MAK YIU KEUNG v. HO CHEUNG KAT

1991 No. A2413

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. These proceedings arise out of an accident sustained by the Plaintiff at work on 11th July 1988 in the course of his employment by the Defendant. The Plaintiff, who is a carpenter, was working in a private house in Tai Po constructing a wooden ceiling for which he had to cut beams to the correct size with an electric saw mounted on a trestle table. In the course of doing so, while reaching over the saw to remove the cut piece of wood, the saw, which had no guard, came into contact with his left wrist and hand, cutting it to such an extent that his left hand was almost completely amputated. He was taken to the emergency unit at Prince of Wales Hospital where the doctors attempted the first of a number of reconstructive operations over the next few years to try to restore, unsuccessfully as it turned out, some use to the hand.

2. These proceedings were commenced on 8th April 1991, and interlocutory judgment was entered against the Defendant, who has admitted liability throughout, on 28th June 1991. At the hearing of the assessment a number of documents were tendered in evidence under the provisions of section 47 of the Evidence Ordinance, including medical reports, an occupational therapist's report and statistical tables, the only oral evidence being from the Plaintiff himself.

Pain suffering and loss of amenities

3. Since the date of the accident, the Plaintiff, who was then aged 31, has undergone 7 operations in Hong Kong, and a further 5 in China, the last being in 1992. These were for, inter alia, revascularisation, Silastic rod insertion, re-amputation of the left little finger and fixation of fracture, subsequent removal of the Silastic rods, K-wire fixation, tenolysis, tendon prosthesis, vein and skin grafts and tendon grafting. In spite of this lengthy and painful treatment over more than four years, it has proved impossible to retain any function in the hand which is clawed and scarred, has no movement at all and with extensive sensory loss, In addition to the hospital in-patient treatment, he has had extensive physiotherapy and treatment by bonesetters.

4. The Plaintiff, who is right-handed, was a skilled carpenter prior to the accident and, although he has been assessed as between 45% to 54% impaired by his injuries, he clearly cannot return to any employment which requires a degree of dexterity. As a man who took a pride in his skills he remains frustrated and depressed at not being able to secure regular employment and to provide for his family as he had before his accident. His hand continues to cause problems with swelling in the winter and a tendency to bruise easily, for which the only suggestion from the doctors was that he might wear a glove. It has been suggested that he might have the hand amputated an a prosthesis fitted which might have some movement. He as rejected this as, not unreasonably, he does not wish to undergo yet another operation the result of which will not return his pre-accident abilities, and have the embarrassment of an unsightly artificial limb. As it is he feels sensitive to being considered to some degree a cripple. The only sporting activity in which he engaged prior to the accident was playing badminton with his children on Sundays, which he says he can no longer do, although I have to say that I do not consider the loss of the left hand in a right-handed person a total bar to that game.

5. In respect of the award for pain suffering and loss of amenities, Miss Lee has submitted that the Plaintiff's injuries fall within the category of substantial rather than serious injuries as described by Cons J.A. in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657, and in support of this contention points out the lengthy treatment and numerous operations, and the resulting severe functional and cosmetic disability. I agree that the Plaintiff has had to bear possibly a greater degree of suffering than if the hand had been completely amputated in the first place, with lengthy treatment and a resulting useless and unsightly left hand which not just restricts his ability to work, but prevents him from performing simple day to day tasks that a person with both hands takes for granted. I am accordingly satisfied that these are aggravating factors which take his disability into the substantial category, although at the lower end.

6. In Chun Yat Nam v. Attorney General C.A. 92 of 1994, Penlington J.A., in a judgment handed down on 23rd December 1994, revised the level of awards for pain suffering and loss of amenities to take account of inflation, raising the substantial injury category to $335,000.00 to $415,000.00. Miss Lee has suggested that this should be further increased to take account of inflation since then. Although I take judicial notice that there has been inflation since then, I have no precise figures for the amount, and I propose therefore only to round up the figures, rather than increase by an arbitrary amount. I accordingly consider that a proper sum to be awarded under this head is $340,000.00.

Loss of earnings

7. At the time of the accident the Plaintiff was earning $280.00 a day and working an average of 26 days a month, with an average monthly income $7,280.00. He was given sick leave for a total of 22 months 10 days and referred to the Labour Department's Selective Placement Unit. The only employment he was offered, however, was as a messenger delivering letters which were often addressed in English which he could not sufficiently understand. Since then he has stayed at home, he and his wife having sensibly realised that they could maximise their income by his wife going out to work while he looked after the children. His wife started working as a vegetable hawker and he helped by assisting in the preparation of the vegetables at home. In addition to this, he did work for a clothing factory at home cutting threads. Their income from these sources is still very low, with an average of only $1,800.00 a month.

8. Had the Plaintiff continued to work as a carpenter his income would have continued to rise in line with inflation, and I have been referred by Miss Lee to the statistics produced by the Census and Statistics Department for the Consumer Price Index for the years since his accident. These show that his income would have increased from the $280.00 a day at the time of the accident, to $515.00 a day in 1994. I have also had the benefit of a table prepared by the Hong Kong Construction Industry Employers General Union, which gives the average wage for a worker in a similar capacity in 1993 as $550.00 a day. I accept these figures as an assessment of his likely increase in wages over this period, and I consider that income since then would have increased to at least $560.00 a day at the date of this hearing, giving a median for the period of $420.00 a day, or $10,920.00 for a 26 day month.

9. It is clear from the Plaintiff's present situation, and the evidence of Mrs. Cecilia Li, a lecturer in Occupational Therapy at the Hong Kong Polytechnic University, whose report on the Plaintiff was among the documents put in evidence under the hearsay rules, that his choices with regard to earning a living now are extremely limited. He cannot engage in any occupation that involves manual dexterity, but his educational background and lack of knowledge of English precludes him from office work such as an office assistant. Mrs. Li says that he may be able to work as a messenger, although his options would here be limited by his education. The only other possibility would seem to be as a watchman or caretaker, and I accordingly propose to base this assessment on his possible earnings as such. From the statistics provided by the Labour Department's Selective Placement Division, the earnings for a watchman in 1990, the end of the Plaintiff's sick leave, were $3,034.25 per month, and would have increased over the period since then to $4,644.00 today, giving a median for the period of $3,839.00 per month.

10. I accordingly assess the Plaintiff's pre-trial loss of earnings as follows:-

From date of accident to 21st May 1990 (i.e. total loss of earnings @ $10,920.00 per month)	$244,440.00
From 22nd May 1990 to date of trial (i.e. $10,920.00 per month less possible earnings of $3,839.00)	$426,630.25
	$671,070.25

11. As to his future loss of earnings, Miss Lee has suggested a multiplier of 13. The Plaintiff is now aged 38, having been 31 at the date of the accident, and I have been referred to a number of Hong Kong cases where multipliers of 12 to 13 have been given for plaintiffs of similar ages. Each case must to some extent of course rely on its own facts, the health and attitude to work of the plaintiff, and the sort of occupation in which he was engaged. Here I am satisfied that the Plaintiff would have continued to work as a carpenter, had it not been for the accident, for many years, as it is the type of work which it would not be unusual to continue long after a less skilled, more arduous occupation would have been given up. I accordingly agree with Miss Lee that in this case an appropriate multiplier is 13. Loss of future earnings is therefore assessed and awarded as follows:-

$10,072.00 per month (i.e. $14,716.00 ($566.00 per day x 26 days)-$4,644.00) x 12 x 13	$1,571,232.00

12. In addition to the above, Miss Lee has submitted that a further award should be made to reflect the Plaintiff's loss of earning capacity on the principles enunciated in Moeliker v. Rreyrolle (A) & Co. [1997] 1 WLR 132. However, that award was made in circumstances where the Plaintiff had not suffered any actual loss of earnings, and was to allow for difficulties that would be encountered on the labour market in securing employment should he become unemployed in the future. It is not an appropriate award where there is an actual loss of earnings which is already reflected in the award for loss of future earnings, and I accordingly decline to make one.

Special Damages

13. There are three heads of claim in this case by way of special damages: medical expenses, travelling expenses, and tonic and nourishing food.

14. The medical expenses are fully set out and accounted for in the receipts which have been produced and the evidence of the Plaintiff, and I have no hesitation in allowing them in the sum of $52,131.67. Similarly I accept his evidence as to travelling expenses for himself attending hospital for treatment, and for his wife visiting him, and I award the sum claimed of $9,630.00.

15. I have more difficulty with the claim for tonic and nourishing food in the sum of $13,500.00.

16. I have no doubt that the Plaintiff did, over the months and years of treatment, spend a considerable sum. He has said in evidence, and I accept, that after each operation he felt weak and bought expensive foods to assist his recovery. He said that in particular he had chicken, ginseng and other tonic foods. Unfortunately he kept no records and has no receipts and says that the sum claimed is an estimate.

17. There have been a number of decisions in recent years dealing with the matter of tonics and nourishing food, and it is now clearly accepted by the courts that local community in Hong Kong set great store by their recuperative and therapeutic powers to such an extent that there is real value in their use and appropriate awards should be made where expense has been properly incurred in their purchase. Such expense should, however, be reasonable, or supported by medical advice. Where sums have been spent on nourishing food without medical advice, then it ought to be supported by evidence as to the amount spent, and justified on the grounds of reasonableness.

18. In this case all I have to support a very large claim under this head is what the Plaintiff admits is an estimate, and his evidence that he needed the special foods for the weakness he felt after the operations. This is not enough. I accept that he spent money on nourishing foods, and that he felt that they were of use to him in aiding his recovery, and he is accordingly entitled to recover some of what he spent, but that cannot be anything other than what I consider a reasonable sum, bearing in mind the length of time he spent in hospital and the nature of his injuries. I accordingly assess damages under this head at $15,000.00.

Summary

Pain suffering and loss of amenities Pre-trial loss of earnings Loss of future earnings	$340,000.00 $671,070.00 $1,571,232.00
Special damages for medical expenses, travelling expenses and tonic and nourishing food	$76,761.67
	$2,659,063.92

19. From this must be deducted the sum of $459,998.00 being the award already made under the Employees' Compensation Ordinance.

20. There will be interest on general damages at 2% from the date of the writ, and on special damages at half the judgment rate from the date of the accident, and an order nisi for costs in favour of the Plaintiff to be taxed. The Plaintiff's own costs will be taxed in accordance with legal aid regulations.