Read the full judgment text of CACV 156/2013 on BabelCite. This Court of Appeal judgment was delivered on 24 March 2015 before Cheung CJHC, Macrae JA and McWalters JA.
Civil appeal – assessment of damages – workplace injury – construction site worker tripped over metal pipe and fell into hollow structure – common law damages claim against employer (1st defendant sub-contractor) and principal contractor (2nd defendant) – interlocutory judgment obtained – assessment of damages before Master – plaintiff had already received $637,510.67 under Employees' Compensation Ordinance, Cap 282 – Master assessed damages at $502,432.08 (less than ECO award so no compensation from proceedings) – plaintiff appealed – First ground: whether Master erred in not awarding damages for loss of overtime pay – argument that adverse inference should be drawn from defendants' failure to call witness 'Lo Yu' under Wisniewski principles – held: no; Wisniewski principles are not a presumption and require a prima facie case supported by credible primary evidence; plaintiff's bare assertion from unreliable witness with inherently incredible explanations could not be elevated into proven claim; Master entitled to decline to draw inference – Second ground: whether Master erred in not awarding separate damages for loss of earning capacity – held: no; loss of earning capacity was subsumed in the future loss of earnings award as the multiplicand of $729 already reflected her reduced earning capacity in alternative employment; separate award would have constituted double compensation – Third ground: whether plaintiff entitled to additional award for being only able to work 23 days a month – held: no; new point not taken below, no medical evidence to support limitation, and joint medical report only indicated mild reduction in work capacity – Wisniewski v Central Manchester Health Authority [1998] PIQR 324 applied; Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 considered; Mark Forstater Productions Ltd v Python (Monty) Pictures Ltd [2013] EWHC 1873 considered; Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd, CACV 90/91/93/94/95/96/2012 considered; Prest v Petrodel Resources Ltd [2013] UKSC 34 considered – Sanctioned Offer made by defendants on 17 July 2014 lapsed 14 August 2014 – appeal dismissed – defendants awarded costs of the appeal with costs from 15 August 2014 taxed on indemnity basis – plaintiff's own costs taxed in accordance with Legal Aid Regulations.
Legal issues: Whether adverse inference should be drawn from defendants' failure to call witness to prove overtime entitlement · Whether separate award for loss of earning capacity was warranted · Whether plaintiff entitled to additional award for inability to work 26 days a month
Outcome: Appeal dismissed; plaintiff's three grounds of appeal all rejected.
Cited by 7 cases