Ho Shu Yau v. Lo Siu Ling Formerly t/a Chi Wo Civil Engineering Co. and Another

HCPI001336/2000

HCPI -1336/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1336 OF 2000

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Coram: Master M. Yuen in Court

Date of Hearing: 23 November 2001

Date of Handing Down: 31 January 2002

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ASSESSMENT OF DAMAGES

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1.This is an assessment of personal injuries compensation consequential upon the award of default judgment on liability entered on 5 January 2001.

Personal Particulars of the Plaintiff

2.The plaintiff was born in Hong Kong on 12 April 1959. He received primary education and worked in different trades after finishing school. Two children, aged 15 and 17, were born to him out of wedlock. Both of them were working as sales.

The Accident and the Plaintiff's Injuries

3.The plaintiff started to work in the construction industry since 1996. At the time of the accident the 1st defendant was the plaintiff's direct employer and a sub-contractor of the site while the 2nd defendant was the main contractor. Winding up order has been made in respect of the 2nd defendant and the Official Receiver had written to the plaintiff's legal representatives to indicate they would not attend the assessment hearing.

4.On 12 November 1997 the plaintiff was working at a construction site in Tuen Mun. While he was helping to fix the position of the metal pipe at the drill plant, the metal pipe shifted and cut the left ring finger of the plaintiff. He was sent to Tuen Mun hospital for treatment and was hospitalized for a day. A portion of the distal phalanx of the plaintiff's left ring finger was amputated.

5.The plaintiff was examined by Dr. Richard Lau on 26 July 1999 for the assessment of his injuries. Measurement done under x-ray showed the plaintiff's distal phalanx of his left ring finger was 0.7cm shorter than his right ring finger distal phalanx. The range of movement of his injured finger was normal except there was a 10 degrees drop of the flexion power of his distal interphalangeal joint. The sensitiveness of the finger tip of his injured finger was within the normal range.

6.After the revisional amputation of the finger, the plaintiff received desensitization and mobilization exercises. At the date of the assessment hearing the plaintiff still complained of stiffness and tenderness of his left ring finger. In light of the 10 degrees loss of flexion of his distal interphalangeal joint of the ring finger and the amputation of 1/3 of the distal section of the phalagnex, the plaintiff was assessed to have suffered 2% impairment of his whole person.

7.Dr. Lau confirmed the plaintiff's sick leave of 4 1/2 months between 12 November 97 and 29 April 1998 to be adequate for his wounding healing and rehabilitation. When his sick leave period was over, the plaintiff worked as a casual worker in the construction industry, earning a daily salary of HK$550. For the first 3 to 4 months he was able to work 26 days a month. Thereafter as there was not enough work, he worked on average 7 days a month.

Pain, Suffering and Loss of Amenities

8.The plaintiff was a right-handed person. During the accident 0.7 cm of his left ring finger was cut off, resulting in hypersensitivity in the finger tip of his left ring finger. He was hospitalized for a day. He was assessed to have suffered 2% disability of his whole person.

9.After considering other judicial decisions on finger injuries cases ( Chan Wai Man HCA-5088/79, Cheung Luk HCA-4770/80, to Kin Shan HCA-4123/82, Lee Wong Sin HCPI-768/95, Tang Shau Tsan CA 58/2000 and Leung Lai Yin HCPI-317/99 ) I am prepared to award the plaintiff a sum of HK$120,000 compensation in respect of his pain, suffering and loss of amenities.

Loss of Accrued Income

10.Prior to the accident the plaintiff worked as a drill rigger for about 26 days a month at a daily wage of HK$800. His monthly income prior to the accident was HK$800 x 26 days = HK$20,800. He was granted sick leave for 5 3/4 months from 12 Nov 1997 to 29 April 1998.

11.The plaintiff's impairment is only about 2%. His inability to secure a better paid job is likely to be occasioned mainly by the economic recession. I accept his loss of earning would likely be 20% of his wages before he met with the accident. His pre-trial loss of income would be HK$ 119,600 ($20,800 x 5 3/4 months) during his recuperation period and HK$177,840[20%($800 x 26 days ) x 42 3/4 months] from 30 April 1998 to the hearing date on 23 November 2001, making a total of HK$297,440.

Loss of Future Earnings

12.The plaintiff was aged 42 at the time of the assessment hearing. I accept a multiplier of 10 to be about right in light of the physically demanding nature of his job in the construction industry. His loss of future earning would be HK$499,200 [20%($800 x 26 days) x 12 months x 10].

Loss of Mandatory Provident Fund

13.The plaintiff's drop of his income led to the loss of his employer's contribution in his mandatory provident fund since December 2000 in the sum of HK$42,819 [ 5%($800-$550) x 26 days x 11 3/4 months from Dec 2000 to the assessment date on 23 Nov 2001 + 5%($800-$550) x 26 days x 12 months x 10 ].

Loss of Earning Capacity

14.In light of the minor nature of the plaintiff's injury I do not find the plaintiff to have suffer any loss of earning capacity.

Special Damages

15.The plaintiff has spent a sum of HK$640 in respect of his medical consultations. (HK$68 for his 1 day of hospitalization at Tuen Mun Hospital + 6 sessions at HK$44 each for physiotherapy treatment and 7 sessions of occupational therapy at HK$44 each).

16.He incurred HK$48 in respect of the light rail fare for his 6 visits of out-patient treatments.

17.The items of special damages suffered by the plaintiff were as follows:-

(a) medical consultation fees	640
(b) travelling expenses	48
	HK$688

Employee Compensation

18.A sum of HK$49,920 compensation has been paid to the plaintiff by his employer.

Award

19.I accept the following to be a fair and reasonable assessment of the plaintiff's damages :-

(a) Pain, Suffering and Loss of Amenities	120,000.00
(b) Loss of accrued earning	297,440.00
(c) Loss of future earning	499,200.00
(d) Loss of Mandatory Provident Fund	42,819.00
(e) Medical and travelling expenses incurred	688 .00
	HK$ 960,147
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20.I award the plaintiff the sum of HK$ 910,227 compensation

against both defendants for the injuries he sustained, net of the sum of employee compensation he received from his employer.

21.I also award interest on the pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. Interest on the loss of accrued earnings, medical and travelling expenses is granted at half the judgment rate from the date of the accident to the date of judgment.

22.I also grant order nisi on costs, to be taxed if not agreed, in favour of the plaintiff against both defendants for the present assessment hearing. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Timon Shum instructed by Director of Legal Aid for plaintiff.

Defendant acting in person.