KONS SZE CHUNG BY HIS SISTER AND NEXT FRIEND KONG WAI PING v. SUNDO GARMENTS FACTORY LIMITED

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The first-named Plaintiff was a student aged 17 when he took up a summer job as a packing worker at the Defendant's factory in June 1981. On 23rd June 1981 while the first-named Plaintiff was feeding cloth into a heat transfer printing machine his left hand was drawn into the machine and severely burnt. He took out the writ by his sister, the second-named Plaintiff, on 24th April 1984 against the Defendant for negligence and/or breach of statutory duty. The Statement of Claim was amended by consent on 2nd October 1986. Interlocutory judgment was entered on 18th May 1987 by consent with damages to be assessed. The first-named Plaintiff became of age on 2nd September 1984 and by a notice dated 10th July 1986 adopted these proceedings himself.

2. The various medical reports, employees' compensation records, school reports and examination results under a hearsay notice dated 29th May 1987 were produced at the assessment in an agreed bundle. Statistics of wages between March 1983 and March 1987 were produced by consent as P. 3. The first-named Plaintiff called 2 doctors and gave evidence himself. The Defendant called no evidence. The assessment was heard on 30th July, 1987 and 18th September, 1987.

3. Dr. Hung Leung Kim was attached to the Surgical Unit of Princess Margaret Hospital during June to August 1981 when he attended upon the first-named Plaintiff there. In a report dated llth August 1982 (P. 1) Dr. Hung stated that emergency operation to amputate the distal portion of the thumb and all fingers on the left hand of the first-named Plaintiff was performed upon admission to the hospital. An abdominal skin flap was raised to cover the raw wound on 27th June 1981. Two further minor operations were done on 20th July 1981 and 23rd July 1981 to fashion the skin flap to cover the wound. He was then discharged on 4th August 1981. He was readmitted to hospital on 8th September 1981 when the skin graft on the thumb did not take well and the bone had to be trimmed down and a new skin graft was placed over the thumb. He was again discharged on 11th September 1981. After discharge, he was followed up regularly at the Special Clinic with intensive physiotherapy until March 1983. A reconstructive procedure to transplant a toe to the left palm to act as a finger to restore some functions to the Band was planned but not carried out by Dr. Hung as time had to be allowed for oedema to subside, for the palm to regain suppleness and for muscle power to increase prior to the transplant. He said the normal toe to be taken for the transplant would be the second toe. He said the effect of losing the second toe would be comparatively minimal. He said it would not have a very significant effect on walking, depending on the success of follow-up treatment. He said if the operation is successful the patient should be able to run and play normally. He said it is possible for the patient to play games, but only a possibility. He said the third toe would be affected by the transplant; and scarring on the foot would be harder to heal and could cause discomfort.

4. Dr. Philip Wen-chee Mao examined the first-named Plaintiff in 1986 and produced a report of his findings on 13th May 1986 (P. 2). The report discloses that a transplant of the second toe of the left foot to the left palm was performed in September 1982. He stayed in hospital for about one month, and attended the hand clinic after discharge. He was granted sick leave until 31st March 1983. The Medical Board assessed his disability at 42%. He could now oppose his thumb and the tip of his new finger and can hold fairly small objects provided they project from the surface of a table i.e. a "biggish" button. The grib in the left hand was about 10 lbs. (the right having 80 lbs.), with the remnant of the thumb having a 30^o movement and the new finger having a 40^o movement in May 1986. Dr. Mao said the operation was a success and his grip has improved since May 1986, but it would never exceed 20 lbs. Dr. Mao said the first-named Plaintiff had complained of difficulty in flexing the grand toe and the third toe plantarwards (i.e. towards the sole) and that there is a 5" scar at where the second toe was. He said the first-named Plaintiff can no longer run or play games though he can still swim. He assessed the loss of earning capacity at 45%, adding 3% more to the Medical Board's findings for the loss of the second toe. He said the Medical Board's assessment was based on the Ordinance and was not scientific. He said the total impairment of the upper extremity is 71% i.e. a 43% of the whole man. Though in his report he said as the first-named Plaintiff "seems to be on the road to attaining a good education, his future should not be compromised too much", he insisted in evidence that the loss of earning capacity should be higher than 43%.

5. Dr. Wedderburn's report dated 5th March 1984 (Pg. 1 of the agreed bundle) assessed the first-named Plaintiff to suffer a 48% impairment of the whole man which he reduced to 43% as the left hand was not his preferred hand. He assessed the loss of earning capacity to be 42/43%.

6. The first-named Plaintiff gave evidence that he was born on 2nd September 1963 and was 17 at the time of the accident. He described the medical treatment he received and the great pain he suffered. He did not resume any form of employment or study after the accident before he resumed his study in September 1984. He explained he did not do anything for 18 months between April 1983 and September 1984 (i.e. after expiry of sick leave and prior to resuming study), because he was in a bad mood and psychologically not feeling well. He felt he was not a normal person and was embarrassed about his left hand. He is now in his second year of the 4-year law and administration course at the Shu Yan College. He said his social life is affected as he can no longer play volley ball and basketball with his friends any more. He still plays table-tennis and badminton with his friends occasionally. He said he turned to his present study as he felt his condition would make it difficult for him to find a job requiring physical strength and agility. He said students from such a course he is studying usually go into government service. He said he planned to be an executive officer in the Government. He said he was earning $35.00 per day plus free meals at the time of the accident. He said but for the accident he would have continued with his study at the close of the summer vacation in 1981. In cross-examination he said he planned to get a job as an executive officer in the civil service. He said he would not go back to do any blue-collar jobs now. He said he worked on the average 6 days a week at the Defendant's factory. He said he only intended to work for 2 months in 1981 and would stop working at the end of August 1981. He said he tried to find a job after 31st March 1983 but could not find any. He had only worked for the Defendant for 11 days prior to the accident. He agreed he had received $65,137.84 as employees' compensation. In re-examination he said he could not recall when he was fitted with a cosmetic hand, which was provided free of charge to him. But he did not put the cosmetic hand on very often as it obstructed the functions of his hand.

Pain, Suffering and Loss of Amenities

7. The first-named Plaintiff was hospitalised for a total period of over 2½ months (3 occassions) and underwent a total of 2 major and 2 minor operations to his left hand and left foot. He was granted sick leave for a total of about 21 months. He now suffers a 43% impairment of the whole man. He could no longer run or enjoy a number of ball games he used to play. He felt embarrassed about his left hand. The transplant of the toe to the hand was necessary to restore some functions back to the hand. It was submitted on behalf of the first-named Plaintiff that his injuries fall into the top end of the "serious" category in Lee Ting Lam [1980] HKLR 657. The following awards were referred to: $125,000.00 in Wong Pui Kwan and $132,000.00 in Tang Pui Wah both reported on pg. 109 of [1985] HKLJ Vol. 15; $120,000.00 in Tang Lin Fat, $100,000.00 in Ho Ping Shui and $110,000.00 in Chan Ka Lok all reported on pg. 117 of [1987] HKLJ Vol. 17. It was submitted by the first-named Plaintiff that an inflation rate of 12.5% p.a. (50% over 4 years) as adopted by the Privy Council in Li Ping Sum v. Chan Wai Tong [1985] HKLR 176 should be applied to the said awards and an award in the sum of $150,000.00 should be made in the present action under this head (i.e. $80,000.00 as awarded in Lee Ting Lam be adjusted at rate of 12.5% for 7 years). It was urged on behalf of the Defendant that the left hand is not the preferred hand of the first-named Plaintiff and the operation is a success. It was said that all the authorities cited concerned a preferred hand. I was referred to the following awards: $65,000.00 in To Wai Bun H.C.A. No. 4529/79, $40,000.00 in To Kin Shan H.C.A No 4123/82 and $100,000.00 in Law Yin Kwan H.C.A No 13230/83. It was submitted by the Defendant that an award in the sum of $110,000.00 should be made after taking into account inflation.

8. As was opined by the Judicial committee of the Privy Council, whilst it is not wrong to make references to catagories of injuries, the court should be more concerned with the actual facts of the case. Comparing percentages of disabilities though often useful, are not conclusive on the assessment of damages under this head. The court would have to consider the actual disabilities and their effect on the functions of the Plaintiff in his particular circumstances. Only in one of all the authorities cited to me was there an account given of the effect of the disabilities on the social and recreational aspect of the Plaintiff's life. I agree that the present case comes close to the top end of the "serious" catagory. The first-named Plaintiff is a young man similar to the Plaintiff in Wong Pui Kwan and Tang Pui Wah though his disabilities are slightly less serious than the Plaintiffs in those cases. The first-named Plaintiff is in a slightly worse situation than the Plaintiff in Tang Lin Fat. After considering all the authorities cited, I award $135,000.00 under this head.

Loss of Earning Capacity

9. It was submitted on behalf of the first-named Plaintiff that though it is unlikely for him to suffer any actual loss of future earnings, a global sum should nevertheless be awarded for loss of earning capacity due to the handicap he suffers in the labour market. However, Mr. Tam for the Defendant referred me to 2 authorities to the effect that in the absence of evidence establishing a real risk of such loss, no award should be made under this head. In Moeliker v. Reyrolle & Co. Ltd. [1977] 1WLR 132 it was held that before such damages could be awarded there had to be a substantial or real risk that the Plaintiff would lose his present employment during his working life and, if there was such a risk, the assessment of damages would depend on the degree of the risk, the time when the loss of employment might occur and the factors affecting the Plaintiff's chances of obtaining other employment. Browne L.J. said at page 142 that:

"I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages. 1. Is there a "substantial" or "real" risk that a Plaintiff will lose his present jobs at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialises, having regard to the degree of thet risk. The time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff's chances of getting a job at all, or an equally well paid job."

In that case the trial judge found that it was very unlikely that the Plaintiff would lose his job with the Defendants, but that it was a possibility; and that if the Plaintiff did lose his job with the Defendants it was unlikely that, in spite of his physical disabilities, he would fail to get another job, because of his skill and experience, his ability to divert to another trade and the comparative remoteness of the chance that he would be met by competitors of equal skill and experience. Nevertheless his award of 6 months' wages for this head was upheld by the Court of Appeal on those findings. The difficulty in the approach to an assessment under this head is succinctly summed up by Stephenson L.J. in the same case at pg. 144 when he said:

"In assessing damages under this head the judge has to engage in a double speculation, to measure, first, the plaintiff's chances of losing his job, and then his chances, if he loses it, of getting other employment. It is rather like the serious risk of slight injury or the slight risk of serious injury which the prudent employer has reasonably to foresee and to measure so as to decide what precautions are reasonably necessary to meet them. He has to turn his assessment of the two risks into appropriate action "on the ground" (or the floor); but the judge has to turn his into a suitable number of pounds sterling "plucked from the air." The extent of each risk varies with the circumstances of every case. If, as will be rare, both are negligible or fanciful (I avoid "speculative" because this head of damages can really be nothing else), no award should be made: Browne v. James Broadley Ltd. (unreported), July 16, 1975; a decision of Crichton J. If one or both are real or substantial, but neither is serious, the award should not be a token or derisory award, but should generally be in hundreds of pounds: Roberts v. Heavy Transport (E.C.C.) Ltd., May 14, 1975, Bar Library Transcript No. 213, a decision of this court, referred to by Browne L.J. The risk of a plaintiff falling out of his present job may be serious or slight, and so may be the risk of his losing much or little if he does fall out of it, because he may be expected to have little or much difficulty in getting equally or less well-paid work. If both risks are serious, the compensation should generally be in thousands of pounds. Here Boreham J. on a true reading of the passage in his judgment which Browne L.J. has read, assessed both chances or risks as "very remote indeed.". He was, in my judgment, entitled to take that view on the evidence. The plaintiff's employers were very unlikely to terminate his employment, at least until near the end of his working life; if and when they did, he was very unlikely to find a competitor of skill and experience to match his; if and when he did, he was very unlikely not to get a job where he could use another of his skills for a comparable wage. So the judge did not under-value these remote chances at £750. It was not a token award, even if measured against the wages the plaintiff is getting from the defendants, but a just award, and I would not interfere with it."

10. I was also referred to the case of Li Ping Sum supra where it was held that though the failure of pleading a claim for damages under this head did not necessarily bar the Plaintiff from recovering such damages, there were no exceptional circumstances that permitted the claim to be considered for the first time on appeal, and that, since there was no evidence before the court that the Plaintiff would suffer loss of earning capacity in the future, the award of $108,000.00 under this head was disallowed. Lord Fraser of Tullybelton said at pg. 183:

"Counsel for the respondent submitted that she was entitled to at least a conventional award under this head, without any evidence being required. But that submission rests on a misconception. A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claims falls to be evaluated. This 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. Ltd. [1977] IWLR 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 indefinitely, 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 the opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted."

11. I do not accept the Defendant's submission that in the absence of evidence of actual employment there can never be an award under this head. With respect that was not the principle as laid down in Li Ping Sum. Surely, it can not be that an infant Plaintiff who is not under any employment at the date of the assessment can never recover any damages under this head at all since he can never adduce evidence of his job as such to establish the relevant factors discussed in Moeliker's case. Such a Plaintiff can, in my view, still recover damages if he can establish he will suffer a prejudice in finding a job; or, if he can adduce sufficient evidence which the Court accepts, a prejudice in his intended career. The first-named Plaintiff gave evidence that he planned to join the civil service as an executive officer and I find that to be a most likely career a graduate from a law and administration course would pursue. I will take judicial notice that under the new pension scheme a civil servant's retirement age is 60. The first-named Plaintiff will be a graduate from Shu Yan College and he will be facing keen competition from graduates from the more prestigious universities such as the University of Hong Kong or the Chinese University for the said job. His chances of getting into the civil service is by no means a certainty. He said he has difficulties in typing. He is only 24 years old now and has a long working life ahead of him. In the highly competitive labour market at the executive level in the private sector, it is not unreasonable to anticipate that unless the first-named Plaintiff is a piece of exceptionally brilliant executive material (which on the evidence in front of me regarding his academic results tends not to suggest that he will be), he would suffer a degree of disadvantage due to his disability. After considering all the circumstances of the case, I am satisfied that the first-named Plaintiff will suffer a real and substantial risk of some disadvantage in competing with others in finding or keeping a job at the executive level. He may suffer less prejudice in the civil service, but his acceptance by the civil service is not certain at all. I am unable to say with any degree of confidence as to what future career is bestowed for the first-named Plaintiff so as to base an assessment of damages on a particular career as did the judges in the authorities cited supra. In Moeliker supra, the Court of Appeal upheld an award of £750 (i.e. 6 months' wages of the Plaintiff) when the risks were found by the trial judge to be "very remote indeed". The conventional global sum awarded in Hong Kong for a manual labourer under this head is $50,000.00 (e.g. Wong Pui Kwan supra). In view of the fact that the first-named Plaintiff will be a white-collar executive and not a manual labourer, the disadvantage he suffers will be less. I award the sum of $30,000.00 under this head.

Special Damages

12. All the special damages claimed by the first-named Plaintiff in the Amended Statement of Claim were agreed save the claim for loss of earnings prior to the assessment. The first-named Plaintiff claimed loss of earnings from 23rd June 1981 to 31st August 1984 i.e. from the date of accident until time when he resumed study at school. It was submitted it was reasonable for him not to work or study during that period. It was further submitted that the monthly wages in June 1981 should be $50.00 x 26 days = $1,300.00 ($35/day salary + $15/day being value of free meal). The Defendant submitted that the monthly wages should be $37.00 x 26 days = $962.00 as agreed by the first-named Plaintiff in the Employees' Compensation Agreement on page 7 of the Agreed Bundle. The Defendant submitted only 2 months' wages should be awarded under this head as it was only a summer job and the first-named Plaintiff's evidence was that he would continue his study in September 1981 but for the accident. The Defendant conceded that the first-named Plaintiff is entitled to 2 months' wages i.e. $1,924.00, though it should really be one month and 7 days as from 23rd June 1981 to 31st August 1981. I accept the Defendant's submission that the monthly wages of the first-named Plaintiff was $962.00. I do not accept that the failure of the first-named Plaintiff to return to study after the expiration of the sick leave on 30th March 1983 was reasonable or could fairly be attributed to the injury. No doubt the launching of the first-named Plaintiff's career was at least postponed by a period of 24 months i.e. 2 school years (from 1st September 1981 to 31st August 1983). However, in the absence of any reliable evidence as to what amount in terms of actual loss of wages resulting from this delay, coupled with the fact that he has entered upon a new career path as a result of the accident which would bring him a higher income; it is not possible to assess any actual loss in respect of such a delay. I therefore award the sum of $1,924.00 being 2 months' wages at $962.00 per month for loss of earnings as conceded by the Defendant.

13. In the premise, the first-named Plaintiff is awarded $103,298.16 as follows:-

14. Special Damages

15. General Damages

16. Interest will run on the special damages at the rate of 3% per annum from the date of the accident to the date of this assessment and on general damages (save for loss of earning capacity) at the rate of 2% per annum from the date of the writ to the date of this assessment. I will hear the parties on the question of costs.