LI WAN CHOI v. CHOI WAN HING AND ANOTHER

CACV182/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 182 OF 2000

(ON APPEAL FROM HCPI NO. 1200 OF 1998)

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J U D G M E N T

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Hon Rogers VP and Le Pichon JA:

1. This is an appeal from a judgment of Master de Souza given on 14 April 2000 on an assessment of damages.

The facts

2. The plaintiff had been injured in September 1997 in a traffic accident. He had a fracture of his pelvis, left femur and left tibia. After the accident, he was transferred to hospital and it was discovered that he had a subtrochanteric fracture of the left femur, a fracture of the left medial malleolus, a fracture of the 5th lumbar vertebra with spondylolisthesis and a fracture of the pelvis. He had emergency surgery. That involved open reduction and dynamic hip screw for the left femur fracture, close reduction and percutaneous screw fixation for the left medial malleolus, and close reduction with application of external fixator for the pelvic fracture.

3. In October 1997 internal fixation of the fractured pelvis and posterior spinal fusion at L5/S1 level were performed. The Plaintiff was transferred to intensive care. When his condition stabilized he was moved to the Orthopaedic Ward. After that he was transferred to the Margaret Trench Rehabilitation Centre for occupational and physiotherapy training. He was eventually discharged in January 1998 some four months after the accident.

4. By April 1998 he could move about with a slight limp. There had therefore been significant improvement in his condition. However in March 1999 he sustained a fracture at the base of his right metatarsal bone when a young boy bumped into him, causing him to lose his balance and twisting his right foot. He was transferred back to hospital again and he was treated with plaster.

5. The two doctors who gave evidence in the case, Dr Julian Chang and Dr Chun, had examined the plaintiff in April and March of 1999 respectively. Both doctors had found that there was some residual disability. They expressed themselves, at that stage, in terms of a percentage degree of permanent physical disability and loss of earning capacity. Dr Chang put the permanent physical disability at 9% and the loss of earning capacity at 10%. Dr Chun put the combined whole person impairment as 8% and the loss of earning capacity in the region of 15%.

6. We regret that, as with other judges before us, we find these percentages of very little assistance. The closest that one can gain some insight into the meaning of the percentages is that in his evidence before the master Dr Chun said that with a 5% impairment of the spine, and of the whole person as a result of the spine, one is expected to be able to do frequent lifting of about 20 lbs and occasional lifting of about 50 lbs. He did not go on to explain what the appropriate figures might be for the percentages which he assessed the plaintiff. In matters such as this we do not consider that it is possible to make any straight-line extrapolation of the figures based on the increased percentages of impairment for which the plaintiff was assessed.

7. In the follow up letter Dr Chang had said that Mr Li could return to his work as a delivery man provided that the job did not require heavy lifting or jumping on and off from heights such as a platform or a truck. Otherwise he would be suited to be a messenger, a waiter, a salesman, a hawker or a caretaker. Dr Chun said that the plaintiff was likely to be able to return to work as a delivery worker or a restaurant waiter.

8. From these reports it would seem that the plaintiff was, at that stage, not a wholly fit man but that he could undertake work provided it was not heavy work and provided it was not too strenuous.

9. Unfortunately, in September 1999 the plaintiff suddenly experienced considerable back pain which immobilized him. This was probably due to a slipped disc in the L3/L4 region. The slip disc was only diagnosed in a scan which was taken as part of a medical examination at the time of the assessment of damages.

10. The scan showed that the plaintiff had a degenerative condition in some of his discs. It would thus not have been surprising if the master had come to the conclusion that the slipping of the L3/L4 disc was something which occurred because of the extra strain in that area caused by the fusion of the L5/S1 vertebrae. However, although the doctors were prepared to concede that that might have been a cause, they were not prepared to go further than to say that it was one of the possible causes of the slipped disc in September 1999. As Dr Chang, the plaintiff's own doctor, put it : Whether the slipping of the disc was a consequence of the accident or a consequence of the surgery or just a spontaneous development of a natural condition could not be ascertained. In those circumstances the master excluded the plaintiff's condition of having a slipped disc from his assessment of the damage which had been occasioned to the plaintiff.

The award of damages

11. The plaintiff had worked between 1979 and 1985 as a construction site worker. In 1985 he commenced work as a waiter. Subsequently he was promoted to the post of captain and then manager. But in September 1995 he was unable to find further work in the restaurant trade and went to work for the 2nd defendant as a furniture delivery worker. The judge assessed his wages as a furniture delivery worker at $8,666 per month (adjusted for a 13-month year) plus approximately $2,600 per month in tips.

12. Because the master discounted the slipped disc as a relevant injury, he considered that the plaintiff could have commenced work in about August 1999. Based on the government's statistics for waiters the master came to the conclusion that since the wages for a Chinese restaurant waiter exceeded the earnings of the plaintiff as a furniture delivery worker, the plaintiff had lost nothing because he was fit to work as a waiter.

13. The master awarded $36,000 in respect of loss of earning capacity on the basis that was an agreed figure. It can be said at once that the figure which the plaintiff had put forward for loss of earning capacity was based on the premise that the plaintiff would be receiving damages assessed on the footing that he could only work four hours a day in a fast food establishment earning something like $1,248 per month.

The plaintiff's case

14. Before this court the plaintiff's primary case was that he was only fit for sedentary work and that he should be assessed on his earning capacity at present being merely $3,000 per month and he should be compensated for the difference between that and what he would have been earning had he been a delivery worker.

15. As indicated above, whereas the master might have come to the conclusion that the current injury to his L3/L4 disc was a result, direct or indirect, of his injury sustained in the accident, he did not. As we have said, this case has therefore to be approached on the basis that his condition was similar to that when the doctors made their assessments in the first part of 1999.

16. The plaintiff's evidence at trial was that although waiters in a Chinese restaurant might in the course of serving customers not have to lift very much, they would be expected to move tabletops, which are used for the twelve-seater tables, and partitions. This would be common after lunch when setting up the restaurant for evening functions. The master cross-examined the plaintiff on the basis that if he had to lift heavy tables or table tops the plaintiff could request assistance from other waiters and restaurant staff around. The plaintiff's response was that a waiter could well be expected to lay tables on his own but, of course, he could ask for assistance if others were around.

17. During cross-examination the master questioned the plaintiff on the basis that waiters "Actually go off to watch a movie or do various things and then report back, or whatever, go about their general personal business, is that right or is that a misconception on my part?" The plaintiff's response was "They can't do that. I mean in the ones that I have worked they couldn't do that." He went on to say that he had worked in four different restaurants. Despite the absence of any other evidence on the subject the master found in his judgment "There are breaks at work between lunch and dinner sessions when he can rest."

18. In all this, it seems to us that what has been lost sight of is that no doubt there are variations in the physical demands of different waitering jobs.

19. On the evidence it would seem that the master was justified in rejecting the plaintiff's claim at trial that he could only work four hours a day in a minor capacity in a fast food restaurant. On the other hand not only the plaintiff's own evidence, but the doctor's evidence confirms that there is some residual disability in the plaintiff. Not only does he limp but he would either have to have a job where he wouldn't have to lift heavy table tops or move furniture or where there could be considerable assistance.

20. No doubt the employment market in Chinese restaurants is competitive. It seems to us that account must be taken of the fact that the plaintiff would probably have to have a good deal more than one attempt before he found a suitable job. Also, it is in our view appropriate to approach the question on the basis that the plaintiff would have to accept some discount on account of his disabilities. In summary, the residual disability would thus make it more difficult for the plaintiff to find a job and any job that he took could be expected to pay less than if the plaintiff were wholly fit.

21. A similar problem faced Hunter J in Law Sai Leung v. Ho Chai Man and Kowloon Motor Bus Co. (1933) Limited Action No. 8498 of 1983. In his judgment dated 6 February 1985 the judge, taking similar factors into account, came to an overall percentage for likely loss of earnings. Since that case however it has become more common to divide the compensation into assessments of loss of future earnings and loss of earning capacity. The first is an assessment of the likely reduction in income which the plaintiff would suffer when he was in employment and the second is to cover the risk that at some future date during the claimant's working life he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.

22. In the present case, although Dr Chang had opined in June 1999 that the plaintiff would be suited to be a messenger, a waiter, a salesman, a hawker or a caretaker, virtually no evidence was adduced by either side as to the salaries that a messenger, hawker, salesman or caretaker can expect to earn. Such evidence as there was were figures contained in government statistics as to the earnings of certain categories of workers, specifically those of waiters in Chinese restaurants as at, inter alia, September 1999. These showed a basic salary of $9,313 per month. When adjusted for 13 months' pay and 30% of the base monthly salary by way of tips and gratuities, the monthly take home pay would be some $12,883. As this exceeded $11,267 which was what the master found the plaintiff could have expected to earn in his old job as a furniture delivery worker, he refused to make any award for future loss of earnings. In this connection it is to be noted that the master declined to apply any notional increase to the plaintiff's earnings for the period between the date of the accident and the date of the hearing because of the poor performance of the economy. The government statistics we have seen for waiters in Chinese restaurants tell a different story : there was a 4.5% increase between September 1997 and September 1999.

23. Be that as it may, the master's refusal to award damages under this head was premised on the plaintiff being able to work as a waiter. In our view, the master's approach was wrong. Even if one were to assume that working as a waiter was suited to the plaintiff, he cannot be expected to obtain the full salary which a wholly fit waiter could obtain because of his residual disability. A substantial discount would be called for since for the reasons given earlier not all types of waitering jobs would be suitable. There is also the fact that in October 1999, the plaintiff went back to his former employer for a job but his request was turned down. That does not sit easily with the premise underlying the master's refusal to award damages for future loss of earnings. Further, working as a waiter was but one of several types of jobs his doctor thought he was capable of doing. In most if not all of these alternative jobs, for example, as a hawker or messenger, the earnings are likely to be considerably more modest and much less than $11,267 a month. But to send the case back for relevant evidence to be adduced would inevitably further delay the final resolution of the plaintiff's claim and increase costs considerably. That would not be in any one's interest and it is a course we are naturally reluctant to adopt unless absolutely unavoidable.

24. Looking at the matter broadly, whilst the plaintiff may not be able to work as a furniture delivery worker, we consider that it would not be unfair to approach the case on the basis that the plaintiff would be able to earn significantly less than what the master found he could expect to be earning (viz. $11,267 per month) but for the accident. He would be earning less because of his residual disability in whatever type of alternative employment was open to him. Taking matters in the round and doing the best we can in the circumstances, a figure of $8,000 per month by way of salary in the types of jobs postulated by Dr Chang would not appear to be unreasonable. This represents approximately 70% of his previous earnings and would translate into a loss of earnings of $3,267 per month or $39,204 per annum.

25. The multiplier which the master would have been prepared to apply was 12. That appears to us to be reasonable and there was no further discussion of that in this court. That would give a figure of $470,448 in respect of loss of future earnings. To that figure must be added a further amount which would approximate to the loss of the 5% employer contribution to the mandatory provident fund which is to come into effect very shortly. Giving due allowance for the fact that this factor would not be pertinent during the whole of the disability period, we consider a sum of $23,000 is appropriate in this respect.

Loss of earning capacity

26. In respect of this we consider that it would be reasonable to base the assessment on the footing that the plaintiff could be expected to be at a disadvantage in the job market which might cause him to be out of work for a period of one year over the notional twelve-year period, which equates to one month per year. On that basis, there would be an additional figure of $96,000 plus the 5% in respect of the employers' mandatory provident fund contribution giving a total of $100,800.

27. In view of the complicating factor that the plaintiff's slipped disc in the L3/L4 region has to be ignored, we would not disturb the master's award of pre-trial loss of earnings although that was criticized as not giving proper credence to the plaintiff's medical certificates.

28. In total therefore the damages awardable in respect of loss of future earnings and loss of earning capacity would be a total of $594,248.

29. We therefore consider that this appeal should be allowed and the damages awarded to the plaintiff should be increased by the sum of $594,248.

Hon Woo JA :

30. I agree.