YU KOK WING v. LEE TIM LOI

CACV 139/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 139 OF 2000

(ON APPEAL FROM HCPI NO. 600 OF 1997)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Rogers V-P):

Introduction

1. On 13 October 1995, the Plaintiff was injured in the course of his work. He commenced proceedings against his employer. In due course, judgment was entered for the Plaintiff for damages to be assessed. Those damages were assessed by Master Wong. The Plaintiff now appeals against that assessment. Only two elements in the master's quantification of the Plaintiff's loss are called into question on this appeal. They relate to (a) the award of $275,000.00 for general damages for pain, suffering and loss of amenities, and (b) the master's refusal to compensate the Plaintiff for loss of his future earning capacity.

The relevant facts

2. The Plaintiff was 38 years old at the date of the accident. He had worked as a painter for the whole of his working life. The accident occurred when he was painting the outside of a house in Hong Lok Yuen. He had been standing on a ledge used for placing air-conditioning units painting a vertical drainpipe. He had got to the ledge by climbing up a stepladder. When the time came for him to leave the ledge, he stepped onto the ladder. However, his foot slipped, the ladder fell away from him, and he fell to the ground, breaking his right shin bone and fracturing bones in his right ankle and his left heel.

3. The Plaintiff was admitted to hospital the same day. A week or so later, he was operated on. A plate was inserted into his left heel and was accompanied by bone grafting. External plates and pins held his right ankle in place. He was discharged from hospital in a wheelchair after about three weeks. He then underwent physiotherapy before being re-admitted to hospital at the end of December for the removal of the external plates and pins. Two days later, he was discharged from hospital on crutches. He resumed physiotherapy until April 1996, and from then on he continued exercise at home. He returned to work in January 1997.

4. The latest report on the Plaintiff was prepared in May 1999. It was written by Dr Arthur Chiang, an orthopaedic specialist. He had prepared two earlier reports on the Plaintiff. The injuries to the Plaintiff's right leg were the more serious of the two. By the date of the latest report, the Plaintiff was still experiencing some pain in his right ankle when he walked on uneven surfaces and when he jumped up and down, though the pain was becoming less as time went on. He could walk for 2-3 hours without much pain in that ankle. Walking upstairs was no longer a real problem, though he still felt stiffness in the ankle when he walked downstairs. He was able to squat but he had to ensure that most of his weight was borne on his left leg. A previous report had referred to "some pain" under his heels when he stood on ladders. That symptom was not referred to in the latest report, which instead referred to "on and off pain" at the bottom of his right leg when the weather changed. Similar symptoms, though less pronounced, were present in his left heel.

5. Although there was as yet no evidence of degenerative arthritis, the chance of that occuring in the future was greater than would otherwise have been the case. For what it was worth, Dr Chiang assessed the Plaintiff's total impairment at 8%, compared with an assessment of total impairment in October 1996 of 10%. Dr. Chiang concluded that the Plaintiff could continue working as a painter but with a reduced capacity in relation to jobs which involved working long hours, or climbing scaffolding, or working on ladders. For his part, the Plaintiff in his evidence (which the master accepted) had said that his speed of working had been reduced by about 30%. Finally, the Plaintiff had played basketball and had gone swimming regularly before the accident, though after the accident he stopped playing basketball and has hardly ever been swimming.

Pain, suffering and loss of amenities

6. It is not contended by Mr John Wright for the Plaintiff that the Plaintiff's injuries came within even the lower end of the category of "serious injury", which is the lowest of the four categories of disabling injuries first set out in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 and accepted ever since. The range of awards for injuries in that category was said in Chan Pui Ki v. Leung On [1996] 2 HKLR 401 in July 1996 to be $400,000.00-$540,000.00, though that range has to be adjusted to take into account inflation since then. The award which Mr Wright suggests would be the appropriate award is $400,000.00, i.e. less (though not much less) than where inflation would now place the bottom of the bracket for injuries in the serious injury category.

7. In reaching her figure of $275,000.00, the master was considerably influenced by the award of Master Jones of $220,000.00 for pain, suffering and loss of amenities to the 1st Plaintiff in Chan Cheuk Ki v. Poon Yu Cheung (HCA 9146/91). At that time, the award at the bottom of the bracket for injuries in the serious injury category was $250,000.00. It is unnecessary for me to spell out the injuries to Chan Cheuk Ki. It is, I think, sufficient for me to state that I agree with Master Wong that, although the Plaintiff had sustained injuries of a similar kind to those which had been sustained by Chan Cheuk Ki, the Plaintiff in the present case did not suffer quite as much as Chan Cheuk Ki and his loss of amenities are not quite as pronounced as those of Chan Cheuk Ki. I note that Master Wong apparently thought that Chan Cheuk Ki had been assessed as having a total impairment of 45%, when his total impairment was in fact assessed at only 15%, but I suspect that that was simply a typing mistake in the judgment rather than a misunderstanding of the true position by Master Wong. If she had really thought that Chan Cheuk Ki's total impairment had been 45%, she would, I think, have thought that his damages would have been very much higher.

8. I do not wish to under-estimate the pain which the Plaintiff has experienced or the impact which his injuries have had on him, but I do not think that his injuries were of a kind which justified an award at a level for which Mr Wright asks, namely one only marginally below the bottom of the bracket for injuries in the serious injury category. How far below the bottom of that bracket the award should be is very much a value judgment, not really susceptible to great elaboration. However, I have reached the conclusion that the award of $275,000.00 was so low for a plaintiff whose injuries were of the kind which I have described as to warrant interference by an appellate court. That is borne out to some extent by the award of $190,000.00 for pain, suffering and loss of amenities which Master Jones made in respect of the 2nd Plaintiff in Chan Cheuk Ki who had fractured his left heel. His injuries were less serious than the Plaintiff in the current case. The sum of $190,000.00 which Master Jones awarded him was 76% of what was then the bottom of the bracket for injuries in the serious injury category, and 76% of what the Court of Appeal held in Chan Chi Shing v. Tsang Fook Metal Engineering (CACV 238/99) to be the bottom of the bracket for injuries in the serious injury category taking inflation into account, i.e. $460,000.00, is just about $350,000.00. It may be that Master Jones' award for the 2nd Plaintiff in Chan Cheuk Ki was itself slightly on the high side, but doing the best I can the sum which I would award for the Plaintiff's pain, suffering and loss of amenities is $350,000.00.

Loss of future earning capacity

9. The Plaintiff's unchallenged evidence was that he did not have a regular employer. Throughout his working life, he had worked for different employers as and when they had jobs for him to do. Indeed, his employment with the Defendant had only begun two days before the accident. When he had returned to work in January 1997, he had initially not found it any more difficult to find work. Apart from the months of October and November 1997, he had worked without interruption throughout 1997 and 1998. However, by the beginning of 1999, the downturn in the economy had resulted in there being less work for painters, and he had only been able to find work sporadically during 1999. That had been the pattern up to December 1999 when he gave evidence at the hearing before Master Wong.

10. Since it had been the unavailability of work which had caused his unemployment rather than his reduced capacity in relation to jobs involving working long hours, climbing scaffolding and working on ladders, the judge limited her award for loss of earnings since January 1997 to a modest daily sum to reflect the fact that as a result of his reduced capacity the Plaintiff had not been able to be trained to work on an electric gondola. There is no challenge to the judge's award for loss of earnings, both pre-trial and post-trial. But despite the Plaintiff's reduced capacity, the master decided to make no award for the loss of the Plaintiff's future earning capacity.

11. It is important to remember what an award for loss of future earning capacity is actually for. As was said by Lord Fraser of Tullybelton in the Privy Council in Chan Wai Tong v. Li Ping Sum [1985] HKLR 176 at p. 183B-D, it is intended

".... 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. The Court has to evaluate the present value of that future risk - see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140, where Browne L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant's age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant's earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant."

It is also useful to remember what Browne LJ actually said in Moeliker at p.142 A-C:

"The consideration of this head of damages should be made in two stages. 1. Is there a 'substantial' or 'real' risk that a plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff's chances of getting a job at all, or an equally well paid job."

12. Against that background, it is instructive to note what the master actually said when she declined to make any award for loss of future earning capacity. She said:

"I find it is possible that due to the injuries sustained, he may suffer a loss of earning capacity should he wish to look for alternative employment, but for the fact that he confirmed in Court that he would remain a painter for the rest of his working life. For this reason, no damages for loss of earning capacity will be awarded."

I take it that what the master was saying was that the Plaintiff had not passed the first stage of the two-stage exercise referred to by Browne LJ. Since he was always going to work as a painter, there was no question of him losing "his present job at some time before the estimated end of his working life". But that seems to me to ignore the fact that the first stage of the exercise has to be modified if the worker was a casual worker not working for one employer continuously. In the Plaintiff's case, the question which the master should have asked was whether there was a substantial or real risk that, as a result of his reduced capacity and as a result of the greater possibility of the onset of degenerative arthritis, the Plaintiff would not be able to obtain as much casual work as a painter as he would have done if he had continued to be able-bodied. If there was such a risk, the Plaintiff was entitled to an award for loss of future earning capacity to the extent that that loss had not been reflected in the award for loss of future earnings.

13. In my view, it is inescapable that there must be a real risk that the Plaintiff's reduced capacity will prevent him occasionally from obtaining casual work of the kind which he would have been able to get if he had continued to be able-bodied. Assessing the extent of that risk is highly speculative. But doing the best I can, I would estimate that he would experience 15 days' unemployment a year as a result of his reduced capacity. The master took a multiplier of 10 years for the loss of future earnings as a result of his inability to train for work on an electric gondola, and for my part I see no reason why a similar multiplier should not be taken for this head of loss. Taking his earnings to be $750.00 a day when he worked (which was his unchallenged evidence as to his daily rate at the date of the hearing), the calculation is $750 x 15 (representing the number of days of work lost per year) x 10 (representing the multiplier in terms of years). I appreciate that the sum of $750.00 would increase with inflation over the years, but the award (if paid by the Defendant) represents the accelerated receipt of wages which would have taken the Plaintiff many years to earn. Thus, the award for loss of future earning capacity in my opinion should be the sum of $112,500.00.

Conclusion

14. For these reasons, I would allow this appeal, and I would direct that the judgment entered in favour of the Plaintiff be varied so as

(a) to substitute the sum of $350,000.00 for the sum of $275,000.00 awarded by the master for pain, suffering and loss of amenities plus interest thereon at 2% per annum from the date of the service of the writ, and

(b) to add that there be in addition judgment for the Plaintiff in the sum of $112,500.00 plus interest thereon at the judgment rate from today.

Le Pichon JA:

15. I agree and have nothing to add.

Rogers V-P:

16. I agree. I only wish to add something in relation to the preparation of the documents for this appeal.

17. On 28 August of last year, there was a preliminary directions hearing for this appeal before the Registrar of Civil Appeals. At that hearing the defendant, who is acting in person, informed the Registrar of the address at which he could be served. Although he indicated that it was not his fixed abode address, but that could be taken as being his address for service. The Registrar ordered that the bundles for the appeal should be prepared and served at least two weeks before the appeal.

18. It is also pertinent to note that, originally, this appeal was due to come on in January of this year but, due to the Court's diary, it had to be re-fixed for today.

19. The appellant's bundles were not prepared two weeks before the hearing. Copies were sent to the Court just over one week ago and there was no attempt to serve the defendant with the bundles at the address which he had given. What happened was, on 16 May which is less than a week ago, a letter was sent to the defendant saying, blandly, "We have two box files of documents for use at the appeal. Please collect them from our office". That form of letter does not constitute service of the documents and it does not constitute compliance with the directions which were given by the Registrar. Moreover, the skeleton argument on behalf of the appellant was only given to the defendant in court this morning. We were told that a clerk from the plaintiff's solicitors' firm telephoned the defendant on three occasions after 16 May and was told by the defendant that he did not intend to pick up the documents as he could not read English.

20. It is extremely important for the due process of these appeals that directions as to time for service of documents are complied with. In ordinary cases where both sides are represented, delays will be occasioned if time limits are not complied with. This applies not only to the bundles of documents but also to the skeleton arguments. There are time limits laid down for service of the skeleton arguments and they are important. If they are not complied with, the proper preparation for the hearing cannot be made either by the parties or by the Court. There will be consequential lengthening of the appeals.

21. As it happened in this case, the defendant did not seek an adjournment because the documents were given to him late. It is, I would say, fortunate for the plaintiff and his advisers that that was so, because had the defendant indicated that he was in difficulties and had wished to read the documents before the hearing, an adjournment would have been necessary and the costs of that adjournment would undoubtedly have fallen on the parties at fault.

22. I would add that, particularly in the case of litigants in person, it is important that they are given as much assistance as possible. They may themselves not be lawyers but they may well have access to advice and assistance from others and, in those circumstances, it is of course important that they have adequate time for preparation of whatever they want to say to the Court.