Thapa Dhan Bahadur v. All Clad Asia Ltd and Others

HCPI 163/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 163 OF 2007

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BETWEEN

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Coram : Before Master Roy Yu in Chambers

Date of Hearing: 15 September 2009

Date of Ruling: 7 October 2009

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R U L I N G

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The Application

1.The Plaintiff claimed for damages in the region of $1.57 million but settled at $630,000 (on top of employment compensation paid in the amount of $97,632). The settled sum is within the jurisdiction of the District Court. The Defendant is to pay the Plaintiff’s costs herein on a scale to be determined by the Court if not agreed. No agreement is reached and the Plaintiff applies for his costs be taxed at the High Court scale.

The Law

2.Cost is always at the discretion of the Court. When the settled sum is within the jurisdiction of the District Court, the receiving party has to apply to Court for an order that he be entitled to tax his cost at High Court scale. The test to be applied in deciding whether High Court or District Court scale of fees are to be applied is, in the words of Glyn-Jones J. in Hopkins v. Rees & Kirby Ltd [1959] 2 AER 352 –

“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?”

3.The above passage is adopted by Mr. Justice Suffiad in Wong Choi Fung v. Fung Kai Public School Operating as Fung Kai Care and Attention Home for the Elderly HCPI 534/2004. His Lordship further adopted a passage from the judgment of Mr. Justice Seagroatt in Lai Ki v. B + B Construction Co. Ltd. [2003] HKLRD 192 that –

“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?”

4.I follow these principles in considering the application.

The Damages Claimed

5.According to the Statement of Damages filed by the Plaintiff with the Writ on 23 February 2007, the claims for damages are –

PSLA	300,000.00
Pre-trial loss of earning	316,797.13
Future loss of earning	749,948.22
Loss of earning capacity	200,000.00
Special damages	5,155.00
Less Employee Compensation	- (97,632.00)
Total:	1,474,268.35

6.In the Revised Statement of Damages, there is slight reduction in the claim for loss of earning. Mr. So, solicitor for the Plaintiff has made further concession in his submission which I would set out hereinafter.

7.The Defendant’s solicitor submitted in their written submission that when the Writ was issued, there was no reasonable prospect that the claim would be over the jurisdictional limit of District Court, being $1 million. I would go through the items of claim to analyze their respective prospect of success.

The Injuries

8.On the day of accident, 20 August 2004, the Plaintiff was a construction site worker employed by the 1^st Defendant. He was then standing on an aluminum ladder at the site performing window installation work with an electric drill. He accidentally fell and sustained injuries to his left wrist and left distal radius. He was sent to Ruttonjee & Tang Shiu Kin Hospital. He had fracture left distal radius and painful swelling around the left wrist. He was treated with a short arm plaster and was discharged the same day.

9.The Plaintiff received follow-up treatment from the Hospital and he last visited the Hospital on 11 November 2004. His condition, according to the medical report from the Hospital dated 23 February 2005, was satisfactory but still with weak left hand grip. Sick Leave from 20 August 2004 to 2 December 2004 was recommended.

The Plaintiff’s Loss of Earning

10.It is not disputed that the Plaintiff earned an average monthly wages of $13,306.65.

11.The first main dispute is when the Plaintiff could return to work. The Plaintiff claims his loss of wages up to 1 October 2005 when he was employed as a security guard earning $10,000 a month. He is still working for the same employer and his wages has been increased to $10,500 from April 2008.

12.But his sick leave ended on 2 December 2004. The burden rests on the Plaintiff to show that he could not resume he pre-accident work or some form of work after the sick leave. In the supporting affirmation of the Plaintiff filed on 15 June 2009, there is no explanation of his difficulty to look for alternative job, or if he did attempt to look for a job.

13.According to the record of Dr. Au Ka Kau in his report dated 25 November 2005, the Plaintiff returned to previous work after sick leave for one day. He had to stop due to left wrist pain. He started working as a security guard since 1 October 2005 earning $10,000 and later increased to $10,500 per month as from April 2008.

14.The Defendant submitted that the Plaintiff has worked for a company for a short period of time in March 2005. It is conceded by Mr. So that the Plaintiff worked from 8 March to 16 March 2005. While Mr. So submitted that the Plaintiff could not continue the work due to pain, this has not been stated in his affirmation.

15.Without any evidence in support, the suggestion that the Plaintiff could not work at all from December 2004 to 1 October 2005 is not believable. I do not accept the allegation that the Plaintiff could not take up some form of work after the sick leave period until 1 October 2005.

16.Mr. Wong, solicitor of the Defendant submitted that the Plaintiff could return to pre-accident job after the sick leave period and suffer no loss of earning. This is an issue in dispute and there is conflicting expert opinion. I have to take into consideration the opinion of Dr. Au Ka Kau that the Plaintiff could not return to his pre-accident job and has to do some light-duty job, such as security guard, or car park assistant. In assessing the reasonable chance of success, I presume the Plaintiff could not return to his pre-accident work.

17.Hence, after the sick leave, the Plaintiff should return to some gainful employment with light-duty. I take into account that the Plaintiff has to change his job. A period of 3 to 4 months after the sick leave for him to look for a new job is reasonable and I would allow him up to end of April 2005 to look for a job.

18.Hence, his loss of earning from date of accident to the end of April 2005 would be ($13,306.65 x 8 20/31) x 1.05 = $120,790.04.

19.As for loss since 1 May 2005, the Plaintiff could only claim partial loss of earning. He should be able to work as a security guard and I assess his earning at $10,000. Taking the date of the Consent Order as the Notional Trial Date, the lost would be [($13,306.65 – 10,000) x 35 x 1.05] + [(13,306.65 – 10,500) x 10 27/28 x 1.05] = $153,830.95.

20.The Plaintiff is 32 years old at the Notional Trial Date. The Plaintiff claims a multiplier of 18 for his future loss is excessive. At the submission, the Plaintiff’s solicitor concedes a multiplier of 16. And Defendant submitted it should be 14 and referred me to a number of case, and I need only refer to the judgment of Mr. Justice Suffiad in Imbu Netra Kumar v. Yau Lee Construction Co. Ltd & Others HCPI 234/2002 when His Lordship commented that for a Plaintiff of 31½ years of age, the multiplier is 14 to 15. I adopt the submission of the Defendant that 14 is reasonable.

21.And since April 2008, the monthly wage of the Plaintiff has been increased to $10,500. According, the damages for future loss is (13,306.65 – 10,500) x 12 months x 14 x 1.05 = $495,093.06.

PSLA

22.Mr. Wong submitted that the claim on PSLA is excessive. I was referred by Mr. Wong to the judgment in Yu Yixin v. Leung Chi Tin Andy DCPI 1306/2007, Tang Shu Shek v. Leung Chi Kit HCPI 219/2002, Chan Cheuk Yiu v. Chan Ho Kwanmain HCPI 879/2000. All plaintiffs in the said action suffered from fracture distal radius. The PSLA awarded is in the region of $140,000 to 170,000.

23.Mr. So concedes that $300,000 is on the high side. He submitted that the reasonable figure is $250,000. He further submits that the injury of the Plaintiff is more serious than the plaintiffs in the cases cited by Mr. Wong.

24.I am not convinced that the injury of the Plaintiff is more serious. Having considered all the judgment, I conclude that for PSLA, the Plaintiff only has a reasonable chance to recover $160,000.

Loss of Earning Capacity

25.And on loss of earning capacity, the Plaintiff concedes that it may not be awarded if full future loss is awarded. So I would not take into account this head of claim.

26.Special damages is not resisted. Full credit would be given in my ruling.

Interest

27.In calculating the possible claim of the Plaintiff, Mr. So includes the interest. Mr. Wong submits that, in assessing whether a claim is within the jurisdiction of the District Court, claim for interest under section 49 of the District Court Ordinance should not be taken into account.

28.The jurisdiction of the District Court on tortuous claim is governed by Section 32 of the District Court Ordinance. The maximum award is $1 million. Section 49 (1) & (7) of the District Court Ordinance reads –

“  (1)  The Court may include simple interest, at the rate the Court thinks fit in a judgment for a debt or damages, on the debt or damages or on a payment made before judgment, for the period between the date when the cause of action arose and –

(a)  for a sum paid before judgment, the date of the payment; and

(b)  for the sum which judgment is given, the date of the judgment.

(7)  In determining, for the purposes of section 32, 33, 36 or 37, whether an amount exceeds or is less than the amount specified in those sections, the Court shall not take account of any interest that may be ordered under this section or of any order for interest made under this section.”

29.It is obvious that the claim for interest, if this case was brought in the District Court, is covered by section 49 (1) of the District Court Ordinance. As such, by section 49(7), the amount of interest shall not be taken into consideration in assessing the jurisdiction limit. Accordingly, in deciding if an action should have been instituted in the District Court, I should make no reference to the possible interest to be awarded under section 49.

Employee Compensation

30.And finally, the Plaintiff has not deducted the Employee Compensation from the total claim. Mr. Wong referred to the judgment of Mr. Justice Seagroatt in Lai Ki v. B + B Construction Co. Ltd. HCPI 63/2001. At paragraph 6, His Lordship after quoting section 32 of the District Court Ordinance said, “in evaluating the Plaintiff’s claim for the purpose of deciding in which forum to commence proceedings, the amount of that compensation actually paid must be deducted.” And in fact, the Plaintiff acknowledged in his Statement of Damages that he would give credit for $97,632 that he has received. I see no reason by this should not be deducted from the claim.

Conclusion

31.I set out hereunder a comparison table –

DAMAGES	PLAINTIFF'S CLAIM AS PER HIS SOLICITOR	MY PROJECTED AWARD
PSLA	250,000	160,000
Pre-trial loss of earning	312,317	274,620.99
Future Loss of Earning	565,689	495,093.06
Loss of earning capacity	Nil	Nil
Special Damages	4,460	4,460
Interest on PSLA	9,166	Nil
Interest on Pre-trial loss	54,134	Nil
Interest on Special Damages	773	Nil
Employee Compensation	No deduction	- 97,632
TOTAL:	1,196,539	836,542.05

32.In conclusion, there is no reasonable prospect of claiming damages over the District Court jurisdiction when the Writ was issued. I also remind myself of the legal principle that if this is a borderline case, the Plaintiff should be allowed costs at High Court scale (per Mr. Justice Suffiad Lam Wing Sum Monica v. Tam Ka Kit Joe HCPI 933 of 2005.) I do not consider this a borderline case.

33.I therefore rule that the costs of the Plaintiff should be taxed at District Court scale and I give an order nisi that the Defendant should have costs of this application to be taxed at High Court scale, such order to be made absolute within 14 days.

Mr. E. So of Messrs. Lee & So for the Plaintiff.

Mr. A. Wong of Messrs. Chu & Lau for the 1^st, 2^nd and 3^rd Defendants.