Rukhsar Begum v. Native English Center Ltd t/a The Green Lounge

DCEC 867/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 867 OF 2015

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DCPI 2243/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2243 OF 2015

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Before: HH Judge Levy in Court

Date of Hearing:  24 January 2017

Date of Handing Down Judgment: 3 April 2017

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J U D G M E N T

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A.  INTRODUCTION

1.Ms Begum, a 24 year-old Pakistani grew up in Hong Kong, slipped and fell on 11 October 2013 whilst she was waitressing for her employer, Native English Center Limited trading as “the Green Lounge” (“Employer”), which operated a Western-style restaurant. She suffered personal injuries to her right ring finger and right knee as a result of this accident.

2.Her legally-assigned solicitor, Mr Burke, instituted two proceedings on her behalf against the Employer, an employees’ compensation application (“EC Action”) made under the Employees’ Compensation Ordinance (“Ordinance”) and a common law personal injuries claim (“PI Action”), in respect of both of which Ms Begum later obtained interlocutory judgments upon the Employer’s default in entering any appearance.

3.Since much of the evidence for both proceedings overlapped, this court hence earlier directed the assessment of compensation and damages to be heard in one single trial in order to save costs.

4.At trial, the Employer was still absent. Upon having been satisfied that the Employer had been given proper notice of trial, this court proceeded with the trial in the absence of the Employer.

5.All references to the statutory provisions in this judgment will be, unless otherwise stated, to those of the Ordinance.

B.  INJURIES AND TREATMENT

6.The various government medical reports[1], a bundle of medical records[2] and a report of the private MRI scan were admitted into evidence without calling any witnesses. The doctor at the admission did not detect any fracture and only found that Ms Begum’s right ring finger and knee were tender and swollen with a reduced range of movement. She was treated and discharged with a knee brace and walking stick[3] on the same day.

7.Upon referral, Ms Begum attended four follow-up sessions with the Orthopaedics & Traumatology Department (“O & T”) of Queen Mary Hospital on 2 December 2013, 24 February, 3 March and 23 June 2014, and two physiotherapy treatments for her knee injury on 16 and 23 December 2013.  Ms Begum defaulted from physiotherapy treatment since December 2013.

8.She was found by the physiotherapist to have suffered from “right traumatic patellar tendinitis” [4] and she still complained of right knee pain for the first 2 months after the accident. By December 2013, Ms Begum could walk unaided for about 15 minutes with limping gait[5].

9.On 15 January 2014, Ms Begum had an MRI scan of the right knee done privately. It was stated in the MRI report[6] that the knee had a “possible tear of posterior horn of medical meniscus”.

10.After the doctor at the O & T was provided with the MRI report, Ms Begum was informed that the meniscus was torn and was offered knee arthroscopy on two occasions in March and June 2014. Ms Begum however indicated that she needed to consider the suggestion[7] and that she preferred conservative management.  In June 2014,  Ms Begum  was reported[8] to be still complaining of pain in the right knee with a decreased range of motion.

11.By mid-October 2014, Ms Begum’s knee injury had reached maximum recovery [9]and her sick leave henceforth ended on 13 October 2014.

12.By a Form 7 certificate[10] (“Form 7”) issued by the Medical Assessment Board (“MAB”) of the Labour Department, which conducted the assessment on 17 October 2014, the MAB assessed 330 days[11]  for sick leave and 2.5 percent for the loss of earning capacity permanently caused by the injury. Ms Begum had filed an appeal mainly against the 2.5 percentage loss of earning capacity assessed by MAB.

C.  EXPERT REPORTS

13.Dr. Li Wing Kin (“Dr Li”) was Begum’s appointed single orthopaedic expert.  After Dr Li examined Ms Begum on 23 March 2016, and reviewed all the medical reports and notes, he compiled a medical report dated 28 April 2016 (“Li’s 1^st”).

14.After Dr Li was later provided with MRI films of Ms Begum’s right knee, he compiled a supplement report (“Li’s 2^nd”) dated 27 May 2016.

15.Duplicate sets of these reports were already served on the Employer and filed with the court in both proceedings. However, leave had not been obtained in respect of Li’s 2^nd and it was not until the trial that I granted retrospective leave, notwithstanding my dismay with Mr Burke’s not having obtained prior leave from the court before he incurred costs for the obtaining of Dr Li’s 2^nd.

16.In the result, Li’s 1^st and Li’s 2^nd were admitted as evidence without calling Dr Li, whose findings and opinion stated in the reports I accept.

17.For the finger injury, contrary to the diagnosis made by the government doctors, Dr Li found, after reviewing the X–ray films of the right ring finger, that there was in fact a fracture of the base of the distal phalanx of the finger even though the fracture had already healed quite well with mild mal-union at the time of his review of the films.  The mal-union, in Dr Li’s opinion, may potentially cause residual symptoms. Dr Li recommended Ms Begum to undergo conservative treatment to strengthen the finger function by doing exercises at home with the use of a gadget called “Power Putty” (at the total cost of $450 for the entire set).

18.Dr Li classified the meniscal tear of the right knee as  “grade 2[12]”. Instead of suggesting that Ms Begum undergo an arthroscopy for assessing the extent of tear and repair as he had previously stated in Li’s 1^st, Dr Li, after having seen the MRI films, opined in Li’s 2^nd [13] that Ms Begum should recover the normal strength and endurance of the knee by non-surgical conservative treatment.

19.Dr Li opines that Ms Begum has suffered 5 percent loss of earning capacity, and 2 percent permanent impairment, which would likely be reduced to only 1 percent when Ms Begum’s working capacity is improved by her undertaking the treatment and rehabilitation he recommended.  The meniscal tear of the right knee, Dr Li believes, will make it difficult for Ms Begum to return to her pre-accident job as a waitress. However, since Ms Begum is very young and can be easily re-trained, she is, in Dr Li’s opinion, suitable to do sedentary type of work by working as an office clerk, a cashier or a receptionist.

D.  MS BEGUM’S EVIDENCE

D.1  The 3^rd witness statement: Reasons for refusal

20.Ms Begum was the only witness in the trial of these proceedings and she wished to rely on her three witness statements respectively dated 20 October 2015 (“1st witness statement”), 16 June 2016 (“2^nd witness statement”) and 12 October 2016 (“3^rd witness statement”), which duplicate sets were served and filed in both proceedings.  At the trial, Ms Begum was only allowed to rely on the 1^st and 2^nd witness statements as her evidence for the trial.

21.For the EC Action, Ms Begum only had leave to serve the 1^st witness statement. For the PI Action, even though I am not able to find any order that gave leave for the serving of the 2^nd witness statement, Mr Burke however referred me to a Checklist Review order dated 6 October 2016, which contained a direction given by the PI Master directing Ms Begum to file and serve the “Statement of Truth” in relation to two witness statements that were already served – the 1^st and 2^nd witness statements. For this reason, I find that the granting of leave for the 2^nd witness statement became moot and I granted retrospective leave for the filing and serving of the 2^nd witness statement in the EC Action, despite the great displeasure I took with Mr Burke’s seemingly disregard for the importance of obtaining prior leave before a witness statement was served.

22.The 3^rd witness statement was undisputedly served in both Actions without leave of the court. I declined to grant retrospective leave before the trial started and indicated that I would provide my reasons in the judgment, which I now do.

23.First, I do not accept Mr Burke’s argument that the 3^rd witness statement, being a statement supplemental to the 2^nd witness statement, can be served without obtaining prior leave of the court, citing O.38 r.2A of the Rules of the District Court, and para 38/2A/10 of the Hong Kong Civil Procedure 2017 (“HKCP”), Vol.1. Under O.38 r.2A, the court is indeed given a wide discretion in directing the exchange of witness statement and “has power, if it thinks fit to do so, to direct that a further written statement of a witness be served supplementary to that already served”: HKCP Vol.1 para 38/2A/10. This does not however mean that a party can serve carte blanche further supplemental witness statements without obtaining leave.

24.Secondly, a supplemental witness statement (indeed any witness statement) needs to meet the objectives of O.38 r.2A. Among them are the fair and expeditious disposal of proceedings, the saving of costs (sub-r (1)) and “the concentration of both the parties and the trial Judge on the real matters in controversy between the parties”: HKCP Vol.1 at para 38/2A/2. In my judgment, the contents of the 3^rd witness statement fail to meet these stated objectives.

25.In order to meet the objectives stated in the preceding paragraph, the 3^rd witness statement should only contain new and material facts. I am unable to find in the 3^rd witness statement such facts. It seems to me that the 3^rd witness statement is substantially a reproduction of the contents and headings of the 2^nd witness statement such as the headings of “medical treatment”, “medical condition” and “work”.  Under each of these reproduced headings, I find no new or material facts but only random and superfluous boilerplate materials that bore little relevance to the real matters in controversy. By way of example, under the heading of “medical treatment”, Ms Begum stated that no further treatment was received.  Such statement is clearly not new material. It hardly justifies the drafting of another statement. Were there indeed new material facts that need to be added, it would have been far more economical to amplify them at trial. It certainly has incurred unnecessary costs to have prepared the 3^rd witness statement and served it on the Employer when the latter never made any appearance to challenge Ms Begum’s case.  

D.2  Discussion and findings

26.Ms Begum elected to give evidence in English in spite of the fact that Ms Begum’s native language is Punjabi and that the court had arranged a Punjabi/ English interpreter. On a few occasions during her testimony, Ms Begum also slipped in a few words in Cantonese when she wanted to be emphatic.

27.Ms Begum adopted the 1^st and 2^nd witness statements as her evidence-in-chief and answered some questions from this court.  On the whole, apart from some aspects of her evidence to be stated below, I am satisfied that she was overall a truthful witness.

28.Ms Begum originally came from Pakistan and speaks 4 languages and dialects, namely Punjabi (her native language), Urdu, English and Cantonese. She is also able to read and write Urdu and English and some Chinese.   She was educated in Hong Kong up to Form 5 when she left school at the age of around 19. 

29.Ms Begum’s employment history since leaving school was a short one. Before working for the present Employer, she only worked for one month in Delifrance in 2010 and also one month in Burger King in 2013. For the 2 years between her job at Delifrance and Burger King, Ms Begum took a 12-months sick leave as a result of job-related injuries whilst in Delifrance and spent the rest of time to allegedly look after her sick mother.   

30.Ms Begum found the waitressing job with the Employer from an on-line job advertisement. There was no written employment contract. In spite of her evidence that the Employer had asked her to start work on 7 October 2013, I find that her employment with the Employer commenced on 9 October as she was in fact sick for 2 days on 7 and 8 October 2013[14]. I therefore find that when she met the accident, she had only worked for the Employer for 3 days.   

31.I find that Ms Begum has now substantially recovered from her injuries especially the injury to the finger, as she had confirmed in evidence. There is only mild discomfort in her right knee, and she feels discomfort from continuous bending or standing for 4 hours or more.

32.I also believe that the level of discomfort and pain caused by the knee injury is not of a severe type otherwise I do not think that she would have stopped receiving, by the end of 2013, any further physiotherapy treatment after two sessions. I am also not convinced with the two reasons – difficult relationship with the mother and financial hardship – that she gave for her default from physiotherapy treatment are the genuine reasons.

33.I do not think that Ms Begum is able to establish the connection about a difficult mother-daughter relationship with the default. It is also inherently incredible that her financial hardship has brought about the default. In my view, the fact that Ms Begum was able to receive follow-up treatment with the O & T throughout the period of sick leave means that she had the means to pay for the government services.  Were she truly in need,   Ms Begum could have been able, as Dr Li has also rightly observed in Li’s 1^st [15], to obtain help form a medical social worker to help her pay for government medical treatments.

34.I find that Ms Begum, due to the residual pain and comfort caused by the knee injury, is unable to resume her pre-accident waitressing job as Dr Li has opined (see para 19 above).  Indeed, Ms Begum since the beginning of 2016, has engaged in teaching/educational-related jobs, currently working as a part-time private tutor, earning $400 per month.  In between jobs, Ms Begum also completed a 3 month-course in business and computers.  

35.Ms Begum has ambition to be a teacher. In fact, she frankly told the court that she has chosen to stay in the teaching-related job despite not having been given more hours to provide private tuition – she has stayed on because of her teaching aspirations. I understand from her evidence that she would soon commence further education by studying for a teaching-related diploma course at Hong Kong Open University once she resolves her family and financial problems.

E.  ASSESSMENT OF COMPENSATION IN EC ACTION

36.Ms Begum claims compensation under ss.9 (for permanent partial incapacity), 10 (for temporary incapacity or sick leave) and 10A (for payment of medical expenses).  In assessing these three heads of compensation, it is necessary to determine: i) Ms Begum’s monthly earnings at the time of the accident, ii) the total periods of sick leave; and iii) the percentage for the loss of earning capacity.

E.1  Monthly earnings at the time of the accident

37.Since Ms Begum was only employed for 3 days when she met the accident, the earnings for the month immediately preceding the accident cannot be taken as her earnings (s.11(1)(a)). Instead, the earnings should be calculated with reference to the period during which she was employed by the Employer, using such rates that are more favourable to her (s.11(1)(b)). 

38.When computing Ms Begum’s wages, I would need, apart from the basic wages, to also include other forms of wages and benefits such as tips, value of food provided by the Employer, bonus and allowances. Further, in the absence of any contrary evidence, I will compute her monthly earnings by using 26 days as the number of days of work per month: HKCP Vol. 2 para Q1/11/2, pp.1472-1473.

39.On the evidence before the court, and by adopting the approach mentioned above, I determine Ms Begum’s earnings before the accident to be in the sum of $8,280.  I find that Ms Begum is not able to prove, on the balance of probabilities, her asserted earnings of $10,000 for the month immediately before the accident.

40.It is noted that in his written submission, Mr Burke advanced on behalf of Ms Begum much higher wages in the amount of $12,310 as the pre-accident earnings. This amount of $12,310 seems to have been arrived at by taking $9,000 to be Ms Begum’s basic monthly wage, $1,560 to be the amount for the value of free food (2 meals @30 per month for 26 days of alleged work days per month), $1,000 for tips and $750 ($9,000 ÷ 12) for double pay bonus. For the reasons stated below, I do not accept this to be Ms Begum’s pre-accident earnings.  

E.1a  Ms Begum’s monthly basic wages

41.There is no document to support the asserted basic wage of $9,000 (that Mr Burke advanced in his written submission). Ms Begum stated that $9,000 was the salary advertised in the Employer’s on-line recruitment advertisement. When the Employer’s person-in-charge, Mr Wan met her, Ms Begum said that she would also be provided with free meals in addition to a share of tips in the region of $1,000 per month.  She would be, Ms Begum stated, required to work 6 days a week (a total of 26 days a month) from 10 a.m. to 8 p.m. with rests day to be decided by the Employer. 

42.In the 1^st witness statement (paras 29 and 30), Ms Begum in fact stated $10,000 plus benefits to be her basic wages and $11,000 as her monthly salary (inclusive of allowances and benefits) at the time of the accident. In spite of the lengthy 1^st witness statement, Ms Begum did not mention the facts that I set out in the preceding paragraph that she gave in her evidence.

43.Since Ms Begum’s assertions are entirely uncorroborated, they need to be evaluated against all the available evidence. Among the evidence that is adduced, I find two documents to be useful in testing the validity of Ms Begum’s asserted basic wage, namely i) a time record, “Time Card”[16], that recorded Ms Begum’s time she reported for duty and the time she finished work; and ii) a copy of cheque for the amount of $660 as the Employer’s payment for Ms Begum’s wages for the 3 days of her employment together with a written acknowledgement of the receipt of payment signed by Ms Begum[17].

44.According to the Time Card (that confirms that Ms Begum worked for 3 days before the accident) and the amount of $660 she was paid by the cheque payment, I work out and find that Ms Begum’s earned $220 a day. The daily wage of $220 is, I find, is clearly supported by the sum of $660 that she was paid for the three days of work.  As already stated in para 38 above, I will compute Ms Begum’s earnings by using 26 days as the number of days she worked per month. Thus, I compute her basic wages to be $5,720 ($220 x 26).   I therefore do not accept that Ms Begum’s monthly wages were either $10,000 she alleged in the 1^st witness statement or $ 9,000 as she later asserted in evidence.

45.I find that the total wage payment of $660 Ms Begum received, after proper calculation, contradicts both of Ms Begum’s   asserted wages of $9,000 or $10,000.  For the asserted wage of $10,000, Ms Begum’s daily wage would have been, by using 26 days work per month for the calculation, $384.6 (i.e. $10,000 ÷ 26), and she should have been paid a total sum of $1,153.8 (i.e. $384.6 x 3) by the Employer.  Similarly, the asserted wage of $9,000 would have meant that Ms Begum’s daily wage was $346 (i.e. $9,000 ÷ 26), and she should have been paid $1,038 (i.e. $346 x 3).

46.It is observed that in the course of her evidence, Ms Begum alluded to an hourly remuneration of $30 per hour. I should alternatively, therefore, compute Ms Begum’s wages on an hourly-rate basis. To do that, it is necessary to find out the total number of hours she worked.  The Time Card shows the number of hours that Ms Begum worked for those 3 days except that on the day of accident, there was no record as to the time she was supposed to have finished work.   For the sake of calculation, I will need to fix a time Ms Begum finished work on the day she met the accident.  Since Ms Begum said the accident happened at around 6 p.m., I will therefore take this as the time. The total number of hours Ms Begum worked, is worked out to be in total 20. (i.e. 7 hours on 9 October (14:00 - 21:00 hours), 5.5 hours on 10 October (10:59 - 16:14 hours) and 7.5 hours on 11 October (10:40 - 18:00 hours).  Applying the alleged hourly rate of $30, Ms Begum’s total wages for 3 days should only have been $600 (i.e. $30 x 20 hours). This calculation does not support why Ms Begum was paid $660.

47.The calculation done in the preceding paragraph is not entirely satisfactory, and may even be unfair to Ms Begum by my assumption that she did not get a whole day’s pay on the day of the accident.  Thus, I should further test the calculation by taking an approach most favourable to Ms Begum in assuming that she received a whole day’s pay on the day of the accident.  Her normal working hours were 10 a.m. to 8 p.m. The number of hours she worked on the day of the accident would have been around 10 (i.e. 10:40 - 20:00 hours), making 22.5 hours as the total number of hours she worked for 3 days. The total wages would have been $675 (i.e. $30 x 22.5 hours).

48.As a matter of fact, if the total number of hours were 22 instead of 22.5, the total wages would have exactly matched the $660 (i.e. $30 x 22 hours) that Ms Begum received as her wages.  Since, the number of hours Ms Begum worked on her last day was only a guess, it seems that $30 was an hour also a plausible rate of wage. To test my computation, I should also calculate the basic wage by the hour-rate method on the basis that Ms Begum worked for 22 hours for 3 days. Thus, by an hour-rate computation, I arrive at the same amount of $5,720 (i.e. 22 ÷ 3 x 26 x $30) as Ms Begum’s basic wage.

49.The $5,720 that I have determined is broadly in line with the amount of the wages stated by the Employer in its completed Form 2 in Chinese, “Notice by Employer of an Accident”, dated 14 December 2013 given to the Labour Department. In the section (section “F”) on the “earnings of the employee”, it was stated that Ms Begum’s average monthly earnings before the accident were $5,100 (comprising $5,000 as basic wages and $100 as a food allowance/value of free food), and that she worked on average 22 days a month without any fixed rest days, for which she did not get pay.

E.1b　Ms Begum’s total monthly earnings

50.To the basic wage of $5,720, I should add other forms of earnings. I decline, absent any supporting evidence, to find that Ms Begum was paid any other bonuses or allowances. In light of the nature of the business the Employer operated, being a restaurant, I’d be inclined to find that Ms Begum’s other forms of wages consisted of tips as well as free meals.

51.Given that I have accepted that Ms Begum worked for 26 days a month, I consider that $1,000 Ms Begum said she would have likely earned as tips being reasonable as it was averaged out to be $38 a day (i.e. $1,000 ÷ 26).

52.As for the value of free meals, I do not consider that $100 the Employer has stated in its Form 2 to be an unrealistic amount. A total of $1,560 Mr Burke’s has set out in the written submission seems to be more reasonable on the basis of 2 meals a day at $30 each for 26 days’ work days in a month.

53.Therefore there shall be added to the basic wage of $5,720, two further sums of $1,000 + 1,560, which are aggregated to be $8,280, Ms Begum’s monthly earnings.

54.The amount of $8,280 I have determined, when compared to the earnings she received from the past employment, which was about $7,000 (wages for Delifrance and Burger King), is evidently higher, and considerably much more advantageous to her. For this reason, I do not consider that the $7,000 Ms Begum pleaded as her average monthly wages during the 12 months should be adopted for computation as it is apparently not a more favourable way of computation of their earnings.

E.2  The total periods of sick leave

55.In the Form 7, the total number of days of the sick leave is summated to be, according to the calculation I set out in para 12 above, 330 days. The period of 1 year and 2 months Mr Burke used for the calculation in the written submission is plainly a mistake.  There being no challenge to the periods of sick leave stated in Form 7, the number of days of sick leave for the purpose of the assessment is 330 days.

E.3  The percentage for the loss of earning capacity

56.Ms Begum’s appeal against Form 7 is only in respect of the percentage loss of 2.5 percent for the loss of earning capacity the MAB has assessed. It is submitted that 5 percent as opined by Dr Li should be the percentage for her loss.

57.It is well-established that in assessing the percentage loss of earning capacity for non-scheduled injuries in the assessment of compensation, the court, though not obliged to accept, can have regard to and derive assistance from medical experts, particularly orthopaedic experts[18]. In this case, after having accepted Dr Li’s findings and opinion stated in his reports, I consider that the MAB, when conducting the assessment, did not have the benefit of Dr Li’s medical findings that Ms Begum had in fact (as later found by Dr Li) sustained a mild fracture of the finger as well as a “Grade 2” meniscus tear of the right knee injuries.  This is evidenced by the summary of Ms Begum’s injuries stated in Form 7, which only states her injuries as “right knee and right ring finger injuries resulting in right knee pain and weakness and right ring finger mild stiffness” without mentioning the finger fracture or the meniscus tear of the knee. It is therefore my judgment that the 2.5 percent of the loss of earning capacity the MAB assessed has failed to adequately reflect the full extent of Ms Begum’s injuries and their impact on her earning capacity.  Hence, I allow Ms Begum’s appeal against Form 7, and assess her loss of earning capacity to be 5 percent. 

E.4  Section 9 compensation

58.Ms Begum was 19 (not 20 as stated in her application) at the time of the accident. The appropriate age multiplier (as fixed by s.7) is 96. I therefore award Ms Begum $39,744 (i.e. $8,280 x 96 x 5%) as compensation under s.9.

E.5  Section 10 compensation

59.Applying the monthly earnings of $8,280 to the total number of sick leave of 330 days, I award Ms Begum $71,865 (i.e. $8,280 x 12 ÷ 365 x 330 x 4/5).

E.6  Section 10A compensation

60.According to a “schedule of sick leave, medical and travelling expenses”  in the trial bundle[19], Ms Begum’s had incurred a total of $2,540 on medical expenses . Past medical expenses, when supported by receipts are recoverable.  In his written submission, Mr Burke also sought recovery for future medical treatment expenses. Since “medical expenses” are defined by s.3 as “expenses incurred in respect of the medical treatment”, I am of the view that an employer should not be liable for future medical expenses that have not been incurred.  In the event, Mr Burke in the course of the exchanges with the bench, abandoned his pursuit for this item of compensation. After giving credit for the payment of $320 the Employer already made, I award a sum of $2,220 for s.10A.

E.7  SUMMARY OF COMPENSATION IN EC ACTION

61.In conclusion, the court makes the following awards in the total sum of $113,829 in favour of Ms Begum:     

(A)  Section 9:  $39,744.

(B)  Section 10:  $71,865.

(C)  Section 10A:  $2,220.

F.  ASSESSMENT OF DAMAGES

F.1  Pain, Suffering and Loss of Amenities (“PSLA”)

62.In her Statement of Damages (“SOD”), Ms Begum claims a total sum of not less than $300,000 under this head. In his written submission, Mr Burke advances for an award of not less than $250,000.

63.Apart from relying on a number of authorities to be discussed below, Mr Burke also suggested that since Ms Begum has not been able to receive appropriate treatment as a result of the refusal of the Employer in making sick leave payments to Ms Begum, I should also take that into account when assessing this item of award.

64.Mr Burke’s submission, in my judgment, lacks merit. Quite apart from my finding the submission lacking in logic, I have in any event already rejected in para 33 above that Ms Begum’s default was due to her impecuniosity. Thus, when assessing the appropriate quantum for this head, I would only have regard to the injuries that she had sustained from the accident.

65.The authorities that Mr Burke cited are concerned with knee and finger injuries.  For the knee injury, Mr Burke referred to: i) Poon Ching Man v Lam Hoi Pun[20], ii) Li Wan Kei v Hyundai Engineering & Construction Co Ltd[21], iii) Frances Christine Keeling v The Hebe Haven Yacht Club Ltd[22] and iv) Lee Kam Lin v Full Wise Ltd trading as Fishing Bay Restaurant[23].

66.In i) Poon Ching Man, a 35 male transportation driver and worker sustained a fracture of a tibial plateau and a lateral meniscal tear.  He had an operation and was hospitalized for 11 days. He was found to be unfit to engage in manual heavy lifting work but could continue with his work as a driver. He was awarded $200,000 for PSLA.

67.For ii) Li Wan Kei, a 43- year- old construction site worker, suffered a small ossicle at the medical epicondyle of the elbow, tenderness over the elbow, hip and meniscal tear of the knee, which was arthroscopically repaired.  The court awarded $375,000 for PSLA on the court’s findings that the plaintiff had suffered persistent pain of the elbow and the knee that had caused him a great deal of suffering.

68.In iii) Frances Christine Keeling, a 65-year-old female, was awarded $160,000 for the injuries that she sustained from four repeated falls on the basis of the court’s acceptance of the expert’s findings that the injuries that consisted of “grade I anterior laxity cruxiate ligament of 3%, mild residues in the medical collateral ligament of 1% and the partial meniscectomy to be performed at 1%” (at para 52).

69.As for iv) Lee Kam Lin, a 58-year-old female dim sum waitress was hit by the handle of an electric food mixing machine, causing a grade 3 meniscus tear of her knee.  She also suffered from depression and required psychiatric treatment.  The court took her psychiatric condition into account when awarding her $230,000.

70.Four authorities were also cited in relation to finger injuries: i) Ho Shu Yau v Lo Siu Ling formerly trading as Chi Wo Civil Engineering Ltd & Anor[24], ii) Chan Ming Yat v Youh Eng Lai Michael trading as Prime Industrial Co (Hong Kong)[25], iii) Li Wai Ming v Tang Siu Fat trading as Hing Fat Engineering Co & Anor[26] and iv) Mohammed Sayeed v Leighton Road Hotel Management Services Ltd[27].

71.In i) Ho Shu Yau, a 36-year-old construction site worker, had the distal phalanx of his ring finger amputated.  He was awarded $120,000 for PSLA.

72.For ii) Chan Ming Yat, the 33-year-old factory supervisor suffered injuries when his hand got stuck in a machine that produced hangers, causing a fracture to his left ring finger, dislocation of the proximal interphalangeal joint of the same finger, rapture of the ulnar collateral ligament of the said joint and contused ulnar digital nerve and artery that required emergency operation involving would debridement and fracture fixation. He was hospitalized for about a week.  A total sum of $180,000 was awarded for PSLA.

73.For iii) Li Wai Ming, the injury to the plaintiff’s right ring finger required amputation that required hospitalization for 1 day.  The court dismissed his claim but would have awarded him $150,000 for PSLA had he succeeded on liability.

74.Lastly, in iv) Mohammed Sayeed, the left ring finger of the plaintiff (a chef) was cut by a knife. After his 1 cm cut wound was sutured, the plaintiff was discharged.  The plaintiff also suffered from psychiatric impairment as a result of the accident.  The plaintiff claimed $120,000 for PSLA, which the defendant agreed. On that basis, the court awarded $120,000.

75.The cases Mr Burke referred to, in my assessment, are of limited assistances for the reason that in those cited cases, the injuries were either much more serious and hospitalization was required such as Poon Ching Man (11 days for the lateral meniscal tear ) and Chan Ming Yat (a week for debridement and fracture fixation of the finger injury); or of multiple nature such as Li Wan Kei (in addition to knee, there were injuries to the elbow, elbow and hip) or resultant psychiatric damage such as Lee Kam Lin and Mohammed Sayeed.

76.Having considered the authorities and having regard to the totality of Ms Begum’s injuries, I’m inclined to the view that the appropriate award for PSLA should be $180,000 and I so award.

F.2  Pre-trial loss of income

F.2a  Total loss of income: sick leave

77.In the assessment of compensation above, I have, based on s.11, determined $8,280 as Ms Begum’s monthly earnings. I believe that I can adopt the same figure for the assessment for the pre-trial earnings because I have included tips and value of free meals when computing Ms Begum’s pre-accident earnings, which would also be included for pre-trial earnings in assessing common law damages.

78.Indeed, Mr Burke, in his written submission (at para 21(1)) apparently is also using the wage figure of $12,310 that he advanced for the EC Action compensation when submitting the calculations for the PI Action.

79.Hence, I will therefore apply the same amount of $8,280 as Ms Begum’s pre-trial income. For the 330 days’ sick leave, Ms Begum should be awarded full loss of income. The loss of pre-trial income for the period up till 13 October 2014 is hence $89,832 (i.e. $8,280 x 12 ÷ 365 x 330).

F.2b  Partial Loss of earnings from 14 October 2014 till trial

F.2b(i)  Post-accident employment

80.After her sick leave ended on 14 October 2014, Ms Begum worked for one month (earning $9,500 plus free food and tips) at the end of 2014 as a waitress in an Italian restaurant.

81.For the whole year of 2015 and until mid-January 2016, Ms Begum, according to the “Table of Work Done Since the Accident” that Mr Burke prepared and submitted to court, worked intermittently for a total of about 3 months (20 days in February, 1 month in June and one and half months between December 2015 to mid-January 2016) as a waitress in three different restaurants, for which she earned a total of $37,000.

82.From March 2016 to the date of trial, Ms Begum seemed to have shifted to teaching-related field of work. Between March to June 2016, she taught English for children in a private educational center (after having received training for 20 days) for one hour (at $100 per hour) per week.   For this engagement, she altogether earned $1,500.

83.In July 2016, Ms Begum had a temporary job working as an assistant in a summer camp for 7 days. From August 2016 to the date of trial, Ms Begum worked as a part-time private tutor, earning $400 per month.

F.2b(ii)  Two ways of assessment as Mr Burke suggested

84.In his written submission, Mr Burke urged me to adopt either of the following methods to assess Ms Begum’s partial loss.

85.Method one, according to Mr Burke, is to assess the partial loss by calculating an amount based on Begum’s full loss of earnings between 14 October 2014 until trial with deductions to be made for the earnings that she made during this period.  I observe that this method is pleaded in the SOD by Ms Begum averring that she was unable, as a result of the injuries, to “fully resume her pre-accident job”.

86.The alternative second method is by allowing: i) full loss of earnings for two months immediately after the expiry of the sick leave, and for the period after that, and ii) 50 percent of loss of earnings that Ms Begum could have earned now as a waitress.  After the sick leave expired, Ms Begum should, Mr Burke contended, be allowed a two-month buffer-time to seek gainful employment. After two months, it is reasonable, Mr Burke further argued, for the court to assess Ms Begum’s loss on the basis of 50 percent of a continuous loss of earnings a result of the on-going work disability that had allegedly rendered her unfit to do full time work as a waitress.

F.2c　Discussion and assessment

87.On the medical evidence, I find on the balance of probabilities, that Ms Begum is unable to return to her pre-accident waitressing job due to the residual pain from the knee, which would have prevented her from standing for more than 4 hours as Ms Begum testified in court. 

88.Despite the knee injury, it is noted however that Ms Begum continued with her pre-accident employment as a restaurant waitress (though each such employment was of very short period of about one month or less) in the first 14 months after her sick leave expired.  Given my finding that Ms Begum was unsuitable to return to her pre-accident employment, I consider that it is reasonable to allow the first two months as Mr Burke suggested to enable her to evaluate her own working capability for re-entering the employment market. Thus, for the two months from 14 October 2014 to end of December 2014, her loss is assessed on the basis of full loss with credit being given for the earnings that she made.

89.To determine the wages Ms Begum could have earned as a waitress, I consider that I can derive the best evidence on such wages by using the median wage of the total earnings Ms Begum received from her post-accident waitressing job. Hence, based on the monthly wages for her first post-accident job in the sum of about $10,000 (as pleaded in the SOD), the second job at KFC in the sum of about $8,450 (i.e. $6,500 ÷ 20 days x 26 days), the third one in the sum of $11,000 and the last one in the sum of $13,000 (i.e. $19,500 ÷ 1.5 months), I assess the median monthly earnings of her post-accident job to be $10,612.5 (i.e. [$10,000 + $8,450 + $11,000 + $13,000] ÷ 4).

90.Thus, for the 1 and ½ months’ period between 14 October 2014 to end of December 2014, I assess Ms Begum’s partial loss at $5,919 (i.e. $10,612.5 x 1.5 months - $10,000)

91.After waitressing for a month in an Italian restaurant in December 2014, Ms Begum, in my view, should have realized that the residual pain made her unsuited to return to a waitressing job, but that she needed to mitigate her loss by finding a suitable alternative employment of those types Dr Li has suggested in Li 1^st[28] – office clerk, cashier, receptionist.   Thus, instead of arbitrarily fixing a 50 percent for assessing her partial loss as Mr Burke suggested, I consider it reasonable to allow Ms Begum a further 3 months for her to find a suitable alternative employment, and if necessary receiving job-related training for a new field of employment (for example, the 3-month computer course Ms Begum completed in between jobs after the expiry of the sick leave).  Thus from January to March 2015, her loss is assessed at $25,338 (i.e. $10,612.5 x 3 months - $6,500 (wages for February 2015)).

92.As from April 2015, Ms Begum, after about 5 months after her sick leave ended, should have been, in my judgment, well-placed to find a suitable alternative job by working as a cashier, office clerk or receptionist. There is no evidence that she had made any attempt in looking for such alternative job. By looking at the pattern of her post-accident employment, I am under the impression that Ms Begum did not have much incentive to explore these alternative jobs.  By the small number of hours she has worked in the latest teaching-related job, Ms Begum is currently clearly under-employed and she is not working at her full capacity.  The reason for that, I believe, is partly her lack of incentive to work in a field that is suitable for her, and also partly that she wishes to use the working experience in the educational field as ground work to pursue her teaching aspirations (see para 35 above).  Such aspirations are admirable, but it is not right for the Employer to pay for the pursuit of her career aspirations.   

93.Thus, as from April 2015 to the date of trial, I should assess her loss by determining what Ms Begum should have earned in a suitable alternative employment as against what she could have earned as a waitress, so that her partial loss is the difference in earnings between her pre-accident employment and the suitable alternative employment.

94.According to a “Quarterly Report of Wages and Payroll Statistics” for September 2016, it is reported that the monthly wages for a waitress is $12,263, and those for a general office clerk, cashier, receptionist, shipping clerk and receptionist (in restaurants) are respectively $12,865, $11,591, $13,809, $15,443, $13,987, which would render a median figure of $13,539. These wage figures seem to suggest that had Ms Begum reasonably mitigated her loss by working in those suitable employments, Ms Begum would have been able to earn a wage that was equivalent if not higher than her pre-accident waitressing job.  According to these wage statistics, it would appear that Ms Begum failed to prove any loss of earnings had she mitigated her loss by taking up suitable alternative employment. Thus, I am not satisfied on the balance of probabilities that Ms Begum has succeeded in proving any loss after April 2015 up to trial.

95.In conclusion, the partial loss of earnings after the expiry of sick leave until trial is assessed at $31,257 (i.e. $5,919 + $25,338).

F.2d  Loss of pre-trial MPF

96.Ms Begum also pleaded for a loss for MPF.  The pre-trial loss of MPF is in the sum of $6,054 (i.e. [$89,832 + $31,257] x 5%).

F.2e  Total pre-trial loss

97.I therefore award Ms Begum a total sum of $127,143 (i.e. $89,832 + $31,257 + $6,054) for the total pre-trial loss of earnings.

F.3  Future Loss of Earnings

98.Ms Begum claims in the SOD a sum equivalent to 14 months’ earnings as her post-trial loss of earnings without stating any ground or the quantification for this assertion. It is only in the written submission that Mr Burke advanced for the first time on behalf of Ms Begum the grounds in support of this item of claim and the method of calculation. On the alleged ground that Ms Begum will be required to undergo an operation in the future, Mr Burke argues that the court should compensate Ms Begum’s future loss of earnings, which are, according to Mr Burke (at p.21 of the written submission), to be calculated on the basis of Ms Begum’s “continued 50% loss on [Ms Begum’s] monthly earnings to the date of that operation, [and] 2 months’ full loss for the operation and therapy”.

99.I am unable to find any evidence that Ms Begum’s condition requires an operation in the future. Plainly, Dr Li’s opinion is against Ms Begum. According to Li’s 1^st, Dr Li opined that that injuries Ms Begum sustained are not “gravely serious”, and recommended, for future rehabilitation, the use of conservative methods by Ms Begum using “Power Putty” for the finger and “non-surgical” for the knee.

100.Hence, for the reason stated above, I find that Ms Begum fails to prove this loss, and reject the claim.

F.4  Loss of Earning Capacity

101.It is submitted on behalf of Ms Begum that a lump sum award of $50,000 should be granted on the ground that she would be discriminated against because of her injury.

102.I do not consider that Ms Begum has adduced any evidence that she has suffered or is likely to suffer discrimination due to the injuries that she suffered.  Neither has she proved that there is a “real” risk of her losing her job and being disadvantaged in the labour market because of her disability caused by the injuries. According to the medical evidence, Ms Begum may be unsuited to return to a pre-accident job as a waitress, but she is plainly suitable to do sedentary work that I already mentioned in para 92 above.  Given her young age and aspirations for higher education as she has informed this court, I do not consider that she would likely suffer any disadvantage in the labour market.

103.In the premises, I decline to make any award for this claim.

F.5  Special Damages

104.For hospital expenses, I would award the same amount of $2,200 that I have awarded for s.10A above.  Ms Begum also claims an additional amount of $500 for medication such as pain killers or ointment that she had incurred. Despite the lack of receipts, I would allow this amount as it seems reasonable.

105.A sum of $790 is claimed for travelling for Ms Begum to attend medical treatments. Since the amount is calculated with reference to the trips that she made to the hospitals as is shown in the table I refer to in para 60 above, I would allow this amount.

106.A total sum of $3,490 is therefore awarded under this head.

F.6  Future Expenses

107.In his written submission, Mr Burke asked the court to award $2,000 for medical operation and rehabilitation; and $3,000 for travelling and general medical expenses.

108.Based on Dr Li’s opinion that Ms Begum would benefit from further conservative treatments, I should allow a reasonable amount for the future physiotherapy sessions. In Li’s 1^st, 12 sessions are being recommended. As Ms Begum has previously before her default received physiotherapy in Pok Oi Hospital, I see no reason why she should not continue the treatment there.  Thus, for 12 sessions at the cost of $100 per visit, I would award $1,200 for future physiotherapy.  As for the finger, I will allow $450 for the costs of purchasing 3 sets of “Power Putty” of all the three levels referred to in Li’s 1^st. The total amount for future treatments is assessed at $1,650.

109.As for travelling for physiotherapy sessions, I would award $144 for 12 visits to Pok Oi Hospital, which, according to the schedule referred to in para 60 above, is $12 for each round trip.

110.I would award a total amount of $1,794 for future expenses.

G.  SUMMARY OF DAMAGES

111.The total amount of damages I award for the PI Action is therefore as follows:

(A)	PSLA:	$180,000
(B)	Pre-trial loss earnings:	$127,143
(C)	Future loss of earnings:	Nil
(D)	Loss of earning capacity:	Nil
(E)	Special damages:	$3,490
(F)	Future expenses:	$1,794
==============================================================
	Total:	$312,427

112.By the proviso to s.26(1), which stipulates that “any damages awarded against an employer in an action at common law …shall be reduced by the value, as decided by … Court, … of any compensation which has been paid or is payable” under the Ordinance, the damages that I have awarded for the PI Action shall be reduced by the compensation payable, which is assessed to be $113,829. Thus, the total damages as reduced are in the sum of $198,598 (i.e. $312,427 - $113,829).

H.  COSTS

H.1  Apportionment of duplicated costs

113.From this combined trial of assessment, it cannot be disputed that a large portion of costs in both Actions has obviously been duplicated. In order to do justice to the paying party, I need to apportion the duplicated costs between these two parallel proceedings.

114.Since the following items of costs are duplicated, they should therefore be apportioned equally between the EC and the PI Actions:

(1)  The costs (except the costs of filing and serving) in relation to the preparation and perusal of the expert medical reports.

(2)  The costs (except the costs of filing and serving) of the drafting of 1^st and the 2^nd witness statements.

(3)  The costs of the trial, including the costs of the preparation of the trial bundles.

H.2  No costs: 3^rd witness statement

115.In light of my refusal to grant leave to Ms Begum to file and serve the 3^rd witness statement, I order that there shall be no costs of and incidental to the drafting of the 3^rd witness statement (for both Actions).

H.3  Disallowing 20 percent of costs 

H.3.1  1^st witness statement

116.For the reason that I find the 1^st witness statement contains a lot of unnecessary and facts irrelevant to the issue of quantum, I will exercise my discretion to deduct, on a broad-brush basis, 20 percent of the costs for the drafting of the 1^st witness statement.

117.The following parts of the 1^st witness statement are found to be irrelevant, and costs occasioned by these irrelevant facts are disallowed:

(i) Paragraph 6 (full particulars of Ms Begum’s parents – their names, age, occupation and health);

(ii) Paragraph 7 (the number of siblings Ms Begum has, their name, marital status, number of children they have, occupation, health, residence);

(iii) Paragraph 8 (that Ms Begum has no plans to get married);

(iv) Paragraph 10 (Ms Begum’s address at the time of accident);

(v) Paragraph 12 (her personal life before the accident such as the parents’ divorce etc);

(vi) Paragraph 14 (Ms Begum’s personal statistics: height, her present weight and at the time of the accident, eyesight);

(vii) Paragraphs 15 to 21 (such as whether she has criminal conviction, the type of passport she holds, driving licence, details of her bank accounts etc);

(viii)  Part E, paras 51 to 54 (concerning “accident investigation”); and

(ix) Part F, paras 55 to 57 (concerning “how the accident could have been prevented).

H.3.2　SOD

118.For the SOD, I too, would be inclined, for the reason that it contains numerous irrelevant particulars stated below, to reduce, on a broad-brush basis, by 20 percent, the costs of the drafting.

119.Para 1.1 concerning Ms Begum’s personal particulars, is not in compliance with the Practice Direction 18.1 for Personal Injuries List (“PD 18.1”), para 65(1)[29](a) that only requires a plaintiff to give personal particulars of the date of birth.  The personal particulars in para 1.1 consist of particulars way beyond the required particulars when Ms Begum states i) her place of birth; ii) the year she came to Hong Kong; iii) her educational level; iv) height; v) weight at the date of the accident and at the time of the drafting of the SOD. 

120.Equally bad and irrelevant are paras 1.2 (periods), 1.3 (discount rate), 1.4 (multipliers) and 1.5 (currency). For easy understanding, I propose to set out below these parts of the SOD in exactly the same pro-forma format the whole SOD has been drafted and adopted. 

STATEMENT OF DAMAGES

121.Particulars stated in a statement of damages must be relevant to the issue of damages. The extracted part of the SOD shown above, in my view, is not only irrelevant, it is almost incomprehensible. (For example, para 1.4 on multipliers, despite having pleaded to a range of multipliers, Ms Begum’s claim for damages, as evidenced by the discussion above, does not need to refer to any multipliers).  

122.I should say also that the above extracted parts of the SOD are not the end of the unnecessary particulars, which are too numerous to enumerate individually. For example, further on in the SOD, Ms Begum only states “good” and “No previous serious illness” (in para 2.2.1 and para 2.2.3 under the heading of “Pre-accident health”); “None” (in para 2.3, under a heading of “Loss of consciousness”).  These statements, in my view, are devoid of substance.

123.This SOD, as discussed above, with so many irrelevant particulars, not only waste costs, but actually make it difficult to read and clearly fail to serve the purpose of particulars - to facilitate early resolution of the case by focusing on the issues of the case.

124.Worse, the SOD, in my view, is in breach of PD 18.1, para 62, that mandates that a statement of damages be a pleading.  Thus, it should be no different to an ordinary pleading, which should be in narrative form as opposed to a tabular form.  A pleader will from time to time, when the occasion requires it, insert a table in a pleading without falling foul of the format of pleadings. If a reminder is needed, I should state that if a statement of damages in personal injuries is drafted in a similar tabular format as the present SOD, such pleading is not in compliance with P.D. 18.1, and it may need an amendment so as to comply with the format of a proper pleading with resultant costs consequences.

I.  CONCLUSION AND ORDERS

125.I grant the following orders:

I.1  The EC Action

126.That judgment be entered against the respondent (Employer) in favour of the applicant (Ms Begum) for the total sum of $113,829 consisting of the following sums:

(a)  $39,744 under s.9

(b)  $71,865 under s.10

(c)  $2,220 under s.10A

127.That there be a costs order nisi that the respondent do pay the applicant the costs of these proceedings, with the following exceptions: -

(1)  The respondent do pay the applicant 50 percent of the costs of the following:

(i) The costs (except the costs of filing and serving) in relation to the preparation and perusal of the expert medical reports.

(ii) The costs (except the cost of filing and serving) of the drafting of 1^st and the 2^nd witness statements.

(iii) The costs of the trial, including the costs of the preparation of the trial bundles.

(2)  That 20 percent of the costs of the drafting of the 1^st witness statement be disallowed.

(3)  There shall be no costs payable by the respondent for the costs of and incidental to the drafting, filing and serving of the 3^rd witness statement.

I.2  The PI Action

128.That judgment be entered against the defendant (Employer) in favour of the plaintiff (Ms Begum) for the total sum of $ $198,598.

129.That there shall be interest on the amount of PSLA of $180,000 at 2 % from the date of the writ (14 October 2015) to the date of judgment; and on the amount of the pre-trial loss of earnings of $127,143 and special damages of $3,490 at half judgment rate from the date of the accident (11 October 2013) to the date of judgment.

130.That there be a costs order nisi that the defendant do pay the plaintiff the costs of these proceedings, with the following exceptions:

(1)  The defendant do pay the plaintiff only 50 percent of the costs of the following:

(i) The costs (except the costs of filing and serving) in relation to the preparation and perusal of the expert medical reports.

(ii) The costs (except the cost of filing and serving) of the drafting of 1^st and the 2^nd witness statements.

(iii) The costs of the trial, including the costs of the preparation of the trial bundles.

(2)  That 20 percent of the costs of the drafting of the 1^st witness statement be disallowed.

(3)  That 20 percent of the costs of the drafting of the SOD be disallowed.

(4)  There shall be no costs payable by the defendant for the costs of and incidental to the drafting, filing and serving of the 3^rd witness statement.

I.3　Taxation and variation of nisi costs

131.The costs for both the EC and the PI Actions to be taxed if not agreed, and Ms Begum’s own costs be taxed in accordance with the Legal Aid Regulations.

132.The costs order nisi made in both Actions will be made absolute 14 days from the date of the handing down of this judgment if no application is made to vary them.

POSTCRIPT

Parallel employees’ compensation and common law proceedings

1.  Owing to the stipulation stated in proviso to s.26(1) requiring a common law award be reduced by the amount of any statutory compensation which has been paid or is payable, practitioners should be vigilant to ensure that parallel proceedings are conducted in the most cost effective and procedurally economic manner, particularly when the parties in an employees’ compensation action and the related common law action are the same and are represented by the same firms of solicitors.

2.  Practitioners should be reminded of the guidance given by Bharwaney J in Maxwell v Keliston Marine (Far East) Ltd (In Liq) & Anor [2012] 2 HKC 249, which I summarize below so that it shall be borne in mind when conducting parallel proceedings.

3.  Generally, the employees’ compensation proceedings are held in abeyance pending the common law claim, to be revived in case the common law claim fails on the issue on liability. In such a case, the statement of damages should state that “the employees’ compensation proceedings would be discontinued in the event that damages are awarded to the plaintiff”. This would avoid the need for a further contested application in the employees’ compensation proceedings: [2012] 2 HKC 249 at 262 D-F.

4.  However, “[I]n cases where there is a concern that the court may assess a high degree of contributory negligence” ([2012] 2 HKC 249 at 262 H-I (underline added)), the employees’ compensation claim should proceed first, leaving the further prosecution of the common law claim pending until the determination of the employees’ compensation proceedings.

5.  Bearing the above in mind, should practitioners fail to observe the underlying objectives of cost effectiveness and procedural economy, they may be visited with costs consequences.

Mr Patrick Burke, of Burke & Company, assigned by the Director of Legal Aid, for the applicant/plaintiff

The respondent/defendant was not represented and did not appear