LAU HI v. KAM SHEK INVESTMENT CO. LTD. AND ANOTHER

1986 No. A5978

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was removing planks in the course of his employment with the 2nd Defendant on a construction site when a wooden platform on which he was standing broke without warning thereby causing the Plaintiff to fall about 3 metres to the ground and sustain injuries. Both 1st and 2nd Defendants were claimed to be occupiers of the site and in breach of their statutory duty of care towards the Plaintiff working thereon.

2. The 1st and 2nd Defendants have taken no steps in these proceedings and judgment was entered against them on 11th May 1987 for damages to be assessed after they failed to give any notice of intention to defend. The Defendants did not attend and were not represented at this assessment.

3. The Plaintiff was 53 years of age and in good health at the date of this accident on 18th December 1983. Counsel for the Plaintiff produced a Bundle of 11 Documents under section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court. The injuries sustained by the Plaintiff are detailed in the medical reports of Dr. Philip Wen-chee MAO and Dr. LEE Wai-keung being Documents 3 and 4 in the Bundle produced in evidence. In his fall the Plaintiff landed on his heels and suffered a crush fracture of the calcanei in both ankles. Pain and swelling in the ankles persisted and the Plaintiff could not walk normally. Because of persistent pain the Plaintiff's right ankle was operated on for fusion of the subtalar joint. This injury results in the patient losing the normal spring movement in walking and he tends to stomp about on his heels. Dr. Philip MAO reported that this injury can give rise to much pain and distress and difficulty in walking or bearing weight. It was also stated that in many cases osteoarthritis supervenes.

4. The Plaintiff was admitted to Princess Margaret Hospital for 3 days after the accident before being transferred to Caritas Hospital where he was kept in bed until discharged on 30th January 1984. Three days before his discharge, the Plaintiff was allowed to bear weight on his ankles with a pair of elbow crutches. He attended outpatient treatment at South Kwai Chung Polyclinic every 2 - 4 weeks and had physiotherapy twice a week for 3 months after his discharge. The Plaintiff remained in hospital for 18 days after the fusion operation to his right ankle on 1st July 1984. A plaster cast was applied to his right foot and ankle for 3 months and removed en 25th September 1984. He remained on crutches until the end of September and had physiotherapy twice a week for 3 weeks. The Plaintiff still complains of pain in his right foot. He cannot squat and can walk no longer than 45 minutes and then only with pain in his right foot throughout. He cannot walk on his toes and has no proper arch support. He has difficulty in coming down stairs because of the reduced movements of his ankle joints. He requires special shoes because both ankle joints have been widened. The Plaintiff was on sick leave until 14th December 1985.

5. Dr. Philip MAO assessed the Plaintiff's impairment or disability as 28% of the lower extremity which is an 8% impairment of the Whole Man. The Plaintiff was also assessed to have 20% loss of earning capacity under Employees Compensation on the basis that he has ankylosis of both ankle joints. The certificate of award for employees' compensation (being document 2 in the bundle) is for the sum $44,623.60 plus interest at judgment rate on $26,757.00 from March 1985 to 14th April 1986 and costs. To date the employees' compensation has not been paid to the Plaintiff.

6. The Plainitff gave evidence that at the date of the accident he was earning a daily wage of $80.00 with a daily meal allowance of $10.00 and a daily travel allowance of $10.00. Furthermore, he worked 7 days every week and received overtime pay of $40.00 every day except Sundays when no overtime was worked. On this basis the Plaintiff was earning $4,040.00 for a 30 day month. The average monthly wage for unskilled labourers on construction sites in December 1983 according to the Census and Statistics Department was $3,573.00 whereas the average monthly wage for such workers in August 1987 was $5,166.00. These 2 figures do not take account of overtime but are calculated over a 30 day working month. As indicated earlier the Plaintiff was on sick leave for 2 years from the date of the accident until 14th December 1985. The Plaintiff's evidence was that he was unable to obtain any employment until June 1986 when he worked as a substitute caretaker/watchman earning about $500.00 a month. Since August of this year his earnings from the same employment have increased to $900.00 - $1,000.00 a month.

7. The Plaintiff was able to produce 28 receipts for medical treatment and 27 sick leave certificates in the Bundle of Documents and the special damages claimed have been proved and are allowed as follows:

8. The Plaintiff's loss of earnings since the date of the accident will be assessed on the basis of his monthly earnings at that time, namely, $4,040.00 less the sum he has earned up to the date of this assessment. The Plaintiff was on sick leave for 2 years following this accident and the 6 months between December 1985 and June 1986 when he found suitable employment should  be accepted as reasonable in the circumstances. The pre-assessment loss of earnings by the Plaintiff are therefore calculated as:

9. Turning to the question of loss of post assessment earnings Counsel for the Plaintiff submitted that a multiplier of 7 years from the date of assessment was appropriate. This would in effect amount to a multiplier of 11 years from the date of the accident which is far too high for a 53 year old male. The multiplier tables for males between 46 and 55 years in non-fatal accidents show a range between 4 years and 10 years with an average of 7.5 years. In this case an appropriate multiplier to use would to 8 years. As for the multiplicand the Plaintiff was earning $4,040.00 at the date of the accident and the average monthly wage for construction site labourers in August 1987 was $5,166.00 on the basis of 26 working days in a month. From this figure. should be deducted the Plaintiff's present earnings ($900.00- $1,000.00 p.m.). As inflation would-affect both the average monthly wage and the Plaintiff's earnings over the 4 year balance of the multiplier period this factor can be disregarded. The post assessment earnings are calculated as follows: 49 months x $4,216.00 ($5,166.00 -$950.00) = $206,584.00.

10. The remaining head of damage to consider in this case is pain, suffering and loss of amenities. The injuries suffered by the Plaintiff have been outlined in detail earlier in this decision. In addition the time that the Plaintiff spent in hospital and receiving medical treatment over a total period of 2 years has been outlined. Counsel for the Plaintiff referred the Master to 4 cases involving similar injuries over the last 2 years where the award under this head ranged between $70,000.00 and $95,000.00. Following the lead shown by Mr. Justice Hunter in TSANG Yung-sang v. Sanfield Building Contractors Ltd. HCA No. 957/1984, delivered in February of this year, it is not proposed to consider whether the Plaintiff's injuries were sufficiently serious to fall within the 'serious' category in LEE Ting-lam. As suggested in that case classifications' and categorisation of injuries should be avoided and greater weight given to authority in an attempt to make a realistic award, appropriate to the injuries suffered in a particular case, which reflects the much improved social, economic and industrial conditions in Hong Kong over recent years. Taking into account the Plaintiff's permanent disability from his injuries, his restricted physical movements and the pain he suffers whenever he walks, an appropriate award for pain, suffering and loss of amenities in this case would be $120,000.00.

11. A summary of awards made is set out as follows:

12. There will be interest @ 2% per annum on the general damages for pain, suffering and loss of amenities and for pre-assessment loss of earnings from date of issue of writ to date of judgment and interest @ 3.5% per annum on the special damages other than post-assessment loss of earnings from date of the accident until the data of judgment. Costs of this assessment to the Plaintiff and the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.