Wong Pui Kwan v. Artking Industries Limited(in Liquidation)

HCA011212/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Crawshaw in Chambers

Hearing Date: 10th December, 1984.

Delivery Date: 31st December, 1984.

_________________________

ASSESSMENT OF DAMAGES

___________________________

1. This is an assessment of the damages suffered by the Plaintiff who, represented by Miss Bridges of Counsel, claims against the Defendant company in liquidation. The Official Receiver not having filed notice of intention to defend, judgment was entered on 27th January 1984.

2. Pursuant to a notice under Section 47 of the Evidence Ordinance I had before me the reports of Dr. Wedderburn and Dr Lee, the medical assessment of the Princess Margaret Hospital, and a memorandum from the Director of Accounting Services.

3. On the 6th September, 1980 the Plaintiff, now 33, sustained a crush injury to the right hand from the plastic moulding machine at which he was working.

4. An emergency operation was performed on the same day, but because of the severe lacerations of the soft tissue and gangrenous change, ray-amputation and re-amputation were carried out on the 24th September 1980. He lost his thumb and all fingers, save for "substantial remnants" of the thumb and fifth finger.

5. He was discharged after one month in hospital.

6. In May 1981 he was admitted to the Kwong Wah Hospital, but I have no report of the operation performed on that occasion. In the circumstances I accept Dr Wedderburn's opinion that it was likely that one of the tendons of the great toe was taken and used to give movement to the thumb remnant.

7. At all events there is an 8 inch scar on the foot, and there has been a consequent loss of movement of plantar flexion, giving 20% impairment of the great toe.

8. He attended as an out-patient for physio-therapy on a number of occasions until October 1981, but the exact number I do not know.

9. He was assessed by the Princess Margaret Hospital as having suffered a 46% loss of earning capacity, and by Dr Wedderburn at 50%.

10. I saw both his foot, and what remains of his right hand, and I watched while, with his left, unpreferred hand, he took out his wallet and removed a pay-slip from it. His right hand was used, but as a mere aid in holding or wedging. I can therefore readily accept Dr Wedderburn's assessment that the thumb and finger remnants are of extremely limited use and that to all intents and purposes he has lost the manual dexterity of the right hand.

11. His claims for special damages for hospital expenses and physiotherapy treatment, as amended at the hearing by Miss Bridges, were unvouched, but I accept his explanation that the vouchers were given to his then employer, now in liquidation, and cannot now be traced, even while I wonder that other means of proving the same were not sought.

12. Nevertheless I award him the $150 and $540 he claimed in, his evidence, and turn next to the substantial sum of $4,000 he claims for tonic food. There was not a single voucher produced in support, nor any medical advice that such food was recommended, nor indeed had he come up to proof in his evidence, which was that he had expended "$3,000 - $4,000 on Korean Ginseng and on Chinese medicine for about 3 months after each of his three operations. "

13. Following Mui Ling Kwan v. Wong Yiu Wah 1973 HKLR, 465, applied in Yu Ki v. Chiu Kin Lam and another 1981 HKLR 419 I find that the Plaintiff, even though the item has not been challenged, has not satisfied the tests of reasonableness, use, need and suitability laid down in Mui Ling Kwan's case, but despite that the Courts have consistently made some allowance under this head, as I understand it, on the principle that in Hong Kong a defendant who causes injury to the "man on the Kowloon motor bus" can be expected reasonably to foresee that expenditure will be incurred on special food according to his race and custom, and to his subjective ideas of what may be beneficial for the injury he has sustained. Indeed such an award was made, in Yu Ki's case mentioned earlier, of a sum of $10 per day for the time spent in hospital.

14. In this case, while I know he was admitted to both the Princess Margaret Hospital and the Kwong Wah Hospital I only know that he spent from 6th September 1980 to 6th October, 1980 in the Princess Margaret Hospital for which I allow $300, while for the Kwong Wah Hospital I feel obliged to make some award which I set at $200.

15. Finally, he claims loss of earnings, not merely for the period covered by his sick leave certificate viz. 6th September, 1980 to 15th August 1981, but up until the day on which he actually obtained work, the 6th October 1982.

16. He gave evidence of his attempts to find employment and of the reaction of prospective employers when they considered his disability. In the event he obtained re-employment through the services of the Selective Employment unit of the Labour Department. His behaviour was perfectly reasonable and I allow the claim for the full period of 25 months but, his period of employment with the Defendant was only 3 months, and his evidence of overtime, again unsupported by vouchers, has led me to award him the sum of $1,500, his basic wage under this head, viz. $37,500.

17. I come now to his claim for general damages. Miss Bridges has fairly and rightly acknowledged that, on the evidence, the Plaintiff earns today, as a workmen II with the Housing Authority, as much as he would have been earning had the accident not occurred. Hence there is no claim for future loss of earnings. She rests her claim on the physical disability itself, and the Plaintiff's handicap in the labour market, citing Smith v. Manchester City Council, The Times 12th June 1974.

18. There is some force in Dr. Wedderburn's observation that the plaintiff was "extremely fortunate" to obtain his employment with the Housing Authority whereby he obtained what some sections of the community would describe as "an iron rice-bowl".

19. Nevertheless the fact remains that his one-handedness will debar him from many opportunities of getting better paid work and I must now assess the measure of damages under this head.

20. I start by accepting Dr Wedderburn's report that "to all intents and purposes he has lost the manual dexterity of the right hand" and note that this handicap has been assessed, taking into account the operation on his foot, at 46% by the Princess Margaret Hospital, and 50% by Dr Wedderburn. I am in no position to assess the relative value of these two reports since I have heard no evidence from their makers. So I give them equal weight but, because Dr Wedderburn's report is just over 2 years later in time than that of the Princess Margaret Hospital I shall take his assessment as my guide.

21. In a recent case, Yip. Pun Leung v. Chi Shin Industry Co. Ltd. HC 6071/81 Bewley J, assessed damages for injuries very similar to the present case, which Dr Wedderburn had assessed at 45%, and I follow that in assessing this applicant's injury at or very near the top of the "serious injury" category described in Li Ting Lam v. Leung Kam Wing 1980 HKLR 657.

22. The range for such injuries has since been increased by the Court of Appeal by 50% to $90,000-$120,000, an increase which has been upheld by the Privy Council in Chan Wai Tong and Wong Shuk Ting v. Li Ping Sum PC 22/1984. In that case their Lordships considered that while reference to guidelines was proper and useful and to be encouraged, such use could not do away with the need to compare the facts of the particular case under consideration with the facts of reported cases.

23. Miss Bridges accordingly drew the following cases to my attention:-

Leung Kwong v. Lue Fat Chemical Co. HCA 6789/82 - a complete loss of the right hand - $96,000, Wong Yuk Tin v. Chan Chuen Lau HCA 986/82 25% disability of the right hand $50,000. Lam Yuen v. Wat Kit HCA 7602/82 amputation of right hand below the elbow, $135,000 (a case Miss Bridges particularly drew to my attention) and Ng Wing Wah v. Chan Hing Metal Plastic Mould Factory HCA 5389/83 - claw hand, $90,000. To Kin Shan and another v. Chan Hak Leung and another HCA 4123/82 loss of thumb and part of 4 fingers, 25% impairment $40,000, and Tse Fuk Lun v. Lee Ki and another HCA 1426/83 loss of the 3 middle fingers with 25% impairment, $75,000.

24. With these in mind I assess the Defendants damage for pain and suffering and loss of amenities at $125,000.

25. Since he is earning as much now as he might otherwise have done there will be no award for future loss of earnings, but for his undoubted handicap in the labour market I award $50,000.

26. General damages are therefore assessed at $175,000.

27. There will be interest on the special damages at 7% from the date of the accident and on the damages for pain and suffering at the rate of 2% from the date of service of the writ.

Representation:

Appearances : Miss C. Bridges instructed by D.L.A. for Plaintiff

Official Receiver for Defendant (absent).