Wong See Mo v. Lam Nam Fui and Others

HCA006408/1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Dates of Hearing: 28 - 30 November 1989 and 1 December 1989

Date of Delivery of Judgment: 20 December 1989

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J U D G M E N T

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1. The Plaintiff claims damages for injuries suffered in an industrial accident.

LIABILITY

2. On 20th August, 1986 he injured his left (non-preferred) hand in an accident whilst he was pushing a piece of timber lengthwise along a bench to be cut by an electrically driven circular saw. He was then employed by the Defendants. The first named partner of the Defendant firm later pleaded guilty to and was convicted on a charge of contravening the Factories and Industrial Undertakings (woodworking Machinery) Regulations. The saw, at the time, was not guarded as required by those regulations.

3. The Defendants have denied liability throughout but their counsel, Mr. Lewis, at the conclusion of the evidence, confined his submissions, as regards liability, to the issue of contributory negligence.

4. The Plaintiff was using a push stick to push the timber forward with his right hand towards the rotating saw whilst using the fingers of his left hand to keep the timber steady. During the sawing process something caused the timber "to jump". That in turn caused his left hand to come in contact with the cutting teeth of the saw.

5. Mr. Ng, an engineer who inspected the machine in January, 1988 said, when reporting the result of his inspection, that the placing of the Plaintiff's left hand on the board being out was useful at the beginning of sawing to keep it steady but that he could see no good reason to keep his left hand there when the sawing process was near completion. In his opinion his left hand should have been withdrawn as the end of the cutting approached and the final pushing should have been done solely with the push stick. His opinion then of the cause of the accident was the poor guarding of the machine he and the lack of good sense of safety precaution. The accident could have been avoided, he said, if the machine had the statutory guard and the operator had been properly trained in the correct way of sawing. When he gave evidence, however, he said that if there had been a proper guard in place jumping of the wood would not occur because a rigid guard would prevent it and would also prevent fingers getting caught.

6. Mr. Lam Nam Fui, the first named partner of the Defendant firm and the only witness for the Defence, said that he had told the Plaintiff in very clear terms how to operate the saw. Shown a photograph of the method used by the Plaintiff at the time, he said that the only fault with the demonstration was that the push stick being used was too large. Asked by Mr. Lewis about the left hand he said it was in the correct position.

7. I find that the Plaintiff was using the only method he could use to cut the timber efficiently and that the keeping of his left hand on the wood even while the end of the cutting was approaching was the method taught and approved by the Defendants. I find the Defendants wholly to blame.

DAMAGES

8. The doctor who examined the Plaintiff when he was taken to the Accident and Emergency Department of Queen Mary hospital reported as follows:-

"The patient's general condition was satisfactory. Tip of left index finger was amputated. There was deep laceration across distal joint of left middle finger connected with skin flap only. There were lacerations over terminal phalanx of left ring and little finger.

Fractures of terminal phalanx of left index, middle, ring and little fingers were seen in X-ray.

Revision amputation of distal phalanx of left index, middle and ring fingers was done.

He was treated and discharged.

He was grantee 20 days’ sick leave from 20/8/86 to 8/9/86 inclusive."

9. He was granted further sick leave until 10th October, 1986 and again from 13th November, 1986 to 21st November, 1986. At the expiration of his sick leave he returned to work for the Defendant's as a labourer. He later had another accident in which his left hand was injured out he continued working for the Defendants until early 1988 when the Defendants closed sown their factory in Hong Kong and reopended in Snenzen.

10. He was seen by Dr. Wen-Chee Mao in March, 1987. He said that the Plaintiff was in hospital for one day after the operations and that the stitches were taken out two weeks later. He received physiotherapy three times a week until October, 1986. On 6th March, 1987 he was "medically boarded and given a 15% loss of earning capacity". At the time of Dr. Mao's examination he was complaining of tenderness of the tips of his index and ring fingers and pain on flexion of those fingers. These were typical complaints associated with such injuries according to Dr. Mao. He also complained of crepitus in the middle finger and loss of strength in all. Dr. Mao found that his grip in his left hand was 30 1bs whereas he had a 70 1bs grip in his right. Dr. Mao found a 10% impairment of the upper extremity for the index finger; 15% impairment of the upper extremity of the middle finger; a 5% impairment of the upper extremity of the ring finger; a total impairment of the upper extremity of 30% "which equals 18% impairment of the whole person". At that time Dr. Mao as of the opinion that, as his work did not entail carrying very heavy loads, he would be able to continue working as a furniture maker for his working life and assessed his loss of earning capacity as 19%.

11. In evidence Dr. Mao explained that when he said "continue working as a furniture maker" he meant "keeping the place clean, work such as that".

12. The Plaintiff said that after he was laid off by the Defendants in February 1988 he was unable to obtain paid employment until May 1988 when, as a result of an interview at the Labour Department, he obtained a job as a watchman with an estate management company. He is still so employed.

13. In September, 1989 he was seen again by Dr. Mao. In his report of his examination on this occasion Dr. Mao said:-

"The grip in the left hand is 40 1bs compared to a previous one of 30 lbs. The grip in the right hand, is 60 1bs which is probably not as strong as before because it has not been used in furniture making for a while. The left index finger is as before with normal sensation but because the middle finger has lost part of the middle phalanx he finds it difficult to approximate and hold screws with his left index while the middle finger steadies the screw at the same time for him to utilise the screwdriver. Flexion of the proximal interphalangeal joint is 90 degrees, the metacarpophalangeal joint flexes 90 degrees which is within normal limits.

The middle finger - he complains of some pain but movements are as follows:

Proximal interphalangeal joint 60 degrees, distal interphalangeal joint 90 degrees.

The ring finger is as before and, therefore, he still has 18% impairment of the whole person and loss of earning capacity is as before at 19%."

PAIN SUFFERING & LOSS OF AMENITIES

14. As Dr. Mao's first report discloses he Plaintiff was in hospital for only one day with follow-up physiotherapy treatment for about seven weeks. Looking at his hand now there does not appear to be any marked degree of disfiguring and the Plaintiff easily disguises such as there is. Although he gave no evidence regarding the pain he suffered at the time there must necessarily have been considerable initial shock and pain and further pain continuing at least until the time of treatment. He had no hobbies before the accident. He played an occasional game of basketball but has no desire to play now because he feels he cannot because of his injured hand. His major loss is dexterity so that he now has difficulty in fastening his clothing and he says that he cannot, for instance, to peel fruit for his children and has difficulty holding a bowl in his left hand when eating.

15. Mr. Pirie, for the Plaintiff, submitted that his case was on the borderline of the "serious" category in Lau Che-ping v. Hoi Kong Ironwares Godown Co. Ltd. ([1988] 2 HKLR 650) but I do not accept that. Both counsel referred me to a number of decisions relating to hand injuries. In Kong Tak On v. Johnny Lau & Ors. (A6337/87) Master Perrior awarded $100,000 in June this year to a 17 year old who had suffered almost identical injuries to his right hand. I think that a proper award in this case is $70,000.

LOSS OF EARNINGS

Pre-trial loss

16. It is agreed that the loss during his sick leave was $6,675.98.

17. The Plaintiff said in evidence that after the expiration of his sick leave he returned to work. Although he was not able to do the work he had done prior to the accident the Defendants nevertheless kept him in employment and paid him as if he were still doing his pre-accident job. This continued until the factory closed in February, 1988. Thereafter he tried to obtain work at decoration and printing works but was unsuccessful. Employers refused to consider him once they saw the condition of his hand. In May, 1988 he was interviewed by an officer of the Labour Department. A letter from the Labour Department to the Director of Legal Aid says that the Plaintiff asked for a job not involving manual labour but the Plaintiff said in evidence that the suggestion about non-manual work came from the interviewing officer once he saw the Plaintiff's hand. I accept that he began his present employment as a watchman on 16th June, 1988.

18. Mr. Pirie opened the Plaintiff's case on the basis hat he was a skilled carpenter but at the close he had to concede that the evidence showed that the Plaintiff was not as highly skilled as that. The Plaintiff's evidence was that his pre-accident work consisted of sawing timber and assembling furniture. The Defence evidence was that the Plaintiff did not do furniture assembly work until after the accident. I accept, however, that the Plaintiff's memory as to this is superior to that of Mr. Lam. The assembly work involved boring holes, fixing screws and some planning work. Evidence by Mr. Benley Wong, a decoration contractor, concerning the different categories of employee in the trade in which the Plaintiff was employed at the time of the accident indicated that the Plaintiff's skill fell somewhere within the range between an ordinary labourer and a skilled carpenter. A worker in that category would today we paid $250 per day according to Mr. Wong. Using the Defendants payslips as a guide for the 1988 rates it would seem that the median monthly wage for the period 1st March, 1988 to date of trial should be as calculated in the Plaintiff's schedule, namely, $5,197.29. His pre-trial loss is therefore $111,741 less the amount of $43,800 received during this period from his present employer. The amount for that period is therefore $67,941, making the total under this head $74,617 (6,676 + 67,941).

Future loss

19. For the purpose of calculating his future loss I adopt a multiplier of 13. He is presently earning $2,800 per month. On the basis of Mr. Wong's description of the usual number of working days in a month in this industry have used a 28-day month to calculate monthly rates. The Plaintiff's monthly loss is $4,200 (7,000 - 2,800). The award for future loss is $655,200 (4,200 x 156).

LOSS OF EARNING CAPACITY

20. There is evidence that the Plaintiff has already felt the effects of his diminished appeal in the labour market. His is a case of demonstrated, rather than speculative, loss of earning capacity. I think that the appropriate award for him under this head is $40,000.

21. My assessment of the Plaintiff's Damage may be summarized as follows:-

22. I give judgment in favour of the Plaintiff in that sun together with interest on the special damages at the rate of 5% from the date of the accident and on the awards for pain suffering and loss of amenities and loss of earning capacity at the rate of 2% from the date of the writ.

23. The Defendants are to pay the Plaintiff's costs to be taxed if not agreed and the Plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Nicholas Pirie (D.L.A.) for Plaintiff

Mr. K. Lewis (Deacons) for Defendant