YEUNG CHEUNG CHUN v. WING SHING CAISSON & FOUNDATION LTD AND ANOTHER

CACV 39/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 39 OF 2015

(ON APPEAL FROM HCPI NO. 808 OF 2012)

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REASONS FOR JUDGMENT

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

1.  This is an appeal against the quantum of damages in a personal injuries action. The judgment was given by Deputy High Court Judge Burrell on 30 January 2015. After finding the 1^st and 2^nd defendants liable to the plaintiff for failing to provide a sufficiently safe system or safe place of work and there was no contributory negligence, the judge assessed damages for the plaintiff in the total sum of $672,846, made up of these items:

(a)	Pain and suffering and loss of amenities	$200,000
(b)	Sick leave	$235,846
(c)	Loss of earnings	$192,000
(d)	Loss of future earning capacity	$40,000
(e)	Special damages	$5,000
	Total:	$672,846 plus interest

2.  The plaintiff’s appeal is against the loss of earnings claim in (c).

3.  At the conclusion of the hearing, we dismissed the appeal with costs to the defendants.  These are the reasons for our judgment.

The injuries, treatment and disabilities

4.  The plaintiff was aged 36 at the time of the accident on 28 October 2009.  He was employed by the 1^st defendant as a general labourer on a construction site and assigned the duties of a drilling machine operator assistant.  He fell from an iBeam of two feet high and sustained a fractured left wrist as he attempted to break his fall.  He had a fracture of the distal radius.  He is right handed.

5.  The plaintiff was given a left upper limb cast and discharged from hospital the same day.  The plaster cast was removed five weeks later.  He was referred to physiotherapy and occupational therapy for rehabilitation, which went on from December 2009 to October 2010.  He reported 80% subjective improvement during physiotherapy in March 2010 and 85% functional return of his left hand and upper limb lifting capacity during occupational therapy in August and October 2010.  He was given sick leave continuously for 395 days to November 2010 and thereafter intermittently for 92 days up to June 2011.

6.  In the joint medical report dated 11 May 2012, the orthopaedic experts (Dr Lam Kwong Chin for the defence and Dr Fu Wai Kee for the plaintiff) agreed that the fracture had healed in “good bony alignment” and the plaintiff had reached “maximal medical improvement”.  The plaintiff had thinner left forearm muscles, which was compatible with under usage after the injury.  The wrist motion was overall good, with 5 to 10 degrees lag in motion.  He had satisfactory power in the left upper arm, though weaker than the right side.  The experts agreed that the injury would have “mild permanent adverse effect” on his activities of daily living.

7.  Dr Lam opined that the plaintiff should be able to return to his pre-injury work as a construction site general labourer.  He might have some reduction in endurance due to the residual limb symptoms but this would improve gradually with time.  Dr Lam gave a 2% impairment of the upper extremity or 1% impairment of the whole person and assessed the loss of earning capacity at 1%.

8.  Dr Fu opined that as the pre-accident job required heavy manual exertion in both upper limbs, in view of the plaintiff’s current condition he would have difficulty in performing those kinds of tasks.  He should shift to lighter duties such as security guard or gas station attendant.  Dr Fu was of the opinion that the whole person impairment and loss of earning capacity should both be 4%.

9.  The medical experts were not called to give evidence at the trial.  For reasons which will become apparent, the judge did not find it necessary to resolve the difference in the expert opinion whether the plaintiff should be able to resume working as a general labourer on a construction site or whether he could only take up lighter duties in a different field of work.  As the judge remarked, the only real testimony on quantum came from the plaintiff himself.

The plaintiff’s employment history before and after the accident

10.  The plaintiff had been working in the textile industry in Hong Kong for some twenty years until May 2009.  Four months before the accident, he left the textile industry and started to work for the 1^st defendant as a probationary construction labourer.  As mentioned, he was in his mid thirties.  He was put to work as a drilling machine operator assistant and had been working as such up to the time of the accident.  His average monthly earnings with overtime pay exceeded $14,000.

11.  After the accident in October 2009, he was given continuous sick leave up to November 2010.  Between 26 November 2010 and 8 March 2011, he returned to work for the 1^st defendant intermittently and was given sick leave on and off during this first period of his returning to work.

12.  On 7 March 2011, the plaintiff commenced proceedings for employees’ compensation.  His claim was settled on 27 June 2011.

13.  The plaintiff then returned to work for the 1^st defendant for a second time on 17 June 2011.  On 20 December 2011, he gave verbal notice of resignation to his foreman, Chan Dor Shou.  His resignation was accepted by his employer.  The plaintiff worked for the 1^st defendant up to 31 January 2012.

14.  On 31 January 2012, he issued the writ in this action claiming damages at common law against the defendants.

15.  In February 2012, he found a job in a restaurant as a food delivery worker.  From March to September 2012, he worked in the textile industry, restaurants and supermarkets.  From November 2012 onwards, he took up jobs in restaurants and supermarkets.  He has not returned to work in the construction industry.  At the time of the trial in January 2015, he worked as a waiter earning $9,000 to $10,000 a month.

The loss of earnings claim

16.  The plaintiff mounted a substantial loss of earnings claim of over $6 million on the basis that he had to leave the 1^st defendant’s employment because he was and is unable to perform the same duties as he had done before the accident owing to his injuries and disabilities and that this loss would be for the rest of his working life.

17.  On appeal, his counsel, Mr Charles Wong, who appeared for him throughout, advanced the loss of earnings claim on two alternative bases.  The preferred basis is the quantification based on the difference of wages between the earnings of a construction labourer assigned to work as a drilling machine operator assistant and the earnings of a worker doing the kinds of lighter jobs the plaintiff had been engaged in after he left the 1^st defendant’s employment.  Mr Wong put forward the calculations of retiring at 65 years old and 60 years old.

18.  The fallback position of the plaintiff is to claim loss of earnings on the basis that he should have been able to continue working as a general labourer on a construction site but unable to resume his pre-accident duties as a drilling machine operator assistant.  The difference in earnings was about $4,000 a month, which is the multiplicand used by the judge in the different approach adopted by the judge for the loss of earnings claim.  On the basis that this loss would last for the rest of the plaintiff’s working life, Mr Wong calculated the earnings claim for retiring at the ages of 65 and 60 in the region of $1 million.

19.  The defendant’s position at trial was that even on a full liability basis, nothing would be due to the plaintiff after giving credit for the employee’s compensation payment.  There should be no award for future loss of earnings if the plaintiff chose to leave when he could have stayed, and he took a chance on his future earnings by resigning but it did not work out.  The judge did not accept the defendant’s position either.

The judge’s findings and approach

20.  The judge made these pertinent findings.

21.  The judge was unable to rely on the plaintiff’s evidence on matters surrounding the reasons for resigning his job in December 2011, which seriously impacted on his entitlement to the earnings claim.  In brief, the plaintiff contended that his resignation was due to a combination of factors – that he felt uncomfortable being paid the same as general labourers when only carrying out lighter duties, he found that his wrist was painful when carrying out some of those duties, and he received unfair treatment by fellow workers who were performing more arduous work than he for the same or similar pay, such as being teased, humiliated and cold-shouldered.  The judge found this part of his evidence unimpressive[1].

22.  The judge found the plaintiff had exaggerated his evidence on the reasons for his resignation and did not think any ground for constructive dismissal was made out.  He had regard to the evidence adduced by the defendants, which he summarised in §38:

“On the other hand the defence evidence suggested that he was not happy in the construction industry, he preferred the textile industry where he had worked for the first 20 years of his working life since coming to Hong Kong. He believed that he would earn as much or more by returning to the textile industry. Moreover, the defence submit that it was at least suspicious that he left at about the time his compensation claims began and had he remained with the 1^st defendant his future loss claim would have been minimal due to the generous treatment he had received from them. I also accepted the evidence from his foreman at the material time that he told the plaintiff that his job would still be available for him in the future should he wish to return. Whilst it is true that his foreman may not have had the authority to say this, he would have carried some influence should the matter have arisen in the future and, in any event, it illustrates the 1^st defendant’s good will towards the plaintiff.”

23.  The judge was satisfied that the 1^st defendant treated the plaintiff well and fairly following his return to work.  It was accepted that some aspects of his pre-injury work put a strain on his left wrist which he found painful to cope with.  He was given lighter duties without any deduction in pay, although overtime opportunities might have been reduced as a result.  He also received a pay rise during this period.  The judge refused to accept the plaintiff’s suggestions that even those lighter duties were sometimes too difficult for him, having considered the testimony from both sides[2].  The judge described the work scenario from 8 June 2011 in this way:

“He was not expected to do some of the heavy labour that he had done before the accident; he was given manageable lighter duties; the 1^st defendant was willing to keep the same pay level which they would have continued to do had he not retired; his job was not in jeopardy and his future employment was secure.”

24.  The judge found that the dominant reason for the plaintiff’s resignation was a desire to return to the textile industry and forego a future in the construction industry.  He regarded it noteworthy that in June 2012 the plaintiff’s Construction Workers Registration Card expired and he did not renew it[3].  But as things turned out, the plaintiff’s earnings after February 2012 dropped significantly.  The judge rejected the earnings claim of over $6 million as “wholly unrealistic”, bearing in mind that “the plaintiff had worked in the [construction] industry for four months (less than 2% of his working life), suffered a relatively minor injury which healed well and was treated with fairness by his employer thereafter, it is fanciful to think that such a large sum is the proper level of damages”[4].  In view of his finding on the dominant reason for the plaintiff’s resignation, the judge did not find it necessary to resolve the conflict between Dr Lam and Dr Fu whether the plaintiff should be able to resume working as a general worker on a construction site.

25.  The judge recognised that the plaintiff was nonetheless “slightly worse off” in his revised duties when he returned to work for the 1^st defendant for the second time in June 2011.  He had regard to the average wages of two comparable workers of the 1^st defendant.  In round terms, he found the plaintiff $3,500 a month worse off because of the accident[5].

26.  The judge also accepted it is fair to say that the plaintiff’s negative attitude to his work was, in part, due to his accident.  He took the view that had the plaintiff not sustained his injury, it is more likely than not the plaintiff would have stayed in the construction industry longer than he did[6].  In other words, the injuries and disability in the accident accelerated the plaintiff’s desire to return to the textile industry and forego a future in the construction industry.

27.  In the unusual circumstances on the factual findings particularly regarding the voluntary resignation, the judge considered the fair approach is to assess the likely length of the plaintiff’s employment as a construction labourer had he not been injured and after the expiration of that theoretical period the 1^st defendant’s liability should stop[7].  During the period the plaintiff would have continued to work as such, the plaintiff should be compensated for his loss for being “slightly worse off” in his revised duties as found by the judge.

28.  In deciding on the likely length of employment as a construction worker but for the injuries, the judge took into account these factors: the previous employment history, the plaintiff’s age, his experience in the job, his demeanour as a witness, and the average length of time comparable workers had worked for the 1^st defendant.  The evidence regarding the last factor suggested a period of about three years.  The judge decided on a period of four years from the plaintiff’s resumption of full time work in June 2011 as the basis for a fair calculation of damages on the loss of earnings claim.  He allowed a slight increase from $3,500 a month to $4,000 to allow for a modest widening of the difference over the ensuing years.  The figure he arrived at for this award is $192,000[8].

The plaintiff’s arguments on appeal

29.  This appeal is essentially against the finding of fact that the dominant reason for the plaintiff resigning his job with the 1^st defendant was a desire to return to the textile industry and forego a future in the construction industry.  Mr Wong submitted there is no evidential basis to support this finding and the finding is unreasonable.

30.  He subjected the evidence summarised by the judge in §38 as quoted earlier to a close scrutiny, and contended there is no evidential basis for these matters set out in that paragraph, namely, that the plaintiff believed he would earn as much or more by returning to the textile industry; that it was at least suspicious the plaintiff left his employment with the 1^st defendant at about the time his compensation claims began.  He argued that the judge should not have regarded it noteworthy the plaintiff failed to renew his Construction Workers Registration Card.

31.  Mr Wong complained that the judge had overlooked evidence which was not controversial in finding that the plaintiff would have left the construction industry after a few years even if he had not been injured – that the plaintiff’s earnings with the 1^st defendant was 15.37% more than his previous earnings in the textile industry; that the plaintiff had earned more than the two comparable workers during the four months before his accident, hence showing he was hardworking.

32.  He attacked the judge’s finding that the plaintiff’s resignation was voluntary notwithstanding that the plaintiff was treated well and fairly following his return to work and that his job was not in jeopardy and his future employment was secure.  He submitted that the judge should have found on the evidence that the plaintiff had a well grounded belief he would not be able to stay on with the 1^st defendant as his prospects of being transferred to other sites of the 1^st defendant or to work for other contractors were “significantly restricted”, the 1^st defendant did not increase his salary in line with the other workers, and he was marginalised by his superiors and co-workers.

33.  Mr Wong contended that the judge should have found that the plaintiff could not even discharge the duties of a general construction site worker, let alone his pre-accident duties as assistant to a drilling machine operator, in light of the plaintiff’s evidence and the medical evidence.

34.  He attacked the judge’s approach of using four years as the likely period the plaintiff would have remained in the construction industry but for the accident as having no evidential basis.  He submitted that this “halfway unconventional approach” for awarding loss is inconsistent with the finding that the dominant reason for the resignation was a desire to return to the textile industry and forego a future in the construction industry.

Discussion of the arguments

35.  The starting point must be the proper approach of an appeal court in challenging a finding of fact.  It is sufficient to refer to the recent decision of China Gold Finance Limited v CIL Holdings Limited & Ors, CACV 11/2015, 27 November 2015, §§11 to 24 for these pertinent propositions:

(1)  It is not appropriate for the Court of Appeal to take over the role of the trial judge as the primary assessor of the evidence.  The appeal court does not and should not embark on the role of re-assessment of the evidence in the way Mr Wong has invited us to do.

(2)  It is incumbent on the appellant to identify palpable errors in the judge’s assessment of the evidence that are sufficiently material to undermine his conclusions.  The assertions that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below or that the judge had overlooked certain evidence because it was not mentioned in the judgment are not errors that come within that category.  Unless there is compelling evidence to the contrary, an appeal court is bound to assume that the trial judge has taken the whole of the evidence into his consideration.

(3)  In making findings of fact, judges can reasonably reach different conclusions from one another.  The appeal court can only intervene when it is satisfied that the finding of the primary judge is “plainly wrong”.  This phrase “plainly wrong” directs the appeal court to consider whether it was permissible for the trial judge to make the findings of fact he did in the face of the evidence as a whole, in the knowledge that the appeal court only has the printed record of the evidence and whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence.

(4)  A finding of fact made by the trial judge is an inherently incomplete statement of the impression upon him of the evidence.

(5)  There is a greater appreciation of the need to exercise restraint in respect of findings of secondary fact based on inferences drawn from findings of primary fact.

36.  Guided by the above propositions, we turn to consider the plaintiff’s arguments on appeal.

37.  The contention that underpinned the plaintiff’s earnings claim is that he resigned from his employment with the 1^st defendant because he was unable to cope with the demands of his job as a general worker on a construction site on account of his injuries.  It was urged on us that a finding to this effect should be made in light of the medical evidence and the plaintiff’s own evidence.  Mr Wong emphasised the expert opinion of Dr Fu who opined that the plaintiff should shift to lighter jobs such as security guard or gas station attendant and that the plaintiff reported 80% subjective improvement in physiotherapy and 85% functional return of his left hand lifting capacity in occupational therapy.

38.  We do not think we should make this finding.  The evidence on this is not one way.  The judge had declined to find in favour of the plaintiff in light of the whole of the evidence.  As mentioned earlier, he did not resolve the conflict in this respect in the evidence of Dr Fu and Dr Lam.  The judge also refused to accept the plaintiff’s evidence that the lighter duties assigned to him by his superiors were sometimes too difficult for him.  Mr Victor Gidwani, who appeared with Ms Jenny Ngai for the defendants, drew our attention to other parts of the medical evidence which appeared to support the opposite contention.  For instance, it was stated in the occupational therapy report of Kwong Wah Hospital in July 2011 that “based on the final work assessment result, [the plaintiff’s] physical capacity matched with the job demands marginally”.  The therapist also recorded that the plaintiff “planned to explore a new job in the future”.

39.  In support of the contentions that the plaintiff was marginalised by his superiors and co-workers and felt demoralised and the plaintiff believed he would not be able to stay on with the 1^st defendant, Mr Wong referred to those parts of the evidence of the plaintiff and the foreman Chan Dor Shou which appeared to support these claims.  However, the judge had made findings to the contrary.  He took a poor view of the plaintiff’s evidence in this respect.  He found positively that the plaintiff’s job was not in jeopardy and his future employment with the 1^st defendant was secure.  He is entitled to make these findings on the evidence before him.  We could discern no palpable error of the judge in doing so.  Whether another judge would have taken a different view is beside the point.

40.  Nor is it appropriate to levy criticism on the judge’s assessment of the importance of the plaintiff failing to renew his Construction Workers Registration Card, this is a matter of weight for the trial judge.

41.  On the facts found by him, the judge is fully entitled to come to the view that the plaintiff’s resignation in December 2011 was entirely voluntary.  We turn to the crucial finding regarding the dominant reason of the plaintiff leaving his job with the 1^st defendant.

42.  At the outset of the trial, the judge had raised with the parties that he regarded the effect of the plaintiff’s decision to stop working for his employer as a “key factor” and “an awful lot turns on that”.  There is of course no direct evidence the dominant reason for the plaintiff resigning his job with the 1^st defendant was a desire to return to the textile industry and to forego a future in the construction industry.  But we do not think this is a finding with no evidential basis, as contended by Mr Wong.  The judge had reached this finding of secondary fact as a matter of inference on the basis of the primary facts found.  His finding was not based purely on inferences, or otherwise has nothing to do with the witnesses’ demeanour or his having received the evidence at first hand.  He must have taken into account the demeanour of the witnesses and the inherent probabilities in arriving at his findings of primary fact.  Where his finding of secondary fact was arrived at by a process of inference drawn from findings of primary fact, it is clear that such finding was not based on inferences alone without involving any question of credibility or the demeanour of witnesses.  In this instance, the appeal court exercises similar restraint in respect of the finding of secondary fact based on inferences drawn by the trial judge.  For this court to overturn such finding of fact, the plaintiff would have to satisfy us that the finding is “plainly wrong”.

43.  Mr Wong has not demonstrated to our satisfaction that the finding of the judge is plainly wrong.  There are sufficient materials, on the primary facts found by the judge, for him to draw inferences on the dominant reason for the plaintiff leaving his employment.  Whether another judge would have drawn such inferences is neither here nor there.

44.  These are some of the materials on which the judge could have drawn the inferences in the way he did. First and foremost, the plaintiff’s resignation was purely voluntary, notwithstanding his job was stable and future employment was secure.  He did return to the textile industry for a while after he left the 1^st defendant’s employment.  He had spent some twenty years of his working life in Hong Kong in the textile industry.  He had told the occupational therapist he “planned to explore a new job in the future”.  He was already in his mid thirties when he left his familiar field to join the construction industry, in which he worked for just a few months when he met with the accident. He did not renew his Construction Workers Registration Card.

45.  It could not be said that the judge was plainly wrong in his finding of the dominant reason for leaving the 1^st defendant’s employment.  Nor do we see any basis to interfere with his further finding, again drawn from inferences, that the plaintiff’s desire to leave the construction industry was accelerated by the injuries in the accident.

46.  The judge had valid reasons for departing from the conventional multiplier approach on the primary and secondary facts he found and for assessing the loss of earnings claim by taking the likely period the plaintiff would have stayed on in the construction field but for the accident.

47.  For the above reasons, we have dismissed the plaintiff’s appeal with costs to the defendants.