Tort — Negligence — Personal injuries — Accident in removing prongs from forklift — Safe system of work — Assessment of damages — Near severance of tip of left middle finger — Loss of earning capacity

Mr. John Massie of Messrs. Massie & Clement, solicitors for the Plaintiff.

The Defendant, acting in person, was absent

Temporary Deputy Registrar C. Lee 


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Introduction

[1] This is a hearing for assessment of damages. Interlocutory judgment on liability was entered for the Plaintiff against the Defendant on 4^th May 2009.

The Plaintiff’s claim

[2] The Plaintiff claims for damages arising out of an accident which occurred on 24.11.2006 in a container yard at Fung Kat Heung DD107 Lot 1743, Ka Fa Logistic Limited, Nam Sang Wai, Nam Sang Wai Road, Yuen Long, New Territories, Hong Kong ("the Workplace"). The Plaintiff alleged that the Defendant, being the employer of the Plaintiff, was in breach of various statutory and common law duties including but not limited to failure to provide a safe system of work.

[3] He categorized his claims under various heads as per the statement of damages with the respective quantum as follows:-

(a) PSLA: HK$150,000 and 2% interest on the said sum from the date of the Writ;

(b) Pre-Trial Loss of Earnings and MPF: HK$36,000;

(c)Disadvantage on labour market: HK$63,000;

(d) Other special damages (medical and travel expenses): HK$4,000;

(e) Half court rate on Special Damages from the date of accident.

[4] The Plaintiff received no compensation under the employee compensation scheme but the Plaintiff agreed to give credit for HK$6,400 that he has received from his alleged employer.

Circumstances of the Accident

[5] On 24^th November 2006 at around 10 a.m., the Plaintiff was instructed by the foreman of the Defendant to assist removing the prongs from a forklift. In the course of doing so the forklift prong fell down to the ground and nearly severing the tip of his left middle finger. He then took a taxi to the hospital for treatment with details as set out hereunder.

Quantum

 

Injuries and treatment of the Plaintiff

[6] As a result of the accident, the Plaintiff suffered an injury to his left middle finger, the tip was nearly severed. He first attended Pok Oi Hospital where he was diagnosed an amputation over the tip of the left middle finger. He was transferred to Tuen Mun Hospital for further examination where it was revealed that a degloving injury of the left middle finger at one-third level of the distal phalanx with bare bone exposed. Consequently, re-amputation was performed. He was granted sick leaves from the date of the accident until 26^th March 2007.

[7] He had residual stiffness in the left middle finger, residual pain at the stump and difficulty in cutting and preparing food.

Pain, suffering and loss of amenities ("PSLA")

[8] Mr. John Massie, solicitors for the Plaintiff cited two authorities in justifying the amount of PSLA. In Ho Shu Yau v Lo Siu Ling formerly t/a Chi Wo Civil Enginerring Company & another (2002) unrep. HCPI 1336 of 2000 by Madam Justice Yuen as she then was, the court awarded HK$120,000 as damages under PSLA for the injured person whose left ring finger was 0.7cm shorter than his right ring finger distal phalanx after amputation. He was a right-handed person.

[9] In Li Wai Ming v Tang Siu Fat t/a Hing Fat Engineering Company and Another (2008) unrep. HCPI 512 of 2006 by Mr. Justice Chung, the court awarded HK$150,000 as damages under PSLA for the injured person whose right index finger, the distal phalanx part was amputated. His dominant hand was right hand.

[10] In the present case, from the Court’s inspection and as agreed by the Plaintiff’s solicitors, the length of the amputated part was about 1cm of the left index finger. The Plaintiff’s dominant hand was right hand.

[11] After considering these cases, I adjudge that a reasonable award to be made to the Plaintiff for PSLA is HK$150,000.

Loss of earnings

[12] At the time of the accident the Plaintiff was a labourer or a causal construction site worker earning HK$300 daily with 30 working days fetching a monthly salary of HK$9,000. Consequently, in respect of the 4 months’ sick leaves from the date of accident to the end of March 2007, the loss of earnings amounts to $36,000 ($9,000 x 4 months). The said amount was supported by sick leave certificates issued from time to time. I ought to deduct HK$6,400 from this head as aforesaid. That arrives at the sum of HK$29,600.

Disadvantage on labour market

[13] The Plaintiff claims for loss of earning capacity under limb of "disadvantage on labour market". The Plaintiff claims that he finds it difficult when cutting, in particular, herbs and leafy green vegetables that have to be cut into smaller pieces. As cited by Mr. John Massie, in the case of Lee Chun Fat v Chan Kin Wo and Chan Kin Sing HCPI 1306 of 2000 (2002 unrep.) by Madam Justice V. Bokhary, the test was whether there was a real and substantial risk of holding the job in future. In the present case, despite the injuries he suffered, his current employer was willing to employ him as a cook and his employment has been continuing since 1^st April 2007. I am of the view that the inconvenience or difficulties that he encountered in cooking was overcome by the Plaintiff through his proper working attitude. There is no real or substantial risk that he will lose his job because of his injuries. So there will be no award for loss of earning capacity or disadvantage on labour market (see Cheng Wai Hung & Leung Wing Man v Kwok Fuk James and others DCPI 2032 of 2007 by HH Judge Chow ).

Special damages

[14] I also accepted the claim for special damages in the sum of HK$4,000 in respect of the medical and traveling expenses as they were supported by receipts and corroborated by other medical documents produced.

[15] The total award made to the Plaintiff is HK$183,600 ($150,000 + $29,600 + $4,000).

Conclusion

[16] In the premises, I order that Defendant do pay, within 14 days from today, to the Plaintiff the sum of HK$183,600 with interests: interest at 2% p.a. on the sum of $150,000 from 25.2.2009 to 27.10.2009; interest at 50% of the judgment rate on the sum of HK$33,600 ($29,600 + $4,000) from 24.11.2006 to 27.10.2009; interest on the sum of HK$183,600 from 27.10.2009 at judgment rate until full payment.

Costs

[17] Subject to orders for costs already made, I make the following order nisi for costs, to be made absolute within 14 days’ from today:-

(1) the Defendant do pay the Plaintiff costs of this action to be taxed, if not agreed.

(2) the Plaintiff’s own cost in this action to be taxed in accordance with Legal Aid Regulations.

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