TSANG HING YUEN v. NISHIMATSU KUMAGAI JOINT VENTURE (a firm) AND ANOTHER

HCPI 906/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.906 OF 1998

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J U D G M E N T

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1. The plaintiff brings this claim against the 1st defendant as the main contractor and the 2nd defendant as the sub-contractor and the employer of the plaintiff who sustained injuries when he suffered a fall at a construction site in Shek O Road on 19 October 1995. At the start of the trial, judgment on full liability was admitted by both defendants. There remains, therefore, only the question of damages for me to assess.

INJURIES AND TREATMENT

2. The plaintiff suffered a fall from a height of about two floors at the construction site on 19 October 1995. As a result, the plaintiff was unconscious for a short while. He was taken by ambulance and admitted to the Pamela Youde Nethersole Eastern Hospital on the same day where he was found to suffer from a scalp laceration of the forehead, a fracture of his left hip, and a fracture of the left wrist. The scalp laceration was sutured. Open reduction and internal fixation was performed on 27 October in respect of his hip fracture. On 5 November, closed reduction and internal fixation was performed in respect of the wrist fracture. Adjustment of external fixator with percutaneous screw fixation was performed on 15 November in respect of the wrist fracture. The plaintiff was then transferred to the Margaret Trench Medical Rehabilitation Centre on 3 January 1996 for rehabilitation and was discharged home on 30 May 1996. Thereafter, he was followed up at the Out-Patient Department. On 18 March 1997, the plaintiff was readmitted to hospital for an operation to remove the screws from his left wrist and his pelvis. Thereafter, he was again followed up at the Out-Patient Department. The reports from his Out-Patient follow-up shows that he still had mild hip pain in September 1997, and that in April 1998, he could walk independently but still carried a stick on follow-ups. He could also manage his daily activities independently but there were still occasional hip pain controlled by oral analgesic.

3. In so far as his head injury was concerned, the plaintiff was examined in May 1998 by Dr Edmund Woo. Dr Woo noted in his report that since the accident, the plaintiff had headaches localised at the temples and the back of his neck. It was a throbbing kind of ache aggravated by head turning and which recurs two to three times a week, lasting for one to two days each time. The plaintiff takes analgesics for relief. Dr Woo further noted that the plaintiff also suffers from giddiness and this is associated with vertigo and nausea, but there was no vomitting. This is not related to body movement. There is some tinnitus bilaterally, but no ear pain. These symptoms taken together has caused the plaintiff to be slow and forgetful, irritable and short-tempered.

4. Dr Woo came to the conclusion that the plaintiff was suffering from a mild degree of cognitive dysfunction and his concentration and memory had been impaired. Dr Woo further found that there was no focal motor or sensory deficits in the plaintiff's limbs. He took the view that this was a mild head injury consistent with post-concussional syndrome. He was further of the view that further improvement in the plaintiff's neurological function was not expected. He assessed the plaintiff's cognitive dysfunction to be a 5% impairment of the whole person, giving a 10% loss of earning capacity.

5. In respect of his orthopaedic injuries, namely the fracture to his left wrist and left hip, the plaintiff was examined by Dr Lam Kwong Chin in July 1998. At the time of examination, the plaintiff still complained of pain in his left wrist as well as pain in his left hip and weakness of the left lower limb. He also had headache and dizziness. Dr Lam found on examination that the fracture to the left wrist had united with an acceptable alignment, but osteoarthritis of the left distal radioulnar joint was seen. When compared with the right wrist, Dr Lam found the dorsiflexion, palmarflexion & ulnar deviation slightly restricted in the plaintiff's left wrist movement and the plaintiff had a slightly weaker left wrist grip. Dr Lam concluded that the plaintiff's complaint of residual pain on turning and exertion is a common feature of wrist fracture and genuine. He assessed the plaintiff's left wrist to have an impairment of 10% of the upper extremity which represented a 6% impairment of the whole person.

6. As for the hip fracture, Dr Lam found that the fracture had united with an acceptable alignment and there was no sign of early hip degeneration although calcification inside the pelvic cavity was present. Dr Lam concluded that the plaintiff's complaint of residual pain at his left hip and the weakness, numbness and decreased walking tolerance were genuine complaints. He assessed the left hip fracture to be a 15% impairment of the lower limb, which is a 6% impairment of the whole person. He further opined that there is a small chance of further degeneration which would increase the pain and reduce the function of the left hip such as may require total hip replacement. Dr Lam commented that with the wrist injury, the plaintiff is not fit to undertake work that requires strength from dexterity of both wrists and that the plaintiff's walking difficulty, due to the hip fracture, also prevents him from having jobs that require prolonged standing or weight bearing. As such he would not be able to return to heavy manual work as a carpenter in construction sites, but he could try jobs of light to moderate manual nature, preferably done in a sitting posture or with limited walking requirement. He assessed the loss of earning capacity caused by the impairment to the left wrist and the left hip to be 15%.

7. The plaintiff was also examined by Dr Chun Siu Yeung in May 1999. After examining the plaintiff, Dr Chun was of the view that the symptoms complained of by the plaintiff in his left wrist is likely to be genuine. In so far as the hip was concerned, Dr Chun took the view that the reduction of the fracture in the left hip was excellent and expected the chance of osteoarthritis occurring to be well below 7% because there was relatively little involvement of the hip joint by the fracture. He further opined that the chances of future total hip replacement is small.

8. From tests conducted by him, Dr Chun came to almost similar findings as did Dr Lam in relation to the slightly restricted range of movements of the plaintiff's left wrist and hip. It is fair to say that Dr Chun's findings is not all that different from the findings by Dr Lam. However, Dr Chun assessed the plaintiff's impairment of the left wrist to be a 5% impairment of the upper limb, which is a 3% impairment of the whole person. He further assessed the impairment to the plaintiff's left hip to be 0%. In fact, the percentage figures given for the impairment is the only real difference between the two doctors.

9. Whilst I can accept that there will always be slightly different figures assessed by different doctors in so far as impairment is concerned, I find it somewhat strange that the method employed by Dr Chun leads him to conclude that there was 0% impairment for the plaintiff's hip fracture. The reason given by Dr Chun is that since test for muscle power is very subjective, therefore he had not taken this into account in coming to his assessment. Put on this basis, it seems to me to be somewhat unreal, and I prefer the assessment given by Dr Lam in this respect.

PAIN, SUFFERING, LOSS OF AMENITIES

10. In so far as this head of damage is concerned, I take into account the fact that the plaintiff was hospitalised for over seven months and given sick leave for almost two years from the date of the accident. He has also undergone no less than four operations already. Collectively, his head injury resulting in the mild cognitive dysfunction, the wrist fracture and the hip fracture leaving him with residual pain even today is such that it comes within the serious injury category laid down in the case of Lee Ting Lam. His wife had to give up her job to take care of him and it was not until January 1998 that she was able to resume work.

11. The cases relied upon by the plaintiff as comparable were :

(a) Ho Ah Look (1999) HKLJ 337

(b) Chan Tim Kwai (1998) HKLJ 443

(c) Fan Lan Fong (1997) HKLJ 109

(d) Tse Hoi Cheung (1995) HKLJ 421

(e) Chung Wing Kwong (1992) HKLJ 229

12. Cases relied upon by the defendants are :

(a) Sin Sau Mui v. Yuen Sai Kwong HCA 11319/93

(b) Chung Hok Sung v. Li Kam Ming HCPI 393/95

(c) Ip Yin Fai v. Chan Che Kwong HCPI 445/98

13. In all the circumstances of this case and having considered the awards in the cases relied upon by both parties, I think a fair and reasonable compensation under this head would be $450,000.

SPECIAL DAMAGES

14. With the exception of one item, namely, tonic food, all the other items of special damages have been agreed between the parties. The agreed special damages comes to $40,430.

15. In so far as tonic food is concerned, the plaintiff claims the sum of $72,080. This is made up of two items : shark tonic pills costing $7,280 for ten cartons and other tonics, being special soup for the plaintiff for which $64,800 is claimed on the basis of $60 spent on such special soups for 1,080 days. It should be stated at once that the plaintiff's claim for tonic food is not supported by any documentary proof.

16. The evidence from the plaintiff and his wife was that for the first two years or so after the accident, the plaintiff was given special soup daily prepared by his wife. He was at the same time given shark tonic pills to assist his recovery. Neither the soup nor the pills were prescribed by doctors. They were tonic or special food which the plaintiff and his wife believed would assist in the plaintiff's recovery. When the wife gave evidence, her evidence was that she spent between $100 to $200 each day to purchase the special ingredients used for such special soup. Presently, the plaintiff is still being given this special soup, but only two to three times per week. The wife said in evidence, under cross-examination, that by now she had spent over $100,000 for this special soup. This is very different from what has been pleaded. I cannot help but feel that there has been some exaggeration on the part of the plaintiff and his wife in this respect.

17. The courts have always been ready to award a reasonable amount for tonic food, even where no documentary proof has been produced. In this case, the defendants concede that $20,000 is a reasonable sum for this head of claim. I share the same view. The amount of $20,000 will be awarded for the claim for tonic food.

LOSS OF EARNINGS

(a) By the plaintiff's wife

18. There is evidence before me that the plaintiff's wife was working as a dim sum supervisor in a restaurant before the accident, earning $8,500 per month. After the plaintiff's accident, she had to give up her work in the restaurant in order to take care of the plaintiff. It was not until January 1998 that she resumed her work as a dim sum supervisor in a restaurant. When she resumed her work in January 1998, her salary was $9,350 per month. Taking into account the fact that the plaintiff was still using a walking stick in mid 1998, it does not appear to me to be unreasonable for the plaintiff's wife to have given up her work between October 1995 until she resumed it in January 1998. Moreover, there is evidence before me that after the accident and after the plaintiff's wife had given up her work, the plaintiff's family had to rely on public assistance. However, when the plaintiff's wife resumed her work in January 1998, this public assistance ceased. The amount claimed for the plaintiff's wife's loss of earnings for that period is $232,050. This is worked out by taking the average salary between $8,500 (at the time of accident) and $9,350 (in January of 1998) and multiplying that by 26 months, i.e. the period that she was off work.

19. Accordingly, the claimed amount of $232,050 will be awarded in full.

(b) Pre-trial loss

20. There was no dispute that at the time of the accident, the plaintiff was earning $600 per day as a carpenter in a construction site. What is in dispute is the number of days the plaintiff worked on average per month before the accident. The plaintiff says 28 on average, the defendants say 26. It is interesting to know that the wife's loss of earning was calculated on a 26-day month by the plaintiff. If the wife was taking her statutory weekly holiday, I take the view that it would be highly likely that the plaintiff would also value a rest day to be with his family especially where there are four children. In this respect, I note that paragraph 23 of the Revisal Statement of Damages states : "Pre-accident, the Plaintiff used to spend a lot of his leisure time out playing with his 4 children in swimming, walking, football and basketball ...." I therefore think it more likely that the plaintiff had worked a 26-day month on average. This gives a basic monthly salary of $15,600. The plaintiff also gave evidence that he worked overtime about two to three times per week before the accident and for which he would get $300 for every two hours of overtime. Given that there is no certainty when it comes to overtime, a further $1,200 would cover his overtime earnings for a month. This would give a total pre-accident monthly salary of $16,800.

21. If the plaintiff had not met with this accident, chances are he would have continued today as a carpenter in the construction industry. Government statistics on the daily wages for carpenters show that it has risen from $698 in October 1995 to $1,273 by September of 1999. Using these statistics as a guide, I take the view that the plaintiff would be able to earn about $1,100 a day if he had remained a carpenter today. This figure is slightly below what is in the statistics in the same way as his actual earning of $600 a day at the time of the accident is also slightly below what the statistics give. At $1,100 per day, this would give the plaintiff a present monthly salary of $28,600. (In arriving at this figure, I have not taken into account any overtime work for two reasons. Firstly, the plaintiff's children are growing up, the elder two having already left school, therefore there is a lesser burden upon the plaintiff financially. Secondly, with the economic situation affecting the construction industry, there is bound to be less work generally, let alone overtime work. The combined effect of these two factors are such that chances of the plaintiff engaging in overtime work will be minimal.) Thus the mean salary for the pre-trial period would come to $22,700.

22. The plaintiff was granted sick leave by Government doctors until 29 September 1997, almost two years after the accident. In view of the evidence that he was still carrying a walking stick in mid 1998, and he was still suffering from headache and dizziness as well as pain in his wrist and hip, it would be reasonable to conclude that the plaintiff was not fully fit to resume employment for a further 12 months after his sick leave ceased. Moreover, it was in July 1998 that Dr Lam gave his opinion that the plaintiff would be fit for light moderate work, preferably of a sedentary nature. It was probably not the best of times to be looking for employment due to the economic situation. This is even more so when one considers the fact that the plaintiff had to look for jobs other than what he had been doing all his life. Under these circumstances, it would be reasonable to expect the plaintiff to take a longer time to secure alternative form of employment. Along these lines, I take the view that the plaintiff could have secured some form of employment by February of 1999. From the date of accident to February 1999 would give 40 months of full loss of earnings. Using the mean salary for the pre-trial period, this would give $22,700 x 40 months = $908,000.

23. It follows from the above that from February 1999 until trial (i.e. 12 months), the plaintiff would only be entitled to be compensated for partial loss of earnings. In view of the kind of work that Dr Lam has said in his report that the plaintiff was fit for, I am of the view that that type of work would generate a salary of about $8,000 per month. The loss therefore to the plaintiff for the 12 months preceding the trial is worked out as ($22,700 - $8,000) x 12 months = $176,400.

24. This gives a total pre-trial loss of earnings of $1,084,400.

(c) Future loss

25. The plaintiff is now 46 years old, a reasonable multiplier to adopt considering his age and the type of work that he was involved in before the accident would be 9. As for the multiplicand, the notional present earnings of the plaintiff which had been calculated at $28,600 less the sum of $8,000, being his earnings in alternative employment, would give $20,600. Therefore, the loss of future earnings would be calculated as : $20,600 x 9 x 12 = $2,224,800.

LOSS OF EARNINGS CAPACITY

26. There is also a claim for loss of earnings capacity by the plaintiff and the amount claimed is $200,000. On the other hand, the defendants say that the plaintiff is only entitled to $45,000 under this head. There can be little doubt that with the injuries suffered by the plaintiff, he will suffer a real handicap in the labour market. On the other hand, he has been compensated for future loss of earnings as a carpenter on the basis that he will be able to secure alternative employment paying some $8,000 a month. Therefore, the handicap in the labour market ought to be looked at in the light of this alternative employment, paying $8,000 a month. This is to guard against any overlap in compensation. I further take the view that six months of the salary in his alternative employment should be sufficient to compensate the plaintiff under this head. I therefore award the amount of $48,000 for loss of earnings capacity.

CONCLUSION

27. To sum up, the awards are :

(a)	for pain, suffering and loss of amenities	$450,000
(b)	Special damages -
	agreed	40,430
	tonic food	20,000
(c)	Wife's loss of earnings	232,050
(d)	Pre trial loss of earnings	1,084,400
(e)	Future loss of earnings	2,224,800
(f)	Loss of earnings capacity	48,000
		4,099,680
	Less ECC compensation payment	304,050
		3,795,630 =======

INTEREST ON AWARD FOR PAIN, SUFFERING AND LOSS OF AMENITIES

28. This will be at 2% per annum from date of writ until judgment.

INTERESTS ON SPECIAL DAMAGES

29. Interests will be awarded for the items of special damages, wife's loss of earnings and pre-trial loss of earnings at half judgment rate (i.e. 5.75%) from the date of accident to the date of payment of EEC compensation. Thereafter from that date until judgment interests will be awarded at the same rate and for the same items but less the amount of EEC compensation of $304,050. This can safely be left for the parties to work out themselves the actual amount involved.

COSTS ORDER NISI

30. I can see no reason to depart from the usual rule that costs to follow the event. I therefore make a costs order nisi that the costs of the assessment be to the plaintiff, to be taxed if not agreed.