SINGH SUKHDEV v. GREAT EXPECT DEVELOPMENT LTD

cacv 415/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 415 of 2007

(on appeal from HCPI NOs. 753 OF 2005 AND 836 of 2006)

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REASONS FOR JUDGMENT

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Hon Stock JA:

1.  I agree with the reasons provided by Le Pichon JA.

Hon Le Pichon JA:

2.  This was an appeal from a judgment dated 22 October 2007 of Yam J in a personal injuries action.  The judge held the defendant liable for the injuries sustained by the plaintiff while working for the defendant in two separate accidents that occurred 22 months apart.  He awarded the plaintiff damages in the sum of $1,801,004.50 together with interest.  The defendant abandoned its appeal on liability when it filed its supplemental notice of appeal on 17 June 2008.  The present appeal relates to quantum only.  Leave to amend the supplemental notice of appeal by adding Ground 1A was granted at the outset of the hearing.

3.  At the conclusion of the hearing, the appeal was allowed but only to the extent of Ground 1A of the Amended Supplemental Notice of Appeal and only to the extent of the figure agreed thereunder at the hearing and costs of the appeal were awarded to the plaintiff, such costs to be taxed in accordance with the Legal Aid Regulations.  The reasons for judgment appear below.

Background

4.  The plaintiff came to Hong Kong from India in 1998 speaking only the Punjabi dialect.  He was born in 1979 and left school after completing his primary education.  In 1998, he knew very little English and no Cantonese at all.  In August 2001, he started working for Yoke Profits Construction Company Ltd (“Yoke Profits”) as a general labourer.  As from 31 July 2002, the plaintiff took on an additional job at night which involved working from 11 p.m. to 7 a.m. as a general labourer for the defendant.  During his employment by the defendant, he met with two accidents at work, on 20 September 2002 and 19 July 2004 respectively.  At trial, the plaintiff was successful in establishing the defendant’s liability for the injuries he sustained from those accidents.  That liability is no longer challenged.

5.  The damages awarded to the plaintiff are summarised in § 51 of the judgment which reads:

6.  It is relevant to mention that throughout the trial, the language problem had given rise to serious difficulties of communication.  At § 21, the judge had this to say:

“21.      This problem of communication has been running through the whole case even sometimes when the plaintiff attended the hospital with a friend who acted as an amateur interpreter for him.  The plaintiff could not say how accurate would be the interpretation and the standard of interpretation of his friend.  I noted even for the court freelance Punjabi interpreter, with due respect to him, there were several occasions whereby even the interpreter did not quite understand what the plaintiff was saying and had to clarify with him in Punjabi first.  Further, the English translation of what purport to be said by the plaintiff sometimes was not comprehensible to me.  If that could be said of an accepted court interpreter, I wonder how much could be lost in translation.  In the end I found the plaintiff’s contention that he had communication problem even sometimes with an interpreter is not groundless.  Thus it would be impossible for him to go around without an interpreter….”

This appeal

7.  Only the amount of $150,000 awarded in respect of PSLA is not challenged.  The challenges therefore relate to (1) pre-trial loss of earnings; (2) future loss of earnings; (3) loss of earning capacity; and (4) special damages.  These will be considered in turn.

Pre-trial loss of earnings

8.  Mr Kwok who appeared for the defendant challenged the award of $338,574 in two respects.  The first objection was to the judge’s finding (at § 46 of the judgment) that “[b]efore the two accidents the plaintiff was earning about $21,280 per month plus overtime on average”.  It is not disputed that the plaintiff was then earning $5,500 a month from his employment with the defendant.  What is challenged is the balance of $15,780 per month as the amount of the plaintiff’s earnings from his employment with Yoke Profits.

9.  Mr Kwok submitted that the judge appeared to have relied on the plaintiff’s bare assertion in his first witness statement that the sum of $15,780 represented his average monthly earnings from Yoke Profits.  It was said that the judge did not address the fact that in the revised statement of damages of 23 May 2007, what had been pleaded was the sum of $9,500 and not $15,780 and that in cross-examination, the plaintiff accepted that his work with Yoke Profits was not a “permanent” or “regular job”, that the number of working days varied from month to month and he could be out of work for days, even weeks.  Mr Kwok invited us either (1) to revise his earnings from Yoke Profits on the basis that he earned no more than $9,500 per month from Yoke Profits; alternatively, that he worked no more than 18/20 days of work per month; or (2) to remit this issue for a half-day retrial.

10.  Paragraph 8 of the plaintiff’s first witness statement dated 17 January 2007 reads:

“8.        In August 2001, I began working for Yoke Profits Construction Company Limited (“Yoke Profits”) of Room 1801-1803, 18^th Floor, International Trade Centre, 11-19 Sha Tsui Road, Tsuen Wan, New Territories, Kowloon Hong Kong as a general labourer.  My working hours were from 8:00 a.m. to 5:00 p.m.  My basic salary was HK$530 per day on average.  I worked normally 26 days a month.  In addition to my basic salary, I would get overtime pay of about $1,000-$2,000 a month.  Therefore, on average, I earned approximately HK$15,780 a month.  I worked at various construction sites of Yoke Profits.”

11.  It is to be noted that there the plaintiff was giving an average of his monthly earnings and the days worked per month.  It is not inconsistent with the passage from the transcript relied on by the defendant in as much as the number of days worked might vary from month to month.  If it could vary downwards, it could also vary upwards.

12.  In any event, it would appear that six months after the date of the first accident, from April 2003 onwards, there was evidence that substantiated what the plaintiff said were his monthly earnings from Yoke Profits.  The Revenue’s demand for salaries tax for the tax year 2003/2004 (i.e. April 2003 to March 2004) was based on earnings of $264,000 for that year or $22,000 per month which corresponds to the aggregate earnings from the two jobs.

13.  Mr Kwok sought to attack the reliability of the tax demand as evidence of the plaintiff’s earnings from Yoke Profits from April 2003 onwards by pointing out that it related to a period after the date of the first accident and, in any event, being the only tax demand in evidence, it could not establish a pattern of earnings.  It was also suggested that the plaintiff had been selective in his disclosure of relevant documents.

14.  In my view, the attack was entirely misplaced.  Notwithstanding the fact that the tax demand formed part of the plaintiff’s documents provided during the normal discovery process, the defendant never sought specific discovery of tax demands for other years or notices of assessment.  The plaintiff was never cross-examined on whether or not other tax demands/notices of assessment were in his possession.  Furthermore, the defendant did not see fit to put to the plaintiff the seeming inconsistency between paragraph 8 of his first witness statement and the amount of $9,500 pleaded some four months later in the revised statement of damages filed in May 2007.

15.  In my view, it lies ill in the mouth of the defendant to criticise the plaintiff for what in effect were the defendant’s own shortcomings in the conduct of its defence.  In all the circumstances, the judge was entitled to take the view that the plaintiff’s average monthly earnings from Yoke Profits came to $15,780 per month.

16.  The second respect in which Mr Kwok sought to challenge the pre-trial loss of earnings concerns the plaintiff’s earnings during a period of about 18 months preceding the trial when he worked as a scooter driver for Pizza Hut.  This point was only taken in a draft Amended Supplemental Notice of Appeal provided to the plaintiff on 23 June 2008.  Mr Wright who appeared for the plaintiff conceded in his skeleton submission dated 7 July 2008 that in adopting the figure of $8,275 per month appearing in the plaintiff’s witness statement, the judge did indeed overlook the salary statements for the period 22 May 2006 to 31 May 2007 but he disagreed with the defendant’s calculation.  Initially Mr Kwok disputed Mr Wright’s calculation, but eventually he did accept that the plaintiff’s average earnings whilst employed by Pizza Hut came to $9,335 per month.

17.  In light of the above, the judge’s award of $338,574 as the net pre-trial loss of earnings falls to be revised to $318,539.

Future loss of earnings

18.  The judge’s award of $1,228,972 was premised on (1) pre-accident earnings of $21,280 per month; (2) monthly earnings at the date of the trial of $8,275; (3) a multiplier of 15 years; and (4) monthly earnings (but for the accident) of about $21,280 per month for about half of the remainder of the plaintiff’s working life.

19.  I have already rejected the issue relating to the amount of the plaintiff’s pre-accident monthly earnings and revised his earnings as at the date of trial to $9,335 per month.  A recalculation based on those conclusions applying the judge’s formula would result in a sum of $1,128,802 in lieu of the sum awarded of $1,228,972.

20.  The defendant submitted that there were other reasons why the amount awarded for future loss of earnings should be reduced to nil or further discounted by not less than 70%.  As I understand it, it was said that both medical experts (Dr Tsoi and Dr Chan) were agreed as to the plaintiff’s condition and working capacity, the suggestion being that he was fit to resume his previous jobs and therefore would not or was unlikely to suffer any future loss of earnings.  Further, it was said that the only reason why the plaintiff had two jobs was because he was sponsoring his wife and children (by 2004, a second child had been born) to come to Hong Kong and he needed to satisfy the Immigration Department that he had the means to support them.  As the family joined him in Hong Kong in 2006, the reason for having a second job evaporated and, in any event, it was highly unlikely that with his family here he would want to take on two jobs so that the loss of future earnings should not be premised on the basis of the plaintiff having two jobs.

21.  As to the submission that the plaintiff was fit to resume both jobs in November 2005, the judge did not consider that to be the case.  The judge appeared to have accepted the plaintiff’s evidence that he resumed both jobs after the first accident notwithstanding continuing pain because he needed the money and to prove to the Immigration Department that he was capable of supporting his family in Hong Kong.  After the second accident and the expiration of sick leave on 21 November 2004, the plaintiff did not return to work for the defendant.  His explanation appears from the following passage in the transcript:

“ Q.      … Why didn’t you go back to work for the defendant at the end of your sick leave?

  A.      Because they have a lot of work and very heavy work and there’s no safety precautions.

  INTERPRETER:      He said, “Because I had a pain, I did -- unable to work.”

  Q.      Because you had pain.

  A.      Yes, …”

(Tr. 29 M-Q)

Although the plaintiff did resume full-time work for Yoke Profits several months later in February 2005 which involved heavy manual work that caused him pain, his explanation was that when he could not find any other kind of job during those months, he had no option as he had “kids and a wife to support”. (Tr. 30 S)

22.  The plaintiff finally ceased working for Yoke Profits on 24 November 2005.  The judge accepted the plaintiff’s explanation that he found the work very heavy and when he suffered a third accident at work on 24 November 2005, he decided he could no longer handle heavy manual work.

23.  The judge recorded the plaintiff’s complaints as to his physical condition in § 42 of the judgment and in § 44, he explained why he accepted the plaintiff’s evidence that he would not have left the two pre-accident jobs unless he had genuine pain in his lower back.  The judge found that the plaintiff was not a malingerer and that the injury sustained by the plaintiff was “not a case of minor sprain to his lower back”, having noted (in § 43) Dr Tsoi’s opinion as to the likely source of the plaintiff’s lower back pain.  In essence, the judge found as a fact that the plaintiff was not fit to resume his pre-injury work. 

24.  Mr Kwok criticised the judge for not explaining why he accepted the plaintiff’s evidence when the medical evidence of Dr Tsoi and Dr Chan was to the contrary.  So far as the medical evidence is concerned, Dr Tsoi examined the plaintiff on 7 October 2005.  In his report of 10 October, he referred to the MRI scan taken in India in August 2004 as revealing disc protrusions and “compression sign of L5 nerve roots”.  He opined that the protrusions were the likely source of lower back pain and in Dr Tsoi’s opinion, either or both accidents could have triggered off the onset of symptoms on these degenerative discs.  He recorded the plaintiff’s complaint of continuing lower back pain affecting his ability to perform manual work in full capacity and on physical examination he noticed “diffuse tenderness and limited back motion”, albeit he opined from applying Waddell’s tests that there may have been some “symptom magnification”.  While Dr Tsoi considered the plaintiff “orthopaedically fit” to resume his pre-injury jobs, he went on to say this:

“However some reduction in capacity is expected as he may not be able to deliver extremely heavy objects for long period of time.  Nevertheless, change in occupation is unnecessary.”

25.  The last sentence in the passage cited could be said to be surprising given what had immediately preceded it.  Moreover, Dr Tsoi did not explain how the plaintiff could be expected to return to heavy manual work given his acceptance of the plaintiff’s spondylitic condition.  Quite apart from the fact that his report was made before the third accident and some two years before the trial, there would not appear to have been any probing (as there was at the trial) into the reasons why the plaintiff resumed heavy manual work after the first and second accidents, but merely a factual record of his being able to continue manual work after each of the accidents.

26.  As to Dr Chan’s report, it would appear that although he examined the plaintiff on 20 October 2006 it took him almost 12 weeks to prepare his report.  Apart from summarising the post injury care and subsequent management, the report took the form of answering 14 specific questions that had been put to him.  Two matters stand out: Dr Chan was sceptical that the second accident happened at all and the MRI scan and its findings although recorded as part of the patient’s medical history are totally ignored.

27.  In my view, in all the circumstances, the judge was entitled to form his own view of the plaintiff’s ability to resume his pre-accident jobs based on the totality of the evidence before him at trial.

28.  As regards the immigration point raised by Mr Kwok, it has little merit.  The plain fact is that irrespective of immigration considerations, the plaintiff is married with a young family and he is the only breadwinner.

29.  For these reasons no case has been made out to reduce the award of future earnings to nil or to discount the amount significantly.  The only adjustment that should be made to reflect the Pizza Hut earnings agreed at $9,335 per month.

Loss of earning capacity

30.  Mr Kwok challenged the award of $100,000 for loss of earning capacity on the basis that there was no evidence to support a finding that the plaintiff has a permanent handicap or that he has to face a real or substantial risk of losing his present job.  The medical aspect has already been dealt with and I need only address Mr Kwok’s submission that before such an award can be made, there has to be evidence to show that the plaintiff faces a real or substantial risk of losing his present job “because of his condition”.  In other words it was Mr Kwok’s contention that a causal link has to be shown.

31.  Mr Kwok sought to derive support from the decision of the English Court of Appeal in Moeliker v A. Reyrolle & Co. Ltd. [1977] 1 WLR 132.  The principles are stated in the judgment of Browne LJ (at 140B):

“This head of damage [ie loss of earning capacity] generally only arises where a plaintiff is at the time of the trial in employment, but there is a risk that he may lose his employment at sometime in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well-paid job.”

Brown LJ explained that the first question on this head of damage is to identify whether the risk that the plaintiff would at sometime before the end of his working life lose that job and be thrown on the labour market is a “substantial” risk or a “speculative” or “fanciful” risk.  He elaborated on the considerations to be taken into account (at 141C-D):

“In deciding this question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of particular cases.  For example, the nature and prospects of the employers’ business; the plaintiff’s age and qualifications; his length of service; his remaining length of working life; the nature of his disabilities; and any undertaking or statement of intention by his employers as to his future employment.”

32.  In submitting that the plaintiff’s condition has to be causative of the substantial risk before a claim for loss of earning capacity could be entertained, Mr Kwok has either misread or misunderstood Moeliker.  There is no such requirement.

33.  There was ample evidence before the judge such as the plaintiff’s age, education and background, his length of service with Pizza Hut and the vicissitudes of life for the judge to form a view of the likelihood of the plaintiff losing his present job during his working life.  There is no merit in Mr Kwok’s criticism of this head of damage.

Special damages

34.  The complaint here is directed at the award of $51,000 in respect of special damages being largely in respect of medical expenses incurred for private treatment in India and, to an insignificant extent, for travelling expenses.  The judge considered it reasonable one for the plaintiff to seek private treatment in India given the difficulties in communication with the plaintiff experienced with Hong Kong hospitals and doctors.  I can see no basis for gainsaying the judge’s conclusion in this regard and I see no basis for interfering with the award made.

Hon A Cheung J:

35.  I agree.