RAZAQ-AKHTAR v. WANG HOI TRANSPORTATION LTD

HCPI 303/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 303 OF 2007

----------------------

----------------------

------------------------------------------

ASSESSMENT OF DAMAGES

----------------------------------------

Introduction

1. The plaintiff claims against his former employer for loss and damage he suffered from an accident on 10 November 2004 at the warehouse at Marine Cargo Terminal, Hong Kong International Airport whilst he was on duty carrying carton boxes of about 35 kilos onto a pallet.  He had sprained his back and sustained injury.

2. The defendant has filed no intention of defend and as a result, default judgment has been entered on 22 June 2007, with damages to be assessed.

3. The defendant was absent on the date of the hearing. Upon proof that due notice had been given to the defendant for this hearing, the hearing for assessment of damages proceeded.

4. The defendant has not put in evidence to challenge the plaintiff’s evidence, including the expert’s evidence.  I shall assess the plaintiff’s evidence on this basis.

5. The plaintiff is a Pakistani, aged 29 (date of birth 4 September 1979) and is married with 3 children.  He was 25 years of age when the accident took place.

Pain and suffering and loss of amenity

6. The plaintiff’s injuries and complaints are as follows:

(a)    At the accident, he felt severe pain in his back and he could not stand up.  He sat on the ground and leaned at the side of a nearby carton box while his foreman called for the ambulance.

(b)   No fracture is found.

(c)    The back pain radiates down his left thigh the knees from time to time.

(d)   Marked muscle guarding and tenderness in the back;

(e)    Reduced movement range of the trunk and limited straight leg raising;

(f)    Increased pain after prolong sitting, standing, walking or lying in bed;

(g)    MRI shows mild prolapse of the L5/S1 disc.

7. The plaintiff still complains that he has intermittent pain in his lower back.  The pain becomes more severe when he wakes up in the morning.  He also has pain while sleeping at night and he cannot pick up things from the floor.  The back pain comes on when he sits or stands for more than half an hour.  He has to rest after walking for 1 hour due to the back pain.

8. According to the plaintiff’s medical reports [bundle tab 4-002 & 009], the summary of which are as follows:

(a)    MRI of lumbar spine on 16 July 2005 revealed L5/S1 disc protrusion;

(b)   6% of permanent disability was granted by the Medical Assessment Board on 1.11.2005;

(c)    His injury was appropriately treated by conservative means;

(d)   The injury had been adequately rehabilitated by the physiotherapists and occupational therapists at the Princess Margaret Hospital;

(e)    His improvement had been slow and became static after more than 30 weeks of rehabilitation programme;

(f)    The MRI showed mild disc prolapse with no bone lesion.  No surgical intervention is likely to improve his back pain significantly.

9. After the accident, the plaintiff was treated at the A&E Department at the Princess Margaret Hospital where he was admitted for 3 days.  He was later referred to the Orthopaedics and Traumatology specialist clinic.  He had received 35 sessions of physiotherapy and 34 sessions of occupational therapy at the Princess Margaret Hospital.  He had tenderness on his lumbosacral spine and persistent back pain.

10. The specialist, Dr. Wong, also takes the view that the plaintiff is unable to return to his previous job at the cargo company.  He needs to change to jobs of lighter nature, which do not require heavy lifting such as clerical duties, petty office work, cashier, car park attendant and security guard. [4-010]

11. Counsel for the plaintiff refers me to the following cases:

(a)    Choi Ying Chi v Loyal Engineering Ltd. HCPI 53 of 2006 unreported;

(b)   Chan Kam Hong v Mohammad Riaz HCPI 938 of 2005 unreported;

(c)    Lam Kei Fung v The Incorporated Owners of Yue Tin Court & Ors DCPI 1237 of 2005 unreported judgment dated 2 April 2008;

(d)   Chu Chung Wah v Ng Tung Pak & Anor HCPI 547 of 2003 unreported.

12. Counsel for the plaintiff refers me to case 1 specifically and submits that the injury in that case is very similar to this case.  She proposes $300,000 for this item, relying on case (a) above, in which the court awarded $280,000 to the plaintiff.  Having considered those cases, I award $280,000 to the plaintiff for this head of claim.

Pre trial loss of earning and MPF

13. I accept that the plaintiff was earning $10,500.00 per month immediately prior to the accident.

14. In the statement of damages, the plaintiff concedes that his sick leave should end on 16 August 2005, although he had obtained sick leave from the hospital until 1 November 2005.  [3-010]  I shall adopt 16 August 2005 as the end of his sick leave.  The plaintiff gives evidence that he had gone back to Pakistan for more than 3 months.  He did not work from 16 August 2005 until 1 March 2006.  I find no evidence to support that he had difficulty in finding a job as a security guard during that period of time.  I therefore disallow the pre-trial loss for the period from 17 August 2005 to end of February 2006.

15. As on 17 October 2008, the date of the assessment, the plaintiff’s pretrial loss of earning will be:

(a)    sick leave period from 10 November 2004 to 16 August 2005:

    HK$10,500.00 x 9.2 months x 1.05=HK$101,430

(b)   From 1 March 2006 to 15 October 2006, the plaintiff worked for Yeomen Guards Co. Ltd. as a security guard at $5,000.00 per month:

    $(10,500.00 – 5,000.00) x 7.5 months x 1.05 = $43,312.50

(c)   From 16 October 2006 to 30 April 2007, the plaintiff was unemployed, for which there is no evidence that he was unable to find any job despite his attempts.  The plaintiff was not given sick leave for this period.  This period will be excluded for his loss.

(d)   From 1 May 2007 to 18 June 2007, the plaintiff worked for Unison Construction Engineering Ltd. as a security guard.  He was paid $5,500.00 per month.  He left the job as his contract had finished.  His loss for this period would be: $[10,500.00 – 5,500.00] x 1.6 months x 1.05=$8,400.00.

(e)    On 20 June 2007, the plaintiff was employed by Yeomen Guards Co. Ltd. as a security guard at $5,500.00 per month. His loss from 20/6 up to date is $[10,500 - 5,500.00] x 15.87months x 1.05=$83,317.50

His total pre-trial loss is: $[101,430+43,312.50+8,400.00+83,317.50] = $236,460

Post trial loss of earning & MPF

16. I accept Dr. Wong’s medical opinion that the plaintiff is unable to return to his previous job and he has to change to jobs of lighter nature that do not require heavy lifting. He is suitable for a security guard.

17. The plaintiff was 25 years old at the time of the accident and he is now 29.  Counsel for the plaintiff submits that the appropriate multiplier for this case is 15.  Having considered the cases submitted and in particular, Choi Ying Chi v Loyal Engineering Ltd. HCPI 53 of 2006 submitted by Plaintiff’s counsel, in which the Judge held that the court should take into consideration the nature of the work that plaintiff was doing before the accident.  The Judge held that given the evidence that the plaintiff, a fitness trainer, was engaged in heavy type of work pre-accident, one could not reasonably expect a person to be engaged in such work until the normal retirement age for most people.  [para.153].  In that case, the plaintiff was 31 years old at the trial and the Judge awarded him the multiplier of 12. I respectfully agree with the Judge’s approach.  I consider that appropriate multiplier should be 13.

18. The total sum for the post trial loss of earning and MPF is $[10,500-5,500] x 12 x 13 x 1.05=$819,000.00

Loss of earning capacity

19. The plaintiff claims $100,000.00 for loss of earning capacity.

20. Given the medical evidence in this case, I accept that the plaintiff may suffer chronic back pain.  There will be a real risk that the plaintiff will suffer a disadvantage in the labour market in future.  I have taken note of the decision in Choi Ying Chi v Loyal Engineering Ltd. HCPI 53 of 2006 under the same head of claim.  Taking all factors into account, I award $80,000.00 to the plaintiff to compensate for his loss under this head of claim.

21. I accept the plaintiff’s claim for $6,000.00 for other special damages.

Summary

PSLA	$280,000
Pre-trial loss of earnings	$236,460
Future loss of earnings	$819,000
Loss of earning capacity	$80,000
Other special damages	$6,000
LESS
Payment made under ECC	97,450
Total	$1,324,010

22. Interest will be awarded for PSLA at 2% per annum from the date of the writ until the date hereof and thereafter at the judgment rate until payment.  Interest on pre-trial loss of earnings and other damages at half the judgment rate from the date of the accident until the date hereof and thereafter at the judgment rate until payment.

23. I make an order nisi that the Plaintiff shall have the costs of this assessment of damages, to be taxed if not agreed.  The Plaintiff’s costs are to be taxed in accordance with the Legal Aid Regulations.  This costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.