Cheung Kam Kwong v. Man Lee Decoration and Design Ltd

HCPI000305/2002

HCPI 305/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.305 OF 2002

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Coram: Hon Waung J in Court

Date of Hearing: 26 May 2003

Date of Judgment: 26 May 2003

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J U D G M E N T

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1.I have before me the trial of an action for personal injuries brought by the plaintiff who was a welder employed by the defendant, Man Lee Decoration and Design Limited.

2.The accident happened in July 1999 as a result of the plaintiff falling down step ladder which was not of a very firm construction and with the system of work defective in that the ladder was placed on uneven ground and with no one at the bottom of the step ladder to hold the step ladder. The ladder moved and the plaintiff fell and suffered back injury. The back injury was sufficiently serious as for him to be off work for some time and he resumed work with the same employer but doing duty of a much lighter nature which did not require him to carry out heavy welding work. Welding work requires extensive squatting on the ground by a welder and the injury suffered by the plaintiff was such as to cause him not being able to undertake that kind of work. He was on and off working until when he ceased to receive further work from the defendant in 2000. He had to find work in order to support the family and he worked for a short period of time in April 2000 with a new employer, Chevalier (Construction) Co. Ltd. The tragic part of working for the new employer was that he suffered another injury - he fell down from the roof. He injured his hand and his shoulder and he was off work for a year. After May 2001, he tried to find work but was unsuccessful, and the evidence showed that he had not worked since April 2001.

3.The claim had been brought to recover damages against the defendant. I am satisfied on liability that the plaintiff should recover in full and that the defendant was wholly to blame for the accident. The quantum, however, is a matter that has caused us some concern. I had scrutinized the skeleton argument of the plaintiff's counsel very carefully. In the course of the submissions, I had also probed the strength and the weakness of the plaintiff's case. It seems to me that on the most important question as to whether the lack of work or inability to work of the plaintiff was really caused by the first accident and not due to the fall in April 2000, I can be satisfied on the evidence I have heard, especially from the written report of Dr Wong.

4.As for the quantum of loss, I will take the summary in paragraph 20 of Ms Leong's skeleton setting out the nine different heads of claim. I will deal with each one in turn.

5.I am satisfied that the damages for pain, suffering and loss of amenities should be in the sum of $450,000.

6.In terms of the pre-trial loss of earnings, that is really divided into two parts. The first part is the pre-trial loss of earnings from 23 July 1999 to 15 April 2000 that is up to the time of his second accident. I am satisfied with the figure there shown of $91,571.90 made up as shown in paragraph 12(1), i.e. the monthly loss of earnings less the amount that had been earned during that period. For the second period, i.e. from 1 May 2001 until today (the pre-trial) it seems to me, having regard to the overall circumstances of the weak job market from 2001 onwards, as well as the nature of sedentary work that the plaintiff really ought to be able to undertake and find notwithstanding the fact that he said he could not find any, that a loss of $10,000 a month is a fair figure. Therefore, I assess the loss for that period at $248,400, being $10,000 a month x 24.84 months. The total of the pre-trial loss of earnings, therefore, is $339,971.90 being the figure of $91,571.90 for the pre-second accident figure and $248,400 for the May 2001 up to today's figure.

7.The third item is future loss of earnings. What I said earlier applies equally to the future loss. That is to say, I only assess the future loss at $10,000 a month x 12 months x 8 (being the appropriate multiplier) and therefore the figure under heading (3) for the future loss of earnings is assessed at $960,000.

8.The fourth head is the loss of earning capacity. The loss of earning capacity is a legal concept whereby a further award is made to reflect the loss of earning capacity. The figure sought is $200,000, I think that is a little bit too generous. I have taken into account what had been said to me about the various factors and the disadvantage of the plaintiff in the labour market. I think realistically speaking, in the circumstances HK$100,000 should be adequate. I, therefore, only assess $100,000 under that heading.

9.So far as loss of benefit under the Mandatory Provident Fund Scheme (heading (5)) is concerned, the figure therefore should be $60,420 being made up of pre-trial loss at $10,000 a month x 5% x 24.84 months, namely a figure of $12,420 and the future loss figure of $960,000 x 5%, or $48,000. Under that heading, the loss is $60,420.

10.I allow all the claim under the other special damages in the sum of $13,890. The details are set out in paragraph 17 of the skeleton.

11.Under heading (7), I allow in full the interest at 2% per annum on general damages. Therefore the figure is $9,967.50. Under heading (8), I allow interest on special damages at 4% per annum from July 1999 until May 2003 (that is today), 46 months. The recalculated figure is $56,163.22.

12.The total therefore of (1) to (8) of those heads of claim is, if I have worked it out correctly, $1,990,412.62. There is an agreed deduction of the employees' compensation of $422,949.00.

13.Therefore, the order of damages that I will make is in the sum of $1,567,463.62 and this is the sum I will award plus, of course, costs of the action.

Representation:

Ms Susanna Leong, instructed by Messrs T.S. Tong & Co., for the Plaintiff

Defendant in person, absent