CHOI WING CHAI v. LI BING t/a SHUN LEE BUILDING MATERIALS CO.

1996, No. P.I. 30

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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J U D G M E N T

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Facts

1. On 9^th December 1993, the Plaintiff went to the Defendant's shop on the ground floor of 21-23 South Wall Road to purchase a wooden door. The Defendant was in the business of supplying building materials. The Plaintiff had been to the shop on the previous day when the door was not available. On 9th December 1993, the Plaintiff was told by the shopkeeper that the door was stored in the cock-loft of the shop. He identified the shopkeeper as Mr Li Bing who is the Defendant in this case. The operator asked the Plaintiff to go up to the cock-loft in order to help him to carry the door down. The cock-loft was dark, and as the Plaintiff moved forward to remove the door, he fell through a hole of about two feet by two feet. He was not aware that there was a hole in the cock-loft. He dropped from a height of eight feet, landed on the ground floor and sustained injuries.

Liability established

2. In his defence, the Defendant admitted that he operated the shop at the address. The law in this area is clear. The Defendant was the occupier of the shop. He owned a common duty of care towards all lawful visitors to the shop of which the Plaintiff was one. The hole was unguarded and no warning was given to the Plaintiff of the presence of the hole. That duty was breached and liability is established.

Injuries

3. As a result of the fall, the Plaintiff suffered an anterior wedge fracture of the first lumbar vertebrae with nerve compression and decreased spinal flexion. There was neurological impairment of the right lower limb resulting in numbness and weakness. There was constant low back pain and right buttock pain. He was hospitalised at the Queen Elizabeth Hospital for about ten days, thereafter he received outpatient treatment. He was told to take bed rest and to wear a lumbar brace for support. He wore the brace for about a year. The Plaintiff is still suffering from back pain, stiffness and numbness of his right leg.

4. According to Dr Danny Choi who examined the Plaintiff in February this year, the most recent x-ray revealed that there was solid healing of the L1 vertebal body but it was in a deformed state and this may account for the symptoms and signs of pain now suffered by the Plaintiff. The deformed bone may cause irritation to the nerve root supplying the right lower limb and hence persisting altered sensation and numbness of his right lower limb was observed. The injury is equivalent to 12% permanent impairment of the whole body.

Pain, suffering and loss of amenities

5. The injury itself in my view falls into the serious injury category. The award for pain, suffering and loss of amenities is $300,000.

Pre-trial loss of earnings

6. At the time of the accident, the Plaintiff was a painting worker and he also had subcontracted some painting work. The work was heavy duty painting work in construction sites. He earned about $18,000 per month, working 30 to 31 days a month. He also worked overtime. He was granted sick leave for about one year from 9^th December 1993 to 20^th December 1994 and for another six months from 17^th January 1995 to 27^th July 1995. Due to financial difficulties, he resumed work in December 1994. He worked as a casual worker in carparks and as a painter in interior decoration work. The total earning between December 1994 and September 1997 was $200,150.

7. According to the statistics prepared by the labor union, the daily wage of a painter in 1996 was $690. The latest union figure is not available. According to the "Average Daily Wages of Workers Engaged in Government Building and Construction Project", for May 1997, the daily wage was $733.50. The Plaintiff said that the average daily wage of a painter in his trade is $750. I accept this figure and will adopt this in the calculation of his loss of wages. I am satisfied that the Plaintiff suffered loss of earnings by reason of his injuries. I am further prepared to use a 30-day month in the calculation of the monthly wages. The current monthly wages he would have earned but for the accident will be $22,500 which is based on $750 x 30. I would not add on top of this figure further earnings that the Plaintiff may obtain by subcontracting work. This will be too speculative in nature. I will adopt the median of $18,000 and $22,500 which is $20,250.

8. The pre-trial earning between 9^th December 1993 and 26^thh September 1997 of 45.5 months is $20,250 x 45.5 = $921,375. The actual earning during this period was $200,150. The difference is $721,225.

Future loss of earnings

9. The current earning of the Plaintiff is about $11,000 to $12,000 per month. The median of these is $11,500. He worked 15 to 16 days a month. He worked in interior decoration because he could not engage in construction site work as he had difficulties in going up stairs. There is lesser work in interior decoration than in construction sites. The loss is the difference between $22,250 and $11,500, at $10,750 per month or $129,000 per year.

10. The Plaintiff is now aged 41, a multiplier of 11 is appropriate. The loss is $129,000 x 11 = $1,419,000.

Special damages

11. The Plaintiff also incurred special damages in the sum of $13,039 of which $5,571 was medical expenses, $996 was travelling expenses and $4,800 on tonic food. In addition, his wife incurred $1,672 as travelling expenses. I am satisfied that these sums are recoverable.

Summary

12. In summary, the total award is :

PSLA Loss of past earnings Loss of future earnings Special damage Total

$300,000 $721,225 $1,419,000 $13,039 -------------- $2,453,264

Interest

13. Interest on PSLA at 2% per annum from 5th January 1996 (date of writ) to date. Interest at 6% per annum for special damages from the date of accident, namely 9th December 1993, to date. Interest at judgment rate will commence from the date of judgment to payment.

Costs

14. The Plaintiff is further entitled to the costs of this action. His own costs is to be taxed in accordance with Legal Aid Regulations.