HA KA HEI v. DÉCOR ONE DESIGN & ENGINEERING LTD

HCPI 105/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 105 OF 2010

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BETWEEN

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ASSESSMENT OF DAMAGES

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1.  By the writ issued on 10 March 2010, the Plaintiff claimed damages for personal injury, loss and damage sustained in the course of his employment arising out of the negligence of the Defendant, his former employer, on 13 August 2007.

2.  Under action DECE No. 1456 of 2008, judgment was entered in favour of the Plaintiff (as the Applicant) against the Defendant (as the Respondent) on 5 February 2010 for the sum of HK$775,254.67 (on top of advance payments in the sum of HK$20,500 already received by the Plaintiff) together with interest and costs.

3.  The Defendant has not entered an appearance in this action.  No notice of intention to defend having been given, on 5 May 2010 it is adjudged that the Defendant do pay the Plaintiff damages to be assessed and costs to be taxed.

4.  The Plaintiff has petitioned to wind up the Defendant for its failure to pay the judgment debt under the Judgment dated 5 February 2010.  An order to wind up the Defendant was made on 8 September 2010.  With the consent of the joint and several provisional liquidators of the Defendant company and by the Order of Master Hui dated 20 September 2010, the Plaintiff was granted leave to continue this action against the Defendant.

5.  By the Order of Master J. Wong dated 19 October 2010, it is ordered that : -

(a) The Defendant shall serve its List of Document within 21 days from service of the Order. If the Defendant fails to comply with such order within time, it is deemed to have elected not to adduce any documentary evidence at the assessment.

(b) Within 21 days from service of the Order, the parties shall serve and exchange witness statements as to quantum. If the Defendant fails to do so within time, it is deemed to have elected not to call any witness at the assessment.

(c) Expert medical evidence on quantum shall be limited to one ophthalmic expert for each party. The expert nominated by Plaintiff is Dr. Tsui Chung Wan. The Defendant shall nominate its expert with 21 days from service of the Order. If the Defendant fails to do so within time, it is deemed to have elected not to call any expert evidence at the assessment.

(d) Subject to further directions of the Court, the report dated 2 September 2009 produced by Dr. Tsui Chung Wan shall be adduced without oral evidence.

(e) The reports of the Government hospitals as to the treatment and care of the Plaintiff shall be adduced as evidence without calling the makers thereof.

(f) Within 42 days from service of the Order, the Plaintiff shall file and serve his Revised Statement of Damages.

(g) Within 28 days of service of the Revised Statement of Damages, the Defendant shall file and serve its Answer thereto. If the Defendant fails to do so within time, it is deemed to have elected to leave the quantum to be assessed by the Court.

(h) Within 28 days of the Answer, where practicable, the parties shall agree the contents of the Assessment Bundle. If the Defendant fails to co-operate with the Plaintiff, the latter is at liberty to prepare the same without reference to the former.

6.  The Defendant has made default in compliance with any part of the above order.

7.  By the order of Master A. Chow dated 4 March 2011, it is ordered that the Plaintiff do have leave to set this action down for assessment of damages before a Master. 

8.  The Plaintiff’s solicitors have filed affirmations of service showing that:

(a) the Writ, Statement of Damages and Schedule of Medical Reports;

(b) the said Orders;

(c) the Revised Statement of Damages;

(d) the Notice of Appointment of Assessment of Damages, the Bundle of Assessment and Documents and Bundle of Medical Reports

have been duly served on the registered office of the Joint and Several Provisional Liquidators.

9.  I am satisfied that I should allow the Plaintiff to proceed with the Assessment of Damages in the absence of the Defendant today.

10.  The Plaintiff testified. His witness statement filed on 18 September 2010 do stand as his evidence-in-chief.  By and large, I find that the Plaintiff is a truthful witness.  I accept his evidence.

Injuries

11.  At the accident, the Plaintiff fell from a working platform of over 3 meters in height, hitting his head on right temporal side. He suffers from right eye traumatic optic neuropathy with blurred vision and visual defect. The injury to the Plaintiff’s right eye is serious. He was treated with megadose intravenous pulse steroid, which was completed on 17 August 2007. He was discharged home on 17 August 2007 for follow up treatments. After treatments and improvement, there is now still a 35% visual impairment and a 7% acuity-related impairment.  The visual field defect of right eye is 30%.  He also suffers from impaired binocular visual function including stereopsis, fine vision discrimination and depth perception.  His present condition is permanent and irreversible. Orthopaedically, resulting from the fall, the Plaintiff has been suffering from neck and lower back pain.

PSLA

12.  After having taken the following cases for reference: -

(a) Sze Ping Chui v Lau Ching Wai (HCPI 1051 of 2001, 27 September 2002, Master Kwang);

(b) Liu Cheung Keung v Ng Chi Keung [2010] 2 HKLRD 716 (26 March 2010, Master Ho);

(c) Wong Ki v Wong Tung Sing and Others (HCPI 50 of 2008, 18 May 2010, DHCJ L Chan).

I find that an appropriate award is $400,000.

Pre-trial loss of earnings and MPF

13.  The Plaintiff earned $500 per day.  This figure is consistent with the statistics of C&S Department.  He said he worked 26 days a month.  I am prepared to adopt $13,000 as his pre-accident monthly salary.

14.  Dr. Tsui is of the opinion that the Plaintiff should not resume his pre-accident occupation and should not work in a hazardous environment such as construction site and at height, and not to operate dangerous machinery.  I agree.

15.  He is entitled to claim full loss of earnings during the sick leave period (about 4 months) : $13,000 x 4 x 1.05 (MPF) = $54,600.

16.  The Plaintiff is capable to work as a non-skill worker of sedentary nature after sick leave but he is still unemployed.  The Plaintiff claimed full loss of earnings for the whole pre-trial period (46 months).  He said he had been trying to look for job but gave no details of his efforts.  During this hearing, the Plaintiff admitted that he could do dish washing but he had not look for the position of dish washer because he thought it was women’s job.  In my view, he has not tried hard enough.  I consider that the Plaintiff has not adduced satisfactory evidence providing that his unemployment is due to his incapacity.  I consider that account should be given to the potential earnings of a non-skill worker of sedentary nature.  Assuming the Plaintiff could secure a job 6 months after the sick leave, the Plaintiff’s pre-trial loss of earnings for the period from the time when sick leave ended should be as follows: -

($13,000 x 6) + ($13,000 - $5,824) x 36 x 1.05 = $349,252.8

Future loss of earnings and MPF

17.  I accept that due to the Plaintiff’s injuries and his limited education and experience, the Plaintiff will only be able to work as a non-skilled worker of sedentary nature such as cleaner.  According to statistics in September 2010, the average monthly income of a cleaner (lavatory) and cleaner (general) are $5,397 and $5,616 respectively.  With the new law regarding minimum wage, I adopt $5,824 as the Plaintiff’s future income ($28 x 8 hours per day x 26 days per month = $5,824).

18.  The Plaintiff is now aged 34.  He was a casual worker working in construction site. After having taken the following cases for reference: -

(a) Wong Ki v Wong Tung Sing and Others (HCPI 50 of 2008, 18 May 2010, DHCJ L Chan, air-conditioning worker, aged 37 at trial, multiplier 13);

(b) Au Hon Ling v Ching Hoi Keung & Another (HCPI 416 of 2003, 1 September 2004, Suffiad J, carpenter, aged 34 at trial, multiplier 14);

(c) Yeung Tung Sang v Jamsart Cleaning Service Co Ltd [2004] 2 HKLRD 54 (17 October 2003, DHCJ Fung (as he then was), cleaning worker, aged 33 at trial, multiplier 16);

(d) Tsang Wah Lam v Sun May King Publishing Co Ltd (HCPI 843 of 2000, 23 May 2002, DHCJ Longley, printing technician, aged 32 at trial, multiplier 15);

I adopt a multiplier of 14.

19.  Future loss of earnings and MPF would be ($13,000 - $5,824) x 12 x 14 x 1.05 (MPF) = $1,265,846.4.

Loss of earning capacity

20.  I am not convinced that by reason of his incapacity the Plaintiff is at risk on the labour market of non-skill works of sedentary nature.  I make no award under this head.

Travelling expenses and tonic food

21.  The sum of $1,500 is reasonable.

Future medical expenses

22.  Due to latest progress of his conditions, the Plaintiff has withdrawn the claim for future medical expenses.

Loss of future career advancement (as part of loss of future earnings)

23.  The Plaintiff testified that before the accident, he was helping out with the electrician at the construction site.  He said he was planning to study for an electrician’s licence.  The Plaintiff was aged 30 at accident. Given his young age, I accept that when he becomes more experienced and skillful, he will earn more.  I allow the Plaintiff’s claim for a lump sum of $100,000, which represents a loss of about $7,000 a year for his 14 years future working life.

Summary

	(HK$)
PSLA	400,000.00
Pre-trial Loss of Earnings	403,852.80
Future Loss of Earnings	1,265,846.40
Loss of Earnings Capacity	NIL
Special Damages	1,500.00
Loss of Future Career Advancement	100,000.00
	2,171,199.20
Less:  (1) Employees' Compensation awarded	(775,254.67)
(2) Advance payments	(20,500.00)
Total to date (before interest): -	1,375,444.53

Interest

24.  Interest is payable as follows: -

(a) on PSLA at 2% per annum from the date of Writ; and

(b) on accrued loss of earnings and special damages at half of judgment rate from the date of accident.

Costs

25.  It is ordered nisi that the Defendant shall pay the Plaintiff costs of the Assessment of Damages to be taxed if not agreed.  The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulation.  This order nisi becomes absolute unless the Defendant has applied for varying the same within 14 days of service of this Order.