Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Tjang Siu Thu v Profield Construction Engineering Ltd And Another

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date27 May 2015
Year2015
Judgement NumberCACV156/2013
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV156/2013 TJANG SIU THU v. PROFIELD CONSTRUCTION ENGINEERING LTD AND ANOTHER

CACV 156/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2013

(ON APPEAL FROM HCPI 149 OF 2011)

--------------------------

BETWEEN
TJANG SIU THU Plaintiff
and
PROFIELD CONSTRUCTION ENGINEERING LIMITED 1st Defendant
CHAN SHUM KEE SAM LEE CONSTRUCTION COMPANY LIMITED 2nd Defendant

--------------------------

Before: Hon Cheung CJHC, Macrae JA and McWalters JA in Court
Date of Hearing: 24 March 2015
Date of Judgment: 24 March 2015
Date of Reasons for Judgment: 27 May 2015

--------------------------------------

REASONS FOR JUDGMENT

--------------------------------------

Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1. This is an appeal from an assessment of damages by Master M Wong. The plaintiff’s common law damages claim arose from a workforce injury sustained by her in the course of her employment with the 1st defendant.

2. The plaintiff was employed by the 1st defendant as a construction site general worker at a construction site located at Wan Chan Road, Tsing Shan Tsuen, Tuen Mun in the New Territories. Her duties included, inter alia, transporting construction materials and removing rubbish and debris from the site. The 2nd defendant was the principal contractor at the site and the 1st defendant was a sub-contractor of the 2nd defendant.

3. On 5 March 2008 the plaintiff, whilst working at the site, tripped over a metal pipe and fell into a hollow structure at the site, thereby sustaining the injuries which gave rise to her claim.

4. On 2 March 2011 the plaintiff commenced the present proceedings and on 25 July 2012 obtained interlocutory judgment against the defendants. As a consequence, the hearing before the Master was only for assessment of damages but prior to that hearing the plaintiff had already received a total of $637,510.67 in satisfaction of her claim under the Employees’ Compensation Ordinance, Cap 282 (“the ECO claim”).

5. In his judgment the Master assessed the plaintiff’s damages at $502,432.08 and as this was less than the ECO claim the plaintiff received no compensation from these proceedings. The Master also awarded costs to the defendants to be taxed on an indemnity basis.

6. At the hearing of the appeal we dismissed the appeal with costs to the defendants and said we would give our reasons for doing so at a later date. This we now do. The defendants applied for their costs to be taxed on an indemnity basis and we reserved our decision on this application.

The hearing before the Master

7. A number of matters were agreed by the parties on the first day of the hearing. These were that pain, suffering and loss of amenities (“PLSA”) should be assessed at $220,000, special damages at $50,000 and future expenses at $1,000. The plaintiff’s pre-accident basic monthly wages were agreed at $7,600 and if there should be an award for future loss of earnings it was agreed that a multiplier of 11 should be employed.

8. The Master described the outstanding issues for his determination as being:

“(1) Did the plaintiff have any overtime payment as she alleges?

(2) What should be the appropriate sick leave period for the plaintiff?

(3) Is the plaintiff able to return to her pre-accident occupation after the expiration of the sick leave period?

(4) If the answer to question (3) is negative, what should be the appropriate multiplicand?

(5) If the answer to question (3) is positive, is she entitled to an award for loss of earning capacity?”

9. The only witness who gave oral evidence at the hearing before the Master was the plaintiff and he was unimpressed with her as a witness, finding her to be totally unreliable and exaggerating her residual injuries.

10. In respect of her claim that she had been promised overtime pay, the plaintiff said that in a conversation at the site with a person called “Lo Yu” she was told she would receive $100 per hour in overtime pay. The Master found that there was no evidence to support the plaintiff’s assertion to this entitlement. The record that the plaintiff herself made of the number of hours of overtime that she worked she said she discarded at the end of 2008FN. Because normal working hours were 8am to 6pm the site office where workers clocked in and out was closed before the plaintiff could clock out and so the plaintiff did not believe the defendants would have any record of her overtime.

11. The plaintiff conceded that despite working overtime she had not once been paid for it and claimed that it was part of her agreement with Lo Yu that she would be paid such overtime as was due to her after construction work at the site was completed. The Master noted that no such entitlement had been part of the plaintiff’s claim under the ECO. The Master concluded that he could not be satisfied on the balance of probabilities that the plaintiff had an average monthly overtime payment of $1,729.10.

12. The plaintiff’s counsel at trial and on appeal was Mr Patrick Lim and he contended both before the Master and this court that the Master should have inferred from the failure of the defendants to call the person Lo Yu that the testimony of this person would have confirmed that the plaintiff had been promised overtime. This contention was rejected by the Master.

13. In respect of the second issue of the appropriate sick leave period the judge examined the medical evidence and concluded that the plaintiff’s sick leave period should not extend beyond 5 March 2009 when the Orthopedic Department of Princess Margaret Hospital refused to grant her any further sick leave. In coming to this conclusion he again found that the plaintiff had exaggerated her medical condition.

14. On the question of whether the plaintiff could return to her pre-accident employment the Master again relied on the medical evidence rather than the plaintiff’s assertions as to the seriousness of her medical condition. The judge accepted that the plaintiff would not be able to perform the full duties of her pre-accident employment as she still suffered from mild lower back pain which would prevent her from lifting heavy weights. The Master also accepted that because she would be limited in what she could do, prospective employers would likely be reluctant to employ her. But the Master found that the plaintiff was still capable of working in jobs that placed less physical demands on her back. Consequently, the Master answered the question of whether the plaintiff was able to return to her pre-accident occupation after the expiration of her sick leave in the negative.

15. The Master then turned to the question of what should be the appropriate multiplicand. Mr Lim claimed that the plaintiff was entitled to full loss of earnings and argued against the suggestion that the Master should adopt the salary of a dishwasher which, according to government statistics was $6,871 per month.

16. The Master noted that on the plaintiff’s own evidence she had not always been a construction site worker and had previously worked as a packaging worker in a garment factory, as a waitress in a restaurant and as a cleaner. He concluded that “with her past working experience, there is no reason why she cannot work or cannot be employed as packaging worker, waitress or cleaner again.”

17. There was no government statistic on the pay received by a cleaner but the Master reasoned that if she could work as a cleaner then she should be able to work as a dishwasher for which there was evidence of monthly pay. Relying on the government statistic as to the monthly pay of a dishwasher the Master calculated the difference between that figure, $6,871, and her monthly pay at the construction site $7,600 and arrived at a multiplicand of $729.

18. Using this multiplicand he then assessed pre-trial loss of earnings, inclusive of MPF, at $130,392.68. This amount was calculated from the end of the sick leave period, 6 March 2009, to the date of judgment.

19. The Master then turned to future loss of earnings and using the same multiplicand of $729 and the agreed multiplier of 11 he assessed the plaintiff’s damages under this head at $101,039.40.

20. When the Master came to address the plaintiff’s claim for loss of earning capacity he noted that it was “to cover the risk that, at some future date during the plaintiff’s working life, she will lose her employment and will then suffer financial loss because of her disadvantage in the labour market.” However he went on to note that even if there was such a risk the plaintiff was only entitled to a separate and additional award under this head to the extent that this loss had not been reflected in the award for loss of future earnings.

21. As a matter of fact the Master found that even though the plaintiff was prevented from returning to her former employment, there was no evidence to suggest that her mild back pain would prevent her from obtaining employment in the alternative areas he had previously mentioned...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT