MUHAMMAD ISMAIL v. OR WAH
- Citation
- MUHAMMAD ISMAIL v. OR WAH
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- District Court
- Decision
- 24 December 2003
- Posture
- Personal Injury Workplace Accident; Damages Assessment / Assessment of Damages Following Interlocutory Judgment for Want of Defence; Final Judgment on Quantum
- Case number
- DCPI293/2003
- Language
- English
More details
- Court
- District Court
- Decision
- 24 December 2003
- Posture
- Personal Injury Workplace Accident; Damages Assessment / Assessment of Damages Following Interlocutory Judgment for Want of Defence; Final Judgment on Quantum
- Case number
- DCPI293/2003
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Liability was established by interlocutory judgment because the defendant failed to file a notice of intention to defend; quantum was determined by the judge on the evidence and by reference to comparable authorities, resulting in an award of damages totaling $358,706.34 less credit for ECC of $109,192.39, yielding final judgment for $249,513.95 together with costs to the plaintiff.
Court disposition
Judgment for the Plaintiff in the sum of $249,513.95; costs to the Plaintiff; Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
Orders
- Judgment for the Plaintiff for $249,513.95.
- Costs awarded to the Plaintiff.
- Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
02
Material facts
Parties
Plaintiff
Plaintiff Counsel: Miss Marlene Courbet (Lo, Wong & Tsui)Defendant
Defendant Counsel: In PersonAmounts and remedies
- Daily Wage (pre Accident): HKD 420
- Monthly Wage (pre Accident): HKD 10,920
- Monthly Wage (post Accident): HKD 7,000
- PSLA Awarded: HKD 80,000
- Loss of Past Earnings Awarded: HKD 187,880
- Loss of Future Earnings Awarded: HKD 47,040
- Loss of MPF Awarded: HKD 9,016
- Special Damages Awarded (medical): HKD 332
- Interest Awarded (total): HKD 34,438.34
- Total Damages Before ECC Credit: HKD 358,706.34
- ECC Award Credited: HKD 109,192.39
- Final Judgment Amount: HKD 249,513.95
- Estimated Operation Cost to Remove Foreign Body: HKD 8,000
03
Procedural history
Posture
Personal Injury Workplace Accident; Damages Assessment / Assessment of Damages Following Interlocutory Judgment for Want of Defence; Final Judgment on Quantum
04
Questions and positions
Legal issues
- 01
Whether and how much to award PSLA for ankle and wrist injuries
- 02
Calculation of past and future loss of earnings and MPF contributions
- 03
Appropriate interest to be awarded on different heads
- 04
Credit to be given for prior ECC award
Party arguments
- Applicant
- Plaintiff argued for damages based on medical evidence of ankle injury, cited comparable authorities assessing PSLA up to about $200,000 and provided calculations for past and future earnings loss, MPF, special damages and interest resulting in total claim figures.
- Respondent
- No defence filed and Defendant absent; no substantive contrary submissions on quantum.
05
Court’s reasoning
Legal principles
- 01
Court practice / interlocutory judgment entered in this matter (Wesley Wong, DCPI 145/2001)
Where no notice of intention to defend is filed interlocutory judgment may be entered and damages assessed against defendant
- 02
Cases cited in judgment (Hau Kit Ho v Starway; Lo Hing Fong; Lee Sze Wai) and the present judgment
Assessment of PSLA is fact-specific and may be guided by precedent of comparable injuries
- 03
Judicial assessment in this judgment
Past and future loss of earnings calculated by reference to pre- and post-accident earnings; future loss limited by accepted period of incapacity
- 04
Judgment calculations
Contribution to MPF calculated as percentage (5%) of loss of earnings over relevant periods
- 05
Judgment (Wesley Wong, DCPI 145/2001)
Interest on non-PSLA pecuniary heads may be awarded at a different rate and for differing periods; PSLA awarded interest at 2% from date of writ to judgment in this case
06
Ratio, limits and disposition
Ratio decidendi
Liability was established by interlocutory judgment because the defendant failed to file a notice of intention to defend; quantum was determined by the judge on the evidence and by reference to comparable authorities, resulting in an award of damages totaling $358,706.34 less credit for ECC of $109,192.39, yielding final judgment for $249,513.95 together with costs to the plaintiff.
Obiter and limits
- Judge observed the plaintiff's injuries were less severe than certain cited fracture cases and therefore PSLA was reduced to $80,000
- Medical opinion indicated removal of foreign body (cost ~$8,000) would eliminate permanent impairment
- Judge noted plaintiff's age and accepted one year for loss of future earnings
Court disposition
Judgment for the Plaintiff in the sum of $249,513.95; costs to the Plaintiff; Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
- Judgment for the Plaintiff for $249,513.95.
- Costs awarded to the Plaintiff.
- Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
Source and reliance status
District Court · 24 December 2003
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
District Court
Judgment· 24 December 2003
bjbj Damages The Plaintiff was employed by the Defendant as a general labourer. He was paid $420 a day working 26 days a month. His wage was therefore $10,920.00 per month. On 8 September 2000 the Plaintiff was told to use a small pneumatic drill to remove tiles and the bit at the end of the drill broke off and hit his right ankle and right wrist. On 24 June 2003 the Plaintiff through his solicitors filed the Writ of Summons with only an indorsement of claim. There was no acknowledgment of service filed. On 21 July 2003 Interlocutory Judgment was entered with damages to be assessed on the ground that no notice of intention to defend was filed by the Defendant. His Injuries On 8th September 2002 he was admitted to Pamelda Youde Nethersole Eastern Hospital. He was discharged the next day. The finding was that he had a wound about 2 mm over medial side of right ankle with swelling and a foreign body in his right ankle, superficial abrasion over his right wrist. He had follow up treatment until 20 February 2001 and was given sick leave from 9 September 2000 to 20 February 2001. He could walk well and ankle movement was normal though he said he still experienced pain over his ankle. There was no bone or joint deformity. He was 60 at the time of the accident. He could not return to his original work. He now works as a security guard earning about $7,000 a month.
PSLA Dr Wong Kwok Shing is of the view that if the Plaintiff has the foreign body removed by operation there should be no permanent impairment. The operation would cost about $8,000. The abrasion on the wrist was trivial. The Plaintiff has fully recovered. According to Dr Wong he walked well and ankle movement was normal. Miss Courbet for the Plaintiff cited a number of cases which assessed PSLA to be around $200,000. Hau Kit Ho v Starway International Development Ltd. DCPI 329 of 2002. In that case the Plaintiff suffered fracture of left lateral malleolus. Open reduction and abridgment resulted in good alignment. She was in splint 4 weeks and then crutches for 2-3 months. PSLA was $200,000. Lo Hing Fong v Chan Chi Shing DCPI 66 of 2001. The Plaintiff suffered fracture of nasal bone resulting in 1% impairment. The Plaintiff had recovered. PSLA was $100,000. Lee Sze Wai v Law Chi Kin DCPI 44 of 2001. The Plaintiff suffered fracture of second metatarsal of left foot. Leg plaster was applied but removed the next day. PSLA was $150,000. The Plaintiff had no fracture and the injuries were by far less severe than those cases. I assess PSLA to be $80,000. Loss of Earning The Plaintiff was given sick leave from 9 September 2000 to 7 February 2001. The loss of earning during that period was therefore $10,920 x 5 months = $54,600.00. After 7 February 2001 until 10 December 2003 is
$(10,920 7,000) x 34 months = $133,280.00. His total loss of earning from 9 September 2000 to 10 December 2003 is therefore $(54,600 + 133,280) = $187,880.00. Loss of Future Earning As the Plaintiff is now 63 years of age I accept the Plaintiff s claim for 1 year. His loss of future earning is therefore $(10,920 7,000) x 12 months = $47,040.00. Loss of MPF From February 2001 to 10 December 2003 is $(10,920 7,000) x 5/100 x 34 months = $6,664.00 From 10 December 2003 to 4 December 03 is $(10,920 7,000) x 5/100 x 12 = $2,352.00 Special Damages Hospital fees $68 Follow up visits $264 Total $332 Interest PSLA at 2% from date of writ to judgment is $80,000 x 2/100 x 5 months = $8,800. Special damages Loss of earnings $187,880 Loss of MPF $9,016 Special damages $322 at 4% is $197,218 x 4%/12 x 39 months = $25,638.34. Total PSLA $80,000 Loss of earning $187,880 Loss of future earning $47,040 Loss of MPF $9,016 Special damages $332 Interests $34,438.34 Total $358,706.34 The Plaintiff was awarded $109,192.39 under the ECC proceedings. Giving credit for the award under ECC, the damage assessed is therefore $(358,706.34 109,102.39) = $249,513.95. In the premises there be judgment for the sum of $249,513.95. Costs to the Plaintiff. The Plaintiff s own costs to be taxed in accordance with Legal Aid Regulations. (Wesley Wong) District Judge Miss Marlene Courbet of Messrs. Lo, Wong & Tsui Assigned by D.L.A. for the Plaintiff. Defendant : In Person, Absent. -
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