Ng Chi Kwan, Danny Summer and Another v. Yeung Yiu Kwan and Another
Read the full judgment text of HCPI 633/2011 on BabelCite. This High Court CFI judgment was delivered on 30 September 2014.
1. The 1 st plaintiff (“ Ng ”) was/is an artiste singer and sole director and shareholder of the 2 nd plaintiff (“ T PL ”). On 6 December 2008, whilst Ng was driving his private car and overtaking a public light bus (“ PLB ”) driven by the 1 st defendant (“ D1 ”), the PLB swerved into his lane and caused a collision (“ Accident ”). The Accident was caused by the negligence of D1 for which the 2 nd defendant (“ D2 ”) was vicariously liable.
Cited by 4 cases · Cites 5 cases
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HCPI 633/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 633 OF 2011 -------------------------
------------------------- J U D G M E N T ------------------------- I. INTRODUCTION 1.The 1st plaintiff (“Ng”) was/is an artiste singer and sole director and shareholder of the 2nd plaintiff (“TPL”). On 6 December 2008, whilst Ng was driving his private car and overtaking a public light bus (“PLB”) driven by the 1st defendant (“D1”), the PLB swerved into his lane and caused a collision (“Accident”). The Accident was caused by the negligence of D1 for which the 2nd defendant (“D2”) was vicariously liable. 2.On 31 August 2011, Ng and TPL commenced the present action against D1 and D2 (collectively, “Ds”) for damages for personal injuries Ng suffered as a result of the Accident. On 16 September 2011, interlocutory judgment was entered in Ng’s favour for damages to be assessed. 3.According to the Defence filed on 22 September 2011, the Ds denied (a) they owe any duty of care to TPL and/or (b) TPL suffered any loss and damages as a result of the Accident. Alternatively, they averred any loss and damages (which were denied) were not caused by the Ds’ negligence, and not reasonably foreseeable by them. 4.On the last day of trial, Mr Leong SC, counsel for Ng and TPL, applied for leave to amend the Revised Statement of Damages, and I granted leave accordingly. The Amended Revised Statement of Damages (“ARSOD”) was filed on 18 November 2013. 5.Ng gave evidence at trial, and adopted his witness statement dated 19 May 2012 (“Ng WS”). He called Chan Wing Sze Vinci (“Chan”), director of 168 Production and Engineering Services Limited (“168 Agent”), to give evidence, and she adopted her witness statement dated 8 May 2012 (“Chan WS”). No expert medical evidence was adduced at trial. 6.In my view, Chan was not an independent witness. Prior to the Accident, 168 Agent contracted with TPL to organise the “Danny Summer & Friends Let’s Dance Christmas Big Party” concert (“HK Concert”) to be held on 24 December 2008, and according to both Ng and Chan, TPL still owed 168 Agent monies upon cancellation of the HK Concert. 7.In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, the chronology of events, the documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[1] 8.I am unimpressed by Ng and/or Chan. Ng was prone to unreliable exaggeration, especially as to the extent/severity of his injuries, and he was not above making up his case as he went along. Many core aspects of his evidence in relation to the HK Contract and the US Contracts[2] were first elicited under cross-examination or even under re‑examination, and there were inherent inconsistencies within his own evidence and when viewed against other evidence (which observations also applied to Chan’s testimony). I find Ng’s explanations on various important matters unconvincing, and there were clear attempts to embellish his case. I have carefully considered whether certain lapses in evidence might be due to faded memory, but on balance I find Ng was not a credible/reliable witness. 9.Chan’s evidence is likewise unsatisfactory. In my view, her projections of ticket sales and/or budgeted expenses for the HK Concert (had it not been cancelled) were a moving feast that metamorphosed in her written and oral evidence. Significant new assertions were belatedly raised by her under cross-examination. Even Mr Leong SC in his closing submissions attacked certain key aspects of her evidence as being confused and unreliable. When viewed against documentary/other evidence, I find Chan’s rationalisation for her various versions of estimated income/expenditure for the HK Concert inconsistent and unpersuasive. I find her unreliable on the core matters on which she gave evidence. 10.In my view, the overall evidence of Ng and Chan was unsatisfactory. It is unsafe to rely on their evidence in many respects, and except for the matters I accept in the analysis below I reject their evidence on the core matters. II. INJURIES AND TREATMENT (a) 6 December 2008 11.There was no evidence to prove the collision was a violent one. Ng had no head injury or loss of consciousness. The Ng WS claimed Ng (a) felt dizzy and feeble, (b) had headache, dizziness and pain over his right side neck, and (c) felt numbness over his right middle finger and chest. Ng said such symptoms persisted even when he arrived at the Accident and Emergency Department (“AED”) of United Christian Hospital (“UCH”), and he told the doctor at UCH’s AED about them. 12.But the medical notes of UCH’s AED (“UCH Notes”) recorded that at triage assessment Ng complained of “sprained neck”, and upon history-taking and physical examination he complained of right neck sprain with no limb weakness or numbness. There was “tenderness+” at posterior right shoulder but none at cervical spine,[3] and physical examination revealed:
The diagnosis was “sprained ® neck”, and Ng was discharged with prescriptions. No follow up or sick leave was given. 13.Except for sprained right neck, the UCH Notes had no record of the alleged symptoms in paragraph 11 above. Instead of headache and dizziness, the UCH Notes revealed “V°” (commonly understood to mean “no vertigo”). Again, instead of back pain, right arm pain and/or numbness of right middle finger and chest, there were positive findings of no limb weakness/numbness, full power of all four limbs and full range of movement (“ROM”) of right shoulder and neck (despite some tenderness). Had Ng told the doctor about his alleged symptoms, there would have been no sensible reason for the doctor not to record the same and/or to make contrary findings. Clearly, Ng suffered neck sprain, which was his essential complaint, but I find on balance that on 6 December 2008 Ng did not have the claimed symptoms other than those recorded in the UCH Notes. The absence of any sick leave or follow up spoke of the minor nature of his then complaints. (b) 7 December 2008 14.According to the Ng WS, whilst Ng was having dinner the following day, he felt (a) increased pain over his right side neck, (b) increased pain over right wrist, and (c) numbness over his right middle finger. The frequency and severity of the pain/numbness gradually increased and he was unable to even swallow food, so his daughter took him to the AED of Tseung Kwan O Hospital (“TKOH”). 15.Ng under cross-examination claimed for the first time his most significant injury was a severe twist injury to his right arm causing right arm pain, which pain was less prominent than his neck/back pain on the day of the Accident, but worsened the following day to affect his whole right arm, hand and fingers. 16.Ng claimed he could only walk slowly with walking stick, but to avoid the paparazzi/media he did not use a walking stick when he attended TKOH’s AED. His daughter drove him to hospital and supported him. Ng could not remember whether he told the attending doctor Dr Moy Man Cho (“Dr Moy”) he had to use a walking stick, but he believed he had disclosed all his discomforts. 17.According to Dr Moy’s medical report dated 2 January 2009 (“Moy Report”), Ng injured his right side neck and lower chest wall in the Accident with no head injury or loss of consciousness, and he attended UCH’s AED for initial management. Examination findings on 7 December 2008 showed his general condition to be satisfactory. X‑ray of cervical spine, chest and lower ribs showed no bony lesion. The Moy Report noted Ng complained of pain over (a) right side neck associated with numbness over right middle finger and (b) bilateral lower chest wall. But according to the medical notes of TKOH’s AED (“TKOH 7/12 Notes”), at triage assessment Ng complained of “® neck pain+”, “radiation to ® shoulder arm+”, “® knee pain+” and “mild numbness of ® finger”. 18.I accept the attending doctor(s) told Ng he might not feel aches/pains immediately after the Accident and might do so shortly afterwards. On balance, the above recorded complaints were manifestation of mild aches/pains on the day after the Accident, but they were not as severe and/or debilitating as Ng suggested. 19.I do not believe Ng was unable to swallow food. Since he went to TKOH right after dinner, he would not have omitted to tell Dr Moy if that were the case, and if he did so there was no sensible reason for Dr Moy not to record such complaint. 20.Ng did not refer to any knee pain until it was first raised at triage assessment at TKOH’s AED. On balance, I find it to be a mild contusion that did not take long to resolve since there was no mention of knee pain in the medical notes for the follow up at TKOH’s AED on 22 December 2008 (“TKOH 22/12 Notes”) or in attendance notes by chiropractor Dr Alex Lik Chi Shiu (“Dr Shiu”) of Dr Care Chiropractic Wellness Centre (“Shiu Notes”). Significantly, despite Ng’s complaint of right knee pain at TKOH’s AED, it is not understood why he did not report his mobility problem or if he did why it was not recorded or why his lower limbs were not examined. On balance, I find Ng’s assertion of requiring a walking stick for ambulation to be a gross exaggeration, especially when examination findings the day before revealed full power and no weakness of the lower limbs. 21.Dr Moy’s history-taking elicited a complaint of “bilateral lower chest pain” as recorded in the TKOH 7/12 Notes. But in the absence of any chest injury,[5] such condition at best would have been mild, especially when physical examination revealed “no rib cage tenderness” (which suggested that any ache/pain must have been minor) and “AE [air entry] equal both sides”. 22.The TKOH 7/12 Notes revealed Ng complained of right side neck pain with radiation to “right shoulder arm”, but examination of the cervical spine showed no local bony tenderness. There was (a) no upper limb weakness, (b) no muscle spasm,[6] (c) normal right shoulder contour and (d) satisfactory ROM of right shoulder, but no record of wrist pain, twist injury of right arm and/or pain and numbness along the whole right arm/hand. Indeed, examination findings in the Moy Report were unremarkable except for decreased ROM of neck with impairment of rotation to the left side. Although Ng complained of “mild numbness” of right middle finger, Dr Moy clarified Ng was “able to use chopsticks & write”. 23.In my view, the above demonstrated that although Ng had more aches/soreness since the day before, his condition was still quite mild. On balance, I do not believe Ng told Dr Moy he had all the alleged symptoms in paragraphs 14-15 above. I see no reason for Dr Moy to record some and not all Ng’s complaints if made to him. In particular, I disagree that Ng suffered any back injury and/or had any back pain as a result of the Accident. There was no reference to this in the UCH, TKOH 7/12 and TKOH 22/12 Notes at all or in the medical notes by Ruttonjee and Tang Shiu Kin Hospital (“RTSKH”) for the consultation on 27 April 2009 (“RTSKH Notes”). Even though the Shiu Notes referred to “mid back pain” (13 April 2009) and “low back sprain” (6 April 2011), for reasons explained below, I find they were unrelated to the Accident. Indeed, the pre-action demand letter dated 19 July 2010 by Ng’s solicitors to D1 (“Pre-action Letter”) also did not mention any twist injury to whole right arm, mobility problem, wrist pain and/or back pain. 24.According to the Moy Report, the provisional diagnosis was “[traffic] accident, sprain injury to neck”, and analgesic and histamine were prescribed. Follow up was scheduled for 22 December 2008, and Ng was referred for physiotherapy treatment. Ng was given 16 days’ sick leave from 7 to 22 December 2008. (c) After 7 December 2008 25.In the Ng WS, Ng claimed that after discharge from TKOH, he was still weak and feeble, and had on-and-off pain and numbness. He was unable to stand on single foot, and could only walk slowly with a walking stick. His right arm had to be wrapped and bandaged. He had numbness and lacked hot/cold or pain sensation over the right middle finger. 26.Three days later, on/about 10 December 2008, Ng decided to cancel the HK Concert because he claimed that as a result of his injuries he (as lead performer) would not be able to play the guitar or perform on stage. In Ng’s Answer to Interrogatories Without Order filed on 7 July 2012 (“Ng Answer”), he claimed that on 14 December 2008 he gave notice to Sunday Entertainment Concepts Inc (“Sunday”) that he was physically incapable of performing on stage for the two live concert performances on 31 December 2008 and 1 January 2009 (“US Concerts”) at Horseshoe South Indiana Casino (“Horseshoe”) and Reno Peppermill Casino (“Peppermill”) in the United States (“US”) pursuant to an agreement between Ng and Sunday dated 3 September 2008 (“US Agreement”). 27.But despite (a) the severity of his alleged complaints, (b) the imminence of the HK Concert and US Concerts, and (c) the alleged financial and reputational consequences for him upon any cancellation of the HK Concert and/or US Concerts, Ng did not consult any doctor for medical advice as to his likely prognosis in the following week or so, and did not even attempt to seek physiotherapy treatment (as recommended by Dr Moy), chiropractic treatment (which he later sought on his own) or indeed any treatment (other than analgesics) for urgent rehabilitation. 28.Ng could not remember the scheduled appointment for physiotherapy at TKOH pursuant to Dr Moy’s referral. Whilst there appeared to be an appointment on 24 December 2008, it was unclear whether or not there was any earlier appointment, but plainly Ng did not even attempt to ask for one despite the imminence of the HK Concert and US Concerts. Perhaps it would not have mattered because Ng stated unequivocally that he preferred private treatment and would not have attended physiotherapy sessions at TKOH with risk of attention by the paparazzi/media. But this begs the question why he did not try to seek private physiotherapy, chiropractic or even massage treatment for urgent rehabilitation or at least symptom relief. 29.In fact, Ng did not seek any further therapeutic or rehabilitative treatment until he went for chiropractic examination on 20 December 2008[7] and follow up at TKOH’s AED and chiropractic treatment on 22 December 2008.[8] As Mr Sahkrani, counsel for the Ds, submitted, it appeared Ng did nothing to see if he might be better in time for the HK Concert. 30.This raises concern because Ng claimed he expected his neck/back pain[9] to improve but had reservations about his right arm/finger symptoms allegedly caused by the twist injury to his right shoulder/arm (which he thought would affect playing the guitar). One would have thought therefore Ng would be prompted to urgently seek intensive therapeutic/rehabilitative care in view of the upcoming HK Concert, but Ng made no such effort at all. All Ng said was that since it was he (and not the doctor) who would play the guitar and since the numbness of his right arm/hand/ fingers was significant, he considered he could not practise the guitar or perform on stage for the HK Concert. Ng said it transpired that the symptoms of his right arm/hand/fingers were worst during December 2008 to February 2009, and it was only after the New Year that he dared to practise the guitar. 31.I will return to the reasons for cancellation or alleged cancellation of the HK Concert and US Concerts below, but suffice to say here that on balance I am not persuaded Ng’s injuries as a result of the Accident, which in my view were mild, caused or contributed to the cancellation of the HK Concert and/or, according to Ng, the US Concerts. In my view, it cannot be said that the cancellation resulted from the Accident even though Ng’s injuries were publicly put forward as the ostensible reason for the cancellation decision. On balance, I reject Ng’s claim that he suffered a twist injury to his right arm and/or he had numbness over his whole right arm/hand/fingers. Ng’s reticence in seeking medical advice on prognosis and therapeutic/rehabilitative treatment and care between 7 and 20 December 2008 (during which period he decided to cancel the HK Concert and allegedly cancel the US Concerts) is telling. It is also telling that there was positive record of no numbness in the TKOH 22/12 Notes,[10] which in my view reflected the minor nature of the earlier complaint of “mild numbness” that had largely resolved. I find Ng exaggerated his inability to stage the HK Concert. I agree with Mr Sakhrani that during that period rehabilitation was not Ng’s objective. 32.On balance, I reject Ng’s suggestion that after 7 December 2008 he was weak and feeble or he walked slowly with a walking stick. Whilst I accept he would still have some residual aches/soreness in his right shoulder/arm, I find they were not severe or debilitating. Anyway, Ng’s allegation of such serious sequelae from his injuries for the period up to 24 December 2008 does not marry well with his explanations discussed in paragraphs 34-35 below. (d) 20 December 2008 33.On 20 December 2008, Ng visited Dr Shiu for chiropractic examination and x-ray. Dr Shiu was said to be a registered chiropractor, but despite his title there was nothing to show he was/is a registered medical doctor. The Shiu Notes (in transcribed form) noted inter alia that:
Examination findings (in transcribed form) were inter alia:
34.Although Ng claimed he still suffered from the symptoms in paragraph 25 above, he did not tell Dr Shiu he felt weak and feeble. Instead, he said he had such recovery that he no longer required a walking stick when he visited Dr Shiu. It appeared, even on Ng’s case, he was on an improving trend. In fact, the Ng WS stated (a) Ng initially thought the pain/numbness might disappear with rest and analgesics, and the analgesics were effective for “the first couple of weeks”, but (b) his condition worsened “in the following weeks” with increased frequency/severity of the pain/numbness that required him to top up consumption/dosage of analgesics, and (c) he even had fever and vomited occasionally. The Ng WS stated that due to the lack of improvement Ng took advice from friends and consulted Dr Shiu. 35.Again, these assertions by Ng give pause for concern. If the prescribed analgesics were “effective” in the “first couple of weeks” (with deterioration setting in only afterwards) and Ng “initially thought” the pain/numbness would go away, it does not sit well with his quick decisions to cancel the HK Concert on/about 10 December 2008 and, according to him, to cancel the US Concerts on/about 14 December 2008. Ng’s allegation of hopeful belief in the “first couple of weeks” that he was on the mend also does not sit well with the poor picture he painted in evidence of his inability to play the guitar and/or perform on stage due to persistent pain/numbness of the whole right arm/hand/fingers. 36.Although the Shiu Notes referred to fever and headaches, I do not accept Ng had fever and vomited occasionally as a result of the Accident. There was no such complaint made to the doctors at UCH and TKOH (including the follow up at TKOH’s AED on 22 December 2008). Ng’s temperature was taken on 6, 7 and 22 December 2008 at UCH and TKOH, and the medical notes indicated he was afebrile. (e) 22 December 2012 37.The Ng WS claimed Ng returned to TKOH on 22 December 2008 for physiotherapy treatment, but Ng by the Ng Answer confessed that upon perusal of the TKOH 22/12 Notes he did not attend physiotherapy appointment at TKOH at all (contrary to medical advice on 7 and 22 December 2008). Rather, Ng attended follow up at TKOH’s AED on 22 December 2008. 38.In the Ng WS, Ng claimed that on 22 December 2008 he complained to TKOH’s AED of persistent neck and right shoulder pain. According to the TKOH 22/12 Notes, Ng complained of “still neck pain” with “numbness°” (no numbness) and “® [illegible]”, and the diagram depicted tenderness at right shoulder. Examination of the neck revealed that flexion/extension were full, “® lat flx full”[11] but “Llat flx less ~ 10°”,[12] and “rotation to ® full”[13] but “rotation to L less ~ 10°”.[14] The diagnosis was sprain neck and muscle ache. The attending doctor recorded “not yet have physio”, but “consult doctor” and “physio outside”. He prescribed a course of physiotherapy to commence as scheduled on 24 December 2008 with follow up on 5 January 2009, but Ng defaulted both and his case was closed. 39.Interestingly, although Ng was examined by Dr Shiu on 20 December 2008 and by the attending doctor at TKOH two days later on 22 December 2008, the examination findings were quite different. Consistent with earlier examination findings made by UCH and TKOH on 6 and 7 December 2008 respectively, on 22 December 2008 the attending doctor found no numbness, some tenderness at right shoulder, and full ROM of neck except for slight decrease in left flexion/rotation. The examination findings on 7 December 2008 confirmed no muscle spasm and no upper limb weakness, and the TKOH 22/12 Notes did not record any change. Hence, Dr Shiu’s findings of decrease in ROM of neck “in all direction” and muscle spasm at C2-C7 appeared to be inconsistent with the medical picture shown in the UCH and TKOH medical notes/reports, and there was no credible explanation why Ng allegedly made significant improvement in two days without any physiotherapy/chiropractic/other treatment up to 21 December 2008. Given the consistent diagnosis of “right” neck sprain with tenderness at posterior “right” shoulder made on 6, 7 and 22 December 2008, it is also strange for Dr Shiu to find tenderness at “left” cervical and “thoracic” spine.[15] On balance, I prefer and rely on the examination findings by the medical doctors at UCH and TKOH insofar as they differed from those made by Dr Shiu. 40.Ng consulted Dr Shiu for chiropractic treatment on 22, 24 and 31 December 2008 and 1 January 2009. Apart from these four sessions and the follow up at TKOH’s AED on 22 December 2008, there was no evidence that Ng received other medical treatment before he left for the US. (f) Treatment in the US 41.Ng next consulted Dr Shiu on 30 March 2009. Before that he had spent some time in the US as shown by his performance for the New York Sino TV & AM1480 Radio Anniversary on 6 March 2009 (“2009 Concert”). Ng claimed in evidence that during that period he received treatment once in San Francisco from a physician recommended to him by his friend (“1st US Treatment”). But the Ng WS merely stated Ng sought medical treatment from a physician in July 2009 for persistent pain when he visited his parents in San Francisco (“2nd US Treatment”). Ng tried to explain this discrepancy by saying he received both treatments at the same clinic from the same physician. 42.But Ng did not disclose any medical notes/report for the 1st and 2nd US Treatments even though he was required under court order dated 24 February 2014 toproduce medical notes by “medical practitioner(s) who allegedly treated [him] in the US from 6th December 2008 up to date”. Ng claimed he did not keep the relevant receipts and could no longer recall the physician’s name/address, but it transpired he did not even ask his friend who recommended the physician to help him locate the clinic. Such cavalier approach to court-ordered discovery coupled with the discussion in paragraph 48 below suggested that more probable than not the 1st US Treatment was unrelated to the Accident. 43.Ng claimed (a) he was anxious to return to the stage as quickly as possible otherwise “his career would be over”, (b) the pain and numbness of his right arm/hand/fingers were worst during the period up to February 2009, and (c) the upcoming 2009 Concert was on 6 March 2009, so it was strange (and unexplained) why he did not seek continued chiropractic or other treatment in Hong Kong or in the US from January to March 2009. Ng tried to downplay his recovery by saying in evidence he only sang and not played the guitar for the 2009 Concert, but since he ceased treatment in early 2009 and was able to travel to the US and to appear on stage, and given the aforesaid analysis (particularly the TKOH 22/12 Notes that recorded a finding of no numbness), his symptoms then could not have been as disabling as he tried to portray. (g) Visits to Dr Shiu upon return to Hong Kong 44.Upon Ng’s return to Hong Kong he attended Dr Shiu on 30 March 2009, 3 and 13 April 2009 and 9 May 2009. The entry in the Shiu Notes for 13 April 2009 was “mid back pain”, but as explained in paragraph 23 above, I reject Ng’s suggestion that the Accident caused any back pain. (h) RTSKH 45.In the Ng WS, Ng claimed he was depressed over his limited movements in playing the guitar “since it is the joy of [his] life and the heart and soul of [his] career as a rock singer”. According to the Ng Answer, Ng attended RTSKH on 27 April 2009 for depression as a result of injuries suffered in the Accident. The RTSKH Notes recorded as follows:
46.Ng agreed the RTSKH Notes did not refer to depression at all, and were instead focused on his right limb and right big toe condition. I find on balance there was no diagnosable psychiatric illness. Ng then tried to explain why he went to RTSKH, ie on that day he accompanied his friend to RTSKH for his friend’s medical appointment, and although he did not proactively seek treatment for depression, the doctor noticed something wrong about him and told him he had depression. 47.On balance, I find such explanation (which never appeared in the Ng WS or Ng Answer) contrived and unreliable, and is no more than a belated embellishment to explain away the medical notes. If the doctor were so concerned as to raise the matter of depression with Ng and gave him a formal consultation right on the spot,[16] the RTSKH Notes strangely did not refer to any diagnosis, management or referral for Ng’s depression. 48.Ng admitted at that time he had right toe pain for some time. Ng agreed he might have mentioned about consulting a physician in San Francisco when he chatted with the RTSKH doctor. In my view, the fact that Ng mentioned to the doctor at RTSKH he had consulted a physician in San Francisco (presumably before 27 April 2009) but did not refer to such consultation in the Ng WS or Ng Answer suggested it was unrelated to the Accident, whether it be for right toe pain or otherwise. Such conclusion and the overall mildness of Ng’s condition following the Accident (from which he must have substantially recovered) also rendered it doubtful whether the 2nd US Treatment was related to the Accident. (i) 6 April 2011 49.The entries in the Shiu Notes for Ng’s visit on 6 and 7 April 2011 were “low back sprain” and “LBP sprain for 3 days” respectively. Ng insisted that such “low back pain/sprain” referred to back sprain caused by the Accident. I reject such allegation since the Shiu Notes clearly stated the low back sprain was “for 3 days”. As explained in paragraph 23 above, the Accident did not result in any back injury/pain, and I find on balance the chiropractic treatment in April 2011 was unrelated to the Accident. (j) Current condition 50.The Ng WS stated it was not until after “1½ years of treatment” that Ng’s pain/symptoms were relieved to certain extent and his physical condition improved. Ng claimed there was continued treatment for his right hand/wrist, but he did not disclose the particulars of such treatment or the corresponding medical notes. Indeed, there was no evidence of any particular medical treatment after the 2nd US Treatment in July 2009, but as explained in paragraph 48 above it is doubtful whether it was related to the Accident. 51.Ng claimed that whilst his neck/wrist pain was substantially reduced, he still experienced numbness of his right middle finger. He said “[he has] difficulty in playing guitar and [his] right finger is not as flexible and cannot make sudden and big movements as before which made [him] unable to perform on stage. At this stage, [his] physical strength is much weakened when compared to before the [Accident]. Now [he] can only carry weight of about 1 to 2 kg. [He has] poor stamina and would breathe deeply after walking for some distance or quicker pace.” Ng claimed such litany of disabilities reflected his condition in May 2012, and also at the time of trial (but less serious than before). But he also said his present claim was focused on his disabilities/loss in the 2‑3 months after the Accident, and he would not claim damages for symptoms/disabilities in 2013 due to possible changes to his physical condition as a result of aging. 52.But curiously, there were no complaints of reduced physical strength and stamina in the UCH, TKOD 7/12 and TKOH 22/12 Notes when the symptoms would have been more acute. Indeed, there were no such complaints even in the Pre-action Letter. I find such complaints to be an exaggeration, and likewise little weight can be placed on Ng’s assertion that after 1½ years of treatment there was still numbness of the right middle finger that caused difficulty in playing the guitar and/or performing on stage. I note there was positive finding of no numbness but no evidence of further complaint in relation to the right middle finger in the TKOH 22/12 Notes. 53.Even more curiously, the Ng WS claimed that after the Accident (a) Ng stopped working for about three months during which time he lived off his previous income, (b) he then worked for 3-4 hours a day initially which gradually increased to about 6-7 hours, and (c) he only had 2-3 performances a year and one LP released in 2010.[17] Ng also explained that “[he] would feel dizzy and unease after working for 6 to 7 hours. [His] working efficiency was very low as the back pain will emerge and increase after long hours working. As a result of the aforesaid, [he] had to turn down some of [the performing jobs] since the [Accident]. [He is] now earning only about one-third as [he] used to”. 54.From the above, even though Ng seemed to complain of severe right arm and right finger pain, his suggestion of reduced work capacity appeared to be focused on dizziness, unease and back pain. However, I have found he did not suffer from dizziness, depression or back pain as a result of the Accident. Indeed, Ng agreed in evidence that aging might have contributed to his back pain. I find Ng to be an unreliable complainant. 55.In fact, Ng was able to return to public performance for the 2009 Concert and for a two-hour “Danny Summer & Friends 2010 Band Evolution Concert” as host and lead/main performer at the Hong Kong Coliseum on 13 May 2010 (“2010 Concert”). Ng claimed he mainly sang songs and played the guitar for an hour or so for the 2010 Concert, but he admitted to practising playing the guitar at home prior to the concert. Although he said his right hand was not as good as before (but the audience might not notice the difference) and there was tightness in his right forearm when he strummed the 16th notes, he agreed there was improvement as he practised and the pain was not so serious to prevent him from performing at the 2010 Concert. 56.The Ng WS asserted Ng’s doctors advised him that his symptoms/disabilities would be permanent, and further improvement was not likely, so he should not expect to return to his pre-Accident condition and instead should focus on maintaining (and preventing deterioration of) his present condition. Ng vaguely explained in evidence that these doctors would be Dr Shiu or other western/Chinese medical practitioners who chatted with him in the past several years but who were not involved in the present action. Again, no corresponding medical evidence was adduced. 57.I note that despite Ng’s claim of continued treatment and permanent disabilities that affected his ability to play the guitar and his overall well-being years after the Accident, there is complete paucity of supporting medical evidence. He alleged there was no need to make such disclosure since he was not claiming for such loss. But that is incorrect because he sought damages for pain, suffering and loss of amenities (“PSLA”) which have to be assessed down to trial. Such excuse is unconvincing when he must have been aware under legal advice of his obligations to make discovery of relevant documents. 58.In the circumstances, I am not persuaded by Ng’s assertions as to the extent and severity of his current disabilities, which I find to be exaggerated and unreliable. This conclusion is also fuelled by the overall unreliability of his evidence on other matters discussed below. On balance, I find his symptoms/condition after the Accident to be mild. He had some muscle aches and soreness associated with right neck sprain with mild decrease of ROM of neck on rotation and lateral flexion to the left. I also accept there was tenderness at posterior right shoulder associated with some radiation down right shoulder/arm and he did complain of mild numbness of right middle finger, but on balance I find these aches and soreness, mainly over the neck and right shoulder, had no lasting disability, and the mild radiation to “right shoulder arm” and/or mild right finger numbness also made effective recovery. III. SICK LEAVE 59.Ng was granted 28 days’ sick leave from 7 December 2008 to 4 January 2009, which covered the period of the HK Concert and US Concerts. Mr Leong SC submitted this fully justified the cancellation of such concerts. 60.In Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd,[18] Le Pichon JA said as follows:
61.When Ng made the cancellation decision under the currency of the first sick leave certificate, such sick leave certificate specified that his sick leave was due to expire on 22 December 2008 and he would be fit to resume duty on 23 December 2008 (ie the day before the HK Concert). The second sick leave certificate was issued well after Ng made his cancellation decision. 62.Ng attended follow up at TKOH’s AED on 22 December 2008. By then, (a) he had already made the cancellation decision, (b) he had consulted Dr Shiu for chiropractic examination, (c) Dr Shiu had not issued (and there was no evidence that he could have issued) any sick leave certificate, (d) he had no intention to attend physiotherapy treatment at TKOH, and (e) he claimed that upon expiry of the initial sick leave period he was entitled to return for follow up and further sick leave. In the circumstances, I find it more probable than not Ng’s return to TKOH’s AED on 22 December 2008 was largely motivated by a wish to obtain further sick leave to cover the period of the HK Concert and/or US Concerts rather than a desire to seek therapeutic/rehabilitative care. 63.But even if the sick leave certificates were relevant, they must be evaluated in light of all other evidence (including the treatment medical evidence and witness evidence by Ng and Chan) in deciding whether the cancellation of the HK Concert and (according to Ng) the US Concerts was because Ng was unable to play the guitar and/or perform on stage as a result of his injuries from the Accident. I am not bound by the mere issue of such sick leave certificates, especially in view of the subjective nature of Ng’s complaints of aches/pains/numbness. Whilst I will return to the reasons for the cancellation decision below, the above analysis plainly suggested that Ng exaggerated his symptoms/disabilities that formed the underlying premise for the sick leave certificates. IV. HK CONCERT 64.Ng claimed that as a result of his injuries caused by the Accident, he could not play the guitar and/or perform on stage, so he had to cancel the HK Concert. He therefore claimed compensation for (a) wasted expenses for the HK Concert, and (b) loss of chance to promote/advance his career and/or to enhance his reputation. The Ds denied the HK Concert was cancelled due to such injuries. (a) Ng’s career in entertainment industry 65.Ng was/is a rock singer, songwriter and guitarist since the late 1960s. He claimed to be the “rock’n’roll godfather of Hong Kong”, and he gave detailed particulars of his career in the music and entertainment industry in the Ng WS. In 2009, he performed at the 2009 Concert and participated in the Red Concert for Chinese national day organised by HK/DAB. In 2010-2011, his work schedule was as follows:
(b) HK Concert 66.The HK Concert was organised by 168 Agent, which Chan incorporated in 2007 for producing, organising and investing in musical/ other entertainment events. Ng claimed Chan was then new to the business, but she disagreed and said she previously worked as project coordinator for five years for a project/event company AHM Engineering Co, Ltd (“AHM”) whose managing director is her father. 168 Agent had not organised any concert for Ng before the HK Concert. 67.In 2008, Chan’s father introduced Ng to Chan, and after several meetings 168 Agent and TPL made an agreement dated 13 November 2008 (“HK Agreement”) whereby TPL agreed to engage 168 Agent to organise the HK Concert:
68.Although the ARSOD averred Ng/TPL “suffered loss by reimbursing or liability to reimburse [168 Agent]” for wasted expenses caused by cancellation of the HK Concert, it transpired that so far TPL had not made any reimbursement to 168 Agent, and 168 Agent had not made any formal demand against them. Ng claimed that ultimately he (through TPL) would be liable for wasted expenses under the HK Agreement. (c) Cancellation of the HK Concert 69.Although Ng and Chan referred to 10, 11, 14 and/or 16 December 2008 variously as the date for cancellation of the HK Concert, I find on balance (a) Ng made up his mind to cancel the HK Concert and so told Chan on 10 December 2008, and (b) Chan told Hongkong International Trade & Exhibition Centre (licensor for Star Hall, “HITEC”) and ticket sales stopped on the same day as shown by HITEC’s Settlement Report as at 10 December 2008 (“Settlement Report”).[19] This was followed by public advertisement of the cancellation and refund of tickets. (d) Parties’ stance 70.Mr Leong SC submitted that Ng/TPL fairly limited their claim to immediate loss arising from cancellation of the HK Concert. The Ds disagreed, and argued the treatment medical evidence suggested Ng’s minor injuries would not have affected his ability to perform on stage on 24 December 2008. Mr Sakhrani submitted that Ng’s claim was inconsistent/unreliable, and the sick leave certificates did not explain the cancellation, especially when Ng never had physiotherapy/ chiropractic/massage treatment prior to such cancellation. The Ds claimed Ng/TPL failed to prove such cancellation was the result of the Accident, and instead the only reasonable inference was that the poor ticket sales caused or contributed to the cancellation decision, and the Accident was only a convenient excuse to cancel the HK Concert for avoiding the losses that would have been incurred had the HK Concert gone ahead. Alternatively, the Ds claimed Ng/TPL failed to prove the real reason for cancelling the HK Concert, which contention, Mr Sakhrani argued, was supported by Ng’s mendacity in relation to the alleged cancellation of the US Concerts.[20] 71.The Ds further claimed the HK Concert would have been unprofitable and Ng/TPL would have lost money in any case:
Further or alternatively, the Ds denied Ng/TPL would have been able to boost gross total ticket sales from HK$140,000 to about HK$300,000 as alleged. 72.Mr Leong SC submitted that since Ng/TPL only claimed for wasted expenditure and not loss of profits, whether or not they would have incurred any loss had the HK Concert gone ahead was neither here nor there, and the Ds were not entitled to raise the above defence. (e) Actual ticket sales for HK Concert 73.According to the Settlement Report, from 11 November 2008 (when the tickets went on sale) to 10 December 2008, 624 tickets were issued of which 462 were public sales tickets and 162 were complimentary tickets. The gross ticket sales income for the 462 public sales tickets was HK$140,000:
But discounting the 49 tickets[23] taken away by 168 Agent, the net revenue for 462 – 49 = 413 tickets was HK$140,000 – HK$20,420 = HK$119,580.[24] This meant that in the first month of ticket sales with 14 days remaining, the value of actual ticket sales was only 9.32% of the value of total possible sales (ie HK$119,580 ÷ HK$1,282,400),[25] which did not compare well with the bulk of ticket sales achieved for the 2010 Concert in the first three weeks from 30 March to 20 April 2010, ie 2,199 public sales tickets out of 4,598 total available tickets (47.83%) were sold, or to put it in another way, public sales income of HK$519,880 being 34.91% of total possible ticket sales income of HK$1,489,030 had been achieved.[26] The above table/breakdown also showed that ticket sales for the HK$480 and HK$380 price categories had been sluggish. 63.03% and 23.59% (ie a total of 86.62%) of all 3,332 tickets were respectively allotted for the HK$480 and HK$380 price categories, but only 4% and 16% of the respective allotted tickets were sold by 10 December 2008. 74.At the time of the cancellation of the HK Concert, net loss from ticket sales was HK$16,156 being HK$140,000 (total ticket sales income) less HK$20,420 (49 unpaid tickets taken away by 168 Agent), HK$8,243 (ticketing charges) and HK$127,493 (ticketing charges for refund tickets). 75.I now turn to the projected ticket sales and estimated expenses of the HK Concert had it gone ahead. But as seen below, the evidence of Ng and Chan in these respects was a moving feast, which shifted uneasily over the course of their evidence, and which amply demonstrated the HK Concert would have been unprofitable due to poor ticket sales and substantial expenses. (f) Budgets 76.Chan said (and Ng agreed) there were budgets with anticipated revenue and expenses for her meetings with Ng. But Ng claimed that at such meetings he mainly discussed stage and guest band matters, and there was no particular discussion on the commerciality of such budgets because 168 Agent would take care of that. Ng thought there was no need (and he never tried) to retrieve/disclose such pre‑cancellation budgets, and Mr Sakhrani criticised such failure as a questionable attempt to withhold relevant information. (g) P/L Budget 77.Although the P/L Budget appeared to have been prepared after cancellation of the HK Concert since it contained items of post‑cancellation expenses, Chan revealed under cross-examination that 168 Agent prepared the bulk of the P/L Budget (ie breakdown of expenses in the total sum of HK$761,385 and breakdown of income in the total sum of HK$1,282,400) before 10 December 2008 (“Pre-existing Budget”), and the rest of such budget (ie post-cancellation expenses and particulars of reimbursement payable to 168 Agent) was added after cancellation. 78.Chan explained that the Pre-existing Budget was premised on full capacity (ie 3,000 tickets sold and 332 complimentary tickets):
I note there are errors in above breakdown. According to the Sale by Price Category Report, the least expensive price category of tickets for the HK Concert was HK$200 and not HK$280. Hence, the maximum possible sales for this price category would be HK$200 x 446 tickets = HK$89,200, which meant the “box office total” and “total income” respectively would be reduced to HK$1,395,880 and HK$1,246,720. This immediately raised questions as to the P/L (Pre-existing) Budget and the projected profit. However, since these matters were not canvassed with Chan when she gave evidence, I proceed on the basis of the breakdown as set out in the Pre-existing Budget. On such basis, upon budgeted expenditure of HK$761,385 on full capacity basis, the Pre-existing Budget projected a profit of HK$1,282,400 – HK$761,385 = HK$521,015. Chan said the Pre-existing Budget was prepared for showing Ng the maximum possible income, but Ng claimed he had no idea when the P/L Budget was prepared. 79.Chan said no profit/loss budget based on estimated (not full capacity) ticket sales was prepared. She admitted there were discussions during meetings with Ng on 70-80% capacity;[27] yet Ng never mentioned in evidence any discussion on such basis. But Chan at the same time claimed Ng expressed confidence that all tickets (except complimentary tickets) would be sold, and Ng himself gave evidence that (a) it was absolutely possible to sell all public sales tickets even though only 413 tickets were sold in the first month and (b) estimated profit of HK$521,015 based on full capacity was realistic even though the first month of ticket sales produced income of about HK$140,000 (or more precisely, HK$119,580) only. 80.Ng said he was confident because the Star Hall venue only seated 3,332,[28] and it would not have been difficult to achieve gross ticket sales of HK$1,282,400. But, as seen below, he did not provide calculation or reliable basis to show how about 2,500 public sales tickets could have been sold in two weeks. Likewise, as seen below, Chan’s assertion of full capacity was also unreliable and, indeed, half-hearted since the tenor of her evidence was that not all tickets would have been sold, eg discussions of 70-80% capacity in her meetings with Ng, 60-70% capacity for the Costs Budget,[29] 50% capacity for Exhibit P1,[30] and estimate in the Chan WS of a late jump in ticket sales by 50% to about HK$300,000.[31] I find on balance the projected revenue in the P/L (or Pre-existing) Budget on full capacity basis only provided a yardstick for measuring estimated ticket sales, but it was untenable to suggest that had the HK Concert gone ahead it would have sold 3,000 tickets on full capacity basis. (h) Costs Budget 81.Chan’s Answer to Interrogatories Without Order filed on 7 July 2012 (“Chan Answer”) asserted that had the HK Concert gone ahead total budgeted expenses would have been HK$671,140 based on a “Budget for Concerts” prepared by 168 Agent (“Costs Budget”). The Pre-existing Budget put the total budgeted expenses at HK$761,385. Why was there a difference of HK$90,245? 82.Chan claimed she gave the Costs Budget pursuant to Ds’ solicitors’ request for a cost estimate, and explained under cross- examination that “at that time [she] had in mind that definitely not all tickets would sell out so [she] based on the assumption that it was 60 to 70 per cent capacity”. However, there was further uncertainty. When asked as to whether as at 10 December 2008 she estimated there would have been 60-70% capacity had the HK Concert gone ahead, Chan said “[not] yet know. …… We all along expected a full house before we knew the concert would be cancelled”. 83.The relevant interrogatory by the Ds that elicited the Costs Budget was “[what] was the estimate of the total costs of the [HK Concert] if it had not been called off with full details” (my emphasis). Despite the request for “full details” of her estimate, Chan never mentioned before trial she had in mind 60-70% capacity, which contradicted the Pre-existing Budget based on full capacity and her claim in the Chan WS that ticket sales would have been boosted up to about HK$300,000 had the HK Concert gone ahead. Anyway, the mere fact Chan presented the Costs Budget in answer to the Ds’ interrogatory already demonstrated that expected ticket sales on full capacity basis was untenable. (i) Comparison between the P/L (or Pre-existing) and Costs Budgets 84.Stage production The P/L (or Pre-existing) Budget gave HK$70,000 for stage production (ie a stage and elevated platform), but the Costs Budget suggested HK$50,000. Chan said the quoted price of HK$70,000 was reasonable, but since the Costs Budget was made on the basis of 60-70% capacity, she tried to cut down on expenses to increase profit or reduce loss by removing the elevated platform (which she understood to cost about HK$20,000 from her past experience). 85.Alcoholic beverages The promotion posters for the HK Concert touted free alcoholic beverages. The P/L (or Pre-existing) Budget budgeted HK$49,980 for this item, which item was removed from the Costs Budget. Chan assumed that not all tickets would have been sold, and to cut down on expenses she hoped to get HITEC to sponsor alcoholic drinks for free. 86.Ticketing charges Chan also cut down ticketing charges of HK$30,000 in the P/L (or Pre-existing) Budget to HK$20,000 in the Costs Budget[32] on the basis of 60-70% capacity, but since she would not know the ratio between public sales and complimentary tickets, she made a global reduction by HK$10,000. 87.Such explanations were elicited in Chan’s evidence but not in the Chan WS or Chan Answer. There was also no supporting evidence to show, say, an elevated platform would cost HK$20,000 or HITEC had a practice of sponsoring events held on its premises. Significantly, Chan did not explain why she used 60-70% capacity for the Costs Budget when (a) Chan/Ng claimed confidence before the cancellation that public sales tickets would be sold out, (b) there was discussion of 70-80% capacity in the meetings between Chan and Ng, (c) the P/L (or Pre-existing) Budget was prepared on the basis of full capacity, (d) the estimate in Exhibit P1[33] was made on the basis of 50% capacity, and (e) the Chan WS estimated a late jump in ticket sales by 50% to about HK$300,000. I am therefore driven to the conclusion there was no credible support for the cost estimate in the Costs Budget based on 60-70% capacity, which I find artificial, and which lent weight to Mr Sakhrani’s suggestion that Chan dropped the estimated expenses to put a gloss on losses from poor ticket sales. (j) HK$300,000 ticket sales income 88.Total ticket sales income up to 10 December 2008 was HK$140,000 (or to be precise, HK$119,580). According to the Chan WS, had the HK Concert not been called off, Chan estimated from “her personal experience” total ticket sales would be about HK$300,000 “as the last eight days before the show would boost the ticket sales for 50%”. 89.As at 10 December 2008, 413 public sales tickets (ie 13.76% out of 3,000 total available tickets for sale under the P/L (or Pre-existing) Budget) had been sold for HK$119,580. Even if one included the 49 tickets taken away by 168 Agent,[34] 462 “sold” public sale tickets amounted to 15.40% of total available tickets for sale that grossed ticket sales income of HK$140,000. Assuming a 50% jump in ticket sales in the two weeks before the HK Concert, ticket sales would have increased to about 23.10% (which Mr Sakhrani rounded up to 25%). The remaining 300 complimentary tickets under the P/L (or Pre-existing) Budget would have increased occupancy (not sales) to 35%. Ng confirmed in evidence that 35% occupancy would have been disappointing and would hardly have promoted his career or provided momentum for work in the new year. 90.Chan’s evidence as to how she derived the estimated late 50% jump in ticket sales to about HK$300,000 was uncertain:
91.In light of Chan’s evidence, it is perhaps appropriate to now turn to the 2010 Concert. (k) 2010 Concert 92.The Total Sales Summary for the 2010 Concert (“2010 Summary”), which Ng claimed he only saw for the first time at trial, showed total public sales income of HK$751,510 of which the vast majority (ie HK$519,880 or 69.18%) was achieved in the first three weeks from 30 March to 20 April 2010. Public sales of tickets from 21 April to 6 May 2010 grossed HK$168,900. There were no sales on 7‑9 May 2010, so total public sales up to 9 May 2010 remained at HK$688,870. The 2010 Summary revealed that in the final 15 days from 30 April to 14 May 2010,[37] total public sales of 388 tickets generated 17.10% of total public sales income (ie HK$128,530). Chan was constrained to agree that the vast majority of public sales for the 2010 Concert were achieved in the initial 20 days. 93.If the 2010 Concert was a reference point (as Chan claimed), then far from suggesting there would have been a late jump in ticket sales from HK$140,000 (or HK$119,580) to about HK$300,000 for the HK Concert, the percentage of public sales for the HK Concert (had it not been cancelled) from the time of the Accident onwards would have progressively dropped since ticket sales in the initial period would have been the greatest. Further, HK$300,000 amounted to only 23.39% (ie less than 35%) of total possible sales of HK$1,282,400. 94.Even though Chan was Ng’s witness, Ng’s counsel Mr Leong SC in his closing submissions heavily attacked Chan’s estimate of a late jump in sales by 50% to about HK$300,000 as a “gross under-estimate” or “confused personal estimate” because she laboured under unjustifiable/unreasonable constraint and misconception that she had to refer to statistics from the 2010 Concert as proof in support of her estimate. Mr Leong SC asked me to turn to Ng’s evidence. 95.In face of the aforesaid difficulties, Ng tried to downplay the relevance of the 2010 Concert as a ready comparable by saying that although Ng never said so in the Ng WS, Ng Answer and/or ARSOD, the HK Concert (which would have been held at Star Hall with 3,332 seats) and the 2010 Concert (which was held at the Hong Kong Coliseum with 7,549 seats)[38] were different in that the former was a joyful/festive rockabilly Christmas party with “free-standing” tickets for dancing and enjoying alcoholic drinks whilst listening to music, and the latter was an ordinary concert with the audience being seated. 96.Ng claimed there would have been a rush in ticket sales for the HK Concert in the final period, and “…… [they] had experienced something like this before”. He said he had done a similar “Rockabilly Party live concert – [HITEC]” in 2002 (“2002 Concert”), and “by his own calculation” selling 2,000-3,000 tickets would not have been a problem. Ng disagreed with Chan’s assumption of a late jump in ticket sales to about HK$300,000, and said “it would not happen this way” and her calculations must be wrong. But Ng did not elaborate on “his own calculations” except to vaguely refer to his “confidence” and “fan base”, and in fact he admitted he did not do any actual calculations, which matters he left to 168 Agent. More importantly, before trial Ng never gave the 2002 Concert as a reference point, never disclosed any document/statistics on ticket sales for the 2002 Concert (or indeed any of his other concerts in 2004 and 2007) to make good his point about the hoped for jump in ticket sales at the final stage and the alleged difference between the HK and 2010 Concerts, and never explained why he did not do so when the Ds in their Answer already suggested a late jump in ticket sales would have been futile. Instead, the only available supporting evidence, ie the statistics in the 2010 Summary, did not support the contention that ticket sales would have made a late jump in the last two weeks before the HK Concert. 97.Chan also tried to explain away the statistics by saying the 2010 Concert held at the Hong Kong Coliseum was more significant in terms of size, budget and monies spent on marketing/promotion.[39] But she was constrained to agree the overall pull of the 2010 Concert for the general public (which would be relevant to public sales of tickets) was greater than the HK Concert due to greater investment in publicity/promotion such that the general public was more likely to be aware of the concert. Indeed, Ng admitted the 2010 Concert was a more extravagant production with more money spent on publicity and promotion, but he shied away from the effect of this by saying promotion matters were 168 Agent’s and not his concern. 98.Chan in evidence also tried to distinguish the 2010 Concert which she herself put forward for comparison in the Chan WS. She claimed the HK Concert was a Christmas party with more tickets expected to be sold in the final stage, and it was quite different from an ordinary concert with concert-goers habitually buying tickets when sales commenced. Chan claimed that (a) Ng’s more mature audience would not have early plans for Christmas so they would have bought tickets closer to the HK Concert, and (b) there would be walk-in audience who had no other plans for Christmas eve. On balance, I do not accept such explanations. Chan had never organised any other concert for Ng, and she did not say she had organised any rockabilly concert for Ng or any other artiste/singer. She also did not explain the factual basis for the broad generalities and bare opinion about the pattern of consumer behaviour and/or ticket purchase by a more mature audience. 99.I also do not accept Chan’s explanation that she used the 2010 Concert as a reference point merely because she thought she had to give proof for her estimate. Chan knew the purpose of the Chan WS was to inter alia explain what she thought the ticket sales would have been (had the HK Concert gone ahead) according to her knowledge of matters relevant to or affecting such projection, and she was free to spell out the difference between the HK and 2010 Concerts had it been relevant. I reject her feeble excuse that she did not know how to give her witness statement for the first time. After all, she stated in the Chan WS that she gave her estimate “from [her] personal experience”. If, as Chan claimed, she had done some calculation of estimated ticket sales similar to Exhibit P1[40] and if it was different from an estimate based on the adoption of the 2010 Concert as a reference point, it was strange for her to put aside her “personal” calculation and instead rely on what she said at trial to be an inappropriate comparable and then verify her estimate by statement of truth. 100.I find on balance that Ng’s and Chan’s explanations about the alleged differences between the HK and 2010 Concerts to be unreliable afterthoughts or belated embellishments in an unconvincing attempt to downplay the significance of the statistics of the 2010 Concert, which by the time they gave evidence they must have recognised as being unhelpful to Ng’s case, and which lent weight to the suggestion that the HK Concert would in all probability have been an unprofitable failure. (l) Exhibit P1 101.Under cross-examination, Chan came up with a new estimate of projected sales/income if the HK Concert had gone ahead (“Exhibit P1”):
102.According to the Sale by Price Category Report for the period from November to December 2008, the HK Concert offered tickets in three price categories, ie HK$480, HK$380 and HK$200. Chan explained the HK$280 price category in Exhibit P1 was the average ticket price for the HK$380 and HK$200 price categories. 168 Agent would have given 20% discount for the HK480 price category tickets as promotion push for sale to banks,[41] so such tickets would have become HK$384 tickets. Distributor gangs[42] would have sold the HK$480 tickets at half price (ie HK$240). So in all, Chan estimated a further 700 tickets from the HK$480 price category would have been sold in the last two weeks before the HK Concert.[43] Further, Exhibit P1 estimated 50% capacity total ticket sales would have grossed ticket sales income of HK$402,800, which was more than her earlier estimate of about HK$300,000, but still less than her earlier assumptions of 60-70%, 70-80% or full capacity. 103.Chan agreed she had never put forward the estimate in Exhibit P1 (which came to light after Ng gave evidence) before trial, and there was no evidence that Ng ever knew that Chan would say ticket sales would have reached HK$402,800 or that HK$300,000 was her conservative estimate. But more importantly, the estimate in Exhibit P1 was inconsistent with Chan’s earlier estimate that ticket sales would have made a late 50% jump to HK$300,000. 104.Chan claimed she came to the estimate in Exhibit P1 based on 50% ticket sales that stemmed from (a) her assessment that the HK Concert would have attracted 2,000 concert-goers (1,500 paying tickets and 500 complimentary tickets) being 40-50% of the audience for the 2010 Concert which had a bigger budget for promotion, (b) her experience from various concerts she organised in recent years, and (c) her knowledge from selling tickets to banks and via distributor gangs. 105.On balance, I reject Chan’s evidence in relation to Exhibit P1 which I find to be a belated and ineffective attempt to salvage her reliance on the 2010 Concert as a reference point that did not aid Ng’s case. She had not explained why she chose to calculate ticket sales income on the basis of 50% ticket sales (based on nothing more than a broad comparison with the bigger budget for promotion for the 2010 Concert) and then to calculate expenses in the Costs Budget on 60-70% capacity. Further, no particulars or statistics in respect of Chan’s experience with other concerts were disclosed. The evidence by Chan and Ng in these respects gave a strong flavour that they were making up their explanations as they went along. I find their explanations self‑contradictory and unreliable. (m) Promotion and publicity after 10 December 2008 106.Chan confirmed the monies for marketing and promotion in the P/L (or Pre-existing) Budget had been spent before the cancellation. But the Chan Answer stated that “[as] usual practice, in order to boost the ticket sales, we will have promotions 1 or 2 weeks before show day, eg 50% off of regular price and/or 30% off to specific group of people or corporate price, in order to try to sell out as many tickets as possible and this is usually effective ……” Chan claimed in evidence that no additional monies would be required for further marketing because discounted tickets would be sold via distributor gangs and to corporations (eg banks) for product promotion or staff welfare. But apart from Chan’s bare assertion, there were no objective evidence/statistics drawn from her own experience of significant jump in ticket sales at the final stage via distributor gangs or to corporations. The dwindling sales of the 2010 Concert statistics in the final period suggested otherwise. Ng also claimed he relied on promotion to his friends and fans at a later stage to boost ticket sales, but there was no evidence that he did anything to promote ticket sales amongst his friends/contacts when there was just two more weeks to go and ticket sales were dismal in the first month. 107.Whilst I accept on balance further marketing push would have been required to increase ticket sales in the two weeks before the HK Concert, I doubt whether they would be for free. It must be borne in mind that even with funded publicity only 413 tickets were sold in the first month, and Chan’s estimate of an aggressive push to 50%, 60-70%, 70-80% or even full capacity ticket sales in the remaining two weeks based on gratuitous publicity efforts appeared unlikely. But irrespective whether such further promotion and publicity would have to be paid for or not, on balance I am convinced they would not have resulted in any significant jump in ticket sales. (n) Projected loss and reasons for cancellation 108.Ng did not dispute that HK$761,385 in the P/L (or Pre-existing) Budget was a genuine estimate of the expenses of the HK Concert had it gone ahead (although this was later contradicted by Chan who estimated expenses of HK$671,140 on the basis of 60-70% capacity in the Costs Budget). 109.I have found the suggestion of full capacity ticket sales for 3,000 tickets with face value (and 332 complimentary tickets) to be untenable, and it did not sit well with the Costs Budget (60-70% capacity), Exhibit P1 (50% ticket sales), meeting discussions (70-80% capacity), and Chan’s estimate of a late jump in ticket sales by 50% to about HK$300,000.[44] I bear in mind Ng’s confession that he was not bothered with budgets, and that he left such matter to 168 Agent (as reflected in the fact that he did not really touch upon such matters in the Ng WS and/or Ng Answer). But Chan’s estimates were a moving feast that was long on mere assertions and short on supporting evidence. In my view, Ng’s whole case on estimated ticket sales for the HK Concert is riddled with unreliable uncertainties and contradictions. 110.The hard reality was that only 413 tickets were sold in the one-month period from 11 November to 10 December 2008, which in my view reflected quite poor and disappointing sales. I am not persuaded that any promotion effort after 10 December 2008, whether free of charge or otherwise (although I am inclined to believe it would be at cost), would have sold another 1,000 (Exhibit P1) or 2,500 (full house capacity) tickets in two weeks. The only objective reference Ng/TPL produced (and Chan adopted) was the 2010 Summary. It showed that extra ticket sales income from the 2010 Concert in the last 12 days was about HK$100,000 odd, but overall ticket sales in fact fell rather than jumped in the final period. 111.In the absence of any information/statistics about the 2002 Concert and/or Ng’s other concerts in 2004 and 2007, on balance I reject (a) Ng’s/Chan’s attempts to distinguish the 2010 Concert from the HK Concert and/or (b) their suggestion that the difference over the concert themes in respect of the HK and 2010 Concerts would have differing effects on ticket sales, and bearing in mind the acknowledged greater promotional pull of the 2010 Concert for the general public, I am wholly unconvinced there would have been any significant jump in sales in the remaining two weeks if the HK Concert had gone ahead. In fact, I find on balance that by early December 2008 Ng and Chan expected and knew the HK Concert would have made substantial losses had it gone ahead. 112.On the basis of a jump in ticket sales to about HK$300,000, Ng/TPL would have suffered loss in the sum of HK$461,385 (ie HK$761,385 – HK$300,000), which would have exceeded their claim for wasted pre-cancellation expenditure of HK$430,625. Ng confirmed he would not have proceeded with the HK Concert (which was his own investment) in face of such estimated loss, which he said would have been too great. On balance, I reject his later assertion that he would have carried on with the HK Concert to face his fans even in face of such financial risk. 113.Even on the basis of Exhibit P1, Ng/TPL would have a made a loss of HK$358,585 (ie HK$761,385 – HK$402,800). Had the HK Concert not been cancelled, even if (as Mr Leong SC suggested) the burden was on the Ds to so demonstrate, I find on balance that in any event Ng/TPL would have suffered loss (and they knew this) because of the poor ticket sales and substantial expenses. 114.Bearing in mind the overall mildness of Ng’s injuries and symptoms and his prompt cancellation of the HK Concert on 10 December 2008 without even seeking any medical prognosis and/or therapeutic/rehabilitative care from 7 to 20 December 2008 against the backdrop of poor/disappointing ticket sales for the HK Concert and a real likelihood (which in my view was obvious to both Ng and Chan) of significant loss had the HK Concert gone ahead, and taking into account the vacillating unreliability of and worrying contradictions in Ng’s and Chan’s evidence as discussed above, I am not satisfied on the evidence that Ng’s injuries/condition as a result of the Accident (a) so seriously affected his ability/dexterity as to prevent him from playing the guitar and staging/performing at the HK Concert, and/or (b) caused or contributed to the cancellation of the HK Concert. On the available evidence, I find on the balance of probabilities that his ability to stage/perform at the HK Concert had not been compromised despite having some aches/discomfort from his mild sprained neck injury. I further find on balance that the cancellation decision was caused by Ng’s recognition that (a) there would have been poor ticket sales and real likelihood of significant loss if the HK Concert had gone ahead, and (b) cancelling the HK Concert by publicly relying on the Accident would give him a face-saving exit. In short, Ng failed to establish the “but for” causal connection between Ds’ wrong and the alleged wasted pre-cancellation expenses for the HK Concert. 115.But in case I am wrong, I go further to consider the significance of my conclusion that in any event Ng/TPL would have made a loss had the HK Concert gone ahead. On such basis, can NG/TPL recoup from the Ds pre‑cancellation expenses that had been rendered futile? (o) Recouping pre-cancellation expenses? 116.Parties’ stance Mr Sakhrani submitted that the purpose of compensatory damages is to place the plaintiff, so far as possible, in the same position he would have been in if he had not sustained the wrong, and since the pre-cancellation expenses for the HK Concert were rendered futile by the poor ticket sales, Ng/TPL failed to prove they suffered such loss because of the Accident. 117.Mr Leong SC submitted that but for the Accident Ng/TPL would have staged the HK Concert and the expenses would not have been wasted, and to restore them to the status quo ante they should be compensated for wasted expenditure, and no further enquiries need/should be taken beyond this point. He argued that “[in] tort law, the plaintiff’s right exists independently of the defendant’s action; the damages award therefore aims at eliminating the effects on the plaintiff of the defendant’s wrong”, and “[in] contract law, the parties themselves create the plaintiff’s right to the defendant’s performance of the promised act; the damage award therefore gives the plaintiff the value of that performance”. 118.Both counsel claimed their respective propositions were trite principles under tort law, but (apart from a few cases on breach of contract) neither of them cited any authority in support. 119.Contract principles Robinson v Harman[45] held that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, be placed in the same situation, with respect to damages, as if the contract had been performed. But such damages should not put the claimant in a better position than he would have been in had the contract been performed.[46] In my view, protection of the expectation interest that takes into account both expected profits and necessary reliance expenses on the contract being performed to compensate the loss of bargain is the obvious and justified measure of damages for breach of contract since loss of profits calculated this way would put the claimant in the position he would have been in. 120.The law of damages permits the claimant on breach of contract to seek damages on reliance basis, and to “elect” to claim damages by reference to expenses he incurred in reliance on the contract being performed. In Anglia Television Ltd v Reed, Denning MR said:[47]
121.In CCC Films (London) Ltd v Impact Quadrant Films Ltd, Hutchison J held the plaintiff has an unfettered choice to claim reliance expenses if he chooses.[48] But as laid down in C&P Haulage v Middleton[49] and CCC Films (London) Ltd, this does not mean the courts will allow a claimant to escape from what is clearly a bad bargain by recovering damages protecting his reliance interest. 122.In CCC Films (London) Ltd, Hutchison J went on to stress that where the claimant claims reliance damages for breach of contract, the burden of proving he has made a bad bargain, ie he would not have recouped his expenses if the contract had been performed, is on the defendant:[50]
Recently, in Mega Yield International Holdings Limited v Fonfair Company Limited,[51] the Court of Appeal accepted the authorities provided a rational and sensible explanation for the view the burden should be on the defendant, and in particular referred to L Albert & Son v Armstrong Rubber Co, a decision by Chief Judge Learned Hand of the US Court of Appeals, Second Circuit as follows:[52]
123.Juridical basis for reliance damages in contract cases According to Burrows, Remedies for Torts and Breach of Contract,[53] the best justification, which fits in with the details of the law, especially the refusal to allow claimants to escape from a known bad bargain, is as follows:[54]
124.In Omak Maritime Ltd v Mamola Challenger Shipping Co,[55] Teare J also said:[56]
125.Claim in tort The formulation of the general rule on damages is to put the claimant into the same position, as far as money can do it, as he would have been in had the wrong not been committed. In contract, the wrong is the breaking of the contract and hence the claimant is entitled to be put back into the position he would have been in if the contract had never been broken or, in other words, if the contract had been performed, so the claimant is entitled to recover damages for loss of his bargain. In tort, no question of loss of bargain can arise because the claimant is not complaining a failure to implement a promise but of failure to leave him alone. The measure of damages in tort is to be assessed on the basis of restoring as far as possible the status quo ante.[57] 126.In ascertaining the status quo ante in tort, one should remember that the tortfeasor (unlike a contract-breaker) is neither a party to nor a promisee under the contract. There is simply no causal link between the tort and the reliance interest since the expenses would have been incurred under the contract even if there had been no tort. This plainly expresses the point that whilst expectation protection is the natural measure of compensation for breach of contract, the juridical basis of reliance damages (being a species of expectation loss in that the expenditure which is sought to be recovered is incurred in expectation that the contract will be performed) has little significance in a claim in tort where the measure of damages is ascertain the status quo ante on the basis that tort had not committed. 127.That is why it was said in McGregor on Damages[58] that expenses rendered futile by the wrong do not have the same importance in tort as they have in contract for the reason that the claimant is not in tort taking action in reliance upon the defendant’s promise. This is also illustrated by the Batt v Highgate Private Hospital,[59] where the deceased died from complications following cosmetic surgery procedure organised through London Cavendish Clinic (International) Ltd which subcontracted it to the defendant surgeon. Judgment was entered against the negligent surgeon. The widower on behalf of the estate of the deceased claimed for costs of the surgery as the deceased gained no benefit from it as it caused her death on the basis that it was rendered futile by the negligence of the surgeon. 128.HH Judge Darlow held that the claim was not one that was well based or grounded in law:[60]
129.Summary I do not accept Mr Leong SC’s argument that but for the Accident the pre-cancellation expenses would not have been wasted. I have found that Ng’s injuries/symptoms from the Accident did not cause or contribute to his cancellation decision. But assuming that but for the Accident the HK Concert would have gone ahead (which proposition I disagree), the pre-cancellation expenses would have been rendered futile in any event by the losses due to poor ticket sales, and this did not flow from the Ds’ negligence. Indeed, on the above assumption (which I disagree), the Ds’ wrong that led to the cancellation of HK Concert in fact reduced Ng’s loss in that the wasted pre-cancellation expenditure was now HK$430,625, but if the HK Concert had gone ahead Ng/TPL would have incurred but would not have been able to recoup the pre‑cancellation expenses rendered futile by the concert in the sum of HK$761,385 (on full capacity) or HK$671,140 (on 60-70% capacity). The cancellation decision saved some expenses, eg stage production, which the supplier did not invoice/charge. 130.Mr Leong SC argued that the principle that damages for wasted expenditure are unavailable if such expenditure would not have been recouped had the contract been properly performed has no application to a claim in tort because an award of damages in tort aims to eliminate the effects on the plaintiff of the defendant’s wrong. I disagree. Such argument does not explain why on the above assumption Ng would be entitled to make a windfall gain upon being awarded “compensatory” damages. If the wrong never happened, the HK Concert would have gone ahead and the pre-cancellation expenses would have been rendered futile and not recouped. Mr Leong SC also had not addressed on how the juridical basis of a claim for reliance loss being a species of expectation loss in the expectation that the contract will be performed has relevance to a claim in tort where the plaintiff is not taking action in reliance upon the defendant’s promise. In my view, since it had been shown that if the HK Concert had gone ahead Ng/TPL would not have made sufficient profit to recoup the pre‑cancellation expenditure, the claim for such wasted expenditure wholly fails. (p) Wasted pre-cancellation expenditure 131.But in case I am wrong, I shall deal with the claim for wasted pre-cancellation expenditure briefly. Ng/TPL claimed they suffered loss and damages for wasted pre-cancellation expenses as follows:
132.The Ds by their Answer admitted that a total sum of HK$236,625 (items 2 and 6-9 above) had been paid for the HK Concert. 133.Band fee 168 Agent and Fornita Creations Limited (“Fornita”) entered into a “演唱會樂隊協議書” on 24 November 2008 whereby 168 Agent agreed to engage and Fornita agreed to provide a band for the HK Concert. 168 Agent issued a cheque dated 13 November 2008 to Fornita for the deposit of HK$45,000. Clause 6(b) provided that “如演出取消，而引致的原因是與[Fornita]或“樂隊”無關，[Fornita]無需向[168 Agent]退還已付之演出酬金”. 134.Lighting, audio and production team By a quotation dated 14 November 2008 by AHM and accepted by 168 Agent, AHM agreed to provide audio and lighting equipment for HK$100,000 and production team services for HK$28,000 with 50% deposit to be paid 30 days before the show date. Clause 4 of the terms and conditions provided that “[in] case of cancellation of the Project by the Client after confirmation of this quotation, the deposit of 50% of the contract sum plus any associated expenses incurred shall be forfeited to AHM as compensation”. Chan confirmed that the 50% deposit of HK$64,000 had not been paid. Chan said AHM had chased 168 Agent by telephone, and they in turn had chased Ng. I accept that because of the close relationship between AHM and 168 Agent AHM had been understanding and had given indulgence because of Ng’s cashflow problem. The agreement clearly provided that 168 Agent was obliged to pay the deposit before the cancellation, and AHM was entitled to claim for the same or alternatively for damages for breach of contract. 135.PR and promotion fee Ng/TPL disclosed an invoice dated 30 November 2008 by OMI International Entertainment Group to 168 Agent for “宣傳費” in the sum of HK$35,000. Such invoice had not been paid. Chan explained “[we] have been in co-operation with this OMI for a long time and we also said the same thing to them that [Ng] had the difficulty of the cash flow. Therefore, they allow us to pay at a later time”. I accept on balance such sum had been incurred and liable to be paid by 168 Agent. 136.Organisation/administration fee Chan said TPL had not paid the organisation/administration fee of HK$50,000 to 168 Agent payable under the HK Agreement, and she would continue to demand payment. 137.Summary I accept on balance the whole of the pre-cancellation expenses of HK$430,625 had been incurred. Most of such sums had been paid by 168 Agent to third parties, but where they had not done so, I accept they were liable to pay the sums due under invoice or contract. I further accept that although TPL (and ultimately Ng) had not reimbursed 168 Agent, under the HK Agreement they were obliged to do so. Therefore, if I were wrong in my conclusion under Part IV(n) and (o) above, Ng/TPL would be entitled to an award of damages for wasted pre-cancellation expenditure of HK$430,625. (q) Post-cancellation expenses 138.Ng/TPPL claimed for two items of post-cancellation expenses. First, Fornita issued an invoice dated 16 December 2008 to 168 Agent for inter alia advertising charges of HK$8,000 for “東方日報夏紹聲 – 聲明稿” for the cancellation of the HK Concert. 168 Agent had paid such sum to Fornita by cheque payment. Secondly, there was an invoice dated 8 January 2009 for “refund tickets & services charges for cancellation of the event: [HK Concert] on 24 December, 2008” in the sum of HK$16,156, and it had also been settled by 168 Agent by cheque payment. In my view, if I am wrong in my conclusion under Part IV(n) above, Ng/TPL would be liable to reimburse 168 Agent, and they would be entitled to an award for damages for post-cancellation expenses of HK$8,000 + HK$16,156 = HK$24,156. V. LOSS OF PUBLICITY 139.In light of my finding that the Accident and Ng’s injuries as a result of such accident did not cause the cancellation of the HK Concert, Ng’s claim for compensation in respect of (a) the effort he had put into preparing for the HK Concert which had been wasted, (b) his disappointment that his fans could not see him on stage, and (c) loss of the “noise” the HK Concert would have generated that would have carried the momentum forward to help him get more jobs in the coming year necessarily fails. However, in case I am wrong, I will consider this claim briefly. 140.According to Kemp & Kemp, Damages for Personal Injury and Death,[61] loss and damages arising from the accident causing personal injury may include loss of an opportunity to make or enhance one’s reputation, eg the case of an actor,[62] and, and the case of a professional golfer who had been prevented from taking part in competitions by his injury.[63] 141.I am not persuaded by Mr Leong SC’s extravagant submissions that by the cancellation of the HK Concert Ng lost enhanced prestige resulting from an acclaimed performance that could make him an even more popular and loved artiste, or that the HK Concert would have been a successful performance by Ng that would be a stepping stone leading to bigger success he would enjoy as a performing artiste. In my view, the cancellation of the HK Concert was a far cry from the circumstances of Mulvaine & anor v Joseph & anor,[64] Marbe v Edwardes (George) Daly’s Theatre,[65] and Herbert Clayton and Jack Waller, Limited & ors v Oliver.[66] Each case is fact-sensitive and turns on its own facts. 142.There was no suggestion that the cancellation of the HK Concert ostensibly and publicly because of injuries sustained in the Accident had any adverse impact on Ng’s career/reputation. Also, I cannot ignore the likely poor ticket sales if the HK Concert had gone ahead, which makes it questionable whether such concert would have significantly advanced Ng’s career/reputation. Ng conceded that if only 35% of the seats were occupied the HK Concert would have been a disappointment and would not have promoted his career. As Mr Sakhrani submitted, Ng never explained what minimal level of seat occupancy was required to advance his career and the probability this could realistically be achieved by 24 December 2008. Further, apart from bare assertions, Ng did not say what particular opportunities he lost after the Accident. But there was evidence that he attended music events in 2009 (eg the 2009 Concert) and performed in his own concert in May 2010 (ie the 2010 Concert). 143.I agree it cannot be said Ng lost an opportunity to significantly promote/advance his career and/or enhance his reputation. But December/January is the entertainment business’ peak season, and I accept that for Ng as a singer/artiste some “noise” or publicity generated by the HK Concert, albeit not entirely positive given the likely poor ticket sales, would have been better than no “noise” at all over the Christmas peak season, but it would not have a highly laudable effect on his career/ reputation as suggested by Mr Leong SC. 144.I am not convinced HK$200,000 would be reasonable compensation under this head. Mr Leong SC asked me to take into account the fact that Ng was the lead performer for the HK Concert, and the supporting band and guest artist charged HK$45,000 and HK$30,000 respectively. But bearing in mind the considerations discussed above, I consider that if I am wrong in my conclusion in Part IV(n) above and the cancellation of the HK Concert was caused by Ng’s injuries/disabilities as a result of the Accident, the overall damages for loss of publicity due to the cancellation of the HK Concert would be HK$70,000. VI. US CONCERTS (a) US Agreement 145.By the US Agreement dated 3 September 2008, Sunday engaged Ng who agreed to perform “two (2) concert performance with live bands …… at the VENUE on December 31 of 2008 8:00 pm and Jan 01 of 2009 8:00 pm” for a performance fee of US$50,000 (or HK$390,000 at the rate of HK$7.80 to US$1). Clause 1 of the US Agreement defined “EVENTS” as “two casino’s show”, “VENUE” as Horseshoe and Peppermill, and “PERFORMANCE PERIOD” to be from “December 30 of 2008 to Jan 02 of 2009”. Under clause 2 of the US Agreement, half of the performance fee was to be paid upon Ng’s arrival in New York, and the remaining half upon his “arrive the Casino after rehearse but before the event”. (b) Parties’ stance 146.ARSOD The ARSOD pleaded inter alia that (a) by the US Agreement Ng agreed to make two concert performances at Horseshoe and Peppermill for the period from 30 December 2008 to 2 January 2009 (ie the US Concerts), and (b) Ng was unable to perform at the US Concerts due to his injuries and has thereby suffered loss. Mr Leong SC opened Ng’s case on the basis that his sick leave up to 4 January 2009 straddled the HK and US Concerts. So the thrust of Ng’s case was that the US Concerts were expected to take place at the Horseshoe and Peppermill before 2 January 2009, and loss of performance fee was claimed on such basis. 147.Answer The Ds averred there was no agreement to give the US Concerts at Horseshoe and Peppermill from 30 December 2008 to 2 January 2009, but even if there were such agreement (which was denied), the minor injuries Ng suffered by the Accident did not affect his ability to perform for the US Concerts. (c) Booking of the US Concerts 148.Ng’s case did not marry well with the express provisions in the US Agreement. First, clauses 3-4 of the US Agreement provided as follows:
Ng confirmed that up to 6 December 2008 Sunday had not booked/issued any air tickets because it was Ng who would buy air tickets and then seek reimbursement from Sunday. He explained that notwithstanding the express contractual provisions, the purpose of clauses 3-4 above was to enable him to seek reimbursement for a business class ticket even if he chose to fly economy. Even though December is a peak travel season and he had not booked any air tickets by 6 December 2008, Ng claimed he had already alerted the travel agency he had used for many years to reserve air tickets for possible travel to the US in December 2008, and he was confident his travel agency could secure air tickets on short notice. He said he was not concerned and had no idea whether Sunday had booked any domestic flights from New York to Chicago and Reno although the Ng Answer already stated no air tickets had been booked. As regards his assistants, Ng said he had in mind US citizens to be his hair stylist (Michael Lee in Yew York) and assistants (Joseph Cheuk in New York and Amy Wong in San Francisco), but upon noting that the US Agreement contemplated that his assistants would fly from Hong Kong to the US, he said his hair stylist Bruce Choi (who had a US passport) lived in Hong Kong. 149.Secondly, clause 8 of the US Agreement provided as follows:
Ng claimed he had not provided the required performance materials to Sunday because they would know what songs he would sing and they could download pictures/materials from his website. He agreed there were no music scores/sheets on his website, but he suggested Sunday could download them from elsewhere (but he had no idea whether they did so), and he later said there was no need to do so for the band already knew his hit songs. 150.The tenor of Ng’s evidence in the above paragraphs gave the impression that the US Concerts were on foot. Hence, the Ng Answer stated that on/about 14 December 2008 Ng notified Sunday’s president Virgil Lau (“Lau”) by telephone that he was physically incapable of performing on stage and the US Concerts had to be cancelled, and he therefore suffered loss of the performance fee at US$50,000. Ng agreed in evidence there was no document to evidence such cancellation, but claimed no document was needed because Sunday (not having paid the performance fee) did not suffer any loss. He claimed that as an artiste he would not ask Sunday for information as to any performance contract between the casinos and Sunday. 151.I find such explanations to be evasive because, as shown below, it was quite plain from the evidence that Sunday/Lau had not been able to secure performance contracts for 30 December 2008 and 1 January 2009 with either Horseshoe or Peppermill or indeed any other venue. Ng agreed that if Sunday/Lau had committed performance contract(s) with any venue, the venue owner would have complained about his cancellation, but Lau had never told him of any such complaint. I do not agree with Ng’s assertion in the Ng WS that the US Concerts had been “cancelled”. But even if such concerts were “cancelled”, for the same reasons as regards Ng’s physical condition as discussed above in relation to the cancellation of the HK Concert, I find on balance that the Accident and Ng’s injuries suffered as a result of such accident did not cause any such “cancellation”. 152.However, as explained below, the objective evidence clearly showed the US Concerts had not even been confirmed although Ng shied away from an outright admission of such fact under cross-examination. 153.In late 2011 to early 2012, email and telephone enquiries by Ds’ solicitors with Horseshoe and Peppermill Casino revealed that (a) Peppermill had no record Ng was ever hired to perform there on 31 December 2008 or 1 January 2009, (b) Peppermill did not have a Chinese concert on New Year’s eve at the end of December in the past 12 years, (c) Peppermill first did a concert by another entertainer with Sunday/Lau on 27 November 2010, (d) Horseshoe was unable to locate documents pertaining to the period from 31 December 2008 to 1 January 2009, and (e) Horseshoe was not affiliated in any way with Peppermill. Significantly, Sunday did not prepare any publicity sheets/posters for the US Concerts. Ng acknowledged it was only when there was commitment for performance with the casinos that publicity sheets/posters would be prepared. Indeed, Sunday prepared such publicity sheets/posters for other entertainers in 2008 and 2012. 154.Confronted with such evidence, Ng eventually confirmed under re-examination that Sunday/Lau failed to procure his engagement for the US Concerts at Horseshoe and Peppermill on 31 December 2008 and 1 January 2009, and that was why the Ds could not find his name with the named casinos and there was no publicity sheet/poster for the US Concerts. (d) Ng’s altered case 155.Then for the first time in evidence Ng explained that the US casinos had Asian marketing departments for booking artistes, and it had been the practice for many years for agents in New York (eg Sunday) to sign agreements with artistes like Ng for the purpose of committing their performance time slots on specific dates against the agents’ promises to pay performance fees, and then for the agents to peddle such committed performance time slots to casinos in the US to procure performance contracts. In the peak season, about ten such agents would submit tenders to the casinos’ Asian marketing departments to let them choose the artistes. Once a casino committed itself to a performance contract for a specified date, publicity sheet/poster would be prepared for the concerned artiste. 156.This meant that under the US Agreement the US Concerts at Horseshoe and Peppermill on 31 December 2008 and 1 January 2009 were in fact not fixed. Sunday/Lau merely wanted to commit Ng’s peak performance time slots to “on-sell” them to Horseshoe and Peppermill and/or other venues. Ng did not mind performing at another casino so long as the performance fee remained the same. Ng claimed the US casinos would know his name, and from his past cooperation with Sunday he was confident Sunday would be able to book performance contracts for him at the named casinos or other venue. Although he hoped/expected Sunday to confirm as early as possible, he would be able to manage if Sunday’s confirmation came through a week before Christmas. 157.Ng claimed that even if Sunday encountered difficulty in “on-selling” his committed performance time slots to Horseshoe, Peppermill and/or other venue, they could reschedule the performance for, say, March/April 2009 at another venue for the same performance fee. Indeed, clause 12 of the US Agreement provided as follows:
158.However, notwithstanding the late amendments in the ARSOD, Mr Leong SC did not seek leave to amend Ng’s pleadings to raise his aforesaid altered case. Further, when asked as to why he did not simply explain in the Ng WS and/or Ng Answer that Sunday/Lau might have been unsuccessful in booking the US Concerts for him, Ng claimed his explanation was too lengthy to be included the Ng WS, and he thought the Ng WS was merely to give an account of what happened in 2008. I find such excuses specious and deliberately obtuse, and I reject them. 159.Significantly, Ng explained that during December 2008 he had kept in telephone contact with Lau, and understood that Sunday might not be able to procure a performance contract at a casino. Even on Ng’s own case, when he told Lau of his inability to perform for the US Concerts, Lau’s immediate reply to him was that “[they] can reschedule it within six months’ time”. This plainly reflected there was no committed performance contract for any casino or other venue at that time. 160.There appeared to be consensus between Ng and Lau (for Sunday) as to the rescheduling of the US Concerts since (a) Sunday was prepared to reschedule the performances to be held at a different venue for the same performance fee within six months’ time,[67] and (b) Ng said he did not mind giving an off-peak performance at any venue procured by Sunday for the contracted peak-time performance fee. Given such consensus between Sunday/Lau and Ng over the rescheduling of the US Concerts, which successfully mitigated any loss arising from any alleged “cancellation” of US Concerts, Ng failed to establish that any loss flowed from the Ds’ wrong. There was simply no evidence before the court as to whether or not Sunday/Lau ever found another venue for Ng to perform some time thereafter, and if Sunday failed to do so what was the reason for such failure. Ng chose not to call Lau to give evidence. In January 2009, Ng wanted to adduce Lau’s witness statement, but when the Ds’ solicitors asked for such witness statement to consider, Ng did not provide it and withdrew the application. I also note that clause 12(d) of the US Agreement provided that if Sunday did not reschedule the performance six months after the performance period, “ARTIST shall not PERFORM” and under the US Agreement would not be entitled to payment of the performance fee. 161.I reject Mr Leong SC’s submissions that if Sunday were unsuccessful in “on-selling” Ng’s performance time slots to Horseshoe and Peppermill, Sunday/Lau would have been able to find some performance for him that would be reasonable and ought to be accepted. Ng failed to prove his claim for the performance fee of US$50,000 for the US Concerts either on the pleaded or altered basis, and I dismiss the same. VII. PSLA 162.Ng was 55 years old at the time of the Accident, and 60 years old at trial. He received education up to secondary school level in Hong Kong. He claimed that prior to the Accident, he enjoyed good health, and used to swim and work out at the gymnasium. He claimed that these were part of his business and social activities/gatherings where his agents might approach him for potential performing jobs. In the Ng WS, he claimed that “[after] hospitalisation, [he] seldom visit the gym or swim due to his disability”. But Ng was never hospitalised, and I am not persuaded that any failure to visit the gym or to go swimming had anything to do with his injuries as a result of his Accident. I find he had substantially recovered from such injuries. 163.In the ARSOD, Ng claimed he was entitled to an award for PSLA for not less than HK$130,000. But the Ds in their Answer suggested that such award should not exceed HK$50,000. Mr Leong SC and Mr Sakhrani referred me to the following authorities :
164.Bearing in mind that the injuries suffered by the plaintiffs in the above authorities were not exactly the same as the injuries Ng suffered in the present action, I have to consider the relevant award in the context of the present circumstances. Some of the plaintiffs in the above authorities suffered more severe injuries and disabilities.[68] Some plaintiffs in the above authorities suffered less serious injuries and disabilities.[69] Using the above authorities as a guideline but considering the particular circumstances of this case, I am persuaded that an appropriate award for PSLA would be HK$85,000. VIII. SPECIAL DAMAGES 165.Ng also claimed other special damages in the sum of HK$24,231 being medical expenses (HK$4,535), travelling expenses (HK$1,000), parking expenses (HK$96) and towing and repairing fees (HK$18,600). All are agreed except Dr Shiu’s fees in the sum of HK$3,660. 166.Mr Leong SC submitted that the sum of HK$3,660 spent on chiropractor treatment was reasonable and should be allowed. Mr Sakhrani submitted there was no evidence of the necessity, reasonableness and beneficial value of the chiropractic treatment in the circumstances.[70] He said that not only was there no statement from Dr Shiu of his credentials, there was no proper report that explained his diagnosis, treatment plan, progress and prognosis, and it was unclear why Ng elected not to put this evidence before the court. 167.However, I note Dr Shiu was said to be a registered chiropractor, and there was no evidence otherwise. Given that the public hospital doctors recommended physiotherapy treatment, but Ng instead sought private chiropractic treatment to avoid the paparazzi/media, I cannot say that such treatment was wholly irrelevant. Further, even though I have found that Ng’s injuries/symptoms not serious enough to justify or cause the cancellation of the HK Concert, it does not follow that he was not entitled to seek chiropractic care for symptom relief, say, for some muscle ache/soreness of the neck and right shoulder. However, I am not persuaded the treatment after Ng’s return from the 2009 Concert in the US (ie on or after 30 March 2009) was necessary and/or reasonable. Even on Ng’s case, his condition improved after February 2009, and he acknowledged that thereafter part of his physical symptoms/condition might be due to aging. I bear in mind that Dr Shiu noted Ng suffered from mid back pain on 13 April 2009 (which I have found to be unrelated to the Accident). In all the circumstances, I allow the cost of chiropractic treatment up to 7 January 2009 in the sum of HK$2,060. The award for special damages is therefore HK$21,756. IX. CONCLUSION 168.I summarise the above awards as follows:
169.Since the award for PSLA and other special damages do not concern TPL, I therefore grant judgment in favour of Ng against the Ds in the sum of HK$106,756 and dismiss TPL’s claim against the Ds. Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment. 170.I grant a costs order nisi that the Ds do pay Ng costs of the assessment of damages (including all costs reserved, if any) to be taxed on District Court scale if not agreed, but there be no order as to costs between TPL and the Ds.
Mr Alan Leong SC, instructed by Henry Wan & Yeung, for the 1st and 2nd plaintiffs Mr Ashok Sakhrani, instructed by Y T Chan & Co, for the 1st and 2nd defendants [1]see Star Glory Investment Ltd v Kai Tua (HK) Technology Ltd & ors HCA2523/2002, Chung J (unreported, 13 August 2005) para 12 (see also Four Seas Fishballs Co Ltd v Yeung Hung Sin & anor HCA4159/2003, Chung J (unreported, 25 August 2006) para 20, and Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494) [2] see paragraph 26 below [3] ie “C-spine T°” [4] means full right shoulder range of movement, full neck range of movement and full power of four limbs [5] ie “chest injuryº” [6] ie “muscle spasm°” [7] see paragraph 33 below [8] see paragraphs 37 and 40 below [9] see paragraph 23 above which explains why I do not accept Ng suffered back pain as a result of the Accident [10] see paragraph 38 below [11] right lateral flexion full [12] left lateral flexion less by about 10° [13] rotation to right full [14] rotation to left less by about 10° [15] see paragraph 33 above [16] as evident from the patient sticker on the RTSKH Notes [17] as compared to his working 12-13 hours a day, having 4-5 performances a year and releasing one LP every 1-2 years previously [18] [2008] 5 HKLRD 210, 214-216 [19] the Settlement Report contained “Remarks” that “[the HK Concert] has confirmed to be cancelled by the Promoter [ie 168 Agent] on 10 Dec 2008 ……” [20] see Part VI below [21] of which 162 were complimentary tickets and 49 were taken away by the promoter 168 Agent [22] Mr Sakhrani submitted that Chan’s allegation under cross-examination that this would not have required additional expenses was unreliable and not found in the Chan WS – see Part IV(m) below [23] comprising 18 tickets of the HK$480 price category and 31 tickets of the HK$380 price category [24] although Chan disagreed the 49 tickets 168 Agent took away would not have generated revenue, there was no evidence that 168 Agent received any payment for such tickets, and in fact no such payment was taken into account in the Settlement Report [25] see paragraph 78 below for explanation on total possible sales [26] see paragraph 92 below [27] the projected ticket sales income on such basis could be ascertained by cross-reference to the revenue calculations in the Pre-existing Budget [28] compared with 9,000 to 12,000 seats for the Hong Kong Coliseum [29] see Part IV(h) below [30] see Part IV(l) below [31] see Part IV(j) below [32] HK Ticketing would charge HK$13 for every ordinary ticket with face value and HK$8 for every complimentary ticket [33] see paragraph 101 below [34] see footnote 24 above [35] there being no other concert by Ng up till trial except the 2010 Concert [36] see paragraph 101 below [37] it was unclear why there were still ticket sales on 14 May 2010 when the 2010 Concert was held on 13 May 2010 [38] 6,238 ordinary tickets with face value, 11 tickets with wheelchair seating and 1,300 discount tickets according to the 2010 Summary [39] the expenses for the 2010 Concert were HK$2,152,063 [40] see paragraph 101 below [41] see Part IV(m) below [42] see Part IV(m) below [43] ie 300 HK$480 tickets, 100 HK$384 tickets and 300 HK$240 tickets (some on discount basis) [44] ie 23.39% (ie HK$300,000 ÷ HK$1,282,400) of possible total ticket sales income [45] (1848) 1 Exch 850 [46] see Wertheim v Chiccoutimi Pulp [1911] 1 AC 301, 308 [47] [1972] 1 QB 60, 63-64 [48] [1985] 1 QB 16, 32 [49] [1983] 1 WLR 1461 [50] at pp 39-40 [51] CACV61/2013 (unreported, 18 September 2014) para 58 [52] (1948) 178 Fed Rep 182, 189 [53] 3rd ed (2004) at pp 64 and 70 [54] this interpretation was favoured by at least five judges of the Australian High Court in The Commonwealth v Amann Aviation Pty Ltd (1991) 66 AJLR 12, which authority also gave considerable support for the principle in Robinson v Harman [55] [2010] EWHC 2026 (4 August 2010) [56] see also Yam Seng Pte Ltd v International Trade Corporation Limited [2013] EWHC 111 (QB) (1 February 2013) paras 195-192 [57] see McGregor on Damages 19th (2014) para 22-003 at pp 819-820 [58] 19th ed (2014) para 4-061 at p 65 [59] [2005] PIQR Q1 [60] at pp Q4-Q5 [61] 7th ed para 4.33 at p 160 [62] see Marbe v Edwardes (George) Daly’s Theatre [1928] 1 KB 269 and Herbert Clayton and Jack Waller Ltd v Oliver [1930] AC 209, and whilst the claims in these cases were for breach of contract the same principle applies in tort [63] see Mulvaine & anor v Joseph & anor (1968) 112 SJ 927 [64] (1968) 112 SJ 927 in which a professional golfer was injured in a car accident and could not complete his programme of tournaments, and his damages for negligence included compensation for the lost opportunity to enhance his golfing prestige by competing in a number of tournaments and which might have resulted in him becoming a tournament professional and loss of a chance of winning price money, and also damages for the disappointment he felt through frustration of his plans. [65] [1928] 1 KB 269 in which an actress obtained an engagement to rehearse and play a named part in a named play at a London theatre, and the managers advertised her name in a prominent position, but they later refused to allow her to appear in the part, and it was held that damages for breach of contract might properly include a reasonable compensation for her loss of reputation which would have been acquired, or damage to reputation already acquired, or, to use another expression, for loss of publicity [66] [1930] AC 209 in which theatrical producers agreed to engage an actor to play a leading part in a musical play, but the actor objected that the part assigned to him was not the one promised and declined to appear; he was awarded damages for loss of publicity since the object of an actor was to appear on stage before an audience [67] see Lau’s response in paragraph 159 above and clause 12(d) of the US Agreement in paragraph 157 above [68] eg sprain neck injury requiring physiotherapy for three months, neck collar and analgesic, triggering pre-existing condition, and resulting in incomplete recovery; multiple contusions with superficial abrasions and right shoulder/neck pain with subsequent discovery of rotator cuff tendonitis of right shoulder; and neck sprain (with slight reduction in neck ROM but no dizziness, numbness of upper limb or back pain) requiring physiotherapy for six months [69] eg mere neck/back sprain injury with mild stiffness of neck/back and 4 days’ sick leave; and whiplash injury with residual pain and stiffness and right elbow contusion and able to return to work the following day [70] see Choy Chung Shing v Ng Hon Chun [2000] 2 HKC 667, 674 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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