LAW KING SANG AND ANOTHER v. LAW YIN SANG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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ASSESSMENT OF DAMAGES

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1. The 2nd Defendant was the contractor for fire services installation work at a building under construction at 188 Des Voeux Road, Sheung Wan. The 1st and 3rd Defendants were sub-contractors on the site to whom the 2nd Defendant had sub-contracted the fire services installation work. The Plaintiff was employed by the 1st or 3rd Defendants as a fire services installation worker to carry out such work on the site. In the course of this work the Plaintiff was to install water pipes down the internal staircase. These water pipes were approximately 15 feet in length, 3 inches in diameter and weighed about 70 1bs. The Plaintiff worked under the supervision of a foreman of the 1st or 3rd Defendant and he instructed the Plaintiff to carry one of these water pipes from the ground to the 17th floor for installation purposes by way of the internal staircase. There was no passenger or service lift installed in the building and the Plaintiff attempted to carry the water pipe up to the 17th floor. The internal staircase was still under construction, with workers completing plastering and tiling work, and with electric wires hanging from the ceiling and walls of the staircase. On the date of the accident (21st August 1989) the Plaintiff while carrying the metal water pipe sprained and injured his back between the 4th and 5th floor levels of the building.

2. The Plaintiff was 31 years of age at the date of the accident and sustained a disc prolapse of L4-5 and L5-S1. He was treated with pain-killing medicine and attended physiotherapy. The Plaintiff is unable to sit or stand for any lengthy period without getting pain over the lower lumber spine region. His sex life is affected by the back pain. His lower grip is reduced and he cannot lift heaving objects as he had been able to previously. He can no longer swim which he used to enjoy. The Plaintiff has been assessed to have suffered a 20% loss of earning capacity.

3. The Plaintiff gave evidence and confirmed the contents of his 2 witness statements to his solicitors as being true and correct. The Plaintiff agreed he was now 39 years of age. At the date of accident he said he had been employed as a fire services installation worker for about 10 years. He confirmed he would have remained in this employment but for this injury and the effects of same. He estimated he would have so worked until he was about 55 years of age. The Plaintiff said he was a daily paid worker earning $280.00 a day over 25 to 28 days each month. The daily wage of $330.00 in his statement includes both overtime and a free lunch provided by his boss periodically. He said he was not now fit to work as a fire services installation worker because he cannot perform the heavy manual work involved nor could he climb ladders repeatedly because of his lack of physical fitness from his back injury. He said he received treatment for his back at both Kwong Wah and Queen Elizabeth Hospitals. It had been recommended in 1993 that he have an operation on his back on the basis of a 70% success rate. Initially, he agreed to an operation but later refused as he had no one to care for him while he was recovering from such an operation. His wife was in China without any right to stay in Hong Kong. If his wife was allowed to enter Hong Kong he would have the back operation. In the circumstances this explanation appears to be a reasonable one. He has continued to received medical treatment at Queen Elizabeth Hospital where he goes for quarterly check-ups. He has been examined by a psychiatrist, Dr CHUNG See-yuen, and he recommends that the Plaintiff requires psychiatric treatment, which he hopes to receive at Queen Elizabeth Hospital.

4. The Plaintiff receives Public Assistance of $3,200 for month and in 1996 he did part-time work in a fruit market about the time of various Chinese festivals. He says he earns about $100 a day doing this work and has worked about 60 days during 1996 in this capacity. He says he needs to take regular rests from lifting cases of fruit and vegetables to relieve his back pain so that he could not work continuously at this job. Finally, the Plaintiff said that while working as a fire services installation worker in 1989 he would send $4,000 to $5,000 a month to his wife in China.

5. Counsel for the Plaintiff referred me to the Construction Industry Employees Tables relating to wages for Plumbers and metal workers showing a figuring of $340 a day in 1989. The Plaintiff said he earned $330 a day which over 28 days in a month amounts to $9,240. Using a figure of $9,000 as his monthly earnings in 1989 and increasing that figure by 85% to correspond with the 1995 figure of $630 per day for similar workers in the tables referred to the increased of $9,000 by 85% equals $16,650 per month. The multiplier suggested by Counsel was 11-12 years to assess Plaintiff's loss of future earnings from his present age of 39 years and likelihood of his retirement at 55 years. It is also clear from the medical evidence that the Plaintiff is not physically fit to resume his former occupation and is now only suited to much lighter work, such as, watchman, lift operator, messenger, clerk, cashier or indoor salesman where the earnings for same range from $3,000 to $6,000 per month. The Plaintiff has the academic background to obtain a more lucrative form of alternative employment in the range of $5,500 to $6,000 a month. Plaintiff's future monthly earnings are assessed at $5,000. Adopting a multiplier of 12 years for the assessment of future loss of earnings the figure arrived at is $1,677,600 ($11,650 [as the difference between $5,000 (potential monthly earnings) and $16,650] X 144 months).

6. The Plaintiff pre-assessment loss of earnings ranges over 89 months from the date of accident (21st August 1989) to date of assessment (23rd January 1997). On this basis the median would be $12,825.00 ($9,000 + $16,650?) over 89 months equals $1,141,425.00. From this figure the Plaintiff's actual earnings need to be deducted. Plaintiff's interim earnings to date were as follows:-

7. The pre-assessment loss of earnings are calculated as $1,087,265 ($1,141,425 less $54,160). Although the Plaintiff has been receiving Public Assistance of $3,200 per month since 1993, no deduction is made in Hong Kong for such payments.

8. Under the heading of pain, suffering and loss of amenities, Counsel for the Plaintiff, claims his injuries place him in the "serious injury" category and he claims the sum of $400,000. This sum is at the lower end of the present scale upgraded by Court of Appeal in CHAN Pui-ki's case to range from $400,000 to $550,000. The 3 similar cases referred to involving prolapse disc injuries all place claims under this heading (PSLA) as something less than the "serious injury" category. This Master concurs with those decisions and would allow the sum of $375,000 for pain, suffering and loss of amenities in this case.

9. The Plaintiff also seeks an award under the head of Loss of Earning Capacity. This Master is not prepared to entertain a lump sum payment of $100,000 under this head of damages, where Plaintiff has been awarded a substantial payment under the head of loss of future earnings. Furthermore, the Plaintiff has not had the recommended operation to reduced his disability for the future. Likewise, this Master is not prepared to consider an award for cost of investment advice. The award in this case does not warrant an allowance being granted under this head. There is nothing to indicate the Plaintiff would seek or take any investment advice on his lump sum awards.

10. In his psychiatric report Dr. S.Y. CHUNG says at page 6 that Plaintiff is "not mentally fit to work a present because of depressive disorder". He also recommends that the Plaintiff requires psychiatric treatment on an out-patient basis every 2 weeks over one year. Dr. CHUNG estimates the cost of this psychiatric treatment over this period of time as $25,000.00. The Master is prepared to allow this claim as there is no guarantee that such treatment would be available in a government hospital.

11. A summary of the awards made are out as follows:-

12. The claims for medical treatment in China and for future medical and traveling expenses are also refused without evidence to substantiate same.

13. There are obvious difficulties in the enforcement of this award for damages. Firstly, the Employees Compensation award was made against the 2nd Defendant and recovered against its insurer. The 1st Defendant is not a party to this assessment of damages which is made against the 2nd and 3rd Defendants. The 2nd Defendant is in liquidation and the 3rd Defendant is in receivership. Judgment was entered against the 2nd and 3rd Defendants by consent of the Official Receiver appearing on their behalf on 4th January 1995. The 2nd and 3rd Defendants took no active part in this assessment. The Plaintiff's solicitors are clearly hoping to recover against the Employee's Compensation Assistance Scheme in this case.

14. Interest in general damages for pre-assessment loss of earnings and pain, suffering and loss of amenities to be at 2% from date of the writ (10th August 1992). There will be no interest to date of this assessment on the claim for loss of future earnings and future psychiatric treatment, but interest on special damages at 5.75% from the date of the accident to the date of this assessment of damages, and thereafter at the judgment rate.

15. Costs to the Plaintiff against 2nd and 3rd Defendants on this assessment of damages. Plaintiff's own costs to be taxed under Legal Aid Regulations.