LEUNG HEI v. CHAN DAI SHING

HEADNOTE

                Action founded on Negligence.

                Damages :- Finding as to Plaintiff's age based upon hearsay evidence.  Matters considered before making such finding.

1985, No. A1711

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. Plaintiff, a casual worker, was employed by the defendant as a transportation worker on the 25th of July 1982, and whilst in the course of his employment, an accident occurred whereby his arm was to all intents and purposes severed just above the elbow.

2. Three witnesses described the accident, or as much as they knew thereof.  The plaintiff himself, FOK Tim Shing, foreman employed by defendant, who was called on behalf of the plaintiff and Wan Shing, a fellow worker of the plaintiff, called by the defendant.

3. The descriptions of what occurred vary.  The evidence of FOK Tim Shing supports that of the plaintiff whereas Wan Shing, described what seemed to be an entirely different set of circumstances.

4. I was not impressed by Wan Shing.  The only part of his evidence to which I can possibly consider giving credence to, is that relating to his earnings. This was something which had not been considered by him before his entry into the witness box. His surprise was apperent. I believe as far as his evidence relating to the accident is concerned that he lied at every opportunity. I was initially not at all impressed with his evidence. When Mrs. Barnes opened her cross-examination by asking whether he was related to the defendant, he dissembled and I cannot accept him as being a witness of truth; furthermore his account of what transpired cannot possibly be accepted as he had placed the plaintiff in a position well away from where he was working when the accident occurred.

5. The circumstances of the accident that I relate, are derived from the evidence of the plaintiff and his witness. I believe both these to be telling the truth, especially the foreman who was not present at the scene and was the first person to arrive after the plaintiff sustained injury.

6. The defendant had been employed to lift the "boat" and other window cleaning equipment to a high floor on the construction site known as 'Fung House' situated Nos. 19 to 20, Connaught Road, Central, Hong Kong. The construction of these premises, at least as far as the exterior was concerned, was virtually complete. The roof top had been partially completed, i.e. about one quarter had been filled in and the remainder was open to the floor below. From that floor, a steel ladder protruded through to the roof top giving workmen access. At the time of the accident, the Plaintiff and two fellow workers, Wan Shing and another worker Ah Tai were the only three persons present on the roof top. Ah Tai did not give evidence, it being accepted, as I understand it, by both parties that he was not readily available in Hong Kong at the time of trial.

7. The defendant with a gang of workers, had the lifting equipment required taken to ground level at the premises under construction. There was a lifting apparatus used, consisting of a substantial wire cable running from ground floor to roof level which after going through what has been called shutters (but I would prefer to call shackles) was winched up a winch on the back of defendant's lorry. The load, some 3½ tonnes was winched to a level two floors below the roof top, and was then dismantled from the lifting apparatus end placed in a position at that level whereby other contractors or sub-contractors could perform window cleaning duties.

8. The lifting of the window cleaning apparatus had concluded and the plaintiff and his two co-workmen were engaged in dismantling the equipment so as to return it to the employer's truck below. The foreman was engaged two floors below the roof top with other workmen, where the window cleaning apparatus had been deposited. On the evidence I am in no doubt, whatsoever, but that the workmen on the top floor of whom the plaintiff was one, decided to take a short-cut in order to hasten the retrival of the equipment to the truck below. Someone other than the plaintiff tied one end of a piece of nylon rope, some five foot in legth and it would appear one quarter of an inch in diameter (measured by relation to the little finger of various witnesses) to the wire rope and the other end of such rope was attached to one of the arms of the steel ladder protruding through the top floor through to the roof top. The plaintiff stated that the wire rope was untied and the loose end of this was dangling below the roof top down towards the floor below. He stated that at the time the accident occurred, he was uncoiling this rope and threading it through the shackle. It is quite obvious that without the rope being secured as it had been previously to a concrete pillar (which made a safe anchorage) that the whole weight of the lifting apparatus and wire cable used to lift the window cleaning equipment was borne by the short length of nylon rope. This was obviously dangerous. The plaintiff in answer to his Counsel during examination-in-chief and further explored by myself, acknowledged that at the time he knew this was dangerous. One might say there are shades of Lord Darnley, protecting Mary Queen of Scots because as events transpired, the nylon rope broke due to the weight attached, and in doing so, it was the plaintiff's arm that had to bear the whole weight of the lifting apparatus and wire rope. I do not propose to discuss the facts further except to say that I believe the foreman, who gave evidence saying that when he arrived, the plaintiff was lying or rather was in a position near the ladder with his arm trapped by the wire rope that had been coiled around his arm.

9. The defendant did not provide a satisfactory system of work and there was inadequate supervision. On the other hand, plaintiff was an experienced transportation worker. He had performed tasks of a similar type using lifting equipment for many years, Defendant stated that he could leave the workers to their own devices, I am sure as far as employers are concerned, this represents a satisfactory and practical attitude for exhibiting the work in hand.

10. The plaintiff at the time knew that he was performing a task which was dangerous. This was a short-cut. A different way in dealing with a common place situation. I am not impressed with his reasons for acceding to this unsafe system of work. He claimed that Wan Shing was a relative of his boss, he claimed that he had to do this, and as I have said, he, at the time knew it was an unsafe system. In fact, if one considers the wire cable 1½" in diameter as being the cable used as part of the lifting device, and then one considers that a quarter of an inch nylon rope is inserted at a crucial point to take up the strain it must have been obvious that the situation was fraught with danger.

11. 1 have considered Mrs. Barnes' submissions. She has introduced me to a totally new concept of looking at an accident from the point of view of assessing contributory negligence. Her submission was original and refreshing, but in the circumstances, I must hold that the plaintiff has been to a large degree author of his own misfortune. He took part in a short-cut, knowing it to be dangerous. Two other workers were involved. Wan Shing gave evidence that he did not see what happened. As I have said, I have rejected his evidence. Although another worker untied the wire cable, the Plaintiff accepted that the quarter inch nylon rope was being used to secure a weight of 300 kilos, and he then placed himself in a position of danger by threading the wire cable through a shackle thereby adopting an unsafe system of work which was not supervised by the defendant or any suitable has on delegated to effect proper supervision. In all the circumstances, I hold that the plaintiff is 50% contributorily negligent.

12. Injuries sustained. The plaintiff's right arm was all but severed, he being right-handed. By a miracle of modern mirco surgery the arm was reattached. However, there is little practical use that he can obtain from this arm. There is considerable cosmetic disability, large areas of scaring and a great sunken groove in the outer region. There is loss of muscle on the front of the forearm from the elbow region to the level of the lower third of the forearm, there is a deficit from full straighting of 60 ⁰, perhaps it car be bent to a position of 105 ⁰. There is loss of sensation and the plaintiff, for cosmetic reasons must wear long sleeved shirts.

13. The level of the injury was at the junction of the upper 3/4 and lower 1/4 of the upper arm, 3' to 4' above the elbow. He has been assessed as having a 68% disability. An interesting aspect of the medical report was that Dr. Wedderburn said:

Damages loss of amenities and pain and suffering

14. Mrs. Barnes had lumped these heads together and suggested a proper figure to be $135,000. I propose to adopt a similar approach. It is clear that the plaintiff is not being asked to undergo further treatment with a view to removing the appendage which Dr. Wedderburn described as useless. Nevertheless, I think allowance has to be taken into account in favour of the defendant when assessing the amount of damages payable under the head : pain and suffering and loss of amenities. Taking into account what Dr. Wedderburn had said, also the cosmetic and psychological benefit to the plaintiff of having a living hand protruding from a shirt sleeve and all the other matters relating to loss of amenities I am of the view that the figure to be given under this head is $125,000.

Damages

15. On all matters relating to damages, the wife was specific and I believe completely truthful whereas the husband was somewhat vague. I do not believe that he was lying or dissembling in any way but that there were errors of recollection. Whenever his evidence was in conflict with or differed from that of his wife, I have accepted the wife's evidence in preference to that of her husband.

Plaintiff's age

16. Before discussing the question of loss of earnings both past and future, an important question arises for determination, that of the age of the plaintiff. Certain evidence has been adduced as to his age. First, his Hong Kong identity card shows his date of birth as being 1926, whereas the Marriage Certificate (P2) issued by the Authorities in the People's Republic of China shows his age as 43 in 1976 when he married.

17. As to the Hong Kong identity card, plaintiff explained that after he arrives in Hong Kong and had taken up employment an identity card was obtained for him by his employer. However, when he returned to China in 1975 his date of birth was investigated and corrected.

18. At the time he married both his parents were dead. He had an elder brother, some six years older than he, and an elder sister, also a number of uncles and cousins and villagers from his home village who informed him of his age and he then accepted that his age which is shown on his Marriage Certificate as being 43 in 1976 was correct.

19. The plaintiff also gave evidence that when he came to Hong Kong in 1950 he was in his teens, i.e. about 16 or 17 years of age. It is Mrs. Barnes' submission that the plaintiff would then have been able to tell he was 17 rather than 24. As she said : "A 17-year old is still a teen-ager, a youth, a 24-year old has become a man".

20. I accept that the hearsay evidence as to plaintiff's age is relevant and probative, and I believe that the plaintiff in this regard is scrupulously telling the truth in all matters, particularly as to the investigations undertaken in China as to his age. He commented that the investigations took some 2 years. Certainly, the Authorities in the People's Republic of China saw fit to issue a Marriage Certificate showing the age described therein. This, of course, is not a document which can be accepted as evidence as to the truth of its contents, in this territory.

21. As far as the I/D card is concerned I believe that there must be an element of the plaintiff having stated his age at some stage, this being a declaration against his interest, and it follows that the I/D card, in the absence of other evidence, would establish his age at the present time as being 60. He is shown on that card as being born in China in 1926.

22. The age of a person is a matter of fact for the Tribunal of fact and may be proved by any lawful evidence. For example, in the instant case the admission of a party (I/D card). By the evidence of a person who was present at the birth of the person concerned. By the production of a birth certificate and the identification of that person with the person named in the certificate. By the Tribunal viewing the person concerned and forming an opinion as to his age. As far as the latter course is concerned, I am unable to come to any opinion as to the plaintiff's age. I had before me the photograph from his I/D card, and when I viewed him at the present time he appears to be a much older man than the age depicted in that I/D card, not taking into account the marriage certificate and his own evidence, which is hearsay. This is not surprising in view of the appalling injury which he suffered and the consequent pain and suffering arising therefrom. This has clearly left it marks upon him, and I do not believe any responsible tribunal could hazard any "guestimate" as the plaintiff's age which could come anywhere near approximating his correct age.

23. There is a full discussion on the problem in Smith v. Police⁽¹⁾ and I align myself with MacCathy, J. where he states :

"I am frankly acutely conscious of my inability to estimate age with any degree of confidence."

The learned judge then went on to discuss the evidence of "the person supplied" at page 858 and acknowledged that in England such evidence is generally considered inadmissible because of its hearsay character. In the event the learned judge held that the evidence of the person supplied has been so widely accepted in practice in the courts of New Zealand that he acceded to the urging of counsel and accepted that the exception to the hearsay rule had been so widely accepted in practice that the courts could expressly recognise it. However, he reserved the question of weight expressly holding that "weight is always a matter for the trial court". I would hope, however, that whenever there is doubt as to the accuracy of the evidence or where there is necessity for stronger proof coming from a birth certificate, Often someone present at the birth of the person concerned will be required.

24. The matter has also been considered in Canada in R. v. LaChapelle⁽²⁾. There was a refreshing approach adopted and as pointed out by Kaufman, J.A. at page 372 -

The learned judge referred to Cross on Evidence (1958 Edition) " ..... there seems to be no valid reason why someone's statement of his age should not be prima facie evidence of that fact ....."

25. In considering the English position one must remember that at the time the hearsay rule was formulated as far as age was concerned, England in many respects had a village like atmosphere. A person seeking to prove his age could have recourse to any one of a number of likely sources i.e. persons present at the birth, mid-wives, the local doctor relations and so on. However, the position in Hone Kong differs substantially. This is a ploygot community with a substantial portion of the population having been born outside the borders of this territory. Many residents have entered as refugees, as immigrants, legal and illegal. Many have left regions, devastated by war where records are often not available, and if available are not forthcoming from the authorities concerned. There are those who have come from regions where record keeping is not so particular as in other parts of the world. Under these circumstances, I believe that the Common Law should be alive to the situation. As MacCathy, J. said in Smith v. Police⁽¹⁾ "The hearsay rule is judge made law and when a particular application is no longer helpful but is obstructive it should be cleared away."

26. In addition to plaintiff's evidence as to his belief as to his age, derived on what he has been told which is clearly direct hearsay there is also the fact that he should, as Firs. Barnes has pointed out, be able to tell whether he was nearer 17 rather than 24, as the identity card showed at that time.

27. In all the circumstances, I am of the view that, plaintiff's evidence should be accepted, rather than that of the identity card, and I hold that at the present time he is aged 53.

Loss of Earnings Future and past

28. Having held plaintiff's age to be 53, I apply a multiplier of 8. Plaintiff is a casual worker and would be earning $160 per day. I believe that on the evidence that I have before me, conflicting as it is, a reasonable working month would be 20 days. Therefore his income would be in gross terms $3,200 per month. I further believe that he has some earning capacity and I assess this at $700 per month. Accordingly the multiplicand is $2,500. I assess his loss of future earnings at $2,500 x 12 x 8 = $240,000. His loss of wages until the present time i.e. 25th July 1982 until 20th June 1986 is $3,200 per month, 3 years and 10 months, $147,200 together with 15 days at $160 per day = $2,400, $149,600 less allowance for monies earned as acknowledged by plaintiff, say ten days = $1,600, balance $148,000. A further deduction is necessary for his earning capacity over the past 12 months $8,400 - leaving a net balance of $139,600.

29. I turn now to deal with items (b) - (f) of the Plaintiff's prayer for special damages. The first is item (b) $625.20. I accept the evidence of the wife completely in this regard. I believe she visited the Plaintiff every day at Queen Mary Hospital, this for 72 days and that the return fare from Lam Tin Estate at Kwun Tong where she was residing at the matrimonial home, totalled $6.60 (her own words describing the return fare were "to and fro"). The sub-total is $475.20. She also visited every day at Margaret Trench Medical Rehabilitation Centre which was situated at Kwun Tong. This by bus at a return fare of $1 for 150 days, sub-total $150. Total - $625.20.

30. I accept the wife's evidence as to the baby-sitting fees and believe that this was for a period of 12 months with fees at $400 p.m. including food and accordingly, I allow the sum as claimed $3,600.

31. The herbalists fees were claimed at $6,000. I believe that the plaintiff did visit herbalists and that his wife accompanied him on each occasion. The first herbalist was one Liu Chi Keung. I accept that there were daily visits for 10 days and thereafter every other day for the balance of one month. I assess the visits at 20 and accept the wife's evidence that there was a deduction from the usual fee charged of $100 down to $80, total $1,600. Also, there were prescriptions given for two dosages per visit at $58 per dose, making, a total of $116. This for 20 days, totals $2,320. I further accept that there were visits, as the wife described, 10-20 times to another herbalist Chan Chu where the fee was $30. I am prepared to allow 15 visits at $30, total of $450. The total amount under this head is $4,370.

32. Nourishing food is claimed at a total of $12,000. The wife claimed that nourishing food was provided for some 2 years at a total cost of $12,000. Receipts were not available. I am prepared to allow $20 per day for nourishing foods but I am not prepared to allow more than (12 months) i.e. 365 days x $20 = $7,300.00.

33. Damaged clothing was claimed at $25. The plaintiff giving evidence said that his shirt was "cheap", cost something like $20. Defendant stated that he accepted this. Accordingly, I allow a $20.

34. Deduction for payment paid by defendant to the plaintiff under the provisions of the Employees' Compensation Ordinance, Cap. 282 $146,154.30, balance $114,103.30.

35. Interest on special damages at 6% per annum from date of accident until the date of judgment and interest at 2% from date of service of the writ to date of judgment for general damages in respect of pain and suffering and loss of amenities. No interest on the sum awarded for loss of future earnings.

36. Costs to Plaintiff to be taxed in accordance with Legal Aid Regulations; Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

(1)    [1969] NZLR 856

(2)     [1978] 38 CCC (2d) 369 (Que CA)