Waan Chuen Ming v. Lo Kin Nam t/a Kar Kin Engineering & Supplier Co and Another
Read the full judgment text of HCPI 588/2003 on BabelCite. This High Court CFI judgment was delivered on 21 July 2008.
1. On 10 June 2000, the plaintiff together with the 1 st defendant were carrying out repair works to a calendering unit of a stentering machine which was located in the 1 st defendant’s factory inside industrial premises at Room 301–393 of 3 rd floor, 31–39 Hong Kong Worsted Mills Industrial Building, Wo Tong Tsui Street, Kwai Chung, New Territories.
Cited by 2 cases · Cites 4 cases
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HCPI 588 & 591/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NOS. 588 and 591 OF 2003 ----------------------
---------------------- (Consolidated by the Order of Master B. Kwan dated 7th June 2004) Before : Hon Suffiad J in Court Dates of Hearing : 23–25 June 2008 Date of Judgment : 21 July 2008 ---------------------- J U D G M E N T ---------------------- 1.On 10 June 2000, the plaintiff together with the 1st defendant were carrying out repair works to a calendering unit of a stentering machine which was located in the 1st defendant’s factory inside industrial premises at Room 301–393 of 3rd floor, 31–39 Hong Kong Worsted Mills Industrial Building, Wo Tong Tsui Street, Kwai Chung, New Territories. 2.In carrying out such repair works to the calendering unit, they had dismantled the calendering unit from the stentering machine and had it transported to an adjacent place for repairing. 3.Having finished the repairing work on the calendering machine, the two of them then managed to transport the calendering unit back to the rear of the stentering machine for re-installation. 4.The transportation work of the calendering unit back to the stentering machine involved transporting the calendering unit by using a pallet jack and also roller bearing trolley to the back of the stentering machine. Then a second pallet jack was inserted under the middle of the side of the calendering unit to push it back by about 1 metre to its original position with the stentering machine where it would be screwed to the ground by four screws. 5.After the second pallet jack had been inserted underneath the calendering unit, but before it could be lifted up using the two forks of the second pallet jack, the calendering unit suddenly toppled forward pinning and crushing the two legs of the plaintiff and causing him severe injuries due to the very heavy weight of the calendering unit. Fire services personnel had to be called to free the plaintiff from under the toppled calendering unit. 6.The plaintiff brings this action against both the 1st and 2nd defendants. 7.The claim against the 1st defendant is on the basis of breach of employer’s duty. 8.The 1st defendant has never seen fit to file any defence to the claim against him by the plaintiff and has not appeared at the trial. 9.Surprisingly, no steps had been taken by the plaintiff’s solicitors to enter default judgment against the 1st defendant before the start of the trial. When this trial commenced, I indicated to counsel for the plaintiff that since the parties are already at the doorstep of the trial, and that the trial will have to proceed with the 2nd defendant, I will deal with the claim against the 1st defendant in my judgment, both on liability and on quantum, when I deal with the claim against the 2nd defendant since those issue will overlap. 10.As for the 2nd defendant, counsel for the plaintiff indicated at the commencement of the trial that he will proceed against the 2nd defendant on the basis of the Occupier’s Liability Ordinance and also the Occupational Safety and Health Ordinance. In so doing, counsel for the plaintiff effectively conceded that, although pleaded, he will not be pursuing the claim against the 2nd defendant on the basis that the 2nd defendant was the employer of the plaintiff (or for that matter also of the 1st defendant) in relation to the works carried out by them when the accident happened. THE EVIDENCE 11.The only live witness called by the plaintiff was the plaintiff himself. On the issue of liability the plaintiff also relied on the Accident Report prepared by the Labour Department after the accident occurred. 12.The plaintiff was the only witness as to how the accident happened since it was he and the 1st defendant who were dealing with the calendering unit when it toppled. 13.It was the plaintiff’s evidence that at about 1995, he and the 1st defendant were employed by Ko Fu Engineering Company (“Ko Fu”) to perform repair and maintenance works. At that time Ko Fu was engaged by the 2nd defendant to repair machines including the calendering unit in its factory. Therefore the plaintiff and the 1st defendant with other workers had been to the 2nd defendant’s factory to carry out such repair works. When he was working for Ko Fu, there would usually be about four to five workers doing the repair work on the calendering unit. 14.Thereafter both the plaintiff and the 1st defendant left the employ of Ko Fu. The 1st defendant started his own machine repair business some time in 1996. In about 1998, Ko Fu ceased its business. 15.After the 1st defendant started his own machine repair business, the 2nd defendant did engage the 1st defendant to carry out repair works for its stentering machine and calendering unit in its factory. At times, the 1st defendant would employ the plaintiff on a casual basis to help him do the repair works for the 2nd defendant. 16.According to the plaintiff, the day of the accident on 10 June 2000 was the first time the plaintiff had gone alone with the 1st defendant but no other workers to do repair work for the 2nd defendant on its calendering machine. He did go along at the behest of the 1st defendant although he was not keen to take on such part time repair jobs. 17.The plaintiff gave evidence as to how he and the 1st defendant detached the calendering unit from the stentering machine and then transported the calendering unit to some 5 or 6 metres away (still within the factory premises of the 2nd defendant) where they carried out the repair works. The transportation part of it was done with the assistance of two pallet jacks and a bearing trolley. 18.The dimensions of the calendering unit, pallet jacks and bearing trolley were given by the plaintiff in the form of sketches attached to his witness statement which was adopted by the plaintiff as his evidence in chief. Those dimensions given by the plaintiff conformed with the dimensions given in the Accident Report. Those dimensions given were not in dispute. 19.After the repair work was done, the calendering unit had to be transported back to its original position within the stentering machine. This was done by using a pallet jack inserted into the underside of the calendering unit on one side of it and placing the bearing trolley under the other side of the calendering unit. The calendering unit, resting on the pallet jack and the bearing trolley, was then pulled along for those 5 or 6 metres back to near its original position within the stentering machine. 20.In his evidence, the plaintiff said that it was the 1st defendant who had pulled the pallet jack on which the calendering unit rested back to its position in the stentering machine and that the plaintiff assisted by holding on to the calendering unit while it was being transported. That evidence was at variance with the sketch annexed to his witness statement. When confronted with the sketch, the plaintiff changed to say that he cannot really remember who actually pulled the pallet jack transporting the calendering unit. However, nothing of relevance turns on this. 21.When the calendering unit had been transported back to near its original position within the stentering machine, it had still to be pushed back for about a metre or so before it reached its original position. 22.For that purpose a second pallet jack was located by the 1st defendant who then jacked up one end of the calendering unit for about six inches using the first pallet jack so that the second pallet jack could be inserted underneath the front part of the calendering unit. Two pieces of wood were also placed on the forks of the second pallet jack by the 1st defendant. The purpose for that was to raise the calendering unit somewhat higher than otherwise could be done by the pallet jack so that it could be put back to its original position. 23.When the second pallet jack had been inserted into position, the forks of the first pallet jack were lowered so as to allow the calendering unit to rest on the second pallet jack and the two pieces of wood placed on the two forks. When that was done, the plaintiff took hold of the handle of the first pallet jack while the 1st defendant attempted to jack up the second pallet jack to enable, firstly, the first pallet jack to be pulled out from underneath the calendering unit and then to push the calendering unit backwards for about 1 metre using the second pallet jack on which the calendering unit now rested. 24.When the 1st defendant was attempting to jack up the second pallet jack with the calendering unit on it, the plaintiff heard the 1st defendant say that the forks of the second pallet jack will not rise. On hearing that the plaintiff came over to the front where the 1st defendant was intending to find out why the forks of the second pallet jack will not rise. Just at that moment, the calendering unit began to topple forward towards the plaintiff and the 1st defendant. The plaintiff tried to use his hands to push back the toppling calendering unit, but found it too heavy and as a result the calendering unit fell on top of the plaintiff pinning and crushing both his legs. 25.Firemen and ambulancemen had to be called and the plaintiff had to be released from being pinned under the toppled calendering unit. 26.In cross-examination when it was pointed out to the plaintiff that his evidence given in court differed in some details to the declaration given by him to the Labour Department about the occurrence of this accident, the plaintiff replied that he was told by the 1st defendant to give the contents of that declaration and which were not completely true. The plaintiff confirmed that what he said in court was what actually happened. 27.Ip Kam Wo (“Ip”), a supervisor of the 2nd defendant gave evidence for the 2nd defendant. 28.His evidence was to the effect that the 1st defendant was an independent contractor engaged by the 2nd defendant to carry out repairs to the machinery in the 2nd defendant’s factory and that neither the 1st defendant nor the plaintiff was employed by the 2nd defendant. It was left to the 1st defendant to decide how many workers he would bring along for such repair works. 29.The tools for the actual repair works were brought along by the 1st defendant but the 2nd defendant did permit the repair workers to make use of the pallet jacks and bearing trolleys in the 2nd defendant’s factory for the purpose of transporting the calendering unit within the 2nd defendant’s factory when such repair works were carried out by them. 30.The pallet jacks and bearing trolleys were normally used by the 2nd defendant for transporting the cloth products of the 2nd defendant, which were either in rolls placed on pallets and transported by the pallet jacks or contained in paper cartons and transported by the bearing trolleys. 31.Ip also gave evidence that he knew the maximum weight capacity which could be handled by the pallet jacks to be 2.5 tons or 2,500 kg because that is stated on the pallet jacks. However, he did not know the weight capacity for the bearing trolleys. 32.When a pallet jack was used by the 2nd defendant’s workers to transport cloth, someone at the 2nd defendant’s factory would work out the total weight of the cloth to be transported on the pallet to ensure that it did not exceed the maximum weight capacity. Furthermore for safety purpose, the rolls of cloth would not be any higher than the height of a normal person. 33.Ip had not seen how the calendering unit was detached from the stentering machine by the 1st defendant’s repair workers nor how it was put back within the stentering machine, but on previous occasions he had seen the 1st defendant pushing a pallet jack with the calendering unit on it. When asked, Ip agreed that he thought it was “extremely unsafe” when he saw the calendering unit being transported by the pallet jack and bearing trolley as there was a risk that the calendering unit might topple over. However, Ip also said that he relied on the expertise of the 1st defendant in carrying out the repair works and to protect his (the 1st defendant’s) employees against risk of injury. As a result of relying on the expertise of the 1st defendant, Ip did not say anything to the 1st defendant about the method employed by the 1st defendant in transporting the calendering unit, albeit that he thought it was “extremely unsafe”. UNSAFE SYSTEM OF TRANSPORTATION OF CALENDERING UNIT 34.There can be no doubt that the system employed for transporting the calendering unit as described above was a wholly unsafe system. 35.Firstly, the fork of the pallet jack was only 1.5 metres long, but the calendering unit was 2.5 metres long, as a result, a bearing trolley was placed under the other side of the calendering unit to transport it. The bearing trolley was not connected to the pallet jack at all and in that sense the equipment used to transport the calendering unit was not itself an integral unit but two wholly separate pieces of equipment. 36.Secondly, the calendering unit had a height of 1.68 metres and when put on the pallet jack which, when jacked up with the calendering unit on it, the calendering unit on the pallet jack would be taller than a person. The calendering unit was some 1.5 tonnes in weight with a cylinder of some 500 kg at the top part of it. Given Ip’s evidence when the 2nd defendant used the pallet jack to transport cloth, they normally see to it that the cloth placed on the pallet will not be taller than a normal person’s height, therefore the method employed to transport the calendering unit on the pallet jack must result in the calendering unit, when sitting on the pallet jack, being top heavy thereby increasing the risk of its toppling over. 37.Thirdly, no steps were taken to secure the calendering unit in any manner whatsoever, when it was being transported on the pallet jack, to minimize the risk of its toppling over. 38.Fifthly, the placing of two pieces of wood on the second pallet jack in order to raise the calendering unit higher than otherwise the pallet jack could showed it to be a makeshift system designed to move or transport the calendering unit in any way and with whatever equipment is available but without any proper regard to safety measures. 39.The plaintiff contends that the system employed was unsafe and dangerous. 40.Counsel for the 2nd defendant does not dispute that. Indeed in his submission, he says that at least some of the manoeuvres adopted can be said to be recipes for disaster. 41.Ip in his evidence clearly told the court that when he saw (on a previous occasion) the method by which the calendering unit was being transported inside the 2nd defendant’s factory, he thought that it was “extremely unsafe”. 42.The fact that such an unsafe system of transportation had been undertaken on a number of occasions previously but without any accident happening on those previous occasions does not make the system any less unsafe. It was purely fortuitous that no earlier accident had resulted from such unsafe system being employed. LIABILITY OF THE 1ST DEFENDANT 43.The 1st defendant was the employer of the plaintiff. 44.He had a duty to ensure a safe system of work for his employees. 45.He was himself present and had taken part in those works, a part of which employed the unsafe and dangerous system of transportation of the calendering unit as stated above. 46.There can be no doubt but that the 1st defendant was in breach of that duty to the plaintiff and must be liable to the plaintiff for the accident and the injuries caused to the plaintiff resulting therefrom. LIABILITY OF THE 2ND DEFENDANT 47.In the case of the 2nd defendant, there is no dispute that he was the occupier of the factory in which this accident happened. 48.There is also no dispute that the plaintiff was a ‘visitor’ within the meaning of the Occupiers Liability Ordinance, Cap.314 (“the Ordinance”) to the factory of the 2nd defendant where this accident happened at the material time. 49.It is clear that under section 2(1) of Ordinance, the duty which an occupier of premises owes to his visitors are “in respect of dangers due to the state of the premises or to things done or omitted to be done on them.” 50.Again on the evidence of this case, there can be no doubt that the accident was not caused by any dangers “due to the state of the premises”. 51.Therefore what has to be considered in the case of the liability (if any) of the 2nd defendant to the plaintiff would really be in respect of any duty owed by the 2nd defendant, and whether there was breach of such duty, in respect of dangers due to things done or omitted to be done on those premises. 52.I have already found as a fact that the system of transportation of the calendering unit employed by the 1st defendant was itself a dangerous system of work. 53.Admittedly, that was something done and undertaken by the 1st defendant and his worker, the plaintiff. 54.However, it cannot be disputed that that system of transporting the calendering unit was done not only with the knowledge of the 2nd defendant as is shown in the evidence of Ip that on previous occasions he had seen a similar mode of transportation used for the calendering unit by the 1st defendant. It was also done with the assistance of the 2nd defendant since the equipment for such transportation was provided by the 2nd defendant, namely the pallet jacks and the bearing trolley. 55.Not only that, but also Ip did at the time, or even before this accident occurred, realized that such transportation employed by the 1st defendant was in his words “extremely dangerous”. Nevertheless, he still allowed the 1st defendant to continue such a system of transportation without so much as a caution or warning let alone preventing the 1st defendant from continuing with such unsafe system. 56.In short the 2nd defendant had permitted an unsafe system of transportation to be carried out in the 2nd defendant’s factory and which he knew or ought to have known would be dangerous either to the 1st defendant or the 1st defendant’s workers, or for that matter, any of the 2nd defendant’s own workers who may come close to the calendering unit when being transported in this way, all of those persons being ‘visitors’ as defined by the Ordinance and to whom a duty is owed by the 2nd defendant. 57.The 2nd defendant attempted to absolve its liability to the plaintiff in this case by submitting that since the 1st defendant was an independent contractor engaged by the 2nd defendant to repair the calendering unit and/or stentering machine, the 2nd defendant had no control over how they went about their repair work and therefore owed no duty to the 1st defendant or any of his workers including the plaintiff due to an accident arising from such repair works undertaken. 58.I do not accept that contention. Once it is conceded that the plaintiff is a visitor to the 2nd defendant’s factory where the accident occurred, the 2nd defendant owes to him the common duty of care. No distinction is drawn in the Ordinance whether the visitor is an independent contractor of the occupier or is a visitor to those premises on some other basis in so far as the common duty of care is owed by the occupier, save that section 3(3)(b) provides as follows:
Neither can subsection (3)(b) of section 3 cited above benefit the 2nd defendant in this case. 59.I do not accept in the context of this case that the unsafe system of transportation carried out by the 1st defendant and the plaintiff to be a special risk incidental to their calling as machine repair workers. That unsafe system of transportation was clear to anyone and everyone who was there to see it to realize that it was an unsafe system as was made clear from the evidence of Ip. Moreover, the 2nd defendant had a hand in that unsafe system in that it had supplied the equipment and therefore had assisted in perpetrating that unsafe system of transportation. 60.Lastly it was also submitted by counsel for the 2nd defendant that throughout the transportation form the place where the repair works was carried out until the calendering unit was back to in front of the stentering machine, but before it was pushed back to its original position, nothing untoward happened, therefore it was not the system of transportation which was unsafe or dangerous when the pallet jack and bearing trolley was used. Therefore since the cause of the calendering unit toppling down when it did, but when the actual transportation of it was over, that could not be put at the door of the 2nd defendant who had supplied the pallet jack and the bearing trolley for the transportation. 61.That submission did not find favour with me, since the finding made above was that the entire system of transportation was unsafe and dangerous. It is therefore not possible for the 2nd defendant to focus in on only that one point in time when the calendering unit toppled over, but that the entire unsafe system had to be looked at as being unsafe and dangerous. 62.I therefore find that the 2nd defendant, in assisting the 1st defendant by permitting its pallet jacks and bearing trolley to be used for the unsafe system of transportation together with the failure of the 2nd defendant through its supervisor Ip to stop such unsafe system of transportation as being a breach of the common duty of care owed by the 2nd defendant to the plaintiff in respect of this accident. 63.Accordingly, I find the 2nd defendant to be liable to the plaintiff for the accident, being in breach of the common duty of care under the Occupier’s Liability Ordinance. CLAIMS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ORDINANCE 64.A number of particulars of breaches have been pleaded by the plaintiff in his Amended Statement of Claim pursuant to various regulations under the Occupational Safety and Health Regulations. However in all those regulations contained in the pleadings, either the duty arises as employer or those regulations relate to “work undertaken by an employee at the workplace”. 65.In light of the concession by counsel for the plaintiff at start of trial that the plaintiff no longer contends the 2nd defendant to be his employer at time of the accident, those particulars pleaded under the Occupational Safety and Health Regulations cannot assist the plaintiff vis-à-vis the 2nd defendant. 66.In the case of the 1st defendant, it is not necessary to resort to the Occupational Safety and Health Regulations. 67.Accordingly, it is wholly academic, and therefore unnecessary to deal with this case under the Occupational Safety and Health Regualtions. CONTRIBUTORY NEGLICENCE 68.Contributory negligence had not been pleaded by way of defence by the 2nd defendant. 69.Indeed, counsel for the 2nd defendant confirmed at the trial that the 2nd defendant will not be relying on contributory negligence. 70.No Defence having been filed by the 1st defendant, needless to say that contributory negligence has neither been pleaded nor relied on by the 1st defendant who did not appear or take part in the trial. 71.In the circumstances, contributory negligence is not an issue which calls for determination in this case. QUANTUM Injuries and treatment 72.After the accident, the plaintiff was admitted into Yan Chai Hospital where he was diagnosed to be suffering from:
73.On the same day of his admission into Yan Chai Hospital, emergency decompression and fixation of left femur fracture together with reduction and fixation of the fractures to the right fingers were performed. 74.The fracture left clavicle and left distal radius were treated conservatively. 75.A second operation for debridement and suturing of left thigh wound was performed on 21 June 2000. 76.Because of the displacement of fracture left distal radius, a third operation for open reduction and fixation for the left wrist was performed on 12 July 2000. 77.A fourth operation was performed on 25 July 2000 for removal of the K-wires to the fingers of the right hand. 78.The plaintiff was discharged from Yan Chai Hospital on 30 November 2000 after an initial stay of over five and a half months. 79.The plaintiff was re-admitted to Yan Chai Hospital on 21 December 2000 due to sudden onset of left thigh pain. Clinical and radiological examination revealed signs of refracture of left femur with broken implants. 80.Accordingly, a fifth operation for revision fixation and bone grafting was performed on 27 December 2000. After a stay of a further three months in hospital the plaintiff was discharged on 21 March 2001 with protected weight bearing walking. 81.After discharge the plaintiff continued to be followed up at the out-patient clinic. 82.The plaintiff attended over 40 sessions of physiotherapy and between 30 to 40 sessions of occupational therapy. 83.The plaintiff was examined on 22 March 2003 by an orthopaedic expert, Dr Au Ka Kau (“Dr Au”) who was instructed as an expert witness by the plaintiff. By agreement of the parties Dr Au was not called to give oral evidence, but his report dated 29 March 2003 and a supplemental report dated 28 May 2003 was adduced into evidence. 84.After examining the plaintiff on 22 March 2003, Dr Au made the following findings :
85.The above impairment of the plaintiff all resulted form the injuries received by him from the accident on 10 June 2000. 86.X-ray examination carried out by Dr Au further showed the following :
87.Dr Au opined that the plaintiff had received appropriate treatment. His left shoulder stiffness would improve with intraarticular steroid injection and 30 sessions of physiotherapy treatment the cost of which would be HK$12,000 which would require two months to complete. Removal of the hardware from his left thigh and left wrist being optional. Since his fractures have healed in satisfactory alignment and the joints are well preserved, the plaintiff would not have a higher chance of developing osteoarthritis in the future. 88.The total upper limb impairment was assessed at 22% of the whole person, while the left leg impairment was assessed at 4% of the whole person. 89.Combining these two assessments together, Dr Au assessed the plaintiff’s total impairment from his injuries to be 25% of the whole person. 90.Dr Au further took the view that with such degree of impairment, the plaintiff was not fit to return to his pre-accident job, but fit for jobs of light or sedentary nature e.g. office assistant, receptionist, messenger, cashier, operator, security guard etc. 91.In his supplemental report dated 28 May 2003, Dr Au stated that he did not think it was impossible for the plaintiff to perform any kind of the jobs mentioned by him in his first report. 92.The plaintiff was also examined at a joint examination by Dr Chan Sai Keung (instructed by the plaintiff) and Dr Paul Lam (instructed by the 2nd defendant) on 30 November 2007. Their joint report dated 22 December 2007 was adduced into evidence without calling either of them to give oral evidence. 93.One new matter which emerged from this joint report of Dr Chan and Dr Lam not covered by Dr Au in his report (which was in 2003) was the fact that the implants implanted into the plaintiff’s left femur during the revision fixation in December 2000 had been removed some time in April 2004 and that the plaintiff was given a further one month sick leave after the removal of those implants. 94.In the joint report, Dr Chan assessed the total impairment to the plaintiff to be 19% of the whole person whereas Dr Lam assessed same to be 8% of the whole person. 95.Both Dr Chan and Dr Lam agreed that the plaintiff could not return to his pre-accident employment. Dr Chan took the view that the plaintiff was fit for jobs of a light or sedentary nature, while Dr Lam opined that the plaintiff should be able to carry out duties of moderate physical demand but should avoid squatting and prolonged standing. PAIN SUFFERING AND LOSS OF AMENITIES 96.The plaintiff claimed $550,000 in the Revised Statement of Damages under this head of damage. 97.At trial, however, counsel for the plaintiff submitted that $500,000 should be the proper award for PSLA in this case. 98.On the other hand, counsel for the 2nd defendant submitted that $400,000 would be the proper award under this head. 99.In this regard, I was referred by counsel for the plaintiff to the awards given in the following cases by way of guideline.
100.In the present case, I take into account the plaintiff suffered multiple injuries as stated above, was totally hospitalized for almost nine months, and had to undergo some five operations albeit that the experts were all agreed that his fractures have now healed and aligned satisfactorily. Nevertheless he is still left with considerable stiffness and limitation in movement although he is able to walk without assistance from even a walking stick. 101.From the medical evidence it would appear that the injuries and disabilities of the present plaintiff are less severe than the injuries to the plaintiff in the case of Poon Hau Kei cited above, but only slightly so. Moreover, there can be no doubt that the multiple injuries suffered by the present plaintiff far exceed the fracture to only the tibia and the tibia and fibula respectively in the case of Yusaf Ednan and also Poon Chung Fai cited above. 102.In my view a reasonable award for PSLA in the present case would be $500,000 as sought by the plaintiff. PRE-TRIAL LOSS OF EARNINGS 103.Prior to the accident, the plaintiff was employed full time by Tsing Ma Management Ltd at a basic monthly salary of $10,000 but with overtime allowances if required to do overtime work. Under that employment contract he was also entitled to a year-end bonus equal to one month’s salary. 104.The pre-trial period is 97 months. 105.There is agreement between the parties that the plaintiff’s sick leave period is 23 months from accident and during that sick leave, it is also agreed that his monthly earnings should be $13,000. 106.The loss of earnings therefore of the agreed 23 months of sick leave comes to $299,000. 107.There is no agreement relating to the remaining 74 (i.e. 97 – 23) months of the pre-trial period for which I will need to assess the pre-trial loss of earnings. 108.In this respect, there is evidence from the plaintiff that he was told by his treating doctors that they could only give him up to two years of sick leave and no more. At the time his sick leave expired, in June 2002, he was still relying on crutches. It was only in early January 2006 that he was able to find alternative employment cleaning container lorries in a container yard in Yuen Long. That job he has been able to retain right up to trial. 109.I accept that evidence of his and find that after his sick leave expired in June 2002, he was still not fit to return to work, even work of a lighter nature. 110.Although there is evidence from the medical report of Dr Au that when the plaintiff was examined by him in 2003, he considered that the plaintiff’s condition would allow him to take on lighter or sedentary work, bearing in mind that Hong Kong was in an economic doldrums at that time and the fact that the plaintiff is a person of low education, it is not unreasonable that he could not secure the alternative employment until early January 2006. 111.Therefore the assessment for the remaining 74 months would be on the basis of full loss of earnings but less the amount that the plaintiff was actually able to earn from January 2006 to date. 112.Counsel for the plaintiff suggested a multiplicand of $14,000 (instead of the $13,000 agreed for the sick leave period) for the remaining 74 months on the basis that it should take account of the year-end bonus. On the other hand, counsel for the 2nd defendant submitted that he was under the impression that the $13,000 had been agreed for the whole pre-trial period. 113.I do not accept the basis put forward by counsel for the plaintiff as I would have thought the agreement between the parties of the $13,000 earnings per month would have taken into account both the overtime payment as well as the year-end bonus. Accordingly, I would use the same multiplicand as agreed for the sick leave period. 114.Therefore the assessment is as follows :
115.Adding a further 5% for loss of MPF would give $931,350 which is the total pre-trial loss of earnings including loss of MPF. FUTURE LOSS OF EARNINGS 116.At the time of trial, the plaintiff is 53 years old. The parties have agreed a multiplier of 6 for future loss of earnings. 117.The dispute between them relates to the multiplicand to be applied. 118.Had the accident not happened, one can reasonably expect the plaintiff’s earnings to have increased somewhat since the economic situation in Hong Kong has picked up within the last couple of years. A conservative estimate for that would be, as suggested by counsel for the plaintiff, $14,000. 119.On the other hand, the present job he is doing pays him about $2,500 per month. That is because he is only required for four hours per day cleaning the container lorries in the yard. He is therefore effectively being paid for half a days work each day. 120.There is nothing in the medical evidence to suggest that the plaintiff cannot do a full day’s work. In the current economic climate in Hong Kong, it should not be difficult for the plaintiff to find a second job even if it is for cleaning cars in the afternoon of each day to supplement his present income. 121.Although counsel for the plaintiff accepts that his present income can be taken to go up to $3,000 per month for the calculation of future loss of income, I am of the view that the plaintiff should be able to earn something in the region of $6,000 in the present condition he is in. 122.Future loss will therefore be assessed on the basis of ($14,000 - $6,000) x 12 x 6 giving $576,000. Adding a further 5% for loss of MPF will give $604,800 which is the total loss of future earnings including loss of MPF. SPECIAL DAMAGES 123.A large part of the special damages claimed have been agreed between the parties in the amount of $51,127.60 which covers medical expenses, travelling expenses for the family, tonic food, medication, a walking stick, IDD calls to the family in China and loss of four months wages for the plaintiff’s wife. 124.What is left in dispute between them, and which needs to be determined and assessed by the court relates to the costs incurred by the plaintiff for his sister’s (Waan Chuen Ying) visit to Hong Kong (from China) after the plaintiff’s accident for which the plaintiff claims a further amount of $13,500 which is made up as follows :
125.The evidence from the plaintiff was that his sister, Waan Chuen Ying, is s a qualified doctor in Mainland China. After the plaintiff had the accident, his sister came to Hong Kong specifically wanting to bring the plaintiff back to Mainland China for treatment out of concern for his well-being. However, because his hands and legs were “hung up” in his hospital bed, and seeing that she gave up that idea, but instead stayed behind to massage him each day during her stay here from about mid-June to mid-July 2000 while the plaintiff was in hospital. He paid for her airfare and gave his sister $4,000 cash for her living expenses in Hong Kong, totally $7,500 in all. In evidence he denied having paid her a further $6,000 for her services. 126.I accept that evidence from the plaintiff that the $7,500 was incurred in the way he said. On his evidence, since he denied having paid her the further $6,000 claimed for her services, this disputed item of special damage would be assessed at $7,500 only. 127.Therefore the total special damages assessed comes to $58,627.60 LOSS OF EARNINGS CAPACITY 128.There is a claim for loss of earnings capacity pleaded in the Revised Statement of Damages. 129.In the way that it is pleaded, that claim is misconceived to the extent that it is based on 24 months of the pre-accident earnings of the plaintiff. 130.The plaintiff having been compensated for loss of future earnings, at best the claim for loss of earnings capacity can only be gauged against the earnings from his alternative employment. 131.Given the severity of his injuries and it being multiple in nature plus the fact that there will be permanent disabilities left from those injuries, I am satisfied that the plaintiff will encounter some risk of handicap in the labour market in future if he should lose his present employment for whatever reason. 132.A reasonable compensation to the plaintiff for loss under this head would be $80,000 which would translate to be just over one year’s of his alternative employment. INTEREST 133.Interest will be awarded at 2% on PSLA from the date of the Writ. 134.For all special damages including pre-trial loss of earnings, interest will be awarded at half judgment rate from the date of accident. SUMMARY
CONCLUSION 136.There will be judgment in favour of the plaintiff against the 1st and 2nd defendant in the sum of $2,569,786.00 COSTS (ORDER NISI) 137.There will be a costs (order nisi) that the defendants do pay the plaintiff his costs of this action to be taxed if not agreed. 138.The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.
Mr Y.L. Cheung, instructed by Messrs Samuel Li & Co., for the plaintiff The 1st defendant Lo Kin Nam trading as Kar Kin Engineering & Supplier Co., in person — absent Mr Kent Yee, instructed by Messrs King & Co., for the 2nd defendant |
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