YEUNG PUI LAP v. WONG SIU FAI t/a HUNG FAI ELECTRIC CO.

HCPI 1250/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1250 OF 1998

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J U D G M E N T

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1. The Plaintiff in this action, a general labourer, claims damages for injuries to his right hand resulting from an accident during his employment by the Defendant on the 3 December 1996. His application under the Employees' Compensation Ordinance was heard on 5 November 1999 by Her Honour Judge Wong Hing Chun. At that hearing the Defendant appeared in person and contested the application in a number of respects, and in particular:

(i) that the accident did not occur or did not occur as the Plaintiff alleged;

(ii) that the Plaintiff had accepted a sum of $8,100 in full and final settlement of any claim for Employees' Compensation; and

(iii) that the medical evidence was inconsistent and did not accurately reflect the Plaintiff's injuries.

2. The Defendant cross-examined the witnesses at length. In her judgment the learned Judge found the Plaintiff a wholly credible witness and rejected the evidence of the Respondent (Defendant) on all issues. Her findings are res judicata - or constitute issue estoppel in the respects which were contested. Her judgment has not been appealed. In this case it is not necessary for me to set out the authorities in support of the principle of issue estoppel (or res judicata) but they conveniently start with Wood v. Luscombe [1966] 1 QB p.169. The findings then, in this case, are that the accident did occur in the course of the Plaintiff's employment, that it occurred as he alleged, that there has been no compromise of his rights under the Employees' Compensation Ordinance, and that the nature of the injuries was as he alleged.

3. In these circumstances it is strictly necessary for me only to decide whether the Defendant's negligence caused the injury, whether there was any contributory negligence, and what the proper level of damages is under each head claimed.

4. Because the Defendant is unrepresented and maintains the dispute he advanced on all fronts, it has been necessary for me to spell out in layman's terms, the effect of the learned Judge's findings in the District Court. However I have heard evidence again from the Plaintiff and from the Defendant on how the accident happened in order to determine the issue of negligence.

5. The Plaintiff's case, quite shortly, is that at the end of the day's work on 3 December, his last day of employment with the Defendant having orally told the Defendant that he no longer wished to carry on the work on the site, he was packing up the tools prior to leaving work. A drill being used on the job was handed to him by the Defendant with the bit of the drill extended first. The Plaintiff assumed reasonably that the drill's electric plug had been disconnected, as had been the case on previous days when the flex was wound around the body of the tool, signifying that this was so. As he took hold of the bit on this occasion the Defendant activated the switch and the bit revolved tearing off his cotton glove and injuring two fingers.

6. The Defendant says that this is not correct, and that he did not pass any drill to the Plaintiff. He says that the first he knew of the Plaintiff's accident was when the Plaintiff came into the office and said he had sprained a finger, that it had been caused by the bit of an electric drill but he gave no details as to the circumstances. The Defendant said he saw no injury to his hand.

7. The learned Judge in the District Court did not accept the Defendant's evidence, nor do I. There is a document, Form 2 forwarded to the Labour Department, completed and signed by the Defendant. He accepts that this is so and identified his signature and writing. Under the box headed: "Describe how the accident happened". The Defendant wrote the following:

"On the day of the accident at the time when the work was finished, Yeung Pui Lap asked me to help him pack up the electric drill. Yeung Pui Lap got hold of the drill bit with his hand and pulled the drill hard and touched the hand button of the electric drill."

8. This version goes some way to support the Plaintiff's version but is of course wholly inconsistent with the Defendant's evidence before me and before the learned District Judge. When questioned by Mr Wong Chi Kwong for the Plaintiff, the Defendant sought to explain this version (given on 14 February 1997) by saying that an employee of the Labour Department instructed him to give such a description. It was pointed out that his signature to the document appeared beneath the words (in Chinese characters) "I declare that the information given above is, to the best of my knowledge true and accurate."

9. In respect of that he said, at first, he did not know of the declaration, then added that what he had written was to the best of his knowledge true and accurate. There may appear to be some confusion or contradiction here in his evidence but it seems nonetheless that he is maintaining that he gave an untrue version because he was told to.

10. As I have indicated I believe the Plaintiff's version of events but does his account indicate negligence on the part of the Defendant? The answer in my view is an unequivocal yes. The drill should have been disconnected from the electricity supply as, in the Plaintiff's experience, it had been on previous days. In handing over an electrically powered tool there is always the risk of the switch being activated and the drill causing harm, particularly if it is handed over bit first. It was clearly negligent not to isolate the current. It should not have been handed over bit first unless it was isolated from power. The Plaintiff did suggest that the Defendant deliberately switched on the button when handing the drill over as a gesture of resentment at the Plaintiff's decision to leave employment. Although I can well understand the Plaintiff's suspicion, as to this I would not be prepared to make such a finding. It must remain as only a suspicion. I see the Defendant as being careless in not disconnecting the flex from the electricity point and in his handling of the drill and I have so found. There is no basis for a finding of contributory negligence. The mere fact that the flex was not wound around the drill on this occasion would not be enough to alert him to the possibility that it was still connected to the electricity point. He could sensibly rely upon the good sense of the Defendant to unplug the flex when equipment was being put away at the end of the day's work. It could hardly be put away in the management office whilst still connected to the point.

11. The Plaintiff therefore succeeds wholly on liability.

Quantum

Pain and suffering and loss of amenity

12. There are two medical reports from Dr Hung Siu Lun from the Kwong Wah Hospital. He gave evidence at the Employees' Compensation proceedings. There is also a report from the orthopaedic consultant, Dr Danny Tsoi.

13. Although both doctors have been on standby to give evidence to this Court, the Defendant has agreed that they need not attend to give oral evidence and that their reports can be adduced in evidence. There is of course no answer to the Plaintiff's Statement of Damages served by the Defendant, nor is there any medical evidence served by the Defendant to dispute any of the medical findings or opinions.

14. There were avulsion fractures of the base of the distal (furthest) phalanges of the right ring and middle fingers. They were treated with a mallet finger splint.

15. He cannot make a full fist in the right hand and some stiffness of the distal joint of both fingers persists. Having tested his grip it appears to be equal to that of the left hand. The grip is not a strong one. I note he has had earlier damage to both hands, having lost the tip of both index fingers. There must therefore have been some pre-existing loss of grip in the right hand.

16. There is degenerative change in the distal joints of both fingers, especially in that of the ring finger. There is no further treatment available. There may well be an increase in pain and discomfort. He was eventually able to return to work in May 1997. Overall his period off work was reasonable. He will suffer some slight inconvenience in manual dexterity and grip when lifting heavy objects.

17. General Damages will be $150,000.

Loss of earning capacity

18. For a man who relies essentially on his hands for heavy manual labour there is a clear risk of loss of earning capacity in the future. The claim for $50,000 is a reasonable one. I allow it.

Special Damages

19. These too are modest. I allow the sum of $251 claimed.

Loss of earnings

20. His daily pre-accident wage is agreed at $350. The 26 day working month is also agreed (see Form 2). He was away from work for 122 days. On all the evidence this is entirely reasonable. The sum claimed is $42,700. It is allowed.

Summary

Pain and Suffering etc.	150,000
Loss of earnings	42,700
Loss of earning capacity	50,000
Special Damages	251
	$242,951

From this must be deducted payments of $8,100 made by the Defendant. The net figure is therefore $234,851.

21. There will be judgment for the Plaintiff for $234,851 damages together with interest (to be calculated by the Plaintiff's solicitors) and costs to be taxed.