Yeung Sze v. Win Art Design & Decoration Co. Ltd.

HCPI 6/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 6 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of personal injuries compensation. Interlocutory judgment on liability was granted to the plaintiff on 14 February 2000 for damages to be assessed.

Personal Particulars of the Plaintiff

2. The plaintiff was born in 1948 in the mainland. He has received primary education and was able to read and write Chinese. He is married and has 3 children aged 14, 24 and 25 respectively. He came to Hong Kong in 1964 and worked as a steel bender before he took up plastering work in the decoration and construction industry.

Employment of the Plaintiff

3. Between the years of 1996 and 1997 the plaintiff worked in the capacity of a sub-contractor in decoration works. As a sub-contractor the plaintiff paid his workers wages and meals during tea break. After footing all the financial outlay, the plaintiff found his earnings in his supervisory capacity not too profitable. Hence in addition to his supervisory role he often assumed hand on work so as to enable himself to take a share of the daily wages of a worker. When he worked as a sub-contractor cum worker he was paid a daily sum of HK$950 to HK$1,000.

4. When the project contracted by the defendant was of a small scale, the plaintiff would be employed by the defendant as a salaried employee. When working as a salaried worker, the plaintiff received a daily wage of HK$850 from the defendant. In the year of 1997 the plaintiff had been employed by the defendant as a salaried employee in the East Ocean Centre project for 2 days. In November 1997, at the time of the present accident, the plaintiff was again employed by the defendant as a salaried employee to do plastering work at a residential flat in Tuen Mun for 8 days, between 8 November and 15 November and on 19 November.

5. The plaintiff testified that he worked on average 24 days a month. Thus he worked 288 days a year, out of which period he worked as an employee of the defendant for 10 days. For the rest of 278 days he would be working in the capacity of a sub-contractor.

The Accident and the plaintiff's Injuries

6. On 15 November 1997 the plaintiff was laying tiles in the bathroom of a residential flat in Tuen Mun. He stood with one of his feet on the toilet seat and the other on a water tap to gain balance so as to reach higher for his plastering work. The water tap suddenly broke. The plaintiff lost his balance, fell for about 2 feet and landed on the ground. After the fall the plaintiff sat on the toilet seat for some time to take a rest and went home afterwards.

7. Later the plaintiff felt pain on his back. He went to the accident and emergency department of the United Christian Hospital the following day to seek medical treatment. He was treated and discharged on the same day and was granted 3 days of sick leave. The doctor's findings on him was "buttock/lower back contusion".

8. The plaintiff felt better after his rest and returned to work for the defendant on 19 November 1997. After he finished the plastering work on 19 November 1997 the plaintiff again felt pain on his back.

9. On 20 November 1997 the plaintiff went back to the United Christian Hospital to seek further treatment. Medical practitioners at the Accident & Emergency Department suspected the plaintiff to be suffering from traumatic spondylolisthesis at his lumbar spine and referred him to the orthopaedic unit.

10. Dr. Choi of the Department of Orthopaedics & Traumatology Unit of the hospital examined the plaintiff and found no abnormality on his lumbar spine after examining the plaintiff's X-ray film. The plaintiff was found to have no lower limb neurological deficit. He was kept at the United Christian Hospital for 3 days, given physiotherapy treatment and was discharged on 22 November 1997. The medical notes recorded on 22 November 1997 in respect of the plaintiff were:- " x-rays seen. No listhesis in T12 L1. Facets of lumbar spine in normal position. No #1 dislocation seen." The plaintiff was not diagnosed to be suffering from spondylolithesis by the orthopaedic surgeon.

11. On 29 January 1999 medical surgeon Dr. Peter C.K. Chan examined the plaintiff and found the plaintiff to be walking with a normal gait. The plaintiff was able to stand on his tip toe, heels and squad with no pain. The range of movements of his hip were full. Rotation and lateral flexion of his lumbar region were normal. Power of extension of his lumbar region was nearly full for the plaintiff's age. The only restriction to the plaintiff's movement was his flexion power at his lumber region. His fingertips were able to reach his mid shin with limitation when he bent forward. On account of his flexion limitation of his lumbar region Dr. Chan assessed the plaintiff to be suffering from a disability of 20% of his whole person. Dr. Chan also found the plaintiff to have a mild scoliosis of a congenital origin.

12. Dr. Chan found no evidence of bony injury on the plaintiff. He found the plaintiff to have suffered no neurological impairment and had fully recovered from the soft tissue injury sustained during the accident. When asked if the plaintiff's conditions tally with his injuries, Dr. Chan's reply was:-

"It would be difficult to establish a relationship between the fall and his protracted course of low back pain given the fact that the congenital problem of scoliosis is a pre-existing condition and try to pin-point the fall as the culprit will again be entirely speculative."

13. On 2 February 1999 the plaintiff was assessed by the Employees Compensation Board to be suffering from a 2.5% loss of his earning capacity.

14. In September 1999 the plaintiff again sought treatment at the United Christian Hospital for his back pain. He received physiotherapy treatment for 4 months from October 1999 to 24 Feb 2000.

15. Dr. Chan examined the plaintiff again on 6 November 2000, nearly 3 years after the fall. In this second consultation the plaintiff repeated his complaint of chronic low back pain. He also complained of continuing right leg numbness and right back numbness. The physical findings of the plaintiff were more or less the same as those in January 1999 except that the plaintiff's straight leg raising ability has dropped from his previous 80 degrees mobility to 65 degrees for his right leg and 70 degrees for his left leg. He was found to have muscular spasm and tenderness over his lower lumbar region. The rotational movement of his lumbar region was changed from full range to 1/2 range with pain. His lateral flexion changed from normal to reaching mid thigh with pain in leg and back.

16. In this second consultation Dr. Chan wrote: " The finding of a mild scoliosis is of a congenital origin. Whether the fall will aggravate the condition will be speculative...... The limitation of lumbar spine flexion is minimal...... The disability to the whole man of the plaintiff was below 20%."

17. In this second consultation Dr. Chan formed the opinion that the accident of 15 November 1997 did contribute to the plaintiff's condition. He was also of the view that the plaintiff was unsuitable to resume his pre-accident work or work which required the lifting of heavy weights. Nonetheless the plaintiff was able to perform other sedentary type of work with appropriate training.

18. When further asked by the solicitor representing the plaintiff if it would be possible for the fall on 15 November 1997 to cause traumatic spondylolithesis in the plaintiff, Dr. Chan in his letter of 13 January 2001 answered the question in the affirmative.

19. Dr. Chan is a general surgeon. His acquired his knowledge on orthopaedic trauma from his study of traumology.

20. Dr. Chan's medical opinion is difficult to follow. On 29 January 1999 he assessed the plaintiff's disability to be 20% of his whole person when the plaintiff displayed an 80 degrees straight leg raising with no other signs of weakness. In November 2000 when the plaintiff's straight leg raising dropped to 65 degrees and 70 degrees for his right and left legs respectively, exhibiting muscular spasm in lower lumbar region and pain in lateral flexion and rotational movement of the lumbar region, Dr. Chan formed the view that the plaintiff's limitation of lumbar spine flexion to be minimal and that the plaintiff's disability was below 20%.

21. In January 1999 Dr. Chan formed the view that it was speculative to associate the plaintiff's low back pain with the fall on account of the plaintiff's congenital problem of scoliosis. In his report of November 2000 Dr. Chan maintained his view that it would be speculative to suggest the fall would aggravate the plaintiff's condition on account of the plaintiff's congenital problem of scoliosis. Yet, without any explanation, Dr. Chan suddenly stated in his report of November 2000 that the accident of 15th November 1997 did contribute to the plaintiff's condition.

22. The orthopaedic surgeon identified no spondylolithesis on the plaintiff after consulting objective physical findings such as the plaintiff's x-ray film. Dr. Chan on the other hand concluded in his report of November 2000 that the accident caused the plaintiff's lumbar impairment when he was unsure about the causation of the plaintiff's low back pain.

23. Though Dr. Chan's letter of 13 January 2001 suggested that the accident of 15 November 1997 would possibly cause traumatic spondylolisthesis to the plaintiff, yet in neither reports of Dr. Chan did he diagnose the plaintiff to be suffering from spondylolisthesis.

24. In the absence of contrary medical evidence, I accept the plaintiff to be suffering from chronic low back pain which could be related to his fall of 15 November 1997; though there was no evidence of bone or spinal injuries.

25. From time to time the plaintiff also consulted bonesetters in Hong Kong and in the mainland.

Compensation for pain, suffering and loss of amenities

26. The plaintiff has a mild congenital scoliosis.

27. He fell for about 2 feet to land on the floor in the course of his plastering work on 15 November 1997. According to the nursing report of the United Christian Hospital the plaintiff felt no pain after the fall. He only felt pain at night and sought medical treatment from the hospital the next day. On 16 November 1997 the plaintiff was diagnosed to be suffering from buttock contusion.

28. The plaintiff was admitted into United Christian Hospital on 20 November 1997 on suspicion of traumatic spondylolithesis on account of his low back pain. Orthopaedic surgeon attending him did not find the plaintiff to be suffering from spondyolothesis. The plaintiff was given physiotherapy treatment and was discharged from the hospital after 3 days.

29. When examined in January 1999 the plaintiff was found to have no significant health problem, except his complaint of constant low back pain and a limitation in his flexion motion of his lumber region. In November 2000 the plaintiff's mobility of his lumbar region dropped. Dr. Chan formed the view that the limitation to the plaintiff's lumbar spine flexion power is minimal and he estimated the plaintiff's disability to be below 20%.

30. The plaintiff was granted sick leave for more than 15 months from November 1997 to April 2000 on account of his low back pain, though there was no identifiable spinal or bone injuries.

31. The plaintiff testified that his sexual activities with his wife were reduced from a frequency of 1-2 times a week to 1-2 times a month. He said he used to practise boxing as his hobby. Since the accident he could no longer practise boxing.

32. I am satisfied that the plaintiff's injury fell below the serious injury category. After considering Li Yuen Hung v Yau Yuk-lam HCPI-504/95 and Chan Kam Hoi v Dragages [1997] 4 HKC 523 I am prepared to award the plaintiff a sum of HK$200,000 for his pain, suffering and loss of amenities.

Loss of Accrued Earnings

33. The plaintiff was granted sick leave on account of his low back pain for the following periods:-

(i) 16 November 1997 to 18 November 1997;

(ii) 20 November 1997 to 22 November 1997 ( hospitalization)

(iii) 5 December 1997 to 2 January 1998

(iv) 6 January 1998 to 7 August 1998 ( renewed monthly)

(v) 10 September 1999 to 14 April 2000 (renewed monthly).

34. Plaintiff stated he used to work 24 days a month, i.e. a total of 288 working days within a year. He worked both in the capacity of a sub-contractor as well as a salaried employee. When asked about the ratio of his sub-contractor work to his salaried employee work, the plaintiff did not give a definite answer. From the work pattern he described in his witness statement he was engaged in the capacity of a salaried employee for 10 days in the year of 1997. For the rest of the 278 working days the plaintiff would be working in the capacity of a sub-contractor.

35. In the plaintiff's testimony his daily wages as a sub-contractor was HK$950 - HK$1,000, out of which he would be required to pay about HK$30-50 per day for the afternoon tea of the workers he engaged. Coupled with other financial outlays his average income as a sub-contractor would be in the range of HK$850 per day. As a salaried worker he would also be paid a daily wage of HK$850 by the defendant.

36. The plaintiff's yearly income prior to the accident would be :-

(a) a sum of HK8,500 (HK$850 x 10 days) as an employee; and

(b) a sum of HK$236,300 (HK$850 x 278 days) as a sub-contractor.

37. After the lunar new year in 1998 the plaintiff had made attempts to secure employment through the Labour Department. His attempts had not been fruitful.

38. In September 1998 the plaintiff tried to resume his plastering work. He felt serious back pain when he tried to reach up, bend, crouch or lift heavy objects. Hence he stopped after working for 1 1/2 days at HK$850 per day; earning HK$1,275.

39. In October 1998 he tried to learn laying floorboards. Because of his lack of experience in the job and his back pain he could only earn HK$300 per day. He worked for only 10 odd days and earned HK$3,600.

40. In March 1999 he again went to the Labour Department to look for work opportunity but was unable to find a job suitable to his age, experience, educational level and physical condition.

41. He was introduced to work as an odd job worker in the construction industry at HK$300-HK$400 per day. As he was not able to move heavy equipments and objects, he could not take the job.

42. He had the opportunity to work as a security worker at Po Lam Estate at a monthly salary of HK$4,500. He felt he could not carry out patrol duties on account of his back problem, so he did not take the job.

43. The plaintiff had applied and was granted comprehensive social security assistance at a monthly sum of HK$2,160 from the Social Welfare Department since 7 July 1999.

44. The plaintiff stated that he could not squat, crouch or sit for over half an hour. He had difficulty in climbing stairs and was unable to lift heavy items. Yet he was able to take 2 1/2 hours journeys on train and coach to travel back to the mainland to visit his relations and to consult the bone setter thereat. He was also able to sit through his testimony in court for over 1 hour.

45. In counsel's submission the statistics of the Census and Statistics Department showed a 10% increase in the daily income of a plasterer increased since November 1997 to July 2001 (the daily wages of a plaster worker was HK$829 in November 1997 and HK$914.70 in July 2001). The median income of the plaintiff from the day of the accident to the day of trial would be HK$892.50 {1/2 (HK$850 + HK$850 x 110%)}. The plaintiff's pre-trial loss of income from November 1997 to February 2001 ( a total of 40 months ) would be:-

(a) HK$24,875 [10/288 (HK$892.5 x 24days x 40 months) -HK$3,600- HK$1,275] as an employee; and

(b) HK$827,050 [278/288 (HK$892.5 x 24 days x 40 months)] as a sub-contractor.

Loss of Future Earnings

46. The plaintiff was aged 49 at the day of the accident and aged 52 on the day of the assessment hearing. He had congenital scoliosis and used to be working in the construction industry which demands a strong physique. After considering Chan Kam Hoi [1998] 4 HKC523; Lai Kin-wah HCPI-255/1996 and Wong Chun Chin HCPI-374/97; I consider a multiplier of 6 to be reasonable.

47. The plaintiff was recommended not to resume his pre-accident work but could engage in works of a sedentary nature such as cashier, lift attendant, telephone operator or watchman.

48. The plaintiff only received education up to primary level and did not know English. It was highly unlikely for him to be employed as a telephone operator. He was unable to work as a watchman on account of his back pain as he could not carry out patrol duties. It was suggested that the only suitable work would be a cleaner. From the Census and Statistics data the monthly earnings of a cleaner was in the region of HK$5,500 per month.

49. The plaintiff's notional loss of future income would be:-

(a) HK$ 41,132 {10/288 [( $914.70 x 24 days) - $5,500] x 12 x 6} as an employee; and

(b) HK$1,143,470 {278/288[(HK$914.70 x 24 days) - HK$5,500] x 12 x 6} as a sub-contractor.

Loss of Earning Capacity

50. Taking into account the plaintiff's condition of low back pain, I accept the plaintiff would face the risk of being sacked during economic downturn, and I assessed his loss of earning capacity to be about HK$100,000; of which 10/288 was attributable to his employee income and 278/288 was attributable to his sub-contractor income.

Loss of Mandatory Provident Fund

51. The plaintiff was entitled to a 5% contribution from the employer if he worked in the capacity of a salaried employee but not when he worked in the capacity of a subcontractor. Hence his loss of his employer's contribution would be HK$2,057 (HK$41,132 x 5%).

Social Welfare Benefits

52. The social welfare payments were benevolent in nature and ought not be deducted from the plaintiff's common law damages.

Special Damages

53. After the fall the plaintiff attended the Jockey Club clinic and United Christian Hospital for physiotherapy treatment. He also attended bone setters. The travelling and consultation fees spent by the plaintiff were as follows:-

(a)	medical consultation fees at Jockey Club clinic and United Christian Hospital (HK$44 x 39)	1,716
(b)	bone setter fees (HK$150 x 12 + HK$70 x 6)	2,220
(c)	pain relief injections received in the mainland (HK$60 x 7)	420
(d)	travelling expenses to Jockey Club clinic and United Christian Hospital (HK10 + HK$12 x 38)	466
(e)	travelling expenses to attend the bone setter in Hong Kong and the mainland (HK$12 x 12 + HK$150 x 6 )	1,044
		5,866
		====

Award

54. I accept the following to be reasonable and fair assessment of the plaintiff's damages:-

(a)	Pain, Suffering and Loss of Amenities	200,000
(b)	Loss of accrued earnings
	(i) as an employee	24,875
	(ii) as a sub-contractor	827,050
(c)	Loss of future earnings
	(i) as an employee	41,132
	(ii) as a sub-contractor	1,143,470
(d)	Loss of earning capacity
	(i) as an employee	3,472
	(ii) as a sub-contractor	96,528
(e)	Loss of mandatory provident fund	2,057
(f)	medical and traveling expenses incurred	5,866
	____________
	HK$2,344,450
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55. I award interest on the pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. Interest on the loss of accrued earnings, medical and travelling expenses at half the judgment rate from the date of the accident to the date of judgment.

56. I also grant an order nisi on costs, to be taxed if not agreed, in favour of the plaintiff against the defendant for the present assessment hearing. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.