LAM WING SUM MONICA v. TAM KA KIT JOE AND ANOTHER

HCPI 933/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.933 OF 2005

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J U D G M E N T

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1. This is an appeal by the plaintiff from the order of the master relating to the scale of costs after the case had been settled between the parties for $850,000.  Despite that settlement there was a dispute between the parties as to the scale of costs to be applied in this case and that disputed issue was argued before the master who ordered District Court's scale of costs to apply, favouring the submission by the defendant. 

2. The plaintiff now appeals from that order submitting that the Master was wrong to order District Court's scale of costs because there was a reasonable prospect of the plaintiff claiming for an amount exceeding the District Court jurisdiction. 

3. As a preliminary point I should mention that no issue has been taken by the defendant in this appeal that leave has not been obtained by the plaintiff prior to bringing this appeal when the appeal relates only to a matter of costs, in this case the scale of costs, albeit not the entitlement to costs. 

4. The plaintiff's claim arises from a traffic accident when the plaintiff was riding as a pillion passenger on a motorcycle involved in the accident.  The accident occurred on 11 December 2003.  

5. It is not necessary for present purpose to go into details of the accident or the issue of liability since the matter was settled between the parties.  In the accident, the plaintiff suffered a wedge fracture amongst other injuries to her thoraxic 10^th and thoraxic 11^th vertebra and she was given nine months of sick leave.  It is not disputed that in determining the scale of costs to apply in a case as this one where the claim has been settled for a sum below the District Court level, the prime consideration for the court is whether the plaintiff had a reasonable prospect of recovering an amount over the District Court jurisdictional level, in this case $1 million, when the claim was brought. 

6. Miss Loh, for the plaintiff in this appeal, in a summary of the value of the plaintiff's claim based on full liability, showed that on a very conservative estimate the plaintiff's claim would have exceeded, albeit marginally, the $1 million dollar mark. 

7. On the other hand, Miss Tsang appearing for the defendant, has presented a calculation as to the total damages that the plaintiff could recover, her quantification coming to $880,000 odd.  In presenting that quantification, Miss Tsang has allowed nothing for loss of earning capacity and nothing for loss of prospective promotion claimed by the plaintiff.  Indeed looking at her summary as to the value of the plaintiff's claim, one can only come to the conclusion that the summary was a very stringent calculation of the amount of the claim which I will come back to later on in this Ruling.

8. It is common grounds between the parties that the plaintiff, whose pre-accident job was that of a restaurant captain mainly concerned with public relations, was totally off work for the first nine months after the accident, no doubt by reason of the sick leave granted to her.  In the following eight or nine months after her sick leave, she took up work as a cashier at a reduced salary (than her pre-accident salary) and did not go back to her pre-accident work as a restaurant captain.  By May 2005 she was not able to cope even with the work of a cashier and stopped work after that time.  There is in evidence a notice of an adjustment of salary dated 20 February 2005 which would suggest that the plaintiff's earnings from 1 March 2005 onwards came to a total of some $7,477 in her alternative employment after the accident.  However that employment ceased some time in May 2005, therefore at best that salary would only have continued for several months from March 2005 up to the termination of that employment in May 2005. 

9. However in the defendant's working calculation, that amount of salary $7,477 was taken to be what the plaintiff was earning by way of alternative employment throughout the pre-trial period as well as for the working out of the future loss of earnings. 

10. This fact, however, was not brought to the attention of the master when this dispute was argued before her.  It was only brought to my attention in this appeal. 

11. In a written note by the Master, written in her own handwriting when giving the order below, the Master stated that she had accepted the submission of the defendant when she made the order for District Court's scale of costs to apply in this case.  It is therefore clear that the master in making that order had therefore exercised her discretion on a wrong factual basis. 

12. In the calculation put before me by the plaintiff and by the defendant respectively insofar as their calculating loss of earnings both pre-trial and future are concerned, the difference between them including loss of MPF comes to this : for pre-trial loss of earnings, the difference is some $20,000 and for future loss of earnings, the difference comes to $243,000.  Just looking at the differences between the two calculations alone without dealing with any other differences for any other heads of damages claimed, the amount of that difference for the loss of earnings would be sufficient for any court to come to the conclusion that there was a reasonable prospect of the plaintiff to have succeeded on a sum over and above the District Court jurisdictional level in this claim. 

13. When a solicitor is presented with a prospective claim by a client as a plaintiff in a personal injuries case, if that prospective claim works out to be a border line one, that is one which may on one view exceeds, even though marginally, the District Court jurisdiction but on another view may be assessed at just below the $1 million mark, that solicitor would normally be put in a dilemma as to where to start the claim if at the end of the day, it is the exact amount which is either assessed or settled that matters.

14. It is for this very reason that the court has seen fit to allow for High Court's scale of costs if such a claim is brought in the High Court, but as it turned out, settled for an amount below the $1 million mark.  This is reflected in the very words used being the criteria for the determination of the scale of costs to apply, namely, that the plaintiff had a reasonable prospect of recovering an amount over the District Court jurisdictional limit. 

15. It is only where the court having viewed the overall circumstances of the case and obviously the facts of that case and can then say, given all the facts of the plaintiff's case when pitched at its highest, the plaintiff could not have had any reasonable prospect of claiming beyond $1 million through liability, then in those circumstances would the court order District Court's scale to apply.  That, however, is not the case here. 

16. For the reasons given, this appeal must be allowed.  The order of the master be set aside and substituted by an order that the High Court's scale of costs to apply in this case in so far as the costs of the action is concerned.  That is the order I make.