SUN JIANQIANG v. CHAN TAI KAU AND ANOTHER

CACV 81/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 81 OF 2010

(ON APPEAL FROM HCPI 1375 OF 2000)

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Hon Cheung JA :

1.  On 27 October 1999 the plaintiff was injured in an accident for which the defendants were liable. The defendants admitted liability and Deputy High Court Judge Carlson proceeded to assess damages in the sum of $1,643,124.22 in favour of the plaintiff. The defendants now appeal against the award.

Facts

2.  The plaintiff was born on 10 December 1957.  He was and still is a resident in Guangzhou in the Mainland.  

3.  On 13 January 1997 he was first employed as a coach driver by Guangdong Ananda Bus Company Ltd (‘Ananda’), a joint venture company in the Mainland formed by Wing On Travel Group of Hong Kong (‘Wing On’) and a business concern in Guangzhou.  The 2^nd defendant was also a company within the Wing On.  Initially the plaintiff only drove on the domestic routes in the Mainland.  By about April 1998 the plaintiff started to drive coaches between Hong Kong and the Mainland.  His income was HK$10,000 per month.  His contract was for a period of three years from his obtaining a Hong Kong driving licence.  He obtained the licence in April 1998.  At the time of the accident on 27 October 1999 the plaintiff was still employed by Ananda as a coach driver. 

4.  The injuries sustained by the plaintiff was in respect of fractures to his ribs and left femur.

Heads of damages

5.  The damages assessed by the Judge are :

(1) pain, suffering and loss of amenities at $430,000.00;

(2) pre-trial loss of earnings at $1,309,000.00;

(3) future loss of earnings at $600,000.00;

(4) special damages at $178,038.00. 

6.  The sum of $873,913.78 representing employees’ compensation payment, interim payments and other payment made to the plaintiff is to be deducted from the amount assessed.  

Loss of earnings

7.  This appeal is concerned only with the loss of earnings assessed by the Judge.  The Judge assessed the damages on the basis that the plaintiff would not have been expected to work beyond the age of 60 as a cross-border coach driver and if not for the accident he would have worked as such until 60.

(1) Pre-trial loss of earnings

8.  The pre-trial loss of earnings of $1,309,000 is made up of figures from two periods :

1) The period from 27 October 1999 (date of accident) to June 2002 (when the Judge held that the plaintiff could reasonably resume work) of 32 months.  The Judge adopted an average monthly income of $12,000 (based on a salary of $10,000 per month plus likely increases over the 32 months period)

$12,000 X 32 months = $384,000

2) The period from June 2002 to 16 March 2010 (date of judgment on damages) of 92.5 months.  The Judge adopted an average income of $12,500 per month

$12,500 X 92.5 months at $1,156,250.

9.  From this the Judge deducted $231,250 representing income that he could reasonably have earned during this period.  This sum is based on half of the average income of his wife of $5,000 per month X 92.5 months.

(2)  Future loss of earnings

10.  In respect of future loss of earnings the Judge adopted a multiplicand of $10,000 which is based on $12,500 (what the plaintiff would have earned) less $2,500 (what the plaintiff could have earned) and a multiplier of 5 years.  The plaintiff was aged 52 at the time of the assessment.

The issues

11.  The issues is in this appeal are :

1) whether the Judge erred in assessing the plaintiff’s loss of earnings on the basis that, but for the accident, the plaintiff would have continued to be employed as a cross-border coach driver up to the age of 60?

2) whether the Judge ought to have approached and assessed the plaintiff’s loss of earnings as a cross-border coach driver on a ‘loss of chance’ basis, and, if so, how the chance should be assessed.

3) whether the Judge erred in assessing the plaintiff’s employability after June 2002 (i.e. six months after removal of the surgical implant in his leg with a further period allowed for the plaintiff to rejoin the workforce) by assuming that he could only earn $2,500 a month?

The defendants’ case at the assessment

12.  In the Court below, the defendants’ challenge of the plaintiff’s case that he would have been able to continue to work for the defendants’ group or some other operator as a cross-border driver until the normal retirement age of 60 was on two bases. First, they relied on the departure of the other drivers who were hired by Ananda at the same time of the plaintiff.  It was said that a driver’s initial three-year contract would only be renewed upon the driver’s satisfactory performance of that contract.  Of the ten drivers of the plaintiff’s batch, three had left after only the first three-year contract; four had left after the second three-year contract and only two has remained beyond the third three-year contract. Second, it was argued by the defendants that under the relevant driving regulation in the Mainland, the age limit for a driver to obtain a large passenger coach licence is 50.  Hence the plaintiff who was born in 1957, would not be qualified to drive the cross-border coach when he reached that age.

13.  The second point has been abandoned by Mr. Raymond Leung, counsel for the defendants, in this appeal.  I will address the first point when I deal with Mr. Leung’s submissions in the appeal.

Could the plaintiff work as a cross border coach driver until the age of 60?

14.  Mr. Leung argued that the Judge’s assumption that the plaintiff could have worked until the age of 60 as a cross-border coach driver was wrong.  He submitted that the plaintiff had failed to prove that he would have continued with such a job after the expiry of his contract with Ananda in about April 2001 having regard to the following matters :

1) there was a quota for cross-border driver and not every Mainland driver could work as a cross-border driver,

2) the transportation business of Ananda was sold by Wing On to another company, namely, Kwun Chung Bus Investment Ltd. in November 2003 and Ananda did not exist anymore,

3) the plaintiff’s employer (meaning Ananda and Wing On) employed no more than ten Mainland cross-border coach drivers,

4) only 12 or 13 drivers in the plaintiff’s batch were chosen as cross-border coach drivers out of 2,000 applicants but some of them had already left the employment before the plaintiff’s accident,

5) of the ten drivers in the plaintiff’s batch that were qualified as cross-border coach drivers, the employment of one of them had been terminated leaving nine others,

6) as to the other eight Mainland drivers (i.e. the nine drivers referred to above excluding the plaintiff), six had left the employment with Ananda before the business was sold in November 2003,

7) the plaintiff seldom saw his old colleagues plying the route between Hong Kong and the Mainland during the recent few years after they had left Ananda/Wing On.

15.  I do not see how these factors would have materially affected the Judge’s finding.

1) While there may be a quota for cross-border drivers, the plaintiff himself was among the 12 to 13 drivers that were chosen from amongst 2,000 applicants.  This must be a reflection on his capability to do the job. 

2) While six drivers had left the employment of Ananda/Wing On, the defendants had not adduced any reasons for their departure and whether the vacancies had been replaced by other drivers.  Their departure is by itself neutral and does not advance the defendants’ case that the plaintiff’s contract was unlikely to be renewed after the initial three years.  On the contrary, the evidence before the Judge was that two of the original batch of drivers hired at the same time of the plaintiff continued to be so employed up to the time of the assessment, or at least up to 2007 when the defendants filed their witness statements in Court. There was no indication that there was any change of their employment between 2007 and the assessment in 2009. 

3) The sale of Ananda was not relied upon by the defendants in the Court below.  In any event this factor is irrelevant to the issue of whether the plaintiff could continue as a cross-border coach driver.  He could have been employed by other transport companies doing the same trade. 

4) Unless there was clear evidence to the contrary, the Judge was entitled to proceed on the basis that, but for the accident, the plaintiff would be able to carry on his job as a cross-border coach driver until the age of 60.  The defendants, while maintaining the challenge that the plaintiff himself would not have been able to continue as a cross-border driver up to the age of 60, had accepted that the usual retirement age for a coach driver is 60.  This clearly provides a proper basis for the Judge to decide that, in the present case, the plaintiff could have continued with his pre-accident employment up to the age of 60.

16.  Although it was not a matter that had been relied upon by the plaintiff in the Court below and it is also not a matter that I would rely in this judgment, I would make the general observation that the reality is with the huge increase of cross-border traffic between Hong Kong and the Mainland and the opening of new border check points in recent years, the job opportunity for a cross-border coach driver is on the increase rather than on the decline or being static.

The multiplier

17.  The defendants further challenged the multiplier of 5 adopted by the Judge for future loss of earnings.  In the Court below Ms. Liza Cruden, counsel for the plaintiff, referred the Judge to three cases which showed a multiplier of 7 to 8 :

Case	Nature of Work	Age at Trial	Multiplier
Lau Pai Yam Bottomley v. Tai Tung Coffee Co. Ltd HCPI No. 745 of 2002	Lorry Driver	53	7
Leung Hei v. Chan Dai Shing [1986] HKC 340	Transport Worker	53	8
Mak Ping v. Choi Po Chun [1995] 3 HKC 558	Taxi Driver	50	7

18.  Counsel for the defendants at the trial (not Mr. Leung who only appeared in this appeal) did not refer the Judge to any case on multiplier since it was her contention that the plaintiff was not entitled to any future loss of earnings.  Mr. Leung submitted that none of the three cases relied upon by the plaintiff was concerned with Mainland residents who have no right to work in Hong Kong.  The retirement age of the plaintiffs in these three cases was not stated in the judgments. However, Mr. Leung argued that, in Lau Pai Yam Bottomley and Leung Hei, if one adds the years of the multiplier to the age of the plaintiffs at trial, they would be 60 or more.  This shows that in these two cases, the Court must have assumed a retirement age of over 60 (probably 65 by Hong Kong standard).  Mr. Leung submitted that the same is also likely to have been the approach in Mak Ping.

19.  Mr. Leung submitted that the plaintiff was 52³/₁₂ years at the time of the judgment.  In rejecting the plaintiff’s claim for a multiplier of 7-8 (for the period from age 52³/₁₂to age 60, with 7⁹/₁₂years left), the learned Judge must have realized that the three cases were concerned with retirement age beyond 60 and therefore not to be followed.  On that basis it appears that the Judge had taken into account accelerated receipt only and adopted a multiplier of 5 without properly considering the uncertainties and contingencies associated with ‘vicissitudes of life’.

20.  Mr. Leung further submitted that, but for the uncertainties and contingencies, a multiplier of 5 would have been reasonable for a driver aged 52³/₁₂at trial and retiring at 60.  He referred to three cases which were concerned with Hong Kong persons and decided on the basis of a retirement age of 60 :

Case	Nature of Work	Age at Trial	Multiplier
Wu Wai Wah v. Fung Kwong Hung & Ors HCPI No. 256 of 2006	Driving Instructor	46	10
Wong Woon Hei v. Dickson Construction Co. Ltd & Ors HCPI No. 521 of 2000	Painter	47	9
Lau Chi Lam v. Caritas, Hong Kong DCPI No. 41 of 2009	Workman in Elderly Home	54	3

21.  Mr. Leung submitted that the Judge erred in principle in not discounting the damages for pre-trial and future loss of earnings by taking into account the particular evidence adverse to the plaintiff’s case on his alleged continuous employment as a cross-border coach driver until the age of 60 earning a wage at Hong Kong rate.

Vicissitudes of life

22.  A discussion of this principle can be found in Heil v. Rankin [2001] PIQR Q3 at paragraphs 12 and 13 :

‘ In discounting the sum that would otherwise represent the plaintiff’s loss of earnings to retirement by a percentage to reflect the risk that he would not in any event serve until retirement age, the judge did no more than apply what has become known as the “vicissitudes” principle, as expressed as long ago as 1879 by Brett L.J. in Phillips v. LSWR 5 C.P.D. 280 at p. 291. As Lord Bridge said in Jobling v. Associated Dairies [1982] A.C. 794 at p. 820C, that principle:

“stems from the fundamental proposition of law that the object of every award of damages for monetary loss is to put the party wronged so far as possible in the same position, no better and no worse, as he would be in if he had not suffered the wrong in respect of which he claims. To assume that an injured plaintiff, if not injured, would have continued to earn his full wages for a full working life is very probably to over-compensate him.”

As Lord Bridge acknowledged, that principle introduces an element of uncertainty and assessment.  But where in the case of a particular plaintiff there is evidence, particular to him, that his working life will or may be foreshortened, then it would breach the principle not to take that evidence into account in his case.’

My view

23.  The arguments now advanced by Mr. Leung on the multipliers were simply not made before the Judge.  I am not convinced that the reason why the Judge chose a multiplier of 5 (instead of 7 or 8 as urged upon him by the plaintiff) was because he came to the view that in the three cases the plaintiffs were probably retiring at the age of 65 instead of 60.  It is equally likely, although the Judge had not expressly said so, that he had given a further discount to reflect the element of uncertainty associated with a projection into the future by applying a lower multiplier.  This is to give a realistic recognition to the ‘vicissitudes of life’ aspect and not simply due to the accelerated payment of the future earnings. 

24.  Mr. Leung was prepared to accept that he could not possibly complain if the Judge had adopted a multiplier of four.  In my view, in the absence of clear evidence that the plaintiff was most unlikely to continue with his job as a cross-border coach driver, I am not prepared to hold that the multiplier of five chosen by the Judge was so unreasonable or plainly wrong that this Court should interfere and reassess the multiplier.

Loss of chance

25.  Although it was raised in the Notice of Appeal and in the written submission of Mr. Leung that the damages for future loss should be assessed on the basis of a loss of chance in accordance with the approach adopted in Allied Maples v. Simmons and Simmons [1995] 1 WLR 162 and Doyle v. Wallace [1998] PIQR Q146, this issue was not argued at the hearing.  It is not necessary for the purpose of this appeal to decide whether that this issue has to be specifically pleaded either in the Defence or Answer to the Statement of Damages before it can be relied upon by the defendants.  Since the modern approach to civil litigation is to identify the issues in dispute in advance, my view is that it is certainly a matter of good practice to plead this issue in advance so that the opposite party can deal with it properly at the trial.  This issue was not raised at the trial below and to argue this matter for the first time on appeal may face problems in terms of evidence that the plaintiff may seek to adduce if it had been pleaded and relied upon earlier.  In any event in the present appeal the basis for raising this issue depends on whether the plaintiff is able to establish his claim for future loss which I have addressed earlier.  In view of my conclusion on that topic, there is no basis for the defendants to rely on the loss of chance issue.

Wages of the wife

26.  This point can be shortly disposed of.  The plaintiff had been doing odd jobs at meager wages since his recovery from the accident.  The Judge held that he had not fully utilized his potential and did not accept the wage of about $800 per month he earned in those jobs.  Instead the Judge used $2,500 which was half of the wages of the plaintiff’s ex-wife and applied it to the 92.5 months from June 2002 to date of judgment.  It is apparent that although the plaintiff had received education up to senior high school, the jobs he had before he took up driving with Ananda were that of a manual nature.  The ex-wife’s job on the other hand was described as data collection which, on the face of it, was not of the manual type.  As the Judge observed, the ex-wife might well be academically better qualified to earn the higher salary.  I cannot see how the Judge can be faulted by choosing half of the ex-wife salary as the basis for calculating the plaintiff’s future loss.

Conclusion

27.  The defendants appeal is accordingly dismissed with costs to the plaintiff.  The plaintiff has also lodged a cross appeal which is said to be contingent on the defendants succeeding on their appeal.  No submission was made by Ms Cruden on the cross appeal.  Mr. Leung had also not made any substantial arguments on the cross appeal.  He simply invited us to ignore it.  In the circumstances the cross appeal is dismissed with no order as to costs.

28.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulation.

Hon Yeung JA :

29.  I agree with the judgment of Hon Cheung JA.

Hon Kwan JA :

30.  I have had the benefit of reading in draft the judgment of Cheung JA and I agree entirely with it.  I wish to make two observations in view of the manner in which the argument of the loss of a chance was advanced by the defendants on appeal.

31.  There is nothing wrong with counsel taking a new point on appeal, provided that the point could fairly be taken by him and there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other party had the point been taken at the trial (Flywin Co. Ltd. v. Strong & Associates Ltd. (2002) 5 HKCFAR 356, paras. 37 to 39).  This is plainly not the position here.  Mr. Leung relied on a number of matters mentioned in the evidence of the plaintiff and a witness called by the defendants to establish the basis for an argument on the loss of a chance (set out in paragraph 14 of the judgment of Cheung JA).  No one at the trial could have appreciated what possible significance these matters could have to the defendants’ case.  Had the plaintiff known of the use of such evidence on appeal, further evidence would have been adduced by the plaintiff to address the argument.  If a defendant should wish to contend that the conventional approach using a multiplicand and multiplier should not be adopted and that the plaintiff’s claim for loss of earnings should be assessed on the basis of the loss of a chance, he should raise that issue squarely and in good time so that the plaintiff may be able to address it properly in evidence.

32.  For the loss of a chance to be successfully invoked as the basis of assessment for loss of earnings, special circumstances are required to be shown, as demonstrated in Doyle v. Wallace [1998] PIQR Q146and Langford v. Hebran [2001] PIQR Q160.  As Potter LJ had pointed out in Herring v. Ministry of Defence [2004] 1 All ER 44 at para. [25], in most situations the traditional method of using a multiplicand and multiplier has not been displaced by assessment based on the loss of a chance, even though the plaintiff’s loss of earnings would depend on the hypothetical action of third parties.