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HCA002190/1982
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
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CHEN YAU HING |
Plaintiff |
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AND
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CHEUNG YUK WING trading as Wing Fung M Manufactory |
Defendant |
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Coram: Master Barrington-Jones in Chambers.
Date of Judgment: 26 November1982
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DECISION
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1. This is an assessment of damages consequent upon interlocutory judgment having been entered against the defendant on the 16th June, 1982.
2. Damages are sought in respect of injuries suffered by the plaintiff who was a power press operator, when the press fell on his right hand on the 15th October, 1979 at his place of work.
3. The injuries sustained by the plaintiff were:-
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(a) |
laceration over dorsum and palm of right hand;
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(b) |
Fracture of 2nd to 5th metacarpal bones; and
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(c) |
Rupture of extensor tendon to index and middle fingers. |
GENERAL DAMAGES
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Pain, suffering and loss of amenities
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The plaintiff was admitted into Princess Margaret Hospital on the same day as the accident and was immediately operated on when a fixation of the fracture and repair of the tendons was performed and the wounds sutured. Subsequently the plaintiff was given physio and occupational therapy to his right hand fingers. A second operation took place on the 13th November, 1979 when debridement and skin grafting was carried out.
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A Medical assessment Board assessed the plaintiff's permanent disability to be 30% due to stiffness of the fingers with resulting loss of the grip and pinching function of the right hand.
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The plaintiff undoubtedly sustained considerable pain and suffering as a result of the injuries to his right dominant hand, such injuries being described as severe by Dr Lam. The plaintiff has made a good recovery from his injuries and now works in a factory operating a machine calling for the pushing of buttons which the plaintiff says he does with his left hand, the manager of the factory pointing out that this work requires little skill.
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The plaintiff can now use his right hand to a limited extent but now uses his left hand for Functions requiring dexterity.
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Having been referred to (l) CHAN WAI MAN etc. and LUK SHUET KING H.C.A. 1979 5088 where Mr Commissioner Barnes (as he then was) awarded $40,000 under this head and (2) LEUNG YIU KEUNG and TSE FUNG PING (1981) H.K.L.J. 268 where Mr Justice Bewley awarded $50,000; and after referring to Mr Registrar Roy's (as he then was) assessment in Ty Kwei-sang also known as Cheng Kwai-sing and tong Sui-hoi trading as Wey Hing Industrial Company H.C.A. 6191 of 1980 where $65,000 was awarded; I believe the proper award under this head in this case should be $30,000.
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SPECIAL DAMAGES
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(1) |
Loss of earning capacity
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Mr Commissioner Barnes (as he then was) in CHAN WAI MAN (an infant) etc., and LUK SHUET KING etc., (1979 No. 5088 in approaching this head took note that Silke, J., (as he then was) in CHOW LEUNG-kwong v Cheung Ka-kui H.C.A. 2455/78 had awarded $35,000 to a 50 year old man earning about $2,000 per month; although he regarded the award as
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"in reality.........a form of loss of future earnings but that he had arrived at that figure taking into account the extent to which the plaintiff's injuries would handicap him in the competition of tae labour market."
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The learned judge also referred to CHOI Fam-tong v Wong Sui-fon and another, where Mr Registrar Barnett had awarded $60,000 to a 19 Year old youth, still a student, who had earned $12 per day doing factory work during school vacations but who planned to follow a career as an engineer; and the learned judge went on to find that the appropriate award in his case was $30,000.
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In this case the plaintiff is a male aged about 26 years of age, and in the light of his handicap, and after reference to the authorities which I have cited I am satisfied that the appropriate award for this particular plaintiff should be $35,000. The defendant must be given credit for the amount of $9,754.06 paid by way of Employee's Compensation so that the amount payable under this head will be reduced to $25,245.
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On the evidence I am satisfied that the plaintiff has suffered loss of earnings, as follows:-
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October, 1979 to June, 1980
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(8 months × $l,300)
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$10,400.00 |
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Occasional lost working days in July, August, September and October, 1980
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and November, 1980 to April, 1981
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(6 months × $1,300) |
$ 7,800.00
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The total sum to be awarded under this head should, in my view, be $18,000.
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(3) |
Medical and travelling expenses in China
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This is a claim in the sum of $3,600 by the plaintiff in respect of medical and travelling expenses to obtain treatment from a doctor in China. There is, perhaps not surprisingly, nothing to substantiate any visit to a doctor/bonesetter or a hospital in China; and I take particular note of the evidence of the plaintiff's father on this subject when he said, inter alia:
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"I sent him to China for treatment. It was my own idea to send him to China. I did not think that medical treatment in China would be better, it was just that there was no one here in Bong Kong to take care of him."
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Bearing in mind that the plaintiff's mother and wife both live in China I believe that the visits to China were in the nature of a conjugal and family visits and that accordingly no award should be made under this head.
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Following the Chief Justice in YU Ki and Chin Kit Lam & Another (1980 No. 2224 - Civil) I award $600 as claimed in respect of nourishing foods supplied to the plaintiff.
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(5) |
Claim for loss of wages by plaintiff's father
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The plaintiff's father said in evidence that he gave up his job on the day of the plaintiff's accident in 1979 in order to visit his son in hospital each day; he said he had given up work for a month........"because hospital visiting did not fit in with my working hours." After referring to a number of authorities, including Donnelly v Joyce (Court of Appeal 1974 1 Q.B. 454; I am not satisfied that this claim should be allowed in tire particular circumstances of this case. I am quite sure that the plaintiff's father could have arranged to visit his son in hospital after his working day was over and I consider I must decline to make any award here.
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4. I award interest at the rate of 14% on the general damages payable from the date of service of the writ until today and at the rate of 7% on the amount of special damages from the date of the accident until payment. There is, of course, no interest awarded in respect of the amount awarded in respect of loss of earning capacity.
"The Plaintiff is entitled to costs, such costs to be taxed in accordance with the Legal Aid Regulations with a Certificate for Counsel".
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(J. Barrington-Jones)
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Master
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Representation:
Mr F. Leung (instructed by Hastings & Co) for the Plaintiff.
Defendant in person.
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