MUHAMMAD ISMAIL v. OR WAH

DCPI 293/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 293 OF 2003

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Assessment of Damages

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1. The Plaintiff was employed by the Defendant as a general labourer. He was paid $420 a day working 26 days a month. His wage was therefore $10,920.00 per month.

2. On 8 September 2000 the Plaintiff was told to use a small pneumatic drill to remove tiles and the bit at the end of the drill broke off and hit his right ankle and right wrist.

3. On 24 June 2003 the Plaintiff through his solicitors filed the Writ of Summons with only an indorsement of claim. There was no acknowledgment of service filed. On 21 July 2003 Interlocutory Judgment was entered with damages to be assessed on the ground that no notice of intention to defend was filed by the Defendant.

His Injuries

4. On 8th September 2002 he was admitted to Pamelda Youde Nethersole Eastern Hospital. He was discharged the next day. The finding was that he had a wound about 2 mm over medial side of right ankle with swelling and a foreign body in his right ankle, superficial abrasion over his right wrist. He had follow up treatment until 20 February 2001 and was given sick leave from 9 September 2000 to 20 February 2001. He could walk well and ankle movement was normal though he said he still experienced pain over his ankle. There was no bone or joint deformity.

5. He was 60 at the time of the accident. He could not return to his original work. He now works as a security guard earning about $7,000 a month.

PSLA

6. Dr Wong Kwok Shing is of the view that if the Plaintiff has the foreign body removed by operation there should be no permanent impairment. The operation would cost about $8,000. The abrasion on the wrist was trivial. The Plaintiff has fully recovered. According to Dr Wong he walked well and ankle movement was normal.

7. Miss Courbet for the Plaintiff cited a number of cases which assessed PSLA to be around $200,000.

i)	Hau Kit Ho v Starway International Development Ltd. DCPI 329 of 2002. In that case the Plaintiff suffered fracture of left lateral malleolus. Open reduction and abridgment resulted in good alignment. She was in splint 4 weeks and then crutches for 2-3 months. PSLA was $200,000.
ii)	Lo Hing Fong v Chan Chi Shing DCPI 66 of 2001. The Plaintiff suffered fracture of nasal bone resulting in 1% impairment. The Plaintiff had recovered. PSLA was $100,000.
iii)	Lee Sze Wai v Law Chi Kin DCPI 44 of 2001. The Plaintiff suffered fracture of second metatarsal of left foot. Leg plaster was applied but removed the next day. PSLA was $150,000.

8. The Plaintiff had no fracture and the injuries were by far less severe than those cases. I assess PSLA to be $80,000.

Loss of Earning

9. The Plaintiff was given sick leave from 9 September 2000 to 7 February 2001. The loss of earning during that period was therefore $10,920 x 5 months = $54,600.00.

10. After 7 February 2001 until 10 December 2003 is $(10,920 - 7,000) x 34 months = $133,280.00.

11. His total loss of earning from 9 September 2000 to 10 December 2003 is therefore $(54,600 + 133,280) = $187,880.00.

Loss of Future Earning

12. As the Plaintiff is now 63 years of age I accept the Plaintiff's claim for 1 year. His loss of future earning is therefore $(10,920 - 7,000) x 12 months = $47,040.00.

Loss of MPF

13. From February 2001 to 10 December 2003 is

$(10,920 - 7,000) x 5/100 x 34 months = $6,664.00

14. From 10 December 2003 to 4 December 03 is

$(10,920 - 7,000) x 5/100 x 12 = $2,352.00

Special Damages

Hospital fees	$68
Follow up visits	$264
Total	$332

Interest

i) PSLA at 2% from date of writ to judgment is $80,000 x 2/100 x 5 1/2 months = $8,800.

ii) Special damages

(i) Loss of earnings $187,880

(ii) Loss of MPF $9,016

(iii) Special damages $322

at 4% is $197,218 x 4%/12 x 39 months = $25,638.34.

Total

i) PSLA $80,000

ii) Loss of earning $187,880

iii) Loss of future earning $47,040

iv) Loss of MPF $9,016

v) Special damages $332

vi) Interests $34,438.34

Total $358,706.34

15. The Plaintiff was awarded $109,192.39 under the ECC proceedings. Giving credit for the award under ECC, the damage assessed is therefore $(358,706.34 - 109,102.39) = $249,513.95.

16. In the premises there be judgment for the sum of $249,513.95.

17. Costs to the Plaintiff.

18. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.