CHAN FAI CHEUNG v. HO CHI WING TRADING AS HANSON ENGINEERING CO AND ANOTHER

HCPI 354/2016

[2019] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 354 OF 2016

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JUDGMENT

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1.  This is an assessment of damages in an action for damages for personal injuries suffered by the Plaintiff on 12 April 2013 in an accident at work (the “Accident”).

2.  Neither of the Defendants entered intention of notice to defend, and interlocutory judgment for damages to be assessed was entered against the Defendants on 3 January 2017.

3.  Neither of the Defendants attended trial.

A.   Background

4.  The Plaintiff was born on 8 April 1973 and was 40 years old at the time of the Accident.  He is now 45 years old.  He is married with two children.  He received education up to secondary school level in Mainland China.

A1.   The Accident

5.  At the time of the Accident, the Plaintiff was employed by the 1^st Defendant as an air-conditioning technician.  On the day of the Accident, the Plaintiff was working with the 1^st Defendant to carry out the installation of an air-conditioning unit on the exterior of a hotpot restaurant at G/F, Kiu Fat Mansion, No.96 Lok Shan Road, Tokwawan, Kowloon, Hong Kong.

6.  As the air-conditioning unit had to be installed on a wall at around 4 to 4.5m above the ground, the Plaintiff and the 1^st Defendant took turns to climb up a ladder to carry out the necessary works.  When the Plaintiff was up the ladder, the 1^st Defendant failed to hold the ladder firmly and the ladder suddenly wobbled and started falling.  Although the Plaintiff immediately clung on to a pipe, the pipe could not sustain the Plaintiff’s weight, and the Plaintiff fell down together with the ladder, landing on his right foot.

A2.   The Plaintiff’s injuries and treatment

7.  After the Accident, the Plaintiff’s right foot swelled up and he could not walk.  At the 1^st Defendant’s suggestion, the Plaintiff consulted two bonesetters that day (the first of whom was unable to help), and also Dr. Chau Chi Chiu, a private doctor, on 19 April 2013.

8.  However, on 25 April 2013, the Plaintiff’s right heel was so swelled up and painful that the Plaintiff had to attend the Accident and Emergency Department at Kwong Wah Hospital.  The X-ray showed fracture of right calcaneum.

9.  On the night of 26 April 2013, when the Plaintiff was back at home, the pain in his heel was so unbearable that he had to be taken to the Queen Elizabeth Hospital by ambulance for emergency treatment.  The X-ray showed fracture of right calcaneum.  The Plaintiff was subsequently admitted to the Orthopaedics & Traumatology Department for further medical treatment.

10.  The Plaintiff was advised to undergo surgery but he preferred conservative treatment.

11.  Ultimately however, the Plaintiff had to undergo three surgeries.

11.1   On 6 February 2015, the Plaintiff underwent surgery, and was hospitalised from 5 to 10 February 2015.

11.2   Subsequently, due to persistent right foot pain, the Plaintiff had to have a second surgery on 26 October 2015.  He was hospitalised from 23 to 29 October 2015.

11.3   On 13 February 2017, the Plaintiff received a third operation for implant removal.  He was hospitalised on 13 and 14 February 2017.

12.  The Plaintiff also underwent physiotherapy.  He attended the Department of Physiotherapy of Our Lady of Maryknoll Hospital from 14 June 2013 to 6 September 2013 for about 12 treatment sessions.  The Plaintiff also underwent physiotherapy at Queen Elizabeth Hospital, including from 11 November 2015 to 16 March 2016, and from 3 March 2017 to 14 July 2017, for about 29 sessions in total.

13.  In addition, the Plaintiff attended two courses of occupational therapy treatment from the Occupational Therapy Department of Queen Elizabeth Hospital from 20 August 2013 to 21 February 2014, and from 8 June 2015 to 8 September 2015, for about 60 treatment sessions in total.

14.  The Plaintiff was granted sick leave from 12 April 2013 to 30 April 2014 (not consecutively but with some gaps), from 4 September 2014 to 31 December 2014, then again from 5 February 2015 to 31 May 2016.  Later on, the Plaintiff was also granted sick leave from 13 to 28 February 2017, 16 to 26 May 2017, and 20 to 21 October 2017.

A3.   Expert evidence

15.  By the Order of Master Roy Yu dated 27 March 2017, the Plaintiff was granted leave to adduce medical expert evidence by the orthopaedic expert, Dr. Tio Man Kwun Peter (“Dr. Tio”), whereas no medical expert evidence would be adduced by the Defendants at the assessment of damages.

16.  Dr. Tio examined the Plaintiff on 26 May 2017 and prepared a Medical Report dated 2 August 2017 (“Dr. Tio’s Expert Report”).

17.  Subsequently, the 1^st Defendant applied to cross-examine Dr. Tio, but such application was refused by Master Roy Yu on 20 February 2018.  Master Roy Yu also ordered that subject to the direction of the Master hearing the assessment, Dr. Tio’s Expert Report be adduced as evidence without calling the maker thereof.

18.  Dr. Tio explained that the X-ray taken on 25 April 2013 of the Plaintiff’s injuries showed right calcaneum fracture, which he agreed was consistent with the mechanism of injury.[1]

19.  Initially, as requested by the Plaintiff, he was treated conservatively.[2]

20.  Due to malunion of right calcaneal fracture, the Plaintiff was given intra-articular right calcaneal osteotomy, endoscopic calcaneoplasty and synovectomy on 6 February 2015.  Rehabilitation continued. However, after the surgery on 6 February 2015, the Plaintiff unfortunately suffered from post-traumatic arthropathy of right subtalar joint.  Options including subtalar joint fusion were discussed but the Plaintiff refused to have subtalar joint fusion.[3]  Nevertheless, on 26 October 2015 the Plaintiff had to have surgery of arthroscopic cheilectomy of right subtalar joint, synovectomy and removal of implant of right calcaneus, with the implant being removed on 13 February 2017.[4]

21.  Dr. Tio opines that the Plaintiff’s treatment was standard and appropriate.[5]

22.  At the examination by Dr. Tio, the girth measurement of the Plaintiff’s right calf and thigh was 2cm to 2.5cm smaller than that of his left, an indication of muscle wasting likely due to pain.[6]

23.  At the assessment with Dr. Tio, the Plaintiff still complained of daily right heel pain, persistent right lateral leg and ankle numbness as well as nocturnal cramps.  The Plaintiff attended the examination walking unaided, but with mild limping.  Examination of his right ankle showed diffuse tenderness especially overall lateral aspect.  There was widening of his ankle, and weakness was demonstrated in all directions.  He had hallux valgus over his right foot but not his left.  An X-ray showed that the fracture right calcaneum had healed with residual deformity and disuse osteoporosis. In Dr. Tio’s opinion, the Plaintiff’s right ankle signs and symptoms are compatible with post fracture status.[7]

24.  At the date of assessment by Dr. Tio, the Plaintiff had reached maximal medical improvement and was suitable for assessment.  There was about 25% chance that the Plaintiff may need a fusion of his right subtalar joint in the future should the symptoms become more disabling.[8]

25.  In Dr. Tio’s view, it would be difficult for the Plaintiff to resume his pre-injury work as an air-conditioning installation worker as he would not be able to climb up and down scaffolding or ladders when carrying heavy items.  His ability to squat was also affected with reduced endurance of his right lower limb.  He was more suitable for less physically-demanding jobs such as being a security guard or doorman.[9]

26.  Dr. Tio was of the view that the sick leave granted to the Plaintiff was reasonable and appropriate.[10]

27.  Dr. Tio estimated that the degree of whole person impairment to the Plaintiff was 11%.[11]

A4.   EC proceedings

28.  The Plaintiff has brought employees’ compensation proceedings against the Defendants (DCEC 599/2015), and judgment was entered against the Defendants.  The Plaintiff was assessed by the Employees’ Compensation (Ordinary Assessment) Board on 3 August 2016 to have suffered 9% permanent loss of earning capacity under the Employees’ Compensation Ordinance for “right calcaneum fracture with surgery resulting in right calcaneum pain, swelling, scar and mild motion deficit”.

29.  The Plaintiff has received employees’ compensation in the sum of HK$568,988.

B.   PSLA

30.  Before turning to consider the appropriate sum of PSLA to award the Plaintiff, I need to first ascertain the nature and extent of the Plaintiff’s injuries.

31.  Mr. Lin invites me to accept Dr. Tio’s evidence, which the Defendants have not challenged at the assessment of damages.  Mr. Lin relies on The Kowloon Motor Bus Co (1993) Ltd v K K Cargo Systems (HK) Limited & Or, CACV 372/2002, 4 April 2003, paragraph 21.

32.  However, in my view there are certain allegations made by the 1^st Defendant which I need to address.  Although the Defendants did not attend trial, on 23 November 2017 the 1^st Defendant had filed an Amended Answer to the Revised Statement of Damages.  In particular, the 1^st Defendant had alleged in his Amended Answer that during his interview with Dr. Tio, the Plaintiff had feigned or grossly exaggerated his conditions and complaints.  The 1^st Defendant relied on surveillance conducted on the Plaintiff on 12, 14 and 15 June 2017 to say that the Plaintiff is able to walk with a normal gait and at a normal pace, without any sign of right ankle pain in all weather conditions.  In particular, the 1^st Defendant says that the surveillance shows that:

32.1   There were no visible scars or deformity over the Plaintiff’s right foot or right ankle;

32.2   The Plaintiff did not show any or any noticeable limitation of motion of any kind (including but not limited to walking tolerance, active range of motion over his right ankle, right ankle motion and right ankle power);

32.3   The Plaintiff was able to jog and walk in an ordinary manner at a normal pace, without any limping gait;

32.4   The Plaintiff was able to bear weight on both heels;

32.5   The Plaintiff was able to carry multiple and heavy objects;

32.6   The Plaintiff did not show any or any noticeable signs of pain, bruising, tenderness, stiffness or numbness, whether during or after walking; and

32.7   The aforesaid observations on the Plaintiff were not changed even in typhoon, rainy, humid and/or change of weather conditions.[12]

33.  During the assessment of damages, excerpts from the video clips were played in Court.  I note that parts of the video clips are of poor quality in that the person making the video did not hold the recording device very still, and the video jolts around, making it difficult to see (for example) whether the Plaintiff was limping or not.  Further, I accept Mr. Lin’s submission that the video clips cannot be regarded as presenting a full picture to the Court given that the videos are a combination of selective clips.

34.  Although the 1^st Defendant alleges that the video shows that there were no visible scars or deformity in the Plaintiff’s right foot or ankle, this is not apparent to me from the surveillance video (where the video clips are mostly of the whole of the Plaintiff’s person rather than a close-up of his foot or ankle).  Further, I see no reason to doubt the description of the Plaintiff’s scars in Dr. Tio’s Expert Report.[13]

35.  Also, the 1^st Defendant appears to have made certain allegations without properly adducing evidence in support. For example, there is no evidence about typhoon, rain, humidity or any change of weather conditions around the time that the surveillance videos were made despite the allegations made by the 1^st Defendant (see paragraph 32.7 above).

36.  I do note that there are parts of the video clips where the Plaintiff did not appear to be walking with a limp.  In this regard, I find the Plaintiff’s explanations to be credible, and I accept the explanations.

36.1   The Plaintiff accepted that it is possible for him to walk normally, in particular for short distances and if he walks using a correct position.

36.2   He explained that the doctor had advised him to do his best to walk using a correct position.

36.3   Further, the Plaintiff took painkillers to help him to walk better.

36.4   Finally, the Plaintiff identified several parts of the video clips where he had a slight limp.

37.  Having considered the Surveillance Report, including the videos and photographs, I do not consider that the 1^st Defendant has proper basis for alleging that the Plaintiff had feigned or grossly exaggerated his conditions and complaints in his interview with Dr. Tio.  I accept the evidence of Dr. Tio.

38.  Mr. Lin submits that the Plaintiff’s injuries are in the serious injury category, which is the lowest category out of the four categories set out in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.  In David John Slater v. Commissioner for Police, HCPI 646/2012, 7 July 2017, paragraph 22, Bharwaney J held that taking into account inflation, awards in the serious injury category would start at HK$530,000 as at that date.  That decision was applied at paragraphs 100 and 101 of Chan Ho Kwan v. Mo Man Ho and Or [2018] HKCFI 2174 (28 September 2018), and the serious injury category was held to range from HK$530,000 to HK$716,000.

39.  Mr. Lin has drawn my attention to various cases with respect to the quantum of PSLA:

39.1   In Wong Woon Hei v Dickson Construction Co. Ltd, HCPI 521/2000, 3 July 2001, the plaintiff suffered from a fractured left calcaneum (paragraph 21) and could not return to his work as a painter (paragraph 37), and was awarded HK$400,000 for PSLA.

39.2   In Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, the plaintiff broke his right shin bone, and fractured bones in his right ankle and left heel (p.309D).  The plaintiff could continue working as a painter but with a reduced capacity, and his whole person impairment was around 8% to 10% (p.309J).  It was not contended that the plaintiff’s injuries came within even the lower end of the serious injury category (p.310C), and PSLA in the sum of HK$400,000 was awarded, a sum that was a little less than where inflation would place the bottom of the bracket for injuries in the serious injury category at the time (p.310D).

39.3   In Siu Wai-Man Ada v Lee Chi Chong, HCPI 174/1994, 9 November 1998, the plaintiff suffered bimalleolar fracture of her left ankle, underwent two operations, and was granted sick leave for around 8 months (p.3).  Her whole person impairment was assessed to be 5% (p.4).  the plaintiff was awarded HK$400,000 for PSLA (p.9).

39.4   In Tse Hing Wan v Choy Yuen Keung, HCPI 889/1998, 24 January 2000, the plaintiff suffered fracture of the left os calcis, underwent open reduction and internal fixation operation, and was granted sick leave for around two years (p.2-3).  The parties’ experts agreed that the plaintiff suffered an 8% whole person impairment (p.3-4).  The Court awarded the plaintiff HK$350,000 for PSLA.

40.  Having considered the Plaintiff’s evidence about his injuries and the impact on him, the treatment he has had to receive (including three surgeries), Dr. Tio’s evidence, and the abovementioned cases, in my view the Plaintiff’s injuries are a little less serious than the serious injury category.  I award the Plaintiff HK$500,000 for PSLA.

C.    Pre-trial loss of earnings

41.  The Plaintiff earnt HK$17,940 per month prior to the Accident.  See Chan Fai Cheung v Ho Chi Wing trading as Hanson Engineering Co and Or, DCEC 599/2015, 15 November 2017.[14]

42.  The Plaintiff has adduced evidence to show changes in the wages of air-conditioning mechanics from the time of the Accident to trial.

42.1   According to the Average Daily Wages of Workers Engaged in Public Sector Construction Projects as Reported by Main Contractors published by the Census and Statistics Department, the daily wages of an air-conditioning mechanic were HK$662.30 in April 2013.[15]  This was in line with the Plaintiff’s wages at a daily rate of HK$650[16] at the time of the Accident.

42.2   According to the latest available statistics from the Census and Statistics Department as at the time of the assessment of damages, the daily wages of an air-conditioning mechanic had increased to HK$1,024.70 by July 2018.[17]  I agree with Mr. Lin that it is appropriate for me to take into account such statistics.  See Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited, HCPI 913/2011, 17 July 2015, paragraph 58.

42.3   Thus, as Mr. Lin pointed out, the average daily wages of an air-conditioning mechanic had increased by around 54.7% from April 2013 to July 2018, and on this basis the Plaintiff should have earnt about HK$27,753 per month, i.e. HK$17,940 x 1.547, by the time of trial.

43.  Thus, I proceed on the basis that but for the occurrence of the Accident, the Plaintiff should have earnt HK$27,753 per month by the time of trial.

44.  The median monthly earnings of the Plaintiff during the pre-trial period would therefore be HK$22,846.50, i.e. (HK$17,940 + HK$27,753) ÷ 2.

45.  Although the Plaintiff was granted intermittent sick leave rather than continuous sick leave, I accept that there may be circumstances where full loss of earnings should be awarded not only on the basis of the precise days of sick leave, but with respect to the whole period covered by the sick leave even where there were days in between that were not covered by sick leave.  See Lo Hing Kin Nelson v The Personal Representative of the Estate of Lam Yuk Wan (Deceased), HCPI 14/2012, 14 August 2015, paragraph 55, which was upheld on appeal at [2017] 3 HKLRD 294, paragraphs 40 and 41.

46.  In the present case, Dr. Tio was of the view that the sick leave granted to the Plaintiff was reasonable and appropriate. Having said that, Dr. Tio’s opinion was of course only with respect to sick leave granted prior to the date of his examination and report, which does not include the final two days of sick leave granted on 20 and 21 October 2017.

47.  I am satisfied that the sick leave on 20 and 21 October 2017 was also to do with the Plaintiff’s injuries arising from the Accident.  Even though the sick leave certificate[18] unhelpfully only says that the Plaintiff was suffering from a “medical condition” without further details, the corresponding medical report[19] does refer to the sick leave having arisen from the Plaintiff’s chronic right foot pain, and states that he had right heel pain after prolonged standing and walking, and that he had right hindfoot diffuse tenderness.  The medical report also stated that the Plaintiff did not have any new injury. Thus, I accept that the two days of sick leave on 20 and 21 October 2017 were related to the Plaintiff’s injuries from the Accident.

48.  I also bear in mind that the Plaintiff had to take sick leave on 20 and 21 October 2017 because he had tried to work in a Chinese restaurant starting from 19 October 2017, but was only able to do so for 1.5 day before he suffered from pain and had to stop.

49.  Under the circumstances, I accept Mr. Lin’s submission that the Plaintiff should be awarded full loss of earnings from 12 April 2013 to 21 October 2017, save that credit should be given for the sum of HK$323 that the Plaintiff earnt for the 1.5 day of work on 19 and 20 October 2017.

50.  I also accept Mr. Lin’s submission that it would be reasonable to give the Plaintiff a further period of 3 months after the end of his sick leave period to cater for adjustment and the time for finding a job.  See for example Chan Mok Yau v 黃吉利 [2018] HKCFI 1084 (25 May 2018), paragraph 29; Wong Kai Fun v Sun On Logistics Limited & Or, HCPI 196/2015, 26 May 2017, paragraph 39.

51.  My view is that for the period from 12 April 2013 to 21 January 2018, the Plaintiff should be awarded full loss of earnings, which together with MPF would be calculated as follows: (HK$22,846.50 x 57.3 months x 1.05) - HK$323 = HK$1,374,237.

52.  For the rest of the pre-trial period, Mr. Lin rightly accepts that the Plaintiff should be entitled to partial rather than full loss of earnings since Dr. Tio is of the view that the Plaintiff can undertake lighter work as a security guard.  To that end, the Plaintiff had attended a two-day course in September 2017 to enable him to undertake work as a security guard.[20]

53.  The Plaintiff has adduced evidence as to the wages of a security guard.

53.1   According to the Census and Statistics Department, the average monthly salary of a security guard was HK$12,570 in December 2017 and HK$12,952 in June 2018.[21]

53.2   The median monthly earnings of a security guard between 22 January 2018 and the date of trial should therefore be: HK$12,761, i.e. (HK$12,570 + HK$12,952) ÷ 2.

54.  Thus, the Plaintiff’s partial loss of earnings and MPF from 22 January 2018 and 23 October 2018 (the date of trial) should be (HK$22,846.50 - HK$12,761) x 9 months x 1.05 = HK$95,308.

55.  In summary, the Plaintiff’s pre-trial loss of earnings and MPF are:

From 12 April 2013 to 21 January 2018 = HK$1,374,237

From 22 January 2018 and 23 October 2018 = HK$95,308

Total: HK$1,469,545

D.   Post-trial loss of earnings

56.  The Plaintiff was 45 years old at the date of trial, and I accept that he could work until the age of 65.  The presumed discount rate would be 2.5% per annum.  See Chan Pak Ting v Chan Chi Kuen [2013] 2 HKLRD 1, paragraph 134.  I agree with Mr. Lin that according to Table 9 of the Personal Injury Tables Hong Kong 2016, the appropriate multiplier should be 15.41.

57.  I award the Plaintiff post-trial loss of earnings as follows:

(HK$27,753 - HK$12,952) x 12 months x 15.41 x 1.05 = HK$2,873,851.

E.   Loss of earning capacity

58.  By the Re-Revised Statement of Damages, the Plaintiff claimed loss of earning capacity in the sum of HK$250,000, but in Mr. Lin’s Opening Submissions, he asked for HK$100,000 to HK$120,000, and in his Closing Submissions he asked for at least HK$100,000.

59.  The purpose of this head of claim is to compensate a plaintiff where there is a substantial risk that during his working life, he will lose his employment and suffer financial loss because of his disadvantage in the labour market due to his disability.  See Moeliker v. A Reyrolle & Co. Ltd. [1977] 1 WLR 132, 141.

60.  Mr. Lin has drawn to my attention to: (1) Cheung Lee Man v Chan Wai Wing, CACV 179/2006, 11 January 2007, where the Court of Appeal upheld the judge’s award of HK$120,000 for loss of earning capacity; and (2) Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited, supra, paragraph 62, where Bharwaney J awarded loss of earning capacity in the sum of HK$100,000.

61.  In light of the medical evidence before me, I agree with Mr. Lin that it would be appropriate for me to make an award for loss of earning capacity.

61.1   Dr. Tio has opined that the Plaintiff has reached maximal medical improvement, but there is a chance of about 25% that he may need a fusion of his right subtalar joint in the future should his symptoms become more disabling.[22]

61.2   The Plaintiff has residual pain, weakness, numbness and stiffness arising from his fracture right calcaneum, and he has reduced endurance of his right lower limb.[23] As Mr. Lin submits, this could have an impact on the Plaintiff’s future employment.

62.  In my view, a reasonable sum to award the Plaintiff for loss of earning capacity is HK$100,000.

F.   Special damages

63.  The Plaintiff claims a total of HK$36,279.21 as special damages, being made up of:

63.1   Medical expenses: HK$9,654.41;

63.2   Stick: HK$38;

63.3   Travelling expenses: HK$4,000; and

63.4   Tonic food: HK$22,586.80.

64.  I am satisfied that the abovementioned expenses have been reasonably incurred, and I award the sum of HK$36,279.21 as special damages.

G.   Summary of award

65.  In summary, I award the Plaintiff damages as follows:

PSLA	HK$500,000
Pre-trial loss of earnings and MPF	HK$1,469,545
Future loss of earnings and MPF	HK$2,873,851
Loss of earning capacity	HK$100,000
Special damages	HK$36,279.21
Total (before taking into account employees’ compensation)	HK$4,979,675
Less employees’ compensation and advanced payments received by the Plaintiff	HK$568,988
Total	HK$4,410,687

66.  The Plaintiff claims interest on PSLA from the date of the writ to the date of the judgment at 2% per annum.  The Plaintiff also claims interest on pre-trial loss of earnings and MPF, and special damages, from the date of the Accident to the date of the judgment at half the judgment rate.  I so award.

67.  I also order that the Defendants pay the costs of this action to the Plaintiff, to be taxed if not agreed and with certificate for counsel, and that the Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.