ASHOK G. C. v. KAM KEE CONSTRUCTION WORKS LTD AND ANOTHER

HCPI 691/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 691 OF 2004

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ASSESSMENT OF DAMAGES

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Background

1. By the Statement of Claim filed herein dated 29 July 2004, the Plaintiff claimed against the Defendants for damages for personal injury, loss and damage sustained in the course of his employment arising out of negligence and/or breach of contract of employment, and/or breach of statutory duty and/or breach of common law duty of care under the Occupiers Liability Ordinance Cap 314 at a construction site on 16 October 2001.

2. Interlocutory judgment on liability was obtained on 28 December 2004 with damages to be assessed.

The Plaintiff's case

3. At the material times, the Plaintiff was employed by the 1st Defendant as a steel bender/fixer at the construction site of KCRC West Railway Project, Pat Heung, Kam Tin, New Territories, Hong Kong.  The 2nd Defendant was the principal contractor of the site.

4. On 16 October 2001 at around 9 am, while the Plaintiff was, in the course of his employment, lifting up a 40 mm rebar, he was struck on the back by a steel platform fallen from the scaffolding frame.  By reason thereof, the Plaintiff suffered serious injuries.

5. The Plaintiff was born on 8 February 1963.  He was 38 years old when the accident took place.  He was 43 years old at the time of this assessment.

6. After the accident, the Plaintiff was sent to the North District Hospital (“NDH”) for treatment.  He was discharged at around 8 a.m. on 17 October 2001.  According to the joint medical report of Dr. Patrick Wong and Dr. Lam Yan Kit dated 20 November 2003, the Plaintiff received treatments for his persistent back pain at NDH from 19 October 2001 onwards.  Examinations shown pain over right loin, no wound and no swelling.  The Plaintiff was given medication, referred to physiotherapy and granted sick leaves.

7. The Plaintiff was admitted to Orthopaedic ward on 31 December 2001 for further management.  Examination shown tenderness at the lower lumbar region.  X ray shown bilateral spondyloysis L5 vertebra.  The Plaintiff was given analgesics and physiotherapy and was discharged on 3 January 2002.

8. The Plaintiff continued to receive outpatient treatment at NDH thereafter.  CT scan confirmed the presence of bilateral defects of L5 pars interarticularis.  He was granted sick leave up to 30 September 2002.  The Plaintiff complained that because of the persistent back pain, he could not return to his pre-accident job.

9. In his Revised Statement of Damages dated 27 January 2005 the Plaintiff complained that he suffered from lower back pain and numbness in the knee and right foot.  He cannot walk for more than 20 minutes due to the back pain.  He could not sit down for more than 20 minutes, and then he had to change his posture.  The Plaintiff could not sleep on his back and had to sleep sideways.  He cannot bend down and was still taking analgesic.  He experienced numbness in his legs and encountered sexual problem.

10. In the Joint Report, the doctors noted bilateral L5 spondylolysis with 2 mm lucent gap defect in the pars interarticulars region.  They were of the view that the back contusion had aggravated this pre-existing spondylolysis.  Queries were raised as to whether the Plaintiff did sustain injuries to his right knee, right great toe and right thumb during the accident: none of them was documented in the relevant hospital record/reports.

11. In their supplemental medical report dated 14 December 2004, the doctors agreed that there was no spondylolisthesis.  There was nevertheless disc degeneration and bulging at the L4/5 level and mild narrowing of bilateral lateral recesses at the L4/5 disc level.  There was however no significant nerve root compression.  They opined that the degenerated bulging disc was most likely a pre-existing one and might have contributed to the Plaintiff’s residual low back pain.  The Plaintiff’s residual back pain was probably a combination of the degenerated bulging L4/5 disc and the previous asyomptomatic L5 spondylolysis lesion, aggravated by the back contusion injury.  It was unlikely that the L5 spondylolysis would give rise to significant residual low back pain with exacerbation from time to time.  On this, Dr. Lam only said that the L4/5 disc bulging was mainly due to degeneration and was not related to the subject injury and that such conditions by themselves can give rise to on and off back pain in future.

12. Dr. Wong thought that the Plaintiff was not fit to return to his pre-injury occupation as a heavy manual worker.  He should be able to perform light to moderate manual book such as machine operator, cleaning worker or security guard.  Dr. Lam however believed that the residual back pain should not cause major impairment to the Plaintiff since there was no spinal instability (i.e. spondylolisthesis) or neurological impairment detected.  The Plaintiff was expected to be able to resume his pre-accident job.

13. The Plaintiff gave evidence in court and adopted his witness statements dated 24 December 2004 and 8 July 2005 respectively as part of his evidence.  It should be noted that in his first witness statement, he said

“ 7. I also sustained a teeth fracture, right knee, right toe and right thumb pain as a result.

 ……

  12. Due to the pain on the back, I have difficulties to walk for more than 20 minutes, lest mention ascending and descending stairs.  I will experience severe pain in my buttock when I try to squat down.

……

14. My social life has been severely curtailed by the accident.  Before the accident, I used to play Thai-boxing regularly.  However, I have not been able to play since the accident and realistically there is no prospect of being able to play again.”

14. It is the Plaintiff’s case that at the time of the accident, the Plaintiff earned $650 per day.  He was unemployed since after the accident.

15. Mr. Chan Yiu Keung, one of the owners of the 1st Defendant, gave evidence for the Defence.  He adopted his witness statement dated 13 June 2003 as part of his evidence.  In gist, he told the Court that the 1st Defendant no longer employed Nepalese workers as there were not much work.  Further, the daily salary had dropped too.  In 2001, they used to pay around $1000/day for a skilled steel bender and $500 to $600 for a less experienced one.  However, the 1st Defendant was now paying $600 and $300 to $400 respectively.

Pain, Suffering and Loss of Amenities

16. Mr. Clough, Counsel for the Plaintiff, submitted that this was a serious accident with permanent consequences and suggested that $400,000 was the appropriate award.

17. Mr. Kerr, Counsel for the Defendants, conceded that $180,000 was the appropriate figure.  He relied on the following authorities:

(i)     Lee Yuk Lan v Royaltelle International Ltd, HCPI 187 of 1995 (pages 7-8)

(ii)    Chair Sai Sui v International County Club, HCPI 522 of 1998 (page 5)

(iii)   Tam Yuen Hoi v Chan Muk Shing, HCPI 983 of 2001 (page 24)

(iv)   Ho Moh v Tam Yiu Keung trading as Yiu Sun Construction Engineering Co, HCPI 1251 of 1998 (Pages 15-18)

18. A surveillance video record taken on 13 June 2002, 26 June 2002 and 28 June 2002 respectively was shown in Court.  It appeared that the daily activities of the Plaintiff was not affected by the back pain.  He walked with a normal gait.

19. Further, the Plaintiff was seen squatting down at a bus stop on 13 June 2002.  The Plaintiff bent down to get through railings at a bus stop on 28 June 2002.  On another occasion, while the Plaintiff was climbing up staircase, he took 2 to 3 steps at a time.

20. Both Dr. Wong and Dr. Lam accepted that the Plaintiff’s condition was compatible with DRE Lumbar Spine Category II.  Dr. Wong opined that amounts to a 7% whole person impairment while Dr. Lam regarded that as a 5% (the range being 5% to 8%).

21. In the medical record dated 23 January 2002, the physiotherapist remarked that the Plaintiff was seen sitting with both legs bending up towards his chest and embracing the legs with both hands round the knees.

22. While I accept that the Plaintiff was suffering from some residual back pain as confirmed by the doctors, I do not accept that it was so serious as alleged by the Plaintiff.  First, I do not accept that the Plaintiff suffered injuries on his right knee, that right thumb and right great toe because they were not documented in the relevant hospital record/reports.  In the light of the footages cited herein above and the remark made by the physiotherapist, I found that there was no problem for the Plaintiff to squat down or bend down.

23. Having considered the relevant authorities and that (i)  it is not likely for the Plaintiff to receive surgical treatment in the near future (not within the next 10 years according to Dr. Wong); (ii)  the Plaintiff was hospitalized for short period on 2 occasions (16 October 2001 to 17 October 2001 and 31 December 2001 to 3 January 2002); (iii)  from the medical reports produced, the Plaintiff received physiotherapy and occupational therapy up till May 2002 and July 2002 respectively; (iv)  the Plaintiff is still receiving out-patient treatment; and by reason of the findings I made, I am of the view that the appropriate award under this head, as conceded by the Defendants, is $180,000.

Pre-trial Loss of Earnings

24. The Plaintiff’s case: earning $650/day and assuming 26 working days per month.  The average monthly earnings was $16,900 ($650 x 26).  The Plaintiff was unemployed since the accident.  Therefore he claimed $895,700 ($16,900 x 53 months: October 2001 to February 2006).

25. The Defendants’ case: based on Inland Revenue records, the Plaintiff’s average earnings per month was $7,186.42.  Alternatively, the Plaintiff earned $600/day at the time of the accident and an average of 17 working days per month.  The average monthly earnings was $10,200 ($600 x 17).

26. There was no dispute that the Plaintiff was granted sick leave for around one year (or 326 days to be exact).

27. It should be noted that the Defence relied on certain payment records to support their case (Bundle D, page 73 to page 78).  Mr. Chan estimated that the maximum number of working days was 20 to 22 days.

28. According to Form 2 dated 5th November 2001 which was filled in by the 2nd Defendant, it was stated that the average earnings per month for the month immediately preceding the date of accident was $16,120 with an average of 26 working days.  It meant that the daily wages was $620.  These figures were adopted in Form 5 and  Form 6 issued on 18 October 2002 and 17 March 2003 respectively.

29. I am of the view that the payment records is the best evidence to show how much the Plaintiff earned at the material times: $600/day.  It must be noted that Mr. Chan was only referred to these records under re-examination.  Yet, the Plaintiff raised no objection.  The Plaintiff’s evidence in this regard was not satisfactory.  He only said that he was introduced to his job by a friend and the daily wages was supposedly $650/day.  I also doubt the accuracy of the figures in Forms as there was no evidence as to how the 2nd Defendant obtained the relevant figures.  I find that the Plaintiff earned $600/day.

30. Before I go on, I should state that I do not accept the Defendants’ contention of adopting the monthly earning of $7,186.42.  This figure was derived from averaging the Plaintiff’s income for the 3 years prior to the accident. Since there was clear evidence as to the Plaintiff’s daily wages, I cannot see the reason of applying this figure.

31. Mr. Kerr submitted that, as an alternative, the Court should adopt an average of 17 working days per month (the Plaintiff worked 13 days from 25 September 2001 to 16 October 2001).  This calculation is however not supported by Mr. Chan’s evidence.  He said that the number of working days was 20 to 22 days.

32. According to the payment records, the workers of the 1st Defendant did not work for 26 days a month.  Further there was no evidence from the Plaintiff as to how he could secure 26 working days per month.  For these reasons, I adopt 22 working days per month as the basis for assessment of damages in this case.

33. The next issue that I have to determine is whether the Plaintiff could resume his pre-accident employment after the sick leave.  The opinion of the doctor differed.  Mr. Clough submitted that the best reference point for this dispute was the Occupational Therapy and Physiotherapy Reports because the doctors did not have reference point as to the job requirements and carried out no test specific to those criteria.

34. I agree with Mr. Clough.  The conclusion of the occupational therapist was that the Plaintiff had to consider an alternative job.  Such conclusion was based on work capacity evaluation and job match analysis.  I find that the Plaintiff is unable to return to his pre-injury employment and is only suitable, as Dr. Wong opined, to perform light to moderate manual work such as cleaning worker, machine operator or security guard.

35. In his revised Statement of Damages, the Plaintiff accepted the average monthly salary for a security guard is $6,859.  The statistics obtained by the Defendants from the Labour Department shown that the monthly salary for a job suitable for the Plaintiff ranged from $5,000 to $7,500.  I am of the view that it is fair to say and I do find that the Plaintiff should be able to find a job with a monthly salary of $7,000.

36. Another point the Court must consider is the pre-existing spondylolysis.  There is no dispute that the general principles as stated in Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523 do apply.  Having taken into account all the circumstance and that the residual back pain was contributed by the pre-existing lesion and degenerated bulging L4/5, a discount of 40% is appropriate.

37. Therefore, I award $310,920 to the Plaintiff being his pre-trial loss of earnings.

From October 2001 to September 2002
(sick leave) ($600 x 22 x 12)	$158,400
From October 2002 to March 2006
($600 x 22 – $7,000) x 42 months x 60%	$156,240
Adding 5% as MPF, the total is $330,372.

Loss of Future Earnings

38. The Plaintiff contended that the appropriate multiplier was 13.  The Defendants submitted that the right multiplier was 10.  I have considered the authorities referred by Counsel and also considered the following authorities:

Case		Occupation	Age of the Plaintiff at Trial	Multiplier
Tsui Kim Ming v Charter Form Co Ltd, HCPI 681/2001 (29 October 2002)		Construction site worker	43	12
Lai Wai Wah v Wing & Kwong Co Ltd,HCPI 1131/2002 (28 November 2003)		Steel-bender	41	12
Lam Cheuk Leung v Erawan Co Ltd [2004] 1 HKLRD 778		Cement worker	43	11

I am of the view that the appropriate multiplier is 12.

39. Adopting a discount of 40% for the pre-existing condition, I award $491,040 ($600 x 22 – $7,000) x 11 x 12 x 60%.  Adding 5% MPF, the final figure is $515,592.

Loss of Earning Capacity

40. The Plaintiff claimed a lump sum of $100,000.  The Defendant disputed this claim.

41. I accept that the Plaintiff will be at a disadvantage in the open market due to his disability and $100,000 is a fair estimation.  Nevertheless, it must be discounted for 40% for the reasons aforesaid.  The award under this head is $60,000.

Special Damages

42. Special damages is agreed at $5,000.

Conclusion

43. The total award is $758,140.68.

PSLA	$180,000
Pre-trial loss of earnings	$330,372
Post-trial loss of earnings	$491,040
Loss of earning capacity	$60,000
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Special Damages	$5,000
	$1,066,412
LESS        ECC	($304,365.32)
	$762,046.68

Interest

44. Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

45. I make an order nisi that the Defendants do pay the Plaintiff the costs of this assessment at District Court Scale to be taxed if not agreed.  Certificate to Counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  The order nisi will become absolute 14 days after the handing down of this judgment.