CHENG LAI KUEN v. NAN FUNG TEXTILES LTD.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 7
(Civil)

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J U D G M E N T

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Leong, J.A.:

1. On 8th January 1989, the appellant, a cotton machine operator employed by the respondent was working on the 2nd floor of the respondent's factory. A fire broke out. In the course of assisting to put out the fire the appellant tripped and fell and was injured as a result.

2. On 4th December 1991, the appellant issued a writ against the respondent claiming damages. In the amended statement of claim she alleged that the accident was caused or contributed to by the respondent's breach of contract of employment, negligence and/or breach of the common duty of care. She claimed in the accident she suffered injuries to her head, chest, limbs and hip. She also alleged that she was pregnant at the time and suffered a miscarriage in the fall. Since then she had been suffering from post concussional syndrome involving chronic headaches and loss of memory with residual pain in her chest, left upper and lower limbs.

3. In their defence, the respondent denied liability and blamed the appellant for the accident. The respondent also put the appellant to strict proof of her injuries and damages.

4. After a three-day trial which started on 3rd November 1997, Yam, J found for the appellant on the issue of liability. The judge found the appellant suffered only minor physical injuries and awarded damages for pain and suffering and loss of amenities in the sum of $150,000. He found the appellant's pre-trial loss of earnings was $165,632.62 and special damages was $20,300. The judge made no award for loss of future earnings. After giving credit for employees' compensation the appellant had already received, he gave judgment in the sum of $127,000.

5. On interest, the judge awarded interest at 2% p.a. on general damages from the date of the writ and 5.84% p.a. on special damages from the date of the accident, with deduction of a period of three years, up to the date of judgment. The deduction was made because he found the appellant was to blame for a delay of three years in the proceedings.

6. The appellant now appeals against that award. In her grounds of appeal, she contends the injuries she suffered should fall within the upper end of the category of "substantial injury". The award for general damages is too low. She also says that it was inappropriate for the judge to assume that she resumed work on 1st October 1989 and her pre-trial loss of earning should be $492,848.71. Further an award should be made for her future medical care. She asks that judgement in the sum of $2.6 million with interest at 4% should be entered in her favour.

7. Today before us, the appellant adds that she is suffering from incontinence and has to frequently consult doctors for various illnesses consequent on her injuries. Because of her suffering, she had attempted suicide and has become destitute. She owes money to loan sharks who ill treated her children and she was deserted by her husband. She contends that because she had assisted in putting out the fire and prevented an explosion in the factory, she should be compensated in the sum of $3 million to enable her to repay the loan sharks.

8. The appeal is purely on the quantum of general damages.

9. The appellant's evidence is she hit her head on a machine when she fell. As a result she broke her nasal bridge, the right part of her head was swollen badly and her right shoulder was fractured. Her four months' pregnancy was terminated by the fall. Her private parts needed nineteen stitches. She was unconscious and was hospitalised for ten days.

10. However, the medical report of Dr. H.Y. TSE of the Princess Margaret Hospital states otherwise. According to Dr. TSE, apart from a bruise over her left forehead, tenderness of her left shoulder and decrease in power and range of movement in her left lower limb, no fracture was noted. Investigations including ultrasonography and X-ray examination revealed no abnormality. The appellant was discharged two days after admission. The report further states that on 20th February 1989 when the appellant was examined in the Gynaecology clinic in South Kwai Chung, she claimed she was pregnant and had passed out a piece of tissue mass during the fall. But nothing abnormal was detected. The appellant did not go back to the clinic for further follow up.

11. After the accident, the appellant was given sick leave but the sick leave certificates do not show she was suffering from any head injury, dizziness or headache.

12. At the trial, the appellant claimed that since the incident, she had symptoms of poor memory, depression, hearing voices and visual hallucinations and she had been receiving psychiatric treatment. She relied on Dr. Sylvia CHEN's expert evidence as support for her claim of mental illness. Accepting the appellant's claim of mental illness and the statements of her son and daughter on the appellant's symptoms and her husband's desertion as corroborative evidence of her mental illness, Dr. Sylvia CHEN told the judge that the appellant had a 25% permanent impairment of her whole person and a 100% loss of earning capacity. Dr. CHEN also suggested that the appellant might have brain damage.

13. The appellant admitted that after the accident and when her sick leave expired, she resumed work as a cotton machine operator and was employed in Far East Cotton Factory for a month in May/June during 1990, for two months and ten days from April to June, 1991 and continuously from 6th April 1992 to 14 January 1995 for a period of more than 2 1/2 years.

14. Initially, neither the appellant nor her children disclosed that she had worked for Far East Cotton Factory. The appellant contended all along that she was unable to work because of her injuries. It was not until the respondent discovered through the insurers that the appellant was working normally after the accident, that the appellant admitted she did work during those periods. She claimed that the caretaker of the factory a Mr. NG Choi gave her the work out of sympathy for her and she was only required to perform light duties and not tendering cotton machines. But her work supervisor in Far East Cotton Factory, a Mr. CHOUNG, gave a different version and he told the judge that the appellant's performance was quite good and in looking after the machines, she worked quite efficiently. In addition, the supervisor said the appellant appeared very normal and not to be suffering from any mental illness.

15. The respondent's expert Dr. Singer conducted a 3 3/4 hour examination of the appellant and in a detail report, he refuted Dr. CHEN's opinion. In the report, Dr. Singer said the fact that the appellant was able to work continuously for 30 odd months earning full wages was strong evidence that she was fully capable of coping with her pre-accident work and where she suffered no loss of occupational function and social function, she could not be suffering from any debilitating mental illness. Dr. Singer concluded that the appellant presented a mixture of symptoms not particular to any one psychiatric illness and that suggested voluntary production and possibly faking of symptoms.

16. In Dr. Singer's opinion, giving the appellant the benefit of the doubt that she suffered a transient loss of consciousness and accepting that she did suffer some minor headaches and dizziness, the appellant probably suffered post concussional syndrome as a result of the 1989 accident. He assessed the syndrome is likely to be permanent and treatment is symptomatic. Analgesic would be good enough and management by a doctor of the condition would not be necessary. Dr. Singer gave a 2% impairment of the whole person and a loss of earning capacity of 2% but he nevertheless considered the appellant able to resume her former type of employment.

17. On the issue of injuries, the judge found the appellant's allegations of injuries not supported by medical evidence. The judge accepted the medical evidence of Dr. TSE and found the appellant only suffered a minor bruise to her forehead as result of the accident and there was no possibility of brain damage. He also found the sick leave given to the appellant was not on account of her head injury. On mental illness, he rejected the opinion of Dr. CHEN and accepted the expert's evidence of Dr. Singer. He found the injuries the appellant claimed to have suffered not credible. He had doubts on the appellant's credibility. These are findings of fact. Nothing has been shown that these findings are wrong.

18. On the appellant's pre-trial working capacity, the judge found that the appellant was able to resume her former work as a cotton machine operator after her sick leave ended. The judge found the appellant had deliberately covered up her employment with Far East Cotton Factory after the accident in order to show that she had lost all her earning capacity. The minor head injury did not affect her working capacity and there was no loss of earning capacity. He found the appellant had no mental illness and had made a full recovery from the 1989 accident. These are also findings of fact based on evidence the judge accepted.

19. On the basis that the appellant suffered no more than minor injuries and that the appellant had since fully recovered and was able to resume her former work, the judge assessed damages for pain and suffering and loss of amenities in the sum of $150,000.

20. The appellant in her appeal claims that her injuries are within the category of "substantial injury" and the award should be adjusted upwards.

21. Four categories of injuries for the purpose of assessment of damages have been set out in LEE Ting-lam v LEUNG Kam-ming [1980] HKLR 657. In order of seriousness, "substantial injury" ranks second. The first is "serious injury" and this covers an injury which "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". Since CHAN Pui-ki v LEUNG On and another [1996] HKLR 401, the level of awards for this category is now $340,000 - $450,000.

22. "Substantial injury" extends to injuries "which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring treatment for the rest of the victim's life." The level of award for this category is now between $450,000 - $560,000.

23. The injuries as found by the judge are minor and nowhere near the category of "serious injury" let alone falling within the category of "substantial injury".

24. A number of cases on awards of general damages for minor injuries were referred to by counsel for the respondent at the trial. These are old cases in 1980s. They relate to injuries which do not fall within any of the categories of injury in LEE Ting-lam. The 1st case is LEE Chung and another v PANG Lap-hung [1985] HKCL K54 where the plaintiff was unconscious after the accident but regained consciousness on admission to hospital. The injuries were a 1cm cut over the forehead and left shoulder was tender. He was hospitalised for two days. General damages in the sum of $4,000 was awarded. In KUNG Kit-shing v Star Sythetic Flower Factory and others [1987] HKCL D57, the injuries were three lacerations, short loss of consciousness and neck pain. The plaintiff was hospitalised for a week for observation and convalescence. He suffered no permanent disability or loss of earning capacity. General damages at $20,000 was awarded. In WONG Hok-chuen v TAI Kam-kiu and another [1986] HKCL H64. The plaintiff suffered concussion, lacerations of scalp and scrotum, damage to right shoulder joint, wedge fracture of second lumbar vertebra and damage to the fifth lumbar nerve. He was hospitalised for three days. Although there were symptoms of headaches, dizziness etc indicating post concussional syndrome, these were not permanent and prognosis was good. $50,000 in general damages for pain and suffering and loss of amenities, loss of future earnings and diminution in earning capacity was awarded. It should be noted that in these cases, there was no permanent disability whereas in the appellant's case there is a 2% permanent disability.

25. Miss LEE counsel for the respondent refers us to HUNG Fung-ghin v YU Ping-kwan [1985] HKCL C30 where there was a 2% impairment of the whole men and the sum of $97,000 was awarded.

26. Miss LEE's submits that the judge in awarding $150,000, had already taken into account the concussional syndrome and permanent disability of the appellant.

27. In our opinion, if the appellant had not suffered permanent post concussional syndrome, by comparison with the awards in the cases cited, even after due allowance is given for increases over the years, the award would not have been as much as $150,000. The judge had referred to the appellant's 2% disability for post concussional syndrome in his judgment. He must have taken that into account when he arrived at that sum. The award of $150,000 is not unreasonable and no complaint should be made.

28. On pre-trial loss of earnings, the judge accepted that the appellant was on sick leave from 8th January 1989 to 31 May 1989. Allowing a further period of three months for recuperation, the judge concluded that the appellant should be able to resume work by 8th September 1989. Thus the appellant was eight months out of work. Based on the median monthly wages of $7,048.19, the judge awarded a sum of $56,385.52. Because the appellant had worked during the period from 8th September 1989 to 6th April 1992, the judge found that during this period the appellant was able to work at least half time. On that basis, he calculated the loss of earnings as half of thirty-one month wages at $7,048.19 per month making a total of $109,246.94. The total pre-trial loss of earnings was therefore $165,632.62.

29. The contention of the appellant before the judge and her contention in this appeal is that during the pre-trial period, except for the periods she worked for Far East Cotton Factory, she had not worked at all because of her injury. The total pre-trial loss of earnings should cover the period from 8th January 1989 to the day of trial less the wages she had earned during the periods she worked in Far East Cotton Factory and this amount should be, it is submitted, $492,848.71.

30. As the judge found that she resumed full time employment as a cotton machine operator from 6th April 1992 and remained so, the appellant had fully recovered and suffered no loss of earnings during that period. She might not have worked after 14th January 1995 but there is no evidence that this was due to her injury. In the light of this and Dr. Singer's evidence that she was able to resume her former type of work the judge was correct in limiting the award for pre-trial loss of earnings to the period he adopted.

31. On the claim for future medical expenses, Dr. Singer's opinion is that even if she had post concussional syndrome as a result of the accident, treatment is only symptomatic and pain killers such as panadol which could be obtained over the counter would be sufficient and no management by a doctor would be necessary. This evidence was accepted by the judge. There is no basis for any claim for future medical expenses. The judge was correct in not making any such an award.

32. All the appellant has said today have been fully considered and we are not persuaded that there is anything wrong or unfair in the award. There is no reason to vary the rate of interest ordered by the judge. For the above reasons the appeal must be dismissed.

Mortimer, V.-P.:

33. I agree for the reasons given by my Lord that this appeal must be dismissed.

Nazareth, V.-P.:

34. I also agree. I would add that Yam J gave careful consideration to the claims the appellant has repeated before us of serious injury and permanent pain and disability. He gave plainly convincing reasons for rejecting those of them that he did.

35. Having heard the appellant at great length today, I cannot say there was anything in what she said that would even remotely cast doubt on any of Yam J's conclusions. The sad personal circumstances of the appellant, with which one cannot but sympathise, could not possibly justify any interference with Yam J's award. The appeal is accordingly dismissed.