Mak Kwok Ping v. Lui Nam t/a Nam Ying Creasing Paper Box Factory
Read the full judgment text of HCA 7084/1983 on BabelCite. This High Court CFI judgment.
1. On 5th August 1980 the Plaintiff was operating a power press machine during the course of his employment with the Defendant when his right hand became trapped in the power press.
Cited by 1 case
|
HCA007084/1983
IN THE SUPREME COURT OF HONG KONG HIGH COURT BETWEEN
Coram: Master Clay in Chambers Date of Hearing: 24 October 1983 Appearances: Miss Mok instructed by Director of Legal Aid for plaintiff Defendant present unrepresented. __________________________ ASSESSMENT OF DAMAGES __________________________ 1. On 5th August 1980 the Plaintiff was operating a power press machine during the course of his employment with the Defendant when his right hand became trapped in the power press. 2. As a result the Plaintiff suffered lacerations and fractures of various bones in his right hand. The wounds were sutured and a skin graft was applied in two places. He was in hospital for one month and after discharge was subsequently readmitted for a further week for the release of a contracture between the thumb and the palm. He now has two unsightly scars one on the back of his hand and one across his palm. There is gross muscle wasting of the hand, all fingers are bent back by at least 300 where they join the hand and there is gross interference with finger movements. 3. He told me that he could no longer use his right hand to wield chopsticks and has had to learn to use his left hand for that purpose. He said that he could still write as quickly with his right hand provided he positioned the pen carefully in his right hand but the clarity of the writing had deteriorated significantly. He admitted that he could still manage the controls on his motorcycle and drive a car but found actions such as, inserting the key in the ignition impossible to perform with his right hand. 4. The Plaintiff was granted a functional loss of 159 by the Medical Assessment Board on 3rd March 1981. Dr Wedderburn in a report of 6th May 1982 describes the use the plaintiff gets now from his right hand as partial, very inefficient and as seriously affecting his earning capacity. He assesses the impairment as 28% of the whole man and the permanent disability as the same. There is a substantial difference between the 15% assessment of the Medical Assessment Board and the 289 of Dr Wedderburn. However I note firstly that the report of Dr Wedderburn was prepared over a year later than that of the Board when a clearer picture of the long term effects could perhaps be seen and secondly that Dr Wedderburn sets out fully his reasons for arriving at that figure. I propose therefore to accept Dr Wedderburn's figures. 5. At the time of the accident the Plaintiff was single. He had been working for the Defendant for about 1 year earning a basic salary of $1,532 per month which with food allowances and overtime brought his monthly wage up $2,068. In addition at New Year he received double his basic salary. These figures were all accepted by the Defendant. The Plaintiff told me he had been an apprentice for about 1 year and was a trained operator. 6. The Plaintiff has claimed two items of general damages, firstly for pain and suffering and loss of amenities and secondly for loss of earning capacity. pain Suffering and Loss of Amenities 7. I was referred to three cases firstly Chan Wai Man v Luk Shuet King HCA No. 5088 of 1979 where Mr Commissioner Barnes awarded the sum of $40,000 for injuries to the plaintiffs right hand. Miss Mok conceded that the injuries in that case were slightly more serious than in the present case. She argued however that at today's figures in line with the guidance in Lee Ting Lam's case that figure should be $60,000. Secondly she referred to Chen Yau Hing v Cheung Yuk-wing H.C.A. No. 2190 of 1982 where the injuries to the hand were of a less serious nature than those suffered by the plaintiff and an award of $30,000 was made. Thirdly I was referred to Wong Yuk-tin v Cheung Chuen Lam H.C.A. No. 986 of 1982 where Master Hansen had awarded $50,000 for injuries of a similar nature to the plaintiff's injuries. Miss Mok urged me to find that the proper sum to be awarded was $50,000. 8. However since the hearing of this matter was concluded the Court of Appeal decision in Li Ping Sum v Chan Wai-tong and others has been given. In the course of the Judgment of the Court Barker J.A. said
9. In my view that reasoning must be applied to any award made in this case. Based on the authorities referred to me I consider that the proper award to have been made prior to Li ping Sum's case was $50,000. In that light of that case that amount must be increased by 50% and I therefore award $75,000 under this head. Loss of Future Earning Capacity 10. I heard detailed evidence from the Plaintiff and from a witness who was until June 1983 employed by the Defendant in the same work the Defendant conceded that the Plaintiff was receiving $2,068 per month. The Plaintiff's witness Mr Chan told me that for the same job he earned $2,700 and for the same job with another employer he now earns $3,000. Miss Mok urged me to accept that if the Plaintiff had still been employed by the Defendant the plaintiff would have been earning $3,000. I agree with that and assess the monthly loss of earnings at $932. In view of his age the multiplier is 15, $932 x 12 x 15 = $167,760 and that is the sum I award under this head. Special Damages 11. Loss of Income 12. The Plaintiff claimed loss of earnings from the date of the accident to the hearing date. I accept these figures subject to 2 matters. Firstly the plaintiff remained away from work from 15th January 1981 to 15th February 1981 despite the fact that he was medically fit to return to work, and I therefore disallow the sum of $2,195.60 claimed. Secondly the Defendant admitted that he paid the Plaintiff $1,100 per month from 15 February 1981 - 15th May 1981 and the loss for this period is therefore fixed at $2,446.80. 13. I therefore award a total of $46,543.98 under this head. 14.Travelling expenses
15. Hospital Charges
16. Physiotherapy expenses
outpatient expenses 17. I award the sum of $21. Summary General Damages
Special Damages
18. Interest on the Special Damages is awarded at the rate of 7% per annum from the date of the Accident to the date of Judgment and on the damages for pain suffering and loss of amenities at the rate of 2% per annum from the date of service of the writ to the date of Judgment. 19. Costs to the Plaintiff to be paid by the Defendant and for plaintiff's own costs to be taxed under the Legal Aid Regulations.
Representation: Miss Mok instructed by Director of Legal Aid for plaintiff Defendant present unrepresented. |
Other judgments that cite this case