TAI YUK WONG v. CHONG KWOK FUNG AND ANOTHER

cacv 177/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 177 of 2006

(on appeal from DCPI NO. 1405 of 2005)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal by the defendants from a judgment of HH Judge Yuen given on 8 March 2006 in a personal injury case.  The defendants appealed one aspect of the award of damages.  At the conclusion of the hearing this court reserved judgment which we now give.

Background

2.  The plaintiff was injured in a car accident when the car he was driving was hit in the rear by a vehicle driven by the first defendant.  As a result the plaintiff, who was 33 at the time, suffered injuries to his neck, shoulders and his upper limbs.  The accident occurred on 29 July 2003 but the effect of the injuries persisted and indeed the plaintiff had sick leave certificates right up until August 2005.

3.  At the time of the accident the plaintiff was working as a Land Executive with the Lands Department.  He had commenced that employment in March 1998.  The plaintiff’s employment at the Lands Department was, throughout, on a temporary basis.  So, for example, in November 2000 his employment was extended from 8 March 2001 to 30 September 2001.  On 30 August 2001 the plaintiff was informed that approval had been given to extend his employment for 182 days up until 31 March 2002.  That appears to have then been extended because on 10 June 2002 the plaintiff was offered a further extension from 20 June 2002 up to and including 30 September 2002.  It is noteworthy that the letter offering the extension included a statement that the offer of employment was subject to the plaintiff’s physical fitness as well satisfactory service and conduct in the meantime.  Not only did that letter, as indeed other letters offering extension of service, contain the statement that there was no guarantee or implication that further employment would be offered on the expiry of the period offered but, on 19 June 2002, the plaintiff was sent a letter advising him that it had not been possible to identify an established post in the Land Executive grade which could be made available to accommodate him beyond 30 September 2002.  He was given three months’ advance notice that upon completion of the agreement on that date his service would no longer be required.

4.  On 19 September 2002 he was offered further employment in the same position from 1 October 2002 until 31 March 2003.  Again there was a reference to the requirement of physical fitness and that there was no guarantee or implication of further employment.  On 19 March 2003 the plaintiff was informed that approval had been given to extend his employment for 263 days from 31 March to 19 December 2003.  There was no specific reference in that letter to physical fitness but there was the same reference denying a guarantee or implication of further employment.

5.  It was in that period, of course, that the accident occurred.  Despite the fact that, apart from one week, the plaintiff had sick leave from the end of July, by letter dated 22 October 2003 he was informed that approval had been given for his current agreement, which was due to expire on 19 December, to be extended until 31 March 2004.  Again, the letter informing him of that stated that there was no guarantee or implication that there would be any further appointment.

6.  Shortly thereafter the plaintiff was informed that because he had taken more than 91 days consecutive sick leave a Medical Board would be convened under the provisions of the Civil Service Regulations to examine him and to obtain advice as to whether he should be granted further sick leave, be invalided from the service or whether any other action should be taken.  It is not known what the result of the Medical Board was save that it transpires that although the plaintiff did have sick leave after December 2003 he did return to work.

7.  By letter dated 30 December 2003 the plaintiff was informed that he would no longer be employed after 31 March 2004.  The letter stated amongst other things:

“Having reviewed the existing and projected resource situation in the Land Executive grade and consulted with the Public Service Commission, I have to advise that it has not been possible to retain your services as an Land Executive with this Department after the expiry of your current agreement on 31 March 2004”

8.  What is, perhaps, of some interest is that a fellow Land Executive of the plaintiff was given a letter, virtually simultaneously, extending her employment from 1 April 2004 to 23 January 2005.  Ultimately, in December 2005, that other Land Executive was given approval to transfer to local permanent and pensionable establishment.

9.  This court was taken, with some degree of thoroughness, through the various appraisal reports made in respect of the plaintiff in March 2002, February 2003, November 2003 and March/April 2004.  In summary it might be said that the reports were very favourable.  The plaintiff appears to have been successful at his work and was appreciated by his superiors.

10.  One of the matters which emerged from the plaintiff’s own evidence was that the work of the Land Executive involved work on construction sites, including inspecting construction works and monitoring the progress thereof, climbing up and down stairs and scaffolding, carrying heavy tools to do inspection and being involved in major site clearances which required going down tunnels and onto flyovers.  The plaintiff stated in his witness statement that after his accident he was assigned to do less important duties as a result of his sickness and from December 2003 onwards he was transferred from the Government Land Control Team to Lease Enforcement Team which involved more office work.

11.  On the evidence, it is clear that the plaintiff’s accident must have made it more difficult for him to carry out full duties and, indeed, the judge observed that his absence from work gave his supervisor no chance to assess his suitability to work in the Lease Enforcement Unit at least until after the decision not to re-engage him had been made.  In paragraph 31 of the judgment the judge said:

“I do accept the plaintiff’s evidence that the Land Executive post has not been removed from the Lands Department. In light of the generally positive comments of his supervising officers on the plaintiff’s work performance in the Land Control team in February 2003, I do accept the plaintiff’s employment contract would likely be extended in the Lands Department had the plaintiff been allowed a chance to exhibit his working ability with the Lease Enforcement Team.  His sick leave, the validity of which is not contested by the defendants, prevented the plaintiff from attending to his work since the date of the traffic accident. I accept, on balance, the plaintiff’s injury and his sequential sick leave is causal to the eventual non-extension of the plaintiff’s employment with the Lands Department.”

12.  The judge went on to say in paragraph 32 that she accepted that had the plaintiff had not been prevented from work on account of his pain as a result of his injuries he would like most likely have been given a further extension of another 1½ years of his employment contract with the Lands Department.  It is that finding which was challenged on this appeal.

13.  Although Mr Yau, who appeared on behalf of the defendants, sought to emphasise the satisfactory nature of the plaintiff’s work which would have encouraged an employer to continue his employment and, also, the fact that there had been a series of notifications to the plaintiff that his employment would not be continued and thus it might be said that the plaintiff could have had no legitimate expectation of continued employment, I do not consider that the arguments raised by the defendants on this appeal could displace the finding of fact by the judge.  It may be that it would have been open to the judge to hold that the plaintiff’s employment would inevitably have come to an end on 31 March 2004, but history shows that there had been a series of reversals of the various threats of termination of employment.  Moreover the fact that a contemporary of the plaintiff was given further employment leading to permanent employment indicates that it was, indeed, open for somebody in the plaintiff’s situation to have succeeded in maintaining employment.

14.  In my view it was open to the judge to come to the conclusion that the effect of the injuries, preventing the plaintiff from working from the beginning of August through to the end of the year, was in itself a sufficient handicap to the plaintiff’s further advancement.  Even if the size of establishment in the Lands Department were being downsized I consider that the plaintiff may well have been handicapped in competing for the posts that were to be available.

15.  In those circumstances I do not consider that this court should interfere with the decision to which the judge came in paragraph 32 of the judgment.  I would therefore dismiss this appeal with an order nisi of costs in favour of the plaintiff.

Hon Le Pichon JA:

16.  I agree.

Hon Sakhrani J:

17.  I also agree.