Ko Chu Keung v. Temmuk Engineering Co., Ltd and Another
Read the full judgment text of HCPI 1319/2016 on BabelCite. This High Court CFI judgment was delivered on 12 December 2018.
1. On 5 January 2017, interlocutory judgment on liability was entered by consent. This hearing is for assessment of damages.
Cited by 3 cases · Cites 7 cases
|
HCPI 1319/2016 [2018] HKCFI 2723 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 1319 OF 2016 _____________
_____________ Before: Deputy High Court Judge Kenneth Wong in Court Dates of Hearing: 19 and 20 November 2018 Date of Judgment: 12 December 2018 __________________________________________________________ J U D G M E N T ON A S S E S S M E N T O F D A M A G E S __________________________________________________________ A. INTRODUCTION 1.On 5 January 2017, interlocutory judgment on liability was entered by consent. This hearing is for assessment of damages. 2.On 7 February 2014 when the accident occurred, the plaintiff was 21 years and 7 months old. He was born on 2 July 1992. He is now 26years of age. He is single, a non-drinker and a non-smoker. He completed secondary school education. 3.The plaintiff was then employed by the 1st defendant as a construction worker doing welding works at the foundation and superstructure of 53 Perkins Road, Jardine’s Lookout, Hong Kong (“the Site”). The 2nd defendant was the principal contractor at the Site. The 1st defendant was its sub-contractor for piling works. B. THE ACCIDENT, THE OPERATIONS AND THE REHABILITATION 4.At about 9:30 am on 7 February 2014, the plaintiff was assigned by Yau Wah Hing, the site foreman of the 2nd defendant, to cut the weld on the U-channel alone. 5.At that time, a series of soldier piles was installed around the Site’s boundary. Each solider pile consisted of a circular metal casing with a H-pile in the centre. The U-channel was welded on the horizontal H beam at a nearby metal casting of an existing soldier pile SP56. As the empty casings had been installed, the U-channel was to be cut from the solider pile SP56, so that the H beam would be removed. 6.The H beam involved weighted 2 tonnes and was 13 m long with dimensions of 250 mm (width) × 280 mm (height) × 25mm (thickness) (“the H Beam”). The U-channel was 960 mm long with dimensions of 80 mm (width) × 45 mm (height) × 5 mm (thickness) (“the U-channel”). 7.After he checked the work condition, the plaintiff started using an oxy-acetylene welding set (flame cutting) provided by the 1st defendant to cut. 8.About half way during the cutting process, the H Beam placed under the U-channel suddenly fell down on the plaintiff, crushed his right leg. At the same time, the oxy-acetylene welding set was continually turned on,and injured his right arm. 9.The plaintiff was taken to the Accident & Emergency (“A&E”) Department of Queen Mary Hospital (“QMH”) for urgent medical treatment. 10.The plaintiff suffered multiple injuries after hit by the heavy H Beam. Physical examination showed 20 cm laceration over his right scalp with a 10 cm × 4 cm contaminated wound over the right leg with exposed bone. X-ray 11.He was admitted to Orthopaedic Ward for further treatment. 12.In the Orthopaedic Ward, the plaintiff presented to the unit with a 10 cm × 4 cm contaminated open wound over the right leg with exposed bone. The diagnosis was Gustilo 3A open fracture right tibia and fibula. Wound irrigation, tetanus prophylaxis, intravenous antibiotics and skin traction were given. Operation under general anesthesia with intramedullary nailing of the right tibia and plating of the right fibula was performed on that day. 13.As demonstrated by the plaintiff during the hearing, there were (a) one nail screwed through his right knee all the way to his right foot, (b) another nail to and from his shin, (c) bolts screwed on his right calf to fix the long nail and (d) altogether 5 holes incised on the right calf. 14.On 10 February 2014, in view of the contaminated open fracture wound, second look debridement operation was performed. 15.The implant was removed on 13 July 2015. The medical notes of the same date described what were removed:
16.The stitches were removed on 27 July 2015. 17.The accident left the plaintiff with a scar on his right calf and another one on his right arm. As shown to the Court during the hearing,those scars are prominent. According to his evidence which I accept, these scars at times would be itchy and painful. 18.The post-operative rehabilitation plan was non weight bear walking for 6 weeks, then partial weight bear walking for 6 weeks, then full weight bear walking. He continued to receive antibiotics and inpatient physiotherapy until 17 February 2014 where he was transferred to MacLehose Medical Rehabilitation Centre for further training. He attended outpatient physiotherapy and occupational therapy training. 19.The plaintiff received 54 sessions of physiotherapy treatment from 12 March to 29 December 2014. Functionally, the plaintiff managed right leg non-weight bearing walking using a pair of elbow crutches independently. Treatments, ie ice therapy, magnetic therapy, mobilization exercise, strengthening exercise and walking exercise were offered for pain relief and enhance recovery. He also held 13 private sessions of physiotherapy at Ho Man Tin (Community Rehabilitation Centre) from 4 December 2015 to 5 June 2016. 20.The plaintiff was initially seen by Occupational Therapy Department of QEH on 23 October 2014. Work hardening programme was provided two sessions per week until 5 February 2015. He attended 27 sessions of work hardening programme. On 3 February 2015, the plaintiff reported pain over right leg 2 – 3 out of 10 in NPRS (Numeric Pain Rating Scale), which would change according to activities. It was recorded in the medical report of Dr So Lok Wa, Noah of Department of Orthopaedics and Traumatology of QMH dated 15 March 2016 that the occupational assessment showed that his work capacity did not match his job demand. 21.A few months after removal of implant including plates, scares, nail and bolts, on 29 October 2015, the plaintiff consulted Dr Lau Sing Ki Kenric (“Dr Lau”), a private doctor for mild muscle wasting. He also continued physiotherapy sessions from 23 November 2015 to strengthen his right thigh muscle. He continued to consult Dr Lau until 1 February 2016. 22.Present complaints recorded in the joint medical report by Dr Tio Man Kwun, Peter (“Dr Tio”) and Dr Ko Put Shui, Peter (“Dr Ko”) dated 18 September 2017 include:
23.Both Dr Tio and Dr Ko agreed that the listed injury should be the sole and direct result of the subject accident. 24.Dr Ko opined that the plaintiff should have no significant problem in his daily activities. Dr Tio opined that he should be able to carry on most of his daily activities except those that involved frequent standing,walking, squatting, staircase of slope, climbing and those activities that involved heavy manual work, etc, and that his overall endurance would be reduced. 25.Dr Ko opined that the plaintiff should be able to resume his pre-accident sports without any significant impairment of his recreational sports without significant impairment of his enjoyment level. Dr Tio opined that the plaintiff should be encouraged to resume his pre-injury exercises but with an expected reduction in performance and enjoyment. C. CREDIBILITY OF WITNESS 26.The plaintiff gave evidence at the hearing. There is no witness from the defendants giving oral evidence. 27.I find the plaintiff’s evidence credible. He is a straightforward witness. He listened carefully to the questions posed and answered them in a clear, direct and responsive manner. It was clear that he was trying to assist this Court as much as possible. He would always make sure he understood the question properly before answering. His demeanour was calm and candid. When he did not understand the question, he would immediately ask for clarification and when he did not know an answer, he would readily admit that he did not know. He also did not shy away from the questions asked nor did he ever attempt to fabricate any explanations. 28.The defendants’ counsel attacks the plaintiff’s credibility by submitting that the plaintiff had failed to mention to his treating doctors andthe two experts two pieces of information, namely (a) his balancing problemand (b) deterioration after removal of implant in July 2015. The defendants’ counsel submit that the deterioration after removal of implant is particularly damaging to his credibility because such complaint was never mentioned until he testified at the hearing. 29.I do not accept the defendants’ counsel’s submission. I agree with the plaintiff’s counsel’s submission that had the plaintiff intended to exaggerate, it would be a much better opportunity for him to exaggerate at the joint examination before the two experts than to lie to this Court at the trial. I find him frank in telling the Court that he did not tell the two experts because, firstly, he said he had taken pain killers on the examination day beforehand, hence he did notfeel so painful; secondly Dr Ko, who asked all the questions, did not ask him about some areas,;and thirdly, because he did not know he needed to take the initiative to tell them every detail; and lastly, he was very nervous during the examinations. I accept these explanations. 30.I also accept the plaintiff’s counsel’s submission that the plaintiff’s subjective complaints of pains were consistent with medical records. For example, his complaint of pain caused by the removal of implant can be found in Dr Lau’s report. On 11 January 2016, Dr Lau advised him to take “steroid injection” to ease the pain. On 1 February 2016, “marked swelling” and “poor endurance” were noticed. 31.There is one matter which I disagree with the plaintiff. Havingconsidered all the evidence before the Court, particularly the expert evidence,I find that he should be able to return to his pre-accident job. D. NATURE OF THE WELDING JOB AND THE PLAINTIFF’S ABILITY TO RETURN TO THIS JOB 32.There is no dispute that the plaintiff’s pre-accident job is labour intensive. As described in the joint medical report of Dr Ko and Dr Tio dated 18 September 2017 at paragraph 6.10:
33.Both the plaintiff’s expert and the defendants’ expert concurred that the plaintiff should be able to resume his pre-accident job. In paragraph 11.9 of their joint medical report, they respectively stated as follows:
34.I have no reason to doubt the common opinion of Dr Ko and Dr Tio that the plaintiff should be able to resume his pre-accident job as a construction worker doing welding works. While it is understandable that after such a serious injury, the plaintiff might be afraid of doing welding works again, or having strong worry about occurrence of other accidents during the welding process, there is no evidence showing any psychological issues of the plaintiff from medical or other objective assessments which prevented him from working in construction site again. 35.However, I accept Dr Tio’s opinion that his capacity and efficiency as a welder will be reduced. This is consistent with Dr Tio’s opinion concerning the plaintiff’s activities of daily living (ADL) that he should be able to carry on most of his daily activities except those that involved frequent standing, walking, squatting, staircase of slope, climbing and those activities that involved heavy manual work, etc, and that his overall endurance would be reduced. It should be emphasized that the job nature of welding is labour intensive and often physically straining. As described in the joint medical report, the job requires working for long hours, regular squatting and kneeling as well as lifting weight more than 30 catties by himself and the use of different appliances and utilities, and he would also need to climb ladder up to 2 to 3 metres as well as working on high platform up to 2 to 3 metres. All of these pose real challenge to the plaintiff, having encountered such a serious injury. In concrete terms, as opined by Dr Tio, and also as demonstrated and explained by the plaintiff at the hearing, I find that when working as a welder, the plaintiff does require intermittent breaks of 15 minutes after each 1.5 hours of work. At the hearing, the plaintiff demonstrated to the Court the work procedure as a welder. He mentioned that there are H-beams which may take 4 hours to conceal. If he needs to take a break of 15 minutes break every time after working for one and a half hour, it is likely, in my view, that his income will be reduced. I find that if he returns to work as a welder, he would lose about ⅐ of his working time every day, and accordingly (also as submitted by the plaintiff’scounsel in their closing submission) there would be a reduction of about ⅐ of his income. E. HEADS OF DAMAGES E1. Pain, suffering and loss of amenities (“PSLA”) 36.I have taken into account the cases referred to this Court by both parties. The more pertinent ones in my view include the following:
37.Taking into the circumstances of the accident and the injury that the plaintiff has suffered, in my judgment, a sum of $650,000 is reasonable under this head. E2. Pre-trial loss of earnings—during sick leave period 38.It is the plaintiff’s pleaded case that at the time of the accident, his monthly earning was $21,600. This is supported by the Form 2 dated 17 February 2014 filed shortly after the accident by the 2nd defendant with the Labour Department. Since $21,600 was the monthly salary which the 2nd defendant adopted and submitted to the Labour Department, absent any explanation from the defendants there is simply no reason why I should not find that the plaintiff was making $21,600 at that time. Moreover, $21,600 was also the figures adopted by the Labour Department in assessing the plaintiff’s monthly salary under section 16A(2) of the Employees’ Compensation Ordinance, Cap 282. 39.In respect of the sick leave period:
40.I prefer to follow the assessment of the Employees’ Compensation (Ordinary Assessment) Board. I have borne in mind the absence of reasons (which are not required by the Employees Compensation Ordinance) of the assessment. I have taken into account that it is a formal statutory assessment of the period of absence from duty necessary as a result of the injury. Further, it is supported by the view of Dr Tio. Dr Tio’s opinion was based on, as a matter of fact, the subjective complaints made by the plaintiff (which evidence I have found to be truthful as explained above) at the Community Rehabilitation Centre and to Dr Lau at various occasions in late 2015 and January 2016. They were all occasions taken place after the assessments of physiotherapy and occupational therapy which Dr Ko relied on. 41.Therefore, I find that the sick leave given from 7 February 2014 to 8 January 2016, a total of 701 days, say 23 months, is reasonable and should be allowed. 42.The plaintiff has suggested that 12 months after the accident I should adopt the average daily wages of workers engaged in Public Sector Construction Projects as reported by main contractors, compiled by the Census and Statistics Department of the Government, ie $1,333.3, so that the plaintiff’s monthly salary for calculation should be $1,333.3 × 24 days of work = $31,999.2. But this means there would be an increase of salary from $21,600 to $31,999.2, ie an increment of 48%. Absent any substantiating evidence I do not consider such sharp annual increment to be likely. Hence $21,600 would be adopted as the plaintiff’s monthly salary throughout the sick leave period. 43.The total loss of income during the sick leave period plus mandatory provident fund (“MPF”) is therefore:
E3. Pre-trial loss of earnings—after sick leave period from January 2016 to August 2018 44.After the sick leave period, as I have found above, the plaintiff should have been able to resume his pre-accident job but at a reduction of ⅐ of his income (which is caused by the accident). With a monthly salary of $21,600, there would be a loss of $21,600 × ⅐ = $3,085.7 per month. 45.The total loss of income after the sick leave period allowed above from January 2016 to August 2018 (i.e. 32 months) is therefore:
E4. Future loss of earnings 46.I accept the plaintiff’s evidence that his welding masters taught him well and that he was a fast learner. As mentioned in his witness statement, he was able to work together with his welding masters after one month he started learning to weld. He testified that other welders also acknowledged him for his good performance, and that he had a sense of job satisfaction. Indeed before the accident he had signed up for the welder course to get a licence. I accept his testimony that he had no difficulty in getting the welder license. According to him, the earliest he could get the structural welder licence would be in 2017, and the daily wage of a structural welder would be from $1,400 to $1,800. 47.I accept the plaintiff’s counsel’s submission that the plaintiff’s evidence is well supported by the statistics published by the Census and Statistics Department of the Government on “General Welder” daily wages from January 2013 to July 2017 and “Structural Steel Welder” daily wages from January 2013 to July 2017. According to the latest statistics publishedby the Census and Statistics Department of the Government produced by the defendants, the daily wage of a general welder in August 2018 is $1,409.20. 48.A loss of ⅐ income as I have found above would be $1,409.2 × 24 working days per month × ⅐ = $4,831.5 per month. 49.The defendants’ counsel submits that the retirement age of a welder should be taken as 55 years old as it was the plaintiff’s evidence thatolder welding workers had occupational disabilities which might cause them to be unable to work till the conventional retirement age of 65 years old. This is a mere conjecture. I accept the plaintiff’s counsel’s suggestion to assume that the plaintiff would retire at the age of 60. This in my view is more reasonable. 50.As such, the agreed multiplier in accordance with Table 5 of Personal Injuries Table 2016 is 22.74. 51.The future loss of income plus MPF is therefore:
E5. Loss of earning capacity 52.I accept the defendants’ counsel’s submission that two criteria must be met by the plaintiff before the Court allows damages under this head:
See Moeliker v Reyrolle & Co [1977] 1 WLR 132 at 141 per Browne LJ. 53.The plaintiff is currently working at a gas station near his home as a part-time petrol attendant when he only needed to stand when serving customers for filling in petroleum and simple cleaning. 54.There is no evidence adduced by the plaintiff showing that he is under any risk of losing his present job. 55.Therefore, no damages can be awarded under this head. E6. Special damages 56.I allow the medical expenses of $16,582 as claimed by the plaintiff. 57.Other items have been agreed between the parties, namely:
E7. Interests and set-off against payment made under the Employees’ Compensation Claim 58.There is no dispute that for PSLA, the plaintiff is entitled to, and I so allow, interests at 2% per annum from the date of writ to the date of the trial. 59.For special damages, the plaintiff is entitled to, and I so allow, interests at half judgment rate from the date of the accident to the date of the trial. 60.The total amount of damages assessed will be set off against $700,000 being the payment made under the claim under the Employees’ Compensation Ordinance (“ECC”). F. CONCLUSION 61.The result of the assessment of damages is summarized as follows:
62.I therefore order the defendants pay to the plaintiff the sum of $1,985,584.8, together with interests in accordance with what I have allowed in paragraphs 58 and 59 above. 63.I also make an order nisi that the defendants pay the plaintiff costs of the assessment of damages, to be taxed if not agreed. 64.I thank Counsel for their helpful assistance.
Ms Lorinda Lau and Mr Forest Fong, instructed by LKC Lawyers, for the plaintiff Mr Victor Gidwani and Mr Jethro Pak, instructed by W H Chik & Co, for the 1st and 2nd defendants | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
showed fracture right tibia and fibula. This, in any view, was a serious injury. Cases cited in this judgment
Other judgments that cite this case