Lam Tuen Ming v. Perfect Logistics (HK) Ltd and Others

HCPI 200/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 200 OF 2011

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BETWEEN

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ASSESSMENT OF DAMAGES

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I. BACKGROUND

1.The plaintiff was a delivery man delivering goods in the premises of the 1^st defendant on 12 April 2008.  The 2^nd defendant, an employee of the 1^st defendant, was reversing a forklift truck which ran over the plaintiff’s right foot.  The 2^nd defendant then moved the forklift truck forward which unfortunately ran over the plaintiff right foot again.

2.The plaintiff was taken to the A&E Department of Yan Chai Hospital and was admitted to the Department of Orthopaedics and Traumatology.  He suffered a right lateral malleolus fracture along with soft tissue crush injury of the right foot.  He underwent an open reduction and plating of the right ankle operation 5 days later on 17 April 2008.

3.The plaintiff was admitted for 2 further operations for removal of screw and implants.  The last operation was performed on 25 June 2009.

4.The 1^st and 2^nd defendants did not attend any part of the current proceedings and Interlocutory Judgment against them was entered on 12 December 2011.  The case came before this Court for assessment of damages.

II. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

5.The plaintiff has suffered a fractured right ankle which required 3 surgical treatments spanning more than 1 year.

6.For a period of around 6 to 8 months after completion of treatment, the plaintiff still required crutches to walk.  He then used a walking stick for another 6 months or so.  He has also undergone 22 sessions of physiotherapy for treatment of the weakness and stiffness over his right ankle.

7.The “joint” single orthopaedics expert, Dr. Johnson K.C. Lam, examined the plaintiff on 24 September 2010.

8.In his report dated 27 September 2010, Dr. Lam found that the plaintiff should walk with a normal gait but still suffered from mild to moderate degree of residual pain and stiffness in his right ankle, and that there would be some restrictions on activities which required increased physical demand on his right ankle.

9.Dr. Lam was also of the view that the plaintiff should be able to return to his pre-injury sports activities.

10.In addition, the plaintiff complained of various urinary symptoms which he felt was related to pain-killers he took.  These complaints were not mentioned by Dr. Lam in his report.  Further, I note that the plaintiff is still complaining of such after he has stopped taking pain-killers some 4 years ago.  Therefore, on balance, I do not think that such complaints should likely be caused by his injury or the pain-killers he took at all.

11.The plaintiff claims HK$450,000 under this head in his Opening Submission.

12.After considering the above evidence and the cases including Chan Chi Shing v Chan Shu Kuen & Others, DCPI 229 of 2007; Lee Ka Kuen v Hung Shing Environmental Recycle Limited, DCPI 835 of 2005; Wong Woon Hei v Dickson Construction Co. Limited & Others, HCPI 521 of 2000; and Yip Chung Man v Secretary for Justice, HCPI 485 of 2001; I will award HK$300,000 under this head of claim.

III. PRE-TRIAL LOSS OF EARNINGS AND MPF

13.The plaintiff claims HK$540,119.78 under this head in his Opening Submission.

14.On the evidence of the plaintiff’s employment contract and Tax Return prior to the accident, I am satisfied that he earned HK$9,463.20 per month on average.

15.The plaintiff was granted sick leave from 12 April 2008 to 29 October 2009 (566 days) which Dr. Lam opined was appropriate.  Thus the loss of earnings and MPF for the sick leave period should be HK$9,463.20 x 566/30 x 1.05 = HK$187,465.99.

16.I also accept that the plaintiff has found some short term delivery jobs after 29 October 2009 but his income was only HK$50,100 in total due to his residual disabilities.

17.Thus, the loss of earnings and MPF from 29 October 2009 to trial (27 February 2013, or about 40 months) would be HK$(9,463.20 x 40 x 1.05 – 50,100) = HK$347,354.4.

18.The total claim under this head should be HK$(187,465.99 + 347,354.4) = HK$534,820.39

IV. FUTURE LOSS OF EARNINGS AND MPF

19.The plaintiff claims HK$619,526.88 under this head in his Opening Submission.

20.Given the plaintiff’s current age (52 years old) and Dr. Lam’s opinion on his reduced work capacity, I accept that the plaintiff may reasonably be expected to work about 4 hours a day for 20 days a month as a part-time delivery worker.

21.According to the statistics of the Census and Statistics Department, the average monthly salary of a delivery man in March 2012 was HK$10,181 which would translate to an hourly rate of about HK$49 assuming that the working hours are 8 hours a day for 26 days a month.

22.Thus the plaintiff would be expected to earn about HK$4,000 a month now.

23.I also accept a multiplier of 9 from now to the plaintiff’s expected retirement age of 65.

24.The claim under this head should therefore be HK$(9,463.20 – 4,000) x 12 x 9 x 1.05 = HK$619,526.88

V. LOSS OF EARNING CAPACITY

25.Taking all the evidence, I would award HK$48,000 under this head which represents12 months of earnings of HK$4,000.

VI. SPECIAL DAMAGES

26.I would award HK$3,760 for medical expenses which were supported by receipts.

27.I would award HK$5,000 as a reasonable claim for tonic food.

28.I would also award HK$2,590 as travelling expenses for return taxi trips to the 22 sessions of physiotherapy.

VII. EMPLOYEES’ COMPENSATION

29.The plaintiff will give credit for HK$185,599.92 he received as Employee’s Compensation.

VIII. SUMMARY

30.I summarise the above awards as follows:

	HK$
PSLA	300,000
Pre-trial loss of earnings and MPF	534,820.39
Future loss of earnings MPF	619,526.88
Loss of earning capacity	48,000
Medical expenses	3,760
Tonic food expenses	5,000
Travelling expenses	2,590
Less employees’ compensation	(185,599.92)
Total:	1,328,097.35

IX. INTEREST

31.Interest on PSLA to run at 2% per annum from date of writ to today.  Interest on Pre-Trial Loss of Earnings and Special Damages to run at half judgment rate from date of accident to today.

X. COST

32.I also make an order nisi that the 1^st and 2^nd defendants do pay the plaintiff’s costs of this action to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr I Lee of Messrs W K To & Co for the plaintiff.

The 1^st and 2^nd defendants acting in person and absent.