CHAN KA LOK v. THE OVERSEAS PLASTIC FACTORY LTD

1984, No. 6035

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 6th of January 1983 the plaintiff was working for the defendant as a plastic machine moulding operator. He had worked for the defendant for only two days. On that day an accident occurred whereby the plaintiff trapped his hand in the moulding machine that he was operating. The full extent of the injuries to the plaintiff's right hand are described in Dr. Wedderburn's report of the 9th of April 1984 and Dr. Mao's of the 17th of June 1986. Both of these reports were the subject of the appropriate notice under section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court.

2. The writ herein was issued on the 5th of September 1984 and on the 30th of May 1986 interlocutory judgment was entered against the defendant with danages to be assessed.

3. The assessment of damages was before me on the 29th of September 1986 and the assessment reserved until to-day.

4. The plaintiff was represented by the Director of Legal Aid and the defendant was present in person and unrepresented at the assessment.

(A) Special damages

5. It may be convenient at this stage to deal with three items of special damages one of which was the subject of the hearsay notice and the defendant himself gave evidence in respect of the other items; none of the items was seriously challenged by the defendant.

(a) Travelling expenses

    These are set out at page 3 of the Statement of Claim. They refer to the travelling expenses of the plaintiff and his wife, in the former case her expenses to visit the plaintiff whilst he was in hospital, and in the latter case the plaintiff's own travelling expenses in respect of his physiotherapy treatment.

Wife's travelling expenses $10.40 per day x 58         = $ 603.20

Plaintiff's travelling expenses $10.40 per day x 86     = $ 894.40

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                                                                                Total :        $ 1,497.60

I will simply point out at this stage that the calculations in the Statement of Claim are incorrect.

(b) Bone-seater's fees

    The plaintiff attended the Siu Lam Man Fook Shrine 24 times following the accident and his release from hospital. He paid $100 for each visit. The expenditure is fully documented and under this head I award accordingly

                                                                                  $ 2,400.00

(c) Tonic food

    The plaintiff consumed tonic food during the period of time he was in hospital and during the period of his convalescence. He states that he paid in total $1,580. This has not been challenged by the defendant and, in respect of the period covered, the amount claimed appears to me only nominal and I accordingly award the full amount claimed i.e. $ 1,580.00

The total award under this head is therefore                        

$ 5,477.60

(B) Pain suffering and loss of amenities

6. The plaintiff trapped his right hand in the machine. The palm was lacerated and the bones of the hand were fractured. He received treatment in hospital for a period of 53 days and physiotherapy for a further period of six months.

7. On the 17th of June 1986 Dr. Mao described the plaintiff's hand as clawed; there is movement of all the fingers from extension to flexion to a total of 30 degrees. Complete flexion and complete extension are not possible because of adhesion in the palm of the hand with contractions of the soft tissue in that part of the body preventing proper use of the tendons. This could be obviated to a great extent if re-operation can be carried out by the orthopaedic and plastic surgeons to give the plaintiff a full thickness layer of skin in the palm and if the plaintiff continues physiotherapy for the fingers and thumb.

8. The plaintiff, however, in his evidence stated that he was not prepared to undergo such surgery as it would be painful and traumatic.

9. The thumb, index finger, middle finger, ring finger and little finger were all damaged. The combined value of the impairment was set out in Dr. Mao's letter of the 25th of September 1986 which was added to the hearsay notice at the hearing. Dr. Mao describes the combined value of the impairments as a 40% impairment of the whole man.

10. Dr. Wedderburn's assessment on the 9th of April 1984 described the combined value as a 38% impairment of the whole man. The medical board awarded the plaintiff 35% impairment in August 1983. Dr. Wedderburn regarded the medical board's assessment as low and described the disability as related to the earning loss as considerably higher than the impairment and was, in fact, 45%.

11. I have no doubt that the plaintiff's injury could be described as "serious" as defined in LEE Ting-lam v. LEUNG Kam-ming 1980 HKLR 657. The plaintiff's injury has clearly left him with a disability which mars his general activities and enjoyment of life. However, he has reasonable mobility left to him. I was referred to YIP Pun-leung v. Chi Shing Industrial Co. Ltd. HCA 6071/1981. In that case the plaintiff's injuries arose in circumstances similar to the present action. The injuries to the plaintiff in this case, however, can be described as less serious than those in YIP Pun-leung. That was an award made in October 1984 in the amount of $115,000. In HO Ping-shui v. HO Kwailin t/a "Great Wall House Ware Manufactory" HCA 1547/1985, Master Jones made an award of $100,000 in similar circumstances after a comprehensive review of the authorities. Allowing for the loss in the value of money and annual increases for inflation, I make an award of $110,000 under this head.

(C) Pre-trial loss of earnings

12. As stated above, the plaintiff had worked only 2 days for the defendant. His actual wages were $90 per day. It appears from his evidence, and it is not seriously disputed, that he could have expected to work 27 days per month. This is a monthly take home pay of $2,430.

13. Prior to working for the defendant, the plaintiff had, on and off, been in similar employment for most of his working life. Indeed, on occasions, he had been employed as a supervisor at substantially more than his earnings at the time of the accident. He produced income tax returns to establish this. However, he stated that he was working as an operator because the employment market was slack and this was the only employment he could, at that time, aspire to. It was submitted by Mr. Lavington, but not, I regret, supperted by any evidence, that the plaintiff may well aspire to being a foreman again in the future, and that levels of wages relating to a foreman should be taken into account when assessing loss of earnings both pre and post-trial. As I said there is no evidence to support this and, in relation to the calculation of pre and post-trial loss, I shall adopt as a basis the level of wages received by the plaintiff at the time of the accident.

14. The plaintiff is married with 5 children. He has trained himself to use his left hand although not very adequately. Dr. Wedderburn recommended him to the Selective Placement Service at Kwun Tong. He has attended there and received some training. They have attempted to find him very simple types of work such as doorman, caretaker and odd job man. The plaintiff wishes to work and has made many efforts in that direction. However, he cannot hold down a job despite his efforts; but he is not to be criticised for that. Most people in the plaintiff's position find it difficult to get a job and when they do, are often dismissed on one pretext or another. This has happened to the plaintiff.

15. Despite his very short periods in work, I regard him as having been unemployed for the whole of the pre-trial period.

16. This is from 6.1.83 to 1.10.86 - a period of 46 months x $2,430 =

$111,780

(D) Post-trial loss of earnings

17. The plaintiff was 49 years old at the time of the accident and is now 51 years. Mr. Lavington suggested that a multiplier of 8 was appropriate and after a review of the authorities notably LEUNG Sai-kui by his next friend, LAI Yan-mei, v. F. Zimmern & Co. HCA 1151/1985, I accept that a multiplier of 8 is appropriate and I adopt it.

18. Dr. Wedderburn described the plaintiff's earning capacity as reduced by 45%. The plaintiff is not in employment but he seems determined to maintain his efforts to secure employment and, in the meantime, is relieving his wife of household pressures thereby increasing her earning capacity to $1,600 per month.

19. Accepting, as I do, Dr. Wedderburn's assessment, the multiplicand for loss of future earnings is 1336.5. I award therefore

1336.5 x 96 = $128,304

(E) Loss of future earning capacity

20. It is clear that the plaintiff will always be at a severe disadvantage in the abour market, particularly during times of recession and unemployment. The plaintiff has been obliged to give up several jobs because of his inability to undertake strenuous albeit minimal tasks.

21. Awards of this nature are becoming increasingly common, see YIP Pun-leung and HO Ping-shui above. It is largely an exercise in picking a figure out of the air but in the light of my award above for loss of future earnings, I award under this head the sum of

$35,000

SUMMARY
(A) Special damage	$5,477.60
(B) Pain, suffering and loss of amenities	$110,000.00
(C) Pre-trial loss of earnings	$111,780.00
(D) Post-trial loss of earnings	$128,304.00
(E) Loss of future earning capacity	$35,000.00
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Total :	$ 390,561.60
Credit must be given for the Employees
Compensation award of	$66,288.60
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leaving a balance of	$324,273.00
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22. There will be interest on the general damages at (B) above at 2% from the date of the writ to the date hereof and on the pretrial loss of earnings and special damages at (C) and (A) above at ...(illegible) from the date of the accident to the date hereof.

23. The defendant will pay the plaintiff's costs to be taxed if not agreed and the plaintiff's own costs will be taxed in accordance with the Legal Aid Regulations.