WONG KA PANG JAMES v. WONG CHUN WANG

HCPI000644A/1998

HCPI 644/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 644 OF 1998

_______________

BETWEEN
	WONG KA PANG JAMES	Plaintiff
	AND
	WONG CHUN WANG	Defendant

_______________

Coram : Mr. Registrar Chan in Court.

Date of Hearing : 6 October 1999

Date of Handing Down : 19 October 1999

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DECISION ON ASSESSMENT OF DAMAGES

______________________________________________

1. The Plaintiff claims against the Defendant for damages in respect of loss and damage suffered arising out of personal injury which occurred on 1st August 1995 when he was at work. The accident was alleged to have been caused by the negligence and/or breach of statutory duty and/or breach of terms of contract of employment on the part of the Defendant.

Background

2. At the time of accident on 1st August 1995 the Plaintiff was in employ by the Defendant for about 21 days as a light goods vehicle driver and also as a delivery worker earning $9,000.00 a month. At the time of the accident the Plaintiff was trying to load the goods onto the goods vehicle at No. 3 Container Terminal, Kwai Chung. The iron board which filled the gap between the vehicle and the Terminal platform gave way and the Plaintiff fell on the ground. The Plaintiff sustained injuries to the right ankle.

3. The Plaintiff took legal action in District Court under the Employees' Compensation Ordinance. It was stayed pending the outcome of the present proceedings.

4. The Writ in the present proceedings was issued on 17th June 1998 and Judgment in default of notice of intention to defence was entered on 14th October 1998. The Defendant attempted to set aside the Judgment but without success. Now it comes before me for Assessment of Damages.

The Evidence

5. The Plaintiff was born in Hong Kong on 18th June 1960 and received education up to Form 3 level. Since he left school he worked mainly in the delivery and transportation industry. He obtained driving licence for lorries and light goods vehicles in 1984, and since then he has been so employed.

6. The parties have agreed the Bundle of Documents for production. The Plaintiff has no other witness to give evidence except himself. He relied heavily on the medical reports that have been produced.

7. According to the Medical Report of Dr. N. Maffulli dated 22nd January 1996, the Plaintiff was an out-patient of the Department of Orthopaedics and Traumatology, Prince of Wales Hospital since 21st August 1995. The Plaintiff was treated in a short leg cast for a period of about one and half months from 21st August 1995 to 6th October 1995. When he was last examined on 12th January 1996, he was found to be "able to fully weight bear on his right ankle".

8. Based on Dr. Maffulli's report and the results of his own examinations, Dr. Lam Kwong-chin prepared two medical reports dated 26th July 1996 and 5th February 1999 respectively. The finding made by Dr. Lam in the first report was this : "He has regained all range of movement and walking ability. There is only some residual pain on stress. Such pain is expected after fracture and torn ligament around major joints." He further went on to state in the final paragraph of his last report and concluded : "The present loss in earning capacity is assessed to be 1%."

9. In his evidence the Plaintiff has complained that he still has residual pain on his right ankle when he lifted heavy articles for a long period of time. He can no longer play football, his favourite game which he used to pay before the injury. His employment has also been affected. After the injury he has worked at various places. His income was reduced.

Hearing

10. On 6th July 1999 when the case was first heard by me the Defendant was represented by Mr. R. Lau of Counsel who vigorously attacked the Plaintiff's evidence. Because of my diary the case had to be adjourned for 3 months when the case came before me again. The Defendant was no longer represented by Counsel, he acted in person on this occasion and did not care to appear to defend his case. Notwithstanding this those parts of the evidence that have been conceded by the Defendant shall remain as admitted and agreed facts.

Special Damages

11. The Defendant in the first hearing through his Counsel agreed the following items of Special Damages :

1. Medical Expenses	$3,560.00
2. Travelling	$786.00
3. Tonic Food	$3,000.00
4. Pain Killers	$300.00
Total :	$7,646.00

By consent I take this figure as Special Damages.

Pre-trial Loss of Earning

12. The Plaintiff worked for the Defendant for only 21 days before he met the accident. He claimed that his salary was paid monthly at a sum of $9,000.00, not at the daily rate of $300.00 per working day as alleged by the Defendant. The Defendant did challenge this but did not appear in the second hearing to substantiate it. I have to accept the Plaintiff's evidence and take $9,000.00 per month as his salary and also as the basis for calculation. I was urged to use 10% annual increase to calculate the projected income. I note that in the recent two years Hong Kong has had its recession. If I had been asked to project for a long period, I would have had some hesitation to take 10% as the rate of increase. But, it is only for the purpose of pre-trial loss. The Plaintiff has also indicated to abandon future loss of earning. Mr. Lam has also agreed to concede to use the median figure. For all these reasons I agree to use 10% increase and also to use the median figure as the monthly amount he would earn for the pre-trial period. I rely on the Plaintiff's calculation and take the figure of $11,088.45 as the would-be monthly income.

13. Mr. Lam regards 1st August 1995 to 31st July 1999 as the pre-trial period, a total of 48 months. The estimated income is :

$11,088.45 x 48 months = $532,245.60

14. It has not been challenged, and I accept it as my finding, that the Plaintiff's earning capacity was affected by the injury and he had only an income of $406,750.00. I therefore conclude that he has suffered a loss of $125,495.60 under this head.

Pain and Suffering and Loss of Amenities

15. The Plaintiff was out of work for a year before he found employment in August 1996. He has residual pain after a long period of carrying heavy objects. He used to play football but he could not do it now.

16. We must reckon that soccer is a vigorous sport. For a person at the age of 39, I doubt how often he played and the extent he would exert himself. My colleague, Master Kwan, in a High Court Action, 1995 PI No. 528, Chung Yiu Kwan v. Eagle Engineering Co. commented that "A 40 year old soccer player is unheard of ......" She observed that very few people played soccer beyond the age of 38. I agreed with her observation. Further, in this case there is little evidence to assist me to make a positive finding except the Plaintiff's bare assertion that he played regularly about once or twice a month. He had not joined any football team as a member, which a regular player does. He could not even mention the name of a single player, with whom he usually played. I have some reservation on that part of evidence. I did not have the benefit of cross-examination to test the truth what the Plaintiff said as the Defendant was absent but I must be very cautious not to make unnecessary emphasis on this loss.

17. Dr. Maffulli's observation is that the Plaintiff was able to fully weight bear on his right ankle. Dr. Lam's comment is : "After 9 months of treatment he has regained all range of movement and walking ability. There is only some residual pain on stress. Such pain is expected after fracture and torn ligament around major joints."

18. Mr. Lam urged me to take the leading case of Leung On and another v. Chan Pui-ki [1996] 2HKC 565 as the basis and reference point for assessment. With due respect to Mr. Lam I find that the cited authority has no bearing here. He asked me to take the lowest end of serious injury as the starting point i.e. $400,000.00. Mr. Lam conceded that the Plaintiff does not belong to "serious injury" category but he urged me to take half of the sum i.e. $200,000.00 plus 10% interest for calculation. I see no logic in it.

19. As Lord Diplock said in the Privy Council in Paul v. Rendell (1981) 34 ALR 569, "The assessment of damages in actions for personal damages is not a science." Mustill L.J further developed this in Cunningham v. Cumberwell Health Authority [1990] 2 Med LR 49, at 53 : "What happens in practice is that the Judge adopts an intuitive process buttressed by reference to previously decided cases."

20. Another case Mr. Lam refers to is Lam Kwai Yip v. Yuen Yun Kui, High Court Action 1994, No. A12617 (unreported) decided by Master Chu as she then was. In that case the Plaintiff was hospitalised for 8 days. His right foot was swollen with a fracture in the calcis. The fracture was treated with plaster. He had to walk with the aid of crutches for several months. There was the possibility of developing accelerated arthritis in future. Having taken all these factors into consideration, Ms. Registrar Chu awarded a sum of $250,000.00 for PSLA. I do not find any of those factors for Ms. Registrar to arrive at her decision exists in the present case.

21. I find $200,000.00 as suggested by Mr. Lam is grossly excessive and arbitrary. The cases he quotes have no reference value. I prefer to do my own assessment in the manner as suggested by Lord Justice Mustill. It is not disputed that the Plaintiff has suffered certain pain and inconvenience. He was not hospitalised. He followed his employer's advice to go to a bone-setter next day. I am not criticising him for so doing but I can safely conclude from this fact that the pain was not a serious one; otherwise, he would have received immediate treatment. He had a short leg-cast for one and half months. By January 1996 i.e. about half a year after the injury he had fully recovered and his right ankle could bear full weight. I accept that there is some residual pain. Unfortunately, both Dr. Maffulli and Dr. Lam have not made any assessment as to how long the pain will last and what type of treatment he should receive. Dr. Lam's comment was a casual one and in the first report he puts it in very mild term that he "might need treatment occasionally." In the Second Report Dr. Lam was very definite and stated : "No further specific treatment is necessary." My assessment is $150,000.00 for PSLA in this case. I have made reference to the case Lobo v. Kripalani, HCA PI 321 of 1996 (unreported) where the Plaintiff's Archilles tendon was deeply cut by the broken glass door. She was hospitalised for 8 days and had painful memory of the whole incident. At the time of hearing, about 3 years after the injury, she still had difficulty in climbing steps and getting up from squatting. She had weakness of the foot and some swelling; otherwise, she had fully recovered. On 23rd January 1998 Mr. Justice Seagroatt assessed PSLA at $150,000.00.

Loss of Future Earning

22. Mr. Lam has abandoned the claim for loss of future earning; the reason has not been disclosed to the Court. I do not intend to investigate into it.

Loss of Earning Capacity

23. According to the Statement of Damages filed herein the Plaintiff claims a loss of earning capacity "quantified as one month's earnings per year". Mr. Lam took the monthly salary before injury as the multicand and used the multiplier of 12. I asked him for the reason. He admitted that it was an arbitrary figure. He used Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650 at 656 as authority. There, Cons, Acting C.J., used the difficulty in finding job as the yardstick. He said, "...... it is to be expected that in normal circumstances an able-bodied man will be able to find replacement employment more quickly than will a disabled man. The difference in the time taken is a true reflection of the latter's handicap in the labour market."

24. In the present case, the Plaintiff has been employed as driver cum delivery man. He is now 39 years of age. For the period of pre-trial loss of earning he has been awarded full salary, not at a reduced rate for sick leave. With increase in age he will not be expected to carry heavy load in any event as delivery man. This may be the reason why Dr. Lam commented : "Because of the residual pain, he might have slight limitation in efficiency and might need treatment occasionally." He assessed the loss in earning capacity to be 1%. I have asked Mr. Lam to try the Employee's Compensation assessment for me as reference. His reply is that Employee's Compensation has no relevance to the common law claim. He does not wish me to go down such route. As it is party's choice and I have no objection using the method of assessment in Lau Che Ping v. Kong Ironwares Godown Co. Ltd. How much more time would he need to find a job than a normal able-bodied person would? My assessment is three months. It will not be fair to use the salary before injury. The Plaintiff has accepted the meridan figure of $11,088.45 to calculate the loss of earning. I should adopt this figure and multiply it by three months. I get the result of $33,265.35.

Conclusion

Pain, Suffering and Loss of Amenities	$150,000.00
Special Damages	$7,646.00
Pre-trial Loss of Earning	$125,495.60
Loss of Earning Capacity	$33,265.35
	$316,406.95

Judgment

25. I give final judgment in favour of the Plaintiff against the Defendant for the sum of $316,406.95 together with interests calculated in the following manner :

(i) Interest on the sum of $150,000.00 (being the damages for pain, suffering and loss of amenities) at the rate of 2% per annum from the date of writ (i.e. 17th June 1998) to the day of this judgment;

(ii) interest on $133,141.60 (being the aggregate sum for special damages and pre-trial loss of earning) at the rate of 5.77% per annum from the date of accident (i.e. 1st August 1995) to the day of this judgment;

and (iii) further interest on the sum of $316,406.95 from the day hereafter until full payment at the judgment rate.

26. I also make an order nisi in respect of costs as follows :

(a) costs of this whole action to the Plaintiff with Certificate for Counsel unless it has been otherwise ordered;

and (b) the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulation.

	(Christopher C. Chan)
	Acting Registrar, High Court

Representation:

Mr. C. Lam instructed by Director of Legal Aid for Plaintiff.

Defendant unrepresented and absent.

HCPI000644/1998

1998, No. HCPI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 644 OF 1998

________________

BETWEEN
	WONG KA PANG JAMES	Plaintiff
	AND
	WONG CHUN WANG	Defendant

________________

Coram: The Hon. Mr. Justice Seagroatt in Chambers

Date of Hearing: 2 February 1999

Date of Distribution: 5 February 1999

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REASONS FOR DECISION

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1. This was an application to set aside a regularly entered judgment in default of notice of intention to defend heard by me before I dealt with the Check List Review. The Plaintiff who was injured in an accident at work on 1st August 1995, commenced proceedings in June 1998, serving his Statement of Claim on 3rd September 1998. Judgment was entered on 14th October 1998. That was served on the Defendant on 16th October. In 1996, the Plaintiff had commenced Employee's Compensation proceedings against the Defendant in the District Court. The Defendant had served a Re-Amended Answer in those proceedings, in which employment of the Plaintiff was admitted.

2. In April of 1997, the Legal Aid Department had written to the Defendant claiming damages for personal injuries for negligence and breach of duty, i.e. notifying the common law claim. The letter advised notification of insurers if there were any. At the beginning of September 1997 the Department wrote to the solicitors then acting for the Defendant in the E. C. O. proceedings, Messrs. Paul Kwong & Co., in connection with the common law claim for damages asking if they had instructions to accept service of proceedings. They replied that their instructions were limited to the E. C. O. proceedings but they would put to their client for his consideration any overall settlement proposed. There was further contact in June 1998 when Philip Kwong & Co. confirmed that they had no instructions to accept service and that the writ should be served direct upon their client. It is reasonable to conclude from these exchanges that the Defendant must have known of the imminence of additional proceedings arising out of the same incident.

3. Although a copy of the interlocutory judgment was served upon the Defendant in mid-October 1998 the application to set aside the judgment was not taken out until 7th January 1999. What happened between these dates is of some relevance to the merits of this application to set the judgment aside.

4. The Defendant's affirmation says that when he received the Writ and Statement of Claim at the beginning of September 1998 he thought they related to the E. C. O. claim. So he did nothing until he showed them to his solicitors on 15th October 1998. There is in fact a letter from his solicitors of that date to the Department acknowledging that they were in possession of the documents and referring to a telephone conversation at 3 p.m. that day when they learnt from Miss Wong that judgment in default had been obtained. The Department was requested to consider setting aside the default judgment. It appears that, not surprisingly, the Department declined to do so. The solicitors said that they would file their Notice to Act after the Defendant had put them in funds.

5. It then transpires that another firm of solicitors, those instructing Mr. Eric Yung on this application, filed Notice to Act dated 24th December 1998. However they had been instructed by the Defendant on the 23rd November in relation to these proceedings, according to the Affirmation of the solicitor concerned, and on or about 9th December 1998 had instructions to set aside the judgment. It is clear that no expeditious steps were taken, given that the judgment had been entered in mid-October 1998. Mr. Yung also told me, in the course of his submissions after I had emphasised the delay which the Defendant had permitted, that discussions and negotiations on quantum and/or settlement had continued during that intervening period. I am not quite sure how extensive or comprehensive these were since Messrs. Philip Kwong & Co. continued to act for the Defendant in the E. C O. proceedings whereas Messes. K. M. Lai & Li were on record for the Defendant in the High Court Personal Injury action. But in advancing that matter Mr. Yung must be referring to negotiations in this case. Therefore there have been such against the background of a judgment. The Plaintiff was entitled to expect a prompt action to seek to set aside the judgment if that was a serious intent. Conducting negotiations on the basis of an existing judgment on liability was bound to raise the inference at least that there was no defence to the Plaintiff's claim. The Defendant should not now be allowed to try and change the basis on which contact between the parties have hitherto proceeded. It has not been suggested that the Legal Aid Department acquiesced in the delay or was prepared to leave the time for such an application to set aside, open ended. In my view there is in any event prejudice to the Plaintiff if he was to be put back to the pre - 14th October 1998 position. For all these reasons it would be wrong to allow the Defendant's application.

6. That is not the end of the matter because the Defendant says it has a good defence to the Plaintiff's claim. Firstly he denies employing the Plaintiff. This is specifically set out in paragraph 3 of the Draft Defence. However the first sentence of the Re-Amended Answer in the E. C. O. proceedings against the Defendant clearly admits that the Defendant employed the Plaintiff. Secondly the solicitor representing the Defendant in the Magistrates Court proceedings, alleging that he terminated the contract of service of the Plaintiff without the Commissioner's consent before a certificate had been issued, conceded that the Plaintiff was injured in the course of employment, and stated that the Defendant had no intention of terminating the employment contract. Finally the Defendant was convicted as employer. There is no substance in the Defendant's current contention.

7. The Plaintiff's case is essentially based on an unsafe system of work. He was required to drive a lorry and load it using a manually driven fork lift or pallet truck. The tailboard of the lorry was not always on the same level as the loading platform and so he was provided with a steel plate to bridge the gap and act as a ramp. He was also provided with sometimes one, and on other occasions two pieces of timber. His belief was that they were to act as chocks for the pallet fork lift truck when it was in the back of the lorry.

8. The Defendant contends that the pieces of timber were to be used to raise the back of the lorry (i.e. under the rear wheels) so as to reduce the gap between the tailboard and the loading platform. The photographs supplied by the Defendant clearly show the risks inherent in the system of work. A loaded fork lift truck in manoeuvring to get onto the tailboard and thus into the lorry could easily dislodge the steel plate. Furthermore the weight of the goods and trolley going down a moveable small ramp, such as the steel plate constituted, could be difficult to manage and the Plaintiff could easily catch his foot on the edge of the plate. In one photograph the steel plate is shown with one edge clearly higher than the level of the steel tailboard. It was bound to tip, lift and/or swivel, as the weight of trolley and goods was manoeuvered on to it. Most damning is the admission by the Defendant in his affirmation(§20) and by his wife (§9 of her affirmation) that the Plaintiff was instructed to brake the fork lift trolley or simply let it go with its load so that it would then proceed under its own momentum. This is the clearest admission of a risk in the system, which was to be diminished in the Defendant's eyes, by an instruction to the Plaintiff that he should simply "let go" so that the combined weight of trolley and load did not pull him over or out of control. A further instruction alleged was that the Plaintiff was not to walk on the steel plate when pushing the fork lift truck, forward. How he was expected to do this and at the same time control the fork lift truck, I fail to see. It was the clearest indication that the steel plate was either not heavy enough, or not big enough, or not stable enough or inadequate in all three respects. There are significant differences between the Defendant's version of events and instruction and system as set out in the statements made by him and his wife for the E. C. O. proceedings, and those contained in their affirmations in these proceedings. They are self-evident and do not need to be itemised. There is clearly an effort to embellish the Defendant's case.

9. Mr. Yung argues that the Defence case has "real prospects of success" (See Premier Fashion Wears Ltd. - v - Li Hing Chung 1994.1. H.K.C., p.213 and The Saudi Eagle: Alpine Bulk Transport Co. - v - Saudi Eagle Shipping 1986.2. Lloyds Reports p.221.) I do not think there is any real prospect of success. Nor is there any realistic prospect of establishing contributory negligence on the part of the Plaintiff, a matter I invited Mr. Yung to argue because even though there was no realistic Defence to the claim I still had to consider the question of whether there was any realistic prospect of the Defendant establishing any contributory negligence. I am firmly of the view that there is none. The Plaintiff was doing his best to follow a system fraught with risk, with inadequate material and inadequate assistance, the risky nature of which was acknowledged by the Defendant in his instruction to let go of the trolley when it reach a certain stage.

10. This application is dismissed with costs. Since it occupied by far and away most of this morning's hearing, the Defendant will also pay 4/5th of today's costs and the whole of Counsel's fees of the Plaintiff; the remainder of the hearing, a matter of a few minutes, was taken up with the Check List Review for which the costs order will be costs in the cause.

	(Conrad Seagroatt)
	Judge of the High Court

Representation:

Mr. Christopher Lam instructed by the Director of Legal Aid, for the Plaintiff.

Mr. Eric Yung instructed by K. M. Lai & Li, solicitors for the Defendant.