Yu Yixin v. Leung Chi Tin Andy
Read the full judgment text of DCPI 1306/2007 on BabelCite. This District Court judgment.
1. The Plaintiff claimed damages for personal injuries and other loss and damages sustained in the course of his employment arising out of the negligence and/or breach of statutory duty and/or breach of employment contract on the part of the Defendant, his servants and/or agents at Park Island, Ma Wan, New Territories on/about 26 th July 2005 (“ Accident ”).
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DCPI1306/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES NO. 1306 OF 2007 ____________
____________ Before: Her Honour District Court Judge Marlene Ng in Court Date of Hearing: 3rd March, 2008 Date of Handing Down Judgment: 13th March, 2008 _____________________________ ASSESSMENT OF DAMAGES _____________________________ I. Introduction 1.The Plaintiff claimed damages for personal injuries and other loss and damages sustained in the course of his employment arising out of the negligence and/or breach of statutory duty and/or breach of employment contract on the part of the Defendant, his servants and/or agents at Park Island, Ma Wan, New Territories on/about 26th July 2005 (“Accident”). 2.The Defendant did not file any notice of intention to defend, and interlocutory judgment was entered against him on 17th August 2007 for damages to be assessed. 3.On 24th January 2008, Master K Y Lo ordered inter alia that the hearing for assessment of damages be fixed to be heard before me on 3rd March 2008. According to the affirmation of service filed on 28th February 2008, such court order was duly served. Further, according to affirmations of service filed on 29th October 2007 and 17th January 2008 respectively, the Plaintiff’s Medical Reports including the expert orthopaedic report of Dr James Kong (“Dr Kong”) dated 25th September 2006 (“Report”), List of Documents, Hearsay Notice, witness statement and Revised Statement of Damages have also been served. 4.The Defendant was absent at the assessment hearing. However, I am satisfied he has been duly notified and I allowed the assessment of damages to proceed in his absence. II. Overview of the Plaintiff’s evidence 5.The Plaintiff gave evidence and adopted his witness statement as part of his evidence-in-chief. In assessing witness’ credibility, the court should consider the totality of the witness’s evidence against the documentary evidence, inferences based on inherent improbabilities and/or undisputed facts (see the principles set out by Chung J at paragraph 12 of Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13th August 2005)). 6.I accept that the Plaintiff suffered right wrist injury as a result of the Accident. However, as seen from the analysis below, Dr Kong’s Report and various reports from the Princess Margaret Hospital (“PMH”), I am not satisfied the Plaintiff’s disabilities and work incapacity were as severe as he suggested, or that his income diminution as a result thereof is as drastic as he claimed. III. Personal background 7.The Plaintiff is right-handed. Prior to the Accident, he was in good health and did not suffer from any serious illness. 8.At the time of the Accident, the Plaintiff was 50 years old. According to his witness statement, the Plaintiff received education in Guangzhou up to Primary 6 level. He went on to say he could read and write a little Chinese, but did not understand English. However, Dr Kong’s Report noted that the Plaintiff received education up to secondary school level in China. The Plaintiff clarified in re-examination that he only studied up to Primary 4, but was deemed to have reached Form 2 level due to interruption of his studies by the Cultural Revolution. 9.The Plaintiff came to Hong Kong in 2002. It was stated in Dr Kong’s Report that the Plaintiff’s pre-injury occupation was “[decorating] worker and driver” for 3-4 years for “4 days a week, 8-9 hours a day”. However, the Plaintiff gave evidence (and stated in his witness statement) that he worked as a decoration worker up to the time of the Accident with no mention of having been a driver. It was only upon questioning by the court that the Plaintiff admitted he had been a cross-border driver for 2 odd months during the first year he came to Hong Kong and he drove a three-tonne lorry for such purpose. He claimed that after he took up work as a decoration worker he ceased to be a cross-border driver. 10.The Plaintiff gave evidence that prior to the Accident he worked as a causal decoration worker. The casual nature of his work was reflected by the fact that he worked for different employers at different locations. To put it in another way, as a decoration worker, the Plaintiff worked for whomever employer wherever and whenever there was decoration work to be done. On the days he worked he would be paid a daily wage of HK$400.00, but he would not receive any payment on the days he did not work or when he had no work. The Plaintiff claimed that on average he worked 28 days per month. Even though his witness statement stated that since about July 2005 he was employed by the Defendant as a decoration worker working from 10:00am to 7:00pm with a one-hour lunch break for about 28 days each month, in fact he worked for different employers and not just the Defendant. 11.In the Form 2 dated 30th September 2005 signed by the Defendant, it was stated that (a) the Plaintiff on average worked 12 days a month, (b) had irregular rest days with no pay, and (c) the Plaintiff’s wages for the month preceding the Accident were HK$4,600.00. I am persuaded that the information in the Form 2 does not fully reflect the Plaintiff’s entire earnings for the relevant month. Given the casual nature of the Plaintiff’s work, he would have been employed by other employers on some other days in the month. 12.However, the Plaintiff’s claim that on average he worked as a decoration worker for 28 days per month (ie with only 2 rest days per month) does not sit well with Dr Kong’s Report which recorded that the Plaintiff’s pre-injury occupation was “decorating worker and driver” for 3-4 years for “4 days a week” (ie carrying out 2 types of work and having over 10 rest days per month). The Plaintiff gave evidence that although he truthfully informed Dr Kong about his personal background, he could not remember whether he told Dr Kong he worked “4 days a week” prior to the Accident. But in my view, there is no reason for Dr Kong to make up a false record, especially when he was retained as the Plaintiff’s medical expert. 13.There are further doubts in relation to the Plaintiff’s evidence concerning his pre-injury work and income. The Plaintiff all along claimed that his average monthly income was HK$12,900.00. In the corresponding employees’ compensation proceedings between the same parties being DCEC431/2006 (“DCEC Action”), Deputy District Judge S T Poon found as a fact after trial that (a) the Plaintiff was employed by the Defendant at the time of the Accident, and (b) the Plaintiff’s monthly income before the Accident was HK$12,900.00. Although the Defendant was absent at trial in the DCEC Action, the judgment of Deputy District Judge S T Poon of 11th May 2007 is nevertheless a final decision on the merits and the aforesaid findings of fact amount to issue estoppel between the parties. 14.But such findings of fact do not sit well with the Plaintiff’s assertion herein his income was derived solely from his work as a decoration worker. Even on the basis that on average he worked 28 days per month at a daily wage rate of HK$400.00, his average monthly income should have been HK$11,200.00 and not HK$12,900.00 (especially when the Plaintiff did not adduce evidence of any overtime pay and/or other allowance(s) in his witness statement and/or evidence-in-chief). Even if he worked all 30 or 31 days each month, his monthly income should have been HK$12,000.00 or HK$12,400.00, and not HK$12,900.00. When this disparity was put to the Plaintiff by the court, he claimed that the difference was his meal allowance. This was the first time such allowance was mentioned and it was not referred to in the Plaintiff’s witness statement or evidence-in-chief. In any event, the Plaintiff did not give any particulars in relation to such meal allowance. I find this to be a poor attempt to explain his average monthly earnings of HK$12,900.00, and am unable to place any serious weight on such assertion. 15.In the circumstances, whilst I accept that the Plaintiff’s pre-Accident monthly income was about HK$12,900.00, I am not satisfied that it was derived solely from his work as a decoration worker. I find on balance that (a) the Plaintiff had other source(s) of income (whether as driver as alluded to in Dr Kong’s Report or otherwise) that made up his pre-Accident monthly earnings as aforesaid which have not been frankly disclosed to the court, and (b) his evidence in relation to his pre-Accident work is not entirely reliable. IV. Accident 16.The Plaintiff claimed that on 26th July 2005 he was instructed by the Defendant to go to a unit at Park Island, Ma Wan, New Territories (“Site”) to demolish a partition wall. So at 10:00am on that day, the Plaintiff went to the Defendant’s office near to the Site (“Office”) where all tools/equipment were kept. But the Defendant, who was the only person with keys to the Office, was late, so the Plaintiff and his colleague Mr Tam went to a hardware store near to the Office to borrow a wooden ladder ("Ladder") and delivered it to the Site. 17.The Defendant returned to the Office at about 1:00pm to have lunch with the Plaintiff and Mr Tam. After lunch, the Plaintiff and Mr Tam returned to the Office to pick up tools/equipment before going to the Site. 18.At the Site, when the Plaintiff was about to use the electric drill to demolish a partition wall, he discovered he could only reach the relevant position by using the Ladder. In the course of his work, the Plaintiff had to move the position of the Ladder frequently, but he could not do so because the ground was littered with brick debris that fell to the ground as he used the electric drill. Since (a) the Plaintiff wanted to complete the job quickly, (b) the Defendant did not arrange for a fellow worker to clear up the brick debris on the ground, and (c) there were no safety line and/or sufficient safety measures, he had to lean out from his position on the Ladder in order to demolish another partition wall. Whilst he was demolishing such partition wall, which was probably loosened by his drilling, he lost balance and fell from the Ladder to the ground together with the electric drill. 19.As a result of the fall, the Plaintiff injured his right wrist which felt very painful. Mr Tam who was working nearby notified the Defendant of the Accident. After a while the Defendant arrived at the Site and gave the Plaintiff HK$1,000.00 for medical treatment. The Plaintiff took a public light bus to Kwai Fong, and then a taxi to the PMH’s Accident and Emergency Department (“AED”) for medical treatment. V. Medical treatment 20.At PMH’s AED, the Plaintiff was diagnosed to suffer from a fall with right wrist and left forearm injury. Examination showed swelling, deformity and decreased movements over right wrist. There was a 5cm abrasion over left forearm. X-rays of right wrist showed fracture of right distal radius and ulnar styloid. The Plaintiff was admitted to the orthopaedics ward under the care of PMH’s Department of Orthopaedics and Traumatology (“DOT”) for further management. 21.Examination at DOT revealed there was swelling and tenderness over right wrist, but no distal neurovascular deficit. The Plaintiff was treated with closed reduction and complete short arm Plaster of Paris cast. Post-reduction X-ray showed satisfactory alignment. The Plaintiff was discharged on 27th July 2005, and regularly followed up at PMH’s Specialist Out-Patient Clinic. Serial X-ray of the right wrist showed satisfactory alignment, and the short-arm cast was removed at 6 weeks. 22.The Plaintiff was referred to PMH’s Physiotherapy Department (“PD”) Specialist Out-Patient Clinic for mobilisation exercise of right wrist. He registered with PD on 7th September 2005. During a visit to PMH’s Specialist Out-Patient Clinic on 12th October 2005, there was residual right wrist pain which limited the Plaintiff’s grip strength although his right arm wrist joint range improved. Further X-ray of right wrist revealed healed fracture of distal radius and non-union of fracture ulnar styloid process. The Plaintiff was referred to PMH’s Occupational Therapy Department (“OTD”) Specialist Clinic for work rehabilitation training. He was last seen by PMH’s DOT on 23rd November 2005 when he still had residual pain at ulnar region of right wrist, but his right wrist stiffness and power grip strength had improved. 23.The Plaintiff attended 14 sessions of physiotherapy treatment (including ice therapy, whirlpool therapy, right wrist mobilisation and strengthening exercises) from 9th September 2005 to 18th January 2006. 24.OTD carried out initial work capacity evaluation with functional capacity evaluation, job analysis and work-stimulated evaluation on 11th January 2006. The Plaintiff complained of right ulna wrist pain at end range of movement and exertion. The active range of movement of right wrist extension and flexion was 70˚ and 55˚ whereas the radial and ulna deviation was 20˚ and 20˚ respectively. The pronation and supinaton range was full. The power grip strength of right and left hand was 31 kgf and 37kgf whereas the lateral pinch grip of right and left hand was 9kgf and 10kgf respectively. 25.Ms June Wong, occupational therapist I of PMH’s OTD, in her report dated 30th December 2006 (“OTD Report”) noted that the Plaintiff worked as a decoration worker with heavy physical demand, but his lifting capacity was assessed to be adequate and there was no problem in hand tools manipulation. His work capacity was assessed to match with his previous job demand. Ms Wong discussed the assessment with the Plaintiff and suggested to him to try resuming his previous job, and the Plaintiff showed confidence to cope. Ms Wong reported the condition to the medical officer of PMH’s DOT on 18th January 2006, and the case was closed. 26.According to the Certificate of Review of Assessment dated 27th June 2006 issued by the Employees’ Compensation (Ordinary Assessment) Board (“Form 9”), the Plaintiff was assessed to suffer from “fracture of right distal radius resulting in right wrist pain and stiffness” and 1% loss of earning capacity permanently caused by the injury. 27.The sick leave certificates and Form 9 revealed that sick leave was given from 26th July 2005 till 18th January 2006 (ie 177 days). It was noted on the sick leave certificate for further sick leave period from 18th to 25th January 2006 (ie 7 days) that “condition achieve medical maximal improvement, for MAB”. VI. Post-Accident work 28.The Plaintiff claimed that upon expiry of his sick leave in January 2006, notwithstanding persistent (持續) pain at his right wrist, he had to earn his living, so he telephoned the Defendant with a view to return to work. But the Defendant ignored his request. 29.The Plaintiff in his witness statement claimed that he could not carry out demolition of partition walls between January and September 206 due to right wrist injury. To earn his living, the Plaintiff worked as a painter on a casual basis without fixed work days/locations at a daily wage rate of about HK$350.00. The Plaintiff’s witness statement gave further particulars of such post-Accident work, namely, that in September/October 2006 the Plaintiff found work as an interior decoration painter at “長沙灣南京街及藍田廣田邨” at HK$350.00 per day and on average he worked for about 10 odd working days per month. The Plaintiff claimed he had pain and numbness at his right wrist as he worked, so he tried to avoid work such as demolishing partition walls or using his right arm to lift heavy objects. 30.However, Dr Kong’s Report noted that the Plaintiff resumed working in March 2006, and by the time of Dr Kong’s medical examination of the Plaintiff (ie 14th September 2006) the Plaintiff had resumed working as “[decorating] worker and driver” for “4 days a week, 8 hours a day”. This does not sit well with (a) the Plaintiff’s claim that at that time he could only work as a casual painter for about 10 odd days a month, and (b) the absence of any reference to work as a driver during September/October 2006 in the Plaintiff’s evidence and/or witness statement. Although the Plaintiff claimed he truthfully described his work to Dr Kong, he said he only told Dr Kong that post-Accident he worked as a decoration worker and not as a driver. As discussed above, I see no reason for Dr Kong to make up a false record in relation to the nature of the Plaintiff’s post-Accident work as well as number of working days in a month. When the Plaintiff was asked whether he knew why Dr Kong made such record, he claimed he drove vehicles for private purpose when he returned to Mainland China during his sick leave for recuperation from his right wrist injury. Such explanation was not given in the Plaintiff’s evidence-in-chief or witness statement, and I find I cannot place serious weight on the same. 31.The Plaintiff claimed that by the time of his witness statement (ie 7th December 2007), he mainly worked as a painter on casual basis on painting jobs that lasted for 1-2 days. The Plaintiff’s daily wage rate was HK$400.00 (ie same as that of a decoration worker), but he claimed he was only able to work for about 20 days each month. He gave evidence that his post-Accident monthly earnings of HK$8,000.00 odd were paid in cash. 32.I am not quite satisfied that the Plaintiff is only capable of work as a casual painter. Indeed, as seen in the OTD Report, as early as in January 2006 the occupational therapist gave a robust assessment of the Plaintiff’s ability to return to his pre-Accident employment (see paragraph 25 above). The Plaintiff confirmed he had informed the occupational therapist the nature of his pre-injury work and the occupational therapist clearly knew such work required heavy physical demand and use of hand tools. Yet she assessed that the Plaintiff’s lifting capacity was adequate and he would have no problem with manipulation of hand tools. The Plaintiff also expressed confidence in resuming previous work, which was at odds with his claim that right after the sick leave period he felt he could not return to his pre-Accident work due to persistent pain and numbness and that he could only handle work as a casual painter. No satisfactory explanation was forthcoming over such discrepancy. 33.Further, by September 2006, Dr Kong opined that the Plaintiff might “resume his pre-injury occupation as a ‘decoration worker and driver’ on the condition that he is given adequate rest and muscle stretching of 10 minutes for every hour of work.” It has not been suggested that the work of a casual decoration worker does not allow intermittent rest or exercise. 34.Mr Leung, solicitor for the Plaintiff, drew my attention to Dr Kong’s view that “[the Plaintiff] may have difficulty in handling drills while working and on rotation of forearm because of pain. He may also experience difficulty in grasping heavy objects at work because of his right hand weakness. There will be a reasonable reduction in both work capacity and work efficiency.” The Plaintiff also claimed to have difficulty in lifting electric drill or iron hammer, so he could no longer demolish partition walls (which required frequent use of his right hand) or lift heavy object over an extended period. 35.Whilst I accept that the Plaintiff suffers from reasonable reduction in work capacity/efficiency, it does not detract from Dr Kong’s opinion (which I also accept) that he could have returned to his pre-Accident employment with intermittent rest and/or exercise. Indeed, such opinion has been accepted and relied on by Deputy District Judge S T Poon in his assessment of the Plaintiff’s work capacity in his judgment in the DCEC Action as follows :
36.Such finding by Deputy District Judge S T Poon is binding on the Plaintiff. But even if it is not, I have also come to the same conclusion. I bear in mind that other than telephoning the Defendant with a view to return to work (presumably as decoration worker as there is no evidence before me that the Defendant had any vacancy for casual painter) after expiry of his sick leave, there is no evidence that the Plaintiff made any attempt to return to decoration work despite the confidence he expressed to the occupational therapist in January 2006. 37.Dr Kong’s Report also raises doubt as to whether the Plaintiff actually returned to some driving work after the Accident (see paragraph 30 above). But even if the Plaintiff did not return to driving work, there is no explanation why this was not explored. After all, he was not unfamiliar with work as a driver, and there is no suggestion that such work requires lifting heavy objects or manipulation of hand tools. Indeed, he confessed he was already capable of driving whilst he was recuperating in Mainland China. All the Plaintiff offered by way of explanation was that he had already left driving work and moved to decoration work some time ago. 38.Bearing in mind the above matters as well as the discussion below in relation to the award for pain, suffering and loss of amenities, I am of the view that as a result of wrist injury of his right hand, the Plaintiff suffered reduction in work capacity and work efficiency, but he could have returned to his pre-injury decoration work with intermittent rest and/or exercise. I am not convinced he is only capable of doing work as a casual painter. VII. Pain, suffering and loss of amenities 39.Dr Kong diagnosed the Plaintiff to suffer from “fractures of right distal radius and ulnar styloid process with residual pain and stiffness”. The Report noted the Plaintiff complained of (a) intermittent right wrist pain upon lifting heavy weight, rotation of hand, hand gripping and/or working for more than an hour, (b) right wrist stiffness, and (c) right thumb stiffness. 40.In his witness statement, the Plaintiff claimed that even after 2½ years his right wrist still had persistent pain and numbness, which would aggravate upon change in climate, and he frequently carried out stretching exercises to relieve such pain and numbness. But there is no mention of the complaint of numbness in the public hospital medical reports, and the Plaintiff confessed he did not tell the doctors/physiotherapists of the PMH of any numbness. However, he claimed to have told Dr Kong about the numbness of his right wrist; yet there is no record of such complaint in Dr Kong’s Report. I am not satisfied that the Plaintiff is a reliable historian. In my view, even if the Plaintiff had or has some numbness in his right wrist, it must have been mild. Had it been a serious or debilitating disability, I doubt he would have forgotten to mention it. 41.Dr Kong’s physical examination of the Plaintiff revealed tenderness over dorsal aspect of distal radius, ulnar styloid process and dorsal/palmar aspect of right hand, but no deformity or swelling. Dr Kong explained that in general a course of physiotherapy after a similar type of fracture and cast immobilisation would give rise to a reasonable level of recovery, but the Plaintiff made a slow recovery. X-rays taken on 14th September 2006 confirmed a healed fracture of right distal radius and ulnar styloid process, with mild irregularity and narrowing of right distal radioulnar joint, but no focal bony lesion or abnormal soft tissue swelling. Dr Kong opined that generally speaking such irregularity and narrowing of joint space were prone to give rise to early ostheoarthritis of the wrist joint, and thus symptoms of pain/stiffness which were likely to persist with permanent residual disability. He said such symptoms might be aggravated by exertion and might require treatment on a need-to-basis. 42.I accept the Plaintiff has some residual pain/stiffness over his right wrist region, mild limitation of motions of his right wrist in flexion and extension movements, and weakness of right hand grip as evidenced by Jamar testing by Dr Kong, but in the context of his recovery as noted in PMH’s various medical reports and Dr Kong’s Report, I am unable to accept that the residue was (as alleged by the Plaintiff) so severe that his right hand would shake on holding chopsticks or the quality of his painting would be adversely affected (when there is no evidence that his work as a painter on casual basis required lifting of heavy objects or manipulation of heavy hand tools). However, I accept that residual disability may also come in the form of early ostheoarthritis of the right wrist joint. 43.Mr Leung submitted that the award for damages for pain, suffering and loss of amenities should be HK$300,000.00. I have carefully considered the following authorities cited by Mr Leung :
44.Whilst the plaintiff’s injuries in Tsui Kwan Fai were similar to those in the present case, it must be noted that the more serious injuries suffered by the plaintiffs in the other authorities attracted awards for pain, suffering and loss of amenities that were proportionately much lower than that suggested by Mr Leung. In Mehmood Khalid, the fracture could not be treated by a plaster cast and required surgery with internal fixation, which was said to be “undoubtedly a distressing and uncomfortable experience”. The award was HK$200,000.00. Likewise, in Ho Chong Ping, an operation was done under general anaesthesia to treat the fractured bones in the plaintiff’s left wrist and later he had to return to the hospital to have the pins removed. Further, the plaintiff developed complications of the corresponding shoulder and recovery was slow in that sick leave lasted for 1½ years. The award was HK$300,000.00. In Ho Bing Cheung, although the plaintiff’s fracture of right distal radius and ulna bone was treated by closed reduction and plaster immobilisation, his right wrist healed with collapse, impaction and deformity and there were radial deviation, dorsal angulation and widening in antero-posterior dimension as well as complications of complex region pain and shoulder hand syndromes. The learned judge also took into account the discomfort in the plaintiff’s back. The award was HK$220,000.00. In Cheng Yuk Chun, although fracture of the right distal radius was treated by close reduction and plaster immobilisation, the plaintiff’s condition was complicated by development of reflex sympathetic dystrophy or complex regional pain syndrome as well as psychiatric disturbance. Subsequent investigation revealed TFC tear and mild carpal tunnel syndrome. The award was HK$300,000.00. 45.None of the surgeries or complications referred to in the above cases is applicable here. I am satisfied that an appropriate award under this head of damages should be HK$170,000.00. VIII. Pre-trial loss of earnings 46.The Plaintiff claimed that he was entitled to full loss of earnings for the sick leave period from 26th July 2005 to 25th January 2006. However, the sick leave period from 19th to 25th January 2006 was not for the purpose of therapeutic treatment or rehabilitation. The relevant sick leave certificate noted that the Plaintiff had reached maximum medical improvement and the Plaintiff was just waiting over these few days for assessment by the medical assessment board. However, I am prepared to allow some reasonable time for the Plaintiff to get back to work. In such circumstances, I am persuaded that the Plaintiff is entitled to full loss of earnings for the period from 26th July 2005 to 31st January 2006 (ie 190 days) in the sum of HK$12,900.00 x 190/30 = HK$81,700.00. 47.The Plaintiff went on to claim partial loss of earnings for the period from February 2006 to trial (ie February 2008) being [HK$12,900.00 - (HK$400 x 20 days)] x 25 months = HK$122,500.00. In light of my conclusions in paragraph 38 above, bearing in mind there is no evidence before me of the earnings of a driver, and the uncertainty over the Plaintiff’s other source(s) of pre-Accident income, I agree with Dr Kong that notwithstanding the need for intermittent rest the Plaintiff is not incapable from carrying out his pre-Accident work (see also the OTD Report). So notionally the Plaintiff could have returned to work as a decoration worker with intermittent rest. Doing the best I can on the evidence before me, I find that an allowance of 6 rest days per month sufficiently reflects the reduction in his work capacity and work efficiency. 48.In the circumstances, the Plaintiff’s accrued partial loss of earnings for the period from 1st February 2006 to 3rd March 2008 is [HK$12,900.00 – (HK$400.00 x (30-6) days)] x 25 months = HK$82,500.00. The Plaintiff’s total pre-trial loss of earnings are HK$81,700.00 + HK$82,500.00 = HK$164,200.00. IX. Pre-trial MPF loss 49.Pre-trial loss of MPF should be HK$164,200.00 x 5% = HK$8,210.00. X. Post-trial loss of earnings 50.I agree that the Plaintiff will continue to suffer partial loss of earnings. The Plaintiff is now 53 years old. He claimed he would have worked until 65 years old had he not suffered right wrist injury. Mr Leung suggested a multiplier of 7 should be adopted, but did not cite any authority in support. I consider the multiplier should be 6 (see Woo Kin Leung v Incorporated Owners of Fu Tor Loy Sun Chuen Stage I HCPI684.2002, Sakhrani J (unreported, 4th April 2005) and Poon Chi Kwong v Poon Wing Kee (Metal Work) & Anor HCPI1340/2003, Suffiad J (unreported, 23rd December 2005)). 51.In the circumstances, the post-trial loss of earnings should be [HK$12,900.00 – (HK$400.00 x 24)] x 6 x 12 = HK$237,600.00. XI. Post-trial MPF 52.Post-trial loss of MPF should be HK$237,600.00 x 5% = HK$11,880.00. XII. Loss of earning capacity 53.The Plaintiff claimed that prior to the Accident he was in good health and had no plan for retirement. He further claimed that but for the Accident, he would have continued to carry out interior decoration work (including demolition of partition walls) for the Defendant or other employer(s). The Plaintiff said he was not well-educated and his right wrist was persistently painful, so he would suffer a handicap in the labour market as compared with other able-bodied persons. He claimed for a sum of not less than HK$48,000.00 under this head of claim. 54.Whilst I accept that as a result of the Plaintiff’s right wrist injury he would suffer a handicap in the labour market, I have found that he could return to his pre-injury work with reduced capacity and awarded him compensation for loss of future earnings till the end of his working life. In reality, the Plaintiff had secured alternative employment as a painter on a casual basis. It must also be borne in mind that the Plaintiff was engaged in casual work pre- and post-Accident, so practically speaking he would “lose” his present job when he finished work for the present employer. The Plaintiff’s loss of earning capacity must be considered in such context, and care must be taken to ensure that there is no overlap in compensation. 55.In the circumstances, a reasonable and fair award under this head of claim is [HK$12,900.00 – (HK$400.00 x 24)] x 5 months = HK$16,500.00, which is equivalent to about 5 months of income difference between the Plaintiff’s income as a interior decoration worker and that of such worker with reduced work capacity/efficiency. XIII. Future medical expenses 56.Dr Kong’s Report suggested that the Plaintiff’s symptoms might require treatment on a need-to-basis. Dr Kong’s estimation of the costs of such treatment were HK$300.00 (per session of physiotherapy) x 3 times weekly x 4 weeks x 3 months = HK$10,800.00. The Plaintiff confirmed he will undergo such physiotherapy treatment once he is put in funds. I am prepared to award such sum for future medical expenses. XIV. Special damages 57.After the Accident the Plaintiff received medical treatment from PMH’s AED, DOT, PD and OTD. Various reports and receipts by PMH showed that the Plaintiff incurred medical expenses of HK$1,440.00. I am prepared to award such sum in full. 58.The Plaintiff attended the PMH for medical treatment 16 times and incurred travelling expenses for 16 return journeys. He claimed travelling expenses for HK$1,000.00. I consider such claim reasonable and award the same. 59.The Plaintiff also claimed for tonic food expenses of HK$5,000.00, but there was no evidence before me (documentary or otherwise) as to what tonic food was purchased or consumed other than a brief reference in the course of the Plaintiff’s evidence to bone soup (骨湯). However, the Plaintiff mentioned for the first time in evidence that when he returned to Mainland China for recuperation during his sick leave, he engaged a helper for 2-3 months. There is no plea of such head of special damages in his pleadings or witness statement, and I am not persuaded by his strained explanations that (a) helper expenses were part of his tonic food expenses, and (b) he did not mention helper expenses previously because he paid for the same himself. The weakness of the suggestion in (b) is evidenced by the Plaintiff’s claim for travelling and medical expenses which were also paid by him. 60.Following Yu Ki v Chin Kit Lam [1981] HKLR 419 and judging from the nature of the Plaintiff’s injuries and period of sick leave, I would allow a global sum of HK$3,000.00 for the Plaintiff’s tonic food. In any event, the Plaintiff did not give any particulars for helper expenses, and I am not prepared to make any award for the same. 61.The special damages should be HK$1,440.00 + HK$1,000.00 + HK$3,000.00 = HK$5,440.00. XV. Employees’ compensation 62.The Plaintiff would give credit for employees’ compensation in the sum of HK$72,404.00 assessed and awarded by Deputy District Judge S T Poon on 11th May 2007 in the DCEC Action. 63.However, it transpired from the Plaintiff’s evidence that after the Accident the Defendant made several deposits of money into the Plaintiff’s bank account in the total sum of about HK$20,000.00. He claimed he had provided a photocopy of his bank passbook evidencing such deposits to his solicitors. However, careful review of the assessment bundle before me did not elicit such document. Furthermore, the Plaintiff has not given credit for such payment in the employees’ compensation claimed/awarded in the DCEC Action. In fact, it seems that such fact only surfaced in the Plaintiff’s evidence at the assessment hearing before me. Mr Leung conceded that the Plaintiff should give credit for such sum. XVI. Conclusion 64.I assess the quantum of the Plaintiff’s loss and damages as follows :
65.I therefore grant judgment in favour of the Plaintiff in the sum of HK$532,226.00 against the Defendant. I award interest on the award for pain, suffering and loss of amenities at 2% pa from the date of the writ of summons to the date of judgment herein. In respect of special damages, interest is awarded at half judgment rate (ie 5.21% pa) from the date of the Accident to the date of judgment herein and thereafter at judgment rate until payment. 66.I grant a costs order nisi that the Defendant do pay the Plaintiff costs of the assessment of damages (including all costs reserved, if any) to be taxed if not agreed. The Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.
Mr Kenneth W M Leung & Co of Messrs Kenneth W Leung & Co for the Plaintiff. The Defendant in person and absent. |
Further hearings and rulings under DCPI 1306/2007