Read the full judgment text of CACV 000208/2007 on BabelCite. This Court of Appeal judgment was delivered on 19 March 2008 before Le Pichon JA, Cheung JA, Reyes J.
Personal injuries – quantum – pre-trial loss of earnings – sick leave certificates – whether judge can go behind sick leave certificates in assessing pre-trial loss of earnings – whether express finding of exaggeration inconsistent with acceptance of full period of sick leave – Employees' Compensation Ordinance (Cap. 282) – Legal Aid Regulations – appeal allowed. Personal injuries – workplace accident – plaintiff slipped from ladder sustaining leg and hip injuries – 913 days of sick leave granted – trial on quantum only – joint medical report noted seven non-organic signs – Dr Chun opined plaintiff grossly exaggerated symptoms and sustained only minor soft tissue injury – Dr Au declined to express a definitive opinion – surveillance films obtained. Whether, having made an express factual finding that the plaintiff was fit to return to work no later than January 2003 and was grossly exaggerating his injury, the judge erred in holding there was insufficient evidence to revisit the integrity of the sick leave granted. Held: the judge erred; the express finding must prevail over the inconsistent conclusion. Sick leave certificates are no more than a piece of evidence to be evaluated in light of all available evidence, and a judge is not bound by their issuance: Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd, CACV 172/2004. Pre-trial loss of earnings is ascertained by reference to the period the plaintiff was actually prevented by the injury from working, and this does not require evidence of impropriety by the doctors who issued the certificates. The plaintiff's argument that sick leave expenses were recoverable as expenses honestly and reasonably incurred on expert advice was rejected. Appeal allowed; damages reduced from $548,320 to $150,422.50, with the pre-trial loss of earnings and MPF award substituted from $450,450 to $52,552.50 (representing 3.5 months). The defendant had already paid $262,191 under the Employees' Compensation Ordinance, exceeding the reduced damages, so costs were ordered to the defendant with the plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Whether a judge may go behind sick leave certificates to assess pre-trial loss of earnings
Outcome: Appeal allowed.
Cited by 11 cases · Cites 1 case