YIP KAM HUNG BY HIS FATHER AND NEXT FRIEND YIP FUNG LOI v. LEUNG SAM NGA

1986 No. A7337

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. The Plaintiff's claim arises out of an industrial accident that occurred on 17th January 1984 in the course of the Plaintiff's employment with the Defendant in his poultry business. The Plaintiff, aged 16 then, was an apprentice poultry worker of the Defendant when he sustained severe injuries to his right eye consequential upon the manually operated kerosene pressure burner exploding in his face while he was operating the piston pump thereof. The Plaintiff sues by his father and next friend, Yip Fung Loi, for damages for negligence and breach of the contract of employment. Interlocutory judgment in default of notice of intention to defend was entered on 19th February 1987 for damages to be assessed. Hearsay notices of the records of the Employee's Compensation Claim and various medical reports were served on the Defendant on 13th March 1987 and 22nd April 1987.

2. The Plaintiff gave evidence but called no witness at the hearing of assessment. The Plaintiff was born on 10th June 1968. As a result of the accident he was rendered unconscious, suffered numerous lacerations to the eye-lids and his right eye ruptured. He was hospitalised for 14 days and was discharged on 30th January 1984. The ruptured eyeball was repaired and the lacerations to his eye-lids sutured. Subsequently his ruptured right eye was noted to be phthisical (shrunken) and an artificial eye was fitted. He attended follow-up treatments at the Yaumatei Eye Clinic on 11 occasions between February 1984 and November 1985. As disclosed by Dr. William J. Heffernan's report dated 19th March 1987, there is a total loss of vision in the right eye. The Plaintiff complained, inter alia, that the prosthesis is sometimes uncomfortable, and the right eye waters occasionally. The prosthesis was, according to the doctor, too large causing it to have a large, immobile, staring appearance. This is confirmed by his appearance in Chambers on 19th June 1987. Dr. Heffernan was of the opinion that the total loss of vision in the right eye constitutes a 25% defect in the visual system and a 24% defect in the whole man. The Plaintiff has lost the 3-dimensional vision with the disability to judge distance and depth. The Plaintiff also suffers a visual field defect i.e. narrowing of the field of vision. The doctor estimated the costs of a new prosthesis to be in the region of $6,000 which would lest for 8 to 10 years when it will have to be replaced. Also the Plaintiff will require an ophthalmological examination annually.

3. The Plaintiff was assessed by the Employee's Compensation Board to suffer a loss of 30% in earning capacity. In Form 2 of the Employee's Compensation Claim, the Defendant stated the Plaintiff's monthly earnings to be $1,700 ($1,400 basic salary + $300 free food) at the time of the accident and his average monthly earnings for the 12 months preceeding the accident to be $1,300.

4. In evidence the Plaintiff said he continued to work for the Defendant after the accident until April 1985. He did not say what amounts he received from the Defendant during this period. In the premises there is no evidence of the Plaintiff suffering any loss of income up till April 1985. He said he worked at Cafe do Coral between 1st April 1985 and 1st August 1985 for $1,850 per month. He said had he stayed in the poultry business he would be getting $3,100 per month for that period as an apprentice. Between 1st August 1985 and end of February 1986 he worked at Kwan Kee, a poultry business, earning $3,800 per month. He claimed he should be making $4,200 normally  for that period. Between March 1986 and end of July 1986 he earned, on the average,about $2,380 - $2,550 per month ($ 170/day for 14/15 days) as substitute workers at Kam Kee.  He admitted he could have worked as a permanent worker if he chose to. He did not take up emnloyment as a permanent worker, which would bring in a monthly income of $4,200, because the work would be more difficult and working hours are longer (7:00 a.m. to 7.00 p.m.). He alleged that would be a strain on his eye and sometimes brought about a headache. Since August 1986 and until the date of the assessment the Plaintiff worked as a daily worker at a poultry shop in Yaumatei at an average monthly income of $4,200 ($150/day for an average of 28 days per month). At first he said he worked shorter hours as a daily worker as compared with a permanent worker, and that the wages of a permanent worker would be less than s daily worker. Then he said his "partner" who works as a permanent worker in fact earned about $4,800, i.e. more than he did. Then he also conceded that his working hours are the same as permanent workers.  A permanent worker has 2 days leave a month. He would not get double pay which is a benefit given to permanent workers only. However, he said he dislike to work as a permanent worker as sometimes his "partner" would look at him in a discriminating way because of his prosthesis. He said in fact his present employer is willing to employ him as a permanent worker at $4,200, but that he declined to accept that as he thought he should be getting $4,800 like his "partner". Put he agreed his "parner" was older and more experienced. However, he alleged his present employer had once employed an apprentice at $4,500 per month. He said he left the employment with Cafe de Coral of his own accord as he refused to wear spectacles as requested by the manager. He left all the other jobs of his own accord as well as he did not get along with his partner because he felt they had the feeling that he was useless. He tried, at first to say that the effect of loosing an eye was that his eye became watery after working for a long time. Subsequently he agreed that was caused really by the heat of the stove. He said when he tried to work hard at things his eyes would start to get wet. He alleged he suffered discrimination as people forced him to work longer hours because they felt he was useless. He said he should be qualified as a master at the beginning of 1987 but he is still getting an apprentice's pay. There is now no new blood joining the trade.

5. The plaintiff claimed the following heads of damages :- pre-assessment loss of earnings, costs of two prosthesis and annual medical examinations as special damages; and pain, suffering and loss of amenities and loss of earning capacity/handicap in labour market as general damages.

6. I accept the medical evidence that the prosent prosthesis is ill-fitting and a replacement should be made. I also accept that the prosthesis would only last 8 to 10 years and that costs for a further replacement should be provided. In the premises, I award the costs of two prosthesis ($6,000 each) in the sum of $12,000. I also allow the costs for the annual ophthalmological examination suggested by Dr. Heffernan. I find the suggested figure of $100 per visit and the multiplier of 15 to be reasonable and I award the sum of $1,500 accordingly. I was referred to the unreported cases of Leung Nai Wing v. Hsing Kieng Shing (H.C.A. No. 8451 of 1985) and Young Wing Yin v. Motor Electric Manufacturing Co. Ltd. (H.C.A. No. 2676 of 1981) ,(both decisions given in 1985) and the awards of $100,000 and $120,000 respectively made therein for pain, suffering and loss of amenities. The Plaintiff in Leung Nai Wing's case sustained multiple facial lacerations and loss of the right eye and the said award was agreed by the parties. The Plaintiff in the other case was aged 20 at the date of the hearing and 1 of his eyes was rendered virtually useless with the remaining eye having a 6/18 vision when best corrected due to high degree of corneal astigmatism. He had to stop work for 8 months. The eyes will be affected by bright sunlight and he would have difficulty in coping with heavy work. Awards in the 1970s to early 1980s for similar injuries ranged between $50,000 to $66,000. Having considered the authorities and the effect of inflation, I agree that the appropriate award under this head is $110,000 as suggested by the Plaintiff.

7. I now turn to his claim for loss of past earnings and earning capacity. After careful consideration of his evidence I have come to the conclusion, not without some reluctance, that his failure to keep a job was of his own volition regrettably due to the way he felt about how others treated him as well as his dissatisfaction towards the working environment and condition. I do not find his opinion on how much he should be earning but for his injury to be reliable at all. He agreed that the scale of pay depends on the experience and skill of the worker. There is no evidence to support any allegation that his injury to the eye has any effect on his competence and skill in his work, or that it resulted in the alleged reduced renumeration he had been receiving. I do not accept any suggestion that the normal working hours of a permanent poultry worker would cause a strain to his eye or any headache though it might have caused some watering. In fact, he worked the same hours as a permanent worker though he is a daily worker at his present job. He still refuses to become a permanent worker without just cause. I also do not accept his allegation that his employers discriminated against him as a result of his injury. I am not satisfied that he had suffered any loss in his actual earnings as a result of the loss of his eye. The rate of his present salary was attributable to his having less experience than his "partner". Despite the fact that there is no new blood joining the trade, which will mean that ability to secure his kind of job ought not be difficult in future; one must recognise the disadvantage he suffers in an open labour market. An award of $60,000 was made in Leung Nai Wing's case for this handicap (age of Plaintiff unknown). Taking into account the young age of the Plaintiff, the limitation on his choice of career consequential upon loss of an eye and the disadvantage he would suffer in the labour market, an award of $50,000 is made for the loss of earning capacity.

8. In tho premises, the net award is :-

9. There will be interest at the rate of 2% per annum from the date of the writ to the date of this assessment on the net award of $90,700. Costs of this assessment to the Plaintiff to be taxed if not agreed. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.