CHING KAM v. AU WING KEUNG AND ANOTHER

1995 PI No.765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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ASSESSMENT OF DAMAGES

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1. On 1.8.92. the plaintiff was a decoration "Sifu" working in a construction site when a piece of glass fell down from above, causing him severe injuries. The plaintiff's right forearm suffered a deep transverse cut. Some of the muscles and tendons to the plaintiff's right hand were cut through. The injured hand was the plaintiff's dominant hand. The plaintiff was born on 6.6.46. and was aged 46 at the time of the accident.

2. An operation at Caritas Medical Centre was performed to "repair the divided structures", that is, the severed nerves and tendons were sewn back together again.

3. Two years after the accident the plaintiff was examined by Dr Lau Hoi Kuen for the 1st time. Dr Lau found that the flexor pollicis longus and the radial nerve of the plaintiff's right hand had also been cut through in the accident, but these injuries had not been detected and were left untreated at the time. Dr Lau explained that the flexor pollicis longus is the group of tendons enabling us to bend our thumbs, and that the radial nerve was the nerve located at the dorsal surface of the forearm supplying the hand. From contemporary reports these injuries were not noted by the doctor at the Caritas Medical Centre, therefore they had probably been left untreated at the time. Those aforementioned injuries, coupled with the others suffered in the accident accounted for the plaintiff's complaints. The number of nerves and tendons cut through and then surgically sewn back together again had an effect on the plaintiff's ability to grip objects. The plaintiff said that he was no longer able to have sufficient manipulation of his right hand to perform a decoration Sifu's work. In short the plaintiff says he is not able to hold a decorator's tools in his right hand with any control or dexterity.

4. In 1994 Dr Lau felt that if an operation was performed on the flexor pollicis longus and the radial nerve, the plaintiff's right hand function might be improved. However the doctor also warned that the plaintiff that the costs of a further operation and a 6 month convalescent period had to be taken into consideration. The plaintiff gave evidence that he weighed all the factors and declined to undergo a further operation.

5. In 1997 the plaintiff was examined by Dr Lau for a second time. The plaintiff was still complaining of stiffness and weakness of the thumb; an inability to grip objects properly; and numbness of the right thumb. It was Dr Lau's opinion that even if the plaintiff had undergone a second operation in or about 1994, any improvement brought about by that second operation would not have been such that would enable the plaintiff to return to his previous occupation as a decoration Sifu.

6. Dr Lau found the plaintiff's condition had remained about the same since the earlier examination in 1994 although the wasting of the muscles of the right thumb had become more obvious. Dr Lau found the plaintiff had suffered :-

1. 25% loss of earning capacity (with 60% for loss of hand at wrist)

2. 14% permanent disability

Pain, Suffering and Loss of Amenities

7. Counsel for the plaintiff conceded that the injuries of the plaintiff would not be placed any higher than the lower end of the "serious injury" category set out in the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.

8. Counsel sought to argue that the amount of $250,000 claimed in the Revised statement of damages dated 3.12.98. was at the lowest end of the range in the "serious injury" category. If the effects of inflation were taken into consideration since the Court of Appeal's new guidelines for the "serious injury" category in Chan Pui Ki v Leung On & KMB in Civ App No 263 of 1995, Counsel submitted that a figure in the region of $480,000 would not be inappropriate. Counsel referred me to a number of authorities under this heading, Tsang Chin Keung v Lo Tat Kong t/a Hung Kwong Glass Works & Anor PI 806 of 1995; Sin Sau Mui v Yuen Sai Kwong & Ors HCA No A11319 of 1993; and Ng Wan Kwong v Kwan Siu Keung & Anor [1989] 1HKC 460.

9. Taking into consideration all relevant factors, and the points raised by counsel, I considered an award of $300,000 under this head to be appropriate.

Loss of Earnings

10. I accept the plaintiff's evidence that at the time of the accident he earned on average $11,000 a month as a decoration Sifu.

11. The plaintiff says that he was unable to work from the date of the accident until March 1993. I accept that he has been unable to return to his pre-accident occupation by reason of the injuries sustained in the accident. The plaintiff says that he is now a hawker. He started working as a hawker in March 1993 when he earned around $4000 a month. His present earnings as a hawker are around $5000 a month.

12. PW3 gave evidence that he was a decoration Sifu. PW3 said that prior to the plaintiff's accident, they had worked together in the same construction sites doing similar work. At present PW3 is still working as a decoration Sifu. His average income is now $19,000 a month. I accept that if he had not been injured in the accident, the plaintiff would now be making a similar income.

13. For all those reasons I accepted the calculations made by Counsel in her skeleton submission under this head and find the loss of earnings to be $674,800.

1. August 1992 to February 1993

$11,000 x 7 months less the $700 income made in that period
= $76,300.

2. March 1993 to December 1998

The average income of PW3 at this time is assessed to be $15,000.

The plaintiff would have been earning a similar amount as a Sifu.

The plaintiff's earnings as a hawker would have been $4000-$5000.

($15,000-$4500) x 57 months = $598,500.

1. Total $76,300 + $598,500 = $674,800.

Loss of Future Earnings

14. As stated above, the plaintiff was born on 6.6.46. He was aged 46 at the time of the accident. He is now aged 52. Counsel submitted that a multiplier of 8 was appropriate.

15. Having looked at the cases referred to, and heard Counsel's submissions on this point, I accept that a multiplier of 8 is to be adopted.

16. On the basis that the plaintiff would be earning a similar income to PW3, that is $19,000 but for the accident, the calculation under this head would be :-

($19,000 - $5000) x 8 x 12 = $1,344,000.

Medical Expenses

17. I accepted the plaintiff's evidence that he had undergone the various medical treatments, and spent the amounts claimed on travelling expenses.

18. I award him the $3532 claimed under this head.

Nourishing Food

19. The plaintiff's evidence was unimpressive. In the light of the evidence given in support, I decline to make any award under this head.

Total

$ 2,193,998.00

Deductions

20. The sum of $110,000 had been paid under ECC proceedings, and the sum of $18,333.32 was paid in advance to the plaintiff. These payments amounting to $128,333.32 will be deducted from the award made above, $2,322,332 - $110,000 - $18,333.32 leaving a balance of $ 2,193,998.

21. There will be interest on general damages at the rate of 2% from the date of the writ to the date of judgment. There will be interest on the special damages at half judgement rate from the date of the accident to the date of judgment and thereafter at judgement rate.

22. Costs for the plaintiff, with his own costs to be taxed in accordance with Legal Aid regulations.