HO PING SHUI v. GREAT WALL HOUSE WARE MANUFACTORY

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The plaintiff claims damages for injuries sustained on 26th January 1983 when he was employed by defendant.

2. In the course of such employment plaintiff's right hand was trapped and crushed in a power press. Farts of three fingers were later amputated.

3. The writ was issued on 13th March 1985 and interlocutory judgment entered on 25th April 1985 in default of notice of intention to defend.

4. Letters from employers as to plaintiff's earnings were produced pursuant to a hearsay notice under 0. 38 RSC. A medical report from Dr. Wedderburn was produced by consent and a medical report from Dr. Philip Mao was produced by that doctor when he gave evidence.

5. Dr. W.K. Lee treated plaintiff at Princess Margaret Hospital on his admission. The doctor described in evidence an amputation the same day of plaintiff's ring finger at the upper joint and an attempt to recreate the blood supply to the other two injured fingers by suturing together the damaged blood vessels.

6. This treatment failed to save the index finger, which was amputated at the lower joint on 3rd February 1983. The middle finger suffered bone damage and both bone and tissue were cut back to allow fusion of the middle section of the finger to both its upper and lower sections. The first operation was done under general anaesthetic, the second under local; the reconstruction of the middle finger was by micro-surgery.

7. Plaintiff spent a total time in hospital of about 6 weeks, including nearly a month at Caritas Medical Certre. Thereafter Dr. Tedderburn's report indicates that he required regular dressings at South Kwai Chung Clinic and physiotherapy twice a week until mid-August.

8. In conclusion Dr. Lee said that plaintiff had not complained of pain at his last medical board appearance in August 1983. He assessed disability at 21%.

9. Dr. Philip Mao then produced his report of 13th June 1986 and explained the treatment in greater detail. He said that parts of all three sections of the middle finger were removed and the remainder fused together leaving the finger in a permanent 180 degree position.

10. Dr. Mao indicated that there was some tenderness due to the fingers remaining sensitive after amputation; this could be permanent but was likely to improve over a long period. There was no prospect of further reconstructive surgery, nor was the plaintiff likely to suffer worse discomfort than at present.

11. Dr. Mao broadly agreed with Dr. Wedderburn's conclusions in the latter's report of 19th February 1985. He did however reduce the estimate of earning loss disability to 22% from Dr. Wedderburn's 25%.

12. Dr. Wedderburn's report assessed plaintiff's impairment as 22% of the wholeman, with a 25% disability as to earning loss. He found a 50 pound grip strength with his injured right hand, which is his preferred hand, as apposed to a 100 pound grip strength with his left hand. He regarded this as a good grip in the circumstances, a comment with which Dr. Mao agreed.  Plaintiff's writing was severely affected, being childlike and taking over twice the average time to complete a given passage.

13. The medical evidence was not challenged and I accept it. The small discrepancy between the figures of the two doctors as to the percentage of earning disability I do not propose to reconcile. Such assessments are part of a necessarily inexact science and I accept that the correct figure is in the area of 22% to 25%.

14. The plaintiff's evidence concentrated on his working life since the accident; an aspect I shall cover later. His injuries he claimed to be very painful after the accident, causing him to take pain-killing pills of which he said he never had enough. I readily accept that he must have felt considerable pain in the early stages of his recovery.

15. I had an opportunity of seeing the injured hand and noted the scarring and the condition of what was left of the fingers. I accept that considerable cosmetic disability will be a permanent effect of the injuries and relate that also to the plaintiff's awareness of feelings of distaste which his visible deformity will inevitably arouse in others.

16. I also bear in mind the likelihood of plaintiff's diminished marriage prospects, both from the cosmetic view point and from the economic inferences likely to be drawn from the injuries in a society where such factors are understandably important. Plaintiff himself spoke of his broken relationship with his girl friend, and of her parents' reservations as to his ability to support her after the accident. He also said he had not developed any other relationships with girls and seemed conscious of his diminished earning capacity in this connection. I note also plaintiff's diminished recreational life, in particular as to his hobbies of ten-pin bowling and playing the guitar.

17. The plaintiff seemed a withdrawn young man and not at all given to exaggerating his troubles. I accept that his injuries at the age of 24 must necessarily diminish his prospects of marriage and that this is a factor calling for compensation.

18. I am grateful for the assistance of both counsel in directing me to a number of relevant cases. Tse Fuk Lun HCA 1426 of 1983 was similar as to both the injuries and the age of the plaintiff. The injuries and consequent impairment were slightly more serious, but the hospital treatment was considerably less. The award was $75,000.00 in May 1984.

19. A similar amount was awarded in Mak Kwok Ping HCA 7084 of 1983, six months earlier, on a rather heavier impairment of 28%

20. In Leung Wing Kai HCA 2800 of 1981 $55,000.00 was awarded in 1982 for broadly similar injuries and treatment.

21. In Sze Bing Chung HCA 6563 of 1981 a plaintiff with similar, though less serious, injuries was awarded $60,000.00 in 1984.

22. The award in 1984 in To Kin Shan HCA 4123 of 1982 was only $40,000.00 for similar injuries and treatment.

23. Updating the awards in these cases by the accepted factor of 10% per annum for inflation we see a range of roughly $75,000.00 to $100,000.00 if To Kin Shan is not included. I regard the decision in that case as out of line with the accepted level of awards and propose to ignore it.

24. The factors considered in these cases have not included diminution of marriage prospects. The plaintiff is 24 and has testified that a promising relationship was terminated as a direct result of his injuries. I have accepted this evidence and accept also that a diminution in lifestyle is probable consequent on his difficulty in securing a suitable marriage partner. Based on the cases cited, but adding the factor of diminished prospects of marriage, I award $100,000.00 for pain, suffering and loss of amenities.

Pre-trial loss of earnings

25. Plaintiff was earning $50.00 per day at the time of the accident in the employ of defendant. He was out of work from the date of the accident until 20th August 1983. For this period I award the figure of $8,450.00 by applying the daily wage rate to the number of days off work, as set out in the first schedule of damages.

26. On 20th August 1983 plaintiff started work at Sun Luen Glove Factory. He was earning $45.00 a day and remained there until 19th October 1983. There has therefore been a daily loss of $5.00 for that period and I award $260.00 in compensation

27. From 20th October 1983 onwards plaintiff has led what his counsel rightly described as a chequered career. He has worked for a further seven employers ending at his present position with Kowloon Dairy, which he says is not a temporary job. He said he is employed as the driver's mate on a delivery truck and is hoping to get his licence as a heavy goods vehicle driver when he is tested for that in January. He also intends to do night work as a taxi driver if he gets his licence, for which he is also shortly taking the test. He is now earning $2,200.00 a month with Kowloon Dairy, which if he becomes a heavy goods driver will rise to $2,700.00 plus commission.

28. The plaintiff's earlier evidence discussed in detail his working life since the accident. He said he wanted to be a cook, but his efforts to achieve this failed owing to the lack of both strength and dexterity imposed by the accident. From the evidence of both plaintiff and his witness, Lai Chi Yuen, I accept that the accident has prevented plaintiff from becoming a cook. Lai Chi Yuen is himself a grade one cook and worked with plaintiff in one of his intermediate jobs.

29. Lai Chi Yuen earns $3,700.00 as a grade one cook and Mr. Ozorio has argued forcefully that plaintiff himself would have been earning at least that figure but for the accident.

30. Arguing from that premise on the differential between actual and likely median wages from August 1983 to date of trial, Mr. Ozorio suggests an average monthly loss of $500.00 The period covered by this estimate is from 20th August 1983, when plaintiff started work at Sun Luen Glove Factory. It is worth noting that at no time since the accident has plaintiff earned less than his wage at the time of the accident. He was off work altogether for about 5 months earlier this year apart from the immediately post-accident period and a few days here and there between jobs.

31. The plaintiff spoke of his difficulties obtaining and keeping jobs and indicated that his disability was a factor in both cases. I readily accept that in a competitive labour market a young man with only partial use of his preferred hand would be seriously handicapped. Nonetheless, when this disadvantage comes to be related to compensation, I find it difficult to accept a precise calculation.

32. The multiplier/multiplicand approach advocated by Mr. Ozorio as to both pre- and post-trial loss of earnings presumes a degree of probability in plaintiff's working life which I find to be lacking.

33. The assumption that plaintiff, but for the accident, would now have been a cook earning $3,700.00 a month has only the most tenuous connection with reality. Its foundation lies in remarks in plaintiff's evidence that he would have liked to become a cook. In reality however his connection with the world of cuisine is all post-accident.

34. On the evidence before me I am unable to accept that plaintiff would probably have become a cook. I am furthermore unable to trace any thread of probability in the evidence from which I could properly assume a quantifiable average monthly loss. The principle of multiplying such a figure by a factor dependent on a plaintiff's age can relate only to judicially accepted probabilities. If these probabilities cannot be found, the principle itself falls away and the court must award, if at all, on a genuinely speculative basis. The speculation must relate to the court's constant balancing act between the two litigants, but it must not spuriously seek its justification in mathematical projections on false premises. As Bewley J. said of post-trial loss in Yip Pun Leung HCA 6071 of 1981 - "It is largely guesswork".

35. Whilst I cannot find after 19th October 1983 any particular probabilities on which to project an ascertainable pre-trial loss, I nonetheless find a general probability that. some such loss has occurred.

36. Despite an accident which must have gravely affected his morale, plaintiff has hardly been out of work up to the date of the hearing. He has shown himself to be resourceful. He has proved furthermore that due to his injuries he faced considerable difficulties in obtaining and keeping jobs.

37. As I find no guidelines at all in his pattern of employment I am applying a further global sum in compensation for plaintiff's pre-trial loss of earnings. This figure will cover the period from 20th October 1983, when I consider the uncertainty started. In choosing this date I agree with Mr. Lai for the defendant that only prior thereto can any loss realistically be calculated from available figures.

38. I am aware of the contrary argument which would assess any loss by projecting forward earnings at the accident by 10% a year. This exercise would show that plaintiff is now earning more that he theoretically would have earned on that basis. However I equally reject this mathematical approach as having no relation to reality. This was a young man of typically uncertain lifestyle. I find he has suffered loss of earnings and award a global sum as compensation.

39. On the evidence before me and assessing plaintiff's character and his behaviour since the accident I therefore award a figure of $7,500.00 for further pre-trial loss after his employment at the glove factory. This figure takes into account that plaintiff's reasons for being out of work between March and July this year are not in his favour.

Post-trial loss of earnings

40. The uncertainties already encountered apply with greater force in considering the future.

41. Plaintiff now has a steady job which has some promise of better things to come. He has shown himself to be resourceful and I find it likely that he will gradually improve himself.

42. He will however be placed at a continuing disadvantage in the labour market through his disability. Should he lose his present job, he will face the same difficulties in obtaining and holding further employment as he has already encountered.

43. In plaintiff's case any distinction between loss of future earnings and loss of future earning capacity would be artificial. What matters is the probability that he will earn less than a man with two normal hands. This applies when he is in employment and it applies all the more when he is competing for employment. Not only has he less to offer in a job he can do, but there must be many jobs he is unable even to consider through lack of strength and dexterity in his injured hand. He is a young man and these disadvantages will be with him for a likely working life of over 30 years.

44. In all the circumstances I propose to award a global sum to compensate for future loss and I find $60,000.00 to be appropriate. This award will not attract interest.

45. There remain the special damages in terms of the 3rd schedule filed. These have now been agreed at $1,600.00 and I award that sum.

Summary

General damages for pain, suffering & loss of amenities	$100,000.00
Pre-trial loss of earnings
($8,450.00 + $260.00 + $7,500.00)	$16,210.00
Future loss	$60,000.00
Special damages as agreed	$1,600.00
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Total	$177,810.00
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46. There will be interest at 2% on the general damages from the date of the writ to date hereof, and interest on pre-trial loss of earnings plus special damages at 4% from the date of the accident to date hereof.

47. Credit will be given to the defendant for plaintiff's E.C. receipts of $32,800.00. Plaintiff's costs to be paid by defendant and his own costs to be taxed in terms of the Legal Aid Regulations. There will be a certificate for counsel.