LI WAN KEI v. HYUNDAI ENGINEERING & CONSTRUCTION CO LTD

HCPI 577/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.577 OF 2004

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J U D G M E N T

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1. The plaintiff brings this claim against the defendant for damages for personal injuries suffered by the plaintiff in the course of his employment with the defendant on 17 September 2001.

2. The basis of the plaintiff’s claim is negligence, breach of common duty of care and breach of statutory duty by the defendant.

3. On the day in question, the plaintiff was employed by the defendant as a general worker at a construction site situated at Olympic Station, Phase 3, Hong Kong (“the Site”).

4. At about 10 a.m. the plaintiff was instructed to move waste material into a material hoist which ran up the side of the building at the Site.  At that time the hoist stopped outside a window on the 12^th floor of the building at the Site and the plaintiff had to transport the waste material into the hoist through the window.  In doing so, the plaintiff had to stand with one foot on the hoist and with the other foot on the windowsill.  At that time, the hoist, suddenly and prematurely descended causing the plaintiff to lose his balance and fall from the 12^th floor down to the 11^th floor into the hoist.  The plaintiff sustained injuries to his left knee, right hip and right elbow in the fall.

5. At the start of the trial, full liability in this matter was conceded by the defendant and I was asked by the parties to assess the amount of quantum which remained outstanding and in issue between the parties.

6. This judgment therefore deal only with the assessment of damages in this case.

QUANTUM

7. The plaintiff, a male, was born on 29 March 1958 and was aged 43 at the time of the accident.  Now, at the time of trial, the plaintiff is 47.

INJURIES AND TREATMENT

8. After the accident, the plaintiff was taken to the Accident and Emergency Department (“A and E”) of Princess Margaret Hospital (“PMH”) for medical treatment.

9. On examination he was found to have abrasion with mild swelling over the right elbow.  There was also tenderness over the right elbow, right hip and left knee.  Active range of movement of the affected joint was found to be full.  X-ray of the pelvis, right hip and right elbow were normal.

10. Dressing was applied to the right elbow and he was discharged the same day with provisional diagnosis of right elbow, right hip and left knee injuries.  Sick leave was granted to him up to 14 October 2001.

11. During this period of sick leave, the plaintiff returned to the A and E Department of PMH on three separate occasions complaining of persistent pain.

12. The plaintiff tried to resume his duties with the defendant at the Site after his sick leave expired on 14 October 2001, but after about a month was unable to continue with the work because of the pain.

13. He was then referred to the Orthopaedic surgeon and later to the specialist out-patient clinic of North District Hospital for his persistent pain.  Sick leave continued to be granted to him from 3 December 2001 onwards.

14. Ultrasound performed at the North District Hospital showed a small ossicle at medial epicondyle of his right elbow and swelling of medial collateral ligament of his left knee.

15. MRI of his left knee showed posterior horn tear of medial malleolar.  MRI of his right elbow did not reveal any significant abnormaility.

16. The plaintiff was then put on physiotherapy and occupational therapy but without any significant improvement.

17. On 10 September 2003, left knee arthroscopy and arthroscopic repair of his left knee medial meniscal tear was performed.

18. By the end of October 2003, the pain in his left knee, right hip and right elbow had not improved and the plaintiff still complained of persistent pain in all three areas during subsequent follow-ups.

19. In July 2004, during a follow-up, the plaintiff complained of low back pain to the doctor at North District Hospital specialist out-patient clinic of the Department of Orthopaedics and Traumatology complaining that his back pain occurred after the accident, had improved afterwards, but recurred some two weeks before that follow-up consultation.

20. On examination, mild tenderness was found over his left paraspinal muscle at the lower lumbar spine.  X-ray of the lumbar spine showed degenerative changes.

21. MRI of the left knee was repeated on 18 October 2004 which showed degenerative changes of posterior horn of medial meniscus.

22. Up to the time of trial, the plaintiff still complains of persistent pain in all the three affected areas.

23. The plaintiff was examined by his own medical expert, Dr Johnson C.K. Lam on 25 March 2003.  In the medical report compiled by Dr Lam dated 31 March 2004, Dr Lam made the following observations and came to the following conclusions, findings and opinions :

(a)      At the time of examination, the plaintiff still had significant pain in the right elbow associated with weakness, and pain and swelling in the left knee.

(b)     For the right elbow pain, the tenderness was maximum just beneath the medial epicondyle.  There was weakness of wrist flexion, with pain and instability on valgus stress to the elbow.  Radiologically, there was an ossicle beneath the medial epicondyle which could be due to a recent or an old injury, except that the plaintiff did not have any history of previous injury to his right elbow before the accident.

(c)     For the knee injury, there was tear of the medial meniscus with repair done.  There was still residual tenderness, pain and swelling around the operative site.  There was mild decrease in range of motion, and moderate wasting of the left thigh muscles.  According to the plaintiff, there was no subsequent rehabilitation of the left knee injury, and there was actually increase in pain after the surgery.

(d)     The left knee condition had not reached maximal medical improvement and a further course of rehabilitation and medical treatment was advised.

(e)      For the right hip injury, there was only occasional residual pain.

(f)      Dr Lam assessed the plaintiff’s injury and disability to be 8% impairment of the whole person.

(g)     Given the injuries and disabilities, the plaintiff should not be able to return to his pre-accident work as a construction site worker, but should be able to do work involving light to medium physical demands.

(h)     If the further treatment advised goes smoothly for the repaired meniscus to heal eventually, a further six months sick leave would be expected.

24. The plaintiff was also examined by the defendant’s medical expert, Dr Richard Lau, on 23 November 2004.  Dr Lau’s report states his findings, conclusions and opinions as follows :

(a)	In the accident, the plaintiff suffered the following multiple injuries —
	(i)	avulsion fracture of the medial side of right humerus at the elbow; avulsion of a fragment from the medial epicondyle of right humerus remained detached;
	(ii)	tear of the posterior horn of medial meniscus of left knee;
	(iii)	swelling of the medial collateral ligament of left knee; and
	(iv)	contusion injury of the right hip region.
(b)	There was no numbness in the ulna fingers to indicate nerve involvement.  The meniscus is a fibrocartilage interposed between the femur and tibia.  Tear is amenable to surgical repair.  Swelling of the medial collateral ligament was a strain injury.  It involved the soft tissue and it was not a complete tear.  There was no joint laxity in the knee.  Contusion injury of the hip was only a soft tissue injury.  There was no bony injury seen in the X-rays.
(c)	For contusion injuries, or avulsion fracture of the humeral epicondyle, the reasonable duration of sick leave is a few months after the accident.  Another six months of sick leave were also required after meniscal repair.
(d)	Dr Lau assessed the plaintiff’s impairment at 5% of the whole person.
(e)	Dr Lau further opined that the disabilities as set out in the Statement of Damages are genuine complaints but may have been magnified.
(f)	Dr Lau agrees that it is difficult for the plaintiff to return to his pre-accident work at construction sites after his knee and elbow injuries, but that he is fit enough to resume some kind of more sedentary jobs.

PAIN SUFFERING AND LOSS OF AMENITIES

25. The plaintiff submits that the award under this head of damage ought to be $400,000.

26. On the other hand the defendant says $300,000 to $350,000 should be awarded.

27. The main issue in dispute between the parties in so far as this head of claim is concerned is that the defendant says that the plaintiff has exaggerated his symptoms and his disabilities.

28. In this respect, the defendant relies on the plaintiff’s complaint (made in the witness stand) of constant numbness over the whole length of his right arm as being inconsistent with what is stated by the experts in their medical reports.

29. Dr Lam in his medical report states that the plaintiff had occasional numbness over the left (sic) medial forearm.

30. Dr Lau recorded complaint of pain and numbness of the right upper limb.

31. The inconsistency submitted by the defendant is that neither expert had recorded such numbness complained of by the plaintiff as being constant, but that Dr Lam in fact refers to it as occasional only.

32. Secondly, the defendant points to the plaintiff’s complaint (made in the witness stand) of constant numbness over the whole left leg after the operation in September 2003 and that such complaint, although claimed by the plaintiff to have been made to both Dr Lam and Dr Lau when examined by them, had not been recorded by either of the experts in their reports which had set out the complaints made by the plaintiff.

33. Thirdly, the defendant points to the plaintiff’s complaint of back pain ever since the injury in September 2001.  In this respect, the defendant points out that in the medical report of Dr Lui Tun Hing of the North District Hospital dated 8 February 2005, which states that the plaintiff complained of low back pain during the follow-up on 26 July 2004 claiming that his back pain occurred after the injury, improved afterwards and recurred two weeks before the consultation in the first week of July 2004.

34. The defendant submits that the plaintiff’s current complaint of no improvement of the low back pain since the accident is therefore inconsistent with what was recorded down by Dr Lui.  Such complaint by the plaintiff is also inconsistent with Dr Lau’s recording of “back pain in the past six months” when Dr Lau examined the plaintiff on 23 November 2004.

35. Whilst I take note of those inconsistencies submitted by the defendant as stated above, I must also take into account the fact that the defendant’s expert, Dr Lau, had stated in his medical report that “the disabilities as set out in the Statement of Damages are genuine complaints but they might have been magnified.”

36. Even accepting that there was some exaggeration by the plaintiff as to his constant numbness in both his right arm and left leg as well as his low back pain, it is not possible to escape the persistent pain that the plaintiff experienced in his right elbow and left knee from the injuries.  That persistent pain would generally be much more disabling to the plaintiff than whatever exaggerated numbness there may have been as submitted by the defendant.

37. In so far as the award for PSLA is concerned, I was referred by counsel to a number of local awards for PSLA.

38. In Lee Kwan Tong v. Liu Yee Lim and Ors (HCPI 1383/1996), Master Chu (as she then was) awarded $440,000 for PSLA to a plaintiff who suffered a fracture shaft of the right femur and compound fracture of the right tibia.  Internal plating was performed for the right femur and external fixation for the right tibia.  At time of trial, nine years after the accident, the plaintiff walked with a limp, still felt pain and needed to rest after walking 40 to 60 minutes.  He also had ligament laxity in the right knee.

39. In Ku Chiu Chung v. Tang Tin Sung (HCPI 288/2001) Recorder Wong assessed an award of PSLA at $375,000 for a plaintiff who suffered a close fracture of the left acetabulum with dislocation of the left hip, open fracture of the left proximal tibia, open complete tear of the anterior cruciate ligament of the left knee, open partial tear of the lateral meniscus of the left knee and closed fracture of the shaft of the left tibia.  The plaintiff underwent emergency operation upon admission to hospital, then a repeat operation some 10 days later and was hospitalized for one and a half month before being discharged.  When examined one and a half years after the accident, all the fractures, ligaments and meniscal injuries had been satisfactorily treated but the plaintiff still suffered from a weak hip, painful knee which prevented him from walking for long distances and had to use a cane.  He could not squat, left knee and ankle were stiff, could not carry heavy weights and had general weakness in the left leg.

40. In Yu Kok Wing v. Lee Tim Loi [2001] 2 HKLRD 306, there the plaintiff sustained a fracture to the right shinbone, right ankle and left heel in October 1995.  He was hospitalized for three weeks undergoing operations to insert plate into his left heel while external plates and pins held his right ankle in place.  In December 1995 the external plates and pins were removed and the plaintiff discharged on crutches two days later.  Up to May 1999 he still had pain in his ankle but the pain was decreasing.  He had intermittent pain in his right leg and left heel when the weather changes.  His total impairment was assessed at 8% to 10%.  The Court of Appeal, in allowing the plaintiff’s appeal, substituted the award for PSLA of $275,000 by the Master with an award of $350,000.

41. Using the above awards as guidelines, and taking into account the fact that the plaintiff in the present case did not suffer any fracture, but that the disabilities caused to him by the injuries were not dissimilar to the disabilities in those cases cited.  Moreover, the persistent pain to this plaintiff would have caused him and may still cause him a great deal of suffering.

42. I assess the award of PSLA in the present case, taking into account all the plaintiff’s injuries and disabilities as stated by the government doctors and both experts in this case, to be $375,000.

LOSS OF EARNINGS

(a)     Pre-trial loss of earnings

43. There is no dispute that before the accident, the plaintiff was employed by the defendant at a basic daily wage of $380 and was also paid overtime at the rate of $64 per hour.

44. It is also accepted by the defendant that the plaintiff could earn on average $15,756 per month (had it not been for the accident) up to the end of May 2002 when the project at the Site finished.

45. The evidence from the defendant shows that after May 2002 when that project finished, the workers, very likely including the plaintiff, would have had to look elsewhere for work.

46. It is the plaintiff’s case, relying on Government statistics as to wages of general construction site workers, that after May 2002 up to the time of trial, the plaintiff, working as a general construction site worker elsewhere would have been able to earn $562.40 per day working 26 days a month, thereby earning on average $13,686.40 per month.

47. On the other hand, it is the defendant’s evidence from Miss Cheng Pui Ching, an Assistant Quantity Surveryor with the defendant that the market rate paid to general construction site workers after May 2002, including those engaged by the defendant was about $320 per day working for 26 days in a month but no longer with overtime due to the market conditions, which translates to $8,320 per month.

48. Having heard the evidence of Miss Cheng, and having seen her in the witness box, I have no hesitation in accepting her evidence that $320 per day would be about the market rate for general construction site worker today.  That would be consistent (considering the market decline) with the $380 per day, which was the basic wage of the plaintiff when he joined the defendant.

49. I also accept her evidence that from the government statistics $562.40 per day may be what the government pays a contractor but not what would be received by the worker down the line.  That evidence of hers would appear to be correct when measured against the $380 per day received by the plaintiff as his basic salary before the accident.

50. In this connection, I also take the view that the total average monthly salary of the plaintiff before the accident which is agreed by the parties to be $15,756 and which he could have earned up to May 2002 is not the proper benchmark to determine his possible earnings today had it not been for the accident.  That monthly salary was made up to a large extent from overtime pay at the rate of $64 per hour, (when one takes account that his basic salary under the contract was $380 per day) no doubt at a time when the defendant was hurrying up the work to complete the project having a deadline to meet.

51. On the other hand, although the evidence from Miss Cheng was that after May 2002, when the defendant’s project at the Site was completed and the defendant had no other project in Hong Kong, there was no overtime payment to its workers.

52. That may well be so in the case of this defendant who had no other project in Hong Kong, but if this plaintiff had to leave the defendant and to look for work elsewhere after May 2002, the possibility that he may still have been able to earn some overtime, albeit not much, cannot entirely be ruled out, especially where in some other construction sites there will be other deadlines to meet, no matter how much the construction industry had been affected by the market downturn.

53. In those circumstances, rather than take the figure of $8,320 suggested by the defendant worked out strictly on $320 per day for a 26 work-days month, I am prepared to adopt $8,500 as being what the plaintiff will be able to earn after May 2002 (as a general construction site worker but for the accident) up to the present.

54. The plaintiff has been granted sick leave by government doctor until May 2006.  However, no steps had been taken by the defendant to challenge or even question the sick leave granted by government doctors.  In those circumstances, the fact that the defendant’s expert may have suggested a shorter period of sick leave to be reasonable in this case is neither here nor there.

55. In this respect, the words of Deputy Judge Saunders in the case of Zheng Biao v. Kwok Wai Lung (HCPI 115/2001) are directly applicable where he said :

“Mr Zheng was on sick leave from 29 April 1998 to 30 September 2000.  That is a period of two years and five months.  There is no dispute that throughout the whole of that time he was given appropriate sick leave certificates by doctors, and there is no suggestion that those doctors have acted in any way improperly.  While it may well be that a person suffering from the same injuries might have gone back to work earlier, in the absence of any evidence to challenge the validity of the sick leave certificates for the period of two years and five months, upon which Mr Zheng was entitled to rely, I am satisfied that the period of sick leave cannot be challenged.  It is right that both orthopaedic surgeons have said that a shorter period would be appropriate, but neither directly question the validity of sick leave certificates issued.”

56. In the circumstances, there is no reason why the plaintiff should not be entitled to claim full loss of earnings for the sick leave period granted to him save and except for the short period of time when he actually did return to work for the defendant between 15 October to 4 December 2001 when he was paid $30,150.70.

57. Pre-trial loss of earnings will therefore be calculated as follows :

(a)      for the 8 months from September 2001 to May 2002

          $15,756 x 8 months less $30,150.70 = $95,897.30

(b)     for the 45 months from May 2002 to trial

          $8,500 x 45 months = $382,500

Total pre-trial loss of earnings therefore comes to $478,397.30

58. Loss of MPF for the pre-trial loss of earnings comes to 5% of that figure which gives $23,919.80.

59. The total pre-trial loss of earnings and MPF comes to $502,317 (rounded off).

(b)     Future loss of earnings

60. The dispute between the parties under this head of claim relates to the multiplier to be adopted.  The plaintiff says that 11 is the correct multiplier, the defendant suggest eight as being reasonable.

61. Reliance was placed by counsel for the plaintiff on the decision of the Court of Appeal in Li Sau Keung v. Maxcredit Engineering Ltd and Anor [2004] 1 HKC 434 as to the appropriate multiplier to be adopted.  In that case the Court decided that for a concrete worker aged 44 at the time of trial, the starting point should be a multiplier of 12.  However, in that case the multiplier was reduced to one of six taking account of the pre-existing degenerative condition of the plaintiff’s spine and the medical opinion of the expert in that case that the degree of degeneration and the nature of his pre-accident work that it would be more likely than not that even without the accident, back pain would have developed around the age of 45.

62. In the present case, the plaintiff was aged 47 at the time of trial and his pre-accident work can only be said to be the heavy type of manual work in construction sites.

63. There is also clear evidence that X-ray of the plaintiff’s lumbar spine showed degenerative changes, albeit the medical evidence in the present case does not go as far as the medical evidence in Li Sau Keung.  In the present case, there is nothing to suggest that this plaintiff would develop back pain even without the accident.

64. Therefore giving effect to the full circumstances of this plaintiff, I am of the view that the proper multiplier to be adopted here is one of 10.

65. Furthermore, giving effect to the sick leave certificates granted by government doctors which continues until May 2006, future loss of earnings will be assessed as follows :

(a)   for the 3 months from trial until the end of sick leave granted, $8,500 x 3 = $25,500;

(b)   for the remainder of the period of the multiplier (120 – 3 months), giving effect to the opinion expressed by both orthopaedic experts that the plaintiff should be able to take up some lighter form of alternative employment, which, in my view, in the current market will allow for the plaintiff to earn about $5,000 per month, there will be assessed partial loss of earnings using a multiplicand of $3,500 which gives $409,500. 

Total future loss of earnings therefore comes to $435,000.  Adding a further 5% for loss of MPF gives $456,750.00.

LOSS OF EARNINGS CAPACITY

66. The award under this head of claim has been agreed by the parties to be $50,000.  Accordingly, that amount will be awarded.

FUTURE MEDICAL EXPENSES

67. This has been agreed between the parties to be in the amount of $40,000 and the same will be awarded.

SPECIAL DAMAGES

68. The parties have agreed the total sum of $19,594 being the amount of special damages to be awarded and which is made up as follows :

(a)      Medical expenses                $4,994;
(b)     Travelling expenses               $1,600;
(c)     Pain relief gel                        $5,000;
(d)     Tonic food                          $8,000

The agreed amount will therefore be awarded.

INTERESTS

69. Interests will be awarded on PSLA at 2% p.a. from the date of Writ.  Interests on pre-trial loss of earnings and pre-trial special damages at half judgment rate from the date of the accident.

SUMMARY OF DAMAGES ASSESSED

CONCLUSION

71. There will be judgment to the plaintiff in the sum of $1,248,337 against the defendant.

COSTS

72. There will be a costs order nisi that the defendant do pay the plaintiff his costs of this action to be taxed if not agreed.  The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.