TSE HON WAI v. PO HONG SCAFFOLDING CO LTD AND OTHERS

CACV 93/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 93 OF 2007

(ON APPEAL FROM HCPI NO. 427 OF 2006)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment Burrell J given on 15 March 2007.  The matter before the judge was a claim for personal injuries.  At the commencement of the trial, liability was conceded and, hence, the judge was only concerned with the quantum of damages.  In respect of that, there had been an agreement as to the amount in respect of pain, suffering and loss of amenities.  That sum was $350,000.  The judge awarded the plaintiff the sum of the $187,898 for past loss, in respect of future loss he awarded the plaintiff the sum of $1,270,332 and in respect of the loss of earning capacity he awarded the sum of $48,000.

2.  The plaintiff appealed in respect of each of those separate sums.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

3.  The plaintiff was 21 years old in March 2004.  He had been working for a year as a scaffold dismantler.  Whilst at work what was described as an “object” fell from a height and struck his right eye.  There is no dispute that he is now blind in that eye.  Prior to the accident the plaintiff had been earning $610 a day.  That, as the judge found, was the daily pay for a “medium level” dismantler.

Past Loss

4.  In respect of the past loss, that is the damages up to the date trial, the judge considered that had it not been for the accident the plaintiff would have worked some 13 days per month.  On this appeal Mr Lam, who appeared on behalf of the plaintiff, contended that the judge should have taken a figure of 20 to 26 days.

5.  In opening the appeal, Mr Lam acknowledged that in the few months before the date of the accident the plaintiff had worked for a maximum of 8 days per month.  He argued that this was due to the fact that the plaintiff had suffered from hepatitis in the January before the accident and this would have affected him even before the hepatitis had become evident.  Whilst counsel conceded that the evidence from the defendant had established that workers undertaking scaffolding work for the defendant had only worked for about 15 days per month, Mr Lam argued that such workers would have been able to work for other employers as well.  This, unfortunately, was merely an argument and not supported by evidence.

6.  Given the plaintiff’s own track record, as it was known, for working comparatively few days per month prior to the accident I can see nothing wrong in the judge having taken 13 days per month as being a proper figure.  Neither do I consider that there is anything in Mr Lam’s point that the defendant should have produced the work records relating to all its other workers.  The judge relied on the evidence which the respective parties had called and came to a very fair assessment which I do not consider could be criticised; it was certainly not ungenerous to the plaintiff.

7.  The other point sought to be raised in respect of the pre-trial loss of earnings was that in the period when it is accepted that the plaintiff was fit to go back to work the judge took the plaintiff’s notional potential earnings as being $5,800 per month whereas the plaintiff had only earned $4,000 per month.  The judge considered that the plaintiff’s earning capacity from the time he became fit to return to work had been $5,800 per month on the basis of statistics that had been produced and referred to by the plaintiff’s counsel in his opening submissions.  The figure was the average earnings taken from 19 samples quoted in the Quarterly Report of Wage and Payroll Statistics, June 2006.  In my view the judge did not err in this assessment.

Future loss

8.  The judge applied a multiplier of 17 years in respect of the future loss of earnings.  The major dispute between the parties is that the judge made his calculation on the basis that the plaintiff would have only become a master scaffolder in 2011, which was 7 years from the date of the accident.  Mr Lam argued that the judge should have held that the plaintiff would have been a master scaffolder from 2006, although for the purposes of the appeal, he was content to proceed on the basis that the plaintiff would at least have achieved this status by the time of the trial in early 2007.

9.  The evidence from Mr Tse, the defendant’s witness, who was described as being the supervisor of the first defendant, was that it would take 3 to 4 years for a worker to reach the medium level and at least another 2 years thereafter for a scaffold dismantler to reach the master level.  His evidence was that the plaintiff had been paid at the level of a medium level worker because there had been a master worker who had brought the plaintiff to work for the first defendant and had requested the first defendant to pay the plaintiff at that level.  Since the first defendant required the services of that particular master scaffolder, his request had been complied with.

10.  The evidence was then slightly confused because Mr Tse was asked how long it would have taken the plaintiff to become a master scaffolder.  It is quite clear that Mr Tse was not particularly favourably disposed to the plaintiff because he regarded him as being lazy.  However, the judge indicated that he would not proceed upon the basis of Mr Tse’s statements as to the plaintiff’s alleged laziness.  It would seem that Mr Tse’s evidence that it would take 7 years from the date of the accident for the plaintiff to become a master scaffolder was based upon his opinion of the plaintiff.  Since the judge intended to discount that adverse opinion it would seem that the correct date, given Mr Tse’s assessment of the average time it would have taken a worker to become a master scaffolder, should have been approximately 7 years from the date of the plaintiff’s commencement of work as a scaffolder, that would have been approximately 2009.

11.  If the figures taken by the judge were therefore adjusted there would then be 2 years at the level of $610 per day followed by 15 years at $860 per day.  The total figure would come to $1,329,120 in respect of loss of future earnings.

Loss of Earning capacity

12.  Finally the plaintiff contended that the loss of earning capacity was too low since the judge took that as 1 year at the plaintiff’s current wage level.  The amount to be awarded under this heading is inevitably an arbitrary figure since there is no precise formula upon which it can be calculated.  The judge had to consider the probability of the plaintiff being handicapped in the labour market particularly should he lose his employment in the future and the likelihood of his being employed again.  The judge took a figure of 1 year’s current earnings.  In my view he cannot be faulted as to that.

Conclusion

13.  I would therefore allow this appeal to the extent indicated in paragraph 11 above.  It is evident that this variation of the amount of damages is at the lower end of any scale which a court would interfere with an award as to damages.

Hon Le Pichon JA:

14.  I agree.

Hon Barma J:

15.  I agree.

Hon Rogers VP:

16.  There will therefore be an order increasing the award accordingly.  There will be an order nisi of costs in favour of the plaintiff.