TAM SIU KEUNG v SUM CHEE HON TRSDING AS CHEE HON LUEN NGAI METAL MANUFACTORY

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. The Plaintiff claims damages for injuries to his right hand sustained while operating a mechanical power press in the course of his part-time employment with the Defendant on 4th February 1982.

2. As no notice of intention to defend was given by the Defendant interlocutory judgment was entered on 26th January 1985 with damages to be assessed and costs to be taxed.

3. The Plaintiff gave the required notice and produced a bundle of 22 documents including medical roports and salary certificates. The Defendant, who was unpresented, was advised of his rights relating to the assessment. An application by the Defendant for an adjournment on medical grounds was refused mainly because of the history of delay in obtaining an assessment of the damages in this action.

4. The first witness called by the Plaintiff was Dr. P.W.C. Mao who confirmed the findings set out in his medical report following his examination of the Defendant on 1st August 1986. The Plaintiff, who was 17 years of age at the date of the accident, was described in Dr. Mao's report as having suffered the following injuries to his right hand when it was crushed in a moulding machine:

The fractures of the index and middle fingers were treated with a wire through the fingers. The Plaintiff was in hospital for a week for this treatment and the pins were removed after one month. Dr. Mao gave evidence that the Plaintiff's injuries had stabilised at the date of his examination and he found that the distal phalanx of the Plaintiff's right index finger could only flex to 30^° whereas the normal flex is 80°. This injury was assessed at 4% impairment. The disability for the amputation of the right ring finger was assessed at 3% and the impairment of the right middle finger due to ankylosis was also assessed at 3%. The total disability for the injuries to the Plaintiff's right hand was accordingly assessed as a 10% impairment of the whole man. The Plaintiff was also examined by Dr. R. G. M. Wedderburn on 7th April 1983 who assessed total impairment at 8%. Dr. Mao explained that he had a copy of Dr. Wedderburn's report when he examined the Plaintiff on 1st August 1986 and that he was satisfied his assessment of 10% impairment was correct on the basis that the injuries to the Plaintiff's right hand had stabilised by the date of his examination. Dr. Mao's assessment at 10% impairment of the whole man will be accepted as the basis of this award of damages.

5. The only other witness called was the Plaintiff who gave evidence that he suffered considerable pain from the injuries sustained to his right hand and during treatment for same. He stated he was right-handed and that now he was only able to hold light objects with his right hand. Although the Plaintiff is able to write with his right hand, doing so causes pain after a short time. He now uses a knife and fork to eat food as he has difficulty using chopsticks which cause pain to his right middle finger. The Plaintiff stated that since the accident he could not participate in playing basketball or doing gymnastics as well as other activities such as rowing boats. The Plaintiff is single and lives with his parents.

6. The Plaintiff gave evidence that after his discharge from hospital he attended out-patient treatment 3 times and lately twice a week for about 5 months. The medical fee for attending the out-patient clinic was $5.00 a visit and the travel expenses from his home to the Kwai Chung South Clinic and return by taxi was $10.00 a visit. These expenses were not challenged by the Defendant and the Plaintiff is awarded the special damages claimed as travel expenses at $270.00 and medical fees at $143.00. The Plaintiff's evidence was that he took special nourishment in the form of tonic food prepared by his mother for about 4 months. The Plaintiff has claimed $1,300.00 under this head of special damages which is within the ambit of the conventional award and will be allowed.

7. The Plaintiff stated that at the date of the accident he was attending school in Form 4 and worked for the Defendant on a part-time basis at piece rates of $6.00 for 100 pieces thereby earning between $300.00 and $400.00 per month. He intended to continue at school for another 18 months by which time he hoped to have completed his Form 5 education. The Plaintiff later attended evening school so as to complete his Form 4 schooling. After the accident from the end of July 1982 the Plaintiff took up light work transporting small rolls of cloth in a garment factory. The Plaintiff claimed that it had been his intention to apply to join the Police when he was 19 years of age after completing his schooling. He said he had made inquiries since his accident and been advised that it was most unlikely he would be accepted into the Police because of the permanent disability to his right hand.

8. The Plaintiff gave full details of his employment since July 1982 and stated that he was now employed as a maintenance technician for fire equipment earning $2,400.00 per month. He said he was being trained in this work for another 3 years by which time his salary would have increased to $3,200.00 per month as a fully trained maintenance technician. He confirmed having received employee's componsation of $4,299.00 as a result of the injuries to his right hand.

9. The Defendant elected not to call any witnesses or to give any other evidence on this assessment but said he has no money to pay any damages as he is unable to work because of medical reasons.

10. Mr. R. Pritchard, as Counsel for the Plaintiff, submitted that the appropriate award in this case for pain, suffering and loss of amenities was in the vicinity of $100,000.00 and he relied on several authorities to support this figure. After consideration of awards made under this head for similar injuries in recent cases and after allowing for inflation a sum of $80,000.00 will be allowed under this head. The main reason for not accepting the higher figure suggested by Counsel for the Plaintiff was that the total impairment in this case was only assessed at 10% of the whole man, whereas, in most of the other authorities considered the impairment was considerably higher.

11. Turning to the special damages for loss of earnings Mr. Pritchard put forward detailed figures of earnings on the hypothesis that the Plaintiff would have been accepted as a Police Officer but for this accident. Despite the Plaintiff's evidence that he intended to apply to join the Royal Hong Kong Police when he was 19 years of age, he was at the date of accident then only 17½ years of age and attending full-time education. There may have been various reasons besides the disability to his right hand which would have prevented the Plaintiff being accepted as a Police Officer. The possibility of the Plaintiff becoming a Police Officer is considered too remote to be accepted as the basis for comparison in assessing loss of earnings. For this reason it is considered to be more appropriate in the circumstances of this case to make a global award for loss of earning capacity rather than to attempt to calculate loss of earnings on the basis of conjecture over the Plaintiff's future employment.

12. The difficulty is in deciding the quantum of a global award for loss of earning capacity. At the date of the accident in February 1982 the Plaintiff was in part-time employment as well as attending school. After recovering from the injuries to his right hand he has been almost continuously employed in several different jobs since July 1982. Clearly he has prospects in his present employment as his monthly salary will increase from $2,400.00 at present to $3,200.00 over 3 years by which time he will be fully trained as a maintenance technician of fire equipment. However, the Plaintiff is now only 22 years of age and has a long working life ahead of him. There is no doubt that the 10% permanent disability to his right hand has disadvantaged him in the labour market throughout his working life. Furthermore, the Plaintiff prospects of employment and for advancement have been reduced by only completing his education to Form 4 level, whereas he had intended attaining Form 5 level of schooling prior to the accident.

13. Consideration of recent awards made for loss of earning capacity shows a range between $15,000.00 and $90,000.00, usually depending on the seriousness of the disability. However, in several of these cases awards and also been made for loss of earnings. After careful consideration of all the relevant factors in it is case, including the Plaintiff's long working life, the degree of disability to his preferred hand and the short period he was deprived of part-time employment while recovering from his injuries, an appropriate award would be $125,000.00 for loss of earning capacity.

14. A summary of the awards made are as follows:

15. There will be interest on the general damages (PSLA) at the rate of 2% per annum from the date of the writ to the date of this assessment. There will be no interest on the award for loss of earning capacity, but interest at 3% on the other special damages.

16. The Defendant is ordered to pay the Plaintiff's costs on a party and party basis to be taxed if not agreed. The Plaintiff's own costs are to be taxed under Legal Aid Regulations. Certificate to issue for Plaintiff's Counsel on the assessment.