LIN CHO CHAU v. YCY DESIGN & ENGINEERING LTD

HCPI 245/2007

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 245 OF 2007

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J U D G M E N T

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1.  The plaintiff claimed damages for injuries he sustained in an industrial accident.  The defendant was absent from the trial.  The defendant was also absent in the last pre-trial review on 29 January 2008.

Liability

2.  The plaintiff was a carpenter/interior decorator by occupation.  On 13 December 2004, he responded to the defendant’s newspaper advertisement for a carpenter.  On 14 December 2004, he went to work for the defendant in a decoration project in a house in Hong Lok Yuen, Tai Po.  He worked there on every working day. 

3.  On 20 December 2004 when he returned there, he and a colleague surnamed Yip were told to go to another place to work.  They were driven to Greenery Plaza, Tai Po.  They were led to a flat there and told to remove the parquet flooring.  Some of the defendant’s tools at Hong Lok Yuen were also brought there.  The tools included a handheld electric cutter for cutting wood, but its protective guard had already been removed.

4.  They then started working.  The plaintiff used a lever and a screwdriver for the job and Yip used the electric cutter.  At about 11:00 a.m., the fuse of the cutter blew out.  The plaintiff took out a fuse from another tool and gave it to Yip for replacement.  The plaintiff then continued with his work.  Suddenly the cutter jumped up from the floor and struck his left wrist.  Since he was attending to his work at that time, he did not see how the cutter had jumped up.  He believed that Yip had not switched off the cutter when replacing the fuse.  Yip had merely taken the plug out of the socket.  After the fuse was replaced, Yip then put the plug back to the socket.  Since the cutter had not been switched off, it darted to action when the plug was put back.  As it was lying on the floor unattended, the mechanics somehow caused it to jump up and strike the plaintiff’s left wrist.  Yip had also given the plaintiff no warning when he put the plug back to the socket.  Obviously Yip had forgotten that the cutter was still switched on. 

5.  The plaintiff later also learnt that Yip did not have an unexpired certificate of safety training as required under section 6BA of the Factory and Industrial Undertaking Ordinance, Cap. 59 (the “F&IUO”). 

6.  After the accident, the plaintiff was taken by an ambulance to Alice Ho Miu Ling Nethersole Hospital for treatment.  He was diagnosed to have a 5 cm deep cut wound on the left forearm.  There were visible cuts of 3 tendons.  He also complained of decreased sensation of the thumb.  X-ray revealed a break of the cortex of the left distal radius.  The attending doctor opined that the injury was compatible with infliction by sharp object.  The plaintiff was then transferred to Prince of Wales Hospital (“PWH”) for treatment.

7.  The defendant denied liability.  The defendant asserted in its defence that the plaintiff was not its employee on the day of the accident but was employed by one Madam Ho, a former designer of the defendant.  One Mr Yu, a purported director of the defendant made a witness statement.  He admitted that the plaintiff had been working for the defendant at the Hong Lok Yuen site.  He, however, said that on the date of the accident, the plaintiff had been arranged by a contractor to work for Madam Ho at the Greenery Plaza site.  The defendant has also produced a statement by Yip which said something similar.  Since the defendant did not appear at the trial, I would pay no regard to its defence or anything said by its proposed witnesses in the witness statements in support of it.

8.  After the accident, Madam Ho was prosecuted by the Labour Department for two offences.  The first one was for infringement of section 6BA(5)(a) of the F&IUO for having employed Yip who did not possess an unexpired certificate for safety training.  The second one was for infringement of section 44(1)(c) of the Construction Site Safety Regulations because not every dangerous part of the electric cutter had been effectively guarded. 

9.  Madam Ho was prosecuted probably because of her own admission of being the plaintiff’s employer.  She was found guilty of both charges also on her own admissions.  She had also filed a Form 2 with the Labour Department claiming that the plaintiff was her employee who had suffered an accident at work.  I would take into account of the fact that the Labour Department regarded that there were two breaches of the statutory provisions on safety in the Greenery Plaza site.  I would however pay no regard to Madam Ho’s admission of her being the plaintiff’s employer.

10.  Though the plaintiff was not cross-examined, I find his evidence compatible with and corroborated by the other evidence he produced in this action.  I accept his evidence.

11.  Based on the plaintiff’s evidence, the diagnosis by the doctor at the Nethersole Hospital and the Labour Department’s opinion that two statutory provisions on safety had been breached, I find that the plaintiff was indeed injured by the electric cutter in the way he described.  I also find that at the time of the accident he and Yip were both employed by the defendant.  The only change for the plaintiff on that date was that the defendant had arranged him to work at the Greenery Plaza site instead of the Hong Lok Yuen site.

12.  I further find that the accident was caused by Yip’s negligence.  I accept the plaintiff’s conjecture that the cutter had injured him because Yip had left it switched on and unattended when replacing the fuse.  Otherwise, I cannot understand how the cutter would have jumped up automatically.  Yip was obviously negligent in not switching off the cutter before putting the plug into the socket again.  Since Yip was then working at the site as the defendant’s employee, I therefore hold the defendant vicariously liable for Yip’s negligence. 

13.  I also find that the defendant had infringed the two statutory safety provisions for which summonses had been laid by the Labour Department against Madam Ho.  In making this finding, I accept that the defendant was the contractor in charge of the site at Greenery Plaza and Madam Ho was not.  I further hold the defendant liable for the plaintiff’s injury because of Yip’s negligence and the infringements of these statutes.

Medical Condition

14.  The diagnosis of the plaintiff by PWH was that he had incomplete crack fracture of the left radius, 100% cut of 5 muscles including one that extended from the lower end of the humerus to the lower end of the radius which is a flexor of the elbow joint, 100% cut of a radial nerve and 95% cut of the median nerve.  An operation of exploration, tendon repair and nerve repair was carried out on the same day.  He was discharged two days later on 22 December 2004 and was referred to physiotherapy and occupational therapy.  Owing to the stiffness of the finger joint and persistent numbness over the index and middle fingers, a second operation to release the tendons and the radial and median nerves was done on 23 April 2005.  He was then admitted to the Department of Orthopaedic and Traumatology of PWH on 25 to 29 April 2005 for intensive physiotherapy.

15.  He was given physiotherapy for wrist and finger mobilization, scar management and grip strengthening exercise.  He also had electrical stimulation for muscle control.  These were to improve his finger control and make good the loss of protective sensation of the thumb, index and middle fingers and the palm.  He attended 7½ months of treatment, but progress was fair.  The left wrist mobility and grip strength were decreased.  The protective sensation of the three fingers was still diminished.

16.  He also attended occupational therapy.  The sensation chart also showed diminished protective sensation of the three fingers of the palm.  The tendons had healed but were weak.  He was able to make a full fist and perform thumb abduction.  He attended a four-month course regularly.  He was punctual and co-operative.  There was progress in restoring the affected hand functions particularly after the second operation.  However, the affected wrist range of motion was still limited by the scars over the forearm.  (He has a 10.5 cm transverse scar at volar surface over distal 1/3 of forearm and a 4 cm longitudinal scar joining the radial edge of the transverse scar.  The radial part of the transverse scar was tied and attached to the underlying structures.)  He could make a tight fist, but grip and pinch strengths were limited.  He thus had difficulty in performing daily tasks like grasping tight jar lid during opening, holding rice bowl tightly and stably, pinching out keys and coins out of pocket of his pants and pulling up pants after toileting.  The occupational physiotherapist opined that he could not cope with the job demand of an interior decorator.

17.  He also produced an assessment report by Dr Lam Yan Kit dated 5 December 2006.  Dr Lam noted severe muscle wasting over the left upper limb.  There was significant decrease in light touch sensation over the distribution of medial and superficial radial nerves.  Left thumb abduction was also weak.

18.  He told Mr Lam that he had weakness, stiffness and numbness of the left wrist and left hand.  Dr Lam found his complaints compatible with the diagnosis of the injuries.  The stiffness was likely due to a combination of muscle damage, scaring and nerve damage.  Dr Lam also assessed his impairment of the left upper extremity at 62% which was equivalent to 37% impairment of the whole person.  Dr Lam also assessed his loss of earning capacity at 46%.  The Employee’s Compensation Board however assessed his loss of earning capacity at 24%. 

19.  Dr Lam gave a supplemental report on 3 April 2008 and advised against further surgery for a number of reasons.  The reasons appear to be sound.

Quantum

20.  The plaintiff was born on 18 August 1958.  He is now 48 years old.  His left (non-dominant) wrist was injured on 20 December 2004.  He was given sick leave to 27 December 2006.  Before the accident, he worked as a carpenter/interior decorator for the defendant.

PSLA

21.  Counsel’s opening submissions referred to Chan Kai Wing v Leung Fat Kee Engineering Co. Ltd, HCPI 1163 of 1999 and Ho Kai Hong v Cheung Kok, HCPI 93 of 2002.  Chan was a mechanic.  On 3 September 1994, he suffered serious injury to his dominant right hand while operating a planning machine without protective guard.  He had a deep front and back transverse cut of the right hand, decreased movement of the ring and little fingers, fractures of the 3^rd and 4^th metacarpal bones; dislocation of the 5^th metacarpal-phalangeal joint; crushed 2^nd, 3^rd and 4^th web interossie; crushed digital nerves to the middle ring and little fingers and total loss of hypothenar muscle.  Chan underwent two operations.  On the day of accident, he received exploration and Kirshner wire fixation.  On 15 September, he had debridement.  On 29 September 1994, he had debridement and skin grafting of 3 cm x 2 cm at the base of the 4^th and 5^th fingers.  There were scars of operation at the palm centre and from the proximal part of the palm to the right wrist.  He was hospitalized for 23 days.  He had 6 outpatient treatments, 57 sessions of physiotherapy and 50 sessions of occupational therapy.  He was assessed to have 15% impairment of the whole person and 20% loss of earning capacity.  His sick leave was from 3 September 1994 to 7 February 1995.  His right hand was weak and his fingers have lost their dexterity.  Master Lung referred to a number of cases and concluded that he was in the serious injury category.  His PSLA claim was assessed at $450,000.  It seems that his injuries were more serious than the plaintiff’s but his recovery was less eventful and more successful.  Since his disability was on the right dominant hand, its effect on his enjoyment of the amenities of life should be more significant.

22.  In the second case, Ho was attacked by the defendant on 30 March 2000 and sustained injuries to his left (non-dominant) arm and wrist.  He had a 5 cm oblique chop wound at the left distal forearm and a cortical break at the distal left radius.  He also had multiple cuts of the extensor tendons on the forearm and a cut of the superficial branch of the radial nerve.  The tendon and nerve were repaired.  He was discharged on the next day with a splint on the wrist and thumb which was removed later.  He attended physiotherapy.  He complained of numbness, pain when pressed, stiffness, tightness of the arm and diminished movement of the fingers.  He was unable to play musical instruments which had been his hobby.  He was a sole proprietor of a pork shop.  He returned to it about two years later, but was unable to continue with the pre-accident manual work as he could not hold heavy pieces of meat with his left hand.  After reviewing a number of cases, Master Shum concluded that he was below the serious injury category and assessed his claim for PSLA at $380,000.  His case was quite close to the plaintiff’s but he appeared to have recovered better. 

23.  Counsel on the second day produced three more cases for my reference.  In Tsang Wah Lam v Sun May King Publishing Company & Anr, HCPI 843/2000, Tsang was a mechanic who was injured in an industrial accident.  There was major loss of the muscle bulk of his right dominant forearm.  His wrist was stiff.  His right hand thumb was fused at the interphalangeal and metacarpal-phalangeal joints.  There was peritrapezium axial disruption of the carpus of the right thumb.  The movement of the basal joint of the thumb and the joints of the other fingers were limited.  There was partial loss of sensation of the fingers.  He had to make adjustment in writing.  He was unable to use heavy tools like drills or harmers or carry heavy weight with his right hand.  The right hand had become an assisting tool to the left hand.  There were ugly scars on the right forearm and right hand and ugly defect on the left hip and thighs.  He was embarrassed and had developed a complex about the scars.  He could not grip with his right hand.  He could not used chopsticks or write properly.  The injury also affected his sporting interest.  Deputy Judge Longley concluded that he was at the upper end of the serious injury category and awarded him $550,000 for PSLA.  His case was more serious than that of the plaintiff.

24.  In Ng Tim Yip v Chan Ho Kin, HCPI 948 of 2005, Ng was an apprentice who had his right dominant right hand crushed in an industrial accident on 28 May 2003.  He had an open fracture of the proximal phalangeal joint of the index finger, closed fracture of the proximal phalangeal of the right middle finger and traumatic amputation of the right thumb.  Am emergency operation was performed which involved surgical debridement, wound suture, primary arthodesis of interphalangeal joint of right thumb to preserve the bony length, K-wire splintage to the interphalangeal joint and conservative treatment of the stable proximal phalange.  On 5 June 2003, he had free vasecularised big toe wrap transfer with distal phalange of the big toe on the right thumb and revision amputation of the right index finger for post-traumatic gangrene.  He also had a skin graft to the big toe.  He was then referred to psychological and psychiatric treatment.  He also had physiotherapy and occupational therapy.  His impairment of the whole person was assessed at 20%.  His right hand function was significantly impaired with stiffness, weakness and reduced sensation of his reconstructed thumb.  He still experienced pain and discomfort for loss of the part of the index finger at the proximal phalangeal joint and transplant of the distal phalange of his right big toe.  He could not perform fine manipulative work or carry heavy weight.  His walking and running on unlevelled ground was affected too.  He had post-traumatic stress disorder, adjustment disorder and depressed mood.  After treatment, he still had adjustment disorder.  Suffiad J assessed his PSLA at $500,000.  His case is also more serious than the plaintiff’s. 

25.  The last case is Lam King Tong v Kam Hung Construction (Holdings) Ltd & Anr, HCPI 1144 of 2003.  On 2November 2000, Lam suffered serious injuries to his forearm when he tried to remove some oil stuck in a malfunctioning conveyor belt.  His right hand and forearm were caught and crushed.  He had a 5-cm crushed wound over his distal forearm with cut muscle and protruding fracture bone and nerve and muscle tear.  The fractures were reduced and fixed with plates and screws.  He later developed complex regional pain syndrome I (CRPS I) which produced a burning pain without simulation or movement that occurred beyond the territory of a single peripheral nerve.  He also developed stiffness to the metacarpal joints of his ring and little fingers and ulna nerve palsy.  In May 2001, he had an operation to remove the implants on the radius and ulna, release of scarring and of adhesion of tendons, excision of neuroma and re-anastomosis of the ulna nerve.  In April 2002, he had another operation to remove the implants on the ring and little fingers, capsulatomy and tendons transfer and a final operation to tendon transplants and release of the metacarpal joints.  He continued to received physiotherapy and occupational therapy.  The fractures united but there was residual stiffness and the wrist and fingers joints with minor residual signs and symptoms of CRPS I.  The major disability was from the ulna nerve palsy which did not show significant improvement after excision of neuroma and re-anastomosis.  This resulted in considerable impairment to the right hand, which included wasting of small muscles, weakness of handgrip and reduction of sensation on the little and ring fingers.  He also suffered from depression and anxiety.  It was suggested that two years of private psychiatric treatment could benefit him.  The impairment of the whole person due to physical disabilities was assessed at 25% and the impairment due to psychiatric disability was assessed at 10%.  Deputy Judge Mayo assessed his claim for PSLA at $600,000.

26.  After reviewing these cases, I assess the plaintiff’s PSLA claim at $430,000.

Pre-trial Loss of Earnings

27.  After the accident, the plaintiff was employed as a construction site casual worker on two occasions.  His duties were to clean up the rubbish from the site.  The rubbish included wooden pieces, soil, rubbles and bricks.  Since his left hand had no strength, he was only employed for one day on both occasions and was not asked to return to the job again.  He also tried the job of domestic assistant on two occasions.  It was a cleaning and cooking job for a household.  Owing to lack of strength of his left hand, he was only employed for ½ day on both occasions.  He earned a total of $940 from these four employments. 

28.  He was injured on 20 December 2004.  It has been 41 months since then.  When he was working for the defendant as a carpenter/interior decorator, his daily wages were $500.  He was employed on 14 December.  Before that, he had been unemployed for over two months.  For interior decorators/carpenters who are daily paid, they may not expect to have work on everyday.  On the other hand, they may occasionally be asked to work overtime.  The plaintiff’s counsel submitted that I should treat the plaintiff’s monthly income in December 2004 as at $13,000 which should now be increased to $15,000.  But no evidence of the income of workers in similar jobs or statistics of income has been produced.

29.  The Plaintiff was a diligent worker.  He worked on all days when work was available.  Taking into account of the vicissitudes of life, I am prepared to treat his monthly income from the date of accident till now as at $13,000 per month.

30.  His pre-trial loss of income and MPF is at [($13,000 x 41) - $940] x 1.05 = $558,663.

Loss of Future Earning Capacity

31.  The plaintiff can work as a carpark attendant or similar jobs earning about $6,000 per month.  Assuming that he will be able to find such a job within a reasonable time, given his disability, there is a real risk that he may lose it at some stage.  He will certainly be less competitive in the market than an able body.  I assess his claim under this head at one year’s loss of earnings at ($13,000 - $6,000) x 12 = $84,000.

Future Loss of Earnings and MPF

32.  The plaintiff is now 48 years old.  At the time of the accident, he was 45.  I apply the multiplier 9.  The future loss of earnings is at ($13,000 – $6,000) x 12 x 9 x 1.05 = $793,800.

Special Damages

33.  The plaintiff claims the following items:

(a)     Outpatient treatment at government hospitals        $2,700

(b)    Bone setter treatment                                           $1,200

(c)     Chinese herbalist treatment                                  $4,750

(d)    Travelling expenses                                             $2,000

34.  I allow the 1^st and 4^th items.  For the 2^nd and 3^rd items, there is no expert evidence saying that such treatment is beneficial.  I would instead allow $3,000 for tonic food.  The plaintiff also claims $1,000 for future outpatient treatment expenses and I allow it.

35.  The total sum allowed is $2,700 + $2,000 + $3,000 + $1,000 = $8,700.

36.  After the accident, the plaintiff received three payments totalling $14,950 as his income from 20 December 2004 onwards.  I take these as his employees’ compensation payments though they were purportedly paid by Madam Ho.

37.  The total sum award is: ($430,000 + $558,663 + $84,000 + $793,800 + $8,700) – $14,950 = $1,860,213.

38.  I also order that there be interest at 2% per annum for the PSLA award from the date of issue of the writ to the date of judgment and interest at half of the judgment rate for the pre-trial loss of earnings and special damages from the date of the accident to the date of judgment.

39.  I further make an order nisi that the defendant do pay the plaintiff the costs of this action.