MOHAMMAD AMJAD v. JOHN M PICKAVANT & CO

CACV 268/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2013

(ON APPEAL FROM HCPI 100 OF 2009)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This was an appeal against a judgment of Deputy High Court Judge Bebe Chu (as she then was) dated 18 November 2013, by which the judge found the defendant (a firm of solicitors) liable to the plaintiff (its employee) for damages for personal injuries suffered by the plaintiff in an accident in the course of his employment at the defendant’s offices on 1 March 2006. The judge assessed the plaintiff’s damages at HK$2,616,182.50, resulting in a net award to the plaintiff of HK$490,312.86 after giving credit for an Employees’ Compensation award of HK$2,125,869.64 that the plaintiff had obtained earlier.

2.  The plaintiff was employed by the defendant as a litigation manager.  At the time of the accident, he was earning about HK$32,500 per month by a combination of salary and commission. His work included elements of marketing and obtaining clients, taking instructions from clients, preparing claim papers and assisting in the preparation of cases.  For these purposes he had to take notes, type word processed documents, take photographs, open and update files, carry equipment and visit accident scenes.  He also acted as an interpreter, as most of the clients he dealt with were South Asian.  The plaintiff’s wife, Begum Waheda, was also employed by the defendant.

3.  On the morning of 1 March 2006, the plaintiff was at work in the defendant’s office, meeting a client, Ishtiaq Hussain.  The meeting took place in a room which appears to have been assigned to the plaintiff to use for his work.  Mr Hussain’s brother, Iftikhar Hussain, was seated in the reception area, outside the plaintiff’s room.

4.  The layout of that part of the office was that on entering the office, there was a receptionist’s desk immediately to the left of the main entrance, behind which was the receptionist’s work area, where refreshments and water were also kept.  There was also a store room, used for storing stationery and other office equipment behind the work area, and a fax machine to the right of the receptionist’s desk, on a table placed against the wall opposite the main entrance.  The plaintiff’s room was at the right end of the reception area, and the door to the plaintiff’s room faced the receptionist’s desk.  There was also a three-seater sofa in the reception area, placed against the wall opposite the main entrance, in the middle part of the reception area, between the receptionist’s desk and the plaintiff’s room.  The plaintiff’s evidence, accepted by the judge, was that Iftikhar Hussain was seated on this sofa, on the seat closest to the plaintiff’s room (referred to in the judgment as the third or leftmost seat). In the corner between the outside of the plaintiff’s room and the wall on which the main entrance was to be found, diagonally across from the sofa, there was a photocopying machine, besides which boxes of paper were piled up.

5.  At about 10:15 on the morning of the accident, the plaintiff found that he needed a stapler, and when his calls to the defendant’s accounts clerk, Eva Chan, elicited no response, he left his room to go to the store room to get it himself.  As he was walking across the reception area towards the store room, on passing Iftikhar Hussain, the plaintiff tripped on a cardboard carton for photocopier paper that was in front of the sofa just beyond where Iftikhar Hussain was seated (the location of the carton was described as being “between the 2^nd and 3^rd seats on the sofa”).  Having tripped, the plaintiff fell forwards, and tried to break his fall by bracing himself on the receptionist’s table, which unfortunately collapsed (it had apparently been broken on two previous occasions), causing him injuries.  He suffered injuries to his neck, lower back, and right shoulder, a laceration to his right thigh, and a wound on the volar side of his right wrist.

6.  Following the accident, the plaintiff was taken to Pamela Youde Eastern Hospital by his wife, where he was admitted.  He was discharged two days later, and subsequently consulted an orthopaedic specialist (Dr Johnson Lam) pursuant to arrangements made by Mr Pickavant, the principal of the defendant’s firm, who referred him for an MRI scan at the Hong Kong Sanatorium & Hospital.  On 11 March 2006, while the plaintiff was at the defendant’s offices, there was an incident between him and Mr Pickavant, which resulted in the police being called, and the plaintiff being asked to leave.  In the event, the plaintiff never returned to work for the defendant thereafter.

7.  The incident related to an accusation by Mr Pickavant that the plaintiff had been paying monies received from clients into the plaintiff’s and his family members’ own bank account, and allegedly falsely telling clients that the defendant required them to pay additional amounts, which the defendant had not in fact requested.  Subsequently, on 13 April 2006, Mr Pickavant made a report of these matters to the police, after a client had made a similar report.  The plaintiff and his wife were subsequently charged with criminal offences in respect of these complaints. The plaintiff’s position was that Mr Pickavant was always aware of these matters, which were done with Mr Pickavant’s permission or authority.  The plaintiff and his wife were acquitted of all charges brought against them after trial.

8.  So far as the plaintiff’s injuries were concerned, he was granted sick leave certificates from the date of the accident until November 2007 (albeit with a break of about one and a half months from late July until mid September 2007).  He complained of continued pain and stiffness in his right hand, and of difficulty in using that hand for writing, typing or handling objects.  The plaintiff was examined by doctors on a number of occasions, with various medical reports on his condition being produced for the purposes of Employee Compensation proceedings (from which he received a total of HK$2,125,869.64) and this action.

9.  In the proceedings, the plaintiff relied on four causes of action, namely negligence, breach of contract of employment, breach of statutory duty under the Occupational Safety and Health Ordinance (Cap 509), and breach of the common duty of care under the Occupiers’ Liability Ordinance (Cap 314).  The judge found the defendant liable on all of these bases.  The judge rejected the defendant’s submission that the plaintiff had been guilty of contributory negligence.

10.  The judge also rejected a submission to the effect that the bulk of the plaintiff’s loss of earnings had not been caused by the accident, but would have occurred in any event because the plaintiff would have been dismissed by reason of the dishonesty that led to his being prosecuted.  She also rejected a submission that the plaintiff should not be entitled to recover damages for loss of earnings in relation to that part of his earnings that was based on commissions, as such commissions were, according to the defendant, illegal.

11.  The remaining main area of dispute was in relation to loss of earnings, in respect of which the judge again rejected the defendant’s submissions, but did not entirely accede to the plaintiff’s submissions.  She concluded, after a detailed consideration of the evidence, that the plaintiff had suffered different levels of loss of earnings in different periods between the accident and the trial, and considered that the level of loss of earnings in the last of these periods would continue for the rest of the plaintiff’s working life, so as to form the basis of an award for future loss of earnings.  In summary, the judge was of the view that:

(1) While the plaintiff was on sick leave (from 1 March 2006 until 15 November 2007), he had suffered a total loss of earnings (ie HK$32,500 per month).

(2) From 16 November 2007 until 31 December 2009 (some seven and a half months after the Employee’s Compensation judgment) he had suffered partial loss of earnings to the extent of HK$21,500 per month (on the basis that as a result of his injuries, he could, during this period, only have worked as an interpreter, earning about HK$11,000 per month).

(3) From 1 January 2010 until 2 June 2011, the plaintiff suffered partial loss of earnings to the extent of HK$16,250 per month (on the basis that while he could, in this period, have done more than just interpreting, he would not have been able to do all that he had previously been doing, and could have been expected to obtain employment paying about half of his pre-accident income).

(4) From 3 June 2011 until 26 August 2013 (the commencement date of the trial), the plaintiff suffered partial loss of earnings to the extent of HK$3,250 per month (on the basis that while he had by this time recovered further, there remained some residual disability which would hamper his ability to work to the full extent he had been working prior to the accident, and could therefore be expected to achieve an income of about 90% of his pre-accident income).

(5) As for future loss of earnings, the judge concluded that as no improvement to the plaintiff’s condition was expected, these should be assessed on the same basis as for the period immediately up to the date of the trial.

12.  At the end of the day, the judge awarded the plaintiff total damages of HK$2,616,182.50, of which HK$1,524,800 represented pre-trial loss of earnings, and HK$752,310 represented future loss of earnings, the balance being made up of awards for PSLA, pre-trial loss of MPF and small amounts for tonic food and travelling expenses.

13.  On appeal, the defendant’s arguments centred on three aspects of the judgment:

(1) It was contended that the judge was wrong to find that there had been no contributory negligence.  Mr Ramanathan SC (appearing for the defendant on appeal) contended that there should have been a finding of 50% contributory negligence.

(2) It was submitted that the judge had erred in rejecting the contention that the plaintiff would have been dismissed irrespective of the accident, as a result of the allegations of dishonesty made against him.

(3) It was submitted that the judge had erred in her approach to the assessment of the plaintiff’s loss of earnings, the principal argument being that the judge had wrongly sought to make use of concepts such as impairment of the whole person and reduced earning capacity expressed in percentage terms when assessing the plaintiff’s loss of earnings, when these were concepts applicable to Employee’s Compensation claims, but not appropriate concepts to use in assessing loss of earnings in common law proceedings.

14.  Dealing first with the contention that the judge should have found that the plaintiff had been guilty of contributory negligence, the pleaded particulars of contributory negligence were that:

(1) the plaintiff failed to heed the presence of the box;

(2) the plaintiff walked too quickly across the reception area; and

(3) the plaintiff failed to take care when walking across the reception area.

The last of these is a general allegation, which does not add anything to the first two particulars and need not be considered further.  The second allegation was denied by the plaintiff, who said that he was walking at a normal pace from his room towards the store room.  This evidence was accepted by the judge, and there is no basis for interfering with that decision.  The defendant has not been able to point to any respect in which it could be said that the judge was wrong, let alone palpably wrong, to accept this aspect of the plaintiff’s evidence.  That leaves the allegation that the plaintiff was guilty of contributory negligence by failing to heed the presence of the box in the reception area.

15.  Both the plaintiff and his wife had said that they had not noticed the box over which the plaintiff tripped, leading to his fall.  The argument below, repeated by Mr Ramanathan before us, was that the box was readily visible, apparently placed in open sight, and so should have been seen by the plaintiff, who should have taken care to avoid it.  In his skeleton submission, Mr Ramanathan placed reliance on paragraph 60 of the judgment as supporting this contention.  However, that paragraph merely records the argument advanced by Mr Wong, counsel for the defendant at the trial.  It does not make any finding that the box was in fact visible or easily noticeable. 

16.  In fact, the judge dealt in some detail with the layout of the reception area, and the location of the box over which the plaintiff said he had tripped (see paragraphs 40-43, 47-48 and 59-65 of the judgment), noted the evidence of Ms Chan, the defendant’s accounts clerk that paper boxes were usually kept next to the photocopying machine and that there was also a box between the fax machine and the sofa, close to where the plaintiff said the box over which he tripped was (see paragraph 42 of the judgment), and had regard to the plaintiff’s evidence as to where Iftikhar Hussain was seated, and the relationship of that position to the location of the box (see paragraphs 62-63 of the judgment).

17.  The judge concluded that there was no sufficient evidence of contributory negligence.  We agree.  The plaintiff and his wife both said that they did not notice the box.  Unless the box was clearly visible, so that the plaintiff should have seen it and taken appropriate care to avoid it, there is nothing to suggest that the plaintiff failed to take appropriate care for his own safety.  Although Mr Ramanathan suggested that the box was clearly visible, there was no evidence to suggest that this was the case.  Indeed, having regard to the plaintiff’s evidence as to the relative positions of Iftikhar Hussain and the box, it would seem that Iftikhar Hussein would have been seated ahead of the box, so that it would be quite possible (and perhaps likely) that the plaintiff’s view of the box would have been obscured, so that he would not have been aware of its presence.

18.  Mr Ramanathan also drew our attention to the judge’s description (in paragraph 63 of the judgment) of the reception area as a small and cluttered area.  He suggested that as the plaintiff had worked with the defendant for some years before the time of the accident, the plaintiff must have been aware of the state of the reception area, and should have taken heightened care for his own safety when walking across it.  With respect, we cannot agree.  The context in which the judge made that observation, in a paragraph rejecting the contention that the box was readily visible, and immediately before the observation that Iftikhar Hussain was seated to the left of (and thus ahead of) the box, lends no support to such a submission.

19.  In these circumstances, it does not seem to us that the judge’s decision that there was no sufficient evidence of contributory negligence on the part of the plaintiff can be challenged, and the appeal on this point cannot succeed.

20.  Turning to the defendant’s second argument, that the accident was not causative of the plaintiff’s loss of earnings, as he would have been dismissed regardless of the accident because of the alleged discovery by Mr Pickavant that he had been taking money directly from clients without authority to do so, the judge considered and rejected this point between paragraphs 112 and 115 of the judgment.

21.  The judge observed that up until 11 March 2006, the relationship between the plaintiff and Mr Pickavant appeared to be a good one, but that after the argument on that date, the relationship was spoilt.  The judge noted Mr Pickavant’s evidence as to the reason for the argument – that he had discovered that the plaintiff was taking money directly from clients, but also noted the plaintiff’s response that Mr Pickavant was all along aware of this and had no objections to it (this being also the plaintiff’s defence in the criminal proceedings, in which he was acquitted). She considered Mr Pickavant’s evidence as to when the alleged dishonesty on the plaintiff’s part was discovered to be confusing and unsatisfactory, and was not satisfied that there was in fact any dishonesty or misconduct as alleged by Mr Pickavant.  She also noted that the allegations by Mr Pickavant seemed only to have been raised after 11 March 2006.  In these circumstances, the judge declined to find that the defendant had made out its case that the plaintiff would have been dismissed by mid April 2006 in any event because of the alleged dishonesty.

22.  Before us, Mr Ramanathan submitted that the judge had erred in rejecting this contention.  He submitted that having regard to the fact that the police had to be called on 11 March, that the plaintiff never returned to work thereafter, and the subsequent complaints made to the police by a former client of the defendant (Mr Jagraz Singh) and Mr Pickavant on 11 and 13 April 2006, the overwhelming probability was that the employment would not have continued beyond 13 April 2006, and that this was so regardless of any uncertainties or inconsistencies as to when exactly the plaintiff’s “dishonesty” was discovered.  However, so far as the consequences of this argument were concerned, Mr Ramanathan appeared, in his written submissions, to suggest that they would not be as extreme as had been contended for below – where the argument was that the plaintiff would not be entitled to any loss of earnings beyond 13 April 2006 as he would have lost his employment by then regardless of the accident. Instead, Mr Ramanathan seemed to us to limit his submission to an argument that the employment with the defendant would have ended, and that any other employment the plaintiff could have secured would not have included the element of commission that he was being paid by the defendant, so that his loss of earnings would have been less than they would have been had he continued to be employed by the defendant.

23.  Regardless of which version of the argument is relied upon, we do not think that this aspect of the appeal can succeed either.  It appears from the judgment that the judge was skeptical of the timing and circumstances in which the complaint of “dishonesty” came to be made against the defendant, and thus had reservations as to whether or not the complaint was justified (reservations which she regarded, not unreasonably, as to some extent vindicated by the plaintiff’s acquittal, given the nature of his defence).  In those circumstances, she declined to find that the plaintiff would have been dismissed regardless of the accident, and in our view she was entitled to do so.

24.  Turning finally to the appeal against the awards of damages for loss of earnings and loss of future earnings, Mr Ramanathan contended that:

(1) the judge had adopted findings as to loss of earning capacity made in the Employee’s Compensation proceedings when assessing the damages claims at common law for loss of earnings;

(2) the judge had wrongly assessed the plaintiff’s loss of earnings by reference to percentage figures, thus taking an approach which was confusing and imprecise – the correct approach was to make an assessment of the plaintiff’s likely earnings without reference to percentage figures, which were not based on the evidence before her;

(3) in particular, having regard to the findings made by the judge as to the nature of the plaintiff’s work and the extent of his residual disabilities, the judge was wrong to find that the plaintiff suffered any loss of earnings as a result of the accident after January 2010, or alternatively (and at the latest) after the beginning of June 2011, and her assessment that the plaintiff had an earning capacity of 90% of his former income was in conflict with her own findings regarding the work he was performing and his continuing disabilities.

25.  With respect to Mr Ramanathan, we do not agree that the judge made any of the errors he suggested.

26.  It is true that the judge adopted as her starting point, in assessing the plaintiff’s likely earnings in the period immediately after his sick leave came to an end, the figure of HK$11,000 per month as representing the likely income he could have earned as an interpreter that Judge Chow had used as the basis for calculating his award in the Employee’s Compensation proceedings.  However, there is no proper basis for criticising the use of this figure, for a number of reasons.  First, the judge, as she was entitled to do accepted that up until the date of the judgment in the Employee’s Compensation proceedings, the plaintiff’s injuries and consequent disabilities were such that up to that point, he could not do the full range of work that he had been doing prior to the accident, but would only have been able to work as an interpreter, a position which, on the available evidence would have produced an income for the plaintiff of about HK$11,000 per month.  Second, as the judge noted (at paragraph 129 of her judgment), the defendant’s counsel appearing before her was also proceeding on the basis that the plaintiff could (at this stage) earn this amount (his argument was based on the plaintiff’s pre-accident earnings being lower than claimed, and not on any suggestion that his potential earnings at this stage were lower than that found by Judge Chow and used by the judge).

27.  Further, it is clear from Judge Chow’s decision in the Employee’s Compensation claim that his approach was not to use an earning capacity percentage figure to calculate the award to be made in those proceedings, but to make an assessment of the plaintiff’s actual likely level of earnings at the time of the trial of those proceedings and use that amount for the purposes of the calculation.  This does not differ in practical terms from the approach which should be taken in assessing loss of earnings at common law, as that approach involves considering the plaintiff’s potential earnings in his post-accident condition at the relevant time with his pre‑accident income.  This is precisely what the judge did for the period from the end of the plaintiff’s sick leave until the date of the judgment in the Employee’s Compensation proceedings.

28.  It is true that for the periods thereafter, the judge, in assessing the plaintiff’s loss of earnings, expressed herself in terms of the plaintiff’s earning capacity expressed as a percentage of his former earnings (50% for the period between January 2010 and the beginning of June 2011, and 90% for the period between June 2011 and August 2013 and in respect of future loss of earnings).  The defendant submitted that this approach was erroneous, and drew our attention to statements in the decision of the Privy Council in Chan Wai Tong v Li Ping Sum [1985] HKLR 178 at 183 and by Rogers JA in Tang Shau Tsan v Wealthy Construction Co Ltd (unreported, CACV 58/2000, 5 April 2000, at p.5) which, Mr Ramanathan submitted, were criticisms of the expression of loss of earning capacity in percentage terms.

29.  With respect, neither of those cases is of particular assistance here.  In Chan Wai Tong, the criticism was in relation to the equating of disability percentages with loss of future earning capacity.  This was not the course which the judge took in this case. In Tang Shau Tsan, the criticism was directed at the adoption of percentage figures in respect of loss of earning capacity provided by medical or occupational therapist expert witnesses in assessing a plaintiff’s likely loss of earnings, on the basis that the assessment of loss of earnings was not a matter on which such expert witnesses were qualified to express an opinion, as it was a matter for the judge to deal with on the basis of all the admissible evidence available.  Again, that is not the present case.

30.  In fact, a fair reading of the sections of the judgment in which the judge considered the questions of pre-trial loss of earnings, future loss of earnings, and loss of earning capacity (in particular paragraphs 126-127, 130, 134-149, 154 and 161-162) shows that the judge approached the question of damages for loss of earnings in a conventional way, by considering the medical evidence as to the extent of the plaintiff’s injuries, the evidence of both sides as to the nature of the work that the plaintiff had been doing and the physical demands placed on him, and the plaintiff’s own evidence as to the impact of those injuries on him and on his ability to carry out those duties.  As is apparent from the section of her judgment dealing with loss of earnings, the judge considered all of these matters in some detail, and then attempted to assess the likely level of earnings that the plaintiff would have been able to achieve at different stages of his recovery. 

31.  Thus, she accepted that in the first stage after the expiry of the plaintiff’s sick leave, he would have been able to work only as an interpreter, and would not have been able to carry out the other activities he had previously been doing, and on this basis, accepted that his likely level of earnings was to be assessed by reference to what an interpreter could be expected to earn.  For the later stages, she rejected the plaintiff’s suggestion that he remained in much the same position, and was satisfied that the plaintiff could, for some time, have done more and thus achieved higher earnings.  For the period between January 2010 and the beginning of June 2011, she came to the conclusion that the plaintiff could have earned at least half of what he was previously earning (or HK$16,250 per month) and thereafter that he could have earned close to, although not quite as much as, his previous level of earnings.  On the evidence before her, she accepted that the plaintiff would continue to suffer a mild disadvantage due to his impairment, and that there would in consequence be a slight loss of earnings in the final period, which would continue into the future.

32.  These figures are necessarily somewhat rough approximations, but the assessment of loss of earnings is not always capable of exact or precise quantification.  It seems to us that, doing the best that she could with the material available, the judge was perfectly entitled to come to the conclusions that she did.  It is nothing to the point that some other judge, or this court, might think that a different conclusion could have been reached – the conclusions at which the judge arrived were, in our view, within the range of awards that it was open to her to reach, in respect of both the later periods.  While it may be that, for the avoidance of potential confusion, it would be preferable not to have expressed the award in terms of a percentage of earning capacity, we are satisfied that the percentages mentioned represented the outcome of a process of assessment carried out in the usual way, rather than the adoption of an erroneous process of assessment.

33.  It follows that this aspect of the defendant’s appeal also fails, and that the appeal should be dismissed.  So far as costs are concerned, we would make an order nisi that the defendant should pay the plaintiff’s costs of the appeal, to be taxed on the party and party basis.  The plaintiff’s own costs are to be the subject of Legal Aid taxation.