IP AH CHIU v. WONG CHUN FAI AND ANOTHER

1984, No. 7100

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Whilst riding his motorbike on the morning of 2nd November 1982, the plaintiff was struck by a police vehicle driven by the first defendant. He was injured and admitted to the Queen Mary Hospital.

2. The writ was issued on 17th October 1984 and interlocutory judgment was entered by consent against both defendants on 27th June 1985. At the commencement of the hearing counsel for the plaintiff sought leave to file an amended statement of claim. This was granted without objection.

3. There was a conflict in the evidence as to the extent of the injuries attributable to the accident. Apart from minor lacerations, the injuries considered by Dr. Wedderburn in his report, Exhibit P. 2, and by Dr. Mao in his evidence and report, Exhibit P. 3, relate to the left ankle and the right shoulder. There is no dispute as to the ankle, which sustained a fractured fibula, but the dislocation of the right shoulder was not accepted by the defendants' medical witness as originating from the accident.

4. This witness, Dr. Ngai, also wrote the report produced by the plaintiff under its hearsay notice as Exhibit P. l. In both his report and his oral testimony Dr. Ngai referred to his conclusions derived from hospital records which were not before the court. Questioned by the court the doctor admitted that he could not comment from his own records as he only examined the plaintiff 1¹/₂ years after the accident. He said his only information prior to that came from earlier reports.

5. Insofar as these earlier reports were not produced to the court, I must disregard as hearsay Dr. Ngai's evidence of his conclusions therefrom. This ruling also covers the first two lines of the second paragraph of his report Exhibit P. 1.

6. The only original evidence from Dr. Ngai as to the plaintiff having a dislocated shoulder prior to the accident was when he said -

"On this examination on 19th June 1984 the patient did tell me that he had a dislocation prior to the November 1982 accident."

The doctor concluded from this that the accident did not cause the subsequent dislocations. He went on to say that this assumed preexisting injury would not even have been aggravated by the accident.

7. On this same assumption of a pre-existing injury, Dr. Mao took a different view of the likelihood of aggravation, when he said in cross-examination -

"No doubt there would be a high degree of aggravation as after the accident he had three dislocations and then the operation and then some other dislocations culminating in no dislocations in the last 9 months, showing that there had been some success from the operation."

8. Dealing with the question of pre-accident dislocation the plaintiff denied it, and denied equally that he had advised Dr. Ngai of a history of dislocations prior to November 1982. He said that his pre-accident admission to Queen Mary Hospital concerned an assault which affected his eye and that he did not suffer shoulder dislocation prior to the accident. He added that he saw a lot of doctors and that he did not remember Dr. Ngai in particular.

9. In evaluating this conflict of evidence, I note that the plaintiff had an operation on his dislocated shoulder on 28th April 1983. Dr. Mao described it as a "Bankart operation", which is undertaken to restore the integrity of a damaged "glenoid rim" of fibrous tissue which extends the retaining capacity of the shoulder socket in relation to the upper end of the arm. It is the detachment of this fibrous rim which gives rise to a lessened retaining capacity and hence to dislocation.

10. I note also that this operation and the plaintiff's subsequent dislocations are discussed in the reports of all three doctors. Dr. Ngai himself, in both his evidence and in Exhibit P.1, speaks of four or five dislocations to the plaintiff's arm subsequent to the operation. He also mentions the possibility of re-operation on the plaintiff's right shoulder, illustrating an evidently continuing problem in that area. Dr. Ngai concludes in Exhibit P. 1 by saying that the plaintiff agreed to the further shoulder operation, but that he could not be fitted in at the time of his admission and was discharged home on 25th June 1984.

11. There is therefore ample evidence of a shoulder dislocation of serious proportions after the accident. This condition warranted a substantial operation, despite which it continued and gave rise to the need for a further operation.

12. Of the shoulder condition ante-dating the accident there is only Dr. Ngai's evidence that the plaintiff mentioned this to him. There is no documentary evidence whatsoever of treatment for such a condition prior to the accident, and the plaintiff testifies that he did not say this to Dr. Ngai.

13. Bearing in mind the ample evidence of the post-accident condition of the shoulder and the flimsy evidence of its pre-accident existence, I am driven to conclude either that Dr. Ngai's recollection of what the plaintiff said is faulty, or that he misunderstood what was said at the outset. The conversation between them took place some 19½ months after the accident and such comments as the plaintiff may have made as to previous dislocations may well have referred to the post-accident period.

14. In all the circumstances I therefore accept as proved that the plaintiff's dislocation of the right shoulder was directly attributable to the accident on 2nd November 1982.

15. I turn to the question of general damages for pain suffering and loss of amenities. In the light of my finding as to the causation of the shoulder injury, Dr. Ngai's reservations on Dr. Mao's report fall away.

16. The shoulder injury has greatly improved according to the plaintiff, despite his choosing not to have the second operation. In evidence he described the present condition of his shoulder as "very good".

17. In his report of 6th June 1984, Dr. Wedderburn describes the plaintiff's ankle injury, its treatment and his residual impairment. I quote the relevant passage -

"        The above was travelling to work on a motorbike on 2.11.82 when he had an accident and was admitted to the Queen Mary Hospital. He suffered a Potts fracture of the left ankle according to the hospital report but a Potts fracture is classically described as a fractured dislocation of the ankle but in fact his injury was a fracture of the fibula, the smaller of the two bones in the lower leg on the outer side of the leg and the fracture was 3 inches above the ankle joint.

 

        He probably had a sprain of the ankle but is unlikely to have had a dislocation.   In a Potts fracture the tibia is also fractured and usually secured by a screw or bone screws. He was operated on but there was no incision to expose the tibia but a 6 inch scar on the lateral side of the lower leg to expose the fibula and the fracture was secured by a bone plate and four bone screws. The closest screw to the ankle joint is one inch above the joint.

        A plaster cast was not applied which also leads me to believe that the fracture was simpler than stated in the hospital report and he was in hospital for two months including a period in Sandy Bay Convalescent Hospital. After leaving hospital he used one stick for a few days and had physiotherapy three times a week for three weeks and his sick leave continued until two months after leaving hospital. He had been employed by a French firm engaged in work on the MTR Tunnels. His work was that of an electrician and he was qualified having completed his apprenticeship. On examination there is a 6 inch well healed scar of operation on the lateral side of the leg and very slight swelling of the ankle joint which can only be ascertained on comparison with the right. On the right he has a much greater degree of dorsi  flexion, namely 35^o .

 

        Plantar flexion is normal. On the left dorsi flexion is 20^o, considered normal but there is a loss of 15^o from his pre-accident movement. He has a very slight loss of the movement of inversion, that is pointing the foot inwards at the ankle, on the right he has 30^o, on the left 20^o but again 20^o is considered to be average. He has no complaints regarding the ankle and no difficulty with walking. His impairment from loss of ankle joint movement in comparison with the right is a 3% impairment of the leg which is a 1% impairment of the Wholeman. He is on the waiting list for admission for removal of the metal from the leg, he would only be in hospital 3 days, have the stitches removed after ten and in a normal case be given a total of two weeks sick leave."

Dorsi flexion describes the degree of upwards flexibility of a foot in relation to a leg and in the same plane from its normal horizontal position. Plantar flexion describes the same phenomemon downwards from the horizontal.

18. Dr. Mao described the plaintiff as suffering a 3% disability of the wholeman for all injuries, ascribing only 1% to the possibility of future dislocation. This translated into an earnings related disability at a maximum of 10%. He said the recovery was good, and that there had not been a case ofdislocation for 9 months. The plaintiff himself frankly admitted that both his ankle. and his. shoulder seemed in good shape.

19. On the assumption, which has now eventuated, that damages under this head would include the plaintiff's shoulder injury, there is little between the figures suggested by the respective counsel. Bearing in mind these submissions and a number of cases drawn to my attention, I am awarding the sum of $37,000.00 for pain, suffering and loss of amenities.

20. In seeking to establish a daily rate of earnings as a benchmark for plaintiff's post-accident losses, his counsel relied on wage cards produced under hearsay notice as Exhibit P. 12. These cards cover the period from 1st July 1982 until 29th October that year, when the plaintiff was employed as an electrician by Wo On Engineering Company.

21. Using the monthly earnings against the number of days worked per month, Mr. Pennicott for the plaintiff reaches an average daily rate of $150.00. Whilst this is mathematically accurate, once rounded up to the next whole number, it is noteworthy that the number of days worked in August and September were only 9½ and 12½ respectively. It is open to question that the plaintiff should be allowed to apply a high average daily rate in assessing his lost earnings when that rate is itself reached by working far less than full time on a monthly basis. To illustrate the dubious foundation of this principle, a given plaintiff working 18 hours a day for only seven days a month, would be better placed than another working 12 hours a day for a full 26-day month. The essence of the calculation is to put a premium on idleness.

22. No doubt with this in mind, Miss Au for the Attorney General sought to apply an average monthly rate in assessing the plaintiff's lost earnings. This would of course achieve a far lower figure over the same period of time than the method adopted by Mr. Pennicott. The issue is further complicated, this time in the plaintiff's favour, by the fact that for the four days immediately prior to the accident, when he was working for the company Dragages, the plaintiff earned at the higher rate of $220.27 per day.

23. Bearing in mind all these factors I decline to allow the plaintiff the full benefit of a high average daily rate based on only one full month in the four selected for the calculation. Although a young man may take time off, the plaintiff has only worked 67 days out of approximately 100 in the period considered.

24. Miss Au indicated that she accepted the figures in the wage cards and I accept that a daily rate is more suitable than a monthly one when assessing the losses of a skilled tradesman. In order therefore to achieve approximate justice in the absence of a lengthier sampling of pre-accident working pattern, I am arbitrarily reducing the daily rate submitted by Mr. Pennicott to $140.00 per day. Applying that figure to a 26-day working month, a loss of $3,640.00 per month will be the basis for calculation.

25. The plaintiff seeks compensation for a total loss of wages for 20 months from the accident until 30th June 1984. His sick leave certificates expired on 4th March 1983, whereafter he had his operation on 28th April 1983, followed by his being kept immobilised for three weeks. There were 4 or 5 post-operative dislocations according to Dr. Ngai.

26. In regard to his not working for a further year the plaintiff said. -

"The reason I didn't start work until June 1984 was that I couldn't find a job and besides I didn't now I could cope with my work. My work is physically heavy, I have to climb heights and stoop down. Initially when I raised my arm after the accidents my shoulder would dislocate."

27. I accept that the plaintiff needed time to recuperate from his operations but I am not satisfied that he has suffered a total loss for this whole of this period.

28. The original statement of claim sought compensation for "wage loss at $150.00 per day for 4 months", that document was dated in October 1984, when the position should have clarified as to the early post-accident loss. The amended claim filed at the start of the hearing reflects the 20 months new advanced as the period for total wage loss. The position is complicated by an affidavit filed in an application for interim payment in April 1985, in which plaintiff's legal aid counsel deposed that -

"The plaintiff was unable to return to his former employment and 6 months after the accident started doing casual work earning approximately $700.00 per month."

The figure in this affidavit tallies exactly with that mentioned by Dr. Wedderburn in his report of 6th June 1984, when he says -

"When he is helping his brother with the van and loading goods he has to be very careful. His brother gives him about $700.00 a month."

This is information which the doctor could only have received from the plaintiff himself.

29. I am driven by these divergent indications to conclude that the plaintiff is less than frank in claiming a total less of earnings for 20 months post-accident. His evidence on the subject was  vague and evasive. He conceded he worked for his brother as a driver's mate for an undefined period, but claimed that his brother gave him expenses only.

30. I find that the plaintiff has failed to prove a total loss of earnings for all the 20-month period claimed. I accept that up to the end of June 1983 he was recuperating either from the accident or from the operation in April that year. Thereafter I am assuming monthly earnings  of $700.00 for the remainder of that period up to the end of June 1984.

31. For the period from the accident to the end of June 1983, eight months, a total loss of earnings is awarded. Based on the monthly loss of $3,640.00, this figure is therefore $29,120.00.

32. From the and of June 1983 to the end of June 1984 I shall apply the assumed monthly earnings of $700.00 in reduction of the total loss of earnings claimed. Against this I shall however apply a 5% assumed increment in wage rate as from the beginning of November 1983, being the approximate anniversary of the accident.

33. The figures for this 12-month period are therefore -

June to October 1983            - 4 x 3,640 = $14,560.00.

November 1983 to June 1984 - 8 x 3,822 = $30,576.00.

The total of which gives $45,136.00, from which is deducted $700.00 a month for 12 months, $8,400.00. The award for this period is accordingly $36,736.00.

34. The next period in the plaintiff's post-accident working life was from 1st July 1984 to 12th October 1984 when he started a full-time job.  For an account of this period of rougly 3.5 months I turn to the plaintiff's evidence -

"I started work again on 1st July 1984 as an electrician. It was a casual job which lasted less than 10 days. I earned between $700.00 and $1,000,00 for that period. On 12th October 1984 I commenced work with K.M. Luk engineering. Between the casual work and starting with K.M. Luk I don't remember doing any other work. I think I went with my elder brother on a lorry or van as his driver's mate. This was for 2 - 3 weeks just before working for K.M. Luk. My brother only gave me travelling expenses. His work was very heavy and I couldn't handle it, I only watched his car for him. He didn't work every day - he just placed his vehicle in the street waiting for people to call. He gave me a few hundred dollars as travelling expenses."

35. From this evidence and from subsequent cross-examination the plaintiff emerges as an unsatisfactory witness. In answer to several questions, he was unable to remember dates when he worked or even if he worked at all over a given period. He commenced working for K.M. Luk on 12th October 1984 when he was, on his own testimony, doing normal electrician's work. Despite this, he says he hardly worked for the 3½ months preceding and gives no adequate explanation. There is no reasonable inference that he was still unable to work.

36. For this period of 3½ months I find that the plaintiff has failed to prove both that he did not, and that he could not, work other than at the 10-day casual employment he has admitted. I accordingly decline to make any award for this period.

37. From 12th October 1984 until 30th April 1986 the plaintiff worked as an electrician with the company K.M. Luk and Engineers Ltd. His dismissal was due to redundancy and had nothing to do with any physical disability. This conclusion appears in Exhibit P. 1, being a letter from the administrator of the company produced amongst other documents under the defendant's hearsay notice.

38. The administrator was Miss Cheng Wai Kuen, who also gave evidence for the defendant which confirmed that the nature of the dismissal had no relevance to this assessment.

39. For the period of the plaintiff's employment with K.M. Luk and Engineers Ltd. Mr. Pennicott has calculated that he earned at an average daily rate of $131.50. This has been reached by dividing the total earnings for the period by the number of days worked and I accept it as a basis for calculating earnings lost in terms of the pre-accident potential. In view of the passage of two years from the accident to the start of the relevant period I apply an assumed 10% escalation in the plaintiff's daily wage rate from the accepted pre-accident rate of $140.00; this will give a daily figure of $154.00.

40. Compensation for this period of 481 working days will therefore be calculated on the formula of (481 x 154) - (481 x 131.5), which gives a sum awarded of $10,823.00.

41. For the period from the plaintiff's dismissal up to date of trial Mr. Pennicott submitted that the same rate of loss should apply. He concedes that the plaintiff cannot claim a total loss of earnings for that period as his dismissal was not due to disability stemming from the accident. The claim is therefore based on an assumed shortfall in daily wage rate projected forward from dismissal up to date of trial.

42. I find no logic or probability in this argument. Total loss is not claimed and there is no evidence of mitigation of damages for the period. I cannot therefore award a partial loss on the assumption that the factors obtaining prior to dismissal would have continued. I make no award for this period.

43. I turn to post-trial loss of earnings, in regard to which counsel has urged me to apply a multiplier/multiplicand approach. However, the lack of reliable pattern in the plaintiff's working life, both before and after the accident forces me to decline this approach. Instead I favour the award of a global sum as more appropriate to the plaintiff's circumstances.

44. This approach reflects the plaintiff's likely disadvantage in the labour market and I accept that there will be a small residual disability. Dr. Mao suggests a maximum earnings related disability of 10%, and the plaintiff himself testified that his recovery has been good. I do however bear in mind that he has a long working life ahead of him. I find the sum of $40,000.00 to be appropriate and award this in respect of loss of future earnings.

45. Special damages as set out in items (i) to (x) of the particulars in the amended statement of claim have been agreed, and the sum of $3,924.00 is awarded in that respect.

SUMMARY

46. An interim payment of $20,000.00 has been made to the Director of Legal Aid and the amount now payable will abate to that extent.

47. The award of general damages will carry interest at 2% per annum from the date of the writ to the date of this assessment. The special damages will attract interest at the rate of 3.5% per annum from the date of the accident. The award for loss of earning capacity will not carry interest.

48. Costs are awarded to the plaintiff against the two defendants and the plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.