LAWATI BHAWANI BIKRAM v. TING KAU CONTRACTORS JOINT VENTURE

CACV 3/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3 OF 2002

(ON APPEAL FROM HCPI NO. 1242 OF 1999)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment on an assessment of damages by Master de Souza. The judgment was handed down on 26 October 2001. The master awarded a total sum of $2,124,347.06 (net of employee's compensation previously awarded to the plaintiff). The total sum comprised the following:

Pain, suffering and loss of amenities	$450,000
Past loss of earnings	$278,806	.73
Prospective earning loss	$1,680,000
Loss of earning capacity	$100,000
Other specials	$21,174
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Subtotal	$2,529,980	.73
Less agreed ECC payment	$405,633	.67
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Final award	$2,124,347	.06

On this appeal the award was challenged on the basis that the sums allowed in respect of pain, suffering and loss of amenities and in respect of both the past loss of earnings and the prospective loss of earnings were excessive. At the conclusion of this appeal judgment was reserved.

The plaintiff's injuries

2. The plaintiff was injured in an accident which occurred on 8 November 1996 in the course of his employment by the defendant as a chargehand scaffolder. The plaintiff had been engaged to work on the building of the Ting Kau Bridge on 31 August 1996. Although he completed his employment application form by stating that he was applying for the post of a ganger or rigger, that had been crossed out, apparently on behalf of the employer, and the word "scaffolder" inserted. The employee identity card issued by the defendant dated 31 August 1996 also put his position as a scaffolder. The application form was the subject of a hearsay notice. It bore the statement "promoted to C/H scaffolder 1/10/96". There is no doubt that by 8 November 1996 the plaintiff was a chargehand scaffolder. The evidence was also that his pay had been increased from his initial salary.

3. On 8 November 1996, the plaintiff was inside a container. He was unloading a portion of a crane. The particular part fell on him and pressed him into a squatting position. As a result he suffered severe damage to his back.

4. At the time of the accident the plaintiff was 35 years old. He had been born in Nepal and had joined the Gurkha Regiment. He had served as a sapper for more than 12 years leaving the Regiment in 1992. In 1994, he returned to Hong Kong and worked as a rigger on the construction of the Tsing Ma Bridge. At the end of his contract in January 1996, he had returned to Nepal but he came back to Hong Kong in July that year and took up employment again. Prior to his accident he had been an energetic person and from his evidence it is clear that he had been both active and capable of undertaking heavy work.

5. Following his accident the plaintiff was in hospital for 22 days although there was no surgery. After he was discharged from the hospital he received outpatient treatment including physiotherapy. His injuries included a fracture of the first lumbar vertebra and there was projection of the spine in the area of the first and second lumbar vertebra. The spinal discs T12/L1 were affected because of the compression fracture of the body of L1. Both the doctor and the occupational therapist who gave evidence said that the plaintiff was not a malingerer nor did he exaggerate or invent any of the back pain which he said he suffered. Indeed, rather the reverse; the occupational therapist said that the plaintiff had never volunteered that he was in pain and only disclosed that to her when he was specifically asked. She had gained the impression that he had tended to downplay rather than overstate the pain that he suffered. The judge clearly accepted this evidence.

6. The plaintiff's injuries caused him to be on sick leave until 11 June 1997. There was a further short period of sick leave in November of the same year. From the time when he returned to work in June until 7 September 1997 he was given a job as a storeman. That job was less physically demanding than that of a scaffolder. On the other hand there was considerable scope for overtime and his average earnings then were $17,578 per month. Although his employment was terminated by the employer, a friend managed to secure him further employment with the defendant, this time as a cleaner. He was paid the same salary as a scaffolder but he had to leave that job because the bending and sweeping, which the work involved, caused him considerable back pain. Thereafter he has worked as a security guard. On the final date of the hearing of the assessment of damages in March 2001 the master was informed that the plaintiff had secured another job which was slightly better paid.

Pain, suffering and loss of amenities (PSLA)

7. The master fixed the amount under the heading of PSLA at $450,000. In doing so he had regard to a number of cases which had been decided in the previous decade, many of which involved back injuries. Mr Kerr, on behalf of the defendant, contended that the award was well out of line with the awards shown in those cases. He contended that the figure which should have been arrived at in respect of PSLA was something in the order of $300,000.

8. In my view, the master was well justified in rejecting that submission. Many of the cases which were referred to had been decided at times when the level of damages laid down in the guidelines was lower than it is at present. Equally importantly, there is no doubt that the plaintiff suffers continuing back pain. This back pain is also clearly debilitating. It has prevented the plaintiff from doing the type of work which his experience as a sapper would no doubt have suited him. Not only can he now not be a scaffolder but there are many other activities in which he cannot engage. This is exemplified, perhaps, by the fact that although he is a conscientious family man, when he went back to Nepal for a lengthy vacation he could not help on the farm nor do many of the things which he would like to have done. Importantly, the medical evidence showed that his condition had deteriorated over a two-year period up until the hearing of the assessment.

9. The master said that he considered the injury fell near the bottom of the serious injury category. That category has been described as one "where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain." See Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 at 659. I consider that the master cannot be faulted for saying that in this case the plaintiff's injury should be looked upon as almost the equivalent of a bad fracture leaving recurrent pain, since that seems to be an accurate description of the injury.

10. The master took the range for serious injury as starting at $500,000. The highest figure which has been drawn to this court's attention which has been used by the courts for the starting figure for serious injury has been $460,000. See Chan Chi Shing v Tsang Fook Metal Engineering CACV 238/1999, unreported 21 December 1999, a decision which had not been drawn to the master's attention. Given the economic downturn, not to say the possibility of deflation, I do not consider that the time has arrived where the lower level in relation to serious injuries should be raised above the figure of $460,000.

11. Given the fact that the master took the lower level of compensation for serious injury as $500,000 and then awarded a figure of $450,000 I consider that using the same yardstick in relation to the figure of $460,000 it would not be unreasonable to assess the figure of PSLA at $420,000. This, in my view, would be a fair, and not over-generous, compensation taking into account both the increase in the level of awards for damages and the various aggravating factors which I consider are relevant to take into account in respect of the present plaintiff's injury.

Loss of earnings

12. The parties agreed that at the time that the plaintiff suffered his accident his average monthly earnings were $13,227.81. In the revised statement of damages, which was the basis of the plaintiff's case at trial, it was said that the plaintiff's earnings would have been increased to $30,612.40. That was based upon figures provided by the Census and Statistics Department in relation to the wages of bamboo workers and scaffolders. The defendant on the other hand sought to rely upon figures of the income of Mr Gurung Lanka Prasad and Mr Gurung Laxman for the period between April 1999 and March 2000. It was said, on behalf of the defendant, that those persons were the plaintiff's co-workers and that their income had been roughly the same as the plaintiff's at the time of his accident. The judge rejected both bases for assessment. Evidence had been provided that the government's statistics were based upon bamboo workers and the plaintiff was not and never had been a bamboo scaffolder. No challenge was made as to that finding.

13. Likewise, the judge rejected any assessment based upon Messrs Prasad or Laxman. The evidence in respect of their earnings was particularly deficient. Despite the fact that interrogatories had been requested well prior to the hearing, their salary records had never been retrieved. Furthermore, it was to be inferred from the state of the evidence that although Messrs Prasad and Laxman had eventually reached the grade of chargehand scaffolders there was no evidence that after the bridge had been completed in 1998 either of those gentlemen had erected scaffolding. It would seem from the evidence, particularly that of Mr Shek Wai-nang, an office manager of one of the companies which was a partner of the defendant, that these two gentlemen had been engaged in general maintenance duties. It would also seem that they may not have been working full time. The evidence provided in answers to interrogatories was that Mr Prasad had originally been employed as a skilled labourer in August 1996, he was thereafter promoted in May 1997 to be a concrete finisher. In November of that year he was promoted to being a chargehand scaffolder and his employment terminated in April 2000. Mr Laxman had also been employed first as a skilled labourer, that was in May 1997. In November of that year he too had been promoted to be a chargehand scaffolder. In my view, the judge correctly rejected the comparison with Mr Prasad and Mr Laxman. These persons were not on a par with the plaintiff. They were clearly far less skilled at the inception of their employment and their promotions to chargehand scaffolder came at a very late stage in the building of the bridge.

14. The judge assessed the likely earnings of the plaintiff as at the date of the assessment of damages at $22,000 per month. It is apparent that he must have done so on the basis of the wages of Mr Laksamba Budha Raj. Mr Laksamba had been employed by the defendant as a scaffolder on 3 September 1996 thus approximately 3 days after the plaintiff. Mr Laksamba was not promoted to chargehand scaffolder until 16 May 1997. He was thereafter promoted to be a scaffolder ganger in September 1997 and he became a scaffolder foreman on 1 August 1998. He left the defendant's employment in January 1999, at which time he was earning $22,000 per month. His employment at the time of the assessment of damages was as an aluminium worker earning $650 per day with overtime of $130 per hour. That would give a salary of some $16,900 per month based on a 26-day month without taking into account any overtime.

15. Mr Kerr strongly criticised the master's approach in assessing the plaintiff's likely earnings as at the date of the assessment as anything other than his average monthly earnings at the date of the accident. His submission was that it was manifestly unfair to the defendant that the plaintiff should be allowed to base his case on anything other than the pleadings. The argument was that having failed on the bamboo scaffolder issue the plaintiff should have been confined to his earnings level at the date of the accident. It was said that the master's assessment of the likely salary at $22,000 per month could only have been based upon the prospect that the plaintiff would have been promoted to be a foreman. Mr Kerr said that likely promotion for the plaintiff had not been in issue at the trial and in any event there was no indication that the plaintiff was fit for promotion. It was said that the plaintiff had remained a sapper for the whole time he was in the army and that he was simply a chargehand when employed of the defendant. Since the matter of promotion to foreman had not been canvassed in the pleadings the defendant was put at an unfair disadvantage because it had not been able to conduct its case on the basis of challenging that there might have been promotion.

16. In my view, these arguments should not prevail. It is clear in the first place that the plaintiff's case was based upon the top earnings of a bamboo scaffolder. There was a considerable range of earnings for bamboo scaffolders which was given in evidence by the defendant, hence it can have come as no surprise to the defendant that the plaintiff was claiming on the basis that he would succeed to a higher level of whatever occupation he undertook. Furthermore, it is clear from a passage in the cross-examination and a short passage in the closing submissions on behalf of the defendant at the hearing of the assessment that the defendant was aware that the plaintiff's case was being put upon the basis that he would have improved his position in his employment. As to the plaintiff's ability, it does appear from Mr Laksamba's evidence that although they were both employed at the same starting salary, the plaintiff very soon achieved a higher salary than Mr Laksamba. From what documentation is available it would appear that the plaintiff had originally been employed as a scaffolder but certainly at the date of his accident had been a chargehand scaffolder. After the conclusion of the hearing, the court was provided with a legible copy of the employment application form. That showed, which the copies in the bundles did not, the notation relating to promotion to chargehand scaffolder. The defendant's solicitors complained of this being provided because they said that it was new evidence. In my view, the complaint should be the other way. It was not new evidence. It was evidence that was always there but could not be seen because the copies in the bundles provided by the defendant's solicitors for the court were bad. Proper legible copies should have been provided in the court bundles.

17. In my view, the figure of $22,000, taken by the judge as the plaintiff's likely earnings as of the date of the assessment, was justifiable. Mr Laksamba had been promoted to be a foreman. He had only been made a chargehand scaffolder 7 months after his employment started. On the other hand the plaintiff had been appointed a chargehand scaffolder a month after he was employed by the defendant. Even on the basis that it might, for some reason, be wrong to take into account the wording on the employment application form, the plaintiff's position would then have to be taken as being one where he was employed as a chargehand scaffolder from the beginning. Clearly this also puts him in a superior position to Mr Laksamba.

18. Be that as it may, even Mr Laksamba, who had succeeded in being so promoted was, at the date of the assessment, working as an aluminium worker for $650 per day plus overtime. Taking into account the general rise in wages over the period from the date of the accident until the date of the assessment of damages which are relevant for construction site workers, as shown in the figures provided by the Census and Statistics Department, I consider that the court should approach the calculation of the plaintiff's likely earnings on the basis that after the date of assessment it would be approximately $650 per day plus overtime. The assessment of damages has to be the court's assessment in monetary terms of the likely loss to the plaintiff which has been caused to him. That assessment can only be based in rough terms. In my view, in this case the appropriate figure for future monthly earnings for the plaintiff should be approximately $19,000 per month. This would take into account the level of earnings which the plaintiff, if uninjured, could be expected to have earned after the date of assessment, when the bridge was no longer under construction, in some occupation such as adopted by Mr Laksamba together with whatever overtime might be available.

The plaintiff's employment as at the date of the assessment

19. The hearing of the assessment took place in two parts. The evidence was heard in December 2000 and submissions were made in March 2001. At the opening of the hearing of the submissions, counsel for the plaintiff indicated that the plaintiff had secured employment of $12,000 per month which was $1,000 per month more than he had previously been earning. In doing so counsel explained that there was an additional benefit of an annual bonus of one-month's salary. For some reason the plaintiff's new contract was not put in evidence and the court was not provided with a copy. The defendant chose not to cross-examine; it was suggested that there may have been other reasons why the defendant might not have wished to cross-examine the plaintiff at that stage. In calculating the loss of earnings the judge took the plaintiff's salary to be $12,000 per month. The defendant contends that the correct amount should have been $13,000 per month. In my view that must be correct in view of the submissions which had been made before the master.

Conclusion

20. Although, as explained above, the correct amount in respect of pain, suffering and loss of amenities should in my view have been approximately in the order of $420,000, the difference between that figure and the figure taken by the master is so small that I do not consider that a Court of Appeal should interfere. If the appeal had been brought simply upon that, the court would have dismissed that appeal and in my view the matter should not be any different if the appeal is also in respect of the figures for loss of earnings. The pre-assessment earnings would also remain the same as assessed by the judge namely $278,806.73.

21. No challenge was made as to the multiplier to be used in respect of post assessment loss of earnings namely 14 years purchase. If the current income is taken as $13,000 and the notional earnings as $19,000 the multiplicand would be $6,000. This would give a total of $1,008,000. The subtotal would therefore come to $1,857,980.73 deducting therefrom the ECC payment of $405,633.67 the final award should be $1,452,347.06 plus interest. I would therefore allow the appeal and vary the amount of damages accordingly. In view of the way the arguments have gone in this court I would make an order nisi that the defendant should have two-thirds of its costs on this appeal.

Hon Le Pichon JA:

22. I agree.

Hon Yuen JA:

23. I agree.