Chan Kam Cheong v. Chan Tak Yee and Others
Read the full judgment text of HCPI 1030/2013 on BabelCite. This High Court CFI judgment was delivered on 8 April 2016.
1. The present proceedings before me are for assessment of damages. The plaintiff and the 3 rd defendant have already agreed on the amount of damages. However, as the 1 st and 2 nd defendants have not entered appearance in any part of the proceedings and the agreement between the plaintiff and the 3 rd defendant is not binding on the 1 st and 2 nd defendants, I still need to proceed with the assessment.
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HCPI 1030/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT PERSONAL INJURIES ACTION NO 1030 OF 2013 _________________________
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_________________________ ASSESSMENT OF DAMAGES _________________________ BACKGROUND 1.The present proceedings before me are for assessment of damages. The plaintiff and the 3rd defendant have already agreed on the amount of damages. However, as the 1st and 2nd defendants have not entered appearance in any part of the proceedings and the agreement between the plaintiff and the 3rd defendant is not binding on the 1st and 2nd defendants, I still need to proceed with the assessment. 2.On 10 December 2011, the plaintiff was injured by a snapped rope whilst employed by the 2nd defendant as crane operator on a dumb lighter registered in the 1st defendant’s name. The 1st defendant is the 2nd defendant’s daughter. 3.At the time of the accident, the 2nd defendant had no employees’ compensation insurance for the plaintiff. The 2nd defendant was charged for failing to take out insurance policy for employees in breach of section 40 of the Employees’ Compensation Ordinance, Cap 282. He pleaded guilty to the offence and was fined $3,000.00 by a magistrate on 26 June 2014. 4.On 10 December 2013, the plaintiff was assessed by the Employees’ Compensation (Ordinary Assessment) Board to have loss of earning capacity permanently caused by the injury at 24%. He was then awarded employees’ compensation at $349,149.00 with interest by the District Court on 20 October 2014. 5.On 6 June 2014, the plaintiff obtained interlocutory judgment against the 1st and 2nd defendants on liability with damages to be assessed and costs to be taxed. Subsequently, the 2nd defendant was declared bankrupt on 16 December 2015, but the plaintiff obtained leave to proceed against the 2nd defendant on 12 February 2016. 6.On 9 July 2014, the 3rd defendant was granted leave to join in the present proceedings. According to the Court of Appeal judgment in Tu Zhiqiang v Hap Sang Co (a firm) [2012] 1 HKLRD 1075, when the 3rd defendant joins in a common law action under section 25A(a) of the Employees Compensation Assistance Ordinance, Cap 365 (“ECAO”), no judgment may be entered against the 3rd defendant, even though it has taken over the defence as if it were the employer in the proceedings. However, the plaintiff may apply for relief payment from the 3rd defendant when he is unable to recover damages from the 1st and 2nd defendants after reasonable steps have been taken to recover the same from them. 7.The terms of the agreement between the plaintiff and the 3rd defendant are as follows: -
8.The plaintiff asks for final judgment to be entered against the 1st and 2nd defendants as per the above agreement. EVIDENCE 9.The plaintiff gave evidence at the hearing and adopted his witness statements to testify about his injuries, treatments and current conditions. The plaintiff also called his wife, Ms Kwok Wai Yee, who adopted her witness statements to testify mainly about her loss of income in caring for the plaintiff and his medical check-ups. 10.The following medical reports are also produced without calling their makers:-
11.The 1st and 2nd defendants did not take part in the proceedings and hence there was no evidence produced to contradict the plaintiff’s case. The 3rd defendant has already agreed the quantum with the plaintiff and did not cross-examine the plaintiff or his wife. In the absence of any opposition, I accept the plaintiff’s case as mentioned below in its entirety. THE PLAINTIFF’S CASE Injuries and treatments 12.On 10 December 2011, the plaintiff was employed by the 2nd defendant to work on the 1st defendant’s dumb lighter. At about 15:00 hours, the rope that tethered the dumb lighter to a floating dock snapped, and one section of the broken rope recoiled and struck the plaintiff’s face with force causing injuries to the plaintiff. 13.At 16:56 hours, the plaintiff was admitted to the Accident & Emergency Unit of Princess Margaret Hospital, and then to the Intensive Care Unit for multiple fractures to cervical spine (C2 and C7), ribs, orbit (eye socket bone), malar and maxillary bones (centre of face and upper teeth area), with open facial wounds/laceration, and intracranial breeding. 96 hours of mechanical ventilation was required. He was in the Intensive Care Unit from 10 December 2011 to 16 December 2011 and he was readmitted there again on 22 December 2011. 14.The plaintiff was hospitalized from 10 December 2011 to 9 February 2012. He underwent various procedures including surgical toileting, suturing and 3 operations at 18:15 to 18:30 hours on 10 December 2011, 21:00 to 21:35 hours on 10 December 2011 and 12:24 to 17:15 hours on 22 December 2011 respectively. 15.The two operations performed on 10 December 2011 were for dealing with lacerations on the plaintiff’s face. CT scan showed multiple fractures to his skull, in his face and near his left eye. Facial wounds were treated by surgical toilet and suturing. Surgery for open reduction and internal fixation on the C2 fracture was done on 22 December 2011. Between 14 December 2011 to 17 July 2012, halo-traction and later a SOMI brace was applied to the plaintiff. 16.The operation on 10 December 2011 between 21:00 to 21:35 hours was also to deal with laceration on the plaintiff’s lip and removal of a loose tooth. Two more teeth were later found to have subluxation and were removed under local anesthesia. The plaintiff had altogether 3 teeth removed as a result of the accident. 17.As to his eye injuries, the plaintiff was treated with topical eye-drops and systemic antibiotic. Later examination revealed left traumatic mydriasis (dilated pupil) with 200 degree angle recession. Prism glasses were applied, and the plaintiff suffered from binocular diplopia (seeing double images) on all directions. Between 14 February 2012 and 17 April 2015, the plaintiff attended 15 follow-up sessions at the Eye Clinic of Caritas Medical Centre for his eye injuries. 18.The plaintiff received about 29 sessions of physiotherapy treatments at Princess Margaret Hospital. After discharged, he also received 12 sessions of physiotherapy treatments at the same hospital from 19 June 2012 to 15 January 2013. 19.The plaintiff received work rehabilitation treatments (3 sessions per week) from 11 January 2013 to 16 August 2013 (total 93 sessions) at Kwong Wah Hospital. According to the Occupational Therapy Department at Kwong Wah Hospital, the plaintiff should change job in the future given his disabilities and pre-accident job demands. 20.The plaintiff was granted 728 days sick leave from 10 December 2011 to 26 November 2013. Disabilities 21.As pleaded in the Re-Revised Statement of Damages dated 12 June 2015, the plaintiff’s present conditions are as follows: -
22.The various experts gave their opinion on the plaintiff’s whole body impairment according to their particular expertise as follows:-
23.Only Dr Kan gave an opinion as to the “impairment of the whole man”, which he assessed to be at 15%. QUANTUM PSLA 24.The plaintiff was almost 50 years old at the time of the accident. His injuries and treatments have already been summarized above. Generally, he still suffers from diplopia (double vision) which impairs his mobility, numbness in his left hand, difficulty in swallowing and speech, restricted neck movement, and fatigue in his back and neck. 25.I accept that the plaintiff’s injuries fall within the category of “serious injury”. The appropriate range for PSLA award should be $400,000.00 to $540,000.00. 26.The following cases are relevant:- (i) Eye and related injuries
(ii) Injuries to neck
(iii) Loss of teeth
27.The plaintiff’s eye injuries were not as severe as Harvey Kenneth, supra or Cheng Cho Fai, supra. His neck injuries were overall less severe than Luk Yee Lam, supra, but more severe than Tsoi Wing Tak Michelle, supra, whilst comparable to Chan Tak Chi, supra. Taking into account of the plaintiff’s age, injuries, treatments, disabilities, and the above cases, I find that $400,000.00 as agreed between the plaintiff and the 3rd defendant is an appropriate award for PSLA. Pre-trial loss of earnings 28.The plaintiff worked as a licensed crane operator for over 30 years. Since around April 2010, the 2nd defendant paid the plaintiff a monthly salary of $17,500.00. The plaintiff also had an additional income from the 2nd defendant’s other customers of about $1,000.00 per month for ad hoc work. Nevertheless, the plaintiff and the 3rd defendant agree to adopt $17,500.00 as the pre-accident salary. As the plaintiff is prepared to waive the additional income and it does not affect the 1st and 2nd defendants’ interest, I will also adopt $17,500.00 as the plaintiff’s pre-accident salary. 29.The plaintiff was issued sick leave from 10 December 2011 to 26 November 2013, ie 728 days or 23.5 months. I will allow the whole period of sick leave as it is reasonable in view of the experts’ views as follows:-
30.On top of that, as agreed between the plaintiff and the 3rd defendant, an additional 1.5 months will be added as the nominal time for the plaintiff to look for work. The total period for total loss of earnings is therefore 25 months. The plaintiff’s pre-trial total loss of earning inclusive of MPF is therefore $459,375.00, calculated as follows:-
31.The plaintiff also suffered pre-trial partial loss of earning as I accept the evidence that he could not return to work as crane operator and had to seek alternative lower income employment. 32.The plaintiff explained the work nature of a crane operator in details in his witness statements, which can be summarized as follows:-
33.I accept that the work of a crane operator requires dexterity of the hands and limbs, good hand-eye co-ordination and good spatial perception. 34.As explained by the plaintiff, the effects of his injuries to his work as crane operator are as follows:-
35.Although most of the experts opined (from their particular expertise only) that the plaintiff would be able to resume work as crane operator, there was no substantive enquiry into the plaintiff’s work nature when the experts interviewed him. 36.However, Dr Kan in his holistic analysis opined that:-
37.This is supported by the report of the Occupational Therapy Department of Kwong Wah Hospital dated 5 November 2013, which assessed the plaintiff on 19 August 2013 and opined that:-
38.The Department of Orthopaedic and Traumatology of Princess Margaret Hospital also certified that the plaintiff was “permanently unfit” for the job as crane operator due to his “spinal injury with muscle tightness and joint stiffness”. 39.Moreover, the plaintiff’s loss of earning capacity was assessed as follows: -
40.Indeed, after his conditions became stable, the plaintiff looked for alternative jobs. He participated in training programmes and obtained security personnel permit. He also looked for work for injured and disabled workers with his wife’s help. However, he was unable to secure employment. 41.From the above evidence, I have no doubt that the plaintiff can no longer operate cranes. 42.The plaintiff is about 55 years old now. He only studied up to primary one and has difficulty in writing Chinese. In the light of his current medical conditions, the plaintiff’s choice of alternative occupation is very limited. I accept that the plaintiff will have difficulty in working as security guard, which usually involves extended periods of sitting or standing. The plaintiff also walks with difficulty. 43.However, as agreed by the plaintiff and the 3rd defendant, the plaintiff should be able to take up some light duty work, albeit not as security guard. For example, he can work as general cleaner. According to the statistics of the Quarterly Report of Wage and Payroll Statistics issued by the Census and Statistics Department, the average monthly wages of a male general cleaner (on average of 8 hours/day, 26 days/month) was $6,775.00 in December 2011 and $8,377.00 in September 2015. 44.For the purpose of this assessment, the plaintiff and the 3rd defendant have agreed to adopt a median figure of $7,000.00 as salary for an assumed alternative employment. I think this is reasonable and will adopt the same. 45.The period for the pre-trial total loss of earnings is from 10 December 2011 to 9 January 2014 (25 months). The period for the pre-trial partial loss of earnings is therefore from 10 January 204 to the date of assessment, ie 9 March 2016, and it is 26 months. 46.The plaintiff’s pre-trial partial loss of earnings is therefore $286,650.00 calculated as follows:-
47.Thus, the plaintiff’s total pre-trial loss of earnings is $746,025.00 (pre-trial total loss of earnings: $459,375.00 + pre-trial partial loss of earnings: $286,650.00). Post-trial loss of earnings 48.The plaintiff and his wife have two sons, aged 17 and 13 in 2014. They are a family with low income: the plaintiff earned $17,500.00 (pleaded case was $18,500.00, but now agreed with the 3rd defendant to be at $17,500.00) and the plaintiff’s wife earned $10,000.00. 49.The plaintiff worked as crane operator for over 30 years without any accident except the present one. The plaintiff had all along been in good health, except he had emphysema and degenerative spondylosis. The job nature of a crane operator requires good eyesight and dexterity of hands for the control of cranes, but is not physically strenuous. There is no reason why the plaintiff would not have remained in his job for as long as his health allows. I find that the appropriate retirement age for the plaintiff would be at least 60 to 65. However, as agreed with the 3rd defendant, the plaintiff agrees to adopt 60 as his retirement age, and I will also adopt the same. 50.At the date of assessment on 9 March 2016, the plaintiff is 55 years old. But for the accident, the plaintiff would have continued to work for another 5 years. Adopting the applicable discount rate at - 0.5% and applying Table No. 7 of the Personal Injury Tables Hong Kong 2013, the multiplier is 5. 51.Thus, taking into account of the plaintiff’s MPF, the post-trial loss of earnings is $661,500.00, calculated as follows:- ($17,500.00 – $7,000.00) x 12 months x 5 (multiplier) x 1.05 (MPF) = $661,500.00 Loss of earning capacity 52.The plaintiff’s competitiveness is affected by his conditions caused by the accident. It is unlikely that the plaintiff will have any promotion at work and the work he could take up may not be secured or stable. He may also require time to look for jobs should change of jobs become necessary. 53.The plaintiff and the 3rd defendant agree that a sum of $70,000.00 reflecting about 4 months of the plaintiff’s pre-accident salary is a reasonable compensation for his loss of earning capacity. 54.I accept that the plaintiff has suffered loss of earning capacity as a result of the accident and the amount of $70,000.00 is a reasonable sum to be awarded to the plaintiff under this head of damages. Pre-trial expenses 55.The plaintiff claims for various expenses incurred as a result of the accident. He was hospitalized at Princess Margaret Hospital from 10 December 2011 to 9 February 2012 and his mobility was severely affected. The hospitalization charges were $700.00, $2,800.00 and $2,600.00, totalling $6,100.00. 56.On 19 November 2012, the plaintiff paid $100.00 for dental treatment at Princess Margaret Hospital. 57.Between 6 March 2012 and 22 October 2013, the plaintiff went for 14 sessions of orthopaedics follow-up. The charge for the first session was $100.00, and all subsequent sessions were $60.00 each. So the total of the charges incurred for orthopaedics follow-up was $880.00 ($100.00 + ($60.00 x 13)). 58.Between 19 June 2012 and 15 January 2013, the plaintiff received 12 sessions of physiotherapy at Princess Margaret Hospital. The charge for the first session was $100.00, and all subsequent sessions were $60.00 each. So the total amount of charges incurred for physiotherapy was $760.00 ($100.00 + ($60.00 x 10)). 59.Between 10 December 2011 and 9 February 2012, the plaintiff was hospitalized for two months after his operation. He could not go to the bathroom by himself and had to wear diapers. Diapers per pack cost $90.00. The plaintiff used 6 packs per week, about 24 packs per month. He therefore spent about $4,320.00 ($90.00 x 48) on diapers. In addition, he used about $1,000.00 worth of wet tissues. The total amount he spent on diapers and tissues was $5,320.00 ($4,320.00 + $1,000.00). 60.The plaintiff paid a total sum of $2,470.00 ($1,170.00 on 19 November 2012 + $1,300.00 11 October 2012) to Dr Tso Wing Chung for the insertion of 3 false teeth. No travel expenses were incurred because Dr Tso’s clinic was within walking distance of the plaintiff’s home. 61.Between 14 February 2012 and 17 April 2015, the plaintiff went for 15 sessions of ophthalmology follow-up at Caritas Medical Centre. The charge for the first 12 sessions was $700.00 and the charges all the 3 subsequent sessions were $60.00 each. So the total amount of the charges incurred for ophthalmology follow-up was $880.00 ($700.00 + ($60.00 x 3)). 62.When the plaintiff was hospitalized, his wife attended to him twice a day for 2 months: once in the afternoon, and once in the evening with their two sons. They travelled by mini-bus and MTR, and each one-way trip cost $11.00 per person: The total amount of the travel expenses was $5,280.00 (wife: $2,640.00 + 2 sons: $2,640.00), calculated as follows:-
63.Since the accident, the plaintiff suffered from numbness and pain from the back of his head to his left arm and chest, which required stretching and massage with oil and by a machine. The plaintiff bought a machine at $1,200.00. He also used 6 bottles of oil ($200.00 each). The amount incurred for the cost of massage oil was $1,200.00 ($200.00 x 6). 64.The plaintiff incurred $7,000.00 for nutrition and tonic food. He did not retain receipts for these items. As the plaintiff was hospitalized for almost 3 months and received 728 days of sick leave, I accept that this is a reasonable amount incurred. 65.For the 12 sessions of physiotherapy attended as mentioned above, the plaintiff required his wife’s company. They travelled by mini-bus and MTR, and it cost $11.00 per single trip per person, and a round trip cost $22.00 per person. The total amount incurred on the travelling for physiotherapy was $528.00 ($22.00 x 2 x 12 sessions). 66.For the 93 sessions of occupational therapy at Kwong Wah Hospital, the plaintiff travelled by bus and each round trip cost $10.00. The total amount incurred on the travelling for occupational therapy was $930.00 ($10.00 x 93). 67.For the 14 sessions of orthopaedics check-up at Princess Margaret Hospital, the plaintiff had to be accompanied by his wife. Each trip cost $10.00 per person, and a round trip for two persons cost $40.00. The total amount incurred on the travelling for orthopaedics check-up was $560.00 ($40.00 x 14 sessions). 68.For the 15 sessions of ophthalmology check-up at Caritas Medical Centre, the plaintiff had to be accompanied by his wife, each trip cost $10.00 per person, and a round trip for two persons cost $40.00. The total amount incurred on the travelling for ophthalmology check-up was $600.00 ($40.00 x 15 sessions). 69.On 15 December 2014, the plaintiff bought a pair of prismatic glasses from an optometrist following the prescription by the ophthalmologist and paid $1,200.00 for it. The plaintiff did not retain the receipt, but I accept that the amount spent is reasonable. 70.The total of all the above expenses is $35,008.00 as summarized below:-
71.I accept that all the above expenses were occasioned by the accident and reasonably incurred by the plaintiff. In fact, the plaintiff has produced receipts for most of the expenses and even where there was no receipt, I have no reason to doubt the plaintiff’s evidence in respect of the same. I therefore allow the plaintiff’s claim for all these expenses in the total sum of $35,008.00. Future expenses 72.The plaintiff claimed in his pleaded case that he has annual future expenses as follows: -
73.However, the plaintiff has agreed with the 3rd defendant to claim a lesser amount as follows: -
74.As the plaintiff is willing to claim a lesser amount and I find that the agreed amount of his claim is reasonable, I will allow the sum of $58,436.00 as the plaintiff’s future expenses. Value of care by the plaintiff’s wife 75.The plaintiff required his wife to assist him in attending various medical check-ups. Between 6 March 2012 and 22 April 2014, the plaintiff’s wife took leave for 29 days from her work to accompany the plaintiff to attend his orthopaedics check-ups and physiotherapy at Princess Margaret Hospital, as well as ophthalmology check-ups at Caritas Medical Centre. As a result, the plaintiff’s wife sustained a loss of income in the sum of $5,636.63. 76.The 3rd defendant agrees with this amount of claim. I am also of the view that the plaintiff is entitled to claim this sum for his wife’s services rendered in caring for him. Thus, the sum of $5,636.63 is allowed. Credit 77.The plaintiff must give credit of the following 2 sums to his claim for damages:-
78.The total credit is $658,503.00 ($349,149.00 + $309,354.00). Total amount assessed 79.I therefore assess the total amount of the plaintiff’s claim for damages at $1,318,103.00 with the breakdown as follows: -
INTEREST 80.The plaintiff is entitled to claim interest against the 1st and 2nd defendants and I so order as follows: -
COSTS 81.The plaintiff is also entitled to costs against the 1st and 2nd defendants (similar to those in Lau Yuk Hung v Tsang Kwong Ming [2013] 2 HKLRD 614) as follows: -
82.I therefore grant a costs order nisi in terms of the above.
Mr Jonathan Ah-weng, instructed by Patrick Mak & Tse, for the plaintiff The 1st and 2nd defendants were not represented and did not appear Ms Susanna Leong, instructed by Gallant Y T Ho & Co, for the 3rd defendant |
Cases cited in this judgment