Yu Kwok Shing v. Color Cells Far East Ltd

HCA003482/1993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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

Date of hearing: 16th October 1995

Date of decision on assessment: 31st October 1995

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ASSESSMENT OF DAMAGES

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1. The Plaintiff sustained back injury in the course of employment for the Defendant on 9th November 1990. He was orally instructed to move a lathe from a conference room at his place of work to another room. While doing so the Plaintiff suffered injury to his lower back. The writ was issued on 27th April 1993 and default judgment entered on 20th December 1993 after the Defendant had given no notice of intention to defend and in fact has taken no steps in this action. In this judgment it was ordered that the Defendant do pay the Plaintiff damages to be assessed and costs to be taxed.

2. At this assessment Counsel for the Plaintiff produced the usual Bundle of Documents. Included in this Bundle were medical reports from Dr. TANG Wai Man, Dr. S.F. Lam and two reports from Dr. David LEE, who also gave evidence. The usual notice was given under Sections 47 and 49 of the Evidence Ordinance and Order 18 and 38 RSC to produce these medical reports and the other documents included in the Plaintiff's Bundle of Documents. The Defendant did not file any Counter Notice.

3. The Plaintiff was first treated at Queen Mary Hospital on 11th November 1990 and was admitted for 3 days to receive traction treatment for his back injury. Upon release he was referred to out-patient physiotherapy and orthopaedic departments for follow up treatment. On 28th January 1991 the Plaintiff was re-admitted to Queen Mary Hospital for a C.T. seam and he was diagnosed to have prolapsed intervertebrae disc lesions at L3/4 and L4/5 levels of his vertebrae. On 4th February 1991 after his release he was referred to Maclehose Rehabilitation Centre for physiotherapy treatment on 3 days of each week. Following severe back pain the Plaintiff was readmitted to Queen Mary Hospital on 19th August 1991 when an operation was carried out on his back to fuse three discs in his lower spine. This operation is described in the medical reports as a posterior discectom of L3, L4 discs together with posterior and posterolateral of L3 - 4 - 5 discs of the vertebrae.

4. As a result the Plaintiff still receives quarterly check-ups at Queen Mary Hospital and takes medication for his constant back pain and stiffness with some discomfort in his left leg. He has residual symptoms of sciatica and cannot tolerate prolonged standing or sitting in the same position. Dr. David LEE has assessed Plaintiff's loss of earning capacity as 10% and his permanent disability as 5%. The certificate of assessment relied on in the Employee's Compensation proceedings assessed the Plaintiff's loss of earning capacity as 9%.

5. On the question of general damages for pain, suffering and loss of amenities the evidence of the doctors in their medical reports and the Plaintiff in his evidence and his statement are accepted and there is no suggestion that he is exaggerating his continuing symptoms or that he is a malingerer. The injuries suffered do not come within the serious injury category and on the basis of authorities from the late 80s put to the Master by Counsel for the Plaintiff a sum of $100,000.00 would be the starting point allowed under this head but increased by 50% for inflation since to $150,000.00.

6. Although no claim was made on behalf of the Plaintiff for loss of future earnings as he has held a position as a chaffier for over 3 years and he is likely to continue in the same position for the foreseeable future, a claim is made for loss of future earning capacity on his bnehalf. In this respect it is accepted that the Plaintiff would not be able to take up other driving positions, such as, taxi driver or lorry driver, because of the prolonged nature of sitting in the same position to do such work. The Plaintiff is still only 44 years of age and has a considerable working life of at least 15-20 years ahead of him so that an award of $50,000.00 will be made under this head for loss of future earning capacity.

7. Turning to the special damages claimed the calculations of Counsel for the Plaintiff are accepted. In summary, the calculation of pre-assessment earnings are as follows:

8. Unemployed for 20 months from date of accident (9.11.1990) to date of return to work (8.7.1992). Pre-accident wages were $6,300.00 per month and adopting a notional increase of wages of 10% over the 20 months ($6,300.00 x 10% x 6.66%) = $7,391.00. The median used for this period is assessed as $6,300.00 plus $7,391.00 divided by 2 = $6,845.00. On this basis the loss for the period of 20 months when Plaintiff was unemployed is $6,845.00 x 20 = $136,900.00. The Plaintiff had been paid 2 months sick leave to 8.1.1991 so that this total sum of $12,600.00 should be deducted leaving of net loss of $124,300.00 ($136,900.00 - $12,600.00). It is accepted that the Plaintiff was unable to obtain suitable work over this 20 month period. In fact, he was on sick leave, as verified by medical certificates produced, from 11.11.1990 to 24.3.1991 and from 9.8.1991 until 1.2.1992. On this basis there was only a 4?month period when he was unemployed as such.

9. The special damages relating to medical expenses are accepted and allowed as follows:

From the total special damages the award under employee's compensation in the sum of $82,370.00 needs to be deducted.

Interest on the general damages of $200,000.00 @ 2% per annum from the date of the writ (27.4.1993) to the date of this assessment. The costs of this assessment to the Plaintiff and Plaintiff's own costs to be taxed under Legal Aid Regulations.

Representation:

Mr. S. Cleves, Senior Legal Counsel for Director of Legal Aid for Plaintiff.

Defendant in liquidation not present. Official Receiver representing Defending indicates by letter that he will not attend this assessment of damages.