Kong Lai Mei v. Yu Wing Fong and Others

HCPI 381/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 381 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of personal injuries compensation. Interlocutory judgment on liability has been obtained by the plaintiff on 31 October 2000 against both defendants for damages to be assessed.

2. At the time of the incident the plaintiff was working at Tam Mei Camp construction site in Yuen Long. The 2nd defendant was the principal contractor of the site while the 1st defendant was the sub-contractor engaging the plaintiff at work.

Personal Particulars of the Plaintiff

3. The plaintiff was born in the mainland on 27 June 1959. She received education to Form 2 and was a farmer by occupation. She got married in 1979 and gave birth to 2 children who are now aged 18 and 20. The plaintiff stopped working since her marriage and stayed at home to take care of the family.

4. In December 1996 she was granted permission to come to Hong Kong to join her husband. No application has been made in respect of the children and they remain in the mainland. The plaintiff's 20 years old daughter was studying to be a nurse while her 18 years old son who had ceased schooling some 6 months prior to the hearing used to read commerce.

5. After the accident the plaintiff moved back to live in Shenzhen to be close to her mother and her children since August 1997. She has no immediate plan to return to Hong Kong.

The Accident and the Injuries

6. In March 1997 through the introduction of her husband the plaintiff started to work as a labourer in the construction site with her husband. On 1 May 1997 a section of the concrete outlet fell and struck the plaintiff at her right heel whilst she was at work at the site.

7. The plaintiff was admitted into Tuen Mun Hospital on the day of the accident. She was diagnosed to have sustained crushed injury at her right heel with degloved skin loss to her heel pad and the medial ankle region. The underlying tendons and muscles of her right heel were exposed and badly damaged. She was hospitalized for 2 1/2 months during which time she was given 3 operations:-

(i) Debridement on the day of her admission to the hospital.

(ii) Reverse posterior tibial artery fasciocutaneous flap and skin grafting 2 weeks after admission on 16 May 1997.

(iii) Further debridement and skin grafting on 3 June 1997 for her residual wound defect.

8. When the healing of the flap became stable, the plaintiff was given a contact weight bearing orthosis for protection of her flap. She was given weight bearing training. During her in-patient period the plaintiff exhibited traumatic emotional reaction. She was referred to the psychologist for assessment and counseling.

9. In April 1999 the plaintiff had symptoms of residual right heel pain and ankle weakness. She had difficulty in climbing stairs. She was able to walk with a heel brace protection but had impaired sensation over her right heel and sole region. On 7 April 1999 she was assessed by the Employee Compensation Assessment Board to be suffering from 14.5% of permanent disability on account of her right heel injury.

10. During the present assessment hearing the plaintiff maintained more or less the same complaints about her physical disabilities. She said her heel got worse when weather changes. She walked with a limp and needed the assistance of a crutch. She felt embarrassed about her scars. She felt dizzy and had back pain.

Othopaedic Assessment of the Plaintiff

11. Orthopaedic surgeon Dr. AU Ka Kau examined the plaintiff on 30 June 1999 and diagnosed her condition to be as follows:-

(a) The plaintiff was able to perform all self-care and hygiene activities such as bathing, grooming, eating, dressing and toileting.

(b) She could walk independently after she wore the special rocker bottom boot on her right foot. She could walk for about 200 to 300 meters. She needed a crutch for prolonged walking. She could walk without the special boot by weight bearing on her right forefoot. She could squat by weight bearing mainly on her left leg. She could not run or jump. She could climb 2 flights of stairs by holding onto the handrail.

(c) Her right heel was covered by a skin flap of 13 cm x 12 cm in size. There was tenderness on palpation of the scars in her right calf and right heel. On account of the skin grafting operation she had an 18 cm x 23 cm scar on her right thigh and a 10 cm x 19 cm skin grafted area on her right calf.

(d) She had mild impairment of motor power of her right ankle. There was decreased sensation on her right calf at the skin graft area. The sensation over her right heel was poor.

(e) She was considered to have suffered 4% of impairment on account of the stiffness in her right ankle and 10% of impairment on account of the loss of skin over her right heel; representing a total impairment of 14%.

12. Dr. AU recommended the plaintiff to carry out a defatting operation to remove the subcutaneous fat from her skin flap. The present skin flap on her right heel has poor sensory function and the plaintiff would be required to wear a well-padded shoe to protect her heel from ulceration for the rest of her life. The operation would enable the plaintiff to wear normal shoes again. It was estimated that such an operation would cost around HK$50,000 if performed by a private practitioner.

13. Dr. AU was of the opinion that the plaintiff, with the present degree of disability, would be able to take up sedentary types of work such as telephone operator or cashier.

14. Orthopaedic practitioner Dr. LAM Kwong-chin, acting on behalf of the defendants, examined the plaintiff on 11 November 1999. Dr. LAM's diagnosis of the plaintiff was largely in line with Dr. AU. He was of the opinion that the plaintiff's condition has stablized but presented a difficult problem for management. Dr. LAM felt that the various surgical operations preserved the plaintiff's right lower limb but not her walking ability. She had difficulty in climbing stairs and impaired sensation over her right heel and sole region. She had to walk with a heel brace protection.

15. Dr. LAM supported Dr. AU's suggestion for the plaintiff to have defatting of the flap which would reduce the size of her heel. Together with the aid of well-padded shoes, her walking ability could be improved, though not to a normal level. He agreed with the quoted costs of Dr. AU.

16. According to Dr. LAM another solution was to have the amputation of the leg at the lower tibia level which could eliminate the weight bearing problem at the heel and the plaintiff would likely be able to walk better with the prosthesis on. Dr. LAM was aware such an alternative proposal might not be acceptable to the plaintiff. Nor do I find this to be a reasonable option to be adopted in light of the present stable condition of the plaintiff.

17. Dr. LAM was of the opinion that the plaintiff would have difficulty in handling work which required walking and weight bearing. She could, however, manage light manual work which could be done in a sitting posture or with limited walking requirement. Dr. LAM believed the plaintiff would be able to perform the work of a receptionist, lift operator, cashier, factory assembly-line worker or jobs of a similar nature.

18. Dr. LAM formed the opinion that sick leave beyond October 98 would be unnecessary for the plaintiff as it would not encourage further improvement of her injuries.

Psychiatric Development of the Plaintiff

19. The plaintiff found the patches of unsightly scars on her right leg and ankle cosmetically unacceptable to her. She felt persistent pain over her right leg and foot and general weakness of her right lower limb. She felt distressed when being looked at in public. She had nightmares and insomnia. She felt anxious when she saw an excavator. She was afraid to go back to the place of the accident.

20. Psychiatrist Dr. CHUNG See Yuen examined the plaintiff on 15 September 1999. He found the plaintiff to be calm and stable. Her speech was spontaneous, relevant and coherent. The plaintiff had good understanding of her circumstances. Her concentration was not affected. She did not suffer from hallucination or delusion. She was orientated in time, place and person. Her intelligence was within the average range and her memory function was intact.

21. Nevertheless Dr. CHUNG found the plaintiff to be suffering post-traumatic stress disorder and dysthymic disorder.

22. According to Dr. CHUNG a patient might suffer post-traumatic stress disorder when she experienced events involving threatened death or serious injury. The patient's responses would generally be intense fear, a sense of helplessness or horror. The symptoms he found the plaintiff to have included insomnia, depressed mood, nightmares, persistent re-experience of the traumatic events and persistent avoidance of stimuli associated with the trauma.

23. In Dr. CHUNG's explanation, dysthymic disorder was a mental disorder which was characterized by a chronic depression of mood. The symptoms which the plaintiff exhibited consisted of depressed mood, low self-esteem, embarrassment and nervousness when she was being looked at. She lacked interest in activities and was suffering from insomnia. According to Dr. CHUNG some of the symptoms of dysthymic disorder overlapped with those of post-traumatic stress disorder. The plaintiff's dysthymic disorder was caused by the trauma of the accident, the ugly scars and her associated psychosocial problems.

24. Dr. CHUNG recommended 12 one-hour sessions of psychological treatment at an estimated costs of HK$30,000 to help the plaintiff to lessen the effect of the trauma and to help her to accept her disability.

25. Dr. CHUNG was of the opinion that the plaintiff was mentally fit to take up a job suitable to her educational background but her working ability at the new job would be affected by her depressive symptoms and emotional instability.

26. Dr. SIU Wang-chin, psychiatrist on behalf of the defendants, examined the plaintiff on 20 November 1999. Dr. SIU reiterated the diagnosis of Dr. CHUNG and found the plaintiff to be suffering from both dysthymic disorder and post-traumatic stress disorder in a mild to moderate degree. Dr. SIU was of the opinion that the plaintiff was improving gradually as the severity of her post-traumatic distress disorder symptoms were diminishing over the past 2 years. Her sleep and general interest improved with the emotional support of her family and friends in the mainland.

27. Dr. SIU recommended 8 one-hour sessions of psychological treatment to help the plaintiff in symptom reduction, to work through the loss of her previous mobility and to cope with her leg and heel disfigurement. The psychological treatment and psychiatric treatment was estimated at HK$28,000.

28. Dr. SIU was equally of the opinion that the plaintiff was mentally fit to perform work appropriate to her educational background. In his assessment the plaintiff's work would not be affected by her depressive symptoms and emotional instability.

(I) Compensation for pain, suffering and loss of amenities

29. The plaintiff received crushed right heel injuries with muscle, tendon and degloved skin loss. She was hospitalized for 2 and 1/2 months with 3 operations carried out on her. The plaintiff used to enjoy dancing and swimming when she was a homemaker. Since the accident she could no longer participate in her usual activities.

30. The injuries left the plaintiff with a mobility limitation. With the flap and the skin grafting the plaintiff was able to walk with the special rocker bottom boot on her right foot. She walked with a slight limping gait. She needed the assistance of an elbow crutch for long distance ambulation.

31. The plaintiff's recovery was complicated by her inability to accept the scars on her leg and heel. Her depression developed into a mild form of mental disorder which exhibited itself in the form of insomnia and psychological distress. She felt distressed when being invited to relate the events about the accident.

32. From her court appearance, apart from her heel impairment and her slightly over sensitive response to her physical appearance, the plaintiff appeared to me to be a normal and competent person in every other respect.

33. Bearing in mind the various other decisions (CHAN Yiu-ping HCPI 92/98; CHAN Kui HCPI 126/95; LEE Kwan Tong HCPI 1383/96; Cheung Ping v Pak Kee Transportation Co. Ltd HCPI 963/97; Lam Kwong Ting v Ho Yau-yuen HCA 1582/90) involving leg injuries and psychological stress, I accept the plaintiff's injuries to be at the medium to upper range of the serious injuries. Her physical and psychological impairment, though mars some of her general activities and enjoyment of life, allows her reasonable mobility. I am prepared to award her a compensation of HK$500,000 for her pain, suffering and loss of amenities.

(II) Loss of Accrued Earnings

34. The plaintiff was aged 38 at the time of the accident and aged 41 at the assessment hearing. She changed from a homemaker to a working wife in March 1997. At the time of the accident she had been working for 3 months as a casual worker in the construction industry on account of her husband's relationship with the 2nd defendant even though she had no working experience.

35. Prior to the accident she was earning HK$550 per day and was working 28 days a month on average. Her pre-accident monthly income was HK$15,400

36. She was granted sick leave since the date of the accident from 1 May 1997 to 9 October 1998. She moved back to Shenzhen since her discharge from the hospital in August 1997 to be close to her children and her mother.

37. Both orthopaedic practitioners were of the opinion that the plaintiff could perform sedentary work such as telephone operator, receptionist or assembly line factory worker. According to Dr. LAM the plaintiff's physical injuries would have stabilized in October 1998. Psychiatrist Dr. CHUNG formed the view that the plaintiff's mental depression and emotional stability in September 1999 would have affected her work performance. Dr. SIU who examined the plaintiff 2 months later gave his opinion that the plaintiff's mental condition was no longer a factor affecting her work performance. Judging from the plaintiff's responses in court I accept Dr. SIU's more current assessment that the Plaintiff's work performance would unlikely be affected by her emotional depression or instability.

38. I accept the plaintiff should be able to return to the work force by late November 1999. Given an allowance of 2-3 months for her to look for a job, the plaintiff should be able to engage in gainful employment by February 2000.

39. The plaintiff said she believed her chance of getting employment is minimal in light of her level of education, her frequent spells of dizziness, her heart problem, her headache and her inability to walk without the aid of a walking stick. Her spells of dizziness, heart ailment or headache were not supported by medical evidence. No evidence has been presented to me about the plaintiff's effort in securing a job, either in the mainland or in Hong Kong.

40. According to the Quarterly Report of Wages and Payroll Statistics of September 2000 the monthly wages of a general factory non-production worker ranged from HK$5,104 to HK$7,000. Given the plaintiff's physical disability and her low level of education, I am prepared to accept that the plaintiff would not be able to fetch the monthly salary of HK$5,104. Making adjustment for her limitations I accept the monthly wages that the plaintiff would likely be able to obtain was HK$4,000.

41. The plaintiff's loss of accrued income would be a total of HK$660,400, being the aggregate of HK$523,600 for the period of May 1997 to February 2000 ( HK$15,400 x 34 months ) and HK$136,800 for the period of March 2000 to February 2001 {(HK$15,400- $4,000) x 12 months}.

(III) Loss of Future Earnings

42. The plaintiff was aged 37 at the time of the accident and aged 41 at the day of the hearing. Both of her children are coming of age. The need of rendering financial support to her children is diminishing and would likely be gone in the next few years. Her work at the construction industry is physically demanding. I expect her retirement age to be 55 rather than 60 if she remains to work in the construction industry. After considering other judicial decisions I adopt a multiplier of 10.

43. I have accepted the plaintiff's post accident earning ability to be about HK$4,000 per month. The plaintiff's future loss of earning would be HK$1,368,000 {HK$15,400-HK$4,000) x 12 x 10}.

(IV) Loss of Earning Capacity

44. This was not pleaded in the statement of damages as the statement of damages was prepared on the assumption of total loss of earning power. Having found that the plaintiff has an earning capability, I do accept that the plaintiff would be in a disadvantageous position in the labour market in light of her physical disability. I assessed her loss of earning capacity at HK$20,000.

(V) Special Damages

(i) Tonic Food

45. The plaintiff produced receipts of HK$78,993 in respect of the Chinese medicine, birds nest, deer tail and other Chinese herbs she acquired from May 1997 to May 2000. Deer tail is not generally believed to enhance the growth of muscle or tendons. Discounting the receipts for HK$3,950, the plaintiff had spent a total of HK$75,043, over a period of 3 years. According to medical opinion the plaintiff's injury would have stabilized by about October 1998, some 13 months after the accident. Bearing in mind the stablization of the plaintiff's leg injury, the average market price of reasonable quality of birds nests and the lack of evidence to support the use of birds nest to improve skin or muscle growth, I am prepared to allow a sum of HK$25,000 for nourishing food the plaintiff consumed.

(ii) Medical Expenses

46. The plaintiff incurred the following sums for her medical treatments:-

(a)	medical expenses in Tuen Mun Hospital	$5,644
(b)	follow up medical expenses and consultation in the mainland	1,484
(c)	rental of wheelchair and crutches	5,150
		12,278

(iii) Travelling Expenses

47. Whilst the travelling expenses of a companion was reasonably incurred by the plaintiff in attending her medical consultations, the transportation charges spent by the sister in visiting the plaintiff during the plaintiff's hospitalisation was not a sum incurred by the plaintiff. I accept parking charges were reasonably paid by the plaintiff in facilitating the husband's visit to her during her hospitalisation. Hence the travelling expenses reasonably incurred by the plaintiff were:-.

(a)	the travelling charges of the plaintiff and her companion for the plaintiff's follow-up consultations	4,384
(b)	parking charges paid in respect of the husband's visit to the plaintiff during her hospitalisation	4,980
		9,364

(iv) Domestic Helper Service

48. Since September 1997 the plaintiff had engaged a domestic helper at RMB$400 (the equivalent of HK$370) to assist her with the household duties. According to Dr. LAM the plaintiff's heel injuries stabilized in about October 1998. The domestic helper service engaged was justified for the period from September 1997 to October 1998, i.e. a sum of HK$4,070 (HK$370 x 11 months). Defendants had conceded in their answers to the statement of damages that the plaintiff ought to have an extra 2 months of domestic service for the convalescence period after her defatting operation, representing a sum of HK$740 (HK$370 x 2 months ).

(VI) Future Medical Expenses

49. Both orthopaedic surgeons were of the opinion that the Plaintiff ought to have the defatting operation to reduce the size of her ankle. The defatting operation was estimated to cost HK$50,000. Dr. SIU who carried out a more current assessment of the plaintiff's psychological condition in November 1999 recommended an 8 hour treatment requiring a payment of $28,000. I accept the plaintiff would have a potential sum of HK$78,000 medical expenses to meet so as to improve her physical and mental conditions.

(VII) Employee Compensation

50. A sum of HK$896,180 was awarded to the plaintiff by the Employees' Compensation Board on 16 March 2000. The said sum has to be deducted from the present common law damages.

Award

51. I accept the following to represent a fair and reasonable assessment of the plaintiff's common law damages:-

(a) Pain, Suffering and Loss of Amenities	500,000
(b) Loss of accrued earnings	660,400
(c) Loss of future earnings	1,368,000
(d) Loss of earning capacity	20,000
(e) medical expenses incurred	12,278
(f) travelling expenses incurred	9,364
(g) tonic food	25,000
(h) engagement of a domestic helper	4,810
(i) future medical expense to be incurred	78,000
HK$2,677,852

52. As the sum of employee compensation of HK$896,180 ought to be deducted from the common damages assessed, I award the plaintiff a sum of HK$1,781,672 compensation for the injuries she sustained as a result of the accident of 1 May 1997 (HK$2,677,852 - HK$896,180).

53. I award interest on the pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. Interest on the loss of accrued earnings, medical expenses paid, travelling expenses incurred, costs of tonic food and the sum of HK$4,070 of domestic helper service incurred is granted at half the judgment rate from the date of the accident to the date of judgment.

54. I also grant an order nisi on costs, to be taxed if not agreed, in favour of the plaintiff against the defendants for the present assessment hearing. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.