Chan Kai Wing v. Leung Fat Kee Engineering Factory Co. Ltd.

HCPI No. 1163 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1163 OF 1999

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JUDGMENT ON ASSESSMENT OF DAMAGES

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INTRODUCTION

1. The plaintiff was since 1991 an employee of the defendant, which was a manufacturer of machines, as a mechanic. His duty was to operate a machine called the Planning Machine (the machine), which could produce all kinds of parts and gadgets for the metal-cutting machines, metal-folding machines and large metal-folding machines. On 3 September 1994, the plaintiff was operating the machine that did not have a protective cover. He found an iron square lying on the floor directly below the machine table. He tried to pick up the square with his right hand. However, the moving bench of the machine suddenly recoiled and crushed his right hand between the side of the table and the switch that controlled the movement of the bench. As a result, he had suffered serious injury in his right hand. He was sent to the casualty ward of Tuen Mun Hospital for treatment. Two operations were performed on his right hand. He had to stay in the hospital for 23 days for treatment. Thereafter he had to attend outpatient, physiotherapy and occupational therapy at Tuen Mun Hospital and was given sick leave until 7 February 1995. He was given the full pay for his sick leave.

2. He had resumed duty on 8 February 1995 on the same pay as before although he needed assistance to operate the machine from time to time. In December 1995, he was sent to a factory of the defendant in Dongguan, China as a supervisor. For the allowance to work in China, he was given $2,000 each month. The monthly wage was therefore $12,600.00. He was dismissed in June 1998. He had taken the present proceedings against the defendant.

3. The defendant had not filed defence to this action. Judgment in default was entered by the plaintiff on 28 June 2000 and the damages are to be assessed. At the hearing for the assessment of damages, the defendant was absent. Having been shown that the notice of today's hearing had been duly served on the defendant's registered office and its address for service as appeared in the Acknowledge of Service filed by the defendant, I proceeded to hear the assessment in the absence of the defendant.

PLAINTIFF'S PERSONAL BACKGROUND

4. The plaintiff was born on 1 September 1952 and is now 48. He joined the defendant in 1991. Ever since he had joined the defendant, he was operating the same type of the machine. He had received education up to junior secondary school. He does not speak English. He can only read English alphabets. Before the accident, he liked swimming and playing ping pong games. He is a right-hand man. After the accident, he can no longer enjoy those game and activity.

PLAINTIFF'S INJURIES AND TREATMENT

5. According to the medical reports of Tuen Mun Hospital (p.76-77 of bundle) and that of Dr. Chan Kwok Pui, Brian, a specialist in orthopaedics and traumatology (exhibit P2), the diagnosis and treatments can be summarized as follows:

Diagnosis

(a) deep traverse cut at front and back of right hand;

(b) decreased movement of the ring and little fingers of the right hand;

(c) fractures of the right third and fourth metacarpal bones;

(d) dislocation of fifth methacarpophalangeal joint;

(e) crushed second, third and fourth web interossie;

(f) crushed middle and ring fingers lumbricals;

(g) crushed digital nerves to right middle, ring and little fingers;

(h) total loss of hypothenar muscle.

In-patient treatment:

(a) Exploration and Kirshner wire fixation was done on the date of the accident.

(b) Debridement of the right hand was done on 15 September 1994.

(c) Debridement and skin grafting of the right hand was done on 29 September 1994.

(d) There was a skin graft of 3cm x 2 cm at the base of the 4th and 5th fingers.

(e) There was a V-shaped operation scar at the palm centre.

(f) There was an Z-shaped operation scar from the proximal part of the palm to the right wrist.

(g) Hospitalization for 23 days.

Out-patient treatment:

(a) 6 sessions of out-patient follow up treatment.

(b) 57 sessions of physiotheraphy treatment.

(c) 50 sessions of occupational therapy.

6. According to the report of Dr. Chan, the plaintiff has recovered most of his right hand sensations. He is still having weakness of the right hand and also deformities with limitation of motion of his right fingers. His conditions are now static and further improvement are unlikely. His permanent impairment is calculated to be 15% of the whole person, including 1% for the scars. He can return to his pre-accident job as a mechanical technician only with adjustment because of impairment of his fine hand skills. Once he was laid off, his present hand is a definite handicap in finding a new job. He has 20% loss of his earning capacity (p.7-8). Dr. Chan said in evidence in court that the plaintiff might not be able to carry out the work as a mechanic because of the weakness of his right hand. He would be suitable for work, which do not demand lifting heavy objects, such as caretaker or security guard. From the experience of the plaintiff in finding a similar job after he had been dismissed as set out in the latter part of this judgment, I accept that the plaintiff will be unlikely to get back to his previous trade as a mechanic. The chance of him being employed as a supervisor is very slim. According to the plaintiff, he is still feeling pain on the right from time to time.

CREDIBILITY OF WITNESSES AND FINDINGS OF FACT

7. Having heard the evidence of Dr. Chan and that of the plaintiff, I come to conclude that the witnesses are truthful witnesses. I find no reason to doubt their evidence although they were not subject to cross-examination because the defendant was absent.

8. I now come to assess the damages for the personal injuries. The object of an award of damages is full restitution, compensating the victim for all the ill effects of the injury, including loss of future earnings. (p.20) per Litton JA. in Chan Pui Ki, an infant suing by her mother and next friend Chu Kam Hing and Leung On & The Kowloon Motor Bus Co. (1933) Ltd. CACV 263/1995

PAIN AND SUFFERING AND LOSS OF AMENITIES (PSLA)

9. I accept the facts stated under the heads of "Plaintiff's Personal background" and " Plaintiff's Injuries and Treatment".

10. Mr. Chiu for the plaintiff submitted that the plaintiff's condition fell within the "serious injury" category and he claimed HK$450,000.00 under this head. He referred to the followings authorities:

(a) Leung Lai Yin v Yeung Kei Chi (t.a Shum Hing Furniture Decorating Construction & ors. HCPI No.317 of 1999, 7 April 2000, Deputy Judge To: Plaintiff's left hand was cut by a circular saw. He suffered near amputation of his left index and ring fingers while his middle finger was amputated. But he was able to return to his original occupation as a carpenter. He was awarded $400,000.00.

(b) Tsang Chung Wan v Li Ming or Lee Ming & ors., HCPI 1063 of 1996, 11 February 1998, Deputy Judge Suffiad: the plaintiff was a construction site formwork carpenter who had suffered injuries to the middle and ring fingers of the right hand as a result of the fingers being crushed between the steel bar and the rotating axis of the steel bar bending machine. He suffered a comminuted fracture of the proximal phalanx of his right ring finger. It was operated with K-wire fixation and skin grafting was performed on his middle finger. He was given sick leave for 2 full years. He had received 52 sessions of occupational therapy. He was assessed to be unable to return to his former job as a carpenter and the impairment was 9% of the whole person. He was awarded $400,000.00.

(c) Lo Chi Bun v Leung Wah Kwan, HCPI 984 of 1997, 31 March 1998, Master Cannon: the plaintiff was injured his right hand by an electric saw with fracture of the metacarpal bones, a 4 cm transverse laceration over the dorsum of the right hand and a 3 cm longitudinal laceration of the right ring finger. It was his dominant hand which had become stiff and weak. He was unable to return to work as a carpenter and could only work as messenger or security guard or lift operator. He was assessed to have permanent impairment of 11%. He was award $480,000.00

11. I apply the principle that the assessment should depend on the awards of the past cases of similar nature. See Chan Pui Ki's Case cited above. Having considered the above authorities, I accept that the plaintiff should be awarded $450,000.00 for PSLA.

PRE-ASSESSMENT LOSS OF EARNINGS

12. The plaintiff was paid his full wage during his sick leave period. He resumed duty immediately after the sick leave and was paid the same pay as before. On average, he was able to earn $10,600.00 per month, on a 26 days per month basis. In December 1995 he was seconded to work in China, for which he was also given $2000 monthly allowance, totally $12,600.00 per month. He was earning the same wage until he was dismissed in June 1998. The plaintiff is content to adopt $10,600 monthly wage for the multiplicand for the calculation of his loss in the light of the economy of Hong Kong in recent years and that he was not entitled to $2000 monthly allowance if he were working in Hong Kong.

13. The plaintiff gave evidence and said that after he had been dismissed by the defendant in June 1998, he had not worked for one month because he wanted to take some rest himself. He then looked for a job of the same field. On 2 occasions, the employers saw his right hand and refused to employ him. On one occasion, the employer did not see his hand and offered him a job for $360 per day. He was content that was the market rate at that time. He had worked for 3 days there. Then he discovered that he was unable to carry out the work because his right hand was weak and the fingers of the right hand had lost their dexterity. He was told to leave the employment. He was paid for 2 days' wages of $720.00.

14. He did not look for other jobs because he wanted to have more time to look after his child who was studying primary 4 at that time. He obtained the social welfare assistance of $5690 each month since 16 February 1999 up to date. However, he conceded that he was able to take up light work such as a security guard. It was for his own personal reason that he preferred not to work for about 2 years. Mr. Chiu conceded that according to the statistics provided by The Census and Statistics Department of the Government, the average monthly salary for a security at the relevant time was $8850.00. Mr. Chui further accepted that such personal reasons for the plaintiff not to look for a job as a security guard were not caused by the accident. He asked me to consider it reasonable for the plaintiff to take about 8 months to look for a job as a security guard.

15. I do not accept that it should take the plaintiff 8 months to find a job as a security guard. I allow him to take one month rest and another 4 months for him to look for a job as a security guard.

16. The pre-assessment loss of earnings should be calculated as follows:

$10,600 x 29.26 months (June 98 to 8 Nov 00) - 8850 x 24.26 months (Nov.98 to 8 Nov 00) - $720 (2 days' wage) = $94,735.00

LOSS OF FUTURE EARNINGS

17. The Plaintiff is 48 at the time of trial. I accept the multiplier of 8 as proposed by Mr. Chiu. The multiplicand as agreed by Mr. Chiu is $10,600.00. Therefore the loss of future earnings is calculated as follows:

$(10,600 - 8850) x 12 x 8 = $168,000.00

LOSS OF EARNING CAPACITY

18. I accept the medical report of Dr. Chan that because of the injury, the plaintiff will have difficulty in getting a job in future. He will face a real risk of being more readily made redundant by the employer should the circumstances arise in future. I grant an award of $120,000.00 for his loss.

SPECIAL DAMAGES

19. I accept the following items for special damages:

Medical expenses

(a)	Hospital maintenance fee from 3 September 1994 to 25 September 1994	$1,242
(b)	Out-patient treatment fees ($36x6 )	$216
(c)	Occupational therapy fees (36x 50)	$1,800
(d)	Physiotherapy fees ($36 x 57)	$2,052
	Total:	$5,310

Travelling expenses for attending out-patient treatment, occupational therapy and physiotherapy, which is $8 @ return trip x 113 = $904

Tonic food $3,500

The plaintiff admitted that the defendant had already reimbursed him $5,904. The total amount should be: $(5,310 + 904 + 3,500) - $5,094 = $4,620.

INTEREST

20. Interest on the PSLA is 2% p.a. from the date of the writ (i.e. 19 October 1999) to the date of trial, giving an amount of $9,517. Interest on the pre-trial losses is 6.25% p.a. from the date of the accident to the date of trial, giving an amount of $36,596 ($94,735 x 6.25% x 6 66/365). The total amount is $46,113.

SUMMARY

21. The total sum to be awarded to the plaintiff is $883,468.00, made up of the following:

(a) PSLA	$450,000
(b) Pre-assessment loss of earning	$94,735
(c) Loss of future earning	$168,000
(d) Loss of earning capacity	$120,000
(e) Special damages	$4,620
(f) Interest	$46,113

COSTS

22. I make an order nisi that the plaintiff shall have the costs of this assessment of damages, to be taxed if not agreed. Such costs include the costs of the doctor attending the hearing at the assessment. The plaintiff's costs is to be taxed in accordance with the Legal Aid Regulations. The costs order nisi is to be made absolute upon the expiration of 14 days from the handing down of this judgment.