MUHAMMAD ASGHAR v. KWOK KONG MOON formerly t/a MAKOS ENGINEERING AND OTHERS

MUHAMMAD ASGHAR v. KWOK KONG MOON formerly t/a MAKOS ENGINEERING AND OTHERS

Award PSLA HK$140,000 because dominant right thumb fracture requiring surgical fixation warranted high PSLA though less severe than comparator Cheung Wai Kar; award loss of earning capacity HK$35,000 because plaintiff is capable of employment and faces a real and material disadvantage in the labour market despite not being employed at trial (Cook overrides a strict reading of Moeliker); findings on causation limited recovery to impairment percentages in medical report and pre-existing cervical degeneration reduced attribution to accident.

Citation
[2022] HKDC 1184
Parties
Plaintiff: Muhammad Asghar; 1st Defendant: Kwok Kong Moon formerly trading as Makos Engineering; 2nd Defendant: CASA 338 CATERING LIMITED; 3rd Defendant: Employees Compensation Assistance Fund Board
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
12 December 2022
Case Number
DCPI855/2018
Procedural Posture
Personal Injuries Action / Assessment of Damages (trial)
Outcome
Judgment for plaintiff against 1st and 2nd defendants for damages in the sum of HK$451,000 with interest and costs as ordered.
Legal Topics
Pain, Suffering and Loss of Amenity (psla), Loss of Earning Capacity, Quantum of Damages, Intervention by Fund Board, Medical Causation and Pre Existing Condition
Source Language
EN
Personal Injury Employers' Liability Workers' Compensation Civil Procedure Assessment of Damages Pain, Suffering and Loss of Amenity (psla) Loss of Earning Capacity Quantum of Damages Intervention by Fund Board +1 more

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Parties

Muhammad Asghar

Plaintiff

Kwok Kong Moon formerly trading as Makos Engineering

1st Defendant

CASA 338 CATERING LIMITED

2nd Defendant

Employees Compensation Assistance Fund Board

3rd Defendant

Procedural Posture

Personal Injuries Action / Assessment of Damages (trial)

Legal Issues

  1. 1 Appropriate quantum for PSLA for dominant right thumb injury requiring surgery
  2. 2 Whether plaintiff is entitled to damages for loss of earning capacity despite not being in employment at trial
  3. 3 Extent to which pre-existing cervical spondylosis affects causation and quantum

Ratio Decidendi

Award PSLA HK$140,000 because dominant right thumb fracture requiring surgical fixation warranted high PSLA though less severe than comparator Cheung Wai Kar; award loss of earning capacity HK$35,000 because plaintiff is capable of employment and faces a real and material disadvantage in the labour market despite not being employed at trial (Cook overrides a strict reading of Moeliker); findings on causation limited recovery to impairment percentages in medical report and pre-existing cervical degeneration reduced attribution to accident.

Court Disposition

Judgment for plaintiff against 1st and 2nd defendants for damages in the sum of HK$451,000 with interest and costs as ordered.

Orders

  • 1st and 2nd defendants to pay HK$451,000 to the plaintiff as damages
  • Interest on PSLA at 2% per annum from date of service of the writ until judgment, thereafter at judgment rate