NG TIN YEUNG v. LO SHUK FA trading as LOYAL DECORATION CO.

DCPI 2356/2017

[2025] HKDC 1094

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2356 OF 2017

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JUDGMENT

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Introduction

1.  This is the retrial of this action.

Procedural history

2.  This action was originally tried by Deputy District Judge Kenneth KH Lee on 26 April 2023.

3.  By the decision of the learned Judge ([2023] HKDC 1118), a trial de novo was ordered on the ground that there were justifiable concerns about the mental condition of the defendant.

4.  By the order of Her Honour Judge Phillis Loh dated 15 August 2024, leave was granted to set the action down for trial.

Absence of the defendant

5.  The defendant was absent at the retrial.

6.  Lee & Yik Lawyers (“the defendant’s solicitors”) were and remained the solicitors on record of the defendant.

7.  Prior to the trial, the defendant’s solicitors wrote to inform this court that they were unable to contact the defendant.

8.  Upon the request of Mr Leon Ho, counsel for the plaintiff, the defendant’s solicitors clarified that they did not seek to participate in the trial by making substantive submissions, adducing evidence or conducting examinations.

9.  On the day of the trial, Mr Lee Ming Tak of the defendant’s solicitors informed this court that he was still unable to contact the defendant and although the defence witness, Mr Lau Siu Fai (“Lau”) was notified of the trial dates, he had failed to turn up.

The plaintiff’s case

10.  The plaintiff was employed by the defendant as a decoration worker. Lau, who was the husband of the defendant, was the plaintiff’s supervisor.

11.  On 7 March 2015, the plaintiff was assigned by the defendant to do carpentry works at a residential unit in Tsuen Kam Centre, Tsuen Wan, New Territories, Hong Kong (“the Location”). In the course of doing so, the plaintiff was injured by a tile cutter (“the Cutter”) provided by Lau which went out of order.

12.  The plaintiff says that although he had brought his own cutter, he was however instructed and insisted by Lau to use the Cutter saying that it would help him to do his job faster as Lau was rushing to complete the renovation works.

13.  The plaintiff further says that the Cutter was dangerous and unsafe for carpentry works.

The defence

14.  The defendant denies that the plaintiff was assigned by her, her servants or agents to do any carpentry work on the day of the accident.

15.  The defendant further denies that Lau provided the Cutter to the plaintiff for him to do any work on the day of the accident.

16.  The defendant also claims contributory negligence on the part of the plaintiff.

Findings of fact

17.  The plaintiff gave evidence at the trial. His evidence was not challenged.

18.  I accept that on 7 March 2015, the plaintiff was assigned by Lau to work at the Location. Although the plaintiff had brought his own wood cutter, he was instructed by Lau to convert a tile cutter that Lau had just bought for his carpentry work because Lau said his wood cutter was too slow. Lau insisted on the plaintiff to do so because he was rushing to finish the renovation works.

19.  I accept that the plaintiff acceded to Lau’s request because he was the supervisor and also the husband of the defendant.

20.  As the plaintiff is an experienced carpenter, I accept his evidence that there should be a sawing platform for wood cutting at the work site. However, none was provided by the defendant. He had no alternative but to do the wood cutting by squatting on the floor, which was not only dangerous but also made the task more difficult and causing him fatigue more easily.

21.  The accident happened because the Cutter suddenly slipped in his hand. The plaintiff’s left little finger and ring finger were cut at proximal phalanges.

22.  Turning to the defendant’s plea of contributory negligence, it is trite that the burden of proof is on the defendant: see Ng Tim Yip Kevin v Chan Ho Kin, CACV 285/2007, 23/10/2008, unreported, at para 31. Given that no evidence was adduced by the defendant, the plea must fail.

23.  Accordingly, I find in favour of the plaintiff on liability.

Quantum

24.  The plaintiff was born on 26 February 1951. He was 64 years old at the time of the accident.

25.  After the accident, he was admitted to the Accident & Emergency Department of Yan Chai Hospital. On examination, he was found both of his left little finger and ring finger were cut at proximal phalanges.

26.  An emergency operation was performed on the same day. Intra-operatively, there was a comminuted fracture over the left little finger proximal phalanx and the arterial stump quality was poor. Replantation was not feasible. Revision amputation of the left little finger was performed. The fracture over the left ring finger was fixed with K-wire. There was a complete cut over the ring finger extensor, and it was repaired. Neurovascular bundles of the ring finger were intact. He was discharged on 9 March 2015 and was referred to physiotherapy and occupational therapy for rehabilitation.

27.  The plaintiff was jointly assessed by Dr Tio Man Kwun Peter (instructed by the plaintiff) and Dr Tsoi Chi Wah Danny (instructed by the defendant) on 15 June 2018.

28.  At the time of the examination, the plaintiff was found:

(1)  left hand numbness at stump of left litter finger;

(2)  left ring finger stiffness over PIP and DIPJ;

(3)  left ring finger pain on movement and at night;

(4)  left little finger pain on movement;

(5)  weakened handgrip;

(6)  sleep disturbance; and

(7)  independent with activities of daily living. Handles household chores occasionally. Able to take public transport.

29.  On physical examination of the plaintiff’s left hand, the doctors found:

(1)  amputation of left little finger at proximal phalange level;

(2)  ankylosis of left ring finger with mallet deformity, deformity at DIP joint with atrophic changes;

(3)  no wasting of small muscles;

(4)  no swelling of soft tissue;

(5)  tenderness over little finger stump, right finger proximal phalange and PIP joint;

(6)  inconspicuous scar over left ring finger;

(7)  2 cm scar over stump of left little finger;

(8)  left hand grip strength around 50% to 75% of that of the right hand; and

(9)  reduced sensation at stump of left little finger and left ring finger by >50%.

30.  The experts are of the following common opinion:

(1)  The fractures were solely attributable to the accident. The soft tissue injuries over those 2 fingers were also caused by the accident.

(2)  The treatment was standard and appropriate. There is no indication for further surgery.

(3)  Dr Tio opined that the plaintiff’s demonstrated signs and symptoms are compatible with post fracture status. Dr Tsoi opined that most of the plaintiff’s complaints and disabilities are genuine with the exception that there was submaximal effort in performing the hand grip assessment.

(4)  The plaintiff has reached maximal medical improvement. Prognosis is poor to fair. Stiffness, weakness, numbness and pain over those fingers were likely permanent.

(5)  Orthopaedically, the plaintiff should have difficulty to resume his pre-injury work as a carpenter with full capacity. He may consider changing jobs that are relatively sedentary in nature such as security guard or gatekeeper or by continuing to work as a carpenter with much reduction in working hours like half day’s work.

(6)  Dr Tio assessed whole person impairment at 12% whereas Dr Tsoi assessed at 9%.

(7)  Dr Tio opined that the sick leave given is reasonable and appropriate. Dr Tsoi opined that the plaintiff’s left hand injury should have reached a stage of maximal medical improvement by one year after the accident. Further sick leave might not have any therapeutic value.

Pain, suffering and loss of amenities (“PSLA”)

31.  Mr Ho referred me to the following cases which concern amputation of part of one finger of a non-dominant hand.

32.  In Ho Shu Yan v Lo Siu Ling formerly t/a Chi Wo Civil Engineering Co & Another, HCPI 1336/2000, unreported, 31/1/2002, a metal pipe shifted and cut the left ring finger of the plaintiff. 0.7 cm of the distal phalanx of the plaintiff’s left ring finger was amputated. In light of the loss of flexion of his distal interphalangeal joint of the ring finger and amputation of 1/3 of the distal section of the phalangnex, the plaintiff was assessed to have 2% whole person impairment. $120,000 was awarded on PSLA.

33.  In Thapa Chhetri Shankar v Heng Ming Metal Trading Limited, DCPI 428/2009, unreported, 27/10/2009, the plaintiff was injured by a falling forklift prong and nearly severed the tip of his left middle finger. About 1 cm of the left index finger was amputated. $150,000 was awarded on PSLA.

34.  In Zhang Hongli v Wong Kam Fuk [2018] HKDC 290, the plaintiff’s left little finger was crushed by construction waste. Part of the left little finger was amputated, exposing the distal phalanx of the left little finger. $120,000 was awarded on PSLA.

35.  In view of the comparative severity of injury of the plaintiff and taking into account of inflation, I would award a sum of $250,000 under this head.

Loss of earnings

36.  The plaintiff says that at the time of the accident, his daily wage was $800 and worked for 23 days per month.

37.  In the defendant’s answer to revised statement of damages filed on 9 July 2021 (“the Answer”), the defendant says that the plaintiff only worked 11 days a month approximately.

38.  Mr Ho, citing Yeung Chung Chun v Poon Tak Fung (transliteration) [2021] HKDC 1023, Chan Kai Fai v Kong Wang Engineering Co Ltd [2021] HKDC 519 and Lo Wai Shing v Lik Sang Engineering Co Ltd, HCPI 15/2012, unreported, 5/11/2013, submitted that the court should adopt a pragmatic approach and find that a casual worker worked 20-22 days a month in the absence of cogent documentary evidence. Mr Ho submitted that the plaintiff should have worked at least 20 days per month.

39.  Having said that, however, Mr Ho informed this court that the plaintiff is prepared to accept the figures pleaded by the defendant, ie $8,800/month ($800 x 11 days).

40.  Furthermore, Mr Ho informed this court that the plaintiff is prepared to accept the defendant’s pleaded figures in loss of earnings as pleaded in the Answer at paras 12-20 as follows:

(1)  From 7/3/2015 to 6/11/2015

$800 x 11 days x 8 months = $70,400

(2)  From 7/11/2015 to 26/2/2021

$400 x 11 days x 64 months = $281,600

(3)  Loss of MPF

$70,400 x 5% = $3,520

Total: HK$355,520

Future loss of earnings plus MPF

41.  Mr Ho informed this court that as the plaintiff is now 74 years old, there is no claim under this head.

Loss of earning capacity

42.  This head of damage arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job: see the speech of Lord Browne, LJ in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at p140B.

43.  The doctors are of the opinion that the plaintiff should have difficulty to resume his pre-injury work as a carpenter with full capacity. He may consider changing jobs that are relatively sedentary in nature such as security guard or gatekeeper or by continuing to work as a carpenter with much reduction in working hours like half day’s work.

44.  Mr Ho informed this court that the plaintiff is prepared to agree with the defendant’s proposed figure of $25,000 under this head.

45.  The award under this head is $25,000.

Special damages

46.  The plaintiff claims $5,000 on medical expenses, $3,000 on travel expenses and $8,000 on tonic food. The defendant agrees to a total sum of $8,000 under this head.

47.  Notwithstanding the differences, Mr Ho informed this court that the plaintiff is prepared to limit his claim to $8,000.

48.  The award under this head is therefore $8,000.

Summary of the award

49.  Accordingly, the plaintiff is entitled to the following damages:

PSLA	$250,000
Loss of earnings	$355,520
Loss of earning capacity	$25,000
Special damages	8,000
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Total:	$638,520

Interest

50.  Interest on PSLA shall run at 2% per annum from the date of writ to the date of judgment and thereafter at judgment rate until payment.

51.  Interest on other heads of damages shall run at half judgment rate from the date of accident to the date of judgment and thereafter at judgment rate until payment.

Costs

52.  Costs to follow the event. I make a costs order nisi that the defendant shall pay the plaintiff the costs of this action (including all costs reserved and the costs of the 1^st trial) with certificate for counsel, to be taxed if not agreed.

53.  Unless an application is made by summons for variation within 14 days from the date of this judgment, the costs order nisi shall become absolute.

54.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.