Razaq-akhtar v. Wang Hoi Transportation Ltd
Read the full judgment text of HCPI 303/2007 on BabelCite. This High Court CFI judgment.
1. The plaintiff claims against his former employer for loss and damage he suffered from an accident on 10 November 2004 at the warehouse at Marine Cargo Terminal, Hong Kong International Airport whilst he was on duty carrying carton boxes of about 35 kilos onto a pallet. He had sprained his back and sustained injury.
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HCPI 303/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 303 OF 2007 ----------------------
---------------------- Coram: Before Master Lung in Court Date of Hearing : 17 October 2008 Date of Judgment (Handed Down): 24 October 2008 ------------------------------------------ ASSESSMENT OF DAMAGES ---------------------------------------- Introduction 1.The plaintiff claims against his former employer for loss and damage he suffered from an accident on 10 November 2004 at the warehouse at Marine Cargo Terminal, Hong Kong International Airport whilst he was on duty carrying carton boxes of about 35 kilos onto a pallet. He had sprained his back and sustained injury. 2.The defendant has filed no intention of defend and as a result, default judgment has been entered on 22 June 2007, with damages to be assessed. 3.The defendant was absent on the date of the hearing. Upon proof that due notice had been given to the defendant for this hearing, the hearing for assessment of damages proceeded. 4.The defendant has not put in evidence to challenge the plaintiff’s evidence, including the expert’s evidence. I shall assess the plaintiff’s evidence on this basis. 5.The plaintiff is a Pakistani, aged 29 (date of birth 4 September 1979) and is married with 3 children. He was 25 years of age when the accident took place. Pain and suffering and loss of amenity 6.The plaintiff’s injuries and complaints are as follows:
7.The plaintiff still complains that he has intermittent pain in his lower back. The pain becomes more severe when he wakes up in the morning. He also has pain while sleeping at night and he cannot pick up things from the floor. The back pain comes on when he sits or stands for more than half an hour. He has to rest after walking for 1 hour due to the back pain. 8.According to the plaintiff’s medical reports [bundle tab 4-002 & 009], the summary of which are as follows:
9.After the accident, the plaintiff was treated at the A&E Department at the Princess Margaret Hospital where he was admitted for 3 days. He was later referred to the Orthopaedics and Traumatology specialist clinic. He had received 35 sessions of physiotherapy and 34 sessions of occupational therapy at the Princess Margaret Hospital. He had tenderness on his lumbosacral spine and persistent back pain. 10.The specialist, Dr. Wong, also takes the view that the plaintiff is unable to return to his previous job at the cargo company. He needs to change to jobs of lighter nature, which do not require heavy lifting such as clerical duties, petty office work, cashier, car park attendant and security guard. [4-010] 11.Counsel for the plaintiff refers me to the following cases:
12.Counsel for the plaintiff refers me to case 1 specifically and submits that the injury in that case is very similar to this case. She proposes $300,000 for this item, relying on case (a) above, in which the court awarded $280,000 to the plaintiff. Having considered those cases, I award $280,000 to the plaintiff for this head of claim. Pre trial loss of earning and MPF 13.I accept that the plaintiff was earning $10,500.00 per month immediately prior to the accident. 14.In the statement of damages, the plaintiff concedes that his sick leave should end on 16 August 2005, although he had obtained sick leave from the hospital until 1 November 2005. [3-010] I shall adopt 16 August 2005 as the end of his sick leave. The plaintiff gives evidence that he had gone back to Pakistan for more than 3 months. He did not work from 16 August 2005 until 1 March 2006. I find no evidence to support that he had difficulty in finding a job as a security guard during that period of time. I therefore disallow the pre-trial loss for the period from 17 August 2005 to end of February 2006. 15.As on 17 October 2008, the date of the assessment, the plaintiff’s pretrial loss of earning will be:
His total pre-trial loss is: $[101,430+43,312.50+8,400.00+83,317.50] = $236,460 Post trial loss of earning & MPF 16.I accept Dr. Wong’s medical opinion that the plaintiff is unable to return to his previous job and he has to change to jobs of lighter nature that do not require heavy lifting. He is suitable for a security guard. 17.The plaintiff was 25 years old at the time of the accident and he is now 29. Counsel for the plaintiff submits that the appropriate multiplier for this case is 15. Having considered the cases submitted and in particular, Choi Ying Chi v Loyal Engineering Ltd. HCPI 53 of 2006 submitted by Plaintiff’s counsel, in which the Judge held that the court should take into consideration the nature of the work that plaintiff was doing before the accident. The Judge held that given the evidence that the plaintiff, a fitness trainer, was engaged in heavy type of work pre-accident, one could not reasonably expect a person to be engaged in such work until the normal retirement age for most people. [para.153]. In that case, the plaintiff was 31 years old at the trial and the Judge awarded him the multiplier of 12. I respectfully agree with the Judge’s approach. I consider that appropriate multiplier should be 13. 18.The total sum for the post trial loss of earning and MPF is $[10,500-5,500] x 12 x 13 x 1.05=$819,000.00 Loss of earning capacity 19.The plaintiff claims $100,000.00 for loss of earning capacity. 20.Given the medical evidence in this case, I accept that the plaintiff may suffer chronic back pain. There will be a real risk that the plaintiff will suffer a disadvantage in the labour market in future. I have taken note of the decision in Choi Ying Chi v Loyal Engineering Ltd. HCPI 53 of 2006 under the same head of claim. Taking all factors into account, I award $80,000.00 to the plaintiff to compensate for his loss under this head of claim. 21.I accept the plaintiff’s claim for $6,000.00 for other special damages. Summary
22.Interest will be awarded for PSLA at 2% per annum from the date of the writ until the date hereof and thereafter at the judgment rate until payment. Interest on pre-trial loss of earnings and other damages at half the judgment rate from the date of the accident until the date hereof and thereafter at the judgment rate until payment. 23.I make an order nisi that the Plaintiff shall have the costs of this assessment of damages, to be taxed if not agreed. The Plaintiff’s costs are to be taxed in accordance with the Legal Aid Regulations. This costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.
Miss Elizabeth Yang instructed by Messrs Massie & Clement for Plaintiff Defendant in person absent |
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