Mr Tsang Yung Sang v. Sanfteld Building Contractors Ltd. and Another

HCA000957/1984

IN THE SUPREME COURT Of HONG

HIGH COURT

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BETWEEN

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Coram: Hon. Hunter, J. in Court

Dates of hearing: 11 - 12 February 1987

Date of delivery of judgment: 13 February 1987 (P.I.FILE)

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JUDGMENT

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1. On 24th March 1982, the plaintiff Mr Tsang Yung Sang was injured on a building site. He launched these proceedings against the two defendants in February 1984. Eventually on 19th January of this year, liability was admitted. So the hearing has been confined to the question of quantum.

2. In the accident the plaintiff was struck by falling timber on his right leg. He suffered two principal injuries. The first was comminuted fractures of the right tibia and fibula and the second a dislocation laceration of the right big toe. The dislocation of the toe was reduced and a skin graft applied to compensate for the skin that had been traumatically removed, the donor area being the right thigh. The leg seems to have been treated with plaster and no more. Plaster remained in position until 15th May, a period of about two months; and he was discharged from hospital on 18th June, which was a period of nearly three months after the accident. He was then walking with the aid of two sticks, and doing the best I can on the evidence I think he was continuing to use those sticks approximately to the end of the year.

3. The present positions as far as the injuries are concerned is this. The fractures of the right tibia and fibula have healed. In the process there was a considerable degree of slipping in the tibia and overlap in the fibula, with the result that there is an inch shortening of the right leg. There has also been some loss of alignment. The leg below the fracture site is angled forward which has probably been largely responsible for the almost total loss of dorsiflexion in the right ankle. There has also been a loss of strength in the calf muscle. As far as the toe is concerned it is fixed an angle of 10 degrees dorsiflexion and is about one half its original width.

4. Now, there are, I think, three significant features of those injuries. The first and most serious, I suspect, is the inch shortening of the right leg. Because the plaintiff has spent his life on construction sites. I am minded to agree with a view expressed about him by Dr. Hodgson, who examined him for the defendants where, in his report of 15th January 1987, he says this:-

"It is interesting to see that he has returned to his job on a construction site and this certainly does him credit as I do not think he is really suitable for any other form of occupation.

5. A person working on construction sites has to contend with rough and uneven surfaces. The degree of slant on the pelvis produced by an inch shortening of a leg notoriously makes it more difficult for a person to negotiate rough surfaces and I am quite satisfied has been responsible for the pain which the plaintiff describes he suffers from time to time on the construction site, and which causes him to take periodic periods of rest which he does his best to conceal from the persons who are employing him. Secondly, this twisting or lack of balance at the pelvis is well calculated to lead in time to twisting of the spine and to a condition which the doctors call "scoliosis". That is the first, I think, the most important feature of the injuries.

6. The second is the loss of strength in the leg itself. He says he can walk quite reasonably for quite long periods so long as he does not have to carry any heavy weights. He measures his carrying capacity now by saying that in the old days he could push a barrow full of concrete; now he can only manage a barrow half full. The third feature is that like the risk of "scoliosis" developing in the future, there is a parallel risk of osteoarthritic deteriorative changes in the right ankle. Again the fact that he is working on construction site and rough ground is certainly not going to help that risk.

7. In the upshot, the doctors percentages of disability varied from 7% of the assessment board in October 1982; Dr. Wedderburn's 7% in the spring of the following year; Dr. Hodgson's 7% now; Dr. Fang's 10% 2 or 3 years ago; and Dr. Ma's 11% now. All of which goes to show that the expression of these injuries in terms of percentages is not an exact science. These sort of percentages are really no more than a comparative guide when dealing with these cases. For the purposes of this case I am minded to adopt a mean figure of the order of 10%

8. Now the argument on the appropriate sum to award for pain suffering and loss of amenity started off, as it seems inevitably to do with these cases, with a reminder of the categories in Li Ting Lam⁽¹⁾ and an argument as into which of the categories these injuries should be put. I have, for some time now, been trying faithfully to follow the binding effects of that decision, which seem on the whole to have produced, from me lower awards than I was minded to award at the time, and awards which look no better with the wisdom of the hind sight. I have become increasingly troubled about the appropriateness of this approach; ones ability to form this function sensibly; and whether these guidelines have not outgrown their usefulness.

9. Quite recently in a decision in Chan Ying Pan ⁽²⁾ I endeavoured to analyse the situation as I saw it; expressed many of the doubts that I hold about this present process; and openly invited the Court of Appeal to relieve us from confinement of these existing categories. The problem there was the dividing line between "serious" and "substantial". I there ended up following the categories as best I could by awarding $135,000 for pain and suffering, and I think $60,000 for loss of earning capacity. At the door of the Court of Appeal is order to ensure that there was no reassessment of the position, a sum very much in excess of $100,000 was offered to the plaintiff. The appeal did not proceed. The result has convinced me at least of the inadequancies of the award that I made there beyond a doubt and my own timidity in approaching the matter in that case.

10. A similar problem arises here but at a different level. The issue here is whether the injuries in this case reach the "serious" category or not. The plaintiff invites me to say that they do, apply the lowest figure in the serious category increased for inflation, and award $100,000. Mr Yu for the defendants says that this is not sufficiently serious to fall within this serious category, and that I should be thinking an award of the order of $70,000.

11. This whole argument exposes to my mind the limitations of this type of categoristation. It appears simple, it appears helpful: but in fact I cannot help thinking it puts a lot of our awards in a distorting mirror or a distorting strait-jacket. One runs into trouble at the outset in this case. How is a Court meant to resolve that argument as to whether or not it comes within the "serious" category or not, other than by taking the "definition" and applying it. The answer is that the definition is not a definition at all. First of all, they were simply broad headings. Cons, J.A. never intended the words to be construed like an ordinance and the approach of construing these words as though they were in an ordinance has been explicitly condemned by the Privy Council in Li Ping Sum⁽³⁾ in the same breath as they were endorsing the use of guidelines. So that in this case, if you try to apply the guidelines you come to an insoluable problem. How can you decide whether it is within the serious category? Read the so-called definition? No, that is what the Privy Council says we cannot do.

12. I think the real truth of the matter is that a great deal of water has flowed under the bridges since 1978/1979 when these figures crystallized originally. There has been an substantial increase in wages: I suspect an equally substantial increase in living standards; and an increase in the sophistication of the people of Hong Kong and of the Hong Kong litigant. I very much doubt whether these adjectival categories ever will work. If you are going to try and pursue them, there has got to be, it seems to me, much finer tuning in the descriptions, much greater definition in the descriptions, much greater headroom because at the present moment, there seems to be inadequate headroom within the categories and between the categories. But once you start trying to apply that fine tuning by re-defining the categories, you end up with exactly the problem which the Privy Council exposed and condemned.

13. It seems to me that we should be trying to get away from these artifically imposed classifications and back simply to the broad categories of the injuries themselves, and to such definitions you can not from the types of injuries which people suffer on these sort of occasions. I believe that we would be helped by greater access to authority. Because at the present moment the impact of the categories to my mind is producing a distortion as the injuries increase in severity. It has the effect of reducing damages ranges for the severe injuries to way below the English limit. It must be 50% or more. Whereas for the more modest type of injuries, the ranges are still, I think, below the English limit but to a much lesser extent, say approximately 10% - 20%. Down to the very modest ones, they may be on parity. Indeed, there may be force in Mr Yu's point that at a certain level of injury, the "serious" category has had an inflationary effect, leaving a gap in the perhaps $30/90,000 area, with everyone trying to get their cases into the serious category.

14. I think that if we were allowed access again to English authority, it might help us to iron out the distortions which I think have come into the present scale of awards. It would unquestionably give us a broader comparable base on which to found our awards, rather than the handful of cases which have to be used by practitioners in Hong Kong. Assuming that years ago the "social economic and industrial conditions" in Hong Kong, and those are the three relevant headings the Privy Council tell us, justified the adoptions of scales in Hong Kong which fell substantially short of those then current in England, (where, I may say, awards in this field, are not notorious for their generosity) assuming that was the position when these scales first started to crystallize, I have the gravest doubts myself as to whether those conditions are still valid, certainly to the extent that we should be toying to apply the scales of 10 or more years ago.

15. So that in this particular case, I find it quite impossible to approach the matter sensibly upon the basis : is this injury within the serious category or not? As I have already indicated the question is self defeating. I think I must return to the injuries themselves, return to the particular features of the injuries which I have emphasized. These are first, that it is an unusual injury. I think it is rare for a tibia and fibula fracture of this nature to produce shortening as great as an inch. Secondly, you have the impact upon a man of very limited background and education such as the plaintiff, who is virtually condemned to working on a construction site or something very equivalent to that for his whole life, and upon whom injuries of this nature have a Particular impact. I have tried to consider the broad range of the Hong Kong pattern. I have looked back on my own decision in Chan Yin Ping with irony in view of what happened to it. I look back on my own decision which has been particularly relied upon by Mr Yu in Lo Sau Leung⁽⁴⁾ with no greater satisfaction My recollection of that case is that counsel agreed that the "serious" label applied to the injuries in that case and that it was simply a case of adjusting the scale for inflation. That decision, I suspect, was low at the time. It is two years old. The figure which I have with some hesitation arrived at, as appropriate in this case, is in fact $95,000 the same sure I awarded then for more serious injuries. I recognize that; and that too years have past. I also recognize that I was probably wrong in that case, in my attempt to try and accommodate my award within the scale as I then understood it. I hope without as it were, breaking out completely from the confines of these scales, that I have arrived at a figure which is appropriate. It is in line with the developing Hong Kong scales as I see them and is still, I believe, less than what would be currently awarded by an English court. So that my award for pain suffering and loss of amenity is the sum of $95,000.

16. I now turn to the other aspect to thin case the loss of earnings, past and future. The problem here is that this plaintiff has never been in permanent or regular employment. He has always been a casual worker on construction sites, both before the accident and since. He regularly goes to an assembly point in Kowloon City where people of like mind to himself, assemble, looking for casual work on building sites. This makes a court's task, in the circumstances like this, very much more difficult, because that sort of work is itself variable. It depends upon the state of the construction industry which as we all know, was in a state of depression in the years 1983/1984, but in picking up again now. It depends upon the state of the weather, and to some extent on the state of the seasons. The real difference between then and now, is that then the plaintiff was reasonably fit and strong and capable of doing all sorts of casual work on the building site, much of which involves heavy work and heavy lifting. Now he is not capable of doing that. He is only capable of doing lighter work. That commands a lower rate, understandably, on the site and also, I am satisfied, makes him less employable. I think there was less work available. I accept that the evidence upon that was somewhat muddled because the plaintiff's approach was to go as far as he could to conceal his injury from future employers, to take such rest periods as he had to, and to try to conceal those from the foreman. But there were occasions when he was caught, and he said "invited not to return the next day".

17. My task, it seems to me, is to try and derive some reasonable figure from a number of conflicting variables. I regret that I have not got a great deal of help on this, from the plaintiff himself. I make no criticism of his evidence. He gave it with refreshing candour in many respects. But the trouble was that he vas very vague about a lot of these matters, and it was not easy, I felt, to distinguish between lack of inclination on occasions for doing work and true disability. Looking at the matter as best as I can I am minded to start at least by accepting the approach in the calculations put before me by the defendant. It is common ground that before the accident the plaintiff was earning $120 a day. The real problem is how many days a month to attribute to him; to assume that he was working on average over the year. The score varied from a maximum of 30 a month when things were busy, to somewhere between 15 and 20 in less busy periods. I also have to allow here for the Chinese New Year holiday, which is the one big holiday of the year as far as the construction industry is concerned plus, I think, the four festivals which he singled out when he regularly returned to Mainland China. It is arguable that one should, in the light of those festivals alone, use a multiplier of 11 months and not 12. But I think that the fair result is in fact take the defendant's multiplier of 20 days a month and to apply that to a 12 month year.

18. So I start by accepting the figure for total loss of earnings in the defendant's calculation from 1982, i.e. $120 a day for 20 days in a 9 month period. I likewise accept the corresponding figure for the first three months of 1983. This allows the plaintiff a full period of months sick leave which, I am minded to think, errs on the side of generosity. It allows for the fact that once he had received his employee's compensation in October 1982 as he quite frankly admitted, he had very little inclination to rush back to work so long as the money was in his pocket, a perfectly understandable attitude. What was unusual in this case was that he admitted it with engaging frankness.

19. Then comes the question as to what was his earning capacity in the balance of 1983. Again I am minded to accept the differential figures which are included in the defendant's calculations through from 1983 to 1986. They seem to me reasonably to reflect the totality of the evidence before me from various sources throughout this period, and also to correspond with what the plaintiff told Dr. Ma last year. So that as far as they go they seem to me to be fair and as reasonably accurate as you can get in this type of case. My criticism is they do not, I think, go far enough. They do not reflect at all the loss of work through periods of disability, I have anxiously considered what is the best way of adding something to reflect the fact that in my judgment this plaintiff is now less employable than he was before, as well as being able to command a lower earning rate. The compromise (and I make no pretence that is anything more than that because it is part of the process of guestimating that one has to perform in these cases) upon which I have settled is to allow, in these calculations, for a loss of 2 days a month over each 12 month period. So that in addition to the figure of $12,600 which emerges on the plaintiff's calculation for the second 9 months of 1983, one has to add on another 18 days at $120 to allow for a loss of 2 days for each of the 9 months in that period. That produces an addition of $2,160. So that the total figure for that nine month period is increased from $12,600 to $14,760.

20. For the year 1984 I make the same allowance. This time, one has a full year so it is 24 days and the multiplier is 120. The addition there is $2,880, making a total of $17,280. In 1985 the same calculations, this time the multiplier is 150. This works out at $3,600, making a total figure for that year of $20,400. In 1986, the same calculation; the multipler this time is 160; the figure becomes $3,840; and the total 18,240. I do the same thing for January and February of this year. I have already decided to take a 12 month year, I can see no justification for changing it at this point, I allow there 2 months which is 1,520 x 2 = $3,040. So the total loss of earnings claimed reading down the figures again become $21,600 in 1982, 1983 $7,002+$14,760. In 1984: 17,280, 1985 : $20,400, 1986 : $18,240, 1987 : $3,040, and one ends up at the total of $102,520.

21. As far as the future loss is concerned, I am taking as a multiplicand a figure arrived at by exactly the same process. One starts with the basic continuing loss of $1200 a month which is $60 by 20 days, and that over a full 11 months period produces a figure of $14,400. But I add to that this additional loss factor which $160 x 24 = $3,840 and that produces a multiplicand of $18,240. I think the appropriate multiplier for a man of 50 at the day of the trial is 7. If you multiply 18,240 x 7 you end up with the figure of $127,680.

22. So putting the whole thing together I start with a calculated special damages for loss of earnings of $102,520. I would emphasize that this is not a detailed calculation in the straight sense of the word, it is a calculated estimation. Prom that there has to be deducted the employee's compensation already received which is $29,560. This produces a net figure of $72,960 Two other heads of special damages are agreed: hospital fees $420, and the sticks $70. The claim for additional food I am prepared to allow at the sum of $500. So that produces a further addition of $990 + $72,960 = $73,950. This is the total sum for special damages. That sum will carry interest at 4% from lst April 1982.

23. Then as far as the general damages are concerned; the loss of future earnings is $127,680; pain suffering and loss of amenity is $95,000. Of that $95,000 carries interest at 2% from conveniently the day of the writ, 13th February 1984, to-day's date, exactly 3 years ago. The grand total of the award excluding interest, I think is $296,630.

(1)    (1980) H.K.L.Ii. 657

(2)    (1986) 16 H.K.L.J. p. 448

(3)    (1985) 1 A.C. 446

(4)    (1985) H.K.L.J. 243

Representation:

Ruy Barretto instructed by D.L.A. for plaintiff

Benjamin Yu instructed by M/S Tony Kan & Ho for defendants