Rai Prem Raj v. Hyundai-ccecc Joint Venture

HCPI 916/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. HCPI 916 of 2006

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Coram :  Before Master B Kwan in Chambers

Date of Hearing :  23 April 2008

Date of Handing Down :  30 April 2008

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R U L I N G

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1.This argument relates to whether the plaintiff should be awarded his costs on the High Court scale, or on the District Court scale.

2.A Consent Summons was filed on 17 January 2008 whereby the plaintiff agreed (a) to accept $600,000 (on top of the sum received in the Employees’ Compensation action of $124,512); (b) his costs of this action, to be taxed on a scale to be determined by the Court if not agreed.

3.The parties were unable to agree on the appropriate scale of costs to be applied, hence the argument before me.

The background

4.The plaintiff, then aged 36, worked as a “storeman” in a construction site.  On 22 October 2004, as the plaintiff was reaching up to fetch a heavy vehicle part which was placed in an overhead shelf, the heavy object fell on to, and fractured the medial malleous of his left ankle.

The medical evidence

5.Dr Danny Tsoi, the orthopaedic expert for the plaintiff said in his report dated 10 February 2006 that:

“The plaintiff still had “residual problem over his left ankle”;

The range of motion of the ankle was slightly restricted;

Pain on exertion was reported;

The x-ray showed satisfactory healing of the fracture, although a minor step was detected over the articular surface;

No major complications such as degenerative arthritis, malalignment or neurovascular lesion were detected;

The overall condition was satisfactory;

No further treatment was required; removal of the implant was optional;

He was orthopaedically fit to resume his pre-injury job, but some reduction in capacity is expected;

“He may have inconvenience performing duties required long hours of squatting, too frequent climbing and excessive weight lifting. This may also reduce his efficiency in resuming his pre-injury work”;

Sick leave up to 28 April 2005 is reasonable. Further sick leave is not required unless he opts for removal of screws.”

6.Dr Wong See Hoi, the orthopaedic expert for the defendant said in his report dated 15 August 2006 that:

“20.  On Examination, Mr Rai could manage to walk independently.  He only had difficulty performing single leg standing and squatting; Mild tenderness detected over the fracture site associated with mildly decreased range of movement of left ankle.  The x-ray taken at this assessment revealed that the fracture had healed with satisfactory alignment.  I believe that the mild tenderness around the fracture site was compatible with the post-fracture status.

21.  Orthopaedically, I believe Mr Rai has reached maximum medical improvement.  He is suitable for assessment and the prognosis is good.  He is only expected to have mild pain over the fracture site occasionally when he performs heavy manual work for a long time.  His stiffness of left ankle would improve gradually.”

The Law

7.It was common ground that the leading case in this area in Hong Kong is the decision of Seagroatt J in Lai Ki v B + B Construction Ltd [2003] 3 HKLRD.  Lai Ki provided that if a plaintiff can show that he had a reasonable prospect of obtaining damages in excess of the District Court scale, excluding the impact of any discount for contributory negligence, then the court in the exercise of its discretion should award him costs on the High Court scale.

8.Therefore the argument before me was whether the plaintiff had a reasonable prospect of obtaining damages in excess of the District Court scale, excluding the impact of any discount for contributory negligence.  The plaintiff submitted that such a reasonable prospect existed, whereas the defendant submitted that it did not.

9.In Lai Ki, Mr Justice Seagroatt was applying the “reasonable prospect” test in Hopkins v Rees & Kirby (1959) 2 All ER 352.  In that case Glyn-Jones J expressed the test thus:

“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 ?”

10.It must be noted that the point in time the “reasonable prospect” test should be applied is at the time the writ was issued.  At that time, should it have been obvious to the plaintiff at the time of the issue of the writ that this was a District Court (our equivalent of the county court) action?  Or might the plaintiff’s claim have resulted in an award exceeding HK$1,000,000?

11.It has to be borne in mind that when this action was commenced, the plaintiff had already received a sum of $124,512.  This sum would have to be taken into account, see paragraph 21(3) of the Judgment in the Lai Ki case.

12.The plaintiff claimed $400,000 for PSLA. This appears to me to be too optimistic, bearing in mind the decided authorities.  Take for instance the recent decision in HCPI 103 of 2007, where $350,000 was awarded for PSLA.  The plaintiff in that case suffered a fractured os calcis, and minor compression fracture of T12 and L2.  The os calcis healed in a displaced position, causing him permanent and unrelenting pain.

13.In this claim, Dr Danny Tsoi, the plaintiff ‘s own orthopaedic expert said:

“He may have inconvenience performing duties required long hours of squatting, too frequent climbing and excessive weight lifting.  This may also reduce his efficiency in resuming his pre-injury work”.

14.Although Mr Massie submitted that the plaintiff could not resume his pre-accident job, this was not the view of the orthopaedic experts.  Dr Tsoi merely stated that there might be a reduction in efficiency if he did resume the pre-accident job.

15.One must also note that the sick leave period granted was up to 28 April 2005, (that is a little more than 6 months, calculated a 6.267 months) a period that Dr Danny Tsoi regarded as “reasonable”.  Dr Tsoi also said that “Further sick leave is not required unless he opts for removal of screws.”

Pre-Trial Loss

16.The sum claimed for pre-trial loss of earnings in the Statement of Damages was $434,486.87.  This sum was calculated on the basis of a pre-accident salary of $14,050.  This is disputed by the defendant, who said the sum should be $13,028.33.  Mr Massie was content to adopt the defendant’s figure when he appeared before me.  I reckon that, on a reasonable analysis, the plaintiff would be awarded approximately $153,648.54:

Full pay of $13,028.33 x 6.267 = $81,648.54; plus

$2000 x 36 months pre-trial = $7200 making a total pre trial loss of $153,648.54.

Post Trial Loss

17.The sum claimed for post trial earnings in the Statement of Damages was $1,318,590.  This figure was calculated in the following manner $14,050 less $6000 x 12 months x 13 + 5% = $1,318,590.

18.This claim for future loss of earnings lies at the heart of this dispute.  The plaintiff has interpreted Dr Tsoi’s report having the effect that the plaintiff would not be able to resume his pre-accident job.  As pointed out above, a careful reading of Dr Tsoi’s report cannot support that interpretation.  The defendant argues that at most the Court would have allowed a loss per month of $900 to $1800 based on the opinion of the orthopaedic experts.

19.After studying the reports of the respective orthopaedic experts (in particular the report by the plaintiff’s expert, as that would have been the only report available at the material time) I would agree with the defendant to the extent that I think the figure most likely to be adopted by the court would be around $2000, giving a sum of  $312,000. ($2000 x 12 x 13 = $312,000).

Loss of Earning Capacity

20.I turn now to Loss of Earning Capacity.  Having looked at a number of authorities, I agree with the defendant that the sum should be around $40,000, and the sum of $100,000 claimed is too high.  For instance, in the recent case HCPI 103 of 2007 referred to above, where the injuries were much more serious, a sum of only $20,000 was awarded.

Conclusion

21.In my view, applying the “reasonable prospect” test, at the time the action was commenced, the figures would have been in the region of:

PSLA	$300,000
Pre-Trial Loss of Earnings	$153,648.54
Post Trial Loss of Earnings	$312,000
Loss of Earning Capacity	$40,000
Special Damages	$9,120
Sub-total	$814,768.54
Less EC Payment of $124,512
Total	$690,256.54

22.In the circumstances it is my view that the claim should not have been commenced in the High Court, and therefore the costs of the action should be assessed on the District court scale.

23.There shall be an Order nisi that the costs of the hearing on 23 April 2008 shall be to the defendant, with Legal Aid taxation of the plaintiff’s own costs, to be taxed if not agreed.

24.Unless an application to vary it is received within 14 days of the handing down of this Ruling, the Order for the costs of the hearing on 23 April 2008 shall be made absolute.

Mr J Massie of Messrs Massie & Clement Solicitors for the plaintiff.

Ms J Koon of Messrs Szwina Pang, Edward Li & Co for the defendant.