Kan Kwok Cheung v. Cheung Chung t/a 實惠室內裝修傢俬設計公司
Read the full judgment text of HCPI 947/2008 on BabelCite. This High Court CFI judgment was delivered on 21 June 2010.
1. On 6 October 2006, the Plaintiff, who was employed by the Defendant as a labourer to carry out dismantling works for the renovation of certain premises at Tai Wai, New Territories (“Premises”), used an electric breaker to remove wall tiles at the toilet and felt something penetrated his left eye (“Accident”). It felt painful, and he rested for 20 minutes before resuming work until the end of the workday.
Cited by 4 cases · Cites 12 cases
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HCPI 947/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 947 OF 2008
BETWEEN
_________________________ Coram : Before Master Marlene Ng in Court Date of Hearing : 11 June 2010 Date of Handing Down Judgment : 21 June 2010 ___________________________ ASSESSMENT OF DAMAGES ___________________________ I. BACKGROUND 1.On 6 October 2006, the Plaintiff, who was employed by the Defendant as a labourer to carry out dismantling works for the renovation of certain premises at Tai Wai, New Territories (“Premises”), used an electric breaker to remove wall tiles at the toilet and felt something penetrated his left eye (“Accident”). It felt painful, and he rested for 20 minutes before resuming work until the end of the workday. 2.The Plaintiff claimed that the Accident was caused by breach of statutory duty and/or breach of contract of employment and/or negligence on the part of the Defendant, and on such basis claimed damages for personal injuries. On 15 June 2009, the Plaintiff entered interlocutory judgment against the Defendant for damages to be assessed. 3.Pursuant to the order of Master J Wong dated 29 March 2010, the Plaintiff served Notice of Hearing of Assessment of Damages on the Defendant by substituted service, ie by newspaper advertisement published on 17 April 2010. But the Defendant was absent when the matter came before me for assessment of damages. I proceeded with the assessment hearing. II. WITNESSES AND EXPERTS 4.The Plaintiff and an electric welder Mr Ip Mun Hung (“Mr Ip”) gave evidence and adopted their respective witness statement dated 27 July and 20 May 2009 as their evidence-in-chief. The expert medical reports of the Plaintiff’s ophthalmic expert Dr Benedict Liang (“Dr Liang”) dated 23 December 2009 (“Liang Report”) and his psychiatric expert Dr Peter Ho Pang Nin (“Dr Ho”) dated 30 April 2009 (“Ho Report”) were adduced without oral evidence. III. PERSONAL HISTORY 5.The Plaintiff was aged 47 years at the time of the Accident and is now almost 50 years old. He was educated up to Form 2 level and could read and write Chinese. His previous sports and hobbies included playing football and basketball, swimming, picnicking and singing karaoke, but he gave them up after the Accident. IV. PRE-ACCIDENT MEDICAL HISTORY 6.In about 1995, the Plaintiff had history of glaucoma of the left eye. In about 1997, he received laser surgery and the condition stabilised with about 1000° myopia. In about 2005, he suffered cataract and glaucoma of the right eye. In about September 2005, the eye clinic of North District Hospital (“NDH”) referred him to Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”) for medical treatment. 7.The Plaintiff suffered from bilateral glaucoma with visual acuity in the left eye being light perception to hand movement whilst that of the right eye was 0.1 to 0.2 (ie about 50%). The intraocular pressure was well controlled and the condition was stable with medication and eyedrops, but vision was very poor. 8.The Plaintiff defaulted subsequent follow up on the scheduled dates of 7 December 2005, 1 February 2006, and 17 and 27 June 2006. He returned for follow up on 14 July 2006. The eye condition was stable and he was given medication. He defaulted follow up again on 7 August and 4 October 2006. When he gave evidence, the Plaintiff explained that he defaulted attending follow up on those occasions because he was either unwell or had forgotten the appointment dates/times. However, he would attend the re-fixed appointments because he had to obtain medication/ eyedrops which he could not purchase off the counter. 9.Apart from his eye condition, the Plaintiff enjoyed general good health prior to the Accident. V. OPHTHALMIC INJURY AND TREATMENT 10.On the day following the Accident (ie 7 October 2006), the condition of the Plaintiff’s left eye deteriorated and it felt painful. He sought medical treatment at the accident and emergency department (“AED”) of NDH. He complained of left eye pain and decreased left eye vision. On examination, it was found that his left eye suffered from left corneal abrasions. There was no double vision, and no foreign body was seen in the left eye. The doctor prescribed some painkillers and eyedrops. 11.According to the Plaintiff, he was not immediately referred to AHMLNH because NDH did not have any department of ophthalmology and visual sciences (“DOVS”) and the doctor at NDH’s AED did not consider his condition serious. The Plaintiff claimed that he applied eyedrops as instructed by NDH’s doctor, but due to persistent left eye pain he attended NDH’s AED again on 9 October 2006. 12.But according to the medical reports of NDH’s AED dated 16 February 2007 and 9 September 2008, the Plaintiff was “referred to EYE unit of [AHMLNH]” on 7 October 2006. According to the medical report of NDH’s AED dated 4 September 2008, it was noted that on 7 October 2006 the Plaintiff was “already referred to [AHMLNH] Ophth OPD”, but he did not attend on that day and only attended NDH’s AED on 9 October 2006 due to persistent eye pain. On balance I prefer the version of facts as recorded by NDH, which I find reliable. 13.On 9 October 2006, it was found that the Plaintiff’s left cornea appeared cloudy, and congested conjunctiva was also noted at the left eye. The provisional diagnosis was left cornea infection, and the Plaintiff was referred to AHMLNH’s DOVS for further management. He was admitted to AHMLNH on the same day. Medical findings at that time included (a) visual acuity of the right eye of 20/50, (b) poor visual acuity of left eye of light perception and recognition of hand movement only, (c) large left eye cornea ulcer around 6mm with infiltrate, (d) inflamed left eye with hypopyon in the anterior chamber and (e) bacterial culture of the ulcer yielded pseudomonas species. The Plaintiff was given intensive antibiotics treatment during his hospital stay of 2 days. 14.Since the left eye condition seemed to be deteriorating, the Plaintiff was also referred to DOVS of Prince of Wales Hospital (“PWH”). On 11 October 2006, he was admitted to PWH’s DOVS, but his left eye was not responsive to medical treatment. In view of the poor response to aggressive treatment with antibiotics and the poor prognosis of the left eye, the Plaintiff received surgery on 24 October 2006 for removal of his left eye eyeball content (ie left eye evisceration) as a result of serious bacterial infection. An ocular medpor implant was inserted at the time as a volume replacement. Postoperatively, the wound was stable and uneventful, and the left eye socket was pending for artificial eye (prosthesis) for cosmetic purpose. The Plaintiff was discharged from hospital on 30 October 2006. 15.The Plaintiff was then referred back to AHMLNH for follow up and referred to Kowloon Hospital’s ocularist for cosmetic prosthesis. A discussion to improve cosmesis by undergoing socket surgery was initiated, but the Plaintiff preferred to observe at that moment. 16.On 16 December 2006, the Plaintiff attended the occupational therapy department of NDH. 17.On 8 January 2007, the Plaintiff attended AHMLNH when vision of the right eye was 0.15 and the left eye socket was stable. The Plaintiff underwent right eye visual field examination on 26 January 2007. His right eye was found to be stable and showed inferior arcuate defect compatible with the condition of glaucoma. The Plaintiff was transferred to PWH’s eye unit for outpatient monitoring. In/about January 2007, an artificial left eye was installed. 18.Subsequently, the Plaintiff suffered from left eye healing problem. On 17 July 2007, he was noted to have some discharge from the wound. There was some infection but his condition responded well to antibiotic therapy. In/about February and March 2008, the Plaintiff noticed pain over his left eye again. He presented with conjunctival erosion and exposed medpor implant with enterobacterial infection, which made it difficult for him to wear the artificial eye. He was commenced on oral and topical antibiotics. 19.On 4 March 2008, repair of the left conjunctival wound, revision of the left orbital implant, and lid reconstruction were performed at AHMLNH. The Plaintiff’s immediate postoperative course was smooth, and he was referred back to PWH. In the meantime, the Plaintiff’s right eye remained stable all along and the intraocular pressure was being maintained with anti-glaucoma eyedrops. 20.Initially the left eye wound was stable. However, it redehisced and repeated operations were carried out on 8 April 2008 (ie reconstruction of left eyelid with tarsoconjunctival flap and orbital reconstruction for orbital implant exposure) and 18 June 2008 (ie reconstruction of left eyelid with tarsoconjunctival flap) to help cover up the exposed implant. Subsequently due to bacterial infection, the Plaintiff could no longer wear the artificial eye. On 26 September 2008, the doctor at AHMLNH removed the left orbital implant, and the Plaintiff was referred back to PWH for continuation of care. 21.Due to the numerous operations after the Accident, the Plaintiff’s left eye socket and left eyelid had many scars, and he could no longer wear any artificial eye. He could not accept his cosmetic appearance following loss of his left eye with sunken left eye socket and dark eyelid that were full of scars and wrinkles. 22.In his witness statement, the Plaintiff claimed that he had cataracts as a side effect of using glaucoma eyedrops on long-term basis, so his right eye vision was fuzzy (ie “好像被一層簿紗遮著”). Since he had only 1 good eye left, PWH arranged an early appointment for right eye cataract extraction and intraocular lens implantation. He was admitted to PWH on 22 April 2009. Operation on the right eye was done on 23 April 2009 and he was discharged on the following day. Post-operatively the eye wound was healed. 23.The Plaintiff said in his witness statement that his right eye vision did not substantially improve after the operation, but “看東西時會覺得較光，像是去掉了一層簿紗”. When he gave evidence, the Plaintiff said he had to train for a few months in order to see with 1 eye whilst holding a normal head posture. 24.According to the medical report by PWH’s DOVS dated 12 April 2010, the Plaintiff was last seen on 4 March 2010. His visual acuity was 20/100 for right eye and permanent blindness for the left. Right eye intraocular lens was stable. His right eye was put on anti-glaucomatous medication with satisfactory eye pressure control. According to the Liang Report, further surgeries were planned to see whether the Plaintiff could wear the artificial eye again. VI. PSYCHIATRIC INJURY AND TREATMENT 25.According to the Ho Report, the Plaintiff recalled his mood was not that bad after he was fitted with the artificial eye, but in about early 2008 following several operations upon infection of the tissue behind the artificial eye, the doctors were finally of the opinion that the artificial eye could not be fixed to the eye socket anymore and his mood gradually became worse. 26.The Plaintiff claimed that as there was no eyeball for his left eye the left eyelid was sunken, which severely affected his cosmetic appearance. He felt like a freak and was depressed. He was unable to look into the mirror, and had to wear sunglasses when he went out. He lost confidence and feared discrimination by others. He stayed at home all the time and did not want to go out. His mood became unstable and he became irritable and would loose his temper with his wife and child. 27.According to the Ho Report, the Plaintiff also worried over the deterioration of his right eye vision. At that time, he was then scheduled for further operation of his right eye and worried he could become totally blind. The Plaintiff believed his poor sleep and his need to use only 1 eye might be contributing factors to the deterioration of his right eye visual function after the Accident. 28.The Plaintiff’s doctors referred him to receive psychiatric treatment. He first presented to NDH’s psychiatric outpatient clinic on 22 May 2008 with onset of depressive mood, irritability, insomnia, impairment of appetite with subjective body weight loss following his eye injury in 2006. He was diagnosed to suffer from adjustment disorder and psychiatric medication was commenced. 29.The Plaintiff attended psychiatric follow up at NDH regularly. When seen on 24 July 2008, he reported some improvement in his mood and appetite, and psychiatric medication was prescribed. When seen on 19 March 2009, he complained of insomnia and impairment of appetite. Mental state examination showed his mood was irritable and depressed, and psychiatric medication was prescribed. 30.The Plaintiff’s mental state tended to wax and wane initially until the recent 1 year when he reported to have subjective improvement in depressive symptoms. According to the medical report of NDH’s department of psychiatry dated 7 April 2010, the Plaintiff was last seen on 23 February 2010 when he complained of broken sleep and irritable mood after he stopped medication for 2 weeks. The importance of drug compliance was discussed with him, and psychiatric medication was prescribed. VII. SICK LEAVE AND MEDICAL TREATMENT SESSIONS 31.For the period from 7 October 2006 to 26 April 2008, the Plaintiff attended NDH’s AED 5 times and received 18 sessions of follow up at AHMLNH and 3 sessions of medical treatment at its DOVS. He was hospitalised from 9 to 11 October 2006, 3 to 5 March 2008 and 7 to 8 April 2008. 32.For the period from 11 October 2006 to 27 August 2009, the Plaintiff received about 28 sessions of follow up treatment at PWH and was hospitalised from 11 October to 1 November 2006 and on 18 June 2006. 33.For the period from 16 December 2008 to 27 February 2009, the Plaintiff received about 8 sessions of occupational therapy treatment. For the period from 22 May 2008 to 23 February 2010, the Plaintiff received about 15 sessions of psychiatric treatment. 34.After the Accident, the Plaintiff was granted sick leave from 7 October 2006 to 10 March 2007, 10 June 2008 to 22 April 2009, 28 April to 19 May 2009, 22 May to 20 July 2009 and continuing. VIII. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”) (a) Liang Report 35.According to the Liang Report, the Plaintiff had no difficulty in walking. The left eye was deformed with no eyeball and sunken left eye socket. A scar was present at the left upper lid causing a notch. The Plaintiff suffered total loss of vision of the left eye together with loss of left eyeball causing severe cosmetic problem. Before the injury, the left eye vision was hand movement only and now it was totally lost due to severe cornea ulcer/infection that was a direct result of the Accident. Dr Liang noted that further surgeries were planned by PWH to improve the Plaintiff’s facial appearance, but he opined that the success rate would be low because of the extensive scarring. 36.The Plaintiff’s right eye vision was also abnormal. He had history of glaucoma in 2005, and the present vision was only 0.1 due to glaucoma and significant cataract over his right eye. Glaucoma is an eye disease that damages the optic nerve. Once an optic nerve cell dies, nature does not provide a replacement, so glaucomatous damage once present cannot be healed or reversed. This means that if the entire nerve is destroyed, then blindness results. Dr Liang opined that if the Plaintiff’s glaucoma were poorly controlled, his right eye vision could deteriorate and be lost in a few years’ time. Cataract surgery would probably improve his then visual acuity. (b) Ho Report 37.Dr Ho was of the view that the Plaintiff suffered from symptoms that were similar to those of post-traumatic stress disorder (“PTSD”) such as reflections on the Accident, avoidance behaviour in response to cues reminding him of the Accident, and a certain degree of emotional numbness with reduced interest. However, the intensity of these symptoms was not severe enough to qualify for the diagnostic labelling of PTSD. 38.Dr Ho further opined that the Plaintiff had been suffering from an adjustment disorder with mixed anxiety and depressed mood that was a reaction to the stresses at the time of the Accident, the physical impairment after the Accident, and the social consequences such as the employment and financial problems. Apart from the loss of 1 eye, the facial disfiguration after the failure of fixation of an artificial eye to the left eye socket was also a significant stress factor. The Plaintiff’s mental symptoms included depressive mood, sleep disturbances, reduced appetite, guilty feelings, impaired sexual desire, reduced interest, motivation and social interactions, irritability, headache, lowered confidence level and self-esteem, mild impairment of concentration, and frequent worries about his future and social problems. There was no particular evidence that the Plaintiff had any pre-existing psychiatric condition. 39.Overall, Dr Ho took the view there was no particular evidence that suggested the Plaintiff had exaggerated his mental symptoms. From the psychiatric perspective alone, Dr Ho estimated the Plaintiff’s whole person impairment to be in the mild to moderate range. There were still some residual symptoms and many of his daily activities were affected, eg his sleep, sexual function, social activities and pace were all impaired to some extent. The side effects of psychiatric medications could also contribute to his sexual problem, impairment in concentration, and slowing of pace. 40.Dr Ho judged the prognosis to be on the unfavourable side. Consideration had to be taken of the Plaintiff’s persistent and severe physical impairment that was irreversible with complicating social consequences. If his right eye function deteriorated, his mental condition would become worse. 41.Dr Ho opined that the suicidal risk was estimated to be not high but it should not be ignored in the long term. In fact, it was noted in the Patient Assessment Form by PWH dated 24 April 2009 that suicidal risk was not identified. (c) Discussion 42.Mr Wong, counsel for the Plaintiff, submitted that the appropriate award for PSLA would be HK$800,000.00. In fact, he submitted that a sum of HK$1,000,000.00 might be on the high side, but would not be completely unreasonable. 43.In support, Mr Wong relied on the case of Lai Ping Wah, the Personal Representative of the estate of Ku Lai Kwan, deceased v China Insurance Company Limited representing the estate of Tang Leung, deceased & anor HCPI 874/1997, Seagroatt J (unreported, 25 November 1999). In that case, the plaintiff (a passenger on a coach) was thrown onto the road surface as a result of a traffic accident. She suffered more serious injuries than those suffered by the Plaintiff in the present case. After the accident, the general physical state of the plaintiff in Lau Ping Wah declined progressively. In less than half a year, she was blind in the left eye and there was deterioration in vision in her right eye. She became totally blind in about 18 months. There was progressive weakness in her legs. Paraplegia set in and further deterioration led to tetraplegia. 3½ years after the accident, she died of pneumonia as a complication of multiple sclerosis. The learned judge awarded HK$1,000,000.00 as the award for PSLA. 44.In my view, the present facts are a far cry from those in Lai Ping Wah, especially when the Plaintiff here had no difficulty in walking. One of the reasons for awarding a subsbtantial sum for PSLA in Lai Ping Wah was due to the plaintiff’s frightening experience of losing her left eyesight 6-7 months after the accident followed by reduction of vision of the other eye and then total blindness. She survived for 2 more years as she declined from hemi-paresis to paraplegia and finally to quadriplegia. The PSLA award was granted to embrace the pain and suffering as well as the sense of hopelessness and despair as a result of persistent and irreversible decline. 45.Mr Wong next referred me to Lee Ping Foon v Li Hoi trading as Hoi Tat Construction & Decoration Engineering, Master Chu (as she then was) (unreported, 22 January 1998) and Cheng Cho Fai v Law Ka Chung HCPI 1005/2006, Yam J (unreported, 29 August 2008). 46.In Lee Ping Foon, the nail head struck the plaintiff’s left eye whilst he was hammering a nail resulting in a large corneal laceration. He had 3 operations, and was virtually unable to see because he was totally blind in the right eye with no light perception. The learned master accepted that the injuries fell within the “serious injury” category and that there should be an upward adjustment in the award for PSLA to reflect the graver consequences, ie the plaintiff’s greater suffering as a result of loss of his only remaining good eye. A sum of HK$600,000.00 was awarded for PSLA. 47.In Cheng Cho Fai, the plaintiff suffered orthopaedic, dental, maxillofacial, ophthalmic and psychiatric injuries as a result of a traffic accident. In respect of the ophthalmic injuries, the plaintiff suffered left multiple orbital floor fractures and “sunken in left eye with double vision, enophthalmos, diplopia and ptosis of the left eye”. He had undergone 7 operations. The learned judge referred to Ho Yam Pai v Tse Tak Ming HCPI 91/1996 (unreported, 16 April 1997) in which Master Chung (as he then was) awarded HK$450,000.00 for PSLA for blindness of right eye, which was more severe than those suffered by the plaintiff in Cheng Cho Fai, and after taking inflation into account the learned judge awarded HK$500,000.00 for PSLA for the eye injury. 48.Mr Wong submitted that the learned master in Lee Ping Foon might have erred on the low side and that she should have placed the injuries within the category of “substantial injury” rather than “serious injury”. In this connection, Mr Wong argued that in the present case the Plaintiff’s condition went beyond the “serious injury” category which covered those cases where the injury left a disability which marred general activities and enjoyment of life but allowed reasonable mobility to the victim. Mr Wong submitted that the Plaintiff’s condition “would have left the plaintiff “with a much reduced degree of mobility”: Lee Ting Lam v Leung Kam Ming [1980] HKLR 657”. 49.Mr Wong also referred to Chan To Wai v Rigid Plumbing Ltd & anor HCPI 1334/2006, Wong J (unreported, 27 January 1998) in which the plaintiff sustained a ruptured right eyeball resulting in total blindness when the cutting machine he was using suddenly broke, sending a piece of metal flying into his eye. Subsequent mental symptoms developed into schizophrenia. The learned judge held that because the plaintiff’s mental illness was caused by the accident, his injuries fell within the category of gross disability which comprised injuries which left the victim with very restricted mobility or caused serious mental disability or behavioural changes. A sum of HK$800,000.00 was awarded for PSLA. 50.I am not persuaded that the Plaintiff’s physical injuries in present case fell within the “substantial injury” category. In Lee Ting Lam at p.660, it was said that the “substantial injury” category “extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim’s life”. This was also confirmed in Lau Ming Wah v Yau Ka Fai & anor and Law Kee Hong (third party) HCA 6171/1986, Master Jones (unreported, 2 October 1989), a case cited by Mr Wong, in which the learned master confirmed that even though the plaintiff in that case suffered facial and eye injuries they fell within the “serious injury” and not “substantial injury” category as the latter “emphasises amputation and diminished mobility”. In my view, the Plaintiff’s injuries in the present case were less severe than those for the “substantial injury” category. Indeed, the Liang Report confirmed that the Plaintiff had no difficulty in walking, which was also demonstrated by the Plaintiff’s ability to walk with normal gait to and from the witness stand at the assessment hearing. Further, the psychiatric disability he suffered was mild to moderate (see paragraph 39 above) and certainly not within the range of seriousness suffered by the victim in Chan To Wai. 51.In the present case, although the Plaintiff was blind in the left eye, he still had some degree of vision left in the right eye albeit reduced by glaucoma and cataracts. For example, as he claimed in his witness statement and further demonstrated at the assessment hearing, he could still read at a close up distance by using 2 hand-held magnifiers. 52.In his witness statement, the Plaintiff claimed that his right eye vision might deteriorate and there was a risk of acute macular degeneration（急性黄斑點病變）, so he was worried that he might become totally blind. If he became totally blind, he would lose his earning ability completely, and would have to be cared for by his wife who would then be unable to work. He also would be unable to look after his 5-year old son. 53.However, although deterioration or loss of vision of the right eye would logically mean total blindness for the Plaintiff with consequential loss of amenities, Drs Liang and Ho only postulated such scenario if the glaucoma of the right eye was poorly controlled. But there is no medical evidence before me that the right eye glaucoma would become poorly controlled over time. I bear in mind the medical history in relation to the right eye (see paragraphs 7, 17 and 22-24 above), which showed that the right eye condition had been stable. Indeed, after the right eye cataract extraction and intraocular lens implantation done on 23 April 2009, the treating hospital confirmed that the right eye intraocular lens was stable and the Plaintiff’s right eye was put on anti-glaucomatous medication with satisfactory eye pressure control (see paragraphs 22-24 above). Further, as Mr Wong conceded, there was simply no medical evidence suggestive of risk of macular degeneration of the remaining right eye. The Plaintiff has not satisfied me on balance there is any real and substantial risk of future total loss of vision of the right eye. 54.However, I respectfully accept that according to the principles adopted by Master Chu (as she then was) in Lee Ping Foon there should be an upward adjustment from a proper award for loss of vision of 1 eye if the vision in the other eye was diminished (see also Mustard v Morris [1982] 1 CLY 11 per Watkins LJ cited by Mr Wong). 55.I also refer to the following cases drawn from Hong Kong Personal Injury Service Vol.2 paras.V[1004]-[1054.15] at pp.V/304-V/307J for total loss of vision of 1 eye together with other injuries and set out the corresponding award for PSLA in such cases:
56.I take note of the fact that the Plaintiff had to use medication to clean his sunken left eye socket every day and that he gave up on his pre-Accident sports and hobbies (see paragraph 5 above). I also bear in mind that the Plaintiff suffered from mild to moderate psychiatric problem as described by the Plaintiff and assessed by Dr Ho. 57.Bearing in mind the Plaintiff’s injuries and disabilities, the effect of blindness of the left eye on his loss of amenities given the poor vision of his right eye, his mild to moderate adjustment disorder, the disfiguring look as a result of his sunken left eye socket and inability to use an artificial eye, and the potential suffering in respect of possible future operations to improve cosmetic appearance, I find that the Plaintiff’s injuries and disabilities should be at the upper end of the “serious injury” category and not within the “substantial injury” category as suggested by Mr Wong. In all the circumstances, I am of the view that an appropriate award for PSLA is HK$680,000.00. IX. PRE-ACCIDENT EARNINGS 58.Prior to the Accident, the Plaintiff worked as kitchen worker, cleaning worker, gardener, construction site worker and mason worker. 59.From May to November 2004, April to May 2005 and July to August 2005, the Plaintiff worked for various companies as night shift security guard with average earnings of about HK$5,000.00-HK$6,000.00 odd per month. To increase his income, the Plaintiff engaged in casual work during the daytime, eg acting as courier to deliver goods from Sheung Shui train station to Shenzhen train station earning HK$200.00 for about 3-5 hours per day and on average about HK$1,000.00 for 4-5 days per month. Further, the Plaintiff also worked as part-time furniture miscellaneous worker earning several hundred to a thousand dollars on each occasion and on average HK$8,000.00 per month. The Plaintiff claimed he no longer retained any records of the above casual or part-time work. 60.From about early September 2005 to mid-March 2006, the Plaintiff worked as a mason worker for Mr Ip, which work included mixing concrete as well as transporting desks/chairs and miscellaneous objects. His daily wage of HK$500.00 was paid in cash, and he worked for about 20-22 days per month. He earned at least HK$10,000.00 per month during the above period. The Plaintiff did not have any pay slip or employment contract in respect of such work. 61.Mr Ip confirmed that since about 1990 he subcontracted construction site metalwork and sometimes sub-subcontracted part of such work to others. He engaged mason workers, electrical technicians and miscellaneous workers to help in his work. When a project was completed, he would arrange for the workers to work on other projects. He recalled that from early September 2005 to mid-March 2006 the Plaintiff worked as a mason worker for him, and the Plaintiff’s main work was mixing cement, transporting desks and carrying out other miscellaneous work. Mr Ip confirmed that the Plaintiff earned HK$500.00 per day, and he worked from 9:00 am to 6:00 pm for about 20-22 days per month, so his average monthly earnings were about HK$10,000.00 (which Mr Ip paid in cash without any pay slip or other written record). 62.The Plaintiff worked for Café de Coral Group Ltd as a general worker in the cleaning room from 23 March to 2 April 2006 at a daily wage of HK$180.00 earning about HK$1,980.00 per month (ie HK$180.00 x 11 days). 63.The Plaintiff worked as a general worker (night shift) at a slaughterhouse earning a monthly salary of about HK$6,700.00 from 10 April to 8 June 2006. During the daytime and holidays, he worked as a casual courier delivering goods from Sheung Shui train station to Shenzhen train station earning about HK$200.00 per day for about 8-10 workdays or HK$2,000.00 per month (ie HK$200.00 x about 10 days). He also worked as a part-time furniture miscellaneous worker earning on average HK$1,500.00 per month. The Plaintiff therefore on average earned about HK$8,000.00 per month during the above period. 64.The Plaintiff worked as a casual mason worker earning about HK$500.00 per day from end of June to mid-September 2006. This was corroborated by Mr Ip who said that over such period he would ask the Plaintiff to work for him whenever he subcontracted construction work and needed workers to carry out the work. Both the Plaintiff and Mr Ip agreed that the Plaintiff worked for Mr Ip for about 4-5 days per month at a daily rate of HK$500.00 thus earning about HK$2,000.00 per month (ie HK$500.00 x about 4 days). During such period, the Plaintiff also worked as a casual courier earning about HK$1,000.00 per month (ie about HK$200.00 per day x 5 days) and as a part-time general worker at a container port earning about HK$2,600.00 per month (ie HK$450.00 per day x about 8 days) respectively. In all, the Plaintiff on average earned about HK$6,500.00 per month during the above period. 65.The Plaintiff found his job with the Defendant through an advertisement placed with the Labour Department Employment Centre. He telephoned Mr Cheung Chung (ie the Defendant) of 合益雜誌at the telephone number stated in the advertisement. Based on Mr Cheung Chung’s information, he attended an interview on or about 22 September 2006 with 實惠室內裝修傢俬設計公司(also known as實惠室內裝飾設計) in Sheung Shui, New Territories. The Plaintiff was met by Mr Cheung Chung who introduced himself as the boss and who later asked him to work on the following day as a decoration general worker, but they did not enter into any written employment agreement. Subsequently, the Plaintiff was told by a colleague surnamed Tam who was a decoration “sifu” that the job advertisement was in the name of 合益雜誌because the Defendant did not have any business registration and Mr Cheung Chung “borrowed” the business registration particulars from a friend in order to place the job advertisement. 66.The Plaintiff started to work for the Defendant on 23 September 2006 until the date of the Accident (ie 6 October 2006) for a daily wage of HK$250.00. The Plaintiff claimed he would have worked for the Defendant for about 26 days and earned HK$6,500.00 per month (ie HK$250.00 x 26 days). 67.On/about 5 October 2006, Mr Cheung Chung asked the Plaintiff to work at the Premises. The Plaintiff was instructed to dismantle the furniture, decoration and walls at the Premises. He claimed that such dismantling work should have been handled by a decoration “sifu” and not by a decoration general worker like him who should only be responsible for transporting decoration materials and furniture, ie work that involved physical labour. 68.The Defendant paid the Plaintiff his salary in the sum of HK$1,750.00 in cash on 30 September 2009 by which time the Plaintiff had worked for 7 days from 23 to 30 September 2006 with 1 rest day. The Plaintiff worked for 6 days from 1 to 6 October 2010. After the Accident, the Defendant deposited the salary for such period in the sum of HK$1,500.00 into the Plaintiff’s bank account. 69.Mr Wong submitted that the Plaintiff’s pre-Accident average monthly salary was about HK$8,500.00 for the 12 months prior to the Accident. I am unable to accept such sum as the monthly multiplicand for calculating loss of earnings. 70.According to the Plaintiff, he found his job with the Defendant through a job advertisement by the Labour Department and not through his usual contacts for casual courier or other part-time work or through contacts for construction site work such as Mr Ip. The Plaintiff gave evidence that he wanted to be employed on steady full-time basis (in contra-distinction to casual or part-time basis) ever since Mr Ip did not have enough regular work for him and he became a casual or part-time worker (see paragraphs 62-64 above). 71.According to the Plaintiff’s evidence and witness statement, he was willing to take on the job with the Defendant even though the Defendant only offered him a daily wage of HK$250.00 because (a) he could only find casual work with unstable earnings, (b) the Defendant’s business premises were located in Sheung Shui not far from his home (and he could go home for lunch), and (c) the Defendant had a shuttle service for transporting staff to the relevant work place or alternatively provided travelling allowance. In short, the Plaintiff all along looked for steady full-time work, and was prepared to accept the pay offered by the Defendant for such purpose. 72.Given such reasons by the Plaintiff for taking up the job with the Defendant and further given the absence of any or any sufficient evidence of any intention by the Plaintiff to revert to casual and/or part-time work that attracted unstable earnings, I see no or no sufficient reason for the Plaintiff to premise his multiplicand for calculating loss of earnings on casual and/or part-time work. 73.Mr Wong submitted that the Plaintiff’s pre-Accident earnings of HK$6,500.00 per month in relation to his job with the Defendant should be enhanced for the purpose of calculating the monthly multiplicand because (a) he could moonlight in his spare time by acting as casual courier or taking on other part-time job, and (b) his earnings should increase over the period of future years. 74.In respect of (a) above, I bear in mind that the Plaintiff’s pre-Accident monthly earnings of HK$6,500.00 were calculated on the basis of 26 working days per month leaving only 4 rest days per month or 1 rest day per week. There was no suggestion that during the period when the Plaintiff worked for the Defendant he moonlighted as a casual courier or took on part-time work on his rest day. There was no evidence before me as to the availability of casual or part-time work that would fit with his scheduled rest days. The Plaintiff’s work history also showed that he engaged in casual courier work when he was working on night shift (see paragraphs 59 and 63 above) or on casual basis (see paragraph 64 above), but not when he was working regularly as a mason worker for Mr Ip (see paragraphs 60-61 above). On balance, I am not satisfied that the Plaintiff would have been able to earn increased income from casual or part-time work. In any event, even if the Plaintiff had been able to do so (which I disagree), at HK$200.00 per day working as a casual courier, he would at best have made a further sum of HK$800.00 (ie HK$200.00 x 4 days) and not HK$2,000.00 as he alleged. 75.As regards (b), there is no evidence before me that his monthly earnings as a general labourer would have increased with time, especially when his vision was poor even before the Accident. 76.However, I take into account the fact that the Plaintiff received free transport service and/or transport allowance to his workplace and he was able to having some savings from having lunch at home. Taking those matters into account, I assess the monthly multiplicand for calculating loss of earnings in the sum of HK$7,000.00. X. POST-ACCIDENT EMPLOYMENT 77.After expiry of his sick leave on 10 March 2007, the Plaintiff attempted to find work through the Labour Department Employment Centre, including general worker, cleaning worker and soy factory worker. But he was unable to find work despite such efforts. He claimed that no employer would hire him because of his eye problem. Although he wore an artificial eye, it was cosmetically it looked different from a normal eye, so that his facial appearance looked abnormal. When he attended job interviews, the interviewers would easily discover he had an artificial eye, and upon realising this they would ask him to leave and wait for the results which in due course were invariably negative. When the Plaintiff could no longer use the artificial eye, he dared not attend any further job interviews because of his unsightly appearance with an obvious hole in his left eyeball cavity. 78.Dr Liang opined that the sick leave granted (see paragraph 34 above) was reasonable since both visually and cosmetically the Plaintiff was unfit for work. Further, continued sick leave would likely be prolonged as the Plaintiff was still under convalescence and further surgeries were planned. 79.Still further, the Plaintiff needed to attend psychiatric clinic follow up and to take medication regularly for his psychiatric problem. From a psychiatric perspective alone, Dr Ho opined that the Plaintiff would need a total period of sick leave of about 1 year during the more intense phase of his psychiatric condition after the Accident. As for the duration of future sick leave from a psychiatric perspective, Dr Ho deferred to the views of treating psychiatrists. However, there was no evidence from the treating psychiatrists as to future sick leave from a psychiatric perspective. 80.Dr Liang was of the view that with his current vision the Plaintiff could not resume his pre-Accident job. Indeed, Dr Liang opined that unless the Plaintiff’s right eye vision could regain useful eyesight, he was not fit to work for any job at present. 81.Dr Ho was of the view that from the psychiatric perspective alone, the Plaintiff was still considered capable of returning to his pre-Accident job with some impairment in work efficiency, tolerance and adaptation ability in relation to some of his psychiatric symptoms. Dr Ho was particularly concerned with the Plaintiff’s irritability which would significantly affect his relationship with others including his colleagues and supervisors. The Plaintiff’s lowered confidence level and low self-esteem in relation to his disfiguration were also definite problems. 82.In light of the above, I am persuaded that the Plaintiff could not engage in any gainful employment after the Accident due to loss of vision of the left eye coupled with pre-existing poor vision of the right eye, his cosmetic disfigurement, and his psychiatric condition and treatment. XI. PRE-TRIAL LOSS OF EARNINGS AND LOSS OF MPF CONTRIBUTIONS 83.The Plaintiff’s total pre-trial loss of earnings for the period from 7 October 2006 to 11 June 2010 (ie about 44 months) was HK$7,000.00 x 44 months = HK$308,000.00, and total pre-trial loss of MPF contributions was HK$308,000.00 x 5% = HK$15,400.00. XII. POST-TRIAL LOFF OF EARNINGS AND LOSS OF MPF CONTRIBUTIONS 84.With the Plaintiff aged about 50 years at the time of the assessment of damages, Mr Wong submitted that 8 would be an appropriate multiplier based on a working life of up to 65 years (see Lee Wai man & anor v Wah Leung Finance Ltd [2004] 1 HKLRD 1023, Wong Po Kin v Hopewell Construction Co Ltd [2003] HKLRD B12, Chan Yim v Shing Cheong Construction Ltd [2007] HKLRD F9, Kwong Wan Kau v Yuen Wing Hong [2006] HKLRD J5, and Cheng Chi Ming v Li Chau Wan & anor [2005] HKLRD H6). However, Mr Wong fairly acknowledged that a downward adjustment of the multiplier might be required to reflect the pre-existing condition of the right eye. 85.Bearing in mind that the condition of the right eye was stable but the pre-existing bilateral eye vision was already impaired, I am persuaded that the appropriate multiplier is 7. Thus, the Plaintiff’s future loss of earnings would be HK$7,000.00 x 12 months x 7 = HK$588,000.00, and his future loss of MPF contribution is HK$588,000.00 x 5% = HK$29,400.00. XIII. MEDICAL EXPENSES 86.After the Accident, the Plaintiff received CSSA for the period from 7 October 2006 to early August 2009, so he did not have to pay for public hospital medical expenses over such period. By the end of July 2009, the Plaintiff received the remaining balance of his employees’ compensation, so the waiver of his medical fees ceased. I accept that the Plaintiff incurred medical expenses in the total sum of HK$270.00 for seeking treatment from public hospitals. XIV. FUTURE MEDICAL EXPENSES 87.The Plaintiff had to attend regular ophthalmic and psychiatric follow up. Dr Ho opined that the Plaintiff would provisionally require psychiatric treatment and treatment by a clinical psychologist for at least 2 years from his assessment of the Plaintiff on 6 March 2009. The exact duration and frequency of treatment would depend on the Plaintiff’s response and progress. 88.Dr Ho said that due to the huge overload of patients in the public sector, the time available for individual consultation would be generally shorter and the interval of follow up longer in comparison with that in the private sector, so psychiatric and clinical psychological treatments in the private sector might also be considered. The experience of the therapist directly treating a case and the time that could be spent on the treatment generally would also be more favourable in the private sector. 89.Dr Ho said that in the private sector the costs of psychiatric and clinical psychological treatments were estimated to be respectively about HK$2,000.00-HK$3,000.00 per month including medication and about HK$2,000.00 per month with 2 sessions each lasting an hour. The costs for psychiatric and clinical psychological treatments in the public sector would be about HK$100.00-HK$200.00 for each session. Dr Ho opined that in view of some mild improvement of the Plaintiff’s mental condition, the Plaintiff could continue with the psychiatric treatments in the public sector for the time being with transfer to the private sector for psychiatric and clinical psychological treatments if there were no significant improvement after 1 year. Dr Ho said that the psychiatrist in the public sector could give an updated opinion on the Plaintiff’s condition then. 90.In fact, the Plaintiff continued with psychiatric treatment in the public sector for the year following the Ho Report. According to the Plaintiff, there did not appear to be significant improvement although the overall psychiatric condition was not severe. I am therefore prepared to award future medical expenses for the Plaintiff to consult psychiatrist and clinical psychologist in the private sector for 1 year. Thus, total future medical expenses would be {[(HK$2,000.00 +HK$3,000.00) ÷ 2] + HK$2,000.00} x 12 months = HK$54,000.00. 91.I am not prepared to allow any “future” medical expenses for psychiatric treatment in the public sector for the year after Dr Ho examined the Plaintiff (ie up to 5 March 2010) as a separate item of award because, as conceded by Mr Wong, such medical expenses were covered by my award in paragraph 86 above for incurred medical expenses. XV. TRAVELLING EXPENSES 92.The Plaintiff claimed he incurred travelling expenses in the total sum of HK$1,022.00 being HK$378.00 (ie HK$18.00 x 21 days) for attending AHMLNH and HK$644.00 (ie HK$23.00 x 28 times) for attending PWH both by round trip bus and train. The sum claimed was reasonable and I allow the same. XVI. EMPLOYEES’ COMPENSATION 93.The Plaintiff would give credit for the sum of HK$260,520.00 being employees’ compensation awarded to him under DCEC617/2007. XVII. SUMMARY 94.I summarise the above awards as follows:
95.There be interest on damages for PSLA from the date of the Writ of Summons to the date of judgment at 2% per annum and interest on special damages at half judgment rate from the date of the Accident to date of judgment, and thereafter at judgment rate until payment. 96.I therefore grant judgment in favour of the Plaintiff against the Defendant in the sum of HK$1,415,572.00 with interest thereon as set out in the above paragraph. There is no reason why costs should not follow event. 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 with certificate for counsel.
Representation: Mr Newman Wong instructed by Messrs Yip Tse & Tang for the Plaintiff. The Defendant acting in person and absent. |
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