Ng Kar Yiu v. Cheng Chung Lok and Others

HCPI000305/1997

1997 No. PI 305

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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Coram: The Hon. Mr. Justice Barnett in court

Dates of hearing: 22, 23, 24 and 25 September 1997

Date of handing down of judgment: 13 October 1997

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J U D G M E N T

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Introduction

1. This is a claim by the Plaintiff for damages for personal injuries which he suffered as a result of an accident on 14th August 1992 at his place of employment. The Plaintiff was badly injured. His right arm was amputated just below the elbow. His left hand was also damaged.

2. The Plaintiff was a machine technician and lathe operator. He was employed to repair machines or parts thereof belonging to customers and also to make spare parts which could be sold on demand. On the date of the accident, he was polishing a shaft rotating in a lathe. He was wearing 2 gloves on each hand. The gloves became entangled with the shaft. The Plaintiff's arm was dragged into the machinery so that he suffered injury.

3. The Defendants, whom I will individually call Mr. Cheng, Mr. Ma and Mr. Wong, are a partnership and were the Plaintiff's employers. They deny liability. They assert that the Plaintiff was an experienced technician, as indeed he was, who did not need training or instruction regarding safety precautions in relation to working on a lathe. The Defendants further aver that the accident was caused or contributed to by the negligence of the Plaintiff who, in breach of accepted safety procedures for polishing a piece of work on a lathe, held sand paper with both hands round the shaft which he was polishing. Further, the wearing of cotton gloves was in breach of accepted safety procedures of the trade, in breach of the Labour Department's Code of Practice and in disobedience of frequent warnings by Mr. Ma and Mr. Wong.

LIABILITY

The Plaintiff

4. The Plaintiff, who was born in China in January 1937 and who is now 60, came to Hong Kong in 1954. He became an apprentice in the operation and maintenance of machinery. After completing his apprenticeship, he became a machine technician until his accident in 1992. He came to know the Defendants in 1962 when they were co-workers. The Defendants left to set up their own business so that, after 1971, the Plaintiff was no longer working with them.

5. In June or July 1990, Mr. Ma offered the Plaintiff employment which, because the salary was higher, the Plaintiff accepted. The Plaintiff began to work for the Defendants in July 1990. Initially, the Plaintiff was paid $250 per day for about 26 days per month. In July 1991, his pay was increased to $280 per day. According to the Plaintiff, his duties were two fold. First, to repair machine parts for the Defendants' customers or, if the parts were broken or worn out, to make new parts. Second, when not engaged upon repairs, the Plaintiff made spare parts which were held in stock until required by customers. On his own initiative, the Plaintiff would also sweep up and clean the Defendants' premises.

6. In addition to his daily pay, the Plaintiff said that when he was offered employment, he was told that he would get double pay at the end of each year. At the end of the first year, he received $10,000 and at the end of the second year $8,000.

7. When working on the lathe or other machinery, the Plaintiff said that he wore cotton work gloves supplied by Mr. Ma. He said Mr. Ma was the only partner regularly at the factory because Mr. Cheng and Mr. Wong worked outside and were frequently in China on business. Mr. Ma also wore gloves when working on the machines in the factory. The Plaintiff said that neither Mr. Ma nor his two partners ever warned the Plaintiff about or scolded him for wearing gloves at work.

8. The work gloves were kept in a storeroom at the factory. The Plaintiff did not have a key. The storeroom was unlocked during working hours but the Plaintiff would not go in unless instructed to do so by one of the Defendants. According to the Plaintiff, Mr. Ma would fetch work gloves from the storeroom for the Plaintiff, sometimes providing him with 3 or 4 pairs at a time each week.

9. The Defendants' factory was about 1,000 sq. ft. The Defendants occupied only part of the factory. The rest was sub-let to various businesses in the same line of work. The Defendants had no employees other than the Plaintiff.

The Plaintiff's case

10. On the day of the accident, the Plaintiff completed the assignment given to him by Mr. Ma namely to install the nozzle in an oil pump. He finished this piece of work before 4 p.m. and, having no further instructions, tidied up the place. He then resumed work on a spare part on which he had been working on and off for about 4 days. The spare part was a metal shaft which the Plaintiff thought to be for hydraulic purposes and which would become spare stock. He proceeded to polish this shaft by placing it in the chuck of the lathe so that, when it rotated at speed, it would be polished by sand paper held by the Plaintiff.

11. The manner in which the Plaintiff polished the shaft is not entirely clear. Although he did not say so explicitly in chief, it appeared that the Plaintiff was using both hands to hold sand paper round the revolving shaft. That certainly is how the operation was described in a report prepared by a Factory Inspector, a report with which the Plaintiff initially agreed when it was put to him in cross-examination. Later in cross-examination, however, when asked whether there were alternative ways of polishing a shaft, the Plaintiff said that it could be done by wrapping sand paper round a file which was then held against the shaft. The Plaintiff said that the method to be adopted was one of personal preference and that he in fact had been using a file wrapped in sand paper at the time of the accident. He asserted that the suggestion put to him that he was simply holding the sand paper round the shaft was a frame-up by one of the Defendants.

12. Whichever method the Plaintiff was adopting, somehow the Plaintiff's work gloves on his right hand became entangled in the shaft or machinery and, when the Plaintiff tried to free himself with his left hand, he found both arms dragged round the shaft. He was unable to say precisely how this occurred. At all events, he shouted out.

13. At this time all of the Defendants were in the factory. They had spent the afternoon chatting to each other and to other occupants of the factory, about a metre or so away from the Plaintiff. Hardly surprisingly, the Plaintiff was confused about exactly what took place when he called out. It appears that Mr. Wong was first to react by turning off the main switch of the lathe. Mr. Ma and Mr. Cheng came to the Plaintiff almost immediately, probably with other persons. Who precisely then released him from the lathe, the Plaintiff was unable to say. There is no doubt, however, that according to the Plaintiff, all three Defendants reacted immediately and swiftly to the emergency. An ambulance was quickly called and the Plaintiff was taken to hospital where he was treated.

The Defendants' case

14. Mr. Ma gave the primary evidence on behalf of the Defendants. He confirmed that he had worked with the Plaintiff in the 1960's. He said that he also knew that the Plaintiff had fractured his right hand in 1964 while working on a lathe. The Plaintiff himself had confirmed in cross-examination that he had been injured by a spinning shaft. He could not remember, however, whether he was wearing gloves at the time because the accident happened so long ago.

15. After the Plaintiff began working for the Defendants, Mr. Ma initially said in chief that he did not see the Plaintiff wearing gloves when operating the lathe but only when moving objects or polishing. He corrected himself by saying he did see the Plaintiff wearing gloves while operating the lathe. He said that on the morning of 24th November 1990, he saw the Plaintiff at the lathe polishing something in the lathe and wearing gloves. He went to the Plaintiff and said "doing it this way is dangerous. Have your family in mind. We have both got families to support". Mr. Ma said that he used strong terms to the Plaintiff who looked angry when Mr. Ma told him not to wear gloves and spoke to other people in the factory saying that Mr. Ma had been scolding him. The Plaintiff then left the factory and did not return to work for a few days when he collected his pay on the first day of the month.

16. Apart from the incident on 24th November 1990, Mr. Ma said that he had seen the Plaintiff doing polishing work while wearing gloves on another occasion. He told the Plaintiff not to wear gloves and not just for polishing. He said that, even when working near the lathe, the Plaintiff should not wear gloves.

17. According to Mr. Ma on the day of the accident, between 3.00 and 4.00 p.m., he instructed the Plaintiff to carry out a maintenance job on a nut. He returned to his own work about 10 feet from the Plaintiff but with his back towards to the Plaintiff. After about an hour, he heard the Plaintiff cry out loudly and knew something had happened. He called out "switch off the machine". Mr. Wong was nearby and switched off the machine. Together they rushed to the lathe to help the Plaintiff. Mr. Wong tried to get the Plaintiff's hand out while Mr. Ma himself went to call for an ambulance. Mr. Ma also went to find Mr. Cheng who was in a plastic factory on another part of the same floor of the building. He did this because he did not himself know what to do.

18. It was only after the accident that Mr. Ma saw that the Plaintiff had been wearing gloves. When he gave the Plaintiff instructions for the maintenance job, he had not seen the Plaintiff wearing gloves and had not given any gloves to the Plaintiff. Any gloves worn by the Plaintiff, the Plaintiff would have fetched for himself from the storeroom which was not locked during the day.

19. Mr. Ma was referred to photograph C and D of exhibit D1. He confirmed that they showed the shaft in the lathe at which the Plaintiff had been working. The shaft was secured on the left in the chuck of the lathe. Sand paper was wrapped around the free end of the shaft immediately to the right of some rather coarse threads. Mr. Ma confirmed that this was the position immediately after the accident. Based upon over 30 years experience as a lathe technician, Mr. Ma considered that the Plaintiff's gloves became caught by the threads on the shaft which dragged the gloves, and the Plaintiff's hand with them, around the shaft thereby causing the injuries.

20. For his part, Mr. Ma said that he does not wear gloves when operating a lathe and other types of industrial machinery. As an apprentice, his master had seen him cleaning while wearing gloves and had scolded him for doing so. Later, when Mr. Ma himself was a master, he had seen people working on a lathe while wearing gloves and whose hands had been amputated. Even when operating drilling machines, he had seen people get hurt while wearing gloves.

21. Mr. Ma said that, even if a worker was using a file wrapped with sand paper to polish a shaft, the worker should not wear gloves to avoid any possibility of an accident. He added that, by using the sand paper as the Plaintiff had done, there would not be an accident like that which occurred if the sand paper had not been wrapped around the whole shaft. However, there would still be a chance that gloves, if worn, would get caught.

Assessment of the evidence

22. Mr. Ma's evidence was largely supported by that of Mr. Wong. Mr. Wong confirmed the circumstances in which the accident occurred and confirmed that the Plaintiff had been prone to wear gloves while working on the lathe and that the Plaintiff had been warned about doing so. Mr. Wong gave his evidence in a forth right manner, with a no-nonsense approach. He is typical of the hardworking proprietor of a small business who gets on with the work in hand in an uncompromising way. The result is modest but no doubt satisfying success. For the most part, I have no hesitation in accepting his evidence.

23. Mr. Cheng also gave evidence. He was able to confirm the events of the afternoon immediately before the accident, that is to say, that he was elsewhere in the premises until fetched by Mr. Ma when the accident occurred.

24. The Plaintiff gave evidence in a restrained and straightforward manner. He appeared to harbour no bitterness about his injuries or towards the Defendants. Notwithstanding his excellent demeanour, however, I am unable to accept the evidence of the Plaintiff on certain key issues, namely, how the accident occurred and whether or not the Plaintiff had previously received warning about wearing gloves while using the lathe. I come to this conclusion for a number of reasons:

1. The Plaintiff's explanation that he had been using a file covered with sand paper in order to polish the shaft came very late in the day. It may well be that the significance of this was not apparent when the statement of claim was drafted. The Defendants' allegation that the Plaintiff was using his hands to hold sand paper wrapped around the shaft was, however, plainly put in the defence in February 1994. In his reply, the Plaintiff admitted that he had been wearing gloves but otherwise denied the Defendants' allegations. He did not, however, advance a positive case that he had been using a file. Nor was there any mention of a file in the Plaintiff's witness statement made in April this year in which, rather vaguely, he said "I would hold the sand paper at fixed positions and moved horizontally along the shaft. By doing this, the entire external surface of the shaft would be polished in about two minutes". He said he had told his solicitors about using the file and, when asked by me why the file had not been mentioned either in his witness statement or any other documents, thought that his solicitor had missed it out. The Plaintiff was referred to the photographs and said that the way in which the sand paper was wrapped around the shaft was not his doing. He pointed out that, after his hands had been caught by the shaft and been disengaged with the help of others, it was unlikely that the sand paper would have remained in that position.

2. Immediately before advancing his evidence about the file, the contents of the Factory Inspector's report had been put to the Plaintiff. The Plaintiff agreed with the report which in part read "he held a piece of sand paper in his right hand and gripped around the shaft end". While I have no information as to who supplied those details to the Factory Inspector, those words are plain enough. The Plaintiff initially agreed with them.

3. Exhibit D1, photographs of the lathe taken by the Factory Inspector or his assistant after the accident, were admitted. According to Mr. Ma, these photographs were probably taken on the day following the accident. Mr. Ma, however, accompanied the Plaintiff to the hospital. His evidence was, and it is perfectly understandable, that he was shocked by the accident to the extent that he was unable to touch the lathe for 7 days after the accident. Mr. Wong and Mr. Cheng, however, remained in the factory after the accident. Mr. Wong said that one of two police officers who arrived soon after the accident cordoned off the lathe which was not touched before the Factory Inspector and his team arrived an hour or so later. It was then that the photographs were taken. I see no reason to doubt Mr. Wong's evidence. In general, as I have said, I found him to be an excellent witness. Mr. Ma I am satisfied was, understandably in the circumstances, confused about exactly what had taken place.

4. I recognise the force of the Plaintiff's point that, because of the efforts made by Mr. Wong and probably others to free the Plaintiff's hands, it would be unlikely that the sand paper would have remained so neatly wrapped around the shaft. The thrust of the Defendants' complaint against the Plaintiff, however, is that he was using gloves on the lathe in spite of frequent warnings. It seems improbable to me that the Defendants might, immediately after the accident, have appreciated that they might improve their position by wrapping sand paper around the shaft. Indeed, if anything, such an action could make their position worse because it might demonstrate that they allowed dangerous practices in their factory. The suggestion that the Defendants have not just reconstructed the scene but fabricated it is too machiavellian.

5. The Plaintiff's evidence was that the three Defendants and other occupants of the factory area had been standing by the Defendants' desk and chatting the whole afternoon since lunch time. This was taking place about 10 or 15 ft. immediately to the left of where the Plaintiff was working. Again, this seems to me improbable. Both Mr. Ma and Mr. Wong said that they had been doing their own work on other machines throughout the afternoon, although Mr. Cheng, who was not a technician and who was not often at the factory, agreed that he had spent the afternoon chatting some distance away across the factory space. Immediately before the accident Mr. Wong said that he had gone to answer a telephone call at the telephone next to the Plaintiff's lathe. Thus, he was in a position immediately to turn off the lathe when the Plaintiff cried out. I did not get the impression that either Mr. Ma or Mr. Wong are given to long periods of idle gossip. Their version of the events of that afternoon is more probable than not.

6. The Plaintiff's evidence was that he did not go into the factory storeroom because he was afraid that he might be accused of theft. In contrast, Mr. Ma and Mr. Wong both agreed that, while the storeroom was unlocked during working hours, the Plaintiff was free to fetch such tools and materials as he might need. Their position in relation to gloves, however, was less clear. In essence, they said that because of their concern that the Plaintiff should not wear gloves while working on the lathe, he should ask before collecting gloves and explain for what they were needed, for example, for cleaning or dismantling work. I find nothing surprising about the Plaintiff, a trusted worker and indeed a friend, fetching necessary tools and material as required. The factory undertaking is small and intimate. It would be surprising if the Plaintiff, as a sole and trusted employee, formally asked Mr. Ma or Mr. Wong for permission to fetch tools or materials every time he required them. By the same token, however, I do not accept that there was some restriction upon the Plaintiff fetching gloves. I am in no doubt that he fetched those as freely as anything else and that no restriction was put upon him. Gloves were admittedly worn for much of the work associated with the Defendants' business.

7. The Plaintiff in cross-examination denied that on 24 November 1990 (it was put as 25 November) he had been warned by Mr. Ma about wearing gloves. He said that he and Mr. Ma had been friends for decades so that there was no basis for Mr. Ma to warn him in strong terms. He agreed, however, that he left the factory on 25th November and did not report for work for a few days. He said that this was nothing to do with work but he gave no other explanation for his behaviour. So clearly there was an incident that day. In the light of the evidence, Mr. Ma's version seems more probable.

25. I do not, however, accept everything that the Defendants said. Mr. Ma and Mr. Wong each remembered a specific occasion on which they had warned the Plaintiff about wearing gloves while working on the lathe. They also said that, on other occasions, they had warned the Plaintiff about this practice when they saw him approaching the lathe while wearing gloves. Mr. Ma said that for 3 or 4 weeks the Plaintiff would heed a warning given to him, but would then resume wearing gloves at the lathe. As a result of this, both he and Mr. Wong increased their vigilance about what the Plaintiff was doing.

26. The Defendants' concern for the Plaintiff contrasted sharply with their general attitude to safety in the factory. In May 1992, the factory was subject to an inspection by the Labour Department. Following the inspection, the Defendants were presented with a list of defects to be remedied. These defects included lack of covers for drilling and grinding machines. Mr. Ma said he did not know exactly what was required and obtained covers from another factory in the building. A further inspection of the factory, however, found these covers to be unsatisfactory. Upon receiving an explanation from the Factory Inspector, proper covers were then obtained and approved.

27. Mr. Ma agreed that he had, since 1990, appreciated the need for these machines to be made less dangerous. He did not, however, take any steps to obtain suitable covers because he did not know what to do. For his part, Mr. Wong, while admitting that his factory machines were not up to the requirements of the Labour Department, said "we were satisfied".

28. There is demonstrated a somewhat complacent attitude on the part of Mr. Wong and Mr. Ma to factory safety. This attitude is not untypical of small factories in Hong Kong. In my view, the Defendants' protests about continuous and frequent reminders to the Plaintiff not to use gloves while working on the lathe were too good to be true.

Findings

29. In the circumstances, I find the following facts. At the time of the accident in 1992, the Plaintiff was an experienced lathe technician who had been working in the trade for over 30 years. It was the Plaintiff's practice, however, to wear cotton gloves while working at his lathe.

30. It is dangerous to wear gloves while working at a lathe because gloves may be caught up by or entangled in the moving machinery. It is patently and highly dangerous to touch or hold moving parts of a lathe, and more so if gloves are worn.

31. It was part of the Plaintiff's duties to repair machine parts or make spare parts on the lathe. Such work required polishing, that is, producing the fine tolerances required for such parts. Such polishing is done with sand paper.

32. A common and accepted method for such polishing is by stretching sand paper along the underside of a file which is grasped by hand at each end and brought to bear on the rotating part to be polished. It is dangerous to wear gloves for this operation because of the possibility of entanglement.

33. At the time of the accident, the Plaintiff was polishing a shaft. In order to do this, he had wrapped sand paper around the shaft and was holding it with at least his right hand. He was wearing two gloves on each hand.

34. The Defendant had been warned on at least two occasions about wearing gloves while operating the lathe. He had not been warned specifically about wearing gloves while carrying out polishing operations. He was not under any restriction about fetching gloves from the storeroom for his own use.

35. The questions then are whether the Defendants exercised sufficient supervision over the Plaintiff and whether they took any or any adequate precautions for the safety of the Plaintiff while operating the lathe. It is true that an employer cannot be expected to hold the hand of an employee all the time, particularly when the employee is one of great skill and experience. An employer is entitled to rely on an employee using his skill and experience so as not to expose himself to unnecessary risks and danger. In the present case, the Plaintiff was such an employee. He was, however, known to the Defendants as someone who had previously been injured while working at a lathe although the precise circumstances, particularly whether the Plaintiff was wearing gloves, were unclear. The Defendants were also aware that the Plaintiff did wear gloves while operating the lathe in their factory. They did give warnings about this practice.

36. In my judgment, the Defendants could and should have done two things. They should have been more vigilant. I reject Mr. Ma's evidence that they did become more vigilant. That is not consistent with Mr. Ma's and Mr. Wong's attitude to safety in general. It would not have been difficult, and certainly not unreasonable, for Mr. Ma who spent most of his time in the factory to have made it his business to carry out regular checks that the Plaintiff was not wearing gloves while working on the lathe. The Plaintiff was the only employee. He was working only a few feet from Mr. Ma. No difficulty or inconvenience would have been caused to Mr. Ma in doing this.

37. Second, as I have already said, I am satisfied that the Plaintiff had free access to the storeroom to get tools, materials and gloves. Again, it seems to me that it would not have been difficult for Mr. Ma to have exercised control over the issue of gloves, as indeed the Plaintiff suggested he did.

38. In the circumstances, I find that the Defendants failed in their common law duty of care to the Plaintiff. I find them liable.

39. Plainly, however, the Plaintiff must bear a substantial part of the blame for this accident. He had previously been injured in an industrial accident. He had been working with lathes and other machinery for over 30 years. He must or should have been as aware as the Defendants of the dangers associated with wearing gloves while working on a lathe. As to the particular operation which the Plaintiff was carrying out at the time of the accident, it did not need Mr. Ma or anyone else to point out the dangers. They are apparent. The Plaintiff was contributorily negligent. I put the Plaintiff's contribution at 50%.

QUANTUM

Pain, suffering and loss of amenities

40. As a result of the accident, the Plaintiff's right arm was amputated below the right elbow. The Plaintiff suffered a crush injury and multiple laceration of the left hand. The left radius and ulna were each fractured. Surgery was carried out on the Plaintiff's left hand. There is now a good range of movement in the thumb, which can be opposed to the middle, third and fourth fingers. Those fingers will not, however, fully close to make a fist so that the Plaintiff does not have a good grip. The index finger is effectively frozen at a right angle at the middle joint. It also deviates toward to the little finger. The Plaintiff cannot use chopsticks but can manage a spoon or fork. The loss of the Plaintiff's right hand, therefore, is compounded by the damage and permanent defects to his left. The difficulties which the Plaintiff now faces in his daily activities do not need to be spelled out.

41. It is agreed that the Plaintiff's injuries fall into the category of substantial injury. In Chan Pui Ki v. Leung On & Anor [1996] 2 HKLR 401, the Court of Appeal approved awards in that category of between $540,000.00 and $660,000.00. In Pang Wai Chung v. Hoi Tat Rubber Factory [1996] 2 HKC 557, the plaintiff also had his right and preferred hand amputated. Taking that and cosmetic factors into account, the judge awarded damages of $600,000.00 under this head. For the Plaintiff here, it was argued that an award in excess of that award is called for in this case because of the damage to the Plaintiff's other hand and because that award was made in April 1996 so that there should be an increase to allow for inflation. It was suggested that $750,000.00 is appropriate.

42. For the Defendants, it was submitted that the award should fall somewhere between the middle and upper range for substantial injury. $600,000.00 was suggested as appropriated.

43. Plainly, the Plaintiff is more severely injured and handicapped than the Plaintiff in Pang Wai Chung. Taking that into account and also that the Court of Appeal approved the range of quantum for substantial injury in July 1996, over a year ago, I award $680,000.00 in this case.

Pre-trial loss of earnings

44. It is agreed that, at the time of the accident, the Plaintiff was earning $7,280.00. There is a dispute as to whether he should receive the usual double pay at the end of each year. The Plaintiff's evidence was that, when he was offered employment, he was told he would receive such double pay, and in fact received $10,000.00 at the end of his first year and $8,000.00 for the second year. According to Mr. Ma, he promised the Plaintiff that there would be a year-end bonus provided the company made profits. Mr. Ma explained that it was a bonus rather than double pay because the Plaintiff was paid a daily wage and a bonus should be paid if possible in order to provide encouragement for employees.

45. I have no doubt that the Plaintiff was paid a bonus, depending on profits, rather than double pay. A bonus would be more consistent with the payments which the Plaintiff said he received which do not appear to be an extra month's pay. There is, however, no reason to expect that the Defendant would not have continued to make profits and to have paid a bonus to the Plaintiff as long as he remained employed. Provision should be made, therefore, for the bonus in relation to loss of earnings. It would be reasonable in the circumstances to anticipate annual bonuses in the region of $8,000.00. To the agreed monthly wages therefore must be added $666.00, representing 1/12 of $8,000.00, the total then being $7,946.00.

46. Five years have elapsed since the accident. For the Plaintiff, it was submitted that his wages should be increased by a factor of 10% per annum. The Defendants argued that the annual increase should be 7%. In my judgment, an increase of 7% per annum seems more realistic. After five years, the monthly wages incorporating annual bonus would be $11,144.00. This produces an average monthly wage of $9,545.00. 61 months having elapsed since the accident, pre-trial loss of earnings are therefore quantified at $582,265.00. From this sum must be deducted wages paid by the Defendants since the accident, totalling $92,214.00, and actual earnings by the Plaintiff who has been employed for the last seven months earning $4,500.00 per month.

Under this head I award $458,551.00

Special Damages

1. Wife's Lost Earnings

47. The Plaintiff's wife was employed as a cleaner. She earned $150.00 per hour and received two meals a day worth $30.00. She ceased work until 20th September 1992 when the Plaintiff was transferred from United Christian Hospital to the Margaret Trench Rehabilitation Clinic. It is not in dispute that the Plaintiff is entitled to recover $5,760.00, representing the wife's loss, during this period.

48. The Plaintiff's wife then returned to work but worked two hours less per day until 30th April 1993. She was paid $112.50 per day and received one free meal. She needed to leave work early so that she could buy the ingredients for soup which she prepared each day and took to the Plaintiff. After the Plaintiff was discharged from the clinic on 8th March, his wife continued to work shorter hours in order to be at home and assist the Plaintiff.

49. I am somewhat surprised that the Defendants should have seen fit to oppose this aspect of loss. It is fair to say, however, that the opposition was somewhat thin. For my part, I have no doubt that it was entirely reasonable and necessary for the Plaintiff's wife to have acted as she did.

50. When working full time, the Plaintiff's wife received $150.00 per day plus two meals, the value of which amounted to HK30.00. In total, therefore, $180.00 per day. When she resumed work on a part-time basis, she received $112.50 plus one free meal, the value of which might fairly be put at $15.00. She therefore received $127.00 per day. On the basis of a 26-day month, her loss each month was $1,378.00. She worked part-time for a period of 7.3 months. Her total loss was therefore $10,100.00.

Under this head I award $15,860.00.

2. Medical Expenses

These are agreed at $1,188.00.

3. Travelling Expenses

These are agreed at $3,196.00.

4. Tonic Food

51. While the Plaintiff was in hospital and in the clinic, and for 9 months after his discharge, his wife provided him with soup costing $70.00 per day. The total cost of the soup was approximately $18,000.00. There was, however, no evidence that the soup was provided on the basis of medical advice or treatment.

52. In King Light Industrial Limited v. Lo Wai-keung [1994] 3 HKC 54, the Court of Appeal accepted that, in the absence of evidence that nourishing food is being provided on the basis of medical treatment, whether Western or Chinese, a conventional award of not more than $5,000.00 is appropriate. For the Plaintiff, it was argued that that amount should be increased to recognize inflation since 1992, when the Court of Appeal gave its decision, and the substantial injuries suffered by the Plaintiff.

53. I see no warrant for increasing the award on account of the Plaintiff's injuries. The award might be decreased if the injuries were less than substantial or severe. I see, however, that there should be an increase to allow for inflation.

I award $7,500.00 under this head.

Post-trial loss of earnings

54. There was no evidence before me as to how much longer the Plaintiff, who is now 60, would have continued to work. Given that the Plaintiff was an old friend or colleague of the Defendants, given that he was acknowledged as a trusted and diligent worker, and given the small and intimate relationship within the factory, I am satisfied that the Plaintiff would have continued to work full time until he was 65.

55. On the basis that he would work until 65, the Plaintiff argued for a multiplier of 4.5, the Defendants for one of 2.5. In my judgment, a discount of only one half is insufficient. The proper multiplier in the circumstance is 3.

56. I have already found that by now the Plaintiff would be earning $11,144.00 per month. On the basis of a multiplier of 3, post-trial loss of earnings are $401,184.00.

Prosthetic Expenses

57. The Plaintiff was prescribed a mechanical prosthesis for his right arm. This proved cumbersome, heavy and painful. The Plaintiff has discarded it. According to the medical evidence, it is not uncommon for patients like the Plaintiff to find such a prosthesis to be a positive disadvantage.

58. Alice Tsang is a occupational therapist of many years experience. She has examined the Plaintiff and recommended that he should be provided with a myoelectric prosthesis which does not involve the cumbersome straps of a mechanical device. It is easily controlled by impulses from the remaining muscles in the Plaintiff's forearm. It will allow the Plaintiff to grip and to rotate the wrist. Miss Tsang was of the view that the Plaintiff would have no difficulty in learning to operate this device which is now widely used and which young children are successfully taught to use. The Plaintiff says, and I have no reason to doubt him, that he would use such a device if it was made available to him.

59. The cost of such a device is $65,000.00. Repairs and maintenance for the device cost between 10% and 30%. The device lasts two years and then needs replacement. Miss Tsang recommended that initially the Plaintiff should buy two such devices so that, if one fails, he will have an immediate replacement.

60. This device will give the Plaintiff a modest degree of dexterity to his right arm. There will also be some improvement of his cosmetic aspect. It seems to me entirely reasonable that the Plaintiff should be afforded the opportunity to be fitted with such a helpful device which, according to Miss Tsang, could be worn for the rest of the Plaintiff's life.

61. Assuming maintenance at 20%, one of these devices would cost $78,000.00. The Plaintiff argues for the cost of 7 such devices which effectively would provide a span of 12 years use. In my judgment, that is justified.

I award $546,000.00 under this head.

Future Surgery

62. Doctor Arthur Chiang, an orthopaedic surgeon, examined the Plaintiff on two occasions. He now recommends that the Plaintiff should undergo further surgery to his left hand. This would correct the tilting of the index finger towards the little finger and also flex the finger at 20 instead of 90 degrees. The index finger will then be less prone to injury and improve reaching for and gripping objects.

63. The surgery is not opposed by the Defendants. I award the cost which is estimated at $25,000.00

Loss of earning capacity

64. Since he registered with the Labour Department Placement Office in 1994, the Plaintiff has been recommended for only three jobs. For one of those jobs he was not interviewed. Another he rejected because, after taking into account travelling and other expenses, the salary was too low. He is now working as a lift attendant earning $4,500.00 per month. That sum has of course been taken into account when assessing loss of future earnings. If the Plaintiff losses his job, however, it is plain from his past experience that he will have the greatest difficulty in finding another job. A man of advanced years who does not have even one good hand does not have much prospect of obtaining further employment.

65. I am satisfied therefore that this is a case for an award of loss of earning capacity. I award $30,000.00 under this head.

Conclusion

66. The total award is therefore $2,168,779.00. From this sum must be deducted an employee's compensation payment of $499,907.00. The net sum is $1,668,872.00. After making allowance for a contribution of 50%, I give judgment for the Plaintiff in the sum of $834,436.00.

67. There will be interested on the award of $680,000.00 for pain, suffering and loss of amenities at 2% since the date of the writ, that is 30th November 1993.

68. There will be interest at 5.84% on special damages totalling $27,744.00 from the date of the accident.

69. I make an order nisi that the Plaintiff have his costs of the action, to be taxed on a party and party basis if not agreed.

70. The Plaintiff's own costs to be taxed.

Representation:

Mr. Ashok K. Sakhrani instructed by M/S Ng & Partners for Plaintiff

Mr. Kenny Chan instructed by M/S K. P. Lam & Co. for Defendant