TSE HING WAN v. CHOY YUEN KEUNG AND OTHERS

PI 889/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 889 OF 1998

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JUDGMENT ON ASSESSMENT OF DAMAGES

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Introduction

1. At about 9 a.m. on 15 September 1995, the Plaintiff was working on top of a steel mound-structure in a construction site at Ma On Shan Area No. 90, Kowloon. He slipped, lost balance and fell down to the floor about 3 meters below and suffered injuries as a result. He commenced this action against the 1st Defendant (as his employer and a sub-contractor of the 2nd Defendant), the 2nd Defendant (as the sub-contractor of the 3rd Defendant) and the 3rd Defendant (as the principal contractor).

2. Interlocutory Judgment was entered by consent on 23 June 1999 with damages to be assessed. This is the Judgment on assessment of damages.

3. $656,200 was paid earlier to the Plaintiff pursuant to the Employees' Compensation Ordinance, Cap. 282. The Plaintiff agrees that this sum should be deducted from any award made in this action.

Plaintiff's Injuries and Treatment

4. The Plaintiff was born on 24 April 1940 and was 55 years old at the time of the accident and 59 years old at the time of the hearing. He suffered fracture of the left os calcis as a result of the accident.

5. The Plaintiff was admitted to the casualty department and then the orthopaedics department on 15 September 1995. He underwent open reduction and internal fixation operation on 19 September 1995 and was discharged on 26 September 1995 for out-patient physiotherapy and follow-up treatment. Crutch-assisted weight-bearing walking was needed at some stage. He was granted sick-leave from 15 September 1995 to 15 September 1997 and attended 2 physiotherapy sessions per week from 10 November 1995 to 15 March 1996 (total 45 sessions). At the same time, he attended follow-up treatment from 2 October 1995 to 18 February 1998. X-ray treatment taken in 1996 revealed subtalar joint post-traumatic degeneration.

6. The Plaintiff was first examined by the defence doctor, Dr Arthur Chiang, in June 1996 and loss of range of motion of the left ankle was observed. X-ray examination revealed mild irregularity in the calcaneo-cuboid joint, flattening of the base of the calcaneus and complete recovery was not expected.

7. In the second examination by Dr Chiang in December 1996, wastage of the left thigh and calf muscles was noted with a similar range of motion of the left ankle. Dr Chiang opined that the Plaintiff's condition had become static. Dr Chiang's third report dated 8 May 1997 assessed the Plaintiff's permanent impairment of the whole person to be 8% and his loss of earning capacity to be 15%. He also opined that the chance of post-traumatic arthritic changes might increase in the Plaintiff's later years.

8. The Plaintiff's doctor, Dr Julian Chang, found the Plaintiff to walk with a very mild limp on the left hand side, muscle wasting of the left thigh and calf indicating disuse atrophy. He also diagnosed a possible post-traumatic subtalar joint arthritis and a possible contusion of the heel flat pad. Permanent impairment and loss of earning capacity were tentatively assessed by him to be respectively at 3% and 5%. CT scan performed on 14 January 1998 revealed bony irregularities involving the left calcaneum and minimal degenerative changes involving the subtalar joint.

9. Dr Chang's second report dated 15 January 1998 mentioned marginal osteophytes in the subtalar joint indicative of early post-traumatic arthritis and permanent impairment was revised to 8% and loss of earning capacity to 15%.

10. In his third report, Dr Chang considered the Plaintiff was capable of returning to "ground level" construction site jobs, such as delivery hand, messenger, hawker, restaurant waiter or kitchen worker.

11. There were similar findings made in the other medical reports which I do not propose to set out in detail.

Findings of Fact

12. 4 factual witnesses were called by the parties during the hearing:-

(a)	the Plaintiff;
(b)	Mr Tse Wang, the Plaintiff's son ("Tse");
(c)	Mr Leung Chi Keung, the Plaintiff's friend and co-worker at the time of accident ("Leung");
(d)	D1.

13. The following expert witnesses were called by the Plaintiff:-

(a)	Dr Julian Chang;
(b)	Mrs Alice Tsang, occupational therapist.

Only 1 expert witness was called by the defence, namely, Dr Arthur Chiang.

14. Several issues relating to the credibility or reliability of the witnesses' testimony were raised between the parties:-

(a)	the amount of the Plaintiff's daily wages when he worked for D1;
(b)	the number of the Plaintiff's working days per month when he worked for D1;
(c)	the amount of the current average daily income of the same job;
(d)	whether the Plaintiff could have resumed employment (a) in the construction site, and (b) if so, from about 18 months after the accident (that is, since about March 1997);
(e)	whether the Plaintiff could have resumed such employment thereafter up to now.

15. The issue regarding the amount of the Plaintiff's average daily wages arose as follows. The Plaintiff testified he could earn $830 per day when there was a team of 9 workers working together and $930 per day when the team consisted of 8 workers. This was undisputed by D1's testimony. The difference in their testimony was whether normally there would be 8 or 9 workers in the team; the Plaintiff testified that most of the time there were only 8 workers whereas D1 testified that mostly there were 9 workers.

16. It appears that all 3 witnesses concerned (the Plaintiff, Leung and D1) accepted that from time to time, 1 or 2 workers would leave the team, leaving behind 8 workers. However, the testimony of both Leung (especially his acceptance in cross-examination to this effect) and D1 tends to show that normally there were 9 workers. I prefer their testimony to the Plaintiff's over this point.

17. In relation to the average number of working days per month, both the Plaintiff and Leung testified (although he also mentioned 24 to 25 days at one stage in cross-examination) that they worked on about 26 days. D1 testified that he worked less days than that each month. However, no testimony was given by him as to the average number of working days at the material time (that is, in 1995). His testimony on this point is therefore of little value to this point. Even if his testimony had intended to relate to the number of working days in about 1995, I would still have preferred the testimony of the Plaintiff and Leung over this point. In this connection, I note that D1 (a) did not mention this aspect in his witness statements, and (b) admitted in cross-examination that he had to take about 1 or 2 rest days per month because of his health condition.

18. Testimony relating to the current average income of the same job was given by Leung and D1. Both of them testified that the current daily wage on a "total remuneration sharing basis" (as opposed to the employed basis), which was how the Plaintiff was employed in 1995, was $1,100. Leung testified to the effect that if a worker's health condition was good, age would not be a significant factor in finding work in the trade. I prefer Leung's testimony to D1's (which was to the effect that aged workers in their 50's or 60's are at a disadvantage in the trade). It was clear from the evidence that the Plaintiff did not encounter any difficulty in his work at the time of the accident (when he was aged 55).

19. Investigators employed by the defence have video-tape recorded that the Plaintiff had gone to a construction site for several days in January 1997 (during his sick-leave period). Based on this, the defence contended that he was able to resume employment since at least that time. In their testimony, both the Plaintiff and Tse claimed that the Plaintiff was only asked to go to the site to help buy drinks and meal for Tse and his workers. I have no hesitation in rejecting this claim taking into account (as they admitted) there was a canteen inside the site and the Plaintiff stayed inside the site from about 8:30 a.m. to about 5:40 p.m. However, I consider that the evidence does not support the conclusion that the Plaintiff was able to work at that time. I find that the more reasonable conclusion would be that since Chinese New Year was approaching, Tse found that extra manpower was needed and therefore asked the Plaintiff to go there as a "helping hand" to assist in lighter work. The Plaintiff did so out of a father's love and affection for his son.

20. The Plaintiff did not dispute he should be able to resume work as a general construction site worker (as suggested by Dr Chang and Mrs Alice Tsang) after his sick-leave period. He argued however that he could not find such employment despite direct evidence showing that he had repeatedly attempted to do so. These "repeated attempts" were the referrals of the Plaintiff by the Labour Department to various job interviews which were all unsuccessful. In considering this aspect of the testimony, 4 matters ought to be borne in mind:-

(a)	the Plaintiff's admission that he was receiving public assistance from the Social Welfare Department after his sick-leave period. Officers of the Social Welfare Department later told him he had to register with the Labour Department to try to find a job;
(b)	there is no evidence which suggests that the Plaintiff's failure to obtain employment was related to his injuries;
(c)	in a report prepared by the Labour Department for March to December 1998, the Plaintiff went for 22 interviews in total which were all unsuccessful. Reasons were given by 4 of those interviewers. They were: "better candidates available", "skill level [as a storekeeper] not up to standard", "poor manner" and "failed attend interview";
(d)	although I cannot take judicial notice of the conditions of the labour market (see Lau Wing Shing v. Chung Fat Mechanical Works Co. [1988] 1 HKLR 435, 439), I can take judicial notice of the general economic condition in Hong Kong since October 1997 and draw proper inference from such.

21. I conclude that the Plaintiff's inability to find a job from 16 September 1997 up to the time of the hearing for assessment was not caused by his injuries. I find that, whether consciously or unconsciously, the Plaintiff has not tried his best to obtain employment during this period. His registration with the Labour Department for employment and his attendance at the job interviews referred to him by the Labour Department was more probably related to his desire to continue getting public assistance. I also do not accept his assertions in testimony that he asked around for jobs, looking up newspaper advertisements and visiting construction sites with his wife.

22. Mr Chan for the Plaintiff relied on Chan Tak Chi v. Wong Siu Tao [1998] 4 HKC 16 for the proposition that the onus is on the defence to show that the Plaintiff's failure to take reasonable steps to mitigate his loss. I agree entirely with this legal proposition. However, in the present case, I consider that the defence had been able to discharge this burden regarding the Plaintiff's unemployment from 16 September 1997 to the time of the hearing for assessment taking the whole circumstances of this case into account. I note that Master Cannon also found in the Chan Tak Chi case that she was satisfied the plaintiff there did not make sufficient efforts to mitigate his loss by obtaining employment: see Chan Tak Chi at p. 28E-G.

23. The Plaintiff testified that he would have continued in his pre-accident job until about 62 or 63. Thereafter, he wishes to continue working as a construction site odd job worker until he is about 65. He was questioned on this in cross-examination but no criticism was made in the Defendant's closing submissions on his credibility or reliability over this aspect.

24. To summarize, in relation to the parts of the testimony which are in dispute, I make the following findings of fact:-

(a)	the Plaintiff's pre-accident average daily wages were $830;
(b)	I agree with the Plaintiff's concession (in para. 22 of the Plaintiff's Closing Submissions) that the average number of the Plaintiff's working days each month in 1995 was 25 days;
(c)	the current daily wages of the Plaintiff's pre-accident job was $1,100. The average current monthly income would be $27,500 ($1,100 x 25);
(d)	the Plaintiff was not physically fit to resume employment during his sick-leave period (15 September 1995 to 15 September 1997);
(e)	the Plaintiff could have worked in his pre-accident job up until he reaches 62 years old if he had not been injured;
(f)	the Plaintiff is physically able to work as a general construction site worker since 16 September 1997 and up to when he is 65 years old.

25. For the avoidance of doubt, in assessing the credibility and reliability of the witnesses, I have considered their testimony both globally as well as separately in relation to each issue in dispute. The fact that the above paragraphs were set out under separate topics does not mean that I have not considered their testimony on a global basis.

Pain and Suffering and Loss of Amenities

26. The issue between the parties regarding this head of claim is whether:-

(a)	as Plaintiff's counsel submitted, the Plaintiff's injuries should fall within or close to the lower end of the "serious category" referred to in the Lee Ting Lam case ([1980] HKLR 657);
(b)	as defence counsel contended, his injuries should fall below the "serious category".

27. The cases relied upon by the Plaintiff as comparables were:-

(a)	Sui Wai Man v. Lee Chi Chong [1999] HKLRD E10;
(b)	Chiu Tak Sang v. Kwan Hon Lam, HCA 4462 of 1994 (28 November 1996);
(c)	Lam Kwong Ting v. Ho Yau Yuen [1990] 2 HKC 381.

28. On the other hand, Defence counsel relied on the following cases:-

(a)	Chan Cheuk Ki v. Poon Yu Cheung [1995] HKLD 950 (26 October 1995);
(b)	Man Yung Hoi v. Poon Yu Cheung [1995] HKLD 950 (26 October 1995);
(c)	Lau Hi v. Kam Shek Investments (1988) HKLJ 336 (18 November 1987);
(d)	Lau Man Nin v. Man Hau Tak (1997) 27 HKLJ 261 (15 April 1997).

29. Plaintiff's counsel argued that since the Plaintiff's injuries fall within or close to the lower end of the "serious" category, taking into account the awards made in the cases he relied upon, the appropriate award in this case should be $480,000. The Plaintiff accepted that there should not be any increase since 1998 (on account of inflation) in view of the economic conditions since then. Relying on the cases she referred to (see above), defence counsel submitted that the appropriate award should be $300,000.

30. I consider that the injuries suffered by the Plaintiff were less serious than those suffered in the cases relied on by Plaintiff's counsel. On the other hand, the Plaintiff's injuries should be slightly more serious than those suffered in the cases relied on by the defence. The appropriate award (taking into account the question of inflation (and the lack thereof since 1998) should be $350,000 in this case.

Pre-Trial Loss of Earnings

31. The Plaintiff was given sick leave from 15 September 1995 to 15 September 1997. I have dealt with the issues raised regarding:-

(a)	the amount of the Plaintiff's pre-accident average daily wages;
(b)	the number of the Plaintiff's working days per month before the accident,

under the heading "Findings of Fact".

32. Further, defence counsel argued that the Plaintiff should have resumed his employment about 18 months after the accident (that is, from about March 1997 onwards). Her argument was based on the testimony of Dr Arthur Chiang to the effect that the normal period of recovery for such kind of injuries would be 18 months.

33. With respect to Defence counsel, I do not agree because:-

(a)	the doctor(s) who granted sick leave to the Plaintiff must have decided what the appropriate periods of sick leave should be after they had examined the Plaintiff (which was undertaken contemporaneously);
(b)	Dr Chiang, on the other hand, only first examined the Plaintiff in June 1996 and his opinion that the normal sick-leave period should be 18 months was only made in his testimony;
(c)	the doctor(s) who granted the sick leave would have been in a better position to decide when the Plaintiff would be able to resume employment (and hence the length of the sick leave);
(d)	indeed, Dr Chiang also accepted in cross-examination that a sick-leave period of 24 months could not be said to be unreasonable and did not criticize the doctor(s) who granted sick leave to the Plaintiff;
(e)	in these circumstances, I regard Dr Chiang's opinion on the recovery period as a mere comment on the average sick leave period and not addressed to the Plaintiff.

34. For the above reasons, the award under this head for total loss of earnings should be:-

(a)	the Plaintiff's average pre-accident monthly income =
	$830 x 25 = 20,750;
(b)	average current monthly income =
	$1,100 x 25 = 27,500;
(c)	pre-trial loss of earnings =
	($20,750 + 27,500) ÷ 2 x 24 months = 579,000.

35. The Plaintiff has been employed as a construction site security guard since 17 September 1999 at $5,600 per month: see para. 56 of the Plaintiff's closing submissions. Since I concluded he had not reasonably mitigated his loss by obtaining employment with a better pay after his sick-lave, the loss of income should be calculated using the income figures provided by the defence.

36. According to the Government wage statistics, the daily wages of an unskilled construction site labourer were $549.9 as at December 1997 and $604.2 as at December 1998. The monthly income figures would have been $13,747.5 (549.9 x 25) and $15,105 (604.2 x 25) (instead of $5,600).

37. Hence, because of the Plaintiff's failure to mitigate his loss from 16 September 1997 to 1 December 1999, the award for this period should be:-

($1,100 - 604.2) x 25 x 26.5 = 328,467.5.

38. The total amount of award is:-

$579,000 + 328,467.5 = 907,467.5.

Future Loss of Earnings

39. Plaintiff's counsel proposed that a multiplier of 2 be adopted in relation to the Plaintiff's pre-accident job. The cases relevant to this point which he relied upon were:-

(a)	Ho Ah Look v. Nam Kin Scaffolding Ltd [1999] 2 HKLRD F15;
(b)	Chow Yuk Ng v. Lau Ming Fai, unrep., P.I. 899 of 1996 (1 June 1998);
(c)	Chau Tim Kwai v. Ho Keung, unrep., P.I. 1186 of 1995 (12 May 1998).

40. As regards the Plaintiff's prospect of employment as a general construction site worker, Plaintiff's counsel argued that it is very unlikely that the Plaintiff would be able to obtain such employment, even though it is accepted he should physically be able to do so: see para. 58 of the Plaintiff's closing submissions. Plaintiff's counsel therefore asked me to award to the Plaintiff 2 years' wages at the current income of a general construction site worker.

41. Defence counsel suggested a multiplier of 1, relying on the fact that the normal retirement age of the Plaintiff's pre-accident job is 60 years old. I have already concluded that the Plaintiff would have been able to stay in that job until he is 62. The appropriate multiplier should therefore be 2 taking into the element of accelerated payment. The award should be calculated as follows:-

(a)	current average daily income = $1,100;
(b)	current daily income of a general construction site labourer = $604.2;
(c)	partial future loss of earning =
	($1,100 - 604.2) x 25 days x 24 = 297,480.

42. As regards the Plaintiff's employment after he reached 62, I do not consider that he will suffer any loss of earnings because, according to Dr Chang and Mrs Alice Tsang, he would be able to work in the range of jobs he indicated he would be doing after he reached that age.

Loss of Earning Capacity

43. Defence counsel contended that no award should be made under this head since the Plaintiff would face the same risk of losing his job as a construction site general worker whether he was injured or not.

44. I do not agree because the Plaintiff will face at least a higher risk of early post-traumatic arthritis: see the medical report of Dr Chang dated 15 January 1998 and that of Dr Chiang dated 8 May 1997.

45. On the other hand, I do not agree with the Plaintiff's argument that he should be entitled to an award amounting to 2 years' income. Taking all the circumstances into account, I consider an award equivalent to 6 months' income is appropriate. Thus, the award should be:-

$604.2 x 25 x 6 = 90,630.

Medical and Travelling Expenses

46. The quantum under this head has been agreed by the parties to be $11,984.00.

Conclusion

47. To sum up, the awards are:-

(a)	pain and suffering and loss of amenities of life: $350,000;
(b)	pre-trial loss of earnings:-

	(1)	from 15 September 1995 to 15 September 1997: $579,000;
	(2)	from 16 September 1997 to 1 December 1999: $328,467.5;
	(3)	sub-total: $907,467.5;
(c)	future loss of earnings: $297,480;
(d)	loss of earning capacity: $90,630;
(e)	medical and travelling expenses: $11,980;
(f)	less E.C.C. payment: $656,200.

48. The total amount awarded is $1,001,357.5.

Interest on Pain and Suffering and Loss of Amenities

49. This was agreed at 2% per annum from the date of Writ to the date of this hearing.

Interest on Special Damages

50. Interest rate under this head is undisputed and should be 5.63% per annum.

51. Plaintiff's counsel submitted that interest should run from the date of accident to the date of this hearing. Defence counsel argued that interest should be from the date of accident (but less advance periodical payments totally $227,200) to the date of the settlement of the employees' compensation claim. She also argued that interest on the claim awarded should be on the net sum after the award of special damages has been set off against the sum of $429,000 paid pursuant to the settlement relating to the employees' compensation claim.

52. I do not see why the Plaintiff should be entitled to interest for sums which have already been paid to him and therefore agree with the proposal of defence counsel over this aspect.

Costs Order Nisi

53. The parties agreed that a costs order nisi should be included in this Judgment pursuant to R.H.C. Ord. 42 r. 5B(6). There is no apparent reason to depart from the usual rule should follow the event. The costs of the assessment are to be paid to the Plaintiff to be taxed if not agreed.