Leung Chor Hung v. Wong Cheung Yuen and Another

HCA003250/1987

1987 No.A3250

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master P.H. O'Donnell in Chambers.

Parties Present: Mr. T. WEI, Counsel instructed by Director of Legal Aid on behalf of the Plaintiff.

WONG Cheung Yuen and YU Kai Chun as named defendants in person and not represented.

Date of hearing: 12th April 1988

Date of decision: 20th April 1988

Date of delivery: 29 April 1988

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ASSESSMENT OF DAMAGES

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1. The Plaintiff sustained an injury to his right hand while operating a power press in the course of his employment with the Defendants on 27th August 1984. The Statement of Claim was filed on 4th June 1987 and the Defendants filed an acknowledgement of service on 19th June 1987 indicating that they did not wish to contest the proceedings. Interlocutory judgment was entered against the Defendants on 13th July 1987 with damages to be assessed.

2. At the hearing of this assessment of damages on 12th April last Counsel for the Plaintiff was granted leave to file an amended statement of claim. The Defendants who were present, but not represented at the hearing, had no objection to this course. The Plaintiff's Counsel produced a bundle of 7 documents under Section 47 of the Evidence Ordinance and Order 38 R.S.C. which had been served on the Defendants on 11th February last. This bundle of documents included medical reports and details of employees' compensation assessment and were admitted in evidence.

3. The injuries to the Plaintiff right and preferred hand are described in Dr. Philip MAO's report dated 20th November 1986 (Document 5 in the Bundle). Dr. Mao's report describes how the Plaintiff suffered partial amputation of his four fingers. The index and little fingers were amputated through the distal phalanx, whereas, the middle and ring fingers were amputated through the middle phalanx. The Plaintiff cannot clench the fingers of his right hand and cannot hold small objects in this hand. He only has a grip of 40 lbs. in his right compared to a grip of 60 lbs. in the left hand. Dr. Mao has assessed the Plaintiff's total impairment as 25% of the whole person.

4. The only oral evidence called at the assessment was from the Plaintiff who described the circumstances of the accident and the subsequent treatment he received at Queen Elizabeth Hospital for the amputation injury to his right hand. The Plaintiff stated that he suffered intense pain and had been conscious throughout. He was discharged from Queen Elizabeth Hospital the following day after a reamputation operation under local anesthesia. He received follow up outpatient treatment at the orthopaedic specialiset clinic on 13 occasions. The Pain in the Plaintiff's right hand persisted for 7 to 8 months and he was given medication to relieve the pain over this period. The Plaintiff stated that the condition of his 4 right fingers is now stable, although on occasions he feels numbness and some pain in his fingers.

5. The Plaintiff described the difficulty he has had in using chopsticks for eating and that he now uses his left hand for this purpose. He said that he can only write a few characters with his right hand at a time and that he has difficulty in picking up and holding small objects with his right hand. He also says he cannot lift heavy objects with his right hand on its own and that he feels embarrassed by the injury. The Plaintiff stated that he has had difficulty in obtaining employment because of the obvious injury to his right hand.

6. The Plaintiff gave evidence that he was granted sick leave from 27th August 1984, as the date of the accident, until 30th April 1985. He has received employees' compensation totalling $45,335.56. The Plaintiffs as re-employed by the Defendants from 1st May 1985 but was later dismissed on 30th April 1986 due to a downturn in the Defendants' business. Over this period the Plaintiff was paid $2,300.00 per month, being the same salary he had been receiving at the date of the accident. After his dismissal the plaintiff tried to obtain alternative employment in the same trade by reporting to the employment section of the Labour Department and by answering newspaper advertisements. The Plaintiff has 28 years experience working in the metal trade and went for 8 or 9 interviews but vas not employed because of the disability to his right hand, In, December 1987 a friend had introduced the Plaintiff to a job as a metal worker in Tsuen Wan on a 2 months trial basis. The Plaintiff is still working in this position and earns $3,800.00 per month on average. During the period he was employed from May 1986 until December 1987 the only work that the Plaintiff was able to, do was casual carpentry work from his home from which he earned about $450.00 per month. He had no other source of income during this period. The Plaintiff is married with 3 dependant children. aged 16, 13 and 9 years respectively. The Plaintiff, who is 58 years of age, intends to work at least until he is 65 years of age by which time his children should all have completed their, education.

7. The Plaintiff stated that his travelling expenses in attending the Kwai Chung south Clinic for orthopaedic specialist treatment were $2.40 return when travelling by bus and between $26.00 and $30.00 return on, occasions when he used a taxi. He paid $10.00 for, each of 13 visits for, out-patient treatment. The Plaintiff took nourishing tonic food in the form of fish soup and Chinese herbal medicine for about 4 - 5 months after the accident which cost a total of $500.00 to $600.00.

8. The procedure adopted at an assessment of damages as well as their rights were explained to the unrepresented Defendants. The Defendants both exercised their rights to cross-examine the Plaintiff on his evidence but to little overall effect. The Plaintiff admitting receiving severance pay of $3,000.00 from the Defendants after the dispute over his dismissal had been referred to the Labour Department. The Plaintiff also conceded in cross-examination that the medical expenses incurred in his treatment for the injury to his right hand had been reimbursed by the Defendants.

9. The Defendants submitted that their business was now very small with no employees engaged and that they could not afford to pay any further compensation. They alleged that they had been forced to sell their tools of trade to pay employees' compensation to the Plaintiff. The Defendants elected not to give or call any evidence witnesses on their behalf but relied on an affirmation of Defendant - WONG Cheung Yuen - filed on 11th April 1988.

10. Counsel for the Plaintiff referred to 4 decisions relating to hand injuries with similar percentages of disability where awards ranged from $40,000.00 to $100,000.00 for pain, suffering and loss of amenities. Taking into account the circumstances of this claim and the decisions referred to the sum of $100,000.00 will be allowed under this head of damages.

11. The next head of damages to be considered is the pre-assessment loss of earnings. During the period of sick leave from the date of the accident on 27th August 1984 to 30th April 1985 the Plaintiff's loss of earnings were $2,300.00 per month, that is, $2,300.00 x 8 months = $18,400.00. Plaintiff's reduced-earnings during the period of unemployment from 1st May 1986 to 15th December 1987, when his only income was $450.00 per month from casual carpentry work, is assessed as follows:

$2,300.00 less 5450.00 = $1,850.00 per month x 19½ months = $36,075.00.

The Plaintiff had taken all reasonable steps to obtain alternative employment during this period.

12. As for post-assessment loss of earnings the Plaintiff present earnings of $3,800.00 per month as a metal worker exceed the average earnings for such workers on the information supplied in Document 7 of the Bundle by the Census and Statistics Department, that is, $115.00 a day including fringe benefits as at June 1987, which is $2,990.00 ($115.00 x 26 days) per month. Counsel for the Plaintiff submitted that a lump sum award for loss of earning capacity was appropriate in this case to reflect the Plaintiff's handicap from this disability in the labour market. There was evidence that the Plaintiff's work performance in the metal trade is affected by his injury so that he must be at risk in continuing indefinitely in his present position. Furthermore, because of the disability and his age he would have greater difficulty in obtaining similar employment in the future. For these reasons a lump sum award for loss of earning capacity is appropriate and will be made in the sum of $50,000.00.

13. As for the other claims for special damages the medical expenses cannot be allowed as the Defendants have already repaid the Plaintiff for these expenses. The Plaintiff will be allowed travel expenses for medical treatment in the sum of $150.00 and for tonic food in the sum of $500.00.

14. A summary of the damages awarded are as follows:-

General Damages

(1) Pain, suffering and loss of amenities $100,000.00

(2) Pre-assessment loss of earnings

Special Damages

15. Interest on the general damages at the usual rate of 2% per annum from the date of the accident to the date of this assessment. There will be no interest on the award for loss of earning capacity but interest at 3.5% per annum on the other special damages.

16. The Defendants are ordered to pay the Plaintiff's costs of this assessment with a certificate to issue for Counsel. The Plaintiff's own costs to be taxed under Legal Aid Regulation.

Representation:

Mr. T. WEI, Counsel instructed by Director of Legal Aid on behalf of the Plaintiff.

WONG Cheung Yuen and YU Kai Chun as named defendants in person and not represented.