TSUI KIM MING v. CHARTER FORM CO. LTD.

HCPI 681/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 681 OF 2001

____________________

____________________

____________________________

ASSESSMENT OF DAMAGES

____________________________

Introduction

1. This is the judgment of this court on assessment of damages. Mr Tsui Kim Ming, the Plaintiff in this personal injury action, came to this court today for assessment of damages. The action began by writ was issued on 15 August 2001 wherein the Plaintiff claims against the Defendant company, Charter Form Company Limited, which was the ex-employer of the Plaintiff.

2. From the very beginning of these proceedings, the Defendant company has been absent and interlocutory judgment on liability was entered against the Defendant on 1 November 2001 with damages to be assessed.

3. Having seen the affirmation of service filed shortly before today, I am satisfied that service has been effected on the Defendant at the Defendant's registered office and the Defendant should have been aware of the hearing of today for assessment of damages. Therefore I proceed with the hearing in the absence of the Defendant.

Facts

4. Turning now to the facts of the case. They are hardly disputed as the Defendant never turned up; that the Plaintiff was born on 28 September 1959 and is now at the age of 43. To be exact, he should be 43 and one month old. Before the accident, he was involved in waterproofing work as a construction site worker. At one stage he was employed by the Defendant company as a foreman back in 1997. When he left the employ of the Defendant on 15 September 1998, he would be occasionally employed again by the Defendant on casual basis, and that was what happened on the date of the accident on 24 September 1998.

5. As a result of the industrial accident, the Plaintiff's left index finger was injured by an unguarded electric saw provided by the Defendant. I was told by the Plaintiff that he is basically a right-handed person but the accident causing injury to his left index finger had more serious consequence as expected because by the nature of his work he would hold the power gun by his left hand and he had to use force on his left index finger to pull the trigger. That was because the right hand had more useful work to do and that power was needed in the right hand to fix whatever that was the target of the power gun. I will come back to this later.

The Plaintiff's Injury, Treatment and Disabilities

6. Interlocutory judgment on liability having been entered, the present hearing focused on what damages the Plaintiff suffered as a result of that accident. The medical evidence mainly coming from Dr Arthur Chang was to the effect that the Plaintiff suffered a 4 cm laceration over the dorsal side of his left index finger, exposing the proximal interphalangeal joint. There was a cut, a deep cut, of the extensor tendon. There were fractures of the proximal and middle phalanges of the left index finger.

7. An operation was performed on the date of the accident where the cut extensor tendon was repaired. The fractures were close to the PIP joint, treated by fusion, and after the operation, the subject finger was immobilised in a splint for about eight months until May 1999. The Plaintiff was hospitalised for a total of nine days.

8. Subsequent to the Plaintiff's discharge from the hospital, he received 24 sessions of physiotherapy from 8 October 1998 to 16 March 1999. The implanted K-wire in the finger was removed in December 1998. The Plaintiff also went through occupational therapy sessions, a total of four in number, from 16 March 1999 to 23 July 1999.

9. It seems from the medical reports that the Plaintiff recovered quite well and there was confirmed fusion of the PIP joint as could be seen from an X-ray on 13 July 1999. Sick leave was granted to the Plaintiff up to and including 10 December 1998, whereas he was last seen by orthopaedic doctor on 2 November 1999.

10. Dr Chang and Dr Christopher Tong of the Hospital Authority assessed the Plaintiff's impairment of the whole person to be 6 per cent. It was the evidence of Dr Chang that although the joint healed quite well, there was a decrease in grip power which would be permanent.

11. The Plaintiff was said to be likely to be able to return to the pre-injury job, although there would be mild to moderate reduction in his working capacity and efficiency. He could go back to the construction site to work. He could also be able to work in interior decoration, including painting work, if he received appropriate training.

12. I totally accept the evidence of the doctors, and find that the plaintiff has suffered 6 per cent of impairment of the whole person by reason of an injury to his finger, left index finger.

13. The Plaintiff, when giving evidence at the hearing, informed the court that his work was impaired as a result of the injury to his left index finger, as I have mentioned, because of the particular nature of the way the work is to be done. He demonstrated to me now he would have to use his left hand to hold the power gun.

14. The Plaintiff also complained to this court that the injury also affected his daily life, although he is right handed. When he was asked as to how, he said he would have difficulty in buttoning his shirt. It would be slow and there would be stiffness or pain when the weather is cold. From the way he described to me the effect of the injury on his daily life, it is not very serious. The serious consequence is more to the handicap that he has to face in his work. I was told he worked four days during the pre-trial period, earning $550 per day and that is all he did during the pre-trial period, and I accept his evidence.

The Revised Statement of Damages

15. Now, turning to the heads of damages. The Plaintiff filed a Revised Statement of Damages on the 12th day of July 2002. I expressed some concern with certain figures now asked for by Mr Cheung, counsel for the Plaintiff, on the Plaintiff's behalf at this hearing when those figures asked for are over and above the figures appearing in the Revised Statement of Damages.

16. Without any application to amend the Revised Statement of Damages which form part and parcel of the pleadings in this case, the court would not grant damages over and above what was stated in the Revised Statement of Damages, especially when the Defendant was absent in this hearing. It could be the case that the Revised Statement of Damages, having been served on the Defendant, the Defendant chose not to appear on the basis of the compensation prayed for under the Revised Statement of Damages.

17. If Mr Cheung were to apply for an amendment to raise the compensation asked for, the Further Revised Statement of Damages would have to be served again on the Defendant. Mr Cheung did not ask for any amendment and, therefore, I should proceed on the basis of the Revised Statement of Damages.

Damages (Pain, Suffering and Loss of Amenities)

18. On the head of pain, suffering and loss of amenities of life, Mr. Cheung very usefully referred me to a number of authorities, including Tang Shau Tan v Well Construction Company Limited [1999] HCPI 1092/98, judgment of Woolley DJ, dated 2 December 1999; Ma Kam Yeung v Fo Hei Kin [1998] 2 HKLRD 615, the judgment of Gill DJ; the case of Tung Chong Wen v Li Ming [1998] 2 HKLRD 354, the judgment of Suffiad DJ and, lastly, Leung Lai Yin v Yeung Kei Chi, HCPI Action No. 317/99, judgment of Toh DJ, of 7 April 2000.

19. I accept the submission of Mr Cheung that this case falls below the bottom end of the serious injury category, according to the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657, and I accept this is an appropriate case where $350,000 should be awarded under this head as claimed.

Damages (Loss of Pre-trial Income)

20. As to pre-trial loss of earnings, the evidence reveals that the Defendant gave a list of earnings to the District Court ECC No. 738 of 2000 in the employee's compensation claim in respect of the same accident, and the list of earnings reveals that the Plaintiff was earning $550 per day right before the accident and he would, on average, work 26 days a month. That amounts to $14,275 per month, and I accept that the pre-trial and, indeed, the post-trial loss of earnings should be on the basis of that earning.

21. The pre-trial period from accident to trial was about 49 months. Having deducted the four days of work done by the Plaintiff during that period, the net figure for pre-trial loss would be 14,300 times 49 months minus $550 times four days, and that is $698,500.

Damages (Loss of Post-trial Income)

22. As to future loss of earnings, the multiplicand as claimed by the Plaintiff is $600 minus $475 per day. As I have said during the hearing, this is the difficult part of the Plaintiff's case because in the Revised Statement of Damages, the Plaintiff only claimed $550 per day as the basis for both pre-trial and post-trial loss of earnings.

23. For the reasons I have given, I would adopt a figure of $550 per day as the basis for assessing multiplicand and the loss in future per day will therefore be $75 and the loss per month in future will be $1,950 on the basis of 26 days of work.

24. I adopt a multiplier of 12, having considered the authorities submitted to me by Mr Cheung, and they are Tung Chong Wen v Li Ming, Wong Tong Ming v Kwok Shu Hung, HCPI88/97, Woolley DJ's judgment on 29 September 1999, and also Li Wan Choi v Choi Wan Hing HCPI 1200/98, judgment of Master de Souza, dated 14 April 2000, which was reported in [2000] 4 HKC 549. The appropriate multiplier is 12. As a result of the above, the future loss of earnings would be $1,950 times 12 times 12 which amounts to $280,800.

Damages (Loss of Earning Capacity)

25. The Plaintiff also claims damages under the head of loss of earning capacity. This is on the basis of the fact that he would be handicapped in the labour market as a result of the injury he suffered. It would be more difficult for him to get a job. Even if he had a job, he would be more liable to be laid off or sacked as a result of his handicap.

26. The Plaintiff claims a sum of $100,000 under this head on the basis that the Plaintiff will be able to return to the pre-accident job and he would be able to earn $475 per day, a bit below average, and that amounts to $12,350 per month on the basis of 26 days of work. I find the claim of $100,000 for loss of earning capacity reasonable, and so I make the award.

27. The Plaintiff also claims a 5 per cent contribution for mandatory provident fund from his employers as a loss of earnings after 1 December 2000 which is the operative date of the Mandatory Provident Fund Schemes Ordinance Cap. 485. Li Wan Choi v Choi Wan Hing [2000] 4 HKC 549 suggests that this claim is a valid claim. I therefore make the award under this head for 5 per cent contribution from his employers since 1 December 2000.

Damages (Special Damages)

28. Special damages as claimed by the Plaintiff is $2,284 for medical expenses, $950 for travelling expenses and $3,000 tonic food, totalling $6,234. I find these claims of special damages reasonable and I make the award accordingly.

Damages (Deduction)

29. I am informed, as borne out by the evidence, that in the above stated employee's compensation case, an award of $87,016 was awarded and, therefore, that sum should be deducted from the present award.

30. The Plaintiff also informed me that out of this compensation award in the ECC claim, only $24,900 was paid to him. I do not think that this partial payment in an ECC claim would affect the award in this case because the Plaintiff would be able and entitled to enforce the unpaid amount in the ECC claim in the District Court and he would be able to enforce the present judgment in the High Court.

Conclusion

31. In conclusion, the awards that I make in favour of the Plaintiff in this hearing of assessment of damages will be as follows:

(i) pain, suffering, loss of amenities of life, $350,000;

(ii) pre-trial loss of earnings, $698,500;

(iii) future loss of earnings, $280,800;

(iv) Mandatory Provident Fund, pre-trial, $16,445, the calculation being $550 times 26 times 23 months times 0.05; MPF, future loss, will be in the amount of $14,040, calculation being $280,800 times 0.05;

(v) loss of earning capacity, $100,000;

(vi) special damages, $6,234.

32. There will be interest on general damages in respect of pain, suffering and loss of amenity of life award in the amount of $8,458 from date of writ to trial, that is today, and the calculation is 350,000 times 2 per cent times 141/2 months divided by 12.

33. Interest on pre-trial losses consisting of pre-trial loss of earnings, pre-trial MPF and special damages (the total damages under these three heads is $721,179) will be at half of judgment rate, that is 5.3 per cent, for 49 months from date of accident to date of trial, that is today. The award for this interest would be $150,686, the calculation being 721,179 minus 24,900 times 5.3 per cent times 49 months divided by 12.

34. And from the total there will be deducted the ECC compensation payable by the Defendant to the Plaintiff in the amount of $87,016 and, therefore, the total damages awarded would be $1,538,147. There will also be interest on that total sum on judgment rates from today until payment.

35. Costs of the assessment be to the Plaintiff. The Plaintiff's own costs are to be taxed according to the Legal Aid Regulations with certificate of counsel.