WONG SEE MO v. LAM NAM FUI AND OTHERS

Civil Appeal No. 21 of 1990

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HEADNOTE

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THE RANGE FOR PAIN AND SUFFERING AND LOSS OF AMENITIES AWARDS UNDER THE "SERIOUS INJURY" CATEGORY OF THE LEE TING LAM V. LEUNG KAM MING GUIDELINES NOW STARTS AT $150,000.

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JUDGMENT

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Bokhary J (delivering the judgment of the Court):

1. This case arises out of an accident at work on August 20, 1986. Mr Justice Barnes, giving judgment on December 20, 1989, found for the plaintiff worker on liability, holding the defendant employers wholly to blame. They do not appeal against that finding; but they appeal on quantum, complaining that the award is too high. The plaintiff cross-appeals on quantum, complaining that the award is too low.

2. The plaintiff was 37 years of age at the time of the accident. His left hand came into contact with the blade of an electrically-driven circular saw which he was using to saw wood. Mercifully, he is right-handed. Sadly, the injuries were bad.

3. Between what the saw did to his left hand and the surgery which that necessitated, the plaintiff has lost the distal phalanx of his index finger, parts of the distal and middle phalanges of his middle finger and the distal phalanx of his ring finger.

4. He spent a day in hospital, and was given 20 days' sick leave following his discharge. He underwent physiotherapy 3 times a week for, it seems, about 2 months.

5. Dr Philip Mao, who reported and gave evidence on his behalf, reported in March 1987 that the plaintiff had complained of: tenderness of the tips of his index and ring fingers; pain in his index, middle and ring fingers upon flexion; crepitus in his middle finger; and loss of strength generally of the injured hand.

6. Giving evidence at the trial, the plaintiff told the learned judge of: his loss of dexterity leading to his disinclination to play the occasional game of basketball in which he used to indulge; his inability to peel fruit; and his difficulty in doing up zips and buttons and in holding a bowl in his left hand. The judge appears to have accepted such evidence, which pertains principally if not wholly to pain and suffering and loss of amenities. In that regard, the judge. also made the point that: "Although he gave no evidence regarding the pain he suffered at the time there must necessarily have been considerable shock and pain and further pain continuing at least until the time of treatment."

7. Dr Philip Mao assessed the plaintiff as having a 30% disability of the upper extremity which amounts to an 18% disability of the whole person.

8. $70,000.00 is the award which the learned judge made in respect of pain and suffering and loss of amenities. The employers do not appeal against that award. But the plaintiff cross-appeals against it, contending that it is too low.

9. There are three other awards the correctness of which arise for consideration in this Court. Each relates to earnings.

10. The first is the award for pre-trial loss of earnings.  Here the learned judge awarded $74,617.00. That, contend the employers, is too high. They contend that only $6,675.98 - the amount agreed as the earnings lost while the plaintiff was on sick leave - should have been awarded under this head.

11. The second is the award for loss of future earnings. Here the learned judge awarded $655,200.00. The employers contend that no award at all should have been made under this head.

12. The third is the award for loss of earning capacity. Here the learned judge awarded $40,000.00. The employers do not appeal against that award. But the plaintiff cross-appeals against it, contending that it is too low.

13. At the time of the accident, the plaintiff was a carpenter of sorts. He said that he sawed wood and assembled furniture. The employers denied that he assembled furniture prior to the accident. But the learned judge accepted his evidence that he did. On the evidence of someone in the trade, a Mr WONG, the learned judge found that the plaintiff fell into the category coming between an ordinary worker and a skilled carpenter, and that persons in that category were being paid $250.00 per day by the time of the trial.

14. By that time the plaintiff was working as a watchman earning $2,800.00 per month. He gave evidence to that effect; and the learned judge so found.

15. Before going any further, it is necessary to note the first and second grounds of appeal set out in the employers' notice of appeal. They read:-

16. If the second ground is not made out, then the first ground falls away too. Dr Mao's report of March 27, 1987, concludes thus:-

"As his present work does not entail carrying very heavy loads he will be able to continue working as a furniture maker for his working life. In his case he has a 19% loss of earning capacity."

Dealing with that, the learned judge said:-

"At that time Dr Mao was of the opinion that, as his work did not entail carrying very heavy loads, he would be able to continue working as a furniture maker for his working life and assessed his loss of earning capacity as 19%."

Then the learned judge continued:-

"In evidence Dr Mao explained that when he said 'continue working as a furniture maker' he meant 'keeping the place clean, work such as that'."

Dr Mao's evidence in chief consisted - according to the learned judge's notes - of one question and one answer. They ran thus:-

That is sufficient to dispose of - so as to defeat - the first and second of the employers' grounds. It also similarly disposes of their third ground which reads:-

"The learned judge erred in finding expressly that the plaintiff's expert medical witness had equated the expression 'working as a furniture maker' with 'cleaning and similar tasks'."

Dr Mao said in terms - as one sees from his evidence in chief which I have just read out - that when he reported that the plaintif "... was able to continue as a furniture worker [he] meant keeping the place clean etc. ...".

- the short answer to it is that Dr Mao did not say that the plaintiff would be unable to continue his work only if he was a skilled carpenter. He did say in chief - as we have seen - that the plaintiff "... could not be a top furniture maker and could not do as well as before.". There is no reason to believe that the learned judge failed to take that piece of evidence into account or that it vitiates any of his conclusions.

17. The employers' fifth ground of appeal reads as follows:-

"The learned judge failed to give due or adequate weight to documentary evidence, introduced by the plaintiff under. a hearsay notice, that the plaintiff had indicated a desire to work in a non-manual job, such as a watchman, after the termination of his employment with the defendant."

That ground collapses under the weight of a very simple finding of primary fact. The learned judge accepted the plaintiff's evidence that the suggestion of non-manual work came from the interviewing labour officer once he saw the plaintiff's hand.

18. The employers' sixth ground reads as follow:-

"The learned judge erred in finding that the plaintiff was unable to do the work he had done prior to the accident, when the plaintiff's evidence was that his work after the accident was basically the same subject to difficulties with certain specified tasks."

That ground gets the employers nowhere. To say - as is said in that ground - that the plaintiff's evidence was that his work after the accident was basically the same subject to difficulties with certain specified tasks simply does not accurately reflect the evidence, which runs thus:-

The short answer to that ground is that there is no reason to believe that the judge was doing any more than identifying the principal tasks upon which the plaintiff used to be engaged when he said that "... his pre-accident work consisted of sawing timber and assembling furniture." Indeed, he did so simply in the course of rejecting the defence evidence that the plaintiff did not do furniture assembly work until after the accident.

19. The eighth and last of the employers' grounds reads as follows:-

"The learned judge erred in finding that the appropriate earnings multiplicand in the plaintiff's case was $250 per day."

The answer to that ground can be just as short. The judge did not apply a multiplicand of $250.00 per day. He had evidence - which he accepted - that carpenters in the category into which the plaintiff fell were earning $250.00 per day. From that the learned judge proceeded thus in arriving at the award for loss of future earnings:-

"For the purpose of calculating his future loss I adopt a multiplier of 13. He is presently earning $2,800 per month. On the basis of Mr WONG's description of the usual number of working days in a month in this industry I have used a 28-day month to calculate monthly rates. The plaintiff's monthly loss is $4,200 (7,000 - 2,800). The award for future loss is $655,200 (4,200 X 156)."

20. Each and every one of the employers' grounds of appeal fail. Their appeal must therefore be dismissed.

21. That leaves the plaintiff's cross-appeal.

22. Now it seems to us quite impossible realistically to contend that this plaintiff did not suffer disablement. In LEE Ting-lam v. LEUNG Kam-ming [1980] HKLR 657 at p.659, this Court, dealing with awards for pain and suffering and loss of amenities, said that "... disablement may be divided into four categories of ascending order according to its severity."   Those four categories have guided the approach of the courts ever since. The lowest category is the one dealt with at that page under the heading "Serious Injury". This is what was said:-

"This is the lowest category.   It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain. The general range of awards is from $60,000 to $80,000."

I will revert to the range in a moment. It has of course since been updated on a number of occasions.

23. As I have said, it seems to us quite impossible realistically to contend that this plaintiff did not suffer disablement. And if one looks at the way the term "serious injury" is explained in the passage which I have just read, one sees a reference to "disability which mars general activities and enjoyment of life." The plaintiff quite plainly has been left with a disability which mars his general activities and enjoyment of life.  I need not repeat here the evidence in that regard which I have already summarized.

24. The range for each of the categories has of course been revised upwards from time to time. On July 22, 1988 - in a case in which a bench of five judges was convened - this Court held, in LAU Che-ping v. Hoi Kong Ironwares Godown Co. Ltd [1988] 2 HKLR 650 at P.655A, that the range for serious injury was to be $135,000 - $180,000. That was some 2 years and 4 months ago. We do not regard this as an appropriate occasion on which to lay down a complete set of up-to-date ranges. But it is necessary for us to deal with the minimum sum to be awarded for pain and suffering and loss of amenities to somebody who comes within the serious injury category at the lowest end of that category - as we consider that this plaintiff does. All things considered - and we are grateful to counsel for the arguments which they have advanced - we are of the view that such sum is now $150,000.

25. Accordingly, the award of $70,000 in respect of pain and suffering and loss of amenities must be increased to $150,000.

26. There is one more award in respect of which complaint is made on the plaintiff's behalf. The learned judge awarded $40,000 in respect of loss of earning capacity. Mr Pirie, on behalf of the plaintiff, has suggested that the award is far too low; and he has invited us to increase it substantially.

27. In the course of the argument, it was pointed out to Mr Pirie from the bench that the learned judge had compensated the plaintiff, as far as loss of future earnings is concerned, on the basis that he would only be able to earn $2,800 per month, which is what he was earning as a watchman. And the incongruity of assessing his award for loss of earning capacity, on the basis of periods of unemployment, taking a rate higher than the rate taken as all that he could earn when was compensated for loss of future earnings was pointed out to Mr Pirie in the course of the argument. There is little to suggest that the plaintiff would find it very hard to secure or retain employment as a modestly paid watchman as opposed to a well paid carpenter. Mr Pirie has done his best to meet those difficulties. In our judgment, he has been unsuccessful.

28. The principle was dealt with by the Court of Appeal in England in Moeliker v. A. Reyrolle & Co. Ltd [1977] 1 WLR 132. Lord Justice Browne, delivering the leading judgement in that case, said this at P.142 A - C:-

29. The material on which the learned judge had to make his assessment under this head was sparse. It appears to us that he has done the best that he could on what he had. We detect no error in the award at which he arrived under this head.

30. The result, therefore, must be that the appeal is dismissed and the cross-appeal is allowed to the extent - but only to the extent - that the award for pain and suffering and loss of amenities is increased from $70,000 to $150,000.

[The costs of the appeal and of the cross-appeal were awarded to the plaintiff; and it was ordered that his costs be taxed under the Legal Aid Regulations]