WONG SHEK MUI v. MAMMOTH HOLDINGS LTD

HCPI 1291/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1291 OF 2003

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ASSESSMENT OF DAMAGES

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Introduction

1. By the Writ of Summons filed on 27 November 2003, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligence and/or breaches of contract and/or breaches of statutory duty and/or breaches of common law duty of care of the Defendant at the Defendant’s bakery situated at Sai Kung, New Territories, Hong Kong.

2. Interlocutory judgment on liability was obtained on 24 June 2004 with damages to be assessed.

The Plaintiff’s case

3. On 17 August 2001, the Plaintiff was working at the Defendant’s bakery.  While she was mixing a dough by using an electric dough mixer, the mixer arm suddenly revolved and her right hand was severely crushed by the mixer arm and serious injuries were caused to and sustained by the Plaintiff.

4. The Plaintiff was born on 11 January 1955 and was around 46 years old at the time of the accident.  She is 51 years old at the date of assessment of damages.

5. After the accident, the Plaintiff was admitted to the Accident and Emergency Department of Tseung Kwan O Hospital.  She was found to have sustained from crushing injury and acute traumatic closed fractures at multiple sites of right hand:

(i) multiple lacerations over the dorsum of the right hand and thumb

(ii) fracture of the proximal phalanx of the right middle finer

(iii) fracture metacarpal of right middle finger

(iv) fracture of proximal phalanx of the right ring finger

(v) fracture metacarpal of right ring finger

(vi) dislocation of the metacarpal-phalangeal joint of thumb

6. Operations of fasciotomy of hand, closed reduction of dislocation of hand and finger and open reduction of fracture of phalanges of hand with internal fixation were performed on 18 August 2001.  The Plaintiff stayed at the hospital for 18 days and was discharged on 4 September 2001.

7. Thereafter, the Plaintiff attended the Department of Orthopaedics and Traumatology, Department of Integrated Rehabilitation Services (Occupational Therapy) and Department of Integrated Rehabilitation Services (Physiotherapy) of Tseung Kwan O Hospital.  The Plaintiff also consulted Dr. Lee Po Chin, an orthopaedic specialist.

8. The Plaintiff was re-admitted to Tseung Kwan O Hospital on 23 January 2002.  The Plaintiff received another operation on 25 January 2002 for the removal of the implanted plates from the carpals and metacarpals and tenolysis of hand.  She was discharged on 6 February 2002.

9. The Plaintiff was granted sick leave until 7 October 2002.  There is no dispute that 15 months be adopted for the purpose of calculating the loss during the sick leave period.

10. The Plaintiff was examined by Dr. Lee Po Chin (Plaintiff’s orthopaedic expert) and Dr. Lau Hoi Kuen (Defendant’s orthopaedic expert) on 4 October 2004.  During the examination, the Plaintiff complained of (i) on and off pain in the base of the right thumb; (ii) the pain increased when there were changes of weather; repeated use of the hand at work; (iii) there was also pain and weakness when she tired to grasp large objects; (iv) when carrying objects by the side, there was pain in the palm and other fingers; (v) difficulty in lifting heavy objects above the chest level; (vi) stiffness of the fingers with clumsiness in using chopsticks; (vii) pain at the left side of the neck, left elbow radiating to the left forearm; (viii) numbness in the left fourth and fifth fingers.

11. In their joint medical report dated 6 November 2004, both doctors opined that the symptoms in the neck, left shoulder and left hand were unlikely to be due to the injury.  Dr. Lee opined that with the residual stiffness and pain in the Plaintiff’s dominant right hand, she may have difficulty in handling large heavy objects.  Dr. Lau was of the view that the Plaintiff should be able to return to her pre-injury job as a baker although with some reduction in efficiency.

12. On 19 April 2005, the Plaintiff was examined by Dr. Singer, her psychiatry specialist.  During the examination, she complained of:

(i) depressive mood

(ii) irritability

(iii) loss of interest in activities

(iv) shallow sleep

(v) agitation

(vi) retardation

(vii) feelings of worthlessness

(viii) impaired concentration

13. Dr. Singer was of the view that the Plaintiff suffered from adjustment disorder with depressed mood.

14. Dr. Chung See Yuen, the expert for the Defendant examined the Plaintiff on 30 June 2005.  In his psychiatric report dated 7 July 2005, Dr. Chung was also of the view that the Plaintiff suffered from adjustment disorder with depressed mood. Such disorder was caused by the accident (though not mainly), the resultant physical problems and her worries about her working capacity.

15. In his medical report dated 7 August 2006, Dr. David Lau of St. Paul’s Hospital stated that the Plaintiff suffered from relapse of generalized anxiety disorder.

16. The Plaintiff was the only witness for her case.  She confirmed the contents of her witness statements.  After sick leave, she returned to worked for the Defendant. By reason of her injury, she did more work with her left hand although she was right handed.  She could not fully fold up her right hand into a full grip.  She could not lift heavy things or perform her previous duties independently.  She was unable lift up flour (50lb per bag) and to pour the same into the dough machine which was around 3ft from the ground level.  She was unable to lift up trays (may weigh up to 7 to 8kg with loads) to the top level of the rack which was around 5ft from the ground level.  Her colleagues provided voluntary assistance to the Plaintiff whenever necessary.

17. She kept on working for the Defendant at Sai Kung until May 2006.  In June, the Defendant moved its workshop to Wong Chuk Hang.  The Plaintiff worked at the new place for a couple of days and resigned.  She told the court that it was because her physical condition could not coup with the work.  Thereafter she worked as a causal domestic helper at $50/hour.  On average, she worked 3 days per week at 3 hours each. She earned an average of $1,800 per month.

18. During cross examination, a surveillance tape was played.  The footages shown that plastic bag was hooked on the fingers of the Plaintiff’s right hand.  The fingers did not fold up into a full grip.

19. I asked the Plaintiff to explain clearly why she resigned.  She told the court that there were lots of things that she cannot get used to.  She complained that her boss, Miss Hazel Cheung, did not give her clear instructions to follow.  Whenever the Plaintiff would like to have clarification or guidance, Ms. Cheung seemed not like the Plaintiff asking too much and not satisfying with the Plaintiff’s performance.  Under further re-examination, the Plaintiff said that there had been unhappy exchanges between her and Ms. Cheung on work related matters at Sai Kung and also at Wong Chuk Hang.  The Plaintiff felt that the criticisms against her were not justified.

The Defendant’s case

20. There are two witnesses: Ms. Ryan and Ms. Cheung.

21. Ms. Ryan, the former owner of the Defendant, told the court that in order to accommodate the Plaintiff, she was asked to cook stews and pie fillings, etc which did not require that much heavy lifting after the Plaintiff returned to work.  She accepted that throughout the employment since 1988, year end bonus was paid to the Plaintiff except in 2003 when the financial position of the Defendant was not sound. Ms. Cheung told the court that she knew nothing about the accident when she acquired the Defendant. She opined that the Plaintiff did her job properly with consistent quality. She could not recall any verbal exchanges with the Plaintiff.

Pain, Suffering and Loss of Amenities

22. A surveillance video record taken in late November and early December 2005 was shown in court.  Certain footages support the Plaintiff’s claim that she could not fold her fingers into a full grip.

23. Mr. Lim, Counsel for the Plaintiff, submitted that the court should award a sum of $600,000 under this head to cover orthopaedic injury as well as psychiatric injury: since depression commonly aggravated the perception of pain which could have contributed to the pain in the left shoulder, elbow joint and neck.  In any event, it should be no less than $550,000.  Counsel relied on the following authorities:

(1) Leung Lai Yin v Yeung Kai Chi (HCPI 317 of 1999), Deputy Judge To, 7 April 2000).  Middle finger amputated.  Suffered near amputation of left index and ring fingers.  Undergone 5 operations.  PSLA: $400,000.

(2) Chan Kai Wing v Leung Fat Kee Engineering Factory Co Ltd (HCPI 1163 of 1999, Master Lung, 15 November 2000).  Deep traverse cut at the front and back of the dominant right hand.  Decreased movement of the ring and little fingers of the right hand; fractures of the right 3rd and 4th metacarpal bones; dislocation of the 5th metacarpal phalangeal joint; crushed 2nd, 3rd and 4th web interosie; crushed middle and ring fingers and total loss of hypothenar muscle.  PSLA: $450,000.

(3) Chan Yu Chau v Fong On Construction & Engineering Co Ltd (HCPI 753 of 2000, Deputy Judge Longley, 4 June 2002).  Amputation of right thumb, index finger and middle finger.  PSLA: $550,000.

24. The Defendant argued that a sum not exceeding $400,000 be awarded.

25. The court had, apart from considering the authorities referred to by the parties, also considered

(1) Tse Lai Yin v Incorporated Owners of Albert House (No. 5), (HCPI 828 of 1997, Suffiad J, 17 September 2001).  The Plaintiff sustained permanent orthopaedic, cosmetic, cognitive and psychiatric disabilities.  Her right dominant hand was crushed in the accident.  Amputation of the distal joint of the ring finger.  Partial loss of grip and a reduction in her ability to lift heavy objects.  Multiple contusions of the chest wall, the back and shoulder areas experiencing aches.  Two laceration to the scalp at the right and left pauetal region leaving 2 scars behind the hairline of 7 cm and 4 cm respectively.  The Plaintiff suffered post-concessional syndrome and post-traumatic stress disorder.  PSLA award at $430,000.

(2) Lo Chi Bun v Leung Wah Kwan (HCPI 1984 of 1997, Master Cannon, 16 March 1998).  Deep cut over the dorum of the right (dominant) hand resulting in disruption of the MCP joint of the right finger, a fracture of the proximal phaeanx of the ring and little fingers, and a complete cut of the extensor tendous to the middle, ring and little fingers.  In total, the Plaintiff received 5 to 6 operations.  Middle and little fingers could not be fully extended.  Very poor grip.  PSLA award at $480,000.

26. In all the circumstances of this case and in the light of the authorities aforementioned, the reasonable and fair award under this head is $500,000.

Loss of earnings during sick leave

27. The Plaintiff claimed $11,557 x 15 months = $173,355 under this head.  The Defendant disputed the average earnings of the Plaintiff contending it was $10,797.25.  In the light of the evidence of Ms. Ryan, there was such a difference on monthly earnings between the parties because the Defendant did not take into account of the year end  payment.  Ms. Ryan accepted that the Plaintiff was first employed by her parents back in 1988.  She did not negotiate the terms of employment with the Plaintiff though she thought that double pay was a matter of discretion.

28. While there was no clear evidence from the Plaintiff as to the terms of her employment concerning double pay, her assertions in the pleadings and witness statements formed the basis of her claim.  Given that Ms. Ryan has no personal knowledge about this term, she is not in the position to challenge the Plaintiff’s case in this regard.  On a balance, I found that the monthly earnings of the Plaintiff was $11,557 (basic salary + allowances + overtime) and her loss during sick leave is $173,355.

Loss of earning after sick leave

(a)  November 2002 to June 2006 (43 months)

29. The Plaintiff worked for the Defendant again after the sick leave and up to June 2006 earning an average of $9,600 per month.  For this head, the Plaintiff claimed ($11,557 - $9,600) x 43 = $84,151.

30. The Plaintiff earned less during this period because (i) overtime work was reduced as there was an overall increase in efficiency of the staff and drop of business; (ii) the extra payment for disposing of the rubbish was cut (because this job was taken up by another worker after the accident) thereby representing a reduction of $225/month; and (iii) the fixed traveling allowance at $416 was changed to reimbursement of traveling expenses actually incurred: an average a reduction of $91/month.

31. Mr. Lim submitted that but for the accident, the Defendant would not have cut/reduced the allowances.  In particular, for the extra allowance of $225/month for disposing of the rubbish, it was Ms. Ryan’s evidence that she “may or may not have cut this extra allowance if there was no accident.”  Further, if the accident did not happen, it was open to the Plaintiff, like her other 2 colleagues, to seek employment elsewhere.

32. The first issue here is whether the Plaintiff suffered a loss in income due to her disability.  In terms of direct causal linkage, and apart from the allowance for disposing of rubbish, the answer must be negative in the light of the evidence of Ms. Ryan as stated hereinabove.

33. The court however has to consider whether the Plaintiff would be able to find another job but for the accident.  There is no dispute that the Plaintiff required the assistance of her colleagues from time to time in order to carry out her duties.  Thus, I am of the view that it is very unlikely that the Plaintiff could find another job and earn such salary like one with full ability.

34. The next question is: how much could the Plaintiff earn but for her disability? There is evidence from the Plaintiff that one of her ex-colleagues found a job in another bakery at Sai Kung in the vicinity of the Defendant’s shop.  That ex-colleague is earning $10,000 (basic salary) plus allowances.  Nevertheless, no exact figure was provided.

35. The Plaintiff had obtained job vacancy information from the Labour Department. There was an offer at Wan Chai district, with employment terms similar to that of the Plaintiff, at $11,500/month.  In March 2006, the Defendant was prepared to hire a new baker with 5 year experience at $15,000/month.

36. On the other hand, the Defendant also provided information obtained from the website of the Labour Department in January 2006.  There was an offer at Sai Kung at $9,000 to $9,500 per month.  There was another offer at Lamma Island at $10,000 per month.  Both offers required an education level of Secondary 5.

37. I am of the view that the only vacancy that may be helpful to the Plaintiff is HK2006-0005483.  This vacancy was available in March 2006 and the salary offered was $11,500. The job was however at Wanchai district. The Defendant suggested that if the court took this job to assess the loss suffered by the Plaintiff, tax liability and traveling expenses should be taken into account thereby giving a net income of $10,800 per month.  I accept that it is the right approach. The other vacancies were either far from Sai Kung or with terms not fully comparable to that of the Plaintiff.  The offer made by the Defendant in March 2006 required a Form 5 graduate and with fluent English responsible for production, staff training and management.

38. I am of the view that the Plaintiff could earn $10,800 but for the accident. However, I can only count this figure as from March 2006 onwards as there is no evidence prior to this date that I can rely on. Yet I am also of the view that she is entitled to the claim of the allowance for disposing of the rubbish. Ms. Ryan’s evidence in this regard was that she may or may not allow the plaintiff to go on with this duty. It is my ruling that it is more likely than not there would be no change but for the accident.

39. Therefore for the period from November 2002 to February 2006 (39 months) the plaintiff is entitled to $225 x 39 = $8,775. For the period from March 2006 to June 2006, the Plaintiff is entitled to ($10,800 - $9,600) x 4 = $4,800. The total award under this head is $8,775 + $4,800 = $13,575.

(b)  July 2006 to January 2007 (7 months)

40. The Plaintiff left the employment of the Defendant in June 2006.  Mr. Lim submitted that while the Plaintiff is required to mitigate her loss, the burden is on the Defendant to show such failure.  The Plaintiff is only required to act reasonably.  Whether the Plaintiff has done so is a matter of fact not law.

41. In this case, although the Plaintiff returned to her previous job after recovery, she required the assistance of her colleagues from time to time.  I agree with Mr. Lim that if the Defendant had not taken her back, she could not have been able to get a job as a baker elsewhere given her disability.  Further she had to put extra strain on her left upper limb resulting in painful symptoms.  It is my ruling that the disability suffered by the Plaintiff rendered her unfit to work as a baker.

42. The relationship between the Plaintiff and the new management was not good.  It deteriorated sharply after the opening of the workshop at Wong Chuk Hang.  The Plaintiff was unable to cope with the changes.  This, I believe, is another factor that lead to the Plaintiff’s resignation.  No one will expect an unhappy employee to stay with the employment.  Leaving the Defendant is nothing but natural.  I do not find that the Plaintiff acted unreasonably.

43. The Plaintiff is entitled to ($10,800 - $1,800) x 7 = $63,000 under this head.

(c)  Post Assessment

44. The Plaintiff is now 51 years old.  Ms. Ryan said that the Defendant did not impose any retirement age.  Mr. Lim submitted that the Plaintiff can easily command a salary of $13,250 per month.  He suggested a multiplier of at least 10.

45. The primary stance of the Defendant is that the Plaintiff acted unreasonably and thus no award should be made.  As an alternative, the loss of future earnings should be around $145,000.  The basis for this figure is set out at page 16 of the Amended Answers to the Amended Revised Statement of Damages dated 21 November 2006.  It appears that the Defendant adopted a multiplier of 13.

46. Having considered the job nature and that there is no compulsory retirement age, I accept that a multiplier of 10 is reasonable.

47. I do not accept that the Plaintiff can commend a monthly salary of $13,500.  The job vacancy information obtained from the Labour Department in March 2006 shown that all offers above $12,000 required at least Form 3 level and a little knowledge of English.  At the most, the Plaintiff can earn $10,800 as stated hereinabove.

48. The Plaintiff is therefore entitled to ($10,800 - $4,000) x 12 x 10 = $816,000 since the Plaintiff should be able to earn  $4,000 per month despite her disability.

Loss of Earning Capacity

49. The Plaintiff asked for an award of $80,000 having accepted that she could earn $4,000 per month.  I accept that the Plaintiff do suffer a disadvantage in the labour market.  But having regard to the degree and seriousness of her disability, I award $40,000 under this head.

Impaired Housekeeping Ability

50. The Plaintiff alleged that while she could still carry out lighter household chores, it was not without difficulties and thus asked for a global award of $200,000.

51. The Plaintiff can clearly worked as a domestic helper.  She is earning $50 per hour which is the market rate.  I do not find that the Plaintiff has proved this claim and I make no award for this item.

Loss of Congenial Employment

52. Mr. Lim referred me to Lee Kit Ha v KMB (HCPI 539/2000,  Deputy Judge Carlson, 7 October 2002) and Wong Sau Lai v Cathay Pacific Airways Ltd (HCPI 111/2002, A. Cheung J, 24 October 2003).

53. “This is a separate head of damage and an award may be made when the Plaintiff has had to give up a job which he enjoyed and which gave him satisfaction and/or status.” (Chan Yiu Ping v Mok Yuk Kwong and others, HCPI 92/1998, Suffiad J, 3 July 2000).  Apply this to the present case, I have no difficulty to find that the Plaintiff who started off to work as a cleaner and became a skilled baker satisfied the test.  I make an award of $65,000 under this head.

Loss of earnings by husband

54. It is now agreed at $4,042.50.

Special Damages

55. It is also agreed at $10,014.60.

Future Medical  Treatments

(a) Orthopaedic Treatment

56. Dr. Lee opined that fusion operation for residual subluxation of the 1st CMCJ costed between $50,000 to $60,000.  The Plaintiff claimed $15,000 being the lost of rehabilitation and another sum of $41,000 odd being loss of earnings and MPF during 3 months recuperation after operation.

57. The Defendant submitted that the operation cost should be $35,000 in private sector and only $1,220 in the public sector.

58. I find that it is not unreasonable for the Plaintiff to receive the operation in the private sector.  I make a lump sum award of $60,000.

(b) Psychiatric Treatment

59. Relying on the opinion of Dr. Singer, the Plaintiff claimed for 13 sessions at $2,500 each and medication for 24 weeks at $200 per week totaling $37,300.00.

60. The Defendant accepted that psychological treatment is useful.  However, they only accepted 5 sessions costing about $1,200 to $2,500 per session when conducted in private sector.  The Defendant submitted that the Plaintiff could be adequately treated in the public sector.

61. Once again, I do not find that it is unreasonable for the Plaintiff to receive treatment in the private sector.  I make a lump sum award of $25,000 under this head.

Summary

62. The following is a summary of award I make.

(1)	PSLA	500,000
(2)	Pre-assessment loss of earnings
	(a) during sick leave	173,355
	(b) November 2002 – June 2006 (43 months)	13,575
	(c) July 2006 – January 2007 (7 months)	63,000
(3)	Pre-assessment loss of MPF ($173,355 + $13,575 + $63,000) x 5%	12,496.50
(4)	Post-assessment loss of earning	816,000
(5)	Post-assessment loss of MPF	40,800
(6)	Loss of Earning Capacity	40,000
(7)	Loss of Congenial Employment	65,000
(8)	Loss of Earnings by Husband	4,042.50
(9)	Special Damages	10,014.60
(10)	Future Medical Treatment
	(a) Orthopaedic	60,000
	(b) Psychiatric	25,000
		1,823,283.60 =========

63. Credit must be given to the ECC award received at the sum of $428,000.  I note from the papers that during the sick leave, the Plaintiff did receive monthly payments from the Defendant.  As such payments were not further raised in this assessment exercise, I believe that they had been taken into account under the payment of the ECC award.  If otherwise, appropriate credit must also be given to these payments.

Interest

64. Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

65. I make an order nisi, to become absolute 14 days from the date of handing down of this judgment, that the Defendant do pay the Plaintiff costs to be taxed if not agreed.  Certificate to Counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.