WONG CHUN CHIN v. SUN SHING CONSTRUCTION CO (A FIRM) AND ANOTHER

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Judgment

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1. The plaintiff sustained a back injury in controlling a loaded and unstable wheelbarrow during his employment by the first defendant on 2nd July 1994 as a construction site worker in the New Territories. The second defendant was the contractor responsible for the site and the 1st defendant was the sub-contractor. The present hearing represents an assessment of the plaintiff's damages following the entry of interlocutory judgment by consent against both defendants on 17th February 1998. Liability was established at 82% and the gross figures produced by this assessment will be adjusted accordingly.

2. The plaintiff was initially taken to the United Christian Hospital, where he was given analgesics and discharged with three days sick leave after examination and x-rays. He returned to the hospital after his sick leave and was referred to the Kwun Tong Jockey Club Clinic. Further treatment was conservative and included his attendance at the orthopaedic out-patient clinic. Physiotherapy was applied, but was unsuccessful.

3. The plaintiff's back pain persisted, and MRI scan at United Christian Hospital on 19 May 1995 revealed prolapsed disc L4/5 and L5/S1. On 11 August 1995 he underwent an operation described as Fenestration and Posterior Discectomy L4/5 and L5/S1. Dr. James Cheng, a consultant in the Department of Orthopaedics and Traumatology at United Christian Hospital, described the plaintiff's low back pain as improved after the operation but said that numbness persisted in the right lower limb. Dr. Cheng said that on 2 February 1996 scans revealed extra dural compression at L4/5 level and a possibility of residual disc inside the affected area. This possibility later turned out to be the case.

4. Dr. Danny Tsoi, an orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 21 December 1996, and his report is dated two days later. He also gave evidence. Dr. Tsoi said that a prolapsed disc was common after a fall or lifting heavy objects. In its milder version it would be treated with painkillers and physiotherapy. However Dr. Tsoi described the plaintiff's prolapse as "huge" and therfore it did not respond to this conservative treatment. The subsequent operation he described as unsuccessful as it produced excessive scarring, resulting in irritation to the nerve root. This apparently can occur in such circumstances and cannot be controlled.

5. Dr. Tsoi described the plaintiff as having pain over his back and lower limb, as well as weakness due to nerve damage. He noted the plaintiff's complaints as mild back pain, severe right leg pain radiating from buttock to heel, weakness and numbness over the right leg especially the big toe, and mild numbness over the left big toe. Dr. Tsoi said in evidence that he found objective support for these conclusions and he did not therefore rely on the subjective indications of the plaintiff. His clinical findings disclosed muscle weakness and wasting of muscle bulk, in addition to which the MRI scans revealed that the scarring was exerting pressure on the nerve. All of these findings persuaded Dr. Tsoi that the plaintiff's complaints were genuine, and he rejected any suggestion of malingering.

6. Dr. Tsoi described the plaintiff as wholly unfit for his pre-accident occupation and recommended light work, preferably of a sedentary nature. He regarded his condition as static and permanent and said that it could not get worse as it was about as bad as it could be. He assessed permanent impairment at 20% and loss of earning capacity at 35%. In his second report of 19 December 1997 Dr. Tsoi found no clinical improvement. He recommended a major corrective operation but indicated that it was risky. The plaintiff has now decided against this operation and has accordingly abandoned his claim for future medical expenses to cover the estimated costs.

7. On 23 May 1997 the plaintiff was examined at the request of the defendants' solicitors by Dr. Lau Hoi Kuen, an orthopaedic specialist. Dr. Lau's findings largely agreed with those of Dr. Tsoi, save that he thought there was an element of exaggeration in the plaintiff's reaction to the tests, particularly in the straight leg raising test. Dr. Tsoi declined to comment on this finding, saying that he had not observed such a reaction at the examination he himself had conducted. Dr. Lau agreed that the plaintiff's back and neurological condition was static and permanent and agreed as to the nature of work which the plaintiff should seek. He assessed permanent disability and loss of earning capacity at 15% and 20% respectively, somewhat lower than Dr. Tsoi's estimates.

8. Discussing the level of compensation for pain, suffering and loss of amenities, Mr. Poon for the defendants drew the court's attention to the factor of exaggeration. Apart from Dr. Lau's findings to that effect on the physical examination, he pointed out that the plaintiff claimed in evidence that he was unable to squat, whereas both doctors found that he could do so. The plaintiff's visits to China were also argued to be in conflict with his claim in evidence that he could not move his legs properly. Addressing this point in cross-examination, the plaintiff responded that he would walk slowly.

9. Whilst accepting that the plaintiff has a prolapsed disc and that the operation has left a permanent residual disability, Mr. Poon argued that this was not sufficient to place his condition within the serious injury category of Lee Ting Lam. He adduced several cases pointing to around $350,000 as the correct figure for PSLA, the most relevant of which he suggested was Lai Wah Wai v. Castco Testing Centre Ltd. PI 422 of 1995. The plaintiff in that case also suffered a prolapsed disc and nerve root compression from a construction site injury. He also underwent operation by way of fenestration and discectomy, after which the nerve root was apparently free. Subsequent back pain revealed fibrosis but no nerve compression, and he was treated by manipulation and painkillers. Residual disability amounted to inability to lift heavy weights and backache on sitting, standing and walking for longer than 30 minutes. Loss of earning capacity was assessed at 30% by the plaintiff's medical witness, and at 28% by the defence expert. $300,000 was awarded for PSLA in March 1996.

10. As Ms. Wee for the plaintiff pointed out, the similarity to the present case does not extend to the results of the fenestration and discectomy operation. The nerve root in Lai Wah Wai was at that stage free, whereas the plaintiff here has bad scarring and a portion of disc still within the critical area, leaving nerve root compression as an ongoing and static factor. Dr. Lau summarises the position to this effect in his report at pages 60E and 60F, and rejects further surgery as too risky.

11. In assessing the gravity of the plaintiff's handicap I bear in mind Dr. Tsoi's opinion that the subjective complaints are supported by observed muscle weakness and wastage of bulk, as well as by the results of the MRI scan. Dr. Lau's comment as to possible exaggeration cannot detract from such clinical findings, and Dr. Lau himself notes that the difference between himself and Dr. Tsoi is no more than one of degree. In cross-examination Dr. Lau also accepted that the plaintiff's condition was serious, and agreed with counsel's suggestion that for a manual worker it was a disaster.

12. The Lee Ting Larn category of serious injury covers injuries leaving a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim. I am satisfied that the plaintiff's condition is within that area of handicap, notwithstanding the exaggeration suggested by Dr. Lau.

13. The range of compensation for serious injury approved by the Court of Appeal in July 1996 in Chan Pui-ki v. Leung On and Another [1996] 2 HKLR 395 was $400,000 - $540,000. Ms. Wee for the plaintiff submits that interim escalation at 7.5% p.a. should be applied, making the present range $470,000 - $630,000. Although the 10% annual increase conventionally applied to guideline awards must now be too generous, I am satisfied that an annual 7.5% is justified and I accept Ms. Wee's figures. I find that the plaintiff's condition places him in the lower to middle area of the range and an award of $530,000 would be appropriate for PSLA. With the reduction to 82% of liability the actual award will therefore be $434,600.

14. Turning to loss of earnings, the defence has conceded that the plaintiff's pre-accident rate of pay as a casual worker was $450 per day. This is borne out by the accident report form at page 63 of the bundle, which indicates earnings of $11,700 for the month before the accident with an average number of working days of 26 per month. The plaintiff however maintains that he worked 30 days a month with scarcely any rest days and his average was 28 days, taking into account festivals and bad weather when he would not be working.

15. In cross-examination the plaintiff agreed that in addition to not working during bad weather and festivals he would make periodic visits to his family in China three to four times a year. This journey would take about 4 1/2 hours and he would stay 4 or 5 days on each occasion. In view of this evidence I find it unlikely that the plaintiff could have achieved an average 28 day working month and I accept that his basic pay averaged $11,700 per month for a 26 day month at $450 per day.

16. In addition to his basic wage the plaintiff is claiming a further $1,500 per month as an average of overtime payments. He said that there was little overtime at the accident site, but that he had earned an average $3,000 overtime per month during six months work for the 1st defendant in early 1994 at the previous site in Aberdeen.

17. The proprietor of the 1st defendant, Lam Wai Dan, maintained in his statement that the plaintiff's basic wage was $350 a day and that the $450 reflected in the accident report included an average of two hours overtime a day at $50 per hour. He said that the site was proceeding at full speed and the plaintiff was required to work overtime. In court however he changed his evidence in agreeing that the plaintiff may have been receiving a basic $450 per day, and saying that work on the site was normal and not very busy. Mr. Lam also said that the plaintiff's basic working hours were 8am to 6pm, contradicting the plaintiff's evidence that he worked from 8am to 4:30pm.

18. According to Mr. Lam, the wages were a matter he left to his supervisor, Chan Fung. He had no personal knowledge of such matters, and although he said that he had records, satisfactory records were produced neither by himself nor by Mr. Chan, who also gave evidence. Mr. Chan supported Mr. Lam's figures of $350 per day basic plus two hours overtime to make the figure of $450 per day. He also said that overtime of two hours per day would be achieved by around 7pm, contradicting Mr. Lam's evidence that normal working hours extended to 6:30pm.

19. Mr. Chan's evidence of the plaintiff's daily rate appears at paragraph 7 of his witness statement. In his oral evidence he said he remembered those details at the time of giving his statement and they were "80% reliable". Explaining this he said it was because he had no written records. The inconsistencies and uncertainties in the evidence of both Mr. Chan and Mr. Lam, coupled with the lack of records, make it difficult to believe anything they say.

20. I have found $450 per day to be the plaintiff's basic rate and I am satisfied that an element of overtime must be added to that figure. Mr. Lam has himself said in his statement that the site was busy and the plaintiff was required to work overtime. Mr. Chan confirmed in cross-examination that the site was busy and the plaintiff was getting overtime - although this was in the course of supporting his $350 basic wage evidence. There is furthermore the plaintiff's uncontradicted evidence that he was earning $3,000 per month overtime in early 1994 at the Aberdeen site. In all the circumstances I am satisfied that $1,500 per month as an average figure is a fair representation of the plaintiff's overtime earnings. This will be added to his basic wage of $11,700 giving $13,200 per month as his pre-accident earnings.

21. The plaintiff is claiming full loss of earnings from the date of the accident to the present time. He has not worked since the accident, nor apparently has he tried to find work. He claims that he is unable to do so and has obtained sick leave certificates. He received sick pay from his employer for the two years following the accident in the sum of $6,000 a month, and it is this figure which the defence proposes as representing notional present day earnings in reduction of the award.

22. In his first report (page 55) Dr. Tsoi commented that the plaintiff should be fit to take up employment within the recommended range of jobs 18 months after surgery, that is by February 1997. By then he thought the back condition would have stabilized. The examination preceeding this report was on 21 December 1996, so Dr. Tsoi's prognosis at that stage related to a time only some two months ahead. His second report (page 60A) related to an examination on 2 December 1997 and failed to address the issue of fitness to work.

23. Dr. Tsoi's first report was made before he knew the results of the MRI scan disclosing a portion of the prolapsed disc still within the affected area. Dr. Tsoi said in evidence that this caused the doctor at United Christian Hospital to require the plaintiff to come back for repeated examination, which may have been why he continued to give him sick leave certificates. This is of course well intentioned speculation on Dr. Tsoi's part as to the motives of the other doctor, and he did not revise his own opinion that the plaintiff should be fit to work 18 months after the operation in August 1996. Dr. Lau in his evidence gave his opinion that the plaintiff would have been physically able to do light work about one year after the operation.

24. It has been emphasised for the plaintiff that he has continued to receive sick leave certificates to the present time. However both Dr. Tsoi and Dr. Lau testified that a doctor would usually grant such certificates to a patient complaining of pain, unless he suspected malingering. I am satisfied that the mere existence of such certificates does not of itself justify a failure to work after the date proposed by the examining doctor only a few weeks earlier. The plaintiff acknowledges that he has not tried to find work, and merely states that he is unable to work. That contention requires medical or other evidence adequate to displace Dr. Tsoi's opinion that he would have been able to work 18 months after the operation. This is lacking, and there is therefore insufficient evidence to support the plaintiff's alleged inability to work after February 1997.

25. The defence has suggested that the period for total loss of earnings should end at 15 February 1997, in line with Dr. Tsoi's prognosis, and I accept that date. Thereafter the agreed notional monthly earnings of $6,000 will be applied in reduction of the plaintiff's loss.

26. For the plaintiff's likely current earnings but for the accident Ms. Wee argues for a daily basic wage of $575 for a 26 day month plus $2,000 per month overtime. In support of the basic wage Ms. Alice Mo, a Government statistician, produced at page 117 official figures for May 1998 reflecting average daily rates of workers engaged in Government building and construction projects. From these figures it emerges that an unskilled male labourer was at that time earning an average $576.30 per day, - clearly in line with the plaintiff's claim. Ms. Mo pointed out that the Government figures included allowances for transportation and meals, although not overtime, but said that a breakdown to reflect the precise quantum of those allowances was not available.

27. The defence relies on the edvidence of Mr. Lam and Mr. Chan in attempting to establish a figure for likely current earnings considerably below that advanced by the plaintiff. Mr. Lam said that the average wage for male casual labourers is now $400 per day, and that overtime is exceptional. He cited in his witness statement the slow market conditions in the construction industry and the influx of workers from China. This evidence, to which Mr. Lam deposed on 21st July 1998, is inconsistent with the June 1998 figures for workers in Government construction projects, produced by Ms. Mo as Exhibit P2. This discloses a daily rate of $583.00 for unskilled male labourers - a considerable rise in one month from the May figure of $576.30.

28. Mr. Chan Fung again disagreed with Mr. Lam when he testified that the current daily rates for male labourers are $450, a figure which the defence is prepared to concede. This evidence is also qualified by Mr. Chan's comment that his recollection is "80% correct" because he did not have the records. The only records produced by either Mr. Lam or Mr. Chan are those annexed to Mr. Lam's statement purporting to be records of another supervisor responsible for paying wages. In the absence of that supervisor to explain her own records, which are difficult to follow, and in the light of Mr. Lam's own admitted personal ignorance of these matters, I give them no credence.

29. Even discounting the inconsistencies of these two witnesses, I find it difficult to believe that daily casual labour rates in the private sector are so far below those paid by the Government. As Ms. Mo pointed out when cross-examined about meal and transport allowance, the private sector would have to adopt broadly the same remuneration as the Government because they are dealing with the same pool of workers. Neither can I accept, as the defence witnesses would have it, that daily casual labour rates have remained static for four years. The evidence of Ms. Mo is quite to the contrary, and even Mr. Chan admitted in cross-examination that a casual worker's daily rates would rise year by year.

30. I find the defence evidence wholly inadequate to outweigh the figures adduced by Ms. Mo as a basis for the current daily rate the plaintiff would have commanded. I therefore find that the plaintiff would have earned at the daily rate claimed of $575. I am however unable to find a probability that he would have earned the $2,000 a month claimed for overtime, as the evidence does not support such a figure. I accept that some overtime would be likely in the natural course of construction site work, where deadlines have to be met to avoid contractual penalties. In the absence of evidence pointing to a higher figure I fix the likely monthly amount of overtime at $1,000 which, added to the daily rate of $575, gives monthly current earnings of $15,950.

31. The plaintiff is now almost 49 and the plaintiff asks for a multiplier of 9, whereas the defence offers 8. The cases adduced by Mr. Poon include Tsang Yung Sang (HCA 1053 of 1985), a casual worker of 50 at trial who was awarded 7; Kwok Shun Tai (HCA 4614 of 1987), a construction worker of 44 at trial who was awarded 10; Lee Ching Por (HCA1524 of 1990) a welder of 43 at trial who was awarded 10; Sung Fuk Wah (HCA3676 of 1994) 43 at trial who was also awarded 10; Tse Hoi Cheung (HCA7930 of 1988) a plumber of 41 at trial who was awarded 11, and Choi Mei Ho (PI7184 of 1995) a female construction site labourer of 46 at trial who was awarded 10.

32. I do not find that these cases, particularly the last named, point with certainty to 8 as the correct multiplier. Ms. Wee's cases include Chu Tik Kwan (HCA2623 of 1989) a press operator of 50 at trial who was awarded 9; Man Yung Hoi (1995) HKLY, a plasterer of 48 at trial who was awarded 9, and Lau Sun Yiu (1986) HKLY, a construction site worker of 49 at trial who was awarded 10. Considering all the cases to which my attention has been drawn I find on balance that 9 is the correct multiplier and that is awarded.

33. The calculation of the award for loss of earnings will be based on a median monthly figure of $(13,200 + 15,950) x 1/2 = $14,575. For the 31.5 months of total loss of earnings from the accident until mid-February 1997 the loss will be $459,113. For the balance of the period to this judgment, some 17 months, the plaintiff has not been found unable to work. The calculation will therefore include the monthly deduction of the deemed earnings of $6,000. This will give a further partial loss of $(14,575 - 6,000) x 17 = $145,775. The total loss of pre-trial earnings will therefore be $604,888. Adjusting this figure for the 82% agreed liability, the award for loss of earnings to date will be $496,008.

34. For loss of future earnings the notional remuneration will also be deducted giving a figure of $(15,950 - 6,000) x 12 x 9 = $1,074,600. Adjusting this again for the 82% agreed liability the award for future loss of earnings will be $881,172.

35. The plaintiff also claims an award for loss of earning capacity, quantified at $150,000, which is resisted by the defence. Relying on Chan Wai Tong v. Li Ping Sum [1985] HKLR 176, Mr. Poon argues that such an award applies only to a plaintiff already in employment. It reflects the risk that he may lose his employment and suffer financial loss from the disadvantage in the labour market caused by his injuries. I have no doubt that Mr. Poon is right, both in this and in his further submission that evidence is required to prove the liklihood and extent of the risk of future loss of employment.

36. These principles emerge clearly from the judgment of Lord Fraser at page 183, when the concept of a conventional award for loss of earning capacity was rejected. There are therefore two factors for proof, both a handicap in the labour market and a risk, other than negligible, that the current employment may cease some time in the future.

37. The plaintiff in this case cannot of course be placed precisely within those probative requirements, for he does not now have a job. He does however have notional earnings, imposed on him for our present purposes by a combination of medical opinion and insufficient evidence to justify his own failure to seek work. He is in a worse position than a claimant who is employed, because he suffers a deduction of $6,000 per month as his deemed market value without receiving any actual earnings.

38. In the plaintiff's situation, the risk is not that he will lose his job and then find himself at a disadvantage in the market place. His risk, if any, is that the job he may eventually find with his best efforts nontheless pays less than the $6,000 per month of his notional earnings. If that is a quantifiable risk, and if he is indeed handicapped in the market, then he should be entitled to compensation for loss of earning capacity.

39. I readily accept that the plaintiff suffers a handicap in the labour market. Apart from his inability to do labouring, the medical evidence speaks of continuing discomfort, the need to change his posture, the need to do light work, and indicates that even sedentary work would not be ideal. He cannot bend properly nor carry more than about 20 pounds in weight, and moreover he is illiterate and not a native Cantonese speaker. The type of work he may reasonably find would be severely limited, in addition to which he would, even within those limits, suffer adverse comparison with able bodied candidates for the same position.

40. The nature of this handicap and its problems as to suitable work are of themselves evidence that the plaintiff either may not find a job yielding $6,000 per month, or may not keep such a job having found it. This would place him within the terms of Lord Fraser's evidential requirements insofar as these are extended by analogy to a claimant who is out of work but who suffers the deduction of notional earnings from his compensation.

41. The award for loss of earning capacity should be relatively modest to reflect that the potential loss in earnings below $6,000 per month would probably not be large. I find $80,000 to be the appropriate figure, which gives an award of $65,600 when reduced on account of the agreed 82% liability.

42. Hospital, medical and travelling expenses are agreed at $12,980, and a further award of $10,644 will be made for this item, after reduction for the 82% liability.

43. The total award, with the bracketed figures representing 100% liability, is therefore:

PSLA	$434,600 ($530,000)
Loss of earnings	$496,008 ($604,888)
Loss of future earnings	$881,172 ($1,074,600)
Loss of earning capacity	$65,600 ($80,000)
Medical & travelling expenses	$10,644 ($12,980)
Total	$1,888,024 ($2,302,468)

44. Credit will be given for the sum of $608,794 already paid by the defendants as employees' compensation. Interest will run on the general damages at 2% pa from writ to judgment, and on the special damages at 6% from the accident to the date of judgment. The interest calculation should reflect the defendants' monthly payments totalling $152,100 for two years after the accident, as well as the payment of the employees' compensation some 12 months ago, pursuant to the District Court order, in the sum of $450,304. If the interest figures cannot be agreed the parties have liberty to apply. Interest after judgment will be at the judgment rate and there will be a 7-day order nisi for costs to the plaintiff with a certificate for counsel.