LO SIU WA v. NUOVO DESIGN LTD

HCPI 84/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 84 OF 2010

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ASSESSMENT OF DAMAGES

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I.  BACKGROUND

1.  The plaintiff was formerly employed by the defendant as a carpenter.  On 19 March 2007, he suffered an accident in the course of his employment whilst carrying out carpentry work at shop premises in Tsuen Wan, New Territories (“Site”) and suffered personal injuries (“Accident”).

2.  On 1 March 2010, the plaintiff commenced the present proceedings against the defendant for damages for personal injuries, loss and other damages suffered as a result of the Accident.  He claimed that the Accident was caused by negligence, breach of common duty of care, breach of statutory duty and/or breach of employment contract on the part of the defendant, their servants and/or agents.

3.  The defendant did not file any notice of intention to defend, and interlocutory judgment on liability for damages to be assessed was entered on 24 September 2010 (“Judgment”).  On 16 February 2011, the defendant was wound up by the court.  On 4 March 2011, the plaintiff was granted leave inter alia to proceed with the present proceedings against the defendant.  But the joint and several provisional liquidators of the defendant (“Liquidators”) did not participate, appear or take any step in the course of the present proceedings, and they also did not appear at the hearing of the assessment of damages before me 30 March 2012 (“Hearing”).

4.  From various affirmations of service filed with the court, I am satisfied that (a) the defendant/Liquidators had been notified of the progress of the present proceedings, (b) the previous court orders in this action, the plaintiff’s witness statement dated 15 December 2010 (“Statement”), the orthopaedic expert report of Dr William Wing-Hung Yuen (“Dr Yuen”) dated 10 December 2009 (“Yuen Report”), the psychiatric expert report of Dr Chen Yuk Lun Ronald (“Dr Chen”) dated 3 June 2011 (“Chen Report”), the treatment medical reports and documents discovered and disclosed by the plaintiff, the hearing bundle for the assessment of damages, and the written opening submissions of Ms Lau, counsel for the plaintiff, had been served on the defendant/Liquidators, and (c) the Liquidators had been notified of the Hearing.  In such circumstances, notwithstanding the absence of the Liquidators at the Hearing, I allowed the assessment of damages to proceed.

5.  At the Hearing, the plaintiff gave evidence and adopted the contents of the Statement as part of his evidence-in-chief. I find the plaintiff to be a credible witness, and I accept his evidence without hesitation.

6.  Pursuant to my order dated 10 November 2011, the Yuen Report (made pursuant to Dr Yuen’s interview and examination of the plaintiff on 7 September 2010) and the Chen Report (made pursuant to Dr Chen’s interview and examination of the plaintiff on 5 May 2011) were adduced without oral evidence at the Hearing.

II.  ACCIDENT

7.  At about 10am on 19 March 2007 (ie on the 5^th day the plaintiff started to work for the defendant), the plaintiff was working at the Site.  While he was pushing a piece of wooden board measuring 8ft and 18in through the revolving blade of an electric circular saw with his right hand, his right 2^nd, 3^rd, 4^th and 5^th fingers were cut by the revolving saw blade.

8.  According to the Yuen Report, the plaintiff claimed there were cuts to the dorsum of such fingers, and the right 2^nd and 3^rd fingers were almost severed with only a strip of the skin on the volar side remaining attached.  I am not persuaded that there was any amputation of the 2^nd and 3^rd fingers.  This was not mentioned in the Yuen Report, which explained that the 2^nd and 3^rd fingers were shortened due to resection for the comminuted intra-articular fractures in order to achieve fusion (see paragraph 29 below).

9.  According to the Chen Report, the plaintiff claimed there was bleeding over his right hand and he later became unconscious only to find himself in a hospital ward when he regained consciousness.  However, as explained in paragraph 10 below, I am not persuaded that the plaintiff ever lost consciousness.

III.  INJURIES AND TREATMENT

10.  After the Accident, the plaintiff’s fellow workers took him to the accident and emergency department (“AED”) of Yan Chai Hospital (“YCH”) (which happened to be just across the road) for medical treatment. At YCH’s AED, he was found to have cut wounds at back of his right 2^nd, 3^rd, 4^th and 5^th fingers.  X-ray of the right hand showed fractured 2^nd, 3^rd and 5^th fingers. He was admitted to YCH’s department of orthopaedics and traumatology (“DOT”) for further management.  There was no mention in the medical report by Dr Kwok Wing Hong Willis of YCH’s AED dated 27 July 2007 of any loss of consciousness.

11.  At YCH’s DOT, physical examination showed multiple open wounds of the right hand over the ulnar 4 digits.  The circulation of fingers was good. X-rays confirmed the diagnosis of comminuted intra-fracture of the right 2^nd, 3^rd and 5^th fingers.  Open reduction, debridement, tendon repair, internal fixation and fusion of the proximal interphalangeal joints (“PIPJ”) of the right 2^nd and 3^rd fingers were done on 20 March 2007 under general anaesthesia.  The plaintiff was discharged home on 23 March 2007.  He had bulk dressing but no plaster of Paris cast.  The plaintiff saw wires sticking out from his right 2^nd, 3^rd and 5^th fingers.

12.  The plaintiff returned to YCH’s specialist outpatient clinic (“SOPD”) for change of dressing and removal of stitches.  The wounds healed well.  Thereafter, he was regularly followed up at YCH’s SOPD.

13.  On 23 April 2007, YCH’s DOT referred the plaintiff for physiotherapy.  The diagnosis was right hand multiple fracture with arthrodesis of PIPJ of the right 2^nd and 3^rd fingers.  The plaintiff returned to YCH’s SOPD for follow up.

14.  On 2 May 2007, the plaintiff was again admitted to YCH’s DOT for removal of the K-wires under local anaesthesia.

15.  At the initial assessment on 9 May 2007 by YCH’s physiotherapy department, the plaintiff complained of pain and stiffness over his right hand. Swelling was found over the right hand, and active range of movement of the right fingers was limited.  Physiotherapy treatment including magnetopulse, ice therapy, ultrasound, manual therapy, wax, desensitisation exercises, mobilisation exercises and strengthening exercises were given.  The plaintiff attended physiotherapy for 8 months and his condition improved.  He was discharged on 24 December 2007.  Upon discharge, the active range of movement of his right hand was satisfactory, and the power grip of the right and left hands were 28Kg/f and 50kg/f respectively.

16.  On 14 May 2007, the plaintiff was referred for occupational therapy.  Between 25 May and 5 December 2007, he attended YCH’s occupational therapy department (“OTD”) for mobilisation and strengthening.  At the last assessment on 15 December 2007, the plaintiff’s right power grip was 27.3Kg/f, key pinch was 7.7Kg/f and 3-jaw pinch was 5.4Kg/f.  The plaintiff defaulted training by YCH’s OTD for 3 times consecutively without prior notice during December 2007 and January 2008, so his record was closed accordingly.

17.  There was pain in the plaintiff’s right 5^th finger from the remnant of nail left after the initial surgery.  The doctor decided to remove it.  It was a minor procedure done under local anaesthesia.  The plaintiff was admitted to YCH for such purpose on 17 December 2007 and was discharged on 19 December 2007.

18.  Physiotherapy and occupational therapy were stopped towards the end of 2007.  The plaintiff was granted sick leave from 19 March 2007 to 31 May 2008, and was referred for assessment by the medical assessment board.

19.  Although the plaintiff was put on active rehabilitation and the fracture healed, the prognosis of his right hand function was dismal.  There was stiffness of the finger joints, which imposed restrictions on what the plaintiff could do at home even for activities of daily living (“ADL”).  He plaintiff was last seen at the SOPD on 31 July 2009 when he was told his condition would likely be permanent.  The plaintiff told Dr Chen that there was no marked improvement of his right hand injury over the past few years despite various treatments.

20.  The plaintiff informed Dr Chen that during hospitalisation he was told that his right fingers could not move and would later develop atrophy.  He became distressed and depressed.  He had fleeting suicidal thought with no actual act. He did not want to see anybody except his wife.  After his discharge from hospital, he continued to be depressed.  He claimed to have the following symptoms and rated the severity of his depression as 7-8 out of 10:

(a)  he could not think clearly;

(b)  his sleep and appetite were poor;

(c)  he had lack of motivation and interest;

(d)  he was tired with low energy;

(e)  he had low frustration tolerance and frequent conflict with his wife;

(f)   he would display temper to his children for trivial matters;

(g)  he had poor concentration and memory;

(h)  he was gloomy and preoccupied with negative thoughts;

(i)    he had suicidal ideations from time to time, especially after having conflict with others;

(j)    he sometimes looked at the windows and sea, and had an impulse to jump down but without actual suicidal act so far;

(k)  he considered himself useless because of his injury;

(l)    he felt guilty about his injury because he could not cope with stress and work any more.

21.  According to the medical report by Dr Chan Fong Yeung (“Dr Chan”) of West Kowloon Psychiatric Centre (“WKPC”) dated 18 November 2010, the plaintiff was worried about his future as he was right hand dominant.  He expressed his fear and depression as well as idea of suicide to the doctor at follow up, and was referred to WKPC in mid-2007 for counselling and treatment.

22.  The plaintiff was first seen by the psychiatrist at WKPC on 16 October 2008.  He complained of depressed mood after he suffered injuries as a result of the Accident.  He had adhedonia, loss of interest, poor sleep, early morning awakening, and decreased appetite and energy yet weight gain due to decrease in activity level.  He blamed himself for his carelessness.  He threw temper onto his wife and daughters.  He was angry with the defendant and felt cheated since the defendant claimed he was self-employed and not eligible for paid sick leave.  He had suicidal idea after the operation in March 2007.  The treating psychiatrist’s diagnosis was depressive episode, moderate to severe degree.

23.  The plaintiff had liver impairment, so he was referred to medical clinic for investigation and his drugs were revised with monitoring of liver function test.  He was diagnosed to suffer from fatty liver, and was subsequently referred to dietitian.  Despite psychiatric treatment, the plaintiff remained depressed and irritable.  He discharged his anger mainly towards family members, and was dull, passive and listless when he attended follow up.  Since January 2010, the plaintiff had combined pharmacotherapy and psychotherapy, and he showed gradual improvement.

24.  As explained below, the plaintiff could not return to his pre-Accident work and found employment as a delivery worker in April 2010, but he still had sleep problems and mild depression.  He was upset that the defendant was wound up and he could not get any compensation.  He was put on antidepressants, anxiolytics, hypnotics and low dose antipsychotics, and showed partial improvement with combined pharmacotherapy and psychotherapy.  The plaintiff hoped to be able to get reasonable compensation.

25.  According to Dr Chan’s report dated 18 November 2010, prognosis was fair.  But according to the Chen Report, progress of the plaintiff’s depressive disorder was slow.  The plaintiff told Dr Chen he felt only slightly better in mood after ventilation in psychotherapy sessions.  He slept better after taking hypnotics, and had less negative thoughts after having medications.  However, there was no significant improvement in mood.  Over the past 3-4 years after the Accident, the plaintiff still rated the severity of his depression as 7-8 out of 10 and at times it would be up to the maximum 10.

26.  On 12 March 2010, the Plaintiff was referred to and assessed by the clinical psychologist of Kwai Chung Hospital.  The diagnosis was moderate to severe depression.  He reportedly started to suffer from low mood ever since he was injured as a result of the Accident.  He has been followed up for 2 sessions in the following 9 months.  The plaintiff initially complained of low mood, sleep disturbances, lack of volition, easy irritability, lapses of memory and attention, strong sense of guilt and worthlessness, but denied any suicidal idea.  When the plaintiff was seen in September 2010, his sleep latency was slightly improved.  He could manage to have 5-6 hours of sleep but intermittent awakenings were still reported.  As explained below, he took up work as a delivery worker in April 2010.  He claimed to be able to marginally cope with the physical demands of the job.  His mood remained low and not much improvement in his cognitive aspects was reported.  He still had a fast temper, but denied any suicidal idea so far.  The treatment clinical psychologist recommended the plaintiff to continue with psychotherapy to improve his emotional control.

IV.  YUEN REPORT

27.  The plaintiff complained to Dr Yuen about (a) stiffness of his right hand, (b) numbness in his right hand with pin-prick feeling at times, (c) pain in his right 5^th finger terminal phalanx, and (d) poor sleep pattern.  The stiffness meant he could not make a power grip with his right hand.  He could not use power drill/nail-gun with his right hand.  Although he could manage most ADL without help, he had to make changes, eg learning to use his left hand to hold a toothbrush for brushing teeth.  Stiffness in his right hand caused weakness in handgrip, so he could not rinse dry a towel.  He could no longer play billiard which he enjoyed and played once a week before the Accident.  He was able to pull out his wallet with his right hand.

28.  On examination, the plaintiff had no problem with his shoulders, elbows and wrists which were pain-free and had full range of movement.  His problem was only in his right hand.  There were a number of scars over the dorsum of his right 2^nd, 3^rd, 4^th and 5^th fingers, which were combination scars caused by the Accident and surgery.  The scars started from PIPJ in the right 2^nd finger and ended up distally over the distal interphalangeal joint (“DIPJ”) in the right 5^th finger.  There was residual stiffness in the right 2^nd, 3^rd and 4^th fingers which was most marked in the 2^nd and 3^rd fingers due to surgical fusion with the 4^th finger relatively spared, mild residual stiffness in the right 5^th finger, and residual numbness in the dorsum of the right 2^nd finger (tip of finger to scars over PIPJ) and 3^rd finger (tip of finger to scars over DIPJ).  The right 2^nd, 3^rd and 5^th fingers were shortened by 1cm, 1.5cm and 2mm respectively.  Only about 1/10 of the nail plate of the right 5^th finger remained.  The right thumb was not affected.

29.  X-rays confirmed solid fusion of the right 2^nd and 3^rd fingers at PIPJ with parts of the middle and proximal phalanges resected (comminuted intra-articular fracture) to achieve fusion.  This explained why the right 2^nd and 3^rd fingers were shortened.  The right 5^th finger middle phalanx was shortened and deformed possibly due to injury, which explained why the right 5^th finger was slightly shortened.  There were post-traumatic degenerative changes in DIPJ of the right 2^nd, 3^rd and 5^th fingers.

30.  Dr Yuen opined that the plaintiff suffered multiple lacerations in the dorsum of his right 2^nd, 3^rd, 4^th and 5^th fingers with intra-articular fractures of his 2^nd and 3^rd fingers around PIPJ, fracture of his 5^th finger middle phalanx, and cut to the extensor tendons of his right 2^nd, 3^rd and 5^th fingers.  As a result of the Accident, the plaintiff suffered the following disabilities:

(a)  right 2^nd and 3^rd fingers: comminuted intra-articular fracture in PIPJ requiring fusion (arthrodesis), cut extensor tendon and cut dorsal branches of digital nerves resulting in shortening of the fingers, stiffness of DIPJ, a fused PIPJ and residue numbness in the fingers distal to laceration;

(b)  right 4^th finger: mild residual stiffness in DIPJ;

(c)  right 5^th finger: fracture in middle phalanx fixed with K wires, cut extensor tendon and possibly damage nail plate resulting in residual shortening of the finger, residual stiffness of DIPJ and damage nail plate requiring a second operation in December 2007.

31.  Dr Yuen further opined that due to residual stiffness of the right hand fingers the plaintiff had 31% upper extremity impairment which equated to 19% whole person impairment.  Separate assessment for weakness in handgrip was not required because it was explained by the stiffness in his right hand.  But the plaintiff had structural impairments due to shortening and numbness of his right 2^nd and 3^rd fingers which would justify an additional award of 1%.  Thus, the plaintiff’s total whole person impairment was 20%.

32.  Dr Yuen opined that the duration of sick leave granted by YCH was reasonable and appropriate.  Since the plaintiff had PIPJ fusion (arthrodesis) done, the stiffness would be permanent.  No further orthopaedic treatment would be necessary.

V.  CHEN REPORT

33.  According to the plaintiff, after the Accident the plaintiff could maintain good self-hygiene.  At times, he needed help from his wife to clean his back.  He could do simple house work.  He had no hobby or any social activity.  He avoided meeting people and did not want to communicate with others because of his depression.  For leisure he would spend time watching television programmes and reading newspapers at home.  But he could not take care of or teach his children because he had low frustration tolerance.  He would display anger easily, and had frequent conflict with his wife.  His wife complained about his distant relationship with her.  He seldom accompanied his wife to go out for social activities, and seldom chatted with his wife.  The wife mentioned about divorce on several occasions, and ran away from home several times due to her frustration in the marriage.  The plaintiff had low interest in sex, but he just wanted to please his wife to have sex with her.

34.  When the plaintiff was examined by Dr Chen, he had psychomotor retardation and appeared dejected.  He maintained basic social manners and was willing to answer questions, but his speech was slow and monotonous.  The contents of his speech were coherent and clear, but he gave brief answers to most of the questions.  He was depressed, gloomy, felt guilty and found himself useless, but he denied any active suicidal ideas.  No psychotic symptoms were noted.

35.  Dr Chen noted that the plaintiff appeared to have average intelligence.  He was conscious and alert.  He showed adequate attention and concentration.  He had no problem in understanding what he was told and asked.  Formal cognitive tests were not performed during the interview.  Dr Chen opined that the plaintiff’s complaints caused by the Accident were compatible with Major Depressive Disorder, Single Episode, Moderate Severity under DSM-IV.  He fulfilled all the criteria for a major depressive episode except for significant change in body weight, but the intensity of his depression was considered to be moderate.

36.  The plaintiff had no history of mental illness before the Accident.  He developed significant mood symptoms only after the Accident which was considered to be the precipitating cause.  The perpetuating causes could be attributed to the permanent physical injury to his right hand, stress from the litigation process, and marital problem occurring after the Accident.  As regards prognosis, the plaintiff only had partial response to treatment for the past 3 years.  When he was assessed by Dr Chen, the plaintiff still had significant depressive symptoms with functional impairment.  Moreover, he had persistent physical injury/handicap which all along was very distressing to him.  Dr Chen opined that the plaintiff’s prognosis was poor, but if the present litigation would be concluded, he would be less stressful and his mood was expected to have further improvement.  Dr Chen was of the view that the plaintiff’s whole person impairment due to his psychiatric condition was 15%, and the sick leave awarded to the plaintiff so far was reasonable and appropriate in view of his physical and mental disability.

VI.  PAIN, SUFFERING AND LOSS OF AMENITIES

37.  The plaintiff was born in Mainland China. At the time of the Accident, he was 31 years old. He has 1 elder brother and 2 elder sisters.  His father died of cancer in 1997.  His mother is in her seventies but healthy.  All along his relationship with his family members was satisfactory, and there was no childhood traumatic experience.

38.  The plaintiff received formal education in Mainland China up to Form 5 (vocational secondary school) with average academic performance.  Thereafter he worked as bank or commune cooperation society teller for 3-4 years handling cashier and accounting work.  The plaintiff came to settle in Hong Kong in 1997 and worked as a carpenter doing decoration work.

39.  The plaintiff married in 2000.  He and his wife have a son aged 10 years with Down’s syndrome since birth and 2 daughters aged 6 years and 2 years respectively.  He used to live with his mother, wife and daughters.  His family relationships were reported to be good and stable.  The son lives in hostel.  2-3 years ago, the plaintiff and his wife terminated their parental rights over the son because they could not face the stress of taking care of him after the Accident.

40.  According to the Chen Report, the plaintiff’s premorbid personally was extroverted, active and outgoing.  He was sociable and had many friends.  He was not a perfectionist, and was optimistic with stable mood and even temper.  He was not irritable or anxious.  He was hardworking and serious at work.  He coped with his stress by sharing his feelings with others.  He liked to play ball games and engage in outdoor activities.  He was a chronic smoker and a social drinker.  He had no history of drug abuse, forensic record or religious belief.

41.  According to the plaintiff, all along before the Accident he was in good physical and mental health.  He did not have to take regular medications, and there was no history of mental illness.  He did not suffer any previous injuries.  He complained that he suffered the following disabilities as a result of the Accident:

(a)  scars over the right 2^nd, 3^rd, 4^th and 5^th fingers;

(b)  3 of the right fingers were shorter than normal and the right 5^th finger was deformed;

(c)  the right hand could not make a full fist;

(d)  the fingers and back of the right hand were constantly painful with pin-prick sensation, especially upon change of weather;

(e)  stiffness and numbness of the right hand, which was worse in the morning;

(f)   the right hand could not carry heavy weight;

(g)  lack of dexterity of the right hand fingers which affected his ADL, eg difficulty in pulling out coins or other objects from his trouser pockets, inability to pick up small objects such as toothpick or rice grains with right hand, inability to wring dry a towel, could not pour tea from a teapot with right hand, inability to grasp chopsticks or pen etc;

(h)  depressed mood with insomnia, poor temper, poor appetite, loss of interest and other psychiatric symptoms.

42.  The plaintiff stated in the Statement that despite active rehabilitation it will not be possible to achieve full recovery of his right hand.  He is right hand dominant, and can no longer return to his pre-Accident work as a master carpenter.  There are inconveniences in ADL, and he had to learn to use his left hand to, say, brush teeth, pour tea, pick up small objects etc.

43.  When the plaintiff gave evidence at the Hearing, I observed that he used his left hand to turn the pages of the assessment bundle.  When asked to demonstrate the closing of his right hand, it was evident that he could not make a full fist.  He could not bend the right 2^nd and 3^rd fingers which were stiff, but the 3^rd and 4^th fingers could bend close towards the palm.  The plaintiff appeared dull and tense when he gave evidence, and when he talked about his disabilities he had to wipe his eyes.

44.  Ms Lau referred me to the following authorities :

(a)  Tsang Chung Wan v Li Ming or Lee Ming & ors HCPI 1063/1996 , DHCJ Suffiad (as he then was)  (unreported, 11 February 1998);

(b)  Lo Chi Bun v Leung Wah Kwan HCPI 984/1997, Master Cannon (unreported, 31 March 1998);

(c)  Chung Tin-sang v Tong Tai-nam formerly known as Ho King-nam & ors HCPI 909/1997, DHCJ Lugar-Mawson (as he then was) (unreported, 7 May 1999);

(d)  Leung Lai Yin v Yeung Kei Chi trading as Shun Hing Furniture Decorating Construction HCPI 317/199, DHCJ To (as he then was) (unreported, 7 April 2000);

(e)  Chan Kai Wing v Leung Fat Kee Engineering Factory Co Ltd HCPI 1163/1999, Master Lung (unreported, 15 November 2000);

(f)   Lily Tse Lai Yin & ors v The Incorporated Owners of Albert House (also known as The Owner Incorporation of Albert House) & ors HCPI 828/1997, Suffiad J (unreported, 17 September 2001);

(g)  Wong Ying Wa v Chan Sing HCPI 1125/2000, Master M Yuen (unreported, 31 January 2002);

(h)  Chan Yu Chau v Fong On Construction & Engineering Company Limited & anor HCPI 753/2000, DHCJ Longley (unreported, 4 June 2002);

(i)    Chow Cheung Ching v Right Base Construction & Engineering Company Limited HCPI 742/2000, DHCJ Fung (as he then was) (unreported, 25 June 2002);

(j)    Tsui Kim Ming v Charter Form Company Limited HCPI 681/2001, Master E Shum (unreported, 29 October 2002);

(k)  Chan Ming Yat v Youh Eng Lai Michael trading as Prime Industrial Company (Hong Kong) DCPI 201/2003, HH Judge Lok (unreported, 5 June 2004);

(l)    Au Hon Ling v Ching Hoi Keung trading as C&L Co & anor HCPI 416/2003, Suffiad J (unreported, 1 September 2004);

(m)  Chung Tat Ho v Au Hoi Lam Sub-Contractor Ltd & anor HCPI 472/2003, McMahon J (unreported, 6 September 2004);

(n)  Mak Kam Bo v Ever Gain Engineering Limited & anor HCPI 37/2004, DHCJ Muttrie (unreported, 28 November 2005);

(o)  Wong Shek Mui v Mammoth Holdings Limited HCPI 1291/2003, Master KH Hui (unreported, 16 February 2007);

(p)  Ng Tim Yip Kevin (formerly known as Ng Tim Yip) v Chan Ho Kin formerly trading as Kenny’s Engineering Company (formerly known as Kenny’s Company) HCPI 948/2005, Suffiad J (unreported, 9 August 2007).

45.  I have also considered the following authorities not cited by Ms Lau:

(a)  鄭玉輝 v方發HCPI 1153/2002, A Cheung J (as he then was) (unreported, 28 November 2003);

(b)  Chow Kai Kit v International Paper Manufacturing & Distribution Limited DCPI 1415/2006, DDJ E Yip (as he then was) (unreported, 3 December 2007);

(c)  Wong Yun San v Cheung Yue Yiu trading as Radio Engineering Co DCPI 1909/2007, DDJ Richard Khaw (unreported, 21 July 2008);

(d)  Or Wing Mig v Ho Bing Chi trading as Tin Kei Decoration Engineering Co HCPI 146/2007, A Cheung J (as he then was) (unreported, 8 September 2008);

(e)  Bhim Bahadur Rai v Fung Shing Hong, Hong Kong (a firm) HCPI 776/2007, DHCJ L Chan (unreported, 17 September 2009);

(f)   Cheng Chi Wah v Ho Kwan formerly trading as Wan Fai Company DCPI 1582/2009, Master Mak (unreported, 21 January 2011).

46.  The plaintiff claims a sum of HK$600,000.00 under this head of claim.  Bearing in mind that the injuries suffered by the plaintiffs in the above authorities are not exactly the same as the injuries suffered by the plaintiff in the present case, I have to consider the relevant award in the context of the present circumstances.  Some of the plaintiffs in the above authorities suffered more severe injuries and disabilities, eg amputation of whole or part of finger(s), damage to artery, osteoporosis, degloving injury, crush injury to hand and/or muscle damage, and they underwent more complicated treatment and rehabilitation, eg multiple operations, nerve graft, skin graft, tendon graft, osteochondral autograft, toe harvest for injured thumb, removal of bony fragments and/or revision amputation.  Some plaintiffs in the above authorities suffered less serious injuries and disabilities, eg only 1 finger was injured and/or the injury did not prevent return to pre-Accident work.  I also bear in mind that the authorities in paragraph 44(f) and (n)-(p) above cover both physical injury to the hand/fingers as well as psychiatric impairment/disabilities.

47.  In the present case, I accept the plaintiff’s medical and psychiatric condition to be as stated by the various doctors as referred to above.  I bear in mind that the plaintiff’s right thumb was spared and hence certain degree of hand functions (eg gripping and holding objects) remain albeit weakened by the stiffness of the other fingers, and that the plaintiff may have some improvement in his psychiatric condition after future treatment provided for below.  Using the above authorities as a guideline but considering the particular circumstances of this case, I am persuaded that the plaintiff’s injuries and disabilities come within the lower end of the “serious injury” category, and I am of the view that an award of HK$500,000.00 under this head is appropriate.

VII.  PRE-ACCIDENT EMPLOYMENT HISTORY

48.  After the plaintiff came to settle in Hong Kong in 1997, he was apprenticed to a master carpenter. He completed his apprenticeship in 3 years and became a master carpenter himself.  Thereafter, he continued to work as a carpenter for almost 10 years up to the time of the Accident.  All along his daily wages as a carpenter was about HK$700.00-HK$800.00, and on average he worked 26 days a month with overtime work.  Hence, his monthly income varied from about HK$18,200.00 to HK$20,800.00 odd.

49.  From March 2006 until January 2007, the plaintiff was employed as a carpenter by 力豐裝飾工程公司 (“Company”) at a daily wage of HK$780.00 with working hours from 9 am to 6 pm.  If he worked overtime until 8 pm or 10 pm, his wage for the day would be calculated on the basis of 1½ or 2 work days respectively. Whilst working for the Company, the plaintiff on average worked 26 days per month, and he also worked as part-time carpenter for other sub-contractors (ie 葉景 (“Mr Yip”) and 羅見輝 (“Mr Law”)) in June, September, October and December 2006 and February 2007.  At that time, Mr Yip and Mr Law paid him HK$780.00 and HK$750.00 respectively as his daily wage.

50.  After the Accident, the Company, Mr Yip and Mr Law gave the plaintiff their written accounts of his earnings for the period from March 2006 to February 2007 summarised as follows:

Period	Defendant (HK$)	Mr Yip/Mr Law (HK$)
March 2006	27,300.00
April 2006	21,060.00
May 2006	22,620.00
June 2006	16,380.00	6,000.00
July 2006	20,280.00
August 2006	20,280.00
September 2006		7,500.00
October 2006		7,020.00
November 2006	17,940.00
December 2006	14,820.00	5,460.00
January 2007	24,180.00
February 2007		4,680.00
	184,860.00	30,660.00
Total	215,520.00

51.  In early 2006, the plaintiff and his family moved to their new home.  In order to save money, they did not commission decoration work or purchase new furniture.  Since the plaintiff was a carpenter, he and his wife planned to make do-it-your-own decoration and furniture.  After saving some money, the plaintiff started to furbish his home and make new furniture in September 2006. He attended to such work during September and October 2006, and only did part-time work for Mr Yip and Mr Law.  Consequently, the number of days he worked during such period was less than average.

52.  During Chinese New Year in February 2007, the plaintiff returned to Mainland China to visit relatives, so the number of working days that month was also reduced.  In the circumstances, the plaintiff claimed that his earnings for September and October 2006 and February 2007 did not reflect his usual income. Putting aside those 3 months, the plaintiff claimed that his average monthly income from March 2006 to February 2007 was HK$21,813.33.  He believed that even though the Accident happened on the 5^th day he started work, but for the Accident he would have continued to work for the defendant for 26 days per month.

53.  Although the defendant did not expressly tell the plaintiff his daily wage when he started to work for them, the plaintiff assumed he would be paid the usual daily wage for a carpenter at HK$700.00-HK$800.00 (see the plaintiff’s declaration to the Labour Department dated 12 June 2007).  Further, in the declarations by the defendant’s creative director 余志偉 and project manager 李振輝 to the Labour Department respectively dated 10 and 22 June 2007, they confirmed that the plaintiff was a carpenter working for the defendant at a daily wage of HK$800.00.  So but for the Accident and on the basis he would have worked 26 days per month as he did before, his monthly income would been HK$800.00 x 26 days = HK$20,800.00.

54.  Indeed, in employees’ compensation proceedings (DCEC 297/2008) commenced by the plaintiff against the defendant, HH Judge HC Wong in her judgment dated 14 August 2009 (“EC Judgment”) held that “[based] on [the plaintiff’s] daily wage of $800, his wages working 26 days a month comes to $20,800”.  I am satisfied that the plaintiff’s pre-Accident earnings were HK$20,800.00 per month at a daily wage of HK$800.00.

VIII.  POST-ACCIDENT ATTEMPTS TO FIND WORK

55.  According to the Certificate of Assessment dated 11 March 2009 in respect of the plaintiff’s “right hand multiple fracture resulting in (i) right index finger and middle finger [PIPJ] and [DIPJ] and arthrodesis, (ii) right little finger [DIPJ] and arthrodesis, and (iii) psychiatric impairment”, his period of absence from duty necessary as a result of the injury was assessed to be from 19 March 2007 to 31 May 2008 and the loss of earning capacity permanently caused by the injury was assessed to be 15%.  The plaintiff did not apply for review of the assessment in Form 7.

56.  The plaintiff was granted sick leave from 19 March 2007 until 31 May 2008.  After the expiry of his sick leave, the plaintiff’s physical and mental condition had not stabilised yet.  In particular, his mood was low and he was depressed, but still he attempted to look for work.  He registered with the Labour Department’s employment service webpage and checked newspaper advertisements for delivery work as he believed he could manage such work.  But when potential employers became aware that he had injured his right hand injury and that he was taking psychiatric medications, they were not prepared to employ him.

57.  The plaintiff was on CSSA from May 2008 to July 2009, and was finally employed by ADPL Social Enterprise Limited (“ADPL”) on 16 April 2010 as a vehicle delivery worker (跟車工人) with their collection and cleaning service at a monthly salary of HK$7,000.00.  On 1 June and 1 August 2010, his monthly salary increased to HK$7,500.00 and HK$8,000.00 respectively.

58.  According to his employment contract with ADPL, the employment period was from 16 April 2010 to 15 April 2011.  But ADPL continued to employ him after the expiry of such employment period.  The plaintiff is currently still working for ADPL.

IX.  PRE-TRIAL LOSS OF EARNINGS

59.  According to the plaintiff, a carpenter’s job includes manual work (eg carry heavy timber and wooden planks exceeding 10 catties, move/operate tools and equipment such as electric saw, electric drill, hammer, screwdriver etc, and climb ladder to work at height) as well as fine craftsmanship that requires dexterity of the hands.  His work includes making furniture such as cabinet, chairs, table, doors and beds.

60.  Dr Yuen was of the view that the plaintiff’s injuries would render him unable to handle tools effectively, eg he would not be able to use pneumatic drill or power instrument, and hence it would be hard for him to return to work as a carpenter.  Dr Yuen recommended the plaintiff to take up work as a hawker, toll collector or other work that would not require physical labour or dexterity in the use of the right hand.  Because the plaintiff had a driver’s licence for private car and light truck, Dr Yuen also considered he could work as a driver.

61.  Dr Chen also opined the plaintiff could not return to his previous work after the Accident as a carpenter with impaired right hand functioning.  The plaintiff had clinically significant depression with limited competitive vocational capacity.  He had mild problems with ADL and permanent injury to his right hand with certain degree of handicap.

62.  The plaintiff explained that although he had a driver’s licence, he did not own any car and was unfamiliar with the roads in Hong Kong.  He did not have a lot of driving experience, and had never worked as a professional driver.  The plaintiff claimed he could not (a) concentrate well in his driving due to psychiatric medications and sleep problems and/or (b) firmly grasp the steering wheel due to right hand numbness and stiffness.

63.  The plaintiff’s working hours at ADPL were from 9:30am to 6:30pm.  Such job required him to drive with a frequency of about 2 days a month (ie on the alternate Saturday when the driver had the day off).  I am persuaded that whilst the plaintiff is not suitable for working as a full-time driver, he can manage the driving work required of him at ADPL. Indeed, he has worked at such job for almost 2 years.  It was also noted in the Chen Report that the plaintiff “can manage his job well”.  I agree with Dr Chen’s conclusion that whilst the plaintiff is unable to resume his pre-Accident work, he is able to work as delivery worker.

64.  I find on the balance of probabilities that the plaintiff made reasonable attempts to find work as a delivery worker after the Accident, but was not successful until he was employed by ADPL.  In the circumstances, he is entitled to claim for full pre-trial loss of earnings from 18 March 2007 to 15 April 2010 and partial pre-trial loss of earnings from 16 April 2010 to 30 March 2012.

65.  The award for the plaintiff’s pre-trial loss of earnings is HK$1,071,513.33 as follows:

Period	Monthly loss (HK$)	Duration (months)	Amount (HK$)
19/3/07 – 15/4/10	20,800.00	36.933	768,213.33
16/4/10 – 31/5/10	20,800.00 – 7,000.00	1.5	20,700.00
1/6/10 – 31/8/10	20,000.00 – 7,500.00	3 (less HK$500.00)	39,400.00
1/9/10 – 30/3/12	20,800.00 – 8,000.00	19	243,200.00
			1,071,513.33

X.  POST-TRIAL LOSS OF EARNINGS

66.  The plaintiff is now 36 years old.  The Plaintiff was healthy and fit before the Accident, and used to have regular work and stable income.  Ms Lau submitted that but for the Accident he would have continued to work as a carpenter for the rest of his working life until, say, 65 years old.

67.  According to the circular by the Hong Kong Construction Industry Employees General Union (“Union”) dated 12 October 2010, the standard wage for decoration carpentry worker would increase from HK$820.00 to HK$850.00 or an increase of HK$30.00 above current daily wage with effect from 1 November 2010.  A further undated circular by the Union showed the standard daily wage would be increased from HK$850.00 to HK$900.00 with effect from November 2011.

68.  Ms Lau submitted (and I accept) that it is reasonable and appropriate for the plaintiff to rely on HK$850.00 and not HK$900.00 as the notional daily wage of a carpenter for the future years.  On the basis that he would have worked 26 days a month as a carpenter, the multiplicand for the plaintiff’s partial loss of future earnings is HK$850.00 x 26 days – HK$8,000.00 = HK$14,100.00.

69.  Ms Lau submitted that the appropriate multiplier is 14 (see Tsui Kim Ming at para.24, Wing Yin Wa at para.22 and Au Hon Ling at para.14).  I bear in mind that the plaintiff is now 36 years old, and that carpentry involves fine craftsmanship as well as manual work although not of the heaviest kind.  I consider the more relevant authorities to be Leung Lai Yin at p.12 and Lo Chi Bun at p.6.  Taking the above matters into account, I consider the appropriate multiplier to be 13.  Thus, the plaintiff’s partial future loss of earnings is HK$14,100.00 x 12 months x 13 = HK$2,199,600.00.

XI.  LOSS OF MANDATORY PROVIDENT FUND (“MPF”) CONTRIBUTION

70.  Ms Lau submitted that but for the Accident, the Plaintiff should have been entitled to a contribution made by his employer towards MPF which was equivalent to 5% of his earnings or HK$1,000.00 per month whichever is less.  Here, the Plaintiff’s pre-trial loss of MPF contribution is HK$1,071,513.33 x 5% = HK$53,575.67 and post-trial loss of MPF contribution is HK$2,199,600.00 x 5% = HK$109,980.00, totalling HK$163,555.67.

XII.  LOSS OF EARNING CAPACITY

71.  Ms Lau submitted that it would be difficult for the plaintiff to return to his pre-Accident work.  He would be less competitive than comparable workers who are able-bodied.  Should the plaintriff be dismissed by ADPL, he would be under a real risk of being prejudiced in the labour market and would probably need a longer period of time before he can find himself suitable employment in the open market. The plaintiff therefore claimed damages for loss of earning capacity.

72.  In Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, 141, it is said as follows:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market?  I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … …   If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

73.  In Chan Wai Tong v Li Ping Sum [1985] HKLR 176, 183, Lord Fraser of Tullybelton said as follows:

“…… A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk – see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant. In the present case there is no evidence at all on these matters. Accordingly their Lordships are of opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted.”

74.  Thus, in respect of the considerations to be taken into account to identify whether the risk that a plaintiff will at sometime before the end of his working life lose his current job and be thrown on the labour market is a “substantial” or a “speculative” or “fanciful” risk, all sorts of factors will have to be taken into account varying almost infinitely with the facts of the particular case, eg the nature and prospects of the employer’s business, the plaintiff’s age and qualifications, his length of service, the remaining length of his working life, the nature of his disabilities, and any undertaking or statement of intention by his employer as to his future employment.

75.  I accept that the plaintiff’s general earning capacity has been impaired as a result of his right hand and psychiatric injuries.  Given the plaintiff’s injuries and disabilities and the nature of his present work, there is a possibility of the plaintiff losing his present employment at some future point in time.  If this should happen, he will be disadvantaged in competing with other able-bodied persons in the labour market.  

76.  Ms Lau asked me to take into account the fact that it took the plaintiff almost 2 years after the expiry of sick leave to secure his present employment with ADPL and to award damages under this head of claim on the basis of 12 months of present earnings (ie HK$8,000.00 x 12 = HK$96,000.00) to compensate for such risk.

77.  However, the plaintiff has survived probation and the employment period in his contract with ADPL.  He has been gainfully and steadily employed since April 2010.  This, in my view, reflects reasonable job stability.  Although the plaintiff in his evidence mentioned it would not be easy for a person aged over 33 years with no experience in delivery work to secure employment, I bear in mind that he is only 36 years old and by now he had almost 2 years of experience in steady employment with ADPL as a delivery worker.  I also note that with expected improvement in his psychiatric condition following psychiatric and psychological treatment in the coming 2 years (see Part XIII below), he should be able to able to undertake work which requires some driving duties although he may not be suitable to be a full-time professional driver.

78.  I also bear in mind the following matters: (a) the plaintiff’s education and background, (b) the fact that he has worked for ADPL for almost 2 years, (c) the difficulties he will face in securing other work if he were to lose his employment with ADPL, (d) his injuries and residual disabilities, and (e) the vicissitudes of life.  Whilst I am satisfied that the plaintiff’s injuries leave a legacy of residual impairment and/or disability that will disadvantage him in holding onto and finding work in future, I consider an award on the basis of 12 months’ present earnings to be excessive.  I am prepared to award damages for loss of earning capacity on the basis of 6 months of present earnings, ie HK$8,000.00 x 6 months = HK$48,000.00.

XIII.  FUTURE MEDICAL EXPENSES

79.  Dr Chen opined that the plaintiff was still suffering from depression with significant symptoms and functional impairment, so more intensive treatments with both medications and psychotherapy would be important.  Since the plaintiff still had clinically significant depression after more than 3 years of treatment at the public psychiatric clinic, Dr Chen considered that further treatment by psychiatrists and clinical psychologists in the private sector at about HK$1,000.00-HK$2,000.00 per hour session depending on individual therapist for at least 1-2 more years with more intensive and frequent sessions in the first several months (eg every week for the first month, every 2 weeks for subsequent 2 months and then monthly afterwards) would be reasonable and appropriate.

80.  On the aforesaid basis, the cost for psychiatric treatment and medications for 2 years in the private sector is as follows:

Treatment items	Unit cost (HK$)	1st year (HK$)	2nd year (HK$)	Total Average (HK$)
Psychiatrist consultation	1,000 – 2,000 per session	17,000 – 34,000	12,000 – 24,000	43,500
Clinical psychologist consultation	1,000 – 2,000 per session	17,000 – 34,000	12,000 – 24,000	43,500
Medications	5 – 50 per day	1,825 – 18,250	1,825 – 18,250	20,075
				107,075

81.  I accept that the plaintiff still requires psychiatric and psychological treatment for at least 1-2 more years with more intensive and frequent sessions in the first several months, and that it is reasonable for him to see psychiatrist and clinical psychologist in private sector given (a) the lack of significant progress after treatment for 3 years in the public sector and (b) the need for intensive treatment in the initial months.  The award for future medical expenses is HK$107,075.00.

XIV.  SPECIAL DAMAGES

82.  In respect of special damages, the plaintiff claimed for medical expenses in the sum of HK$2,345.00 (which were receipted) and travelling expenses (mostly by minibus and bus) for attending medical treatments in the sum of HK$2,328.00 (which I find to be reasonable).  I allow such expenses.

83.  The plaintiff claimed HK$5,000.00 for incurred expenses for tonic food which is unsupported by any receipt.  There is no evidence before me (documentary or otherwise) as to what tonic food has been purchased or consumed. Only a reasonable sum will be awarded where there is no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge.  Following Yu Ki v Chin Kit Lam [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575) and judging from the nature of the plaintiff’s injuries and disabilities, I allow a global sum of HK$4,000.00 for his claim under this head.

84.  In the circumstances, the special damages suffered by the Plaintiff are HK$2,345.00 + HK$2,328.00 + HK$4,000.00 = HK$8,673.00.

XV.  EMPLOYEES’ COMPENSATION

85.  HH Judge HC Wong by the EC Judgment granted judgment in favour of the plaintiff for employees’ compensation in the sum of HK$545,488.33 with interest thereon at half judgment rate from the date of the Accident to the date of judgment and thereafter at judgment rate.

86.  In light of section 26(1) of the Employees’ Compensation Ordinance Cap.282 which provides that the value of “any compensation which has been paid or is payable under the provisions of this Ordinance in respect of the injury sustained by the employee” ought to be deducted from any common law damages, Ms Lau conceded that any damages awarded in this case ought to be reduced by the sum of HK$545,488.33.

XVI.  CONCLUSION

87.  I summarise the above awards as follows:

	HK$
Pain, suffering and loss of amenities	500,000.00
Pre-trial loss of earnings	1,071,513.33
Post-trial loss of earnings	2,199,600.00
Loss of MPF contribution	163,555.67
Loss of earning capacity	48,000.00
Future medical expenses	107,075.00
Special damages	8,673.00
	4,098,417.00
Less employees’ compensation	(545,488.33)
Total	3,552,928.67

88.  I therefore grant judgment in favour of the plaintiff against the defendant in the sum of HK$3,552,928.67.  Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of earnings and other special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

89.  There is no reason why costs should not follow event.  I grant a costs order nisi that the defendant do pay the plaintiff costs of the assessment of damages (including all costs reserved, if any) with certificate for counsel to be taxed on High Court scale if not agreed, and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.