Wong Yin Wa Stonnie v. Lee Tak Wong

DCPI 2429/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION DCPI 2429 of 2008

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DECISION

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Introduction

1.The issue before me is whether the Plaintiff’s costs should be taxed on the District Court scale or assessed in a manner as if this action were brought before the Small Claims Tribunal.

The Summons

2.The Defendant took out a summons on 29 June 2011 for an order that:-

“1. The Plaintiff having accepted the sanctioned payment of $45,000 by a Notice of Acceptance dated 8^th July 2009 so that the claim of the Plaintiff herein was settled at a sum less than $50,000 which is within the jurisdiction of the Small Claims Tribunal, the Plaintiff’s costs payable by the Defendant in this action shall be assessed in a manner as if this action were brought before the Small Claims Tribunal.

2. The taxation of the Plaintiff’s costs be stayed pending the result of this application.

3. The costs of this application be paid by the Plaintiff to the Defendant, to be taxed if not agreed.”

The Accident

3.This case involves a traffic accident happened at about 8:50 p.m. on 31^st December 2005. The Plaintiff, a traffic police officer on motorcycle duty, was travelling along the 2^nd lane of Ngo Cheung Road westbound in Yau Ma Tei, while the Defendant was driving a public light bus on the 3^rd lane in front of the Plaintiff.

4.When the parties were approaching the junction with Hoi Wang Road, the Defendant suddenly pulled left to the Plaintiff’s lane, causing the Plaintiff to swerve to his left lane.

5.The Plaintiff managed to stabilise his motorcycle to a halt by stepping his left foot on the ground and avoided any collision, but the Plaintiff claimed that he suffered left knee sprain injury as a result because his left foot stepped on the ground too hard.

The Injury

6.The Plaintiff was taken to the Accident and Emergency Department of Kwong Wah Hospital immediately after the accident.  The Plaintiff found his left knee was swollen but the X-ray confirmed no fracture at the left knee.  The Plaintiff was discharged from Kwong Wah on the same day prescribed with antiseptic and granted sick leave from 1^st to 3^rd January 2006.

7.After the expiry of the sick leave on 4^th January 2006, the Plaintiff attended Shun Lee Government Clinic GOPC, United Christian Hospital complaining persistent left knee pain. Tenderness at medial left knee was found on physical examination. The Plaintiff was prescribed with analgesic and granted sick leave from 4^th to 8^th January 2006.

8.On 9^th January 2006 the Plaintiff attended the said Clinic again and was granted further sick leave from that day to 13^th January 2006.  Therefore, the Plaintiff was granted a total of 13 days sick leave.

9.Then from 6^th February to 28^th July 2006, the Plaintiff attended a Chinese bonesetter and received Chinese medicine for 12 sessions.

10.The Plaintiff’s post-accident physical conditions were pleaded in para.3(f) to (i) in his Statement of Damages dated 23^rd April 2009:

“(f) The Plaintiff needed to spend more time carrying out daily activities and could walk or stand for a long periods. When walking up or down stairs, he would experience greater pain on left knee, which persisted for some time before the pain stopped. These discomfort and pain lasted for the first half year after the accident.

(g) The Plaintiff currently experiences tension of the muscles of the left knee. As a result, the Plaintiff experiences reduced and limited mobility of the left leg.

(h) The Plaintiff experiences aggravated pain during rainy weather or when the weather turns cold. When the Plaintiff wakes up from sleep, he would require support in order to keep upright. Occasionally, the Plaintiff’s sleep was disturbed throughout the night due to the pain and discomfort. As a result, his concentration and temper during the day has been affected.

(i) Before the accident, the Plaintiff would spend time with his friends on outdoor activities such as swimming, playing football and running etc. for at least 6 or 7 times a month. However, after the accident, time spent on such activities has been significantly reduced. The Plaintiff’s social life has been hugely affected. ”

11.Before the expiry of the limitation period on 31^st December 2008, the Plaintiff issued a protective writ on 13^th November 2008 and served it on 3^rd April 2009.  On 15^th April 2009, the Defendant made a sanctioned payment of $17,000. Then on 23^rd April 2009, both the Statement of Claim and Statement of Damages were filed and served.

12.On 11^th June 2009 the Defendant increased the sanction payment to $45,000 and eventually the case was settled by the Plaintiff’s filing the Notice of Acceptance of Sanctioned Payment on 8^th July 2009.

The Law

13.Mr. Sakhrani for the Defendant referred me to the legal test as laid down in LAI KI v. B+B CONSTRUCTION CO LTD AND OTHERS [2003]3 HKLRD192 adopted in WONG CHI HO JACKY v. POON YUK SHAN, HCPI 910/2002, unreported and CHEUNG YU TIN ALVIN v. HO HON KA [2006] 2 HKLRD 674, while Mr. Clough for the Plaintiff cited LEGENT CERAMIC LTD v. RAINBOW CHOICE INVESTMENT LTD AND ANOTHER , DCCJ 2434/200 unreported andWONG CHOI FUNG v. FUNG KAI PUBLIC SCHOOL OPERATING AS FUNG KAI CARE AND ATTENTION HOME FOR THE ELDERLY HCPI534/2004 unreported. The above two cases cited by Mr. Clough also adopted the test in LAI KI and WONG CHI HO JACKY.  There is actually no dispute in the relevant test for applying the appropriate scale of costs.

14.The legal test in LAI KI and WONG CHI HO JACKY derived from the principle in HOPKINS v REES & KIRBY LTD [1959] 2 All ER 352 as per Glyn-Jones J,

“I think that the only question for me is: 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 of £400 [exceeding the jurisdictional limit of County Court] excluding any reduction for contributory negligence?”

15.Mr. Justice Seagroatt in LAI KI applied the above test and said in paragraph 12 at p.197H,

“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?”

16.It is also common ground that the court should not decide this issue by looking at the eventual settlement amount as per Deputy High Court Judge Jat, SC (as he then was) in WONG CHI HO JACKY v. POON YUK SHAN, HCPI 910/2002 in paragraph 26,

“Mr Clement, while accepting that the Court must not just 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.”

17.Mr. Sakhrani for the Defendant cited paragraph 28 of the above case WONG CHI HO JACKY to add the test is objective,

“The test, as I understand it, is an objective one, i.e. whether it would be obvious to a reasonable plaintiff or his legal adviser that the case was a District Court rather than High Court case. The subjective intent of the plaintiff and his legal advisers would not normally be relevant.”

18.In light of the above authorities, I agree with Mr. Clough for the Plaintiff that litigation conduct or misconduct are not relevant to the issue as to the appropriate scale, though they may be relevant when it comes to taxation. 

19.Thus I do not think it is relevant to deal with the Defendant’s complaint against Plaintiff’s conduct of litigation here, but I would rather focus on whether it would be obvious to any reasonable legal adviser for the Plaintiff that the case should be commenced at Small Claims Tribunal rather than District Court, having regard to the circumstances prevailing at the time when the writ was issued.

The Claim

20.The summary of the Statement of Damages [A023] was pleaded as follows,

21.It is not in dispute that the Plaintiff in fact had received periodical payments for employees’ compensation in the sum of $8,316.38 for 12 out of 13 days sick leave (excluding the statutory holiday on 1^st January 2006 which the Plaintiff received full wages of that day in any event) [B005]. 

22.Besides, the Plaintiff’s solicitors admitted that MPF was mistakenly included in loss of pre-trial earnings [§18, A101].  As such the Plaintiff in fact has suffered no loss of Pre-trial earnings.

23.As for the special damages, parties do not have serious dispute.

24.In the circumstances, the question is whether there is a reasonable assessment at the material time of the prospect of recovering the aggregate sum of PSLA, loss of earning capacity and special damages less the employees’ compensation of $15,120 [B005] in excess of the Small Claims Tribunal’s jurisdiction of $50,000.

PSLA

25.Mr. Sakhrani for the Defendant referred to the following 4 cases as PSLA comparables:

Case Name		Nature	PSLA Amount (HK$)
(i) Singh Jagdeep v VSC Engineering Products Co Ltd, DCPI391/2005		When the plaintiff was cutting an iron rod with an electric disc cutter machine, the disc broke and hit his left hand, causing mild swelling on dorsal part of left hand, flexion of left ring finger and litter finger decreased without fracture; 16 days of sick leave granted.	$30,000
(ii) Cheung Yu Tin Alvin v Ho Hon Ka, DCPI 853/2004		Collision between a bus and a taxi which the plaintiff is a passenger of the bus and suffered low back pain, with whole person impairment assessed at 1%, and 4 days sick leave granted.	$25,000
(iii) Yip Chun Nam v Chan Kang & Another,    DCPI 183/2002		The 1st defendant punched the plaintiff 3 times on his chest and the 2nd Defendant pulled his necktie during an argument over parking matters; 4 days sick leave granted; the plaintiff found to be a malingerer.	$17,500
(iv) Chan Sau Lan v Chesterton Petty Ltd, HCPI1123/2002		A cleaning worker cleaning floors with a high pressure hose system, the water vacuum cleaner trolley tipped over, striking her on the neck and the back, suffering minor soft tissue injury as a result; surveillance video showed the plaintiff was malingering.	$30,000

26.Mr. Clough for the Plaintiff did not submit any authorities to support the Plaintiff’s proposition of $80,000 PSLA, though Mr. Clough did try to distinguish the above 4 cases on PSLA by pointing out that the injury of the Plaintiff in the present case was more serious than those cases and two of the above cases were malingering.

27.Leaving aside those two malingering cases, the first two cases are quite relevant for consideration of PSLA, in particular the Singh Jagdeep case.  In the absence of other cases for comparison, having compared the above cases with the Plaintiff’s injury and all the circumstances, I find that a reasonable assessment of PSLA at the material time would be around $30,000.

Loss of Earning Capacity

28.Mr. Sakhrani for the Defendant denied any loss of earning capacity suffered by the Plaintiff.  Mr. Sakhrani submitted “there is not one shred of evidence” to suggest such loss. The Plaintiff had even resumed his motorcycle patrol duty 2 weeks afterwards. 

29.Besides, Mr. Sakhrani pointed out that the Plaintiff as a civil servant is not at risk from losing his job and cited LIU CHUN KOW JOE v. LEE SAU WING unrep., HCPI399/2001 in para.76 in support of his argument.  

30.Mr. Sakhrani further submitted that the Plaintiff lacked evidence such as appraisal reports to show that the injury would cause any realistic adverse effect on his promotion prospect, especially having taking into account of a lapse of nearly 3 years’ time from the accident to the issue of writ.

31.Mr. Clough for the Plaintiff on the other hand referred to Smith v Manchester Corp (1974) 17 KIR 1(CA) to submit that this head of damages being an award where the injured plaintiff is back at work but his injuries may put him at risk of losing his job and may suffer financial loss because of his disadvantage in the labour market.

32.When considering this head of damages, the court has to first consider the possibility of the plaintiff losing his job because of the disability.  The risk of losing the job was described as a “real risk” by Scarman LJ in Smith v Manchester Corp as distinct from a speculative or fanciful risk.  In general, evidence is therefore required in order to prove the extent of the risk that the plaintiff will at some future time of his working life lose his job.

33.Mr. Sakhrani attacked the Plaintiff of being lack of evidence to support a real risk of losing the job or affecting promotion prospect. Although Mr. Sakhrani’s argument is very forceful and persuasive, I need to refrain from taking into account of this attractive submission having regard to the judgment of WONG CHI HO JACKY by Deputy High Court Judge Jat, SC.  

34.The defence counsel in that case also criticised the plaintiff for not having filed any evidence to demonstrate that at the relevant time he and his legal advisers considered that there was reasonably prospect of obtaining an award in excess of the District Court jurisdictional limit. 

35.However, Deputy High Court Judge Jat, SC said in paragraph 28 of the above case,

“I am not persuaded that I should take into account the lack of evidence from the plaintiff's side.”

36.Deputy High Court Judge Jat, SC then reiterated the test being an objective one, i.e. whether it would be obvious to a reasonable plaintiff or his legal adviser that the case should be commenced at a lower court rather than a higher court at the material time. The subjective intent of the plaintiff and his legal advisers would normally be irrelevant.

37.Although I disagree $80,000 being a reasonable assessment for loss of earning capacity at time of the issue of the writ, I do not think it would be obvious to any reasonable legal advisers for the Plaintiff that no award will be made under this head having regarding in particular to the injury, the period of sick leave granted, the nature of the police job being physically demanding, and the loss of permanent earning capacity assessed at 1% for the purpose of employees’ compensation. 

38.In the circumstances, I think a modest sum under this head equivalent to about one month of the Plaintiff’s salary, i.e. $21,484 (basic salary and driving allowance) [B013] is a reasonable assessment at the material time.

Conclusion

39.In view of the above, a reasonable assessment of the quantum at the time of issue of the writ would be around: $30,000(PSLA) + $21,484 (loss of earning capacity) + $6,160 (special damages) - $15,120 (EC excluding periodical payments, B023) = $42,524

40.While exaggerated claims are totally unacceptable, assessing the quantum of the claim with over caution or exactitude may well be unfair to the plaintiff.  Therefore, I believe that is the reason behind the words of Mr. Justice Woo V-P in paragraph 31 of CHEUNG YU TIN ALVIN case that

“a certain leeway must be given to the assessment of the quantum of the damages”.

41.In CHEUNG YU TIN ALVIN case, the plaintiff’s award of $27,260 after trial clearly demonstrates that a reasonable assessment of the likely quantum of damages would not be anything close to $50,000. Unlike the above case, the present case settled without a trial and a reasonable assessment of quantum is close to $50,000. 

42.Although this case seems to be a borderline case to commence at District Court, I am not satisfied that it was obvious to a reasonable plaintiff or his legal adviser that this case should have been commenced in the Small Claims Tribunal rather than the District Court, having regard to some degree of leeway given in the assessment of the quantum at the time of the commencement of action.

Orders

43.The Plaintiff’s costs payable by the Defendant in this action shall be taxed on the District Court scale.

44.I make an order nisi that the costs of this application be paid by the Defendant to the Plaintiff, to be taxed on the District Court scale if not agreed.

45.Despite parties’ agreement on certificate for counsel to be given, on reflection I decline to make an order certifying the matter as fit for counsel for the following reasons:

(i) the applicable legal principles are not in dispute and the hearing itself did not involve serious legal argument;

(ii) the legal principles involved are well-settled and not complicated; and

(iii) the settlement sum and even the costs of the whole action being disproportionate to the likely counsel fees involved, thus the attendance by counsel is not in line with the underlying objective of reasonable proportion and procedural economy in the conduct of this summons, pursuant to Order 1A Rule 1(c) of the Rules of the District Court.

Representation:

Mr. Neal Clough, instructed by Messrs. B. Mak & Co. for the Plaintiff

Mr. Ashok K. Sakhrani, instructed by Messrs. Y.T. Chan & Co. for the Defendant