WONG BIK FAI v. DRAGAGES HONG KONG LTD AND OTHERS

CACV 217/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 217 OF 2016

(ON APPEAL FROM HCPI NO. 564 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lam VP :

1.  I agree with the Reasons for Judgment of Cheung JA.

Hon Cheung JA :

2.1    At the conclusion of the appeal on 18 October 2017, we allowed the plaintiff’s appeal against the judgment of Deputy High Court Judge Kwok SC who assessed the damages that the plaintiff is entitled to in a personal injury case to be in the amount of $196,232.09.  On the first day of the trial, the defendant’s liability was agreed by the parties at 90%. 

2.2   We varied the award to $1,672,527.38.  The amount is based on the calculation submitted by the plaintiff’s solicitors which we approved and a copy of which is annexed to this Reasons for Judgment. We had directed that an agreed calculation be lodged by the parties within seven days.  Despite the calculation being served by the plaintiff’s solicitors on the defendant’s solicitors for their comment, the latter had not responded to it.  The calculation, apart from minor adjustments, is in substance the same as the calculation that Mr Lin, counsel for the plaintiff, submitted to the Court at the hearing with the additional provision for interest.  I now give reasons for our decision.

I. Facts

3.1  The plaintiff was employed by the defendant as a sailor and worked on a flat top barge in Hong Kong.  The plaintiff was one of the three employees on the barge.  The other two employees were another sailor and a crane operator.  The barge was manoeuvred by a towboat which pushed it from behind.

3.2   On 18 June 2013, the barge was about to be moored on land.  The plaintiff had secured a mooring rope into a mooring bollard at the dock and began recoiling a mooring rope to a mooring bollard at the bow of the barge.  However because of the continuing pushing forward of the barge by the towboat, the rope became taut, recoiled from the bollard and hit the plaintiff’s right forearm.  At that time because the plaintiff was worried that the rope would break, he had already moved away from the bollard but in so doing he was tripped by a wire on the deck of the barge and fell down.  As a result, the plaintiff sustained injuries to his right forearm and left knee.  

II.  The assessment below

4.1  The Judge recorded that the parties had agreed on the following :

1) The plaintiff’s monthly income was $31,817 at the time of the accident;

2) The plaintiff was entitled to a sick leave period of nine months and 28 days and that he could be employed with a monthly income of $8,190 after the sick leave period;

3) Special damages were agreed at $24,000; and

4) The plaintiff had received employees’ compensation at $349,034.09.

4.2   The Judge gave the following award :

		$
	Pain Suffering and Loss of Amenities	250,000.00
	Pre‑trial loss of earnings and MPF	331,851.31
	Special damages	24,000.00
		605,851.31
	Less: 10% contributory negligence	(60,585.13)
	Less: ECC payment	(349,034.09)
		196,232.09

4.3   The Judge held that an average person cannot continue to work as a sailor beyond 60 years of age.  As for the plaintiff, the Judge further reduced the age of 60 by about seven months.  The Judge disallowed the plaintiff’s claim for future loss of earning and partial loss of pre‑trial earning.  He further refused to make an award for a loss of earning capacity of $60,000 claimed by the plaintiff. 

III.  The appeal

5.  The plaintiff appealed against :

1) the Judge’s decision that an average person cannot continue working as a sailor beyond 60;

2) the Judge’s reduction of seven months from what he considered to be the plaintiff’s retirement age at 60; and

3) the Judge’s refusal to award a loss of earning capacity.

IV.  The respondent’s notice

6.  The defendant filed a respondent’s notice challenging the Judge’s decision that the parties had agreed that the plaintiff could earn $8,190 per month after the sick leave period.  

V.  Retirement age at 60

7.1  The plaintiff was born on 1 December 1954.  At the time of the accident he was about 58 and a half years old.  His evidence was that, if not for the accident, he planned to work as a sailor until the age of 65.  The revised statement of damages filed on his behalf in relation to future loss of earnings was based on his continuous employment until age 65. 

7.2   In the defendant’s answer to the plaintiff’s revised statement of damages, the defendant averred that due to the heavy manual exertion required of a sailor, the plaintiff would only be able to work as a sailor up to 60 years of age. 

7.3   The defendant further averred that if the plaintiff was able to work until 65, he should be able to return to the work in the construction industry at $23,808.20 per month (based on the data contained in the document entitled ‘Average daily wages of workers engaged in Public Sector Construction Projects dated December 2015’ published by the Hong Kong Census and Statistics Department).

7.4   The Judge held that there was no evidence that the plaintiff could work until 65 but for the accident.  With respect, the Judge was plainly wrong in this finding.  The defendant did not have a policy on retirement age of its sailors.  It did not put forward any evidence that it would only employ sailors up to the age of 60.  There was no evidence adduced in this case that an average person in Hong Kong cannot continue working as a sailor beyond age 60.  On the contrary, the plaintiff had adduced evidence showing that the defendant had entered into an employment agreement with one Mr Kwok My Shing (‘Mr Kwok’) on 19 February 2016.  At that time Mr Kwok was about 61 years and nine months old.  At the time of the accident the plaintiff was in the same grade as Mr Kwok.  The defendant did not call any evidence to refute the plaintiff’s case that Mr Kwok was still working close to age 62.

7.5   In the written submissions of the parties, there were arguments on how inference should be drawn against a party who could but had chosen not to adduce evidence on a specific issue.  In my view this argument missed the point.  Rather, the issue is whether there was any evidence showing that, apart from the injuries sustained in the accident, it is unlikely that the plaintiff would not be able to work as a sailor in the employ of the defendant to the age of 65. 

7.6   The only point put forward by the defendant is that the work of a sailor involves heavy manual work and is unlikely to be suitable for someone beyond 60.  But the plaintiff had been doing heavy manual work in his working life.  The plaintiff came to Hong Kong 30 years ago from the Mainland and had worked in many fields.  He worked as a construction worker until 2012 when he changed to work as a sailor with the defendant because the income of a sailor was higher.  As shown in his wage records, he was a hardworking sailor even at 58½ years of age and was able to earn substantial wages by way of overtime payment.  There is no indication that his physical ability would suddenly change at age 60 rendering him unfit to work as a sailor.  Further according to the joint medical report of the plaintiff dated 16 March 2015, he was found to be in good health at the time of the joint examination on 29 January 2015.  Although the legal burden is on the plaintiff to establish his loss (including his working life up to 65 but for the accident), these matters are sufficient to discharge such burden in the absence of contrary evidence.  There really is no evidence to support the Judge’s view that the plaintiff could not work beyond 60 to the age of 65. 

7.7   Mr Cao, who ably conducted the appeal for the defendant, reminded us of the high threshold required to upset a finding of fact by a trial judge who dealt with the evidence at first hand : Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1.  The appellate court will, of course, only interfere where the finding of fact by the trial judge is plainly wrong but equally where there is in truth a finding without any evidential basis, then this Court should not hesitate to correct the mistake : Ting Kwok Keung at paragraph 44, citing Whitehouse v Jordan [1981] 1 WLR 246.  In this case there is no evidential basis for the Judge to come to the view that the average working life of a sailor in Hong Kong will end at age 60. 

7.8   Accordingly, the plaintiff’s case that he could work until 65 must be upheld and as a result there should be an award for continuous pre‑trial loss of earnings and also post­‑trial loss of earnings.

VI.  Deduction of seven months

8.1  The Judge further deducted seven months from the plaintiff’s working life to 60 on account of what he held to be ‘matters which had nothing to do with the accident and which were personal to the plaintiff’ namely :

1) the plaintiff’s physical and mental problems;

2) the plaintiff’s marital problems with his second wife which eventually ended in divorce; 

3) the plaintiff had defaulted in physiotherapy treatment and his inability to continue working as a sailor beyond the sick leave period was caused by or contributed to by his default in receiving physiotherapy treatment; and

4) the plaintiff was a chronic smoker.

8.2   The established practice in personal injury litigation is that the defendant must state his objections by way of an answer to the plaintiff’s claim for damages as contained in the statement of damages.  The defendant in this case had not raised any issue that the working life of the plaintiff should be reduced by seven months by reference to the four factors.  After the parties filed their written closing submissions, they attended before the Judge at the final hearing and the Judge did not raise with the parties whether the plaintiff’s working life to 60 should further be reduced.  In the circumstances the Judge’s approach is most unusual as is now conceded by the defendant.  In my view the Judge’s finding in this particular regard cannot be supported at all.

8.3   In any event, the four factors relied upon by the Judge cannot be the proper bases for a reduction. 

8.4   The physical problem identified by the experts is that :

‘ (4) Right ring finger showed ankylosing of the proximal interphalangeal joint at 90 degrees, but added that this was due to previous unrelated injury.’

8.5   There was nothing to show that this particular problem would impede the plaintiff’s continuous employment as a sailor. 

8.6   The mental problems referred to by the Judge only occurred six months after the accident.  There was no evidence suggesting that the plaintiff had mental problems independent of the accident.  On the contrary the plaintiff’s evidence was that his mental problems arose as a result of the injury sustained by him in the accident.   

8.7   There was no evidence of causal connection between the plaintiff’s marital problem and his ability to work. 

8.8   Whether the plaintiff was in default of physiotherapy treatment was in dispute but, in any event, there was no evidence that the requirement of physiotherapy treatment was not related to the injuries sustained in the accident.

8.9   Likewise, there was no evidence showing that the plaintiff could not continue to work to 60 by reason of the fact that he was a chronic smoker.  In the circumstances the Judge’s finding on this aspect is faulted. 

VII.  Loss of earning capacity

9.  It was conceded in the court below that the plaintiff would not seek damages for loss of earning capacity if he was to be awarded loss of future earnings up to age 65.  Mr Lin, who only appeared in this appeal, accepted this concession.  Accordingly, I do not need to deal with this matter. 

VIII.  Earning of $8,190

10.  The monthly income of the plaintiff at $8,190 for post‑trial loss is a notional income based on a light duty job.  In the defendant’s closing submission, it was merely submitted that the plaintiff was capable of returning to his pre‑accident job at the end of his sick leave.  There was no submission on the level of wages that the plaintiff would likely receive in a different employment.  In the circumstances, the Judge’s adoption of $8,190 per month could not be faulted.

IX.  Costs

11.  We ordered the plaintiff is to have the costs of the appeal and below.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Hon G. Lam J :

12.  I agree.

	Annex
1.   Pain Suffering Loss of Amenities:	$250,000.00
2.   Special Damages:	$24,000.00
3.   Pre-Trial Loss of Earnings plus MPF:
3.1  From 18 June 2013[1] to 15 April 2014[2]:	$331,851.31
3.2  From 16 April 2014 to 14 October 2016[3]:	$744,250.50
$31,817 - $8,190=$23,627) x 1.05 x 30
4.  Post-Trial Loss of Earnings plus MPF:	$896,077.60
($31,817- $8,190=$23,627) × 1.05 × 3.01[4] x 12
5.  The award to be made in favour of the plaintiff against the defendant is therefore $1,672,527.38 as follows:
Pain Suffering Loss of Amenities:	$250,000.00
Special damages	$24,000.00
Pre‑trial loss of earnings plus MPF:       18 June 2013 to 15 April 2014	$331,851.31
Pre‑trial loss of earnings plus MPF:       16 April 2014 to 14 October 2016	$744,250.50
Post‑trial loss of earnings plus MPF	$896,077.60
Sub-total:	$2,246,179.41
Less: 10% contributory negligence	$(224,617.94)
Less: ECC payment	$(349,034.09)
Total	$1,672,527.38

6.   Interest:

6.1   Interest on damages for Pain Suffering Loss of Amenities at the rate of 2% per annum from the date of service of the writ (19 June 2015) to the date of judgment (14 October 2016).

6.2   Interest on pre-trial loss of earnings and MPF benefits and other special damages at the rate of 4% per annum from the date of the accident to the date of payment of employees’ compensation and, thereafter, at the same rate up to date of judgment on any remaining balance of such damages after the deduction of the amount of employees’ compensation from those damages.

6.3  Interest on the judgment sum to run from the date of the judgment (14 October 2016) at judgment rate until payment.