CHAN CHI SHING v. TSANG FOOK METAL ENGINEERING AND ANOTHER

CACV 238/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 238 OF 1999

(ON APPEAL FROM HCPI NO. 224 OF 1998)

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J U D G M E N T

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Keith J.A. (giving the first judgment at the invitation of Rogers J.A.):

Introduction

1. On 22 March 1995, the Plaintiff was injured in the course of his work on a construction site. He commenced proceedings against his employer (the 1st Defendant) and the main contractor on the site (the 2nd Defendant). In due course, the action was tried by Deputy Judge Li in the Court of First Instance. The judge found both Defendants liable to the Plaintiff for negligence and breach of statutory duty. He rejected the Defendants' allegation of contributory negligence and awarded damages to the Plaintiff. On this appeal, the Defendants challenge the judge's findings on liability, contributory negligence and the quantification of the Plaintiff's loss.

The Plaintiff's version of the accident

2. The only witness who gave evidence as to the circumstances of the accident was the Plaintiff. His version of events was that, on the day in question, he was working at the highest level of a building which was then in the course of construction. He and three other men were carrying a steel bar on their shoulders from one part of the storey on which they were working to another. The Plaintiff was the last in the line. The floor of the storey on which the Plaintiff and his work-mates were walking had not been levelled. It was covered by wooden boards which were sloping and which overlapped each other. While carrying the bar on his shoulders, the Plaintiff tripped over the edge of one of the boards where it overlapped another board. He landed heavily on his bottom, and then noticed a patch of oil on the board which he had tripped on.

3. The challenge to this version of the incident was based on the fact that the Plaintiff had previously given dissimilar versions of the incident to the doctor who examined him a week or so after the accident, to another doctor who examined him over two years later, and to his solicitors when they had to prepare (a) the Particulars of Claim for his claim in the District Court for statutory compensation under the Employees' Compensation Ordinance (Cap. 282), (b) the Statement of Claim in the present action, and (c) his witness statement in the present action. The judge accepted the version of the incident which the Plaintiff gave in his evidence, despite such apparent inconsistencies as there were between his evidence and his earlier versions of the incident.

4. The criticism of the judge is twofold. First, it is said that, in deciding that the Plaintiff's current version of the incident could be relied upon, the judge engaged in "speculation, conjecture, assumptions and guesswork". Secondly, there was, so it is said, no basis on which the judge could have preferred the Plaintiff's current version of the incident to the previous versions which the Plaintiff had given. Accordingly, in concluding that his current version of the incident was to be preferred, the judge, it is said, must have failed to apply properly the law relating to the burden and standard of proof.

5. The latter criticism of the judge can, I think, be disposed of quickly. The judge's function was not to decide which of the Plaintiff's versions of the incident was more preferable. His role was to determine whether, on the balance of probabilities, the Plaintiff's current version of the incident was correct. That involved considering whether the Plaintiff's previous versions undermined his current version to such an extent that it could not be said that the Plaintiff's current version of the incident was probably correct. A fair reading of the judgment shows that the judge plainly understood that that was his function, and that the issue which he had to consider was whether the previous versions of the incident cast doubt on the Plaintiff's current version.

6. In the Plaintiff's earlier versions of the incident, he had referred to the accident as having occurred in the course of "lifting" or "loading", and he referred to the items which he had been lifting or loading as "steel rods" or "a roll of steel bars". It was only in his later accounts that the Plaintiff referred to the accident as having occurred while he was moving the bars to their designated position. Even then, and up to the time of his witness statement, the Plaintiff was still referring to a roll of steel bars, and in all the previous versions in which the Plaintiff had referred to what he had been walking on, he had referred to "planks". It was only at the trial that it became apparent that what he was claiming he had been walking on were boards.

7. The judge did not regard these inconsistencies as telling against the Plaintiff's current version of the incident. For example, the judge made the point that there was no need for the Plaintiff to conceal that it was a single bar which he was carrying as opposed to a roll of bars, or that he was working with three others at the time rather than on his own, or that he was walking on boards as opposed to planks. But since the Defendants' case was that the Plaintiff had injured himself at the time when he had initially lifted up the steel bar, it had been important at trial to explore why the Plaintiff had previously referred to injuring himself while he had been lifting or loading the steel bars. The Plaintiff's evidence was that he had not said any such thing either to the doctors or to his solicitors. The judge must be treated as having accepted that evidence.

8. It is true that the judge indulged in some speculation as to how something other than what the Plaintiff was saying had been recorded. For example, the judge said that some of the inconsistencies might have been due to people either mishearing or misunderstanding what the Plaintiff had been telling them, or to the Plaintiff's solicitors not translating accurately what he had told them. But it was not necessary for the judge to make any concluded findings on those issues. It was sufficient for the judge to find, as I think he did, that, despite the earlier versions of the incident, the evidence which the Plaintiff gave in court was true and correct. For these reasons, I think that the challenge to the findings of fact made by the judge must fail.

Contributory negligence

9. There is no challenge to the judge's finding that, on his findings of fact as to how the accident occurred, negligence and breach of the statutory duty to provide a safe system of work for the Plaintiff had been established against both Defendants. What the Defendants do challenge is the judge's finding that the Plaintiff had not been guilty of contributory negligence.

10. Mr. Neal Clough for the Defendants puts it shortly when he says that the Plaintiff had not been looking where he was going, and could not therefore have been taking proper care for his own safety. If he had been looking where he was going, he would not have tripped over the edge of the board or slipped on the patch of oil. But it seems to me that the judge provided the complete answer to this argument when he said in his judgment:

"Any one having had experience of carrying a heavy load with other people knows that one is bound to be dictated by collective motion. The Plaintiff was carrying a long, heavy steel rod with 3 co-workers. His freedom of movement was restricted. He was at the tail end of the rod. He had to follow the direction of the co-workers in front. His steps had to be in co-ordination with his 3 co-workers. He was pushed and pulled along the way. He could not check every direction, up and down, before making one stride."

The judge, I think, was saying in this passage that, having regard to what the Plaintiff was doing, the Plaintiff could not see the state of the ground directly beneath him. It may be that the Plaintiff should have been treading warily, knowing that the boards overlapped with each other. But the speed at which he was going was dictated by the other men carrying the bar, and for my part I do not think that the Defendants could be said to have proved that the Plaintiff was not treading as warily as the circumstances warranted. In these circumstances, the challenge to the judge's finding on contributory negligence must fail as well.

The quantification of the Plaintiff's loss

11. Only two elements in the judge's quantification of the Plaintiff's loss are called into question on this appeal. They relate to (a) the award of general damages for pain, suffering and loss of amenities, and (b) the extent to which the Plaintiff was to be compensated, if at all, for loss of his earning capacity.

(i) Pain, suffering and loss of amenities. The Plaintiff's injuries were described in the agreed medical report of Dr. Danny Tsoi. The accident had resulted in the Plaintiff spraining his back which had caused the prolapse of a disc. That injury had affected a nerve on the left side of the Plaintiff's body. The function of the nerve was only "mildly" impaired, but the symptoms which the Plaintiff experiences are (a) "mild" back pain as a result of the prolapsed disc, and (b) numbness, pain and diminished ankle reflex as a result of the impairment of the nerve. Dr. Tsoi assessed his total impairment as 15%, but ruled him fit enough to undertake a light job which did not involve bending down or bending his back.

12. The judge treated the Plaintiff's injuries as coming within the category of "serious injury", albeit at the lower end. That was a reference to the lowest of the four categories of disabling injuries first enunciated in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657, and adopted ever since. This category was described at p.659 as covering

".... 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 range of awards for injuries in this category was said in Chan Pui Ki v. Leung On [1996] 2 HKLR 401 in July 1996 to be $400,000.00-$540,000.00, though that range has to be varied to take into account inflation since then. The judge awarded the Plaintiff $460,000.00 under this head of loss.

13. Not without hesitation, I have concluded that it was open to the judge to treat the Plaintiff's injuries as coming within the category of serious injury. That is a value judgment and not really susceptible to further elaboration. But there is no suggestion that the pain which the Plaintiff experiences, though mild, is not going to be permanent. Moreover, the seriousness of the injury has been reflected in the time which the Plaintiff was out of work for, and the limited nature of the jobs which he can now do. I accept that the injuries in the various cases relied upon by Mr. Alan Leong S.C. for the Plaintiff were more serious than those sustained by the Plaintiff, but that does not mean that the Plaintiff's injuries do not just fall within the serious injury category. Once the injuries can be said to fall into that category, an award of $460,000.00 cannot really be attacked. It amounts to only 15% inflation on the figure at the lower end of the bracket, which is not unreasonable since 31/2 years have elapsed between the date when Chan Pui Ki was decided at first instance and the trial of the present action.

(ii) Loss of earning capacity. The judge awarded the Plaintiff a sum equivalent to 2 years' post-trial earnings to reflect the Plaintiff's loss of his future earning capacity. It is contended that an award under this head of loss should not have been made at all. In those circumstances, it is important to remember what an award under this head of loss is actually for. As was said by Lord Fraser of Tullybelton in the Privy Council in Chan Wai Tong v. Li Ping Sum [1985] HKLR 176 at p.183B-D, it is intended

".... to cover the risk that, at some future date during the claimant's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk - see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140, where Browne L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant's age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant."

It is also useful to remember what Browne L.J. actually said in Moeliker at p.142 A-C:

"The consideration of this head of damages should be made in two stages. 1. Is there a 'substantial' or 'real' risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff's chances of getting a job at all, or an equally well paid job."

14. The award which the judge made for loss of future earnings was calculated on the footing that the Plaintiff would not be out of work from the date of trial for the remainder of his working life. In fact, there was plenty of material on which it was open to the judge to find that there could well be significant periods of unemployment in the future. The Plaintiff would be limited to jobs which involved only light duties and which did not require him to bend down. He had worked as a steel binder for 10 years or so prior to the accident and had no other skill or working experience. And the evidence which the Plaintiff gave to the judge was that his attempts to find and hold down jobs had been affected by the pain he gets in his back. In the light of this evidence, an award for loss of earning capacity cannot in my opinion be criticised. An award equivalent to 2 years' post-trial earnings, i.e. $168,000.00, was on the high side, but I cannot say that it was so high as to warrant interference by an appellate court.

Conclusion

15. For these reasons, I would dismiss this appeal, but I would add this. There can, I think, be little doubt that the ultimate award of $4.1m. odd (admittedly with the Plaintiff having to give credit for statutory compensation under the Employees' Compensation Ordinance of $778,000.00) plus interest was on the high side. It may be that the Plaintiff was the beneficiary of a series of generous findings. But an award of damages for personal injuries is made up of numerous components, and if each of those components survives an appeal, there is little room left for challenging the award on the footing that the overall award is too high. That was not an argument which Mr. Clough relied upon, but I wanted to mention it nevertheless.

Wong J.A.:

16. I agree and would also dismiss the appeal both on liability and quantum.

Rogers J.A.:

17. I agree. On the main point, I am satisfied that the judge's findings as to liability should not be disturbed. The judge specifically reminded himself of the different records which contain indications of how the accident occurred. The Plaintiff had been cross examined about them and in the end, the judge accepted the Plaintiff's evidence.

18. As to contributory negligence, I had some doubts but I have come to the conclusion that it would be wrong on the facts as found by the judge for this court to find that there had been contributory negligence.

19. I echo the words of Keith JA that in many respects the award as to quantum would seem generous but again this court is not in the position of considering the award at First Instance. Although if we had been doing so, our awards might have been different, I do not consider that this court can disturb the awards.

20. As to the award for pain, suffering and loss of amenities, I am satisfied that there is sufficient permanent injury including in particular long term pain and permanent disability to warrant placing this injury in the serious injury bracket. For these reasons, I, too, would dismiss this appeal. The appeal will be dismissed with costs, the Plaintiff's costs to be taxed on the legal aid basis.