Fan Siu Kwan v. Kaman Fashion Co Ltd

HCPI 334/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 334 OF 2004

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BETWEEN

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Coram : Deputy High Court Judge KY Chan in Court

Dates of hearing : 23 and 24 February 2005

Date of Judgment : 23 May 2005

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J U D G M E N T

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1.The plaintiff used to work as a salesperson for the defendant.  She commenced her employment with the defendant in March 2001.  She said she had injured her back on 14 May 2001 when trying to lift a bag of garments weighed between 60 to 70 lbs. from the ground onto a trolley.  She brought this action for damages for her injuries.  She said that her accident was caused by the defendant’s negligence, breach of statutory duty and breach of an implied duty in her contract of employment.  The action was settled in the sum of $570,000 plus a sum of $87,700 that had already been paid as employees’ compensation.  The parties also agreed that the defendant should pay the plaintiff costs, but could not agree on whether the taxation should be on the High Court Scale or the District Court Scale.  

2.This action was started on 20 April 2004.  The jurisdiction of the District Court had been raised to $1 million dollars on 1 December 2003.  The employees’ compensation claim between the same parties had been settled sometime in September 2003 and the settlement sum had been paid before the institution of this action. 

3.There is no dispute on the applicable principle.  I have been referred to Lai Ki v. B+B construction Co. Ltd. HCPI No. 63 of 2001 and Wong Chi Ho Jacky v. Poon Yuk Shan HCPI No. 910 of 2002.  The principle has been set out in the judgment of Glyn-Jones, J. in Hopkins v. Rees & Kirby Ltd (1959) 2 All ER 352 as follows:

“Putting myself as far as I can, in the position of the plaintiff at the time when he issued that writ, am I satisfied that it was then obvious that this was a county court action, or was it an action which, when tried by one judge rather than another, might have resulted in an award exceeding [the jurisdictional limit] excluding any reduction for contributory negligence.”

4.Mr. Justice Seagroatt in the case of Lai Ki, after quoting the above passage, further said in paragraph 12:

“The acid test therefore has been, ignoring all questions of contributory negligence, has the plaintiff a reasonable prospect of recovering a sum of money in excess of the County Court jurisdiction?”

5.I am therefore asked to consider whether there was a reasonable prospect for the plaintiff to obtain an award in excess of the District Court Jurisdiction.  In so doing, I should deduct the employees’ compensation of $87,700 from the jurisdictional limit as that sum had been paid before the commencement of this action. 

6.Immediately before the accident, the plaintiff was earning $6,500 per month.  In the statement of damages, which was filed together with the statement of claim on 8 June 2004, the plaintiff claimed $500,000 for PSLA, $288,000 for 48 months of pre-trial loss of earnings (on the basis of no earning during this period), $378,000 for post-trial loss of earnings (with a multiplier of 15 and a deduction of $3,900 from her monthly income), 5% of her loss of earnings as loss of retirement benefit (at $33,300), $300,000 as loss of earning capacity and $22,230 as other expenses.  The total sum claimed was $1,521,530.  In the revised statement of damages filed on 16 December 2004, she reduced the sums for PSLA and loss of earning capacity to $400,000 and $100,000 respectively.  The total sum was still at $1,221,530.  

7.In calculating the loss of earnings in the statement of damages and revised statement of damages, the plaintiff’s income was incorrectly stated at $6,000 per month when she in fact earned $6,500 per month.  There were also some minor errors on special damages.  If the correct monthly income was used and the minor errors corrected, the total claim in the statement of damages and revised statement of damages would have been $1,642,588.80 and $1,342,588.80 respectively.

8.When the writ was issued, the plaintiff already had the medical assessment report prepared for her by Dr. Lau Man Tsang, Richard.  Dr. Lau commented in the report that the plaintiff had suffered from strained injury to the soft tissues of her back with mild prolapse of the intervertebral disc at the L5/S1 level.  She claimed that she had sustained the injuries while moving heavy loads of clothing and that claim was compatible with the injuries sustained.  She had received conservative treatment without surgery.  The MRI revealed a protrusion of the L5/S1 disc without pressing on any nerve root and Dr Lau opined that the treatment was appropriate.  Dr Lau also recorded the plaintiff's complaint of stiffness and pain on her back and numbness and tightness of the left lower limb.  However, apart from mild muscle spasm, physical examination did not reveal any objective sign, such as unilateral muscle wasting or loss of reflexes. 

9.Dr Lau assessed the plaintiff to have suffered from 5% impairment of the whole person and that, if exempted from lifting weights on her own, she could return to her previous job as a sales lady or to take up some lighter jobs such as a salesgirl in retail shops, an office worker or a cashier. 

10.Dr Lau further said that low back pain and sciatica tend to resolve with treatment and the passage of time, but recurrences are common especially in the first year.  When the plaintiff suffers from recurrence of symptoms, she would need a short course of treatment.  However, she did not need any specific treatment when assessed by Dr Lau.  She was encouraged to practice some sports to recondition her spine and spinal muscles.

11.In addition to Dr Lau’s assessment report, there was a medical report by Dr Chan of the A & E Department of Princess Margaret Hospital dated 8 November 2002.  It said that the plaintiff had attended the Department on 16 May 2001 because of sprained back.  Physical examination showed no focal neurological deficit.  There was tenderness over the lumbar region.  X-ray of the lumbro-sacral spine, pelvis and left hip did not show any fracture. 

12.The plaintiff had also given evidence at the trial though she had not completed it when the case was settled.  She said that on 14 May 2001 when she was working in the defendant's warehouse, she tried to lift a bag of garments weighing between 70 to 80 pounds from the ground onto a hand trolley.  In the course of doing so, she heard a loud cracking sound at her spine.  She had severe pain and had to rest for ½ hour.  But her employer was pressing her with her task.  Her answers in cross-examination were unsatisfactory, unreasonable and suggest of exaggeration.  I do not think I should take her evidence into account on considering whether there was a reasonable prospect for her to obtain an award in excess of $1 million after deducting the ECC award of $87,700.  

13.Mr. Law, counsel for the defendant, said that the amount claimed for PSLA should not exceed $200,000.  He referred to Shek Kam Ching v. Po Kee Construction Engineering Ltd. And Others HCPI 434 of 2001 (date of judgment 28 November 2002) where the plaintiff suffered a small prolapsed intervertebral disc at L5/S1 level.  He complained of persistent pain at the lower back and hence decreased job related strength and tolerance in maintaining a particular work posture.  He could not find suitable alternative employment and had to live on Comprehensive Social Security Assistance.  Deputy Judge To awarded him $150,000 for PSLA.  Mr. Law said that the plaintiff here could not have claimed more than $250,000 for PSLA. 

14.For pre-trial loss of earnings, he submitted that there should not have been full loss for 48 months.  Instead, he argued that there should only be full loss for 10 months and the remaining 38 months, there should be a loss of 20% of her pre-accident income of $6,500 per month.  Mr. Tang for the plaintiff submitted that the period of full loss of earnings during the pre-trial period should be longer than the 10 months sick leave period as the plaintiff was still attending occupational therapy in mid-March 2002.  He also submitted that there should be a buffer period of 6 months from mid-March 2002 for the plaintiff to seek employment.  I think Mr. Tang is correct in his submissions.  The period of full loss of earnings should be 16 months.  There is no dispute that the damages for loss of earning capacity should be at $100,000. 

15.Regarding future loss of earnings, Mr Law accepted 15 as the multiplier but argued that the post-trial loss should also be at 20% of the plaintiff’s the accident income of $6,500 per month.  I take the view that it is too conservative for the pleader to have chosen 20% as the loss of earnings.  At the commencement of the action, I think it reasonable for the pleader to have chosen 40% as the partial loss of earnings. 

16.Exaggerated claims are to be discouraged, however, excessive prudence or exactness in formulating the quantum of the claim can produce unfairness to the plaintiff.  A small degree of latitude should be allowed in assessing quantum for the purpose of choosing forum. 

17.With 40% loss of earnings, the total amount of the claim would be at:

PSLA		$250,000
Pre-trial loss of earnings		$104,000
(40% loss for 32 months)		$83,200
Post-trial loss of earnings (40% loss)		$468,000
Undisputed items
Loss of earning capacity		$100,000
Special damages		$20,000
Interest		$10,000
5% MPF		$32,760
Less ECC	(-)	$87,700
Total		$980,260

18.Since a reasonable assessment of quantum would result in a total sum close to $1 million, I accept that at the time when the writ was issued, there was a reasonable prospect for the plaintiff to obtain an award in excess of $1 million after deducting the ECC award.  I therefore decide that the applicable scale of costs for taxation should be that of the High Court.