Zhong Ruyin v. Fuk on Home of Aged Ltd
Read the full judgment text of CACV 130/2012 on BabelCite. This Court of Appeal judgment was delivered on 23 April 2013.
1. This is the defendant’s appeal from a judgment of HC Wong DJ given on 20 January 2012 in a personal injuries action. Leave to appeal was given by Yeung V-P on 31 May 2012.
Cites 1 case
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CACV 130/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 130 OF 2012 (ON APPEAL FROM DCPI NO. 1795 OF 2010) ---------------------
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_____________ JUDGMENT _____________ Hon Yuen JA (giving the Judgment of the Court): 1.This is the defendant’s appeal from a judgment of HC Wong DJ given on 20 January 2012 in a personal injuries action. Leave to appeal was given by Yeung V-P on 31 May 2012. 2.The plaintiff was awarded a total of $240,843.56 (less 20% contributory negligence and after deduction of employees compensation of $96,329) which included:
These figures were contained in a corrigendum dated 31 March 2012 after the hearing of the defendant’s application for leave to appeal. Background facts 3.The plaintiff who was born in April 1947 was employed as an assistant supporting staff at the defendant’s home for the aged (“the home”). She had previously been a farmer on the mainland and had migrated to Hong Kong in 2006. Shortly after her arrival in Hong Kong she started working at the home, her duties being mainly cleaning and helping to care for the residents. 4.On 3 September 2009 the plaintiff sprained her back while lifting a disabled resident. She went to a Chinese bone-setter and was given 3 days sick leave. On 6 September she returned to work. 5.On 15 September 2009 (12 days after the 1st accident), the plaintiff was assigned to dish washing duties at the home. When she lifted a plastic container of cleaned dishes onto a trolley, she further injured her back. 6.The plaintiff did not return to work thereafter. She received out-patient medical treatment, and also physiotherapy and occupational therapy. Medical Assessment Board assessment 7.Sick leave from 16 September 2009 to 5 August 2010 was approved by the Medical Assessment Board (“MAB”) according to a certificate dated 1 November 2010. The MAB found that the plaintiff had sustained “back injury resulting in vertebra L5 collapse” and on review, assessed permanent loss of earning capacity at 10%. Joint examination by medical experts 8.In September 2010 there was a joint physical examination by Dr Tony Hung Siu-lun (appointed by the plaintiff) and Dr Chun Siu-yeung (appointed by the defendant). Their joint assessment report was provided on 23 November 2010. 9.Although the doctors disagreed as to whether the plaintiff had a pre-existing condition at the time of the accidents, they agreed that at the time of the examination:
Plaintiff’s request to return to previous employment 10.A couple of weeks after the joint assessment report, on 6 December 2010 the plaintiff went to the home to ask for her old job back. In her testimony she said Mr Chan was not pleased at seeing her. Even though she told him she did not need a walking stick at home, he nevertheless remarked on her bringing the walking stick, and asked whether she was going to look after the residents or the other way round. Mr Chan did not give evidence. 11.There is no evidence that the plaintiff made any attempts to find any other work before or after. Revised statement of damages 12.The plaintiff’s revised statement of damages stated as follows: 12.1 “Employment History
12.2 The calculations for both pre-trial and post-trial loss of earnings were made on the assumption that the month after she was not taken back by the defendant (January 2011), she would have started earning $4,000 pm. 12.3 There was also a claim for loss of future earning capacity of $4,000 x 6 months = $24,000. Judgment 13.The judge found that:
and that
On that basis she awarded:
14.It would be noted that the judge made no finding on loss of future earning capacity and that by the time of trial, the plaintiff was just a few months short of retirement age. Grounds of Appeal 15.The defendant’s grounds of appeal revolve around the issue whether the plaintiff should have been awarded full loss of earnings for the entire period of time (taken as 32 months) between the accidents (September 2009) and the plaintiff attaining normal retirement age (April 2012). 16.Mr Chung counsel for the defendant argued first that the plaintiff was not entitled to recover the full amount of her loss of earnings, because Dr Chun’s opinion (which was not contradicted by Dr Hung) was that the plaintiff did not need to use a walking stick, and it was only because the plaintiff was exaggerating her injuries by using a walking stick that she was not given her old job back. 17.Secondly, Mr Chung argued that the plaintiff’s inability to manage heavy weights did not preclude her from taking up other work, and there was no evidence that she in fact tried to secure other work. In light of the MAB assessment, the defendant argued that any award of full loss of earnings should not exceed 1 year. 18.Thirdly, Mr Chung argued that the plaintiff was bound by her revised statement of damages, which was formulated on the basis of partial loss and not full loss. Discussion 19.On the first ground, we take the view that the evidence does not support the defendant’s contention that it was only because the plaintiff was using a walking stick at the time of her visit to the home in December 2010 that she was not given her old job back. 19.1 The plaintiff’s testimony was that she had told Mr Chan that she did not need her walking stick at home. However he did not explore that with her at all. 19.2 Mr Chan did not give evidence, so there is no evidence to the effect that he would have re-employed her if not for the walking stick. 19.3 In any event, as the plaintiff’s job at the home required her to lift the residents for bathing and changing, on the agreed medical evidence she would not have been able to perform it anyway. 20.As for the third ground, 20.1 first it is not a matter of whether the plaintiff was bound by her pleadings. Of course pleadings are important, but more importantly the court should consider what evidence had been adduced at trial; 20.2 further the revised statement of damages contained assumptions of what the plaintiff could earn as a cleaner, not admissions of what she actually did earn. 21.Coming now to the second ground, there were 32 months between the time of the accident and the plaintiff attaining retirement age. It is common ground that the period of sick leave approved by the MAB (11 months 10 days) should be rounded up to 12 months (mid-September 2009 - mid-September 2010). The joint medical evidence was that thereafter (ie the 20 months from mid-September 2010 to late April 2012) she was fit to work, though she would not be able to lift heavy weights and would have to rest intermittently. 22.However apart from the plaintiff’s failed attempt to get her old job back, there was no evidence that she tried to look for any other work, even though she no longer had sick leave and had been informed by the doctors that she was fit to work. In our view, in light of the medical evidence, it was incumbent on the plaintiff to adduce evidence that she attempted to mitigate her loss by looking for other work. Mr Cheung counsel for the plaintiff admitted that she did not do this. In the absence of such evidence, there was simply no ground on which the judge could hold that the plaintiff would “find it difficult to return to gainful employment, even at a salary of $4,000 pm as pleaded in the plaintiff’s revised statement of damages”. 23.In light of the above, we have to set aside the judge’s award of full loss of earnings for the entire 32 month period between the accident and retirement age. Doing the best we can, we have assessed the quantum as follows. 24.As noted above, the period of sick leave approved by the MAB was rounded up to 12 months up to mid-September 2010. We are prepared to accept that after the sick leave period expired, given that the plaintiff would not be able to resume her former job (as confirmed by Mr Chan in December 2010), some time would have to be spent looking for other work. Mr Chung suggests 1-2 months and Mr Cheung, 6 months. We would take a period of 3 months. Thereafter, on the plaintiff’s suggestion as set out in the revised statement of damages, she would have been able to earn $4,000 pm as a part-time cleaner with light duties. Mr Chung did not quarrel with this figure. Accordingly, the assessment of loss of earnings would be as follows (adopting the judge’s global approach due to the imminence of retirement at the time of trial):
25.The plaintiff’s loss of MPF should also be correspondingly reduced to $7,000. Orders 26.By reason of the matters above, we would allow the appeal, set aside those parts of the judge’s order relating to the awards for loss of earnings and MPF and substitute therefor the sums of $140,000 and $7,000 respectively. 27.Insofar as there may be any consequential orders made by the judge (such as interest and costs) which may be affected by our order, the parties may lodge written submissions on these matters within 14 days of the date appearing on this judgment. Those written submissions should also include submissions on the costs of this appeal (including the applications for leave to appeal).
Mr Gary K.H. Chung, instructed by Winnie Leung & Co., for the Defendant/Appellant Mr Y.L. Cheung, instructed by Yip, Tse & Tang, assigned by Director of Legal Aid, for the Plaintiff/Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 130/2012