Shauket Iqbal v. Wampum Engineering Company and Others

DCPI 963/2021

[2024] HKDC 236

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 963 OF 2021

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ASSESSMENT OF DAMAGES

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1.This is an assessment of damages in a personal injury case in which the plaintiff sustained cut injury to his left index finger in the course of his employment with the 1^st defendant. The 1^st defendant was a sub-contractor of the 2^nd defendant, which in turn was a sub-contractor of the 3^rd defendant, the principal contractor.

2.Interlocutory judgment was entered against the defendants on 13 January 2023 leaving damages to be assessed.

3.The Notice of Appointment for Assessment of Damages was served on the defendants on 2 November 2023 by post.  Further, the Court sent a notice of hearing for assessment of damages to the defendants on 2 January 2024.

4.The defendants did not attend the assessment hearing.  I was satisfied that notice of the assessment hearing had been duly given to the defendants.  It was their choice not to attend the assessment hearing, and I proceeded with the assessment of damages in their absence.

The plaintiff’s case

5.The plaintiff was the only person who testified at the hearing. He adopted his witness statement filed as evidence in chief.

6.The plaintiff was born in 1971 in Pakistan.  At the time of the accident, he was aged 46, and was employed as a general labourer earning a monthly sum of $20,800.

7.On 30 April 2018, the plaintiff was instructed by the 1^st defendant to operate a hand grinder to cut some bolts.  He held the grinder’s handle with his right hand and plugged it in, not knowing that it had been switched on beforehand.  The grinder twisted as soon as it was connected, and the plaintiff lost control of it.  As a result, the blade of the grinder cut the dorsum of the plaintiff’s left index finger.

8.At first, the plaintiff thought the injury was minor, and therefore continued to work after receiving first aid treatment.  He was also given lighter duties because of his injuries.  He worked on the following 2 days until 2 May 2018, when he felt that the pain had intensified.  Upon the advice of his employer, he went to seek treatment at the A&E Department of Kwong Wah Hospital.

9.According to the medical report of Kwong Wah Hospital dated 31 October 2018, the plaintiff’s laceration wound on his left index finger was already healing when he attended for treatment on 2 May 2018.  There was tenderness, swelling and yellowish discharge around the wound. X-ray showed no fracture.  He was admitted to the orthopaedics ward for further management.

10.Wound exploration and repair of the extensor digitorum tendon of the plaintiff’s left index finger was performed on 2 May 2018.  According to the medical report of the Orthopaedics & Traumatology Department of Kwong Wah Hospital dated 21 October 2018, the plaintiff’s left index finger wound was healed with minimal left index finger stiffness.

11.The plaintiff was referred to the Physiotherapy Department of Kwong Wah Hospital and was first seen there on 29 May 2018.  He completed 31 treatment sessions and was discharged on 18 October 2018.  The range of his left hand grip was improved to nearly full range, and it was only slightly limited at his left index finger.  His left and right grip power was improved to 14kg and 28kg respectively.

12.The plaintiff was assessed by the Occupational Therapy Department of Kwong Wah Hospital on 24 May 2018.  He attended a course of left hand training from 29 May 2018 to 18 October 2018.  Objective assessment revealed mild improvement of the active range of motion of his left index finger.  His left hand power grip strength was said to be poor in the report dated 16 April 2019.

13.Sick leave was granted to the plaintiff from 2 May 2018 to 3 April 2019.

Expert evidence

14.The Court directed on 22 September 2023 that the medical report prepared by Dr Wong Kwok Shing Patrick for the plaintiff dated 7 April 2021 be adduced as evidence without calling Dr Wong at the assessment hearing.

15.Dr Wong expressed the following views in his report:

(1)  The plaintiff sustained laceration left index finger with extensor tendon cut, which is consistent with the mechanism of accident he described, namely, cut by a grinder;

(2)  Active movement of the left index finger was mildly reduced when compared to the right side. Passive movement was full but with pain;

(3)  Power testing by pinch meter and dynamometer show weakened left hand pinch and grip strength;

(4)  Measurement of the arm and forearm muscles showed no significant difference;

(5)  Updated x-ray showed mild relative osteopenia left hand carpals and metacarpals compared to the right side;

(6)  The objective physical and radiological findings were consistent with reasonably satisfactory recovery with some residue;

(7)  The plaintiff has attained Maximal Medical Improvement for his injury sustained in the accident;

(8)  The plaintiff was unable to regain the previous strength at the time of examination probably because of his apprehension of pain during exertion.  However, there is a reasonably good chance that he can regain more strength using his left hand if he can overcome the apprehension [by] performing more strengthening exercises;

(9)  The plaintiff was estimated to have 3% whole person impairment for residual left index finger pain, reduced movement and weakness.  Considering his job nature as a construction site worker, he was estimated to have 4% loss of earning capacity as a result of the accident;

(10)  Agree with occupational therapist that the plaintiff will have difficulty working full duties of a construction site general labourer on heavy manual tasks described.  He may be able to work in construction sites on modified duties avoiding frequent heavy use of left hand, and can also work on less physical demanding jobs such as his current job as a security guard, or cleaning working, gas station worker, shop keeper;

(11)  Sick leaves granted by MAB up to 3 April 2019 were reasonable;

(12)  The overall prognosis for his left index finger injury should remain reasonably satisfactory. He was expected to have mild residual pain, mildly reduced movement and mild weakness using the finger in the long run, and the use of his left hand for heavy manual tasks would be mildly impaired; and

(13)  No ongoing symptomatic relief treatment or surgery would be required.

Factual findings

16.The plaintiff’s testimony is not subject to any challenge as the defendants have been absent in these proceedings.  He gave testimony in a straightforward manner and I accept his evidence.

17.Separately, I also accept Dr Wong’s evidence in his report.

18.Based on these factual findings, I now turn to each head of claim.

PSLA

19.The plaintiff claims a sum of $250,000 for damages for PSLA.

20.Mr Massie, solicitor for the plaintiff, referred me to the case of Ip Wing Cheong v Kam Lam trading as Kong Fung Decoration Works, DCPI 2457/2011 (unreported, 30 July 2015), in which the plaintiff’s left hand fingers and palm were injured by a portable electric circular saw.  While the little finger flexor tendon was repaired, the digital nerves and arteries were beyond repair.  He also underwent tenolysis and full thickness skin graft for his left little finger flexion contracture.  A sum of $250,000 was awarded under this head.

21.I have also considered various cases involving similar injuries, in particular that of Ng Tat Ping v Cho Shui Leung, HCPI 646/2000 (unreported, 13 June 2001).  In that case, the injuries were a 1 cm laceration on the left middle finger with 2 tendons cut partially and a 1.5 cm laceration on the left ring finger with 2 tendons completely severed.  The plaintiff was hospitalized for 4 days and received physiotherapy and occupational therapy thereafter.  About a month after the accident, one of the repaired tendons of his left ring finger ruptured again and he was re-admitted into hospital for another tendon repair operation which occasioned a 3-day stay in the hospital.  The plaintiff was assessed to have suffered a 2% impairment of the whole person by doctors.  The sum awarded was $150,000 under this head.

22.In the present case, after due consideration of the authorities, and having considered the nature of the plaintiff's injuries, I am prepared to award a sum of $200,000 under this head.

Pre-trial loss of earnings

23.Prior to the accident, the plaintiff had been employed by the 1^st Defendant as a general labourer since March 2018 with an average monthly earning of $20,800.

24.Upon the end of his sick leave on 3^rd April 2019, the plaintiff began working as a security guard, with an average monthly earning of $13,500.  At the time of the hearing, he was still employed as a security guard, with an increased monthly earning of $14,880 since May 2023.

25.Dr Wong opined that the sick leave granted to the plaintiff up to 3 April 2019 was reasonable.

26.Based on the above, I assess that the plaintiff’s pre-trial loss of earnings from the date of the accident to the date of assessment of damages as follows:

For the period from 30 April 2018 to 3 April 2019, when the plaintiff would have continued to work as a general labourer with monthly earning of $20,800

$20,800 x 11 months x 1.05 = $240,240

For the period from 4 April 2019 to 30 April 2023, when the plaintiff worked as a security guard with an average monthly earning of $13,500

($20,800 - $13,500) x 49 months x 1.05 = $375,585

For the period from 1 May 2023 to 9 February 2024, when the plaintiff’s monthly earning increased to $14,880

($20,800 - $14,880) x 9 months x 1.05 = $55,944

27.Accordingly, the total pre-trial loss of earnings shall be:

$240,240 + $375,585 + $55,944 = $671,769

Post-trial loss of earnings

28.Mr Massie submitted, with the aid of government statistics, that the earnings of general labourers increased by an average of 7.7% from April 2018 to October 2013, and therefore the plaintiff would have earned $22,402 per month should he have continued to work as such.  I find that proposition reasonable and I accept the figure suggested.

29.The plaintiff is currently earning $14,800 per month.  Given that the plaintiff would have earned $22,402 per month, the appropriate multiplicand for post-trial loss of earnings shall be:

$22,402 - $14,880 = $7,522

30.It was fairly accepted by the plaintiff that general labourers usually retire between the age of 60 and 65. Mr Massie suggested a multiplier of 8.79 as set out in the Revised Statement of Damages.  Having considered the relevant tables in Personal Injury Tables Hong Kong 2019, I find the suggested multiplier to be appropriate and will so adopt it.  

31.As a result, the plaintiff’s post-trial loss of earning shall be:

$7,522 x 12 x 8.79 x 1.05 = $833,092

Loss of earning capacity

32.The purpose of an award under this head is to compensate a plaintiff for the disadvantage that he may suffer as a result of the injuries caused by the accident. 

33.Taking into account the plaintiff’s current monthly earning of $14,880, the claimed sum of $100,000, representing a sum of slightly more than 6 months of his current salary, is deemed appropriate.

Special damages

34.The plaintiff claims $3,000 each for medical expenses, travelling expenses and tonic food, totalling $9,000. 

35.These expenses are not covered in full by receipts and vouchers.  In particular, there are no supporting documents at all for travelling and tonic food expenses.  Under the circumstances, while I am prepared to allow medical expenses in full, I am only minded to allow $2,000 for travelling expenses and tonic food, making a total of $5,000.

Summary

36.The damages awarded to the plaintiff are summarised below:

(a)	PSLA	$200,000
(b)	Pre-trial loss of earnings	$671,769
(c)	Post-trial loss of earnings	$833,092
(d)	Loss of earning capacity	$100,000
(e)	Special damages	$5,000
	Sub-total	$1,809,861
	Less: Employees’ compensation	($216,194)
	Total	$1,593,667

Interest and costs

37.Interest will be awarded at 2% per annum on damages for PSLA from the date of the writ. Interest on pre-trial loss and special damages will be awarded at half the judgment rate from the date of the incident.  The plaintiff’s solicitors are directed to calculate the amount of interest to be included in the judgment.

38.I make a costs order nisi against the defendants in favour of the plaintiff for the costs of the assessment of damages, including all costs previously reserved, to be taxed if not agreed.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.

Mr John Massie of Messrs Massie & Clement, assigned by the Director of Legal Aid, for the plaintiff

The 1^st, 2^nd and 3^rd defendants were unrepresented and absent