MAK CHUN TO v. OCEAN PLASTIC FACTORY

1986 No. A1183

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The defendant firm is under the sole proprietorship of Mr. Chan Woon Hung who appeared at the hearing on his own behalf. He had earlier been represented but his solicitors withdrew on 16th October 1987, in terms of an Order granted in Mr. Chan's presence.

2. Also dated 16th October 1987 was an Order that defendant should give discovery within 28 days, falling which plaintiff would have leave to enter judgment. Consequent on defendant's failure to comply with this Order, interlocutory judgment was duly entered on 8th March 1988.

3. Mr. Chan later forwarded to the Court certain documents of no apparent significance. He was advised that he would have to apply to set aside the default judgment if he now wished to defend the action. There the matter rested until this hearing.

4. At the outset the Court advised Mr. Chan of the nature of the hearing and explained his rights in some detail. The distinction between liability and quantum was explained several times, in particular when Mr. Chan sought to query his responsibility. It is of concern that Mr. Chan remained apparently bemused throughout the proceedings. He declined to cross-examine plaintiff or his witnesses, and his own evidence was irrelevant save under cross-examination on the question of wages.

5. The action arose from an accident to the plaintiff on 10th October 1983 whilst he was in defendant's employ as a plastic moulding machine operator. In a tragically familiar scene, the plaintiff's right and preferred hand was trapped and severely crushed when the machine activated whilst his hand was inside it.

6. The medical evidence consisted of reports from Dr. R.G.M. Wedderburn and Dr. Philip Mao. These were produced under hearsay notice as exhibits P.12 and P.13 respectively.

7. The injury to plaintiff's hand was horrifying and the various operations he endured over a period of more than 3 years hardly less so. His evidence and that of the two doctors disclose the following sequence of treatment.

10th - 16th October 1983

8. Admitted to Princess Margaret Hospital where all 4 fingers of the right hand were amputated to the wrist on the inner side. No loss of consciousness, wound treated and stitched.

9. Discharged for physiotherapy 5 times weekly for 3 months as out-patient at South Kwai Chung Polyclinic.

February 1984

10. Re-admitted to Princess Margaret Hospital, then discharged to continue physiotherapy.

June 1984 for 6 weeks

11. Re-admitted to Princess Margaret Hospital for an abdominal flap graft to provide fresh skin for the right hand stump. Eight inch linear scar on right flank of body. Discharged for physiotherapy until 19th November 1984.

20th November 1984

12. Admitted to Caritas Hospital for a transplant of the left second toe into the hand stump. Five inch scar between big toe and 3rd toe, plus a 3?inch scar on the sole. Transplant failed to take and was removed one month later in stages over a period of 3 months.

April 1985

13. Wound refused to heal and re-admitted to Princess Margaret Hospital for skin grafts from the left thigh. Healed in June 1985.

14. Physiotherapy until 20th August 1985.

September 1985

15. Admitted to Prince of Wales Hospital for second transplant to the right hand stump of half of right big toe and part of the bones of the right second toe, followed by a small skin graft from the left thigh applied to the base of the transplanted toe. This transplant has taken but the plaintiff said in evidence that it was of no great use to him. From his demonstration in court I readily accept this. Dr. Mao's report confirmed that the toe was of little use.

16. Physiotherapy thereafter continued, and sick leave eventually ended on 15th March 1987.

17. I note that there are no updated medical reports since Dr. Wedderburn's and Dr. Mao's of respectively January and April 1986. Dr. Wedderburn expresses a hope that the transplanted toe would form a useful substitute for a middle finger. Dr. Mao was less optimistic and I accept that this has not happened.

18. Evidence was not adduced from the plaintiff as to residual pain or loss of feeling. Dr. Mao however indicates loss of feeling near the areas from which toes were removed and on large areas of the hand stump, which he has shown in diagram. This evidence is however 18 months old and should have been updated. I cannot therefore accept it as representing the present position, although it represents only a small part of the plaintiff's overall suffering.

19. Dr. Mao's report mentions pain when the plaintiff walks for more than 45 minutes also his inability to play basketball, ride a cycle and drive. I would again have expected comment from the plaintiff in these areas, but I accept that they are probable consequences of the operations on the feet. Dr. Wedderburn also mentions that the plaintiff cannot run.

20. Dr. Wedderburn suggests that a wholeman impairment of 40% may be the outcome when the plaintiff recovers further use of his thumb. To this he adds 1% for the impairment of the feet from the operations. Dr. Mao, on more pessimistic assumptions as to the thumb, places the wholeman impairment at 47%; this would presumably be 48% if he had considered the feet, which he did not. Dr. Wedderburn assessed the earnings related disability at 50%; Dr. Mao did not consider this aspect.

21. Again, I am lacking updated assessments from the 2 doctors, but I am satisfied that Dr. Mao's less hopeful prognosis for the thumb has been fulfilled. I therefore accept 50% as the wholeman impairment, both as to loss of amenities and related to earnings.

22. Counsel submitted that I should consider the cosmetic factor as an aggravation of damages in regard both to the plaintiff's feelings and to his diminished marriage prospects. I accept this argument, although I am again surprised that the plaintiff did not give evidence in support. The court should not have to guess at the plaintiff's feelings.

23. Were the conclusions as to cosmetic factors less obvious, I would have rejected them for lack of evidence. However I have seen the injured hand, and accept that its horrifying appearance will make the plaintiff aware of the distaste it will arouse in others. I also accept that the plaintiff's marriage prospects are inevitably diminished as a result of his injuries. This relates both to the appearance and to the economic aspect of his obviously diminished status as a marriage prospect. This is particularly so in view of his age, 23 at the date of the accident and now 28.

24. Counsel drew my attention to a number of cases. Particularly relevant is that of Wong Pui Kwan v. Artking Industries, HCA 11212 of 1983, where a similar machine caused comparable injuries to a man of 29. He was assessed at 50% impairment related to earnings and the award for pain, suffering and loss of amenities was $125,000.00 in 1984. The injury was placed at the top end of the serious injury category as stated in Lee Ting Lam.

25. Similar, but less serious injuries arose from a similar accident in Tang Pui Wah v. Yiu Yat Fan HCA 4500 of 1984 when $132,000.00 was awarded in March 1985. Again, the injury was placed at the top end of the serious category in Lee Ting Lam.

26. There are aspects of this case which take it beyond the serious category of injury and into the substantial, as defined in Lee Ting Lam. The long years of hospital treatment and in particular the operations, at best only partly successful, constitute an aggravating element not found in most cases of similar injuries. Moreover, the impairment of the use of the feet is far greater than that apparent in the otherwise similar case of Wong Pui Kwan.

27. From the paint of view of the injuries and the treatment, I would place this case in the middle of the substantial category in Lee Ting Lam. Since the recent decision in Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd., this category attracts an award in the range of $180,000.00 - $225,000.00

28. I am however particularly influenced by the cosmetic side of the plaintiff's suffering. The effect of the injuries on the plaintiff's feelings and his diminished prospects of marriage push the award beyond the area into which it would otherwise fall. This is not an artificial distinction, but constitutes an increase over the loss of amenities which would be suffered by say a married man of more mature years.

29. For these reasons I award $220,000.00 for pain suffering and loss of amenities.

30. I turn to loss of earnings to date of trial. In this regard plaintiff had two jobs at the time of the accident and testified that he proposed to continue so doing I have no reason to doubt this. The defendant submitted that he was unaware of plaintiff's other job and seemed to regard his lack of knowledge as relevant to his responsibility in regard to the other job. I do not find this factor to be material in assessing the amount of compensation due from defendant to plaintiff.

31. Defendant's evidence was that the present average monthly wage at his factory for the job defendant was doing at the time of the accident would be $3,000.00. Both defendant and the evidence of Form 2 under the Employees' Compensation Ordinance, exhibit P.1, agree that the monthly wage at the accident was $1,700.00 These two figures produce a median of $2,350.00, to which is applied the factor of 59 intervening months. The pre-trial loss of earnings in respect of plaintiff's employment with defendant, and disregarding any credit for intervening employment, would therefore be $138,650.00.

32. Plaintiff's second job was with Hong Kong United Dockyards (HUD). Exhibits P.10 (produced under hearsay notice) and P.14 (produced by the Company's Assistant Personnel Manager) disclose his rate of pay at the accident and increases to date for the same occupation.

33. The exhibits establish plaintiff's monthly rate of earnings with HUD at the time of the accident as $3,503.57. The letter of 2nd September 1987 from HUD to the Director of Legal Aid (part of exhibit P.10) establishes subsequent hourly rate increases for plaintiff's occupation upto and including 1987. Counsel has reduced these increases to percentages, correctly ignoring such part of the hourly rate as concerned allowances which remained static for a long period. These percentages have then been applied to the plaintiff's monthly earnings at the date of the accident for the period from accident to trial. The length of time for which each increase operates has been established by exhibit P.14, which also establishes the further rate applicable from the beginning of 1988 to trial date.

34. I accept counsel's method of calculation and apply the percentage increase figures to the respective periods from accident to trial. This gives the following figures for gross loss of earnings with HUD:-

Accident - 31.12.83 at $3,503.57 per month	$9,368.24
1.1.84 - 31.3.85 (plus 13%) at $3,959.03 per month	$59,385.85
1.4.85 - 31.12.85 (plus 8.5%) at $4,295.54 per month	$38,659.67
1.1.86 - 31.12.86 (plus 7.5%) at $4,617.70 per month	$55,412.46
1.1.87 - 31.12.87 (plus 7%) at $4,940.93 per month	$59,291.26
1.1.88 - 15.9.86 (plus 3.55%) at $5,116.50 per month	$43,488.86
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	$265,606.34
Total:	========

35. Mr. Yu Sun Wah, an officer with the Selective Placement Service of the Labour Department, testified as to the difficulty of placing the plaintiff in employment since his sick leave terminated on 15th March 1987, as evidenced by exhibit P.10. The witness said that his Department had not been successful in placing the plaintiff, who did badly in the standard aptitude test. He said there was a very limited number of jobs available to the plaintiff and they obtained only one interview, which was unsuccessful.

36. The plaintiff himself testified that he had worked for one month since the accident with an engineering company. He was doing work connected with installing engines and welding. He said he only held it for a month as his uninjured hand swelled and the doctor advised his net to work any more in that job. He confirmed his lack of success with the Labour Department's efforts at placing him.

37. I am satisfied the plaintiff has used his best efforts to obtain work since his sick leave expired. He earned $110.00 per day for one 26-day month in the engineering company and that remains the sole amount to be credited against the calculation of loss of earnings pre-trial.

The total award under this head is therefore:-

In defendant's employ	$138,650.00
In the employ of HUD	$265,606.34
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	$404,256.34
Less $110.00 x 26 days	$2,860.00
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Total	$401,396.34
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38. For post trial loss of earnings, plaintiff’s counsel urged that a multiplier of 14 be applied to the total of the two sources of earnings as escalated to date of trial. I find 14 to be the appropriate multiplier for a man of 28 with around 30 more years of working life.

39. Assuming work were found for him, the Labour Department representative suggested that it would only be as a lift operator or watchman. The suggested wage levels for these jobs are both in the region of $2,200.00 per month and I deduct that figure from the total of his notional wages at trial date to arrive at the multiplicand. This exercise realises $5,116.50 + $3,000.00 - $2,200.00 = $5,916.50. To that figure is applied the multiplier to give ($5,916.50 x 12 x 14) = $993,972.00, which figure is awarded for loss of future earnings.

40. I find it inappropriate to consider a further award for loss of earning capacity. The risk of plaintiff not obtaining a job is counterbalanced by the fact that the multiplicand reflects the two jobs he was doing at the time of the accident. This may not necessarily have continued.

41. I turn to special damages and accept plaintiff's evidence, as supported by receipts in regard to hospital in-patient charges, out-patient and travel charges, and nourishing food expenses. These items respectively amount to $3,972.00, $5,381.60 and $4,438.30. The total of these amounts, $13,791.90, is awarded as special damages.

Summary

General damages for pain, suffering and loss of amenities	$220,000.00
Pre-trial loss of earnings	$401,396.34
Future loss of earnings	$993,972.00
Special damages	$13,701.90
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Total :	$1,629,160.24
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42. Interest will run at 2% on the general damages from date of writ to the date hereof. Pre-trial loss of earnings plus special damages will attract interest at 4.5% from the accident to today.

43. Credit will be given to defendant for plaintiff's E.C. receipts of $271,000.00. Plaintiff's costs are awarded against the defendant and his own costs are to be taxed under the Legal Aid Regulations.