TJANG SIU THU v. PROFIELD CONSTRUCTION ENGINEERING LTD AND ANOTHER

CACV 156/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2013

(ON APPEAL FROM HCPI 149 OF 2011)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  This is an appeal from an assessment of damages by Master M Wong. The plaintiff’s common law damages claim arose from a workforce injury sustained by her in the course of her employment with the 1^st defendant.

2.  The plaintiff was employed by the 1^st defendant as a construction site general worker at a construction site located at Wan Chan Road, Tsing Shan Tsuen, Tuen Mun in the New Territories.  Her duties included, inter alia, transporting construction materials and removing rubbish and debris from the site.  The 2^nd defendant was the principal contractor at the site and the 1^st defendant was a sub-contractor of the 2^nd defendant.

3.  On 5 March 2008 the plaintiff, whilst working at the site, tripped over a metal pipe and fell into a hollow structure at the site, thereby sustaining the injuries which gave rise to her claim.

4.  On 2 March 2011 the plaintiff commenced the present proceedings and on 25 July 2012 obtained interlocutory judgment against the defendants.  As a consequence, the hearing before the Master was only for assessment of damages but prior to that hearing the plaintiff had already received a total of $637,510.67 in satisfaction of her claim under the Employees’ Compensation Ordinance, Cap 282 (“the ECO claim”).

5.  In his judgment the Master assessed the plaintiff’s damages at $502,432.08 and as this was less than the ECO claim the plaintiff received no compensation from these proceedings.  The Master also awarded costs to the defendants to be taxed on an indemnity basis.

6.  At the hearing of the appeal we dismissed the appeal with costs to the defendants and said we would give our reasons for doing so at a later date.  This we now do.  The defendants applied for their costs to be taxed on an indemnity basis and we reserved our decision on this application.

The hearing before the Master

7.  A number of matters were agreed by the parties on the first day of the hearing.  These were that pain, suffering and loss of amenities (“PLSA”) should be assessed at $220,000, special damages at $50,000 and future expenses at $1,000.  The plaintiff’s pre-accident basic monthly wages were agreed at $7,600 and if there should be an award for future loss of earnings it was agreed that a multiplier of 11 should be employed.

8.  The Master described the outstanding issues for his determination as being:

“(1) Did the plaintiff have any overtime payment as she alleges?

(2) What should be the appropriate sick leave period for the plaintiff?

(3) Is the plaintiff able to return to her pre-accident occupation after the expiration of the sick leave period?

(4) If the answer to question (3) is negative, what should be the appropriate multiplicand?

(5) If the answer to question (3) is positive, is she entitled to an award for loss of earning capacity?”

9.  The only witness who gave oral evidence at the hearing before the Master was the plaintiff and he was unimpressed with her as a witness, finding her to be totally unreliable and exaggerating her residual injuries.

10.  In respect of her claim that she had been promised overtime pay, the plaintiff said that in a conversation at the site with a person called “Lo Yu” she was told she would receive $100 per hour in overtime pay.  The Master found that there was no evidence to support the plaintiff’s assertion to this entitlement.  The record that the plaintiff herself made of the number of hours of overtime that she worked she said she discarded at the end of 2008FN. Because normal working hours were 8am to 6pm the site office where workers clocked in and out was closed before the plaintiff could clock out and so the plaintiff did not believe the defendants would have any record of her overtime. 

11.  The plaintiff conceded that despite working overtime she had not once been paid for it and claimed that it was part of her agreement with Lo Yu that she would be paid such overtime as was due to her after construction work at the site was completed.  The Master noted that no such entitlement had been part of the plaintiff’s claim under the ECO.  The Master concluded that he could not be satisfied on the balance of probabilities that the plaintiff had an average monthly overtime payment of $1,729.10.

12.  The plaintiff’s counsel at trial and on appeal was Mr Patrick Lim and he contended both before the Master and this court that the Master should have inferred from the failure of the defendants to call the person Lo Yu that the testimony of this person would have confirmed that the plaintiff had been promised overtime.  This contention was rejected by the Master.

13.  In respect of the second issue of the appropriate sick leave period the judge examined the medical evidence and concluded that the plaintiff’s sick leave period should not extend beyond 5 March 2009 when the Orthopedic Department of Princess Margaret Hospital refused to grant her any further sick leave.  In coming to this conclusion he again found that the plaintiff had exaggerated her medical condition.

14.  On the question of whether the plaintiff could return to her pre-accident employment the Master again relied on the medical evidence rather than the plaintiff’s assertions as to the seriousness of her medical condition.  The judge accepted that the plaintiff would not be able to perform the full duties of her pre-accident employment as she still suffered from mild lower back pain which would prevent her from lifting heavy weights.  The Master also accepted that because she would be limited in what she could do, prospective employers would likely be reluctant to employ her.  But the Master found that the plaintiff was still capable of working in jobs that placed less physical demands on her back. Consequently, the Master answered the question of whether the plaintiff was able to return to her pre-accident occupation after the expiration of her sick leave in the negative.

15.  The Master then turned to the question of what should be the appropriate multiplicand.  Mr Lim claimed that the plaintiff was entitled to full loss of earnings and argued against the suggestion that the Master should adopt the salary of a dishwasher which, according to government statistics was $6,871 per month.

16.  The Master noted that on the plaintiff’s own evidence she had not always been a construction site worker and had previously worked as a packaging worker in a garment factory, as a waitress in a restaurant and as a cleaner. He concluded that “with her past working experience, there is no reason why she cannot work or cannot be employed as packaging worker, waitress or cleaner again.”

17.  There was no government statistic on the pay received by a cleaner but the Master reasoned that if she could work as a cleaner then she should be able to work as a dishwasher for which there was evidence of monthly pay.  Relying on the government statistic as to the monthly pay of a dishwasher the Master calculated the difference between that figure, $6,871, and her monthly pay at the construction site $7,600 and arrived at a multiplicand of $729.

18.  Using this multiplicand he then assessed pre-trial loss of earnings, inclusive of MPF, at $130,392.68.  This amount was calculated from the end of the sick leave period, 6 March 2009, to the date of judgment.

19.  The Master then turned to future loss of earnings and using the same multiplicand of $729 and the agreed multiplier of 11 he assessed the plaintiff’s damages under this head at $101,039.40.

20.  When the Master came to address the plaintiff’s claim for loss of earning capacity he noted that it was “to cover the risk that, at some future date during the plaintiff’s working life, she will lose her employment and will then suffer financial loss because of her disadvantage in the labour market.” However he went on to note that even if there was such a risk the plaintiff was only entitled to a separate and additional award under this head to the extent that this loss had not been reflected in the award for loss of future earnings.

21.  As a matter of fact the Master found that even though the plaintiff was prevented from returning to her former employment, there was no evidence to suggest that her mild back pain would prevent her from obtaining employment in the alternative areas he had previously mentioned.  Consequently, he found that the plaintiff’s loss of earning capacity was subsumed in his award for loss of future earnings.

22.  His award of total damages of $502,432.08 was thus made up of the following elements:

(i)	PLSA	$220,000
(ii)	Pre-trial loss of earnings	$130,392.68
(iii)	Future loss of earnings	$101,039.40
(iv)	Special damages	$50,000
(v)	Future expenses	$1,000
	Total Damages	$502,432.08
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The grounds of appeal

23.  In her grounds of appeal the plaintiff complains firstly, that the judge erred in not making an award for loss of overtime pay.

24.  Secondly, she says that he erred in not awarding damages for loss of earning capacity.

25.  Thirdly, she says that she should receive an additional award for partial loss of earnings on the basis that she could only reasonably be expected to work 23 days a month. 

Discussion

26.  In support of the plaintiff’s complaint that the judge erred in not awarding damages that took account of the plaintiff’s overtime entitlement, Mr Lim repeats his argument that, based on legal authority, the Master erred by failing to find that by her own evidence the plaintiff had established a prima facie case that she had an entitlement to overtime pursuant to her agreement with Lo Yu and that in consequence of the plaintiff so doing the Master should have drawn an inference favourable to the plaintiff from the failure of the defendant to call Lo Yu.

27.  Mr Lim relies on the English Court of Appeal decision in Wisniewski v Central Manchester Health Authority [1998] PIQR 324.  At page 340 Lord Justice Brooke said he derived the following principles from his examination of the case law:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn.  If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

28.  In the application of these principles he relies for further support on the comment by Lord Justice Brown in Benham Limited v Kythira Investments Ltd [2003] EWCA Civ 1794 at paragraph 30 when he said of the position where the defendant elects to call no evidence:  

“… the only issue then is whether the claimant has established his claim on the balance of probabilities. But it must be recognized that he may have done so by establishing no more than a weak prima facie case which has then been strengthened to the necessary standard of proof by the adverse inferences to be drawn from the defendant’s election. Such adverse inferences can in other words tip the balance of probability in the claimant’s favour.”

29.  For an illustration of these principles Mr Lim refers us to the decision of Mr Justice Norris in Mark Forstater Productions Limited v Python (Monty) Pictures Ltd [2013] EWHC 1873.  Prior to quoting the Wisniewski principles Mr Justice Norris said:

“Of itself, the failure by a defendant to call a witness cannot prove a claimant’s case. The claimant must establish a prima facie case, capable of being displaced: if that is done then it is a matter of inference (not a matter of legal presumption) that the absence of the evidence is to be accounted for by the fact that if adduced it would not have been strong enough to displace the prima facie case.”

30.  In applying these principles to the facts before him Mr Justice Norris said:

“a) Mr Forstater’s oral evidence was capable of belief, though not convincingly strong.

b) That evidence would receive corroboration from the invoices and from the 1977 correspondence (unless those matters are capable of explanation).

c) The person best able to explain the conduct of PMP in paying the invoices (and why that was treated as unremarkable) and in refusing to treat Mr Forstater in a special way in relation to the new music and publishing companies (on the ground that he was already entitled to a one seventh share of the Top Half) was Anne Henshaw.

d) When the issue arose in 2005 (after the acrimonious split) Anne Henshaw was prepared to accept as possible Mr Saunders’ speculative account of why Mr Forstater was in fact paid a one seventh share of the Top Half.

e) Anne Henshaw retained close personal contacts with Michael Palin and with Terry Jones (even though she had years ago fallen out with the other Pythons): she knew of the dispute and was contactable, but was not called.

f) I may at the least infer that Anne Henshaw had no evidence that she could offer or which PMP wished to adduce to displace the inferences that might plainly be drawn from the terms of the invoices and the fact of their payment and the terms of the 1977 and 1979 correspondence.

g) This undoubtedly strengthens Mr Forstater’s case because it means that that subsequent conduct can be treated as strongly corroborative of his oral account.

h) The failure to call her also means that there is no evidence-based challenge to Mr Forstater’s assertion that he was told by Anne Henshaw that his request for a one seventh share of the Top Half had been approved by the Pythons; and that also strengthens his case.” (Emphasis added)

It is apparent from (a) and (b) alone that the primary evidence from which the inference was to be drawn was both capable of belief and corroborated by documentary records.

31.  In Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd, CACV 90, 91, 93, 94, 95 and 96/2012, unreported, 17 September 2013 this court referred to the Wisniewski principles.  At paragraph 107 the court quoted a commentary on the principles by Lord Sumption in Prest v Petrodel Resources Ltd [2013] UKSC 34 at paragraph 44 where he said:

“There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it.”

32.  At paragraph 111 of its judgment the Court of Appeal relied on this statement in rejecting a contention by the defendants that an adverse inference should be drawn against the plaintiff.

33.  The following propositions can be derived from the case law:

(i) the Wisniewski principles do not constitute a presumption; consequently, the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party;

(ii) the Wisniewski principles concern the drawing of inferences and whether any inference is drawn will depend upon the quality of the primary facts on which the inference is based; this is necessarily a fact sensitive matter and will vary from case to case;

(iii) the primary facts must allow of the inference to be drawn in the sense that the inference logically flows from those facts;

(iv) in the circumstances of the case the judge must be persuaded that it is appropriate to draw the inference; and

(v) one circumstance where it will not be appropriate to draw the inference is where there is an explanation for the party’s failure to call the witness.

34.  One of the relevant circumstances in the present case is that the judge was dealing with a bare assertion from a plaintiff whom he regarded as totally unreliable as a witness and who was prone to exaggerating the seriousness of her medical condition.  This is an assessment of the witness that the judge was perfectly entitled to make and his assessment that the plaintiff was lacking in credibility and that he could not rely on her was not challenged on appeal.  Put simply, the witness who was the source of the assertion was not capable of belief.

35.  A second relevant circumstance of this case was that the plaintiff’s claim was unsupported by any other evidence and no records were produced by her in support of her claim that she was entitled to overtime.  Yet another circumstance is that the plaintiff could be said to be contradicted by her own evidence in that she was claiming she had worked 86 hours overtime from November 2007 to March 2008 but had never been paid for any of it.  This anomaly the plaintiff sought to explain away by claiming that the agreement she had with Lo Yu was that she would be paid the overtime, not monthly, but at an uncertain date in the future when the work at the construction site was finished.  This is an explanation which is itself inherently incredible.  Other contradictions were that, as the Master noted, the plaintiff had not asserted an entitlement to overtime pay when she made her ECO claim and notwithstanding that she realised her employer would have no record of the number of hours overtime she worked, she discarded her only record of those hours.

36.  Thus, the Master was faced with a bare assertion made by an unreliable witness supported by explanations which were inherently incredible and contradicted by the plaintiff’s own conduct.  These are all circumstances relevant to whether any adverse inference should be drawn against the defendant.  Mr Lim seeks to make use of the Wisniewski principles to transform an unbelievable witness making an unbelievable claim into a proven claim.  The Wisniewski principles were never intended to be used in this way.  The Master was entitled to decide that in the light of these circumstances it was not a proper case for the drawing of an adverse inference.  There is no merit in the first ground of appeal.

37.  We also find no merit in the second ground of appeal which complains of the Master’s failure to award damages for loss of earning capacity.  With this head of damages the issue is not whether there is an evidential basis for it and whether the plaintiff was otherwise entitled to it, but rather whether she was already being compensated for it in the award for loss of future earnings.  The judge accepted the medical evidence and accepted that as a result of her condition she could not, in reality, return to her previous employment.  This caused her a loss of earnings as the alternative forms of employment would not remunerate her as much as her construction site work.  But this loss of earnings was reflected in the multiplicand employed by the Master in calculating her loss of future earnings. To award her a further sum under the head of loss of earning capacity would compensate her twice for the same loss.  There is no error of law by the Master who has correctly applied legal principle in concluding that this head of claim was subsumed into the claim for loss of future earnings and to refuse to make a separate award for it.

38.  The third ground of appeal complains that the Master should have found that the plaintiff’s lower back pain would prevent her from working 26 days a month and that she would only be capable of working 23 days per month.  This was not a point taken before the Master.  There is no medical evidence to support this claim and the plaintiff asks that her inability to work beyond 23 days per month should be inferred from the fact of her residual back pain.  The medical evidence is only that her mild back pain might limit what employment duties she could perform but would not otherwise impact on her ability to work.  In fact in their joint Medical Assessment and Report, both doctors who examined the plaintiff found her to be exaggerating her medical condition and concluded that she was only suffering from a mild degree of back pain which would only cause a mild reduction in work capacity.  To accede to the plaintiff’s invitation would require us to accept the plaintiff’s evidence in preference to the medical evidence which would be contrary to the approach adopted by the Master – an approach which was founded upon his unchallenged assessment of the plaintiff’s credibility. There is no merit in this ground of appeal. 

Costs

39.  The defendants ask that their costs be taxed on an indemnity basis.  As is apparent from these Reasons for Judgment, we found no merit in any of the grounds of appeal.  Indeed, we felt no need to even call upon the defendant’s counsel to respond to Mr Lim’s submissions.  The plaintiff was appealing an assessment that was just over $135,000 less than her ECO award.  The first ground of appeal was an artificial attempt to employ legal principle to circumvent unfavourable findings of fact and a wholly unfavourable assessment of the plaintiff’s credibility.  The second ground of appeal was groundless. The third ground of appeal sought to raise a new point not taken before the Master and would have required, for its success, that this court adopt a different approach from that of the Master based upon a different view of the plaintiff’s credibility. 

40.  After the hearing of the appeal the solicitors for the defendants wrote to the court and brought to our attention that prior to the hearing of the appeal the defendants had made a written Sanctioned Offer offering the plaintiff the opportunity to discontinue the appeal with no order as to costs.  This offer was made on 17 July 2014 and lapsed on 14 August 2014.  The defendants, in reliance upon this offer, apply for the costs of the appeal from 15 August 2014 to be taxed on an indemnity basis. Given the wholly unmeritorious nature of the appeal and the existence of the Sanctioned Offer we are of the view that this is an appropriate case for the costs of the appeal to be awarded to the defendants and from the 15 August 2014 to be taxed on an indemnity basis.  

Conclusion

41.  For these reasons we dismissed this appeal.  We make a costs order that the defendants be awarded their costs and from 15 August 2014 for those costs to be taxed on an indemnity basis and the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.