Wong Yin Wa v. Chan Shing

HCPI -1125/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1125 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of personal injuries compensation consequential upon the award of interlocutory judgment on liability entered on 27 March 2001.

Personal Particulars of the Plaintiff

2. The plaintiff was born in the mainland on 5 October 1960. She received primary education and worked as a sewing worker in the mainland until July 1997 when she came to Hong Kong to join her husband. In December 2000 she was divorced from her husband and was granted custody of her two children, aged 8 and 12.

3. Prior to the accident the plaintiff worked in a restaurant.

The Accident and the Plaintiff's Injuries

4. The plaintiff and the defendant were co-workers at the same restaurant. The defendant was a cook while the plaintiff was a dishwasher. On 2 June 1999 the plaintiff and the defendant had a row in the kitchen. At the time the plaintiff was holding a long spoon and fork whilst the defendant was holding a chopper. In the course of the struggle the plaintiff's middle finger on her left hand was cut by the chopper held by the defendant. The plaintiff was taken to the Tuen Mun Hospital on the same day.

5. The defendant was subsequently prosecuted and convicted of the offence of assault occasioning actual bodily harm and was sentenced to community service for 60 hours and a fine of HK$1,000.

6. The defendant contended that the plaintiff was also negligent in bringing about the injuries upon herself as it was the plaintiff who rushed towards him in the course of the fight. As the issue of liability has been determined in the interlocutory judgment, I do not feel it is within my jurisdiction at the assessment hearing to re-open the issue of liability to decide if there has been contributory negligence on the part of the plaintiff in bringing about her injuries.

7. The plaintiff was attended to by the medical practitioners at the Tuen Mun Hospital and was confirmed to have suffered the following injuries:-

(i) a 2cm U-shape cut over the dorsum of her left hand with the left 3rd proximal phalangal joint exposed;

(ii) a complete cut of the left middle finger extensor tendon; and

(iii) the detachment of cartilage of the left third metacarpal head.

8. The plaintiff was given a tendon repair operation under general anaesthesia. The cartilage on her 3rd knuckle joint could not be saved and was removed. She was hospitalized for 2 days and was discharged on 4 June 1999. After her discharge, she attended the orthopaedic and traumatology department for 3 sessions of out-patient treatments between June and August in 1999. She further attended 12 sessions of physiotherapy treatment and 12 sessions of occupational therapy treatment between June 1999 and July 2000.

9. Orthopaedic surgeon Dr. Lee Po-chin examined the plaintiff in December 1999 and found the skin surrounding her wound to be slightly red and swollen. Dr. Lee confirmed the repaired extensor tendon of the plaintiff had healed at the time of inspection. The x-ray film showed that a portion of the articular surface of the 3rd metacarpal head was also removed because the fracture involving the articular surface was not amenable to fixation and the fracture fragment bearing the articular cartilage has to be removed together with the cartilage. This resulted in incongruity of the third metacarpal-phalangeal joint; which accounted for the residual pain the plaintiff experienced when she flexed her left palm, the stiffness of her left middle finger and reduction of her left hand grip power.

10. Dr. Lee measured the hand grip power of the plaintiff and assessed her loss of left hand grip relative to her right hand to be 53%, resulting in a 12% impairment of the whole person. The plaintiff is a right-handed person. Dr. Lee agreed there ought to be a difference in the handgrip power between the dominant and servient hand even in the absence of the injury. As there was no documented adjustment to the dominant and servient hand grip power, he simply made numerical calculation without any adjustment.

11. In Dr. Lee's opinion the plaintiff would be able to return to the work market about 2 months afterwards.

12. According to Dr. Lee the plaintiff has a high chance of developing symptomatic post-traumatic osteoarthritis on her left third metacarpal-phalangeal joint on account of the incongruity of her joint. In Dr. Lee's advice, when significant pain develops in the plaintiff's metacarpal-phalangeal joint the plaintiff would need a fusion operation to trade her pain for a stiff knuckle. The fusion operation, if performed in the private sector would likely cost HK$25,000 - HK$30,000 and the plaintiff would require a convalescent and rehabilitation period of 3 months.

13. Prior to testifying in court, Dr. Lee conducted a brief physical examination on the plaintiff's left hand. Crepitation was still detected though there was an increase in her flexion power. Post-traumatic osteothetis was not detected.

Compensation for pain, suffering and loss of amenities

14. In the incident the plaintiff had a tendon, cartilage and a portion of the articular surface of her left middle finger cut. Her tendon was repaired in the operation. She was hospitalized for 2 days and was granted sick leave for about 3 3/4 months from the day of the events on 2 June 1999 to 22 September 1999. Her metacarpal phalangeal joint at her left hand became incongruous on account of the missing portion of the articular surface and the cartilage of her 3rd finger at the knuckle.

15. After her recuperation period the plaintiff still experienced pain in her left palm when she was required to flex her middle finger backwards. Her left hand grip power dropped by 53% relative to her right hand grip. She was assessed to have suffered 12% of impairment of her whole person. She testified that she had difficulty in coping with her household chores as she found it hard to exert force with her left hand.

16. I do not find it necessary to refer to the decisions cited to me as no two cases are alike and most of the cases cited by counsel on behalf the plaintiff were cases dealing hand injuries of a more serious nature. Taking into account the facts before me, considering other hand injuries decisions such as Chan Wai Man v Luk Shuet King HCA-5088 of 1979 , Cheung Luk v Lo Kwok Hung HCA 4770 of 1980; To Kin Shan v Chan Kwok Leung HCA. 4123 of 1982 and Lee Wong Sin v Wong Shek Mei HCPI-769 of 1995, Ip Yiu-fai HCPI-445 of 1998 and Ng Tat Ping HCPI-646 of 2000, I am prepared to award the plaintiff a sum of HK$200,000 for her pain, suffering and loss of amenities.

Loss of Accrued Earnings

17. Prior to the accident the plaintiff was paid HK$7,000 a month by the restaurant. Counsel on behalf of the plaintiff was prepared to accept, in light of the present economic climate, salary adjustment on account of inflation was unlikely. The defendant, on the other hand, contended that the restaurant for which he and the plaintiff used to work had ceased operation in June 2001 and the salary of the workers had been reduced prior to its cessation. No evidence was adduced by the defendant on the scale of reduction of the employee's wages as the defendant was also dismissed as a result of the incident.

18. The plaintiff was granted sick leave for 3 3/4 months from 2 June 1999 to 22 September 1999. At the expiration of her sick leave period the plaintiff was unable to return to the restaurant for work for it was the policy of the restaurant not to hire employees who engaged in fights at work. The plaintiff testified that she has made attempts to look for alternative employment such as vegetables hawking. She could not cope with the work as she was unable to use her left hand to assist in carrying heavy items. When asked why she did not return to her garment sewing trade she said she was tired of the trade and was no longer interested to work as a seamstress. Dr. Lee formed the opinion that the plaintiff was capable of taking up sedentary type of work which does not require the exertion of both hands and the plaintiff was capable of returning to the work market about 2 months after her assessment in December 1999.

19. While accepting that the plaintiff would have suffered some disability in the labour market with the decreased hand grip of her left hand, there is no reason why she could not go back into the sewing industry, though I accept the market of the garment manufacturing industry is relatively small after the migration of the manufacturing operation to the north.

20. The data contained in the September 2001 quarterly report of the wage and payroll statistics compiled by the Census and Statistics Department shows the average monthly income of the general workers in the garment and restaurant industry ranged from HK$6,331 to HK$7,291. The plaintiff was assessed to have suffered 12% impairment of her whole person. The plaintiff is a right-handed person, bearing in mind her injury and the limitation to her use of her left hand on account of the knuckle injury, I accept that the plaintiff is unlikely to be able to command the pay of a normal worker. I accept the plaintiff counsel's contention that the income she would likely be able to fetch would be about HK$4,500.

21. The plaintiff's inability to obtain a job is likely to be occasioned mainly by the economic recession. According to medical opinion she should have the ability to resume work by February to March 2000. Hence the plaintiff's loss of accrued income would be HK$107,375 [$7,000 x 9 months for her recuperation period between from 2 June 1999 to end of February 2000 + ($7,000-$4,500) x 17 3/4 months from March 2000 to the date of the hearing on 21 Nov 2001].

Loss of Future Earnings

22. The plaintiff was aged 41 at the time of the assessment hearing. I accept a multiplier of 12 was about right. Her loss of future earning would be HK$373,500 [ ($7,000-$4,500) x 12 months x 12 and $4,500 x 3 months for her rehabilitation period during her hand fusion operation].

Loss of Mandatory Provident Fund

23. The plaintiff's drop of her income gave rise to a loss of her employer's contribution in her mandatory provident fund since December 2000 in the sum of HK$19,469 [5% ($7,000-$4,500) x 11 3/4 months from December 2000 to 21 Nov 2001 + 5% ($7,000-$4,500) x 12 x 12].

Loss of Earning Capacity

24. With the plaintiff's partial loss of her finger mobility and left hand grip I do accept the plaintiff would be less competitive and be in a more disadvantageous position in the labour market. I award a sum of HK$15,000 for her loss of earning capacity.

Special Damages

25. From the medical records supplied by the hospital authority, I accept the plaintiff to have spent a sum of HK$444 in respect of her medical consultations (HK$136 for her 2 days of hospitalization and HK$308 for 4 sessions of physiotherapy and occupational therapy, the fees of which were not waived by the Hospital Authority).

26. There was some dispute between the plaintiff and the defendant about the amount of travelling expenses. I accept that she has spent HK$100 taxi fare on the day of her discharge on 4th June 1999 and about HK$20 for each round trip she visited the hospital and the clinic for her treatments, being a sum total of HK$640 [$100 + (27 visits x $20)].

27. Though she produced no receipt in respect of the tonic food she consumed I accept she did take nourishing food for her recuperation and am prepared to award her a sum of HK$1,500.

28. The items of special damages awarded to the plaintiff were as follows:-

(a) medical consultation fees	444
(b) travelling expenses	640
(c) tonic food	1,500
	HK$2,584

Future Medical Expenses

29. The plaintiff has a high potential to develop symptomatic post-traumatic osteoarthritis which necessitated a future medical expense of HK$25,000 - HK$30,000. I am prepared to award her the median sum of HK$27,500.

Employee Compensation

30. A sum of HK$80,000 employee compensation has been awarded to the plaintiff.

Award

31. I accept the following to be reasonable and fair assessment of the plaintiff's damages :-

(a)	Pain, Suffering and Loss of Amenities	200,000.00
(b)	Loss of accrued earnings	107,375.00
(c)	Loss of future earning	373,500.00
(d)	Loss of earning capacity	15,000.00
(e)	Loss of Provident Fund	19,469.00
(f)	Future Medical expense	27,500.00
(g)	Medical, travelling and tonic food expenses incurred	2,584 .00
		HK$ 745,428.00
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I award the plaintiff the sum of HK$ 665,428 compensation for the injuries she sustained as a result of the accident of 2 June 1999, net of the employee compensation she received.

32. I award interest on the pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. Interest on the loss of accrued earnings, medical, travelling and tonic food expenses is granted at half the judgment rate from the date of the accident to the date of judgment.

33. I also grant order nisi on costs, to be taxed if not agreed, in favour of the plaintiff against the defendant for the present assessment hearing. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.