CHAN WAI YAU AND ANOTHER v. HA HUNG YIU t/a SEE HING METAL WORKS FACTORY

1988, No. A5302

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff claims damages in respect of injuries sustained to his left hand in an industrial accident.

2. On 1st August 1985, when aged 16, the Plaintiff was working during his school holiday at the Defendant's factory. The Plaintiff was operating a power press machine when his left hand was trapped in the machine and crushed.

3. The writ was issued on 28th July 1988, and interlocutory judgment was entered on 20th October 1989, no notice of intention to defend having been given.

4. At the assessment hearing, I heard evidence from the Plaintiff himself, an orthopaedic surgeon, and the Plaintiff's mother. In addition, a bundle of documents was adduced which was subject of a Hearsay Notice. Although present, the Defendant did not give evidence and did not seek to dispute the nature of the injury and its consequences.

5. A Certificate of Assessment from the Employees' Compensation Assessment Board was included in the bundle of documents, showing that loss of earning capacity had been assessed at 5%.

6. Dr. David T. Lee was called to give evidence and explained his report of 12th September 1988, which was included in the bundle of documents. The Plaintiff had sustained skin lacerations, tendon lacerations, and fractures of the phalangeal bones of the middle 3 fingers of the left hand. Whilst the Plaintiff was giving evidence, I examined the hand and the scarring on the palmar aspect of the 3 fingers is very obvious, together with some deformity of the fingers. The Plaintiff has a lack of flexion in the 1st joint of the middle finger, which prevents him fully extending the joint, it being always flexed at 20°. The Plaintiff has a similar lack of flexion in the ring finger. The overall effect of the permanent disability is that the Plaintiff cannot make a full fist with his left hand. Dr. Lee agreed with the assessment of loss of earning capacity, and explained that it was due to loss of dexterity rather than strength. He said that compared with a normal worker the Plaintiff is less dextrous as a result of his injury, and that this is a permanent condition.

7. The Plaintiff is now 21. At the time of his accident he was earning $1,800 per month. But for the accident he would have continued working for the Defendant for a further 6 weeks before returning to school and therefore lost $2,700 in wages. The Plaintiff and his mother gave evidence as to the claims for special damages. Since the evidence differed from the Statement of Claim, Mr. Hamblin applied for leave to amend the Statement of Claim, which I granted. The evidence established payment of medical fees totalling $438, cost of travel to medical treatment of $525, cost of relatives travelling to hospital of $160 and cost of provision of tonic foods of $4,000. Those sums are awarded, together with loss of earnings of $2,700, as special damages.

8. The Plaintiff explained that he completed a course of training at school as an electrician, but started work as a plumber. After working at 2 jobs as a plumber, the Plaintiff gave up this line of work because he found that the injury to his hand interfered with his ability to do the work. Since then he has had a job in a warehouse which at first involved manual work, but is now purely clerical, his present earnings being $5,300 per month. The Plaintiff said that if for any reason he lost his present job he believed he would have no great problem finding a job on a construction site, although his injury would affect his ability to get such work.

9. The Plaintiff told me about the pain he suffered at the time of the accident, after his first operation, and during treatment and physiotherapy. He had a subsequent operation to loosen the skin and tendons of his fingers. The Plaintiff said that before the accident he had liked playing basketball, but seldom played since because of the effects of the injury, but conceded that one reason he seldom played now was his job. He told me his left hand is still painful and stiff at all times. He is right-handed.

10. Mr. Hamblin submitted that general damages should be awarded in 2 categories, namely pain, suffering and loss of amenity, and loss of earning capacity. As to the second category, Mr. Hamblin submitted that this was to take account of the risk of disadvantage in employment prospects due to the injury.

11. Mr. Hamblin referred me to the following helpful authorities involving similar plaintiffs and injuries:-

(1) Chan Hung Hoi v. Polypropylene Alliance Ltd., H.C.A. No.A2709/86.

(2) Tran Van Nho v. Cheuk's Industries Co. Ltd., H.C.A. No.A719/86.

(3) Tam Siu Keung v. Sum Chee Hon Manufactory, H.C.A. No.A8165/84.

(4) Tang Ming Kwan v. Yip Chi Ming, H.C.A. No.A4867/85.

12. Mr. Hamblin submitted that on these authorities, given the time which has elapsed since, the proper range for pain, suffering and loss of amenity is $50,000 to $70,000, and that for loss of earning capacity $60,000 to $110,000. I accept that submission as being broadly correct.

13. For pain, suffering and loss of amenity I award the sum of $60,000.

14. As to loss of earning capacity, as matters have turned out, the Plaintiff at this point in his life is not under a disadvantage because of his injury, since his job is purely clerical. I do however accept that this fortunate state of affairs may not be permanent, and that if for some reason the Plaintiff lost his present job and had to return to manual work he would be under a definite disadvantage. For loss of earning capacity I award the sum of $75,000.

15. The awards of damages are, therefore, as follows:

16. There will be interest on the pain, suffering and loss of earnings element of the general damages at 2% from the date of the writ until the date of this assessment, and at 5% on the special damages from the date of the accident until the date of this assessment.

17. The only controversial issue in the assessment has been the question of what abatement should be allowed in respect of an employees' compensation agreement entered into by the Plaintiff and the Defendant in the sum of $16,366.67. The Plaintiff's mother maintained that the Defendant had only paid $2,000, while the Defendant gave evidence that he had paid $2,000 initially and then a total of a further $9,000 by 3 instalments of $3,000 each directly to the bank account of the Plaintiff's mother. Neither party was able to furnish any documentary evidence as to payments. I reserved decision upon this issue until the day of delivering the assessment. As a result of further submission from the parties I find that the Defendant has paid the sum of $11000.00 towards the employees' compensation agreement figure and this assessment is abated to that extent.

18. Defendant must pay the Plaintiff's costs of this assessment to be taxed if not agreed, with the Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.