Lam Kan Mau v. Win Capital (HK) Ltd and Others

HCPI 1179/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1179 OF 2002

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BETWEEN

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Coram : Master Ko in Court

Dates of Hearing : 20 and 21 April 2009

Date of Decision : 15 May 2009

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D E C I S I O N

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1.The issue that requires determination is whether the 1^st and 3^rd Defendants should pay the Plaintiff’s costs of the action:

(a)  on High Court scale (as contended by the Plaintiff); or

(b)  as for costs incurred on or before 30^th November 2003, on High Court Scale; and as for costs incurred as from 1^st December 2003, on District Court scale (as contended by the 4^th Defendant).

Background

2.On 25 March 2000, the Plaintiff was injured when the canopy at Mei King Mansion Phase II (‘MK Mansion”) in To Kwa Wan collapsed and struck him.

3.On 20 December 2002, the Plaintiff commenced this personal injuries action in the Court of First Instance against the defendants for damages.  The 1^st Defendant was the owner of the G/F and 1/F premises in MK Mansion from which the canopy extended.  At the time of the accident, the 2^nd Defendant was the tenant of the 1^st Defendant and the 3^rd Defendant was engaged by the 1^st Defendant to demolish an unauthorized structure on top of the canopy.  The 4^th Defendant is the incorporated owners of MK Mansion.

4.Interlocutory judgment for damages to be assessed was entered against the 1^st Defendant and the 3^rd Defendant on 14 January 2003 and 3 June 2003 respectively, upon their failure to give notice of intention to defend.  Interlocutory judgment was subsequently entered against the 4^th Defendant on 17 June 2008 by consent.  The claim against the 2^nd Defendant has been discontinued.

5.Three days before the scheduled hearing for assessment of damages, the Plaintiff and the 4^th Defendant reached a compromise and filed a consent order.  For present purpose, the consent order provides that:

“1.  The 4^th Defendant do pay the Plaintiff a sum of HK$693,437.22 inclusive of interest … in full and final settlement of the Plaintiff’s claims herein;

…

6.  The 4^th Defendant do pay the Plaintiff’s costs of this action as against all the Defendants herein including the 2^nd Defendant …, costs incurred on or before 30^th November 2003 to be taxed on High Court Scale if not agreed and costs incurred as from 1^st December 2003 to be taxed on District Court Scale if not agreed;

7.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations, Cap.91.”

6.It should be noted that the settlement amount is above the previous jurisdictional limit of the District Court of $600,000.  The jurisdiction of the District Court was increased to the present limit of $1 million on 1 December 2003.

7.Given his settlement with the 4^th Defendant, the Plaintiff applies at the assessment hearing to adjourn the assessment against the 1^st and 3^rd Defendants sine die and not to be restored without the leave of the court.  He also asks for costs against the 1^st and 3^rd Defendants to be taxed on High Court scale if not agreed.

8.The 1^st and 3^rd Defendants are absent at the assessment despite being notified of the hearing and make no submission.

9.The 4^th Defendant is not concerned with the proposed adjournment and supports an order that the 1^st and 3^rd Defendants should also bear the Plaintiff’s costs.  However, it opposes the Plaintiff’s application for a costs order against the 1^st and 3^rd Defendants on High Court scale for being inconsistent with the consent order.

Discussion

10.Both Mr. Ching (the solicitor representing the Plaintiff) and Mr. Hung (the solicitor representing the 4^th Defendant) invite me to apply the test propounded by Seagroatt J in Lai Ki v. B+B Construction Co Ltd  [2003] 3 HKLRD 192 at para.21 to determine their dispute:

“The position in relation to a claim in the High Court settled or adjudicated upon in a sum which is within the District Court jurisdiction is as follows:

(1)  The usual order will mean that costs will be on the District Court scale unless the High Court is, in the exercise of its discretion, persuaded that there was a reasonable prospect of obtaining an award in excess of the District Court jurisdiction.  To that end the valuation of the claim must be on the basis of full liability;

(2)  …”

11.It is common ground that when this action was commenced the Plaintiff’s claim was beyond the then jurisdiction of the District Court of $600,000. 

12.The jurisdiction of the District Court was increased with effect from 1 December 2003.  Relying on cases such as Ali Shoukat v. Hang Seng Bank Limited, HCPI 3/2003, Suffiad J, 23 June 2004; Cheng Chi Ming v. Li Chau Wan, HCPI 1028/2002, Suffiad J, 8 July 2005; and Chak Wing Keung v. BSC Home Improvement Centres Limited, HCPI 880/2002, Suffiad J, 19 October 2005, the 4^th Defendant contends that the Plaintiff ought reasonably to have transferred this action to the District Court upon the increase in its jurisdiction.  Mr. Hung suggests that that was the basis upon which the Plaintiff and the 4^th Defendant agreed on paragraph 6 of the consent order.  He complains that the Plaintiff is going back on his promise in seeking a costs order against the 1^st and 3^rd Defendants on High Court scale. 

13.Mr. Hung alsosubmits that granting the Plaintiff’s application will mean that the Plaintiff’s costs will be taxed on different scales, which will create problems in future taxation.  More importantly, he submits that since all defendants should be jointly and severally liable to the Plaintiff’s claim and costs, adopting a higher scale of costs against the 1^st and 3^rd Defendants will risk the 4^th Defendant bearing the Plaintiff’s costs on High Court scale by virtue of the Civil Liability (Contribution) Ordinance (Cap.377) which is inconsistent with the agreement based on the consent order.  In this regard, I note that the 1^st Defendant has issued a notice seeking contribution/indemnity from, inter alia, the 4^th Defendant in respect of any sum (including costs) payable by the 1^st Defendant to the Plaintiff.  The issue of contribution/indemnity is still pending before the court. 

14.Mr. Ching explains that the Plaintiff is on legal aid and is liable for his own common fund costs.  The Plaintiff is seeking to have his costs taxed on High Court scale as against the 1^st and 3^rd Defendants so that the Plaintiff’s liability on common fund costs can be protected.

15.According to the Statement of Damages dated 25 April 2003, the Plaintiff’s claim then comprised:

Pain, suffering and loss of amenities	$500,000
Loss of earnings (past and future)	$468,000
Loss of earning capacity	$50,000
Future medical expenses	$75,000
Other special damages	$20,122
TOTAL	$1,113,122

The claim was subsequently revised to about $1.5 million in January 2008: see the Revised Statement of Damages.

16.The main dispute between the Plaintiff and the 4^th Defendant is on the quantification of the Plaintiff’s claim on PSLA and loss of earnings.

17.The Plaintiff’s injuries, as a result of the accident, can be gleaned from the medical evidence:

(a)  Multiple facial lacerations with active bleeding over the left maxillary region.  The bleeding was stopped and the wound closed with suture at the hospital.  The facial wound healed satisfactorily and the Plaintiff was discharged on 3 April 2000.

When the Plaintiff was examined by his own medical expert Professor Lim Cheung on 18 January 2001, there was an obvious scar on the left ala of the nose extending into the nasolabial fold.  The length of this scar was about 3 cm.  A less conspicuous scar was also present over the left upper lip, extending laterally and crossed over the nasolabial fold.  The horizontal and vertical segments of this scar were about 2.5 cm and 1 cm respectively.  There was an area of facial sensory deficit located over the distribution of the left infra-orbital nerve and buccal nerve.  The diagnosis was moderate axonotmesis of the left infra-orbital nerve.  Professor Cheung awarded 2% permanent disability to the facial impairment from the scars and 1% permanent disability to the impairment of facial sensation.

For present purpose, it may be noted that the 4^th Defendant does not disagree with Professor Cheung.

(b)  About 10 days after the Plaintiff was discharged from hospital, he noted one tooth in the left maxilla was loose.  He consulted a local dentist who extracted the tooth and re-made a new dental bridge for rehabilitation of the Plaintiff’s occlusion. 

According to Professor Cheung, the loss of the fractured tooth was rehabilitated by a new bridge and the chewing function restored.  Hence, no disability was justified.

Professor Cheung’s opinion in this respect is also not disputed by the 4^th Defendant.

(c)  The Plaintiff complained of tinnitus and hearing impairment over his left ear after the accident.  Examination conducted immediately after the accident revealed that his eardrums were intact and there was no other abnormal ENT finding. 

Audiogram performed on 4 May 2000 however showed a sensorineural hearing loss of 50dB in the left ear.  The Plaintiff’s own medical expert Dr. Buddy Wong considered those results, which were based on subjective hearing tests, unreliable as the Plaintiff’s eardrum was quite normal.  Based on further objective hearing tests done, Dr. Wong concluded that the hearing loss in the left ear was mild or moderate (i.e. 30-40dB loss) and awarded 2.5-3.8% impairment of the whole person to the hearing loss.

The Plaintiff was later examined by the joint medical expert Dr. Lo Siu Sing on 4 February 2004.  Dr. Lo also found the Plaintiff’s response to be fairly inconsistent with the test results.  Dr. Lo opined that the results from objective tests suggested the Plaintiff to be suffering from a mild hearing loss above 2,000 Hz for both ears.  Since the Plaintiff’s hearing thresholds were normal within speech frequencies, there was no permanent disability associated with hearing loss.

(d)  The most controversial aspect of the Plaintiff’s injuries is his psychiatric condition.

The Plaintiff complained of anxiety, persistent distressful re-experience of the accident, persistent avoidance of stimuli associated with the accident, depressed mood, lack of interest in activities, forgetfulness, insomnia and nightmares.  He was diagnosed by Dr. Leung Chi-ming of Prince of Wales Hospital to be suffering from Post-traumatic Stress Disorder (PTSD).  The Plaintiff’s own medical expert Dr. Chung See-yuen confirmed the diagnosis and opined that the Plaintiff was suffering from mild PTSD.

However, the joint medical expert Dr. Wong Chung-kwong disagreed with Dr. Chung and opined that the Plaintiff was malingering.  In a medical report dated 19 February 2004, Dr. Wong detailed the tests performed on the Plaintiff on 3 February 2004 and justified his conclusion. 

The 4^th Defendant has also prepared surveillance evidence for the assessment.  The surveillance evidence will tend to show that the Plaintiff behaved normally and without any symptoms of PTSD on 3-5 and 27 March 2009.

18.In my view, the Plaintiff’s injuries should be looked at when the jurisdiction of the District Court was increased: see Lo Chuen Chung v. Wong Chun Sing, HCPI 428/2005, Deputy Judge Muttrie, 24 May 2006, at para.34; and Wong Wai Man v. Yi Wo Yuen Aged, HCPI 77/2007, Suffiad J, 9 September 2008, at para.14.  The Plaintiff did not then have the benefit of the joint experts’ opinion or the surveillance evidence.  As such, I should take the Plaintiff’s hearing loss and mild PTSD into account in assessing the likely award for PSLA.

19.Mr. Ching relies on the following cases in support of the Plaintiff’s claim of $500,000 for PSLA:

(a)  Yan Kwok Yue v. Dong Shu Kwi Beau, HCPI 923/2000, Deputy Judge Longley, 22 January 2002;

(b)  Francine Louise Collins v. The Star Ferry Company Limited, HCPI 491/2000, Sakhrani J, 26 April 2001;

(c)  Joan Carol Boivin v. Wong King Yin, HCPI 195/2000, Suffiad J, 14 February 2001; and

(d)  Harvey Kenneth v. Welltex International Development Limited, HCPI 818/1998, Deputy Judge Woolley, 28 March 2001.

20.In an argument on costs such as the present one, the court will necessarily take a broad view of the matter and will not go into questions of quantum in any great detail: see Chiu Tsz Ying v. Hui Ka Chun, HCPI 590/2006, Saunders J, 18 July 2008, at para.11.  In my view, the injuries suffered by the plaintiffs in the cases cited were much more serious than that suffered by the Plaintiff.  Based on the medical evidence available to the Plaintiff as at December 2003, I am of the view that the Plaintiff’s injuries fall far below the serious category as defined in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.  In the circumstances, I do not expect the Plaintiff to recover more than $350,000 on PSLA.

21.The Plaintiff calculated his loss of earnings at $468,000 (i.e. $6,500 x 12 x 6) based on the following assumptions:

(a)  monthly income of $6,500;

(b)  he could not return to his pre-accident job; and

(c)  he would work until 70 years of age.

22.The Plaintiff was a casual delivery worker and was already 61 years old at the time of the accident.  Mr. Ching fairly concedes at the hearing that based on the Plaintiff’s past salary record, his monthly income should only be $5,473.  Sick leave was granted from 25 March 2000 to 19 June 2002 (i.e. about 2.25 years).  The Plaintiff’s case that he could not return to his pre-accident job because of his injuries caused by the accident is not supported by his own medical experts.  Neither Professor Cheung nor Dr. Wong expressed such a view, and Dr. Chung even opined that the Plaintiff was fit to return to his pre-accident job.

23.Taking all these into account, I think the Plaintiff is over-estimating his claim on loss of earnings.  In my view, the Plaintiff should reasonably expect an award of about $147,771 only (i.e. $5,473 x 12 x 2.25).

24.Based on Dr. Chung’s opinion, the Plaintiff would need to continue with his psychiatric treatment for about one more year and the cost of such treatment in the private sector was estimated at $15,000.

25.Interest is usually awarded for damages for PSLA at 2% per annum from the date of writ.  Interest on pre-trial loss of earnings and on special damages will be awarded at half judgment rate from the date of the accident.  The amount of interest comes to about $105,334.

26.Hence, the Plaintiff’s claim as at December 2003 should be about $690,000 only:

Pain, suffering and loss of amenities	$350,000
Loss of earnings	$147,771
Loss of earning capacity	$50,000
Future medical expenses	$15,000
Other special damages	$20,122
Interest	$105,334
TOTAL	$688,227

27.Based on the above considerations, I do not expect an award beyond of the increased jurisdiction of the District Court.  The Plaintiff must also have realized the situation when he agreed to paragraph 6 of the consent order.

Conclusion

28.Given the circumstances pertaining at the time when the jurisdiction of the District Court was increased, the Plaintiff had no reasonable prospect for obtaining an award in excess of $1 million.  The Plaintiff should have transferred the action to the District Court.

29.I therefore make the following orders:

(a)  the assessment of the Plaintiff’s claim against the 1^st and 3^rd Defendants be adjourned sine die, not to be restored without the leave of the court; and

(b)  the 1^st and 3^rd Defendants do pay the Plaintiff’s costs of the action, with the costs incurred on or before 30 November 2003 be taxed on High Court scale and the costs incurred as from 1 December 2003 be taxed on District Court scale if not agreed.

30.Costs should normally follow the event.  I make an order nisi that the Plaintiff do pay the 4^th Defendant’s costs of this argument to be taxed if not agreed.  There be no order as to the costs of this argument as between the Plaintiff and the 1^st and 3^rd Defendants.  The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

Mr. E. Ching of Messrs. Ching & Co. for the Plaintiff.

The 1^st Defendant, in person, being absent.

The 3^rd Defendant, in person, being absent.

Mr. L.K. Hung of Messrs. S.K. Lam, Alfred Chan & Co. for the 4^th Defendant.