Lai Kwan Ming v. Lee Yin Hing t/a King Yip Co. and Another

HCPI000765A/2000

HCPI 765/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 765 OF 2000

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Coram: Deputy High Court Judge Lam in Court

Dates of Hearing: 26 & 28 September 2001

Date of Handing Down Reasons for Ruling: 11 October 2001

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R U L I N G (1)

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1.This is my ruling on an application for leave to amend the Revised Statement of Damages in the context of an assessment of damages. The Plaintiff suffered personal injuries in the course of his work on 15th September 1997 at a construction site in Tseung Kwan O. The Defendants were his employer and the principal contractor of the construction site respectively. Liability has been conceded. After evidence has been closed at the hearing for assessment of damages, the Plaintiff applied for leave to amend his Revised Statement of Damages in the course of closing submissions. I granted leave to amend on 28th September 2001 for reasons to be handed down later. These are the reasons.

The defect in the Revised Statement of Damages before amendments

2.In the original Revised Statement of Damages, it contained the following paragraphs:

"13. According to Dr Arthur Chiang, the Plaintiff is suffering from a reduction in his working capacity assessed at about 10 to 15%, the loss of earnings from 26th August 2000 to 26th March 2001 will be HK$31,531.50 x 7 months x 15% = HK$33,108.10.

15. Even if the Plaintiff is capable of returning to his pre-accident job after 26th August 2000, there will be reduction in his activities. His reduction of working capacity is estimated to be about 10 to 15%. Therefore, the Plaintiff will be disadvantaged in the open labour market due to his injuries and his reduced capacity in carrying out manual duties. He claims a lump sum of HK$100,000.00 for loss of earning capacity."

3.At the time when the Revised Statement of Damages was filed (20th March 2001), the Plaintiff intended to rely on the report of Dr Chiang to establish these heads of damages. In his report dated 27th February 2000, Dr Chiang said in Paragraph (9) of his comments:

"In considering the need for prolonged standing and bending of back, as well as the frequent squatting, strenuous manual work activities and heavy object lifting which are required in a formwork carpenter's job, I think he should be able to return to work at that job but with some reduction in his activities. An example of the reduction in the capacity would be ache in the right hip after prolonged work activities. The reduction in his capacity is suggested to be at about 10 to 15%."

4.Doctors have always been asked to give a percentage with regard to the loss of earning capacity of a plaintiff in personal injury cases. However, it has been said in a number of cases that this is not helpful to the court. In Tang Shau Tsan v. Wealthy Construction Co. Ltd, CACV 58 of 2000, 5.4.2000, Rogers JA (as he then was) said as follows:

"Mr Clough, on behalf of the plaintiff, correctly drew our attention to the fact that both the report of Dr Philip Mao and the report of Ms Alice Tsang contained statements of their opinion that the plaintiff had suffered a 10% loss of earning capacity. It was said that these statements were inadmissible from these experts and had misled the judge into calculating the damages on a wrong basis. It is necessary to point out, right at the outset, that both these witnesses were called on behalf of the plaintiff. Insofar as the complaint now comes from the plaintiff's side, clearly, those in charge of the preparation of the plaintiff's case are responsible for any difficulty which arose.

For reasons which I shall outline below, I do not consider that the judge did rely on these estimates but made an estimate of his own. However, in my view, Mr Clough was correct in his criticism of the expert witnesses' evidence insofar as it contained statements of opinion in relation to loss of earning capacity.

An expert witness can give evidence as to the nature of the plaintiff's injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.

On a practical level, it could be said that insofar as Alice Tsang's report, based upon results of tests, concluded that the plaintiff was capable of limited lighter jobs in carpentry or that he had limited capability for lifting heavy items, that is useful material for the judge. Insofar as there is speculation as to whether fellow workers could perform the task of moving heavy items or additional staff could be employed or whether the plaintiff could work as a sub-contractor and what effect that his long experience in the field would have on his ability to do so, those, in my view, constitute inadmissible statements. It is for the court to draw its own conclusions as regards those matters from the evidence before it. All the more so, it is for the court to draw its own conclusions as to the earning capacity of the plaintiff."

5.Further, in Li Wan Choi v. Choi Wan Hing, CACV 182 of 2000, 15.11.2000, Rogers VP and Le Pichon JA said these:

"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%.

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."

6.One of reason why such percentage figures are unhelpful is that very often, those advising a plaintiff just copied that figures and pleaded the same as supporting a claim for loss of earning capacity. This was what the Plaintiff's lawyers have done in drafting the Revised Statement of Damages. This is bad practice and should not be followed. Paragraph 5.1 (ii)(e) of the Practice Direction No.18.1 states clearly as follows:

"(e) where practicable, all material facts relied upon in support of a claim for damages for loss of earning capacity."

7.The law as to damages for loss of earning capacity have been recently considered by the Court of Appeal in Yu Kok Wing v. Lee Tim Loi [2001] 2 HKLRD 306 at p.311 to 313. The requirement of the Practice Direction have to be read together with the law. In my judgment, it is not enough to plead in the Revised Statement of Damages that the plaintiff was assessed by a doctor to suffer a certain percentage of loss of earning capacity. The material facts have to be set out. Otherwise, a plaintiff faces the risk that the court would not allow evidence on such facts to be adduced at the trial or assessment.

8.In the present case, the Plaintiff should have been alerted to the inadequacy of its pleadings in these respects. On 22nd June 2001, Seagroatt J. directed as follows:

"The medical reports are to be adduced in evidence. No oral medical evidence is required. All references to percentage impairment or percentage loss of earning capacity are to be excised from the reports."

Despite such directions, when the assessment came before me on 26th September 2001, the medical reports in the bundle still contained the percentage figures. I asked counsel for the Plaintiff why that was so. She told me that notwithstanding the directions of Seagroatt J., I could still take into account of the figures. I do not agree. When a direction has been given by the court, it is expected that parties would comply with the same unless such directions were set aside on appeal or revoked subsequently. Nothing of that sort happened in the present case. As shown in the foregoing paragraphs, the direction of Seagroatt J. with regard to having the percentage figures excised is given for, if I may say so respectfully, good and sound reasons.

10.More unfortunately, despite this being pointed out to counsel for the Plaintiff at the beginning of the assessment, she did not re-examine her pleaded case with regard to loss of earning and earning capacity. The assessment continued on the pleadings, including those paragraphs mentioned by me in paragraph 2 above.

The application for leave to amend

11.In the course of her closing submissions, counsel for the Plaintiff attempted to invite me to have regard to the percentage figures. When she realized that such course was not viable, she accepted that I should not assess damages under those heads in accordance with the case pleaded in the Revised Statement of Damages. She however invited me to make awards under these heads by reference to the evidence already adduced before the court.

12.I indicated that before I embarked on such a course, the Plaintiff should put his house in order and formulate the claims under these heads properly. Since the Plaintiff had not yet formulate his claims in writing on a proper basis at that stage, and the Defendants indicated that they would oppose the application for amendments, the case was adjourned to 28th September 2001.

13.A summons for leave to amend was issued by the Plaintiff on 27th September 2001. The proposed amendments involved the deletion of the original Paragraphs 13 to 15 and replaced the same with the following (Ms Cheng informed me at the hearing on 28th September 2001 that there was a slight change to the new paragraph 14 from the draft attached to the summons):

"13. According to Dr Arthur Chiang, in view of the need for prolonged standing and bending of back, as well as the frequent squatting, strenuous manual work activities and heavy object lifting which are required in a formwork carpenter's job, even though the Plaintiff should be able to return to work at that job, there would be some reduction in his activities. An example would be ache in the right hip after prolonged work activities.

14. As a result of the difficulties mentioned in paragraphs 3 to 5 hereof, the Plaintiff, who received education up to primary education up to level 2 in mainland China, will suffer a handicap in the labour market, in that:-

(a) the types of jobs that he is capable of performing are limited;

(b) it will be difficult for him to maintain long term work due to inter alia, the limited nature of duties he can perform; and

(c) should he become unemployed, he will have difficulty in finding an alternative employment and competing with other healthy candidates.

Since the accident, the Plaintiff can only do temporary jobs such (sic.) hawkers, light cleaning work or watchman.

15. The Plaintiff claims an award for loss of earning capacity in the sum of HK$100,000.00."

The summary of quantum in Paragraph 19 of the Revised Statement of Damages was also amended to reflect the aforesaid amendments.

14.The amendments were to plead the claim of loss of earning capacity on a basis other than by reference to the 10 to 15% assessment put forward by Dr Chiang, which should have been excised. Counsel for the Plaintiff said that these amendments were put forward on the evidence already before the court.

15.Counsel for the Defendant opposed the amendments on the ground that it was late. However, she fairly conceded that there was no substantial prejudice to the Defendant.

My ruling

16.Since there is no substantial prejudice to the Defendant, I consider that the amendments should be allowed even though it comes at a very late stage. To refuse leave would tantamount to dismissal of the Plaintiff's claims under this head without going into the merits notwithstanding that evidence relating thereto have been placed before the court. That would not be right. The amendments are to ensure that the real issues are ventilated before the court. I will therefore allow those amendments. Of course, I have to allow counsel for the Defendant to address me further by way of closing submissions regarding the amended case of the Plaintiff.

17.On the question of costs, obviously the Defendant should not be required to bear the costs of the amendments. Further, but for this application for leave to amend, the assessment hearing would have been concluded on 26th September 2001. Since the solicitors for the Plaintiff should have appreciated the need to amend after the direction of Seagroatt J. (if not earlier), I will direct that the solicitors for the Plaintiff to show cause why they should not bear the costs of the amendments, including the costs of today.

Representation:

Miss Flora Cheng, instructed by Messrs Peter K H Wong & Co., for the Plaintiff

Miss Alice Tsang, instructed by Messrs Tsang, Chan & Wong, for the Defendant