Tang Kwai Ming v. Kwok Hung and Others

HCPI No. 607/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 607 OF 2004

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BETWEEN

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Coram: Master Kwan in Chambers (Open to the public)

Date of Hearing: 25 August 2005

Date of Handing Down: 30 August 2005

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REASONS for DECISION

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1.The 1^st & 3^rd defendants applied for further and better particulars of paragraphs 1, 2c, and 3 of the plaintiff’s Statement of Damages, filed herein on 8.7.04. The application was adjourned for argument.

2.Paragraph 1 related to the amount claimed for PSLA; paragraph 2c related to future loss of earnings; and paragraph 3 related to “Smith v Manchester” damages, or damages for handicap in the labour market.

3.Having heard the parties, I indicated that I was ruling in favour of the 1^st & 3^rd defendants (“the defendants”). I gave the plaintiff 21 days to provide the said particulars (until 15.9.05), and awarded the costs of the application to the defendants in any event. I informed the parties that I would be handing down my reasons within a week. These are the reasons for my ruling.

4.The plaintiff’s solicitor advanced a number of reasons why he says that the plaintiff should not be obliged to provide the particulars at this stage of the proceedings. He accepted that the particulars would have to be provided to the defendant at some stage, but suggested that the time of the Revised Statement of Damages would be the appropriate time. He also suggested that there was a “practice of the court” to sanction the delay of provision of particulars of the Statement of Damages to be given later, at the time of the Revised Statement of Damages.  

5.The plaintiff’s solicitor suggested that the provision of the particulars sought at a later date would not prejudice the defence, as the defendants “would not be put in an unfair or impossible position in serving their answer”.

6.In addition, Mr Tso argued that, because a Statement of Damages is part of the pleadings, the court would be slow to allow the plaintiff to amend the particulars therein if the same were inaccurate in some way. For this reason, it would be unfair for the plaintiff to commit himself to particulars at such an early stage of the action.

7.Mr Tso also sought to call in aid the wording of PD 18.1, in support of his contention that the plaintiff is only obliged to plead particulars “where practicable”. For instance paragraph 5.1 (f) of PD 18.1 states that “where practicable, a statement of the range of damages claimed as general damages for pain, suffering and loss of amenities (PSLA) and damages for loss of earning capacity”.

8.I will deal with the points raised by the plaintiff’s solicitor in turn below.

Paragraph 1 of the Statement of Damages

9.If we look at the Statement of Damages under paragraph 1, it was pleaded that “the plaintiff is entitled to damages for pain and suffering and loss of amenities in a sum which will be particularized in due course”  (emphasis added). There is little indication as to what that sum might be, but one might hazard a guess by referring to the injuries listed. 

10.The whole tenor and intent of Practice Direction 18.1 is that full and comprehensive details are provided to the defendant so that actions can be settled as soon as possible, hopefully even without resorting to litigation. For instance, the Guidance Notes state (in relation to Paragraph 2) that the letter before action must “contain sufficient information to inform the defendant and/or his insurers of the basis, nature and extent of the claim”.

11.The context of the Guidance Notes relating to paragraph 2 goes on to explain that the aim of the protocol is to ensure that a defendant “has adequate detail” of the claim. Without an indication of the amount claimed, the defendant will only know that a claim is made against him, without knowing the quantum of the damages sought.

12.It is clear from PD 18.1 that the plaintiff has a duty to quantify his claim at the pre-action stage, so that meaningful negotiations can take place between the parties. It would be impossible for the defendant to make a proper assessment of the claim unless he was informed of a rough estimate of the quantifications under the various heads of damages.

13.The words “where practicable” in paragraph 5.1 of PD 18.1 must be given its ordinary meaning, that is, whatever is feasible or whatever that can be done. Since no good reason has been put forward to explain why it is not feasible to give the particulars of the amount claimed for PSLA in the Statement of Damages, the words “where practicable” cannot be relied upon by the plaintiff as an excuse for non-compliance.

14.Mr Tso argued that the quantification or particulars of the PSLA need not be provided until the pleadings have reached the stage of the Revised Statement of Damages. I disagree. In my view the rough amount claimed under PSLA should be quantified in the pre-action stage, and capable of being stated in the Statement of Damages at the time of the filing of the Statement of Claim. I am emboldened in my view that the plaintiff must quantify the PSLA in his Statement of Damages by a passage in the Guidance Notes to paragraph 10 of PD 18.1. It is the passage that states that the Court has “the power under 10.12(f) to order the Defendant to serve an Answer to the Statement of Damages” at the hearing of the Check List Review. If, at that stage, the plaintiff is not obliged to state his case with precision in the Statement of Damages, it would be illogical for PD 18.1 to declare that a court could order the defendant to provide an Answer to it. After all the court would not compel a response to a document devoid of the necessary particulars.

15.Although Mr Tso submitted on a “practice of the court”, he was unable to provide any authority for this. I am not aware of such “practice”.

Loss of Earnings, paragraph 2d

16.Therein it was stated that :

“The plaintiff will continue to suffer loss of earnings in future because of her incapacities. The plaintiff says a multiplier of 12 is appropriate.”

17.The loss of future earnings is an integral part of any personal injury claim. Very often, especially if the plaintiff is young and earning a high wage at the time of the accident this head of damages will comprise of the major part of the claim. Without adequate information, it would be impossible for the defendant to embark upon negotiations for settlement with the plaintiff.

18.Practice Direction 18.1 was not intended to “straight-jacket” the plaintiff or tie him permanently down to the particulars of damages pleaded. The Practice Direction was intended to encourage early settlement of the issue between the parties, by giving the defendant an opportunity to respond to the claim of the plaintiff. Therefore, the particulars or details of claim at this stage of the proceedings need only to be in approximate figures. I cannot understand why Mr Tso argued that he could not do so, because the plaintiff pleaded in precisely this way under Paragraph 4 of the Statement of Damages. All the heads of damages therein were stated to be “approximate”.

19.The purpose of the Revised Statement of Damages is to afford the plaintiff an opportunity to adjust his pleaded case. It is understood and accepted that, in the course of interlocutory proceedings in a personal injury action, the plaintiff may not have seen the defendant’s expert reports or discovery may not have been completed when the Statement of Damages were first served. Therefore amendments or adjustments are usually made in the Revised Statement of Damages. But if the plaintiff can be permitted to reveal the particulars of his claim to the other side for the first time in the Revised Statement of Damages, such a step would be contrary to the intent and to the protocol of PD 18.1.   

Loss of Earning Capacity, paragraph 3

20.It was pleaded that :

“As a result of the plaintiff’s injuries, he will suffer substantial disadvantages in the open labour market. He is entitled to damages in a sum which will be particularized in due course.”

21.This head of damages is commonly referred to as “Smith and Manchester” or “Smith payment” after the case of Smith v Manchester Corporation (1974) 17 KIR 1. It was conceded by Mr Tso during the course of the hearing that it is not always appropriate to make a claim under this head of damage. It will only be appropriate if there is evidence to show that, as a result of his injuries, the plaintiff will be at a disadvantage in the open labour market. Even though the authorities show that generally the award is either notional or given as a top-up of general damages, that, in my view, should not be a valid reason for keeping the defendant guessing as to the amount claimed.

Order 18 r12

22.The legislative intent of Order 18 r12 was explained by Rogers J (as he then was) in Yau Lee Construction Co Ltd & Anor v Chan Yau Ho (Administratrix of the Estate of Wong Tai Hei, Deceased) [1994] 3 HKC 560. That provision was intended, as the judge stated at letter “G” on page 562, to ensure that would be able to know “exactly where they stood at an early stage” and to take action to settle the claim or to make payments into court, as the case may be. Although the factual circumstances of the Yau Lee case is very different, the principles stated therein are of universal application.

23.Therefore, for all the reasons given, I am satisfied that the plaintiff is obliged to give the particulars sought.

Mr A Tso of Messrs Fan Wong & Tso for plaintiff

Mr A Wong of Messrs Hastings for 1^st & 3^rd defendants