YAN FAI WAH v. KONG SEUNG CHUEN AND ANOTHER

HCPI No.664 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.664 OF 1998

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Assessment of Damages

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1. This assessment of damages arises out of an accident at work at Flat B, 4/F., Block 4, Phase I, Park Versailles, Tai Po, New Territories ("the Premises") on 15th June 1996. The 2nd Defendant was the main contractor responsible for the internal decoration work at the Premises. He sub-contracted the work to the 1st Defendant, who in turn employed the Plaintiff to work as a carpenter there.

2. The writ was issued on 23rd June 1998. The Defendants having failed to file any notice of intention to defend, the Plaintiff duly obtained interlocutory judgment against them on liability with damages to be assessed.

3. At the hearing before me, the 1st Defendant was absent. The 2nd Defendant did not challenge the evidence of the Plaintiff and his medical expert, one Dr. Tsoi Chi Wah ("Dr. Tsoi"). Nor did he adduce any evidence to contradict the Plaintiff's case.

Injury

4. At the time of the accident, the Plaintiff was using a circular saw to cut a slot in a wooden plank to a size of 10 inches by 2 inches. There was no crown guard to fence the teeth of the circular saw. Nor was any riving knife provided for the saw. While the Plaintiff was cutting the wood, his left thumb was amputated by the saw at the middle position of distal phalanx.

5. After the accident, he was rushed to the Prince of Wales. On the same day, an emergency operation was performed but the attempt to replant his thumb failed. The stump was closed. He was discharged from the hospital the following day. He subsequently attended follow up treatment when it was discovered that he had developed hypersensitivity of the stump. He then underwent a course of out-patient occupational therapy until July 1997. He was further granted sick leave until 22nd July 1997.

6. According to the medical report dated 11th November 1997 prepared by Dr. Tsoi, the Plaintiff suffers from loss of distal to interphalangeal joint, loss of active motion of the said joint, hyperaesthesia on touching and percussing stump end. He has difficulty in handling and picking up fine objects such as screws and pins. Degenerative changes and mild subluxation were subsequently found over the metacarpal joint. This explains the stiffness of the remaining stump of the thumb and numbness over stump end and weakened left hand grip.

7. In Doctor Tsoi's opinion, as a result of the injury sustained at the accident, the Plaintiff suffers from 11% impairment of the whole body and 23% loss of earning capacity (20% for amputation and 3% for the metacarpal joint stiffness).

8. The Plaintiff's daily routine is adversely affected by his injury. He has difficulty in holding newspaper or a book for very long. He also finds it difficult to hold a bowl of rice close to his month or pick up a glass of water with his left hand. He further complains that if his thumb accidentally hits against any object, the pain will last for a few minutes. He feels pressure inside the thumb. When there is a drop in the temperature, his thumb is painful.

Employment History

9. The Plaintiff was born in the Mainland on 17th March 1955. He was 41 at the time of the accident. He is now 44.

10. He came to Hong Kong in 1978 and, after working in various fields, began to work as a full time carpenter in or about 1981. He had since then acquired considerable experience in carpentry and worked in many constructions sites and flats in Hong Kong. As I understand the Plaintiff's evidence, he was a daily waged worker and had worked for different employers on a job by job basis. Whenever a job was available, the employer would contact him. In the last few years, he had worked for the 1st Defendant on numerous occasions. He used to work on average 26 days a month. He began to work at the Premises on 8th June and continued on 9th, 13th and 14th, having taken leave from 10th to 12th. The accident happened on 15th. His daily wage was then $680.

11. Prior to the accident, he was in good physical condition. Now, he can no longer work as a carpenter. In paragraphs 33 to 41 of his witness statement, he explains in detail the reasons why. In late 1997, he did work as a carpenter to perform certain decoration work in a shop in Lam Tin. However, he found out that he had difficulty in doing the job. Eventually, he resigned after about 10 days. For the work there, he was paid $750 per day. Having considered his evidence in this aspect, I accept that after the accident, the Plaintiff cannot work as a carpenter any more but may work as a waiter, cleaner or messenger, as suggested in paragraph 42 of his witness statement.

12. In response to my questions, the Plaintiff admits that he had been unemployed between November 1995 and June 1996. During this period, he had worked for several days only. This was because no job had been offered to him and he could not find any. It is unfortunate that this aspect of the Plaintiff's case was not revealed until I seek to clarify his evidence. It should have been disclosed in both the Revised Statement of Damages and his witness statement.

13. After the accident, despite registration with the Labour Department and his own effort, he could not find any employment. He and his family now live on public assistance.

Pain, Suffering and Loss of Amenities ("PSLA")

14. Mr. Wong, Counsel for the Plaintiff, submits that his injury falls short of the "serious injury" category as defined in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. "This is the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.": per Cons J.A. at p.659.

15. Mr. Wong further refers to the following cases.

(1) Tsang Chin Keung v. Lo Tat Kong trading as Hung Kwong Glass Works & Another P.I. No.806 of 1995 [1996] HKLY 669 where the plaintiff sustained injury to the upper part of his left (preferred) hand from an electric saw in the course of his employment as a carpenter with the defendant. He received a large deep cut to the thumb at an angle across the inside of the fleshy part of the hand. He suffered from loss of sensation and numbness in left hand, loss of strength in the hand, constant pain, occasional throbbing and loss of sensation in the left forearm at the site of the nerve graft. The master placed his injuries slightly below the "serious injury category and awarded HK$365,000 for PSLA.

(2) Ma Kam Yeung v. Fu Hay Kin & Others P.I. No.769 of 1997 [1998] 2 HKLRP 615 where the plaintiff, also a carpenter, used a bench-mounted circular saw to cut a knotty piece of timber. His left thumb came into contact with the cutting edge of the blade and was almost amputated, but re-attached in an emergency operation. He had a 60% impairment of his thumb and 13% disability of the whole person, which was both permanent and untreatable. Deputy Judge Gill held that his injury fell below the "serious injury" category and awarded HK$350,000 for PSLA.

16. Mr. Wong submits that, following the approach in Lau Che-ping v. Ho Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650, CA, at 653, an award similar to that in Ma Kam Yeung should be made.

17. I accept that the Plaintiff's injury falls below the "serious injury" category. For this category, the current level of award ranges from HK$400,000 to $540,000: see Chan Pui Ki v. KMB [1995] 3 HKC 733, approved by Court of Appeal in Leung On & Another v. Chan Pui Ki [1996] 2 HKC 565. Having regard to this and the above authorities, I accept that for PSLA an award of HK$350,000 is appropriate.

Loss of Earnings

18. Pre-trial Loss

19. On the pre-trial loss of earning, Mr. Wong submits that I should ignore the 7 months unemployment period prior to the accident and work on the assumption that he worked 26 days per month. Accordingly, his monthly earnings is $680 x 26 = $17,680. Further, according to the Wage Statistics of the Government, the average daily income of a carpenter engaged in Government projects increased from $734.4 in June 1996 to $1,251.4 in March 1999: pp.(2)50 and 114 of the Agreed Bundle. (The figure in March is the latest figure available at the time of assessment.) Assuming an increase in line with the Wage Statistics, his notional present daily income is $680 x $1,251.4 / $724.7 = $1,175. The present monthly motional income is therefore $1,175 x 26 = $30,550. The median monthly earnings from the date of the accident to the date of assessment will be $24,111. Thus, Mr. Wong submits, the pre-trial loss will be $24,111 x 35.5 = $855,943.

20. Having carefully considered counsel's submission in this respect, I do not subscribe to his view that the 7 months period of unemployment can be ignored. First, I note that the Plaintiff had been regularly employed for 26 days per month since 1981. But the period of unemployment is not unsubstantial. Secondly, there is no evidence to suggest that he would resume regular employment of 26 days per month after the present job but for the injury. There is no evidence on the length of the present job. It was available only after a period of 7 months unemployment. Further, there is no evidence on the market condition at the material time either. Mr. Wong asks me to draw the inference that as the daily wage for carpenters has increased since June 1996, there must be a constant demand in the market and therefore he would have regular employment of 26 days per month. However, I do not think it is necessarily the case. I decline to draw such inference. Finally, the Plaintiff's case is that he worked on a job by job basis for different employers. Naturally, the length of jobs varied. It is not unusual that there may be a break between jobs.

21. Therefore, I find that, on the evidence before me, there is a degree of uncertainty that the Plaintiff would resume regular employment of 26 days per month even if he had not been injured. For the purposes of assessing his loss of earnings, and with the evidence available and doing the best that I can, I assess his average working days per month to be 20, instead of 26.

22. Thus, his monthly earnings is $680 x 20 = $13,600. His notional present monthly earnings is $1,175 x 20 = $23,500. The media is thus $(12,600 + 23,500 ) / 2 = $18,050. The pre-trial loss is therefore $18,050 x 35.5 = $640,775. He had worked for about 10 days and earned $780 per day. Mr. Wong asks me to round it up to $750 x 15 = $11,250. I accept. The net loss is therefore $629,525.

23. Future Loss of Earnings

24. The Plaintiff is unemployed. Mr. Wong submits that he should be able to work as a security guard or light duties casual worker earning about $8,500 per month. In this connection, he refers to Statistics for Messenger / Office Assistant in Table 10 of the Half Yearly Report of Wage Statistics of September 1998 at p.(2)85 of the Agreed Bundle. For the reasons above, I decline to adopt $30,550 as the present monthly income. Instead, I will use $23,500 when calculating the multiplicand.

25. The Plaintiff is now 44. At the time of accident he was 41. Mr. Wong asks me to follow Lam Chi Fat v. So Kam Sui trading as Foo Yan Construction Co. & Another PI No.167 of 1994. There, Master Jones adopted a multiplier of 11 for a male painter aged 40 at the date of accident and 43 at the date of assessment. I agree and adopt a multiplier of 11.

26. The future loss of earning is $(23,500 - 8,750) x 12 x 11= $1,947,000.

Other Special Damages

27. The Plaintiff abandons his claim for medical expenses as the same had been waived by the Hospital Authority. He had incurred $1,000 for travelling expenses and $1,000 for tonic food. The sums are reasonable and I allow them in full.

Loss of Earning Capacity

28. In addition to the award for loss of future earnings, the Plaintiff claims for loss of earning capacity in the sum of $52,500 ($8,750 x 6).

"A claim for loss of future 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. Ltd. [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.... 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.": Chan Wai-tong v. Li Ping-sum [1985] AC 446 at p.460, followed in Lau Che Ping, supra.

29. The Plaintiff is unemployed at the time of assessment. No evidence has been adduced as required by authorities to substantiate the claim.

30. I note that in Chan Tak Chi v. Wong Siu Tao [1998] 4 HKC 16, Master Cannon allowed an award for future loss of earnings in addition to an award for loss of future earnings. There, there was evidence that given the recurrent pains due to his injury, it is conceivable that the plaintiff would have a real risk of periods of unemployment even as a security guard (the alternative employment suitable to him). On that basis, the learned Master accepted that he would suffer a disadvantage in the labour market as a result of his injuries. No such evidence is, however, before me.

31. Accordingly, I reject the claim under this head.

Summary

32. The amount awarded is as follows:

	$
PSLA	350,000
Pre-trial loss of earnings	629,525
Future loss of earnings	1,947,000
Other special damages	2,000
Total	2,928,525
Less: Employment compensation	480,671
Net:	2,447,854

33. Accordingly, there will be judgment against both Defendants jointly and severally on the sum of $2,447,854. Interest will run on the general damages at 2% from the date of writ to judgment, and on the special damages at half the judgment rate from the date of accident to judgment. After judgment, interest will be at the judgment rate until payment.

34. I also make an order nisi that the Plaintiff shall have the costs of the assessment, to be taxed if not agreed. The order nisi will become absolute after the expiration of 14 days from the date of handing down this decision. The Plaintiff's own costs will be taxed in accordance with the legal aid regulations.