TANG MING KWAN v. MING FAI PLASTIC FACTORY

1985 No.A4867

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The plaintiff was employed by the defendant in a plastics moulding factory.

2. The circumstances of the injury he suffered when he was operating his machine on his first day at work are set out in full in the report of Dr. Wedderburn, as is the subsequent history of the case. I can do no better than reproduce it in full.

MR. TANG MING KWAN - age 26

3. On 20th July 1983 he crushed his left hand in a moulding machine. He is right-handed. He was admitted to the Princess Margaret Hospital. It was the first day that he had worked in that factory and previously he had worked in a garment factory. He injured the Index and Middle fingers, sustaining fractures and lacerations and there is a well-healed laceration scar on the thumb side of the Index finger and a 1" scar in the web between the Index and Middle fingers. He fractured the second metacarpal, that is the bone stretching from the wrist to the origin of the Index finger and the proximal phalanx of the Index. A finger has three phalanges. He also fractured the proximal phalanx of the Middle finger. The fractures were treated by inserting pins, 2 in each finger, and the ends of the pins were left protruding from the skin so that they could be withdrawn after a period, which he says was 4/5 months and this is much longer than normal. Usually the pins are kept in for between 3 and 5 weeks.

4. He was in hospital for 2 weeks and had physiotherapy 3 times a week for a month. He was followed-up until he had a Medical Board in April 1984 and returned to work in a Yarn factory in June 1984 but because of pain and discomfort he could not manage the work so in August he obtained work as a delivery man and has done so since, although he is only casually employed..

                On examination he has full movement of both the Index and Middle fingers at the metacarpo-phalangeal joint, where the fingers join the hand. In the Index finger he has only got 80° of flexion, or bending the finger at the proximal-interphalangeal joint, normal is 100°and at the terminal joint 50°of flexion, as opposed to the normal 70°In the Middle finger at the proximal joint, movement is limited to 70°and also 50°at the terminal joint. He exercises an 85 lb. grip with the righthand and a good 60 lb. grip with the left considering the injuries.

5. X-ray shows that he fractured the head of the second metacarpal. The fracture is united but there is some distortion of the shape of the head which forms part of the Mc/P joint and the proximal phalanx shows a mild degree of distortion in the region of the same joint. X-ray shows no evidence now of a fracture of the proximal phalanx of the middle finger.

6. His impairment of the Index finger is 25% and of the Middle finger 31%. The impairment of the Wholeman from the Index finger is 3% and from the Middle finger a similar percentage of the Wholeman, making a total of 6% of the Wholeman.

7. As he was engaged in manual work which he attempted to do nearly a year after his accident, but which he could not manage, I think that his disability is the same figure of 6%. 1 am sure that if he returned to work in a Yarn factory, he could now do the work without pain and it was pain and not the limitation of movement which caused him to give up work in 1984. I am sure that now, such work would not cause pain but he would have a decrease in efficiency.

8. The writ was taken out on 5th August 1985 and when no notice of intention to defend was given interlocutory judgment was entered on 2nd September 1985.

9. The assessment of damages was before me on 20th June 1986 and the assessment reserved until today. The defendant was absent at the assessment. An employee's compensation award has been made but remains unsatisfied.

10. The appropriate hearsay notice was filed and was not the subject of any counter notice.

11. The plaintiff was 22 years of age at the time of the accident and, apart from his injury, is in good health.

12. A multiplier of 16 is accordingly selected.

13. The claims for special damages are fully supported by the documents in the hearsay notice.

14. The past and present wages of a person operating an injection moulding machine are also set out in that notice.

15. The plaintiff testified that he would expect to work a 26 day month and I accept that.

16. He also testified that in respect of the current employment as a deliverying man referred to by Dr. Wedderburn he earned $1,500 per month and I accep that also.

17. I have considered the following cases in which injuries of a similar nature to those suffered by the plaintiff were inflicted.

18. To Kin-shah v. Chan Hok-leung 14 HKLJ 386

19. Lam Kwok-hung v. Chow Chi-chung 14 HKLJ 113

20. Fung Lai-yin v. Lai Kam-chiu 8 HKLJ 254

21. Chan Suet-keung v. Yiu Shui-for 14 HKLJ 266

22. Damages are accordingly assessed as follows:-

General Damages

23. The defendant shall pay the plaintiff's costs and the plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.

24. Interest on the general damages of $22,500.00 shall be charged at 2% from the date of the accident and on the special damages of $37,471 at 4% from the date of the writ both until the date hereof.

25. As the employees compensation award has not been satisfied there will be no abatement of this assessment in respect thereof.