HO CHI KIN v. CHAN HOI SHING

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JUDGMENT

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Cons, V.-P.:

1. This is an appeal from the decision of His Honour Judge Cruden, sitting as a Deputy Judge of the High Court, by which he awarded a total of just over $220,000 damages for personal injury in a running down action. However we are concerned only with quantum and even then only with two aspects of quantum, the pre-trial loss of wages and the future loss.

2. The Plaintiff has now returned to work as a tally clerk for a transport company. As such, he is required to work on ships in the harbour. That work is now more difficult for him and he is earning less than he used to. Both before and after the accident he earned further money doing similar work outside his regular employment. That income has also been reduced.

3. In reality we are concerned with two questions. Firstly, can the reduction in his earnings be attributed solely to the injuries he received in the accident, or does it reflect in whole or in part the falling off in the number of cargoes dealt with in Hong Kong Harbour? Secondly, did the judge accurately assess that reduction?

4. I should mention at this stage that in coming to my conclusion I have derived considerable assistance from the skeleton arguments which counsel on both sides provided for us, and in particular from the fact that those arguments were delivered to us before today.

5. As to the first question, that is the reason for the loss of earnings, the judge said this:

"At one stage in cross-examination the plaintiff did agree that the reduced income from his primary source of employment was due to the reduced work available as a consequence of less shipping business. However, that admission stands in isolation and is inconsistent with his other evidence which is also reinforced by the medical evidence."

To some extent it is true, the answer does stand in isolation. This is not surprising, for once counsel get a hoped for answer they often tend to leave the matter there. But that admission did not stand completely alone. Later in cross-examination another question was put: "Since 20th April 1985 you have not suffered any loss of earnings due to the injury?" and the answer received was "Yes, correct".

6. The medical evidence, which was agreed, consisted of two reports from Dr. Wedderburn. They show that the injuries were substantial and obviously must have some effect on the Plaintiff's ability to carry out his work. In that sense the medical evidence does reinforce his evidence. But it does not exclude the possibility that other factors may also be affecting his earnings.

7. The admission is inconsistent with his other evidence and of course a judge is entitled to accept part and reject other parts of a witness' evidence. Frequently it depends upon the judge's estimate of the witness as such and in that case this Court will be very slow to substitute its own opinion. It will not be so reluctant where a judge gives other reasons, and those reasons do not appear sufficient to justify the distinction that he makes. The main difficulty in the present instance however is that there was no evidence as to how much the shipping trade has decreased, although that evidence must have been easily available. In the event, I doubt if the decrease has had any significant effect on the Plaintiff's situation.

8. The accident occurred on the 30th March 1983. The Plaintiff fractured his leg just below the hip joint and he was in hospital for a month. The fracture needed pinning and a plate. He was given sick leave for the rest of that year. Then in March 1985 he was re-admitted for the removal of the plate and pins.

9. There was no dispute as to the proper amount of damages receivable up until that date. Then for the period from that date to the date of hearing, the judge awarded the sum of $12,000. He does not explain how he arrived at that figure. It seems to me however that he must have overlooked the fact that for the period up to the 25th April the Plaintiff received no wages at all. When that is taken into account the figure of $12,000 would seem to be a little on the lour side, and counsel for the Defendant has abandoned the appeal on that point.

10. The judge assessed the future loss by the purely mathematical method of projecting a monthly loss of $1,600 into the future, taking a multiplier of 9 as from the date of the accident. He reached the figure of $1,600 by deducting from the unchallenged pre-accident rate of $4,100 a month what he found to be the present rate of $2,500. Again, he does not explain how he arrived at that figure of $2,500. For my part, I find it impossible to reconcile with the clear evidence of the Plaintiff that his total income now varies between $2,800 per month and $3,000. If one takes the average of those two, the true loss is $1,200 a month. I would therefore reduce the figure for future loss accordingly.

11. It was at one stage suggested that the judge committed a further error when reducing the multiplier to take into account the time lapse between the accident and the trial. He brought it down to 7, but it is suggested he should have taken it to something like 6.6 as the interval was in fact some 29 months. The point is no longer pursued but with respect to the judge, I would like to draw attention to the speech of Lord Fraser in Cookson v. Knowles⁽¹⁾ - to which we have been referred by means of a quotation in Graham v. Dodds⁽²⁾ - which indicates that the appropriate method in personal injury cases, as opposed to fatal accident cases, is to assess the multiplier as at the date of trial. Had that been done, and the judge arrived at the figure of 7, I would not for my part have thought it too high.

12. Dr. Wedderburn's opinion was that in about 4 or 5 years from now the Plaintiff would probably find that he was unable to carry on further with his present work and would be forced to seek employment of a lighter kind. Presumably in reliance thereon the Statement of Claim included a claim for loss of earning capacity. However that claim does not appear to have been pursued at trial and no cross appeal has been lodged.

13. For these reasons, I would allow the appeal, to the extent of reducing item 2 of the general damages from $134,400 to $100,800, and amend the total accordingly, having regard to the percentage contributory negligence found.

Barker, J.A.:

14. I agree.

Fuad, J.A.:

15. I agree that for the reasons given by my Lord the Vice-President, the appeal should be allowed to the extent indicated in his judgment.

(1)    [1979] A.C. 556

(2)    [1983] 1 W.L.R. at 808