SZE PING CHUI v. LAU CHING WAI

HCPI 1051/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1051 OF 2001

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JUDGMENT

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Background

1. The Plaintiff claims against the Defendant being his employer at all material times for damages arising out of an accident on 18 January 1999. On the date of the accident, the Plaintiff, while in course of his employment with the Defendant, was chiseling ceramic tiles in the toilet at Room A, 4th Floor, Hing Yan Building, Yue Wah Street, Kwun Tong. Suddenly, fragments of the ceramic tiles hit and entered into the left eye of the Plaintiff. As a result, he was admitted to the United Christian Hospital for treatments.

2. The Defendant failed to file any notice of intention to defend and Interlocutory Judgment on liability was entered against him on 8 March 2002. The Plaintiff obtained an appointment before me for assessment of damages.

3. Despite due service of the Notice of Appointment of Assessment of Damages on the Defendant, the Defendant failed to appear at the assessment and the hearing was proceeded in his absence.

4. Master Kwan has given directions on 9 May 2002 that both the medical report of Dr. Paul Cheung and the reports of the government hospitals as to treatments and care be adduced as evidence without calling the makers. Such reports were produced at Bundle C of the Bundle of Documents filed with the court. No other reports were adduced by the Defendant and I admit and accept the said reports as evidence of this case.

5. At the assessment hearing, the Plaintiff gave evidence and confirmed 2 witness statements signed by him dated 26 April and 4 June 2002 respectively as true and correct.

Personal Particulars of the Plaintiff

6. The Plaintiff was born in mainland China on 26 December 1950 and was of the age of 48 at the time of the accident. At the time of the assessment hearing, he is now 51 years old. He started working as a plasterer in the mainland and had 15-year of experience before settling in Hong Kong in 1988. After then, he continued to work in construction sites as plasterer.

Injuries and Treatment

7. After the accident, the Plaintiff was taken to the Accident and Emergency Department of the United Christian Hospital. Examination showed an abrasion across the left pupil and left eye visual acuity was only finger count. X-ray of the left orbit showed suspected foreign body. The Plaintiff was immediately referred to the Eye Clinic for further management.

8. At the Eye Clinic, the Plaintiff was found to have a ruptured left eyeball with a 5mm full thickness linear corneal laceration at the visual axis and cataract and the lens was also damaged. An urgent operation to repair the cornea, the removal of the damaged lens and implantation of intro-ocular lens was performed on the same day. The Plaintiff was discharged from the United Christian Hospital on 20 January 1999. While it is mentioned in the report of Dr. Paul Cheung that about 1 to 2 months after the accident that surgery for YAG laser capsulotomy was performed, I cannot find any reference to such surgery in the medical reports of the United Christian Hospital produced. The Plaintiff was later referred to the Hong Kong Eye Hospital in May 1999 for consideration of penetrating keratoplasty surgery (corneal transplant).

9. Since discharge from the United Christian Hospital, the Plaintiff attended regular follow-up treatment at the United Christian Hospital and the Hong Kong Eye Hospital. According to his oral evidence, he needed to attend once at the United Christian Hospital and twice at the Hong Kong Eye Hospital this year while starting from next year, he is only required to attend once at the Hong Kong Eye Hospital.

10. Despite the treatment, the Plaintiff has residual corneal scar at his left eye. The Plaintiff is now complaining blurring of vision of his left eye, occasional "light reflection" in the left eye and occasional discomfort and photophobia in the left eye. Dr. Lam of the Hong Kong Eye Hospital assessed the Plaintiff's best-corrected visual acuity was 0.3 which corresponded to 65% loss of the left eye vision.

11. The Plaintiff was examined by Dr. Paul Cheung, an ophthalmology expert on 26 July 2001. Dr. Cheung noted in his report that in his view, the best-corrected visual acuity of the Plaintiff's left eye was 6/18 which was equivalent to 70% of normal. There was myopia and severe astigmatism which was resulted of cataract surgery and the corneal scar respectively. Dr. Cheung further opined that the Plaintiff's left eye is pseudophakic (ie. The crystalline lens had been removed by surgery and replaced by an intra-ocular lens). Such condition is, in the opinion of Dr. Cheung, considered to be an additional impairment in the visual acuity by 50%. Dr. Cheung explained that in a pseudophakic eye, despite an apparently good visual acuity on a visual test chart, there is more light scattering and a greater likelihood of glare, diminished contrast sensitivity and spherical aberration than with a normal eye. There are also other disabilities such as pupillary abnormalities lens decentration and tilting, and the requirement to wear a strong presbyopic lens.

12. Dr Cheung concluded that taking into account of the pseudophakic condition of the left eye, the visual acuity is 35% of the normal and the permanent disability is 65%. Coupling with an additional 5% disability on account of the photophobia, the Plaintiff is suffering from 67% permanent disability in the left eye which is equivalent to 17% disability of the whole visual system and 16% disability of the whole person. The Plaintiff's left eye is now stable and no further treatment is required or advised.

Pain, Suffering and Loss of Amenities

13. In assessing damages under this head, I have taken into account the operation undertaken by the Plaintiff, the 3-month sick leave period granted and the extent of the disabilities to the left eye of the Plaintiff suffered as a result of the accident. Counsel for the Plaintiff Mr. Lam referred me to the Judgment of Cheung J. (as he then was) in Lai Ka Wai v. Lo Tak Cheung & Others, HCPI 1227/1995 (decided on 12 January 1998) where the Plaintiff there suffered a total blindness in his left eye (which amounted to 24% permanent impairment of the whole visual system) after glass fragments entered into his eye. Cheung J. placed such injuries into the serious injury category and awarded $450,000 for damages under this head.

14. The injuries suffered by the Plaintiff in this case are less serious than the one in Lai Ka Wai case. Considering the inflation issue as acknowledged by the Court of Appeal in Yu Kok Wing v. Lee Tim Loi [2001] 2 HKLRD 306, Mr. Lam suggested that the Plaintiff's injuries would fall below the serious injury category and a sum of $400,000 is reasonable.

15. I have considered the awards in other cases with similar injuries including:-

(a) Chan Kwok Ping v. Hop Yick Engineering Co. HCPI 1230/1995 (28/1/1997)

(b) Ho Yam Pan v. Tse Tak Ming HCPI 91/1996 (16/4/1997)

(c) Lee Ping Foon v. Lee Hoi HCPI 541/1997 (22/1/1998)

(d) Chan To Wai v. Rigid Plumbing Ltd. HCPI 1334/1996 (27/1/1998)

After comparing the injuries and disabilities suffered by the Plaintiff in this case and those in the above cited cases, I am satisfied that the sum claimed by the Plaintiff under this head is fair and reasonable. Accordingly, I award $400,000 as damages for the Plaintiff's pain, suffering and loss of amenities.

Pre-trial Loss of Earnings

16. There was no dispute that at the time of the accident, the Plaintiff worked as a plasterer earning a daily wage of $800. The Plaintiff claimed in the witness statement that he worked about 26 days per month and hence his monthly income was about $20,800.

17. At the assessment hearing, the Plaintiff testified that the average number of working days per month should be 25 days. He explained that he worked 26 days per month for the last 1 to 2 months prior to the date of the accident. As such, I accept 25 days as the average number of working days for the Plaintiff prior to the accident and his pre-accident monthly income was $20,000 ($800 x 25 days).

18. Due to the economic downturn, the daily wage of the plasterer at present remains at $800. It was claimed by the Plaintiff that but for the accident, he could still have worked on average 25 days per month. I questioned the Plaintiff during the hearing whether in light of the present economy, a plasterer could work on average 25 days per month. The Plaintiff stated that he knew many of his colleagues could work for 25 days per month at present. Since there was no evidence to challenge such statement and I accept that the Plaintiff is a honest witness, I find that the Plaintiff could have worked 25 days per month at present as a plasterer if there was no accident. Thus, his notional monthly income was $20,000.

19. After the accident, the Plaintiff was granted sick leave for 3 months up to 19 April 1999. During the sick leave period, he received no sickness allowance from the Defendant. He only resumed working as a plasterer in May 1999. I am satisfied that the Plaintiff has tried his best to return to his pre-accident work as soon as he could and I am prepared to allow total loss of earnings during the period in the sum of $70,000 ($20,000 x 3.5 months).

20. Since May 1999, the Plaintiff claimed that he could only do indoor decoration work instead of working outdoor in construction sites as in the past. As a result, his current income is about 1/3 less than the amount he could earn in the past. From the earning record attached to the witness statement, it is noted that on average, the Plaintiff could only work about 10 to 15 days per month and his daily wage was originally about $800 per day. However, commencing from January this year, his daily wage was reduced to $700. The Plaintiff explained that because of his impaired left eye vision, his work performance has dropped significantly and he worked slower than the average plasterer. Further, he could not work at the external wall at height to do the plastering as he has balancing problem and the photophobia prevents him from working under strong sunlight. Once his employer knew his left eye problem, the Plaintiff's daily wage was reduced. In light of the expert opinion on the Plaintiff's left eye problem, I find that the Plaintiff's allegations are genuine and justified and there is no exaggeration on his part. From May 1999 to September 2002, there are 41.5 months. The Plaintiff's actual earnings during the period as evidenced from his earning records produced are $424,040 ($385,700 + $38,340). The partial loss of earnings are therefore $405,960 ($20,000 x 41.5 months - $424,040).

21. This gives the pre-trial loss of earnings of $475,960.

Future Loss of Earnings

22. The average monthly income of the Plaintiff at present is about $10,218 ($424,040/41.5 months). The monthly partial loss will therefore be $9,782 ($20,000 - $10,218). The Plaintiff is now of the age of 51 and I accept Mr. Lam's suggestion that a reasonable multiplier in such case should be 7. Therefore, the future loss of earnings would be calculated as $821,688 ($9,782 x 12 x 7).

Loss of Mandatory Provident Fund Benefit

23. As a result of the accident, the Plaintiff's earnings have been reduced which gave rise to a loss of his employer's contribution in his mandatory provident fund since December 2000. Such damages will be awarded as 5% on the Plaintiff's loss of earnings both pre-trial and in the future. The pre-trial loss would be in the sum of $11,005 [($20,000 - $10,218) x 22.5 months x 5%]. The post-trial loss would be $41,084 ($821,688 x 5%).

Loss of Earning Capacity

24. The Plaintiff also claims for loss of earning capacity in the sum of $62,850 being 6 months of his current salary.

25. Browne LJ set out a 2-stage test in his Judgment in Moeliker v. A Reyrolle & Co. Ltd. [1977] 1 WLR 132 as:

The consideration of this head of damages should be made in two stages. (1) Is there a "substantial" or "real" risk that a plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case, will, or may, affect the plaintiff's chances of getting a job at all, or a equally well paid job.

26. Keith JA. modified the 1st stage for causal worker not working for one employer continuously such as the Plaintiff here in Yu Kik Wing v. Lee Tim Loi [2001] 2 HKLRD 306. He said:

In the Plaintiff's case, the question which the Master should have asked was whether there was a substantial or real risk that, as a result of his reduced capacity and as a result of the greater possibility of the onset of degenerative arthritis, the plaintiff would not be able to obtain as much casual work as a painter as he would have done if he had continued to be able-bodied. If there was such a risk, the plaintiff was entitled to an award for loss of future earning capacity to the extent that that loss had not been reflected in the award for loss of future earnings.

27. I accept that as a result of the residual disabilities suffered by the Plaintiff and taking into account of his age and working history, the Plaintiff will suffer a real risk that his reduced capacity will prevent him occasionally from obtaining casual work as a plasterer which he would have been able to get if he had continued to be able-bodied. Thus, he will suffer a real handicap in the labour market. To avoid any duplication in the award under this head with the substantial damages for future loss of earnings that I have already awarded, to the best that I can, I estimate that in this case, 3 months of his current salary should be reasonable to compensate the Plaintiff's loss. The award for loss of earning capacity would be $30,654 ($10,218 x 3).

Special Damages

28. The Plaintiff claims medical expenses in terms of hospital maintenance fees of the United Christian Hospital at $204 and out-patient treatment at $880. Though no receipt was produced in support, I find the said sums are reasonable and I am prepared to allow them in full. The Plaintiff also claims travelling expenses in attending the out-patient treatment at $356 ($17.80 per round trip) which in my view are reasonable and the same will be allowed also. I therefore award special damages in the total sum of $1,440.

Summary

29. In summary, the awards are:

(a)	Pain, Suffering and Loss of Amenities		$400,000
(b)	Pre-trial Loss of Earnings		475,960
(c)	Future Loss of Earnings		821,688
(d)	Loss of MPF Benefit	- Pre-trial: $11,005
		- Post-trial: 41,084	52,089
(e)	Loss of Earning Capacity		30,654
(f)	Special Damages		1,440
			1,781,831 =======

Interest

30. There will be interest on the damages for pain, suffering and loss of amenities at 2% per annum from the date of service of the writ until judgment. Interest will also be awarded for the pre-trial loss of earnings and the special damages at half judgment rate from the date of accident to the date of judgment.

Costs

31. I make a costs order nisi that costs of the assessment of damages in this action be to the Plaintiff to be taxed if not agreed. The Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.