LAW YIM KWAN v. KING MAN INDUSTRIAL CO. LTD. (IN LIQUIDATION)

1983, No. 13230

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Official Receiver advised that he would not be present at the hearing of this assessment. The hearing accordingly proceeded in the absence of representation for Defendant company.

2. Plaintiff was a casual worker at Defendant company's factory on 27th December 1980. In pursuance of his duties he was on that day operating a plastic injection moulding machine. His right hand was crushed when it came into contact with dangerous parts of that machine which Defendant company had failed to guard. The Plaintiff was 51 years old at- the time of the accident.

3. The writ was issued on 1st November 1983, and in the absence of notice of intention to defend, interlocutory judgment was entered against Defendant company on 9th July 1984.

4. Pursuant to notices under O.38 of the Rules of the Supreme Court, the following documents were produced :

5. Dr. Wedderburn's report of 20th April 1983 showed that Plaintiff suffered extensive damage to the bones and tendons of the right hand and wrist. Considerable loss of use resulted together with disfigurement. The Doctor assessed the impairment of the whole man as 38%, but suggested a figure of 45% in terms of earning capacity as Plaintiff was employed in manual labour.

6. In his updated report of 25th January 1985 Dr. Wedderburn concluded that his earlier assessment did not require amendment. The Doctor also considered Plaintiff's likely working life against the background of Dr. Lindsay's report of 30th November 1984, which showed a history of tuberculosis. Dr. Wedderburn concluded that Plaintiff was healthy and likely to be able to work to the normal age of 65, subject to the restrictions necessitated by his hand injury.

7. Dr. Hung's report was made at a relatively early stage in Plaintiff's treatment and reached no conclusion as to eventual permanent disability. The Plaintiff spent 2 weeks in hospital and received physiotherapy treatment twice weekly for a year.

8. The Plaintiff gave evidence that at the time of the accident in 1980 he was paid $85.00 a day basic wages for a 24-day month. He estimated his month's earnings at a minimum of $2,000.00. On the basis of annual increases, of which he claimed personal knowledge, he stimated his earnings in 1985 would have been about $3,600.00 per month, and in 1983 about $2,400.00 per month.

9. The Plaintiff testified that during his sick leave and before the Defendant company was wound up he received $1,400.00, or two-thirds of his salary for 7 months up to July 1981. He accordingly lost $700.00 a month for that period. Thereafter he received nothing until June 1982 resulting in a total loss of salary for that period.

10. The Plaintiff then worked as a watchman for 4 months at a salary of $1,200.00 a month, resulting in a loss of $800.00 a month for that period. He was then unemployed up to and including July 1984 and started work as a watchman in August 1984. He was paid $1,400.00 a month, which was increased to $1,450.00 in February 1985. Further evidence was given of special damages in terms of items (ii), (iii), (iv) and (v) of that head of claim.

11. The Plaintiff also testified as to his efforts to obtain employment and his difficulties in so doing. I am satisfied that all reasonable measures have been taken to mitigate his damages by way of loss of earnings.

Pain suffering and loss of amenities

12. Mr. Lee, for Plaintiff, has referred me to a number of helpful authorities and suggested a figure of $65,000.00 under this head. That same figure was awarded in 1981 in the case of To Wai Bun v. Hon Hing MHG Go. Ltd. HCA No.4529/79. The injuries there were also to a hand, although apparently somewhat more serious, and a 48% disability was assessed.

13. In the more recent case of Ng Wding Wah v. Chun Hing Metal and Plastic Mould Factory. HCA No.5389/83, Master Hansen awarded $90,000.00 for injuries to the right hand which were similar in quality and effect and were sustained in a similar manner: In reaching this figure Master Hasnen also had regard to the factor of inflation as mentioned by Barker, J.A. on page 6 of Li Ping Sum v. Chan Wai Tong and others. C.A.53/83.

14. Taking all these factors into account I award Plaintiff the sum of $100,000.00 under this head.

Loss of future earnings

15. Mr. Lee suggested a multiplier of 6 from the date of trial, and I accept this as the appropriate figure. I have no reason to doubt the accuracy of Plaintiff's estimate of $3.600 per month as his likely salary today, had not the accident supervened. Deducting his current income of $1,450.00 from this figure gives a multiplicand of $2,150.00. The Plaintiff is therefore awarded under this head the sum of $2,150.00 ℅ 12 ℅ 6 =$154, 800.00.

Loss of income (accident to trial)

16. Teking the date of trial as at the end of 1985, these losses may be simply calculated from the Plaintiff's evidence.

17. From the date of the accident he received 2/3 of his salary as sick leave pay. This meant a loss of $700.00 for a total of 7 months until the company wound up in July 1981; $4,900.00 loss in all.

18. Plaintiff was then unemployed until June 1982; there would be a total loss during this period of $2,000.00 per month for 11 months; $22,000.00.

19. In June 1982 Plaintiff secured employment as a watchman, earning $1,200.00 per month. This lasted 4 months up to October that year, giving rise to a loss of $800.00 per month, or $3,200.00 in all.

20. From November 1982 onwards Plaintiff was unemployed until August 1984 when he found his present job. It is difficult to establish his precise loss of earnings over this period as he has indicated he should have been earning about $2,400.00 per month by 1983, and $3,600.00 per month by 1985. I will therefore apply a figure of $2,400,00 from November 1982 until the end of 1983, and a median figure of $3,000.00 for the 7 months of 1984 until Plaintiff obtained his present employment.

21. On this basis, Plaintill has suffered loss of

22. $2,400.00 ℅ 14 + $3,000.00 ℅ 7 = $33,600.00 + $21,000.00 = $54,600.00 for that period.

23. For the period from August 1984 Plaintiff's loss amounts to $2,200.00 per month until February 1985, and $2,150.00 per month from February onwards. This gives $2,200.00 ℅ 6 + $2,150.00 ℅ 11 = $36,850.00.

24. The total loss of earnings for the whole period considered will therefore amount to:

25. $4,900.00 + $22,000.00 + $3,200.00 + $54,600.00 + $36,850.00 = $121,550.00, which is the sum awarded under this head.

Other special damages

26. I am satisfied that the Plaintiff has incurred the expenditure claimed under heads (ii), (iii), (iv) and (v) of the special damages. He is accordingly awarded the amounts of $600.00, $600.00, $500.00 and $300.00 for respectivley physiotherapy charges, travelling expenses, nutritional foods and bonesetter charges.

Summary

Pain, suffering and loss of amenities	$100,000.00
Loss of future earnings	154,800.00
Loss of earnings (accident to date)	121,550.00
Physiotherapy charges	600.00
Travelling expenses	600.00
Nourishing food	500.00
Bonesetter charges	300.00
	_________ $378,350.00
which is broken down into:
Genoral damages	$254,800.00
Special damages	$123,550.00

27. Interest is awerded on the amount for pain, suffering and loss of amenities at the rate of 3% from date of writ to date of judgement. There will be interest on the special damages at the rate of 8% from the date of the accident to date of judgment. There will be no award of interest on the amount awarded for loss of future carmings. A credit will be allowed for any sum paid to Plaintiff pursuant to the Employee's Compensation Ordinance, Cap.282.

28. There will be an order for payment of Plaintiff's costs by Defendant (to be towed failing agreement) and for Plaintiff's own coats to be towed under the Legal aid Regulations.