CHAN HA v. LEE HON MING AND ANOTHER

HCPI 414/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.414 OF 2001

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R E A S O N S  F O R  R U L I N G

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1. The plaintiff appealed against the order of Master Kwan dated 22 March 2005 dismissing the plaintiff’s application for an interim payment.  I dismissed the appeal with costs to the 2^nd defendant, in any event with certificate for counsel.  I now give reasons.

2. On 24 May 2000 the plaintiff, who is a woman born on 3 December 1976 was a passenger in a lorry owned by the 2^nd defendant and driven by the 1^st defendant, its employee.  She was herself employed by the 2^nd defendant as a clerk.  She pleads that the vehicle crossed double white lines, collided with a bus coming the other way, and then left the road and hit a tree, and that she suffered injury thereby.  Liability is not in dispute, interlocutory judgment having been entered against both defendants.

3. Pleadings were closed on 20 November 2001 but thereafter, apart from the filing of the plaintiff’s witness statement in September 2002, nothing happened in the action until April 2003.  The plaintiff obtained an interim payment of $100,000.00 by consent in June 2003.  There has been further delay since then.  Much of it has, apparently, arisen from changes of solicitor by the plaintiff although the plaintiff will say that it was necessary to take time to establish her final medical condition.  On 22 March 2005 the Master gave directions and if they are complied with a checklist hearing should be held in about September or October 2005, so that the assessment of damages is likely to be heard at the end of 2005 or the beginning of 2006.

4. This is the second application for interim payment.  The plaintiff now seeks $150,000.00.  Order 29, rule 11 of the Rules of the High Court provides that if the court is satisfied that the plaintiff would recover substantial damages at trial, it may order an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages likely to be recovered.  A second or subsequent application may be made upon cause shown.

5. The principles to be applied are not in dispute.  The plaintiff does not have to demonstrate any particular need over and above the general need to be paid damages as soon as reasonably may be done; and an order will generally be appropriate when there will be some delay until the final disposal of the case.  See Stringman v. McArdle, [1994] 1 WLR 1653 at 1657.  However, the court must not risk overpaying the plaintiff since a final adjustment under rule 17 may not be effective.  See the Hong Kong Civil Procedure, 2004 Edition at paragraph 29/11/4.

6. In brief, the problem is this.  The plaintiff suffered fractures of the left pubic rami and left sacrum as well as minor head and leg injuries from which she has recovered.  She was admitted to the North District Hospital and treated conservatively.  She should have had an uneventful recovery and by 2001, when she was first seen by both parties’ orthopaedic experts, it appeared that she would probably do so.  The defendant’s expert, Dr Julian W. Chan said in August 2001 that she was fit to return to work with a degree of permanent disability of not more than 1%.  The plaintiff’s expert Dr Lau Hoi Kuen took the view that she had not recovered so well but he still put her permanent impairment of the whole person at only 10%.

7. However, the plaintiff suffered and continues to suffer from persistent pain.  For that, she has been treated at the North District Hospital with drastic measures, including multiple injections into the spine and pelvis, excision of the coccyx, the implantation of a dorsal root nerve stimulator and long-term methadone.  She is expected to have the pain for the rest of her life, and she is unable to return to work because of the drug dependence.

8. Both experts agree that the physical findings, when they examined the plaintiff in September 2004 with a view to making a joint report, are about the same as those observed in 2001.  They agree that the physical findings do not suggest such severe pain and disability as to require all the drastic treatment measures which have been carried out.  They agree that the plaintiff was observed in video recordings over the past three years to be able to walk leisurely and without limping for quite a long distance.  They agree that there is an element of psychological overlay or functional element in the pain and say that she should be assessed by a psychiatrist. 

9. There is a considerable difference between the parties on causation.  The plaintiff’s expert says that the plaintiff’s present condition arises from the accident while the defendant’s expert says that the majority of the pain symptoms are iatrogenic in origin, induced by the treatment she received at the hospital, and are not the direct result of the accident.

10. It is against this background that the plaintiff makes her second application.  In fact she started seeking a further interim payment at the end of 2003, after she had been seen at the Pain Clinic and recommended to have the dorsal root nerve stimulator implantation.  This was, apparently, to cost $85,000.00 or $90,000.00.  In fact she raised the money for this treatment from donations to a charity fund established by a newspaper.  The reason now given for the second interim payment is the plaintiff’s cost of supporting herself, including paying back a bank loan of $40,000.00.

11. The waters are further muddied by the defendants’ offer to make the second interim payment sought, on condition that the plaintiff should not issue any further application and that there be no order as to costs.  These conditions were unacceptable to the plaintiff.  There is also a sum of $67,787.84 owing to the plaintiff, being the balance of an employee’s compensation claim.  She refused to accept it, on legal advice from a previous solicitor.  It is not clear why; she has accepted earlier compensation payments and acceptance should not prejudice either her employee’s compensation or her common law claim.

12. The first question must be whether the plaintiff has shown cause for her second application.  It is rather difficult to see that she has, given the delay in pressing forward to the assessment of damages following the first interim payment and the fact that there seems to be over $60,000.00 available for her collection.

13. The next question, and this is rather more cogent, is whether she is likely to recover substantial damages at trial, and if so, what is a reasonable proportion of those damages.  Given the dispute over causation, and the surveillance reports which tend to suggest malingering, and the advice of both orthopaedic specialists that a psychiatrist be consulted, it cannot be right simply to say that the plaintiff must obtain the figures put forward by her counsel.  If she does, of course $150,000.00 is a small proportion of those figures but there is no guarantee that she will.

14. A further problem is that given the dispute on causation, there must be a risk of overpayment, if the evidence of the defendants’ expert is ultimately accepted.  Added to this is the fact that the plaintiff, who says that she needs the payment to support her living, is not in receipt of legal aid.  If she does not recover a substantial sum in damages — and in particular, if she fails to beat any payment into court made by the defendants — it is unlikely that she will be able to make repayment or to meet any costs which may be awarded against her.

15. For the above reasons, it seemed to me that a second interim payment is inappropriate and that the plaintiff’s best course is to proceed to assessment of damages as soon as possible, as provided for by the Master’s directions, and I dismissed the appeal accordingly.