Tang Pui Wah v. Yiu Yat Fan t/a Dao Pong United Goods Manufactory

HCA004500/1984

1984 No. 4500

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Hansen in Chambers

Date of Hearing: 15 March 1985

Delivery Date: 28 March 1985

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ASSESSMENT OF DAMAGES

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1. On the 24th of October 1981 the Plaintiff severely injured his right hand and forearm whilst operating a plastic injection moulding machine in the defendant's factory. At the time of the accident he was aged 19 years and 4 months. The writ of summons was issued on the 5th of July 1984 and interlocutory judgment was entered on the 17th of October 1984.

2. Pursuant to Notices under Section 47 of the Evidence Ordinance and Order 38 of the Rules of Supreme Court the following documents were adduced in evidence:-

3. As a result of the accident the Plaintiff suffered severe crushing injuries of his right hand and forearm. An emergency operation was performed and the Plaintiff's middle and index fingers, his thumb and some badly damaged carpal and metercarpal bones were removed. Further debridement was carried out on the 27th of October and he was transferred to Caritas. Over the next two months a total of 5 operations, which included 3 skin graphs, were carried out. Examination by Dr. Wedderburn in June of 1984 revealed a dark coloured scar stretching from the Plaintiff's elbow to his wrist on the outer aspect of the right forearm. This scar was between 2½ and 3 inches wide and there was marked muscle loss on the back of the forearm with a deep groove running down the length of the scar. This was plainly evident on seeing the Plaintiff's forearm. Dr Wedderburn described the Plaintiff's right hand as just a remnant with only the ring and fifth fingers being present. The only bones in the hand left were the fourth and fifth metercarpals. He could exercise a 110 lb. grip with his left hand but with his ring and fifth finger of the right hand (provided the counter-side of the apparatus is fixed with the thumb of the left hand) he can only exercise a 5 lb grip. Although Dr Wedderburn said he enjoy almost full movement of the index and the fifth fingers his condition was almost equivalent to an amputation at mid-hand. This he considered to be a 54% impairment of the whole man. In relation to his earning loss, Dr Wedderburn was of the view, that this amounted to a 60% of disability. He pointed out that this figure is higher than the Workers' Compensation Ordinance figure of 50% and he said the reason was that the Workers' Compensation Ordinance figures take no account of whether or not a preferred hand is involved.

4. Observation of the Plaintiff's right forearm confirms Dr Wedderburn's report. There is a deep and ugly scar from the elbow to the hand. There is clear muscle wastage and the hand itself was almost totally gone.

5. The Plaintiff gave evidence. He gave evidence of the extreme pain he felt immediately following the accident dent and during his time in Princess Margaret Hospital. He said he was in hospital a total of 61 days and for the first part of his stay he was in such pain that he was unable to sleep at night. He gave evidence of how the pain in the wound reduced but he stated he still experienced pain for some time after leaving hospital. He further stated that during wet and damp conditions the pain returns even today. He gave evidence of returning to Princess Margaret Hospital for follow-up treatment mainly taking the form of physiotherapy. He produced 71 receipts for his visits for follow-up treatment.

6. He also gave evidence of the period he was off work which lasted until January 1983. Through the introduction of a friend he was fortunate to obtain work as a messenger at the Mariners' Club in Kowloon. It is quite clear, looking at his injury, that this is the only type of work that is possible for him now and in the future.

7. The defendant also gave evidence but that related only to the loss of earnings and I will deal with it under that head.

Pain suffering and loss of amenity

8. Mr Whitley referred me to a number of authorities. Firstly to To Wai-bun v. Hon Hing Mfg. Co. Ltd. HCA No. 4529/79, a decision of Mr Justice Jones on the 22nd of December 1981. In that case $65,000 was awarded for pain suffering and loss of amenities. It is quite clear from the report the injury suffered by the Plaintiff in that case were not as severe as the Plaintiff in the present case.

Leung Wing-kai (an infant) by another v. Shun Dik Industrial Company

HCA No. 2800/81 - In April of 1982 Master Betts awarded $55,000 for pain suffering and loss of amenities. Again the injury was not as serious as those suffered by the Plaintiff.

Leung Kwong v. Luen Fat Chemical Co. Ltd. High Court Action No. 6789/82 where the Master awarded $96,000 for the complete loss of a right hand. This was in December 1982.

Ng Wing Wah v. Chun Ring Metal and Plastic Mould Factory HCA No. 5389/83 where the Master awarded $60,000 when impairment was given as 34% of the whole man. That was in December 1982.

Tse Fuk-lun v. Lee Kai & another HCA No. 1426/83 where the Master awarded $75,000 in May of 1984 where there was a 25% of total impairment.

9. Mr Whitley submitted that this was an ugly injury and that the appropriate award should be in the vicinity of $120,000.

10. Mr Lui also referred me to a large number of authorities and as I understood the thrust of his argument he submitted that an lower award should be given to this particular plaintiff than in the authorities he referred to because he said a reading of the cases revealed that the particular plaintiffs suffered more pain than the Plaintiff in this case. This of course ignores the fact that the award falls under the head of pain suffering and loss of amenities and also ignores the fact that in most of the cases he cited the impairment was far less than that suffered by the Plaintiff in this case. It also involves an attempt to objectively measure pain which in my view is an almost impossible task. He referred to the following cases:-

To Kin-shan & another v. CHAN Hok-leung & another HCA No. 4123/82.

Lam Fong-yuen v. Lee Foon HCA No. 8039/83

Lam Yuen v. Wat Kit HCA No. 7602/82

Mak Kwok-ping v. Lui Nam HCA No. 7084/83

Chan Suet-keung v. Yiu Shui-for HCA No. 9188/82

Chen Yau-hing v. Cheung Yuk-wing HCA No. 2190/82

Wong Yuk-tin v. Cheung Chuen-lam HCA No. 986/82

Lam Kwok-hung v. Chow Chi-chung HCA No. 88/82

Wong Kwong-to v. ACME Cassette Mfg. Ltd. HCA No. 2351/80

Yip Pun Leung v. Chi Shing Industrial Co. Ltd. HCA No. 6071/81

Wong Pui Kwan v. Artking Industries Limited (in liquidation) HCA No. 11212/83

11. An then submitted that the appropriate award in this particular case for the Plaintiff was in the vicinity of $100,000. Having seen the extent of this man's injury, which goes well beyond amputation of fingers, and involves a loss of part of the hand, muscle wastage of the forearm and severe scarring from the elbow to the hand, I am satisfied that his injury places him on a par with someone who has lost a hand in full. Accordingly in line with the decision in Leung Kwong v. Luen Fat Chemical Co. Ltd. this places the injury in the top of the serious category in Lee Ting-lam v. Leung Kam-ming [1980] HKLR Pg. 657. In Li Ping-sum v. Chan Wai-tong & Ors. Civil Appeal 53/83 the Court of Appeal increased the awards for the various categories set out in Lee Ting-lam (Supra). They increased these by 50%. This part of the decision of the Court of Appeal was confirmed by the Privy Council. This means the range at the time of the hearing in Li Ping-sum (Supra) was increased to $90,000 to $120,000. Of course the hearing of the appeal in Li Ping-sum (Supra) took place in October 1983. It seems to me in line with previous decisions such as Wong Pak v. N Po Chi (1982)12 HKLJ 389 and Leung Kwong v. Luen Fat Chemical Co. Ltd. (Supra) it is appropriate to increase the figure further for inflation. I am of the view that the appropriate increase at this time is 10% on the figures set down in Li Ping-sum (Supra) and accordingly under this head I award $132,000.

Special Damages

12. The following items were agreed.

Loss of Earnings

13. The Plaintiff's evidence showed that he had only been working for the Defendant's company for 7 working days at the time of the accident. For this period of time he was paid $573.25 which gave a daily average income of $81.89. The Defendant in giving evidence said this was higher than normal because the Plaintiff was working on night shift. However, as his evidence continued it became apparent that the Plaintiff had spent two days of work on day shift and five days working night shifts. Further, although the Defendant gave evidence that there was a differential in payment between day and night shift he did not give any figures for this. I am satisfied that the starting point for assessing loss of earnings is the daily average of $81.89. The Director of Legal Aid in drafting the Statement of Claim used this figure as a starting point and allowed for an inflationary increase of 10% per annum. Subject to a concession by Mr Whitley that the amount of income earned by the Plaintiff after he commenced work had to be increased to make allowance for the additional months pay at Chinese New Year, the Plaintiff submitted that these are the figures that should be used to assess the loss of earnings from the date of the accident to the date of the hearing. On the other hand Mr Lui raised an ingenuous argument. He said one of the documents admitted was from the Census and Statistics Department which shows that worker in the position of the Plaintiff would now be earning $2,782 per month. He said one should take this figure and work backward taking off 10% a year to allow for inflation. There are two problems with this approach. Firstly, it ignores completely the actual amount being earned by the Plaintiff at the time of the accident. Secondly, the Defendant's own evidence was that the increases he gave his workers was 7% per annum, and if indeed Mr Lui's argument was correct, this would be the figure to be used in calculating the deduction.

14. I am satisfied that the method advanced by Mr Whitley on behalf of the Plaintiff is the proper method and the method normally adopted in Hong Kong to assess loss of earnings. Accordingly the calculations are as follows for the various periods :-

Loss of Future Earnings

15. Mr Lui (quite properly in my view) conceded that the appropriate multiplier was 17. Mr Whitley submitted that the multiplicand should be the figure given by the Census and Statistics Department for present earnings (i.e. $2.782.00 per month) less what the Plaintiff was currently earning per month (i.e. $1,950.00). Given a multiplicand of $832 per month.

16. On the other hand Mr Lui produced a complicated formula based on his previous reasoning.

17. Clearly Mr Whitley is correct and accordingly the loss is :-

18. $832 × 12 × 17 = $169,728.00

Summary

There will be interest on the General damages at the rate of 2% per annum from the date of the issue of the writ of judgment and on the Special damages at the rate of 6.75% per annum from the date of the accident until judgment. There will be no interest awarded on the loss of future earnings. There will be an order for the payment of the Plaintiff's costs by the Defendant to be taxed failing agreement and for the Plaintiff's own cost to be taxed under the Legal Aid Regulations.

Representation:

Mr Whitley of Legal Aid for the Plaintiff

Mr K.L. Lui of Chan & Lo for the Defendant