To Kin Shan and Others v. Chan Hok Leung t/a Yau Bong Metal Manufactory and Another

HCA004123/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Master Clay in Chambers

Hearing Date: 23rd February 1984

Date of delivery: 23 March 1984

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ASSESSMENT OF DAMAGES

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1. On the 22nd May 1979 the plaintiff was operating a power press machine during the course of his employment with the 1st and 2nd Defendants when his left hand became trapped in the press. He was admitted to the Queen Elizabeth Hospital and underwent an operation for the removal of part of the left thumb and part of the left forefinger. The operation was carried out under local anaesthetic and he was sent home afterwards. The sutures were removed in two weeks, he then attended daily for dressings for a further two weeks and the wounds were healed about six weeks after the accident.

2. The plaintiff told me that the injury was painful for about 4 weeks after the accident and the pain was most severe at nights. Now he has no pain or feeling except when he knocks the stumps on something but then he experiences a very sharp acute pain followed by an ache for quite a long time.

3. The Plaintiff was granted a figure of 20% disability by the Medical assessment Board on the 27th July 1979. Dr Wedderburn in his report dated 26th September says that the Plaintiff has good grip strength between the stump of the thumb and the 3rd finger and he exercises a 68 lbs grip with the right hand and a 40 1b grip with the left which is a good grip considering the amputations, but, pre-accident, his left hand grip was probably at least 60 lbs; the left hand grip is usually slightly less than the right in a right-handed person and he is right handed. Dr Wedderburn assesses the Plaintiff as having a 25% impairment of the whole man and the same permanent disability. Dr Wedderburn was questioned by the 1st Defendant about the difference between his assessment and that of the Medical Assessment Board. Dr Wedderburn pointed out in his report and in his evidence that the assessment by the Board is for the purposes of the Workman's Compensation Ordinance and is done "by the Book" and regarded his own assessment as more realistic. For the purposes of this assessment I accept Dr Wedderburn's view.

4. At the time of the assessment the Plaintiff was single and had been working for the Defendants for nearly 3 months, earning a sum of $40 per day for a 26 day month. At Lunar New Year he received double pay. These figures were not contested by the 1st Defendant.

Pain Suffering and Loss of Amenities

5. Mrs Kaplan referred me to a number of helpful authorities.

6. Ng Wing Wah v Chung Hing Metal & Plastic HCA 1983 No. 5389. In that case there was a 34% impairment of the whole man and taking into the effect of the decision in Li Ping Sum v Chan Wai Pong and others $90,000 was awarded under this head. This was a decision given on 13.12.83.

7. Chan Po Keung v Law Ping 1982 No. 3393. In that case in respect of an ambidextrous plaintiff for less serious injuries than in this case an impairment of 14% was assessed. A sum of $36,000 was awarded.

8. Chan Suet Keung v Yiu Shui For H.C.A. 1982 No. 9188. In this case for an impairment of 12% a sum of $36,000 was awarded.

9. Mak Kwok Ping v Lui Nam H.C.A. 198 No. 7084. Here for serious injuries to the preferred hand the plaintiff was awarded $75,000.

10. Law Kwok Hung v Chow Chi Chung H.C.A. 1982 No. 8814. For an amputation of part of the right index finger the plaintiff was awarded $28,000.

11. Taking into account these awards and the fact that the Plaintiff has had two amputations performed I accept Mrs Kaplan's submission that a sum of $40,000 is the appropriate award to make under this head.

Loss of Future Earning Capacity

12. The Plaintiff told me that he left the employment of the Defendants in November 1979 and started a new job in a garment factory sewing buttons in March 1980 at a wage of $35 per day. Since then he has received three increases in pay. He has discovered that there are 3 other workers doing the same job as himself but they are paid $15 per day more than he is. There are two jobs that they do that he finds he cannot do with his injuries, welding buttons and sewing padding in shoulders. He continues to work a full 26 day month.

13. Mrs Kaplan has urged me to deal with this head by the method contained in Li Ping Sum v Chan Wai Tong, namely to take the present earnings of the Plaintiff to increase them by the percentage disability and then apply the appropriate multiplyer. She concedes that an actual loss of $15 per day has been proved and the conventional method of calculating future loss can be used provided an additional sum for loss of future job prospects. In view of the fact that an actual loss has been shown I propose to use the latter method.

14. The Plaintiff was 19 at the time of the accident and is now 22. I consider that a multiplyer of 18 is appropriate therefore the calculation is as follows. 15 × 26 × 12 × 18 = $84,240. I therefore award this sum.

Special Damages

Loss of Wages

15. The Plaintiff's claim for pre-trial loss of wages has been proved save for one matter. The Plaintiff told me that he left the Defendant's employment "for fear of losing another finger as it seemed there was another person injured there". He did not get another job until March the following year. He did not even try to find any jobs during that period as he feared others would not employ him. I do not regard it as proper for the Plaintiff to have taken no steps during that period to find a job and accordingly I disallow his claim for loss of wages during this period. I therefore allow $2,800 for the period from 22.5.77 to 31.7.78 and $6,200 being the loss of wages from March 1980 to 23.2.84 at the rate of $5 per day.

Travelling Expenses and Medical Expenses

16. This item was disputed by the 1st Defendant who gave evidence that he had paid the Plaintiff's expenses of getting to and from hospital. Having seen the two witnesses I unhesitatingly accept the evidence of the Plaintiff as being truthful. Having said that however it is not entirely clear how many trips exactly the Plaintiff did make although I am prepared to accept that his evidence shows a total of 17 trips. No evidence was given of any medical expenses incurred. Accordingly I allow $95 for travelling expenses.

Summary

17. From this will be deducted $11,332 awarded as Workman's Compensation.

18. I award interest on the award for pain suffering and loss of amenities at the rate of 2% p.a. from the date of service of the writ to the date of Judgment. There will be interest on the Special Damages at the rate of 7% p.a. from the date of accident to the date of Judgment. There will be no award of interest on the award for loss of future earning capacity.

19. There will be an Order for costs to the Plaintiff against the Defendants, to be taxed if not agreed and for the Plaintiff's own costs to be taxed under the Legal Aid Regulations.

Representation:

Appearances: Mrs B. Kaplan of Counsel instructed by Messrs Robert Wang & Co for the Plaintiff

1st Defendant CHAN HOK LEUNG present

2nd Defendant absent