KWONG SIU WING and Another v. WONG WAI CHUNG

1989, No.A5715

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

_______________________

ASSESSMENT OF DAMAGES

_______________________

1. These proceedings arise out of an accident which occurred on 14th August 1988. Mr. Kwong Man (the deceased) in the course of his employment by the Defendant as a carpenter, was using a circular saw to cuts strips of wood, when his right hand came into contact with the blade of the saw causing severe injuries to his hand. The action was commenced on 4th October 1989 and judgment in default of notice of intention to defend was entered on 8th August 1991. I have been given no explanation of the delay in bringing this matter to court, but I note that no less than three notices of intention to proceed have been necessary before the action came to this hearing. One of the unfortunate results of this is that Mr. Kwong died from causes unrelated to his injuries on 26th January 1993, causing a further delay while letters of administration of his estate were obtained and the present Plaintiffs substituted to carry on these proceedings on 27th April 1995.

2. No oral evidence was adduced by either the Plaintiffs or the Defendant at the hearing of this matter, the only evidence being submitted by the Plaintiffs by was of notice under the Evidence Ordinance and Order 38 of the Rules of the Supreme Court, none of which was disputed or objected to by the Defendant.

3. The medical evidence was solely contained in a report by Dr. David T. Lee dated 20th September 1989, from which the following was apparent. The deceased sustained a crush and cut injury to his right hand amputating his right little finger at the proximal interphalangeal joint. The damage to the index and middle finger was repaired by internal fixation by pins and he was left with ankylosing (a consolidation and immobilising of the bones) of the proximal and distal interphalangeal joints of the right ring and middle fingers, and the distal interphalangeal joint of the index finger. His right hand could not make a fist because of the stiffness of the fingers, he had diminished sensation over the right palm, and a very weak right grip and pinch. As a result, he was unable to return to his pre-accident occupation as a carpenter.

4. I have no evidence of the extent of the pain and suffering caused to the deceased by the injuries, nor the extent to which his life, apart from his employment, was affected. The only fact I have regarding the deceased personally is that he was born in 1931 and was therefore 58 years of age at the date of the accident. There is no evidence as to his marital status nor other members of his family, although I note that the Plaintiffs were granted letters of administration as attorneys of one Lau Shui Lan. Whether she was his widow or mother I have not been informed.

5. In respect of damages for pain suffering and loss of amenities therefore, I can only look at the injury itself, the operation following, and the resulting disability. There can be no doubt that this was a very unpleasant injury, which must have caused the deceased considerable pain at the time, and the disability which resulted would have prevented the deceased from performing easily many of the day to day personal and domestic tasks that anyone else takes for granted.

6. Mr. Miu, on behalf of the Plaintiffs, has conceded that the injury falls short of the "serious injury" category as defined in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 which, in accordance with the upgraded figures set out by the Court of Appeal in Chun Yat Nam v. A.G. (C.A. 92 of 1994) now has as its lower figure a sum of $250,000.00. He however says that this is a proper starting point and has also suggested that this figure should in turn be adjusted for inflation since that decision was handed down, and submits that it should now be $270,000.00. While I am prepared to allow an increase in the figures set out by the Court of Appeal to take account of inflation, I am of the view that a slightly lower sum would be appropriate in this case. I accordingly assess damages for pain suffering and loss of amenities at $260,000.00.

7. At the date of the accident the deceased was earning $2,600.00 a day and working 22 days a month, giving an average monthly income of $5,720.00. He did not work again from then until the date of his death in January 1993. From the medical report it is clear that the deceased could not return to his pre-accident employment, and the question now remains whether it was reasonable for him not to work again at all. There is no suggestion that his there was any other medical cause for him not to work, the cause of death in 1993 being a heart attack which appears to have been completely unexpected. However, he was, as I have said, 58 at the date of the accident, no longer a young man, and now with a disability which would preclude him from pursuing any but the most basic occupations requiring no physical dexterity I am not prepared to say, in the absence of any evidence of the availability of such an occupation at the time, that he should have obtained such employment or that he would have been able to do so. In the circumstances of this case, I see no reason not to award damages based on a total loss of earnings from the date of the accident to the date of his death.

8. Mr. Miu has suggested figures for such loss based on an inflation rate of 10% a year, which he says is supported by the decision in Chun Yat Nam, at least up to 1994. Again, in the absence of any more accurate way of ascertaining annual increases to take account of inflation, or figures for earnings of carpenters over the period, I will accept that as the only way, however rough and ready it may be, to work out his loss. This gives figures for his potential monthly earnings of $6,292.00 for 1989, $6,921.00 for 1990, $7,613.00 for 1991, and $8,375.00 for 1992 and until his death in January 1993. The in turn gives a sum of $20,020.00 for the remaining part of 1988, $75,504.00 for 1989, $83,054.00 for 1990, $91,360.00 for 1991, and $100,496.00 for 1992, making a total loss of earnings of $370,434.00.

9. The only other item was medical and hospital expenses and the sum of $1,112.00 was not disputed by the Defendant.

Summary

Pain suffering and loss of amenities	$260,000.00
Loss of earnings	$370,434.00
Hospital and medical expenses	$1,112.00

10. There will be interest on general damages at 2% per annum from the date of the writ, and on special damages at 5% from the date of the accident, both to the date hereof. The Defendant will pay the Plaintiffs' costs to be taxed, with a certificate for counsel, and the Plaintiffs' own costs will be taxed in accordance with Legal Aid Regulations.