Lam Kwok Hung v. Chow Chi Chung t/a Hong Kong Motors Factory

HCA008814/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Barrington-Jones in Chambers

Date: 5th August 1983

Appearances: Mr R.F.A. Wills (Director of Legal Aid) for Plaintiff

Mr Cheng King-yiu, appearing as representative of the Defendant Company

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages consequent upon interlocutory judgment having been entered against the defendant on the 12th November, 1982.

2. Damages are sought in respect of an injury suffered by the plaintiff on the 7th September, 1980 when operating a power press at the defendant's factory when his right index finger was trapped in the press. The plaintiff was taken to Princess Margaret Hospital where a revision amputation was performed at the proximal interphalangeal joint level. He was discharged from hospital on the 8th September but continued to attend for outpatient treatment at the South Kwai Chung Hospital. On the 16th October 1980 a skin graft was applied to the stump of the injured finger. The Plaintiff has lost the use of his right index finger and has been left with a loss of grip in his right hand. In December, 1980 a Medical Board assessed his permanent disability at 10%. The plaintiff was granted sick leave from the 9th September until the 24th November, 1980.

3. Prior to the accident the plaintiff had been working at the defendant's factory for about three months, it was a permanent job, and he said that at the time of the accident (when he was 20) he had intended to continue as a power press operator for the rest of his life. However, after he had recovered from his injury the plaintiff did not return to work but decided to resume his studies by repeating Form V. This he commenced in October, 1980 and later passed the examination in a number of subjects; and he has since written the Matriculation Examination and is currently awaiting his results. The plaintiff realises that much will depend on his results; he would like to go on to study social science or pure science, but he accepts the fact that if he is unsuccessful in this he will probably have to seek a clerical post.

GENERAL DAMAGES

4. In assessing damages under the head of pain, suffering and loss of amenities Mr Wills drew my attention to Fung Lai-yin v Lai Kam-chiu (OJA 2916 of 1977) where Mr Registrar O'Dea (as he then was) awarded $22,500 in 1978 to an 18 year old worker who had sustained similar injuries in a factory accident. Mr Wills submitted that with the effluxion of time and taking into account inflation (at 10% per annum) the award today should be $32,000. But I believe that that assessment should be contrasted with Leung Wing Kai (an infant suing by his next friend TSE PUI KING and SHUN DIK Industrial Company (unreported) where Master Betts awarded $55,000 in April, 1982 under this head to a 16 year old worker who had lost three fingers (including the index finger) in a similar factory accident in 1978; as well as my own assessment in Chen Yau Hing and Cheung Yuk Wing (HCA 2190 of 1982) which dealt with injuries sustained in similar circumstances to this case but where the plaintiff suffered rather more extensive injuries to his right hand; and where $30,000 was awarded under this head.

5. In endeavouring to reach a fair assessment and accepting that awards of this nature continue to rise steadily if only in an attempt to take account of inflation. I believe the proper award here should be $28,000.

SPECIAL DAMAGES

(1)    Loss of Earning Capacity

Turning to the question of loss of earning capacity I find this rather more difficult to assess. I note that in both Fung Lai-yin etc. (supra) the plaintiff was required to change tiades as a result of his accident, and in Leung Wing Kai etc. (supra) (whore the facts are very similar to this case) the plaintiff also resumed his studies after recovering from his injuries.

Dr Wedderburn in his report in the instant case has pointed out that if the plaintiff completes Form VI he might be eligible for a white collar job ........ "in which case his impairment would not affect his earning capacity but he would find difficulty doing any job which required bi-manual dexterity ........" So that it is in this context that I must approach the assessment of the award. In this regard I take note that Mr Registrar O'Dea awarded $15,000 whilst Master Betts in his (rather more serious case) considered a global figure of $80,000 and awarded $25,000. In Chen Yau Hing's case (supra) L awarded $35,000 under this head. Mr Wills suggests that the award here should be $22,500. After much thought I have reached the conclusion that the proper award should be $22,000.

6. The plaintiff has already received 9311,397.33 by way of Workmen's Compensation and this amount must be deducted from the damages awarded.

7. Interest on the General Damages for pain suffering and Loss of amenities will be at the rate of 2% per annum from the date of service of the writ to judgment by virtue of the decision of Fuad J.A. in Leung Ngan and Ng Chai Man/The Kowloon Motor Bus Co (1933) Ltd (Civil Appeal) 1983 No. 55 delivered on the 19th July 1983 following the decision of the House of Lords in Wright v British Railways Board (The Times 29th June, 1983); with interest on the Special Damages in the sum of $5,162 at the rate of 5.59%. per annum from the date of accident until judgment.

8. There will be costs to the plaintiff, to be taxed under the Legal kid Regulations.

Representation:

Mr R.F.A. Wills (Director of Legal Aid) for Plaintiff

Mr Cheng King-yiu, appearing as representative of the Defendant Company