SIU KWAI HUNG v. NATIONAL FORTUNE INVESTMENT LTD. and Another

1995, No.PI577

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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J U D G M E N T

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1. In April 1988, the plaintiff was employed as a delivery worker by Ching Cheong Hong Provisions Company Limited. On several occasions, he had made deliveries of provisions to the restaurant known as Kong Wan Sea Food City which was run by the 1st defendant at Units 5, 6 and 7 on the Ground Floor and Units 1, 2 and 3 on the 1st Floor of Yue Siu Building, 160-174 Lockhart Road, Wanchai, Hong Kong.

The plaintiff's case

2. On 23rd April 1988, he was instructed to deliver certain quantities of provisions including cereals, sugar, salt, starch and flour to the restaurant. Some of the goods he carried on his shoulder and the rest he held in his hands. The total quantity was about 100 lbs in weight. According to him, the lorry stopped as usual in the vicinity of the restaurant. The goods were unloaded from the lorry and he carried them to the restaurant. He turned from the main road into a side lane and arrived at the rear exit of the restaurant. He said that on previous occasions, he had made use of this exit to gain entry. There was a metal door which was opened. As he entered, there were two flights of staircase leading up to the kitchen of the restaurant on the 1st Floor. The two flights of steps were separated by a landing. He went up the staircase carrying the goods on his shoulder and in his hands. While he was negotiating the second flight of staircase, he slipped on reaching the fourth or fifth step. He turned, twisted and fell backwards with his buttock landing on the landing of the staircase and his left heel brushing against the wall. The goods he was carrying fell off.

3. He said that the staircase was not well lit and there was water there. Someone was using the landing on the top of the second flight of staircase to wash dishes. Water came down and wetted the staircase. After his fall, he leaned against the wall for about 5 to 10 minutes. The lady who was doing the washing on the top landing of the staircase asked what had happened and he said it was alright. After a while, his colleague, having made his own delivery elsewhere, did not see him and so came to find him at the landing. The colleague completed the delivery for him. They then went back to the lorry. The lorry went on for another delivery before making the return trip to Kowloon. It was then that he was sent to the Emergency and Accident Department of the Kwong Wah Hospital. He was examined and treated. He was given some injection and medicine and was then discharged. I shall come back to the injuries which he had allegedly suffered.

4. It is the plaintiff's case that the 1st defendant was the occupier of the staircase and therefore owed a common duty of care to him as a visitor to the place. The 1st defendant was in breach of this duty of care in failing, among other things, to keep the staircase clean and safe. He therefore claims against the 1st defendant for loss and damage suffered by him as a result of his injury during the course of the accident.

5. The 2nd defendant, the company which managed the building under a Deed of Mutual Covenant was brought into this case when the 1st defendant in its Defence alleged that the 2nd defendant was the occupier of the place where the accident occurred. After the plaintiff's case, and upon the admission of certain facts by the plaintiff and the 1st defendant, a submission of no case to answer was made on behalf of the 2nd defendant. It was not seriously challenged. I upheld that submission and subject to any argument on costs, the 2nd defendant dropped out of this case.

The defence

6. The main defence of the 1st defendant is that the plaintiff's evidence of how and where the accident occurred was not credible and should not be accepted. The accident did not happen at the staircase.

7. The first point taken was that the plaintiff did not go through the staircase or at least should not have done so. Mr Wong (DW1), the former manager of the 1st defendant, said that it was the 1st defendant's policy that any delivery should be made through the main entrance and via the goods lift on the Ground Floor. I find this difficult to accept. I do not believe that the restaurant would have insisted on such a policy if there was indeed another alternative or convenient route. As the plaintiff had pointed out, delivery workers like him would sometimes be half-naked and carrying heavy loads on their shoulders or in their hands. It would be difficult to imagine that the restaurant owner or managers would allow such delivery workers to go through the lobby of the building where people, including customers, would come in and out and to go to the restaurant premises carrying these loads in the presence of patrons to the restaurant. Furthermore, I notice that the kitchen was in fact quite near the end of the staircase in question. It would be convenient both for the restaurant as well as for delivery workers that deliveries of provisions would be made through the staircase directly to the kitchen. I do not accept that there was such a policy as alleged by the manager of the 1st defendant.

8. Mr Wong said that the staircase was only used as an emergency exit and that the door on the Ground Floor was usually closed and could only open from the inside. Madam Chan (DW2), the cleaner, also testified to the effect that the door at the exit would be closed most time of the day. She only opened it once or twice during the day after she had cleaned the staircase and the landing in order to facilitate drying the place. I do not think they were telling the truth. If the door was closed most of the time and could only open from the inside, any delivery worker including the plaintiff trying to make use of this route would have to knock on the metal door or to call the people inside to open it. Bearing in mind the length of staircase, it would be most inconvenient if not also difficult for any delivery worker to gain entry through this door. If Mr Wong and Madam Chan were telling the truth, it is unlikely that delivery workers who had been to the restaurant before would have made use of that staircase. If no delivery worker would have used that staircase, why then would the plaintiff have lied that he was injured at a place where no outsider would have gained access to? I note that from the evidence of Mr Wong and Madam Chan that they seemed anxious to cover up the fact that this exit had been used for any other purpose. Both tried to emphasise that the staircase was used only as an emergency exist. It is however clear from the photographs that the staircase and the landing thereat were indeed used as storage for miscellaneous items. This was also confirmed by Madam Chan during her cross-examination. I do not believe for one moment that the exit with the staircase leading to the kitchen was only used as an emergency exit. I find that the staircase was used by the 1st defendant for storage and that it had indeed been used for entry and exit for the delivery of provisions to the kitchen of the restaurant. I accept that the plaintiff and his colleagues had made deliveries through the staircase on four or five previous occasions.

9. The next point raised by the 1st defendant was that it was incredible for the plaintiff to say that there was a lady washing dishes at the top of the staircase and that she would have ignored the accident if there was one and just carried on with the washing. It was suggested that it was unbelievable that the lady did not see fit to report the accident, if any, to her boss. I do not think that if there was an accident as described by the plaintiff, it was incredible the lady doing the washing at the top of the staircase would have failed to make a report to the manager or the owner of the restaurant. This was not a case where someone had fallen and had a broken limb. It was also not a case where someone had an accident and was bleeding. Nor was it a case where the person having the accident had passed out. Slipping and falling for a few steps at the staircase was not normally a big event. If the plaintiff was telling the truth, he was merely leaning against the wall and had only stayed there for a while. After the delivery was made by his colleague, they left together. The plaintiff did not need the help of the lady. In my view, at that time, nobody thought that this was a serious matter. There was no need for the lady to do anything or to report the matter to the manager.

10. Similarly, I do not find it surprising that after the accident, the colleague had come to continue with the delivery. As I said, the plaintiff was leaning against the wall, he was not bleeding and had not passed out. The goods were at the landing of the staircase and were quite near the kitchen. It was, in my view, natural and understandable that the colleague would have continued to complete the delivery before he came back to leave together with the plaintiff. Neither he nor the plaintiff would have thought that such a fall would be a very serious matter. For the same reason, it is also not surprising that after delivery at the restaurant, they saw fit to make a last delivery and then returned to the Kowloon side before sending the plaintiff to the hospital for treatment.

11. Another point raised was that if the plaintiff's foot had slipped backward, he would have fallen forward. It was also suggested that even if he had fallen backward, the part of his body which took the brunt would be his buttock and not the heel. If the accident had occurred on level ground, I would accept that if the foot slips backward, the body would normally fall forward. However, this is an accident which was alleged to have happened on a staircase. If the foot slips backward, one would lose balance. Bearing in mind that the plaintiff was carrying a load on his shoulder and was holding another one in his hand, it would be natural for the plaintiff to turn and twist as he described. And if he did that, it was understandable that he would fall backward down the staircase. In my view, in the nick of time, a person slipping would be subject to a natural reaction. He might not, after the event, know exactly what happened. From the description of his fall and the condition in the staircase, I do not think it is impossible that the plaintiff's heel would have brushed against the wall. In fact, he complained that his heel hurt and there was some pain on his back. His description and complaint were consistent with what was alleged to have happened.

12. The 1st defendant also relied on a medical report made by a doctor in the Orthopaedic Department and submitted that the plaintiff did not have the accident at the staircase. It is not disputed that the plaintiff was referred to that department about a month after the alleged accident. At that time, he was still feeling pain at the heel. The medical report referred to a history of jumping from lorry. The plaintiff said that when he was attending the doctor, he told the doctor what happened and it seemed to him that the doctor was making some notes. However, he could not explain why the doctor would have put down that it was a jump from a lorry. He denied that he had ever said that to the doctor. I note that there was a Form 2 which was a notice given by the employer to the Labour Department of the occurrence of an accident by an employee. This was dated 23rd June 1988, i.e. approximately two months after the accident. In this form, the employer stated that the accident was inside the restaurant on the 1st floor of the building. The employer could only have been informed by the plaintiff. So there are in fact two conflicting documents as to the place of accident and the manner of it. The medical notes said that the plaintiff said he had jumped from a lorry whereas the notice of the employer said that he told his employer it was an accident inside a building.

13. Having considered this part of the evidence, I do not think I should attach too much weight to these documents. In May and June 1988, i.e. about one or two months after the accident, the plaintiff's main concern was, as he testified, that he would get employee's compensation. For that purpose, whether it was jumping from the lorry or slipping on the staircase did not matter one way or the other. I do not believe that at that time, the plaintiff would have in mind a common law action against any other person. If the accident had really happened in the street when the lorry was parked by the side of the road and the plaintiff had jumped down from the lorry, it would need much imagination on his part to say that he had injured himself through slipping on a staircase which was not used for delivery. I do not see any reason why as early as May or June 1988 he would have invented a story in order that in future he could make a common law claim against any third party, in particular, the 1st defendant.

14. I am aware that a doctor would usually try to ascertain how an accident happened so that he could make a proper diagnosis. It is of course strange for the doctor to put down that the plaintiff had jumped from a lorry. However, I do not think if the doctor had made a mistake, he would be negligent in his examination or treatment of the plaintiff. It may be due to various reasons, such as a misunderstanding between the doctor and the plaintiff or a mistake made by the doctor in taking down his notes. I bear in mind that while the plaintiff mentioned in evidence that he felt some pain in his heel and his back, the initial sick leave referred only to the pain in his heel. It was in the second slip for sick leave that there was a reference to his sprained back. Then from the third slip onwards, the main reference was to the heel. This might have given rise to a misunderstanding on the part of the doctor. In fact the plaintiff was treated on the heel only.

Assessment of the witnesses

15. I have considered the evidence of the plaintiff in the light of the other evidence. I find him to be an honest witness. He was not concerned to exaggerate his claim and had in fact given evidence which was against his own interest. He had made a claim in his writ for medical expenses. In his evidence, he said that he did not pay for any because it was all paid by the Social Welfare Department. Another example was that he made a claim for special food. However, in his evidence he said that he did not incur any such expenses. His answers remained the same even when he was pressed by his counsel. The main issue before me is whether the accident occurred as described by the plaintiff. If the accident did not occur at the staircase but in the street where the lorry parked and when he had jumped from the lorry, I do not believe that he would have invented the whole thing and framed up the 1st defendant.

16. There is, of course, the evidence of the defence witnesses. They did not impress me as witnesses of the truth. They were anxious to try to cover up what they knew about the restaurant. I shall take a few examples. When Mr Wong (DW1) was asked what his responsibility was, he said that he was there to ensure that the premises were maintained in a clean and safe condition. That is of course important. But it is surprising to hear that the manager of a restaurant would put this as the first of his priorities, although he later modified his answer by saying that his primary duty was to take care of the business in the restaurant. Then he said that the staircase was used as an emergency exit and not for any other purpose. However, he further said that he had instructed his workers to clean the staircase on a daily basis and would also inspect the place daily to ensure that it was clean and dry. If the staircase was really used as an emergency exit only, it is amazing that he was so concerned as to have asked workers to clean the staircase and to have inspected the place personally in that frequency. He later admitted that there would be kitchen utensils and goods stored in the area of the staircase. Another answer given by him in fact showed his anxiety to deny that the top of the staircase had been used for washing purposes. When he was asked what he would do when he saw his workers washing dishes at that place, he said that he would dismiss the worker immediately. He was obviously grossly exaggerating. I do not think that the manager of a restaurant would have placed such emphasis on such conduct as to order instant dismissal. As a matter of fact he was in charge of many things in the restaurant and I doubt if it was his primary duty or top priority to ensure that the staircase was only used as an emergency exit and was clean and dry all the time. During cross-examination, he admitted that there was in fact no real necessity for him to go to the place on a daily basis. He mentioned that there was a carpet in the kitchen to prevent the escape of water from the kitchen. This was also confirmed by the cleaner Madam Chan (DW2). She said that her main duty was to collect soiled towels and other articles, clean the rear staircase and help in washing dishes. I do not believe that she was telling me the truth when she said that the metal door at the exit was closed most time of the day and was opened only once or twice when she cleaned the staircase in order to let the place dry quicker. In fact her evidence showed that there would be occasions when the staircase would be dirty or wet. At first, she said that soiled towels would be placed overnight in the landing area between the two flights of staircase. The towels would only be washed in the morning. In other words, dirty towels would be placed there for some time. Furthermore, she said that it was necessary to clean the place a second time because there would be people putting things there overnight and these might be wet with water and so she had to clean the place on the next day. Later she somewhat corrected herself and said that it was necessary to clean the staircase a second time because people put dishes and boxes there and she would have to tidy the place by clearing up the rubbish left behind by the wrappings. I also find this rather surprising. If it was mainly due to the rubbish and the wrappings, it would not be necessary for her to clean the place with water and open the door to let it dry more quickly.

17. The more important piece of evidence come from the photographs which were taken by the plaintiff of the staircase. I was told that these photographs were taken in 1990. These photographs, according to the plaintiff, showed conditions which were similar to the time of the accident. There is no serious challenge on this part of the evidence. When one looks at the photographs, it is quite clear that there were dirty places along the staircase and landing. There were articles, including containers and table boards, along the staircase and the landing. It is quite clear to me that if that was the condition of the staircase at the time of the accident, then it was not well kept at all. I doubt if the so-called carpet could keep away water which might come from the kitchen. This is because if it were, one would not see the stains and dirt along the staircase as shown in the photographs. Furthermore, it seems that during the course of the day, workers in the restaurant would have from time to time gone to that place either to store articles or to fetch these things for use in the restaurant. In my view, the place was not well kept and was wet.

18. It was argued that if I do not believe that there was someone washing dishes at the top of the staircase then the plaintiff must have failed to prove his case. I do not think this would follow. The plaintiff was carrying some goods on his shoulder and in his hand and was making his way up the stairs. He noted someone at the top of the staircase doing some washing. He had not reached the top of the staircase. He was only about four or five steps up the second flight. It is not surprising that he did not see what exactly the lady was doing at the top of the landing. He might have simply guessed that she was washing dishes at that place. He was trying to explain why the staircase was wet and why he had slipped. In my view, there is ample evidence to show that the staircase was indeed dirty, wet and not properly kept. It is not crucial that there must be a lady at the top of the staircase who was actually washing dishes.

19. It was also alleged that the behaviour of the plaintiff while he was giving evidence was inconsistent with his injury and that he was either exaggerating his injury or faking them. With respect, I do not notice such acting or exaggeration when he was giving evidence. As far as I could observe him, he certainly looked genuine.

20. As far as the injuries are concerned, it was suggested that there was a new complaint in 1989 and this was caused by a new injury. Having looked at the medical reports and the medical chits, I do not think this allegation can be sustained. As early as late April 1988, the second medical chit had already contained the complaint of a sprained back. That was at p.85 of the Bundle. This appeared again on the next medical chit. Another one was on p.105. The report by Dr Yeung also referred to a sprained back. It seems that the plaintiff had also injured his back during the accident. This was due to a slipped disc at the L4-L5 region. This might have caused the pains in the thighs several months later. The x-ray examination had confirmed that. I do not think this could be regarded as a new injury. It was certainly a complaint which become more acute in the course of time. In my view, there is evidence to support that it was in fact caused during the accident which occurred on 23rd April 1988.

21. Having considered the evidence and submissions, I have come to the conclusion that the accident did occur at the staircase while the plaintiff was making delivery to the 1st defendant's restaurant. It was not disputed that the 1st defendant was the occupier of the staircase. I also find that the staircase was not well kept and the place was wet and slippery. The plaintiff while going up the staircase with his loads, slipped and fell and injured himself. As a result of this accident, he had injured his back and his heel. I find the 1st defendant was in breach of the common duty of care towards the plaintiff.

Contributory negligence

22. It was argued that the plaintiff was also guilty of contributory negligence. It was submitted that he had made similar deliveries before, that he knew the place would be unsafe, that he did not take enough precautions for his own safety and that he had put on slippery shoes and did not use the handrail. It was suggested that he should be found guilty of at least 50% contributory negligence.

23. I do not think this argument can be sustained. It was the duty of the plaintiff to make deliveries. He would be making deliveries to various places. He mentioned that he was wearing the Chinese style canvass shoes with rubber soles. He said that it was less slippery than the normal canvass shoes. He said that there was little he could do and that the only thing was to walk slowly. He had no hand to use the handrail. He said that if there was something he could do at one go, he would do it. That was the practice of delivery workers. He would try his best to be more careful. It was not their practice to split the loads. I think in the circumstances of this case when delivery workers like the plaintiff were making deliveries, it would be too much to expect him to split his loads. He had made deliveries to the restaurant before. There is no evidence that the hundred pounds on his shoulder and in his hands were too much for him or more than was usual for him. There was nothing to show that he did not exercise care and walk slowly up the staircase. There is no evidence that the so-called Chinese style canvass shoes with rubber soles were not sufficient or were dangerous in the circumstances. In my view, the plaintiff was not guilty of any contributory negligence.

Conditions & treatment after accident

24. After the accident, the plaintiff went to the Kwong Wah Hospital for examination. The doctor examined him and prescribed some medicine for him. He was also x-rayed. He was given a medical chit for sick leave for four days and asked to return for checking. In the first medical chit, it was stated that he had pain at the heel. When he returned and was examined, this time the medical chit said that he had a sprained back. It was his case that the sprained back was also sustained during the accident. He received medical attention for his heel. After a month, he was referred to the Orthopaedic Department for further examination. It was found that there was tenderness at the posterior talo-fibula fragment. He was given drug treatment and on subsequent follow-ups, there was still persistent pain and tenderness over the left heel. X-ray examination showed a small translucent area at the posterior half of the left os calcis. He was then given ultra sound treatment by a physiotherapist. Notwithstanding the treatment, he still complained of pain in the left heel region. He later had injection locally of steroid. But no improvement was seen. In about April 1989, he complained of pain and paresthesia over the anterior aspects of both thighs. This was treated by the doctors as a sprained back but there was no improvement. He was then given pelvic traction and back physiotherapy. It appears that the pain and paresthesia over the thighs were the result of the sprained back. Because of the poor response towards treatment, he was admitted to hospital for further investigation in July 1989. A myelogram was carried out. It showed an anterior indentation at L4/L5 compatible with prolapsed intervertebral disc with radiculopathy. He declined surgery and was discharged after a course of physiotherapy. He continued to have similar left thigh and heel complaints and was treated with a pelvic traction and heel injection of steroid. He was discharged subsequently. He attended follow-up physiotherapy. Dr Yeung in his medical report stated that the plaintiff had a fracture of left Os calcis and prolapsed disc of L4 to L5 level. The doctor took the view that should all conservative treatments fail, then operative excision of the inflammated plantar fascia can be done. He estimated that the success rate was 95%. He also took the opinion that the possible cause of left heel pain was radiation from the back, i.e. the disc prolapse of the L4 to L5 level. Since his back condition had recovered after physiotherapy and the present signs were not consistent with disc prolapse, it could be concluded that his heel pain was not related with the disc.

Present conditions & disability

25. The plaintiff gave evidence and complained that he could now walk but not for anything longer than 10 minutes. He had limited flexibility of the legs. His heel is still in pain. His legs are feeble. He cannot stand or walk for too long. During the hearing, he had to stand up from time to time after having sat down for some time.

26. The assessment by Dr Yeung was that the plaintiff has a 10% loss of earning capacity. He cannot perform heavy labour. And after a successful heel operation, the loss of earning capacity will drop to 2% and by then he can perform heavy labour.

Pain, suffering & loss of amenities

27. From the assessment of the doctors and the evidence given by the plaintiff, it appears, and I accept, that he is probably very near the lower end of the serious injury category which covers cases where the injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the injured person. I was referred to a number of cases including Lee Hon Chuen v. Fung Kin Sang and Anr. (unreported) HCA No.A1105 of 1989 (judgment on 13th June 1991) and Chan Kwai Ngor v. Leung Fat Hang (trading as Fu Dor Restaurant), (unreported), HCA No.A4053 of 1990 (judgment on 3rd April 1992). It appears from the evidence before me that the injuries suffered by the plaintiff in this case are less serious than those suffered by the plaintiffs in these two cases.

28. In the case of Chun Yat Nam v. Attorney General for and on behalf of the Commissioner of Police (unreported), Civil Appeal No.92 of 1994 (judgment on 23rd December 1994), on page 28, the Court of Appeal set out some updated levels of award for pain, suffering and loss of amenities. For injuries within the serious injury category, the award was between $250,000 and $335,000 (in December 1994). Counsel for the plaintiff also referred me to the recent case of Chan Pui Ki in which the learned Judge suggested that the current level of award for the serious injury category should be between $400,000 to $540,000. She suggested that I should adopt that level and award $400,000 in the present case.

29. I think counsel for the 1st defendant was correct in saying that the suggestions in Chan Pui Ki had not been established as the proper guideline. I would at this stage prefer to follow the Court of Appeal's level of award in the case of Chun Yat Nam. Counsel for the 1st defendant accepted that the level of award for the serious category started at HK$270,000. However, he argued that given the nature of the plaintiff's injury to the heels, the award could only be around $100,000 to $135,000.

30. In my view, this is a case where the award for pain, suffering and loss of amenities which should be less than that for the serious injury category. However, I do not accept that the injuries suffered by the plaintiff was only confined to the heel. Bearing in mind the injuries, his conditions and residuary incapacity, I would assess the award under this head to be $235,000.

Loss of earnings

31. At the time of the accident, the plaintiff was earning $4,224 per month. He was granted sick leave from the date of accident to 10th November 1989. That is about 18½ months. He said that he was not able to find other jobs. He could not do his previous work as a delivery worker because he had no strength in his legs. He could only find work as an odd job worker with a mahjong school and then because he had to stand for long period of time, which he could not do, he had to switch to work as a casual worker doing packaging. He managed to find the work of a clerk on 1st September 1990. He has continued in this job until today. His present day salary is higher than what he had earned as a delivery worker.

32. Counsel for the plaintiff submitted that he should be entitled to loss of earnings from the date of accident until 1st September 1990. On the other hand, counsel for the 1st defendant submitted that the loss could only be up to October 1989. This was because the plaintiff had not given satisfactory evidence as to his earnings during the period between October 1989 and September 1990. It is unfortunate that the plaintiff fell short of giving me an idea of what he had earned during this stated period. Whatever the reason for this omission, it means that I am not assisted as to how much he had earned and hence how much he had actually lost in earnings during this period of time. In these circumstances, I can only hold that the plaintiff had failed to establish to my satisfaction that he had lost any calculable earnings during this subsequent period.

33. The parties seemed to agree that I should adopt a 10% increase per year in wages due to inflation. Adopting this rate, it appears that the wages in November 1989 would be, according to the 1st defendant's calculation, about $4,900. Taking the median figure, the average earning would be about $4,563 per month. For the period between the date of accident and 10th November 1989, there are 18½ months. The actual loss of earnings would therefore be $4,563 x 18½ = $84,415.50.

Loss of earning capacity

34. The defendant was a delivery worker at the time of the accident. He is now working as a clerk and earning more than he did. He is therefore not claiming for any loss of future earnings. However, counsel asked for an award for loss of earning capacity. It was submitted that because of his present conditions, he would be handicapped in the labour market and that should he lose his present job, he would be suffering a loss.

35. The principles governing a claim for loss of earning capacity had been discussed in Mcgregor on Damages, 15th Edn., para.1466 :

"... There is the possibility that the earnings which the plaintiff is now making may be cut down because the injury has depreciated his value as an employee, for a partial disability frequently does not affect a man's wages or salary immediately but nevertheless he would seem at a disadvantage in the labour market should he have to look for fresh employment; the courts have accepted that this factor too must be taken into account. ... An alternative course, with the plaintiff disadvantaged in the labour market, is to make a separate award for this head of damage, distinguishing between the loss of actual earnings - of which indeed there will be none if the plaintiff has continued in employment at the same wage as formerly - and the loss of earning capacity represented by the physical handicap produced by the injury. This is the course which the courts today take in this area. The development along these lines started in the mid 1970s with the decision in Smith v. Manchester Corporation - indeed damages for handicap in the labour market are commonly referred to as 'Smith v. Manchester damages' - and a cluster of further Court of Appeal decisions appear to be soon after. ... In Moeliker v. Reyrolle & Co. the need to show a substantial, rather than a negligible, risk of the plaintiff's being thrown on the labour market."

There is a further more detailed discussion in the case of Moeliker. Browne, L.J. at [1977] 1 WLR 132, 141 :

"Where a plaintiff is in work at the date of the trial, the first question on this head of damage is : what is the risk that he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful' risk : see Davies v. Taylor (1974) AC 207, Lord Reid at p.212 and Lord Simon of Glaisdale at p.220. Scarman LJ in Smith's case referred to a 'real' risk, which I think is the same test. 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. If the court comes to the conclusion that there is no 'substantial' or 'real' risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.

The court must start somewhere, and I think the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the assessment will not have been reached unless a court has already decided that there is a 'substantial' or 'real' risk that the plaintiff will lose his present job at some time before the end of his working life, but it will now be necessary to go on and consider - (a) how great this risk is; and (b) when it may materialise - remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job and then finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market - that is, what would be his chances of getting a job, and an equally well paid job. Again, all sorts of variable factors will, or may, be relevant in particular cases - for example, a plaintiff's age; his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both. The court will have to make the usual discounts for the immediate receipt of lump sum and for the general chances of life."

It is clear from the medical evidence and from his condition that he is no longer able to do heavy manual work. He is now already 44 years of age. In the medical report, Dr Yeung, at page 89 of the bundle, said :

"At present Mr Siu has 10% loss of earning capacity. He cannot perform heavy labour. Light jobs such as watchman, lift operator and light factory worker are suitable for him. After a successful heel operation the loss of earning capacity will drop to 2% and by then he can perform heavy labour."

It can be noticed that the doctor seemed to suggest that if he had an operation, that would be better for him. This was not pursued by the plaintiff at the trial. There is no evidence on whether he was willing or not to undergo the operation. There is also no evidence as to whether his reluctance or refusal to have the operation is unreasonable and therefore he has failed to mitigate his loss. The 1st defendant has not pleaded this and it was not pursued by both parties. I do not think I ought to make any speculation upon this issue.

36. It is clear from the medical evidence that although he is earning more than he did at the time of the accident, there will be a loss of earning capacity because of his injuries. Whether he chooses to have an operation on the heel, there will still be a loss in his earning capacity although it may be less. Suffice it to say that he will suffer a certain amount of handicap in the labour market. He was a delivery worker at the time of the accident. He was then in his thirties. After his injuries, when he was able to resume some work, he had to work in a mahjong school and later as a casual worker for packaging. It seems therefore that it is unlikely that he will be able to take up work which required a certain level of education. This is because if he had been able to do so, he would have looked for that kind of job before and in 1990 or 1991. He is now working only as a clerk. If he should lose this job, it is unlikely that he would be able to do a similar kind of job and be able to look for such kind of job at the age of mid-40s. He would not be able to resume any heavy labour work. Even if he could, he would be handicapped. In my view, therefore, there is a real risk that if he be thrown into the labour market, he would be handicapped. I would therefore make an award under this head.

37. I was referred to the case of Ip Ah Chiu v. Wong Chun Fai & Anr. (unreported), HCA No.7100 of 1984 (judgment in March 1987). Doing the best I can, I would think that an award of $120,000 would be appropriate.

Special damages

38. The plaintiff told me that he did not incur any medical expenses for his attendance in government hospitals since these were paid for by the Social Welfare Department. He also said, quite fairly, that he did not have any special food and was not making a claim under this head. However, he said that since July 1990, he had to attend private doctors and to incur expenses in the sum of $200 per month. In addition to that, he had been seeing different bonesetters from time to time. This had cost him approximately $600 per month. He said that he would try everything in order to get better and improve his own conditions. I have no reason to doubt that that was his genuine desire. However, it seems very strange that he was not able to give me any receipt for both the private doctors and the bonesetters. There are only two receipts which he managed to show to me in respect of his attendance at a doctor, Dr Henry Fang. While I would think that it is reasonable for the plaintiff, in a desire to get improvement, to see private doctors and bone setters, I am not satisfied that he had been seeing private doctors and bonesetters regularly every month. I would however accept some reasonable expenses for these two items. I would accept that there was $1,500 for medical fees for seeing private doctors, and $2,150 for bonesetters' fees. The 1st defendant in fact accepted this figure for bonesetters and a smaller amount of other medical expenses.

39. There is another item of travelling expenses. The plaintiff told me that he had to see doctors and bonesetters and had to incur $100 per month for taxi. I think this would be acceptable. The figure given was that since his accident, he had incurred $492 for travelling expenses. I would accept this amount.

Conclusion

40. The awards I would order are as follows :

Pain, suffering and loss of amenities $ 235,000
Loss of actual earnings $ 84,415.50
Loss of earning capacity $ 120,000
Medical expenses for private doctors $ 1,500
Bonesetters' fees $ 2,150
Travelling expenses $ 492

Total : $ 443,557.50

41. Both parties agreed that I should make a deduction for any compensation received by the plaintiff for employee's compensation claim. He had received $77,459.40. This will be deducted from the award that he is entitled to in this action. Since this sum is related to his loss of earnings, I think for the purpose of calculating interest it should be deducted from the award for his loss of actual earnings.

42. I would therefore give judgment for the plaintiff against the 1st defendant for $366,098,10. The plaintiff indicated that he would ask for interest at 2% per annum on the award of pain, suffering and loss of amenities from the date of the writ to date of judgment and 5% per annum on any special damages from the date of accident to the date of judgment. After judgment, there would be the usual rate of interest at judgment rate. The 1st defendant did not dispute that. I would therefore make an award for interest accordingly. Finally, the parties agreed that I should make an order nisi for costs for the winning party. I would therefore order that the 1st defendant do pay the plaintiff's costs of this action. I would hear parties on the question of costs which may be payable to the 2nd defendant.

(Patrick Chan)

Judge of the High Court