LO YUEN CHONG v. IWS ENVIRONMENTAL TECHNOLOGIES LTD (formerly known as FOOK WOO ENVIRONMENTAL TECHNOLOGIES)

HCPI 1070/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1070 OF 2014

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is an assessment of damages.

BACKGROUND

2.  The plaintiff was born in Hong Kong on 14 February 1981.  She was brought up and educated locally up to secondary level.  She had the working experience of a waitress and an office clerk for a total of about 10 years.  In 2011, she joined the defendant as a workshop clerk. 

3.  On 15 December 2012, at around 8:00 p.m. on her way to a washroom, she slipped and fell with her buttocks onto the ground.  She suffered injuries, mainly on her left wrist. She was and is right hand dominant.

MEDICAL EVIDENCE

4.  The plaintiff was taken to the A & E Department of Tseung Kwan O Hospital. The report[1] says that:

“...

Investigation results:

Xray of the left wrist showed fracture of the left distal radius, with dislocation of the distal ulnar radial joint.

The provisional diagnosis:

Fracture left distal radius

...”

5.  At the request of the plaintiff, she was further treated at Yan Chai Hospital. Its A & E Department says[2]:

“3. On examination the following condition were found:

Other physical findings in detail

• Her left wrist was deformed with tenderness and swelling

• The distal circulation of her left forearm was normal

Investigation

• X-ray of left wrist showed communited fracture of distal elbow[3] with suspected distal radio-ulnar joint dislocation

       ...”

6.  There are 3 further reports prepared by Yan Chai Hospital for the plaintiff.

(a) Medical Report[4] from Department of Orthopaedics & Traumatology

“...Close reduction and dynacast application was performed and the post‑reduction alignment was satisfactory. She was discharged on 17 Dec 2012.

At her first follow‑up on 31 Dec 2012 a repeated X‑ray showed displacement of fracture site in cast. Open reduction and internal fixation was offered and patient agreed for operation. Open reduction and internal fixation was performed on 10 January 2013 and she ran an uneventful post‑operative course. She was discharged on 11 Jan 2013.

She was admitted again on 19 Jan 2013 as she noticed left wrist pain and blister formation. No neurological deficit was noted. Repeated X‑ray showed similar alignment of fracture site. She was discharged on 20 Jan 2013.

...”

(b) Physiotherapy Report[5]

“...

[The plaintiff’s] first appointment was 08.02.2013...

After 24 sessions of physiotherapy treatment, there was some improvement of [the plaintiff’s] condition by 80% decrease of her left wrist pain. There was no swelling on her left wrist. The left wrist extension and flexion mobility, supination and pronation mobility were all increased to full range of movement. She can hold a full fist on her left hand and the left side hand grip power was increased to 15kg.

She was discharged for home exercise after the treatment session on 19.08.2013...”

(c) Occupational Therapy Report[6]

“ COMMENT

[The plaintiff] was referred to us for left hand functional training and 1^st session was given on 15/2/13. Mobilization, edema control, scar management and later strengthening programs were provided. Assessment on 26/11/13 indicated the grip strength of right/left hand = 34/25 kgf and tripod pinch strength of right/left hand = 7.5/6 kgf respectively.

She was discharged from us on 11/12/13.

...”

7.  The plaintiff was given about 14 months’ sick leave, from 15 December 2012 to 21 February 2014.

8.  After the sick leave, she did not resume her job with the defendant.  On 14 February 2014, she gave 7 days’ notice to the defendant to resign.

“...

辭呈

本人因私人理由現決定辭去工埸文員之職務，最後工作日期為2014年2月21日。本人於2012年12月15日不幸因工受傷，病假至2014年2月21日止。在此，感謝公司給予本人學習的機會，並取得寶貴的工作經驗。希望本人的離職不會為你帶來很大的不便。

本人希望在離職之前，能夠取得離職通知書...”

9.  A few months later, the plaintiff was assessed on 8 May 2014 by the Employment Compensation Board.  Her injury was described as “LEFT WRIST INJURY RESULTING IN LEFT WRIST RESIDUAL PAIN[7]”. Her loss of earning capacity permanently caused by the injury was assessed at 0.5%.

INTERLOCUTORY JUDGMENT

10.  On 17 October 2014, the plaintiff commenced the present proceedings. The defendant conceded liability. By consent order dated 12 January 2015, among others, interlocutory judgment on liability was entered for the plaintiff, leaving damages to be assessed.

ASSESSMENT

11.  Parties appeared before me for 2 days in August 2016.  Both parties were represented by Counsel, Mr Osmond Lam for the plaintiff and Ms. Julia Lau, for the defendant.

DIFFERENCE BETWEEN PARTIES

12.  The difference of position between the parties may be seen from the calculation of damages put by them.

		plaintiff[8]	defendant[9]
(a)	PSLA	575,357[10]	200,000
(b)	Pre-trial loss of earnings + MPF	213,317	129,066
(c)	Future loss of earnings	629,829	Nil
(d)	Loss of earning capacity	120,000	Nil
(e)	Special damages	18,211	13,901
		1,556,714	342,967
	Less: ECC payment	143,389	143,389
		1,413,325	199,577
		+ interest	+ interest

13.  I will in turn deal with their differences item by item as per the table.

PSLA

14.  The extent of injury suffered by the plaintiff is found in the above medical reports.  It can further be seen in the joint medical expert reports prepared by parties.  Dr. Chan (for the plaintiff) and Dr. Lam (for the defendant) agreed on a number of matters of which Mr. Lam kindly summarized them in paragraph 11 of his Opening Submission.

“i. The Plaintiff suffered from a left wrist injury with a fracture in the left distal radius which was compatible with the described mode/mechanism of the Accident;

ii. The Plaintiff was suffering from a mild dorm of carpal tunnel syndrome;

iii. The Plaintiff’s median nerve was not damaged and was promptly released. Hence, prognosis was generally good;

iv. Despite the Plaintiff’s current complaints about the residual on and off pain in her left wrist, there is no objective sign of median nerve palsy nor any detectable sensory loss or muscle wasting;

v. X‑ray results showed that the fracture has healed in a good alignment;

vi. Even though left hand grip is weaker than the right side, it is rather satisfactory for a non‑dominant limb in a female;

vii. There is no feature of Complex Regional Pain Syndrome;

viii. No further treatment or surgery is necessary as the Plaintiff could be regarded as having maximal medical improvement from the Accident;

ix. Duration of sick leave was acceptable;

x. However, even though the Plaintiff enjoys satisfactory wrist movement, its flexibility is hindered due to a slight lag in radial and ulnar deviation;”  

15.  Mr. Lam further drew my attention to three features in the case of the plaintiff.

(a) The fracture is not an ordinary one but “comminuted”.

(b) Carpal tunnel syndrome was developed during recovery process and as such, a second operation was performed.

(c) 2 scars (35 mm and 20 mm respectively) are left causing much discomfort.

16.  On the other hand, Ms. Lau asked me:

(a) To doubt the so called “comminuted” fracture as it was only mentioned in the report of the A & E Department of Yan Chai Hospital, but not elsewhere in other reports.

(b) To bear in mind that the carpal tunnel syndrome was only a mild one.  The median nerve was not damaged.  The condition of the plaintiff was promptly taken care of and her prognosis, good.

(c) Not to accept the authorities submitted by Mr. Lam as they were far more serious and not comparable. 

17.  To these 3 arguments, I take the following views.

(a) On balance, I accept that the plaintiff suffered “comminuted” fracture.  It was stated in one of the “ground” medical reports of the plaintiff.  Both experts accepted it without mentioning that it was a “typo”, as they did so by pointing the word “elbow’ in the same sentence.  The observation of Ms. Lam might bear some force but she had no supporting evidence at all.

(b) On the carpal tunnel syndrome, both counsel are in fact making the same point, but from different perspectives only.

(c) The scars left on the left wrist of the plaintiff cannot be disputed.  As to the relevant authorities cited by both counsel on PSLA, I do not propose to go through them as each case really depends on its own facts.  It suffices for me to conclude that the case of Chan Nga Yin formerly known as Chan Mei Yi, Sicely v. MTR Corporation Limited, DCPI 1675 of 2012, H.H. Judge Tam, 25 June 2014, is a better comparable among all. Ms. Lau kindly summed up the case in paragraph 44 of her Closing Submission.

“The plaintiff was a lawful visitor to a shopping mall operated by the defendant. While she was walking along a public corridor towards the supermarket, she was a cleaning lady mopping the floor and she took a little detour to the right as a precaution but otherwise continued to proceed. However, as she walked, she slipped and fell backward onto the floor with her left palm pressing against the floor instinctively as she tried to lessen the harm that might befall her. As a result, the suffered fracture of her left distal radius and she was admitted to the Yan Chai Hospital for treatment. She underwent open reduction and internal fixation and after that she attended follow-up regularly with physiotherapy given. She suffered mild limitation of range of movement of her left wrist and both experts considered she should be able to return to work in her pre‑accident job with mild decrease in efficiency. The Court awarded her a sum of $200,000 as general damages.”

18.  Further, I also remind the clarification sought by me from the plaintiff at the examination over her loss of amenities, in particular her hobbies of fishing and embroidery.  In my observation, there was either some exaggeration on her part or that she had not carefully thought of alternative options open to the activities.

19.  With all these, I find a sum of $300,000 appropriate under this head of damages, bearing in mind the factor of inflation mentioned by Mr. Lam.

PRE‑TRIAL LOSS OF EARNINGS

20.  Regarding loss of pre‑trial earnings, parties agreed that the average month earning of the plaintiff is $7,954 and 14 months’ of sick leave, reasonable.  However, both counsel came up with different calculations.

Mr. Lam:  $11,635.71 x 17.46 months x1.05 = $213,317[11]

Ms. Lau:  $8,780 x 14 months x1.05 = $129,066[12]

21.  Upon thought, I agree with the suggestions from Ms. Lau.

22.  To start with, the joint medical report does not support the case of the plaintiff.

“60. We agree that with the present recovery, [the plaintiff] should be able to continue with her pre-injury job as a workshop clerk.

61. Dr. Chan: she can do so on the condition that she is not required to lift heavy object.

62. Dr. Lam:

She might have some reduction in her working efficiency and endurance due to the residual wrist symptoms, but the adverse influence is mild and would gradually subside with time...

64. We agree that besides this, she could have most types of sedentary or manual jobs suitable for an average female of her age, education background and physical build, including jobs such as waitress and office clerk.

65. We agree that the subject injury would have mild adverse effect on her activities of daily living.

...”

23.  Second, on balance, I find that the defendant resigned from the defendant on her own.  It was not related to her ability to resume her pre–injury job.

(a) The defendant filed its list of documents on 2 April 2015.  Item number one on the list is: “Letter of resignation submitted by the Plaintiff to the Defendant dated 14/2/2014”.  As seen from the extract of such resignation letter as per paragraph 8 above, the plaintiff resigned voluntarily.  About 2 months later, she prepared and signed her witness statement on 27 May 2015.  Nothing was stated in her statement to explain or dispute such resignation letter.

(b) I was only until her examination before this court, the plaintiff offered explanations.  However, they are far from satisfactory. 

(c) She explained that, among others, she had to carry some boxes of A4 papers with 2 hands at the same time.  After the injury, she would not be able to do it.  The resignation letter was not prepared by her.  She knew that the defendant was sending her to remote places to work thereby reducing her salary significantly after the necessary travel expenses.  Alongside with the residual pain, she therefore signed the letter.

(d) As pointed out by Ms. Lam, the defendant had every intention to continue to employ the plaintiff (even accepting the change of working places proposed by the defendant), it is therefore only the plaintiff’s own decision (for the reason best known to her) to resign, any loss of earnings after the sick leave is a result of her own decision.

24.  Third, having found the above, it is not necessary for me to resolve the argument as to why the plaintiff resigned from her new job as a cashier in a snack shop from May to July 2014, during which she earned a total of $20,000.  If I had to do so, on balance, I would find it unrelated to her injury.

(a) In her witness statement dated 27 May 2014, she said that the job required lifting of heavy items.  Due to the pain in her left wrist, she could not carry weight for long time and as such, she quitted.

(b) However, as per the joint medical report dated 2 June 2015, the experts recorded that the plaintiff told them (on the date of interview of 31 March 2015) the resignation was due to “close of business”.

(c) During examination, the plaintiff disagreed that she had told the experts as recorded.  They only gave a simplified version.  In fact, the business of the snack shop was not good and she did not wish the other co‑worker to be dismissed (as the plaintiff could not carry heavy items on her own), she decided to resign.

25.  Mr. Lam asked me to accept the explanation from the plaintiff, having taken into account of her feelings on the injury, her attempts to practice physiotherapy and her demeanour in giving testimony before the court.  However, the joint report was there for a long time and no step had been taken to seek correction, if any, from the experts. “Close of business” is simple and straight-forward and I cannot see how it could fit in the explanation sought to offer by the plaintiff.  As suggested by Ms. Lau, if the plaintiff would agree that she quitted because of the closure of the snack shop, she would, in effect, admit that she could work there, lifting weight in the course of work and earning a sum exceeding her pre‑accident job.

26.  With the above findings, together with the concession from the defendant that the plaintiff would have been enjoyed similar increase in her salary (but for the resignation) as her colleagues, I agree to adopt a notional increment of 11.14% which is to be applied to the said average month earning of the plaintiff at $7,954, arriving at $8,780.  In the end, I accept the calculation proposed by Ms. Lau.

FUTURE LOSS OF EARNINGS

27.  As I have found that the plaintiff resigned from the defendant on her own, there is no future loss of earnings which the defendant should be held responsible.

LOSS OF EARNING CAPACITY

28.  In my view, the impact of the injury upon the plaintiff is not significant and a sum of $52,680, i.e. 6 months’ wages in the aforesaid sum of $8,780 is appropriate to compensate her for any disadvantage in labour market or higher chance of losing job in future.

SPECIAL DAMAGES

29.  The sums claimed under special damages by the plaintiff are relatively nominal.  Mr. Lau conceded some and Ms. Lam agreed some, leaving only certain costs of bone setter and tonic food in the total sums of $4,310 argument.  On balance, I find them within the range of reasonableness to be spent by the plaintiff as a result of her injury.

SUMMARY

30.  To conclude, the defendant shall pay the followings to the plaintiff.

(a)	PSLA	$
(b)	Loss of past earnings and MPF	300,000
(c)	Loss of future earnings	129,066
(d)	Loss of earning capacity	Nil
(e)	Special damages	52,680
		18,211
		499,957
	Less: Employee compensation received	143,389
		356,568
		=========

INTEREST

31.  As to general damages, the Plaintiff is further entitled to interest at 2% per annum from the date of writ to the date hereof.  Regarding special damages, interest will be calculated at half judgment rate from the date of judgment until the date of judgment herein.

COSTS

32.  Finally, there will be a costs order nisi that the Defendant is entitled to costs of the assessment, on District Court scale, including costs reserved and certificate of counsel for the hearings before me, on party and party scale, to be taxed, if not agreed.