TAM KAM LEUNG v. CHAN CHOW TONG

HCPI 515/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 515 OF 2009

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BETWEEN

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J U D G M E N T

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1.  In this action, the Plaintiff claimed damages against the Defendant.

2.  At the material time, the Plaintiff was in the employ of the Defendant as a decoration worker doing painting work. On 26 January 2006, he sustained injuries while at work.

3.  On 12 February 2009, the amended writ of summons was issued by the Plaintiff out of the District Court against the Defendant. Interlocutory judgment on liability was entered in the District Court against the Defendant on or about 18 March 2009, with damages to be assessed. Subsequently, the action was transferred to the High Court on the basis that the amount of claim exceeds the jurisdiction of the District Court.

4.  Unknown to those acting for the Plaintiff, the Defendant was declared bankrupt on or about 29 April 2009. By section 12 of the Bankruptcy Ordinance, the proceeding herein should not be proceeded with unless leave of the Court was obtained. In the ignorance of the bankruptcy order, the Plaintiff proceeded with the action. Various directions and order was obtained in Checklist Review Hearings on discovery, witness statement and expert evidence.

5.  Shortly before the hearing, the Plaintiff’s solicitors became aware that the action could not be proceeded with by reason of section 12 of the Bankruptcy Ordinance. They then applied to the Court of First Instance sitting in Bankruptcy Jurisdiction for leave to proceed with the trial. Consent for Official Receiver was obtained and leave was formally granted by Master Ng.

6.  The Defendant was absent today. Ms. Yiu, counsel for the Plaintiff invited me to proceed. Given that the interlocutory judgment has been obtained before the bankruptcy order, it is a valid order. The other directions are mainly on procedural matters and on evidence. Ms. Yiu invited me to validate all order and submitted that there should be no injustice to the Defendant. I was confirmed by the Plaintiff’s solicitors that at all material time, the process of the proceeding has been served on the Defendant. The Official Receiver is aware of the proceeding and their position is protected by terms set out in the consent summons.

7.  Having considered all matters, I consider it an appropriate case to have all directions given hereinbefore be rectified and validated. All time be abridged. I accordingly proceed to assess the loss of the Plaintiff on ex-parte basis.

8.  There is only one witness in this case, the Plaintiff himself. The Plaintiff gave evidence and confirmed his witness statement dated 28 September 2009. He also produced as “P-1” a revised chart setting out some details of how he arrived at the travelling expenses that he is claiming.

9.  Counsel for the Plaintiff kindly took me through all the documents relied upon by the Plaintiff. These are basically in support of his claim for medical expenses and as evidence of his earning after his accident.

10.  At the time of the accident, the Plaintiff was doing painting work inside a shop situated at No. 52-53 Sai Street, Sheung Wan, Hong Kong. He had to stand on a wooden platform suspended by a ladder at some 8 feet from the ground to work on the ceiling. As he was removing the base coat of the paint on the ceiling, he fell onto the ground and thereby sustained injuries to his left elbow and right shoulder.

11.  The Plaintiff was admitted to Ruttonjee Hospital. He was then transferred to Pamela Youde Nethersole Eastern Hospital for further treatment. On 28 January 2006, open reduction and internal fixation of left elbow fracture was performed. Some 13 months later, on 8 March 2007, the Plaintiff had another operation to have the implants removed.

12.  As a result of the injury, the Plaintiff was granted a total of 590 days of sick leave by the hospital.

13.  On his injury, the Plaintiff submitted the medical notes from his treating hospital. He also presented an expert report by Dr. Wong See Hoi dated 13 September 2008.

14.  According to the Plaintiff’s witness statement, he is still having pain with his left hand. If he has to move or carry article at work weighting over 30-40 pounds, the pain would increase. The left elbow would become stiff after work. The Plaintiff is left-handed. But in view of his weakness with his left hand, he has to use his right hand for daily activities. As a result, his right shoulder, right elbow and right wrist feel pain.

15.  After the accident, he could not go swimming or play basketball, which he used to do. He still maintains jogging. And before the accident, he enjoys good health and could sleep easily. After the accident, because of the pain, he suffers from insomnia which affected his health.

16.  And after the sick leave, the Plaintiff returns to work to maintain his living. He returns to work as a decoration painter on 26 November 2007, earning between HK$750 to HK$800. However his working capacity is lower than before the accident. When using the screwdriver or working at height, his left hand feel pain. He has to use his right hand but his right hand is not as skilful as his left hand. As a result, he works for lesser days and suffered loss of earning. According to his evidence, before the accident, he could work 26 days a month. However after the accident, he works 14 days a month on the average. The wage receipts and MPF records have been produced to support his earning. And on the average, he only earns $10,850.00 per month.

17.  The Plaintiff also relied on the expert evidence of Dr. Wong See Hoi. According to Dr. Wong’s opinion, the accident was the major contributory cause of his present left elbow and right shoulder complaints.

18.  Dr. Wong also commented that the Plaintiff’s left elbow develop contracture and stiffness. X-ray of left elbow show the fracture heels satisfactorily but with mark arthritic changes and irregularities over the elbow joint, indicating degenerative changes. With such degenerative changes, the Plaintiff is expected to have residual left elbow pain in future. And concerning the right shoulder injury, Dr. Wong remarked that the Plaintiff received no treatment until 28 April 2007. He was given physiotherapy treatment. But as remarked by Dr. Wong, Dr. Wong believed the right shoulder injury of the Plaintiff is only a minor form of injury compared with the left elbow injury.

19.  Dr. Wong opines that the Plaintiff has reached the maximum medical improvement. The prognosis is fair. The Plaintiff would have intermittent pain over left elbow and right shoulder in future particularly when he performs heavy manual work and prolong manipulative work as well as lifting and carrying heavy weights.

20.  On the working capacity of the Plaintiff, Dr. Wong opined that the Plaintiff is able to resume his pre-injury work as a decoration worker but with reduction in working efficiency and capacity. He would have difficulty in lifting heavy weights. Prolonged usage of heavy metallic tools and repetitive movement of left elbow for painting and installing air conditioner would increase pain easily. Job modification is required and take rest at intervals should be allowed.

21.  With all these evidence, I proceeded to consider the quantum of the damages suffered by the Plaintiff. The first head of claim is for pain suffering, and loss of amenities. The amount claimed under this heading is between HK$350,000 and HK$400,000. Counsel refer me to the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 and submitted that the injury of the plaintiff fall below the serious injury category. She further relied on the case of Li Wan Ki v Hyundai Engineering and Construction Company Limited, HCPI 577 of 2004 and Iau Kau-ih v Wan Kei Geotechnical Engineering Co. Ltd. and others, HCPI 130 of 2001. She also referred me to a District Court case Tsui Kwan Fai v Goldfield N & W Construction Company Limited, DCPI 97 of 2006. She submitted that the award of PSLA in the District Court case is on the low side.

22.  Having considered all the cases cited by counsel, I find that a reasonable award for PSLA is HK$350,000.

23.  For pre-trial loss of earning, the Plaintiff claims HK$557,700.

24.  Under this head of claim, the first part of claim is the loss during his sick leave. As mentioned above, the Plaintiff was granted 590 days of sick leave by his treating doctors and all the sick leave certificates were produced in court. Ms. Yiu, counsel for the Plaintiff submitted that a period of 2 months should be added as a reasonable period for the Plaintiff to find a new job. I agree. The claim under this head is for loss of 22 months’ wages.

25.  According to his evidence, on 26 January 2006, his daily wages was HK$500 when working for the Defendant. He worked 26 days a month earning about HK$13,000. I also note that in the corresponding employees’ compensation action, the monthly earning of the Plaintiff had not been disputed by the Defendant. But I am invited to use a high earning to assess the loss of the Plaintiff after the sick leave period.

26.  It is the case and the evidence of the Plaintiff that before the accident, he had been working as a decoration worker doing painting work for more than one employer at the material time. When he was not working for the Defendant, he worked for other employers.

27.  It is the evidence of the Plaintiff when he worked for the Defendant, the market wages is between $650 to $700 per day. The daily wages by the Defendant was lower than the market rate. However, as the Defendant could provide more job opportunity, he was agreeable to work for him at a lower than market wages. Ms. Yiu submitted that in assessing the loss, I should use the market rate and not the wages paid by the Defendant.

28.  I accept the evidence of the Plaintiff that he worked at a lower than market wages for the Defendant. I accept the submission of Ms. Yiu to use the market rate to assess the loss of the Plaintiff. The question before me is the number of days that he worked each month.

29.  The Plaintiff claimed that he should be able to work 26 days a month before the accident. The Plaintiff could not provide any evidence as to his number of days that he worked. All the wages (before the accident) had been paid in cash and there is no record of wage receipt or tax return or MPF record. I pointed out to him that there must be more than 52 Sunday and some public holidays when construction sites may not be allowed to carry out works, when he could have no work. To that he agreed. After the morning break, counsel for Plaintiff conceded that they would base his monthly earning at 24 working days per month.

30.  While I am not the counsel for the Defendant, it is for the Plaintiff to prove his loss.

31.  Given the concession by his counsel, I would take his monthly earning at HK$12,000 in assess his loss during the whole period of the 22 months of sick leave period. For the sick leave period, I found that the Plaintiff’s loss is ($12,000 x 22) = $264,000.00.

32.  But I am not satisfied on the evidence of the Plaintiff that he had work for 26 days a month, when he was not working for the Defendant. If he could get 26 days’ work from other employer who would pay him the market wages, there was no reason for him to accept the lower wage from the Defendant. The inference is that he could not have 26 days of work a month.

33.  I would use his earning of $13,000 as a yardstick. Doing my best assessment, I found that the Plaintiff could at best shows that his average working days before the accident is 22 days a month. I therefore use this to calculate his monthly earning if he was not injured.

34.  Miss Yiu further submitted that the reasonable earning of the Plaintiff is about $750 to HK$800. Besides the evidence of the Plaintiff, a number of his wage receipts (for period after he recovered) have been produced. She also relied on a notice from 香港建造業總公會 which stated that the daily wages of painter would be increased from HK$750 to HK$800. I was invited to use the medium figure of HK$775. I accept counsel submission. I found that if the Plaintiff had not in injured, his monthly earning should be ($775 x 22 =) $17,050. I accept his evidence that his monthly earning is lower because of his injuries. Given that his average monthly earning after recovery is HK$10,850, he suffered a loss of [(HK$775 x 22) - $10,850] HK$6,200 per month. That would run for 29 months until today, being a loss of ($6,200 x 29=) $179,800.

35.  Accordingly, the total pre-trial loss of earning would be HK$: -

a. Sick leave period	$264,000
b. Loss after recovery	$179,800

36.  For future loss of earning, Counsel submitted that a multiplier of 10 is reasonable and appropriate. She referred me to the case of Li Wan Kei (supra), and Lau Wing Kong v Hung Wing Steel Engineering Ltd. & Anor, HCPI 199 of 2006. I have no disagreement with these rulings. Given that the Plaintiff is now 47 years old and was 43 at the time of accident, a multiplier of 10 is not unreasonable.

37.  Accordingly the total award under his loss of future earning would be HK$6,200 x 12 x 10 = $744,000.00.

38.  On the loss of earning, the Plaintiff should be further awarded a loss of retirement benefit being 5% of his earning.

39.  On loss of earning capacity, Counsel referred me to the case of Siu Leong Ching v Professional Scaffolding Engineering Co. Ltd., HCPI 70 of 2003. Mr. Justice Suffiad in awarding loss of earning capacity stated that there were authorities to suggest that the loss of earning capacity shall be calculated roughly to be one month for each year of the multiplier used for future loss of earnings. In this case, the Plaintiff claimed an award of 10 months earning equal to HK$108,500.

40.  Given that the Plaintiff still suffered some pain with his left elbow, I accept that he suffers a handicap in the labour market. Loss of earning capacity is a compensation for the disadvantage of the Plaintiff to find another job in the market due to his injury. I not have the benefit of seeing the authorities read by Mr. Justice Suffiad. But there had been many authority on how to assess the loss of earning capacity. In most of the cases, it would be a matter of considering the seriousness of the injury of the Plaintiff and to assess a reasonable sum that cover his risk of losing his job and the time to find an alternative job because office injury. I consider a period of 6 months’ wages would be reasonable and sufficient in the circumstances. I accordingly award that amount, and I round it down to $65,000.00.

41.  As mentioned above, the claim for travelling expenses have been adjusted and I allow it at $14,481.50. I also allow the claim for past medical expenses at $10,617.00. Given that he had no receipt for his tonic food expenses, a nominal amount of $5,000 would be allowed. Claim for future medical treatment at $10,000 is allowed.

Conclusion

42.  In summary, this is the damages I allowed :-

a.	PSLA	$350,000.00
	interest at 2% p.a. for 15.5 months	$ 9,041.67
b.	Pre-trial Loss of Earnings	$443,800.00
	interest at ½ judgment rate for 51 month	$75,446.00
c.	Future Loss of Earnings	$744,000.00
d.	Loss of MPF	$ 59,350.00
e.	Loss of Earning Capacity	$ 65,000.00
f.	Past Medical Expenses	$ 10,617.00
g.	Past Travelling Expenses	$ 14,481.50
h.	Tonic Food	$ 5,000.00
	½ judgment rate for 51 months
	interest on f, g & h at	$ 5,116.75
i.	Future Medical Expenses	$ 10,000.00

43.  The Plaintiff should also be entitled to his costs of the assessment such cost to be taxed if not agreed. There be certificate for counsel. The Plaintiff’s own costs be taxed according to Legal Aid Regulations.