LIU CHUN KOW JOE v. LEE SAU WING

CACV 304/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 304 OF 2007

(ON APPEAL FROM HCPI 399 OF 2001)

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1. The defendant applies for leave to appeal to the Court of Final Appeal against our judgment of 16 April 2008.

2. The issue is in respect of the award for loss of benefit on ‘day-off-in lieu’ and ‘vacation leave’ for the total sum of $94,858.00. 

3. The defendant said that this issue involves question of great general public importance because

1)   it is a novel point which is clearly arguable;

2)   the point will arise in every single personal injury claim involving a wage earner who has leave entitlement; and

3)   such inflation in the level of award is a genuine concern to the insurance industry.

4. We disagree.  The decision is fact specific based on a plaintiff who is a civil servant and who had conducted his affairs in the way as disclosed in his evidence.  There is no indication that other injured litigants would also conduct their affairs in such a way or would be permitted by their employer to do so.  When it is said that the point is a new one and that the insurance industry is concerned about the plaintiff inflating his claim in this manner, it still chooses to ignore the fact that as a result of the defendant’s wrongful act the plaintiff had lost an actual benefit which is measurable by reference to his income.  This clearly come within the recognised head of recoverable loss, see Kemp & Kemp Quantum of Damages, Para. 4─001.  

5. The application is accordingly refused with costs to the plaintiff.