Wong Wan Tak v. Suen Yiu Pan t/a Chiu Kee Saw Mill and Another

CACV000061/1991

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Kempster & Clough, JJ.A.

Date of hearing: 9 July 1991

Date of delivery of judgment: 9 July 1991

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JUDGMENT

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Sir Derek Cons, Ag. C.J. delivered the judgment of the court:

1. On 25th May 1985 the appellant, then aged 50 years, was working in the defendant's sawmill in Tuen Mun. He hard been employed there for some 15 years and had risen to the position of captain-in-charge of a gangsaw machine. At the time of the accident which has given rise to these proceedings, he was sitting astride the machine knocking out steel wedges which held sawblades in position so that the blades could be replaced by sharper ones. As his hammer struck one particular wedge a splinter of metal flew off and into his right eye. He did not realise the seriousness of the accident at the time, thinking he had got sawdust in his eye, but next morning found he could hardly see. X-rays taken at Princess Margaret Hospital revealed the presence of the splinter, but due to the lack of  necessary equipment there to perform the appropriate operation, only an emergency job was done. The appellant was transferred to Queen Elizabeth Hospital where the splinter was removed a few days later.

2. After his discharge from hospital the vision in his right eye was very limited, he being able to make out the fingers of his hand only when six inches away. I take this detail, as I do all others, from the judgement of Judge Leonard sitting as a deputy judge in the court below. Despite follow-up treatment with steroids and antibiotics the appellant's condition did not improve. Rather did it get worse. Due to the severity of the injury he developed a complicated cataract in his eye together with other associated problems.

3. By June 1988 he could with that eye see only vague movements. The cataract was removed by an operation in December of that year. A re assessment in May last year, i.e. 1990, showed that when assisted by powerful lenses the distant visual acuity in his eye was 6/12, while at close range he ought to have been able to read normal type at a distance of 25 centimeters. His peripheral vision was also limited. A report of August last year showed that he also had sympathetic ophthalmitis, tractional retinal detachment and traumatic glaucoma. All of which were described as "vision-threatening diseases".

4. To add to his miseries his left eye had developed what we might in the circumstances term a natural cataract, which was removed by operation in September 1987, leaving his left eye in a  somewhat poorer condition than the right. It is highly unlikely that his vision is going to improve. On the other hand it may deteriorate.

5. In this appeal we are concerned only with damages for pain suffering and loss of amenities. Counsel for the defence submitted below that the injury was not sufficiently serious even to come within the lowest of the four categories of disablement defined by this court in Lee Ting Lam v. Leung Kam Ming (1980) HKLR 657. Counsel suggested $80,000 as an appropriate figure. The judge, after mentioning five unreported cases in which, save one, there was total loss of sight in one eye, and which had been drawn to his attention by Mr. Pritchard who appeared then as he does today for the appellant, concluded:

It is immediately apparent - and this is the sole ground of appeal - that he was in error to restrict the effect of inflation to the date of the accident. It is the standards current at the time of judgment that are relevant for the assessment of damages, as reference to p. 655B of the second of the two authorities to which the judge himself referred would illustrate. Mr Suen Yiu Pan, the proprietor of the sawmill and who appears today in person, suggests that in view of current attempts to curb inflation in Hong Kong we should disregard that factor in assessing the damages. slut, with respect to him, that would be contrary to all accepted principles in that field.

6. The proper approach is to be found in the judgment of this court at p. 653 of Lau Che Ping:

The five cases which Mr. Pritchard drew to the attention of the judge below, - four decisions of the court and one judgment by consent, - range from $150,000 in three instances, through $180,000 to $200,000; but in addition to the loss of vision in those cases, there is either severe facial disfigurement or the plaintiffs were youthful or young men. On the other hand, it is to be assumed that in those instances the remaining eye was in good condition and we note that all the awards are now some two to three years old. Having regard to these considerations we think the proper figure for damages in the present instance should be $170,000, which is consistent with the bracket of serious disablement as most recently updated in Lam Nam Fui and Others v. Wong See Mo [1991] 1 HKLR 361 and incidentally is hardly at variance with an adjustment of the award of the judge below in accordance with the tables published in the Annual Report on the Consumer Price Index 1990 of the Census and Statistics Department.

7. For these reasons the appeal is allowed and the figure of $170,000 substituted for the figure of $110,000 wherever it appears in the judgment below.

Representation:

Rodney Pritchard (M/s. Chan & Chuk) assigned by D.L.A. for plaintiff/appellant

Suen Yiu Pan, 1st defendant/respondent in person