Yeung Kai Ming v. Wah Kee Metal

HCA006904/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Jones in Chambers

Date of Hearing: 6 January 1987

Date of Delivery: 15 January 1987

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ASSESSMENT OF DAMAGES

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1. The plaintiff was injured in the course of his employment on 29th November 1983 when his right and preferred hand was caught in an elevator into which he was loading goods.

2. He was taken to Queen Mary Hospital where parts of the index and middle fingers were amputated the same day. The amputations were of approximately one inch and 7/8 of an inch respectively. There were no other injuries and plaintiff was discharged from hospital that day.

3. The writ was issued on 9th November 1985 and interlocutory judgment entered on 4th December 1985 in default of notice to defend. Notice of this hearing was duly served on the defendant but there was no attendance on its behalf.

4. The following documents were produced in terms of a hearsay  notice under O.38 R.S.C.:

5. Mr. Wedderburn's report of 27th August 1985 reveals that the plaintiff had physiotherapy twice a week for two months after the dressings were removed. He had two months' sick leave, whereafter he returned to work at the same job with defendant. The nature of the injuries are summarised in the report in the following terms :

6. Mr. Wedderburn's estimate of the plaintiff's earnings related disability at 18% was higher than that of the Employees' Compensation Assessment Board. It was reached however after tests and observation some 16 months later then the Board's finding and I accept Mr. Wedderburn's figure.

7. The plaintiff has made a good recovery and I note that the skin tissue covering the stumps of the fingers is sufficient to prevent pain from a light blow; something which otherwise is a common occurrence.

8. In his evidence the plaintiff said he suffered intense pain at the time of the accident. He did not lose consciousness and endured the pain for about an hour until he was given a pain killing injection in hospital. He said he continued with pain killers for 2 or 3 days and then again felt pain in the stumps. I accept this evidence.

9. The plaintiff presently works as a goods lorry attendant and claimed to find difficulty in loading and unloading goods quickly, and in securing the goods to the lorry with ropes. He said he was more limited in his choice of jobs, being no longer able to do work involving manual dexterity such as threading work which he had done in a textile mill. He also said he still felt numbness and pain in his stumps if he knocked them.

10. I readily accept this evidence, most of which relates to consequences no more than normal in the light of such injuries. I note in addition from Mr. Wedderburn's report that the reduced grip strength in the plaintiff's preferred hand would be a considerable disadvantage in the manual labour to which he is confined.

11. The plaintiff claimed that his injury had affected his social life but was unable to give details. He also said he had difficulty in finding a marriage partner but eventually said he had not had any difficulty with girls and rarely went out with them. His difficulties he said were those he anticipated when considering the nature of his injuries.

12. I cannot ignore that the plaintiff as a man of 28 must have diminished prospects of marriage from both the cosmetic and economic viewpoints as a result of his injuries. This diminution is extremely difficult to reduce to money, but it must necessarily be a factor in the overall exercise of compensation.

13. I have considered a number of authorities in assessing damages for pain, suffering and loss of amenities. In Chan Suet Keung HCA 9188 of 1982 the injury and the relatively quick recovery were both similar; $30,000.00 was awarded in 1983. In To Kin Shan HCA 4123 of 1982 $40,000.00 was awarded in 1984 where again the injuries were similar and the victim was sent home the same day. In this latter case the permanent disability was assessed at 25% and the award is somewhat lower than the general level of awards would indicate. In Leung Wing Kai HCA 2800 of 1981 a 30% disability attracted an award of $55,000.00 in 1982 for injuries which were similar, although more serious and involving more arduous treatment. In Tse Fuk Lun HCA 1426 of 1983 an award of $75,000.00 was made in 1984 for hand injuries which were considerably more serious and again involved more treatment.

14. Bearing in mind the authorities and the inflationary effect of the passage of time, I am satisfied that the correct award for PSLA is around $60,000.00; that sum is awarded.

Pre-trial loss of earnings

15. The plaintiff was earning $70.00 a day at the time of the accident. He was off work from 29th November 1983 to 18th March 1984, during which period he received $4,200.00 as statutory payments from the employer. Assuming a 26 day working month he would have earned a total of $6,552.00 for the 3.6 months during which he was off work. There is therefore a shortfall of $2,352.00 for this period which is duly awarded.

16. The plaintiff then restarted work with the defendant firm end received a pay increase to $85.00 per day until he left for other employment at the end of 1984.

17. Subsequently he changed jobs voluntarily twice; the second move being to his present position where he is now earning $2,450.00. Although he was for some of that time earning less than his likely wage in the employ of defendant, there is no suggestion that his change of job was caused by his injuries or in any other way was the fault of the defendant. I do not therefore find any further attributable loss of earnings to date of trial.

Post-trial loss of earnings

18. There is no basis on which I can apply a multiplier/multiplicand approach in assessing loss under this head. Loss of future earnings will therefore merge with loss of earning capacity and a global sum will be awarded.

19. The plaintiff testified to having no difficulty finding jobs since the accident; his voluntary changes of employment and current wage level bear that out. Nonetheless his injuries will inevitably place him at a continuing disadvantage in the labour market and many jobs involving manual dexterity will not be available to him. In times other than the present this may severely curtail his earning capacity, both as to promotion and as to finding new jobs in the event of dismissal.

20. The plaintiff is still a young man with a likely working life of around 30 more years. I award the sum of $60,000.00 to compensate for future loss, which will not attract interest.

21. There remain the items of special damages. The plaintiff was a very uncertain witness and was unable to give more than vague details of his post-operative expenses. The tonic food was however substantiated at $300.00 and for the rest, mainly travelling and physiotherapy, a further award of $150.00 is made as an approximation from the evidence.

Summary

22. There will be interest on the general damages at 2% from date of writ to judgment and interest on the pre-trial loss of earnings and special damages at 5% from the date of the accident to judgment.

23. Finally, there has been an employees compensation award of $25,166.40. Although there is some uncertainty as to whether or not this has all been received, the pay-in slip, exhibit P. 5 in the sum of $23,953.56 indicates that it probably has. I therefore direct that credit be given for E. C. receipts in the sum of $25,166.40, but with liberty to apply in case there be some shortfall.

24. I must in conclusion mention that the preparation of this matter for the hearing was well short of satisfactory. This is a matter I mentioned in court and which is reprehensible.

25. Costs are awarded to the plaintiff with plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Messrs. Hampton, Winter and Glynn for Plaintiff

Defendant absent