LI YING YI AND ANOTHER v. LO HAU ON AND OTHERS

HCPI 809/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.809 OF 2001

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R U L I N G

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1. The plaintiffs apply for a second interim payment of $1,500,000.00. They already obtained an interim payment of $500,000.00 ($250,000.00 for each of them) which was ordered by Seagroatt J on 23 November 2002.

2. The plaintiffs, who are husband and wife were injured in a road accident on 1 October 1998 when the motorcycles which they were each riding came into collision with a goods vehicle. The action against the 1st defendant has been discontinued; the 2nd and 3rd defendants have admitted liability. What is in issue is quantum.

3. Order 29, rule 11 of the Rules of the High Court provides :

"If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied-

(a) that the defendant against whom the order is sought (in this paragraph referred to as 'the respondent') has admitted liability for the plaintiff's damages; or

(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or

(c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them,

the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely."

4. The defendants have admitted liability. There is no question of counterclaim or contributory negligence.

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 son 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, 2002 edition at paragraph 29/11/4.

6. In this case, there will be some delay before the assessment of damages can be heard. The defendants complain that any delay is of the plaintiffs' own making; they could have had an assessment set down later this month but vacated it, and now it seems unlikely that the assessment will he heard before April 2004, if then. Also there has generally been delay on the plaintiffs' part. However I do not think this matters. I do not see that I could penalise the plaintiffs for delay by refusing an interim payment.

7. At the same time, although the plaintiffs have in their most recent joint affirmation sought to demonstrate need, I do not think this can be taken into account either. It is unfortunate but true that the neediest plaintiff is the least likely to be able to repay, if an interim payment turns out at the end of the day to be an overpayment. So there is only one issue and that is as to the quantum of the interim payment.

8. As indicated the plaintiffs are husband and wife. Also they worked together pre-accident in the business of production and publication of comic books for comic book publishers. The 2nd plaintiff made the drawings, and the 1st plaintiff handled all the administration. They had their own business, named Yau Yi Production Company. After the accident, from 1 November 1998 to 31 August 2000 they carried on comic book production in the names of Mei Production Company and Man Yau Production Company. It is their case that neither of them is now able to carry on the work which he or she did before the accident.

9. The 1st plaintiff suffered a right orbit injury and a compound fracture of the right radius and ulna. Both required surgery. The experts agree that she now suffers only from stiffness of the right wrist and weakness of grip, and that she can carry out sedentary work as the administrator of the business, as before the accident.

10. The 1st plaintiff's facial and eye injures were more serious. She has scarring under the eye, and on the forearm, and some facial deformity following the operation for correction of the orbital fracture, which she claims needs plastic surgery. As to the opthalmological sequelae there is considerable dispute. She claims to have severe loss of vision in the right eye. Her expert says she has binocular diplopia, blurred right vision and difficulty in focussing her right eye. He says that she has optic nerve neuropathy. However the defendants' expert believes that her eye condition is as it was before the accident. She only has an ocular motility disorder (which the plaintiff's expert also mentions) but there is no evidence of neuropathy and on the loss of vision the 1st plaintiff is malingering. There is apparently also some evidence from a private investigator that she was seen reading newspapers and magazines.

11. The plaintiff's solicitors estimate the 1st plaintiff's claim for pain, suffering and loss of amenity at $550,000.00 and the defendants' solicitors estimate it at $300,000.00.

12. The 2nd plaintiff was admitted to hospital suffering pain and bruising of the left chest and back. He was discharged from hospital after 10 days. According to his expert, Dr Chan Kow Tak, he suffered bruises and his residual symptoms are left upper backache. There is residual left upper lumbar backache and muscle spasm. X-rays confirm a fracture of the infero-lateral aspect of the L2 vertebra with evidence of healing. There is no objective neurological deficit and the 1st plaintiff resumed work on 20 November 1998.

13. The defendants' expert Dr Lee Po Chin agrees that the 2nd plaintiff only suffers from mild residual lower back pain. He found degenerative changes in the lumbar spine, with a fracture of the transverse process. Apparently there had been no report of fractures when X-rays were taken at the hospital. In any event, according to Dr Lee, the 2nd plaintiff's condition is permanent; he will continue to have discomfort and pain associated with the fracture. But he should not have any problem in returning to his pre-accident work. He may need more change of posture, and there may be mild pain in the back after long periods of sitting. There would be restriction in lifting heavy weights but this would not affect his work as a comic book writer. The 2nd plaintiff's claim for pain, suffering and loss of amenity is $300,000.00. The defendants' solicitors put it as $200,000.00.

14. Now the 2nd plaintiff seeks to rely on another expert, Dr David H.F. Cheng. This expert shows the 2nd plaintiff's condition in a rather worse light. He says that there would be symptoms on prolonged sitting or walking for more than 30 minutes, and lingering pain even at rest. So his work efficiency as an artist would be impaired by about 20%.

15. The plaintiffs put their loss of earning capacity in each case at $300,000.00 whereas the defendants put it at $150,000.00. There is also dispute over the medical expenses; the 1st plaintiff claims $103,418.00 but the defendants' solicitors say that only $8,418.00 should be allowed. There is also dispute over the special damages. The major dispute, to which I will come back later, relates to loss of earnings; the plaintiffs claim pre-trial losses of over $23,000,000.00, and post-trial losses of anything from $3,800,000.00 to $28,000,000.00, though the solicitors have advanced a figure for the purposes of their application of $2,411,000.00. The defendants however attack the basis of the claim and say that no award for loss of earnings should be made. On the defendants' estimate, the plaintiffs are likely to be awarded less than $1,000,000.00 between them; and since they have already had an interim payment of $500,000.00 no further payment is appropriate.

16. The plaintiffs' claim for loss of earnings is based on the 2nd plaintiff's evidence that he had an oral contract with a famous comic book producer, Jade Dynasty, to produce 52 weekly issues per year of a certain comic book. The contract came to an end because the 2nd plaintiff could not, because of his continuing disabilities, meet the deadlines. But, had it gone on, the contract would have produced a minimum fee of $33,200.00 per month plus various bonuses. In fact there are figures for two months' receipts, at this net rate and the plaintiffs are relying on these figures in support of their present application. I do not need to go into the other, and much higher, figures which they will seek to put forward at the assessment. The 2nd plaintiff also says that after this work finished he tried to produce his own comic book but again was unable to carry on, because of his post-accident disabilities.

17. It appears that the 2nd plaintiff continued production for Jade Dynasty for about eight months after the accident. Then he published his own comic book up to September 2000. Editorials written by him in the latter indicate that the 1st plaintiff was doing the administration and indeed everything else for the business, as before. So both plaintiffs were able to work for some time after the accident. So far as the plaintiffs' tax returns are concerned, there does not seem to be much difference between pre-accident and post-accident income, while their business continued. There seems to be no suggestion that the 1st defendant could not now do administrative or clerical work for some other concern than the plaintiffs' own business.

18. The 2nd plaintiff's editorials attempt to explain to his loyal followers why he was no longer working for Jade Dynasty but they do not indicate that he had any physical difficulty in doing the work. It is argued that he would not say this in any event, but obviously any inconsistency between his evidence at the assessment and what he has written in the past will be a matter for cross-examination. The same of course will apply to his statements in editorials that "there is no big problem with my wife's eye now".

19. There are, it seems to me, considerable disputes both as to the extent of the plaintiffs' continuing disabilities, and their ability to work now and in the future particularly since there is a history of work post-accident. I think these disputes can only be resolved on evidence, at the assessment. What is necessary for the purpose of this application is to decide what damages are likely to be recovered, and then what is a reasonable proportion of them for the purposes of interim payment. It seems to me difficult if not impossible to say at this stage what damages are likely to be recovered. They could be as little as the figure put forward by the defendants' solicitors. It seems to me that to order a further interim payment would be to risk overpayment. It also seems to me that the plaintiffs' best course would be to seek to have the assessment heard as soon as possible so that the disputes as to quantum can be resolved.

20. The plaintiffs' summons is therefore dismissed with costs nisi to the defendants in any event. I understand that the plaintiffs are legally aided so their own costs are to be taxed if accordance with the Legal Aid Regulations.