Chan Chung Sau v. Macrae Duncan James

CACV 6/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 6 OF 2005

(ON APPEAL FROM HCPI 288 OF 2003)

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BETWEEN

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Before: Hon Tang JA, Yam and Sakhrani JJ in Court

Date of Hearing: 7 June 2005

Date of Judgment: 24 June 2005

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.The plaintiff was injured in his right wrist as a result of a collision when he was riding his motorcycle on 12 January 2001.

2.He was 38 at the time of the accident and a life guard in the Regional Council.

3.The plaintiff was able to return to effective performance of his duties after 4 months of sick leave.  However, on 27 July 2003, a medical board decided that by virtue of neck and wrist pain as well as psychological stress he was no longer capable of performing his duties as a result of which he was obliged to retire early on 2 December 2003.  The plaintiff has been unemployed since.  The neck injury was the result of an earlier traffic accident.  The judge had diametrically opposed evidence from 2 psychologists and he came down decidedly in favour of the evidence given by Professor Lee on behalf of the defendant.  So in relation to the plaintiff’s evidence that he will never work because of his psychological state, the judge said: “This is plain nonsense.”

4.This is what the judge said about his wrist injury:

“Orthopaedically, the wrist injury does not appear to present any great problem.  One only needs to view the surveillance videotape to see that the plaintiff is unaffected by the wrist injury.  He gives all the appearance of being “right as rain”.  His right hand motor functions appear to be excellent.  On the tape he is seen handling small change in his right hand perfectly well and from his general demeanour he appears pain free and well adjusted to the ordinary demands of daily life.” 

Indeed, the plaintiff was taped carrying a bag containing 2 lunch boxes in his right hand without any indication that he was troubled by the wrist injury.  Then the judge went on to say at para. 21:

“This is a perfectly well man provided he puts his mind to it and gets on with life.  It is most unfortunate that the medical board felt able to retire him.  He is now 42 in the prime of life with everything to look forward to.”

On such findings the judge awarded the plaintiff the sum of $200,000 for loss of future earnings.  He also awarded him $100,000 for loss of  future earning capacity.  In the appeal, Mr Mui, who appeared on behalf of the plaintiff submitted that the sum awarded for loss of future earnings was grossly inadequate.  The plaintiff was earning $13,530 at the time of his retirement.  Mr Mui agreed that the plaintiff has also lost the pension which he would have been entitled had he been able to serve until the normal retirement age.

5.Mr Mui relied in particular on the fourth supplemental statement of the plaintiff.  The compensation based on the fourth supplemental witness statement had been rejected by the judge and we see no reason why we should disagree with him.  The calculation was based on the plaintiff not being able to work. 

6.We note that on his retirement the plaintiff was paid a lump sum of $415,648.80 together with a monthly pension of $3,024 until death.  Mr Mui was unable to tell us how the figure of $415,648.80 was arrived at.  But he would not disagree that that was probably based on a commutation of a monthly pension equivalent to approximately  $2,474.  If that be the case then it would appear that as a result of the involuntary retirement the plaintiff has the benefit of the equivalent of a monthly pension of almost $5,500.  On the evidence he found the judge saw no reason why the plaintiff could not obtain gainful employment.  Nor was he confined to work as a watchman.  We must say that from our observation of the tape we agree with the judge’s finding.  If the plaintiff were to obtain employment at say $10,000 a month then when that is added to the pension he would have been better off than if he had stayed as a lifeguard.  Even if he were to work as a watchman when his income as a watchman is added to his monthly pension of $5,500, he would have suffered little loss of earnings.  The judge had difficulty in assessing future loss of earnings.  The plaintiff’s case was that he would never work again which had been rightly rejected by the judge.  Nor was the judge bound to accept the plaintiff’s medical expert’s evidence that he could only work as a watchman.  The plaintiff is strongly built and there is no reason why he cannot get a job which would pay better than as a watchman.  Indeed, even as a watchman, having regard to his age and strong built, we believe he should be able to earn more than merely the average pay which is approximately $7,000 a month.  In all the circumstances, we cannot interfere with the judge’s award.

7.The other ground of appeal relates to the cost of a possible operation.  The plaintiff had been recommended to undergo fusion surgery to his wrist.  In para 22 of the judgment, the judge said that it appeared to be highly unlikely that the plaintiff would undergo the surgery.  And at para. 27, he said:

“that it is more likely than not that he will not undergo this surgery which is an entirely reasonable approach by him.” 

Having regard to the surveillance tape, we believe that was a perfectly reasonable conclusion.  Thus, we do not believe the judge would be faulted for not awarding the costs of this operation to the plaintiff.

8.For the above reasons, the appeal is dismissed.

9.We make an order nisi the defendant is to have the costs of the appeal to be taxed, if not agreed.

Mr Louie K K Mui, instructed by Messrs Lam, Lee & Lai, for the Plaintiff (Appellant)

Mr John Wright, instructed by Messrs Yip & Partners, for the Defendant  (Respondent)