Hui Wing Hung v. Wong Wing Kee Plaster Engineeering Co Ltd and Another
Read the full judgment text of HCPI 773/2007 on BabelCite. This High Court CFI judgment was delivered on 18 June 2009.
1. The Plaintiff was injured, while working in a gondola at around 8 th floor level outside a building under construction at Lei Muk Shu Estate, and was hit by a concrete debris fallen from a height of over 30 stories in the morning on 22 November 2004. His right proximal forearm was badly hurt with blood bleeding profusedly from a wound of 1 cm long. He was immediately rushed to hospital and stayed there until 24 November 2004 when he was discharged.
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HCPI 773/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 773 OF 2007 ---------------------- BETWEEN
---------------------- Coram : Before Master C. Chan in Court Date of Hearing : 20 March 2009 and 14 May 2009 Date of Judgment : 18 June 2009 ----------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------- 1.The Plaintiff was injured, while working in a gondola at around 8th floor level outside a building under construction at Lei Muk Shu Estate, and was hit by a concrete debris fallen from a height of over 30 stories in the morning on 22 November 2004. His right proximal forearm was badly hurt with blood bleeding profusedly from a wound of 1 cm long. He was immediately rushed to hospital and stayed there until 24 November 2004 when he was discharged. 2.After that, he attended follow-up medical treatment as well as physiotherapy and occupational therapy treatments for a long period of time up to August 2005 when his condition became stable and no marked improvement could be made. 3.The Plaintiff commenced action on 1 September 2007, almost three years after the accident. The Defendants at first defended the action and on 17 April 2008 admitted liability. Judgment was then entered with damages to be assessed. 4.The main dispute between the two parties is whether the Plaintiff had substantially recovered and whether he could return to his former job as a plasterer. The Plaintiff claimed that he had tried but was unable to cope with the strength demand required on his right hand in pressing and leveling the plaster on the wall. 5.He was born on 8 November 1970. At the time of the accident he was 34 and now 39. He came to Hong Kong in 2001 and since then, he had been working as a plasterer. He did not have other skill. After the injury, he took up another occupation as a security guard with much less income. 6.Mr. Hon for the Defendants submits that the Plaintiff could return to his former job, and relies heavily on the various medical reports from Dr. Lam Yau Kit. Dr. Lam’s first report dated 16 December 2005 at its last paragraph came to the conclusion:
He suspected: “there is some element of symptom magnification in this case”. 7.Dr. Lam on 29 February 2008 gave a supplementary medical report explaining in greater detail why he came to that conclusion:
He maintained “the total whole person impairment due to the injury on 22 November 2004 is estimated to be 3%”. 8.A joint interview and physical examination by Dr. Lam and Dr. Wong Chin Hing instructed by the Defendant and the Plaintiff respectively took place on 28 November 2008, i.e. about 4 years after the accident. Dr. Lam did not change his view. Sick Leave Period 9.It is common ground that there is no fracture and there is partial tear of the exterior muscle. The medical treatment and management that the Plaintiff received are appropriate. However, Dr. Lam considers the leave granted is inappropriately long and at page 8 of the Joint Medical Report comments: “the partial rupture of muscle to heal within 3 months, a further 3 months of rehabilitation would be required for muscle strengthening. Dr. Lam would recommend sick leave up to 6 months to be within reasonable limit”. The sick leave granted by the Plaintiff’s doctors is more than 11 months. 10.I share the view of Mr. Ng of counsel for the Plaintiff that the doctors who examined the Plaintiff at the time of treatment were in a much better position to assess the length of sick leave. 11.According to undisputed record, the Plaintiff during the year following the accident, had:
The occupational therapy alone brought us to August 2005. As Dr. Lam confirms the appropriateness of the treatment, a period of few more months after that treatment to cure the pain is not unreasonable: this forms such a long period of sick leave from 22 November 2004 to 26 October 2005. Resumption of Former Work 12.On the question whether the Plaintiff could return to work, the specialist, Dr. Wong Chiu Hing, instructed by the Plaintiff, relies primarily on the observation made by the occupational therapist Casie P.S. Chan who in the report of 3 June 2006 described the attitude of the Plaintiff as follows:
However, Dr. Wong in his various reports never explained why there was such pain. I must say pain is very subjective. One can easily say that he has pain and stops performing any act. There is no way to find out whether one is genuinely suffering from pain. 13.Dr. Wong’s explanation why he came to the conclusion that the Plaintiff could not resume his former job can be found in page 8 of the Joint Report:
14.One may note that Dr. Wong’s conclusion relied heavily on what other people told him, from physiotherapists, occupational therapists and even from the Plaintiff himself. It is not an independent medical finding that we expect to see. 15.Both sides agree that the Plaintiff’s right hand is his dominant hand. Both specialists accept that there is tenderness and weakness in his right forearm and there is only slight reduction in muscle bulk in his right forearm as compared to his left forearm. From the medical evidence, I cannot say for sure whether the Plaintiff can re-join his former occupation after a period of adjustment or modification. 16.The Plaintiff in his main witness statement dated 19 February 2008 did not mention much about his pain as set out in paragraphs 24, 25 and 26:
17.In his supplemental statement dated 28 August 2008, he told us in paragraphs 3, 5, 6, 8 and 10 that he had tried in using his right hand and the difficulties he encountered as follows:
18.In those paragraphs, the Plaintiff did not mention anything about pain. Neither in his verbal testimony did he complain about pain at all. If I am asked to make a choice between the medical evidence of Dr. Lam and that of Dr. Wong, I would prefer the former. 19.Both specialists as well as the occupational therapists do not make any prognosis or suggestion how and in what way the Plaintiff’s right hand could be trained to recover the strength or alternatively how his left hand could be trained to be adjusted to become the dominant hand. 20.Mr. Hon for the Defendant tried very hard to cross examine on this point whether the Plaintiff could return to his former or similar job or use the left hand as dominant hand. But, I do not find him successful in that regard. 21.The Defendant also produced a video film made by a private investigator capturing some of the daily activities of the Plaintiff. I find some sections are of relevance:
22.The above incidents are some of the examples to show that he was still accustomed to use his right hand first. Whether his left hand could be trained as his dominant hand is something I cannot find it in the evidence. Neither can I say that he can now effectively use his right hand as before. 23.I have to accept the unshaken evidence contained in his supplemental statement as set out in paragraph 16 above. I cannot say that he has fully recovered. Both experts accept that his right hand is weak and does not have strength. Neither of the experts gives any explanation why he thinks there is still pain or there is none. On balance of probabilities I find that the Plaintiff’s right hand cannot perform duties that require exertion and lifting like lifting of heavy bags loaded with cement or using the chisel to level the plaster. For this reason, I conclude that the Plaintiff cannot return to his former occupation. I have no evidence that the Plaintiff’s right hand can be trained to recover strength or his left hand can be adjusted as dominant hand. With this conclusion I proceed to examine each item of his claim. Pain, Suffering and Loss of Amenities of Life 24.The leading case under this head must be Lee Ting-lam v Leung Kam-ming [1980] HKLR 657 where the Court of Appeal lay down certain guidelines and generally classify it into four categories:
25.All these refer to injuries so serious that the amount of incapacitation badly affects the daily life of the injured. In our case, it falls far below the category of serious injury. 26.In the revised Statement of Damages dated 13 May 2008, the Plaintiff has the following complaints:
27.In his supplemental statement dated 28 August 2008 at paragraph 26, the Plaintiff tried to add one more claim and said:
Counsel for the Plaintiff sought no amendment to include it in the Revised Statement of Damages. Counsel for the Defendant raised no objection to this claim and cross-examined on it. Under such circumstances I take no issue except that I will consider how much weight I would attach to the evidence given at such late stage. 28.Counsel of both sides cite a number of cases for me to consider. From the Plaintiff are the following:
29.Mr. Hon for the defence gave me 4 cases generally with lower awards. They are:
30.Having had the chance of examining and considering the different cases I am not too sure how the different judicial officers have arrived at their awards. Most probably, they have taken into account the actual injuries, and the consequential effects upon the daily life and the well being of the Plaintiffs concerned. I believe that they, having made some mental comparison with the authorities cited, came up with the figures but with no breakdowns in detail. 31.I try to take a different approach. I intend to consider the amount under each of the items of pain, suffering and loss of amenities instead of assessing them in a global sum. 32.To begin with I try to analyse what is pain and suffering. The learned editor of McGregor on Damages, 17th edition, at section 35-213, has this to say:
Pain 33.How much pain has the Plaintiff suffered resulting from the accident? In this case there is no question that the Plaintiff had great pain when the concrete debris hit him on his right arm. It came suddenly and blood came profusedly out of the wound. The trauma must be immense. But, he did not require any operation. He did not have any casting or anything that limited the movement of his hand or arm. Thereafter he went through the ordeal of medical, physiotherapy and occupational therapy treatment. I accept that residual pain continued for some time. 34.At the joint examination on 28 November 2008, the problems as identified by the Plaintiff himself about pain are as follows:
35.Neither Dr. Wong appointed by the Plaintiff nor Dr. Lam by the Defendant gave any explanation or comment on the pain. I find that at the time of making his supplemental statement on 28 August 2008 he made no mention about pain. If he had pain, it was such an important issue he should have brought it up. The occurrence of all the incidents that he referred to was due to the weakness or the lack of strength of his hand and not to pain. 36.I rule that his claim for pain before the specialists was not a genuine one. I find that his pain lasted only until the middle of 2008. He had no further pain at the time of the medical examination or at the time of trial. For pain alone, I would assign a sum of $40,000. Suffering 37.Suffering, as explained in McGregor, is more related to mental state. At the time of accident he must have a sense of fright and fear of future incapacity. When he received medical treatments, the sense of uncertainty persisted. But, his arm was not cast in plaster. The anxiety and fear would last until his condition became stable, in this case when the occupational therapy treatment concluded on 8 August 2005. In April 2006, he commenced work as a security guard. It seemed to me that he did not accept the situation: as late as June and August 2007 he tried to do plastering work but in vain. The last event that dashed all his hope was the decoration of his brother’s new flat. He found that he could not do the plastering any more as his right hand did not have strength. I accept that one will always feel frustrated if he cannot return to his former job. 38.For suffering, I would give a sum of $50,000. Loss of Amenities 39.There is no mention about this except in paragraph 3.1 to 3.3 of Revised Statement of Damages dated 13 May 2008 as set out in paragraph 26 above. 40.I do not see how the pain as described in the joint medical report as set out in paragraph 34 above affects his sexual enjoyment. Evidence from the tape shows that the Plaintiff has found new love and they have been happily together. I doubt very much the pain is the reason for him separate from his wife. As observed by Dr. Lam, the Plaintiff has exaggerated the symptoms of his injury. So do I find that there is a lot of exaggeration in his claim as well as evidence. I dismiss his claim in this regard. 41.In paragraph 26 of his witness statement (repeated in paragraph 27 above), he portrayed himself as a healthy young person, often playing basketball, going to gym, doing push-ups and driving motorcycles. At the hearing, he testified that he could play basketball but in a limited way i.e. doing the shooting only and not in a real game of competition. He made no mention about the other sports. 42.From the video tape evidence I note that he was a frequent cigarette smoker. It put me in doubt whether he was a person really caring for his own health and a true lover of sports. 43.Further, the claim for loss of amenities in this regard was not included in the Revised Statement of Damages but set out in his witness statement. Neither did he mention this when he had the joint medical examination. I have had certain hesitation in accepting all what he said. 44.I accept that there is certainly some inconvenience caused to him because of the weakness of his dominant hand. I would assess a sum of $25,000. 45.All in all, under the head of pain, suffering and loss of amenities I give a total sum of $115,000, a figure lower than what has been suggested by the Defendant. I have made reference to the various cases cited to me and note that my figure is the lowest. The reasons for it are that the Plaintiff has almost fully recovered, his evidence in this respect is not satisfactory and his daily life is not much affected. Pre-trial Loss of Earning 46.It is not disputed that the Plaintiff was earning $550 a day before the accident. The Plaintiff claims 27 working days in a month. The cross-examination made by Mr. Hon for the defence concentrated on this, the average number of working days in a month. 47.I find that the evidence does not assist the Plaintiff in such a claim. In form 2 submitted by the employer after the accident, the Defendants stated it was only 24 days. Similarly, the 1st Defendant certified to the 2nd Defendant that the number of average working days in a month was 24. In any event, the compensation was covered by insurance. I find no reason for the 1st Defendant to make any false certification. 48.Mr. Ng refers us to a worksheet showing a record of two working weeks of the Plaintiff from 11 October 2004 to 23 October 2004 when the Plaintiff took only 1 day holiday. I do not find it reliable. First, it is only a record of two weeks: it is hardly representative. Further, the Plaintiff worked outdoor; the Plaintiff did not deny that the number of working days depends very much on the weather condition. I also doubt that his employer could be able to continuously find job for him without stop, say, switching from one project to another without interruption. 49.As I have said, I have some reservation on the Plaintiff’s evidence. I do not believe his claim that he worked at least 25 days a month. I accept Mr. Hon’s suggestion – I take 24 days a month for the purpose of calculation of his remuneration. 50.The monthly income should be $13,200 i.e. $550 a day x 24 days. 51.As I have decided earlier, the sick leave from 22 November 2004 to 26 October 2005 is reasonable, i.e. 11 months and 4 days. I allow the sick leave period with full amount of $13,200 per month. 52.I do not know why the Plaintiff took nearly half a year to find a job of security guard. The Defendant did not raise any query on this. I have to accept this period as reasonable for calculation purpose. 53.According to the Plaintiff’s statement, the Plaintiff commenced work as security guard in April 2006. He resigned on 28 February 2007 because he was unable to cope with the heavy duty assigned to him. During that time he earned $6,200. For this period of 11 months, the difference was $7,000 ($13,200 - $6,200). 54.For the month of March 2007, he looked for another job. He resumed worked again in April 2007 at a monthly salary of $7,000 ($13,200 - $6,200). 55.After 20 months, his salary was increased to $7,100. For the ease of calculation I take 31 May 2009 as the cut off date for the loss of pre-trial earnings. 56.The calculation for pre-trial loss of earning is as follows:
Loss of Future Earning 57.Parties have agreed to use the multiplier of 13. The calculation under this head is as follows:
Loss of Mandatory Provident Fund 58.The employer has to contribute 5% to the Fund. The calculation under this head is:
Loss of Earning Capacity 59.There is no dispute on point of law under this head. Both sides accept the statement made by Lord Fraser in the case of Chan Wai-tong and another v Li Ping-sum [1985] HKLRD 176 at 183B:
60.In this case, we have to take into account that the Plaintiff is now working at a considerably lower salary. But the difference in remuneration has been well provided for under the head of loss of future earning. 61.According to the evidence relating to his present employment, he readily found another job with higher pay after his resignation in February 2007. He also got an increase in salary at the beginning of this year. He is now employed by a reputable real estate management company. 62.Taking the above factors into account, I reckon a provision of 4 months’ salary under this head will be sufficient. The calculation under this head is:
Medical and Travelling Expenses 63.The amount of $6,591 for this item is fair and reasonable. I am not sure whether it is in dispute. In any event I allow the sum. Tonic Food and Medical Expenses 64.The Plaintiff claims $17,500 but he can produce evidence to substantiate a total sum of $8,240 only. Where is the remaining? The reason given for being unable to produce other receipts is that he did not know that the costs could be recovered. I do not accept such argument. From the dates of the receipts in hand, I note that they were issued in the years of 2004 and 2005. Why are the more recent ones being lost? Or, is it the case that he has fully recovered and does not require tonic food in the more recent years? 65.However, it is not reasonable to expect that all expenses of this type had receipts. But, I cannot accept that a substantial amount has been lost. 66.To be fair and reasonable, I allow a sum of $10,000. Total Award 67.To sum up, the award I make in this case is:
Interest 68.The usual interest order is made:
Costs 69.I make an order nisi for costs that the Defendant pay the Plaintiff’s costs of this case with certificate for counsel to be taxed if not agreed. This order shall become absolute if no written application for variation is made within 14 days of this Judgment.
Mr. Lawrence Ng instructed by Messrs. Yip, Tse & Tang for Plaintiff. Mr. Kevin Hon instructed by Messrs. Henry H.C. Wong & Co. for Defendants. |
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