CHAN YIN PAN V. EASTERN TIME LIMITED AND OTHERS

1981, No. 6818

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. On the 8th floor of the Fords Industrial Building, Wong Chan Road, Yuen Long there is a communal male toilet. It is intended for the use primarily of the men working on this floor. In October 1979 the floor had three industrial tenants namely :-

2. At about 4:45 p.m. on 3rd October 1979 three men were in this toilet namely :-

Whilst they were there the toilet burst into flames. The plaintiff suffered very severe burns and now seeks damages from the three tenants. The deceased 'was so severely burned that he died on 15th October 1979. In an action consolidated with the plaintiff's, his estate now seeks damages for his death also from the three tenants. Ng Siu Wah has not been seen by anyone concerned with this matter since his discharge from hospital.

3. I must first relate the material facts, as I find them, leading up to this fire. This was a new building. The Deed of Mutual Covenant is dated 14th December 1978. The tenancy agreement I have seen dates 'from May 1979 which was the time when occupation seems to have started. The agreements have one odd feature in common. Eastern Time had one male and one female toilet in Flat C. Li Fung and Wah Yip had none. To their workers only this toilet was available. Each tenant claims the right to use this toilet and to have been allotted exclusive use of two of the six compartments in it. But there is no mention of this in any lease, which granted exclusive occupancy only of the flats. I conclude that this toilet was part of the premises retained by the landlord, and that all parties had no more than an express or implied licence to use it in common with the others.

4. This leads me to a curious conflict of evidence about the provision of keys to individual toilet compartments. Mr. Li said that Eastern Time had keys to "their" compartments (the two centre ones) which the foreman normally kept hung up for convenient access. The plaintiff disagreed. He used the toilet regularly for personal purposes and for the disposal of trade waste and effluent: knew nothing of keys: had never used or needed to use one. He normally used either one of the centre compartments or one of the right hand (or Li Fung) compartments. Mr. Ley of Li Fung agreed, and had to fit a padlock to "his" end compartment when he started to use it for storage. Mr. Lee of Wah Yip also said that they had keys for "their" compartments but could not speak as to their user by anyone. Photographs taken in December 1982 reveal no sign of provision for external locks. I am not satisfied on this evidence that such locks and keys either existed or were used. Save for the compartment which Li Fung locked, none of the tenants was in or exercised exclusive occupation of any compartment.

5. In the course of assembling radios Li Fung used a chemical substance called toluene. It is more commonly known as thinners. It is highly inflammable; has a flash point below 23ºC: and very significantly in this case, gives off an inflammable vapour. It is included in the substances listed in Class 1 of Category 5 in the Dangerous Goods (Classification) Regulations made under Cap. 295. In the quantities needed by Li Fung, user and storage of this substance required a licence under section 6 of the Dangerous Goods Ordinance. No licence was sought. Nor would it have been obtained for storage in the place selected by Li Fung. This was the extreme right hand compartment in this toilet. Mr. Ley said he chose this because there was insufficient space in Flat A and on the advice of his senior partner Yip Shing Wo. He was aware of the dangers and sought to meet them by stacking the thinners in 4 gallon tins on a duck board in the compartment: by putting a padlock on the door: and by retaining the key personally. He also claims to have written "No Smoking" or words to this effect on the outside of the compartment. door in chalk. Even if he did this, which I doubt, the life of this notice must have been very short.

6. Before use the thinners were mixed with liquid resin. This mixing was also done in the compartment. Whilst still in use, thinner tins had their caps or lids carefully replaced to avoid loss by evaporation. When the contents had been removed, the empty tins were also kept in the compartment. Some had their caps replaced: some did not. These activities all permitted inflammatory vapour to escape into the atmosphere of the toilet, but probably not then in sufficient quantity to produce acute risk.

7. Perversely, that situation was brought about by failures in the drainage. This on the evidence was never reliable. I heard of blockages in the drainage, of the urinal, which if not cleared necessarily led to flooding given its automatic flushing system: of blockages in some of the basins which when combined with washer failure in a tap produced flooding: and of blockages in the floor drain. It is not possible to make any findings upon the cause or causes of these blockages and still less as to responsibility. All the tenants attempted some remedial steps. Li Fung employed a cleaning woman and.both Eastern Time and Wah Yip sent men in who attempted to but failed to clear a blockage. Those with the power and the responsibility, namely the landlord and the managers appointed by the landlord under the Deed of Mutual Covenant, did nothing. As they were not before the Court I have not heard their explanation. But on the evidence I have received their determination to ignore this problem was inflexible and complete.

8. Drainage trouble started early. By 1st October it had become acute. On that day, and more especially,on 2nd and 3rd, the main floor of this toilet was flooded - latterly to a depth of some two inches.. Water escaped into the passage and then to flats A and D. It was in these circumstances that persons unknown took what no doubt seemed to them sensible precautions to make the toilet usable. They put down stepping stones. Some were of wood, some of plastic, and some were metal tins. After the fire, the fire officer found 20/25 metal tins. Of these 7 were full of thinner and one was full of isopropanol (or alcohol). So that there were between 12 and 17 empty tins. These smelt of thinner and some contained traces of thinner. Some were capped and some were not. Although some Li Fung worker then apparently acknowledged these empty tins to be Li Fung's property, this was denied by Mr. Ley. Li Fung's tins he said were 4 gallon tins, and they could not safely be used as stepping stones. The tins in question must have been obtained from elsewhere, e.g. a nearby dump. This assertion is in direct conflict with the evidence of the fire officer that the tins he found were all of the same size namely 4 gallons. I reject it. I find that the empty tins used as stepping stones were the property of Li Fung. They were probably put down by the staff of Li Fung who knew of their existence conveniently to hand.

9. This was the fatal step. Flood water entered the uncapped empty tins and washed out traces of thinner. This floated on the surface and greatly increased the area from which inflammable vapour could evaporate. Any vapour smell was masked by the prevailing lack of hygiene. This produced the situation of acute risk which existed in the late afternoon of 3rd October. Only some slight source of ignition was needed. This may well have been a cigarette or match. But if it was, the person concerned can neither be blamed nor identified. He would have had no reason to think that smoking' was dangerous. Some such source caused the toilet to burst into flames. It burned violently until the vapour in the atmosphere was exhausted. Fortunately the fire did not spread either to the full tins because they were capped; or to the uncapped empties probably for lack of oxygen in the tins themselves.

10. I turn now separately to consider the position of the principal parties.

                    (1)    The deceased

11. He had worked for only about 3 weeks for Li Fung. This toilet was the only one available for his use. Contemporary statements showed that he and Ng visited it together to relieve themselves.

                    (2)    The plaintiff

12. He had worked for Eastern Time for about the same period. When he joined he was told to take his instructions from another casual worker. These instructions were to use the toilet for his own purposes, and for the disposal, as part of his duties, of waste water and certain trade effluents. He worked in Flat B and was in fact unaware of the existence of the male toilet in Flat C. He never received any of the warnings about the user of this toilet which Mr. Li says he asked his foreman to transmit. On 3rd October he visited the toilet for the purposes of disposing of waste water down a lavatory bowl. He had just completed this task when he was engulfed in flames.

                    (3)    Li Fung,

13. They converted this end compartment into a thinner store. This was illegal, and later all four partners pleaded guilty to the offence of. storing seven 4 gallon drums of toluene and one 4 gallon drum of isopropanol without a licence. The isopropanol plays no part in this story, and it is unnecessary to resolve any question about it. The presence of the toluene gave rise to a clear risk of fire. Mr. Ley's precautions were inadequate because although he ought to have done so, he did not appreciate that toluene gave off an inflammable vapour. He. therefore took no steps to guard against that aspect of the risk: no steps to ensure that all empty tins were properly capped and then safely disposed of: no steps to. ensure that they were not available for use and not used as stepping stones.

                    (4)    Eastern Time

14. They possessed limited toilet facilities in Flat C. But the communal toilet was more convenient for men working in Flat B, and I am sure the plaintiff was not alone in using it. Mr. Li became concerned about the drains in the toilet early in September, when he found some plastic syrup blocking the urinal drainage. When he complained to the management office, it asserted lack of authority and gave him what was said to be the telephone number of the landlord. Attempts to trace the landlord at this number, or to persuade him to return a call failed. Repeated attempts by him and by his assistant Miss Chu thereafter to obtain action or response from these quarters.met the same fate. In about midSeptember one of his staff told him that thinners were being stored in a compartment. He was not able to confirm this for himself because he found the door locked. But he treated the information as true and serious. He realised that such storage was both illegal and potentially dangerous to his workman. He asserted that by reason of the thinners and the state of the drains he then told his foreman to advise the men to be careful when using the toilet: not to use it.too often: and not smoke there. He made no inquiry of other tenants. His complaint to the management office met with a denial of knowledge and reference on to the landlord.

15. On 1st October his attention was drawn to the state of the floor which he said was flooded because the floor drain was blocked, and that the stepping stones were then in position. The empty thinner tins were unmarked and he had no reason to and did not identify them. This state of affairs caused him he said to strengthen his instructions to the foreman which were to advise the men not to use the toilet at all. He and Miss Chu were unable to generate action from the managers or the landlord. On that day or 3rd October he sent in a casual worker to try to clear the floor drain, but his attempts failed. On 3rd October the flooding was worse and was reaching the corridor. Still being unable to stimulate action from the landlord, he and Miss Chu visited the management office that afternoon and threatened to notify the Fire Services Department unless some effective action was taken.

                    (5)    Wah Yip

16. Mr. Lee took over the tenancy, and the business which was already being conducted in this name in Flat D, on 1st October. He was at once made aware of the flooding in this toilet because it was soon overflowing into his premises and threatening his stock. He also got no response from the management or the landlord, although he succeeded in speaking to the latter. He sent in a plumber, who seems successfully to have repaired a basin tap washer, on 3rd October, but he also failed to unblock the floor drain. He did not use thinners himself, and knew nothing of the storage of thinner by Li Fung. He remembers wooden boxes being used as stepping stones and encouraged such use. He claims not to remember having seen metal tins also being used, but since they were unmarked he too had no cause to realise their true identity.

Liability

17. The cases against Li Fung and Wah Yip can be dealt with very shortly.

18. Li Fung created the dangerous situation in this toilet, knowing that it was being used both by their men and the employees of the other tenants. They clearly failed in their duty to both classes of men. They are liable in negligence, and probably also in breach of statutory duty both to the plaintiff; and to the deceased's estate.

19. Mr. Lee of Wah Yip on the other hand did nothing to. create this danger and was not aware of its existence. Whatever suspicions may attach to his predecessor, he was not identifiably responsible for any flooding, and took reasonable steps to avert it. Further, flooding alone did not give rise to a foreseeable risk of fire,, the. Wagon Mound (1961) A.C. 388. The claims against him must all fail.

20. The position of Eastern Time is more complex, with different considerations; arising on the two claims. To their own workman, the plaintiff, they owed a duty to take reasonable care not to expose him to unnecessary risk in the course of his employment. He was in fact so exposed and whilst in the course of his employment. The risk was one of which Mr. Li was made aware in September. His men did not have to use this toilet. The Flat C facilities were available. Appropriate instructions could have been given to such effect, and asserts Mr. Li, were given to the foreman. They never reached the plaintiff who received no warning or instruction at all. For this failure of communication Eastern Time are in my judgment responsible.

21. The much more difficult question that remains is whether Eastern Time are also liable to the deceased's estate. The first matter debated here was whether Eastern Time were join occupiers of this toilet with the other two tenants and with the landlord. Did Eastern Time have "a sufficient degree of control" in the words of Lord Denning p. 579; or sufficient "occupational control i.e. control associated with and arising from presence in and use of or activity in the premises" in the language of Lord Pearson p. 589; both in Wheat v. E. Lacon (1966) A.G. 552. Could the deceased properly be called a person "invited or permitted" by Eastern Time to be in this toilet in the words of section 3(2) of the Occupier's Liability: Ordinance, Cap. 314.

22. I think that the answer to these questions is probably no, but that they are in fact immaterial. Occupation of land is a source of duty: not necessarily the only source of duty. A's Lord Gardiner L.C. put it in Commissioner for Railway v. McDermott (1967) 1 A.C. 169, 186: "It is a ground of liability and it is not a ground of exemption from liability ................. There is no exemption from any other duty of care which may arise from other elements in the situation creating an additional relationship between the two persons concerned." Having regard to the terms of the lease, final control of this toilet remained in the landlord. The three tenants had only rights of user. As user they were "neighbours" in the eyes of the law. As such each was under a duty (adapting the wording of section 3(2) of Cap. 314) "to take such care as in all the circumstances of the case is reasonable to see that" fellow users "will be reasonably safe in using" the toilet for the purposes of a toilet. That was the. duty which in my judgment Eastern Time owed to the deceased. The content of this duty will then reflect the fact that none of the three tenants had sufficient "occupational control" to elevate them to the position of occupier.

23. Mr. Li was aware of two risks in this toilet. The first was the general risk of fire created by its use as a thinner store. The second was the risk of damage to health and from- flooding occasioned by the blocked drains. He was not aware of the peculiar risk created by the combination of flood water and empty thinner tins. On my findings he was not aware of the true identity of the tins used as stepping stones. They simply appeared to be serving a useful purpose. He could have brought about their removal, but there was no apparent occasion for such action. Over the two known risks he had no direct control. The source of the drainage problem apparently lay beneath the floor and in the landlord's domain. The thinners were stored behind a locked door. Those who had the power to police this improper use of the common parts were the managers. Mr. Li was right to direct his complaints to them and their lack of response was lamentable.

24. The only other avenue open was a report to the Fire Services Department. This became the main line of the estate attack. This was that it was apparent to Mr. Li that his complaints were getting nowhere before the end of September. He should not have been threatening a report on 3rd October: he should have made it some days before. He was altogether too hesitant, and put dignity before safety. After the happening of such an horrendous event, Mr. Li's concern not to stir up trouble on the 8th floor, however understandable at the time, can be made to appear a triviality.

25. In circumstances like this I think that the court has to be careful with the wisdom of hindsight, and slow to condemn as a negligent omission a failure by A to report B's criminal behaviour to the proper authority. Breaches of fire regulations, e.g. the use. of fire exits for the storage of goods, are I fear all too frequent in Hong Kong. If a failure to report such conduct is to sound in damages for negligence at the suit of an injured party then responsibility for the consequences of fire will extend far beyond those immediately responsible for the creation of risk and those with the immediate power to control or eliminate it. The position is I think analogous to that which has arisen several times recently in England, where the Court has been concerned with differring aspects of A's potential civil liability for B's deliberate wrong doing. In the absence of control by A, or of some special relationship between A and B, the Court's policy and its general approach has been.to recognize the existence of liability. in A only where the special facts of the case are exceptional: Dorset Yatch v. Home Office (1970) A.C. 1004, e.g. per Lord Morris p.1038 citing Dixon J in Smith v. Leurs (1945) 70 C.L.R. 256: Paterson Zochonis Limited v. Merfarken Packaging (1983) F.S.R. 273 per Robert Goff L.J. at pps. 296-9 : Perl Exporters v. Camden London Borough Council (1984) Q.B. 342: and King v. Liverpool City Corporation Times Newspaper 24 February 1986.

26. In my judgment this is not.such an exceptional case of obvious danger that it would in Lord Keith's phrase in Peabody v. Sir Lindsay Parkinson (1985) A.C. 210 241, be "just and reasonable" to impose liability on Eastern Time. Primary liability arises in the uninsured Li Fung. Their suspected inability to meet it and the absence of the landlord and true occupier are matters of regret. They do not tell against-Eastern Time. The acute risk here arose, in the circumstances I have described, not simply from thiner storage, but from the combination of flood water and empty tins. Of this Mr. Li, was not aware. In these circumstances in my judgment he was not negligent 'in failing to make any report to the Fire Services Department before 3rd October. Eastern Time are not liable to the deceased's estate.

Quantum

The deceased

                    (1)    The lost years

27. I am compelled to do my best here on very slender materials. The deceased was an only son who died intestate. His father and mother at the time of his death were aged 62 and 55 respectively. Neither was earning or was capable of earning more than about $600 a month. This was the approximate figure given by the mother in evidence. But she was so distressed and confused that it was difficult to be certain of anything except that the family means then, and more especially now, are very modest indeed. The deceased left school that summer because he recognized the need to earn money and support his family. 'He started evening classes instead. Apart from a brief period on a building site, Li Fung was his first real job. His pay was $30.80 a-day made up of $22.00 plus what was called an $8.80 meal allowance. He worked a average 26 day month. During his three weeks he impressed Mr. Ley as a friendly, conscientious young man. He only received his first fortnight's wages which he handed to his mother. She gave` him back daily what she now thinks was over $10 a day- for what basically must have been his meal away from home.

28. This tiny employment period was too brief to provide any sort of foundation for the future even if I had more reliable figures than I have. I have to take a broad view. First there is nothing to suggest that this responsible young man would have done other than his best to perform the duty he recognized in supporting his aging parents. Secondly such indications as I have are that he might have done better than average. It cannot be unreasonable to assume average earnings-based upon available statistics. Thirdly the cost of the fulfilment of his obligations to his parents, which had only just started, would increase over the years, and was likely to subsist in whole or in part for the whole of the 16 year multiplier it is agreed that I should take. Fourthly I can only try to estimate, as an average over this period, the percentage of his income which might be called surplus, which would have remained after deduction of his own personal expenses and of his share of the joint expenses: Wong Sai-chuen v. Tam Mei-chum (1983) HKLR 331 and Harris v. Empress Motors(1983) 3 ALL ER 561.

29. The statistics suggest that the deceased would probably now have been earning about $2,200 a month. I therefore adopt this figure for the future; and a median figure of $1,500 a month for the past. The actual surplus from this would have varied with income and demand over the' years. I can only try to arrive at a fair overall average and the best I can do here is to take 33.3%. This produces the following calculation:

                    (2)    Loss of expectation of life

30. The current conventional figure is $20,000. It was suggested that this is due for an increase on account of inflation. There is some force in this, but on balance I do not think the timing is appropriate when radical alteration of this branch of the law is in the offing.

                    (3)    Pain and suffering between 3rd and 15th October

31. The deceased's pain during this period was no doubt grievous even allowing (I 'hope) for the use of relieving drugs, and the fact that 'he seems to have been in coma for much of the time. But in the context of this case this claim appears to me somewhat unreal, and I hope I do not seem callous if I allow only a conventional $2,500.

32. In summary the figures are:-

33. This is the sum for which the deceased's estate is entitled to judgment against Li Fung.

The plaintiff

34. He was very seriously burned. The hospital estimate was that approximately 8% of the skin surface was affected. Dr. Wedderburn's estimate some two years later, was the more modest one of 40% with 10% of this second and third degree burns. This is still a very grave figure. The limbs most affected were the.arms and. hands. He was an in-patient for 2½ months, and later had to return to hospital for further skin grafting to the left hand. The burns affected the function of most of the joints in both hands. Notwithstanding prolonged and painful physiotherapy, a material loss.of function remains. The details are fully set out in Dr. Wedderburn's report, and produced in his estimation a total whole-man impairment referable to the right hand of 16% and to the left of 20%. As against a pre-accident estimate of 70 pounds, the doctor estimated the right hand grip at 20 pounds. This is certainly the best hand, and there may have been a slight further recovery of function in the thumb and index finger. By contrast there is very little grip in the left hand which was estimated at only 5 pounds. This is because there is permanent deformity of the terminal phalanxes in the thumb and two of the fingers of this hand. At best the total functional impairment is now not less than 35%.

35. In addition the burns have caused permanent and very obvious discolouration and scar ring some keloidal. This is most obvious on both hands and forearms, the neck, the right ear and parts of the face. There is also conspicuous scarring to both thighs which also suffered from being donor sites. The back was also affected. This is naturally disturbing to the plaintiff. More upsetting to him, I think, is the impact these scars have on others. He described the steps he is now compelled to take to avoid travelling at peak periods in public transport so as to minimize the risk of public reaction. The doctors attempted to access the impact to this scarring in percentage terms. Dr. Wedderburn put it at 15%: Dr. Au as "at least 25%". The difference was revealing. It is recognized that there is something in  the physiology of the oriental skin which makes it more susceptible to hypertrophic and keloidal scarring. The evidence of the plaintiff and Dr. Au revealed a further unhappy difference which is 'that the impact of scarring 'upon an oriental is the more serious because of' its affect both upon him and upon others. In addition the pain occasioned by these burns over a prolonged period must have been acute. I say prolonged because he was having to wear pressure garments into 1982. The scars remain a source of pain, stiffness and irritation.

Loss of earnings and the diminution in earning capacity

36. The plaintiff's manual disability rules out any sort of work which is either very heavy or very fine. He says that he was first able to find work after the accident on 16th June 1983. This was as a lift operator. He claims total loss of earnings until this date upon the basis that although his sick leave expired late in 1981, and although he felt ready to return to light work before June 1983, and was looking for such work, he was unable until then to find it.

37. This is challenged by Eastern Time who asserted that in 1982 they were.. willing to find suitable work for the plaintiff, and that he unreasonably failed to take up their offer. Unfortunately, in my judgment such discussions as took place between the plaintiff and Mr. Li, when the plaintiff came to collect his sick pay during 1981, never went beyond generalities. Mr. Li never explained to the plaintiff what he had in mind, which was to try, by experiment, to create a job.specially for the plaintiff. Based upon his earlier experience, the plaintiff only knew that Eastern Time had no suitable existing job. He therefore took the view that it was pointless to apply to them for employment. Having failed to make their position clear Eastern Time must fail to bring home their allegation of a failure to mitigate. This conclusion is supported by Eastern Time's failure openly to offer employment when in September 1982 the Statement of Claim was. served and revealed the plaintiff's continuing unemployment.

38. It follows that the plaintiff is entitled to recover total loss of earnings until June 1983 and partial loss thereafter. The question then becomes one of rate; what varyingdaily rate should be used from time to time throughout this period, applicable to an assumed 28 day working month, which makes an appropriate allowance for then ruling basic rates, incentive or new year bonuses, and. overtime. A number of detailed and complex calculations were put before me, based either upon another employee of Eastern Time or upon the available statistics. Other possibilities emerged. A Court should not, I think, be confused by detailed mathematics into thinking that precise calculation is possible. It can only estimate. For this purpose and based upon all the material put before me I have derived the following monthly rates for the years in question.

39. From this must be deducted:-

The net figure for actual loss of earnings is accordingly $24,439.00

Future Loss

40. There is a difference (in round figures). of $400 between the plaintiff's present actual earnings of $1,790 a month and my assessed $2,200. I was urged by the defendants to apply a multiplier of 8; by the plaintiff one of 10. However conventional they may have since become, multipliers I think, must still be based upon "interest rates of 4% to 5% whether the judges using them were conscious of this or not" per Lord Diplock in Cookson v. Knowles (1979) AC 556, 571. The appropriate English table for the assessment of loss of earnings. to 65, ,for a man of 48 at trial, at 5% is 10.7, Kemp & Kemp 8 - 029. I do not think the Hong Kong rate can he lower than 9. This is the figure I take and it produces a calculation of $43,200. To this must be added a factor to allow for the plaintiff's obvious discount in the labour market: his difficulty. in finding new suitable light employment should, for any reason, his present job be lost. The best I can do, I think, is to allow a total of $60,000 for future loss under both heads.

Pain suffering and loss of amenity

41. As is now common place. where a plaintiff's injuries are serious, much of the argument here centred upon the scales and descriptions in Lee Ting-Lam v. Leung Kam-Ming (1980) HKLR 657: especially what are the current equivalents of the ranges of figures therein set out and should these injuries be described as "serious" or, "substantial". This argument, I think, reflects a deeper uncertainty.

42. The first of these problems gets more difficult as time passes. The great value of guidelines is to help to secure consistency of awards, fairness between plaintiffs. "An award of damages in personal injuries cases is basically a conventional figure derived from experience,and from awards in comparable cases" said Lord Denning in Ward v. James (1966) 1 QB 273, 303. When citing this with approval in Wright v. British Railways Board (1983) 2 AC 773, 777. Lord Diplock went on to point out that comparable awards have to reflect "the general increase.in the level of salaries and wages and, more particularly since inflation became rampant, the decrease in the real value of money due to this cause". More attention has so far been directed to the latter than to the former. In Chan Wai-Tong v. Li Ping-Sum (1985) 1 AC 446, the Privy Council upheld a 50% increase for inflation allowed by the Hong Kong Court of Appeal in that case to cover the period up to August 1983. To bring the matter up to date I have normally been invited to uplift the ranges by 60% for inflation and have done so. The latest statistics published in Hong Kong 1986, of which I have taken judicial notice, confirm that since October 1979/September 1980 both Consumer Price Indices (A) and (B) have risen by 161/162 points.

43. For two reasons I am now persuaded that this adjustment is insufficient. The average wages figures before me in the electronics and clocks and watches industry are instructive. They show that between September 1979 and September 1985 wages more than doubled and to that extent outstripped inflation. The figures for March 1986 are not yet out, but are certain to show a further increase. That these figures understate rather than overstate the general position is shown by the following summary published in the South China Morning Post on 16th March 1986 as part of its review of Hong Kong 1986:

"In September 1985, 75% of manual workers in manufacturing industries received daily wages (including fringe-benefits) . of $79 or more (men $90 and women $75) and 75% received $115 or more (men $133 and female $104). This is a dramatic increase compared with the 1970s. In September 1979 75% of manufacturing workers received daily wages of $29.95 or more (men $32.81- and women $29.15) and 25% $45.26 or more (male $55.40 and female $41.50)."

44. On these figures the percentage increases on and since 1979 figures are: -

For 75% $29-95 + $49.05 = $79  = 163.8%

For 25% $45.26 + $69.74 = $115 = 154%

So if the scales are to keep up not simply with inflation but with the "general increase" in wages levels they should rise not by 60% but by something sufficient to reflect this 150% increase.

45. The need for a substantial rise seems to me to be confirmed by the range of recent decisions put before me. These again reveal how much time is spent debating the ambit of the descriptions in Lee Ting-lam rather than looking, as the Privy Council said we should, to the injuries themselves, p. 458. I fear this to be an inevitable consequence of such classification. Injuries fall naturally into the general physical categories commonly used by textbook writers and law reporters. Out of these certain scales emerge as a matter of course, e.g. the difference between a leg amputation above arid below the knee. But I think that any attempt to go further and impose a scale based upon degrees of severity applicable to all natural categories is calculated to founder on the problem of definitions. The argument necessarily centres on these: they become elevated into "statute": and produce the result critized by the Privy Council. In any event, it seems to me that concentration on words like "serious" and "substantial" has masked the fact that unless the ranges are raised substantially, there is insufficient headroom between injuries properly called "serious" in a number of recent decisions, and the very much more grave injuries described in Lee Ting-lam's case and there initially put in the "substantial" category.

46. Although the need for a substantial re-adjustment is to my mind clear, I have searched in vain for any good reason or any rational basis for suggesting a particular figure or percentage. I have found myself unable to do more than make such allowance as the present facts seem to me to justify. This is because I can identify no clear starting point; and because l have failed to discover the true criteria which now govern Hong Kong awards for pain and suffering.

47. Individual wage levels directly govern damages for loss of earnings: and substantially govern lost years and fatal accident dependency claims. To these cases we apply English principles and make unqualified use of English authority regardless of the level of earnings. This specifically is the case as regards both those earning English and those earning Hong Kong levels fo wages (assuming they differ). For pain, suffering and loss of amenity it is quite different. Everybody, regardless of his position in the wages scale, gets rather less than half his English equivalent, per the Court of Appeal in Chan Wai-Tong v. Li Ping-Sum (1985) 1AC 446, 455. English authority can be relied upon for principle's but not for any assistance on figures, on the e product of such principles. Comparatively speaking it is much cheaper in Hong Kong to maim than to kill the higher wage earner.

48. This conclusion follows from the establishment in Hong Kong of binding scales of awards which must be taken to be regarded as appropriate to the "social, economic and industrial conditions of Hong Kong" in the words of Lord Morris. in Jag Singh v. Toong Fong Omnibus Go. Ltd. (1964) 1 WLR 1382, 1385. But such authority as I have been able to find is wholly silent about what such conditions were perceived to be when these scales were fixed: about how adversely such conditions were seen to compare with contemporary conditions in England; and the reasons for adopting scales in excess of 50% below those than current in England. It follows that a trial judge has no basis for considering. the contemporary validity of such an approach in the apparently more prosperous or caring conditions of the 1980s. But this seems to me precisely what needs to be done.

49. In Li Ping-sum Lord Fraser said that the exclusion of references to English authorities which, with or without a given adjustment scale, might otherwise provide great practical assistance was right, "unless and until the courts in Hong Kong are satisfied that the social and economic conditions, including especially the rate of earnings, in Hong Kong are similar to those in England" p. 457. I have already noted the considerable increase in wages. Beyond the generalisation that any gap between Hong Kong and England probably disappears some way below the higher levels, a precise comparison between the two locations is not possible. From my part however, I would question the relevance of anything more than a gross or very substantial disparity in wage levels. The impact of a burn is the same whether the victim is earning $1,000, $10,000 or $50,000 a month. It might be different where gross differences existed because they might reflect a general level of social and economic conditions where hardship, deprivation, lack of amenity and suffering was common place. In such circumstances a lower level of awards for loss of amenity is understandable.

50. From my part I would question whether any such gross.disparity of wages exists sufficient to bring this principle into play; or, if I am wrong, whether such disparity as may. exist is sufficient to justify such a substantial difference in the levels of awards in the two locations. Nor is it clear to me why other elements such as the level of available welfare, care and support facilities should not be considered They go directly to the need of the injured person and to his reliance on his award. If relevant they would point to higher not lower award levels in Hong Kong. I find my present inability to understand or explain present disparity embarrassing. I cannot for example, start to explain to this plaintiff why I should be compensating him for his scarring at an overall scale which approximates to half the English rate, in face of unchallenged evidence that such an injury is if anything more disabling in Hong Kong. But a trial judge, especially a comparative new comer to this jurisdiction, is the last person to make any reassessment. 'The Courts in Hong Kong" in this context must, I think, mean the Court of Appeal. A trial judge can only incite that Court to reconsider the feasibility of severity scales: to state the Hong Kong criteria: to re-state guidelines under whatever descriptions it chooses: and to describe the true present proportional relationship between Hong Kong and English awards and the reasons therefor.

51. I put in a particular plea for the latter as the best solution to this problem. If trial judges can be told that the appropriate level of awards in Hong' Kong in 1986 is English scale less x%, then they will have the assistance I think they badly need: access to the full range of English reported experience without any need for further definition or classification.

52. I accept Dr. Wedderburn's estimate of the functional loss at about 35%. The right is the preferred hand, and I think this percentage fairly reflects the combined defect of the injury to both. Having seen the scarring and heard of its effect upon the plaintiff and others, I am more inclined to agree with Dr. Au's assessment of its impact, which is how I read this percentage. I can see no advantage in spitting the assessment. I have to arrive at a single figure which is intended to cover every aspect. That at which I have arrived is $135,000.

53. In respect of the plaintiff the calculation is:-

This is the sum to which the plaintiff is entitled to judgment against Eastern Time and, for what it is worth, against Li Fung also.

Contribution

54. The only relevant claim here now is that of Eastern Time. against Li Fung. This could be wholly academic. It is governed by section 19(2) of the Law Amendment & Reform (Consolidation) Ordinance, (Cap. 23). The test is what is "just and equitable having regard to the extent of" Li Fung's responsibility for the plaintiff's injury. Li Fung created the danger. But I do not think it right to ignore the complete failure of communication within Eastern Time which materially contributed to the plaintiff's exposure. Between themselves I would apportion liability between Li Fung and Eastern Time at 2/3 : 1/3. Eastern Time are accordingly entitled to contribution from Li Fung in a sum equal to 2/3 of its liability in damages to the plaintiff i.e. $146,292.

Interest

55. This action went to sleep for two years after the making of the order for consolidation on 28th July 1983 and it was not set down until 22nd November 1985. No very convincing explanation of this has been offered. The defendants argued that they should not be held liable for damages influenced by contemporary wages scales which are higher than those ruling two years ago, and have to pay two years additional interest. I agree. Subject to hearing counsel upon the rates and the details :my award of interest is as follows:

                    (1)      The plaintiff

                    (2)      The estate