AU HON LING v. CHING HOI KEUNG t/a C & L CO AND ANOTHER

HCPI 416/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO.416 OF 2003

-----------------------------

-------------------

-----------------------

J U D G M E N T

-----------------------

1. The plaintiff brings this claim for damages against the 1st and 2nd defendants as a result of personal injuries sustained by him on 20 April 2000 when he was working as a carpenter doing renovation works at Flat A2, 2/F, No.27 Baker Road, the Peak, Hong Kong ("the site").

2. The plaintiff works as a carpenter employed by the 1st defendant. The 1st defendant is a subcontractor to the 2nd defendant who was carrying out the renovation works at the site.

3. On 20 April 2000 in the course of cutting some pieces of wood using an electric circular saw mounted on a wooden bench table, the plaintiff's left hand was severely injured when it came into contact with the saw resulting in his left thumb being almost completely amputated by the saw.

4. At the trial of this matter, the 1st defendant appeared in person. The 2nd defendant did not even appear at the trial. In fact, interlocutory judgment had already been entered in favour of the plaintiff against the 2nd defendant on 16 October 2003 with damages to be assessed. The trial therefore, insofar as liability is concerned, involved only the 1st defendant.

5. At the trial when the case was opened by counsel for the plaintiff, insofar as the issue of liability was concerned, it was opened on the basis that there was no fencing as required by the regulations to the circular saw in question. It was opened on that basis despite the fact that the pleaded case of the plaintiff as it appears in the Statement of Claim against the 1st defendant pleads, and particularizes, a number of items of negligence relating to the 1st defendant.

6. The plaintiff's evidence as to how the accident happened was not seriously in dispute. That evidence is contained in paragraphs 5, 6 and 7 of his Witness Statement. Effectively, that evidence of his was that on the afternoon of the day in question, he had a piece of wooden plank of 550 mm long, 180 mm wide and about 27 mm thick. That piece of wooden plank already had a rectangular hole cut inside it, but as the hole was not big enough his task was to cut that hole slightly bigger so that the hole inside the plank would be 170 mm long and 50 mm wide. To do this, the plaintiff had to hold the piece of wooden plank with both his hands over the top part of the circular saw to let the top part of the circular saw cut the edges of the hole in the middle of this piece of wooden plank so as to enlarge that hole. Whilst he was using the circular saw to cut the hole in the middle of the wooden plank held in both his hands, his left hand came into contact with the teeth of the circular saw resulting in his left hand from his thumb to the little finger being cut.

7. On this evidence given by the plaintiff and not challenged by the 1st defendant, the 1st defendant's defence is simply that for the plaintiff to cut the piece of wooden plank in this way as described by the plaintiff, it would have been necessary for the plaintiff to remove the fence which is used to cover the top part of the circular saw protruding from the top of the table on which the circular saw is mounted.

8. When this was put to the plaintiff in cross-examination, the plaintiff agreed with that completely.

9. The 1st defendant elected not to give evidence in this case. That is perhaps understandable as he is a layman representing himself, there is very little factual dispute since he had obtained an admission from the plaintiff which, on the face of it, would appear to be a complete defence to the plaintiff's case as it was opened by counsel for the plaintiff.

10. The evidence, in respect of liability of the 1st defendant, was pretty much left as what has been summarized above. However, when it came to final submissions, a very different picture was painted by counsel for the plaintiff in his final submission, no doubt because of that admission by the plaintiff in cross-examination.

11. The final submission by counsel for the plaintiff ran along these lines. A circular saw is an inherently dangerous piece of machinery. Therefore, it is required by the regulations to be covered by a top-guard or fence. It is designed for cutting wooden board horizontally. The evidence in the present case shows that the top-guard had gone missing for some time before the day of the accident. The evidence also shows that all the workers, including the plaintiff, were cutting wooden board using the top part of the circular saw minus the top-guard. That was an improper method of using the circular saw. That improper method of using the circular saw was known to the 1st defendant but the workers were allowed to do so by him. The 1st defendant failed to stop the workers using such improper method and did not even warn them against it. It was reasonably foreseeable to the 1st defendant that this was dangerous and risky way to work. Therefore, the 1st defendant failed to provide a safe system of work. He was therefore negligent.

12. Whilst I have no doubt that what was submitted by counsel for the plaintiff in his closing is a more complete and truer picture of this accident, the fact remains that the goal posts have shifted a long way from the basis upon which this case was opened. Not only has the goal posts shifted, but that they have shifted in such a way that real prejudice has been caused to the 1st defendant in his defence of this matter.

13. Had this case been opened on the basis that what was done by the plaintiff in relation to this accident was an improper use of the circular saw, then no doubt a lot more questions would have to be asked in cross-examination as to the knowledge of the plaintiff as to such improper use of the circular saw, why he did so if he knew it was improper, and what other alternative methods could have been available to him to enlarge the hole in the wooden board without using the top part of the circular saw. All of these questions would have been pertinent to properly evaluate the amount of contributory negligence there may be on the part of the plaintiff in using this circular saw in that improper way.

14. However, since the case was not opened on that footing, none of these questions had been asked nor these matters gone into in evidence. Moreover, if the case had been opened on that footing, the 1st defendant may well have elected to give evidence on some of those related matters.

15. My immediate difficulty therefore is how best to do justice between both the plaintiff and the 1st defendant in this case in view of the lacuna in the evidence created by the incomplete opening of the plaintiff's counsel. I have no hesitation in accepting all the evidence of the plaintiff. That evidence showed that when he started to work at the site about a month before the accident, there was a top-guard of fence for the circular saw in question. That circular saw was the only circular saw at the site and was used by all other workers working there. Some time before the day of the accident, the top-guard had gone missing from the circular saw. The plaintiff also saw other workers openly cutting wooden boards using the top part of the circular saw as he himself had done when the accident happened. That would suggest that all the workers there were paying scant regard to safety, using the circular saw in a way in which it was never intended to be used. It also suggest that the 1st defendant, being the employer, did nothing to stop this improper use of the circular saw but permitted the workers to do so.

16. On the other hand, the plaintiff is himself a carpenter with 13 years of experience behind him as such at the time of the accident. He must be taken to know that a circular saw is not intended to be used in the way that he had used it when the accident happened. This must be so despite the fact that he had seen other workers using the circular saw in that way. He must also be presumed to know that the circular saw is inherently dangerous when used in the way that he had used it without a top-guard.

17. From the evidence that there are a number of workers doing renovation work at the site which, presumably, is a residential premises in the Peak, I would also make the further presumption that it would be inconceivable that there was no other equipment or tool on the site such as a manual handheld saw with which the plaintiff could have enlarged the hole in the wooden plank that he was working with. In all the circumstances, therefore, it would have been opened to the plaintiff to use some other tool, likely, a handheld manual saw, to have performed the task that he was doing.

18. Therefore, insofar as liability is concerned, on the evidence I find that the 1st defendant, as employer, was negligent in that he had permitted his workers, including the plaintiff, to use the circular saw in a way that it was never meant to be used. In so permitting the improper use of the circular saw without the top-guard, the 1st defendant had created an unsafe system of work for his workers, including the plaintiff.

19. As for the plaintiff's own contributory negligence, I find that he, like the other workers, turned a blind eye to the obvious danger which was inherent to the circular saw without a top-guard. As an experienced carpenter with some 13 years experience, he must have known not only the danger but also that the circular saw was not to be used in the way that it was used by him. Therefore, his failure to use other tools to enlarge the hole in the wooden board that he was working on constitutes contributory negligence in this case. I shall assess the plaintiff's own contributory negligence in the circumstances at one-third. If it be thought that that finding and assessment of contributory negligence of the plaintiff is on the high side, in view of the paucity of the evidence relating to that issue, the paucity of evidence on that issue was a direct result of the wholly unsatisfactory way in which this case was opened by counsel for the plaintiff. Therefore, the inferences which I had to make in the absence of direct evidence should not, in my view, be inferences which would be against the interest of the 1st defendant but, rather, inferences against the plaintiff.

20. I turn now to consider the question of quantum.

INJURIES AND TREATMENT

21. After the accident, the plaintiff was admitted to the Queen Mary Hospital where an emergency operation was performed on the same day on his left hand. The following injuries were noted :

(1) Cut digital nerve and vessels to the left thumb.

(2) Cut flexor and extensor muscle of the left thumb.

(3) Cut common digital nerve to the index and middle fingers, and cut common digital nerve to the middle and ring fingers.

(4) Compound fracture of the distal phalanx and nail bed injury of the little finger.

The following surgical procedures were performed in the operation :

(1) Fusion of the left thumb interphalangeal joint.

(2) Revascularization of the radial digital artery.

(3) Repair of the radial digital nerve.

(4) Repair of the nail bed of the little finger.

22. The plaintiff was discharged from hospital on 27 April 2000 and was arranged to attend follow-up in the hand class. He was also referred for physiotherapy to his left hand. The plaintiff's left hand was supported in a hand splint for a few months after discharge. The K-wires were removed at the Duchess of Kent Children's hospital a few months after discharge. The plaintiff had attended 34 sessions of physiotherapy treatment between May and November 2000.

23. The plaintiff also had two further operations for nerve implant performed as a result of the loss of sensation in his left hand. The first of these operations was performed in October 2000 at the Duchess of Kent Children's Hospital, and the nerve graft was taken from the lateral left ankle and transplanted to the left thumb where there was total sensation loss. The second nerve grafting operation was performed about half a year after the first operation. That second operation was to improve the sensation loss of the left index and middle fingers. About one and a half years after the accident, a neuroma developed at the distal end of the nerve at the donor site for the nerve graft. Subsequently, the neuroma was excised and that operation was performed at the Duchess of Kent's Children Hospital. In all, the plaintiff was granted sick leave up to 18 April 2002. The physiotherapy and occupational therapy also continued until about the time his sick leave expired.

24. The plaintiff was examined by Dr Arthur Chiang who gave his report dated October 2003. Dr Chiang was of the opinion that the interphalangeal joint of the left thumb had acquired satisfactory fusion and that the position of the fusion was also satisfactory. He further was of the view that the metacarpophalangeal joint had maintained a satisfactory range of movement. Although there was complete loss of motion in the interphalangeal joint, the metacarpophalangeal joint would still allow for a reasonable overall movement of the left thumb. He further opined that the repair of the cut blood vessels to the distal part of the left thumb should be successful as this was reflected in the early stage by the fact that the distal thumb could survive after the repair and, at the time of his examination, by the absence of obvious coldness in the distal part of the left thumb beyond the cut wound. As for the severed nerves, those parts that did not have good recovery had been treated by nerve grafting.

25. At the time of his examination by Dr Chiang, the plaintiff complained of complete numbness over that part of the left thumb distal to the cut wound. The plaintiff also complained of residual numbness at the palmar aspect of the left index and middle fingers. There was no obvious complaint in the left ring finger. Dr Chiang concluded that the injuries to the index and middle fingers had not caused significant stiffness in those fingers. He also concluded that the overall range of movement of the left index, middle and ring fingers was satisfactory despite a very mild loss in the end range of extension. As to the laceration to the left little finger, that, in the opinion of Dr Chiang, had acquired a satisfactory healing.

26. The plaintiff also complained to Dr Chiang of a sensitive spot over the donor site of the nerve graft. Dr Chiang concluded that since the neuroma which had formed there had been excised, the tender spot which appeared to be still there would have a chance to decrease with time.

27. Overall, he came to the conclusion that the plaintiff's condition had stablised and further treatment was unlikely to be beneficial to the plaintiff. He was of the view that the injuries and disability to the plaintiff constituted a 13% impairment of the whole person and, together with the scarring and neuroma, the total impairment of the whole person is 14%. Finally, Dr Chiang opined that with the residues in the left hand the plaintiff might not be able to perform the carpentry work in full capacity but that he should be able to perform the various manoeuvres of a carpenter. However, these activities would likely be performed with reduced speed and efficiency.

PAIN, SUFFERING AND LOSS OF AMENITIES

28. I have been referred to a number of local awards in respect of the type of injuries and disabilities suffered by this plaintiff. In the light of the injuries and disabilities suffered by this plaintiff as referred to above, the award for pain, suffering and loss of amenities in this case should properly be at $400,000.

LOSS OF EARNINGS (PRE-TRIAL)

29. Before the accident, the plaintiff was a carpenter with an average earning of $20,800 per month. After his sick leave expired in April 2002, he remained unemployed until June 2002 when he obtained work as a garage apprentice. However, after less than one month he was asked to leave because of his disability to his left hand which prevented him from carrying out the heavier duties. He was paid $4,000. In July 2002, the plaintiff was able to obtain work as a construction site worker, earning $13,000 a month. However, that employment ceased in April 2003 when the construction project was completed. From September 2003, the plaintiff resumed working as a garage apprentice, earning $7,000 per month. Since January 2004, the plaintiff has returned to work as a carpenter, earning $17,000 per month. His loss of earnings (pre-trial) should therefore be calculated in stages as follows :

(a) From the date of accident until the end of June 2002, being 26 months and 10 days, at the full rate of loss of $20,800 per month. This will give a figure of $548,800. From this amount would be deducted the total periodical payments received by the plaintiff from the 1st defendant during the period of sick leave in the total amount of $250,000. The $4,000 he earned as a garage apprentice will also be deducted. This will give a figure of $294,800.

(b) From July 2002 to March 2003, being a period of nine months when the plaintiff was working as a construction site worker. The loss of earnings was reduced by $13,000 per month, being the amount earned by the plaintiff as a construction site worker during that time. This will give an amount of $70,200, being the loss for this period.

(c) The five months from April 2003 to August 2003 when the plaintiff was unemployed. Total loss of earnings for these five months will give a figure of $104,000.

(d) For the four months from September 2003 to December 2003 when the plaintiff was working as a garage apprentice earning $7,000 per month. The monthly loss will therefore be reduced by $7,000 for these four months which gives a figure of $55,200.

(e) Lastly, from January 2004 until judgment when the plaintiff had resumed work as a carpenter earning $17,000 per month. This will give a monthly loss of $3,800, for eight months. That figure comes to $22,800.

The total loss of earnings (pre-trial) therefore comes to $547,000.

FUTURE LOSS OF EARNINGS

30. As for future loss of earnings, since the plaintiff is now working as a carpenter earning $17,000 per month, the multiplicand to be adopted would be $3,800 per month. As for the multiplier, I take into account that the plaintiff is now 34 years of age, whilst the work of a carpenter is not the heaviest kind of manual work, it is manual work and not of a light nature either. In all the circumstances of this case, it would be appropriate to adopt a multiplier of 14. This would give a sum of $638,400 as being the loss of future earnings.

LOSS OF EARNINGS CAPACITY

31. The plaintiff claims loss of earnings capacity at $100,000. Admittedly, with the plaintiff's resultant disabilities from the accident, he will undoubtedly suffer some disadvantages and handicap in the labour market. Loss of earnings capacity is to cater to such disadvantages or handicap. However, looking at the picture overall and, in particular, the fact that the plaintiff has now been able to resume work as a carpenter earning close to what he was earning before the accident, his disadvantages and/or handicap in the labour market should not be very substantial. In all the circumstances of this case, I would assess loss of earnings capacity at $50,000.

LOSS OF MPF

(a) Pre-trial

32. MPF came into force in Hong Kong in December 2000. Therefore, to calculate loss of MPF in relation to the pre-trial period, the plaintiff's pre-trial loss of earnings will have to be reduced by his monthly earnings for the period from the date of accident until December 2000. From that reduced amount, a flat 5% will be taken. This is to be worked out as : 5% x ($547,000 - $131,0000) = $20,800.

(b) Future loss of MPF

33. This is worked out as a flat 5% of the loss of future earnings which gives $31,920.

SPECIAL DAMAGES

34. The plaintiff claims $748 for hospital charges and $12,672 for out-patient treatment fee. Both these items are supported by receipts and will be allowed. The plaintiff also claims travelling expenses of $19,008. This is elaborated upon in his evidence as contained in his Witness Statement. The travelling expenses were for out-patient treatment and for physiotherapy treatment and were based on travelling by either public light bus or by public bus. The amount appears sufficiently reasonable and will be allowed. There is also a claim of $10,000 for tonic food. Although this item was not supported by receipt, in view of the fact that sick leave was granted to the plaintiff for some two years, $10,000 spent on tonic food for the period of recovery does not appear to be excessive in all the circumstances. This amount will therefore be allowed. In all, the special damages comes to $42,428.

INTEREST

35. Interest will be awarded at the rate of 2% per annum on general interest for pain, suffering and loss of amenities from date of the writ. Interest on pre-trial loss of earnings and special damages will be awarded at 4% (half judgment rate) from the date of the accident.

SUMMARY

CONCLUSION

37. Taking into account the one-third contributory negligence of the plaintiff, the total sum assessed will be reduced by one-third to give the sum of $1,228,922. Accordingly, there will be judgment to the plaintiff against both defendants for the sum of $1,228,922.

COSTS

38. There will be a costs order nisi that the 1st defendant pays the plaintiff his costs of this action as to liability and that both defendants pay the plaintiff his costs in relation to the assessment of damages.