BHIM BAHADUR RAI v. FUNG SHING HONG, HONG KONG (a firm)

HCPI 776/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 776 OF 2007

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J U D G M E N T

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1.  This is a personal injuries action.

2.  The defendant has been adjudged bankrupt on 6 May 2009.  Leave has been granted for this action to continue under Section 6 of the Bankruptcy Ordinance.  The Official Receiver has declined to adopt the defence of this action.  The defendant appeared in person but has not really contested the claim.  The defendant has previously filed a defence, an answer to the statement of damages and two witness statements.

Liability

3.  The plaintiff was employed by the defendant on 1 October 2005 as a temporary worker in the defendant’s factory in Shek Kong, New Territories.  His duty was to operate a vertical baling press machine to compact white plastic bags. 

4.  At about 9 am on 13 October 2005 when he was operating the machine, some plastic bags fell out from the unguarded upper part of the compaction chamber.  He pushed them back with his right hand but his right hand was entangled by the bags and was crushed by the descending platen. 

5.  After the accident, the defendant, on the advice of the Labour Department, installed an upper front door to completely enclose the compaction chamber and to prevent access when the platen is in motion.  The defendant, on the department’s advice, also installed an emergency stop button and a micro-switch on the machine to stop the platen in case of emergency.

6.  The defendant was prosecuted by the department for contravention of Regulation 4 of the Factory and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, Cap. 59Q.  The defendant was convicted of the same on 9 May 2006.

7.  The defendant has not challenged the above evidence.  In the premises, I find the defendant liable to the plaintiff for negligence, breach of employer’s duty in failing to provide a safe system of work, and breach of the statutory duties under Regulation 4 of the Factory and Industrial Undertakings (Guarding and Operation of Machinery) Regulations.

Contributory Negligence

8.  I refer to the judgment of Lord Greene, MR, in Hopwood v Rolls Royce Ltd (1947) 176 LT 514 at 520.  I also refer to Lord Parker’s judgment in Staveley Iron & Chemical Co. Ltd v Jones [1956] AC 627 at 648.  The contributory negligence alleged against the plaintiff was his carelessness in using his right hand to push the plastic bags back to the compaction chamber when the compressing platen was on the descent.  But this was the very behaviour that Regulation 4 of the (Guarding and Operation of Machinery) Regulations set out to prevent.  To hold the plaintiff guilty of contributory negligence in these circumstances is to defeat the purpose and intent of the regulation.  I hold that the plaintiff is not guilty of contributory negligence.

Quantum

PSLA

9.  The plaintiff was sent to Pok Oi Hospital after the accident.  He had a large, ragged wound on the palm and the back of the lateral half of the right hand.  The tendons and bones were exposed.  The wound was bleeding actively.  He was given pressure dressing and sent to the Tuen Mun Hospital. 

10.  On his admission to the Orthopaedic and Traumatology Department of the Tuen Mun Hospital, exploratory and debridement were performed.  He had a 20 cm laceration in the forearm extending to the palm and another 10 cm C-shaped laceration in the hand.  The median and outer nerves were crushed.  The flexor digitorum superficialis of the second, fourth and fifth digits were ruptured and crushed.  His flexor pollicis longus was completely ruptured.  There was, however, no definite fracture. 

11.  The injuries to the tendons were beyond repair.  A transfer of the flexor pollicis longus to another tendon was performed.  Skin graft was performed on 20 October 2005.  Flap coverage of the palm skin was also performed on 2 November 2005.  He was then discharged on 16 November 2005 after hospitalisation for 34 days.

12.  He was re-admitted to the hospital on 28 November 2005 because of superficial loss of the flap.  Skin graft was performed again on 30 November 2005.  He was discharged after 10 days on 8 December 2005.  However, he was admitted to the hospital for the third time on 16 December 2005 for seven days for antibiotic treatment to the wound infection. 

13.  He had physiotherapy and occupational therapy from early 2006.  The physiotherapy lasted for six to seven months, whilst the occupational therapy lasted for seven to eight months. 

14.  He now has five scars on the right hand.  One is in the palm; another one is along the side of the right forearm; the third one is at the side of the right little finger; the next one is for the skin graft on the side of the upper forearm just below the elbow; and the last one is the skin graft to the back of the inner side of the lower right arm.

15.  The plaintiff still complains of residual symptoms of the fingers and thumb and wrist of the right hand and weakness in the right hand.  There was some decrease in flexion range of the fingers of the right hand and mild decrease of end-range movement of the right wrist.  After the tendon transfer, there is weakness in flexion of the right thumb.  There is also decrease in the end-range of extension of the right thumb.

16.  The plaintiff’s orthopaedic expert, Dr Cheng, concluded that the plaintiff might have preserved a reduced but reasonable function as the muscle bulk of the right upper limb was reasonably preserved as revealed from the circumferential measurement, but he cannot perform a full empty grip of the right hand when not holding objects.  This is due to limitation in the end-range flexion of the fingers.  He can make a reasonable grip if an object is placed in the palm.  There should also be a reasonable capacity with writing and the use of the right hand in dining.  The main residual problem would be weakness in handling heavy objects and performing strenuous pushing and pulling movements, especially in prolonged and repetitive manner. 

17.  Dr Cheng further opined that he could not go back to his pre-accident job which required repetitive lifting of heavy objects.  He could work as a security guard, a messenger, a delivery worker of light goods, and a cleaner.  He could also learn to drive as a chauffeur.

18.  On 15 May 2007, the Employees’ Compensation Ordinary Assessment Board certified for him sick leave from 13 October 2005 to 26 September 2006 and permanent loss of earning capacity at 16 per cent.

19.  Counsel for the plaintiff referred me to a number of cases for comparison purposes.  I have in particular considered four cases, which are:  Ngai Lung Hing v Gowin Engineering Co. Ltd, HCPI 211/2005; Au Hon Ling v Ching Hoi Keung trading as C and L Co. and Another, HCPI 416/2003; Chan Kai Wing v Leung Fat Kee Engineering Factory Co. Ltd, HCPI 1163/1999; and Tsang Wah Lam v Sun May King Publishing Company Limited trading as Sun May King Printing Company, HCPI 843/2000. 

20.  I am of the view that the damages for PSLA for the plaintiff in this case should be $400,000.

Pre-trial Loss of Earnings

21.  The plaintiff was employed by the defendant at daily wages of $200.  Prior to September 2005, the plaintiff had been working in various construction sites and had higher earnings, but there were also occasions when he was laid off at the completion of a project and was then unemployed for months before finding another job.  He only became a general labourer in September 2005 when he could not find any job in the construction field.  Before joining the defendant on 1 October 2005, he had worked for two weeks in a neighbouring factory doing similar work and was also paid $200 wages per day.

22.  Since he had been in this new role only for a short while and, given the opportunity, I think it is likely that he would resume his employment pattern as before September 2005.  I am therefore persuaded not to apply his rate of earnings from the defendant for calculating his loss of earnings. 

23.  His average monthly earnings for the two years’ prior to the accident was $6,356 per month.  Counsel submits that I should adopt the three-year average of $7,650 per month.  But a period of three years is too long for the purpose of providing a realistic reflection of the plaintiff’s average level of income at about the time of the accident.  I adopt the two-year average. 

24.  It is now about 35 months since the accident.  The plaintiff has earned $72,534 up to 31 August 2009.  He should have earned another $2,000 before overtime was included for the first half of this month.  His pre-trial loss of earnings is:

$6,356 x 35 x 1.05 (including MPF) - $74,534 = $159,049.

Loss of Future Earnings and MPF

25.  The plaintiff was born on 15 January 1958.  He is now 51.  Counsel for the plaintiff cited five cases of males who were aged 51 at their personal injury trials.  Three of them had multipliers of seven[1] and the remaining two had multipliers at 10[2] and 12[3].  I would adopt 10 for the plaintiff.

26.  His current income is $4,500 per month including standard overtime pay[4].  His future loss of earnings and MPF is: 

$6,356 x 120 x 1.05 (including MPF) - ($4,500 x 120) = $796,356.

I have not included MPF in his current income because it is too low to attract the mandatory MPF contribution from his employer.

Loss of Earning Capacity

27.  In light of his residual disability, there is always the risk that he may lose out in the employment market.  I agree with counsel that I should allow $100,000 under this heading.

Special Damages

28.  I allow $12,240 medical expenses and $2,280 travelling expenses as they have been fully justified in the plaintiff’s supplemental witness statement.  I also allow $5,000 for tonic food as he had been admitted to the hospital three times and stayed there for a total of 51 days.

29.  The total amount under this head is $19,520.

Employee Compensation

30.  The plaintiff has received $116,280 from DCEC1225/2006.  I deduct this sum from the damages given.

31.  The net sum of damages payable is:

	$400,000
	$159,049
	$796,356
	$100,000
+	$19,520
-	$116,280
=	$1,358,645

32.  I order interest at 2 per cent per annum for the general damages of PSLA from the date of writ to today.  I also order interest for the pre-trial loss of earnings plus MPF thereon and special damages at half the judgment rate from the date of accident to today.

33.  I also order the defendant to pay the plaintiff the costs of this action and the plaintiff’s own costs be taxed according to the Legal Aid Regulations.

[1] Leung Hon Sum v Yau Lee Construction  [2001] HKLRD K12, Sze Ping Chui v Lau Ching Wai [2002] HKLRD K14 and Cheng Chi Ming v Li Chau Wan [2005] HKLRD H6.

[2] Yuen Pak Cheong v Chan Ka Leung [2004] HKLJ 408.

[3] Wong Po Kin v Hopewell Construction [2003] HKLRD B12.

[4] Below the minimum of $5,000 to require employer’s contribution to MPF.