Yeung Hung Ling v. Li Kung Shui t/a Ying Yem Engineering Co

DCPI916/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 916 OF 2004

BETWEEN

Coram: H H Judge Carlson in Court

Date of Hearing: 1 August 2005

Date of Judgment: 1 August 2005

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J U D G M E N T

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1.On 31 July 2002 the plaintiff was employed as a summer worker, meaning I think by that expression a temporary worker, by the defendant who operated a small general contracting company.  He was at the time that he was injured assisting another worker to remove an air-conditioning unit from a false ceiling in office premises.  In the course of that removal the air-conditioning unit somehow detached itself and it fell on the plaintiff, striking him on the head and the shoulder, as a result of which he was first taken to a general practitioner’s surgery and then sent to Queen Mary Hospital to the Accident & Emergency Department there so that he might be looked at more thoroughly by the doctors at the hospital.

2.Fortunately, he was not seriously injured, although the accident was not without unpleasant consequences for this young man.  He was also able to see the Neurological Department I think at both Queen Mary Hospital and at Princess Margaret Hospital, which I believe is close to his home, and it was discovered that he was suffering from post-concussion syndrome which resulted in dizziness, headaches and short-term memory loss.  The course of his management and treatment I think can be fairly described as, general reassurance by the doctors at these hospitals and he was also given analgesics.  He was certificated as unfit to return to work for 44 days.

3.He now brings this action against the defendant for damages for personal injury, pain and suffering and for other consequential losses, alleging negligence.  The writ was issued in September last year.  The defendant did not enter an appearance and so interlocutory judgment was entered on 7 April this year with damages to be assessed and this is now the assessment of those damages.

4.The plaintiff, very sensibly made an application for employee’s compensation for which he received a payment of $6,800 and, of course, he understands that he must give credit in respect of that payment in relation to any damages that I award to him today.

5.The first head of damages is the claim for pain, suffering and loss of amenity.  The general picture is that there has effectively been full recovery save that from time to time he continues to get headaches for which he can take the usual analgesics and that deals with the problem and he is also complaining of some residual dizziness but it seems to me that when one looks at all the medical evidence that these symptoms will in due course, and I suspect fairly shortly, resolve themselves completely.

6.It is submitted on his behalf by Mr Steven Lau, who, if I may say so, has prepared this case very well, that I should award $150,000 under this head.  He has shown me a case Cheng Lai-kwan v Nam Fung Textile Company Limited HCPI175/1996 which is broadly similar to this one.  I take the view that that case perhaps is a little more serious in the sense that there was a loss of consciousness and that is not the situation here.  I propose awarding the plaintiff the sum of $130,000 for pain and suffering. 

7.Next I come to pre-trial loss of earnings and here the claim is for $5,775 based on a correct assessment of his pre-accident earnings which I find as a fact were $3,937.50.  He was off work for 44 days so this sum of $5,775 has been made out and I shall award him that amount.

8.Next there is a claim for loss of earning capacity.  This is looking forward from here and it is submitted on his behalf that there is some risk that he might lose his employment sometime in the future because of his headaches and possibly lack of concentration and dizziness and the claim is put forward on the basis of pre-accident earnings multiplied by nine months which gives just over $35,000.  Since the accident he has changed the nature of his job.  He is working for a very well known retail jewellery company as a salesman and he earns $6,500. 

9.In my view, this claim is much too speculative on the evidence.  I do not accept that the risks that are put forward exist in this case.  I think he is effectively back to the health that he enjoyed before the accident.  He is a young man.  He has shown himself as someone who is willing to be trained and re-trained and I expect good things of him in the future.  So I am not going to award anything under this head.

10.There is a small claim for $288.75 for loss of the MPF contribution which would be paid I think, by the employer, and I allow that.  I think that is right.

11.Lastly, there are some miscellanous special damages - medical expenses $132, travel $215 and tonic food in the very reasonable amount of $2,000 - which I allow so making a total of $2,347.

12.Having given credit for the employee’s compensation payment, the total is $131,610.75.  These are the damages that I award in this matter.

13.Interest will also be awarded on general damages in the conventional way at 2 per cent per annum from the date of the writ until today and thereafter at the judgment rate until payment.  On special damages and pre-trial loss of earnings half the judgment rate from the date of the accident to today.  The actual rate will be 4.1225 per cent.  The plaintiff will also have costs to be taxed on a party and party basis, with certificate for counsel.

Mr Steven Lau, instructed by Huen & Partners, for the Plaintiff

Defendant, in person (absent)