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HCA003723/1984
1984 No.3723
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
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WONG MAN NGAI |
Plaintiff |
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and |
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MULTI-BEST MANUFACTURES LIMITED |
Defendant |
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Coram: Master P.H. O'Donnell in Chambers.
Parties Present: A.J. Stables, Senior Legal Aid Counsel for plaintiff.
Defendant absent and unrepresent.
Date of hearing: 16th March 1988
Date of decision: 22nd April 1988
Date of delivery: 27 April 1988
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ASSESSMENT OF DAMAGES
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The Plaintiff was employed by the Defendant as a plastic moulding press operator. On the 9th June 1981 in the course of that employment the Plaintiff, who was 19 years of age at that date, suffered crushing injuries to his left hand from the moulding machine he was operating at the time.
1. The Defendant filed a Notice of Intention to Defend and a Defence on the 14th July 1984 to the Statement of Claim issued on 1st July 1984. The Defence was struck out and interlocutory judgment entered for the Plaintiff on 10th July 1986 upon failure of the Defendant to file a list of documents. The Notice of Appointment for Assessment of Damages and Notice under Section 47 of Evidence Ordinance and Order 38 R.S.C. were served at the registered office of the Defendant on 2nd March 1988. Plaintiff was granted an abridgement of the 21 days within which to serve the hearsay notice so that the assessment could proceed on 16th March last.
2. The 11 documents attached to the Hearsay Notice which included medical reports were admitted as evidence at the assessment. The medical reports outline the disabling injuries which the Plaintiff sustained to his left hand. Dr. David Lee in his report dated 25th June 1987 (Document 10) has described the limitation of movement in the four fingers of the Plaintiff's left hand which is not his preferred hand. Dr. Lee reports that the left hand is markedly deformed with only 50% of function remaining in the left four fingers. Dr. Lee's assessment of the Plaintiff's permanent disability is in the region of 20%, whereas Dr. R.G.M. Wedderburn in his report dated 10th January 1984 (Document 9) has assessed the Plaintiff's total impairment of the Whole Man as 23%. The Plaintiff received 3 operations to the fingers of his left hand on 13th June 1981, 15th April 1982 and 24th June 1982 at the Princess Margaret Hospital and also long periods of physiotherapy in the hand clinic.
3. The only witness called at the assessment of damages was the Plaintiff, who described the intense pain suffered from this injury and that he spent 10 days in hospital receiving treatment. The Plaintiff says he still feels pain in his left hand on occasions while working as a packager or whenever the weather changes. The Plaintiff stated that at the date of the accident on 9th June 1981 he was earning $69.00 a day including a,$6.00 meal, allowance as a moulding machine operator. The Plaintiff returned to work as a packager for the Defendant in August 1982 and was paid $45.00 a day while working in this capacity for about one month. He resumed work as a machine operator for the Defendant on 27th September 1982 earning $60.00 a day but was dismissed about the middle of November 1982.
4. The Plaintiff stated in his evidence that after a short period of unemployment he became an unlicensed hawker selling clothes during December 1982 and January 1983 and earned on average $30.00 a day from this work. Between 3rd February 1983 and 20th March 1983 the Plaintiff worked in a wire factory earning $50.00 a day until 21st February 1983 when his wages were increased to $55.00 a day. As this income was insufficient to support his wife and family and because of the difficulty from his injury in doing this work, he left the job in the wire factory on 21st March 1983. After being unemployed for 12 days the Plaintiff resumed work as a moulding press operator on 2nd April 1983 earning $50.00 a day. He was later dismissed from this job on 20th February 1984 for working too slowly.
5. The Plaintiff was employed as a substitute lift operator/watchman earning $50.00 a day for a total of 14 days. Since 3rd April 1984 the Plaintiff has been employed at a private primary, school in Tsuen Mun near his home as office boy/odd job worker between 6.45 a.m.and 6.50 p.m. on 6 days a week Initially his salary in this position was $1,980.00 per month and with an annual increase of between $100.00 and $200.00 per month he is now paid $2,970.00 per month The Plaintiff has not been employed in any other capacity since April 1984 He has applied for a job as a factory cleaner which would pay $13.00 an hour ($100.00 a day).
6. The Plaintiff claimed that if he had not been injured in this accident he would be earning $150.00 a day or $4,500.00 per month as a moulding machine operator. He claims that plastic factories are very busy at present and work 10 hours a day on at least 6 days a week or 26 days in a month. The Plaintiff paid medical expenses of $3.00 on each visit for physiotherapy treatment at Princess Margaret Hospital. There was evidence of at least 111 visits for physiotherapy treatment. It was calimed that medical receipts to a Value of $2,000.00 had been discarded by the Plaintiff before he was advised to retain same.
7. The Plaintiff said he was.married in October 1983 and,has 2, daughters aged 4 and 2 years respectively. Travel expenses of $8.00 a return trip were incurred by the Plaintiff in travelling by bus and P.L. B. between his home in Tsuen Mun and Princess Margaret Hospital for physiotherapy and other medical treatment The Plaintiff says he restricted in trying to obtain atternative employment because of his injury and he was only educated to Form 2 level. His wife does not work Prior to the accident the Plaintiff played basket-ball which he cannot participate in now and that he is unable to drive a motor vehicle because of the injury to his left hand. The Plaintiff is now 26 years of age having been born on 7th September 1961.
8. Counsel for the Plaintiff referred to 5 cases involving similar hand injuries where damages for pain suffering and loss of amenities ranged between $60,000.00 and $132,000.00. Mr. Stables submitted that an appropriate award of general damages under this head in this case would be between $100,000.00 and $120,000.00. Taking into account the circumstances of this case and in particular, a permanent disability to Plaintiff's left hand of between 20% and 23%, the sum of $120,000.00 will be awarded as general damages for pain suffering and loss of amenities. Turning to the special damages for loss of earnings Counsel for the Plaintiff produced and relied on a written submission settling out details of the Plaintiff's potential earnings as a plastic moulding machine perator based on information supplied by the Census and Statistics Department (Document 7 in the Bundle). These details are reproducedas Schedule 1 and show a total of $221,936.00 as the potential earnings of the Plaintiff between the date of the accident and the date of this assessment. From this figure the total actual earnings of the Plaintiff over this same period needs to be deducted as well as the Employee's Compensation of $62.186.00 Previously paid to the Plaintiff. It has been calculated that the Plaintiff's actual earnings on the basis of his evidence over the pre-assessment period were $137,850.00 as set out in Schedule 2 so that the special damages for past loss of earnings should be:
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Potential Earnings |
$221,936.00 |
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Less Actual Earnings |
$137,850.00 |
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Less Employee's Compensation |
$62,186,00 |
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Balance
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$ 21,900.00 |
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9. As for the post assessment or future loss of earnings Counsel for the Plaintiff urged me to adopt a multiplier of 15 from the date of the assessment for the Plaintiff who was only 19 years of age at the date of the accident in 1981 and is now only 26 years of age. In the circumstances the suggested multiplier of 15 is appropriate and will be adopted to assess the future loss of earnings. The latest figures of $138.00 for daily wages of moulding machine operators engaged in the manufacture of plastic products from the Census and Statistics Department is dated March 88 and includes fringe benefits so this figure will be adopted. The Plaintiff's actual earnings have been increased to $3,220.00 to provide for the annual increment of approximately $250.00 he will receive from 1st April 1988.
10. The continuing loss to the Plaintiff is calculated at $368.00 a month on the basis of estimated earnings of $3,588.00 per month ($138.00 x 26 days) as a plastic moulding press operator less his actual earnings of $3,220.00 (including annual increment) in his present position. Therefore the award for future loss of earnings will be calculated as follows:
$368.00 x 12 months x 15 (multiplier) a. $66,240.00.
Summary of damages awarded are as follows:-
General Damages
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(1) Pain, suffering and loss of amenities |
$120,000.00 |
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(2) Special Damages |
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(a) Pre-assessment loss of earnings |
$ 21,900.00 |
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(b) Future loss of earnings |
$ 66,240.00 |
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(c) Medical expenses allowed at |
$ 500.00 |
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(d) Travel expenses for medical treatment |
$ 1,000.00 |
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$209,640.00 |
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11. There will be the usual interest at 2%.p.a on the general damages and the pre-assessment loss of earnings from the date the writ was issued until the date of this decision. Interest on the other special damages except the award for future loss of earnings will be at the rate of 3.5% per annum from the date of the accident to the date of this decision.
12. The costs of.,this assessment to the Plaintiff and his own costs to be taxed in accordance with Legal Aid Regulations.
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( P.H. O'Donnell ) |
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Master |
Representation:
A.J. Stables, Senior Legal Aid Counsel for plaintiff.
Defendant absent and unrepresent.
SCHEDULE 1
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From 9th June 1981 to 6th August 1982 (14 months sick leave) $69.00.x 26 (days) x 14 (months) = |
$25,116.00 |
| 2. |
From 7th August 1982 to March 1988 |
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1982 : (August to December) $80 x 26 (days) x 5 (months) = |
$10,400.00 |
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1983 : $86 x 26 (days) x 12 (months) = |
$26,832.00 |
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1984 : $104 x 26 (days) x 12 (months) = |
$32,448.00 |
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1985 : $119 x 26 (days) x 12 (months) = |
$37,128.00 |
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1986 : $122 x 26 (days) x 12 (months) = |
$38,064.00 |
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1987 : $132 x 26 (days) x 12 (months) = |
$41,184.00 |
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1988 : $138 x 26 (days) x 12 (months) = |
$10,764.00 |
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TOTAL :
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$221,936.00 |
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SCHEDULE 2
Plaintiff's actual earnings since date of accident.
(1) August /September 82 employed as packager, by Defendant earning $45 a day for 1 month -
$45.00 x 26 = $1,170.00
(2) 27th September 82 to mid-November 82 employed as a machine operator by Defendant earning $60.00 a day -
$60.00 x 42 days = $2,520.00
(3) December 82 and January 83 - unlicensed clothes hawker earning $30.00 a day -
$30-00 x 52 days = $1,560.00
(4) 3rd February 83 to 20th March 83 - working in wire factory earning $50.00 a day and increased to $55.00 a day from 21st February 83 -
$50.00 x 14 days = $700.00
$55.00 x 26 days = $1,430.00
(5) 2nd April 83 to 20 February 84 employed as a moulding press operator earning $50.00 a day -
$50.00 x 277 days = $13,850.00
(6) February - March 83 working as lift operator for 14 days earning $50.00 a day -
$50.00 x 14 days = $700.00
(7) 3rd April 84 to 31st March 85 working as school office boy and odd-job worker earning $1,980.00 per month -
$1,980.00 x 12 months = $23,760.00
(8) 1st April 85 to 31st March 86 in same position -
$2,230.00 x 12 months = $26,760.00
(9) 1st April 86 to 31st March 87 in same position -
$2,480.00 x 12 months = $29,760.00
(10) 1st April 87 to 31st March 88 in same position
$2,970.00 x 12 months = $35,64000
TOTAL ACTUAL EARNINGS = $137,850.00
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