Claiming Damages for Loss of
Earnings in the Absence of
Supporting
Documents
on
Earnings
Introduction
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.
Case Summary
Chan Lung Hing v Ng Kam Man[1]
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 base 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 counsel for
Plaintiff 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[2]
Personal injury victims who are self-employed taxi drivers or public light bus drivers may face similar
hurdle 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
bank accounts, bank statements are not likely to provide concrete evidence as to the drivers’ earnings.
Does it mean their claims in 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
public light bus driver in assessing his income[3]. Even though the Plaintiff failed to provide
concrete documentary evidence on his earnings, the court took into account of 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.
Conclusion
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 defendant’s attempt in undermining
the plaintiff’s case.
It follows that the credibility of plaintiff would be the key to succeed in such claim. 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.
[1]
Chan Lung Hing v Ng Kam Man, [2014] HKCU 1501 [2]
Wong Ka Ming v Ng Yin King & another,
[2011] HKCU 1030 [3]
Wong Ka Ming v Ng Yin King & another, [2011] HKCU 1421
IMPORTANT:
The law and procedure on this subject are very specialized
and complicated. This article is just a very general outline
for reference and cannot be relied upon as legal advice in
any individual case. If any advice or assistance is needed,
please contact our solicitors.
For enquiries, please contact our Insurance & Personal Injury
Department:
E: [email protected]
T: (852) 2810 1212
W: www.onc.hk
F: (852) 2804 6311
Published by ONC Lawyers © 2015