CHOW KOON TUNG v. SZE KWOK YIU LARRY

HCPI 544/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 544 OF 2013

_________________________

_________________________

_____________

D E C I S I O N

_____________

1.  This is the defendant’s application to transfer the case to District Court on the basis that the plaintiff’s claim, taken to the highest, would not exceed HK$1,000,000.

I.  Background

2.  This case concerns a road traffic accident between the cars of the plaintiff and defendant on 18 July 2010.

3.  There is no need to go into the details of the accident or the subsequent medical treatment.  The important points affecting the assessment of quantum in this case are:

(a) The plaintiff is a freelance computer programmer who owns a computer programming company.

(b) The plaintiff allegedly suffered neck and back injuries.  He had a history of 2 previous accidents and injuries.

(c) Both the plaintiff’s and the defendant’s Orthopaedics experts agreed that the neck complaint (which might cause some degree of left arm numbness) was the cumulative effect of all 3 accidents.

(d) The Orthopaedics experts also agreed that he only had soft tissue injury to his back.

(e) Both Orthopaedic experts opined the plaintiff could resume previous work (but there was dispute on whether the plaintiff could work with full capacity or reduced capacity due to “discomfort on prolonged sitting and computer work”).

(f) Both Orthopaedics experts agreed sick leave of 4 to 6 months would be adequate.

(g) As for the parties’ Psychiatric experts, both diagnosed adjustment disorder and agreed that the plaintiff was capable of returning to pre-accident employment with efficiency and tolerance affected “to a very mild degree”.

(h) Both Psychitatric experts are in general agreement regarding sick leave period: “sick leave 3 to 6 months is reasonable” and “might have required sick leave for 6 months”.

(i) The plaintiff’s case was that his pre-accident monthly earning was around HK$39,000 but post-accident earning was only HK$12,000.  He claimed to have earned a total of only HK$273,015.55 in the 3 years after the accident.

(j) However, according to the plaintiff’s Tax Return, his declared income for the whole of the pre-injury year (2009/2010) was HK$50,000 and of the post-injury year (2010/2011) was HK$40,000.

(k) The defendant raised Interrogatories on this.  The plaintiff’s Answer was that, since he had not worked after the first (of the 3) accident in May 2006, he had to borrow money from friends so he had “by mistake” fill in the Tax Return (presumably on both occasions for the years 2009/2010 and 2010/2011) after deducting the debts owned.

(l) In the Answer, the plaintiff went on to claim that various bank statements of his computer company would support such income, although no such bank statement had been produced before the court for the current application.

(m) However, in the plaintiff’s previous claim (HCPI 534/2011) concerning another road traffic accident (which occurred on 12 August 2008, so presumably the second of the three accidents), the plaintiff claimed pre-accident income of HK$23,000 per month but claimed that he was earning only a post-accident income of HK$7,300 in July 2010 (ie at the date of the accident in the current case).

(n) Such claims in earnings were made in the Statement of Damages of HCPI 534/2011 and supported by a Statement of Truth signed 28 July 2011, which was 1 year after the accident in the current case.

4.  Against this background, the plaintiff claims the following in his Statement of Damages:

	HK$
PSLA	650,000.00
Pre-trial loss of earnings	1,132,409.33
Pre-trial expenses	57,126.00
Future loss of earnings	5,739,962.04
Future medical and travel expenses	50,000.00
Loss of earning capacity	83,256.00
Total:	7,712,753.37

II.  Legal Principles

5.  The legal principles regarding transfer of cases from this court to District Court are trite: Suffiad J in Wong Miu Kwan v FPD Savills Property Management Limited HCPI 1061/2003, at paragraph 21: -

“…Quite apart from such statutory provisions….a master should also consider the following matters:

(a) In the absence of abuse, a plaintiff should be entitled to frame his case in the manner that he wishes.

(b) At an interlocutory stage, it would not be proper for the court or a master to view the plaintiff’s claim in the same way as it would be viewed at trial by weighing the difference evidence or by believing or disbelieving some or all of the evidence, cross-examination and submission has been heard, particularly where there are factual and or other disputes between the parties, as for instance disputed expert opinion.

(c) Accordingly, the plaintiff’s case on quantum as framed by him ought to be viewed at its highest when determining the proper jurisdiction where the case should be brought.”

6.  Deputy High Court Judge Louis Chan summarised this exercise in Chang Chin Wong v Shum Kin Wong and Anor HCPI 1048/2006 as follows:

“On the basis of the descriptions which are favourable to the plaintiff’s case on quantum and relevant decided cases, the court will be able to estimate the upper limit of damages for pain, suffering and loss of amenities….”

“From the descriptions in these reports, the court will also be able to assess the possible short-term and long-term effects of the injuries on the plaintiff’s work capacity and estimate the upper limit of damages for loss of earnings….”

“From these upper limits and the total amount of the claim for special damages, the court will be able to estimate the maximum amount of damages….”

“If this estimated amount does not exceed $1,000,000….the Master should transfer it to the District Court.”

7.  Of course, in the exercising of this estimation, the court is not bound to accept whatever figure that is pleaded by the plaintiff (Master Ng, the then Master of the High Court, in Hung Chor Hung John suing as the administrator of the estate of Chow So Hing, the Deceased v Li Kwok Kin and Anor HCPI 251/2009).

III.  Issues in dispute

8.  As far as PSLA was concerned, Mr Poon, Counsel for the plaintiff, readily conceded that this head of claim was excessive and that it should be around HK$350,000.  Ms Fung for the defendant suggested that this should be below HK$200,000.

9.  I have made the observation in court that the “main battleground” here was not PSLA or, indeed, the other heads of claims on Special Damages. All of these heads of claims should amount to, as I estimate taking the plaintiff’s case to the highest (and taking into account of the largely agreed expert evidence), no more than HK$400,000.

10.  The main battleground is the claim for pre-trial and future loss of earnings, which the plaintiff claims a total of some HK$6.8M.

11.  Regarding these heads of claim, the problem faced by the court here is not much as a factual dispute between the plaintiff and defendant, but rather a dispute between the figures the plaintiff himself declared as his income on various documents (which he himself had signed to be true), i.e. his Tax Returns, Statement of Damages in the current case, Statement of Damages in HCPI 534/2011 and Answers to the Interrogatories.

12.  Of course, it is inappropriate for the court, at this stage, to “weigh the different evidence or by believing or disbelieving some or all of the evidence”, even if all the conflicting evidence has originated from the plaintiff himself.

13.  On top of all this, Mr Poon submitted that, just a few days before this hearing, the plaintiff wrote a letter to Inland Revenue Department to inform them of his “mistake” in declaring his income in 2009/2010 and 2010/2011.  This evidence was not raised by way of any Affidavit or Affirmation, and the letter was not produced in court.  Thus, this was no more than a “promise” of evidence to be disclosed in the future.

14.  Given what the plaintiff had pleaded as his earnings in his Statement of Damages some one year ago in June 2013, quite why this letter was written so late was not explained.  In any case, the plaintiff has only himself to blame for the delay.

15.  Further, Mr Poon also submitted that the plaintiff’s Answer to Interrogatories mentioned that there were bank statements in support of his claimed loss of income.  But these bank statements were not disclosed to the Court or the defendant.  This again was another “promise” for future evidence.

16.  The court cannot decide whether any such “promised” evidence are of probative value or whether, given the timing of revelation, these are mere “smoke-screens” to frustrate the defendant’s application.

17.  Nevertheless, if one takes the experts’ evidence to the highest (ie that the plaintiff could resume work at “reduced capacity”), and if the plaintiff is able to provide such “promised” evidence and to convince the court of his claimed pre and post-accident earnings, and able to convince the court that the difference in earnings was due to such “reduced capacity”, then the claim could easily exceed HK$1M.

18.  Mr Poon suggested that this showed that the current application was premature.  I have to agree with him: the court may have difficulties at this stage to estimate the loss of earnings claims if more evidence is pending as the plaintiff claimed.

19.  I have also considered, in view of the CJR, the time and costs of transferring the case to District Court and the possible risk of another application for the transfer back.  On balance, I think it would be better, at least for the time being, to keep the case at High Court.

20.  However, the difficulties faced by the court are entirely the plaintiff’s own doing: the conflicting evidence of his earnings as well as his delay regarding the “promised” evidence as explained above.

IV.  Conclusion

21.  As such, I will give the order that the defendant’s application be dismissed.

22.  However, in view of the conduct of the plaintiff, I will give an order nisi that there be no order as to costs of and occasioned by this application.