CHOY WAI CHUNG v. CHUN WO CONSTRUCTION & ENGINEERING CO LTD

cacv 172/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 172 of 2004

(on appeal from HCPI NO. 605 of 1999)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal and cross appeal from a judgment of Beeson J given on 16 December 2003.  The matter before the judge was a claim for damages for personal injuries.  The judge awarded the plaintiff the sum of $3,110,223.00 with credit to be given in respect of the employees’ compensation payment which had been made of HK$1,519,079.81.  The plaintiff appealed in respect of the amount of damages and the defendant cross appealed in respect of the failure of the judge to award any reduction in the damages on account of contributory negligence.  At the conclusion of the hearing, this court dismissed the plaintiff’s appeal and reserved judgment in respect of the cross appeal.

Background

2.  The plaintiff is a civil engineer, having graduated from the Hong Kong Polytechnic.  At the time of the accident on 28 June 1996 he was 31 years old and a senior engineer who had been employed by the defendant for more than five years.  From October 1994 he had been assigned to work as a senior engineer in the construction site of Peak Properties Redevelopment working on the Peak Tower of the Peak Tram Station.  As part of his employment he had responsibility for a variety of matters concerned with the completion of the Peak Tower.  Much of the materials that were to be used in the completion of that building, for example, the floor tiles, aluminium framework and cladding, the windows, as well as items that were used in the construction, such as anchor T-bolts, were stored on the floor above the ground level which was referred to as L5.

3.  On the night before the accident the plaintiff was informed that there was a shortage of anchor T-bolts.  This posed something of a difficulty because there was a great deal of time pressure involved in the completion of the building and if new anchor T-bolts were to be required it would take some time to have them brought to the site.  It was thus on the morning of the 28 June 1996 that the plaintiff found it necessary to look for T-bolts and to see whether he could find enough of them.  The judge summarized the evidence as to what happened on the morning of the accident in paragraphs 44 and 45 of the judgment.

“	44.	At the time of the accident, according to the Plaintiff, an area of approximately 50 to 100 square metres in the middle of L5 was covered with materials.  7-8 square metres were occupied by boxed tiles only; these were not thin ceramic tiles, but traffic-bearing floor tiles.  Some boxes of tiles were piled up as steps to enable workers to reach the top of the stacked materials.  No other way was provided to reach the middle of the storage area.  He had not been warned by the Safety Officer, or the Assistant Safety Officer, not to walk on the heap of material.  When he went to check the supply of T-bolts on the date of the accident, he walked step by step from the lowest level of the stored materials to a level approximately 4 feet high and then with caution started walking towards the middle portion.  He had done this before without difficulty or accident.
	45.	The Plaintiff believed that he might find T-bolts in the middle portion of the materials at L5.  While walking towards the middle he stepped on a vacant space created by workers removing floor tiles from the pile and covering the pile with canvas, so that it appeared there was something underneath.  He stepped into the empty space and fell.  The Plaintiff had seen other people walking on the materials, and it was common practice for workers to do so, because the heap of materials had grown to a great extent.”

4.  The judge went on to hold that there was no particular reason why the plaintiff should not have climbed on the pile of material and that he had not been deliberately foolhardy and his behaviour was not negligent.  On that basis the judge did not find that the plaintiff was guilty of contributory negligence.

5.  After the accident, the plaintiff remained at work although it appears that he remained sedentary.  On the following day he also went to work and it was not until the evening of the second day after the accident that he sought medical attention at the Accident and Emergency Department of the Tang Shiu Kin Hospital.  The plaintiff was given sick leave and received physiotherapy treatment for his injured ankle.  He was admitted to hospital for three days at the beginning of August 1996.  He did not receive in-patient treatment thereafter until April 1997 when he had right ankle arthroscopic treatment but thereafter he has had no further in-patient treatment.  Radiology showed the talus had some incomplete reconstitution of the bone.  It was expected, at that time, the plaintiff would continue to recover for a year or so, but would have some residual stiffness and could expect pain in his ankle from degenerative arthritis.

6.  The judge referred to the history of the plaintiff’s disability in paragraphs 60-77 of the judgment.  It is clear that the judge came to the conclusion that the plaintiff was capable of walking without assistance and that the surveillance which had been carried out on the plaintiff in August and September 1999 showed that the plaintiff barely relied upon his crutches.  The judge referred to the fact that the occupational therapist had found that the plaintiff could walk indoors unaided without crutches and that the defendant’s expert Dr Mac had expressed the view that the crutches were more a psychological rather than a physical necessity.  At most the plaintiff might need a stick.  The judge’s summary in paragraphs 65 and 66 of the judgment was as follows:

“	65.	At present the Plaintiff effectively refuses to improve his mobility - his attitude may change once this case has concluded.  An overall view of his medical condition at present, is that although he has some limitation of the right ankle movement and may experience some episodic pain from seasonal or weather conditions, or over-exertion, he is otherwise fit and able to return to work.
	66.	Both he and his wife have reacted to what was no more than a sprained ankle, as if the Plaintiff had been rendered paraplegic.  The Plaintiff’s present claim is based on the assumption that he will never work again and that he requires full nursing attendance from his wife.  Whilst the reviewing doctors have been too tactful to suggest the Plaintiff is malingering, it is difficult for a court taking an overview of the medical evidence to reach any conclusion other than that he has managed to convince himself he is now unemployable, when in fact he is not.”

7.  The judge’s assessment of the plaintiff’s exaggeration of the effect of his injury is but a reflection of the assessment made by HH Judge Muttrie when considering the claim for employees’ compensation.  On the application, the judge did not accept the evidence from the plaintiff and his wife as to the effect of his disability but he did accept that the plaintiff had a 20% loss of earning capacity.

8.  Having assessed the evidence and in particular the evidence of the medical witnesses and, of course, the undercover surveillance which had been carried out on the plaintiff in 1999, the judge came to the conclusion that the plaintiff had been able to return to work in an office for some years and certainly from the end of 2000.  The judge considered that that was adopting a rather conservative date.  She went on to say that the plaintiff had chosen to do nothing at all and his claim was based on the contention that he was wholly unemployable.  She rejected that claim in absolute terms.  On that basis she awarded damages for loss of income only for the period of 28 June 1996 to the end of 2000.  The judge also held that the plaintiff, when still on sick leave, relied on an oral comment of Dr Chan that it was not appropriate for him to work at his original or any job.  The plaintiff had made what the judge referred to as a “a desultory inquiry” of the defendant about returning to work and he was told that he could have an indoor post depending on medical clearance but he never followed that matter up.

This appeal

9.  On this appeal Mr Chan SC, who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates.  In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which she gave.  It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work.  Obviously in doing so the judge must have regard to the medical evidence.  Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates.  As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.

10.  It was a major part of Mr Chan’s argument that the burden of proof of the failure of the plaintiff to mitigate his damage was on the defendant.  No doubt the defendant must show a failure to mitigate.  Nevertheless it seems to me abundantly clear that if a plaintiff is perfectly capable of working and has taken no steps to try and secure work, he has failed to show any loss arising as a result of his injury.  The loss which has arisen arises from his failure to make any attempt to work.  In this case it might also be added that by reason of the fact that the plaintiff claims loss of future earnings on a multiplier of 15 the total damages claim by the plaintiff amounts to in excess of $12 million.  Had the plaintiff shown some inclination or an attempt to find remunerative employment then it might be said that the onus would lie upon the defendant to show that the plaintiff had failed to mitigate his loss.  But, in the present circumstances, it follows inexorably from the findings of fact that the plaintiff was perfectly capable of working and failed to make any attempt to work that that, in itself, demonstrates more clearly than any deduction that the court could otherwise make from hypothetical evidence which could be produced by the defendant, that the plaintiff has, indeed, failed to attempt to mitigate his loss.  In my view the plaintiff’s loss of earnings from the end of 2000 up until trial is a loss flowing from his own failure to seek work.

11.  Accordingly, this appeal fell to be dismissed.

Contributory negligence

12.  The plaintiff’s accident occurred, as the judge found, when the plaintiff was walking over canvas covers which had been placed on top of various items of building material.  The defendant had not arranged the piles of materials in a coordinated way and had not seen to it that they could be accessed easily by gangways or gaps between the piles.  The canvas sheets had evidently been stretched over a gap or void between piles of material with the consequence that when the plaintiff stepped on that area of canvas it gave way.  There was thus a trap for the unwary.  As the judge held, the plaintiff needed to find anchor T-bolts and those were probably located in the centre of the piles of material or, at any rate, it was necessary for the plaintiff to walk over the material and it was not unreasonable for him to do so. 

13.  There was one aspect of this, however, which is not specifically dealt with in the judgment, which in my view is important.  The plaintiff admitted when giving evidence that he was aware that there was more than one piece of canvas which covered materials of different heights.  He also said he was aware that the canvas sheets could have covered holes and he admitted that that was a risk which he knew off.  These admissions are recorded at page 52 of the transcript.

14.  On the basis that the plaintiff was aware of the possible danger of there being holes covered by the pieces of canvas it seems to me that there was some obligation on his part to take care when traversing the canvases in order to protect himself from the obvious risks.  Either the edges of the pieces of canvas could be raised or particular caution taken before placing weight on top of the canvas.  Even taking into consideration the fact that the plaintiff was hard-pressed in his work, he was under pressure to have the work completed and there was some anxiety about finding the anchor T-bolts, it seems to me that it cannot be said that the plaintiff was entirely blameless as regards the cause of the accident. 

15.  Mr Wong SC, who appeared on behalf of the defendant, argued that the contributory negligence should be 35%.  In my view that would be too great.  I consider that the judge has erred in not awarding some amount in respect of contributory negligence and taking a view, which I do not consider is by any means excessive as regards the plaintiff’s responsibility, I consider that the amount of 15% would be appropriate in the circumstances in this case.

16.  I would therefore allow the cross appeal to the extent of reducing the damages by reason of the plaintiff’s contributory negligence by 15%.  I would also make an order nisi of costs of the appeal and cross appeal in favour of the defendant.

Hon Le Pichon JA:

17.  I agree with both judgments.

Hon Stone J:

18.  I agreed that the plaintiff’s appeal should be dismissed at the conclusion of the hearing of this appeal.  I further agree, for the reasons adumbrated by the Vice President, that the defendant’s cross-appeal as to contributory negligence should succeed to the extent of an award of 15%. 

19.  In light of the argument upon the plaintiff’s quantum appeal, I should like to add a few words of my own.

20.  In my view this appeal had no merit whatever; in fact, in the circumstances it is surprising that there was no cross-appeal as to quantum.

21.  The hard fact is that since this plaintiff suffered a severely sprained ankle in the Peak Tower construction site accident in June 1996, he has not worked.  Nor apparently has he made any effort to find work.

22.  Having parlayed this unfortunate, but essentially minor injury, into a not insubstantial personal injuries award in the sum of approximately HK$3.1 million, the plaintiff now seeks in this appeal to increase it to in or around HK$12 million.

23.  A fundamental factor in the quantum equation as now proposed is an award for loss of future earnings in which a multiplier of 15 is engaged upon a multiplicand of $509,352, which produces a sum of HK$7,640,280.  This multiplier apparently was selected on the basis of the plaintiff having been 39 at trial, with a retirement age of 65.

24.  The reasonable man might think that to seek such an award would be ambitious, to put it at its lowest, given the fact that leading counsel appearing on his behalf, Mr Chan SC, opened this appeal by stating, in terms, that it was not disputed that his client was fit to resume work in an office, but that due to the unstable nature of his ankle, he could no longer work on a construction site.

25.  Accordingly, the situation that prevailed is that this appellant is capable of work, but has chosen not to work.  Upon what basis, therefore, was it asserted that the defendant employer should function as his financial benefactor for the next 15 years?

26.  The answer to this conundrum apparently lay in the doctrine of the burden of proof.  It was submitted that since the defendant had failed to establish at trial that the plaintiff had failed to mitigate his loss, in the sense of identifying appropriate employment at an appropriate emolument, the plaintiff therefore was entitled to be supported for the remainder of his working life.

27.  This submission did not meet with acclamation.  It strikes me that there is room in this case for liberal application both of common sense and basic principle.

28.  Basic principle holds that pecuniary loss must be shown naturally to flow from the breach of duty; the concomitant is that a claimant asserting loss must take all reasonable steps to mitigate the loss asserted to be consequent upon that breach, and that he is precluded from claiming any damage which arises from his neglect to take such steps.

29.  This is not this case.  This plaintiff has made no effort whatever to mitigate his damage.  To the contrary.  The overwhelming impression on the papers before this court is that to-date this plaintiff has ‘milked’ this injury as much as he possibly can – in fact, in my view he has succeeded already in obtaining a most generous award and, emboldened by success below, now proposed, via the medium of this appeal, to ‘milk’ it some more. 

30.  The reason why a victim of physical injury is required to mitigate his damage is, at bottom, one of causation.  The fundamental rule is that a plaintiff cannot recover for a loss avoidable by reasonable action on his part because, ex hypothesi, if it could thus have been avoided, as a matter of law liability for such loss should not fall upon the tortfeasor; there can be recovery only of that which has been caused by the defendant’s wrong.  If, on the other hand, the victim has made efforts to mitigate his loss, and issue is taken upon the reasonableness or sufficiency of such mitigation, the onus then falls upon the defendant to demonstrate that such mitigation was insufficient or falls short of the desired standard.

31.  In this case the fundamental legal analysis effectively has been short-circuited.  In terms of mitigation the plaintiff has not made it to first base.  On his own case he has done nothing in terms of seeking employment since his accident.  He has elected to sit back, and now, in effect, says to the defendant: “Prove what I can do, and for what salary, and absent such evidence at trial, you must support me for the rest of my life”.

32.  I regarded this approach as risible, notwithstanding Mr Chan’s efforts to invest the point with some vestige of respectability.  It does not make the situation any the more palatable that legal aid funds appear to have been utilized in this unappetizing endeavour.

Hon Rogers VP:

33.  Accordingly, there will be an order in terms of paragraph 16 above.