Chan Suet Keung v. Yiu Shui for t/a Wing Yip Metal Factory
Read the full judgment text of HCA 9188/1982 on BabelCite. This High Court CFI judgment.
1. On 2nd July 1980 the plaintiff, then aged 28, was employed by the defendant to work afoot operated power press for making holes in the metal wheels for toy cars. The machine was unguarded, the plaintiff's hand went inside and his right index finger was severely crushed. He was taken to Princess Margaret Hospital where the first 2½ phalanges o?that finger were amputated.
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HCA009188/1982
IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________ BETWEEN
__________ Coram: Master Betts in Chambers Dates of Hearing: 27 September 1983 and 1 November 1983 Appearances: Mr Terence Wei instructed by Messrs K. C. Yung & Co for Plaintiff Defendant unrepresented and absent __________________________ ASSESSMENT OF DAMAGES __________________________ 1. On 2nd July 1980 the plaintiff, then aged 28, was employed by the defendant to work afoot operated power press for making holes in the metal wheels for toy cars. The machine was unguarded, the plaintiff's hand went inside and his right index finger was severely crushed. He was taken to Princess Margaret Hospital where the first 2½ phalanges o?that finger were amputated. 2. The plaintiff's recovery appears to have been uneventful and he was back at work after 36 days. 3. The Writ in this action was issued in October 1982 and interlocutory judgment entered the following month. 4. Two items only of special damages are claimed. They are $40 for medical expenses and $1,620.00 for loss of earnings at the rate of $45 per day for the period the plaintiff was off work. Having heard his evidence I am satisfied both are properly claimed and I award them in full. 5. Two heads of general damage are asked for. The first is for pain, suffering and loss of the amenities of life and the second is for loss of earning capacity. 6. I will deal with each in turn. 7. In respect of the former Mr Wei referred me to Fung Lai-yin v Lai Kam-chiu (OJA No. 2916 of 1977) where for a slightly more serious injury $22,500 was awarded. Bearing in mind the disparity in the injuries on the one side and inflation on the other he invited me to assess damages in the region of $20,000. 8. Since hearing this matter. however. the decision of the Court of Appeal in Li Ping Sum v Chan Wai Tong and others (C.A. 1983 No. 53 (Civil)). as yet unreported, has been delivered. In the course of that judgment, inter alia, their lordships considered the quantum suggested for the various categories of injury set out in Lee Ting-lan v Leung Kam-ming (1980 H. K. L.R. 657).
9. The same reasoning must apply to the comparison of awards for injuries below the categories in Lee Ting-lan. 10. The award in Fung Lai-.yin was made in 1978, two years before Lee Ting-Ian and, in my view, should be increased by 60%; bringing it to $36,000; it is conceded the injury here is slightly less serious and I assess damages under this head at $30.000. 11. The claim for loss of future earning capacity has caused me some difficulty. The evidence of Dr Wu Kwok Chai of princess Margaret Hospital supported that of the plaintiff that the loss of the major part of his right index finger does make picking up or gripping heavy objects more difficult and it is undoubtedly a handicap. The doctor put it as a 12% permanent disability. 12. However, the plaintiff claims no actual loss of earnings other than the first 36 days after the accident and Mr Wei tells me that is because he is earning more than before. In other words he concedes that there has not yet been any loss of earning. He urges that there nevertheless remains a loss of capacity that puts the plaintiff at a disadvantage in the labour market. That is undoubtedly true. The difficulty remains in assessing that disadvantage in monetary terms. 13. Mr Wei again referred me to Fung Lai-yin where Mr Registrar O'Dea, as he then was, awarded the sum of $15,900 having received some evidence on the matter. Again increasing that by 60% the award represents $24,000 today. 14. In Li Ping-sum the Court has equated the plaintiff's degree of incapacity or disability with loss of future earning capacity. 15. Applying that formula to the present case it appears that the plaintiff was earning $46 per day and working 28 days a month. In view of his age the multiplier is 15. His annual earnings are $46 x 28 x i2 = $15,465. 12% of $15,465 is $1,854.72. $1,854.72 x 15 = $27,820.80 That is the figure I award. Summary
16. I award interest on the special damages at the rate of 7% per annum from the date of the accident to the date of judgment and on the general damages for pain, suffering and loss of amenity at the rate of 2% per annum from the date of service of the writ to the date of judgment. There will be no interest on the general damages for loss of earning capacity. 17. This is yet another case where an assessment was listed with an estimated time of 15 minutes. That was totally unrealistic and resulted in the additional expense of an adjournment. I direct that the plaintiff's solicitors show cause, within 14 days of delivery of this assessment, why they should not personally pay all costs wasted as a result. 18. Subject to that there will be costs to the plaintiff with a certificate for counsel and for the plaintiff's own costs to be taxed under Legal Aid Regulations.
Representation: Mr Terence Wei instructed by Messrs K. C. Yung & Co for Plaintiff Defendant unrepresented and absent |
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