Kwok Hang Kei v. Quon Hing Concrete Co Ltd and Others

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BETWEEN

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Coram: Master P.H. O'Donnell in Court

Date of Hearing: 27 & 28 September 1989

Date of Decision: 13 October 1989

Date of Delivery of Judgment: 18 October 1989

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ASSESSMENT OF DAMAGES

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1. On 13th September 1986 while employed by the Defendants as a construction site worker the Plaintiff was cleaning the inside of a cement mixer when it was activated thereby trapping the Plaintiff inside the rotating drum as a result of which he sustained very serious injuries.

2. The writ was issued on 21st September 1988 and judgment was entered by consent on 23rd November 1988 against 1st, 2nd and 3rd Defendants with damages to he assessed by a Master and costs of the action to the Plaintiff to be agreed or taxed on a party and party basis. Notice of the appointment for this assessment of damages was filed on 20th July 1989 and the hearing set down for 1? days on 27th and 28th September 1989.

3. At the assessment of damages Counsel for the Plaintiff produced an agreed bundle of 15 documents extending to 58 pages which included 6 medical reports, medical and sick leave certificates, photographs of Plaintiff's injuries, wage statistics for construction workers, the certificate and review of the assessment in the Employee Compensation proceedings relating to this accident, and the wage records of the Plaintiff and co-workers of the Defendants. Particulars of the Plaintiff's injuries are summarised as follows from Dr. David T. Lee's report being the first document in the Plaintiff's Rundle of Documents:

(1) Multiple fractures of the left foot resulting in a syme amputation of the left foot at the ankle.

(2) Fractured d shaft of the left femur initially treated by nailing but later changed to external fixation because of collapse over the fracture site even with nail in situ.

(3) Amputation of the 4th toe of the right foot.

(4) Fractured right clavicle and multiple abrasions over both hands, shoulders and both knees.

(5) Suffers from headaches especially when reading. The Plaintiff had seven operations in Princess Margaret Hospital and was discharged after 10 months in July 1987. The Plaintiff wears a prosthesis in place of his amputated left foot which will have to be changed every 2 years. Dr. Lee in his report concluded that the 52% permanent disability and loss of earning capacity arrived at in the Employee Compensation proceedings was a very realistic assessment. Dr. William Green in his psychiatric reports on the Plaintiff reached the conclusion that he was seriously depressed and required active supportive psychiatric treatment over a protracted period. Dr. Ian Nicolson in his report and accompanying colour photographs was satisfied the Plaintiff had serious cosmetic disability over his left leg, right buttock and leg, right and left arms and his trunk, and that although the scars will improve a little with time, the ugly scars will always remain conspicuous and ugly. In this opinion of Dr. Nicholson plastic surgery cannot significantly lessen the Plaintiff's degree of cosmetic disability. The medical evidence was not seriously challenged and will be accepted as such for the purpose of this assessment.

4. The parties in the course of the assessment agreed on certain items of special damages as follows:

5. The major area of dispute at this assessment was the loss of earnings claim both pre-assessment and post-assessment. The Plaintiff's Counsel called 4 witnesses to give evidence at the assessment, namely, the Plaintiff himself, Dr. William Green, a representative from the Census and Statistics Department, and the Plaintiff's uncle. Counsel for the Defendants in turn called 2 witnesses, namely, the personnel manager of the 2nd Defendant and general factory manager of the 1st Defendant. There seems little point in recounting the evidence of these 6 witnesses which is fully set out in the record of the assessment proceedings but rather reference will be made to the evidence where it is pertinent to the findings on this assessment.

6. The first issue to be determined is the Plaintiff's claim for pre-assessment loss of earnings. In this respect there was agreed evidence as to the Plaintiff's wage records for the periods from 22nd June 1986 to the date of the accident on 13th September 1986 and from October 1987 to June 1989. It was agreed and corroborated that the Plaintiff's monthly earnings at the date of the accident sags $5,228. It was submitted by Counsel for the Defendants that the Plaintiff's monthly earnings, at the date of this assessment should be estimated by comparison with the wage records of a co-worker - Hui Mou Chun - as set out in the Defendant's Bundle of Documents. Miss Pinto relied on the average monthly wane for 1989 to the end of August at $5,523 and added on the pro-rata annual bonus of $120 p.m. to give assessment monthly earnings of. $5,644, Counsel for the Plaintiff relied on the statistics produced by the Census and Statistics Department as to the average daily wages of construction workers engaged in Government Building and Construction Projects in May 1989 at page 43 of the Plaintiff's Bundle of Documents to give a daily wage of $249.90 from which the meal and travel allowance of $35.90 (as per evidence of P.W.2 - Kara Chan from the Census and Statistics Department) to give a daily figure of $210 exclusive of overtime. Mr. Loughran arbitrarily allowed an overtime increase of 33% to the monthly figure of 55,460 ($210 x 26 days) to arrive at monthly earnings of $7,250 at the date of this assessment. After consideration of the wage records of the co-worker Hui Mou Chun, (produced by D.W.1 - the personnel manager of 2nd Defendant), the figure of $5,643 will be accented as the Plaintiff's likely monthly earnings at the date of assessment had he not been injured. These wage records are confirmed by the Plaintiff's evidence as to his wages and must be far more accurate than the statistical approach adopted on behalf of the Plaintiff. Firstly, the statistics only related to construction workers engaged on government projects and did not include the wages paid in the private sector, and secondly, the deduction for meal and travel allowances and the 33% increase to cover overtime payments are entirely arbitrary and result in an inflated monthly earnings figure.

7. The median for per-assessment monthly earnings is therefore $5,228 + $5,644 ?2 = $5,436. As 37 months have now elapsed since the date of this accident this figure will be adopted to arrived at the total pre-assessment earnings $5,436 x 37 months = $201,132. From this figure the agreed actual earnings of the Plaintiff employed in a clerical position by the 1st Defendant since October 1987 must be deducted. This agreed sum was $94,117 so that the balance of $107,015 is the award for pre-assessment earnings.

8. As to the claim for lose of future earnings Counsel for the Plaintiff relied on a multiplier of 15 years whereas Counsel for the Defendants relies on a multiplier of 13 years in their respective calculations. The Plaintiff gave evidence that he was 26 years of age at the date of this assessment so that a multiplier of 15 years seems more appropriate. Adopting the same median as used in the pre-assessment award, namely, $5,436, the monthly loss of earnings is arrived at by deductions the Plaintiff's present earnings as a site clerk. The Plaintiff's average monthly earnings during 1989, where a full month was worked, was $4,677 as indicated in wage records produced by Counsel for the Defendants at vanes 25 to 32 of the Defendant's Bundle of Documents. The Plaintiff's present monthly loss of earnings is therefore $5,436 - $4,677 = $759. Applying a multiplier of 15 years to this sum the figure for the Plaintiff's future loss of earnings is arrived at as follows: $759 x 12 months x 15 years = $136,620.

9. At this assessment Counsel for the Plaintiff made a claim for $80,000 for what was described as the Plaintiff's handicap in the labour market but what is in reality a claim for loss of earning capacity in the future. Miss Pinto for the Defendants in her submission was prepared to concede that a global award of $40,000 would be appropriate in this case on the basis that the likelihood of the Plaintiff losing his present employment an a site clerk with the 1st Defendant was low. In this respect the Plaintiff had given evidence that he intended to continue with his present employment as a site clerk if the company (1st Defendant) would let him. He said that about November 1988 the site overseer told him that he would have to go but that he had refused to leave because ha claimed he could not find another job if he was dismissed. When he said this to the overseer he was told he could stay for the time being. Both witnesses called by Defence denied that there was any proposal to dismiss the Plaintiff since he was re-employed in a clerical capacity. In particular, D.W.2 - the site supervisor, gave evidence that in November 1988 the Plaintiff told him he wanted to leave his job and that he advised him for his own sake not to leave. The site supervisor said he gave this advice because of the Plaintiff's handicap and the difficulty he would find in obtaining other employment. This witness confirmed that the Plaintiff had a permanent position with the 1st Defendant and that it was company policy, where possible, to re-employ workers permanently disabled working for the company. The reason given for this policy was that it was difficult for workers to obtain work elsewhere. Clearly, this policy is a two edged sword as far as the Company is concerned. Employment provided for disabled workers in another capacity has the effect of substantially reducing the injured worker's claims for loss of earnings if he is unable to obtain alternative employment elsewhere. The Court is satisfied that there must be a very real risk that both the Plaintiff's present employment with the 1st Defendant will not continue indefinitely and that he would be unlikely to find alternative employment in a clerical capacity in the future where he would be paid his present earnings. For these reasons a global award under this head for loss of earning capacity in addition to the award for loss of future earnings is appropriate and the quantum for such an award should be more than a nominal figure. After taking into account of the unusual circumstances of this Plaintiff an award of $200,000 will be made under this head. It is appreciated that this sum is somewhat higher than the conventional award under this category and substantially more than the figure claimed on behalf of the Plaintiff.

10. The next claim to be considered is that for pain, suffering and lack of amenities. Counsel for the Defendant nuts the Plaintiff's injuries at the top to the serious injury category and suggests an award ranging between $180,000 and $190,000. Miss Pinto submitted that there should be a global award without a separate award for Plaintiff's cosmetic disability on the basis that the extent of scarring and the location of same do not warrant a separate award. Counsel for the Plaintiff would place Plaintiff within the substantial injury category because of his physical and psychiatric condition and suggests a total award ranging from $345,000 to $350,000 including 10% for inflation and $80,000 to $100,000 for cosmetic disability. This range of $325,000 to $360,000 proposed by Mr. Loughran under this head of damages would have the effect of placing the plaintiff's injuries in the gross disability range. The Court is satisfied that the Plaintiff's comprehensive injuries and his 52% permanent disability place him in the "substantial injury" category proposed in Lee Ting Lam [1980] HKLR 657 and updated in Li Ping Sum Civil Appeal No.53 of 1983 and more recently by the Court of Appeal decision No.12 of 1988 in Lam Che Pin v. Hoi Kong Ironwares Co. Ltd.. In this case a global award which also takes into account the Plaintiff's overall cosmetic disability is to be preferred. It is considered that the proper award on this basis in this case for pain, suffering and loss of amenities is the figure of. $260,000.

11. The only other claim in dispute between the parties was the sum to he awarded for future cost of psychiatric treatment for the Plaintiff. Counsel for the Plaintiff submits that the sum of $60,000 is a proper and reasonable claim. Mr. Loughran relies on Dr. W. Green's evidence in a letter dated 3rd January 1989 (at pane 44 in the Plaintiff's Bundle of Documents) where he estimates the total cost of weekly treatment based on his fee structure to be somewhere in the region of $60,000. Peliance was also placed on Dr. Green's evidence that the Plaintiff was not receiving the proper treatment and that he should be receiving psychotherapy from a professional psychiatrist as part of his treatment. The Plaintiff gave evidence that he has attended Dr. Lo at the Kowloon Psychiatric Centre every month since July last at a cost of $20 a visit and was receiving medication but that he had received little benefit from this treatment. Councel for the Plaintiff points out that Plaintiff had not sought treatment for his psychiatric condition until he was referred by Dr. Green recently and that a proper award on basis of monthly treatment at cost of $20 was a figure between $1,000 and $2,000. The evidence of Dr. Green that the Plaintiff requires psychotherapy treatment for up to 2 years is unchallenged and must be accepted. The difficulty is that such treatment is not available in the public sector because of the lack of resources in respect of manpower and time to provide such a service. The reality is that unless the Plaintiff can arrange for such treatment in the private sector any award in the sum claimed on his behalf is merely a windfall to the Plaintiff. In the absence of evidence that the Plaintiff has arranged private psychiatric treatment them will only be a nominal award in the sum of $2,000 to cover the cost of public sector treatment and the travelling expenses involved.

12. A summary of the damages awarded under this assessment are as follows:

General Damages

Special Damages

Less

13. There will be interest on the general damages awarded for pain, suffering and loss of amenities at the rate of 2% per annum from the date the writ was issued until the date of the decision on this assessment and interest on the special damages at 5% per annum from the date of the accident to the date of the decision on this assessment..

14. The Plaintiff's costs of this assessment are to be raid by the Defendants, to be taxed if not agreed, save for to cost of calling Dr. W. Green to give evidence au the assessment which shall be met by the Director of Legal Aid. Dr. Green's evidence was not in dispute and two of his reports and a letter were admitted in the Plaintiff 's agreed bundle of documents. In such circumstances the not inconsiderable cost of calling such a medical witness should not have to be met by the Defendants. The Plaintiff's own costs to be taxed under Legal Aid Regulations. With some hesitation a Certificate for Plaintiff's Counsel is granted.

Representation:

Mr. P. Loughran, Counsel, instructed by Director of Legal Aid for the Plaintiff.

Miss J. Pinto, Counsel, instructed by Messrs. Deacons for 1st, 2nd and 3rd Defendants: