CHIU TSZ YING v. HUI KA CHUN AND ANOTHER

HCPI 590/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 590 OF 2006

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D E C I S I O N

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1.  This personal injury action has been settled upon the Plaintiff accepting a payment into court in the sum of $800,000.  An issue now arises between the parties as to the appropriate scale of costs to which the Plaintiff is entitled.  The Plaintiff says costs should be on the High Court scale, the Defendants say costs should be on the District Court scale.

2.  On 12 March 2005, the Plaintiff was a passenger on board a public light bus driven by the 1^st Defendant.  The 2^nd Defendant was the driver of a second public light bus.  The bus upon which the Plaintiff was a passenger was forced to stop on a southbound slip road leading from the West Kowloon Corridor, its way being blocked by another vehicle which had suffered an accident.  At the request of the 1^st Defendant, the Plaintiff alighted from the bus on which she was travelling, and was walking down the near side of the slip road.

3.  The 2^nd Defendant, following the bus upon which the Plaintiff had been a passenger, failed to stop in time and collided with the rear end of a private car which was travelling between the two public light buses and which had succeeded in stopping safely.  The 2nd Defendant’s vehicle, in the course of its collision with the private car, skidded and struck the Plaintiff, causing her injuries.

4.  The Plaintiff was diagnosed to have suffered a tibial plateau fracture of the right knee, and right pubic rami, and abrasions to her left knee.  She required admission to hospital on two occasions, the first for surgery immediately after the injury, in which she was hospitalised for 11 days, the second for the removal of an implant stabilising the knee, in which she was hospitalised for three days.

5.  The Plaintiff, aged 19 at the time of the accident, suffers right knee pain and stiffness.  She has a 12°valgus deformity of the right leg, and five scars on the lateral aspect of her right knee.  It is right that, anatomically, the femur and tibia in females normally forms a valgus angle of 4°to 8°, and the valgus angle of the Plaintiff’s left knee is 8°.  However, contrary to the assertion of Dr Lam, that does not demonstrate a small deformity in the right knee, but a significant deformity, one of 4°.  She has a 10°deflection deformity of her right knee, and her right knee movement is limited.  Her orthopaedic surgeon has assessed total bodily impairment at 10%.  The orthopaedic surgeon for the Defendant assessed loss of earning capacity at under 3%.

6.  In the same year as the accident, in fact very promptly, on 7 December 2005, and plainly well before the full nature of her injuries were known, proceedings were initially commenced, only against the 1^st Defendant, in the District Court claiming a sum of $907,644.  On 10 May 2006, proceedings were transferred, by consent, to this court, and the 2^nd Defendant was joined in the proceedings.  In June 2007, a revised statement of damages filed, claiming $2,294,200.  By this time the Plaintiff had her orthopaedic surgeon’s report.

7.  It is quite clear that the test to be applied in fixing the appropriate scale of costs when an action is settled, is that stated in Lai Ki v B + B Construction Co Ltd [2003] HKLRD 192, and that in fixing that scale, all questions of contributory negligence must be ignored.

8.  Mr Li has referred me to the decision of Fung J in Wong Lan & Anor v Hong Chang Construction Transportation Engineering Co Ltd & Anor, (Unreported HCPI 973/2005).  The decision makes it clear that costs are in the discretion of the court.  It is right that the judge says at para 44, that on acceptance of a payment into court, the plaintiff is automatically entitled costs, but not necessarily on the High Court scale.  But there is nothing in that decision to suggest that the test approved by Seagroatt J in Lai Ki is not equally appropriate when a payment into court is accepted.

9.  It is clear that in the present case there were serious issues of contributory negligence.  The Plaintiff, albeit having been required to alight from the public light bus by the driver, did so late at night on a slip road of a very busy highway.  It was open to her to wait on the bus until the police arrived and she could safely be escorted from the vehicle.  If she chose to leave the vehicle she would have to take great care in negotiating her way off the slip road.  It was plainly arguable that it would have been dangerous to attempt to walk along the slip road until she could be sure that the way was clear.  I need say no more.  It is clear that contributory negligence was a serious issue in this case.

10.  In their skeletons both counsel have attempted to argue this matter as though it ought to undertake an assessment of damages.  Mr Wong, with his customary industry, has referred to no less than nine authorities on PSLA alone.  Mr Li refers to another three different authorities on PSLA.

11.  An argument on costs should not be permitted to degenerate into what amounts to a full argument on the issue of quantum of damages, as though the matter were an assessment of damages.  In assessing the value of the claim, disregarding contributory negligence, for the purposes of a costs argument, the court will necessarily take a broad view of the matter.  It will only be on rare occasions that any authority on levels of PSLA or other aspects of damages will be required.  The court will not go into questions of damages in any depth.

12.  It was argued by Mr Li that the Plaintiff had not asserted any reason for commencing the proceedings in the District Court.  It is plain that she did so because that time the claim was thought to be worth less than $1 million, and she was advised not to take the risk of suffering in costs by commencing a District Court claim in the High Court.

13.  The plain reason for moving the matter into the High Court is that when the full nature of the injury became obvious it was plain that the claim would exceed the limit of the District Court.  The decision to remove the matter into the High Court was on counsel’s advice, and was with the consent of the defendant.

14.  To assert, as Mr Li did, that the Plaintiff had “wilfully” commenced the proceedings in the District Court is beside the point. While it is right that costs are determined on the basis of the court in which the proceedings commenced, that is not an absolute rule requiring all proceedings commenced in the District Court and subsequently transferred to the High Court to be dealt with on the District Court scale.  Whether the proceedings began in the District Court and were transferred, or initially commenced, in the High Court, the real question at the end of the day will be the value of the claim, disregarding contributory negligence, and workers compensation if relevant.

15.  It is right that there was no time limit issue, the plaintiff having acted very promptly in commencing her proceedings.  The effect of Mr Li’s argument would be to punish a plaintiff who acts promptly in bringing proceedings, only to subsequently learn that the value of the proceedings exceed the jurisdiction of the District Court, and to then exercise the right to transfer the claim to the High Court, in order that the jurisdictional limit may not prevent proper satisfaction of the claim.

16.  There is no prejudice, and no unfairness to the defendant in awarding costs, following the transfer, on the High Court scale.  Any defendant in the District Court knows that he is at risk of the proceedings being transferred to the High Court, should the plaintiff wish to claim more than $1 million.  To insist, as Mr Li would have it, but the costs must be limited to the scale in court with the proceedings commence, even after transfer, would wrongly encourage proceedings which might properly be filed in the District Court to be brought in the High Court.  The argument propounded by Mr Li, based upon a strict interpretation of the procedure, must fail.

17.  It is not without significance that the defendant did not object to the transfer, arguing that he was at a risk of unfairness in relation to costs.  Instead the transfer was by way of consent.

18.  This is plainly not one of those occasions in which any detailed examination of damages issues is required.  It is abundantly plain from the extent of the Plaintiff’s injuries that this was a case in which the total damages awarded might well exceed $1 million.  Having regard to the age of the Plaintiff, and the extent and nature of her injuries I have not the slightest doubt at all that this was a claim which, disregarding issues of contributory negligence, was likely to be worth more than $1 million.  That was revealed when the medical report was received.

19.  There will be an order that the Plaintiff will have her costs of the action to be taxed on a party and party basis, on the District Court scale to 26 June 2006, thereafter, on the High Court scale.  Costs on the appeal to the Plaintiff on the High Court scale.