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HCPI000091/1996
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
PERSONAL INJURIES
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| BETWEEN |
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HO YAM PAN |
Plaintiff |
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AND
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TSE TAK MING t/a KEN'S COMPANY |
Defendant |
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Coram: Master Chung in Court
Date of Hearing: 7 April 1997
Date of Judgment: 16 April 1997
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ASSESSMENT OF DAMAGES
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1. This action arose out of an industrial accident which occurred on 25 March, 1995. At the time, the Plaintiff was employed by the Defendant to work as a construction site worker. On 19 January, 1996, the Plaintiff took out this action against the Defendant for the injuries he suffered from the said accident. On 6 March. 1996, interlocutory judgment with damages to be assessed was entered against the Defendant for failing to give an intention to defend the action. This is the Decision on the assessment of damages.
2. A bundle of documents was produced by the Plaintiff for use at the hearing. It contains documents in a Hearsay Notice (except the Plaintiff's witness statement) which was served on the Defendant prior to the application to fix a date for hearing the assessment. The Defendant further agreed that the copy documents in the said bundle could be looked at by the Court and the originals need not be produced. The only witness who testified was the Plaintiff. He was not cross-examined by the Defendant. The Defendant did not adduce any evidence nor did he make any submissions.
3. At the beginning of the hearing, Mr. Wong informed me that the Plaintiff is only seeking the following heads of damages:-
| (a) |
pain and suffering and loss of amenities of life; |
| (b) |
loss of earnings for the period when the Plaintiff was given sick leave for his injuries; |
| (c) |
loss of earning capacity; |
| (d) |
other miscellaneous loss. |
4. I find the evidence adduced by the Plaintiff to be truthful and reliable evidence and I accept them to be the facts for the purpose of the assessment.
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Personal Background of the Plaintiff |
5. The Plaintiff was born in China on 8 December, 1968. He was 26 years old at the time of the accident and is now 29 years old. He came to Hong Kong in January, 1986. He is married and is living with his wife and 3 children in Hong Kong. The Plaintiff's wife is a housewife and looks after the children.
6. The Plaintiff has been working as a construction site worker and started to work for the Defendant since October, 1993. When he was working for the Defendant, the Plaintiff earned a daily wage of $400 per day. On average, he worked for 26 days per month and his monthly income was therefore about $10,400.
7. Before the injuries, the Plaintiff enjoyed reading books and playing badminton with his friends.
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Nature of the Injuries and Treatment |
8. On 25 March, 1995, the Plaintiff was working in a construction site in Fotan, Shatin. At about 1 p.m., he was operating a cutting machine to cut some metal rod. Suddenly, the cutting blades of the machine broke into pieces. Some of these hit the Plaintiff's right eye. His right eye bled severely and he felt very painful. The Plaintiff was then admitted into the Prince of Wales Hospital for treatment.
9. According to the medical report of Dr. Stanley Lo, the doctor attached to the Accident and Emergency Unit of P.W.H., the following medical findings were made after examination:-
| (a) |
severe contused right eye with full thickness laceration of upper eyelid; |
| (b) |
severe haemorrhage seen behind cornea; |
| (c) |
X-ray of right orbit taken to exclude intra-orbital foreign body; |
| (d) |
permanent disability cannot be assessed at that stage. |
10. According to the medical report of Dr. K.K. Wong of the Department of Ophthalmology, P.W.H, the following observations were made:-
| (a) |
right eye blunt trauma by an unknown object with resultant right ruptured globe; |
| (b) |
emergency operation on 25 March, 1995 was done to repair scleral laceration and suture eyelid lacerations. Visual acuity checked at the time revealed query light perception only; |
| (c) |
eyelid lacerations were found over right upper and lower eyelids and severe global injury, with total hyphema. uveal prolapse and lens dislocation. The scleral laceration extended from 12 o'clock around the limbus down to 6 o'clock. Fundus could not be seen because of vitreous haemorrhage; |
| (d) |
after the operation, the eye still had total hyphema and became phthiscial. The right vision could not be salvaged, probably because of the severe nature of the injury. Permanent disability is expected in that the Plaintiff would lose his right vision. On follow-up consultation, the Plaintiff complained of quite severe headache after the accident which disturbed his sleep. |
11. The Plaintiff was medically examined by Dr. Tsui Chung Wan on 19 December, 1995 for assessing the Plaintiff's visual function and possible visual disability. In his medical report. Dr. Tsui found that the injuries on the right eye healed well. He also found that these was no light perception of the right eye. He assessed the permanent disability of the Plaintiff's right eye to be 100% which is equivalent to a 25% of the visual system and a 24% defect in the whole person. He found the loss of earning capacity to be 30%.
12. Apart from the operation mentioned above, the Plaintiff testified that he underwent another operation to remove the right eye ball for the purpose of reducing the headache and neck pain he suffered after the eye injury. He further testified that the pain was reduced after the 2nd operation but he still suffered from some headache and pain in the right eye.
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Pain and Suffering and Loss of Amenities |
13. The fact that the loss of the right eye will bring with it a lot of disadvantages in life needs not be emphasized. In this case, the Plaintiff also testified that he could not read books or play badminton as he did before the accident.
14. In his written submissions. Mr. Wong for the Plaintiff very helpfully drew my attention to the following cases, namely,
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Fong Pak-lam v. Chan Tai, H.C.A. No. 2279 of 1984; |
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Tsang Kee-chuen v. Yaumatei Ferry, H.C.A. No. 303 of 1988; |
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Chow Yuet-sheung v. Lai Yiu-kwong, H.C.A. No. 7773 of 1984; |
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Pang Kwai-wah v. Tsang Kwok-wing, H.C.A. No. 5582 of 1987; |
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Chi Yuk-kau v. Chan Kai-ming, H.C.A. No. 7007 of 1983; |
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Tin Wai-shing v. Tam Foon-ling, H.C.A No. 6551 of 1986. |
Mr. Wong submitted that the Plaintiff's injuries fall within the lower end of the "serious injury" category and that an award of $450,000 is appropriate in this case: see Leung On v. Chan Pui-ki [1996] 2 H.K.C. 565. I agree with him and make an award in this sum under this head of claim.
15. The Plaintiff is claiming for his loss of income daring the period when he was taking side leave. Both his testimony and the medical record show that he took side leave for a total of 183 days during the following period:-
| (1) |
25 Mar to 21 Sep 1994 (181 days); |
| (2) |
17 Dec 1994(1 day); |
| (3) |
20 May 1995(1 day). |
The sward under this head is therefore $73,200 ($400 x 183).
16. Mr. Wong referred me to the case of Fong Pak-lam v. Chan Tai, supra, and submitted that an award of $250,000-is appropriate in this case taking into account the Plaintiffs age, his income before the accident, his employment experience and the nature of his injuries. In Yip Kam-hung v. Leung Sam-nga. H.C.A. Ho. 7337 of 1986 (a case with a similar victim), an award of $50,000 was made. I consider the appropriate award under this head after taking into the aforesaid matters into consideration to be $150,000.
17. Although no receipts have been produced, I also accept the Plaintiffs claim for the following items to be genuine and reasonable claims:-
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$430 being in-patient medical treatment expenses; |
| (b) |
$108 being out-patient medical treatment expenses; |
| (c) |
$6,000 being Chinese herbalist treatment expenses; |
| (d) |
$148 being travelling expenses for attending out-patient medical treatment; |
| (e) |
$10,000 being tonic food. |
The total award under this head of claim is therefore $16.686.
18. The Defendant has paid $439,737.84 to the Plaintiff under the Employee's Compensation Ordinance. It is common ground that such sum is to be deducted from any award made in this action.
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The damages payable to the Plaintiff are therefore $250,148.16 consisting of:- |
| (1) |
$450,000 being pain and suffering and loss of amenities of life; |
| (2) |
$73,200 being loss of earning during sick-leave; |
| (3) |
$150,000 being loss of earning capacity; |
| (4) |
$16,686 being miscellaneous expenses; |
| (5) |
deduction of $439,737.84 being employee's compensation payment already received. |
19. There will also be interest at half judgment rate in respect of items (2) and (4) above from the date of accident to date of Judgment and at 2% per annum in respect of item (1) above from date of Writ to date of Judgment. All sums awarded will carry interest at judgment rate from date of Judgment to date of payment.
20. This is also an appropriate case for making a costs order nisi under R.S.C. Ord. 44 r. 5B(6) that the costs of the assessment be paid by the Defendant to the Plaintiff to be taxed if not agreed. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.
Representation:
Appearances: Mr. S. Wong, Legal Aid Counsel for the Plaintiff
Defendant in person
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