TANG SHAU TSAN v. WEALTHY CONSTRUCTION CO. LTD.

CACV 58/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 58 OF 2000

(ON APPEAL FROM HCPI 1092/1998)

----------------------

J U D G M E N T

----------------------

Hon Rogers JA :

Introduction

1. This is an appeal from a judgment of Deputy Judge Woolley given on the 2 December 1999 following a 4-day trial.

2. The plaintiff is now aged 47. He was a carpenter and had been in that trade in Hong Kong for over 20 years. Unfortunately, on 8 May 1996, he suffered an accident. He was making a circular cupboard in the defendant's workshop when his left hand was caught on a spindle and he suffered the amputation of the end of his left index finger. In trying to avoid the injury or free his finger, he jerked backwards and fell on the floor. The deputy judge found that the defendant was guilty of negligence and breach of statutory duty and that the plaintiff was not, in any way, guilty of contributory negligence. Against those findings, there is no appeal.

3. The plaintiff has been left with the injury to the tip of his finger which is numb and could be painful if knocked. There is some reduction in what the plaintiff could do with his left hand as a result of his injury, but the plaintiff's major complaint is in relation to his back. The judge accepted that the blow to his back must at least have triggered the back problems of which he is now suffering. It is unnecessary to consider the precise condition of the plaintiff's back; it suffices to say that the judge accepted that the plaintiff has limited ability to lift heavy loads and that he cannot do so on a regular basis. However, the plaintiff is a strong man, has a good grip with both hands and despite the loss of the tip of his index finger, he is capable of carrying reasonable loads and climbing ladders whilst doing so. On this basis, the judge held that the plaintiff was able to work in the interior decorating or carpentry field although he would have to avoid heavy work and lifting.

4. The judge held that the plaintiff's injuries did not reach the serious injury category as described in the Lee Ting Lam case and made an award of $300,000 in respect of pain suffering and loss of amenities.

5. As regards the pre-trial loss of earnings, the plaintiff was on sick leave for some 25.75 months. In respect of that, the judge assessed the damages at $425,905. In doing so, he took into account the fact that the number of days which the plaintiff would have been likely to have worked would have varied. In the early part of the period, when employment was good, it would have been higher at about 26 days per month, but in the later part, employment opportunities were not so good and it would have been in the region of 20 days per month.

6. On the basis that the plaintiff had suffered a loss of earning capacity of 10%, which the judge considered was a realistic assessment of his loss in the labour market, the judge awarded a sum of $28,118 in respect of the pre-trial loss and made an award of $147,840 in respect of future loss of earnings. This latter was based on a multiplier of 8 and a monthly loss of income of $1,540.

Pain, suffering and loss of amenities

7. On this appeal, two points were argued in respect of the damages. The first was that the award for pain suffering and loss of amenities was too low. In my view, the judge was correct in the way he categorised the injury. The award of $300,000 might be said to have been not overly generous but in my view, it was not so low that this court could interfere.

8. The major attack on the judge's award came in respect of the manner in which the loss of earnings was arrived at. Mr Clough, on behalf of the plaintiff, criticised the fact that the judge had used the criteria of a 10% loss of earning capacity.

Expert witness reports

9. Mr Clough, on behalf of the plaintiff, correctly drew our attention to the fact that both the report of Dr Philip Mao and the report of Ms Alice Tsang contained statements of their opinion that the plaintiff had suffered a 10% loss of earning capacity. It was said that these statements were inadmissible from these experts and had misled the judge into calculating the damages on a wrong basis. It is necessary to point out, right at the outset, that both these witnesses were called on behalf of the plaintiff. Insofar as the complaint now comes from the plaintiff's side, clearly, those in charge of the preparation of the plaintiff's case are responsible for any difficulty which arose.

10. For reasons which I shall outline below, I do not consider that the judge did rely on these estimates but made an estimate of his own. However, in my view, Mr Clough was correct in his criticism of the expert witnesses' evidence insofar as it contained statements of opinion in relation to loss of earning capacity.

11. An expert witness can give evidence as to the nature of the plaintiff's injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

12. On a practical level, it could be said that insofar as Alice Tsang's report, based upon results of tests, concluded that the plaintiff was capable of limited lighter jobs in carpentry or that he had limited capability for lifting heavy items, that is useful material for the judge. Insofar as there is speculation as to whether fellow workers could perform the task of moving heavy items or additional staff could be employed or whether the plaintiff could work as a sub-contractor and what effect that his long experience in the field would have on his ability to do so, those, in my view, constitute inadmissible statements. It is for the court to draw its own conclusions as regards those matters from the evidence before it. All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff.

The calculation of damages

13. In the present case, the plaintiff sought damages in respect of his reduced ability to work, both before and after trial, on the basis that he could work as a salesman earning $4,600 per month. He had not attempted since his injury to obtain work as a carpenter. The judge was therefore faced with a considerable difficulty. Prior to the accident, the plaintiff had been earning $680 per day as a carpenter. The judge found that, had the accident not intervened, on a 26-day-month, he would have been earning $17,680. Indeed, the plaintiff could, by the date of trial, have expected to have earned $770 per day as a carpenter. The judge did not accept, however, that the plaintiff was forced to earn as little as $4,600 to $4,700 per month working in a clothes shop. The judge said :-

"...it is interesting that he has not sought any employment in the interior decorating or carpentry field. It is clear that he is able to do such work, albeit avoiding very heavy work and lifting, ..."

14. In my view, that finding is unassailable. The judge was therefore faced with the difficulty of trying to assess how the plaintiff's loss should be calculated. Because the plaintiff could give no relevant evidence as to his experience in attempting to obtain relevant employment, the judge had no yardstick of that nature to go by. The judge said :-

"In my view, the Plaintiff could, and should, have actively and more aggressively sought employment suitable for him at least when his sick leave expired. Both Dr Mao and Ms Tsang put the Plaintiff's loss of earning capacity at 10% which in my view is a realistic assessment of the loss he suffers in the labour market."

15. In making his calculation, the judge in effect calculated the plaintiff's loss at the equivalent of two days per month. Having heard the evidence, particularly of Mr Chan speaking of his current experience as an employer, the judge came to the conclusion that the likely number of days now worked by a carpenter is something in the region of 20. Hence, taking 10% of that was the equivalent of taking two days per month.

16. In my view, the approach of trying to assess the likelihood of the plaintiff finding employment with his continuing disability is a reasonable approach if quantified on the likely number of extra days per month for which the plaintiff would not find employment. It is, perhaps, a more realistic approach than trying to assess any likely loss of earnings by taking a lower daily rate. Without evidence as to what daily rate a carpenter who could not lift heavy weights could expect to obtain, it would only be conjecture that such a carpenter would, in fact, receive a lower rate of pay than a fully able bodied carpenter. The greater likelihood is that both a fully able carpenter and a carpenter in the position of the plaintiff would probably receive the same daily wage although the plaintiff should be given credit for the likelihood that he would find it more difficult to obtain work.

17. Whilst the total award based on a multiplier of eight years is, on final calculation, not over generous, it is not so small as to bring it within the category that this court could interfere.

18. For completeness, I would add that originally, it appeared that the appeal might have included a complaint that the judge did not allow a period of unemployment beyond the sick leave period, that point was not argued on appeal and, in my view, rightly so. The period of sick leave was itself extensive and the calculation of the damages in the statement of damages was based upon the premise that the plaintiff would have started working after the sick leave expired.

19. In conclusion, therefore, I consider that this appeal should be dismissed and therefore, inevitably, an order nisi as to costs should be made in favour of the defendant.

Hon Woo JA :

20. I have had the advantage of reading the judgments of my Lords, Mayo VP and Rogers JA, in draft. I agree with them. I would add that I find the judgment of Deputy Judge Woolley well reasoned and balanced, and the criticisms launched against various parts of it on damages by the plaintiff cannot be justified.

21. I agree that the appeal should be dismissed with an order nisi for costs against the plaintiff.

Hon Mayo VP :

22. I have had the advantage of reading my Lord Rogers' judgment in draft. I agree that this appeal should be dismissed.

23. While it is true that the award which was made for pain suffering and loss of amenities was not over generous it was definitely my impression from reading the papers that the Plaintiff did have a tendency to exaggerate the extent of the injuries he suffered. In all the circumstances it cannot be said that we would be justified in interfering with the Judge's award.

24. I also find myself in agreement with the observations made concerning the evidence given by Dr Mao and Ms Alice Tsang. Clearly any expert evidence given by them should have been confined to the Plaintiff's medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion.

25. It is however clear from the judgment that the Judge reached the conclusions he did by making his own assessment of the position. His task was not a simple one by virtue of the Plaintiff making no real attempt to rejoin the labour market as a skilled carpenter. The Judge was in my view fully entitled to find that having regard to the extent of his incapacity he would have been able to continue working as a carpenter even though he may not have been able to lift heavy weights. In my view the Judge may have erred on the side of generosity in the amount of sick leave he allowed and in allowing a 10% loss of earning capacity.

26. Be that as it may I consider that overall the judgment was eminently fair and that this appeal should be dismissed.

27. The result of this appeal is that it will be dismissed. There will be an order nisi that costs follow the event.