KONG TAK ON v. JOHNNY LAU AND OTHERS

1987, No.A6337

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On the 5th November 1984, the Plaintiff, during the course of his employment with the Defendants as a power press operator, caught his right hand in a power press and suffered injury thereto. At the time of his injury the Plaintiff was 17 years of age and had been in the employ of the Defendants for a mere 8 days. The writ of summons was taken out on the 22nd October 1987. Interlocutory judgment was entered against the 2nd and 3rd named Defendants on the 29th November 1988 and against the 1st named Defendant on the 29th December 1988. In all cases the interlocutory judgments were for damages to be assessed and costs.

2. Miss Yip for the Plaintiff produced a bundle of documents at the commencement of this hearing, all of which had been the subject of notices under the Evidence Ordinance and in respect of which, no counter notices had been served. These were admitted in evidence.

3. The first of the documents so produced was a Certificate of Assessment issued by the Employees' Compensation (Ordinary Assessment) Board in which the Plaintiff's incapacity was assessed as being permanent and his loss of earning capacity at 19%. The Plaintiff was examined by the Board on the 14th May 1985.

4. In August 1987 the Plaintiff was examined by Dr. Philip Wen-chee Mao. He detailed the injuries suffered by the Plaintiff and the treatment he subsequently received.

5. Dr. Mao found that the Plaintiff had the following injuries namely that he had lost his distal phalanx in the right index and the distal phalanx plus two-thirds of the middle phalanx of the riddle finger. In addition thereto the Plaintiff also lost the distal phalanx and one-third of the middle phalanx of the ring finger.

6. Dr. Mao further reported that the Plaintiff had no major complaints regarding his fingers and in particular he suffered from no pain, phantom limb sensations nor numbness. Further Dr. Mao reported that the Plaintiff could use chopsticks and write, and that the grip of his right hand is 70 1bs. as against 110 1bs. with his left hand. Dr. Mao regard this as being quite good.

7. In the premises, Dr. Mao agreed that the Plaintiff had a 19% loss of earning capacity and 17% impairment of the whole body. I accept his assessment.

8. So much for the background to this claim. I will turn now to the separate heads claim.

Pain, Suffering and Loss of Amenities

9. It is a fortunate, and remarkable, feature of this case that, given the assessed degree of disability the Plaintiff reguired minimal hospital treatment and apparently, since he did not see fit to mention it when he gave evidence, did not suffer from a great deal of pain.

10. The initial amputations were undertaken on the day of the accident and the Plaintiff discharged the same day. Thereafter, apart from visiting the outpatients department a few times during the next two months, entering hospital for two days for the removal of a remnant nail and having physiotherapy in a clinic for a relatively short while, the Plaintiff required no furhter medical treatment.

11. When the Plaintiff gave evidence I had the opportunity of observing his injured hand. I was concerned to note whether the injury was particularly disfiguring and whether the Plaintiff appeared self-conscious about the same. From my observations I find that the injury is not particularly disfiguring and neither is the Plaintiff in the least distressed by such cosmetic disfigurement as there is.

12. I have to say that I was not very impressed by the Plaintiff when he gave evidence. I accept that the injury may well cause minor difficulties in his daily life, but I consider that he exaggerated these difficulties. For example, initially he asserted that be could not play any ball games, but it soon became apparent that all he had had to give up was the occasional game of ten-pin bowling. Even here he had found a more than adequate substitute by taking up billiards.

13. So far as his working life is concerned I accept that his injury is a handicap when it comes to manual labour, or work requiring great dexterity, but, given the Plaintiff's work record and what I perceive to be his approach to life, I am not satisfied that the handicap is anything like as serious, in practical terms, for this Plaintiff, as the findings of the Assessment Board or Dr. Mao would seem to suggest.

14. Miss Yip referred me to a number of previous assessments in respect of hand injuries, but there being no discernable pattern to be derived therefrom, fell back on the Court of Appeal's judgment in Lau Che Ping v. Hoi Kong Ironwares Godown Company Limited C.A. 12/88.

15. She submitted that on the basis of the degree of impairment of the whole man, as found by Dr. Mao, namely 17%, the Plaintiff's injury came somewhere towards the lower end of the "serious category" and that an award under this head of $150,000.00 would be appropriate. If one were to rely solely on the mathematical calculation of the impairment of the whole man, this is a not unpersuasive submission, but, as I indicated earlier, in my judgment, one must look not at the mathematics of the injury, but upon the actual pain suffered and amenities lost by this particular Plaintiff.

16. In the present case, I accept that the Plaintiff has suffered an unpleasant and permanent injury. However, subsequent to the injury he does not appear to have suffered from much pain, his hospital treatment was minimal and similarly the actual loss of amenities is not very significant.

17. In my judgment therefore I am not satisfied that the Plaintiff's injury is such as to bring him into the range of serious injuries as contemplated in Lau Che Ping and accordingly I award the Plaintiff $100,000.00 under this head.

Loss of Earnings

18. The Plaintiff's claim for pre-trial and future loss of earnings is based on the premise that he would have continued working on the night shift doing the same job he was doing at the time of the accident. In my judgment this is not supported by the evidence of the Plaintiff nor by my assessment of his character and general approach to life.

19. The relevance of the night shift is that, according to his former colleague Ng Wai-sum, night shift workers, not unnaturally perhaps, receive financial incentives to work what most people would regard as unsocial hours. He said and I accept his evidence, that he earns an average $4,029.00 per month, whereas a day shift worker, in the same job, working 26 days per month would earn a basic salary of $2,236.00.

20. At the date of the accident the Plaintiff had been working on the night shift for only 8 days. He was 17 years of age at the time and his family was in financial difficulties, which was why he was working at night. He said that it was difficult to say if he would have continued working at night for long.

21. I have very little difficulty in determining whether or not he would have continued working nights for a significant period of time. I have no doubt that he would not have done so. I say this for the following reasons:-

(a)    the family's financial problems in 1984 were temporary;

(b)    notwithstanding the difficulties he experienced in obtaining work after the accident he left a job in 1987 because he could not stand working half the night let alone the whole night;

(c)    the Plaintiff appears to it to be a somewhat irresponsible young man who is unlikely to stick at anything for very long unless he has to. An example of this is to be seen from his approach to driving.

22. The Plaintiff claims that as a result of his injury, he finds heavy labour rather difficult. Hence, one would have pre-supposed that when he passed his driving test just two years ago he would have regarded this as the ideal way of making life easier for himself for he could drive vans instead of load them. Not a bit of it, the manner in which drove, and continued to drive, very quickly brought him to the attention of the police and magistrates. In two short years he has managed to have himself banned once for exceeding the maximum number of penalty points and, undeterred by that ban, he is now well on the way to being banned again for the same reason.

23. At the time of his accident the Plaintiff was earning $3,200.00 per month. Thereafter, he had a period of recuperation and job hunting. The Plaintiff said that he tried hard to find alternative employment and I am prepared to accept what he says in this respect. It took him until the 16th April 1986 to find alternative employment, i.e. about 18 months. In view of my previous findings as to the Plaintiff's character I consider that this is the absolute maximum that he would have continued working at night. Hence, with some hesitation, I award the Plaintiff loss of earnings for the period 6th November 1984 to 15th April 1986 at $3,200.00 per month, i.e. $55,360.00.

24. Thereafter the Plaintiff has claimed the difference between $3,200.00 per month and what actually earned whilst in employment.

25. In this respect it is the Plaintiff's evidence that the lowest salary he has received since re-commencing work is $2,600.00 per month and the highest, which he receives at present $3,200.00 per month.

26. As the current monthly income for a day worker in the plastics industry is, according to his own witness, only $2,236.00 per month, the Plaintiff has failed to establish that he has suffered any further financial loss, by way of loss of earnings either pre or post trial. Accordingly his claim in this respect fails.

27. However, I agree with Miss Yip that consideration should be given to an award of damages for loss of earning capacity. In view of my findings as to the actual effect on the Plaintiff of his injuries I do not consider that there is a very significant risk that the Plaintiff will suffer much prejudice in the job market as a result of his injuries, but nonetheless I am satisfied that there is a risk for which he should be compensated. Thus, in the particular circumstances of this case I award $15,000.00 to the Plaintiff for loss of earning capacity.

28. The Plaintiff's claims for medical and travel expenses connected thereto and nourishing food were not disputed and I award $840.00 under this head.

Summary

1.  General damages for pain, suffering and loss of amenities	$100,000.00
2.  Loss of earning capacity	$15,000.00
3.  Pre-trial loss of earnings	$55,360.00
4.  Medical and other minor expenses	$840.00
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	$171,200.00
Less: Employee's Compensation paid	$61,876.00
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Net award :	$109,324.00
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29. There will be interest on special damages at the rate of 4% from the date of the accident and interest on the award for pain and suffering and loss of amenities and loss of earning capacity at the rate of 2% from the date of the writ.

30. Of late there has been some discussion on the rates of interest to be awarded in actions of this nature. It follows, from the above awards, that I still consider 4% to be the correct rate in respect of interest on special damages. However, we are presently in a period of relatively high interest rates in Hong Kong and, if such rates continue for much longer, the time may come in the not too distant future when it will be considered that a somewhat higher rate would be appropriate.

31. The costs of this assessment are to be paid by the Defendants, to be taxed if not agreed, with a certificate for counsel.

32. The Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.

Dated this 13th day of June, 1989.