TIN WAI SHING AND OTHERS v. TAM FOON LING trading as THE WORLD REFRIGERATION (HONG KONG) CO.

1986 No. A6551

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The plaintiff in this action claims damages for injuries to his left eye which he sustained on 10 March 1984 when he was working in the course of his employment for the defendant as an air-conditioning apprentice at the defendant's workshop at 44B Tang Lung Street, Ground Floor, Hong Kong. The defendant at the material times carried on the business of refrigeration and air-condition engineering at that address.

2. The writ was issued on 18 November 1986 and the statement of claim has been subsequently amended and re-amended. The plaintiff was suing through his mother TSANG Lee Ching as his next friend due to infancy. He was born on 3 September 1968 and was 15 years old at the time of the accident. A defence was filed on 12 March 1987 by Messrs. Hastings & Co. acting for the defendant. The plaintiff has been throughout represented by the Director of Legal Aid. Requests for and answers to further and better particulars were served on each side. There were also hearsay notices and counter notices relating to the admission of hearsay evidence. Hastings & Co. later ceased to act for the defendant and a notice of intention to act in person was filed on 20 march, 1989. Following this, there was a long period of inaction when nothing was done to set the case down for trial. Mr. Ozorio who was only instructed to appear at the trial for the plaintiff was unable to offer any explanation for this long delay. The case was first set down for trial on 7 May 1991 in the running list. On 10 July 1991 it was put down on the fixture list for trial which again failed to materialize. When the matter came before Stock J on 18 December 1991, the hearing was adjourned to 29 March 1993 on the application of the defendant that it required time to seek advice. At 10 a.m. on 29 March 1993 when the trial commenced before me, the defendant did not appear. Instead a man, whose name was FUNG Kwai-ming claiming to be the son of Tam Foon Ling, the defendant, handed to me what was purported to be a medical certificate from a private medical practitioner stating that Madam Tam was suffering from low back pain and required one day's sick leave on 29 March. I informed Mr. Fung to tell his mother to attend court the following day and that was 30 March otherwise the case would be heard in her absence and judgment given according to the merit of the evidence. I then adjourned the hearing to 10 a.m. 30 March.

3. Neither Madam Tam nor her son Mr. Fung was present at 10 a.m. on 30 March and up to the end of the trial, neither of them had been seen in court at any stage. I proceeded to hear the case in the absence of the defendant as I was satisfied that the defendant was deliberately trying to delay the proceedings.

4. Two witnesses were called and they were the plaintiff and Mr. Derek John Mabbott. The plaintiff was calm and composed when he gave his evidence and answered questions coherently. He is now 24 years old and single. He had completed his education in Form 2. After leaving school in 1984, he worked in the kitchen of a restaurant as an apprentice. He joined the defendant on 1 March 1984 as an air-conditioning apprentice under an apprenticeship contract at $1,300 a month and the contract was for a period of 3 years after which he would qualify as a mechanic. For the 10 days up to the time of the accident, he had been working under qualified mechanics or masters. He had worked both at construction sites to install air-conditioning ducts or at the workshop in Tang Lung Street. His work involved the cutting of iron sheets with a pair of industrial scissors. He was not provided with goggles or anything to protect his eyes. In the morning of 10 March 1984, he was working at the workshop in Tang Lung Street and when he was cutting a triangular iron sheet into L shape something struck up and hit his left eye. Before he started to cut the iron sheet, neither his employer nor anyone in the workshop had warned him to wear goggles or to use anything to protect his eyes. No such equipments were available at the workshop. A piece of small metal object had hit his left eye. He went home and his elder brother took him to Tang Shiu Kin Hospital where he was hospitalized for a week until 17 March.

5. He returned to the hospital for follow-up treatment and on 11 April underwent an operation to remove the cataract. His left eye can now only see with blurred vision. He wears spectacles as an aid to his right eye because he could not see clearly with his left eye. He dares not to run across the road because only one eye could see the traffic. He has no difficulty walking in the crowd. He cannot play table tennis and snooker which he played before the accident. He does not feel any pain now in his left eye and there was no water or tears coming out. He has to avoid bright light because that would cause water or tears in the eye. Artificial lights are not as serious as natural lights.

6. After the accident, he was given sick leave and returned to work on 7 June 1984. He was given lighter work because his left eye was still covered with cloth. He was dismissed on 8 October 1984. On 17 August 1984, a Medical Board had assessed his loss of earning capacity at 30% and he also suffered a total visual impairment of the left eye. He was given workmen compensation.

7. For about 4 months after his dismissal he worked at a newspaper stall at $2,500 a month and was afterwards unemployed for about 3 months because the newspaper stall closed down. During this period, he was unhappy and took LSD. As a result he was sentenced to the Drug Addiction Treatment Centre from December 1985 to August 1986. He frankly admitted that he took LSD because he associated with bad elements while he was working at the newspaper stall and it had nothing to do with his eye injury.

8. After he was discharged from DATC he worked in a cafe in Happy Valley at a monthly salary of $3,000 for three months from September to November 1986. He left because he could not work fast enough due to poor eyesight.

9. From January 1987 he worked as a salesman with Ying For Cheung which sold lamps. His monthly salary was $3,000 odd. His duties were to sell lamps in the shop to customers. He stayed at this job for about 9 months until his employer and family emigrated.

10. He was unemployed for 2-3 months before his next job as a kitchen apprentice at the canteen of the Inland Revenue Department at about $4,000 a month. He worked there for 4 to 5 months and left because the proprietor was not happy with the speed of his work. He continued to work in the same capacity in other establishments also at $4,000 month.

11. From 1 March 1991, he joined the Tai Ping Company, which carried on business of installing window air-condition units. He worked there for 3 months and was sentenced to prison for theft. He stole a portable TV from the godown of his employer. After his release in November 1991, he returned to work for the same company and that was the company from which he stole the television set. His employer accepted that he committed the offence out of momentary greediness. He received $4,500 a month.

12. In January 1992, he switched to work for his elder brother from Tai Ping. The work was to stall air conditioners. On account of his poor eye sight, other colleagues helped with installations outside the premises. He was paid $4,500 a month by his elder brother and he left this job when his elder brother completed the contract.

13. He found another job to repair air-conditioners at $4,500 in March 1992. He was not required to climb outside the window to work. He did not have much difficulty with his work. He left this company in November because business in the winter was not good.

14. Since 1 December 1992 he has been working with Tai Fat Hong, a decoration company earning about $4,680 a month.

15. He said that after he completed his apprenticeship he would become a technician. After the 3 months' probation period he would get an increase between $200 to $300. If his performance was good he received bigger increases and if the accident had not happened he would have completed his apprenticeship in 1987 and received a salary between $7,000 to $8,000 a month. He was confident that he would have completed his apprenticeship in 1987 had this accident not happened. I accept that this would have been the position.

16. His present employment with Tai Fat involved cleaning and tidying up work sites, moving furniture, and transporting materials. During the past 9 years, he said that the chance for him to find suitable employment was 50/50. He does not speak English and this makes him unsuitable for employment as a salesman. He does not know if his eye injury would affect his marriage prospect.

17. Between May to November 1990, he worked for a company called Wing Shing at a salary of $3,900 a month.

18. The next and last witness called by the plaintiff was Mr. Derek John Mabbott, the safety officer of the University of Hong Kong. His testimony as an expert on industrial safety is that goggles or eye protection equipment such as safety spectacles ought to have been provided to the plaintiff whose job was to trim very small pieces of metal and very small pieces of metal are known to fly. Safety spectacles only cost $20 each whereas goggles are more expensive.

19. In the pleadings, the plaintiff alleged breach of statutory duty, occupier's liability and negligence. In his final submission, Mr. Ozorio was content to rely on negligence as the sole cause of action against the defendant. The plaintiff does not have to establish all the allegations in the pleadings, it is enough if he succeeds in proving any one of them. Mr. Ozorio referred to the decision of the House of Lords in Wilson and Clyde Coal v. English [1938] AC 37 in which it was held that an employer has a common law duty to take reasonable care for the safety of his workmen. That duty was said to consist of the duty to provide competent staff, adequate material and a proper system and effective supervision.

20. In the absence of any evidence from the defendant, I find on a balance of probabilities that the plaintiff has established that a small piece of metal flew into his left eye while he was trimming the iron sheet and this caused the injury. I am further satisfied on balance of probabilities that the accident was due to the negligence of the defendant in failing to take reasonable care in providing goggles or other eye protection equipment to the plaintiff in the course of his work.

21. I will now turn to quantum.

Special Damages - special damages for special food, travelling expenses and hospital fees amount to $2,500. As this sum is reasonable and modest, I allow it in full.

Pain, Suffering and Loss of Amenities of Life

On a consideration of previous decisions, I consider a sum of $200,000 appropriate and I make an award of this amount accordingly.

Loss of Earnings

22. I observed the plaintiff carefully while he was giving his evidence in the witness box. Despite the setback, he appeared to be reasonably cheerful and confident of his future. It is true that there will be certain types of work which he will not be able to do so well as a person with perfect eyesight in both eyes, there are still other types of work which he can do without too much disadvantage. Ever since the accident and his dismissal, it has not been too difficult for him to find employment within comparatively short intervals. He appears to be able to adapt to new work and new environment rather quickly. The company with which he is now working, Tai Fat Hong, seems to be happy and satisfied with his work. He has been with this company for nearly a year and a half since 1 December 1992. He remains optimistic that he will continue to work for this company. With his good record with this company I have every reason to believe that he will continue to be employed and it is also not unreasonable to expect that he may also have some increases in his wage in the days ahead. Should he leave this company either on his own volition or due to dismissal, I do not foresee any problem for him to find similar alternative employment. Applying the principles in Moeliker v. Reyrolle & Co. Ltd. [1977] 1 WLR 132, I make no award for loss of earning capacity. In any event, his loss will be adequately compensated by the substantial award for loss of future earnings to which I must now turn.

23. In relation to future loss of earnings, I accept what is set out in the figures provided by Shing Kee as an accurate guide with a 10% increase to be added to the 1992 figure and another 10% to the 1993 figure. On this basis and accepting that the plaintiff would have completed his apprenticeship but for the accident, Mr. Ozorio suggested that I should make an award based on $11,011 less what the plaintiff is now earning at $4,680 and this produces a figure of $6,331. The plaintiff is now aged 24 and the conventional multiplier for a man of his age is 16 years. I agree that this is the proper multiplier. But on the loss of future earnings, I have to take into account of what I said earlier regarding the good opportunity of the plaintiff finding employment and there are reasonable expectations that his earnings would be increased. Having seen and observed him and listened to his evidence, I would not consider it a remote possibility at all that his future earning can be increased by at least 15% to 20%. In the circumstances, a loss of earnings to be represented by a sum of $5,000 a month is reasonable and realistic in all the circumstances of this case. This is far in excess of the 30% loss of earning capacity assessed by the Medical Board. The equation for the loss of future earnings is therefore : $5,000 x 12 x 16 = $ 960,000.

24. The remaining item is pre-trial loss of earnings. Under this head, Mr. Ozorio suggested an average monthly loss of $3,115.50 from 10 March 1984 to the date of judgment and the calculation is $3,115.50 x 108.75 months = $338,810.63. This seems to me to be about right and accordingly I make an award for this amount in relation to pre-trial loss of earnings.

25. Damages for pain, suffering and loss of amenities of life are to carry interest at 2% p.a. from the date of the service of the writ to the date of judgment.

26. The pre-trial loss of earnings and special damages carry an interest at the rate of 5% p.a. from the date of the accident to the date of judgment.

27. The awards under the various heads are: -

(a)	Pain, suffering and loss of amenities of life	$200,000.00
(b)	Pre-trial loss of earnings	338,810.63
(c)	Special damages	2,500.00
(d)	Loss of future earnings	960,000.00
		------------- $1,501,310.63

28. The sums of $82,802 and $11,497.40 received by the plaintiff under the Employees Compensation Ordinance and by way of interest are to be deducted and this produces a final figure of $1,407.011.23.

29. There would be judgment for the plaintiff for $1,407,011.23 and interest for damages for pain, suffering and loss of amenities of life, pre-trial loss of earnings and special damages at the rates as specified and costs.