PANG WAI CHUNG v. HOI TAT RUBBER FACTORY (a firm)

1995, No. P.I.793

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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Assessment of damage

1. This is an assessment of damage sustained by the Plaintiff as a result of an industrial accident on 16th December 1987.

Injuries and treatment

2. The Plaintiff was working as an operator of a rubber sheet cutting machine when his right and preferred hand was dragged into the machine. He was admitted to the United Christian Hospital and his hand had to be amputated below the elbow.

3. He was at the United Christian Hospital between 16th December 1987 and 30th December 1987. He stayed at home between 31st December 1987 and 4th January 1988 and was later admitted to the Margaret Trench Medical Rehabilitation Centre for convalescence on 5th January 1988. He stayed there for a week and requested home leave thereafter. But he was required to go back there every day for physiotherapy. He was officially discharged on 11th March 1988. During that period, he also underwent occupational therapy treatment and the fitting of a conventional below elbow prosthesis and learning how to use it. The prosthesis was in the nature of a hook. He found this to be clumsy and useless.

4. In April 1988 he purchased a myoelectric arm. It was operated by battery. It was composed of electronic components inside a cast and was fitted to the stump of his forearm and was secured at the elbow level. The prosthesis was controlled by muscle movement of his stump. This prosthesis could perform many functions including a 360° wrist turn and the opening and closing of the fingers. However, he only used this prosthesis to carry out household tasks because he feared he would wear out the prosthesis if he used it too frequently. For the past year he had not been able to use this prosthesis because it was worn out and he did not have enough money to purchase a new one.

5. In April 1989 the Plaintiff obtained the job as a messenger at the Hong Kong Baptist Hospital ("the Hospital"). He now wears a silicone cosmetic prosthesis to work. This equipment cannot serve any function at all because there is no mechanical or electronic movement.

Current disability

6. The amputation was 16 cm from the elbow joint. He still experiences muscle cramps whenever he was tired or had carried heavy weight and there was numbness at the stump. He described the feeling as having the area being wrapped tightly by something and that that it could not move. He said he felt the expansion of the blood stream and the sense of the blood flowing at the amputated area. After the accident he was unable to carry out his favourite sports like swimming, gymnastic exercise, cycling, tennis and basket ball. He always wears long sleeves shirts to cover his right forearm as he does not wish other people to notice that he was wearing a prosthesis. He became extremely embarrassed when his young relatives asked him about his false hand.

Pain, suffering and loss of amenities

7. The previous decisions show that the amputation of the arm below the elbow falls within the middle range of the substantial injury category in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. Injuries within this category require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, e.g. a leg amputated from the thigh so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life.

8. In Lam Yuen v. Wat Kit trading as International Beading and Embroidery Manufactory (HCA No.7602 of 1982, judgment delivered on 18th December 1983), PSLA for this type of injury was assessed at $135,000.

9. In Ng Shui On v. Wong Tsuimg Ming & Choi Lai Hung trading as Wai Hing Industrial Company (a firm) (HCA No.10098 of 1982, judgment delivered on 31st May 1985), PSLA was assessed at $145,000.

10. In Lee Tsan Pok v. Hui Pong Hing & Another (HCA No.A11301 of 1993, judgment delivered on 14th November 1994), injury was assessed to be between the middle and upper end of the substantial injury. The PSLA including cosmetic damage was assessed at $290,000.

11. In A.G. v. Chun Yat Nam [1995] 1 HKC 218, the Court of Appeal in December 1994 ruled that the range of damage for substantial injury is between $335,000 to $415,000.

12. According to the "Guidelines for the Assessment of General Damages in Personal Injury Cases" (2nd-Edition) ("the Guidelines") prepared by the Judicial Studies Board of England, which was based on awards reported up to June 1994, damages for the loss of an arm by amputation below the elbow were between ￡37,500 to ￡42,500. The previous edition of the Guidelines which was based on awards reported up to September 1991, stated that the range was from ￡35,000 to ￡40,000. The Guidelines stated that the amputation through the forearm with residual severe organic and phantom pains would attract an award at the top end of the bracket. Based on an exchange rate of HK$12.5 to ￡1, the English awards set out in the 2nd-Edition would be in the range of $468,750 to $531,250. This shows that the award in U.K. was considerably higher than the Hong Kong award when Chun Yat Nam was decided. The U.K. award must also be increased now by inflation.

13. Even taking into account inflation which would revise the range of awards for substantial injury category in Chun Yat Nam to the current level of $375,200 - $464,800, the Hong Kong awards are still below the comparable U.K. awards.

14. In Chan Pui Ki (an infant) v. Leung On & KMB [1995] 3 HKC 732, I have suggested that the level of awards for pain and suffering should be revised upwards.

15. The present case falls within the middle to upper range of the substantial injury category because the Plaintiff is still suffering from cramps and numbness of the stump. The right amputated hand was his preferred hand. The cosmetic factor should also be taken into account as well. In the present case, I would assess the award for PSLA at the sum of $600,000.

Loss of earnings

Pre-trial loss of earnings : wages

16. When the Plaintiff was working as the machine operator at the time of the accident, he was earning on average $5,180 per month. The basic salary was $120 per day at 26 days a month. The overtime pay was $30 per night. He worked almost every night for overtime. Lunch was provided by the Defendant and the Plaintiff received $15 for dinner if he worked overtime. He also received a year-end bonus and double-pay at about $6,000. On the basis of 10% annual inflationary adjustment, the monthly earning of the Plaintiff as the machine operator up to December 1995 would have been as follows :

December 1988	$5,698
December 1989	$6,268
December 1990	$6,895
December 1991	$7,584
December 1992	$8,342
December 1993	$9,177
December 1994	$10,094
December 1995	$11,104

Period of unemployment

17. As a result of the accident on 16th December 1987, the Plaintiff was granted sick leave between 16th December 1987 and 6th April 1988. From 7th April 1988 to 31st March 1989 the Plaintiff had remained unemployed due to the injuries he suffered and the fitting of the prosthesis. He took up work with the Hospital in April 1989.

Award for loss of wages

18. His starting salary with the Hospital was $3,120 per month. On 31st July 1994, his salary was increased to $10,106 which was backdated to 1st April 1994 and this caught up with his projected income as a machine operator by that time ($9,177 x 103% = $9,452). The Plaintiff is claiming loss of earnings up to 31st March 1994. His actual earnings with the Hospital as evidenced by the wage records were in the total sum of $377,858. The Plaintiff's pre-trial loss of earnings amounted to ($5,180 + $9,452) ÷ 2 x 75.5 months - $377,858 = $174,500.

Loss of future earnings

19. The Plaintiff is not claiming any loss of future earnings.

Loss of earning capacity

20. Damages for loss of earning capacity is a well recognised head of claim : Moeliker v. A Reyrolle & Company Limited [1977] 1 WLR 132.

21. Mr Cheung, Counsel for the Plaintiff, referred me to the following cases in which an award under this head was given :

Chan Wai Yau v. Ha Hung Yiu trading as See Hing Metal Works Factory, HCA No.5302 of 1988 (Decision 23rd March 1990), $75,000.

Poon Man Chun v. Li Sau Yee, HCA No.2294 of 1992 (Decision 19th April 1994), $100,000.

22. The current job of the Plaintiff involves delivering blood samples from the laboratory of the Hospital to government hospitals. He is not required to carry heavy weight. In my view it is only fortuitous that he is able to secure his job with such a caring employer like the Hospital. Although the job performance of the Plaintiff at the Hospital has been assessed to be satisfactory, there is always a risk of losing his present job. The risk is not a speculative one. There are three messengers in the laboratory of which he is now working. Two of the messengers (one being the Plaintiff) are disabled persons while the third one is a able body person. Since the Hospital increased its charges, there is a drop in the work and there is no enough work for all three of them. If the Plaintiff loss the job and wishes to compete again in the open labour market, his loss of the right arm would definitely be a great handicap for him. He is a young man born on 19th September 1967. In my view the sum of $250,000 for loss of earning capacity should be awarded.

Medical and other expenses

1. The Plaintiff has incurred a total sum of $69,981.00 as medical expenses details of which are as follows :

Medical

(a) Hospital fee at United Christian Hospital between 16.12.1987 and 30.12.1987	$322.00
(b) Hospital fee at Margaret Trench Medical Rehabilitation Centre between 5.1.1988 and 11.3.1988	$989.00
(c) Costs of prosthesis, fitting and training charged by Margaret Trench Medical Rehabilitation Centre	$24,000.00
(d) Clinical fee at Margaret Trench Medical Rehabilitation Centre	$20.00
(e) Battery replacement and maintenance of prosthesis charged by Margaret Trench Medical Rehabilitation Centre	$1,850.00
(f) Cost of cosmetic hand fitted in late 1989	$6,800.00
(g) Replacement of components/battery and maintenance fees charged by Quincy Prosthetic and Orthotic Appliances Co. to date	$36,000.00 $69,981.00

This sum is recoverable.

Travelling and tonic food

23. He has also incurred $5,600 as travelling expenses for out-patient treatment and by his family visiting him in the hospital. Tonic food of $2,500 is incurred. These are reasonable amounts and are recoverable by him as well.

Future costs of prosthesis and maintenance

24. The Plaintiff claims a complete set of prosthesis which consists of a myoelectric prosthesis with EMG Sensor controlled system (this is the system he had worn since 1988), a greiffer (hook) and a silicon cosmetic prosthesis. The greiffer is a working hook provided with two jaws/fingers which are guided by a mechanism which ensures that the finger tips remain parallel at each opening width. This equipment would help the Plaintiff to pick up heavier objects. It would also enable the Plaintiff to do some delicate tasks such as typing and buttoning of his shirts and tying his shoe laces. The three equipments will need to be maintained and also they have to be repaired every four to five years. I am satisfied that these equipments are necessary for the Plaintiff in order to perform the daily activities of his life. The future costs of these equipments and their maintenance are recoverable. Relying on the actual Actuarial Tables for Personal Injury and Fatal Accident Cases prepared by Watson Wyatt, life time multiplier to be adopted is 25 years.

(a) Myoelectric prosthesis with EMG Sensor System

Costs : $66,700.

Life span : four years.

Cost of maintenance, battery and repair for each 4-year period is estimated at 25% of the cost per annum : $66,700 x 25% x 4 = $66,700.

The annual cost of the prosthesis and maintenance : ($66,700 + $66,700) ÷ 4 = $33,350.

Applying the multiplier 25, the total cost is $833,750.

(b) Greiffer

Cost : $23,000 each.

Life span : 4 years.

Costs of maintenance for each 4-year period is estimated at 10% of costs per annum : $23,000 x 10% x 4 = $9,200.

The annual cost of hook and maintenance : ($23,000 + $9,200) ÷ 4 = $8,050.

Applying the multiplier of 25, the total cost is $201,250.

(c) Silicon Cosmetic Prosthesis

Cost : $13,800.

Life span : 5 years.

Cost of maintenance in each 5-year period is estimated at 10% of costs per annum : $13,800 x 10% x 5 = $6,900.

Annual cost of cosmetic prosthesis and maintenance ($13,800 + $6,900) ÷ 5 = $4,140.

Applying the multiplier of 25 = $103,500.

The total cost for the three equipments is $1,138,500.

Summary

PSLA	$600,000
Pre-trial loss of earnings	$174,500
Loss of earnings capacity	$250,000
Medical expenses	$69,981
Travelling expenses	$5,656
Tonic food	$2,500
Prosthesis and maintenance	$1,138,500
Total :	$2,241,137

There shall also be interests on general damage at 2% from the day of the writ, i.e. 8th November 1990 to the date of judgment. Interests on special damage at 6% from the date of the accident, i.e. 16th December 1987 to the date of the judgment. Employees compensation in the sum of $248,721.60 is to be deducted from the judgment sum.

25. There shall be judgment to the Plaintiff accordingly together with the costs of the action. Interest at judgment rate is to be awarded from date of judgment to payment.

(P. Cheung)

Judge of the High Court