Kong Kam Yuen v. Yim To Keung and Another

CAMP 195/2018

[2019] HKCA 253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 195 OF 2018

(ON AN INTENDED APPEAL FROM DCPI NO. 1971 OF 2013)

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Before: Hon Cheung and Chu JJA in Court

Date of Plaintiff’s Written Submissions: 12 December 2018

Date of 1^st and 2^nd Defendants’ Written Submissions: 18 January 2019

Date of Decision: 28 February 2019

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Assessment of damage

1.1On 4 March 2016, the defendants admitted liability on a joint and several basis for personal injuries sustained by the plaintiff in a road accident.

1.2On 7 March 2016, Deputy District Judge Jonathan Chang entered interlocutory judgment against the defendants on liability and proceeded to assess damages.

1.3On 16 April 2018, the Judge awarded a total of HK$159,025 with costs to the plaintiff.  He gave an award of HK$120,000 for pain, suffering and loss of amenities (‘PSLA’), HK$33,390 as pre-trial loss of earnings, and HK$5,635 as special damages.  Damages for future losses were refused by the Judge.

1.4Dissatisfied with the judgment, the plaintiff sought leave to appeal before the Judge.  The Judge dismissed the plaintiff’s application.

1.5The plaintiff now renews his application for leave to appeal before us.  We will deal with the application on paper.

2)  Legal principles

2.1Section 63A(2) of the District Court Ordinance (Cap. 336) provides that no leave to appeal shall be granted unless the Court is satisfied that :

(1) the appeal has a reasonable prospect of success; or

(2) there is some other reason in the interests of justice why the appeal should be heard.

2.2The Court of Appeal would not interfere with a trial judge’s finding of fact unless it can be shown that his decision is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at paragraph 42.

3)  Grounds of appeal

3.The plaintiff relies on seven grounds of appeal which can be grouped under three topics :

(1)   The Judge’s contradictory findings on the plaintiff’s evidence and selective use of evidence.

(2)   The Judge’s award for PSLA and the plaintiff’s pre‑trial loss was too low.

(3) The Judge was wrong not to award damages for future loss of earning or loss of earning capacity.

4)  Our view

(1)   Contradictory findings

4.1The contradictory findings are said to arise in the following part of the judgment below :

‘ 23.   The plaintiff and his wife both gave evidence, which was by and large consistent with their account set out in the joint medical and psychiatric report.  They testified as to their strained relationship after the accident and the plaintiff’s mood swing and temper.  In this regard, I find both of them to be credible witnesses and I accept their evidence.

24.   The plaintiff alleged that he was still suffering from neck and back pain which prohibited him from seeking employment.  There were good and bad times, and on the worst occasion he could not move a part of his neck, and sometimes he was in pain when walking, or could not even walk.  I do not accept this part of the plaintiff’s evidence, which I find inconsistent with the surveillance footage and the medical records in particular the fact he had defaulted physiotherapy after treatment on 1 February 2012.  I find that the plaintiff’s back injury had recovered by August 2011, and that by February 2012 his pain caused by his neck injury had subsided as reflected in his ceasing physiotherapy.’

4.2There are no merits in this ground.  The Judge was clearly entitled to decide which particular evidence to accept or reject.  [23] was merely a general finding while [24] dealt with the specific complaint of neck and back pain.  The Judge’s rejection of the plaintiff’s complaint was based on other available evidence which included the surveillance footage and medical reports.  There is no reasonable prospect of success in respect of the argument that the findings are contradictory and plainly wrong.  This applies also to the complaint of selective use of evidence.

(2)   PSLA/Pre-trial loss

4.3In respect of PSLA, the Judge was clearly entitled not to adopt the sum of $400,000 awarded in the case of CMY v Tam Siu Wing [2008] 4 HKLRD 604 which was said by the plaintiff to be the closest comparable to the plaintiff’s injury and condition.  The Judge’s assessment on PSLA was based on the available evidence.  Likewise for his pre‑trial loss, the ‘plainly wrong’ threshold is again not satisfied.

(3)   Future loss

4.4The plaintiff complained that the Judge failed to consider that he could not seek alternative employment due to his medication.  The plaintiff further complained that the Judge erred in not making any findings for future loss of earnings and/or loss of earning capacity.

4.5There is no reasonable prospect of success in these grounds.  The Judge made a finding of fact that the plaintiff has fully recovered and could have resumed gainful employment latest by February 2012.  While he accepted that the accident caused the plaintiff to suffer psychiatric illness, he also found that there was no evidence to suggest that this cannot be controlled by medication.  This must also be viewed in the light of the plaintiff’s default in taking his medication. The joint medical evidence also suggests that the plaintiff has mainly recovered from his mental illness due to the accident and the residual mental symptoms are mild (Dr Chung, paragraph 56(f)) and his loss of earning capacity and permanent impairment due to the mental problems are mild (Dr Wong, paragraph 62).

(4)   Ruling

4.6The application for leave to appeal must therefore be dismissed with costs to the defendants.  We will summarily assess the defendants’ costs at HK$24,000.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

4.7We consider that the plaintiff’s application is totally without merit.  Pursuant to Order 59, rule 2A(8) of the Rules of the High Court, Cap. 4A, we make an order that no party may request the determination to be reconsidered at an oral hearing inter partes.

Mr Carl Yuen, instructed by Alan Wong & Co., assigned by the Director of Legal Aid, for the plaintiff

Ms Ann Lui, instructed by Munros, for the 1^st and 2^nd defendants