Ray Lee, Partner Head of Insurance and Personal Injury, ONC Lawyers
Personal injury victims suing for damages bear the burden to prove their loss arising from the accident. In general, damages in loss of earnings shall be substantiated by the Plaintiff’s payroll slips, bank statements and tax returns, which would clearly show the Plaintiff’s earnings before the accident took place. However, the case may not be as straight forward for victims who are unable to provide such documentary evidence. This article aims to discuss whether a claim in damages for loss of earnings can still succeed in the absence of substantial evidence on the Plaintiff’s earnings.
Chan Lung Hing v Ng Kam Man  HKCU 1501
In the recent case of Chan Lung Hing, interlocutory judgment on liability was entered against the Defendant with damages to be assessed. The Plaintiff was operating a garage business, part of his claim for pre-trial loss of earning was based on earnings of HK$15,000 per month before the accident and a sick leave of around 9.5 months due to the neck and back injury sustained in the accident. In the assessment hearing, the Plaintiff admitted that he did not prepare the profit and loss account for his garage business and did not file tax return for his business. Further, he said that he did not keep records of his business transaction, the monthly earnings of HK$15,000 submitted in the Revised Statement of Damages was an estimate based on the turnover of the garage business less the garage overheads. In short, the Plaintiff failed to provide any document to substantiate his earnings before the accident.
Despite the total lack of documentary evidence, counsel for the Plaintiff attempted to persuade the court to accept the pre-accident earnings of the Plaintiff at HK$15,000 per month. The Plaintiff’s counsel submitted that the Plaintiff would need an income of HK$15,000 per month to cover the reasonable expenses for his family of three.
The Court rejected to assess the Plaintiff’s earnings by making reference to his reasonable expenses. Further, the Court considered the Plaintiff’s evidence on his earnings was self-contradictory and unreliable. In this regard, the Court ruled against the Plaintiff and found that he failed to prove any loss in earnings. In the circumstances, no award was made under pre-trial loss of earnings.
Wong Ka Ming v Ng Yin King  HKCU 1030
Personal injury victims who are self-employed taxi drivers or public light bus drivers may face similar hurdles in substantiating their claims. Passengers’ fares are paid in cash and rental payments for the vehicles and other expenses may also be made in cash. Unless the drivers deposit the earnings into the relevant bank accounts, bank statements are not likely to provide concrete evidence as to the drivers’ earnings. Does it mean their claims of loss of earnings are bound to fail?
In the case of Wong Ka Ming, a public light bus driver was injured in a traffic accident. Judgment on liability was entered against the Defendants with damages to be assessed. Part of the Plaintiff’s claim for pre-trial loss of earnings was based on earning a net profit of HK$800 per day before the accident and a sick leave of around 7 months due to the back injury sustained in the accident. However, the Plaintiff, being a self-employed person, was unable to provide documentary evidence to substantiate his earnings before the accident.
The Plaintiff gave oral evidence in court to explain the calculation of his earnings. He referred to some parameters but no mathematical calculation was provided. He mainly relied on his experience as a public light bus driver in assessing his income (see Wong Ka Ming  HKCU 1421). Even though the Plaintiff failed to provide concrete documentary evidence on his earnings, the court took into account the Plaintiff’s occupation and his oral evidence in assessing the Plaintiff’s earnings. The Court ruled in favour of the Plaintiff and accepted that HK$800 per day is a reasonable income for a self-employed public light bus driver. In the circumstances, the Court assessed the Plaintiff’s pre-trial loss of earnings based on HK$800 per day.
According to the Wong Ka Ming case, lack of substantial evidence is not necessarily fatal to a claim in damages for loss of earnings. Yet, in general, it is expected that the Plaintiff’s claim would be put in a disadvantageous position as such claims are more susceptible to the Defendant’s attempt in undermining the Plaintiff’s case. It follows that the credibility of the Plaintiff would be the key to succeed in such claims. As shown in the Wong Ka Ming case, the Court will consider the reason for such absence and the overall evidence of the Plaintiff. If the Plaintiff is forthcoming and gives reasonable explanation on his earnings, it is more likely for the Court to take the Plaintiff’s case into consideration and assess the Plaintiff’s earnings accordingly.