LEUNG WAI HUNG v. KO WING NANG t/a LAP MAN SCAFOLDING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Decision on Assessment of Damages

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Introduction

1. The present action arises out of an industrial accident occurred on 26^th May 1994. The Plaintiff, in the course of employment by the Defendant as a scaffolding worker, fell down from a scaffold at the outer wall of a building in Yuen Long. As a result, he sustained injury in his right elbow. On 12^th June 1997, HH Judge Kwan awarded employees' compensation of $317,031.56 to the Plaintiff: see Employees' Compensation Case No.599 of 1995 ("The EC Case"). The present action was commenced on 11^th October 1996. In default of notice of intention to defend, interlocutory judgement was entered on 7^th November 1996 for damages to be assessed.

2. At the hearing before me, only the Plaintiff gave oral evidence. Most of his evidence was not challenged by the Defendant. All the documentary evidence relied upon by the Plaintiff him was admitted under S.47 of the Evidence Ordinance, a hearsay notice having been duly served on the Defendant previously. The Defendant did not give any evidence nor call any witness.

3. The Plaintiff impressed me to be a truthful and reliable witness. And his documentary evidence was not challenged by the Defendant at all. I therefore accept the evidence adduced by the Plaintiff as facts for the purposes of this assessment.

The Plaintiff's Personal Background & Brief Working History

4. The Plaintiff was born on 6^th September 1958 in China. He was 36 at the time of the accident and is now 39.

5. In China, he completed lower secondary education but he had not received any formal vocational training. He was a farmer before he came to Hong Kong in about 1980. Prior to 1993, he had worked in restaurants, garment factories and construction sites as a general worker. In about late 1993, through the introduction of a friend who was a scaffolding master, he joined the trade and began to work as a general scaffolding worker.

6. His daily wage initially was $350. It was subsequently increased to $450. He used to work on average 26 days a month prior to the accident.

Employment with the Defendant

7. On 21^st may 1994, the Plaintiff commenced his employment with the Defendant. His duties included passing the bamboo poles to or to collect them from the scaffolding master who was building/dismantling the scaffold. The daily wage was $450. The Defendant also agreed to pay for his breakfast and lunch. The daily value of these meals was about $80.

8. On 26^th May 1994, he fell from a height of about 15 to 16 feet from the ground while working on a scaffold outside a Yuen Long building.

The Plaintiff's Injury

9. There were altogether 4 medical reports and 2 X-ray reports on the Plaintiff's injury. Their findings are summarized below.

10. After the accident, the Plaintiff was first admitted to the A & E Department of Pok Oi Hospital and then transferred to Tuen Mun Hospital on the same day. Medical examination revealed a right elbow dislocation with a radial head fracture. Closed reduction of right elbow joint was performed on the day of admission. The radial head fracture was reduced and fixed by metal screw on 31^st May 1994. The Plaintiff was hospitalized until 6^th June 1994.

11. After his discharge, the Plaintiff received physiotherapy and occupational therapy at Tuen Mun Hospital until the end of September 1994. He was granted sick leave from 26^th May 1994 to 3^rd May 1995.

12. The Plaintiff now has limited right elbow movement, weakness in the right upper limb and numbness in the right little finger. He cannot fully flex or extend the right elbow and he has pain in doing so.

13. Physical examination reveals surgical scar of 7 cm long at lateral side of right elbow, several abrasion scars around elbow, flaccid right arm muscal and tenderness at radial region.

14. The Medical Assessment Board on 12^th October 1995 assessed the Plaintiff to have a loss in earning capacity of 4% for the pain, numbness, scarring and decreased pronation. Dr. Lam Kwong Chin in his report dated 17^th May 1996 assessed the total impairment of the Plaintiff's upper limb to be 26% or 16% the whole person. His prognosis is that "as the fracture is already 2 years in time, and already well united, the condition is regarded as permanent. Further medications and physiotherapy would have no help."

15. As a result of the limitation on the movement of the right limb, the Plaintiff could no longer work as a scaffolding worker. On this point, he was cross-examined by the Defendant. The Plaintiff now works as a delivery worker for one Evergreen Oils & Fats Ltd. The Defendant queried how he was able to discharge his duty if he had difficulty in lifting heavy objects. The Plaintiff explained that he had to maneuver his elbow in handling bamboo poles and that is no longer possible after the accident. As a delivery worker, he carries cans of oil but it does not require the same degree or extent of movement of his limb. Further, he could use both hands to do the job. I accept his explanation as I find it reasonable and credible. The Plaintiff also complained that he cannot swim as before the accident.

Pre-trial Loss of Earnings

16. It was the Plaintiff's evidence that prior to the accident, he earned $530 per day. His Counsel. Mr. Leung, however, referred me to the decision of the learned Judge in the EC Case and said that his daily wage was found to be $550. It is not clear from the judgement of the learned Judge how this figure of $550 was arrived at. However, Mr. Leung told me that he was also the Plaintiff's counsel in that matter and it was him who worked out the figure for the court. Apparently, the learned Judge accepted his calculation. If I accept it, according to the Revised Statement of Damages, the Plaintiff used to work about 25 days per month and his monthly income would be $550 x 25 = $13,750. Using the Plaintiff's own formula, his monthly income would be $530 x 26 = $13,780. The difference is $30. As I do not know on what basis the learned Judge accepted the figure of $550 and there is clear evidence from the Plaintiff that his daily wage was $530, I would prefer his evidence in this regard.

17. After the accident, the Plaintiff was unable to work as a scaffolding worker. I am satisfied that according to the statistics from the Census and Statistics department, if he continued to work as a scaffolding worker, he would earn about $877.5 per day at the time of assessment. His monthly income would be $22,815. The median monthly earning for the period between the date of accident and the date of assessment is therefore $(13,780 + 22,815) /2 = $18,297.5. The gross accrued loss of earnings as at the date of assessment is $18,297.5 x 47.5 months = $869,131.25.

18. After the accident, the Plaintiff was granted sick leave from 26^th may 1994 to 3^rd May 1995, a total of 343 days. He resumed working as a delivery work in May 1995 shortly after the expiry of his sick leave. He earned a total of $267,941.1 up to January 1997. According to the Plaintiff, he earns about $9,000 per month. Again, Mr. Leung asked me to differ from this and accept $10,000, the amount stated in the Revised Statement of Damages. However, it can be seen from his wages receipts that his income fluctuates from month to month. The average over the period between May 1995 and January 1997 is slightly less than $9,000. Accordingly, I accept $9,000 as the Plaintiff's monthly income. His actual income since the accident to the date of assessment is $267,941.1 + ($9,000 x 3.5 months) = $299,441.1.

19. The net pre-trial loss of earnings is therefore $869,131.25 - $299,441.1 = $569,690.15.

Loss of Future Earnings

20. The Plaintiff was 36 on the date of accident and is now 39. Mr. Leung referred to Ng Man Kwong v. Kwan Siu Keung [1989] 1 HKC 460; Wong Hung Fan v. Tse Hon Shing 2 HKC 285; Chun Sung Yong v. Au Sze Hung & Another HCA No.A118 of 90; Mak Yiu Keung v. Ho Cheung Kat HCA No.A2413 of 1991 and Lam Chi Fat v. So Kam Sui & Another HCPI No.167 of 1994. He asked me to adopt a multiplier of 12. That I accept. The loss of future earnings is therefore $(22,815 - 9,000) x 12 x 12 =$1,989,360.

Pain, Suffering, and Loss of Amenities ("PSLA")

21. In the Revised Statement of Damages, the sum claimed under this head is $200,000. Mr. Leung asked me to increase it to $250,000. To justify this, he relies on Yau Shing Chiu v. Koo Tsui Koon & Others HCA No.A3221 of 1992; Lau Che Ping v. Hoi Kong Ironworks Godown Co. Ltd [1988] 2 HKLR 650; Cheung Fat Tim v. Wong Siu Ming (t/a Kee Construction Co.) & Another HCA No.A5079 of 1991; Attorney General v. Chun Yat Nam [1995] 1 HKC 218 and Chan Pui Ki v. Leung & Another [1995] HKY 534. I am satisfied that the injury suffered by the Plaintiff falls below the 'serious injury' category as set out in Lee Ting-lam v. Leung Kam-ming [1908] HKLR 657. I take into account, however, the fact that the range of damages for PSLA has been adjusted upwards in the recent decision of Chan Pui Ki, supra. Having considered the extent of injuries and the permanent disabilities suffered, and the subsequent treatments undertaken, I find the amount of $250,000 appropriate and award it accordingly.

Other Special Damages

22. It was a finding by the learned Judge in the EC Case that $1,026 for medical expenses had been incurred. The Plaintiff had incurred travelling expenses of $201 for the trips to and from the hospital. He also incurred $700 and $7000 for pain killing ointment, herbal plaster and liquor, and tonic food respectively. There is however no receipt in support. As to the expenses for pain killing ointment, I am satisfied that $700 is reasonable and accept it. Mr. Leung accepted $5000 for tonic food. I find this concession reasonable and reduce the expenses for tonic food accordingly.

Employees' Compensation

23. The Plaintiff had been awarded Employees Compensation of $317,031.56. That has to be deducted from the award that I am going to make.

Summary

24. The breakdown of the award is as follows:

Interests and Costs

25. I award interest on PSLA at 2% per annum from the date of writ to the date of assessment and interest on Special Damages at 6.45% per annum from the date of accident to the date of assessment.

26. The Plaintiff shall have costs of these proceedings to be taxed if not agreed and his own costs to be taxed according to the Legal Aid Regulations.