Personal Injuries Action2006

CHOW KAI KIT v. INTERNATIONAL PAPER MANUFACTURING & DISTRIBUTION LTD AND OTHERS

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59361-EN-2007-12-03

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DCPI 1415/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1415 OF 2006

______________________

	CHOW KAI KIT (周啟傑)	Plaintiff
	and
	INTERNATIONAL PAPER MANUFACTURING & DISTRIBUTION LIMITED (國際紙業(香港)有限公司)	1^st Defendant
	馬金福	2^nd Defendant
	李漢泉	3^rd Defendant

______________________

Coram : Deputy District Judge Eddie Yip in Court

Date of Hearing : 19-21 November 2007

Date of Handing Down of Judgment : 3 December 2007

JUDGMENT

Background

1. The Plaintiff was the 3^rd Defendant’s employee. He was instructed to deliver some waste paper to the 1^st Defendant’s premises. The 1^st Defendant was a dealer of waste paper. The 2^nd Defendant’s was its employee, who was instructed to drive a forklift-truck. In the course of work, the 2^nd Defendant lost control of the fork-lift truck, which hit the Plaintiff’s finger. The Plaintiff suffered injury and loss of earnings.

2. The Plaintiff was awarded $115,306.67 against the 3^rd Defendant in DCEC 210/2006. The Plaintiff has just withdrawn the present action against the 3^rd Defendant. The 1^st and the 2^nd Defendants has agreed not to seek any contribution and indemnity from the 3^rd Defendant. The present judgment shall focus on the Plaintiff’s claim against the 1^st and the 2^nd Defendants.

3. I shall refer to the 1^st and the 2^nd Defendants as “the Defendants” unless the context dictates otherwise. There are 3 document bundles, A, B and C, for this trial. Take an example, “A34” means page 34 of Bundle A.

The Plaintiff’s claim

4. The Plaintiff originally claimed, but subsequently on 19 November 2007 abandoned, the item of loss of earning capacity $69,000.00.

The remaining claim is $856,685.00 (i.e., $925,685.00 – $69,000.00, at A35, A33 para. 15), which comprises:
(1) Pain, suffering and loss of amenities (“PSLA”) $220,000.00 (A34 para. 16);
(2) Pre-trial loss of earnings $223,700.00 (A31-32 para.9A);
(3) Pre-trial loss of mandatory provident fund (“MPF”) $11,185.00 (A32 para. 9B);
(4) Loss of future earnings $379,800.00 (A33 para. 12);
(5) Loss of future MPF $18,990.00 (A33 para. 13);
(6) Medical expenses $2,790.00 (A32 para. 9C);
(7) Traveling expenses $220.00 (A32 para. 9D);
(8) Interest (A34 para. 17-18);
(9) Costs (A27).

The Defence

5. Both contributory negligence and quantum are in issue.

The Plaintiff’s evidence

6. By consent, the Plaintiff’s written statement [A135-137] forms part of his evidence-in-chief.

7. He was born on 31 October 1975. Since 1^st February 2004, he was employed by the 3^rd Defendant as a delivery worker. On 18 February 2004 at about 3 p.m., the 3^rd Defendant instructed him to deliver some waste paper to the 1^st Defendant. The 1^st Defendant was a dealer of waste paper. The 2^nd Defendant was its employee, who drove a forklift-truck.

8. He arrived the 1^st Defendant’s premises with a colleague in a lorry. He tied a rope to a cage loaded with waste paper. He held the head of the rope at waist level for the 2^nd Defendant to drive up to take it up and lift up the cage. The 2

^nd Defendant drove the forklift-truck forward at a high speed but failed to stop in time. The Plaintiff’s right index finger was caught between the fork and the beam of the cage. He suffered profuse bleeding. He was sent to the hospital. About ½ inch of his fingertip was removed. He was given sick leave and medical treatments until 12 October 2004. On 13 October 2004, he resumed work with a lower income. He was right-handed. He suffered residual weakness and pain of the finger. He could not participate in snooker and badminton. He lost some friends and a close girlfriend.

9. His earnings were as follows:

Date Event Earnings@ month Duration
18 Feb. 04 Injury $11,500 ---
18 Feb. 04 - 12 Oct. 04 Sick leave $0 7 + months
13 Oct. 04 - 31 May 05 night job $5,000 7 + months
1 Jun. 05 - 31 Jan. 06 day job + night job $13,500 8 months
1 Feb. 06 - 30 Jun. 06 day job $8,500 5 months
1 Jul. 06 - 30 Jun. 07 day job $9,200 12 months
1 Jul. 07 - 21 Nov. 07 day job $9,390 4 + months
(Trial date)

10. At the time of the accident, he was 28 years old. At trial, he is 32 years old and single.

The Defendants’ evidence

11. The Defendants do not give evidence or call any witnesses.

This Court’s findings

12. I have considered both counsel’s full written submissions. I shall deal with such in due course.

On the Plaintiff’s evidence

13. I start with a point raised by the Plaintiff on the Defendants’ pleadings. The Plaintiff’s counsel submits (in para. 21 of Closing Submissions) that the Defendants have failed to specifically plead the issue of mitigation of loss on the part of the Plaintiff. The Defendants’ counsel then applies for an amendment of the defence pleadings.

14. The Plaintiff’s own case is that after sick leave, he had worked 2 jobs (earning more than before the accident) for some months but then worked only 1 job (earning less than before the accident). This state of events cries out for an explanation as he is claiming loss of earnings resulting from a decision to work only 1 job. The Plaintiff has to prove that the reason was injury-related. I do not think that the Defendants have to plead or prove the negative based on, say, a non-injury-related reason. The Plaintiffi’s accusation is groundless. There is no need to amend the defence pleadings.

15. Only a very general case of contributory negligence is put to the Plaintiff, who denies it. The Defendants are unable to challenge the Plaintiff’s evidence here. There is no evidence of contributory negligence. Liability wise, I find the Defendants fully liable to the Plaintiff. Quantum wise, however, the Plaintiff’s evidence, however, is challenged by the Defendants. I shall deal with such in due course.

PSLA

16. The Plaintiff originally claimed $150,000.00 in his Statement of Damages, dated 23 October 2006 [A28.5], but subsequently revised it to $220,000.00 in his Revised Statement of Damages, dated 7 November 2007 [A34]. The Plaintiff’s solicitors have somehow not included the Statement of Damages in the Trial Bundle for this Court. Owing to the injury, he stopped his favourite sport of badminton and snooker. He lost some friends and a close girlfriend. The Defendants argue that it should not exceed $100,000.00 as the Plaintiff’s injury was far below the “serious injury” category as set out in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.

17. The Plaintiff cites the following cases:

(1) In Yiu Pau Pau v Co-ray Design & Construction Limited DCPI 864/2006, the plaintiff worked as a carpenter. His left index finger was cut by the blade of an electric trimmer machine. He was left with residual weakness and stiffness of his left index finger. He was awarded $200,00.00;
(2) In Wong Wing Sun v Chan Man Kin HCPI 902/2002, the plaintiff was a professional driver. He sustained injuries in a traffic accident. He suffered head injury with amnesia, laceration at right elbow, right knee and nose, abrasion on both legs and right ankle fracture. He suffered residual weakness and stiffness of his right ankle. He was awarded $220,000.00;
(3) In Leung Lai Yin v Yeung Kei Chi HCPI 317/1999, the plaintiff worked as a carpenter. He lost balance. His left hand was cut by an electric circular saw blade mounted on a saw bench. His left index and ring fingers were partly amputated. His left middle finger was amputated. He was right-handed. He was awarded $400,000.00;
(4) In Chow Cheung Ching v Right Base Construction and Engineering Co. Ltd. [2002] 2 HKLRD 738, the plaintiff was an odd-job worker at the construction site. He lost balance. His left index and middle fingers were fractured and his left second toe was cut. He suffered residual numbness and stiffness of the index finger, deformity, pain and stiffness of the middle finger, and pain over the base of the toe, which had to be amputated. He was awarded $540,000.00.

18. The Defendants’ counsel cites the following cases:

(1) In Lee Tsz Kan v Climax Paper Convertors Limited HCPI 504/2003, the plaintiff was an electrical technician. He sprained his right thumb when operating a vacuum cleaner. There was no residual problem. He was awarded $50,000.00;
(2) In Khan Sujad v Ho Ho Kwong DCPI 339/2004, the plaintiff was an odd-job worker at the construction site. His left thumb was cut by an electric saw. He suffered residual weakness and stiffness of his left thumb. He was awarded $100,000.00;
(3) In Ho Shu Yau v Lo Siu Ling HCPI 1336/2000, the plaintiff was a worker at the construction site. His left right fingertip, 0.7 cm, was cut off by a metal pipe that he was helping to fix. He was right-handed. He suffered residual pain and stiffness of his finger joint. He was awarded $120,000.00;
(4) In Ng Tat Ping v Cho Shui Leung HCPI 646/2000, the plaintiff was an electrician apprentice. His left middle and ring fingers were cut by the metal sheets that he was carrying. He suffered residual weakness and stiffness of those fingers. He was awarded $150,000.00;
(5) In Chung Tat Ho v Au Hoi Lam Sub-contractor Ltd & Anor. HCPI 472/2003, the plaintiff was a formworker at a construction site. His left fingers were cut by a hand held rotary saw when he was cutting sheets of plywood. The middle finger was lacerated but fully recovered. However, the left index finger’s distal and intermediate phalanxes had to be amputated. He was right-handed. He was awarded $350,000.00;
(6) Leung Lai Yin v Yeung Kei Chi & Anor. (also cited by the Plaintiff).

19. I regard an award of $150,000.00 appropriate.

Pre-trial loss of earnings (and MPF) from 19 February to 12 October 2004

20. The Defendants do not dispute that the sick leave taken was reasonable and necessary. His pre-accident income from working for the 3^rd Defendant was $11,500.00 per month. During this period, he was given $12,000.00 by Waihong Environmental Services Ltd. (“Waihong”), his previous employer. He agrees that to have this deducted from his loss of earnings. I shall allow the sum of $77,058.75, which comprises:

(1) $4,107.14 (i.e., $11,500.00 x 10/28, from 19 to 28 February 2004);
(2) $80,500.00 (i.e., $11,500.00 x 7, in the 7 months from 1 March to 30 September 2004);
(3) $4,451.61 (i.e., $11,500.00 x 12/31, from 1 to 12 October 2004);
(4) Less: Credit for Waihong’s $12,000.00.

21. The corresponding loss in MPF would be $3,852.94 (i.e., $77,058.75 x 5%). I shall allow this sum.

Pre-trial loss of earnings (and MPF) from 13 October 2004 to 31 May 2005

22. There is no evidence to challenge his evidence that he could only get 1 job of 5,000.00 per month (i.e., a night job cleaning for Waihong) from 13 October 2004 to 31 May 2005. I accept his evidence here. I shall allow the sum of $48,225.81, which comprises:

(1) $2,725.81 [i.e., ($11,500.000 – $5,000.00) x 13/31, from 13 to 31 October 2004];
(2) $45,500.00 [i.e., ($11,500.00 – $5,000.00) x 7, in the 7 months from 1 November 2004 to 31 May 2005];

23. The corresponding loss in MPF would be $2,411.29 (i.e., $48,225.81 x 5%). I shall allow this sum.

Pre-trial loss of earnings (and MPF) from 1 June 2005 to 31 January 2006

24. According to the Revised Statement of Damages [A30 para. 5 and A31], the Plaintiff had taken a day job on top of the night job. The day job gave a salary of $8,500.00 per month. He has been doing the same job up to the present date of trial. When cross-examined, he reveals that a year-end double pay had not been included. His day job salary was therefore $9,208.33 (i.e., $8,500.00 x 13/12) per month. By doing both jobs, he earned $14,208.33 (i.e., $9,208.33 + $5,000.00) per month during this period. He does not claim any loss for this period as he earned more than his pre-accident income of $11,500.00.

25. For this period of 8 months, his total day job earnings were $73,666.64 (i.e., $9,208.33 x 8). His total night job earnings were $40,000.00 (i.e., $5,000.00 x 8). His total income was therefore $113,666.64. His pre-accident income would have been $92,000.00 (i.e., $11,500.00 x 8). His extra income was therefore $21,666.64 (i.e., $113,666.64 – $92,000.00). I shall deduct it from his eventual pre-trial loss of earnings.

26. The double pay would be part of the “relevant income” as provided for in the Mandatory Provident Fund Schemes Ordinance (Cap. 485). The corresponding gain in MPF for this period shall be $1,083.33 (i.e., $21,666.64 x 5%). I shall deduct it from his eventual pre-trial loss of MPF.

Pre-trial loss of earnings (and MPF) from 1 February 2006 to his quitting the night job on 2 April 2006

27. There are 3 versions as to when the Plaintiff quit his night job. First, the Revised Statement of Damages [A30, para. 6] stated “31 November 2005”. Second, in Court he says “ 31 January 2006”. Third, Waihong’s letter [Exh. P1] stated “2 April 2006”. He sticks to the second version but there is no justification for the discrepancies. This renders his evidence unreliable. I regard Waihong version (i.e., 2 April 2006) the most credible and reliable.

28. For this period of 2 months and 2 days (i.e., from 1 February to 2 April 2006), his total day job earnings were $19,030.55 [i.e., ($9,208.33 x 2) + ($9,208.33 x 2/30)]. His total night job earnings were $10,333.33 [i.e., ($5,000.00 x 2) + ($5,000.00 x 2/30)]. His total income was therefore $29,363.88. His pre-accident income would have been $23,766.67 [i.e., ($11,500.00 x 2) + ($11,500.00 x 2/30)]. His extra income was therefore $5,597.21 (i.e., $29,363.88 – $23,766.67). I shall deduct it from his eventual pre-trial loss of earnings.

29. The corresponding gain in MPF for this period shall be $279.86 (i.e., $5,597.21 x 5%). I shall deduct it from his eventual pre-trial loss of MPF.

Pre-trial loss of earnings (and MPF) from 3 April 2006 to the day of trial on 21 November 2007

30. He explains that he was not fit to do both the day job and the night job together due to the injury. Thus he resigned from the night job, which gave a lower income. Pursuant to the preceding paragraph, I adopt “2April 2006” as the day he quit the night job.

31. During the 10 months (i.e., from 1 June 2005 to 2 April 2006) that he had been working 2 jobs, he had been earning the full salary without deductions. This can be seen from the table of pre-trial loss of earnings [A31]. It is hard to believe that, given his complaint of weakness and exhaustion due to the injury, he had not taken a single day off. In my view, his loss of earnings was not due to his injury. I shall not allow any sum for this period.

32. I shall not allow any corresponding loss in MPF for this period.

Loss of future earnings

33. He is fit to take up an extra job that, coupled with his current job, can bring him his pre-accident income. I shall not allow any sum here.

Medical expenses

34. The Plaintiff’s medical receipts only amount to a total sum of $540.00 [A94-96]. Despite that, the Defendants are prepared to accept $646.00. I shall allow the sum of $646.00.

35. There is no evidence of tonic food. I shall not allow any sum here.

36. The Plaintiff claims joint medical report costs $948.00 [A92]. This is a subject for costs. I shall not allow any sum here.

Traveling expenses

37. There is no evidence of any traveling expenses. Despite that, the Defendants are prepared to accept $220 as claimed. I shall allow the sum of $220.00.

Total sum allowed

38. I shall allow the Plaintiff the sum of $253,787.75, which comprises:

(1) $150,000.00 for PSLA (para. 16-19 herein);
(2) $77,058.75 for pre-trial loss of earnings from 19 February to 12 October 2004 (para. 20 herein);
(3) $3,852.94 for pre-trial loss of MPF from 19 February to 12 October 2004 (para. 21 herein);
(4) $48,225.81 for pre-trial loss of earnings (and MPF) from 13 October 2004 to 31 May 2005 (para. 22 herein);
(5) $2,411.29 for pre-trial loss of MPF from 13 October 2004 to 31 May 2005 (para. 23 herein);
(6) $646.00 for medical expenses (para. 34 herein);
(7) $220.00 for traveling expenses (para. 37 herein);
(8) Less: Deduction of $21,666.64 for extra earnings for the period from 1 June 2005 to 31 January 2006 (para. 25 herein);
(9) Less: Deduction of $1,083.33 for extra MPF for the period from 1 June 2005 to 31 January 2006 (para. 26 herein);
(10) Less: Deduction of $5,597.21 for extra earnings for the period 1 February to 2 April 2006 (para. 28 herein);
(11) Less: Deduction of $279.86 for extra MPF for the period from 1 February to 2 April 2006 (para. 29 herein).

39. Of the aforesaid award, the Plaintiff accepts that he has to give credit for payment-in of $100,000.00 received from the Defendants.

The Plaintiff’s award in DCEC 210/2006

40. The Plaintiff has not received any payment from the 3^rd Defendant in DCEC 210/2006. The 1^st and the 2^nd Defendants concede that no credit shall be given for that in the present action.

Interest

41. Interest on PSLA shall be at 2% from the date of writ to the date of judgment and on pre-trial loss of earnings and MPF, and special damages at half of judgment rate. Interest after judgment shall be at judgment rate.

Costs

42. The Plaintiff has succeeded in his claim. Costs usually follow event. I now make an order nisi that the Plaintiff shall have the costs of the present action. This order shall be made absolute 14 days from today.

( Eddie Yip )
Deputy District Judge

Representation:

Mr. Louie Chan, instructed by Messrs. Peter C.O. Wong & Associates for the Plaintiff.

Mr. Simon Wong, instructed by Messrs. Chong & Partners for the 1^st and the 2^nd Defendants.

58828-EN-2007-10-17

CHOW KAI KIT v. INTERNATIONAL PAPER MANUFACTURING & DISTRIBUTION LTD AND OTHERS

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DCPI 1415/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1415 OF 2006

------------------------

BETWEEN

	CHOW KAI KIT (周啟傑)	Plaintiff
	and
	INTERNATIONAL PAPER MANUFACTURING & DISTRIBUTION LIMITED	1^st Defendant
	(國際紙業(香港)有限公司)
	馬金福	2^nd Defendant
	李漢泉	3^rd Defendant

------------------------

Coram :	His Honour Judge Thomas Au in Chambers
	(open to public)

Date of Hearing : 17 October 2007

Date of Delivering Reasons for Decision : 17 October 2007

Date of Handing Down Reasons for Decision : 17 October 2007

------------------------------------------------

REASONS FOR DECISION

------------------------------------------------

Introduction

1. This is the Plaintiff’s application for interlocutory judgment and interim payment for a reasonable sum against the 1st and 2nd Defendants.

2. At the hearing before me, Mr Chan, counsel for the Plaintiff, however indicated that the Plaintiff would not pursue his application for summary interlocutory judgment, and asked to have that part of the application withdrawn. I understand that Mr Chan only received late instruction to appear today.

3. I am now therefore only concerned with the application for interim payment.

The Plaintiff’s claim against the 1st and 2nd Defendants

4. The Plaintiff was employed by the 3rd Defendant.

5. In the course of carrying out his work under the employment, the Plaintiff suffered an accident and injury to his right index finger on 18 February 2004, when he was moving a cage of waste papers in the 1st Defendant’s workshop (“the Workshop”) in Kwai Chung.

6. The injury to the Plaintiff came as a result of a forklift truck (“the Forklift Truck”) hitting him. At that time, the Forklift Truck was driven by the 2nd Defendant, moving towards the cage of waste paper intending to lift and move it from a lorry and unload it at the Workshop.

7. The Plaintiff pleads and says that the 2nd Defendant was negligent in the way he manoeuvred the Forklift Truck which caused the accident. The Plaintiff also claims against the 1st Defendant for vicarious liability for the 2nd Defendant’s negligence. He further claims against the 1st Defendant for its breach of occupier’s liability and statutory duty under sections 2 and 3 of the Factories & Industrial Undertakings (Loadshifting machinery) Regulations (Cap 59G) in failing to ensure that the Forklift Truck was operated by a person holding a valid certificate. It is the Plaintiff’s case that the 2nd Defendant did not hold such a valid licence at the material time. This seems not to have been disputed by the 1st and 2nd Defendants.

8. As a result of the Accident, the Plaintiff’s right index finger was crushed and the tip of it was amputated with loss of the pulp exposing the distal phalanx. A revision amputation of the finger was done when he was hospitalized on the day of the Accident.

9. By way of the present action, the Plaintiff claims the 1st, 2nd and 3rd Defendants total damages in the sum of HK$760,049.50.

10. It is pertinent to note that the trial of the action is set down to commence in about one month’s time on 19 November 2007. The Plaintiff took out the present application by way of Summons on 24 September 2007, but apparently did not serve the same on the 1st and 2nd Defendants until 2 October 2007.

11. It is also noteworthy that:

(1) The 3rd Defendant has not paid the Plaintiff the employees’ compensation award in the sum of HK$115,306.67 pursuant to an order made on 26 April 2006.
(2) The Plaintiff says in his supporting affirmation that he has been under substantial financial pressure since the Accident.

The 1st and 2nd Defendants’ Defences

12. Other than accepting that the Plaintiff suffered the Accident and the injury to the right index finger, the 1st and 2nd Defendants put the Plaintiff to strict proof of all the material allegations, including the allegations of negligence, in support of the claim. Further, they plead that the accident was caused by the Plaintiff’s contributory negligence as well.

13. At paragraphs 5 and 6 of his witness statement, the 2nd Defendant says that before he started to move the Forklift Truck towards the place where the Plaintiff was with the cage of used papers, he shouted out loudly to inform the people present that he was moving the Forklift Truck. He then moved the Forklift Truck forward and raised the forklift. He felt a bump and came down to see what happened. He found the Plaintiff there, who told the 2nd Defendant that his right hand was hit.

14. In light of the witness statement, it appears at least to be part of the 1st and 2nd Defendants’ case that the Plaintiff was contributory negligent in not moving away from the passageway of the Forklift after he was alarmed of its imminent coming by the 2nd Defendant’s shout.

The present Interim payment application

15. Only O. 29 r. 11 (1)(c) is relevant to the present interim payment application.

16. O 29 r. 11(1)(c) provides that if it is satisfied that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent, the Court may, if it thinks fit and just, order interim payment in an amount not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account of any relevant contributory negligence.

17. Further, O 29 r 11(2)(a) provides that interim payment shall only be made in an action for personal injuries if it appears that the defendant is, inter alia, insured in respect of the plaintiff’s claim.

18. In the present case, there is no dispute that the 1st and 2nd Defendants are insured for the Plaintiff’s present claim, and thus O. 29 r 11(2)(a) is satisfied.

19. For O 29 r 11(1)(c), Mr Chan submits that, subject to the argument of contributory negligence, this is a simple case of accident where the 1st and 2nd Defendants are clearly negligent. His submissions are as follows: At the time of the Accident, the Plaintiff was standing in front of the Forklift Truck, necessarily required to be there to help to hook up the rope onto the forklift to enable it to lift the cage of waste papers. The 2nd Defendant was aware of that, but still manoeuvred the Forklift Truck in a way to hit the Plaintiff. In these circumstances, the 2nd Defendant must be negligent in the manner he drove the Forklift, of which the 1st Defendant is no doubt vicariously liable. The extent of contributory negligence (if any) on the part of the Plaintiff, even if taking the 2nd Defendant’s evidence to it highest, can only be very small and limited.

20. Mr Chan further submits that the apparent delay in the present application should not prevent the Court from exercising its discretion to grant interim payment. This is so because, firstly the Defendants (being insured) have not suffered any prejudice in the delay, and secondly, under the rule, the Plaintiff is entitled to make the application “at any time” after the writ was served on the 1st and 2nd Defendants.

21. Mr Wong, counsel for the 1st and 2nd Defendants, says he contests the application on 2 principal bases. One on the appropriateness to grant interim payment and the other on quantum.

22. On the question of the appropriateness to grant interim payment, Mr Wong submits that as a matter of practicality, the application should not be granted because the trial is only a month away, and it is thus more practicable to leave the matter to trial. It is also more practicable to leave it to trial because there are the uncertainties and questions of contributory negligence and apportionment of liability between the 1st and 2nd Defendants on one hand and the 3rd Defendant on the other hand, that need to be determined at trial. These questions would affect significantly the quantum of damages.

23. However, when pressed, Mr Wong fairly submits that:

(1) On the face of the evidence and the claim as pleaded, it is likely that the 1st and 2nd Defendants would be liable for some damages at trial.
(2) In the best-case scenario for the 1st and 2nd Defendants, the apportionment between them and the 3rd Defendant should be 50% and the Plaintiff’s contributory negligence should also be 50%. Thus, the 1st and 2nd Defendants’ should still be liable for 25% of the damages if they lose at trial.

24. For the question of quantum, Mr Wong says the court in considering granting interim payment should also take into account of (a) the fact that a substantial part of the claim for loss of pre-trial earnings in the sum of HK$88,000.00 in the form of sick leave should have been covered by the employees’ compensation award, (b) the potential possibility that the claim of HK$150,000.00 for PSLA may well be cut down at trial, and (c) the remaining chance of the Plaintiff’s not succeeding in his claim at all at trial or on appeal (if any), or the revision down of quantum of damages on appeal.

Discussions

25. In light of Mr Wong’s submissions as set out in paragraph 23(1) above, I accept Mr Chan’s submissions that on the face of the issues and evidence before me, and on a balance of probabilities, the Plaintiff is likely to recover some substantial (in the sense of not being insignificant) damages from the 1st and 2nd Defendants.

26. In the premises and coupled with the circumstances of the present case, including the fact that the Plaintiff has yet to receive the employees’ compensation from the 3rd Defendant, I accept that this is an appropriate case to order interim payment.

27. Also in light of Mr Wong’s submission on quantum above, and coupled with the fact that the 1st and 2nd Defendants have not put forward any positive case (in terms of pleading or evidence) in reply to the Plaintiff’s Statement of Damages, after making the necessary adjustments, I am of the view that an interim payment in the sum of HK$100,000 is appropriate in all the circumstances of the present case.

Conclusion

28. For the above reasons, I order that the 1st and 2nd Defendants do make interim payment to the Plaintiff in the sum of HK$100,000 within 14 days from today. The parties are at liberty to apply.

Costs

29. Although the Plaintiff is successful in his application for interim payment, having considered all the circumstances of the applications before me and counsels’ submissions, I have come to the conclusion that it is just and fair to make no order as to costs for both the summary judgment and interim payment applications in the Summons. My reasons can be briefly stated as follows.

30. Given that the Plaintiff only withdrew his application for summary judgment at the hearing, time and costs have been wasted by the 1st and 2nd Defendants in dealing with this part of the application. The Plaintiff should be required to pay the 1^st and 2^nd Defendants’ costs incurred and wasted.

31. At the same time, in relation to the interim payment application, although he is successful, the Plaintiff only for the first time indicated in Mr Chan’s skeleton submission filed the day before the hearing that he was seeking the sum in the region of HK$220,000. Mr Wong submits that had his clients (effectively the insurers) been given more time to consider this suggested quantum, the parties may be able to come to some offer or agreement on the quantum. However, given that the indication came so late in the day, his clients simply did not have sufficient time to consider the position to make any offer. They are thus left with no alternative but to contest the application today. In these circumstances, Mr Wong submits that the Plaintiff should not be entitled to his full costs under this application.

32. I believe Mr Wong’s submissions have some force. In the present day of case management, the Court encourages parties to behave reasonably with the aim to save costs and time. I agree that for the present case, with the aim of saving time and costs, a more reasonable way of conducting the present application is for the Plaintiff to have written and informed the 1st and 2nd Defendants well beforehand the amount of interim payment he was seeking to see if any favourable agreement could be reached between the parties.

33. In the premises and for the above reasons, by netting out the would have been costs liability under the two applications, I believe it is only just and fair to make no order as to costs for the Summons.

34. I also would like to thank counsel for their efficient and short submissions.

(Thomas Au)
District Court Judge

Mr Louie CHAN instructed by Messrs Peter C.O. Wong & Associates for Plaintiff

Mr Martin W.H. WONG instructed by Messrs Chong & Partners for 1^st & 2^nd Defendants

The remaining claim is $856,685.00 (i.e., $925,685.00 – $69,000.00, at A35, A33 para. 15), which comprises:
(1)	Pain, suffering and loss of amenities (“PSLA”) $220,000.00 (A34 para. 16);
(2)	Pre-trial loss of earnings $223,700.00 (A31-32 para.9A);
(3)	Pre-trial loss of mandatory provident fund (“MPF”) $11,185.00 (A32 para. 9B);
(4)	Loss of future earnings $379,800.00 (A33 para. 12);
(5)	Loss of future MPF $18,990.00 (A33 para. 13);
(6)	Medical expenses $2,790.00 (A32 para. 9C);
(7)	Traveling expenses $220.00 (A32 para. 9D);
(8)	Interest (A34 para. 17-18);
(9)	Costs (A27).

Date	Event	Earnings@ month	Duration
18 Feb. 04	Injury	$11,500	---
18 Feb. 04 - 12 Oct. 04	Sick leave	$0	7 + months
13 Oct. 04 - 31 May 05	night job	$5,000	7 + months
1 Jun. 05 - 31 Jan. 06	day job + night job	$13,500	8 months
1 Feb. 06 - 30 Jun. 06	day job	$8,500	5 months
1 Jul. 06 - 30 Jun. 07	day job	$9,200	12 months
1 Jul. 07 - 21 Nov. 07	day job	$9,390	4 + months
(Trial date)

(1)	In Yiu Pau Pau v Co-ray Design & Construction Limited DCPI 864/2006, the plaintiff worked as a carpenter. His left index finger was cut by the blade of an electric trimmer machine. He was left with residual weakness and stiffness of his left index finger. He was awarded $200,00.00;
(2)	In Wong Wing Sun v Chan Man Kin HCPI 902/2002, the plaintiff was a professional driver. He sustained injuries in a traffic accident. He suffered head injury with amnesia, laceration at right elbow, right knee and nose, abrasion on both legs and right ankle fracture. He suffered residual weakness and stiffness of his right ankle. He was awarded $220,000.00;
(3)	In Leung Lai Yin v Yeung Kei Chi HCPI 317/1999, the plaintiff worked as a carpenter. He lost balance. His left hand was cut by an electric circular saw blade mounted on a saw bench. His left index and ring fingers were partly amputated. His left middle finger was amputated. He was right-handed. He was awarded $400,000.00;
(4)	In Chow Cheung Ching v Right Base Construction and Engineering Co. Ltd. [2002] 2 HKLRD 738, the plaintiff was an odd-job worker at the construction site. He lost balance. His left index and middle fingers were fractured and his left second toe was cut. He suffered residual numbness and stiffness of the index finger, deformity, pain and stiffness of the middle finger, and pain over the base of the toe, which had to be amputated. He was awarded $540,000.00.

(1)	In Lee Tsz Kan v Climax Paper Convertors Limited HCPI 504/2003, the plaintiff was an electrical technician. He sprained his right thumb when operating a vacuum cleaner. There was no residual problem. He was awarded $50,000.00;
(2)	In Khan Sujad v Ho Ho Kwong DCPI 339/2004, the plaintiff was an odd-job worker at the construction site. His left thumb was cut by an electric saw. He suffered residual weakness and stiffness of his left thumb. He was awarded $100,000.00;
(3)	In Ho Shu Yau v Lo Siu Ling HCPI 1336/2000, the plaintiff was a worker at the construction site. His left right fingertip, 0.7 cm, was cut off by a metal pipe that he was helping to fix. He was right-handed. He suffered residual pain and stiffness of his finger joint. He was awarded $120,000.00;
(4)	In Ng Tat Ping v Cho Shui Leung HCPI 646/2000, the plaintiff was an electrician apprentice. His left middle and ring fingers were cut by the metal sheets that he was carrying. He suffered residual weakness and stiffness of those fingers. He was awarded $150,000.00;
(5)	In Chung Tat Ho v Au Hoi Lam Sub-contractor Ltd & Anor. HCPI 472/2003, the plaintiff was a formworker at a construction site. His left fingers were cut by a hand held rotary saw when he was cutting sheets of plywood. The middle finger was lacerated but fully recovered. However, the left index finger’s distal and intermediate phalanxes had to be amputated. He was right-handed. He was awarded $350,000.00;
(6)	Leung Lai Yin v Yeung Kei Chi & Anor. (also cited by the Plaintiff).

(1)	$4,107.14 (i.e., $11,500.00 x 10/28, from 19 to 28 February 2004);
(2)	$80,500.00 (i.e., $11,500.00 x 7, in the 7 months from 1 March to 30 September 2004);
(3)	$4,451.61 (i.e., $11,500.00 x 12/31, from 1 to 12 October 2004);
(4)	Less: Credit for Waihong’s $12,000.00.

(1)	$2,725.81 [i.e., ($11,500.000 – $5,000.00) x 13/31, from 13 to 31 October 2004];
(2)	$45,500.00 [i.e., ($11,500.00 – $5,000.00) x 7, in the 7 months from 1 November 2004 to 31 May 2005];

(1)	$150,000.00 for PSLA (para. 16-19 herein);
(2)	$77,058.75 for pre-trial loss of earnings from 19 February to 12 October 2004 (para. 20 herein);
(3)	$3,852.94 for pre-trial loss of MPF from 19 February to 12 October 2004 (para. 21 herein);
(4)	$48,225.81 for pre-trial loss of earnings (and MPF) from 13 October 2004 to 31 May 2005 (para. 22 herein);
(5)	$2,411.29 for pre-trial loss of MPF from 13 October 2004 to 31 May 2005 (para. 23 herein);
(6)	$646.00 for medical expenses (para. 34 herein);
(7)	$220.00 for traveling expenses (para. 37 herein);
(8)		Less: Deduction of $21,666.64 for extra earnings for the period from 1 June 2005 to 31 January 2006 (para. 25 herein);
(9)		Less: Deduction of $1,083.33 for extra MPF for the period from 1 June 2005 to 31 January 2006 (para. 26 herein);
(10)		Less: Deduction of $5,597.21 for extra earnings for the period 1 February to 2 April 2006 (para. 28 herein);
(11)		Less: Deduction of $279.86 for extra MPF for the period from 1 February to 2 April 2006 (para. 29 herein).

(1)	The 3rd Defendant has not paid the Plaintiff the employees’ compensation award in the sum of HK$115,306.67 pursuant to an order made on 26 April 2006.
(2)	The Plaintiff says in his supporting affirmation that he has been under substantial financial pressure since the Accident.

(1)	On the face of the evidence and the claim as pleaded, it is likely that the 1st and 2nd Defendants would be liable for some damages at trial.
(2)	In the best-case scenario for the 1st and 2nd Defendants, the apportionment between them and the 3rd Defendant should be 50% and the Plaintiff’s contributory negligence should also be 50%. Thus, the 1st and 2nd Defendants’ should still be liable for 25% of the damages if they lose at trial.