TSANG CHIN KEUNG v. LO TAT KONG t/a HUNG KWONG GLASS WORKS and Another

1995, No. PI806

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Interlocutory judgement was entered on 18th March 1996 for the Plaintiff in his personal injuries action against the 2nd Defendant for damages to be assessed and the costs of the action to be taxed. The 2nd Defendant has taken no active steps in this action and did not attend and was not represented at the assessment of damages heard on 17th September 1996. The Plaintiff's solicitors have filed an affirmation of service by post to the Defendant at his residential address giving notice of the appointment to assess damages. Counsel for the Plaintiff indicated to Court that it was hoped to recover the damages awarded under the Employees Compensation Assistance Scheme.

2. The only witness called at the assessment was the Plaintiff who confirmed his earlier statements set out in the Bundle of Documents produced for the hearing. Briefly, the Plaintiff sustained an injury to the upper part of his left hand from electric circular saw in the course of his employment on 26th June 1988. His left hand is, in fact, his preferred hand. The Plaintiff was employed to do carpentry work in the course of renovating a residential flat. He was using the circular saw to cut a piece of wood when the saw suddenly stopped. When he bent down to check what had happened, the circular saw suddenly restarted and the upper part of his left hand was injured by the saw. The circular saw was bolted to the bottom of the work table and was not guarded. No one was present at the time and he went to Princess Margaret Hospital alone in a taxi.

3. The Plaintiff did not lose consciousness and arrived at hospital about 30 minutes after the accident. He had an operation on the day of the accident and was kept in hospital for about a week before being discharged home. He received follow-up out-patient and physiotherapy treatment. Later on 6th October 1988 he had a second operation which was a nerve graft to his left forearm. He remained on sick leave until 4th March 1989. The Plaintiff estimated he spent $1,600.00 on travelling expenses to and from the Hospital for treatment. He also claimed the sum of $4,500.00 on nourishing food, mainly, chicken soup prepared by his mother at home.

4. In this accident the Plaintiff received a large, deep cut from the thumb at a angle across the inside of the fleshy part of his upper left hand. He now suffers from loss of sensation and numbness in his left hand. He has loss of strength in the hand so that he is unable to hold or carry heavy objects with his left hand, which was his preferred hand. He claims to suffer from constant pain and an occasional throbbing sensation in the left hand. He also has loss of sensation in his left forearm at the site of the nerve graft. He has difficulty swimming, rowing a boat, tenpin bowling and playing volley-ball or basketball. The Plaintiff was aged 27 years at the date of the accident and had attained 36 years of age by the date of this assessment of damages.

5. Various medical and other reports were produced in the Bundle of Documents, including reports of Dr. YEUNG Po-sun who estimated Plaintiff's loss of earning capacity as 20%, and Dr. David T. LEE whose detailed report estimated that the residual pain, weakness of grip disturbance of sensation and weakness plus the disrupted dexterity of the left hand, would affect overall his left hand function to a degree of 25% equivalent to a loss of 15% of his earning capacity. Dr YEUNG Po-sun had examined the Plaintiff in November 1991 and Dr. David LEE had examined him in September 1995. The Employee's Compensation Board originally assessed Plaintiff as having a 5% loss of earning capacity, but on review this figure has revised to 10%. The Plaintiff has now married and lives with his wife and 2 year old son in a flat apart from his family.

6. Turning to the Statement of Damages filed on behalf of the Plaintiff at this assessment, Counsel concedes that on the authorities referred to the Plaintiff's injuries place him slightly below the "serious injury" category. In particular, the decision of Master Woolley in the Estate of KWONG Man given in September 1995 is a case involving similar circular saw injuries to the hand where the sum of $260,000.00 was awarded for pain and suffering and loss of amenities on the basis of a bottom line of $250,000.00 for the "serious injury" category and an allowance of $10,000.00 for inflation since the Court of Appeal decision in CHUN Yat-nam v. A.G. (C.A. 92 of 1994). Taking account of the recent confirmation by the Court of Appeal in CHAN Pui-ki v. LEUNG On and Kowloon Motor Bus Co. Ltd. (263/95) in July 1996 to increase awards by 50% to $400,000.00 and $540,000.00 for "serious injury" classification, this Master would agree with Counsel's submission that an award in the range of $350,000.00 to $375,000.00 in this case is appropriate. This Master would award the sum of $365,000.00 for pain and suffering and loss of amenities by the Plaintiff.

7. The next heading of damages to be considered is loss of earnings. At the date of the accident in 1988 the Plaintiff worked as a carpenter earning $250.00 a day which amounts to $6,500.00 a month ($250 X 26 days). It is reasonable to assume the Plaintiff would have continued to work in that capacity since. As such his daily wages would have increased to $600 by this year. He was being paid $700 a day in August this year while employed as a carpenter. Although he was on sick leave until March 1990, he did not find suitable work until the end of 1990. Counsel's submission that monthly wages for carpenters would have increased by 240% in the 8 years since to $15,600.00 is accepted. The median of these two figures ($6,500.00 and $15,600.00) is $11,050.00. If the time from date of the accident to the date of this assessment is taken as 8 years after a deduction of 3 months for the longer period he was unemployed after his sick leave expired. No doubt, some of this time was attributable to the Plaintiff's difficulty in obtaining re-employment due to his injured hand and a hearing impairment unrelated to his accident. On this basis the Plaintiff should have earned ($11,050.00 X 96 months) $1,060,800.00.

8. Because of his accident and other disabilities (referred to above) the Plaintiff has been unable to obtain full-time re-employment as a carpenter. He has registered with the Selective Placement Unit of the Labour Department without success in attaining a job. He has worked as a carpenter on a casual basis working on average 10-15 days a month. On the basis of the union work rate of $350 in 1990 and $600 in 1995 the median is $475 a day. Taking the period from December 1990 to April 1995 as 53 months over a average of 12.5 days for month, his total earnings would have been $314,687.00. The Plaintiff has also worked as a carpenter for a period on a casual basis over this year for a total of 30 days being paid a daily rate of $700, which amounts to earnings of $21,000.00. The Plaintiff has also worked as a newspaper vendor (in mornings only) for daily wages of $50.00 for 2 1/4 months in 1996 from which his total earnings were $3,375.00. By the date of this assessment the Plaintiff's total earnings were $339,062.00 ($314,687.00 + $21,000.00 + $3,375.00). So that the Plaintiff's loss of earnings over the pre-assessment period is the sum of $721,738.00 ($1,060,800.00 - $339,062.00).

9. In assessing the Plaintiff's future loss of earnings his Counsel asked for a multiplier of 14 years which is not unreasonable for a man of 36 years (Date of birth: 4th September 1961) and will be allowed. The Plaintiff hopes to continue casual work as a carpenter for 5 days in the month earning $3,500.00 ($700 X 5) and as a newspaper vendor earning $1,250.00 ($50.00 x 25 days) amounting to average monthly earnings of $4,750.00. Thereby the Plaintiff will suffer a continuing loss of $10,850.00 ($15,600.00 - $4,750.00). On this basis the Plaintiff's claim for loss of future earnings over 14 years is $10,850.00 X 168 months = $1,822,800.00.

10. This Master was not prepared to consider a claim for investment advice as the Plaintiff's damages are comparatively modest and he had told the Court that any damages awarded to him would be used to purchase and furnish a flat for his immediate family.

11. The other special damages claimed, medical expenses of $1,605.00, travelling expenses for medical treatment of $1,600.00 and nourishing food of $4,500.00 do not appear unusual in the circumstances and will be allowed.

12. A summary of damages awarded are set out as follows:-

13. The interest rate on the general damages for non-economic loss, under the heading of pain and suffering and loss of amenities will be 2% from the date of the writ to the date of this assessment. There will be interest on the special damages at the rate of 5.75% from the date of the accident to the date of this assessment.

14. Costs on this assessment to the Plaintiff against the 2nd Defendant. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

(P.H. O'Donnall)

Master