LAI YEE KIN v. TOP-CROWN ELECTROPLATING FACTORY LTD.

1986 No.A628

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 claims damages for injuries to his left hand which was crushed in a power press during his employment by defendant. As a result of the accident parts of four fingers were amputated.

2. The accident occurred on 1st September 1983. The writ was issued on 1st February 1986, and interlocutory judgment was entered in default of notice to defend on 9th May 1986.

3. The defendant has taken no part throughout these proceedings and was absent at the hearing of this assessment.

4. A bundle of documents was produced under hearsay notice. These included medical reports, evidence of plaintiff's earnings and figures from the Department of Census and Statistics on average earnings in his trade.

5. The initial admission report from the United Christian Hospital revealed crushing injuries to the left hand. The index finger suffered loss of pulp and the other three fingers traumatic amputations. The treatment was by way of revision amputations of all fingers and closure of stumps. This report was dated 26th October 1983 and was produced as Exhibit P. 3.

6. Dr. Wedderburn's report of 28th March 1985 was produced as Exhibit P. 7. The doctor found that the injured hand was the plaintiff's preferred hand and noted his handwriting with the other hand to be of "very poor quality".

7. In regard to the injuries the doctor noted the loss of the terminal phalanx of the index finger and of the terminal and middle phalanges of the remaining fingers. The thumb was intact. There was good soft tissue cover over the amputations and discomfort was felt only if the stumps were bent acutely forward. The doctor found a 38 pound grip with the injured hand as apposed to 60 pounds with the right hand.

8. As to impairment, the doctor found a 45% impairment of the index finger, giving 6% of the wholeman, and 80% impairment of each of the other fingers, giving 8%, 4% and 2% wholeman impairments respectively for the middle, ring and fifth fingers. The total wholeman impairment was therefore 20%.

9. Assessing the plaintiff's earnings related disability as a manual worker, the doctor estimated that it would be at least 30%. I accept the doctor's assessments.

10. Speaking of his injuries the plaintiff testified that he felt considerable pain at the time of the accident. He had an anaesthetic injection once in hospital when he was in pain. He was initially in hospital for seven days and was re-admitted from the 3rd to 10th October 1983 when he underwent physiotherapy. He said he sometimes took pain killers but stopped about two months after his second discharge from hospital.

11. As to residual pain, the plaintiff said that he sometimes suffers pain in the injured hand in cold weather. Only occasionally did he need treatment for this.

12. Discussing his changed lifestyle, the plaintiff claimed to have been deprived by the accident of his regular enjoyment of both table tennis and badminton. He also said he had had a close girl-friend with whom he was considering marriage. This relationship had stopped as the girl claimed that his injury would prevent his working after marriage. The plaintiff now had another girl friend, but the relationship had not matured enough for marriage to be discussed.

13. I accept the plaintiff's evidence of his injuries and the deterioration in his recreational and social lifestyle which they have occasioned. The cosmetic disability and the plaintiff's awareness of the effect of this on others are also factors I bear in mind.

14. I also accept that the plaintiff's prospects of marriage have diminished. In this regard there is both the cosmetic factor and the economic factor, the latter of which was illustrated by the attitude of his former girl friend. All these matters call for consideration in assessing compensation.

15. The plaintiff was a quiet young man and gave his evidence well. I fidnd no reason to suspect that he may have exaggerated.

16. Counsel cited a number of relevant cases. In Ho Ping Shui, HCA 1547 of 1985, the facts were very similar to the present case, although the injuries were less serious and the earnings related disability was assessed at only 22 - 25%. The plaintiff in that case also seemed better placed as to job prospects. General damages of $100,000.00 were awarded in September 1986.

17. In Tam Siu Keung, HCA 8165 of 1984, $80,000.00 was awarded in July 1987 for a hand injury which was similar in nature but considerably less serious. Two fingers were fractured, one other was partly amputated, and the wholeman impairment was assessed at only 10%.

18. In Tse Yuk Lun, HCA 1426 of 1983, $75,000.00 was awarded in April 1984 for injuries of a broadly similar nature. Updating this award for inflation by the accepted factor of 10% per year, a figure in excess of $100,000.00 would be realised today.

19. In this last case however, the cosmetic factors and diminution of marriage prospects were not mentioned. Both of these are factors I find relevant to the present case.

20. I therefore find the appropriate level of compensation for pain suffering and loss of amenities to be $130,000.00. That sum is awarded.

Pre-trial loss of earnings

21. Counsel for plaintiff concedes that the plaintiff's average wage since the accident slightly exceeds the median statistical figure between accident and trial date. He therefore claims only for those periods when plaintiff was not working at all.

22. After the accident the plaintiff did not work until 28th February 1984. During this period his employer paid him a total of $5,914.00. This figure emerges from the defendant's statement, signed by the plaintiff, and produced as exhibit P. 13.

23. Exhibit P. 10 contains average earnings figures produced by the Department of Census and Statistics. For the month of September 1983 the figure for metal products workers is $75.00 per day for a 26 day month. I accept that figure in assessing plaintiff's loss during the immediate post-accident period.

24. For the six-month period of September 1983 to February 1984 inclusive the plaintiff's potential earnings as a metal worker were -

6 x 26 x 75 = $11,700.00.

againt this the plaintiff received $5,914.00 from his employer. His loss for that period is therefore $5,786.00 which is duly awarded.

25. The plaintiff testified that he was out of work in January and February 1986. He gave no particular reason for this save that he could not find suitable employment. He has however been employed throughout almost the entire post-accident period and I accept that he was not malingering during these two months.

26. Exhibit P. 11 from the Department of Census and Statistics gives $108.00 per day for a 26 day month as the average earnings of metal workers in 1986. I accept those figures and apply them to the two month period of plaintiff's unemployment. This gives -

2 x 26 x 108 = $5,616.00

as his loss. That sum is awarded.

27. The plaintiff testified that he worked as a decoration worker from July 1987 until the end of August, when he again lost his job. No reasons were given, but I accept from his background and demeanour that this was not through his own fault.

28. The appropriate statistics for 1987, as appearing in Exhibit P. 12, are $105.00 a day for a 26 day month. I therefore award the sum of $2,730.00 for the period from the end of August to date of trial.

Post-trial loss of earnings

29. Before the accident the plaintiff's occupation was that of a skilled, or at least semi-skilled worker. His jobs since the accident have varied from casual worker, to acupuncturist's assistant to quality controller in a Shenzen factory. There have been several others in between and he is even now out of work.

30. That the accident has introduced an element of uncertainty into the plaintiff's working life is beyond argument. This uncertainty will relate both to the nature of his employment and to his ability to compete for employment when unemployed. It is a blunt fact of life that most employers will prefer a man with two normal hands. The uncertainty factor is exemplified by his employment in Shenzen, when he left his second job because his employer did not pay him for 3 or 4 months.

31. Counsel has correctly not sought quantification of future loss on a multiplier/multiplicand basis. The quantum of loss is a matter for speculation, although the likelihood of loss itself I accept as proved. In the circumstances I propose to award a global sum as compensation both for future loss of earnings and for loss of earning capacity. Any distinction between the two is academic in this case.

32. Bearing in mind the severe mutilation to the plaintiff's hand and his likely working life of some 25 - 30 years. I award $80,000.00 under this head. This award will not attract interest.

33. There remains the claim for special damages, of which no proof has been tendered other than the plaintiff's own testimony. The claim for $3,000.00 for nourishing food I find to be high. In the absence of other evidence I award $2,000.00 for this item. The claims for damaged clothing and travelling expenses to and from hospital are modest and total only $350.00. That sum is awarded.

34. Summary

35. There will be interest at 2% on the general damages from the date of writ to judgment, and interest on pre-trial loss of earnings plus special damages at 4% from date of accident to judgment.

36. Credit will be given to defendant for plaintiff's Employees' Compensation award of $39,886.00. Plaintiff's costs are to be paid by defendant and his own costs are to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for counsel.