CHI YUK KAU v. CHAN KAI MING t/a KAI CHEONG PAPER PRODUCTS FACTORY

Action 1983, No. 7007

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is a claim for personal injury alleged to have been sustained at work. It is a straightforward case in which, apart from damages, there is only one question for me to decide.

2. The plaintiff's case is that on the 21st May 1981 he was following his employment with the defendant which he had had for approximately two weeks, and was engage in operating a machine which staples together paper or cardboard cartons. The way in which the machine works is still obscure to me. I have not seen any photographs; I have not seen any diagrams; I have not had any expert evidence. But it does not matter for reasons which will appear. The plaintiff says that the accident happened quite soon after he arrived at work. The machine was not working properly. He tried to loosen a wire which was to form the staple in the carton and having released it from a spring attachment it flew up and struck his left eye. He says that following the accident he told those about him including a friend, Mr. Cheng, and his employer, Mr. Chan, that he was not feeling well but he was not more specific. He left going first of all to his elder sister who lives not too far away and from there to a clinic where he received some form of treatment. The next day he went to see a specialist in ophthalmology at the Yaumatei Clinic, a Dr. Yau and after seeing Dr. Yau he was taken very promptly into Queen Elizabeth Hospital where an operation was performed which most unhappily failed to save the sight of the injured eye. I think he can still detect light with that eye but for all practical purposes it is blind.

3. The defendant is not prepared to admit that the accident was suffered at work and requires the plaintiff to prove that part of his case. He says that certainly from what he observed on the morning in question, the 21st May, and from what he was told by the plaintiff he had absolutely no reason to suspect that a serious injury of this sort had occurred, and he suggests through counsel, most courteously if I may say so, that there remains the possibility that this accident did not happen on the 21st May at all. It might have happened earlier, though he concedes that is unlikely because a man would hardly come to work in the circumstances, but he says it could have happened some time later on the 21st May. As a theoretical possibility of course that is right, but only if one is prepared to say the plaintiff is telling lies. Having seen the plaintiff I am certainly not prepared to say that. Quite the contrary I thought he gave his evidence in a very moderate and fair way without any attempt to exaggerate. He did not, as so often happens in personal injury cases, seek to maximize the consequences of his accident. On any view having suffered what is a serious and painful injury he was looking for work again within a few weeks. He struck me as a very straightforward young man and my impression of him is very favourable. What is more his account is not inconsistent with any other of the evidence in the case save for the fact that he might have said something more on the morning of the accident. Apart from that it seems to me impossible to criticize him. Certainly the next day he told Dr. Yau that the accident had happened on the 21st when a piece of wire went in his eye and although the way that Dr. Heffernan records his description of the incident is not in precisely the same terms, in outline it is very much the same. So, notwithstanding the misgivings of the defendant, I have no difficulty in finding that this accident did happen at work and that is the one question of fact with regard to liability that I am required to decide in this case, it being conceded by Mr. Wong on behalf of the defendant that if I am to find, as I do, that the accident happened at work when the plaintiff was operating one of these machines then there must be liability on the employer, and contributory negligence is not alleged. That is why it is not necessary for me to understand in any great detail the workings of the machine or how the accident happened. I ought to say incidentally that Mr. Chan, the employer, does differ from the plaintiff with regard to the nature of his duties not being prepared to say in evidence that Mr. Chan was ever required to work one of these machines. But I accept the plaintiff's evidence on that and if there is an issue between the parties then I prefer the evidence of the plaintiff. But I do not think that this is a case which depends upon my finding one witness untruthful and the other truthful. I think both parties have tried to tell me the truth and in most matters their evidence is not far apart. Of course after this interval of time a person's recollections will vary as to detail and one person is likely to place emphasis on one thing and another on something else. If you had something sharp stuck into your eye then I think you are probably not concerned too much about the way in which you describe your injury to people round about you. What you probably are chiefly concerned to do is to get some relief from the pain which you must undoubtedly be suffering. To someone else it might seem strange not to be told what had caused the pain.

4. So I find that this injury was sustained at work on the basis of the concession which has been made. All that remains for me is to decide the amount of damages. They have been agreed to a large extent. It is agreed that for pain, suffering and loss of amenity the appropriate award should be HK$100,000. The items of special damage are agreed at $6,200. The one matter which remains in issue is damages for the loss of prospects in the labour market. Mr. Barretto cites to me previous awards where substantial figures had been awarded under this head. There is not any evidence before me that this plaintiff is likely to undertake any work in which binocular vision is going to be of importance to him. I do accept that he might find it harder in the future to find a job, particularly if it is known to his prospective employer that he has only got one eye because as Mr. Barretto says there might be some hesitation in taking on the risk of employing such a person where any injury to the remaining good eye could result in a very substantial award for damages. Also I do accept that necessarily the scope of future employment has been somewhat narrowed and I think I can find that even in the absence of any specific evidence. Even so I do not think that if I am to make an award it can be more than a fairly nominal one. I think the appropriate figure for loss of prospective earnings resulting from this plaintiff being less employable in the future is $10,000 which would make a global award of $116,200. I think it has to be broken up. Judgment for the plaintiff in the sum of $116,200, of which $100,000 is for pain, suffering and loss of amenity, $10,000 for loss of future earnings, $6,200 special damages. Interest on special damages at 5.5% from the date of the accident, interest on pain, suffering and loss of amenity at 2% from the date of the writ.

5. Costs to the plaintiff. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.