CAI GUOPING v. YIM HOK WING AND OTHERS

CACV 96/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 96 OF 2015

(ON APPEAL FROM HCPI NO. 494 OF 2013)

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J U D G M E N T

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Hon Kwan JA:

1.  On 18 February 2015, Deputy High Court Judge Cooney, SC handed down judgment in a personal injuries case arising out of an accident on a construction site. Although he found in favour of the plaintiff that liability was established against all three defendants, he held there was contributory negligence at 50%. Damages assessed at $473,229 were reduced by half to $236,614, which was less than the award of employees compensation received by the plaintiff in the sum of $333,300. He therefore made no award even though liability was established. Judgment was entered against the plaintiff for the defendants and the plaintiff’s action was dismissed, with an order nisi there be no order as to costs.

2.  The plaintiff brought this appeal to challenge the finding of contributory negligence, the award of pre-trial loss of earnings, and the refusal to make any award for loss of earning capacity.  This is therefore an appeal against findings of fact and matters of discretionary exercise.

Background

3.  The relevant background matters may first be stated as follows.

4.  The accident on 5 January 2012 took place at a construction site of certain multi-storey buildings in Ma On Shan, New Territories.  The 3^rd defendant was the principal contractor, and it sub-contracted the work of installing precast concrete panels to the 2^nd defendant.  The plaintiff and the 1^st defendant were employees of the 2^nd defendant.  The plaintiff was a general labourer and the 1^st defendant operated the hoist involved in the accident.  The 1^st defendant, the plaintiff and the other workers engaged in transporting the panels were paid daily wages by the 2^nd defendant.  The 1^st defendant also entered into an agreement with the 2^nd defendant, undertaking to perform the service of moving the concrete panels with the hoist.  In the event the actual cost of installing the panels was lower than the cost as estimated by the 2^nd defendant, the difference would be paid to the 1^st defendant, who shared the profits with the plaintiff and the other co-workers.

5.  At the material time, the plaintiff, the 1^st defendant and their co-workers were engaged in transporting concrete panels from the ground floor to the 7^th floor of the building using the hoist.  The workers on the ground floor loaded the panels into the hoist and secured them by a rope.  The plaintiff and another worker named Ng untied the panels when the hoist reached the 7^th floor, and moved them to designated spots for assembly.  Each panel was 300 cm in height, 59 cm wide and 8 cm thick, weighing 170 kg.

6.  The base of the hoist was 1.3 m square with sides of 1.5 m high.  The front of the hoist could be opened to allow access.  To the top of each side was attached a vertical I-beam.  A third I-beam spanned horizontally between the vertical ones at a height of 2.1 m above the floor of the hoist.  The three I-beams formed a frame to which was attached a cable, by which the hoist was raised and lowered.  The hoist was enclosed in a metal cage, which ran from the ground floor to the top floor, forming a shaft.  A CCTV camera was attached to the horizontal I-beam.  It was pointed at the front of the hoist and linked to a monitor on the ground floor so it could be viewed by the hoist operator.

7.  When the plaintiff testified, he declined to confirm his signed witness statement upon which the statement of claim was based, in which it was pleaded that the hoist was transporting only one panel at the time.  Instead he gave an account that two panels were transported in the hoist, which agreed with the evidence given by the 1^st defendant, who saw the accident on the CCTV.  The 1^st defendant’s evidence was accepted by the judge.  According to him, the plaintiff was laying one concrete panel onto a trolley, and, as the plaintiff was doing so, the trolley moved toward the hoist, with the result that the bottom of the panel lying on the trolley hit the bottom of the panel resting against the back of the hoist at a slant, causing the latter panel to fall and strike the plaintiff.  The plaintiff fell and hit the right side of his head on the concrete floor slab.  The judge rejected the plaintiff’s evidence that the panel resting against the back of the hoist fell inexplicably.

8.  The plaintiff claimed it was only two days before the accident that the panels had begun to be transported in the hoist in pairs; before that, they were transported singly.  The 2^nd defendant’s foreman Chan Lim Yeung (“Chan”) denied that was the case, but the judge made no finding regarding this conflict.

The “correct method”

9.  The judge accepted the evidence of the defendants’ witnesses that the plaintiff was taught and trained in the defendants’ method of unloading and handling the panels, which was not followed by him and the co-worker Ng at the time of the accident.  The plaintiff’s evidence that he had never received any instruction on the defendants’ method was rejected.

10.  The “correct method” devised by the defendants involved untying the panels, then moving the first panel to one side of the hoist, which involved rotating the panel through 90 degrees.  Whilst the first panel was being moved by one worker, the other worker would tend to the second panel to ensure that it did not fall.  Once the first panel had been moved to the side, both workers would then carry the second panel and place it on a trolley.  The final action was to place the first panel onto the trolley.

11.  The judge also accepted Chan’s evidence that when he patrolled the site, he had seen the plaintiff using the “correct method”.

12.  Mr Albert Yau, who appeared for the plaintiff here and below, asserted that the “correct method” was unsafe, but the judge did not make such a finding. I will return to this.

The findings of liability against each defendant

13.  The bases on which the judge found each defendant liable were as follows.

14.  The 1^st defendant owed a common law duty of care to the plaintiff in that he was the head of a gang of workers which included the plaintiff.  He was responsible for making sure that the operation proceeded safely, that the load inside the hoist was properly secured, and he should eliminate unnecessary danger by limiting the number of panels transported at any one time to one.  The 1^st defendant was in breach of his common law duty of care because the panel resting against the back of the hoist was not secured, he did not limit the number of panels hoisted at any one time to one and he failed to conduct the hoisting operation safely.

15.  Further, the 1^st defendant was a contractor with direct control over construction work and had failed to discharge his obligations under section 38(1)(b) of the Construction Sites (Safety) Regulations, Cap 59I (“CSSR”) (to ensure that every part of any load raised or lowered by the hoist was adequately secured so as to prevent danger arising to persons as a result of the slipping or displacement of any part of the load) and section 38(1)(5) (any contractor who has direct control over any construction work which involves the use of a hoist shall ensure that neither loose material nor goods are carried on the platform of the hoist unless the platform is enclosed or other effective precautions have been taken to prevent the material or goods from falling from the platform).

16.  In respect of the 2^nd defendant, the judge recorded in §48 it was asserted on behalf of the plaintiff that the “correct method” was unsafe, and that the panels should have been transported singly or, if two were to be transported, each should be individually secured.

17.  As mentioned earlier, the judge did not make a finding that the “correct method” was unsafe.  Nor did he find liability on the basis that where two panels were transported, each should be individually secured[1].  In §49, the judge referred to Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 for the proposition that identifying an acceptable alternative system of work was not a pre-condition to finding that an employer failed to provide a safe system of work.  He then found liability established against the 2^nd defendant in §50:

“In my view, the 2^nd defendant did not provide a safe system of work to the plaintiff, its employee, and was in breach of its common law duty. Very heavy, large concrete panels were being transported in pairs, which required handling the panels in a confined space and handling one panel whilst the other was not secured. I find also that the 2^nd defendant failed to discharge its obligations under Regulation 38(1)(b) and 38(1)(5).”

18.  The 3^rd defendant was found liable on the basis that it was responsible for the site and the hoist pursuant to section 2(2) of the CSSR.

19.  In addition, each of the defendants was found liable under the Occupiers Liability Ordinance, Cap 314 as each had sufficient control over the premises, i.e. the hoist, to ensure that the plaintiff would be reasonably safe in using the hoist.  As the second panel was not secured in the hoist, they were in breach of this duty.

The finding of contributory negligence

20.  The judge dealt with the finding of contributory negligence in just one paragraph at §55:

“Nevertheless, the plaintiff increased the risk of injury by not following the correct method, which was demonstrated by the fact that the panel was brought down by being struck by the other panel. The plaintiff’s counsel submitted that there was no evidence showing whether it was the plaintiff or his co‑worker who caused the accident. I do not think that is determinative because the clear evidence is that the plaintiff and his co‑worker were jointly engaged in the unloading when the accident happened. I assess the plaintiff’s contributory negligence at 50%.”

The arguments on contributory negligence

21.  Mr Yau submitted on appeal no finding of contributory negligence should be made.  His fallback position was that the apportionment of 50% was plainly wrong and was outside the realm of reasonable disagreement.  His arguments ran along these lines.

22.  First and foremost, he submitted that the “correct method” was unsafe.  He emphasised that in carrying out this method, the space for manoeuvring the panels inside the hoist was limited, and this was exacerbated by the dimensions and the weight of the panels, making this a “pretty hazardous” operation and calling for “tricky and arduous manoeuvre by the worker in a confined environment”.  He contended that the “correct method” was far clumsier and no less dangerous than the actual method adopted by the plaintiff and Ng.  There were safer means to carry out the transporting and handling of the panels (such as by limiting the panels transported in the hoist to one at a time), and the adequacy or otherwise of the “correct method” should be judged by reference to the safer methods.  The plaintiff’s failure to follow the “correct method” – where the method was unsafe – could not, without more, be regarded as constituting contributory negligence.

23.  Mr Yau further submitted that if the system of work of the employer was found to be unsafe on the whole (and there is no respondent’s notice to challenge this finding in §50), it would be wrong as a matter of principle and intrinsically inconsistent to hold, in a situation other than failure to supervise, that the plaintiff’s failure to follow the “correct method” introduced by the employer as part of the system could be contributory negligence.

24.  In his fallback position, Mr Yau argued that the apportionment of 50% liability to the plaintiff was far too high and plainly wrong.  He contended that the judge must have ignored that the co-worker jointly engaged in the unloading with the plaintiff was also at fault or that he had wrongly attributed the co-worker’s share of the blame to the plaintiff, so that half of the blame would go to the plaintiff and Ng, and the other half would go to the defendants.  This would be giving effect to the doctrine of common employment, which has been abolished long ago by statute.

25.  Apart from this, in apportioning liability, the judge had failed to have regard to the respective share of blameworthiness.  Mr Yau relied on the dicta of Lord Greene MR and Goddard LJ in Hutchinson v London and North Eastern Railway Co [1942] 1 KB 481 at 485, 486 and 488, which were cited by the Court of Appeal in Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 at §§29 and 30.  The defendants had placed the plaintiff in a position of substantial hazard by omitting to take simple measures.  They were in breach of relevant provisions of the CSSR, which are designed to protect the safety of workmen engaged in a hoisting operation.  If a substantial share of the blame were attributed to the workmen because what they did was the very thing which the statutory duty of the employer was designed to prevent, the statutory regulations would be stripped of their effectiveness.  Mr Yau emphasised that the statutory provisions are designed to protect the workers as much from their own carelessness as from anything else, and that the moving and handling of the panels was hard, physical and repetitive work.  According to Chan, on each day more than 100 panels would be uploaded by the hoist, so every day the plaintiff would be doing the same movements in handling the panels for a hundred times[2].  The plaintiff should not be judged too harshly.

26.  Mr Yau submitted there was serious error and wrong application of principles, so the appeal court should interfere with the judge’s apportionment.  He said that a fair apportionment of liability should be in the region of 25%.

The decision on contributory negligence

27.  The submissions made to us that the “correct method” was unsafe were made to the judge as well.  The points made in Mr Yau’s submission were canvassed by him in his cross-examination of Chan.

28.  It was Chan’s evidence that the “correct method”, although cumbersome in a way, was a safe method, and had been used by the 2^nd defendant for almost ten years and was taught to the workers[3].  The hoist was enclosed on three sides and it was only when the gate at the front was opened that an unsecured panel could fall out[4].  If one of the panels had been moved to the side using the “correct method”, when the workers were placing the other panel onto the trolley, they would be backing out and getting further and further away from the hoist and the slanting angle of the panel being laid onto the trolley would have blocked the panel that was moved to the side from falling down completely, so the workers would not be in danger[5].  As for manoeuvring the panels in a confined space, Chan asserted there was sufficient space, and because it was a movement the workers frequently carried out, they had done so with great ease, all that was needed was sufficient strength[6].

29.  Having heard the evidence and submissions, the judge refrained from finding that the “correct method” was unsafe.  He did not find the “correct method” was no less dangerous than the actual method adopted by the plaintiff and Ng.  But neither did he endorse the “correct method” as a safe method.  All that the judge was prepared to find was that the 2^nd defendant did not provide a safe system of work in that “very heavy, large concrete panels were being transported in pairs, which required handling the panels in a confined space and handling one panel whilst the other was not secured.”  And he held that by not following the “correct method”, the plaintiff “increased the risk of injury” in that “the panel [which was unsecured and resting at the back of the hoist] was brought down by being struck by the other panel [which was loaded onto the trolley]”.

30.  It would be not right for the appeal court to make findings along the lines as asserted by Mr Yau when the trial judge had refrained from doing so and where the evidence is clearly not one way, as seen from the testimony of Chan.  Besides, this court does not have the full picture as we have been provided with just the transcript of Chan’s evidence.  We do not have the transcript of the testimony of the 1^st defendant.  The underlying premise of Mr Yau’s argument that it would not be right to find contributory negligence when the “correct method” not followed by the plaintiff was no less hazardous than the actual method is not made out.

31.  I do not think the judge’s finding of liability against the 2^nd defendant (that it did not provide a safe system of work) is intrinsically inconsistent with his holding of contributory negligence (that some blame should be attributed to the plaintiff in failing to follow the “correct method”).  As noted earlier, the judge did not endorse the “correct method” as a safe method.  Notwithstanding that, if that method had been followed, one of the panels would have been moved to one side so that even if the other panel had moved towards the hoist in the course of being loaded onto the trolley, the bottom of that other panel would not have struck the bottom of the unsecured panel causing it to fall out of the hoist and striking the plaintiff.  The judge was entitled to find that the plaintiff had “increased the risk of injury” by not following the “correct method”.

32.  As pointed out by Mr Gary Chung for the defendant, contributory negligence involves consideration of two elements: the causative potency of the acts and omission of each of the parties, and of their relative blameworthiness (Brown v Thompson [1968] 2 All E R 708 at 709G and 712H to I).  Given the finding that the plaintiff had increased the risk of injury, the judge was justified in holding there was contributory negligence. I would not interfere with that holding.

33.  The apportionment of 50% of the liability for contributory negligence calls for separate consideration.

34.  I can safely put to one side Mr Yau’s contention that the judge must have wrongly attributed the co-worker’s share of the blame to the plaintiff in apportioning liability at 50%.  It seems to me sheer speculation that the judge was attributing one half of the blame to the plaintiff and the co-worker and the other half to the defendants.  Besides, the judge was reminded by Mr Yau that to attribute the co-worker’s blame to the plaintiff would be tantamount to giving effect to the abolished doctrine of common employment.  I do not think this would have been overlooked by the judge.

35.  The other considerations advanced by Mr Yau to back up his submission that 50% contributory negligence was way too high and plainly wrong cannot be brushed aside so easily.  The factors he urged upon this court are valid considerations, and I do not think Mr Chung has a ready answer to them all.  The problem with the judge’s apportionment is that in attributing a significant part of the blame to the plaintiff, the judge had not given any or any proper explanation how he arrived at the assessment of 50%.  The appeal court does not know what factors he had taken into account, or what factors he had regarded as immaterial.  Had he explained his thinking process, showing what factors he had regarded as material and how he had balanced and weighed the factors he considered, I might have been less inclined to interfere with his apportionment.

36.  The appeal court does not interfere with an apportionment for contributory negligence save in exceptional circumstances, as this is a discretionary exercise and treated as a finding of fact, in respect of which the trial judge almost invariably has a considerable advantage, having heard the witnesses and made his evaluation of the nature of the dangers involved, as to which there may well be differences of opinion by different minds (Wishing Long Hong v Wong Kit Chun (2001) 4 HKCFAR 289 at 298B; Tsoi Yau Ya v Chan Kwok Hung & Anr, CACV 317/2002, 24 April 2003, at §8; Cheung Kai Chi v Chun Wo Contractors Ltd, at §§18 and 92).

37.  As Sir Thomas Eichelbaum put it at 298 of the Wishing Long Hong case, an appeal court should not interfere “unless the result is outside the limits reasonably available to the court below”.  I consider the judge’s assessment outside the reasonable limits, and unsupported by any cogent reason.  In assessing the degrees of the respective responsibility of the plaintiff and the defendants, it did not appear he had given consideration to any of the material factors as urged upon this court by Mr Yau.  The apportionment of equal liability cannot be supported in the circumstances.  I would set aside the judge’s apportionment and perform that exercise afresh.

38.  I take into consideration these matters as found by the judge and various non-controversial evidence.  These are the matters that would weigh against the defendants: that the defendants had not provided a safe system of work when quite simple measures could have been taken to prevent the risk arising to the workers handling the panels, such as by limiting the panels transported in the hoist to one at a time; that the “correct method”, although not found to be unsafe, was cumbersome and needed sufficient strength in manoeuvring the panels; that the plaintiff and the co-worker were engaged in performing hard, physical and repetitive work, moving up to 100 panels a day; and that the defendants were in breach of relevant regulations of the CSSR, which are designed to protect the workers as much from their carelessness as from anything else.  What would weigh against the plaintiff were these matters: that this was not a momentary lapse of attention but the plaintiff and his co-worker had made a conscious decision to depart from their instructions and not to follow the “correct method”; if they had followed the “correct method”, the risk of injury would have been reduced.

39.  Weighing these different considerations, I would arrive at 25% as a fair and equitable apportionment of contributory negligence.  I would allow the appeal by substituting the apportionment of contributory negligence of 50% with 25%.

40.  I turn to consider the appeal against quantum.  The only complaints are that the plaintiff should have been allowed a longer period of sick leave for pre-trial loss of earnings, and he should have received an award for loss of earning capacity.

The plaintiff’s injuries

41.  The plaintiff was aged 53 at the time of the accident.  He sustained multiple facial fractures being the right tripod, right orbital floor and right maxillary sinus.  Open reduction and internal fixation of his facial fractures was performed.  The multiple fractures of the right face accounted for the damage to his teeth and for a period impairment to his vision.  He was discharged from hospital after one week and reviewed in the out-patient clinic of the Prince of Wales Hospital.

42.  The plaintiff’s last consultation at the Prince of Wales Hospital was on 4 September 2012.  He defaulted follow-up treatment thereafter.  Instead, between October 2012 and January 2013, he attended the accident and emergency department of the Yan Chai Hospital on 19 occasions.  He also consulted a private orthopaedic surgeon Dr Lau and a general practitioner Dr Chow.  He was given sick leave certificates, initially by the Prince of Wales Hospital and from September 2012, by the Yan Chai Hospital and the private doctors.  Sick leave certificates were produced covering the period from 5 January 2012 to 1 May 2013.

43.  The Employees’ Compensation (Ordinary Assessment) Board assessed the plaintiff on four occasions in November and December 2012 and January 2013, and issued a certificate dated 8 February 2013 certifying the necessary periods of sick leave as from 5 January 2012 to 6 July 2012, from 9 July 2012 to 23 January 2013 and from 25 to 30 January 2013.  It certified the loss of earning capacity permanently caused by the injury at 3%.

44.  According to the joint medical report of the orthopaedic experts of the parties in April 2013, the experts agreed there was no active orthopaedic problem and further orthopaedic treatment was not required.  They also agreed, from an orthopaedic perspective, there is no physical hindrance to the plaintiff continuing with his pre-injury work as a construction site general labourer and the plaintiff does not have any rateable impairment or loss of earning capacity due to orthopaedic injuries.  The experts noted that the plaintiff was given sick leave certificates but opined that from an orthopaedic perspective, sick leave was not required.

45.  When the plaintiff testified, he complained of the following: a persistent “jerking” sensation, like an electric movement, at his right temporal region during the day and night, which caused insomnia; being able to feel the metal plate under his right eyebrow; right facial numbness; poorer vision; pain in his head brought on by changes in weather; and denture discomfort.

46.  The plaintiff claimed that as a result of the “jerking” sensation, he is unable to return to work as a general construction labourer or to undertake heavy labour, and he was only able to work as an odd-job labourer.

The findings on quantum

47.  The judge noted that the “jerking” sensation was described for the first time in the plaintiff’s testimony, and this symptom was not mentioned in any of the medical reports.  When the plaintiff was last seen at the Prince of Wales Hospital, no functional deficit was detected on physical examination.  The medical certificates of the Yan Chai Hospital recorded that the plaintiff complained of headache, right facial pain, residual pain, but in cross-examination he said he did not suffer from headache but a pain over the right temple when the weather changed.  The judge found there is no evidence that the symptom of the “jerking” sensation was caused by the accident and he declined to take it into account.

48.  Regarding the claim that plaintiff’s right eye is not as good as his left, no ophthalmological report was produced in support and he said in cross-examination he did not care much about it.  He was last seen by an ophthalmologist on 4 September 2012 and the doctor noted he failed to attend his next follow-up treatment.  The judge found the indications are that although the vision in the right eye may be worse than the left, there is no real problem.

49.  As for the other symptoms complained of, there are no expert reports to support his claim.  Although the medical certificates from the Yan Chai Hospital recorded the complaints of persistent headache, right facial pain and residual pain, the plaintiff’s evidence was that he stopped going to the doctor in the hospital because the doctor refused to give him any more sick leave certificates.

50.  The judge noted that the Medical Assessment Board had assessed his residual disability at 3%, but considered the plaintiff was exaggerating his disability.  No medical report was produced to support his claim that he cannot return to his former employment.  The judge noted that, when giving evidence and attending court, the plaintiff’s bearing and demeanour did not present as one with any significant problem.  He did not regard the plaintiff as having any significant residual complaints, complications or disability.  He found that the plaintiff was left with minimal residual symptoms, which did not prevent him from returning to his pre-accident work.

51.  Having considered that the plaintiff had a severe injury and is left with a metal plate in the right side of his skull but with minimal residual disability, the judge allowed $250,000 for pain and suffering and loss of amenities.  There is no appeal against this award.

52.  For pre-trial loss of earnings, the plaintiff claimed full loss of earnings from 5 January 2012 to the end of January 2013 and partial loss of earnings from February 2013 to the trial in January 2015.  The judge noted that the plaintiff was given sick leave by the Prince of Wales Hospital from 5 January 2012 to 6 July 2012, and thereafter he attended two private doctors, Dr Lau and Dr Chow.  The plaintiff said in cross-examination the reason why he changed to private doctors was because the doctor at the hospital told him he could no longer give the plaintiff a sick leave certificate.  When the plaintiff returned to the Prince of Wales Hospital on 4 September 2012, he was given three days sick leave and failed to keep his follow-up appointment.

53.  The judge declined to take into account the sick leave granted by the private doctors and by the Yan Chai Hospital for the reason that he preferred the position taken by the Prince of Wales Hospital that sick leave was no longer required.  Hence, the sick leave period the judge took into account was from 5 January 2012 to 6 July 2012 and from 4 to 6 September 2012.

54.  The judge assessed the plaintiff’s average pre-accident earnings at $21,471.50 a month.  On the basis that he should be awarded full loss of earnings for six months and five days, the judge awarded $132,349 for pre-trial loss of earnings.

55.  As the judge found that the plaintiff was not prevented from returning to his former employment, he declined to award partial loss of earnings for the pre-trial period, or make any award for loss of future earnings or loss of earning capacity.

The arguments on quantum

56.  Mr Yau did not maintain his position at trial that the pre-trial loss of earnings should be awarded on the basis of full and partial losses for the entire pre-trial period.  He only sought to argue that there should be a longer period of full loss of earnings, not just six months and five days.  And he submitted that an award of $100,000 should be made for loss of earning capacity, notwithstanding that the plaintiff is able to return to his pre-accident job, to reflect his handicap in the labour market.

57.  Mr Yau submitted that the appeal court should interfere with the judge’s findings and assessment because the judge had failed to take into account material evidence.  He said the judge had ignored the plaintiff’s complaint of right facial pain, which was recorded in the report of the Yan Chai Hospital, and the medical report of the Prince of Wales Hospital in September 2012 also mentioned persistent right facial infraorbital numbness.  The judge did not appear to have taken into consideration that the plaintiff has a metal plate placed under his eyebrow and this was a persistent complaint of the plaintiff.  The judge was wrong to take no account of the right facial pain in his assessment of the plaintiff’s fitness to work.  He should not have ignored this just because of the absence of an expert report.

58.  Mr Yau relied in particular on the certificate issued by the Medical Assessment Board, and submitted that the judge should have accorded proper respect to the certification of necessary sick leave and the assessment of permanent loss of earning capacity, as it was the doctors of the Prince of Wales Hospital who performed the assessment.  He submitted that the pre-trial loss should be extended to the period as certified by the Board, that is, up to 30 January 2013.  And in view of the 3% loss of earning capacity as certified, an award of loss of earning capacity should be made.

The decision on quantum

59.  It is well established that the appeal court would only interfere with the assessment of damages if the trial judge was found to be in serious error or acting upon a wrong principle of law or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate (Flint v Lovell [1935] 1 KB 354 at 359).

60.  I have set out the relevant evidence and the judge’s findings in some detail.  The matters urged upon us by Mr Yau were all mentioned in the judgment.  The judge was entitled to give them such weight as he thought fit.  And he was entitled to take other matters into consideration.

61.  Regarding the sick leave certificates issued by the Yan Chai Hospital and the private doctors and the certificate of the Medical Assessment Board, the judge decided to give them little or no weight in the circumstances of this case.  He had properly evaluated the available evidence.  I do not think he could be faulted for his approach.

62.  Evidence is required to establish how far the plaintiff’s earning capacity would be adversely affected by his disability (Chan Wai-tong & Anr v Li Ping-sum [1985] HKLR 176 at 183D).  The judge had found there was minimal residual disability resulting from the multiple facial fractures.  It was not established how the plaintiff’s earning capacity as a general construction labourer would be adversely affected by such residual disability.  The judge was not satisfied on the evidence before him that an award for loss of earning capacity was justified.

63.  I would dismiss the appeal against quantum.

The conclusion and orders

64.  I would allow the plaintiff’s appeal only to the extent of substituting the assessment of contributory negligence of 50% with 25%, so to that extent the judgment would be set aside.

65.  We were given to understand that the costs order nisi has been varied by the judge.  We have indicated at the conclusion of the hearing that we would deal with the costs of the trial and on appeal on paper.  Directions were given for the plaintiff to file his submissions on costs within seven days of the handing down of our judgment, the defendants are to file their submissions within seven days thereafter, and the plaintiff would have leave to file a reply if necessary within seven days thereafter.

Hon Barma JA:

66.  I agree with the judgment of Kwan JA.

Hon Macrae JA:

67.  I agree with the judgment of Kwan JA.