Lai Ka Wai v. Lo Tak Cheung t/a Luen Fat Construction Co. and Others

HCPI001227/1995

1995, No. PI 1227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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Coram : Hon Mr Justice Cheung in Court

Date of hearing : 12 January 1998

Date of judgment : 12 January 1998

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J U D G M E N T

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The Claim

1. The Plaintiff is claiming against the 1st Defendant and the 3rd Defendant damages arising out of an industrial accident.

2. The Plaintiff was employed by the 1st Defendant as a plumber and electrician. The 3rd Defendant was also an employee of the 1st Defendant and worked as an assistant to the Plaintiff. The 1st Defendant was a subcontractor to the 2nd Defendant. The 2nd Defendant was the principal contractor responsible for constructing swimming pools in Heng Fa Chuen. Judgment in default of acknowledgement of service was entered against the 1st Defendant. The claim against the 2nd Defendant was settled.

3. On 11th May 1989, the Plaintiff was working in a concrete channel which was situated between two pools. He had to cut with an electrical saw a piece of plastic pipe which connected the two pools. As he was about to cut the pipe, he noticed that there was a piece of timber joist of about 8 feet long leaning against the wall of the channel. As the joist interfered with his work, he asked the 3rd Defendant who was working on the ground level to remove the joist.

4. The 3rd Defendant then started to remove the joist but instead of lifting it entirely out of the channel and carrying it away, he lifted it up out of the channel partially and threw it on the ground from his end. This caused the lower end of the joist to tilt up and struck the Plaintiff's spectacles. The glass of the spectacles shattered and some fragments entered the Plaintiff's left eye. The Plaintiff's left eye became blind as a result of the accident.

3rd Defendant liable

5. The 3rd Defendant chose not to give evidence. In relation to liability of the 3rd Defendant, in my view, he was negligent in not taking reasonable steps to dispose of the joist. Had the 3rd Defendant lifted the joist well clear of the channel and placed it on the ground without dropping or throwing it, the accident would not have occurred. I find the 3rd Defendant liable.

Damages

6. I will now deal with the assessment of damages against the 1st and the 3rd Defendants.

Pain, suffering and loss of amenities

7. After the accident, the Plaintiff had an operation and was hospitalized for about 1 month, but he became totally blind in the left eye. This is a 24% permanent impairment of the whole visual system. The injury is within the serious injuries category and the award is $450,000, see Chan Kwok Ping v. Hop Yick Engineering Co., P.I. No. 1230/95.

Loss of past earnings

8. The Plaintiff was granted sick leave for 3 months from 11th May 1989 to 12th August 1989. He did not get any pay during the sick leave. Employees' compensation agreed with the 1st Defendant was not paid because the 1st Defendant's insurer had repudiated liability.

9. After the accident, the contractor at Heng Fa Chuen changed hands. The Plaintiff managed to secure a job in December 1989. He worked at different jobs which were particularized in the witness statement. From August 1995 onwards, the Plaintiff worked as a casual electrician and plumber. He was only able to work 10-15 days per month. Previously he worked 20 days a month. From August 1995 to June 1997, he was earning $650 per day; from 1st July 1997 onwards, he earned $700 per day.

10. The reduction in working days was because he could no longer worked in construction sites due to his eye problem. He could not see properly. He worked in decoration work instead. He also said that the quality of his work is not as good as before. He could not align electric cables in a straight line. He could not work as fast as before since the electric work sometimes required delicate handling of minor objects. He had looked for jobs in construction sites without success.

11. The Plaintiff was ages 22 at the time of the accident. He received education up to Form 3. He left school at 16 and worked as an apprentice for electrical and waterwork contractors. From early 1989 onwards, he was employed by the 1st Defendant. At the time of the accident he was earning about $7,000 per month. He worked 24 days a month at $300 per day.

12. According to the statistics issued by the Hong Kong Government in July 1997, the daily wages of an electrician/plumber is $735.40. The notional wages of the Plaintiff at present is $17,650 i.e. $735.40 x 24 days. The median figure is $12,325. The total earning of the Plaintiff from 25th December 1989 to date is $822,018. The accrued loss of earning from the date of accident to date is :

$12,325 x 104.1 months :
	$1,283,032.50
	-    $822,018.00
	$461,014.50
rounded up to :	$461,015.00

Loss of future earnings

13. The Plaintiff's actual earning is $9,100 per month. The difference with the notional earning is :

$17,650 - $9,100 = $8,550

A multiplier of 15 is adopted : Leung Chan Tung v. Siu Wai Cheung P.I. No. 883/95. The total is :

$8,550 x 12 x 15 = $1,539,000

Special Damages

14. Special Damage is claimed at $20,090. The particulars are set out in the Schedule of Damages, I am satisfied that they had been reasonably incurred.

Summary

In summary :
PSLA	$450,000
Past loss of earnings	$461,015
Future loss of earnings	$1,539,000
Special Damages	$20,090
Total :	$2,470,105

Judgment

15. There shall be judgment for the Plaintiff in the sum of $2,470,105 with costs of the action. Interest at 2% for PSLA from date of the service of the writ to judgment. Interest at 6% per annum from the date of the accident to judgment on past loss of earnings and special damages.

(P. Cheung)

Judge of the Court of First Instance,
High Court

Representation:

Mr Anderson Chow, inst'd by D.L.A., for the Plaintiff

3rd Defendant, in person.