Wong Hoi Chung v. Lkk Trans Ltd

cacv 116/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 116 of 2004

(on appeal from DCEC no. 153 OF 1999)

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BETWEEN

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Before: Hon Rogers VP, Hartmann and Reyes JJ in Court

Date of Hearing: 24 January 2005

Date of Handing Down Judgment: 8 February 2005

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J U D G M E N T

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Hon Rogers VP:

1.This was an application for leave to appeal to the Court of Final Appeal.  The application was put on the basis of both section 22(1)(a) and section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”).  At the conclusion of the hearing this court’s decision was reserved in view of the fact that new authorities had been presented to the court during the course of the hearing and it had not been possible to consider these fully.  The hearing had overrun into the time fixed for other hearings to which members of the court had to attend.

2.The facts of this case are set out in the reasons for judgment handed down by this court on 8 December 2004.  In the judgment in the District Court, the judge had substituted her own assessment of loss of earning capacity and awarded compensation on the basis of a 90% loss of earning capacity.  On the appeal, as in the court below, it had been argued that although the applicant was entitled to some award under the Employees’ Compensation Ordinance, Cap. 282, that award should be reduced on the basis that the applicant’s incapacity was due to his avascular necrosis in the hips and that although the injury might have accelerated the time at which that condition would render the applicant incapacitated at least by the time of the hearing the applicant was in a position where he would have been in any event.  A point was also sought to be raised that the applicant should have undergone hip surgery and his failure to do so should be taken into account in assessing the award.

3.Where a court has to quantify or assess the damages or loss, whether pecuniary or non-pecuniary, the damages are unliquidated: see for example paragraph 808 Halsbury’s Laws of England, fourth edition, Vol 12(1).  Hence, in the circumstances despite the fact that judgment has been given in the applicant’s favour in the sum of $1,138,233.38 plus interest that sum is not a liquidated sum.  In a series of cases the Court of Final Appeal has determined that a claim for unliquidated damages does not come within section 22(1)(a) of the Ordinance.  That applies equally to cases where a claim for unliquidated damages has been assessed and to cases where the claim has been dismissed: see Bill Chao Keh Lung v Don Xia, FAMV6/2004, 15 June 2004, which followed and emphasised the decisions in Cheng Lai Kwan v Nan Fung Textiles Ltd (1997-98) 1 HKCFAR 204, and Shum Kam Fai v Lam Chi Wai FAMV No. 38 of 2002, 16 December 2002.

4.As has also been pointed out there is a residual discretion under section 22(1)(b) of the Ordinance which may be exercised in circumstances where as a matter of the utmost probability, or even of a virtual certainty, the damages ultimately awarded will be in excess of the threshold amount.  That remains however a matter of discretion.  The discretion has to be exercised in relation to the particular case.  In this case the respondent has not raised any new argument.  The arguments have been considered by the court below and by this court and have been rejected.  For the reasons already given in the reasons for judgment I do not consider that there is sufficient merit in the points to warrant leave being given under section 22(1)(b).

5.In my view, therefore, this application should be dismissed with an order nisi of costs in favour of the applicant.

Hon Hartmann J:

6.I agree.

Hon Reyes J:

7.I agree.

Mr Y L Cheung, instructed by Messrs Ho, Tse, Wai & Partners, for the Applicant/Respondent

Mr Mohan Bharwaney, instructed by Messrs Hastings & Co., for the Respondent/Applicant