Mr Lam Yuen v. Mr Wat Kit t/a International Beading and Embroidery Manufactory
Read the full judgment text of HCA 7602/1982 on BabelCite. This High Court CFI judgment was delivered on 16 December 1983.
1. On the 1st of March 1981 the Plaintiff injured his hand while operating a semi-automatic plastic moulding machine at the defendant's factory.
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HCA007602/1982
IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________ BETWEEN
________________ Coram: Master Hansen in Chambers Date of Hearing: 22 November 1983 Date of Delivery: 16 December 1983 __________________________ ASSESSMENT OF DAMAGES __________________________ 1. On the 1st of March 1981 the Plaintiff injured his hand while operating a semi-automatic plastic moulding machine at the defendant's factory. 2. The writ was issued on the 25th of August 1982 and interlocutory judgment was entered against the defendant on the 17th of May 1983. By consent the prayer to the Statement of Claim was amended before the commencement of the hearing. This added a claim for loss of earnings from the date of the accident up to the hearing. 3. At the time of the accident the plaintiff was aged 40. As a result of the injuries to his hand the plaintiff was admitted to United Christian Hospital where an amputation was carried out. The plaintiff was in hospital for 18 days and after that he attended outpatients. 4. Pursuant to 038 and by consent various documents were placed in front of me. The first of these was a Hong Kong government medical assessment dated the 1st of June 1981. In this document the percentage of the loss of earning capacity was put at 50%. 5. The second document was a medical report from Dr Wedderburn dated the 13th of July 1983. Dr Wedderburn's examination showed that the stump from the elbow is 4" and 5" to the end of the stump. He stated that there was good soft tissue cover. He said the plaintiff told him of slight phamtom limb symptoms and also discomfort in the forearm in the stump region. The plaintiff had not been fitted with a prosthesis. However, Dr Wedderburn commented that 'less than 10% of men supplied with such a device use it'. He went on to say :- "Some will wear it occasionally for cosmetic reasons but only the minority achieve use of the device and I do not consider that Mr Lam has the resolution and fortitude to use an artifical arm." Dr Wedderburn estimated the defendants disability as 95% impairment of the arm which is 57% of the whole man. Taking into account that the injured arm was the Plaintiff's right or preferred, arm Dr Wedderburn estimated the loss of earning capacity to be slightly higher than the impairment i.e. 60%. The percentage assessed by Dr Wedderburn was higher than that arrived at in the Hong Kong Government Medical Assessment. That assessment was dated the 1st of June 1981. Dr Wedderburn's report was dated some 2 years later. Clearly, Dr Wedderburn's report is more up to date and I accept his assessment. 6. The third document was the agreement between the employer and the employee pursuant to the Employee's Compensation Ordinance CAP 282. This revealed that at the time of the accident the plaintiff was paid $82 a day and was provided with accommodation which was valued at $10 per day. It also stated that the total compensation that the plaintiff was entitled to was $100,906.67. 7. The final document of importance was a record of the plaintiff's registration with the Hong Kong Labour Department's Selective Placement Division. 8. The only other evidence was that of the plaintiff himself. He said before the accident he was right handed. After the accident he was in hospital for 18 days and thereafter attended physiotherapy and outpatients. Even now he had pain in the stump. He said 4-5 times a week the stump goes into an uncontrollable spasm or shivering which causes him considerable pain. He listed the predictable difficulties he has encountered since the amputation. He can no longer eat with chopsticks; he has difficulty in dressing and bathing; he can no longer play basketball or table tennis. He further stated that he rarely went swimming anymore whereas before the accident he was a good swimmer. In fact he had swum to Hong Kong from Mainland China in 1961. He also spoke of the inevitable embarrassment he suffered from the amputation. 9. At the time of the accident the plaintiff operated a plastic moulding machine. He said he had 8 years experience in the field. He described himself as a technician and said this was because he was able to carry out minor repairs on the machines. He confirmed the evidence contained in the document mentioned earlier that he earned $82 per day and that the defendant supplied him with accommodation. The plaintiff's evidence was that he worked 28 days a month before the accident. 10. The plaintiff gave evidence of registering with the Labour Department on the 8th of July 1981. He said he was still registered with them. He had been sent to one interview for a job as a caretaker on a construction site. He did not succeed in obtaining this employment. He also gave evidence of his own unsuccessful efforts to obtain employment as a watchman or lift operator. He said he would like to obtain that type of employment and he expected recompence of between $1,200 - $1,500. 11. Under cross-examination Mr Yu put to the plaintiff that, given his experience in the plastics industry, it should be possible to obtain similar employment. To this end Mr Yu put to the plaintiff that he could work the moulding machine just as easily and quickly with his left hand as he could with his right. The plaintiff agreed he could operate the moulding machine with his left hand but was adamant he would not be re-employed in such work. The reason for this, he said, was that it would be impossible for him to change the moulds. In these circumstances, he claimed that no-one would employ him. 12. In re-examination he stated that he was prepared to accept any employment that bought him an income in excess of his Social Welfare allowance of $780 p.m. 13. No other evidence was called for the plaintiff and no evidence was given by or on behalf of the defendant. Pain Suffering and Loss of Amenities 14. Miss Mok first referred me to Lee Ting-lam v Leung Kam Ming [1980] HKLR 657 and the four categories of injuries mentioned in that case. She submitted that this plaintiff came within the "substantial injury" mentioned by Cons J.A. at Page 660. Here awards ranged between $80,000 - $100,000. She also referred me to Li Ping-sum v Chan Wai Tong and others Civil Appeal 33/83 and submitted in the light of that decision any award should be increased by 50% to allow for the effect of inflation. (See Page 6 of that decision.) Miss Mok also referred me to the Rogan v Cadbury Schweppes (Kemp Pg 9201 Para 9-203) where in 1973 for similar injuries approximately $90,000 was awarded. On the basis of these authorities Miss Mok submitted that the plaintiff fell in the middle of the "substantial injury" category of Lee Ting Lam and allowing for a 50% increase the appropriate award should be $135,000. 15. Mr Yu on the other submitted that the plaintiff's injury placed him in the lowest or "serious injury" category of Lee Ting Lam where the range was $60,000 to $80,000. He did, however, concede the 50% increase. He also referred me to Wong Kwong-to v Acme Cassette Manufacturing Co Ltd HCA 2351 (Martin & Rhodes Pg 238) where similar (but not as serious) injuries left a 50% disability. Here $60,000 was awarded. Mr Yu submitted that, allowing for inflation, the appropriate award was $70,000. 16. In Leung Kwong v Luen Fat Chemical Co Ltd HCA 6789/82 (HKLJ Vol 13 Part 3 Pg 425) a less serious amputation was placed at the upper end of the "serious injury" category of Lee Ting-lam. The plaintiff's amputation here was just below the elbow and was more serious than the case just mentioned. I accept Miss Mok's contention that the plaintiff falls in the middle of the "substantial injury" category and as a result, after increasing the awards in Lee Ting-lam by 50% as laid down inLi Ping-sum v Chan Wai-tong and others (supra) I award $135,000. Loss of Future Earning Capacity 17. Miss Mok conceded that the plaintiff was capable of light work and could reasonably be expected to earn $800 - $1,000 per month. She said that, allowing for inflation, the plaintiff's earning at the date of the hearing would be $2,846 per month. Accordingly, she said the appropriate multiplicand was $1,846. Mr Yu accepted the figure of $2,846 but said a more realistic figure for the income the plaintiff could earn from the light work he is capable of is $1,200. Therefore, he said the multiplicand should be $1,646. 18. In this regard I am placed in some difficulties as there is no real evidence before me as to what the plaintiff can earn. He has not been able to obtain any light work that he is capable of. However, carefully considering the matter I accept Miss Mok's submission that the appropriate figure is $1,000 per month giving a multiplicand of $1,846. 19. Miss Mok urged me to adopt a multiplier of 13. She referred me to Cheung Tze Ping v Cheung Kwok-peng and another [1982] HKLJ 340. In that case the plaintiff was aged 42 and Master Betts applied a multiplier of 13. Miss Mok also referred me to the table at Pg 502 of Martin and Rhodes where the average multiplier for the 36-45 year age group is 11. She said this is a rough average and in her submission 13 is appropriate. On the other hand Mr Yu said the average multiplier mentioned in the table of 11 is correct. 20. The plaintiff is aged 42. There is no evidence to suggest that he would not have been able to continue working as a moulding machine operator for very many years but for this accident. I accept Miss Mok's submission that a correct multiplier is 13. 21. Miss Mok therefore submitted that based on this method of calculation the correct award is $287,976.-- i.e. $1,846 x 12 x 13 = $287,976.00. 22. Miss Mok very properly referred me to another method of calculating loss of future earning capacity. This is set out by Barker J.A. in Li Ping Sum v Chan Wai Tong and others (supra) at Pg 7. Barker J.A. said "The difficulty is to put a figure on this loss. The appellant's present income is admitted by the respondent's to be $3,000 per month. Our doctor assessed the appellant's incapacity or disability at 25%, the other at perhaps 15%. We think a reasonable way of assessing loss of future earning capacity would be to take a midway percentage figure, namely 20% and say that her loss of earning capacity will be in the order of $600 a month. That is one fifth of her present salary." To this of course must be applied the appropriate multiplier. In this case such a calculation using the 60% disability figure would give a figure of $266,385.60. 23. In this present case on careful reflection I consider the first method of assessment to be appropriate given the particular facts of this case. Accordingly, I award under this head $287,976.00. Special Damages
Summary
24. In line with authority (Wright v British Railway [1983] 3 WLR 211; Leung Ngan v Ng Chai Man and another. Civil Appeal 55/83.) I award interest on pain suffering and loss of amenities at 2% p.a. from date of the service of the writ until judgment and on special damages at the rate of 7% p.a. from the date of the accident until judgment. There will be no interest on the sum awarded for the loss of future earning capacity. A credit will be allowed for any sum paid to the plaintiff pursuant to the agreement under the Employee's Compensation Ordinance CAP 282. 25. There will be an order for payment of the plaintiff's costs by the defendant and for the plaintiff's own costs to be taxed under the Legal Aid Regulations. There will be a certificate for counsel.
Representation: Miss A. Mok instructed by D.L.A. for Plaintiff Mr Yu of Messrs Ford, Kwan & Co for Defendant |