. The figures have been compiled up to the conclusion of the 4th quarter in 2001, the Labour Department having ceased to compile figures prior to that date. The last figures compiled for a caretaker security guard were $5,520 per month.

15. The second piece of evidence comes from the plaintiff who testified that he would try to find employment at about $8,000 per month. Mr Wright suggests the figure to be deducted should be $6,000 per month while Mr Wong contends that it should be the $8,000 a month received by the plaintiff during his employment by Security Alliance.

16. I have no evidence before me as to the degree of incapacity dealt with by the selective placement board, I can only assume that the figures quoted by them are an average figure. It seems to me given the determination or exhibited by the plaintiff to seek employment at $8,000 a month, combined with the figures produced by Mr Wright, indicated that a common sense level of salary for the plaintiff would be the sum of $7,000 per month and that is the figure I propose to adopt. The loss of future earnings will therefore be the sum of $13,536 less $7,000, making a sum of $6,536 multiplied by 12 to make an annual figure and then by 15, the agreed multiplier, making a total figure of $1,176,480, to which must be added $58,824 being an employer's future MPF contributions a total of $1,231,304.

Pre-trial medical expenses are agreed to $1,088.

Future medical expenses are agreed at $55,000.

For the avoidance of doubt:

Pain and suffering and loss of amenities	$550,000
Pre-trial medical expenses	1,088
Future medical expenses	55,000
Loss of earnings	400,757
Disadvantage on labour market	100,000
Future loss of earnings	1,231,304
	2,238,149
Less Employers compensation	545,392
Total	$1,692,757

17. There will be judgment for the plaintiff in the sum of $1,692,757 there will be interest on the damages for pain and suffering and loss of amenities at the rate of 2% per annum fro the date of the service of the writ to the date of judgment and interest at half judgment rate on special damages from the date of the accident to the date of judgment.

18. Unless either party applies to be heard on the question of costs within 14 days, I order the plaintiff's costs to be taxed if not agreed and paid by the defendants.