LEUNG CHI LAP v. YEUNG CHUN KWAN AND ANOTHER

HCPI 970/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 970 OF 2001

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ASSESSMENT OF DAMAGES

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Introduction

1. This is an assessment of damages following the entry of Final and Interlocutory Judgment dated 16 April 2002 against the 1st defendant with damages and interest to be assessed and costs of the suit up to the date thereof to be paid by both defendants. The 2nd defendant's joinder was essentially to safeguard their interest as insurers, the first defendant being totally disinterested in the proceedings in their view.

2. This action arose out of a traffic accident on 10 April 1999. The plaintiff then rising 26 years of age, having been born on 7 June 1973, was injured when a private vehicle owned and negligently driven by the 1st defendant rammed into the rear of a taxi. The plaintiff lost consciousness, his general condition being poor (Glasgow coma scale being 11/15) on admission to Queen Elizabeth Hospital.

3. The medical reports from the public hospitals were agreed. They revealed that the plaintiff had sustained a left frontal depressed fracture to the skull, fractures to the lamina of the C2 and right pedicle of C3 vertebrae. His face was lacerated as can readily be seen from the photographs put in evidence. Though less prominent with time, they were still largely visible at the hearing. There was no neurological deficit. Wound debridement and craniectomy were carried out on the day of the mishap.

4. The plaintiff was conservatively managed with a Somi Brace (neck collar) for immobilization of the cervical spine. This was removed on 16 June 1999, some 2 months after the accident. The plaintiff was hospitalized for 11 days and attended follow-up treatment. A second operation to address the skull defect by cranioplasty (artificial bone covering) was carried out. For this, he was hospitalized for a further 8 days. He was on sick leave from 10 April 1999 to 5 May 1999 and again from 19 May 1999 to 2 February 2000.

5. As for residual disabilities, the plaintiff has been left with some mild headaches and slight memory impairment. He continues to experience a small degree of neck and shoulder pains and giddiness, particularly when lifting heavy objects. The facial disfigurement is of no special cosmetic consequence. Broadly stated, the plaintiff has made a good and uneventful recovery.

6. Damages for pain, suffering and loss of amenities have been agreed at the commencement of the hearing at $250,000. Equally there is consensus regarding special damages in the amount of $4,538. These sums I award to the plaintiff. Falling to be adjudicated are the claims for past and prospective loss of earnings and loss of earning capacity. The plaintiff and the 2nd defendant could not have been further apart in this regard. The first defendant was content to remain neutral throughout the proceedings even though he was entitled to cross-examine and make submissions.

The Claim for Past and Future Loss of earnings

7. It was the plaintiff's case that he was for some 19 months prior to the date of the accident continuously employed as an air-conditioning technician earning on average $20,800 per month. On account of the accident, he alleged that he was no longer able to return to work as before following expiry of sick leave. Aside from some casual work at a Yaumatei fruit stall in 2001 that brought in a meager wage of $1,200 per month, he said he has suffered substantial loss of earnings to trial and continues to do so prospectively. Closely mirroring the Amended Revised Statement of Damages and premised upon acceptance of his evidence, the plaintiff's best case scenario quantified his past loss of earnings at $784,000 and future loss of earnings at $3,763,200. An alternative claim reflecting a lower earning potential as a cleaner, messenger, warehouse attendant or receptionist according to the plaintiff's own medical expert, Dr. Danny Tsoi sees his pre-trial and future loss of earnings reduced to $458,290 and $2,560,176 respectively.

8. The plaintiff's case was vigorously challenged with both the plaintiff and his witness, Mr. Leung Ka Kit (Leung) being cross-examined at length. It was the 2nd defendant's contention that the evidence adduced was so convoluted, lacking in veracity and largely unsupported by credible documentation that the claim should be rejected out of hand. It was submitted that proof of damage lay with the plaintiff and if the court was unable to determine where the truth lay, in particular whether the plaintiff was remuneratively employed at the material time as alleged, no award under this head should be made. To do otherwise would be an exercise in speculation.

The evidence

9. In this connection, it is necessary to determine what if any employment the plaintiff was holding down and his earnings at the date of the accident and at trial. In support of his case, the plaintiff gave two witness statements and evidence during in the proceedings. He also called Leung, a worker installing air conditioners with whom he said he had a lengthy and productive working relationship.

10. The early work history of the plaintiff is not contentious. He commenced apprenticeship as a craftsman in the electrical industry for 4 years on 1 December 1988 under contract to Hang Cheong Electric Engineering Company. This contract was assigned to another company, Cheung Shing Electrical Engineering Company in November 1989. It was terminated when this company ceased business in January 1991. By then, the plaintiff had merely served some 2 years and 1 month of his apprenticeship. Had he remained with the company and had the business not failed, he would have duly completed his training and eventually become a qualified electrician. The letter from The Office Of The Director Of Apprenticeship dated 11 September 2002 suggested that the plaintiff did not complete his training. By implication, he never qualified as an electrician. In response to enquiry from the 2nd defendant's legal advisers, the Electrical and Mechanical Services Department confirmed by letter dated 14 March 2003 that the plaintiff was not a registered electrical worker under the Electricity (Registration) Regulations. He was therefore not qualified to handle the electrical installation of air conditioners under the new regulatory regime put in place in recent years by the HKSAR government.

11. The plaintiff claimed that he had duly finished his apprenticeship. He did not assert that he was ever registered as a qualified electrician. It was his case that when the company with which he was apprenticed failed in January 1991, he continued his training with another master called Ah Tat for some 1 to 2 years. His inability to recall the full name of his new master or the name of the company and its address in To Kwa Wan renders his assertion suspect to say the least. Had he completed his apprenticeship with another electrical company, one would expect him to recall the details. It is after all in his own interest to become fully qualified. When asked about his employment with Trinity Carpet Systems Limited (Trinity Carpet), it seemed clear that he took on this extra work while working full-time as an air condition installation worker to earn extra income in order to save for his future marriage. If the plaintiff was determined to maximize his earning potential, it seems somewhat odd that he took no pro-active steps to notify the authority of the satisfactory completion of his training if Ah Tat had failed to do so on his behalf so as to become registered at the earliest opportunity. I take his assertion that he had done 4 to 5 years of apprenticeship in all with a pinch of salt.

12. It is common ground that the plaintiff had worked as a vehicle attendant for City Chain earning between $5,000 and $6,000 per month. That was for a period of 3 years ending in May 1996. In July 1996 to September 1997, he was engaged as a part-time delivery worker by Pizza Hut at a reduced level of income of between $3,000 and $5,000 a month.

13. The plaintiff then claimed that he started working as an electrician and air-conditioning worker since September 1997 and was so employed when he met with his accident in April 1999. Such work came from a Mr. Tsang Tak Wo (Tsang) from Arts Boundary Engineering Co (Arts). The plaintiff said he was daily rated at $800 and was earning consistently about $20,800 per month from installing air conditioners with Leung in new buildings at construction sites right up until the time of the accident. He basically asserted that he was in full employment throughout, the downturn in the economy and its undoubted impact on the building industry in general notwithstanding. Indeed, he was completely unaware that since the latter part of 1997, the economy had taken a turn for the worse.

14. Both he and Leung claimed that Arts paid Leung for jobs done by both of them and he the plaintiff would then be paid in cash by Leung every fortnight. Yet none of these earnings ever made its way into any of the bank accounts operated by the plaintiff. Whilst I accept that he did contribute about $5,000 monthly towards family expenditure and that most young workers tend to spend much if not all of their modest earnings, in light of his claim that he was trying to save for his marriage, the absence of any savings renders his claim that he was earning a considerable income as an air-conditioning worker suspect.

15. Following the accident, by memo dated 27 June 2000, Arts notified the Traffic Accident Victims Assistance Section that the plaintiff was their air-conditioning technician from September 1997 to February 2000. They further certified that his daily wage was $800 and the number of working days was 26 each month. This document was allowed to be put in subject to challenge of the veracity of its content. In response to query from the 2nd defendant's solicitors, Arts responded in writing on 22 May 2002 'that we cannot provide any employment record of Mr. Leung Chi Lap to your company. There was no employment contract between Mr. Leung and our company'. Further enquiry then elicited a reply from Arts on 2 October 2002 that 'Mr. Leung was not employed by our company and he only provided his service as an air-conditioning technician to our company in form of sub-contractor. Mr. Leung and his partner each received HK$ 800 per day form (sic) our company for their service and since their remuneration including Mr. Leung's was settled by cash daily to Mr. Leung's partner, there are no deposit slips or transfer records can be provided to your company'. In simple terms, no records whatsoever had been kept by Arts concerning the plaintiff's and Leung's engagement by them to install air conditioners for tax or other business purpose. As Miss Lau pertinently observed, even were the plaintiff or Leung to have been paid as independent sub-contractors, some ledger or accounting records would have been kept for accounting purpose. Tsang, subpoenaed was in court but did not testify.

16. The plaintiff rendered a detailed account of how he went about installing air-conditioners, both standard and split typed ones with Leung. He said he was not qualified to and indeed it would have been illegal had he ventured to make the required electrical connection during the installation process. Except for the one occasion when he had to perform for Tsang prior to being taken on by Arts the complete installation of an air-conditioner, all wiring had been done by registered electricians such as Leung. It seems clear that he had thought that Leung was so qualified all along. The evidence showed however that Leung only became legally qualified to perform electrical installation in December 2002. Yet they were supposedly working together since September 1997.

17. The plaintiff did not initially volunteer information that he was working for Trinity Carpet in June and July 1998. Following specific discovery of two cheques in his account, the plaintiff filed a supplemental witness statement addressing the lacuna in the evidence. He explained that he had taken on the extra part-time job with Trinity Carpet whilst still working full-time on air-conditioning installation in order to accumulate savings. It was his case that his working hours for Trinity Carpet did not clash with his other occupation since he had only worked from 6.30 pm to 12 midnight Mondays through Saturdays and from 9 am to 6 pm on Sundays. Under cross-examination, he had to agree that he was in fact employed by Trinity Carpet on a full-time basis. As to his actual duty hours with Trinity Carpet, there was much controversy.

18. Mr. Yau Chuen Keung, the general manager of Trinity Carpet (Yau) testified on behalf of the 2nd defendant. Although he had no direct contact with the plaintiff and had not been responsible for the latter's work assignment, he was able to say that there was only one employee with the name Lap in his name at the material time and that individual was employed full-time working the 12 noon to 9 pm shift daily. He based his evidence on a note made by an accounting staff who had since died. The note was part of the company's records. This note, albeit referred to in evidence, was not produced as an exhibit. Counsel for the plaintiff urged caution against reliance on this aspect of Yau's testimony. Having closely considered the matter, I conclude that Yau's testimony was reliable and truthful. Accordingly, the plaintiff could not possibly have performed two full-time day jobs for the two months in 1998. Were I to be erroneous in accepting this evidence, it would nonetheless mean that the plaintiff was working a full day on construction sites before heading for Trinity Carpets to report for full-time night duty that entailed some overtime work from time to time. Both jobs were physically demanding particularly the air-conditioning work with plenty of heavy lifting and the plaintiff would have the court accept his evidence at face value.

19. On the evidence before me, I am far from persuaded that the plaintiff was engaged remuneratively as an air-conditioning worker as alleged. I am not satisfied that he was working full-time with Leung for the 14 odd months to the time of the accident in April 1999. That being so, the claim for loss of earnings, both past and future must claim. This head of claim is accordingly dismissed.

The Claim for Loss of Earning Capacity

20. The failure on the part of the plaintiff to establish a credible case for loss of earnings does not necessarily preclude an award under this head of claim. Miss Lau, counsel for the 2nd defendant submitted otherwise. Her contention was briefly this. Should the plaintiff fail to prove, the burden being his, an incontrovertible fact, his employment as an air conditioning worker at all material times, no basis would exist for an award for loss of earning capacity. This is so even if there is medical evidence of residual impairment. With respect, I cannot agree.

21. Awards for past and future loss of income and for loss of earning capacity warrant distinct and separate considerations. Damages for the latter address any handicap in the labour market that a plaintiff may have suffered as a result of a defendant's tortuous act. If there were a substantial or real risk that this plaintiff would be out of employment in the future an award would be appropriate. Much would however depend on the degree of that risk and the nature of the plaintiff's residual disability: see Lau Che-ping v Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650. In that case, Cons, Acting C.J observed (at p. 656) that 'it is to be expected that in normal circumstances an able-bodied man will be able to find replacement employment more quickly than will a disabled man. The difference in the time taken is a true reflection of the latter's handicap in the labour market.'

22. Turning to the medical evidence, it is patent that the plaintiff's injuries and residual disability would not have prevented him from resuming his pre-accident employment which all the examining doctors accepted for the purpose of their examination as an air conditioning technician. There is general agreement amongst the doctors that the plaintiff's residual neck pain, giddiness, limited impaired memory and occasional minor headaches would affect his work efficiency and performance. Periodic rest during work would be necessary. Had he been employed as alleged, the plaintiff's performance on returning to work as an air conditioning worker would have been impaired to some degree. As a matter of principle, he would be entitled to seek redress for such handicap.

23. The plaintiff in the years prior to his alleged engagement in the field of air condition installation was variously employed as an apprentice electrician, vehicle attendant and fast food delivery worker. In June and July 1998, he worked as a cleaning worker for Trinity Carpet. Post accident he also found limited casual work for about 4 days a month. On the medical evidence, alternative employment possibilities indicated included cleaning worker, messenger, warehouse attendant and the like. These options are generally similar to what the plaintiff had been doing for a living in the early years of his employment. As there is no evidence indicating that his work efficiency would be impaired in any way by his residual disabilities, it would be inappropriate to consider any award under this head. The claim is therefore dismissed.

Conclusion

24. The plaintiff having failed in the outstanding claims, the awards I shall make against both defendants are as follows:

Pain, suffering and loss of amenities as agreed	$250,000
Special damages as agreed	$4,538
Total award	$254,538

25. Additionally, there shall be interest at 2% per annum on general damages from the date of the issue of the writ to the date hereof and interest at half judgment rate on special damages from the date of the accident to the date hereof. The plaintiff shall also have his costs of the assessment with certificate for counsel against the defendants, taxed if not agreed, such costs order being nisi with liberty to apply within 14 days. Lastly, the plaintiff's own costs are to be taxed in accordance with legal aid regulations.