Mak Chi Keung v. Lai Kam Piu t/a 錦記廢紙五金
Read the full judgment text of HCPI 331/2010 on BabelCite. This High Court CFI judgment was delivered on 22 February 2012.
1. The plaintiff was employed by the defendant as a general or miscellaneous worker. On 12 July 2007, he suffered an accident in the course of his employment at the defendant’s workshop at Sai Wan Ho, Hong Kong and suffered personal injuries (“ Accident ”).
Cited by 1 case · Cites 12 cases
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HCPI 331/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 331 OF 2010
BETWEEN
Coram : Before Master Marlene Ng in Court Date of Hearing : 8 February 2012 Date of Handing Down Judgment : 22 February 2012 ___________________________ ASSESSMENT OF DAMAGES ___________________________ I. BACKGROUND 1.The plaintiff was employed by the defendant as a general or miscellaneous worker. On 12 July 2007, he suffered an accident in the course of his employment at the defendant’s workshop at Sai Wan Ho, Hong Kong and suffered personal injuries (“Accident”). 2.On 30 June 2010, the plaintiff commenced the present proceedings against the defendant for damages for personal injuries, loss and other damages suffered as a result of the Accident. He claimed the Accident was caused by negligence, breach of occupiers’ liability, breach of statutory duty and/or breach of employment contract on the part of the defendant, his servants and/or agents. 3.The defendant did not file any notice of intention to defend, and interlocutory judgment on liability for damages to be assessed was entered on 10 February 2011. 4.The defendant did not participate, appear or take any step in the course of the present proceedings, and also did not appear at the hearing of the assessment of damages before me on 8 February 2012 (“Hearing”). 5.From various affirmations of service filed with the court, I am satisfied that (a) the defendant has been notified of the progress of the present proceedings, (b) the previous court orders in this action, the plaintiff’s witness statements dated 29 March and 19 August 2011 (“1st and 2nd Statements”), the orthopaedic expert report of Dr William Wing-Hung Yuen (“Dr Yuen”) dated 4 September 2010 (“Yuen Report”), the prosthetic expert report of Professor Ng Kwan Ying Raymond (“Prof Ng”) dated 5 May 2011 (“Ng Report”), the treatment medical reports and other documents discovered and disclosed by the plaintiff, the hearing bundle for the assessment of damages, and the written opening submissions of Ms Lau, counsel for the plaintiff, have been served on the defendant, and (c) the defendant has been notified of the Hearing. In such circumstances, notwithstanding the defendant’s absence at the Hearing, I allowed the assessment of damages to proceed. 6.At the Hearing, the plaintiff gave evidence and adopted the contents of the 1st and 2nd Statements as part of his evidence-in-chief. I find the plaintiff a credible witness, and I accept his evidence without hesitation. 7.Pursuant to my order dated 11 August 2011, the Yuen Report (made pursuant to Dr Yuen’s interview and examination of the plaintiff on 7 September 2010) was adduced without oral evidence at the Hearing. Prof Ng gave evidence and produced the Ng Report (made pursuant to his interview and examination of the plaintiff on 27 March and 28 April 2011). II. ACCIDENT 8.On 12 July 2007, the plaintiff started to work at 7:00am. He was detailed by his employer to compress waste paper into bales with a horizontal baling machine. He transferred waste paper from the metal crate to the baling machine, and then pushed a button to activate the compression platen, which moved forward to compress the papers and bind them into bales. 9.At about 9:30am, the plaintiff noticed that some paper jutted out from the compression chamber, and used his dominant right hand to press down the protruding paper. He could not retrieve his right hand fast enough, and it was trapped by the compression platen pushing against the front edge of the compression chamber. As a result, his right forearm from below the elbow was severed. III. INJURIES AND TREATMENT 10.Immediately after the Accident, an ambulance was summoned. The Plaintiff was sent to the accident and emergency department of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) for treatment. Examination showed complete right hand amputation at the wrist joint. There was no active bleeding. The plaintiff was admitted to PYNEH’s department of orthopaedics and traumatology (“DOT”) for further management. 11.PYNEH’s DOT immediately performed replantation surgery of the right hand, but such surgery was unsuccessful. The hand was complicated by uncontrolled infection. Over the following few days, multiple salvage procedures including vascular repair surgeries and debridement of the wound were done to save the reattached limb. But reattachment failed, and on 18 July 2007 right below elbow amputation was finally performed. The plaintiff received further debridement of wound, stump revision and skin graft until 7 August 2007. He was discharged on 14 August 2007 in view of his stable clinical condition. Specialist Outpatient Clinic follow-up was arranged upon discharge. 12.Thereafter, the plaintiff regularly attended PYNEH’s Specialist Outpatient Clinic for follow-up, and his condition gradually improved. After the stump matured, he was referred to PYNEH’s prosthetic and orthotic department (“POD”) on 13 December 1997 for prosthetic fitting and management. 13.According to the prosthetic and orthotic services report by Mr Chris TK Cheng of PYNEH’s POD dated 23 January 2009 (“POD Report”), physical examination revealed that the plaintiff’s stump wound was well and stable without any stump pain or wound infection. The elbow range and power were also good. However, PYNEH’s POD considered the plaintiff’s short residue limb would cause functional limitation in fitting mechanical or myoelectric hand prosthesis, so after discussion with the plaintiff a cosmetic hand prosthesis (“Existing Prosthesis”) was prescribed and fitted on 21 February 2008 for image restoration only. According to Prof Ng, the Existing Prosthesis is a resin-laminated fibreglass prosthesis using cosmetic hand and glove, and the onion-type prosthetic socket is used with the self-suspension Munster socket. 14.The plaintiff attended PYNEH’s POD 5 times between December 2007 and December 2008 for prosthesis adjustment (due to mild loosening) and prosthetic management. 15.According to the POD Report, PYNEH’s POD care plan is to arrange regular follow up 2-3 times a year for inspection/repair of the Existing Prosthesis. Due to wear and tear the Existing Prosthesis (which was provided to the plaintiff free of charge) will last 3 years, and after that the plaintiff will have to pay for a new prosthesis at HK$1,800.00 – HK$2,000.00 for a standard type and HK$4,000.00 – HK$5,000.00 for a high definition type. 16.The plaintiff was granted sick leave from 12 July 2007 to 26 June 2008. Pursuant to medical assessment on 26 June 2008, the Employees’ Compensation (Ordinary Assessment) Board (“MAB”) issued a certificate of assessment (Form 7) on 10 July 2008 in respect of the plaintiff’s “right hand injury with right below elbow amputation resulting in scar over thigh after surgery and loss of right hand”, and he was assessed to suffer (a) 76% loss of earning capacity permanently caused by the injury and (b) absence from duty necessary as a result of the injury from 12 July 2007 to 26 June 2008. 17.At the follow-up at PYNEH’s POD on 26 November 2008, the wound was well with mild hypersensitivity, and the plaintiff was scheduled to follow up in a year. IV. EXAMINATIONS BY DR YUEN AND PROF NG 18.The plaintiff wore the Existing Prosthesis over the stump when he was examined by Dr Yuen and Prof Ng respectively. For his examination by Dr Yuen, the plaintiff wore shirt and trousers (with rubber band at the waist) that did not require ironing, and managed well in buttoning when he took off and put on his shirt with one hand. He showed no difficulty in donning and doffing the Existing Prosthesis. 19.Physical examinations by Dr Yuen and Prof Ng reveal a right forearm stump measuring 12 cm in length from the tip of the olecranon to the stump end. As compared with his left forearm of 22.5cm, the plaintiff has about half of his right forearm left. The residue stump was well healed with a surgical scar that went from the anterior aspect, round the tip and over to the posterior aspect measuring 7.5cm in length front and back. The anterior aspect had a 4x2cm skin-grafted area and two very sensitive areas which corresponded to where the major nerves were. There was no such sensitive spot on the posterior aspect. Muscle power of elbow and shoulder on both sides was normal. V. PLAINTIFF’S COMPLAINTS 20.The plaintiff complains of (a) loss of right hand function after injury and amputation, (b) pain and numbness at the residuum on touching, (c) sensitivity over certain areas in the anterior (flexor) surface of the stump, and (d) feeling pain of the right hand in his sleep. 21.The Existing Prosthesis is the only prosthesis the plaintiff used since the Accident. Dr Yuen notes the Existing Prosthesis serves as a cosmetic hand for appearance only (ie to cover up the fact that part of the limb was missing), but cannot be used to hold anything at all. In short, it makes the plaintiff less conspicuous to others but serves no function. The plaintiff claims PYNEH did not carry out any detailed examination to assess his suitability for a functional hand prosthesis that is commensurate with his activities and physical capabilities. 22.The plaintiff acknowledges the Existing Prosthesis helps him balance his body, but claims it is unsatisfactory in quality and appearance. He had experience of dropping the Existing Prosthesis in public, eg when playful children bumped into him, and this caused inconvenience and embarrassment. The plaintiff told Dr Yuen the Existing Prosthesis had a tendency to slip out during winter when the skin was dry, and PYNEH’s POD had to apply adhesive tape to the “mouth” of the prosthesis and squeeze it tight to prevent it from loosening and slipping out of the stump. The plaintiff also finds it uncomfortable to wear the Existing Prosthesis in summer when sweat pools inside the prosthesis. He complained to Prof Ng that the stump hurt when he used the Existing Prosthesis. 23.The plaintiff is also frustrated with the Existing Prosthesis because it is not functional and difficult to control. Prof Ng explains that the Existing Prosthesis requires the plaintiff to use his sound left hand to mechanically operate the three-jaw-chuck movement (ie the pinch/open movement of the thumb coming together with the first two finger tips without involving the remaining fingers) of the cosmetic hand. The plaintiff feels the Existing Prosthesis does not help him in his activities of daily living (“ADL”) and/or further employment. Although it has been suggested that the dirt mark on the glove shows that he used the Existing Prosthesis often, the plaintiff explained to Prof Ng that it merely got dirty easily and in fact he had not used the Existing Prosthesis for quite a while. 24.The plaintiff claims he can attend to most ADL in a clumsy and slow fashion by learning to use his left hand to cope with daily routines, but still he suffers from difficulties/inconvenience as a result of the injury/amputation and there are certain activities he cannot handle single-handedly:
VI. THREE TYPES OF PROSTHESIS 25.Before turning to the recommendations by Dr Yuen and Prof Ng for the plaintiff, it is useful to set out the three types of upper limb prosthesis canvassed by Prof Ng in the Ng Report and in his viva voce evidence. 26.As an initial observation, the human arm/hand by nature operates complex functions that are difficult to replicate by an artificial prosthetic device. Whilst the artificial prosthetic device attempts to maximise cosmesis and/or functionality, no matter how well-designed it cannot fully restore all the functions of a natural limb. But as Prof Ng opines, a suitable prosthesis is important to an amputee for regaining self-esteem, minimising stigmatisation, and enablng social integration. 27.Prof Ng opines that prescribing upper limb prosthesis depends on three considerations, ie comfort, function and cosmesis. Due to the complexity of hand movements and anatomical restriction of the residuum, upper limb amputees are prone to put more consideration on ease of operation and cosmesis. 28.Clearly, the nature and extent of the upper limb amputation as well as the goals, needs and expectations of the amputee play an important role in determining the suitability, utility and success of the prosthetic replacement. Both Dr Yuen and Prof Ng note that a functional prosthesis requires a sufficiently extensive residue limb for leverage and sufficient musculature for the remaining residual movements to operate the prosthesis. Ultimately, the result depends on the orthopaedist’s recommendations, the prosthetist’s selection of the prosthetic system/components, and the physiotherapist’s training for the amputee in using the prosthesis. 29.There are three major categories of upper limb prosthesis, ie cosmetic, body-powered and myoelectrically-controlled. 30.The Existing Prosthesis is a cosmetic prosthesis and is essentially for appearance only. It is not functional save for passively gripping or holding light objects via the three-jaw-chuck movement of the cosmetic hand manually operated by the remaining sound hand. A cosmetic prosthesis is appropriate in cases where, say, the nature/extent of the amputation, the weakness of body power and/or relevant muscles, or the amputee’s inability to be trained makes it difficult to operate a functional prosthesis. 31.The body-powered upper limb prosthesis using a hand or hook terminal device (“Mechanical Prosthesis”) can restore some of the functional aspects of the amputated limb. The Mechanical Prosthesis is a resin-laminated fiberglass prosthesis weighing 1-1.2 kg that uses a functional hand/hook terminal device, friction wrist and onion-type prosthetic socket with harness suspension and figure-eight Bowden cable control. Such prosthetic product has been in use for over 40 years. 32.The harness secures the Mechanical Prosthesis to the amputee’s body/shoulders, and after training the amputee will be able to control the grasp/release function of the passive hand/hook terminal device by the motion of the residue limb relative to the body/shoulders via a cable system. The forearm socket has to be custom-made, but the stainless steel or aluminum hook terminal device can be purchased from manufacturers. Such hook terminal device, which can be rotated manually by the remaining sound hand but has no cosmetic skin, is generally used for grasping objects (eg holding a pen or screwdriver) or even for buttoning shirt or tying shoelaces if the amputee is skilful enough, but it cannot fulfill some ADL (eg holding a bowl or carrying a plastic bag). The Mechanical Prosthesis with the hook terminal device is mechanically simple and lighter in weight, but it is not cosmetic and may scare children if used in public. The hand terminal device is heavier than the hook and mechanically more complicated but provides better cosmesis. It can also perform some functions (eg holding a bowl or carrying a shopping bag), but due to the thickness of the fingers it cannot be used for delicate manipulative tasks (eg holding a pen/needle or tying shoelaces). Prof Ng says that a properly fitted Mechanical Prosthesis can bring things close to the mouth for feeding and drinking. 33.Prof Ng says that the myoelectrically-controlled upper limb prosthesis (“Myoelectric Prosthesis”) was developed in 1980s with no substantial change in the past 20 years, and the myoelectric hand has a history of less than 10 years. 34.The Myoelectric Prosthesis relies on the subconscious movements of a normal limb that occur as a result of electrical signals emitted during upper limb muscle contractions. If the musculature of the residue stump still responds to a grasping command after amputation, the Myoelectric Prosthesis harnesses such neural power to control its functional elements. For below elbow amputation, the electrical signals are provided by the bicep/flexor and triceps/extensor muscles of the stump. The muscle activity and electrical impulse are monitored and picked up by surface electrodes placed against the skin on top and at the bottom of the forearm stump (ie the apex of the residual bicep and triceps muscles) which are normally located within the socket. Such electrical signals are then amplified for the purpose of controlling the functional elements of the Myoelectric Prosthesis. Small batteries are integrated into the prosthesis to provide the power source that operates the motors for moving the fingers and the thumb of the myoelectric hand terminal device and for producing the functional movements of the prosthesis. 35.Given the Myoelectric Prosthesis’ use of electrical emissions as control signals to its functional elements, the amputee’s electrical potential must first be assessed to ascertain whether he will be able to operate the prosthesis via myoelectric control. Amputees usually have a sensation that their hand still exists despite amputation, which is commonly referred to as “phantom feeling”. The amputee is asked to “open” and “close” his phantom hand to generate a strong control signal. Before too long these reflexes become intuitive, and when the amputee attempts to move and flex his phantom hand the remaining flexor muscles that control the closure of the natural hand and the remaining extensor muscles used to open the natural hand are naturally activated to provide signals to close and open the prosthetic terminal device. According to Prof Ng, the control system is designed to permit hand motions where speed is important and stable behaviour is required for delicate manipulative tasks, and feedback from early patient studies identifies that control software adjustments can allow amputees to perform simple tasks and improve functionality. 36.For the Myoelectric Prosthesis, Prof Ng refers to the Otto Bock (manufacturer of prosthetic products) System which is readily fitted with standard socket arrangements and terminal devices. The Otto Bock System includes a myoelectric hand (ie the MyoHand) which has mechanical fingers operating the three-jaw-chuk movement by electric motors or alternatively an electric Griefer (or gripper hand) which has greater grasping strength/speed than the myoelectric hand. A wrist unit connects the terminal device to the prosthesis. The Otto Bock System’s myoelectric hand or electric Griefer is fixed to the socket assembly via an adjustable friction wrist unit (which allows adjustment of the friction setting) or a quick-disconnect wrist unit (which allows quick interchangeable use of various terminal devices). 37.Prof Ng explains that as a result of microprocessor technology the Otto Bock System can also be matched with the i-Limb hand (manufactured by Touch Bionics), which is a new product introduced for about 5 years. The Otto Bock System has 2 microcontrollers programmed for the hand, thus allowing separate inputs and therefore simultaneous control for both, so the user can operate the hand for more natural function. In addition, the Otto Bock System has a computer interface which greatly simplifies the fine tuning of the hand controls and which can be integrated with i-Limb hand. The i-Limb hand is connected to the socket assembly by a lamination ring with an electric adjustable friction humeral rotator unit. The amputee can rotate the i-Limb hand, ie turn the terminal device inwards and outwards to substitute the lost ability for pronation and supination, by co-contracting the muscles, and this enables him to put an object to the mouth. However, Prof Ng says the amputee has to be very smart and to have more exercise and training in order to co-contract the muscles, otherwise a wrong signal will be given and the wrist rotator will turn in response thereto. Prof Ng is of the view that it will usually be good enough to have a quick release passive wrist rotator unit that cost about US$1,000.00. 38.For the i-Limb hand, Touch Bionics utilises mechanical engineering techniques to manufacture a prosthetic hand terminal device with 5 individually powered and fully-articulating digits (ie, independent full-powered fingers and articulating rotatable powered thumb). The articulating finger with more delicate motorised phalangal joints underpins the i-Limb hand, and it is this articulation that provides the biggest benefit to the amputee (ie it works more naturally and gives more functions). With the ability to bend, touch, pick-up and point, the i-Limb hand matches the action of a natural hand more than previous myoelectric hands, which can only be opened and closed. 39.The i-Limb hand offers numerous grip patterns and enables amputees to have new grip functions, which enhance dexterity, support almost all ADL, and improves the amputee’s rehabilitation and quality of life:
40.As demonstrated at the Hearing, the Mechanical Prosthesis can achieve a good level of accuracy, speed and manual dexterity notwithstanding its simple design. But donning and doffing the harness can present inconvenience/difficulty. The MyoElectric Prosthesis with the self-suspension socket using modern fabrication technology appears to be more comfortable, more natural/appealing and less constricting than the Mechanical Prosthesis which requires a shoulder harness. 41.For the Mechanical Prosthesis, the hook terminal device is less cosmetically appealing. The design of the mechanical hand terminal device offers more cosmesis but is still based on a mechanical skeleton. A silicon skin worn over the mechanical hand makes it unnaturally large and interferes with its functions. On the other hand, power-operated motions of the Myoelectric Prosthesis are likely to produce a strong grip force, but operation propelled by neuro-musculature, electrodes, batteries and motors requires training. Further, the Myoelectric Prosthesis also has more components and is heavier and much more costly than a cosmetic or body-powered prosthesis. VII. DR YUEN’S OPINION 42.PYNEH’s POD believes the plaintiff’s stump is too short and will cause difficulty in fitting any Mechanical or Myoelectric Prosthesis, but Dr Yuen notes the plaintiff has about half of his right forearm left and the muscles in the stump and arm are normal and strong. Dr Yuen opines that the plaintiff has good control with the stump, and the concern of PYNEH’s POD can be solved by the plaintiff wearing a shoulder harness, which will prevent the prosthesis from slipping out and support a heavier/sturdier mechanical or myoelectric hand terminal device. Dr Yuen says there is no reason why such good and strong stump should not be made use of. He is of the view that any additional function, no matter how trivial, will be of tremendous use to the plaintiff as an amputee, and his way of life, morale and self-esteem will be much enhanced. VIII. PLAINTIFF’S CASE AND PROF NG’S OPINION 43.In the 1st Statement, the plaintiff states he is willing to undergo trials for assessing his suitability for the Mechanical and/or Myoelectric Prosthesis, which he hopes will increase his physical capabilities in handling ADL (such as bathing, buying food and change of coins) to facilitate independent living. Prof Ng also wants to have the plaintiff fitted for either functional prosthesis to see whether he can operate such prosthesis. So at the second examination on 28 April 2011, Prof Ng arranged a free trial fitting/use of a temporary Mechanical Prosthesis with hook terminal device and Munster socket (“Trial Hook Prosthesis”) to assess whether the plaintiff could use such prosthesis functionally. 44.Prof Ng gave evidence that after the plaintiff was taught how to use the Trial Hook Prosthesis and with 20 minutes of practice, he could write the Chinese characters of his name as demonstrated in the video recording. During the trial, the plaintiff found the Trial Hook Prosthesis to be somewhat lighter than the Existing Prosthesis and not difficult to operate. He managed to operate basic functions, eg grasp and release objects of about 4cm in diameter. The Ng Report notes that the plaintiff was happy with the Trial Hook Prosthesis which (a) he found to be lighter than the Existing Prosthesis, (b) helped him to hold a pen and write, and (c) was well-fitted with a Munster socket. Prof Ng explains that the Trial Hook Prosthesis does not enable the plaintiff to bring objects to his mouth, but this can be corrected by adjustment of the angle of the forearm socket. Prof Ng notes that at the second examination on 28 April 2011, the plaintiff’s acceptance of the Accident and his prosthesis was more apparent, and he appeared more eager to go out and have more social activities with his family. 45.After the trial with the Trial Hook Prosthesis, the plaintiff expressed motivation in using prosthesis with functional operation. Prof Ng showed a video clip of a Myoelectric Prosthesis to the plaintiff, who strongly requested to have such advanced prosthesis with individual finger movements to facilitate finger prehension in carrying out ADL such as wearing clothing, buttoning and feeding. Although he did not have the opportunity for a trial fitting of the Myoelectric Prosthesis as he could not afford to rent or buy such prosthesis, the plaintiff expresses confidence in learning to operate such prosthesis. 46.Having assessed the plaintiff, Prof Ng concludes that the Existing Prosthesis is not suitable for him because of insufficient function. Prof Ng highly recommends a set of functional hand prosthesis and silicon prosthesis together with better socket design to facilitate the plaintiff in having more natural hand control prosthesis that requires less energy consumption. On such basis, Prof Ng suggests two options for the functional prosthesis: (a) the Mechanical Prosthesis with hand/hook terminal device or (b) the Myoelectric Prosthesis being the Otto Bock System with i-Limb hand combination. 47.Prof Ng says that selection between the two options should be made with regard to the actual needs of the plaintiff and the characteristics of the prosthesis/components suggested. Prof Ng considers the plaintiff to be a suitable candidate to be trained to use the Myoelectric Prosthesis, which will improve his quality of life even though he will always require assistance especially in domestic work. Prof Ng notes that the plaintiff is 47 years old, and if he is able to recover some hand functions he may be able to lead a more normal life, and it will give him more confidence to look for work. The plaintiff is motivated to use a functional prosthesis, and the trial with the Trial Hook Prosthesis shows that he can operate such prosthesis. During his examination, Prof Ng tested the muscle power and range of motion of the plaintiff’s stump. Both Prof Ng and Dr Yuen consider the plaintiff’s residue stump to be reasonably extensive and his residue muscles strong enough to work the Myoelectric Prosthesis. Prof Ng notes that the plaintiff is “very smart” and is able to generate clear and strong signals. Prof Ng considers the plaintiff’s response to commands to “open” and “close” the phantom hand remarkable. He therefore concludes that the plaintiff has the ability to use the Myoelectric Prosthesis with i-Limb hand combination. Not only is the i-Limb hand more cosmetic in appearance than the hook or mechanical hand terminal device, it provides a lot more functions as explained in paragraph 39 above. 48.Besides the functional prosthesis, Prof Ng also recommends a custom-made silicon hand that matches the plaintiff’s right hand and mounted on a Munster socket so that his prosthesis will be less conspicuous. The Existing Prosthesis cannot be cleaned, but the silicon hand is more cosmetic in appearance and can also be easily cleaned. IX. PAIN, SUFFERING AND LOSS OF AMENITIES 49.The plaintiff in the 1st Statement says that prior to the Accident, he was healthy and strong, and had not suffered any work-related injury, chronic disease, injury or disability. According to the Yuen Report, the plaintiff had little hobbies prior to the Accident. He liked off-course horse betting, but did not play mahjong or any ball games. He liked hiking and did so usually in the morning. 50.At the time of the Accident, the Plaintiff was 42 years old. He lost his dominant forearm/hand in the Accident, and was prescribed with the Existing Prosthesis, which is merely a cosmetic prosthesis. The plaintiff’s injuries resulted not only in serious physical but also cosmetic disability. He is handicapped in most ADL and has to re-learn how to carry out ADL with his left hand. He is unable to work, and his quality of life is diminished. He still suffers from the following symptoms as a result of injuries sustained by the Accident:
51.Ms Lau has referred me the following cases:
52.The plaintiff claims a sum of not less than HK$800,000.00 under this head of claim. The injuries suffered by the plaintiffs in the above cases are not exactly the same as the injuries suffered by the plaintiff in the present case, and I have to consider the relevant award in the context of the present circumstances. I note that although the plaintiff suffered a severely disabling (both physically and cosmetically) injury, he is of a resilient character and has not suffered the psychiatric problems that afflicted some of the plaintiffs in the cases cited. In the cases cited, some plaintiffs suffered less serious injuries (eg the injured hand was not amputated) and others suffered more serious injuries (eg the remaining hand was also injured), so they do not bear direct comparison. I also bear in mind the utility of the Myoelectric Prosthesis with i-Limb hand combination for the future if I am to provide for one. Bearing in mind the plaintiff’s injuries and disabilities, and the effect of his injuries and disabilities on loss of amenities in his daily activities and future employment (if any), I agree that the plaintiff’s injuries and disabilities fall within the “substantial category”. In all the circumstances, I consider that an appropriate award for this head of damages is HK$730,000.00. X. FUTURE PROSTHESIS EXPENSES 53.Having considered the evidence of the plaintiff and Prof Ng as well as the Yuen and Ng Reports, I am satisfied that the plaintiff will use and be able to use the Myoelectric Prosthesis with i-Limb hand combination if I am to provide for one, and that such prosthesis will give back to the plaintiff some of the functionality that he has lost. Both Dr Yuen and Prof Ng have examined the plaintiff and found the residue stump has strong muscle power and sufficient range of motion to operate the Myoelectric Prosthesis. The ease with which the plaintiff operated the Trial Hook Prostheses provides confidence that he will be able to manage the Myoelectric Prosthesis with i-Limb hand combination. The plaintiff has shown strong motivation and determination in face of his serious injury/disability (as shown in his willingness to attend to almost all ADL albeit clumsily with his left hand, and to find work even though he did not have any functional prosthesis to date). I am persuaded that the Myoelectric Prosthesis with i-Limb hand combination will provide the plaintiff with more amenity, help reduce his cosmetic disability, and improve his social confidence. As Prof Ng puts it, such prosthesis is not a luxury, but a mechanism that will offer some hope to the plaintiff to encourage him and to better his life. 54.I agree with the observations by DHCJ Carlson in Chan Ka Lim that “it is entirely reasonable, given [the plaintiff’s] disability, that he should be provided with [a Myoelectric Prosthesis]. This is not a case where questions of necessity arise or any doubts can be entertained that the plaintiff would use the prosthesis. Whilst this is very much the “Rolls Royce” model and is priced as such it is entirely right that the plaintiff ought to have the best on the market. Having lost the whole of his dominant arm he should be provided with the best available electrically powered replacement together with the accessories that go with it” (para.35). On appeal to the Court of Appeal, Le Pichon JA in Chan Ka Lim CACV 405/2007 (unreported, 14 October 2008) said that “[viewed] objectively, the judge was providing the plaintiff with no more than what was reasonable in the circumstances”. 55.Prof Ng has given a comprehensive breakdown of the costs for the Myoelectric Prosthesis with i-Limb hand combination and for the custom-made silicon hand. The prosthesis components for the Myoelectric Prosthesis with i-Limb hand combination, which have a lifespan of about 3 years, altogether cost US$30,500.00 or HK$237,900.00. The associated professional charges and maintenance cost for 3 years are HK$80,000.00 and HK$90,000.00 respectively. Thus, the overall cost of the Myoelectric Prosthesis with i-Limb hand combination for their normal 3-year lifespan is HK$237,900.00 + HK$80,000.00 + HK$90,000.00 = HK$407,900.00. For the custom-made silicon hand, Prof Ng refers to some quotations and estimates the cost to be HK$84,000.00. The lifespan of the silicon cosmetic hand is about 3 years, but there will be no maintenance cost. 56.I have carefully considered Prof Ng’s estimated cost for the Mechanical Prosthesis with hook/hand terminal device (and with a normal lifespan of about 3 years) in the total sum of HK$41,800.00 comprising component costs, professional charges and maintenance costs in the respective sums of HK$11,800.00, HK$10,000.00 and HK$20,000.00. Notwithstanding the greater financial economy in using the Mechanical Prosthesis, for all the reasons set out above, I am satisfied that it is reasonable for the plaintiff to have a Myoelectric Prosthesis with i-Limb hand combination. 57.An issue arises as to whether the plaintiff will be able to handle the Myoelectric Prosthesis with the i-Limb hand combination as he grows older. Prof Ng says that he has patients using such prosthesis in their seventies. He explains that once the amputee gets used to such prosthesis, it becomes his “hand” and the user will not be able to get about without such “hand”. Indeed, Prof Ng expects the user to insist on using such prosthesis so long as he is physically capable of doing so. 58.Ms Lau submits that the appropriate life-long multiplier is 21. I propose a life-long multiplier of 20 (see Lau Wing Kong at para.40), so the plaintiff should be awarded the costs of 7 sets of Myoelectric Prosthesis with i-Limb hand combination and silicon cosmetic hand in the sum of (HK$407,900.00 + HK$84,000.00) x 7 = HK$3,443,300.00. XI. PRE-ACCIDENT EMPLOYMENT HISTORY 59.The plaintiff was born in Mainland China. He received education up to primary education level, and could only read and write simple Chinese but not fully understand the contents of newspapers. When he was in Mainland China, he worked as farmer (Yuen Report) or as a factory worker doing manual work (1st Statement). After he came to settle in Hong Kong in 1979, he worked in embroidery, electronic and electroplating factories (see the 1st Statement and the plaintiff’s application for employment at Professional Security Services Limited) or as a manual worker in factory and construction site (see the Yuen Report). Between 1980 and 1991, he worked in the silk-screen painting industry (see the plaintiff’s application for employment at Professional Security Services Limited). After 1991, he worked as a lorry delivery worker for 7-8 years. Since 2003, he joined the recycle paper and metal industry, and was employed by 天威盛有限公司 as a miscellaneous or general worker. 60.On 20 March 2007, he joined the defendant as a miscellaneous or general worker and worked for the defendant until the Accident. He worked from 8:30am to 8:00pm each day with 2 rest days each month. He told Dr Yuen that his duties included (a) off-loading newspaper and discarded carton boxes from crates, (b) placing these waste papers into a baling machine and (c) operating the baling machine by pushing certain buttons. 61.When the plaintiff first joined the defendant, he earned a daily wage of HK$300.00, which was increased to HK$400.00 since May 2007. He was paid in cash twice a month on the 5th and 20th days of each month, and even though his daily wage was HK$400.00 the defendant usually paid him HK$6,000.00 each time, so his monthly salary was HK$12,000.00. Indeed, in the Form 2 dated 6 August 2007 and the change of particulars dated 15 September 2007 submitted to the Labour Department, the defendant admitted that the plaintiff on average worked 28 days a month with no fixed paid rest day, and his monthly salary was HK$12,000.00. On such evidence, I am satisfied that the plaintiff was earning HK$12,000.00 per month at the time of the Accident. XII. POST-ACCIDENT ATTEMPTS TO FIND WORK 62.After the Accident, the plaintiff was unemployed and was on CSSA support. He was granted sick leave for about 11.5 months after the Accident. Dr Yuen agrees with the sick leave period as assessed by the MAB. Given the loss of his dominant right hand, his resulting disabilities and the lack of a functional prosthesis, I accept that the plaintiff was practically unable to secure any job. But notwithstanding such adversity, the plaintiff took commendable steps to find work after the expiry of his sick leave, but unfortunately to no avail. 63.According to the Yuen Report, the plaintiff contemplated going into security work. He completed the Basic Security Training Course organised by the Association for the Rights of Industrial Accident Victims in February 2008, and managed to obtain a security personnel permit valid from March 2008 to March 2013. The agency training the plaintiff for this kind of work managed to get him a job referral. He submitted an application to work as security guard for Professional Security Services Limited, but there was no positive response. He had a job interview with another security company in Cheung Sha Wan, but the potential employer did not contact him again after he disclosed his right hand disability. 64.The plaintiff is holder of a Construction Industry Safety Training Certificate issued on 6 November 2010, and such certificate is valid from 6 November 2010 to 5 November 2013. He explains that he often attends the offices of Association for the Rights of Industrial Accident Victims, and they recommend him to read the construction safety course and apply for the aforesaid certificate because he cannot work at construction sites, eg as a construction site lift operator, unless he has such certificate. But to date he has not been able to secure such work. 65.The letter from the Labour Department to the plaintiff’s solicitors dated 25 August 2010 states that the plaintiff was registered with the department’s Selective Placement Division on 11 September 2009. The Labour Department considered him suitable for car park attendant or security guard work, and arranged for him to attend a two-day pre-employment training course in 2009 when he indicated to the department that he would like to work as a security guard. A referral to a security guard post was made on 14 October 2009, but the plaintiff was not selected subsequently. 66.In 2010 the plaintiff saw an advertisement by 安民警衛 looking for security guard for residential buildings. He made a telephone enquiry and disclosed the injury to his right hand, but安民警衛 did not further revert to him. 67.The plaintiff is an unskilled worker with little education. Prof Ng considers that in view of the plaintiff’s residual limb function, general health condition and age, he may be able to take up duties as a watchman when fitted with an appropriate prosthesis. The plaintiff gave evidence that whilst he can handle patrol duties, he will not be able to lift and carry objects. Dr Yuen opines that the plaintiff cannot return to his pre-Accident job, but can be a car park attendant. The plaintiff thinks he can do such work, but he believes he cannot do security guard work at shopping malls because his prosthesis may scare children. XIII. PRE-TRIAL LOSS OF EARNINGS 68.I am satisfied that with his injuries and disabilities and with the Existing Prosthesis which is non-functional, it has been and is still impossible for the plaintiff to find work after the Accident despite his diligent efforts to undergo training and to look for work. 69.Ms Lau submits that in assessing loss of earnings I should take into account a conservative increase of 5% in earnings, ie the plaintiff should have been able to earn HK$12,600.00 per month by mid-November 2011, so that his median monthly earnings for the pre-trial period are HK$12,300.00. For such proposition, Ms Lau draws support from the statistics kept by the Census and Statistics Department. According to such statistics, the monthly earnings of a general worker in June 2007 and March 2011 were respectively HK$7,473.00 and HK$7,918.00, which Ms Lau suggests reflect a slight increase in income for miscellaneous non-production workers. I accept Ms Lau’s analysis and am prepared to adopt HK$12,300.00 as the plaintiff’s notional monthly pre-trial earnings. 70.In the circumstances, the plaintiff’s pre-trial loss of earnings to date is HK$12,300.00 x 55 months = HK$676,500.00. XIV. POST-TRIAL LOSS OF EARNINGS 71.The plaintiff was healthy and fit before the Accident, and used to have regular job and stable income. Ms Lau submits that but for the Accident and the resulting injuries and disabilities, the plaintiff is expected to continue to work as a baling machine general worker until the age of 65. But due to the loss of his dominant right hand, the plaintiff is severely handicapped in the labour market and may not be able to secure any job in future. Ms Lau argues that the plaintiff probably will remain unemployed due to his impairment for the rest of his working life. 72.Had the plaintiff been left with only the Existing Prosthesis, which is not functional, I have no doubt that the plaintiff is unlikely to be unable to secure any work in future. However, I have made provision for a Myoelectric Prosthesis with i-Limb Hand combination, and it is necessary to consider the impact of such provision on loss of future earnings. 73.Ms Lau places great emphasis on the fact that the plaintiff has little education, is unskilled and is only experienced in manual labour work in respect of which he is no longer suited. Ms Lau also highlights the fact that the plaintiff has made conscientious efforts to look for work after the expiry of sick leave to no avail, and asks me to infer that with the passage of time the plaintiff’s chance of finding work in the open market will diminish. 74.However, it must be borne in mind that so far the plaintiff’s failure to secure work was due to his disabilities which are not compensated to any extent by any functional prosthesis. But Ms Lau submits that I should not regard the provision of the Myoelectric Prosthesis with i-Limb hand combination as equivalent to an automatic reduction in his future earnings because the plaintiff’s impairment is only one of many material factors that affect his employability, especially when he is unskilled. 75.In my view, there can be no doubt that the Myoelectric Prosthesis with i-Limb hand combination as compared with the Existing Prosthesis will improve the plaintiff’s functionality. I accept that even with such prosthesis it is impossible for him to return to manual labour that depends on agility, dexterity and weight-bearing of the right upper limb. 76.Even though the plaintiff feels he can attempt work as a security guard (albeit not in any shopping mall) or as a construction site lift operator, and he has gone so far as to obtain the relevant permit/licence for such work, there is no evidence that he will be able to secure such work. Prof Ng considers the plaintiff suitable for working as a security guard when fitted with an appropriate prosthesis, and Dr Yuen considers he will be fit to work as a carpark attendant. However, these are recommendations from a medical/functional perspective. In reality, even though for these types of work the plaintiff’s limited education and the unskilled nature of his previous work experience will not constitute any major impediment, I agree it is unlikely that the plaintiff will be able to secure any gainful employment, even for temporary work, in the future. The plaintiff does have strong physique and muscle power as confirmed by Dr Yuen and Prof Ng, but the undeniable fact is that he has lost his dominant right hand, and although the Myoelectric Prosthesis with i-Limb hand combination will give back some functionality, it cannot be equated to a natural hand and the plaintiff will be substantially less competitive than other able-bodied workers. Even a carpark attendant or security guard may need to keep some basic written records, and may need to help residents or customers with some services that inevitably require use of hands. Realistically, notwithstanding the plaintiff’s motivation, it is unlikely that the plaintiff will secure gainful employment. 77.Ms Lau suggests that the multiplier for loss of future earnings is 12. I consider a multiplier of 10 is more reasonable and appropriate in light of the plaintiff’s age and pre-Accident work (see Lau Wing Kong at para.33). In the circumstances, the award for the plaintiff’s post-trial loss of earnings is HK$12,600.00 x 12 months x 10 = HK$1,512,000.00. XV. LOSS OF MANDATORY PROVIDENT FUND (“MPF”) CONTRIBUTION 78.Ms Lau submits that but for the Accident, the plaintiff should have been entitled to a contribution made by his employer towards the MPF which is equivalent to 5% of his earnings or HK$1,000.00 per month whichever is less. Here, the plaintiff’s pre-trial loss of MPF contribution is HK$676,500.00 x 5% = HK$33,825.00 and post-trial loss of MPF contribution is HK$1,512,000.00 x 5% = HK$75,600.00, totalling HK$109,425.00. XVI. SPECIAL DAMAGES 79.In respect of special damages, the plaintiff claims for travelling expenses for attending medical treatments at PYNEH (HK$240.00 being HK$30.00 per round trip by MTR/PLB x 8 times and HK$360.00 being taxi fare x 3 times) and at Lam Tin Family Health Service (HK$80.00 being HK$8.00 per round trip by bus x 10 times) in the total sum of HK$680.00. The plaintiff also claims for travelling expenses for his family members visiting him at PYNEH (HK$930.00 being HK$30.00 per round trip by MTR/PLB x 31 times) and at Lam Tin Family Health Service (HK$40.00 being HK$8.00 per round trip by bus x 5 times) in the total sum of HK$970.00. I find such expenses reasonable and allow the same. 80.The plaintiff claims for tonic food (maw, Chinese medical herbs, chicken broth, etc) expenses in the sum of HK$9,000.00. There are no receipts for such expenses. Only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge. Following Yu Ki v Chin Kit Lam [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575) and judging from the nature of the plaintiff’s injuries and disabilities, I allow a global sum of HK$7,000.00 for his claim under this head. 81.In the circumstances, the special damages suffered by the plaintiff are HK$680.00 + HK$970.00 + HK$7,000.00 = HK$8,650.00. XVII. EMPLOYEES’ COMPENSATION 82.According to the Certificate of Review of Compensation Assessment (Form 6) dated 18 September 2008, periodical payments were assessed at HK$12,000.00/30 x 340 sick leave days x 4/5 = HK$108,800.00 and compensation for permanent incapacity at 72 x HK$12,000.00 x 76% = HK$656,640.00, totalling HK$765,440.00. 83.Deputy District Judge Alfred H H Chan in his judgment dated 18 February 2010 in DCEC 632/2009 (“EC Judgment”) noted that the plaintiff had received HK$156,000.00 from the Respondent (ie the defendant), and he thereby granted judgment in favour of the plaintiff in the sum of HK$609,440.00 with interest thereon at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate. 84.In short, the total employees’ compensation (whether received or awarded) in favour of the Plaintiff was HK$156,000.00 + HK$609,440.00 = HK$765,440.00. Even though the plaintiff claims that the sum of HK$609,440.00 has not been paid, he is entitled to enforce recovery of such employees’ compensation pursuant to the EC Judgment, and in light of section 26(1) of the Employees’ Compensation Ordinance Cap.282, the value of “any compensation which has been paid or is payable under the provisions of this Ordinance in respect of the injury sustained by the employee” ought to be deducted from any damages that may be awarded in this case. XVIII. CONCLUSION 85.I summarise the above awards as follows:
86.I therefore grant judgment in favour of the plaintiff against the defendant in the sum of HK$5,714,435.00. Interest is payable on the award for pain, suffering and loss of amenities at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of earnings and other special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. 87.There is no reason why costs should not follow event. I grant a costs order nisi that the defendant do pay the plaintiff costs of the assessment of damages (including all costs reserved, if any, but excluding the costs of Ms Lau’s written supplemental closing submissions dated 9 February 2012) with certificate for counsel to be taxed if not agreed, and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations. 88.On the day after the Hearing, without seeking leave of the court to re-open her closing submissions, Ms Lau submitted written supplemental closing submissions. It is unclear whether these written supplemental closing submissions have been served on the defendant. 89.In her written supplemental closing submissions dated 9 February 2012, Ms Lau refers to my order dated 14 December 2010 in HCB 5730/2010 (“HCB Order”) made pursuant to the joint application by the plaintiff’s solicitors and the solicitors for the Official Receiver and Trustee by way of a consent summons filed on 13 December 2010. By the HCB Order, I granted leave to the plaintiff to proceed with the present proceedings notwithstanding the bankruptcy of the defendant, and also directed that the costs of the plaintiff’s application including the costs paid to the Official Receiver be reserved to the master/judge in the present proceedings and to the taxing master in the proceedings for taxation of costs in DCEC 632/2009 respectively. 90.There is no evidence before me that the plaintiff has notified of the defendant about the HCB Order and/or that the plaintiff will raise the issue of costs under the HCB Order at the Hearing (or as it turned out after the Hearing) for determination by the court. It is wholly inappropriate for me to deal with this matter, practically speaking, on ex parte basis. Further, I have no information as to whether the taxing master in DCEC 632/2009 has made any order in respect of the issue of costs under the HCB Order (including the costs paid to the Official Receiver) for proper adjudication of such issue in the present proceedings. 91.I therefore decline to deal with the outstanding issue of costs in the HCB Order. The plaintiff is at liberty to issue inter partes application to deal with such issue if so advised.
Representation: Ms Julia Lau instructed by Messrs Liu, Chan & Lam for the plaintiff. The defendant was not represented and did not appear. |
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