Wong Bik Fai v. Dragages Hong Kong Ltd and Others

HCPI 564/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 564 OF 2015

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JUDGMENT

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Introduction

1.This is a claim by the plaintiff for damages for personal injuries sustained on 18 June 2013 in the course of his employment by the defendant as a sailor.

2.On the first day of trial, liability was agreed at 90%, with costs on liability up to that date.

Items agreed

3.The plaintiff was born on 1 December 1954.

4.The parties agreed that the plaintiff’s monthly income was $31,817 on average at the time of the accident.

5.The parties also agreed a sick leave period of 9 months 28 days and that he could be employed with a monthly income of $8,190 after the sick leave period.

6.The parties also agreed special damages at $24,000.

7.Employees’ compensation received by the plaintiff was agreed at $349,034.09.

Pain and suffering and loss of amenities (PSLA)

8.According to the Joint Medical Report dated 16 March 2015, the plaintiff suffered a fracture of the right radius bone and dislocation of the distal radius ulnar joint (“DRUJ”).  There was no open wound and no neurovascular complications.  He was treated with surgery of open reduction, fixation of fracture and dislocation.  This was followed by physiotherapy.  The treatment was standard and appropriate.

9.The experts stated that:

(1)   Right forearm circumference was same as left arm;

(2)   Right handgrip was slightly weaker on manual test;

(3)   Right wrist was normal; and

(4)   Right ring finger showed ankylosing of the proximal interphalangeal joint at 90 degrees, but added that this was due to previous unrelated injury.

10.10. The experts opined that the plaintiff’s fracture had healed up in satisfactory position. The DRUJ was reduced and stable. There was some stiffness of the elbow with a slight limitation of full flexion of extension, but of a good functional range. There was no muscle wasting and the power was reasonably good. The experts opined that the overall function of the forearm was restored.

11.(1) On 23 December 2013 at about 12:16 pm, the plaintiff went to Yan Chai Hospital and the consultation notes recorded, among others, “memory, through block and get loss in street, fleeting suicidal ideation, previously, no active suicidal ideation currently”.

(2)   On 30 December 2013 at about 11:47 am, the plaintiff went alone to Mrs Wu York Yu General Out Patient Clinic and the consultation notes recorded, among others, “poor sleep and low mood … several episode of sudden thought block and noted disorientation to place”.

(3)   On 5 February 2014 at about 9:24 am, the plaintiff went to Tsing Yi Town General Out-Patient Clinic and the consultation notes recorded, among others, “poor memory & always forgettable … difficult to initiate sleep”.

(4)   On 12 March 2014 at about 9:57 am, the plaintiff went to Tsing Yi Town General Out-Patient Clinic and the consultation notes recorded, among others, “anxiety disorder/‌anxiety state”.

(5)   On 16 April 2014 at about 9:37 am, the plaintiff went to Tsing Yi Town General Out-Patient Clinic and the consultation notes recorded, among others, “P01 — Feeling anxious/‌nervous/‌tense” and “P20 — memory disturbance”.

(6)   On 28 May 2014, the plaintiff went to Tsing Yi Town General Out-patient Clinic and the consultation notes recorded, among others, “P01 — feeling anxious/‌‌nervous/‌tense” and “P20 — memory disturbance”.

12.The plaintiff asserted in the course of his testimony that these problems were caused by the accident.  There is no evidence of causation.  I reject his assertion.

13.On PSLA, the parties cited:

(1)   Ho Bing Cheung v Lam Yin Tuk trading as Ocean Fast Food & others DCPI 66/2004;

(2)   Ng Shui Hing v Lee Hing On Ricky DCPI 1313/2004;

(3)   Mehmood Khalid v Million Harvest Wharves & Logistics Limited and others HCPI 401/2006; and

(4)   Li Kwok Kee v China HK Wah Lee Limited HCPI 477/2013.

14.Having considered these cases and the injuries sustained by the plaintiff in this case, I assess PSLA at $250,000.00.

Loss of earnings and MPF during the sick leave period

15.The plaintiff was born on 1 December 1954.  The accident was on 18 June 2013.  The sick leave period of 9 months and 28 days expired on 15 April 2014 when the plaintiff would be 59 years 5 months 14 days old.

16.There is no evidence of a retirement age for sailors, whether for sailors as a category or for the defendant.  All that the plaintiff said in §16 of his witness statement was that he “intended” to work as a sailor until 65 before his retirement (「我打算做水手到65歲才退休」).  There is no evidence that he could but for the accident.

17.I attach no weight to the fact that the defendant was employing one person at an age beyond 60 because there is no evidence on the job or work nature of that particular person or the physical attributes of that person.  His wages were less than the plaintiff’s at the time of the accident.

18.The plaintiff emphasised that the sailor’s job required substantial physical strength and agility.  A sailor also had to endure rough weather and sea conditions.

19.Doing the best I can, I would hold that an average person cannot continue working as a sailor beyond 60.  As for the plaintiff, I would reduce the age of 60 by about 7 months on account of matters which had nothing to do with the accident and which were personal to the plaintiff:

(1)   The plaintiff’s physical and mental problems referred to in §§9(4) and 11 above.

(2)   The plaintiff’s marital problems with his second wife which eventually ended in divorce.  The plaintiff was reticent about his divorce which took place at about the expiry of the sick leave period.

(3)   The plaintiff’s physiotherapy treatment had proved to be successful and pain had decreased by 60 – 70%.  This notwithstanding, the plaintiff chose to default in physiotherapy treatment.  Inability to continue working as a sailor beyond the sick leave period was caused by or contributed to by his default in receiving physiotherapy treatment.

(4)   The plaintiff was a chronic smoker.

20.The 5% compulsory contribution by employers was qualified by an upper limit of earnings beyond which employers were not required to contribute.  Since both parties worked on the basis of 5% of the average monthly earnings, I do not disagree with them.  I assess loss of earnings and MPF during the entire sick leave period from 18 June 2013 to 15 April 2014 ( 9 months and 28 days ) at $331,851.31 ( $31,817 × 1.05 ×  ).

Loss of earning capacity

21.As the plaintiff had reached his “retirement” age at the end of the sick leave period, and as he could be employed with a monthly income of $8,190 after the sick leave period, there was no loss of earning capacity and no further loss of income.

Special damages

22.It has been agreed at $24,000.

Conclusion on quantum

23.The award is $196,232.09.

		$
	PSLA	250,000.00
	Pre-trial loss of earnings and MPF	331,851.31
	Special damages	24,000.00
		605,851.31
	Less: 10% contributory negligence	(60,585.13)
	Less: ECC payment	(349,034.09)
		196,232.09

Judgment

24.There shall be judgment in favour of the plaintiff for $196,232.09, with interest at 2% per annum on general damages from the date of writ (26 May 2015) to the date of judgment and interest on special damages at 4% per annum from the date of the accident (18 June 2013) to the date of judgment.

Orders on costs

25.The plaintiff’s costs on liability up to 22 September 2016 be paid by the defendant, to be taxed if not agreed.

26.I make an order nisi under Order 42, rule 5B(6) of the Rules of the High Court, Cap 4A, that the plaintiff’s costs on quantum be taxed and paid by the defendant.

27.There shall be legal aid taxation of the plaintiff’s own costs.

Mr Dennis Law, instructed by Sam Fu & Co, assigned by Director of Legal Aid, for the plaintiff

Mr Yuan Shan Cao, instructed by Norton Rose Fulbright Hong Kong, for the defendant