Chau Po Keung v. Law Ping and Another

HCA003993/1983

1983 No. 3993

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN :

Coram: Master J.W. Hansen

Date of Hearing: 13 December 1983

Date of Delivery: 23 December 1983

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Assessment of Damages

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1. On the 11th of June 1980 the plaintiff injured his right hand while operating a vertical power press. At the time of the accident he was aged 17 years. Pursuant to O.18 r. 13 R.S.C. judgment was entered against the first defendant on the 11th of August 1983

2. Pursuant to O.38 the following documents were produced:-

3. Ex P1 : A form 2 pursuant to the Workmen's Compensation Ordinance CAP 282 dated 26.1.81

4. Ex P2 : The assessment of the government Medical Board dated 18.9.80

5. Ex P3 : A medical report of Dr. C.Y. Lam of Princess Margaret Hospital dated 3.9.81.

6. Ex P4 : A medical report by Dr. R. G. M. Wedderburn dated 19.4.83.

As a result of the accident the plaintiff was taken to Princess Margaret Hospital. There it was found that the accident had amputated the right thumb at the interphalangeal joint level with the fracture of the proximal phalanx. Under local anaesthesia a revision amputation was earried out and the plaintiff was discharged to be followed up in the outpatients clinic. On the 18th September 1980 the medical Board assessed the plaintiff's permanent incapacity at 10%.

7. Dr. Wedderburn's report reveals that there is good soft tissue cover over the end of the stump and good movement of the remnant of the thumb. The terminal phalanx had been amputated but the proximal phalanx was still present. The plaintiff exercised a 601b grip with his left hand and a 501b grip with his right hand. Dr. Wedderburn concluded by stating "An amputation of the terminal phalanx of the thumb in the preferred hand is 14% impairment of the whole man and I would classify his disability, related to loss of earning capacity, as the same figure, namely 14%."

8. The plaintiff himself gave evidence as did his present employer. The plaintiff said the injury was very painful at the time and that he experienced pain in the stump for about 1 year after the accident. The plaintiff returned to work two months after the accident. He had been granted one month sick leave but he said in evidence that his injury was still painful so he took an extra month off work. At the time of the accident the plaintiff was earning $35 per day.

9. After the accident the plaintiff returned to the same factory where he then earned $45 per day. However, in May 1981 he commenced employment as an apprentice welder. He completed his 2 year training course and at the time of the hearing was employed by Yip Shing Iron Works Decoration Company as a welder. The plaintiff stated his present income was $120 per day and thought he earned "more or less the same as the other welders at Yip Shing." In cross examination the plaintiff acknowledged to the first defendant that he was left handed. In re-examination by Mr. Hamblin, however, he stated that he wrote with his right hand but he would throw a ball with his left hand. He said he is now engaged in electric arc welding and whil carrying out this work he held the electrode in his left hand.

10. Mr. Suen Ching-tong the owner of Yip Shing Iron Works Decoration Co. gave evidence on behalf of the plaintiff. He had employed the plaintiff for more than 2 years at the date of the hearing. He gave evidence that the plaintiff's income was now $120 per day and he worked 26 days a month. He described the plaintiff as a technician. He said the salaries of the technicians he employed varied and it depended on the volume of work they produced. He said the plaintiff, but for his injury, would have received $150 per day. He said this was because the plaintiff could not hold things properly and therefore worked at a slower rate then the other technicians. In his evidence he said "He could work faster if he didn't have this injury" and "In my judgment he was slower than other workers in his field."

11. The witness was cross examined by the first defendant. Under questioning he revealed that the plaintiff's work involved the construction and fitting of iron gates. He said when the plaintiff came to fit the gates his work was slowed down by his injury. The witness was not shaken in this cross examination and his concluding answer was "If he doesn't have this disability we'd pay him $150."

12. The defendant was advised of his right to give evidence and to call witnesses on his behalf. He did not avail himself of his right. On the evidence I accept, as a fact, that but for this injury the plaintiff would earn $150 per day.

13. There was some confusion as to which was the plaintiff's preferred hand. Dr. Wedderburn said in his report that it was the right hand. However, it became apparent in the course of the evidence that the plaintiff used his left hand for many tasks. I am satisfied that the plaintiff is ambidextrous. This finding, however, creates a further problem. Dr. Wedderburns assessment, of 14% impairment of the whole man, is based on the injury being to the preferred hand. The assessment of 10% made by the Medicial Board, unfortunately, makes no reference to which hand is the plaintiff's preferred hand.

14. Left in this position I am satisfied that Dr. Wedderburn's assessment must be modified by reducing it slightly. Accordingly, I find the extent of the plaintiff's permanent disability to be 12%.

15. Mr. Hamblin made submissions on behalf of the plaintiff. The defendant, although advised of his right to make submissions, elected not to do so.

Pain suffering and Loss of Amenities

16. Mr. Hamblin referred me to:

17. Fung Lai-yin v Lai Kam-chiu HCA 2916/77 (Martin and Rhodes Pg 232) In that case there was an amputation of two joints of the forefinger. The degree of disability was similiar to the present case. Mr. Registrar O'Dea (as he then was) awarded $22,500 on the 25th January, 1978.

18. I was then referred to the decision, of Master Betts in Chan Suet Keung v Yiu Shiu For trading as Wing Yip Metal Factory. HCA 9188/82. In t at case the injuries were less serious than those suffered by the plaintiff in Fung Lai- in v Lai Kam Chiu (Supra). Following the decision in Li Ping Sum v. Chan Wai Ton and others C .A. 1983/53), where awards in Lee Ting-lam v Leung Kam- ming /1980/ HKLR 657 were increased 50%, Master Betts held that the award made in 1978 in Fung Lai-yin v Lai Kam-chiu (supra) should be increased 60%.

19. I agree with that reasoning. In this case the plaintiff's disability is very similiar to that suffered in Fung Lai-yin v Lai Kam-chiu (supra). Accordingly, I award $36,000 under this head.

Loss of Future Earnings

20. At the date of the hearing the plaintiff was earning $120 per day as a welder. Based on the evidence of his employed that, but for his disability, he would be earning $150 per day Mr. Hamblin submitted the appropriate multiplicand was $780 per month. (i.e. $30 per day x 26 days worked per month.) To this, Mr. Hamblin, submitted a multiplier of 15 years should be awarded. At the date of the hearing the plaintiff was aged 20 years 8 months. In my view the appropriate multiplier is 18 years. Therefore, using this method of calculation the award is: -

21. $780 x 12 x 18 = $168,480.

22. Mr. Hamblin also referred me to an alternative means of calculation applied by the Cnurt of Appeal in Li ping-sun v Chan Pong v others (supra) There the Court equated the plaintiff's degree incapacity or disability with loss of future earning capacity.

23. Applying that formula to the present case gives a figure of $80,870.40

24. $374.40 (i.e. 12% of $3,120) x 12 x 18 = 80,870.40. Mr. Hamblin submitted that if I did not accept the evidence of the plaintiff's present employer I should adopt this formula.

25. However, as I said earlier, I accept Mr. Suen's evidence. Given that, I consider, in the particular circumstances of this case, the first method of calculation is to be preferred. Accordingly, I award $168,480.

Special Damages

26. The two small sums claimed for travelling expenses are awarded.

27. In relation to loss of earnings the evidence was that the plaintiff was granted one months sick leave. However, he took 2 months off work as his injury still felt painful. I think this is justified and award $1,820.00 as claimed.

Summary

Special Damages:

28. There will be interest on pain, suffering and loss of amenities at 2% p.a. from the date of the service of the writ until judgment and on the special damages at 7% p.a. from the date of the accident until judgment. There will be no interest on the award for loss of future earning capacity. A credit will be allowed for any sums paid to the plaintiff pursuant to the agreement under the Employee's Compensation ordinance CAP 282.

29. There will be an order for payment of the plaintiff's costs by the defendant (to be taxed if not agreed) and for the plaintiff's own costs to be taxed under the Legal Aid Legalations.

30. At the date of the hearing the plaintiff was aged 20 years 8 months. In those circumstances it is unnecessary for the money to be paid into Court on the usual terms. Subject to the first charge to the Director of Legal Aid the damages assessed may be paid to Chau Po Keung direct.

Representation:

Mr. Hamblin Law Ping Director of Legal Aid for Plaintiff

1st Defendant in person