TANG YAM KAU v. KEY ASIA ENGINEERING LTD

HCPI 653/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 653 OF 2012

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ASSESSMENT OF DAMAGES
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1.  This is a personal injury claim concerning an accident at work. Judgment on liability was entered on 13 November 2013.

I  Background

2.  The plaintiff, Mr Tang, was a freelance carpenter. On 13 October 2010, whilst he was employed by the defendant, his left hand was injured by a bench-type electric circular saw which had no safety guard.

3.  He attended A&E department of Queen Mary Hospital and was admitted to the orthopaedics department with multiple deep lacerations of his left thumb, middle and ring finger.

4.  He suffered complex multiple deep structure injuries including complete cut of the thumb and middle finger flexor tendons, multiple cuts to the digital arteries and digital nerves, cut to the ring finger extensor tendon, multiple fractures of the thumb, ring and middle fingers and nail injury. Exploration and tendon repair surgery was performed on 16 October 2010.

5.  He recovered but has residual hand function impairment including stiff fingers, inability to make a fist, weakness and persistent pain despite physiotherapy.

6.  Mr Tang also developed adjustment disorder with depressive features and was treated with medications as well as cognitive behavioural therapy.

7.  He has not returned to work.

8.  An employees’ compensation claim was made (DCEC 694/2011) and Deputy District Judge Simon Ho awarded HK$873,968 on 25 July 2014.

II  PSLA

9.  Mr Tang is claiming HK$550,000 under this head.

10.  As mentioned above, he has suffered a severe injury to his left (non-dominant) hand.  His residual problems were confirmed by Dr Fu Wai Kee, the expert orthopaedics surgeon (“Dr Fu”).

11.  As a result of the injuries, Mr Tang also suffered from Adjustment Disorder with Depressed Mood which was confirmed by the psychiatric expert Dr Chow Lok Yee (“Dr Chow”).

12.  In Lo Siu Wa v Nuovo Design Limited HCPI 84/2010 (date of judgment in 2012), the plaintiff suffered a similar injury and residual problems (but on his dominant hand) as well as psychiatric illness, the PSLA award was HK$500,000.

13.  In an earlier case, Tsang Chung Wan v Li Ming or Lee Ming and others HCPI 1063/1996 (date of judgment in 1998), the PSLA award was HK$450,000 for a crushing injury to the dominant hand.

14.  The same award was given for another crushing injury of the dominant hand in Chan Kai Wing v Leung Fat Kee Engineering Factory Co and another HCPI 1163/1999 (date of judgment in 2000).

15.  In Chow Cheung Ching v Right Base Construction & Engineering Company Limited HCPI 742/2000 (judgment in 2001), the plaintiff suffered an injury to his two fingers in the non-dominant hand. The resulting fractures failed to heal and numerous operations including a toe joint implant were required.  The PSLA award was HK$540,000.

16.  I have also considered Mak Kam Bo v Ever Gain Engineering Limited and another HCPI 37/2004 and Ng Tim Yip Kevin v Chan Ho Kin HCPI 948/2005, both of which concerned hand and psychiatric injuries.

17.  I would award HK480,000 under this head.

III  Pre-trial loss of earnings

18.  Mr Tang’s monthly earning was calculated to be HK$20,000 in the Employees’ Compensation claim.

19.  However, Mr Wong, Counsel for Mr Tang, suggested that the calculation of monthly earning in the EC claim was made under section 11(1)(a) of the Employees’ Compensation Ordinance (Cap 282) and this Court needed not be bound by it.

20.  This was how the earnings in the employees’ compensation was calculated: - Mr Tang was working as a freelance carpenter and he had started to work for the defendant around mid August 2010.  At the date of the accident (13 October 2010), he had worked for the defendant for 25 days in the month immediately preceding the accident (ie September 2010).  He did not work for any “full months” for the “same employer” (ie the defendant) either in August or October 2010.  Therefore, the calculation method in section 11(1)(a) (which is based on the earnings of the month preceding the accident) is preferred over the calculation method in section 11(1)(b) (which is based on the earnings per month from the same employer during the previous 12 months or lesser period) because the former “calculation is more favourable to the employee”.

21.  Mr Wong submitted that this Court would not be bound by such calculation methods. In a negligence claim, the Court should assess Mr Tang’s loss caused by the injury so the Court could look at all of Mr Tang’s previous income and work out Mr Tang’s reasonable monthly income from all the employers he has worked with as a freelance carpenter.

22.  I agree with Mr Wong.

23.  Like Deputy District Judge Ho in the EC claim, I have assessed Mr Tang’s calendars which he recorded his work (including length of hours/over-times, name of contractor/employer and work site) and found such evidence credible.

24.  Mr Tang was a diligent worker.  With the records going back to January 2010 and taking into account of the intervening Chinese New Year holidays.  In February, I accept that it is reasonable to estimate that Mr Tang’s average monthly salary should be HK$20,800.

25.  According to the medical evidence, by 12 May 2011, or about 8 months after the accident, Mr Tang’s wounds were healed and the improvement of hand function has become static with residual stiffness and weakness.

26.  However, in June 2011, Mr Tang developed psychiatric problems and first consulted a psychiatrist on 24 October 2011.  According to Dr Chow, a further 12 months of sick leave from the date of the first consultation on psychiatric ground was appropriate.

27.  I would therefore accept that there should be a claim for full loss of earnings from October 2010 to October 2012, ie a period of two years.

28.  The loss, including loss of MPF for this period should be: HK$20,800 x 24 x 1.05 = HK$524,160

29.  After this period, Mr Tang should be able to find work of a lighter nature.  I accept that he could not return to his previous work as a carpenter since his left hand was weak. Further, his fingers were stiff so he could not pick up small objects like screws or nails.

30.  As such, I would allow a partial claim for loss of earning from October 2012 to trial date, ie May 2015, or about 31 months.

31.  From documents from various construction trade unions produced, I accept that there should be an increase of income of 12.5% by this time.

32.  Mr Wong conceded that Mr Tang should be earning HK$8,000 as, say, a cleaner, from October 2012.  In fact, Mr Tang has not worked since the accident. He said he found it difficult to work as a cleaner when he has previously been a “Sifu” carpenter.

33.  The loss for this period should be: (HK$20,800 x 112.5% - HK$8,000) x 31 x 1.05 = HK$501,270

34.  The total pre-trial loss of earnings should be HK$524,160 + 501,270 = HK$1,025,430

IV  Future loss of earnings

35.  From the trade union documents, I accept that an average carpenter should now earn about 24% more than in 2010.

36.  The appropriate multiplier, based upon Mr Tang’s current age and assumed retirement age of 65, is 8.39.

37.  The future loss of earnings should be: (HK$20,800 x 124% - HK$8,000) x 12 x 1.05 x 8.39 = HK$1,880,863.49

V  Loss of earning capacity

38.  This claim is based upon a perceived handicap in the labour market, ie if the plaintiff is currently working, in view of his disabilities, he may be at risk of being make redundant and then he may also take longer to find a new job.

39.  However, Mr Tang is not working and has not told the court of any concrete plan to return to work.  The award for future loss of earning above is calculated on the assumption that he would be working continuously until retirement at 65 so he is well-compensated. I see no need for this head of claim.

VI  Future Medical Expenses

40.  Dr Fu opined that Mr Tang would need symptomatic treatment on a “need to” basis, whilst Dr Chow recommended a further six sessions of psychological treatment (HK$100 to 200 for each session in the public sector).

41.  I think that an award of HK$3,000 is reasonable under this head of claim.

VII  Special damages

42.  I would allow HK$28,305 as reimbursement of medical expenses, HK$3,000 for travel expenses and HK$5,000 for tonic food.

VIII.  Loss of Congenial Employment

43.  I accept that Mr Tang has lost the enjoyment of a job that he was pride of and I would award HK$50,000 under this head of claim.

IX  Summary

44.  I summarise the above awards as follows:

	HK$
PSLA	480,000.00
Pre-trial loss of earnings	1,025,430.00
Post-trial loss of earnings	1,880,863.49
Loss of earning capacity	0
Future medical expenses	3,000.00
Special damages	36,305.00
Loss of congenial employment	50,000.00
Less:
Award in EC claim	(873,968.00)
Subtotal (excluding interest)
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Total:	2,601,630.49
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X  Interest

45.  I would award interest on general damages at 2% per annum from date of writ to date of Judgment, and on special damages from date of accident to date of Judgment at half Judgment rate.

XI  Costs

46.  There will be an order nisi for the costs of the action be paid by the defendant to the plaintiff to be taxed if not agreed and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations with certificate for Counsel.