Liu Chun Kow Joe v. Lee Sau Wing

FAMV No. 37 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 37 OF 2008 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV No. 304 of 2007)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 18 December 2008

Date of Determination: 18 December 2008

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.The defendant seeks leave to appeal in relation to two heads of damages awarded in favour of the plaintiff, a CSD officer, injured in a traffic accident.  The first, which has been referred to as “ITEM 3”, is an award of $41,466 for “loss of days off in lieu” based on pro-rated daily wages. 

2.This was explained by Cheung JA in the Court of Appeal as follows:

“...staff at the CSD are required to perform an additional shift of duty and will be compensated with one-day ‘Day-off-in-lieu’ (‘DOIL’) for that shift duty.  In monetary terms it means that the staff will be entitled to a day’s leave with pay.”[1] 

After the accident, the CSD fixed half-day shifts for the plaintiff whenever he had a medical appointment, allowing him the other half-day off without deduction of pay or leave.  But the plaintiff would take the whole day off, incurring a deduction against his accrued DOIL entitlements for the half-day shift he would otherwise be working.

3.The ITEM 3 award represents a quarter of the amount originally claimed under this head, Waung J having adopted a rough and ready approach.[2]  One aspect of the argument has been that the accident did not in fact cause any such loss since the plaintiff voluntarily elected to take the whole day off.  Secondly, it is argued that there was no pecuniary loss since the plaintiff received full pay on those days off and that any compensation for loss of the enjoyment of a paid day off can only be part of an award for loss of amenity which has been amply catered for.

4.The second head of damages challenged (referred to as ITEM 5) was an award of $53,392 in respect of 32 days of vacation leave which the plaintiff took when his entitlement to paid sickness days off ran out.  Otherwise, he would have been on unpaid sick leave during that period.  The defendant makes the same “no pecuniary loss” argument.

5.The causation argument is subject to concurrent findings.   On both ITEM 3 and ITEM 5, the courts below held that the plaintiff had lost an employment benefit which could properly be reflected in the wages payable on days off with pay, since he had lost the benefit of such days off, having been made to spend them at medical appointments[3] as a result of the accident.

6.Although counsel for the applicant disclaims any attempt to challenge those concurrent findings, there is with respect a residue of such challenge in part of his argument.

7.In any event, we do not consider that a sufficient case has been made out for the grant of leave to appeal.  As to ITEM 3, the question of causation is purely fact-specific and now subject to concurrent findings of fact.  As to both ITEMS, even accepting the defendant’s argument that loss of enjoyment of these employments benefits should be assessed as part of the general damages, we are not persuaded that on the facts of particular cases, the court may not properly have regard to the rate of pay as a broad-brush guide to assessing such damages.  We do not consider the suggestion that the present case should be remitted for reassessment of the general damages to be attractive, not least because of the uncertainties inherent in taking such a course.  We therefore dismiss this application for leave to appeal with costs.

Mr Ronny Wong SC and Mr Raymond Leung (instructed by Messrs Ip, Kwan & Co) for the applicant

Mr Ashok K Sakhrani (instructed by Messrs Munros) for the respondent

[1]          CACV 304/2007 (Cheung JA, Sakhrani and Chu JJ; 16 April 2008), §6.

[2]          HCPI 399/2001 (15 February 2007), §69.

[3]          Cheung JA at §§12-14 and §§15-17.