Ha Ka Hei v. Décor One Design & Engineering Ltd
Read the full judgment text of HCPI 105/2010 on BabelCite. This High Court CFI judgment was delivered on 17 June 2011.
1. By the writ issued on 10 March 2010, the Plaintiff claimed damages for personal injury, loss and damage sustained in the course of his employment arising out of the negligence of the Defendant, his former employer, on 13 August 2007.
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HCPI 105/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 105 OF 2010 _________________________ BETWEEN
_________________________ Coram : Before Master K.K. Pang in Court Date of Hearing : 13 June 2011 Date of Judgment : 17 June 2011 ___________________________ ASSESSMENT OF DAMAGES ___________________________ 1.By the writ issued on 10 March 2010, the Plaintiff claimed damages for personal injury, loss and damage sustained in the course of his employment arising out of the negligence of the Defendant, his former employer, on 13 August 2007. 2.Under action DECE No. 1456 of 2008, judgment was entered in favour of the Plaintiff (as the Applicant) against the Defendant (as the Respondent) on 5 February 2010 for the sum of HK$775,254.67 (on top of advance payments in the sum of HK$20,500 already received by the Plaintiff) together with interest and costs. 3.The Defendant has not entered an appearance in this action. No notice of intention to defend having been given, on 5 May 2010 it is adjudged that the Defendant do pay the Plaintiff damages to be assessed and costs to be taxed. 4.The Plaintiff has petitioned to wind up the Defendant for its failure to pay the judgment debt under the Judgment dated 5 February 2010. An order to wind up the Defendant was made on 8 September 2010. With the consent of the joint and several provisional liquidators of the Defendant company and by the Order of Master Hui dated 20 September 2010, the Plaintiff was granted leave to continue this action against the Defendant. 5.By the Order of Master J. Wong dated 19 October 2010, it is ordered that : -
6.The Defendant has made default in compliance with any part of the above order. 7.By the order of Master A. Chow dated 4 March 2011, it is ordered that the Plaintiff do have leave to set this action down for assessment of damages before a Master. 8.The Plaintiff’s solicitors have filed affirmations of service showing that:
have been duly served on the registered office of the Joint and Several Provisional Liquidators. 9.I am satisfied that I should allow the Plaintiff to proceed with the Assessment of Damages in the absence of the Defendant today. 10.The Plaintiff testified. His witness statement filed on 18 September 2010 do stand as his evidence-in-chief. By and large, I find that the Plaintiff is a truthful witness. I accept his evidence. Injuries 11.At the accident, the Plaintiff fell from a working platform of over 3 meters in height, hitting his head on right temporal side. He suffers from right eye traumatic optic neuropathy with blurred vision and visual defect. The injury to the Plaintiff’s right eye is serious. He was treated with megadose intravenous pulse steroid, which was completed on 17 August 2007. He was discharged home on 17 August 2007 for follow up treatments. After treatments and improvement, there is now still a 35% visual impairment and a 7% acuity-related impairment. The visual field defect of right eye is 30%. He also suffers from impaired binocular visual function including stereopsis, fine vision discrimination and depth perception. His present condition is permanent and irreversible. Orthopaedically, resulting from the fall, the Plaintiff has been suffering from neck and lower back pain. PSLA 12.After having taken the following cases for reference: -
I find that an appropriate award is $400,000. Pre-trial loss of earnings and MPF 13.The Plaintiff earned $500 per day. This figure is consistent with the statistics of C&S Department. He said he worked 26 days a month. I am prepared to adopt $13,000 as his pre-accident monthly salary. 14.Dr. Tsui is of the opinion that the Plaintiff should not resume his pre-accident occupation and should not work in a hazardous environment such as construction site and at height, and not to operate dangerous machinery. I agree. 15.He is entitled to claim full loss of earnings during the sick leave period (about 4 months) : $13,000 x 4 x 1.05 (MPF) = $54,600. 16.The Plaintiff is capable to work as a non-skill worker of sedentary nature after sick leave but he is still unemployed. The Plaintiff claimed full loss of earnings for the whole pre-trial period (46 months). He said he had been trying to look for job but gave no details of his efforts. During this hearing, the Plaintiff admitted that he could do dish washing but he had not look for the position of dish washer because he thought it was women’s job. In my view, he has not tried hard enough. I consider that the Plaintiff has not adduced satisfactory evidence providing that his unemployment is due to his incapacity. I consider that account should be given to the potential earnings of a non-skill worker of sedentary nature. Assuming the Plaintiff could secure a job 6 months after the sick leave, the Plaintiff’s pre-trial loss of earnings for the period from the time when sick leave ended should be as follows: - ($13,000 x 6) + ($13,000 - $5,824) x 36 x 1.05 = $349,252.8 Future loss of earnings and MPF 17.I accept that due to the Plaintiff’s injuries and his limited education and experience, the Plaintiff will only be able to work as a non-skilled worker of sedentary nature such as cleaner. According to statistics in September 2010, the average monthly income of a cleaner (lavatory) and cleaner (general) are $5,397 and $5,616 respectively. With the new law regarding minimum wage, I adopt $5,824 as the Plaintiff’s future income ($28 x 8 hours per day x 26 days per month = $5,824). 18.The Plaintiff is now aged 34. He was a casual worker working in construction site. After having taken the following cases for reference: -
I adopt a multiplier of 14. 19.Future loss of earnings and MPF would be ($13,000 - $5,824) x 12 x 14 x 1.05 (MPF) = $1,265,846.4. Loss of earning capacity 20.I am not convinced that by reason of his incapacity the Plaintiff is at risk on the labour market of non-skill works of sedentary nature. I make no award under this head. Travelling expenses and tonic food 21.The sum of $1,500 is reasonable. Future medical expenses 22.Due to latest progress of his conditions, the Plaintiff has withdrawn the claim for future medical expenses. Loss of future career advancement (as part of loss of future earnings) 23.The Plaintiff testified that before the accident, he was helping out with the electrician at the construction site. He said he was planning to study for an electrician’s licence. The Plaintiff was aged 30 at accident. Given his young age, I accept that when he becomes more experienced and skillful, he will earn more. I allow the Plaintiff’s claim for a lump sum of $100,000, which represents a loss of about $7,000 a year for his 14 years future working life. Summary
Interest 24.Interest is payable as follows: -
Costs 25.It is ordered nisi that the Defendant shall pay the Plaintiff costs of the Assessment of Damages to be taxed if not agreed. The Plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulation. This order nisi becomes absolute unless the Defendant has applied for varying the same within 14 days of service of this Order.
Mr. Simon Wong, instructed by Messrs. F. Zimmern & Co. for the Plaintiff. The Defendant being absent. |
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