SUNG FUK WAH v. LAM WAI LEUK and Another

1994 No.A3676

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. Interlocutory judgment was entered against both 1st and 2nd Defendants on 22nd August 1994 to pay the Plaintiff damages and interest to be assessed and costs to be taxed. This assessment of damages was heard on 22nd February 1995.

2. The accident to the Plaintiff occurred on 3rd June 1985 in the course of his employment with the 1st Defendant at the 2nd Defendant's factory premises in the making and installation of aluminium window frames. No steps had been taken in these proceedings by the Defendants and the Plaintiff has brought this common law claim for negligence to recover damages under the Employees' Compensation Assistance Fund Board. As explained in recent similar decisions this claim will be allowed despite being made outside the limitation period on the basis that the Defendants have not raised this defence.

3. The Plaintiff was realigning the driving belt of a circular cutting machine when another worker inadvertantly started the machine by knocking on the control lever with his body, thereby trapping the fingers of the Plaintiff's right hand between the in-running nip of the belt and the pulley of the machine. In this accident the machine amputated the top of the Plaintiff's right ring finger below the first joint of the finger and caused a mild cut wound to his right middle finger. As a result of this injury the Plaintiff was assessed to have a 3% impairment of the whole person and a 4% loss of earning capacity.

4. The Plaintiff gave evidence and confirmed the contents of his statement taken on 19th January 1995 and filed in Court on 7th February 1995. In this statement Plaintiff said he was aged 33 years at the date of the accident and was now married with one child. He says he now works as a van driver for a transportation company on a odd job basis and also works as a substitute taxi driver on 4 to 5 days each month. His present monthly earnings are about $8,000.00. The Plaintiff said he was employed on an odd job basis by the 1st Defendant, who was a sub-contractor of the 2nd Defendant. He had work on the installation and manufacture of aluminium window frames for about 18 years for different employers. His wages were calculated on a daily basis and he was paid daily or as agreed with his employer. The market rate at the time of the accident was $250.00 a day for workers in this field but the Plaintiff was only paid $150.00 a day as it was the first time he had worked for the Defendants. It was agreed he would be paid $150.00 a day for the first month and, subject to satisfactory performance, his daily wages would increase to $250.00. He said he worked on 26 days every month. The Plaintiff says that the present monthly wages of aluminium window frame installers is about $13,000.00.

5. The Plaintiff said he did not lose consciousness after the accident, although his injury was bleeding heavily. He was taken to a nearby government clinic for initial treatment and then transferred by ambulance to Queen Elizabeth Hospital. He was admitted and an attempt was made to anastomose the detached part of his right ring finger but this failed. An operation was then carried out to amputate the finger at the distal interphalangeal joint. He was hospitalised for 17 days until 20th June 1985 and thereafter attended out-patient treatment on about 50 occasions. He was granted sick leave up to 30th September 1985 (that is, a total of 120 days).

6. The Plaintiff was assessed by the Employees' Compensation (Ordinary Assessment) Board to have suffered 3% loss of earning capacity. Dr. Phillip Mao in his medical report dated 19th February 1992 assessed the Plaintiff to have suffered 3% impairment of the whole person and 4% loss of earning capacity. The Plaintiff says that since the accident he has difficulty in grasping small objects, likes coins, with his right hand which is his preferred hand. He also feels numbness and pain from his amputated finger especially when the weather changes. The Plaintiff says that prior to the accident he liked to play table tennis, but due to his injury he can no longer take part in this activity.

7. The Plaintiff has incurred $1,000.00 as surgery costs for the removal of the remnant nail on his right ring finger and spent about $2,000.00 as medical expenses inclusive of all in-patient, out-patient and physiotherapy treatment and $1,000.00 for travelling expenses, but did not keep receipts for these expenses.

8. The Plaintiff had been awarded $18,701.00 compensation under the Employees' Compensation Ordinance but the Defendants have failed to satisfy this award. He applied to the Brewin Trust Fund for payment of his ECC compensation and was paid $14,025.75, being 75% of the award.

9. Counsel for the Plaintiff in his written submissions claims damages under two separate heads, i.e. special damages and general damages. Under special damages pre-trial loss of earnings are claimed during the following periods:-

10. The Plaintiff's claim for medical and travelling expenses in a total sum of $4,000.00 is not unreasonable and will be allowed, even though, he was not able to produce any receipts to support this claim.

11. Under general damages there is the usual claim for pain, suffering and loss of amenities. Like the comparable cases referred to the Master, the Plaintiff's injury falls short of the serious injury category. The awards under this head in similar cases range from $60,000.00 to $80,000.00 or approximately 50% of the damages at the bottom end of the "serious injury" category. The minimum level of awards in this category has been raised by the Court of Appeal in Chun Yat Nam v. A.G., C.A. No.92/1994 to $250,000.00. On this basis the appropriate award in this case is the sum claimed, $125,000.00, being 50% of the minimum award under the "serious injury" category.

12. The Plaintiff also claims general damages under the heading of loss of earning capacity. However, as there is a later claim for future loss of earnings which will exceed anything awarded under this head of damages, this claim is disallowed on the basis that it is an alternative to the claim for loss of future earnings.

13. Lastly, there is a claim for loss of future earnings. The Plaintiff is now 43 years of age and was 33 years of age on the date of the accident. The Master agrees with the proposed multiplier of 10, based on the authorities cited in support of same, for a victim who was 43 years of age at the date of the assessment. The loss of future earnings is calculated on the basis of the difference between notional earnings (here allowed at $12,500.00) and actual earnings of $8,000.00 at the present time x 12 months and the multiplier of 10 years. That is $4,500.00 x12 x 10 = $540,000.00. The Plaintiff will need to give credit for the partial settlement of his employees' compensation award in the sum of $14,025.75 from the Brewin Trust Fund.

14. A summary of the damages is set out below:-

15. There will be interest on the general damages under items (1) and (3) above at the usual rate of 2% per annum from the date of the writ to the date of this assessment and interest on the special damages under items (2) and (4) above at 50% of the judgment rate from the date of the accident up to the date of this assessment and thereafter at the judgment rate until payment.

16. The costs of this assessment to the Plaintiff to be taxed against both Defendants. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.