Kami Lohar Bahadur v. Ng Yuk Tong t/a Yuk Tong Air Conditioning Engineering

HCPI 466/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 466 OF 2009

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BETWEEN

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Coram : Before Master A. Chow in Court

Date of Hearing : 25 November 2010

Date of Handing Down Judgment : 6 December 2010

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ASSESSMENT OF DAMAGES

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1.This is an Assessment of Damages under RHC order 37. A Writ of Summons was issued by the plaintiff against the Defendant on 22^nd of June 2010. The Writ was amended and issued on 12 January 2009. The Writ was re-amended pursuant to the order of Master R. Yu on 18 March 2010 and issued on 29 March 2010. The Re-Amended Writ, together with the Statement of Claim, a Statement of Damages and a schedule of Medical reports, was served to the defendant on 16 April 2010. No Acknowledgement of Service was filed and on 7 May 2010, judgment on liability was entered against the Defendant with damages to be assessed. The Defendant has not raised any dispute over the default judgment and although notice of this hearing for assessment of damages has been served to the Defendant, the Defendant has chosen not to participate in this proceeding. No issue over failure to mitigate has been raised.

2.The Plaintiff is represented by Counsel, Mr. Kelvin Leung.  I am grateful to Mr. Leung and those instructing him, Messrs. M.C.A. Lai & Co., for their assistance, especially in providing me with the latest statistical tables on the average daily wages for public sector construction workers.

Background

3.The Plaintiff was a welder employed by the Defendant.  On 9 January 2008 while demolishing a metal platform by flame cutting, the Plaintiff slipped and fell 2.5 meters to the ground.

4.After the accident, the Plaintiff was taken to the United Christian Hospital for treatment.  Multiple X-rays and CT brain scans reveal the Plaintiff suffered from right parietal scalp haematoma, facture right clavicle, right haemothorax and factures to 1^st to 8^th ribs on the right side.  The Plaintiff’s scalp wound was sutured.  A chest drain was inserted into the right chest.  The fractured clavicle and ribs were treated conservatively with arm sling and analgesics.

5.When the Plaintiff was discharged from United Christian Hospital on 2 February 2009, he was walking slowly with the aid of a stick.  After discharge, the Plaintiff attended orthopaedic and surgical clinics of the United Christian Hospital for follow-up treatments.

6.Thereafter, the Plaintiff was twice admitted to the Ruttonjee & Tang Siu Kin Hospitals due to severe pain caused by his injuries.  On both occasions the Plaintiff remained in the hospital for 2 days and was given injections and medication for the pain.  The Plaintiff received two courses of physiotherapy treatments at Ruttonjee & Tang Siu Kin Hospitals.  After the first course of physiotherapy treatment, the Plaintiff also received acupuncture treatments for pain to his right hand and after 10 sessions he was able to move his right hand.

7.The Plaintiff was granted a total of 608 days of sick leave.

The Plaintiff’s Injuries and Current Condition

8.The Plaintiff’s injuries and treatments can be summarized as follows:

(i)   He sustained multiple injuries after falling from height.

(ii)   The injuries include right scalp laceration, head contusion, fracture right clavicle, right ribs fractures and right haemothrorax.

(iii)   At United Christian Hospital, his right clavicle and right ribs fractures were treated conservatively and his chest injuries was treated with a chest drain.

(iv)   He received physiotherapy and occupational therapy at the Ruttonjee and Tang Siu Kin Hospitals.  He also received trigger point injection and anesthetic block by pain specialists at the United Christian Hospital.

(v)   X-ray examination reveals the Plaintiff’s right clavicle fracture had healed with overlapping, with alignment preserved; the fractured right 1^st to 8^th ribs had healed with mild-misalignment; the right hemi-diaphragm was elevated to 8^th rib level and left to 9^th rib level.

(vi)   He still experiences persistent right upper back and chest pain after the injuries.

(vii)   Dr. Wong opined that the Plaintiff’s condition has reached the status of Maximum Medical Improvement.  Although the Plaintiff’s fractures have healed radiologically, the residual pain is unlikely to be resolved completely.  The Plaintiff will likely have persistent pain and discomfort from the associated soft tissue injuries due to the severe trauma caused by the multiple bone fractures.

Pain, Suffering and Loss of Amenity

9.Mr. Leung drew my attention to a number of authorities on similar injuries, in particular: Phoon Ka Wai v Wong Ka Chung & Another, unrep., HCPI 768/2003; Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture (A Firm) & Another [2000] 1 H.K.L.R.D. 796; Leung Choi Ping v Leung King Choi Happy Field Industries Limited, unrep., HCPI 975/2006 and Ho Ho Ming v Tse Po Wah & Others, unrep., HCPI 1168/2003.

10.Mr. Leung suggested $600,000, but the Plaintiff in Ho Ho Ming suffered much more severe injuries, totaling 54% impairment to the whole body, when the Court assessed PSLA at $750,000; the Plaintiff in Leung Choi Ping also suffered much more severe injuries and because she was a hepatitis B carrier and therefore prone to develop complications of chronic hepatitis in the future, the Court awarded PSLA in the region of $500,000 to $550,000; the Plaintiff in Tsang Hing Yuen suffered from 3 separate residual impairments totaling 17% impairment of the whole body and the Court awarded $450,000 for PSLA.

11.Dr. Wong assessed the Plaintiff’s total impairment due to the persistent pain to be 5% of the whole body.  Taking into account of all of the above and by reference to the awards in the cases cited to me, allowing for the passage of time, I assess $400,000 for pain, suffering and loss of amenity.

Pre-assessment Loss of Earnings

12.The Plaintiff was born on 30 May 1966.  At the time of the accident he was 41 years old and was in good health.  He was employed by the Defendant as a welder.  I have opportunity to read the judgment in DCEC 873/2008, the corresponding employees compensation claim by the Plaintiff, and I agree with Her Honour Judge Mimmie Chan’s finding that the Plaintiff’s pre-accident earning was $16,900 per month.

13.Taking into account of the 2009 and 2010 statistical tables on average daily wages for public sector construction workers supplied to me, I agree with Mr. Leung’s revised submission that the Plaintiff’s average monthly earnings would have been increased to $18,720.

14.For the purpose of calculating pre-assessment loss of earnings, an average figure between $16,900 and $18,720 or $17,810 should be used.

15.The Mandatory Provident Fund Scheme came into effect 1 month after the accident and all pre-trial loss of earnings, except the first month, must take MPF contributions by the Defendant into account.

16.Accordingly, I assess the Plaintiff’s pre-assessment loss of earning as follows:

(1)   Sick leave period from 9 January 2008 to 2 September 2009 (totaling 19.75 months).
           $17,810 (first month without MPF) + $17,810 x 18.75 x 1.05 = $368.444

(2)   Remaining pre-assessment period from 3 September 2009 to 25 November 2010 (totaling 14.82 months).
           $17,810 x 14.82 x 1.05 = $277,141

Total pre-assessment loss of earning is therefore:
           $368,444 + $277,141 = $645,585.

Future Loss of Earnings

17.Dr. Wong opined that due to the residual pain and the reduced agility of the Plaintiff’s right upper limb, it might not be appropriate for the Plaintiff to return to work as a construction site general labourer.  Although Dr. Wong did not express any opinion on whether the Plaintiff is suitable to return to work as a welder, taking into account that welding often involves repetitive use of the dominant arm, in the Plaintiff’s case his right arm, and certain lifting of heavy material, I find the Plaintiff is not suitable to return to work as a welder as well.

18.Dr. Wong stated the Plaintiff is suitable to return to work as a security watchman or carpark attendant. I agree with Mr. Leung’s submission that the notional monthly earning for a security watchman or carpark attendant is $7,200.

19.The Plaintiff was 41 at the time of the accident and is 44 at the date of the assessment hearing. I agree with Mr. Leung’s submission that with respect to future loss of income, a multiplier of 11 is appropriate.

20.Accordingly, I assess the Plaintiff’s future loss of earning, inclusive of MPF, as follows:

($18,720 - $7,200) x 12 x 11 x 1.05 = $1,596,672

Loss of Earning Capacity

21.Even though the Plaintiff will be engaged in alternative employment, he will be disadvantaged in the labour market as a result of the Plaintiff’s impairment and disability.  I agree with Mr. Leung that a sum equal to $80,000 is appropriate compensation.

Special Damages

22.The Plaintiff claims the following miscellaneous items of expenses as damages;

(1)   Medical expenses in the sum of $8,209.

(2)   Nourishing and tonic food in the sum of $5,000.

(3)   Travelling expenses in the sum of $3,000.

23.With the exception of medical expenses, there was no receipt or documentation to support items (2) and (3) of this part of the claim.  I am however prepare to accept a sum of $5,000 as combined expenses for tonic food and travel expenses.

24.I therefore assess the total sum under this head as $13,209.

Deduction of Employees’ Compensation

25.The sum of $211,413.40 recovered in DCEC 873/2008 should be deducted from the total assessment.

Interest

26.I will allow interest at 2% p.a. from the date of issue of the Writ to the date of assessment on general damages; and special damages at half interest rate from the date of the accident to the date of assessment.

Summary

	$
Pain, suffering and loss of amenity	400,000.00
Pre-assessment loss of earnings	645,585.00
Future loss of earnings	1,596,672.00
Loss of earning capacity	80,000.00
Special damages	13,209.00
Deduct employee compensation	(211,413.40)
Total	_______________ 2,524,052.60 _______________

27.The Plaintiff should have his costs of the proceedings against the Defendant, together with legal taxation in accordance with Legal Aid regulations.  Certificate for Counsel.

Mr. Kelvin Leung instructed by Messrs. M.C.A. Lai & Co. for the Plaintiff.

The Defendant being absent.