LO CHI BUN v. LEUNG WAH KWAN

1997, No.PI984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

*****************

________________________

Assessment of Damages

________________________

1. This case arises out of an industrial accident which occurred on l5th May, l992. The plaintiff while in the course of his employment with the defendant as a carpenter and decorator sustained injury to his dominant right hand while operating an electric saw. The plaintiff, aged 33 at the time of the accident, was admitted to Tang Siu Kin Hospital. Examination showed that he had 3% compound fracture of the metacarpal bones 3, 4 and 5 right. He was transferred to Queen Mary Hospital, where it was noted that there was a 4cm transverse laceration over the dorsum of the right hand and a 3 cm longitudinal laceration of the right ring finger. An x-ray of the right hand showed a fracture of the proximal phalanges of the ring and little fingers. On operation, it was found that there was disruption of the metacarpo-phalangeal joint of the right ring finger, fractures of the proximal phalanxes of the right ring and little fingers, and l00% cut extensors to the middle, ring and little finger. The plaintiff was hospitalised for l4 days.

2. The Writ was issued on l5th March, l994, against Chung Wah Aluminium Window Decoration Company (a firm), on the basis of the Form 4 (Notification of an accident by the employer to the Labour Department) filed by Chung Wah. It was later discovered that this information was incorrect. The plaintiff then joined Leung wah kwan as defendant on 28th July, l994, and on 26th April, l996, discontinued the action against Chung Wah. Leung wah kwan failed to file an acknowledgment of service and on l4th March l997 interlocutory judgment with damages to be assessed was obtained. The notice of appointment of assessment of damages issued on 26th January, l998.

3. Hearsay notices were filed on 24th September, l997, and l3th March, l998. The Revised Schedule of Special Damages was also filed on l3th March, l998. The defendant has not filed any Counter Notice.

4. At the assessment hearing, the plaintiff was represented and called two witnesses. The defendant did not appear. The bundle of documents before me included a bundle of copy sick leave certificates and a bundle of copy medical receipts of divers dates issued by the Hospital Authority.

5. The plaintiff's statements, dated llth June, l997, and l2th March, l998, were admitted into evidence, and he gave oral evidence. He tells of building a wardrobe for the master bedroom when the accident occurred at about l0.30 am, of being taken to Tan Shiu Kin Hospital and then to Queen Elizabeth Hospital. Under the employees compensation claim, he received $43,600 advance payment, and under the Certificate of Award dated 29th August, l996, he was awarded $395,252.70.

6. His right middle finger and little finger's extensors were cut and they are weak and cannot be fully extended. The MP and PIP of the ring finger is disrupted and the little finger has lost function. He cannot use the ring or little finger. His middle finger can move a bit, but full extension is no longer possible. He has a very poor grip, he cannot hold things tightly and things drop from his hand easily. He cannot hold an electric saw or drills or heavy objects. Prior to the accident he could carry weights of over l00 lbs at work, but he cannot do that now.

7. He cannot return to work as a carpenter, and can only work as a casual construction site worker, earning $8,000 per month, which could be less, depending on the availability of jobs in the market.

8. He was given sick leave from l5th May, l992, to 2nd September, l993. He was able to take up employment in early October, l993. He was employed as a construction site worker on a casual basis by different employers. He does odd jobs on the construction site, such as remedial painting work, sweeping floors, clearing debris and sometimes explaining the diagrams relating to the carpentry work to other workers. As far as he can recall, his average monthly earnings were about $8,000 from October, l993, to December, l995. His daily wage was about $300 and he worked 20 odd days on average in a month, with overtime payments if overtime was required. From January l996 to December l997, his average monthly earnings were about $l0,000. However, since Chinese New Year to the present, he has not been able to find any casual construction site work. He usually found those jobs through the introduction of friends. At the present, he is trying to find a job as a watchman.

9. At the time of the accident his daily wage was $470. But for the accident, he would be earning $l,200 per day now. Prior to the accident he had been working as a carpenter for more than l2 years.

10. Before the accident, he played a lot of sports, including badminton, basketball, table tennis and cycling. He cannot play sports any more.

11. He was born on l7th August, l959, and is now aged 38. He received education up to High School in Mainland China, coming to Hong Kong in l979. He does not have any specialised skill or knowledge in other fields, and is only capable of jobs such as casual construction site work, watchman, lift attendant, or similar.

12. When he was admitted to Queen Mary Hospital, debridement and temporary fixation of the fractures were performed. On 22nd May, definitive fixation of the fractures and tendon repair was done. In September l992, removal of the implants and tendon release was done. In total, he had 5-6 operations. After discharge from the Queen Mary Hospital, he received follow-up and physiotherapy treatment.

13. He spent about $25,000 on medical expenses. Some of the medical receipts were lost and some were given to the defendant and he did not keep copies of them.

14. He incurred $3,000 travelling expenses.

15. He spent about $l0,000 on tonic foods such as pig knuckle soup, fish soup, ginseng, tian qi.

16. Dr. Lau hoi-kuen gave oral evidence and his medical report dated l4th July, l997, was admitted into evidence. In his report, he sets out the history of the accident, noting that the present complaint is of stiffness and weakness of the right hand. He sets out the details of the physical examination and radiological examination. His comments are that Mr. LO suffered severe injury to his dominant upper limb with a deep cut over the dorsum of the hand resulting in disruption of the MCP joint of the ring finger, fracture of the proximal phalanx of the ring and little fingers, and complete cut of the extensor tendons to the middle, ring and little fingers. Despite the operations and post-operative physiotherapy, Mr. LO is now left with significant disability of his dominant hand, namely, (l) the middle finger suffers the least with stiffness of the distal interphalangeal joint, (2) the ring finger has no active movement at all, and the whole finger remains straight and protruded when a full grip is attempted, (3) the interphalangeal joints of the little finger have also been ankylosed, and even with the MCP joint remaining normal, the little finger cannot flex properly to form a firm grip, (4) the power of the hand grip is significantly impaired, and (5) there is decreased touch and pain sensation over the dorsum of the ring and little fingers. His hand condition is permanent and nothing can be done to improve it. Further deterioration is not expected.

17. Dr. Lau states that such weakness and stiffness of his dominant hand means that Mr. LO certainly cannot return to work as a carpenter in the construction industry, and can only consider lighter jobs with less demand on the dominant hand, e.g. messenger, security gurard or lift operator. He assesses Mr. LO to have suffered ll% permanent impairment and 25% loss of earning capacity when the actual decrease in earning due to the need to change job because of the accident is also taken into consideration.

18. In his submissions, Mr. K.W. Ng for the plaintiff, referred to the employees' compensation Certificate of Award dated 29th August, l996, in the sum of $395,252.70, taking into account an advance payment of $43,600. At the hearing before H.H. Judge Chan it was adjudged that the plaintiff's monthly earnings at all material times were $l4,l00. The usual credit will apply in this case. However, the defendant had no employees compensation insurance, so that the plaintiff will possibly have to look to the Employees' Compensation Assistance Fund Board to obtain damages at the end of the day.

Pain suffering and loss of amenities

19. The plaintiff seeks $480,000 under this head of damage.

20. In the case of Wong see mo v. Lam nam fui and ors. (CA No. 2l/90), a 37 year old carpenter suffered an electric circular saw accident to his left hand, resulting in the loss of the distal phalanx of his index finger, parts of the distal and middle phalanges of his middle finger and the distal phalanx of his ring finger. He was right handed. The Judge awarded $70,000 in respect of pain, suffering and loss of amenities. On appeal, it was held that the plaintiff fell within the lowest end of the serious injury category, as found in Lau che ping v. Hoi Kong Ironwares Godown Co. Ltd. (l988) 2 HKLR 650 at 655A, and the court went on to increase the minimum sum to be awarded in that category to from $l35,000 to $l50,000. The award of $70,000 was increased to $l50,000.

21. In Tsang chin-keung v. LO tat kong (PI 806/l995), a 27 year old carpenter injured his left (preferred) hand when it was cut in a circular saw. The plaintiff was admitted to hospital shortly after the accident and underwent an operation. Later, he had a second operation to graft a nerve to his left forearm. He was on sick leave for nine months. The Labour Department Assessment Board assessed l0% loss of earning capacity, but his own medical expert put this figure at l5%. He continued to suffer loss of sensation in both his left hand and left forearm at the site of the nerve graft and loss of strength, constant pain, and occasional throbbing in the left hand. After reviewing a number of authorities, the Master placed the plaintiff's injuries at slightly below the lower end of the serious injury category and awarded $365,000.

22. Mr. Ng submitted a chart setting out the trends of PSLA awards since l980, showing that as at July l996 the serious injury category stands at between $400,000 to $540,000 on the authority of Chan pui ki.

23. I am satisfied that the case before me falls into the lower end of the serious injury category, and that the appropriate award for pain suffering and loss of amenities in this case is $480,000, as claimed.

Pre-trial loss of earnings

24. Mr. Ng produced the Census and Statistics Department's record for the earnings of a carpenter for the period June l992 to December l997, and on the basis of those statistics he has calculated the plaintiff's but-for the accident monthly earnings, as follows -

(l) total loss from l5th May l992 to 30th September, l993 when the plaintiff was on sick leave, resulting in a loss of $235,863.60,

(2) partial loss from lst October l993 to 3lst December l995, based on the plaintiff's earnings of $8,000 per month, resulting in a loss of $260,674.80, and

(3) partial loss from lst January l996 to l5th March l998, based on the plaintiff's earnings of $l0,000 per month, resulting in a loss of $393,644, being a total loss of $890,l82.40.

25. I accept the evidence of the plaintiff on his loss of earnings and I accept the figures of the Census and Statistics Department as the proper basis for calculating the loss of earnings.

26. I make an award of $890,l82.40 for the pre-trial loss of earnings.

Post trial loss of earnings

27. The plaintiff is now aged 38. Accepting that the but-for the accident monthly earnings of the plaintiff at $28,795.20 in accordance with the statistics for a carpenter, that is, $l,028.40 per day x 28 days, and assuming that the plaintiff finds a job as a watchman at $7,778 in accordance with the Census and Statistics Department's statistics for a watchman, and using a multiplier of l2, the plaintiff claims a figure of $l,5l3,238.40 (($28,795.20 - $7,778.00) x (l2-6) x l2 = $l,5l3,238.40). The figure of $7,778 was arrived at by taking an average of the monthly salaries for watchman in eight industries, including garment, retail, banking, Chinese restaurants, with a range of monthly salaries from $6,ll5 to $l0,39l. I accept the Census and Statistics figures for a carpenter and the averaged figure for a watchman as the appropriate basis for the calculations and I accept the multiplier of l2 as appropriate for the plaintiff in this case. I therefore make an award in the sum of $l,5l3,238.40, as claimed.

Loss of earning capacity/handicap in the market

28. Following the Court of Appeal case of Lau che ping v. Hoi Kong Ironwares Godown Company Limited, and paraphrasing from Cons J's judgment at page ll, I am satisfied that in the natural order of things, the plaintiff will from time to time within the next l2 years lose the employment he is then in and have to wait on any such occasion several months before the Labour Department can find further employment for him and I am further satisfied that in normal circumstances this plaintiff will not be able to find replacement employment as quickly as an able-bodied man. That difference in the time taken is a true reflection of the plaintiff's handicap in the labour market. On the facts of this case, I make an award of $40,000, as claimed, under this head.

Medical Expenses

29. In his oral evidence, the plaintiff said that he could not remember the exact details and had not kept all the bills, but he had a rough calculation. He attended a Western medical practitioner on 95 occasions paying $33 each time, totalling $3,l35. He was hospitalised 5 times, incurring total charges of $l,l35. He consulted a Chinese herbalist l68 times at a fee of $l25 per attendance including consultation and massage, totalling $2l,000. I accept the plaintiff's evidence as to his medical expenses, and I am satisfied that the amounts spent on medical expenses for the type of injury suffered is reasonable and proper, and I accordingly award the sum of $25,000, as claimed, under this head.

Travelling Expenses

30. In his evidence, the plaintiff said that initially after his discharge he had to take a taxi to the hospital for outpatient treatment because his hand was in a support frame. Later he could take the minibus and the fare for a return trip was $25. He made a total of 95 visits to the hospital. I accept the plaintiff's evidence and find that the amount of $3,000 as claimed is reasonable and proper, and I make an award in that sum.

Tonic Food

31. As to the claim for tonic foods, in the absence of evidence as to the exact expenditure I find that the claim for $l0,000 is excessive. I am satisfied however that an award of $5,000 is reasonable and proper in a case of this kind, and I award that sum.

Interest

32. I award interest on the awards for pain, suffering and loss of amenities and on the loss of earning capacity at 2% per annum from the date of Writ, that is, l5th March, l994, to the date of assessment. I award interest on the special damages at half the judgment rate per annum from the date of the accident, that is, l5th May, l992, to the date of assessment. I will leave it to the parties to calculate the interest.

Costs

33. The plaintiff is awarded his costs, to be taxed if not agreed, and the plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

Employees' compensation award

34. The plaintiff is to give a credit to the defendant for the sum awarded under Employees Compensation case ECC 609 of l993.

L. Cannon

Master