Lau Kwai Kwong v. Yiu Wing Construction Co Ltd and Another

HCPI 269/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 269 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Saunders in Court

Date of Hearing: 25 April 2005

Date of Judgment: 25 April 2005

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J U D G M E N T

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1.The Plaintiff Mr. LAU was aged 36 at the time of the accident and is now aged 40.  On 29 March 2001, he suffered an injury to his right distal radius when struck by a falling object on a building site.

2.Judgment on liability has been entered against the 1^st defendant, the principal contractor.  Judgment has been entered by agreement both as to liability and damages against the 2^nd defendant, who was Mr. LAU’s immediate employer on the site.  The only issue remaining for me to deal with is to assess damages against the 1^st defendant.

3.Mr. LAU’s right distal radius was hit by a large metal bolt which fell from a height.  The distal radio-ulnar joint was dislocated in the accident.  He was admitted immediately to hospital where an emergency operation was performed.  The radius fracture was fixed with an open reduction and plating.  The dislocated distal radio-ulnar joint was transfixed with a metal wire and his forearm was put into a cast for mobilization.  The cast was taken off on 9 May 2001, and he received a course of physiotherapy and later occupational therapy.

4.He still suffers significant pain and weakness in exertion such as lifting heavy objects, twisting activities.  There is pain on resisted pronation of the wrist and pain on ulnar impaction.  Radiologically there has been non-union of the ulnar styloid and the site of the fracture at the base of the ulnar styloid.  His medical advisors have recommended further surgery to him which would cost about $40,000, but he has elected not to undertake that surgery.

5.His total loss of earning capacity has been assessed at 8%.  His medical advisors are satisfied that if he elected not to have the surgery, he will not be able to return to his pre-accident occupation as a plasterer involving heavy physical demand.  He accepts that he could obtain lighter work such as a toll-collector or security guard or a worker in a gas filing station.  I am satisfied that in such work he would be able to earn something in the order of $8,000 per month.

6.The proper sum to be awarded for PSLA is $200,000.  That sum was agreed with the 2^nd defendant and I am satisfied it is the appropriate sum.  There will be interest on the PSLA at 2% from the date of the issue of the writ, 23 March 2004.

7.I am satisfied with the figure given by counsel for past loss of earnings and provident fund, a total of $848,925.  Other miscellaneous special damages are set out in paragraph 28 of the revised statement of damages at page 27 of the bundle and total of $1,698.  They are appropriately proved.  Mr. LAU is entitled to an award for that sum.

8.I am satisfied with counsel’s calculation for interest on the special damages after deduction of the ECO compensation, the figure being arrived at $136,100.

9.As the future loss of earnings and provident fund, Mr. LAU says he worked 21 to 23 days a month, and was earning $8,000 a month, the evidence establishes that a plasterer would now earn about $7,000 a month.  The calculation for future loss of earnings on the proven figures are as follows: previous earnings; $15,400 a month, less $8,000, gives a monthly earning loss of $7,400 a month, multiplied by 1.05 to allow for the mandatory provident fund, is a total of $7,770 per month, multiplied by 12, which is $93,240 per year.

10.The appropriate multiplier for a man aged 40 at the date of trial is 13, giving a total sum of $1,212,120.  Mr. LAU seeks also loss of earnings capacity which I awarded at $8,000 using a multiplier of 12, a total of $96,000.  He has sought future medical expenses of $40,000 being the said sum of the future surgery, however he has elected not to undertake that surgery.  That sum therefore is declined.

11.There will be judgment for the plaintiff against the 1^st defendant for the total sum as set out above, together with the plaintiff’s costs which had been on a party and party basis and taxed on Legal Aid Regulations.

Mr Simon Lam, instructed by the Legal Aid Department for the Plaintiff

1^st Defendant in person (Absent)

Mr Steven So, instructed by Messrs Patrick K. H. Lam & Co., for 2^nd Defendant