Yeung Hing Lun v. Hao Tong Trading Ltd

HCPI000132/2003

HCPI 132/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 132 OF 2003

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Coram: Before Master Allan Leung in Court

Date of Hearing: 19 January 2004

Date of Handing Down Judgment: 6 February 2004

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ASSESSMENT OF DAMAGES

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1.This is an assessment of damages arising out of an industrial accident which occurred on 12 April 2001, the Plaintiff having obtained interlocutory judgment on liability against the Defendant with damages to be assessed on 12 March 2003.

2.The Plaintiff, who was 51 at the time of the accident, had been employed by the Defendant for about a month as a delivery/transportation worker. His job involved loading and unloading of cloths onto and from lorries. The cloths were placed in trolleys and according to the Plaintiff, each of the trolleys weighed about 1000 lbs.

3.At the time of the accident, he was unloading trolleys of cloths from a lorry. After pushing a trolley with his co-worker from the lorry onto an elevating platform at the rear of the lorry, he alighted and was standing next to the platform when suddenly the platform tilted. The trolley on the elevating platform then fell and landed on the Plaintiff. He felt acute pain in his left hip and was unable to walk. He was admitted to the Accident and Emergency Department of the Caritas Medical Centre. X-ray was taken which showed fracture of left femoral neck. He was then admitted to the Orthopaedic ward. Screw fixation was performed at the Caritas Medical Centre on 13 April 2003. The post-operation period was uneventful and he was discharged after about 2 weeks. Thereafter he received physiotherapy and occupational therapy as an out-patient. The Plaintiff was able to walk unaided by the time of his follow up treatment on 14 September 2001.

4.He was put on sick leave from the date of the accident until 6 July 2001, although in his report dated 15 July 2002, Dr. Lam Yan Kit, an Orthopaedic surgeon, opined that whilst the healing and rehabilitation of the type of fracture suffered by the Plaintiff normally takes 6 months to consolidate, a longer period was required for the Plaintiff because of his age. He recommended 9 months of sick leave, i.e. until 11 January 2002. However, the Plaintiff did not return to work until 8 December 2002 and has since been employed as a security guard.

5.The Plaintiff still has pain and weakness in his left hip. He feels the pain when lying on his left side, sitting, or climbing stairs for more than 15 minutes. His present job as a security guard requires him to patrol buildings which involves the climbing of stairs. In fact, whilst in court, the Plaintiff had to stand every 10 to 15 minutes to relieve the pain caused by sitting too long. According to the medical report of Dr. Lam dated 5 July 2002, the Plaintiff continued to show Trendelenburg sign positive for left hip (i.e. when standing with the left leg alone, the weakness in the left abductor muscle is unable to maintain the pelvis in the horizontal position and, as a result, the right side of pelvis will drop and the upper part of the body will swing to the left in order to maintain balance) when he was examined on 26 June 2002.

6.X-rays taken on 28 June 2002 when he was examined by Dr. Lam showed a slightly shortened femoral neck, which in turn shortens the lever arm of hip abductor muscles. This caused mechanical disadvantage in the biomechanics of the abductor muscles of the hip joint. The weakened lateral muscles and the shortened level arm explain the positive Trendelenburg sign and weakness in left hip abduction.

7.In view of his injury and weakness of his left hip, the Plaintiff is no longer able to lift heavy objects and is therefore unable to resume his previous occupation. He can only do light duty job and has been employed as a security guard since 8 December 2002.

8.The Plaintiff is married with 2 children aged 3 and 13 and is the sole bread winner.

Pain, Suffering and Loss of Amenities

9.I was referred to two cases where injuries similar to those suffered by the Plaintiff had been assessed. The first case was Lai Kwan Ming v Lee Yin Hing trading as King Yip Co. & Another (HCPI No.765 of 2000) where the Plaintiff jumped from a platform to avoid being hit by a metal scaffold. He fell to the ground and suffered a displaced fracture right neck of femur. Like the Plaintiff, screw fixation was performed. He was able to walk unaided about six months after the injury. Post operatively, he had a united fracture of the neck of the right femur. There was slight shortening in the neck but the general alignment was good. The screw for internal fixation were in satisfactory position. He was awarded $276,000.

10.In the other case, Ku Chiu Chung v Tang Tin Sung (HCPI No.288 of 2001), injuries suffered by the Plaintiff when his motor cycle crashed onto the pavement included a closed fractured of the left acetabulum with dislocation of the left hip, open fracture of the left proximal tibia, open complete tear of the anterior cruciate ligament of the left knee, open partial tear of the anterior lateral meniscus of the left knee and closed fracture of the shaft of the left tibia. The Plaintiff there underwent emergency operations for open reduction of the left hip and internal fixation of the left acetubular fracture, open reduction and internal fixation of the left proximal tibia and closed reduction of the tibia shaft fracture with external fixator. Post operatively, the Plaintiff still has difficulties walking unaided for longer distances. He was awarded $375,000. Mr. Lo, the Plaintiff's solicitor, submitted that the extent of the Plaintiff's injury is more serious than the plaintiff in the former case but less serious than the plaintiff in the latter case. I consider a sum of $300,000 should be awarded under this head.

Loss of Earnings

11.The Plaintiff's monthly earning before the accident was $6,500. He was put on sick leave from 12 April 2001 to 6 July 2001. However, in his report, Dr. Lam recommended 9 months sick leave but the Plaintiff was off work until 8 December 2002. As a result of his injury the Plaintiff is unable to resume his previous job and can only undertake light duty jobs. He has been employed as a security guard initially at a construction site and currently at Discovery Bay, earning an average monthly salary of $5,100. He was unemployed for almost 11 months between 12 January 2002 i.e. after his pro-longed sick leave, and 7 December 2002 before he started work as a security guard. He claims that during this period he was unable to find a job as employers simply refused to employ him as soon as he told them about his injury. He received welfare benefits of about $8,000 a month during this period, which was more than what he earned before the accident. The Plaintiff's evidence about his attempt in seeking a job during this period was vague and I was not persuaded that he made real efforts in seeking employment. Given the relative ease at which he was able to find work as a security guard, I consider that he should have mitigated his loss by seeking employment more actively during this period. His solicitor adopted a notional monthly salary of $4,000 as a messenger for the purposes of calculating the loss for the period under this head. I will increase this figure to $5,100 i.e. what I consider he would have earned as a security guard had he made a real effort in finding work. The Plaintiff's loss of earning before trial is accordingly (total loss of earnings $6,500 x 9 = $58,500) + (partial loss of earnings 24.2 months x $1,400 [i.e. $6,500 - $5,100] = $33,880), making a total of $92,380.

Future Loss of Earnings

12.I accept that the multiplier for post trial loss should be 8 and accordingly award $134,400 being ($6,500 - $5,100)/month x 12 x 8.

Loss of Mandatory Provident Fund (MPF)

13.I will allow loss of his entitlement to MPF and award $11,339 calculated as follows:-

From 12/4/01 to 11/1/02
$6,500 x 5%/month x 9 months = $2,925

From 12/1/02 to 18/1/04
($6,500 - $5,100) x 5%/month x 24.2 month = $1,694

From 19/1/04 onwards
($6,500 - $5,100) x 5%/month x 12 months x 8 = $6,720

Total = $11,339

Loss of Earning Capacity

14.In his report, Dr. Lam opined that whilst the Plaintiff has a good range with motion in his left hip joint, the loss in motor power is genuine and as a consequence the whole person impairment is estimated to be 8%. In view of his left hip weakness, the Plaintiff is unable to cope with his previous occupation as a heavy manual labourer and is more suited for moderate to light duty jobs like car park attendant, messenger and waiter. The Plaintiff has no other vocational skill and was only educated up to primary level. There is a real risk, therefore, that the Plaintiff will be at a disadvantage in the general labour market. I therefore award the sum of $60,000 under this head of damage, which is just over 75% of his current annual salary.

Special Damages

Medical Expenses

15.The Plaintiff claims HK$3,000 for hospitalization although he is only able to produce a receipt for HK$1,020. He claims that the balance was in respect of meals he paid for himself as he did not like the food provided by the hospital. He is also unable to produce any receipts for his physiotherapy treatment, although it is not in dispute that he did receive such treatment. I accordingly allow HK$1,020 for hospital expenses and HK$440 for his physiotherapy treatment, making a total of HK$1,460.

Traveling Expenses

16.The Plaintiff claims HK$5,000 being 11 round trips from home to Caritas Medical Centre by taxi for his physiotherapy treatments. This means HK$455 per round trip. Again he produces no receipt for any of these trips. During the period of the treatment, he claims he received benefit payment of about HK$8,000 per month, which is about HK$263 per day. When asked why he was prepared to spend almost double his daily benefit on taxi fare, he said it was because Caritas Medical Centre was not easily accessible by other means of transportation. I allow HK$3,000.

17.He also claims $10,000 for tonic food and $1,000 bonesetter's fees, but has no receipts to support his claim. In my view, a reasonable amount would be $6,000 and I so allow.

Summary

18.The damages awarded are as follows:-

Pain, suffering and loss of amenities		HK$300,000
Pre-trial Loss of Earnings		HK$ 92,380
Post-trial Loss of Earnings		HK$134,400
Loss of MPF		HK$ 11,339
Loss of Earning Capacity		HK$ 60,000
Special Damages
Medical Expenses	HK$ 1,460
Traveling Expenses	HK$ 3,000
Tonic Food &
Bonesetters Fees	HK$ 6,000	HK$ 10,460
		HK$608,579
	Less	(HK$ 76,700)
		HK$531,879

Interest

19.I also award interest on general damages at 2% from the date of writ and on pre-trial loss of earnings and special damages at half the judgment rate from the date of accident i.e. 12 April 2001 to the date hereof.

Costs

20.The Plaintiff will be entitled to the costs of the action, to be taxed if not agreed. His own costs will be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. E. Lo of Messrs. Tang and Lee for the Plaintiff.

The Defendant being absent.