Ty Kwei-sang v. Fong Sui-hoi t/a Wey Hing Industrial Co

HCA006191/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Roy in Chambers.

Date of Judgment: 1 May, 1981.

Mr. W.A. Endean instructed by the Director of Legal Aid for Plaintiff.

Defendant in person.

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JUDGMENT

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This is an assessment of damages consequent upon interlocutory judgment having been entered against the defendant on the 10th day of January, 1981.

Damages are sought in respect of injuries suffered by the plaintiff on the 29th day of August, 1979 when his right hand was caught and crushed in a moulding machine at his place of work.

The injuries sustained by the plaintiff involved the amputation of the four fingers of his right hand at mid-palm level. In addition, he suffered damage to the function of his thumb.

General Damages

(1)Pain, suffering and loss of amenities

Immediately after the accident the plaintiff was admitted into Queen Mary Hospital Orthopaedic Ward and operations were carried out on 29th August, 1979 and again on 7th September, 1979. Following his discharge from hospital shortly afterwards he had to report several times a week for dressings and later for physiotherapy. Subsequently a Medical Assessment issued by the Medical Board of Queen Mary Hospital on 28th December, 1979 showed the plaintiff's permanent disability to be 46%.

A medical report from Dr. R.G.M. Wedderburn dated 3rd June, 1980, some 9 months after the accident, put the extent of the plaintiff's disability at 76% impairment of the hand and 41% of impairment of the whole man. The plaintiff's permanent loss of earning capacity was considered to be 55%. It is obvious that Dr. Wedderburn conducted a thorough examination and I am satisfied that his report constitutes a fair and balanced account of his medical findings as regards the plaintiff's injuries resulting from the accident.

The plaintiff undoubtedly sustained considerable pain and suffering as a result of his injuries. He stated in evidence that he still suffers from an apparent irritation or itchiness in the fingers, commonly referred to as phantom limb symptoms. The weather also affects the comfort of his hand. Naturally as a right-handed person he is no longer able to perform many common everyday tasks satisfactorily, such as using chopsticks, assisting his wife around the house and dressing himself. He was supplied with a stiff plastic cuff or glove covering the stump and from which a thin metal rod protrudes widening at the tip to an oval pad. To a limited extent he can use this for gripping or lifting. He was also fitted at one stage with a primitive type of artificial hand but he found it uncomfortable and does not normally wear it. There is no doubt that his normal pattern of living has been seriously disturbed, since for most practical purposes his right hand is virtually useless. In addition his injuries will no doubt be a source of some embarrassment to him.

I have been referred to a number of Hong Kong cases but none are directly in point. In Lee Ting-lam v. Leung Kam-ming (Civil Appeal No. 11 of 1980) the Court of Appeal divided disablement into four categories according to severity. I am satisfied that the plaintiff's injury leaves a disability which considerably mars his general activities and enjoyment of life. As such it falls within the first category of serious injury referred to in that case. In all the circumstances, I believe a proper award under this head of damages would be $65,000.

(2)Loss of future earnings

At the date of his accident the plaintiff had been employed as an injection moulding machine operator for more than a year. His identity card was produced to me at the hearing and I am satisfied he was aged 36 at the time of the accident. About four months after the accident he was able to return to his employment but due to his injuries could not perform the same work. He was assigned to less skilled work in the packaging department and as a result suffered a loss of production incentive bonuses and overtime.

Statements covering the plaintiff's total earnings (including bonuses and overtime) from his employment with the defendant during the period from September, 1978 to March, 1981 were produced. Although I was asked to find that these supported a loss of earnings of approximately $525 per month due to the accident, I consider a more accurate figure is $427 per month. For eight complete months prior to the accident I find on the information available that his average monthly pre-accident earnings were $1,709. On a similar basis from January, 1980 to the end of February, 1981 (omitting May and September) his average monthly post-accident earnings are $1,282. The use of these longer periods in calculating average monthly earnings minimises the effect of seasonal fluctuations which I am told are a feature of the plastics business. I therefore adopt $427 as my multiplicand.

Taking all the circumstances into account including lump sum award, the age of the plaintiff, the degree of his permanent disability and the vicissitudes of life, I intend to adopt a multiplier of 12. This gives a figure of $61,488 for future loss of earnings.

(3)Loss of earning capacity

I was asked to award a separate sum under this head in view of the difficulty the plaintiff would encounter in finding other employment should he lose his present job and be thrown on to the labour market. There was, however, evidence that the defendant valued the services of the plaintiff and in fact telephoned him and asked him to return to his employment. The defendant also said in evidence that the plaintiff is a good worker and he wishes to continue employing him. I am satisfied the plaintiff is assured of employment in the foreseeable future, albeit at a rate of earnings below that which he enjoyed previously, and the risk of his being thrown on to the labour market is negligible.

In Lee Woon-sun v. Wong Kin-keung & Ors. (1976) HKLR at page 301 Huggins, J.A. had this to say "Although I appreciate that in assessing loss of earning capacity one may have to have regard to various possible elements of damage, it seems to me that to treat loss of future earnings as an entirely distinct head of damage is wholly artificial and liable to cause confusion. In the present case the loss of earning capacity can properly be assessed solely by reference to loss of future earnings".

With respect, that appears to me to be the position in this case. There is clearly an ascertainable and quantifiable loss of future earnings. In the circumstances I make no separate award under this head.

Special Damages

(1) Loss of earnings

Having fixed plaintiff's average pre-accident earnings at $1,709 per month, the sum of $6,836 is awarded for the period of four months up to 1st January, 1980. From then until the end of October, 1980 when the writ was issued the loss must be calculated at $427 per month, which is $4,270. The total awarded under this head is therefore $11,106.

(2) Hospital fees

I award $86 under this head, being the amount claimed.

(3)Transport expenses

The amount claimed is $100 representing fares to and from hospital for the plaintiff and also for his mother who at that time was his only relative in Hong Kong. I allow this sum.

From the general damages awarded and totalling $126,488 will have to be deducted the sum of $40,355.33 being the amount paid by the defendant to the plaintiff under the Workmen's Compensation Ordinance. The balance will bear interest at the rate of 12 1½% per annum from date of service of the writ to date of payment. Special damages of $11,292 will attract interest at 5% per annum from the date of accident until payment.

The plaintiff is entitled to his costs to be taxed in accordance with the Legal Aid Regulations.

Dated this 3rd day of April, 1981.

Representation:

Mr. W.A. Endean instructed by the Director of Legal Aid for Plaintiff.

Defendant in person.