CHING YUK YEE v. FURNISS JACQUELINE ELIZABETH AND ANOTHER

CACV 236/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2014

(ON APPEAL FROM HCPI 127 OF 2012)

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J U D G M E N T

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Hon Poon J (giving the Judgment of the Court) :

Introduction

1.  On 25 April 2010 at about 4:53 pm, a traffic accident happened at the traffic light controlled pedestrian crossing at the junction of Lockhart Road and Marsh Road, Wanchai.  The plaintiff was there crossing Lockhart Road when the traffic light was green in her favour. The 1^st defendant was driving her vehicle and turned from Marsh Road into Lockhart Road against the traffic light and almost hit the plaintiff. Although she was not hit, the plaintiff was scared by the sudden approach of the 1^st defendant’s vehicle and fell onto the ground.  As a result of the fall, the plaintiff suffered injuries to her left ankle.  Subsequently, she developed anxiety and sleeping difficulties.  She was diagnosed with post-traumatic stress and depression.

2.  On 30 September 2010, the 1^st defendant pleaded guilty to a charge of careless driving at the Eastern Magistrates’ Court and was fined HK$1,200.00.

3.  At the trial below, the 1^st defendant denied liability.  So did the 2^nd defendant, the 1^st defendant’s insurer, who adopted her defence.

4.  After trial, Deputy High Court Judge Wilson Chan found that the 1^st defendant was negligent in causing the accident.  On quantum, the learned Judge awarded to the plaintiff damages itemized as follows :

“(1)	Pain, suffering and loss of	$250,000.00
	amenities (‘PSLA’)
(2)	Pre-trial Loss of Earnings	$84,993.96
(3)	Post-trial Loss of Earnings	Nil
(4)	Loss of earning capacity	$30,000.00
(5)	Special damages	$20,407.00
(6)	Future Medical Expenses	$1,000
	Total:	$386,400.96 ”
		==========

5.  This appeal, brought by the plaintiff, only concerns the Judge’s assessment on items (1) and (2).

The plaintiff

6.  At the time of the accident, the plaintiff was 50.  She is married.  She lives with her husband and two adult daughters in a public housing unit in Shek Yam Estate, Kwai Chung.  Her husband had not been working for seven to eight years because of poor health.  She is the sole bread winner of the family.  Before the accident, she worked as a foot massager.  She claimed to have an average monthly income of HK$22,360.00, consisting of HK$9,360.00 as base salary and HK$13,000.00 as tips.

Her injuries and treatments

7.  As a result of the accident, the plaintiff suffered a left ankle fracture.

8.  On 5 May 2010, the plaintiff underwent surgery for open reduction and internal fixation at the Yan Chai Hospital.  On 23 June 2010, the plaintiff underwent surgery again for the removal of part of the implant, that is, one of the syndesmotic screws installed on her left ankle.

9.  On 1 February 2013, she attended an examination by the joint orthopaedics experts. The plaintiff complained that she still experienced left ankle pain, left lower limb stiffness, right lower limb pain and stiffness.

10.  In about May 2010, the plaintiff started to develop anxiety and sleeping difficulties.  She was diagnosed with post‑traumatic stress disorder (“PTSD”) and depression.  The plaintiff’s mental state was further aggravated by the disclosure by the defendants about the surveillance videos taken by private detectives hired by them.

11.  On 5 March 2013, the plaintiff attended an examination by the joint psychiatric experts.  The experts found that she still experienced mild depression.

Experts’ reports

12.  On the plaintiff’s physical injury, a Joint Orthopaedics Expert Report dated 20 March 2013 was prepared by Dr Tony Hung and Dr Peter Ko.  The joint orthopaedic experts agreed that :

(1) there were no pre‑existing problems;

(2) post-accident, the plaintiff might have pain and discomfort when she exerted her left ankle such as prolonged walking, squatting, etc; and

(3) the plaintiff would be able to resume her pre‑accident occupation (foot massage therapist) with some degree of impairment of work efficiency and capacity, in particular, she would have difficulties if she used her feet for massage.

13.  In particular, Dr Hung observed :

(1) the plaintiff’s complaints of numbness, pain and stiffness over the left ankle were genuine; and

(2) the plaintiff’s physical pain could be intensified by psychological factors.

14.  The plaintiff’s case is that her main problem is the residual pain and the impairment of her foot/leg, which has rendered her not as agile as before the accident.

15.  On the plaintiff’s psychiatric injury, a Joint Psychiatric Report dated 3 April 2013 was prepared by Dr Benjamin Lai and Dr Chung See Yuen. Both psychiatric experts agreed that:

(1) the plaintiff’s mental disorder was caused by the accident;

(2) there were no pre‑existing mental problems;

(3) the impairment caused by the mental disorder was mild and, therefore, the plaintiff was mentally fit to return to her pre‑accident work; and

(4) the plaintiff suffered from adjustment disorder with mild anxiety and depressed mood.

PSLA

16.  The Judge first noted that PSLA awards for ankle fracture would range from HK$150,000.00 to HK$400,000.00, depending on the resulting disability : Chan Sik Pan v Wylam Service Ltd & Another, HCPI 648/1995, unreported, 16 December 2002, per Suffiad J.  He then referred to a more recent case of Li Chi Sing v Equal Link Ltd, DCPI 1930/2011, unreported, 6 March 2013, which he described as most apposite in the present case.  There, the plaintiff was a 50‑year‑old man who slipped and fell and fractured his left ankle.  He underwent one surgery for open reduction and internal fixation with plate and screws.  Orthopaedic expert estimated impairment to whole person at 3%.  The plaintiff complained of intermittent left ankle pain, occasional left ankle wound numbness and stiffness.  There was no psychiatric disorder.  The District Judge awarded PSLA of $220,000.00.  The Judge then noted that the plaintiff suffered from only mild psychiatric symptoms and assessed the damages of PSLA at HK$250,000.00.

17.  Mr Cheung, counsel for the plaintiff, submitted that the joint psychiatric experts were wrong to have described the psychiatric impairment suffered by the plaintiff as “mild”.  He however confirmed that the joint psychiatric experts had not been called at trial to be cross-examined on this point.  In our view, it is not open to Mr Cheung to make this complaint on appeal now.

18.  That said, we think, with respect, the Judge has given too little weight to the psychiatric impairment suffered by the plaintiff.  In our view, the severity of her physical injuries and psychiatric impairment together with the residual disabilities justifies a PSLA award of HK$400,000.00.

Pre-trial loss of earnings

19.  There are two major components for this item : (1) the period in which pre-trial loss of earnings is suffered; and (2) the plaintiff’s pre-accident earnings per month.

20.  On Component (1), the Judge took into account the sick leave of 9 months from the date of accident (April 2010) as recommended by the joint orthopaedic experts and added 3 months to allow the plaintiff to look for work, totalling it to 12 months.  However, the Judge has overlooked the recommended sick leave of 6 to 9 months from the date of psychiatric treatment (July 2010) as recommended by Dr Benjamin Lai, one of the joint psychiatric experts.  In our view, Dr Lai’s recommendation of 9 months (from July 2010) should be included for the purpose of calculating the period of sick leave that the plaintiff was entitled to.  The combined sick leave recommended by the doctors would be 12 months (from April 2010 to March 2011).  Allowing the plaintiff another 3 months to look for work, the period based on sick leave is 15 months (April 2010 to June 2011), which is the period in which the plaintiff suffered from total pre-trial loss of earnings.

21.  Mr Cheung submitted that the Judge should have also found that the plaintiff had continued to suffer from partial pre-trial loss of earnings after 12 months from the accident.  She was given social welfare support after the accident, hence the assessment of pre-trial loss of earnings should be based upon the said 12 months (total loss of earnings due to sick leave), as well as a period of about two years thereafter (reduced earnings of approximately 30% to 40% due to residual symptoms) up to March 2013.  And thereafter, it is expected that given further improvement she would able to resume pre-accident earning capacity.

22.  Mr Gidwani, for the 2^nd defendant, submitted that it is not open to Mr Cheung to argue that the plaintiff suffered from partial loss of earnings because, significantly, he has not sought to challenge the Judge’s finding that she had not suffered from any loss of earning capacity : see paragraphs 61 to 64 of his judgment.  We disagree.  In those paragraphs, the Judge was dealing with loss of earning capacity.  He concluded in paragraph 64 :

“64. In fact, all the evidence available, including the joint medical expert statements (orthopaedic and psychiatric) – where all experts unanimously agreed that the plaintiff could return to her pre-accident work; and the surveillance video, shows no signs of disability in function.”

The Judge had not rejected the plaintiff’s claim for partial pre-trial loss of earnings as intended by Mr Gidwani. Indeed, it seems to us that the Judge had omitted to deal with this point.

23.  In her supplement witness statement, the plaintiff said :

“19. Upon referral of Mr Au, I have been working at Silver Lake Sauna as a foot massage therapist since 25^th September 2012 on a part time basis. I work from 5pm to 10pm and it is subject to client’s appointments. Sometimes there is no work to do during my official working hours in the company. I earn an hourly rate of HK$110 and work for 2 to 3 days per week for about 5 hours per day. For the period from 1^st October 2012 to 31^st March 2013, I earned a total sum of HK$24,777.00 with an average monthly income of HK$4,129.50. My employer pays me cash daily. I do not have any payroll record and my employer has no MPF contribution for me.

20. Since 4^th November 2012 I have been employed by Kowloon Tong Club as a foot massage therapist on a part time basis.  I only work on Sunday.  The official hour is from 12 noon to 7 pm.  My hourly rate is in the range from HK$100.00 to HK$130.00.  For the period from November 2012 to March 2013, I earned a total sum of HK$9,845.00 with an average income of HK$1,969.00.”

The relevant wage records issued by the employers were produced in support of the figures.

24.  Given the plaintiff’s evidence as aforesaid, we find that the plaintiff did suffer from partial pre-trial loss of earnings from July 2011 to March 2013, that is, for a period of 21 months.

25.  On Component (2), the Judge said :

“50. The plaintiff stated in paragraph 8 of her Witness Statement that she received tips regularly from customers at $500.00 per day, amounting to $13,000.00 per month.

51. These are not substantiated by any documentary evidence and her oral evidence on this matter is highly unreliable.

52. The documents from the Inland Revenue Department do not reveal any tips.

53. In cross‑examination, the plaintiff admitted that the tips she received ‘varies day to day’, ranging from ‘zero to over a thousand’.

54. However, she did not keep any records for tips.

55. Under cross‑examination, she was also unable to give an estimate of how much tips she earned per month.  She is unable to repeat what she said in her Witness Statement, ie on average $500.00 a day.

56. In re‑examination, when asked to give a rough estimation of the percentage of tips with reference to her documented income from the employer, the plaintiff said it was ‘one or two times’ of the documented income, ie if she earned $10,000.00 service fee, her tips would amount to about $10,000.00 to $20,000.00 in cash.

57. I agree with Mr Gidwani that the plaintiff’s evidence in this regard is highly unsatisfactory, and I find the plaintiff not to have discharged her burden in proving any income in the form of tips on top of her base salary.

58. The plaintiff has provided a tax return filed for the year of assessment 2008/09, and a tax return filed by her previous employer, one Kingsley Development Ltd (trading as ‘Royal Palace Sauna’).  It can be noted that based upon such documentary evidence:

(1) The plaintiff earned a total of $27,460.00 at the Royal Palace Sauna from 1 April 2008 to 20 June 2008, an average monthly sum of $10,297.50.

(2) The plaintiff also earned a total of $55,173.00 at the Oriental Palm Spring Sauna Spa from 1 July 2008 to 31 March 2009, an average monthly sum of $6,130.33.

(3) Thus, she earned a total income of $82,633 during this period of 11 months and 20 days, an average monthly sum from 1 April 2008 to 31 March 2009 of $7,082.83.

59. Based on the above, the plaintiff’s pre‑trial loss of earnings should be assessed as follows: $7,082.83 x 12 months = $84,993.96.”

26.  Mr Cheung did not challenge the base salary of HK$7,082.23 as found by the Judge. He however complained that the Judge erred in rejecting the plaintiff’s case on tips.  He submitted that on average the plaintiff earned tips which were about one to two times of her base salary per month.

27.  In support of his argument, Mr Cheung referred to a speech by the Chief Secretary in 2013 where she drew the poverty line for a four person family at HK$14,300.00 per month.  He submitted that given the profile of the plaintiff’s family, the Judge’s adjudged monthly income of $7,082.83 is erroneous and grossly inadequate.  This level of income would mean that each member of the plaintiff’s family would, on average, live on around $1,700.00 per month which is well beyond the poverty line drawn by the Chief Secretary.  However, Mr Cheung, who was also trial counsel, did not take this point below.  Nor did he draw the Judge’s attention to the Chief Secretary’s speech.  He cannot do so now on appeal.  More importantly, referring to the poverty line does not assist the plaintiff.  The burden rests squarely on her to prove her monthly income as alleged.  What is required of her is hard evidence.  However, her evidence was, as the Judge rightly observed, unsatisfactory.  Drawing inferences on the poverty line or matters not supported by evidence adduced at trial does not improve her case any further.

28.  Although the Judge was correct in observing that the plaintiff’s evidence on her tips was unsatisfactory, it is a fact accepted by the parties, that in the plaintiff’s line of work, tips are an important source of income.  The real question faced by the Judge is how to assess the average amount of tips that she received monthly.  With respect, by rejecting the plaintiff’s evidence on tips and then wholly disregarding this part of her income, the Judge erred by ignoring the reality and what is really common ground between the parties.  What he should have done is to assess her tips based on the available evidence to the best that he could.  Given the state of evidence in this case, a rough and ready assessment is needed.  And having done so, we arrive at the range of HK$2,000.00 to HK$3,000.00 for tips per month.  Taking the top end and adding it to the base salary, the plaintiff’s monthly income is assessed at HK$10,000.00.

29.  Accordingly, the total pre-trial loss of earnings is HK$10,000.00 x 15 months = HK$150,000.00. For partial pre-trial loss of earnings based on the plaintiff’s evidence set out in paragraph 23 above, the average reduced monthly earning is about HK$4,000.00.  The partial pre-trial loss of earnings is HK$6,000.00 per month. The total partial pre-trial loss is therefore assessed at HK$6,000.00 x 21 months = HK$126,000.00.  The total pre-trial loss of earnings is HK$150,000.00 + HK$126,000.00 = HK$276,000.00.

Dispositions

30.  For the above reasons, we allow the appeal by substituting HK$400,000.00 for PSLA and HK$276,000.00 for loss of pre-trial earnings.

31.  We further make an order nisi that the plaintiff shall have the costs of the appeal against the defendants, to be taxed if not agreed and that the plaintiff’s own costs are to be taxed in accordance with the legal aid regulations.