Tran Van Nho v. Cheuk's Industries Co. Ltd.

HCA000719/1986

1986 No. A719

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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

Hearing date: 14th September, 1987

Date decision delivered: 30th September, 1987 (P.I. file)

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ASSESSMENT OF DAMAGES

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1. The Plaintiff claims damages for injuries to his right thumb on 21 September, 1983 while operating a power press to make watchcases in the course of his employment with the Defendant company.

2. As no notice of intention to defend was given by the Defendant, interlocutory judgment was entered on 12 May, 1986 for damages to be assessed and costs to be taxed. The Plaintiff who was a Vietnamese refugee has now been resettled in the Netherlands.

3. The only evidence adduced at this assessment was a Bundle of 6 documents produced on behalf of the Plaintiff in accordance with Section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court. The Defendant was not represented at the assessment and took no steps in the proceedings.

4. The only evidence as to the Plaintiff's injuries was a medical report by Dr. CHAN Chi King of Princess Margaret Hospital dated 8 October, 1983 (Documents in the Bundle) which stated that the Plaintiff sustained an amputation injury to the right thumb on 21 September, 1983. The report confirmed that an operation was done to the right thumb and the Plaintiff received out-patient treatment after being discharged from Hospital on 22 September, 1983. This report also mentioned that on 13 December, 1983 the Medical Assessment Board determined the Plaintiff's incapacity to be permanent and his loss of earning capacity to be 8% . The Employees' Compensation Assessment Board in its Certificate of Assessment verified this finding.

5. In a letter from the Plaintiff dated 25 April, 1987 (produced as Document 6 in the Bundle) he confirmed that he spent a total of $60.00 on out-patient treatment at Princess Margaret Hospital attending on 6 occasions at cost of $10.00 a visit and incurred travelling expenses totalling $20.00 in attending for out-patient treatment at cost of $3-4.00 for each return trip. The Plaintiff confirmed that his earnings from the Defendant at the date of the accident were $1,680.00 per month. In his letter the Plaintiff states that the amputation injury to his right thumb affects him when he is writing, washing or cooking and is making it difficult for him to find employment in the Netherlands. From the small photographs enclosed with the letter, it appears that only the tip of the right thumb above the first joint of the right thumb has been amputated.

6. The Employees' Compensation documents produced confirmed that the Plaintiff was on sick leave because of this injury from 21 September, 1983 as the date of the accident until 11 November, 1983. The Plaintiff was paid a total of $14,754.70 assessed on a formula basis under the Employees' Compensation Ordinance and this sum will need to be deducted from this award of damages.

7. It was submitted by Mrs. Johnston, as Counsel for the Plaintiff, that the appropriate range of damages for this type of injury under the head of pain, suffering and loss of amenities was $20,000.00 to $50,000.00. After consideration of the similar cases referred to and the scant details of the Plaintiff's injury damages under this head are assessed at $35,000.00. The Plaintiff is entitled to be reimbursed for the period he was unable to work because of this injury, that is, from 21 September, 1983 to 11 November, 1983. Accordingly, his loss of earnings for this sick leave period are assessed at $1,680.00÷30 = 56 x 51 days = $2,856.00.

8. In the absence of any evidence from the Plaintiff as to his employment history since 11 November, 1983 either in Hong Kong or the Netherlands, the appropriate course is to make a global award for the Plaintiff's loss of earning capacity. The Plaintiff was 31 years of age at the date of this accident and has a lengthy working life ahead of him. It is assumed that this permanent injury is to his preferred hand. Mrs. Johnston referred to several cases under this head with awards ranging from $15,000.00 to $125,000,00. On the limited evidence and information available the Plaintiff's loss of earning capacity is assessed at $40,000.00.

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

10. There will be interest on the general damages at the 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% on the other special damages.

11. The Defendant is ordered to pay the Plaintiff's costs of this assessment and the Plaintiff's costs of this assessment and the Plaintiff's own costs are to be taxed under Legal Aid Regulations.

Representation: