Lam Fong Yuen v. Lee Foon t/a Foon Lee Construction Decoration and Furniture Co
Read the full judgment text of HCA 8039/1983 on BabelCite. This High Court CFI judgment.
1. This is an assessment of damages in respect of injuries sustained by the Plaintiff during the course of his employment with the Defendant when his hands were caught by some steel plates on the 26th June, 1981.
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HCA008039/1983
IN THE SUPREME COURT OF HONG KONG HIGH COURT __________ BETWEEN
________ Coram: Master Barrington-Jones in Chambers Date of Hearing: 1st December, 1983 Appearances: Mr Thomas Lai instructed by the Director of Legal Aid for Plaintiff Defendant present (unrepresented) ________________________ ASSESSMENT OF DAMAGES _________________________ 1. This is an assessment of damages in respect of injuries sustained by the Plaintiff during the course of his employment with the Defendant when his hands were caught by some steel plates on the 26th June, 1981. 2. The Plaintiff's injuries were relatively minor involving as they did a cut left thumb and palm and a laceration of the right thumb; suturing was carried out at Princess Margaret Hospital where he was detained overnight, but there were complications. 3. The sutures were removed eight days later and the Plaintiff attended a Government Physiotherapist for ultrasound treatment of the left hand for three sessions in August and early September 1981; the Physiotherapist noting that there was no improvement of the hypersensitivity of the soar after the completion of these sessions. The plaintiff continued to have some pain and numbness in the left hand and he was re-admitted to princess Margaret Hospital on the 14th September, 1981 where a neuroma (small scar mass) was found and excised. On the 16th November, 1981 he was assessed by the Medical Assessment Board to have no permanent disability. 4. When Dr Wedderburn saw the Plaintiff in April, 1983 he noticed a neuroma forming a small tender mass affecting the digital nerve to the outside of the 5th finger of the left hand; he thought that this did not affect the nerve function "although pressure may cause mild pain and discomfort." On the 6th June, 1983 Dr Wedderburn excised this small mass from the 5th finger side of the Plaintiff's left hand. On the 28th June, Dr Wedderburn saw the Plaintiff again when he noted that the scar was well healed although the Plaintiff complained of mild pain on pressure of the scar area and some numbness but Dr Wedderburn was satisfied that there had been no loss of sensation on the outside of the 5th finger. 5. The Plaintiff who was 50 years old at the time of the accident was granted sick leave from the 26th June, to the 5th October, 1981. GENERAL DAMAGES Pain Suffering and Loss of Amenities 6. Whilst Mr Lai conceded that there was no direct authority, he submitted that there had undoubtedly been a degree of pain and suffering in this case, and suggested that $5,000 should be awarded under this head. I agree with him, and accordingly award $5,000. Loss of Future Earning Capacity 7. A claim for future loss of earning capacity was not pressed by Mr Lai, and if I may so, I believe rightly. SPECIAL DAMAGES (1) Loss of Earnings 8. There is no doubt but that the Plaintiff is entitled to an award under this head in respect of the period of his sick leave i.e. from 26th June to the 5th October, 1981 (3 months and 10 days). I accept that the Plaintiff was earning $4,000 per month as a carpenter at the time of the accident. Dr Wedderburn hints that the Plaintiff might not have been fit for work in October, 1981 so that to be completely fair to him I will award loss of earnings from the 26th June, to the 31st October, 1981 (4 months and 5 days @ $4,000 per month) = $16,666.65. 9. The Plaintiff did not in fact return to work after his sick leave and only started work again as a Storekeeper at $1,400 per month on the 3rd February, 1982. Dr Wedderburn remarks in his report ........ "I can see no justification for his long period off work after October, 1981........" but Mr Lai has asked me to keep in mind that the Plaintiff could not have returned to carpentry at that time if only because he would have been physically incapable of securing timber with his injured left hand whilst working on such timber with his right hand. However Mr Lai concedes that the Plaintiff could have started work in some other capacity from October, 1981 and therefore suggests that the Plaintiff should be entitled to a partial loss of earnings on the basis of the difference between his earnings as a carpenter ($4,000) and his earnings as a storekeeper ($1,400) viz: $2,600. Whilst I have no quarrel with the figure suggested I believe that such award must be limited to a period of 20 months. I say this because I am satisfied on the evidence before me that the Plaintiff would have been finally fit to return to his chosen trade as a carpenter on the let July, 1983, that is to say after Dr Wedderburn had excised the second neuroma from his left hand on the 6th June, 1983; and which had healed satisfactorily when Dr Wedderburn saw the Plaintiff on the 28th June, 1983. I therefore find that the Plaintiff is entitled to such partial loss of earnings for the period 1st November, 1981 to 30th June, 1983 i.e. 20 months @ $2,600 = $52,000. In making this award I take particular note that the Plaintiff admitted in evidence that he had done some carpentry work earlier in 1983, and that he intended to return to carpentry ........ "at some stage in the future". I therefore award a total of $68,666.65 under this head. (2) Travelling Expenses 10. The Plaintiff claims $68 under this head, and such sum is awarded. (3) Hospital and Outpatient Charges 11. The Plaintiff claims $57 under this head, and such sum is awarded. (4) Nourishing Food 12. The Plaintiff claims $200 under this head, and such sum is awarded. (5) Damaged Clothing 13. The Plaintiff claims $50 under this head, and such sum is awarded. SUMMARY General Damages
Special Damages
14. There will be interest on the General Damages at the rate of 2% per annum from the date of issue of the writ to judgment, and on the Special Damages at the rate of 5.5% per annum from the date of the accident until judgment. 15. 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, with a Certificate for Counsel. 16. Dated this 16th day of December, 1983.
Representation: Mr Thomas Lai instructed by the Director of Legal Aid for Plaintiff Defendant present (unrepresented) |