Ng Wing Wah v. Chun Hing Metal and Plastic Mould Factory

HCA005389/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

BETWEEN

Coram: Master Hansen in ^Chambers

Date of Hearing: 16 December 1983

Date of Delivery: 23 December 1983

Mr. Wills - Director of Legal Aid for plaintiff

Defendant - no appearance

__________________

Assessment of Damages

__________________

1. No representative of the defendant firm appeared at the hearing of this assessment of damages. Mr. Wills properly informed me that a representative of the defendant telephoned the legal Aid Department seeking as adjournment. Quite properly they were told to approach the court to seek an adjournment. They have not done so and the matter must proceed.

2. On the 16th May 1980 the plaintiffs' right hand was crushed by a plastic injection moulding machine at the defendant's factory. The plaintiff was employed by the defendant and at the time of the accident he was aged 20 years.

3. The writ was issued on the 6th May 1983 and upon the defendants failure to file a notice of intention to defend interloctury judgment was entered on the 8th August 1983.

4. Pursuant to a notice under 0.38 R.S.O. The following documents were produced: -

5. The two documents pursuant to the Workman's Compensation ordinance CAP 282 reveal the defendant as the employer. The plaintiff, as employee, has his occupation shown as "die and tool technician." The documents also reveal that the plaintiff was injured while fixing a mould. These are matters of some significance as will later become obvious.

6. The Government Medical assessment shows the plaintiff's loss of earning capacity to be 29%.

7. Dr. Lam's report shows that the plaintiff was admitted to Princess Margaret Hospital following the accident. Examination showed that there was extensive soft tissue damage with fractures of the 1st, 2nd & 3rd metacarpals and proximal phalanx of the right thumb. Debridement and K-wire fixation of the fractures were performed under general anaesthesia on the same date. Because of the extensive soft tissue and bony injury the right hand became very stiff. As a result the plaintiff underwent reconstructive surgery on four separate occasions. The plaintiff also attended physiotherapy well in excess of one hundred times.

8. Dr. Wedderburn's report reveals that the plaintiff had lost most of the muscles in his right hand. The thumb joints had been fused but there was some thumb movement because of the metacarpals stretching from the wrist. There was fusion of the index finger at the metacarpal joint and restriction of movement at the other joints. The middle finger had restriction of movement at all joints and the ring finger restriction at the metacarpo-phalangeal where the finger joins the hand. The fifth finger was normal. The extent of these injuries was very severe indeed and having observed the plaintiff's right hand I would say it could be properly described as a claw.

9. Dr. Wedderburn went on to say that the plaintiff's grip with his right hand was 401b i.e. 50% of the left hand. Dr. Wedderburn also said that the plaintiff had done remarkably well to be able to do the work he does which requires some manual dexterity. He concluded by saying "The combined value of the impairment of the whole man is 34% and I consider that his disability from an earning point of view is the same figure."

10. The plaintiff gave evidence as did a fellow employee Mr. Chow Shing-fai who was subpoened to attend.

11. The plaintiff gave evidence that before commencing work for the defendant firm he completed full time schooling in 1973. After this he successfully completed an evening course in, what he described as, wireless technology in 1974-75. In 1978-80 he successfully completed Forms 1 and 2. During the period from 1973 to 1980 his daytime work was usually metal work or mechanical work, including working on some of the types of machines used in the defendants factory. He said he was recruited in 1980 by the defendant to learn mould making. In other words he was to be trained in making the moulds that were then used in the plastic injection moulding machines. He said that because it was a small factory he was sometimes required to operate the moulding machines. His estimate was that he spent 80% of his time engaged in the mould making side of the factory and about 20% of his time operating the moulding machines. Some of the use of machines apparently involved the fitting of new moulds or the repair of existing ones. ^The plaintiff then went on to say that the training of mould makers took 3 years. Apparently, it was not a registered apprenticeship but consisted of "on job" training.

12. The plaintiff then described his hospitalisation and the numerous operations he had to undergo including 3 skin grafts. He said that on each occasion he was admitted to hospital for about 4 to 5 days. The skin grafts were taken from his thigh leaving an area of raised scarring 4" x 5". The plaintiff showed me his hand and the very limited movement of his thumb and finger. As I said earlier it could properly be described as a claw. He said his right hand was his preferred hand. He could still write, but very slowly, and the characters were not well formed. He attempted to use chopsticks with his left hand but generally if a spoon was available he would use that. He could not open his hand fully and could only grip large objects lightly between his thumb and forefinger. Indeed his right thumb was so badly misplaced it gave the appearance of being a fifth finger. He gave evidence of the difficulties he encountered trying to work with his right hand. These difficulties were so obvious that I do not consider it necessary to detail them here.

13. The plaintiff was on sick leave until the 31st July 1981. He returned to work on the 1st August 1981 and worked for one month at Kam Hoi Metal Works earning $60 per day. This position only lasted one month. He was unemployed in September 1981 but during October 1981 he worked for Ngai Hoi Metal Works Co. earning $40 per day.

14. In November 1981 he returned to work for the defendant where he has remained ever since. When he recommenced work there he was paid $50 per day. Since that time he was received a number of increments so that at the present he is earning $70 per day. He works 26 days a month giving a monthly salary of $1,820. He said he works 2-3 hours overtime a month and is provided with a daily meal.

15. Mr. Chow Shing Fai also gave evidence on behalf of the plaintiff. He was subpoened to give evidence. He was a mould maker employed by the defendant. He corroborated the plaintiff's evidence of the 3 year "on job" training undergone by mould makers. He also confirmed that in the early part of his training he spent a small part of his time operating the injection moulding machines and most his tine learning the craft of mould making. He said there were three moulders at the defendant's factory. One of these was the plaintiff who assisted the withess and the other moulder. Their department was on the 12th floor whilst the manufacturing process was carried out on the 16th floor. He outlined the limitations the plaintiff faced in his work. He said the plaintiff is unable to hold a number of tools and cannot work on the more delicate moulds. At one point in him evidence the witness said "He knows what is required but his injury prevents his doing a lot of the work." He went on to say that his income as a mould maker was $3,500 p.m.

16. That was the evidence for the plaintiff.

Pain Suffering and Loss of Amenities

17. Mr. Wills referred me to a number of helpful authorities.

18. Wong Yuk-tin and Cheung Chuen-lam HCA 988/82 (13 H.K.L.J. 425) In that case there was 30% loss of grip in the right hand. Disability was assessed at 25% but there were some injuries to the leg as well. $50,000 was awarded in April of this year.

19. Chen Yau-hing v Cheung Yuk-wing HCA 2190/82(13 H.K.L.J. 240) The injuries in this case  were much less serious than those suffered by the plaintiff. In November of 1982 Master Barrington-Jones awarded $35,000.

20. Leung Wing Kai 9(an infant) v Shen Dik Industrial Cc HCA 2800/81 (12 H.K.L.J.) the plaintiff had this middle, index and ring fingers amputated. Disability was assessed at 30%. In April 1982 Master Betts awarded $55,000.

21. To Wai Bun v Hon Hing Manufacturing Co. HCA 4529/79 (H.K.L.J.) The plaintiff here suffered very serious injuries to his left hand. Permanent disability was assessed at 48%. In December 1981 Jones. J. awarded $65,000.

22. Mr. Wills also referred me to the decision of the Court of Appeal in Lee Ting-lam v Leung Kam ming /1980/ HKLR 657. He submitted that the plaintiff in this case fell within the category of "serious injury" mentioned by Cons J. A. at Pg 660. This is the category where the injury leaves a disability marring general activities and enjoyment of life but allows a reasonable mobility. The Court of Appeal said such injuries should attract awards in the rage of $60,000 - $80,000.

23. /.....

24. In Leung Kwong v Laen Fat Chemical Co Ltd HCA 6789/82 (13 HKCJ 5425) the amputation of a hand was placed at the top of the "substantial injury" category. In this present case the Medical Board assessed the plaintiff's disability at 29%. Nearly two years later Dr. Wedderburn's assessment was 34% Dr. Wedderburn's assessment is much more recent and I accept his assessment. As well I much take into account the many operations the plaintiff had to undergo. Given this assessment and having observed the plaintiff's had I am satisfied that Mr. Wills submission is correct and that the plaintiff's injury places him at the bottom end of the "substantial injury" category.

25. The amount of awards under the categories set out in Lee Ting Lam v Leung Kam Ming (supra) was the subject of the recent decision of the Court of Appeal in Li Ping Sum v Chan Wai tong and others. CA 53/83. At page 6 Barker J. A. said, " If ore looks at the Hong Kong Monthly Digest of statistics for August 1983, it will be seen that the value of money has fallen between May 1980, which was the date of Lee Tin Lam's decision and today by well over 40% and in our judgment the figures set out in Lee Ting Lam should now be increased by about 50%.

26. Accordingly, under this head I award $90,000.

Loss of Future Earning Capacity

27. Mr. Wills submitted that the appropriate multiplicand was $1,600 per month. He said the plaintiff's current income was $1,820 per month which would increase to $1,900 per month, after taking into account his meals and the small amount of overtime available to him. He submitted that, but for the accident, the plaintiff would have been employed as a qualified moulder earning $3,500 p.m. the same as the witness Chow Shing Fai. Deducting his actual income from this finger gives a resulting multiplicand of $1,600.

28. However, one difficulty arises. At the time of the accident the plaintiff had only been employed by the defendant for ore month. Both the plaintiff and his witness agreed that it took 3 years of training to qualify as a mould maker. I accept the plaintiff's evidence that he was recruited to learn the mould makers trade. This is reinforced by the description of the plaintiff's occupation in the two Workmen's Compensation forms that were produced pursuant to 0.38. In the English translations he was described as a "Die and Tool Technician." However, when he later read this passage from the original forms it was interpreted as mould technician. The interpreter explained that is was difficult to translate the Chinese characters into English but stated "mould technician" was a more accurate translation.

29. Mr. Wills had adduced evidence from the plaintiff of his educational and employment record before he commenced work with the defendant. This evidence revealed that although +he plaintiff ceased full time schooling in 1973 he did undergo further education after that. It is clear from the evidence that the plaintiff successfully completed, on a part time basis, Forms 1 and 2 and a technical course, Further, as stated earlier, Mr. Chow Shing-fai indicated that the plaintiff knew what was required of a mould maker but was prevanted from doing a substantial part of that work because of his injuries.

30. /.....

31. Even though the plaintiff had only commenced his training about one month prior to the accident the combination of the factors outlined above satisfy me that ho would have successfully completed his training as a mould maker in April of this year. I am also satisfied that, on completion of that training, he would have received an income of $3,500 per month from that date.

32. Accordingly, I agree with Mr. Wills' submission that the correct multiplicand is $1,600 p.m.

33. Mr. Wills also urged me to apply a multiplier of more than 15. He said this was appropriate because the plaintiff was only aged 24 years 4 months at the date of the hearing. A multiplier is to be arrived on by considering the number of years over which a plaintiff's disability will last. This period is, of course, to be reduced by taking into account the probable working life of the plaintiff, the fact that the sum received is paid immediately and the vicissitudes of life. (see the comments of the learned authors of "Damages for Personal Injuries and Fatal Accidents in Hong Kong"; Martin and Rhodes, Butterworths 1982 at Pg 352 and the cases there cited.) Taking into account those factors I am satisfied that the appropriate multiplier is 17.

34. Using this method of calculation the award for loss of future earning capacity is

35. 1600 x 12 x 17 "= $326,400.

36. Mr. Wills also referred me to an alernative method of calculation as applied in Li ping Sum v Chan Wai Tong and others (supra). There the Court of Appeal equated the plaintiff's degree of incapacity or disability with loss of future earning capacity. To apply that formula to the present case one taked the disability percentage of the plaintiff's present, income and applies an appropriate multiplier. The calculation is: -

37. $646 (i.e. 34% of $1,900 p.m.) x 12 x 17 = $131,784.

38. Given the peculiar facts of the present case I consider the first method of assessment to be appropriate. Accordingly, I award $326,400.

Loss of Income (Accident to Trial_)

39. Damages under this head were not pleaded with particular clarity. The plaintiff was off work from the date of the accident until the 1st August 1981.

40. For the first year of this period I award damages based on his income at the date of the accident. This was $50 per day and he worked 26 days per month. This gives a figure of $15,600 (i.e. $50 x 26 x 12 = $ 15,600)

41. I accept that at the end of this year he would have received a 10% inflationary increase and is therefore entitled to $3,575 (i.e. $55 x 26 x 2½ $3,575) for the period from the 16th May 1981 until he commenced work.

42. /.....

43. He was employed during August of 1981 at $60 per day. In September 1981 he was unemployed and is therefore entitled to $1,430 (i.e. $55 x 26 = $1,430)

44. In October 1981 he was employed at $40 per day in a metal works factory. I find that, but for the accident, he would have been receiving $55 per day and for this month he is entitled to $390 (i.e. $15 x 26 = $390)

45. In November 1981 he returned to work for the defendant where he has remained. In the course of submissions I asked Mr. Wills what income the plaintiff would have received from November 1981 until he completed his 3 year training in ^April of this year. I raised this query because the point had not been covered in the evidence. Mr. Wills took instructions from the plaintiff and advised that the plaintiff accepted the income he actually received for that period (with the various increments) was the some as he would have received as trainee mouldmaker. Accordingly, he suffered no loss for this period.

46. However, I found earlier that I was satisfied the plaintiff would have received an income of $3,500ppm. once he completed his training. He is therefore entitled to a further $12,000. (i.e. $1600 p.m. x 7?month = $12,000) for the period from the 1st day of May 1983 until this hearing.

47. For or loss of income from the date of the accident to the hearing I award: -

Hospital Charges

48. Receipts were produced and I award $90 as claimed.

Physiotherapy Charges

49. Again receipts were produced and I award $417 as claimed.

Travelling Expenses

50. The plaintiff had to attend hospital on a number of occasions and attended physiotherapy more than 100 times. His evidence was that he sometimes travelled by bus and sometimes by taxi. I award the $400 as claimed.

Nourishing Food

51. The plaintiff gave evidence of having taken nourishing food during the early part of his convalescence. He clearly believed in its benefits. I award the modest sum of $500 as claimed.

Summary

52. /.....

53. I award interest on the award for pain suffering and loss of amenities at the rate of 2% p.a. from the date of the service of the writ to the date of judgment. There will be interest on the special damages at the rate of 7% p. a. from the date of the accident to the date of judgment. There will be no award of interest on the award for loss of furture earning capacity. A credit will be allowed for any sum paid to the plaintiff pursuant to the Employee's Compensation ordinance CAP 282.

54. There will be an order for payment of plaintiff's costs by the defendant ( to be taxed failing agreement) and for the plaintiff's own costs to be taxed under the Legal Aid Regulations.

Representation:

Mr. Wills - Director of Legal Aid for plaintiff

Defendant - no appearance