Choy Wai Chung v. Chun Wo Construction & Engineering Co Ltd
Read the full judgment text of HCPI 605/1999 on BabelCite. This High Court CFI judgment was delivered on 16 December 2003.
1. In this action, the Plaintiff claims damages for personal injuries suffered in an accident allegedly occasioned by the negligence of the Defendant company.
Cited by 4 cases
|
HCPI 605/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES NO. 605 OF 1999 ____________
____________ Coram: Hon Beeson J in Court Dates of Hearing: 8, 9 & 11 September 2003 Date of Judgment: 16 December 2003 _______________ J U D G M E N T _______________ 1.In this action, the Plaintiff claims damages for personal injuries suffered in an accident allegedly occasioned by the negligence of the Defendant company. 2.The Defendant was, and is, a limited company incorporated in Hong Kong carrying on business in the construction and engineering industry. The Plaintiff was, and is, employed by the Defendant as a Senior Construction Engineer. The Defendant, at the date of the accident, was the main contractor at the Peak Tramway Terminal construction site at Victoria Peak. 3.On 28 June 1996 about 8:20 am, the Plaintiff was carrying out his duty, inspecting the supply of building material on level 5 of the building. While climbing on a heap of assorted, canvas-covered, building materials, he fell into a pit formed by the canvas being stretched over supportive building material which concealed the empty space. The Plaintiff fell about 3-4 feet; as a result his right foot hit the ground and his right ankle was injured. Particulars of Negligence 4.The particulars of negligence alleged the Defendant failed to provide proper supervision and/or train its employees, not to create any pit in placing and storing building materials; failed to give a warning notice at the pit about a possible hazard, created by the canvas being stretched over building materials; failed to provide safe working conditions for the Plaintiff and failed to provide a safe system of work exposing the Plaintiff to unnecessary risk of injury. 5.It was also alleged that the accident showed a breach of Rule 52 of the Construction Sites (Safety) Regulations, Cap. 591 because the Defendant, as the main contractor of the construction site, failed to stack materials securely, to ensure they offered no danger to workmen employed at the site. District Court Proceedings 6.The Plaintiff's employee's compensation claim against the Defendant was heard in the District Court in November 1999. The trial took 6 days, both sides being represented by counsel. 6 witnesses were called for the Plaintiff and 5 on behalf of the Defendant. The District Judge made various findings. As to how the accident happened, he stated:
7.The District Judge considered causation and, having summarised the medical evidence, found as follows:
8.The judge also had to consider the Plaintiff's ability to continue work as a civil engineer, and he found as follows:
9.On the Plaintiff's loss of earning capacity the judge stated:
10.After the question of the Plaintiff's average pre-accident earnings was examined the judge's finding was:
11.At the outset of this trial, counsel for the parties advised the court that they considered issue estoppel existed in respect of the findings as outlined, although the computation of pre-accident earnings, according to the Defendant was specific to the EC claim. That limited dispute about liability, although the issue of contributory negligence remained at large. The Plaintiff proceeded on the basis that any evidence which sought to put forward a case different from that of the Plaintiff, was an attack on the District Judge's judgment and, as such, an abuse of process. Claim for Damages 12.The Plaintiff claimed damages: (a) for lost income past and future, (b) pain, suffering and loss of amenities (PSLA) - submitting the injury fell into the "serious injury" category, (c) accommodation with a lift landing on the same level as the Plaintiff's premises, (d) a claim for care given him by his wife - past and future, (e) medical expenses and (f) travel expenses. 13.The Further Revised Statement of Damages claimed PSLA at $540,000.00, with interest at 2% from the date of the accident. Special damages included past loss of earnings and MPF amounting to $4 million; medical expenses of $50,612.00 and travel expenses of $42,024.00. The claim for past care by the wife was put at $300,000.00. Credit was given for the ECC award of $1,344,650.00. Interest on special damages was claimed at 4% over a period of seven years and two months. Future loss of earnings and MPF was claimed at either $7,488.00, based on the traditional multiplier, or $8,736,000.00, based on the 2.89% term rate, on the basis of another employer $7,704,684 or $8,988,798 if employed by the Defendant. 14.For loss of earning capacity the Plaintiff claimed $600,000.00, being equivalent to 12 months' earnings. The alternative accommodation, if purchased, was claimed at $720,000.00, or, if rented, at $861,120.00. A claim for future care by the wife on the traditional multiplier rate, was $648,000.00, or if at the 2.89% term rate, $828,000.00. Orders and Directions 15.This trial followed orders made and directions given before trial. An Order of 9 June 2003 granted by Seagroatt J, gave the Plaintiff leave to argue res judicata on findings made in the E C proceedings, in DCEC No. 332 of 1998. By the time of the trial, that matter was no longer in issue and the point was not argued. Other pertinent directions were that:
16.Those directions were followed; at trial the witness statements were ordered to stand as evidence-in-chief. The Plaintiff was tendered for cross-examination and was cross-examined by counsel for the Defendant on the issue of contributory negligence. 17.The reports of the Government doctors about the chronological hospital treatment of the Plaintiff, were agreed and adduced in evidence without the being makers called. Medical evidence was limited to one orthopaedic surgeon for each party. The most significant order, made by Seagroatt J on 9 June 2003, stated:
18.Pursuant to that direction, the reports of two experts were filed. The report for the Plaintiff was prepared by Mr Aaron Wong, a Fellow of the Society of Actuaries, employed by Watson Wyatt Hong Kong Ltd, an actuarial consulting firm operating in Hong Kong and elsewhere. Mr Wong was tendered for cross-examination at trial. The expert report for the Defendant was that of Mr Stuart Leckie, an independent actuary based in Hong Kong. Mr Leckie was not called to give evidence, nor tendered for cross-examination. Each expert had been instructed to discuss the real rate of return in Hong Kong on money invested and the appropriate multiplier for future loss. Outline of medical history 19.After the accident on 28 June 1996, a Friday, the Plaintiff continued to work and did not seek medical attention until Sunday evening, when his ankle was swollen and painful. On 1 August 1996 he attended Tang Shiu Kin Hospital with "persistent right ankle pain after inversion injury whilst on duty". The right ankle was swollen with tenderness over the medial collateral ligament. An X-ray did not show any fracture and he was treated as for a sprained ankle, with analgesics and physiotherapy. The Plaintiff was hospitalized from 1 to 3 August 1996. This was a sprained ankle injury for which the Plaintiff has walked with crutches from the accident date, which has precluded him from working since that date, and which, according to his evidence, continues to stop him working. 20.A medical report, dated 1 April 1998, by Dr Samson Chan of Queen Mary Hospital Orthopaedic Department, confirmed that investigation, including an MRI, showed the Plaintiff had osteochrondritis dissicans over his right talar dome. As conservative treatment had not assisted, the Plaintiff had an ankle arthroscopic treatment on 15 April 1997. He made slow improvement thereafter. Radiology investigation showed the talus had some incomplete reconstitution of the bone. Doctors expected, at that time, the Plaintiff would continue to recover for a year or so, but would have some residual stiffness and could expect pain in his ankle from degenerative arthritis. 21.In March 1999, Dr Chan reported that the Plaintiff had made some recovery of his right ankle function. At that time he was walking with one stick for a limited distance. He had on and off pain, occasioned by stress and weather changes. There was mild tenderness over the right ankle joint. The X-ray showed mild degeneration over the medial compartment of the ankle joint. He still suffered pain and surgical excision of the talar bone defect was to be considered in future. 22.On 14 November 2001, Dr Ng Ka Ho, of the Department of Orthopaedic Surgery at Queen Mary Hospital examined the Plaintiff who continued to complain of right ankle and foot pain. He required two crutches for walking. The Plaintiff expressed his inability to resume work and sick leave which had been granted from the date of the accident, was continued. 23.Dr Ng, on 28 April 2003, confirmed the Plaintiff's condition was stable and his clinical symptoms and radiological assessment were static. A Medical Assessment Board was to assess his degree of long-term disability. Plaintiff's Expert 24.Dr Au Ting Wah, an orthopaedic specialist, examined and reported on the Plaintiff on various dates. On 3 December 1998, he reviewed the Plaintiff's injuries and medical history. At that stage, the Plaintiff was to have another MRI scan and his surgeon was planning a second operation. Dr Au's physical examination showed the Plaintiff walked with a stick and limped. The right lower limb could not bear weight properly. The Plaintiff said he could walk for ten minutes only, even with a stick and he suffered pain in the ankle at night. Dr Au considered the Plaintiff had an osteo-chondral injury of the medial talus dome. An X-ray showed the lesion was still visible. He assessed a 15% permanent disability and opined it would be a remote possibility that the Plaintiff could resume work on a construction site as that would require a "very functional ankle"; presumably meaning a fully functional ankle joint. 25.On 5 March 1999, Dr Au discussed proposed operations with the Plaintiff. In his opinion the Plaintiff probably needed arthroscopic debridement, or an osteo-chondral graft, or ankle fusion. He repeated that the Plaintiff's condition had not changed since December 1998. He discussed the pros and cons of the three operations with the Plaintiff. At that time private hospital prices for the operations discussed, were between HK$50,000 and $90,000. 26.On 2 September 1999, Dr Au saw the Plaintiff again. He complained of right ankle pain for which he needed painkillers for relief. He was walking with crutches. He had not had any operation. Examination showed diffuse tenderness at the ankle joint with a similar range of movement as exhibited in November and December 1996. On 23 September 1999, X-rays showed each ankle had medial talar dome osteo-chondral lesions as at December 1998. 27.Dr Au wished to dispel suggestions that the right ankle condition did not have any significant relationship with the injury. He believed it possible that the Plaintiff had had osteo-chondral lesions on both ankles, even before this injury. Those lesions remained asymptomatic until the accident. The left side continued to be asymptomatic, but the right side was symptomatic from the date of the injury and the most recent X-ray showed evidence of osteoarthritis. Dr Au confirmed that the permanent disability assessed on 2 September 1999 remained 15%, as it was on 3 December 1998. The Plaintiff had no prospect of resuming work in a construction site. His loss of earning capacity was 30%. 28.Dr Au confirmed the Plaintiff was walking with crutches whenever he was outside his flat; there were signs of osteoarthritis at his right ankle. He said the Plaintiff might have difficulty walking, even on level ground, not to mention going up 2 flights of stairs to his flat. He recommended the Plaintiff move to a flat with a lift landing on the same floor, to slow the deterioration of the right ankle osteoarthritis. 29.On 29 October 1999, Dr Au made a further report, after viewing a surveillance tape obtained by the solicitors representing the Defendant. After viewing the videotape, Dr Au adjusted his previous assessment of permanent disability from 15% to 10% and the loss of earning capacity from 30% to 20%. The reason was that the videotape showed the Plaintiff could walk longer distances than he had told Dr Au. 30.On 2 November 2000, Dr Au reassessed the Plaintiff. He still walked with crutches. His right ankle had occasional swelling and pain increased with changes of weather. He regularly used painkillers to control his right ankle pain, but otherwise managed his daily activities. His prolonged use of painkillers had caused gastrointestinal bleeding from a gastric ulcer. The doctors at Nethersole Hospital advised him to stop taking particular types of painkillers after admission. 31.The right ankle joint had developed acute arthritis which had not subsided by the time of the examination. The Plaintiff could not put his weight on the right foot and measurements taken by Dr Au showed some wasting of his right calf muscle. Dr Au suggested other painkillers, which would not cause a gastric ulcer, to control the right ankle arthritis. 32.A report by Dr Au in September 2001 revealed that the Plaintiff walked slowly on crutches; had difficulty getting up from a sitting posture and had mild wastage of the right calf. There was marked limitation of right ankle dorsiflexion with localised tenderness of the right ankle joint, at the anteromedial and posteromedial surfaces. He had normal range of movement of hips and knees on both sides and normal lumbar lordosis with no back pain. X-rays of both ankles indicated the findings over the talar bones could be due to osteochondritis dissicans. The osteo-chondral lesion, together with developing arthritis, caused the Plaintiff's right ankle disability. 33.Dr Au acknowledged that pain was very subjective and difficult to assess, especially if the situation involved compensation. He believed that with the help of a physiotherapist, the Plaintiff should be able to walk with a stick. The Plaintiff, by that time had been given sick leave by doctors at Government hospitals or clinics for about five years. Dr Au believed the Plaintiff had reached his maximum medical improvement at least 2 years before this examination. He did not comment on the length of sick leave, referring any enquirer to the doctors who granted it. He thought a further operation might be needed in future e.g. a fusion operation. That would cost $80,000.00 in a private hospital and require 3 months' convalescence. He recommended the Plaintiff move to accommodation with direct lift access. His former job in construction sites would be dangerous as he had to negotiate uneven ground and stairs. The Plaintiff could not take a job which required a lot of walking. Defendant's Expert 34.Dr Mak K H, prepared a report at the request of the Defendant, on 28 November 2000 and reviewed various documents supplied to him; the surveillance report and videotape; copies of X-rays from 13 June 1996 to 15 June 1999; copies of an MRI film dated 5 December 1998; and notes from the Tang Shiu Kin physiotherapy department from August 1996 to October 1997. He interviewed the Plaintiff and examined him on 23 November 2000. 35.He agreed with the diagnosis of osteochrondritis dissicans. It could be a cause of persistent ankle pain in young, active patients. It was difficult to define the aetiology of the pathology, as ankle sprain injury is a common incident, or accident. It could be found on both lateral and medial sides of the talus dome of the ankle. The osteochrondritis dissicans in the ankle joint is a fractural separation of an osteochondral fragment in the articulating talus. Pain is produced either because of the fracture, which may be accompanied by synovitis, or, if the fragment is loose, produced by blocking the ankle-joint motion. Chronic blocking or impingement on the ankle joint by a loose fragment may cause persistent degenerative arthritis. 36.The Plaintiff walked with elbow sticks and Dr Mak thought he was probably using them to release stress and pressure on both ankles. He could not find any differences in the weight-bearing phase of the limb. Dr Mak did not think the Plaintiff needed crutches, apart from his having a false sense of needing to protect his ankles. The Plaintiff appeared annoyed because of the time legal proceedings were taking, claiming he was anxious to get back to useful employment. Examination of the right ankle joint revealed a very supple and stable ankle, without swelling or oedema. The Plaintiff complained of pain during a test of the antero medial jointline, but there was no localized tender spot. Dr Mak considered the Plaintiff had apprehended and exaggerated his symptoms. He wanted to wean the Plaintiff from crutches. The left ankle was perfectly normal with no pain on testing the jointline. 37.Dr Mak commented that the surveillance video showed the same findings as he noted during consultation. He felt the Plaintiff had become used to the elbow sticks for walking and while it was too simple to say he was malingering, he felt the Plaintiff probably believed he had to protect his ankles by using sticks. The symptoms he noted did not justify 3 years of using crutches. In his view the osteochrondritis dissicans in the right ankle was probably a pre-existing condition, and the injury had triggered off an inflammatory response producing pain and swelling. 38.In terms of loss of earnings the Plaintiff has not been able to work since August 1996 and the ankle pain was the only reason he could not go back to work. Dr Mak felt that although the Plaintiff might be exaggerating his symptoms, it was difficult for him to go back to construction sites using sticks at this stage. He did not find the Plaintiff totally disabled. Dr Mak thought it fair to assess disability on the basis of the present residual pain and stiffness of the ankle joint. The injury had brought to the surface an underlying pathology in the talus, his assessment could be based on the progress of the residual pain. 39.He agreed with Dr Au that the Plaintiff should avoid working on uneven ground in future and while the Plaintiff had to accept that with osteochrondritis dissicans of the ankle early degeneration was inevitable, it could be controlled with drugs and was compatible with leading a normal life. He advised the Plaintiff to live with the residual symptoms and take employment requiring less weight-bearing walking. In his view four years sick leave was too long for an ankle sprain injury. Negligence and Contributory negligence 40.The Defendant argued that such injury, loss and damage the Plaintiff might prove was caused wholly, or in part, by his own negligence or was contributed to by reason of the Plaintiff's negligence. 41.The particulars were:
42.At the date of the accident part of Level 5 was used to store various materials. Some of the materials delivered and stored had been retrieved from a sub-contractor - GIG (KG) and GIG (HK) which was going into liquidation. It was necessary to retrieve these materials, because they had been designed specifically for the project and were not replaceable from sources in Hong Kong. 43.Those materials comprised aluminium framework and cladding, windows, anchor T-bolts and other accessories. According to the Plaintiff they occupied some of the area at L5 where the accident occurred. The materials were placed together in the middle area of L5 and most items were covered by individual canvases so they would not be mixed up with material intended for use by other contractors. 44.At the time of the accident, according to the Plaintiff, an area of approximately 50 to 100 square metres in the middle of L5 was covered with materials. 7-8 square metres were occupied by boxed tiles only; these were not thin ceramic tiles, but traffic-bearing floor tiles. Some boxes of tiles were piled up as steps to enable workers to reach the top of the stacked materials. No other way was provided to reach the middle of the storage area. He had not been warned by the Safety Officer, or the Assistant Safety Officer, not to walk on the heap of material. When he went to check the supply of T-bolts on the date of the accident, he walked step by step from the lowest level of the stored materials to a level approximately 4 feet high and then with caution started walking towards the middle portion. He had done this before without difficulty or accident. 45.The Plaintiff believed that he might find T-bolts in the middle portion of the materials at L5. While walking towards the middle he stepped on a vacant space created by workers removing floor tiles from the pile and covering the pile with canvas, so that it appeared there was something underneath. He stepped into the empty space and fell. The Plaintiff had seen other people walking on the materials, and it was common practice for workers to do so, because the heap of materials had grown to a great extent. 46.In cross-examination, the Plaintiff confirmed he was not responsible for storage and complaints about access to materials were not referred to him. His only concern that day was that the sub-contractor told him there was a shortage of T-bolts and he had to check, because it was his responsibility to keep the workers supplied with T-bolts. He agreed with a suggestion by Defendant that he could have lifted the canvas at the outer edge as there would be no difficulty in doing so, but said he was walking on the heap to search for T-bolts and to check the tiles which could be anywhere in the accumulated collection of materials. 47.He confirmed that paving of the area referred to as "the Peak Cafē end" on L5 commenced about 10 days before the accident and only a few workers were involved with that tiling. The tiles required were delivered to the side of L5 near the Peak Café and used to pave that area. The procedure was that a small area was paved and, if the architect accepted the colours, the remaining tiles would be laid. Only then would the workers get the appropriate colour of tiles from the area where materials were stored. 48.Generally, there was no reason why materials could not be stored in the area where they were to be used. The Plaintiff said that, if it could be avoided, no contractor would put materials in a different place from the location of work. He denied inventing evidence that boxes of tiles had been used as steps to enable workers to access materials. 49.Defence counsel suggested that the Plaintiff was embellishing his evidence, but most of the material appears in the Plaintiff's statement and, in the EC proceedings, such questions were not asked of him. Much was made of his attending a special safety course while employed by the Defendant. It was suggested that this meant he should have known better than to walk on stacked, covered, material. 50.The Defendant called two employees, Mr Lam Pak Chung and Mr Fung Siu Fat, who were both foremen. Neither witnessed the accident, nor did they learn of it until some days later. Mr Lam disagreed with the Plaintiff's account of what, and how much, material was on L5. He denied seeing anyone stepping, or walking, on the tile boxes. If he had seen people doing that, he would have asked them to come down immediately. 51.He said boxes had not been placed for use as steps; it was more likely the tile boxes were moved from the edge of the pile first, because it was easier for the workers to do that. 52.Mr Lam said the surface area on L5 that was not covered by materials was very large, with plenty of room for walking around the pile of materials, making it easy to inspect what was under the canvas. 53.Mr Fung gave similar evidence. He said most materials did not need to be covered and disputed that various items were covered by separate pieces of canvas. Although at the end of 1995, L5 had been used a place for storing materials, that lasted only 2 or 3 months. After March 1996, the materials on L5 were moved away and used; by June there was a very small quantity of materials left on L5, perhaps aluminium and masonry. Even at the peak time for storage, L5 was not so covered with materials as to leave no room to walk through, or to prevent access to other levels. 54.Unfortunately neither Mr Lam, nor Mr Fung gave statements on this matter until 2003. They were very much relying on their memories as to what happened 7 1/2 years earlier and, realistically could only react to comments made by the Plaintiff in evidence. To that extent, their evidence was not particularly cogent, or helpful. 55.It is the nature of construction sites that materials must be stored there. On an ideal site, there is one, or more, designated storage areas supervised by a storeman, who signs materials in and out. Where that situation does not apply, it is likely that where possible, materials delivered to the site will be placed as close as possible to the areas where they will be needed, on the same level at which they will be used. 56.In the absence of a specific storage facility, it is probable that workmen, at times, have to, or choose to, walk over stored materials. That appears to be what happened here. There was nothing inherently dangerous in the materials stored, except, possibly, glass joinery. Whilst I accept that foremen and Safety Officers would discourage workers and sub-contractors from accessing materials in a haphazard manner, no doubt there were occasions when it was necessary for sub-contractors to search amongst stored materials for items they required for the next phase of their work. People, like the Plaintiff, also needed access to materials, however and wherever stored, to ensure sub-contractors could continue their tasks. 57.There was no particular reason why the Plaintiff should not have climbed on the piled material. It was likely that workers from all levels of the hierarchy commonly would do so either to check what materials were present, or to gain access to other areas. Not only had the Plaintiff walked on the heap before, he had seen other people doing it and he knew of no specific instruction from anybody prohibiting workers from, or advising workers against, climbing on the materials. The heap at its highest, was said to be 3-4 feet - not so high therefore as to discourage workers from climbing on it, nor so high as to be inherently dangerous. 58.Counsel for the Plaintiff referred to the standard cases on contributory negligence. The most apposite comment, appears in John Summers & Sons Ltd v. Frost [1955] AC 740 where Viscount Simonds said @ 754:
So I find in this particular case, the Plaintiff was searching for T-bolts which may, or may not, have been stored in the heap of materials that had grown over the course of the construction on L5. I do not find he was being deliberately foolhardy, or that his behaviour exemplified negligent conduct. I do not find contributory negligence established. 59.I find having considered the evidence that the Plaintiff succeeds in establishing that the Defendant is liable in negligence for the injury he suffered to his ankle. The storage of materials on site does not appear to have been regulated in any meaningful way and no evidence was given of any systematic requirements for the storage of materials, or the provision of access to them. It appears that sub-contractors arranged for delivery and storage of the materials they needed, when it suited them; this resulted in the heap of materials on L5. That heap would grow and diminish at intervals and would change its contours as goods were collected or delivered. As the heap was more or less in the centre of L5, access to other floors was not impeded, although the activities of those working on that level may have been affected at those times when the heap grew in size. It was for the Defendant to set up a proper storage system as needed and its failure to do so meant it was obliged to bear responsibility for the likely or probable consequences of such inactivity. Assessment of Damages PSLA 60.At the time of this trial the Plaintiff admitted that his condition was the same as it had been at the time of the EC hearing. There were various indicators of his condition and the alleged unlikelihood of any improvement. 61.After the right ankle arthroscopy, on 15 April 1997, no further treatment was given to the Plaintiff. There were discussions between the Plaintiff, his doctor and Dr Au about the possibility of a further operation, but no operation was done and it appears the Plaintiff has decided against it, for the foreseeable future. 62.In March 1998 Dr Samson Chan reported that the Plaintiff had increased his weight-bearing tolerance, had less pain, an increased range of ankle movement and was able to walk without assistance. 63.Twelve months later Dr Au advised that the Plaintiff should resume work. The Plaintiff claims thereafter to have asked Dr Chan whether he could return to work and been advised 'orally' that he should not do so. Such advice was never incorporated into any report and, on its face, appears contradictory in light of the comments Dr Chan made in March 1998. When asked in Court if he knew the reason for such advice, the Plaintiff gave the rather unsatisfactory reply that if he was injured on his way to work he would have problems, a non-specific comment that could apply to any worker. 64.The surveillance tapes, which were obtained during August and September 1999, showed the Plaintiff was barely relying on his crutches and this was supported by the report of the Occupational Therapist who found the Plaintiff could walk unaided, indoors, without crutches. Dr Mak, the Defendant's expert, was also of the view that the crutches the Plaintiff has used for 7 years, were now a psychological rather than a physical necessity and that it was desirable he train himself to use, at most, a stick. 65.At present the Plaintiff effectively refuses to improve his mobility - his attitude may change once this case has concluded. An overall view of his medical condition at present, is that although he has some limitation of the right ankle movement and may experience some episodic pain from seasonal or weather conditions, or over-exertion, he is otherwise fit and able to return to work. 66.Both he and his wife have reacted to what was no more than a sprained ankle, as if the Plaintiff had been rendered paraplegic. The Plaintiff's present claim is based on the assumption that he will never work again and that he requires full nursing attendance from his wife. Whilst the reviewing doctors have been too tactful to suggest the Plaintiff is malingering, it is difficult for a court taking an overview of the medical evidence to reach any conclusion other than that he has managed to convince himself he is now unemployable, when in fact he is not. 67.The Plaintiff places much reliance on the large number of sick leave notes produced as proof he has been, and still is, unfit for work. In reality they show no more than that the Plaintiff, who has little else to do, has been assiduous in attending, unnecessarily, on doctors who do not treat him, because there is no need to do so; who write sick leave notes, without examining him and who issue sick leave notes on the basis of wholly subjective symptoms reported by the Plaintiff. 68.Muttrie J in his judgment of 14 December 1999, questioned the need for sick leave notes for an injury which had stabilized and for which the permanent loss of earning capacity had been assessed. How much stronger the questioning of that need should be, when the trail of sick leave notes has continued for a further 4 years. 69.The report of Dr Mak states that 4 years sick leave for an injury of this nature is more than sufficient. The Plaintiff's own expert, Dr Au, declines to comment on the length of the sick leave periods granted to date, and suggests the doctors who issued them should be consulted, if reasons for their issue are needed. 70.Nowhere in this lengthy saga is there evidence of any attempt by the Plaintiff to return to any form of work, whether on or off crutches, indoors or outdoors, paid or unpaid. A discussion with the Defendant's director refers to a job being available indoors, "when the period of sick leave ceases". The Plaintiff has ensured that so far it never has ceased. Current Condition 71.I am satisfied that at present the Plaintiff is fit to resume work in an office. I base this on the findings of Muttrie J and the medical evidence adduced since the date of his judgment. The medical consensus is that the Plaintiff relies very little on and should be able to walk without crutches, although initially he may require a stick. He has become too attached to using crutches, such attachment resulting from his fear of possible future pain or injury, rather than from the present physical condition of his right ankle. 72.There is some residual stiffness of the ankle and there may be intermittent episodes of pain in future occasioned by climatic changes, or over-exertion. Given the Plaintiff's present psychological reliance on crutches I accept that there will be a transitional period during which he will have to accustom himself to the use of a stick, before beginning to walk unaided. That he has the potential to walk unaided is not doubted by either expert. 73.The Plaintiff is able to return to work, although it is unlikely he would be able to work on a construction site as before. He is able to work in an office and some years earlier admitted he could do so. Conclusion 74.The Plaintiff suffered pain and inconvenience as a result of the injury he suffered. That state continued for some time and according to the Plaintiff continues still, although the evidence suggests that the Plaintiff, if so motivated, could have a much more active life. He once needed crutches to walk on and is still using them, although his need to do so now is more psychological than real. 75.Apart from an initial 3-day admission to hospital, the Plaintiff did not require hospitalisation other than the period required for the arthroscopy in 1997. He told the court that he was not a man with extensive sporting interests prior to the accident. The disability he suffered was described by the judge as "a real one even if much of it stems, not from anything really very wrong with his ankle now, but rather from the pain or apprehension of pain". 76.The Plaintiff pegs his injury at the upper end of the serious injury category. In my view this injury falls far short of that point. This was a sprained ankle. No extensive hospitalisation was required. There was no need for a complicated operation, nor was there unsightly scarring. There was a pre-existing pathology and the accident in all likelihood precipitated the symptoms. In future there is likely to be intermittent pain and a degree of permanent stiffness. It is possible, although improbable, that the Plaintiff will choose to undergo an operation at some time in the future, but there is no evidence to suggest what, if any, improvement might be achieved. 77.Taking into account all these factors, and noting that the comparable cases I was referred to deal with more serious injuries, I award the sum of $250,000.00 for pain, suffering and loss of amenities. Special Damages (I) Past Loss of Earnings 78.The Plaintiff has been on sick leave since the date of the accident and claimed income for the whole of the sick leave period (7 years 2 months). It was submitted on his behalf that although Dr Mak had queried the length (4 years) of sick leave for an ankle injury, the treating doctors were in a better position to assess his condition. That would have been correct if in fact the doctors giving the sick leave certificates had been treating the Plaintiff, but that was not the case. 79.Plaintiff's counsel submitted that even assuming the Plaintiff had relied wrongly on the medical opinion, as exemplified by the sick leave certificates, it would be wrong to deprive the Plaintiff of any award for doing so. 80.The Plaintiff who is still on sick leave relies now on the alleged oral comment of Dr Chan that it was not appropriate for him to work at his original, or at any job again. He made a desultory enquiry of the Defendant about returning to work. He was told he could have an indoor post, depending on medical clearance, but never returned for further discussion. 81.I note that the comment attributed to Dr Chan was never reduced into writing and does not coincide with the generally agreed medical opinion, that although site work is not recommended, there is nothing to stop the Plaintiff working in an office. 82.The Plaintiff has resiled from his position at the time of the EC hearing, that he could have returned to work in an office. There is no credible explanation why the Plaintiff made no attempt to return to any form of paid employment whatsoever. It was submitted on his behalf that given his qualifications he could not be expected to take just any form of menial office or clerical works. His duty to mitigate his loss has been ignored entirely. 83.I am satisfied, and so find, that the Plaintiff has been able to return to work in an office for some years - probably since the date of the EC proceedings and certainly from the end of 2000, to adopt a conservative, albeit somewhat arbitrary, date. The Plaintiff has chosen to do nothing at all and his claim now is based on the contention that he is wholly unemployable. I do not consider that he has succeeded in substantiating that claim. In the circumstances I propose to award past loss of income for the period from the date of the accident, 28 June 1996 to the end of 2000. (4 years 6 months) Past Loss of Earnings - basis for assessment 84.The Plaintiff presented alternative bases for assessing past loss of earnings. The first was that he would have continued to work with the Defendant and, by the trial date, would have reached the income ceiling of senior engineers which is $42,780.00, without benefits or allowances. The other was that he left the Defendant and worked for another company which would mean his monthly income would be around $50,000.00. In each case the Plaintiff presented an analysis of the figures to show likely linear increases over the years and adjustments for allowances, bonuses, provident fund and other benefits. 85.The Defendant submitted there was no evidence to support the claim that the Plaintiff would have reached the income ceiling of a senior engineer, or that he would have achieved the salary suggested if he joined another company. The Plaintiff asserted he would have become a Chartered Engineer by 2002, but such an achievement is not a matter of rubber stamping. The Plaintiff would have to be qualified to apply, satisfy the application criteria and show that he might reasonably be expected to qualify. 86.At the date of the accident the Plaintiff's salary was within the lowest quartile of salaries for engineers, (as shown in figures compiled by the Census and Statistics Department) which indicates a fairly junior level of achievement. In the EC proceedings, in November 1999, the Plaintiff told the court he expected it would be at least 10 years before he could be promoted to a much more senior level. These factors make it unlikely that the Plaintiff would have become a Chartered Engineer in the time span now suggested. Accordingly salary is assessed assuming that the Plaintiff's qualification status remained as it was at the accident date. 87.In assessing past loss of income the Defendant argued that the Plaintiff's basic salary at the date of the accident was $3,150,000 and that he would not have received additional allowances, other than Mutual Provident Fund (MPF) contributions. This differed from the $39,884.80 in the EC proceedings but, counsel argued that sum specifically related to earnings in the context of s. 10 of the Employees Compensation Ordinance, Cap. and thus was not relevant to this assessment. 88.Mr Cheung Kwan Ho, the manager of the Human Resources Services Department of the Defendant gave evidence of the salary arrangements of the Defendant. Salaries are reviewed annually. He confirmed that in 1996 the Plaintiff's basic salary was 31,500.00 and that he received a fixed allowance of $460.00 per month, and a traffic allowance of 20.00 per day. A temporary site allowance of $3,150.00 was also paid, although not paid if he worked on other sites. 89.The Plaintiff's basic salary was shown as he would have received it if he had continued to work from 1997 to 2003. From 1997-2001, the salary rose to $39,955,556.00, thereafter, as a result of the economic recession, the level dropped to $33,906.00. Downward adjustments of salary were made in 2001 and 2003 - in 2002 there was no adjustment. 90.Mr Cheung confirmed that in 2003 the Defendant employed about 80 engineers, 9 of whom were employed at the head office. His evidence was that bigger salaries were paid by larger firms and the HKSAR Government. That may be the case, but although the Plaintiff sought information from a larger firm and the HKSAR government about the salary levels, I note that the Plaintiff has never resigned from the Defendant company and, accordingly I assess his salary levels, post-accident, at the level of salary he would have received if he had continued to work with the Plaintiff. 91.Mr Clement Kwok Yuk Chiu, a director of the Defendant company, recalled a short discussion with the Plaintiff after the accident about the possibility of his working in the head office, although he could not confirm it took place in February 1999 as the Plaintiff suggested. He said he told the Plaintiff, if his medical condition allowed, that arrangements could be made for him to work in the head office and that he should inform Defendant when he was ready to return. After that he had no contact with the Plaintiff. He confirmed that the terms of the Plaintiff's employment would not be altered if he switched to office work. His evidence was that such work might mainly be paper work, but neither he nor Mr Cheung were any more specific than that. 92.I allow pre-trial earnings from the date of the accident (28 June 1996 to 31 December 2000) as follows:
I include the site allowance on the basis that the Plaintiff, as construction site engineer, would have contained to receive it for work on sites similar to that he worked on at the date of the accident. II Future Loss of Earnings 93.The Plaintiff made a substantial claim for post-trial earnings on the basis that he is now unemployable. For reasons outlined earlier I do not agree that claim has been substantiated and decline to make an award under this head. Counsel for the parties addressed the court on this matter with particular emphasis on the way in which the court should deal with the award and the basis for investment of post - trial losses. Because it was an important part of this case I have addressed the submissions made, even though I have not made the award sought by the Plaintiff. 94.The Plaintiff was aged 31 years at the date of the accident and at the time of trial was aged 39 years. Assuming 65 as the likely retirement age, 15 was the multiplier sought by the Plaintiff. The Defendant said the multiplier should be 11 and reduced further to 8 because of the underlying pathology. 95.The Plaintiff made submissions in respect of future loss of earnings and MPF on the basis of a traditional multiplier or, alternatively for future loss of earnings and provident fund on the basis of a return rate of 2.89%. Multiplier 96.The Plaintiff submitted that in setting a multiplier the court should eschew what was referred as the 'conventional approach' the basis of which is the case of Leung On & Anor v. Chan Pui Ki [1996] 2 HKC. There a 5-member Court of Appeal assumed that a lump sum award would give a real return of about 4% and commented that nothing in the evidence showed that plaintiffs had been under-compensated for future loss of earnings by the use of conventional multipliers over the preceding 12 year period. 97.The Plaintiff advocated that this court follow the approach adopted in Wells v. Wells [1998] 3 All ER 481 which decided, after considering the realities of the investment scene pertaining in the United Kingdom, that whilst a prudent investor would be likely to invest in the equity market obtaining a rate of return of 4.5%, a plaintiff needed an investment which will bring him the income he requires, without his having to face the risks inherent in the equity market. 98.The court in Wells considered the proper investment measure should be index-linked government securities (ILGS) - the suggestion being that it be the average rate on ILGS over the preceding 3 years, net of tax. 99.The Plaintiff's actuarial expert, in this case, had been instructed to comment on the prudence of bank deposits and other forms of investment in Hong Kong, to provide details of and describe the investment performance of the funds for major local retirement schemes in Hong Kong for the past 3 years and to advise on the multipliers for loss of earnings for various rates of return. 100.On the first point he concluded that investment in bank deposits is the most prudent investment available in Hong Kong. His analysis of 10 retirement funds, of an average scheme size of 1.9 billion, revealed that the investment returns of those schemes had all been negative over the previous 3 years, because of a plummeting stock market. He assessed their median annualised return for the 3 years as - 10.1%. He set out in tabular form 2 tables of multipliers for loss of earnings for retirement ages of 60 and 65. 101.The Defendant's expert witness was instructed to report on 2 things: the real rate of return in Hong Kong on money invested and the appropriate multiplier figures for future loss. He analysed various matters relevant to those 2 issues and summarised his conclusions as follows:
102.Overall he considered that the conventional figure of 4% p.a. remains an appropriate real rate of return for determining the multiplier in the calculation of damages for a plaintiff. The expert report of the Defendant related to an investment span of 20 years. 103.The basis of the Plaintiff's submission was that economic factors in 2003 were markedly dissimilar from those the court considered in 1996 - in particular Hong Kong was experiencing deflation, not inflation and investment in equities was yielding negative returns. For that reason this court was urged to adopt the Wells approach, with the distinction that, because in Hong Kong ILGS did not exist, the return on fixed deposits should be the guideline. 104.There was strong criticism of the Plaintiff's expert's approach from the defence, in particular because Mr Wong had looked at the investment position only for the years 2000-2003, but also because the actuarial tables on which his findings were based mirrored the "Quant" tables which the Court of Appeal in Chan Pui-ki had condemned as flawed. 105.By an order of Seagroatt J, on 9 June 2003, conditional leave had been given to adduce actuarial evidence. The court in Chan Pui-ki inveighed against the admission of non-medical expert evidence by complaining that:
and further:
106.Although I have considered the experts' reports and the submissions of counsel I cannot see that 2 reports given in answer to requests for information, or predictions, which differ so substantially can be of any real assistance in this case. Even accepting that the assessment made by Mr Wong is accurate and ignoring the absence of an explanation for the basis for his underlying tables, this is not the court, nor the case, in which to alter the present procedure for deciding the appropriate basis for investment. 107.This may be an appropriate time to consider whether change is necessary, given what might be regarded as the lean financial and economic period since Chan Pui Ki was decided, but as Mr Wong, SC for the Defendant has submitted, the proper starting point for such an exercise should be the Law Reform Commission, rather than this court armed with experts' reports, which are not conclusive of anything very much at all. (III) Alternative Accommodation 108.The Plaintiff claims for accommodation on the basis of the additional area required and the additional cost of acquiring accommodation with a lift entrance on the same level as his flat. 109.At present the Plaintiff lives in a flat served by a lift, the entrance to which is separated by 2 sets of stairs. Dr Au and Dr Mak recommended he move to accommodation on the same level as his flat, to avoid additional strain on his ankle. 110.The claim is presented in 2 ways - either the sum of $720,000.00, if a property is purchased, or, if rented, the sum of $673,920.00 (traditional multiplier of 18) or $861,120.00 (2.84% - return rate multiplier of 23). 111.There is no evidence before the court to establish the present rental, floor area, or amenities of the Plaintiff's present accommodation. Nor is there any evidence to establish anything more than the obvious - namely, that accommodation with a lift entrance on the same level as the Plaintiff's flat would be more convenient. 112.The test is whether such accommodation is reasonably necessary and whether the cost is reasonable. To decide those matters medical evidence is required about post-accident accommodation needs, for instance from an Occupational Therapist and there is no such evidence before the court. The claim suggests that a larger floor area is required, but there is no evidence to explain, or support the necessity for it. 113.Evidence from an independent property expert or valuer that the costs to be incurred are reasonable is also necessary but was not provided. The Plaintiff simply reproduced from newspaper clippings the capital values of 3 properties and the rentals of 3 other properties in the general area of his present flat. That is insufficient to establish this claim, even if such cuttings could be regarded as admissible evidence. 114.An award cannot be made for the whole cost of a new residence as it would leave the Plaintiff with the benefit of a capital asset. Roberts v Johnstone [1989] Q B 878 sets out one measure of the loss as being to calculate the loss of investment income on the additional capital expenditure. 115.If a property was rented the Plaintiff would be entitled to the difference in rent between the rental for the new property and the existing rent. Counsel for the Defendant submitted that there was no evidence that suitable alternative accomodation could not be found at the same rent; no evidence that the quoted rentals reflect market rentals; no evidence why the properties referred to were suitable and no evidence why the Defendant is obliged to provide accommodation that is more luxurious than necessary. 116.The Plaintiff has not established that alternative accommodation is reasonably necessary, or that the cost is reasonable. I decline to make any award under this head. (IV) Care by wife - past and future 117.The Plaintiff claims for the value of his wife's services prior to this trial and a claim for future services. The 6 months post-accident are claimed at $10,000.00 per month and thereafter the claim is for the equivalent of a domestic helper's monthly salary. 118.The wife, is and has been throughout, a housewife so there is no question of her having sacrificed her employment or promotion prospects because of her perceived need to wait hand and foot on her husband. 119.The judge hearing the EC claim commented on the unnecessary extent of the care lavished on a fit 31 years old male who had a sprained ankle. He believed the reason for such care and attention was explained by the wife's sympathy for, and desire to pamper, a husband she regarded as having suffered what she at one point referred to in evidence at this hearing as "a fatal accident". The judge decided that both the Plaintiff and his wife were "exaggerating massively" about the need for the wife's services. I can only agree with that comment. 120.I accept it would have been inconvenient for the wife, to have her husband at home immediately after the accident, with limited mobility. No doubt he would have required some assistance with walking and travelling for medical visits etc in the weeks, or months, after the accident. 121.However the Plaintiff has not succeeded in establishing the need for the continuance of such unremitting attention on the part of his wife, given that he was and is otherwise healthy. There is no cogent medical or other evidence which supports this claim as it is presented. I propose to deal with it by awarding a nominal sum of $18,000.00, which would provide the equivalent of a domestic helper's services for the period of 6 months after the accident. 122.The wife's main contribution appears to have been to participate in a folie àdeux with the Plaintiff, with the result that he imagines his condition now to be much worse than it actually is. If the Plaintiff's wife had devoted more time to helping the Plaintiff wean himself away from his crutches, rather than assisting him to carry out trivial tasks such as washing his face, he might now be gainfully employed. V Loss of Earning Capacity 123.The Plaintiff will not be able to return to his pre-accident post as a construction site engineer, although he would be able to use his engineering skills and training in an office. It was submitted that this would mean a loss of earning capacity in future. 124.There were various factors that established such a loss was likely and, indeed, probable. There was likely to be a reduction of salary as well as a loss of overtime opportunities and receipt of allowances. The loss of basic salary was suggested by Mr Clement Kwok of the Defendant as being in the order of 10% and, although that was not accepted by the Plaintiff, it appears that a reduced salary of at least that percentage could be expected. 125.Posts for office-based engineers, as exemplified by the Defendant's own ratio of posts, were likely to be fewer in number than those for construction site engineers - competition for vacancies in times of recession was likely to be tougher. An employer was likely to prefer an engineer who had the capacity to carry out site visits over one who could not. To that extent the Plaintiff's disability would put him at a disadvantage. 126.It was possible that periods of unemployment between posts would be longer for someone having the Plaintiff's disability. Even if the Plaintiff was employed, his disability could mean that he was passed over for promotion, or that his progress to a more senior position, or positions, was delayed. 127.All those matters would affect the Plaintiff's ability to obtain and retain employment and his earning capacity would be damaged. It is appropriate that the Plaintiff be provided with some form of financial buffer to offset the disadvantages linked with his residual disability. Accordingly I award the sum of $600,000.00 to the Plaintiff. VI Medical and Travel Express 128.Medical and Travel expenses were claimed as special damages. The sum of $2,000.00 was agreed for tonic food. Travel expenses covering the period from date of accident to trial were claimed at $41,976.00. Medical expenses for the same period were claimed at $22,163.00. The medical and travel expenses were disputed. 129.Have considered details of the claim for travel expenses, which are not supported by receipts and which include some $11,000.00 for the travel expenses of the Plaintiff's wife I award the sum of $20,000.00 to cover this aspect of the claim 130.As for the medical expenses I note that much of what is included as "Out Patient Fees" relates to the amassing of sick leave certificates rather than actual treatment I allow reimbursement of medical fees, supported by receipts, for the period from the date of the accident to 31 December 2000. 131.Tonic food is allowed at the agreed figure of $2,000.00. Summary of Award 132.The breakdown of the damages awarded to the Plaintiff in this case is as follows:
Credit to be given 133.The Plaintiff is to give credit to the Defendant for the sum of $1,344,650.00 which was ordered to be paid in the EC proceedings. Interest 134.There will be an order nisi:
Costs 135.There will be an order nisi that the costs of this action are to be to the Plaintiff, to be taxed if not agreed. Liberty to Apply 136.There is to be liberty to apply as to the form of the order.
Representation: Mr Warren Chan, SC & Mr Simon Lam, instructed by Messrs William Sin & So, for the Plaintiff Mr Ronny Wong, SC & Mr Ashok Sakhrani, instructed by Messrs Ip Kwan & Co., for the Defendant Appeal by the plaintiff and cross appeal by the Defendant to Court of Appeal. Appeal dismissed and reserved judgment in respect of cross appeal. Please refer to the appeal judgment of CACV172/2004 |
Other judgments that cite this case
Further hearings and rulings under HCPI 605/1999