Wong Choi Fung v. Fung Kai Public School Operating As Fung Kai Care and Attention Home for The Elderly

HCPI 534/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.534 OF 2004

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BETWEEN

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Before : Hon Suffiad J in Chambers

Date of Hearing : 26 January 2006

Date of Ruling : 14 February 2006

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R U L I N G

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1.This matter was settled between the plaintiff and the defendant by way of a Consent Summons dated 18 January 2006 wherein the plaintiff agreed to accept a sum of $747,225.77 in full and final settlement of her claim herein against the defendant, and giving credit for the sums of  $208,068.97 and $144,171.20 being respectively the amounts for which the related employee’s compensation claim in DCEC 397 of 2004 was settled and what was already received by the plaintiff by way of periodic payments relating to employee’s compensation, the outstanding balance of $394,985.60 was to be paid by the defendant to the plaintiff within 14 days from the date of the Order in respect of the Consent Summons.

2.However, the parties were not able to come to any agreement as to the scale of costs for the purposes of taxation in view of the fact that the settlement amount (after deducting the amounts relating to employee’s compensation) was well below the District Court jurisdiction.

3.Ultimately, the parties had to appear before me for me to hear them as to the scale of costs to be ordered, whether High Court scale or District Court scale.  This Ruling is therefore limited to deal with only the scale of costs in this matter.

The plaintiff’s claim

4.The plaintiff claims damages for personal injuries suffered by her in the course of her employment with the defendant as a general workman working at the Fung Kai Care and Attention Home for the Elderly run by the defendant.

5.The plaintiff complains of two different accidents which happened while she was at work.  The first accident occurred on 20 June 2001 when the plaintiff was lifting a tray of dishes from a trolley at her work place she sprained her back.  The second accident took place on 18 April 2002 when she was attempting to lift a big pot of food during her work and sprained her back again.

6.The plaintiff is a female, born on 23 January 1955 and is a mother of 7 children, the youngest two of which were still studying at the time of her first accident in June 2001 and therefore dependant on her.

The test to be applied

7.The test to be applied in deciding whether High Court or District Court scale of fees are to be applied is to be found in the words of Glyn-Jones J in Hopkins v. Rees & Kirby Ltd [1959] 2 All ER 352 where he said :

“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?”

8.These words were cited with approval by Seagroatt J in the case of Lai Ki v. B + B Construction Co. Ltd [2003] HKLRD 192 and adopting the words of Glyn-Jones J, Seagroatt J went on to say in Lai Ki’s case as follows :

“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?”

9.I accept the test to be applied in deciding the question before me to be as laid down by Glyn-Jones J and Seagroatt J in the way they have been cited above.

10.The Writ in this case was dated 16 June 2004.

11.What I have to decide in this Ruling is whether in June 2004 when the Writ was issued by the plaintiff, she had a reasonable prospect of recovering damages in excess of the District Court jurisdiction, which at the time of the Writ was $1,000,000.

12.In so doing, I must ignore all questions of contributory negligence since the plaintiff had not admitted any contributory negligence in her Statement of Claim.

13.However, I will have to take into account the fact (which is common ground between the parties) that the plaintiff had already received totally $305,609.77 being periodic payments relating to employee’s compensation before 16June 2004, being the date on which the Writ was issued.

Quantum

14.This matter having been settled, it would not be possible to look at the question of quantum for present purposes in the same way that an assessment of damages would be carried out.

15.Quantum can only be looked at globally in the round, in particular at those facts which are either not in dispute or cannot be disputed.  It would also have to be viewed from the plaintiff’s perspective when the Writ was issued in this matter.

16.Firstly, in so far as PSLA is concerned, the expert medical report obtained by the plaintiff from Dr Wong See Hoi, a specialist in orthopaedics and traumatology, states that the plaintiff suffered from prolapsed L4/5 and L5/S1 disc after the first accident in June 2001 but responded well with conservative treatments and could resume her work on 14 January 2002.  No surgery was suggested at that time.

17.However, after the second back sprain in April 2002, the plaintiff’s back problem became resistant to all conservative treatments and the plaintiff did not respond well to the conservative treatment offered by government hospital but was grossly disabled by the back pain.  Surgery was recommended by her treating orthopaedic specialist, but declined by the plaintiff because of worries she had about the risk of the operation.

18.The plaintiff also failed to respond to steroid injections aimed to decrease local nerve root inflammation in August 2002 and March 2003.

19.Dr Wong agreed that spine operation including posterior decompression and disectomy at L4/5 and L5/S1 levels to decompress the nerve roots should be useful to relieve her symptoms.  However, although there is a reasonable chance of success, there is also considerable risk of the operation.  Nevertheless he still recommended the plaintiff to reconsider the option of surgery.

20.He noted that beside her orthopaedic problems, the plaintiff was also deeply depressed psychologically after the second accident.

21.Although he examined her more than two years after the accident, the plaintiff was still grossly disabled by her back pain.  She could not walk normally, perform tiptoes and feet walking, single leg standing and squatting.  Also she could not sit for more than 15 minutes.

22.He found the following symptoms on examination :

(a) definite localized tenderness over L4/5 and L5/S1 level;

(b) tenderness and muscle spasm over left paraspinal muscle;

(c) decreased range of movement of lumbar spine;

(d) nerve stretching test was positive over the left side in both prone and sitting position;

(e) mild atrophy of both the left calf and thigh muscle;

(f) knee jerks and ankle jerks were present; and

(g) decreased power and sensation at the whole left leg.

23.These symptoms are consistent with prolapsed disc causing left side nerve root compression.  Having carried out several simulation tests on the plaintiff in order to rule out symptom magnification, Dr Wong concluded that the plaintiff was and has been suffering from prolapsed L4/5 and L5/S1 disc causing irritation to L5 and S1 nerve root.

24.Without the operation, the plaintiff has reached the stage of maximum medical improvement.  The prognosis was poor without operation.  She may have persistent disabling back pain which affects her physically and psychologically.  Moreover the injury may further increase the chance of spine degeneration in the future.

25.In so far as PSLA award is concerned, the range of awards for prolapsed disc involving back pain range from $320,000 to $400,000.  However, it would appear from awards made by the Hong Kong courts, that for that type of injuries and disabilities, the courts would make a distinction between whether there are or are not nerve root compression involved.  If there are nerve root compression, the awards tend to be on the higher end of the range because it would tend to prolong as well as increase the pain involved.

26.On the basis of the opinion as expressed by Dr Wong See Hoi as to the plaintiff’s injuries and disabilities, clearly this plaintiff would qualify for an award in the higher end of that range since it is clear in her case that there is nerve root compression which has resulted in disabling and prolonged back pain for her.

27.In submission, Mr Lam for the plaintiff attempted to make out a case of loss of gratuitous service under Section 20C(4) of the Law Amendment and Reform (Consolidation) Ordinance, Cap.23.

28.He attempted to assess that by using the multiplier multiplicand method quantifying such loss as between one to three hours per day at $50 per hour.  This resulted in the astronomical figure of the award for loss of gratuitous service ranging from $65,000 to $195,000 for the pre-trial period and an award for future loss of gratuitous service ranging from $273,000 to $821,000 using a lifetime multiplier of 15.

29.One has only to look at the resultant figures produced by such method to know that an assessment done in this fashion is wholly unreasonable.

30.The case of Daly v. General Steam Navigation Co. Ltd makes it quite clear that for such a claim for the pre-trial period, it is not correct to evaluate such loss by reference to the amount it would have cost to employ the necessary domestic help when the plaintiff had not in fact employed such help, but that the pre-trial loss under such head should properly fall to be assessed as part of general damages for PSLA.

31.In the present case, even granted that the plaintiff may succeed in establishing an entitlement to claim for gratuitous services, very likely the award for PSLA would be increased to no more than $450,000 to take such claim into consideration.  Certainly it would not be increased by the amounts suggested by Mr Lam using the multiplier multiplicand method.

32.Next there is also a claim for loss of earnings.

33.In that respect, it is not in dispute that the plaintiff was granted totally 37 months of sick leave by government hospital, most of which was after the second accident.

34.It is also not in dispute that the plaintiff was earning a salary of $10,420 per month prior to the accident.  Furthermore, it is common ground that had the plaintiff continued in her work at the Elderly home, her pre-accident salary would have been reduced to $9,615 due to market conditions at some time during the pre-trial period.

35.As for her ability to return to work after the expiration of the sick leave period, Dr Wong See Hoi expressed his opinion as follows :

“As a general opinion, it is not advisable for patients with a symptomatic prolapsed back disc with nerve root irritation to take up jobs that require frequent lifting or bending of the back, or any heavy manual work.  I feel that [the plaintiff] should have difficulty in performing her pre-injury work as workman in the Elderly Home.  I agree that she may be able to work if she was assigned with light duty without those duties involving heavy manual lifting and bending of the back.  Should [the plaintiff] wish to change to other type of work, she is suitable for moderate work only, like operator, cashier, office messenger or car park attendant etc.”

36.Given this opinion of Dr Wong and his earlier opinion that without the recommended operation, the plaintiff has reached maximum medical improvement, there is every likelihood that the plaintiff will be able to make out a case for partial loss of earnings after the expiration of the sick leave period as well as for the post trial period.

37.Therefore taking a mean average monthly earnings for the pre-trial period of $10,017, a very rough calculation for the loss of earnings would likely be along the following lines :

(a) For the 37 months of sick leave (including loss of MPF) will come to about $390,000 (rounded off).

(b) For the partial loss for the remaining 18 months pre-trial (assuming partial loss of $4,500 per month) again including loss of MPF, about $85,000 (rounded off).

(c) For future loss of earnings using the same multiplicand for the pre-trial partial loss, about $340,000 (rounded off) using a multiplier of 6 in view of the fact that the plaintiff’s retirement age at the Elderly home is set at 60 under her contract.

Together with the PSLA, these figures would come to roughly $1,265,000.

38.These figures have not taken into account claims for special damages (pleaded at $67,336), loss of earnings capacity (pleaded at $60,000) and cost of future medical treatment (pleaded at $85,000).  Even if such heads of claim will not be allowed in full as pleaded by the plaintiff in her Revised Statement of Damages, it is likely that the plaintiff will still be awarded some smaller amounts for such heads of damage.

39.All in all, and giving allowance for the $305,609.77 already received by the plaintiff by way of employee’s compensation before the Writ in this matter was issued, I am unable to say that I can be satisfied that at the time the Writ was issued, it was then obvious that this was a District Court matter.  At best this is a borderline case.  As such, it must have been reasonable for the plaintiff to have started the matter in the High Court.

40.Having said that, it would appear that the dispute from the defendant as to High Court scale of costs arose because of the amount at which the plaintiff settled this case.

41.Whilst I agree that that is one factor to be taken into consideration, however, at the best of times when a case is settled it is almost impossible for the court to go behind and seek out the reasons or the factors underlying the settlement without speculation.

42.In this context, the words of Deputy Judge Jat in the case of Wong Chi Ho Jacky v. Poon Yuk Shan,HCPI 910/2002 ought to be kept in mind in dealing with these situations when he said :

“Mr. Clement, while accepting that the Court must not stop at the claim as framed in the Schedule of Damages, submitted that one cannot look at the eventual settlement amount.  In my view that must be right since the relevant time for consideration was the time when the writ was issued.  Furthermore, there might be all kinds of reasons why a plaintiff might wish to accept a sum lower, even much lower, than what his claim might be considered to be worth in order to settle the claim.”

43.In conclusion therefore, in the present case, for the reasons stated above, I am bound to order that the costs of this action which the defendant have agreed to pay to the plaintiff as contained in paragraph 4 of the Consent Summons be taxed on the High Court scale if not agreed.

44.The costs of the hearing before me relating to the scale of costs to be applied in this case has been agreed by the parties that it should follow the event depending on this ruling.  Accordingly, since the plaintiff has succeeded, there will be an order that the costs of this hearing be to the plaintiff to be borne by the defendant and to be taxed on the High Court scale if not agreed.

Mr Simon H.W. Lam, instructed by Messrs Chong, So & Co.,  for the Plaintiff

Mr Leung Hon Keung, instructed by Messrs Clyde & Co., for the Defendant