Fung Lai Yin v. Lai Kam Chiu t/a Man Chiu Metal Factory

HCMP002916/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 25th January, 1978.

Mr. Ronny Tong instructed by Rowdget W. Young & Co. for Plaintiff.

Defendant - absent.

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JUDGMENT

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1. This is an assessment of damages consequent upon interlocutory judgment having been entered against the defendant on the 19th day of November, 1977.

2. Damages are sought in respect of injuries suffered by the Plaintiff on the 28th day of July 1976 when his right hand was caught in a press machine at his place of work.

3. The injuries sustained involved the loss of the terminal and middle phalanges of the forefinger and scarring and deformity at the terminal interphalangeal joint of the right middle finger. This is the extent of the injuries for which general and special damages are claimed.

General Damages

(1) Pain, suffering and loss of amenities

4. Immediately after the accident the plaintiff was referred to Queen Elizabeth Hospital where the amputation at the proximal interphalangeal joint was carried out and the laceration to the middle finger was sutured. He was admitted overnight and discharged the following day. An assessment was subsequently made by the Medical Board at Queen Elizabeth Hospital on 18th September 1976 which arrived at a figure of 12% permanent disability.

5. Evidence was given by Doctor Wedderburn of an examination he carried out after the injuries had settled. He found the stump of the index finger in good position but the restriction of movement in the middle or 3rd finger was such that he felt the assessment of permanent disability was closer to 18%. While I do not propose to try and settle the differences between the findings of the Medical Board and Dr. Wedderburn, I am satisfied that the latter conducted an extensive examination and the resulting report is, as usual, a very fair and thorough assessment of the plaintiff's situation as a result of the accident.

6. While some initial pain must have been suffered the plaintiff has not complained of any long-term discomfort except for a slight numbness of the tip of the 3rd finger in certain positions. He is able to write using his right hand and generally his pattern of living will not be seriously disturbed by the injuries he received. There will, of course, be the expected difficulties normally associated with such injuries including a loss of dexterity in performing many everyday functions and a reduced standard of ability in sporting activities.

7. I do not discount the fact that the plaintiff will occasionally have to encounter curiosity and thereby suffer some degree of embarrassment due to the appearance of his hand.

8. In considering an assessment of damages under this head I have been referred to a number of English awards in similar cases. These are always valuable as a guide but the elements of inflation and the particular circumstances of each case require that every assessment must be considered on its own merits within the general framework of the principles to be applied in reaching a figure which will appropriately compensate the injured person for the pain, suffering and loss of amenities which have resulted.

9. In all the circumstances I believe that a proper award for this head of damages would be $22,500.00.

(2) Loss of Future Earnings

10. At the date of his accident the plaintiff had been employed for just six weeks as a mould-making apprentice and was aged 18 years. The term of such an apprenticeship is normally three years and his salary at the time was $320 per month. On completing an apprenticeship I have heard evidence that a mould-maker can expect to earn $40 per day and together with overtime this can mean earnings of up to $1,500 per month. As a result of the accident the plaintiff's ability to continue in such work was threatened and instead he turned to the electrical trade where he commenced an apprenticeship which he is presently still serving at a monthly salary of $676 per month. The daily rate of a qualified electrician is $40 but I am told by the plaintiff that the opportunities for overtime are restricted and at most the monthly earnings would be $1,100. On this basis I am asked to assess $400 as a multiplicand, and, in view of the plaintiff's age, 15 as being the appropriate multiplier.

11. The assessment of loss of future earnings must not be based on speculative evidence but rather on evidence upon which the Court can find that the plaintiff will suffer actual loss. I am asked to find that the monthly salaries of a mould-maker exceed those of an electrician by $400 per month due to limited overtime being available in the latter trade. The only evidence to support this is a simple statement by the plaintiff who has been an apprentice in that trade for less than a year. I am also asked to assume that he would have completed his apprenticeship and thereafter worked the maximum amount of overtime available as a mould-maker. The evidence can, in no way, be described as strong and the contingencies present are wide-ranging and numerous. As Diplock L.J. said in "Browning v. War Office" [1963] 1 Q.B. at p. 766:-

"A plaintiff is not entitled to damages for loss of capacity to earn money unless it is established that he would, but for his injuries, have exercised that capacity in order to earn money".

12. In the circumstances I do not consider it appropriate to attempt to specify either a multiplicand or a multiplier. I do accept, however, that the plaintiff's injuries will prevent him from engaging in certain categories of employment and some award for loss of prospective earnings should be made. To this end I propose to assess a lump sum payment to compensate for the loss of the plaintiff's probable use of his pre-accident capacities. In view of his youth and the other contingencies present I believe that an appropriate award should be $15,000.00.

Special Damages

13. The only head of special damages claimed is that of loss of earnings. Although a period of approximately 2 months sick leave was certified as due to the plaintiff, evidence has been adduced that despite all reasonable effort he was unable to gain further employment until 4th February 1977. I am satisfied that there was no failure on the plaintiff's part to mitigate his losses in this regard and will award him loss of earnings from the date of the accident until 3rd February 1977 at the rate of $320 per month. This amounts to $2,000.00.

14. From the general damages awarded and totalling $37,500 will have to be deducted the sum of $7,071.35 being the amount earlier assessed under the Workmen's Compensation Ordinance. Special damages of $2,000 will attract interest at 4% per annum from the date of the accident. In view of the fact that the plaintiff will soon be 21 years of age I do not propose to make any restrictions on payment out to him of the proceeds of his claim.

15. The plaintiff is entitled to his costs with a certificate for counsel to be taxed in accordance with the Legal Aid Regulations.

16. Dated this the 25th day of January, 1978.

Representation:

Mr. Ronny Tong instructed by Rowdget W. Young & Co. for Plaintiff.

Defendant - absent.