Kong Koon Man Harriman v. Pbil Advertising Ltd and Another

CACV 153/2015

CIVIL APPEAL NO. 153 OF 2015

(ON APPEAL FROM HCPI NO. 517 OF 2012)

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J U D G M E N T
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Hon Cheung JA :

I. The appeal

1.1On 26 July 2010, the plaintiff was injured in a traffic accident when the motorcycle he was driving was hit by a private car driven by the 2^nd defendant.  The 1^st defendant was the owner of the car.  The plaintiff sustained two major injuries, namely fracture of the T12 vertebrae (with no neurological deficit) and right shoulder injury.  The plaintiff lodged the present claim and the defendants admitted liability. Master Leong assessed the damages that the plaintiff was entitled to recover to be in a sum of $829,079.50 :

1.2The Master only allowed part of the pre-trial loss of earnings and made no award for post-trial loss of earnings.  It is against these two findings that the plaintiff now appeals.

II.  The plaintiff

1)  His employment

2.1The plaintiff was born on 1 June 1966 and was 44 years of age at the time of the accident.  As a result of the accident, he was hospitalized for 15 days.  He was granted sick leave by the doctors from the date of the accident to March 2015.  The plaintiff claimed that at the time of the accident he had two jobs : a full time job as a quality inspector at a printing factory called Ringier Print (HK) Ltd (‘Ringier’) earning on average $13,500 per month and a part-time job as a driver/worker for a logistic company earning on average $5,200 per month.  The Master did not accept the plaintiff’s evidence about his part-time job. 

2.2In respect of his full time employment before the accident, the plaintiff had been a printing worker for 25 years.  He took up employment with Ringier in 2009.  He worked as a quality inspector with two other junior employees.  He was dismissed by Ringier on 17 June 2011.  In August 2010 which is one month after the accident, he informed the occupational therapists (as contained in the occupational therapy report dated 21 December 2010) that his work involved the following :

1) Frequent lifting and carrying papers at 10-20 pounds;

2) Occasional pushing and pulling jig-machines;

3) Frequent grasping and handling tools when stirring ink;

4) Frequent bending, squatting & climbing; and

5) Frequent standing and walking.

2.3In November 2011, he worked for the Government Logistics Department for 26 days.  During the first two weeks with this department, he was asked to do some supervisory work without lifting heavy objects but afterwards he was asked to load paper and carry out printing work.  Because of his right shoulder injury and pain, he could only lift the arm to the shoulder level and he had difficulties with work and left the employment. 

2.4He also had applied in October 2014 to be a driver at a bus company.  He was arranged by the bus company to take up bus driving lessons but when he informed the bus company of his injury in a traffic accident, he heard nothing further from the bus company about the lessons.

2.5The plaintiff has not resumed employment.

2)  His right shoulder injury

2.6During the plaintiff’s 15 day hospitalization, X-ray revealed there was acromio-clavicular (‘AC’) junction dislocation of his right shoulder and he was treated conservatively with physiotherapy. 

2.7The plaintiff continued to complain about his right shoulder pain and on 5 September 2011, ultrasound of his right shoulder was performed. The finding of the radiologist was as follows :

1) Supraspinatus tendon anterior critical zone has 50% partial trimmed tear at bursal side of 1 cm x 1 cm; impingement evident; thick synovium and inflammation.

2) Long head of biceps, infraspinatus and subscapularis tendons were all intact.

3) No effusion.

2.8In December 2011, the plaintiff still complained of his right shoulder pain which limited his upper limb power and function.  Operation on his right shoulder was recommended and on 5 June 2012, a right shoulder arthroscopy was performed, showing SLAP (Superior Labrum Anterior and Posterior) lesion and subscapularis tear (this is also described as the rotator cuff tear in the medical reports).  Both were repaired and acromioplasty was performed.  The joint medical experts accepted that was a correct diagnosis of the plaintiff’s right shoulder injury and the previous AC junction dislocation was a misdiagnosis.

2.9On 12 November 2012, the plaintiff was still complaining of similar right shoulder pain.  The pain was worst at night and on 21 January 2013 the hospital reported that symptoms of subacromial impingement had recurred.

2.10On 25 February 2014, an arthroscopic acromioplasty was performed for the subacromial impingement. 

2.11Although pain, suffering and loss of amenities is not in issue, it is relevant for the purpose of this appeal to describe the structure of the shoulder in order to fully understand the plaintiff’s persistent complaint of pain on his right shoulder and how this limited his function and affected his employment.  

2.12The shoulder is made up of three bones : humerus (upper arm bone), scapula (shoulder blade) and clavicle (collarbone).  The head of the humerus joined the scapula in the nature of a ball and socket joint.  Surrounding the outer edge of the socket arefibrous tissues called the labrum.  A SLAP lesion or tear is an injury to the labrum. In a SLAP injury, the top (superior) part of the labrum is injured.  The top area is also where the biceps tendon attaches to the labrum. 

2.13The group of four muscles and tendons that raise and lower the arm is called the rotator cuff.   Subscapularis is the largest and strongest muscle of the rotator cuff muscles.  Its function is to turn the arm inwards and is a key muscle in doing any lifting movements.  A subscapularis tear is much more painful than other types of tendon tears. 

2.14The acromion is an extension of the scapula.  The rotator cuff lies under the roof of the acromion.  The space between the acromion and the rotator cuff tendons is filled by fluid sacs.  This allows smooth gliding of the rotator cuff under the acromion with overhead movements of the shoulder.  The rotator cuff enables the act of the upper arm to move smoothly to the shoulder blade.  Injuries to the rotator cuff will cause the cushion effect to be lost.  As the arm is lifted the head of the upper arm bone will move upwards closer to the acromion at risk of causing impingement. 

III.  Pre-trial loss

1)  The Master’s reason

3.1The parties had retained two medical experts who prepared two joint reports dated 13 March 2013 and 4 June 2014.  In the second report Dr Fu for the plaintiff was of the view that the period of sick leave granted to the plaintiff (then up to 23 June 2014) was appropriate and the second operation was necessary.  Dr Lam for the defendants, however, was of the view that the plaintiff should only be allowed one year of sick leave for the accident plus an additional six months for the first operation and six weeks for the second operation.  He also considered the second operation was not caused by the accident but by the plaintiff’s in-born condition which would predispose him to impingement.

3.2The Master held that he preferred Dr Fu’s opinion and not Dr Lam’s opinion on the necessity of the second operation. Nonetheless, he followed and applied Dr Lam’s view on the period of sick leave.  The sole reason given for his holding was that the plaintiff could have returned to work as a quality inspector in a printing factory.  This is what he held :

‘ 33. In any case, I agree with Dr Lam opinion that the plaintiff’s residual pain and stiffness (ie loss of full range of motion) would partly affect his capacity in jobs requiring excessive shoulder movement or overhead lifting of weight.

34. On hearing the evidence from the plaintiff, I do not find that the nature of his job as a quality inspector and as a leader of a team of 3 staff would necessarily involve much “heavy lifting work” and “excessive shoulder movement or overhead lifting of weight”.  The plaintiff did admit that he could normally ask his “juniors” to do the heavier duties.

35. As such, I cannot see why the plaintiff cannot return to work as a quality inspector in a printing factory.’

3.3The total sick leave period granted by the Master was 19.5 months although there was a slight mistake when he actually used 20.5 months for the calculation of the damages.

2)  My view

3.4For the purpose of deciding the pre-trial loss of wages, the period of sick leave granted by the doctors is only one piece of the evidence that has to be evaluated in the light of all the available evidence including medical evidence before the Court in deciding whether what is the period of time in which the plaintiff is prevented by the injury from returning to work : Tam Fu Yip Fip v Sincere Engineering & Trading Co. Ltd. [2008] 5 HKLRD 210 at paragraph 18.

3.5The Master had, of course, made a finding of fact in relation to the duration of the plaintiff’s sick leave.  This Court will only interfere with such a factual finding when the decision was plainly wrong. This means no reasonable judge would come to such a finding in the light of the evidence before him.  This is an extremely high threshold.  But because of this high threshold, a trial judge is expected to articulate his or her reasons fully when making findings of fact : Zhang Rui Hua and Another v Wong Lan and Another CACV 208/2013 Judgment 8 January 2016.

3.6Mr Lim had argued that since the Master had refused to accept the plaintiff’s evidence on his part-time employment, he was, likewise, entitled not to accept the plaintiff’s evidence on the duration of his pre-trial loss of employment.  

3.7In my view, these are two different matters.  In respect of the latter, there is contrary objective evidence which the Master had not addressed and I am of the view that the Master was plainly wrong on this issue.  In coming to the conclusion that the plaintiff could return to his job as a quality inspector without the need to do heavy duty work, he had ignored the fact that the plaintiff was dismissed by Ringier from his employment on 17 June 2011.  Although Mr Lim had argued that the plaintiff was dismissed for reasons other than his inability to perform his work, the Master had made no findings on this.  Mr Lim also submitted that the plaintiff had agreed in his cross-examination that in normal circumstances he could ask his other two staff to do the heavy work.  But that was not the only evidence given by the plaintiff.  He had also explained in his evidence that he had to do lifting work as well.  But whatever was the position, the plaintiff was dismissed by Ringier as a quality inspector. 

3.8More importantly, the evidence revealed that when the plaintiff was briefly employed at the Government Logistics Department, he was asked to perform lifting work as well such as loading paper.  In an ideal world, the plaintiff was certainly qualified to be employed as a quality inspector but the reality showed that that was not the case.  He had to work without the assistance of subordinates.  Furthermore, the plaintiff’s difficulties in lifting objects were consistent with the nature of his injuries to the right shoulder which in fact necessitated a second operation nearly three and a half years after the accident. 

3.9Since the Master did not accept Dr Lam’s view on the necessity of the second operation, his endorsement of Dr Lam’s view on the six week sick leave period after the second operation was likewise faulty.

3.10Mr Wong, the plaintiff’s counsel, accepted the sick leave should end in October 2014 when the plaintiff himself sought work from the bus company.  Mr Wong asked for an award based on a total period of about 50 months.  This means the pre-trial loss of earnings is $13,500 x 50 x 1.05 = $708,750.

3.11In my view the evidence clearly supports the plaintiff’s claim that during this period he was unable to resume employment and an award of $708,750 should be given for pre-trial loss of earnings.  

IV.  Post-trial loss

1)  The plaintiff’s case

4.1The assessment of damages took place between February and April 2015.  By then, the plaintiff had still not returned to employment.  However, Mr Wong, in his closing submission before the Master accepted that the plaintiff would be able to work as a driver or a security guard.  He conceded that the plaintiff would be able to work a 12 hour shift day of which eleven hours would be paid by way of minimal wage of $32.5 per hour.  This amounts to $9,295 per month before MPF or $9,760 per month with MPF.  The calculation on loss of future earning that was put forward was $9,615 ($19,375 less $9,760) X 12 months X multiplier of 10.21 (calculated by reference to the actuary tables) = $1,178,029.  This calculation was in line with the plaintiff’s claim for future loss of earning identified in the Statement of Damages although there the actual figures used were different.

4.2In the Notice of Appeal, the plaintiff contended that his injuries would cause a reduction in earnings of about $3,500 per month ($42,000 per year) which would give rise to an assessment of $449,820 at a multiplier of 10.21.  

4.3However, in his written submission for this appeal, Mr Wong put forward another formulation of the post-trial loss of earnings claim.  He referred to the medical experts’ view that there was a 9% total impairment of the plaintiff’s whole person.  Based on earnings of $13,500 per month, a 9% impairment means a 9% loss of his earnings.  This would be $14,580 per year.  Applying the multiplier of 10.21, the loss would be $156,304 (inclusive of MPF).  

4.4This Court pointed out to Mr Wong that future loss of earnings cannot be based on a percentage of the impairment of the whole person.  The impairment reduction is a reference to functional impairment and is usually used in the calculation of employees’ compensation awards.  When faced with this challenge Mr Wong informed the Court that he would adopt the formulation of future loss in his closing submissions below.  This was opposed by Mr Lim for the defendants.  

2)  My view

4.5The Master accepted that the plaintiff’s earning capacity has been reduced by his injuries and gave an award for loss of earning capacity.  This is a clear recognition that the plaintiff’s future earnings would be affected because of his injury.  The plaintiff clearly had earning potentials as conceded by his counsel on his behalf.  At the same time, I accepted Mr Wong’s submission that in view of the plaintiff’s age and injury, even when he takes up employment again, he could not be expected to earn the same level of wages as a quality inspector in a printing factory.  The $3,500 figure in the Notice of Appeal suggests an approximate difference between pre-trial monthly earnings of $13,500 and the approximate potential monthly earnings of $10,000. In my view, $449,820 is reasonable for the purpose of assessing the plaintiff’s post-trial loss of earnings.

4.6The defendants are not prejudiced in any way if the figures in the Notice of Appeal are adopted because the Court is awarding precisely the same figure put forward there and not the figure contained in the plaintiff’s written submission filed recently on 28 January 2016. 

V.  Conclusion

5.Accordingly, the appeal is allowed to the extent as indicated.  

VI.  Costs

6.There will be an order nisi that the plaintiff is to have the costs of the appeal.  As the Master has already awarded the costs of the assessment to the plaintiff, there is no need to make further order on this despite the plaintiff in his Notice of Appeal seeking an order for costs of the hearing below.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.  

Hon Yuen JA :

7.I agree with the judgment of Cheung JA.

Hon Chu JA :

8.I agree with the judgment of Cheung JA.

Mr Timothy Y H Wong, instructed by Au-Yeung, Cheng, Ho & Tin, assigned by Director of Legal Aid, for the plaintiff

Mr Patrick D Lim, instructed by Lau, Chan & Ko, for the 1^st and 2^nd defendants