Leung Pak Ki v. Ng Ting Ming

DCPI317/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 317 OF 2001

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J U D G M E N T

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1. This is an action where the plaintiff claims against the defendant for damages for personal injury and loss and damage caused by the negligence and breach of contract of employment and a breach of statutory duty of the defendant which happened on the 1st day of December 1998.

2. The issue of liability has been determined and an interlocutory judgment was originally granted in favour of the plaintiff on the 18th day of December 2001. For some procedural matter the judgment was lost and on the file I have the record of the interlocutory judgment which is now dated 18 April 2002. The only issue that is before me this morning is the assessment of the damages.

3. The defendant has been notified of today's hearing but he is absent and the plaintiff applies to proceed with the case on ex parte basis, which I agreed, and therefore I heard this case on ex parte basis.

4. The plaintiff himself gave evidence and he rely on two witness statements which appears at page 1 to 3 of bundle B and 4 to 17 of bundle B. He confirmed all the contents are true and correct and I accept his evidence. The plaintiff also relied on six medical reports. They are produced by direction of the court and according to the Hearsay Rules, and I also agree with those conclusion.

5. The plaintiff was injured when he was hit by a beam falling out from a dredge while working in the construction site in Tseung Kwan O and thereafter he was taken to the United Christian Hospital, and he was found to have the following injury: (a) minor head injury; (b) back injury; and (c) fracture of left talus and calcanum (heel bone). He received treatment including open reduction by K-wire fixture and bone graft performed. His head injury was treated by five stitches. He had to be hospitalised for 21 days and while he was discharged from hospital, he was required to put on an ankle splint for six weeks. Thereafter he had attended 13 follow-up treatment and 15 sessions of physiotherapy. He was given another 23 sessions of occupational treatment and currently he is still experiencing pain and numbness after prolonged walking, and he cannot squat for too long and surely he cannot run fast.

6. This is confirmed by the medical report and he is now claiming for the following heads of damages (if I may deal with them one by one):

7. Firstly, he is claiming for pain, suffering and loss of amenities. Under this heading of PSLA he is claiming a sum of $350,000. Counsel referred me to two cases, Cheung Bing-kai v Tsui Kam-hung and the case of Wong Woon-hei v Dickson Construction Limited. In both these cases the injuries were quite similar to the plaintiff. In both cases the plaintiff was awarded $400,000 for the pain, suffering and loss of amenities. Counsel for the plaintiff concedes that the injury and suffering of the plaintiff in this case is less serious and therefore he submitted that a figure of $350,000 is appropriate. Having considered all the case law and having considered the injury, I agree with the view of Mr Ling and I found that an award in the sum of $350,000 for PSLA is fair and reasonable, and therefore accordingly make an award in that amount.

8. The plaintiff, being a construction worker before he was injured, earned about $700 a day and according to his evidence he used to work 26 days a month so his average monthly earning is $18,200. There was in front of me sick leave certificates which go from 1 December 98 to the 13th day of July 1999 and, further, from 10 August 1999 to the 1st day of October 1999 which is roughly 10 months' time. He said he has been looking for a job and because of his weakness he needs another 3 months. In normal cases I would allow a reasonable time for the plaintiff to look for a job and 3 months is, I would say, not unreasonable, and I would therefore allow the total pre-trial loss of earning be assessed at $256,600 which represent 13 months' earning.

9. The plaintiff also claims loss of earning capacity, in particular that he used to be able to work as a scaffolding worker as well. That would definitely give him an advantage in the construction workers' field but now, because of his injury, he cannot go back to work as a scaffolding worker and can now only work as a general worker in the construction field in that he has a disadvantage which his counsel submits that should be reflected by a reasonable period of time that he might encounter difficulty in changing jobs, which I agreed. And I believe, taking into account what I awarded earlier in giving allowance to look for jobs for pre-trial loss of earnings, 6 months is reasonable in the circumstances. Since it will compensate all his future loss, I would allow 6 months, so I award $109,200 under this head.

10. On special damages, there is a total claim for $6,402. This represent the medical treatment he receive, both inpatient, outpatient, physiotherapy treatment and occupational therapy treatment which is more than reasonable. There is some travelling expenses claimed. Although there is no receipts shown, I accept his evidence.

11. On the nourished food, it is an established point that although there is no medical report suggesting that what he took is really necessary but a nominal sum of $2,000 would be reasonable, so I would still award that.

12. As such, I allowed all the plaintiff's claim but that must be deducted the award under the Employees' Compensation, a total sum of $140,578.26. I will also allow interest for PSLA at 2 per cent from date of breach until today and thereafter at judgment rate. For the other general damages it would be from today at judgment rate until payment and for the loss of special damages it will be at half judgment rate, that is 4.07 per cent per annum from the date of accident to today and thereafter at judgment rate until payment.

13. I will also award costs to the plaintiff against the defendant, and the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.