Lo Hing Kin Nelson v Personal Representative of Lam Yuk Wan (deceased)
Court of Appeal
Civil Appeal No. 206 of 2015
Chu and Poon JJA and Godfrey Lam J
8 May 2017

Loss of earnings – loss of earning capacity – future medical expenses – approach to be taken by plaintiff in establishing entitlement to award of damages

On 18 June 2009, P, then aged 34, was injured in a traffic accident. Among other injuries, he suffered comminuted fractures of the lower tibia and fibula of his right leg. Later that year, judgment for damages to be assessed was entered in his favour. Since 2003, P had owned and run a business in the trading and transportation of metal stripped from dismantled scaffoldings, hoardings, billboards and signage. In addition to things such as bidding, administration and the supervision of workers, his activities in this business included his climbing up and down the scaffoldings to be dismantled and personally carrying out some of the more dangerous dismantling work such as was involved when such work was done at a height of 20 m. His damages were assessed on 14 August 2015. At the assessment, P’s case was that he was unable to go to any construction site until July 2011; he resumed contracting work from construction sites that month, but that he aimed at safer dismantling and transportation works which only required him to supervise the workers on site. He appealed against the Deputy Judge’s refusal to make any award for (a) loss of earnings after July 2011; (b) loss of earning capacity (pre-trial or post-trial); or (c) future medical expenses.

Held, dismissing the appeal, that:

Loss of earnings

  • In reliance on the Deputy Judge’s observation that P “could have been entitled to claim for the extra business expenses including the cost of extra outside help and operating cost to take up part of his pre-accident roles on site in his business”, it was submitted on P’s behalf that he was entitled to damages representing such expenses. But that was not how the case was run below, which was that the business had been running at a loss after July 2011. There was no alternative claim for damages representing such expenses. Advancing such an alternative case on appeal without having advanced it at first instance was precluded by the Flywin principle. It was argued on P’s behalf that it was for a defendant to establish that a plaintiff had failed to mitigate his loss, and that the Judge had reversed this burden. But the Judge had merely required P to prove his loss. An approach akin to that used in assessing an award for loss of earning capacity did not assist P under the head of loss of earnings. (see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at para. 38).

Loss of earning capacity

  • It was submitted on P’s behalf that if no award was made for loss of future earnings, then damages should be awarded for loss of earning capacity. But an award for loss of earning capacity was not a conventional award to be made in the abstract but a specific mode of compensation that had to be based on evidence; and there was no evidence for such an award in the present case.

Future medical expenses

  • The cost of a future operation would only be awarded if the court were satisfied that the operation was based on medical advice, was necessary or reasonably required for recovery or improvement or the relief of persistent pain and suffering, and was anticipated or likely to take place in the near or reasonably foreseeable future; and the Deputy Judge was entitled to resolve the issues of primary fact against P on those matters.

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