DCPI 2309/2017
[2021] HKDC 160
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO 2309 OF 2017
________________________
BETWEEN
LEUNG CHI KIN (梁子健)
Plaintiff
and
HUNG KA FAI trading as SIGN SQUARE
Defendant
________________________
Before: Master Matthew Leung in Court
Date of Hearing: 19 January 2021
Date of Assessment of Damages: 1 March 2021
________________________
ASSESSMENT OF DAMAGES
________________________
1. This is an assessment of the Plaintiff's damages in a personal injury case.
2. The Plaintiff was employed by the Defendant as an interior decoration worker since August 2014. On 22 October 2014, when the Plaintiff was assigned to work in a flat and he stood on a wooden ladder to perform the remedial painting work, the hinged string in the middle of the ladder was broken. The Plaintiff fell onto the ground thereby sustaining injuries over his neck, chest, knee and left big toe.
3. It was the Plaintiff’s contention that the accident was caused by the negligence and breach of the contract of employment / statutory duty on the part of the Defendant.
Background of the proceedings
4. The Writ of Summons was issued on 18 October 2017. Interlocutory judgment was entered against the Defendant on 22 March 2019 leaving damages to be assessed.
5. On 2 September 2020, the Court set down this action for assessment of damages for 19 January 2021. On 28 October 2020, the Plaintiff issued the Notice of Appointment for Assessment of Damages. The Notice was served on the Defendant on 28 October 2020 by post at the Defendant’s addresses stated on the writ. Affirmation of service was filed on 5 November 2020. The Court had also on 30 October 2020 sent a notice of hearing for the assessment of damages to the Defendant.
6. The Defendant did not attend the assessment hearing. I was satisfied that notice of the assessment hearing had been duly given to the Defendant. It was the Defendant’s choice not to attend the assessment hearing. I proceeded with the assessment of damages in this case in the absence of the Defendant.
The Plaintiff’s case
7. The Plaintiff was born in 1979 and was aged 35 at the time of the accident on 22 October 2014.
8. After the accident, the Plaintiff was sent to the Accident and Emergency Department of Queen Elizabeth Hospital for treatment. Medical examination showed that the Plaintiff suffered left chest tenderness, deformed left big toe, abrasion and swelling of left knee and abrasion on right knee. The Plaintiff was diagnosed to have suffered from fracture dislocation of left big toe, sprain neck, chest and knee contusion.
9. The Plaintiff was transferred to the Orthopaedic Department of the Hospital for management of his left big toe injury on the same day. X-ray showed big toe interphalangeal joint dislocation with dorsal displacement. 0.2 cm calcific foci was noted in the lateral and medial aspect of base of distal phalanx of left big toe. Rigid hallus splint was given for protection. Ankle-foot orthosis with walking sandal was provided.
10. On 2 September 2020, the Court directed that expert medical evidence was limited to one orthopaedic expert for each party, and the medical report made by Dr Lau Hoi Kuen for the Plaintiff dated 29 December 2016 be adduced as evidence without calling the maker.
11. According to the Medical Report, Dr Lau interviewed the Plaintiff on 9 December 2016, more than 2 years after the accident. The Plaintiff indicated to Dr Lau that he recovered well from the soft tissue injury to his neck, chest and knees but was still suffering from significant pain over his left toe such that he had difficulty in walking or standing for long period of time. The pain become very severe with heavy manual lifting, squatting, and climbing on ladder. Dr Lau found that the main cause of the persistent pain over his left foot was due to plantar fasciitis. The pain was found most severe when the metatarsal phalangeal joints of the big toe went into maximal dorsiflexion. The Plaintiff told Dr Lau that he only attended physiotherapy once because of the need to start working as a light goods vehicle driver. Dr Lau commented the Plaintiff to receive intensive course of physiotherapy and anti-inflammatory medication.
12. Dr Lau opined that the Plaintiff did have genuine problem of returning to decoration work, but he should be able to return to work as a decoration worker after receiving proper treatment. Dr Lau assessed that the Plaintiff had suffered 3% of permanent impairment of the whole person.
13. The Plaintiff himself was the only person who testified at the hearing. He adopted as evidence in chief his witness statement filed herein which was made in Chinese and signed by the Plaintiff himself.
14. The Plaintiff stated in the Witness Statement that he worked as an interior decoration worker with monthly salary of HK$20,000 on average.
15. The Plaintiff was granted sick leave for two periods of time, namely (i) from 22 October 2014 to 12 February 2015, and (ii) from 28 May 2016 to 30 May 2016, i.e. a total of 117 days.
16. The Plaintiff attempted to resume the decoration work after the sick leave period but found that he could not cope with the work because of the pain. From May to December 2015, the Plaintiff sought intermittent acupuncture and bonesetter therapy in Mainland China. In his oral testimony, the Plaintiff added that he would return to China once a week for treatment during that period. For each trip, he would return to Hong Kong on the same day. He remained unemployed during that period.
17. From February to November 2016, the Plaintiff was employed as a light goods vehicle driver earning a sum of HK$13,708 per month. The Plaintiff confirmed that he was advised by Queen Elizabeth Hospital in June 2016 to receive physiotherapy treatment but it was not until Mid-2017 that he received the treatment.
18. From January 2017 to March 2017, the Plaintiff earned a sum of HK$15,000 per month as a private car driver.
19. From April to December 2017, the Plaintiff was employed as a truck driver on a casual basis earning a daily wage of HK$600. The Plaintiff claimed that on average he earned a monthly sum of HK$6,000.00.
20. From January 2018 onwards, the Plaintiff has been working as a chauffeur earning a monthly sum of HK$18,000.00.
Factual findings
21. The Plaintiff’s testimony is not subject to any challenge as the Defendant has not been present in these proceedings. The Plaintiff gave testimony in a clear and straightforward manner. I accept his evidence. Separately, I also accept Dr Lau’s evidence in his Expert Medical Report.
22. Based on these factual findings, I now turn to each head of claim.
PSLA
23. The Plaintiff claims a sum of HK$200,000 for damages for PSLA in the Statement of Damages. In support of the claim, the Solicitors for the Plaintiff referred me to the following cases in the Written Opening:
1) Cheung Mau Fa v. Regent Construction Co Ltd
2) Lam Cheuk Leung v. Erawan Co Ltd & Others
3) Tsang Tsun Keung v. Ko Wang International Trading Ltd
4) Ho For Sang v. Lau Sun Choi & another
24. Cheung Mau Fa Tsang Tsun Keung Lam Cheuk Leung Ho For Sang
25. Upon the Court’s request, the Plaintiff’s Solicitors filed a Supplemental Written Submissions on 2 February 2021, in which, further cases on PSLA were submitted for the Court’s consideration. Some of the cases referred to therein are more relevant and I set out the details below.
26. In Wong Siu Lui v. Lau Tak Chi
27. In Lee Siu Keung v. 黃兆強 th metatarsal of the left foot. The Plaintiff still complained of persistent pain on his left foot after prolonged walking at the time of the assessment of damages. PSLA was assessed at $140,000.
28. In Sin Fu Yau v. Cheung Kwok Leung Keith st toe and crack at the base of the distal phalanx. PSLA was assessed at $160,000.
29. I remind myself that each case is different and must be determined on its own facts. After due consideration of the authorities, and having considered, inter alia , the nature of the plaintiff's injuries, the duration of his healing process, and the pain he continued to suffer on his big toe, I assess that damages for PSLA should be $150,000 .
Pre-trial Loss of Earnings
30. In the Statement of Damages, the Plaintiff claims a total sum of $424,851.51 under this head, the breakdown of which is as follows:
1) Sick leave periods from 22 October 2014 to 12 February 2015, and from 28 May 2016 to 30 May 2016: $20,000 x 12 x 117/365 = $76,931.51.
2) From June to December 2015, when the Plaintiff sought intermittent acupuncture and bonesetter therapy in Mainland China, the Plaintiff remained unemployed during the period. The Plaintiff claims a lump sum equivalent to 3 months’ pre-accident salary: $20,000 x 3 months = $60,000.
3) From February to November 2016, the Plaintiff worked as a light goods vehicle driver earning a monthly sum of HK$13,708.00. The Plaintiff claims the differences as follows: ($20,000 – $13,708.00) x 10 months = $62,920.00.
4) From January to March 2017, the Plaintiff was employed as a private car driver earning a monthly sum of $15,000. The loss would be ($20,000 – $15,000) x 3 months = $15,000.
5) From April 2017 to June 2018, the Plaintiff worked as a truck driver earning an average of $6,000 per month. The loss would be ($20,000 – $6,000) x 15 months = $210,000.
31. As mentioned above, the Plaintiff confirmed in his Witness Statement that since January 2018 he worked as a chauffeur earning a monthly sum of $18,000. However, that has not been reflected in any Revised Statement of Damages. It was not until the Written Opening that the Solicitors for the Plaintiff revised the claim for pre-trial loss after January 2018 as follows:
1) From April 2017 to December 2017:($20,000 – $6,000) x 9 months = $126,000.
2) From January 2018 to date: ($20,000 – $18,000) x 36 months = $72,000
32. In my judgment, firstly, I accept the Plaintiff’s evidence that he earned a monthly sum of $20,000 prior to the accident.
33. Secondly, the sick leave period (i.e. from 22 October 2014 to 12 February 2015, and from 28 May 2016 to 30 May 2016) was supported by sick leave certificates. The pre-trial loss of $76,931.51 should be allowed in full.
34. Thirdly, for the period from June to December 2015, the Plaintiff’s testimony was that he was unemployed when he would return to China to receive acupuncture and bonesetter therapy once a week during that period. He produced a bundle of sick leave certificates and prescription forms apparently issued by 深圳市博濟門診部. There is no evidence as to whether those documents were issued by a hospital or by a medical practitioner. Having said that, it is understandable that when the Plaintiff found himself unable to resume the decoration work after the sick leave period, he would turn to alternative treatment hoping that the pain could be improved. I would allow the Plaintiff’s claims for a lump sum equivalent to 3 months’ pre-accident salary: $20,000 x 3 months = $60,000.
35. Fourthly, for the claim for pre-trial loss after February 2016, I note that Dr Lau Hoi Kuen did not specifically comment on whether the sick leave period already granted to the Plaintiff was reasonable in the Medical Report. However, Dr Lau opined that the Plaintiff should have received an intensive course of physiotherapy and anti-inflammatory medication. The treatment course was estimated to last about 3 months. Dr Lau said further that the Plaintiff should be able to return to work as a decoration worker after receiving proper treatment as suggested, although the Plaintiff would still experience some reduction in efficiency at work in the long run. It would be best for the Plaintiff to be exempted from heavy manual lifting for the first 2 months after his return to work as a decoration worker. He commented that the Plaintiff had no problem in working as a chauffeur.
36. The Plaintiff admitted that he had been advised by Queen Elizabeth Hospital to receive physiotherapy treatment back in June 2016 (i.e. 6 months prior to Dr Lau’s Report), but he failed to receive those treatments until Mid-2017.
37. The Plaintiff stated in his Witness Statement that after the sick leave period, he did try to return to the decoration work, but he could not cope with it because of the pain over his big toe. He was silent whether in his Witness Statement or in his oral testimony as to whether he had attempted to return to work as a decoration worker after completion of the physiotherapy treatment after Mid-2017. As a matter of fact, the Plaintiff started working as a driver since February 2016.
38. Having considered all the evidence, I would accept the expert evidence of Dr Lau in this regard. Dr Lau interviewed the Plaintiff on 9 December 2016 and the Report was made on 29 December 2016. Assuming that the Plaintiff did follow Dr Lau’s opinion to receive physiotherapy treatment for three months, and having taken into account Dr Lau’s opinion that the Plaintiff should be exempted from heavy manual lifting for the first 2 months after his return to work as a decoration worker, the Plaintiff should have been able to resume the pre-accident work in June 2017. In the circumstances, any pre-trial loss after June 2017 should not be allowed. The pre-trial loss from February 2016 to June 2017 should be assessed as follows:
1) From February to November 2016: ($20,000 – $13,708.00) x 10 months = $62,920.00.
2) From January to March 2017: ($20,000 – $15,000) x 3 months = $15,000.
3) From April 2017 to June 2017:($20,000 – $6,000) x 3 months = $42,000.
39. Total amount of damages for pre-trial loss: HK$76,931.51 + $60,000 + $62,920.00 + $15,000 + $42,000 = $256,851.51 .
Loss of earning capacity
40. The Plaintiff claims a lump sum of HK$50,000 under this head.
41. In the case of Moeliker v A Reyrolle and Co Ltd
“This head of damage [loss of earning capacity] generally arises where plaintiff is, at the time of trial, in employment, but there is a risk that he may lose this employment at some time in the future and may then, as a result of injury, be at a disadvantage in getting another job or equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of trial. Lord Denning MR said in Fairley v John Thompson (Design and Contracting Division) Ltd : ‘It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation of loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.’”
42. I accept that the Plaintiff would be at a disadvantage in getting another job if he may lose his employment at some time in the future. A sum of $50,000 should be awarded hereunder.
Loss of MPF contributions
43. Loss of MPF is assessed as follows: $256,851.51 x 5% = $12,842.58 .
Special damages
44. The Plaintiff claims the following under this head:
(a)
Medical expenses
$930
(b)
Travelling expenses (HK$40 x 10 trips to Queen Elizabeth Hospital)
$400
(c)
Tonic and nourishing food
$2,000
$3,330
45. The Plaintiff claims a sum of $2,000 for tonic food, but neither a receipt nor any documentary evidence is produced in support. However, the court may award a reasonable sum for food even no documentary proof has been produced: see Tang Yuet Yi, a minor by Tiu Kwai King v. Leung Man Chow [2018] HKDC 985 .
46. I consider that the amount of the special damages is reasonable and should be allowed in full.
Employees’ Compensation
47. Credit should be given to a sum of $107,275 being the employees’ compensation arising out of the accident.
Summary
48. The damages awarded are summarised below:
(a)
PSLA
$150,000
(b)
Pre-trial loss of earnings
$256,851.51
(c)
Loss of earning capacity
$50,000
(d)
Pre-trial loss of MPF
$12,842.58
(e)
Special damages
$3,330
$473,024.09
Less: employees’ compensation
$107,275
$365,749.09
49. The Defendant is ordered to pay the Plaintiff a sum of $365,749.09 plus interest. Interest will be awarded at 2% per annum on damages for PSLA from the date of the writ. Interest on other special damages will be awarded at half the judgment rate from the date of the incident. The Plaintiff's solicitors are directed to calculate the amount of interest to be included in the judgment.
50. There will be an order nisi that the Defendant do pay the Plaintiff’s costs of the assessment of damages to be taxed if not agreed.
(Matthew Leung)
Master of District Court
Mr Leung Fu Hang of Messrs. Wong & Co, for the Plaintiff
The Defendant is not represented and did not appear