LAM CHI FAT v. SO KAM SUI, KENNETH and Another

No.PI167/94

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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JUDGMENT

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1. The Plaintiff was pursuing his employment as a painter on 10th March 1992 when scaffolding on which he was working collapsed, causing him to sustain injuries after a fall of some 20 feet. The first and second defendants are cited respectively as the principal contractor and a sub-contractor, both employing the defendant at the material time and both legally responsible for the accident and its consequences to the plaintiff. Interlocutory judgment was entered against both defendants in default of entry of appearance.

2. Neither defendant appeared at this assessment, however the second defendant had earlier applied for legal aid, and a notice to this effect dated 27th September 1995 was duly filed. Pursuant to the Legal Aid Ordinance and Regulations, this application triggered a 42-day stay of the proceedings against the second defendant and counsel for the plaintiff therefore elected to continue against the first defendant only.

3. The plaintiff testified that he spent two days in hospital after the accident, and treatment records produced by Dr. Mak Chun Shing showed tenderness to the chest wall and left wrist and abrasions to the right leg. X-rays were taken but no fractures were discovered. The plaintiff was given a brace for his arm because of what was described as severe pain. The defendant was referred to the Accident and Emergency Unit for subsequent outpatient treatment. Dr. Mak also said records showed that the plaintiff was given sick leave from 10th March to 29th July 1992.

4. Despite this initial diagnosis, the plaintiff said that he continued to feel severe pain and privately consulted Dr. Yung Sui Lan. He produced various bills from Dr. Yung, as well as from Queen Mary Hospital for his 2 days admission, and from South Kwai Chung Polyclinic where he had received physiotherapy treatment.

5. On 14th October 1994 the plaintiff was examined by Dr. Arthur Chiang, an orthopaedic surgeon, who produced a report and gave evidence on his findings. The doctor commented that pain and weakness in the left wrist should not have persisted if the original diagnosis had been correct. Dr. Chiang therefore x-rayed the plaintiff's left wrist, revealing a fracture which he said was likely to have been caused in the accident.

6. In the doctor's opinion, this fracture was unlikely to unite because of an associated injury to a cartilage structure close to the fractured bone - the ulnar styloid. The area of this cartilage system, known together with the ulnar styloid as the triangular fibro-cartilage complex or TFCC, was described by Dr. Chiang as one of the most difficult in orthopaedic surgery. There are apparently operations available but none completely satisfactory. The report anyway concludes that even with good results after such an operation, the patient was still not advised to do heavy manual work. In the circumstances an operation was not advisable for the plaintiff. The plaintiff himself said that he was unable to do his previous job as a painter as he had numbness in his hand which prevented him holding onto scaffolding. He felt similar discomfort when holding a bowl of soup he said, and could not do so for long without needing to put it down.

7. Dr. Chiang assessed the permanent impairment of the plaintiff's left wrist at 8%. He also concluded that the plaintiff would be unable to return to his pre-injury job, although he could do general labouring work which would require no more than moderately heavy lifting. Because of this limitation on his likely employment, Dr. Chiang considered that the plaintiff's percentage loss of earning capacity would be much higher than the percentage of permanent impairment; he assessed the loss of earning capacity at 20%.

8. There had been an assessment by an Employees' Compensation Assessment Board on the 8th October 1992 which assessed loss of earning capacity at 2%; this was increased on review to 5.5%. The certificates in either case described the injuries as a fractured rib with left wrist injury and pain. Dr. Chiang said that these assessments appeared to have missed the damaged cartilage and the fracture to the ulnar styloid, and to have treated the wrist injury as a mere contusion. He said he had sat on such Assessment Boards in the past and they handled some 30-40 cases in an afternoon. I find Dr. Chiang's assessment of loss of earning capacity preferable, insofar as the Assessment Boards have failed even to mention in their terms of reference the fracture to the ulnar styloid and the damage to the cartilage. The plaintiff does not claim for loss of earning capacity as a separate head of damage, however Dr. Chiang's assessment is useful in assessing damages for pain, suffering and loss of amenities.

9. The plaintiff's counsel, Mr. Cheng, argued for an award of $200,000.00 for pain, suffering and loss of amenities. He pointed out that the threshold in the "serious injury" category had recently been raised to $250,000.00 (A.G. v. Chun Yat Nam [1995] 1 HKC 218), and suggested that the plaintiff's injury should be rated somewhat lower. Counsel also cited Tsang Yuk Ming v. Choi Wing Hing [1991] 2 HKC 322 as an example of an award of $120,000.00 at the time the serious injury threshold was $150,000.00. Although the injuries in the case cited were occasioned by a similar type of accident, the injuries themselves were rather more serious in their long term implications, and I am unconvinced that a valid comparison can be made with the present circumstances. Other cases were cited to illustrate that injuries involving loss of fingers were treated as within the categories of either serious or substantial injuries. Again, I am doubtful that these represent useful comparisons with the situation of the present plaintiff.

10. I agree with counsel that the plaintiff's injuries should be placed rather lower than the "serious" category. Where precisely to place them in terms of compensation is ultimately a matter of judicial experience. No two cases are the same and the guidelines of precedent are very broad in this context. I note that there is an element of permanent disability in the left wrist, but in its nature this militates in particular against the plaintiff's ability to resume his former employment, an aspect of compensation which I deal with later. The likely effect of the injuries on the plaintiff's enjoyment of the social amenities appears to be considerably less. At this level there will be some pain in making certain movements, as discussed in Dr. Chiang's report, and there will be a relatively small loss of power in the grip. In all the circumstances I find counsel's suggested $200,000.00 on the high side and award the plaintiff $180,000.00 for pain, suffering and loss of amenities.

11. I accept the evidence of Dr. Chiang that the plaintiff is unable to return to his former employment. To establish his loss from this factor and from his sick leave, the plaintiff relied on his own testimony, as well as that of Ms. Mo, a statistician with the Census and Statistics Department of the Hong Kong Government. The plaintiff said he was earning $450.00 per day for a 26 day month in his pre-accident employment. He also said he was provided with a free midday meal, for which Mr. Cheng suggested adding $10.00 per day giving a pre-accident daily wage of $460.00. This figure is confirmed by the March 1992 statistics for painters' daily wages produced by Ms. Mo and found at page 11 of the supplementary bundle.

12. I accept $460.00 per day as the starting point in assessing the plaintiff's loss of earnings, and note that the latest statistics show a daily wage of $617.50 for the plaintiff's former occupation - on page 2 of the supplemental bundle. Ms. Mo said that this figure related to the end of July this year and I accept the figure of $618.00 per day suggested by Mr. Cheng for the date of this hearing.

13. The plaintiff put his actual earnings on his return to work in August 1992 at $300.00 per day for a 26 day month, and he said that he was now earning $320.00 per day. I note that the plaintiff's 1992 figure is somewhat below the statistical average for an unskilled labourer at that time, and his present wage rate is considerably below the current average. These figures are however no more than averages, and I also bear in mind that the plaintiff has a disability as a result of the accident which may inhibit his performance in labouring duties. In any event I have no reason to doubt the plaintiff's evidence of his present and past earnings as a labourer and it would be in his own immediate interest to earn as much as possible. I therefore accept the plaintiff's evidence of his earnings in that capacity and find that they represent a full mitigation of his loss.

14. The plaintiff's loss of earnings to trial is to be calculated by deducting his actual earnings from accident to trial from the median daily earnings for his former occupation over that period, multiplied by the number of days notionally worked. His median daily earnings over that period would be $(460.00 + 618.00) x ½ = $539.00. The months elapsed from accident to trial are 43.06, so the plaintiff's earnings in his former occupation would have been $(539.00 x 43.06 x 26 days) = $603.443.00. From this must be deducted the plaintiff's actual earnings during this period based on a median of $(320.00 - 300.00) x ½ = $310.00 per day multiplied by the number of days actually worked. Taking into account the plaintiff's 142 days sick leave from 10th March to 29th July 1992, this would give actual earnings of $(310.00 x 38.4 x 26 days) = $309,504.00. The total pre-trial loss of earnings therefore amounts to $293,939.00 and this sum is awarded.

15. In calculating the post-trial loss of earnings Mr. Cheng urges a multiplier of 11 as at the date of the accident. This would require the deduction from the multiplier of the 43 odd months elapsed to trial, leaving a multiplier of some 90 months. I find Mr. Cheng's suggestion modest; it would be convenient to apply a post-trial multiplier, and I am persuaded that for a plaintiff who is now aged 43 this should be 11 from that stage. There is no shortage of authority in this regard - Law Hoi Chuen v. Grandeur Construction Co. (1986) HKLJ 147, age 44 at trial with a multiplier of 12; Tse Yik Cheong v. Wong Man Ping (1986) HKLJ 447, aged 39 and 13 applied; Cheung San Chun v. Gammon (1987) HKLJ 254, aged 36 and 13 applied. Applying therefore a post-trial multiplier of 11 to the difference between the plaintiff's actual daily wage and the current statistical daily wage for his former occupation, loss of future earnings will amount to $(618.00 - 320.00) x 26 days x 132 months = $1,022,736.00, which amount is duly awarded.

16. The plaintiff has produced various receipts for medical expenses, and also claims travelling expenses for treatment, tonic food, damaged clothing and bonesetter's fees. These are awarded save for the bonesetter's fees, which do not appear in the schedule of damages and are unsupported by evidence.

17. The total award will therefore be:-

Special Damages:-

(1)	Pre-trial loss of earnings	$293,939.00
(2)	Medical expenses & travelling	$1,865.00
(3)	Tonic food	$1,000.00
(4)	Damaged clothing	$300.00
		$297,104.00

General Damages:-

(1)	PSLA	$180,000.00
(2)	Loss of future earnings	$1,022,736.00
		$1,202,736.00

 

Total	$1,499,840.00
Less EC award	$208,901.00
Total Award	$1,290,909.00

18. There will be interest on the general damages at 2% per annum from writ to judgment, and at 6% per annum on the special damages from the accident date to judgment. Costs are to the plaintiff with a certificate for counsel. It is emphasised that this is a judgment against the first defendant only.