LO HING KIN NELSON v. THE PERSONAL REPRESENTATIVE AND/OR THE EXECUTOR AND/OR THE ADMINISTRATOR OF THE ESTATE OF LAM YUK WAN (DECEASED) AND ANOTHER

HCPI 14/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 14 OF 2012

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ASSESSMENT OF DAMAGES
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1.  The 34-year-old[1] plaintiff (“Lo”) claims damages for personal injuries suffered in a traffic accident that took place on 18 June 2009. This is the assessment of damages.

2.  Lam Yuk Wan, who was involved, died in the accident.  Hence the 1^st defendant.  By the order of the court dated 24 September 2012, the Official Solicitor was appointed for the limited purpose of accepting service of the writ.  The 1^st defendant has never appeared or taken part in the proceedings in this action.

3.  The 2^nd defendant (“BOC”) is the insurer of the 1^st defendant.

4.  Interlocutory judgment was entered on 17 July 2012 for damages to be assessed with costs.

5.  When the trial began, the parties managed to come to terms except for the following items of claim:

(1) pre-trial loss of earnings;

(2) future loss of earnings;

(3) loss of earning capacity; and

(4) need for future medical treatment (whilst the amount of expenses is agreed).

INJURIES AND TREATMENT

6.  After the accident, Lo was sent to the hospital, where he was found to have abrasions to the right mid-shin and deformed lower part of the right leg near the ankle as well as chest contusion.  X-ray revealed comminuted fracture of the lower tibia and fibula as well as a crack fracture of the right clavicle.  The former received operative treatment of open reduction and internal fixation while the latter was treated conservatively.  Bone grafting was performed in June 2009.  The operation was performed smoothly, but the wound healed slowly.

7.  Lo complained about nightmare, palpitation, hearing voices and intermittent intrusive recollection of the incident.  Clinical psychologist and psychiatrist gave the diagnosis of acute post-trauamatic stress reaction.  Psycho-education was provided and a short course of propanolol and diazepam was prescribed.

8.  Lo was discharged on 20 July 2009 after 33 days of hospitalisation.

9.  Follow up records showed progressive healing of Lo’s lower limb and good function. Upon the last follow up in April 2010, the fractures had totally healed.  Lo had attended 23 sessions of physiotherapy.

10.  After discharge, Lo was also referred to specialist outpatient clinic for the management of his post-traumatic stress disorder.  His mood upon attendance in September 2009 was unstable, irritable and at times agitated.  His memory and concentration was poor.   At times, he had flashback of the accident, and felt fear about the site of the accident.  He was restless and had poor sleep.  He was given antidepressant.

11.  Lo’s condition gradually improved and became stable.  Antidepressant was stopped.  Prognosis was good and he was in remission of his illness.  He had altogether 5 sessions of psychiatric consultation until May 2011.

12.  As to his lower limb, the soft tissue problem after the surgery caused stiffness.  There was also implant impingement and alignment problem.  Except for a piece of broken screw that had to be removed in May 2011, Lo was advised to consider reconstruction of the maligned distal tibia.

MEDICAL EXPERT EVIDENCE

13.  Lo was examined on 15 April 2011 by his expert, Dr Ko Put Shui Peter, and BOC’s expert, Dr Wong Kwok Shing Patrick.  The experts produced their joint report on 31 May 2011 (“the 1^st Report”).

14.  The experts noted Lo’s right foot often tripped on his left.  He felt hot over the implant site with occasional swelling.  The implants were prominent.  He had reduced ankle movement.  He complained about morning stiffness.  There was pain over the distal right leg upon weather change.  So was there at rest and when climbing stairs.  He was able to climb 2 to 3 flights of stairs.  On level ground, he could walk up to 30 minutes before feeling pain.  There was increasing pain when squatting and kneeing.  He managed lifting weight with little pain.

15.  Lo walked with a mild limp of his right leg and fixed internal rotation of his right foot.  He could stand on single and on heels but was unsteady on tip toe walking.  He was unable to fully squat to his right.

16.  Examination revealed varus deformity and internal rotation deformity.  The right leg was shorter than the left by 1 to 1.5 cm.  There was no tenderness over the palpable implant of the fibula and there was an 11.5 scar over the lateral right leg with mild pigmentation and hypertrophy.  There was a 6.5x2 cm transverse patch of pigmentation due to infection.  There was tenderness and palpable implant over the anterior distal tibia and a 1-cm scar over the medial malleolus for tenderness due to bone grafting.

17.  The experts agreed that there was tibia length difference between the right and left side, and the tibia distal fragment is about 7 degrees varus in alignment as compared to the left.  They also agreed there was 15 to 20 degrees of internal rotation of the right talus.  One of the screws of the tibial plate implant was loosened.

18.  There was no active complaint about the right clavicle.  There was complaint about numbness over the right paraspinal area and back upon walking with a feeling of reduced circulation.  Examination revealed no tenderness of the right clavicle.  The range of motion of the right shoulder was full and symmetrical to the left side except 10 degrees less forward flexion and extension.  There was no muscle wasting.  Power was normal.

19.  The experts agreed that the sick leave given was reasonable in his circumstances.

20.  The experts agreed that corrective surgery for Lo’s right tibia deformity after the metal plates are removed would be reasonable with a view to his long term function.  Otherwise the present residual deformity would be permanent.

21.  Dr Ko opined that the varus deformity and internal rotation deformity would be clinically significant with respect to walking.  Lo walked with his right foot hitting against his lower left limb and trousers.  The biomechanics and the ankle were distorted and would lead to future degenerative joint disease of the right ankle joint and compromise the stability of the joint.  All would not be improved by the removal of the implants but would require major corrective surgery to correct the deformity and to prevent the expected further degeneration.

22.  Dr Ku further believed that with limb deformity correction but without major corrective surgery, Lo would end up with residual pain, stiffness, weakness and deformity, which would prevent him from resuming his pre-accident sports or employment in full capacity.  There would be permanent right ankle stiffness and weakness as well as significant impairment in ambulatory ability and walking endurance.  In other words, there would be great difficulty for him to climb, lift weight or squat in constructions sites.

23.  Dr Wong opined that major corrective surgery would probably improve Lo’s right ankle movement and power with less pain after recovery from the implant operation. However some residual conditions would be inevitable.  There would be mild impairment in his general ambulatory capacity with respect to sports such as hiking in that his performance would be moderately impaired.

24.  In terms of percentage, the experts agreed that the shoulder injury of Lo amounted to permanent impairment of his whole person by 1%.  Coupled with the right leg injury, the permanent impairment of the whole person amounted to 11% in the opinion of Dr Ko and 6-7% in the opinion of Dr Wong.

25.  In practical terms, the experts agreed that Lo would be able to cope with activities of daily living with mild to moderate compromise, particularly in sports.  Dr Ko opined that Lo would be unable to resume his pre-accident job and recommended change to less strenuous work.  Dr Wong believed that Lo could manage his pre-accident work as metal contractor after the removal of the implants and post-surgery rehabilitation.

26.  A second examination was held on 21 March 2013 after the removal of the implants.  This led to their second joint expert report dated 26 April 2013 (“the 2^nd Report”).

27.  Dr Ko opined that despite the removal of the implants, there was less pain over the area where the implants originally protruded, but there was no significant functional improvement.  The residual pain, stiffness, weakness and deformity remained the same.  The rotational deformity in the right leg would not improve, and the mal-alignment would cause residual disability and problems.  The resultant mal-distribution of the loading and forces across the ankle and knee joint areas would develop into pre-mature or accelerated wear-and-tear.  It would therefore be reasonable for an individual with such residual deformity to consider deformity reconstruction for better long term function.

28.  Dr Wong noted the implant removal and considered that there was some functional improvement.  However he did not advise tibia deformity corrective surgery when weighed against the possible risk and complication of such major surgery.

29.  Notwithstanding their differences, the experts maintained their respective assessment of the permanent impairment of Lo stated in the 1^st Report.

PAIN SUFFERING AND LOSS OF AMENITIES (PSLA)

30.  This is agreed at HK$450,000.

PRE-ACCIDENT EARNINGS

31.  Lo was (and still is) the sole proprietor of his business Sui Ki Metal Company (“Sui Ki”) at the time of the accident.  Sui Ki has carried on business of trading in and transportation of metal stripped out of dismantled scaffoldings, hoardings, billboards and signage since 2003.

32.  Lo’s pleaded case is that the net profit of Sui Ki for the financial year of 2008/2009 immediately prior to the accident was HK$924,076 or on average net profits of HK$77,006.33 per month.  The net profits pleaded were before tax.  Taking into account the tax paid in the sum of HK$108,532, the post-tax net profits for 2008/2009 came down to HK$815,544.45 and the monthly average was HK$67,962.04 (being HK$815,544.45/12).  Mr Wong for Lo accepts that.

PRE-TRIAL LOSS OF EARNINGS

33.  Lo was granted the following intermittent sick leave amounting to 675 days:

18 June 2009 – 14 January 2011

7 April 2011 – 7 May 2011

19 May 2011 – 24 July 2011

17 November 2011

34.  The pleaded case of Lo[2] is this:

(1) He claims total loss of business profits on those days of sick leave.

(2) In late July 2011, he resumed his business and contracted some transportation work at a construction site, which was business at a loss.

(3) He claims inability to continue his business, but he could have changed to take up employment in sedentary work since the end of July 2011.  Such alternative employment would have brought him a monthly income of HK$11,000.

(4) He therefore claims partial loss of earnings since the end of July 2011at the rate of HK$67,962.04 – HK$11,000 (plus MPF benefits).

35.  Immediately apparent from the above is that there is no claim in respect of the periods in between the days of sick leave.  Mr Wong now expands this part of the claim to include as well those days not covered by sick leave.  But Ms Leong submits that Lo is bound by his pleaded case, and the attempt now to claim beyond that should not be permitted without amendment of the pleading for such purpose.

36.  However there is more fundamental dispute between the parties in respect of the claim for loss of business.

37.  Lo produced his job record in a notebook, which contained entries of income and expenses of his business.  It shows that subsequent to the accident in June 2009, Sui Ki was still in business in the sense that income was received and work was done.  However they were said to originate from works contracted prior to the accident.  The months subsequent to the accident recorded gross loss.  In his tax return for the following financial year 2010/2011, Lo reported that his business was dormant.  The evidence seems to reflect loss of business.  This, Lo contends, was the result of his injuries.

38.  As Lo ran his own business prior to the accident, it does not necessarily follow that his injuries and absence from work in person would adversely affect his business, let alone its profits.  The causal link between the two needs to be established as a matter of fact.  Lo must adduce evidence to establish 2 key elements of causation for the purpose of his claim:

(1) Sui Ki would have had business and profits at least similar to those before the accident, had it not been the accident; and

(2) it was Lo’s condition that prevented him from running the business and making such profits.

39.  The first element is a matter of business opportunity.

40.  According to Lo, the construction industry is now at its best of times, and he would have expected his business to flourish, had it not been the accident.  Bound by his pleaded case, that would mean at least maintaining the pre-accident business volume and profits.  However, the difficulty is that apart from his subjective projection, Lo did not actually adduce any objective evidence in support.  There is no evidence of at least some of the projects and works available, which he might have bid for, since the accident.  Nor is there evidence in the form of recognised statistics to assist.

41.  Realistically, there is competition in Lo’s line of business.  If based on those that he claimed to know, there were at the time of the accident at least 5 to 6 of them.  Ms Leong puts out the uncertainty of whether and, if yes, what sort of projects Lo would have been able to obtain out of the competition, had he not been injured.  She also submits that a combination of factors must have come into play, which would determine Sui Ki’s business profits at a particular time.  They include the number of contracts that Sui Ki managed to obtain in a given year, the scale of the projects, in particular the volume of the scrap metal, the cost of running the business and the resale market value of the scrap metal.

42.  Whilst I will not speak of the standard of proof in this respect in terms of guarantee as Ms Leong puts it, this is nevertheless a concern on the balance of probabilities.  What Ms Leong points out cannot be brushed aside as invalid concern.

43.  There is also difficulty in relying on the profits for 2008/2009 as the measure of the profits that would have been earned but for the accident.  The evidence in court reveals that Sui Ki’s business profits for 2008/2009 was to a large extent attributable to a relatively large scale project at Upper Ngau Tau Kok Estate.  Lo confessed that he had never contracted project larger than that in scale.  To rely on that rate as demonstrative of a pattern of Sui Ki’s business volume and profits in the long run may be doubtful.

44.  In essence, there is indeed uncertainty about the business opportunities that were available since the accident that Lo could have bid for, and that Lo could have successfully bid for the business as well as in the volume and scale sufficient to attain the same profits as in 2008/2009.

45.  The second element of causation has to do with the role of Lo in his business and the issue of mitigation on his part.

46.  The case of Lo is that he needed to be present on site both for the purpose of getting business and the actual work.  By his statement and in court, Lo gave, amongst other things, the following evidence:

(1) Upon invitation by the construction site manager towards the end of the construction work, he would bid for the metal scaffoldings to be dismantled.  Upon winning the bid, he would arrange workers and heavy machinery to carry out the dismantling work, depending on the size and volume of the scaffoldings.  The dismantled members of the scaffoldings would eventually be transported from the site and sold as scrap metal.

(2) Administration wise, he prepared the quotations and tender documents, attended tender interviews, hired workers, rented machinery, liaised with the scrap metal buyers, kept records of income and expenses.

(3) On site, he personally carried out the survey of the scaffolds to be dismantled on site for the purpose of coming up with a bid.  This role was not delegable.  He checked the screws, considered the weight bearing and the method of welding and decided how the metal bars were to be cut as well as how they were to be transported.  This often required him to climb up and down.

(4) He was also on site to supervise the execution of the work.  He also had to personally carry out dangerous dismantling work such as work 20 metres above the ground, as no worker would undertake such dangerous work.  The workers he hired were aged 50-60, whose communication ability was said to be low.  He could not rely on them to carry out the risky part of the dismantling work.

(5) After the accident, he became unable to carry out the survey work for the purpose of tender and the actual dismantling work.  It would be difficult to hire workers to carry out the dismantling work at height.  Even if available, such worker would either be boss of his own business or be paid HK$60,000-70,000 per month, which would be too costly to make any business sense.

(6) The business of Sui Ki therefore came to a halt.

(7) In July 2011, he resumed contracting work from construction sites.  He aimed at safer dismantling and transportation works, which only required him to supervise the workers on site.  In the financial year 2011/2012, he only managed to obtain a contract for transportation of concrete slabs, yet made a loss.

47.  As far as the administration work is concerned, I do not accept as a matter of fact that Lo became disabled from handling this part of his business as before.  The medical expert evidence does not suggest otherwise.

48.  I do not doubt Lo’s evidence that he was on site personally to take part in the scaffolding dismantling work together with his workers before the accident.  I also accept that he had to be on site to supervise the execution of the work.  But his evidence that he the only one who could carry out work at height so much so that the business had to come to a halt because he could no longer do so is inherently unbelievable.  To suggest that the work, which could come in a large scale or in a large site, had to be let carried out in such manner is inherently unbelievable.

49.  Further, the fact that there are competitors in his line of business must mean there are persons in the business who could and would carry out similar kind of work.  To suggest that those persons happened to the proprietors of the competitors is also inherently unbelievable.  Whilst, as mentioned, I accept that he had to be on site to supervise the execution of work, I do not accept that such work could not realistically be taken over by hired help.

50.  I accept that Lo used to conduct the survey of the work on site personally for the purpose of putting together the tender, and that such work often required him to climb up and down.  I also accept that he is now prevented by his post-accident condition to do so.  However, to suggest that his business had to come to a halt would again mean no hired help would be possible.  Be that one of the usual workers that he hired or the other experienced workers in the business, the worker could still survey and provide the information necessary for Lo to come up with Sui Ki’s tender for the work.  Therefore, whilst I accept that Lo had to be hands-on as far as the preparation of the tender is concerned, I do not accept that the actual survey of the scaffoldings and structures is not delegable.

51.  In the circumstances, I do have reservation about whether Lo had reasonably mitigated his loss since the accident or at least the expiry of his sick leave.  The problem of the claim for loss since the expiry of sick leave does not end here.

52.  First, Lo now claims total loss of earnings until trial.  This deviates from his pleaded case that since the end of July 2011, he only suffered partial loss of earnings.  Second, in claiming for partial loss of earnings, Lo assumes by pleading that he could have earned HK$11,000 per month from employment at sedentary work since the end of July 2011.  This is now completely out of the window, as he puts forward a claim on the basis that he could have earned HK$20,000-30,000 per month from contracting transportation business since the end July 2011.  Apart from his assertion that he understood the other people in such transportation business could earn about that monthly sum, there is really no evidence of these so-called other people’s business.

53.  What does the above discussion leave us with?

54.  In line with the medical expert evidence in respect of Lo’s physical and psychiatric condition since the accident, I find it is unreasonable to expect him to come to construction site, which was instrumental to his obtaining new business and necessary for supervision of the execution of work, during the sick leave until late July 2011.   That was 2 months after the removal of the metal implants from his lower limb and his last psychiatric follow up consultation.

55.  I acknowledge in principle Ms Leong’s objection in respect of the claim for loss during the days in between but not covered by sick leave, in the absence of amendment of the re-revised statement of damages.  However, in view of the medical and expert evidence in respect of Lo’s condition over the relevant period, it is simply unrealistic to shut the eyes to the obvious awkwardness of truncation of Lo’s disability between the days of sick leave.  I would even describe the pleaded claim in this respect as a bit surprising.  As far as the defence case is concerned, the surprise and prejudice so caused, if any, is hardly comparable to the other attempts of Lo in expanding his claim only during trial in the absence of proper amendment of pleading.  I therefore take this leap and is prepared to allow an award for Lo’s loss during the period, and not merely the precise days, covered by the sick leave until late July 2011.

56.  The rate to be adopted, as discussed, is tricky.  However, whilst Ms Leong points out the various associated difficulties, she does not seem to object to the possible adoption of the rate of HK$67,962.04 for the purpose of calculating the loss of earnings suffered by Lo.  To be completely fair to her, I do not see that Ms Leong is conceding.  But doing the best I can in the circumstances, which I think I must so, this is what I will adopt in the assessment.

57.  On this basis, the award will be HK$67,962.04 x say 25 months = HK$1,699,051.

58.  Had Lo reasonably mitigated his loss by resuming his pre-accident business with adjustments necessitated by his condition and disability, Lo could have been entitled to claim for the extra business expenses including the cost of extra outside help and operating cost to take up part of his pre-accident roles on site in his business.  There is of course no such alternative claim.  For all the reservations discussed above, I am not prepared to make further award for the alleged loss of business of Lo.  

FUTURE LOSS OF EARNIGNS

59.  In view of the above, I do not accept and am not prepared to make any award for the alleged future loss of earnings either.

LOSS OF EARNING CAPACITY

60.  The principles are trite.  An award will be made under this head to compensate for the handicap of the plaintiff in the labour market in the form of difficulty in being gainfully employed as a result of the disability: see Chan Wai Tong v Li Ping Sum [1985] HKLR 175 at 183B-D.

61.  Ms Leong submits that Lo has all along been his own employer both prior to and after the accident.  His loss will be fully reflected by the loss of business earnings. During the trial, the pleaded case of change to sedentary employment is not even pursued.  There will be no risk of his losing his employment or question of disadvantage in the labour market.  Therefore this head of claim is inappropriate in the circumstances.  I agree.

FUTURE MEDICAL EXPENSES

62.  This is basically the cost of the major corrective surgery discussed by the experts.  It is agreed that that would be HK$80,000, if allowed.  The surgery was suggested in January 2012 but Lo has not undergone it by the time of the trial.

63.  In principle, the amount should be allowed if the court is satisfied that the claimant will likely undergo the surgery, albeit in the near future, so that the defendant owes him such opportunity to do so: see Lam Kwong Ting v Ho Yau Yuen [1990] 2 HKC 381 at 385A-C.  Yet this is precisely what is under attack.

64.  Even after the removal of the implants and the examination by the medical experts in March 2013, Lo was reluctant to undergo such surgery.  This may be understandable.  The experts considered that if undertaken, it would be a major surgery not without risk and complication.  In court, Lo expressed the similar understanding of the risk and was able to give details of what the surgery would entail.  Dr Ko recommended consideration of that, though observed that Lo had by then been adapting well and his strive for further functional improvement probably would not be high.  Dr Wong advised against such surgery, as the risk was not worth taking in Lo’s circumstances.

65.  The fact is that even by the time of the trial, Lo has no solid plan to undergo such surgery.  His verbal expression of intention to do so in the near future and the preparation by reference to the so-called family matters before doing so are not impressive at all.

66.  I am not satisfied that Lo has a genuine intention to undergo the recommended surgery, and therefore do not consider it fair to allow the amount claimed.  It follows that the loss of earnings arising out of the consequential post-surgery rehabilitation[3] would not enter into consideration.

CONCLUSION

67.  In summary, damages are assessed as follows:

PSLA	HK$ 450,000 (agreed)
Pre-trial loss of earnings	HK$1,699,051
Miscellaneous special damages
Medical expenses	HK$60,077 (agreed)
Tonic food	HK$10,000 (agreed)
Travelling expenses	HK$10,000 (agreed)
Towing, loss of vehicle	HK$23,800 (agreed)
Total:	HK$2,252,928

68.  Interest on PSLA runs at 2% p.a. from the date of writ until now.  Interest on pre-trial loss of earnings and miscellaneous special damages runs at half judgment rate from the date of accident until now.  Interest thereafter runs at the judgment rate until payment.

COSTS

69.  Lo shall have his costs of this action against the defendants since judgment on liability, to be taxed, if not agreed.  In the absence of application in 14 days for variation, this costs order shall become absolute.

70.  I thank counsel for their assistance.