WONG TAK SHUN v. LUK CHUECK WAH STELLA

HCPI 9/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.9 OF 2005

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D E C I S I O N

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1. By an order dated 19 August 2005 Master Kwan transferred this personal injuries action to the District Court.  The plaintiff now appeals that order.  The master made the order after hearing submissions.  Although no written reasons were given I am informed by both counsel on appeal (Mr Simon Lam for the plaintiff and Mr Ashok Sakhrani for the defendant) that the key factor which caused her to transfer the case to the District Court was that the plaintiff’s claim for future loss was virtually nil.  In short, the master’s decision was a reasoned exercise in case management having heard submissions from both parties.

2. If, on the evidence presently available, the plaintiff’s claim, on a full liability basis, could exceed $1 million then it should remain in the Court of First Instance.

3. For the purposes of this appeal I make no findings on matters which are genuinely controversial.  I say “genuinely” for the following reason.  The mere fact of conflicting evidence or conflicting opinions does not mean they should be left to the trial judge.  If one side is advancing a piece of evidence or an opinion which, when contrasted with the other side’s evidence or opinion, is plainly untenable, fanciful or dishonest it may be safely discounted at this stage.

4. With this proviso, this court should examine only non-controversial matters to see if a safe assessment can be made as to damages which would place the case either firmly in the District Court or firmly in the Court of First Instance.  A borderline case should stay in the higher court.

5. The injuries were sustained when the plaintiff was driving his taxi on 7 January 2002.  His vehicle was shunted from behind whilst it was stationary at traffic lights.  He was taken to hospital where X-rays were taken.  He was discharged the same day.  He commenced follow-up treatment on 14 January 2002 and had physiotherapy from April to July 2002.  Both sides’ medical experts describe the injury as a “minor whiplash”.

6. The plaintiff’s first statement of damages is dated 8 February 2005.  Subsequent directions required a revised statement of damages by 30 September 2005.  This has yet to be filed.

7. In the course of submissions, Mr Lam for the plaintiff gave oral revisions to the statement of damages, to which I shall refer in turn, when commenting briefly on the three key heads of damage in this case.  Those three heads are PSLA, past loss of earnings and future loss of earnings.

(1)     PSLA

8. In the original statement of damages this was put at $400,000.  Mr Lam orally revised it downwards to $300,000.  The authority he cited in support of $300,000 was plainly more serious than the present case.  $300,000 is untenable.  It is significantly more than the plaintiff can expect.  The medical evidence confirms it was a “minor whiplash injury”.

(2)     Past loss of earnings

9. The plaintiff has received sick notes for 42 months.  He puts his pre-accident earnings at $13,000 a month.  No evidence in support of this figure was advanced.  Both medical experts considered the plaintiff fit for work after two years.

10. At trial it is difficult to imagine how the plaintiff would be awarded more than 24 months at a monthly rate which was supported by evidence.  In addition he could advance an argument in support of another number of months (up to a maximum of 18 to-date) at a lower rate which would reflect the fact that the plaintiff was fit to return to being a taxi driver, albeit not full time, because periods of rest were needed more frequently than normal due to pain in his neck.

11. The plaintiff’s claim in the original statement for 42 x $13,000 for past loss of earnings is untenable, both as the duration and amount.  The starting point would be 24 months multiplied by provable monthly earnings.

(3)     Future Loss

12. The plaintiff’s claim is that he can only earn $4,000 a month instead of $12,000.  He asks that he be compensated for this shortfall for another 15 years.  The plaintiff is now 39 years old.  Future loss of earnings is therefore put at approximately $1.4 million.

13. At this stage a brief review of the medical (and some other) evidence should be made.  The experts agree that the plaintiff suffered pre-existing degeneration of the spine.  Both Dr Lam for the plaintiff and Dr Tsoi for the defendant were of the opinion that the plaintiff was fit to resume work as a taxi driver.  Their opinions only differed as to when and for how long each day.  The plaintiff’s solicitors suggest that the plaintiff should receive compensation of a minimum of $8,000 a month for 15 years.  This is fanciful.  Dr Tsoi has opined that the plaintiff has been fit to drive for up to 9 hours a day for at least 27 days a month for some time.  Dr Lam is a little less specific and more conservative.  He said (in February 2004) “Mr Wong should be able to resume his work as a taxi driver by now, but with reduced working endurance and hours of working”, (in March 2004) “Mr Wong should still be able to work as a taxi driver” and (in June 2005) “I agree with Dr Tsoi that Mr Wong can resume work as a taxi driver”.

14. I understand that the defence will rely on a surveillance video, taken of the plaintiff in January 2005.  I have not seen that video and so attach no weight to the surveillance report which I have seen.

15. In short the Master no doubt took the view, and I agree, that the plaintiff’s future loss was, at worst, nil or, at best, a small percentage of his monthly wages as a taxi driver for a short period of time after he became fit to resume driving.  It is worthy of note that in February 2003, just one year after the accident, the plaintiff informed a Dr Fong Chi Ming of the United Christian Hospital that he was able, then, to drive 5 hours a day.

16. Loss of earning capacity, likewise, would be either nil or token in these circumstances.  Other special damages are likely to be agreed and are modest.

17. Taking all three main heads of damage together and adding the above small items (and assuming interest would also be well under $50,000), I am satisfied that Master Kwan’s direction has not been demonstrated to be wrong and should stand.

18. Ultimately, the plaintiff’s award, once viewed realistically by both sides, may well be towards the higher end of the District Court scale.  However, on the basis that it would not seriously threaten the Court of First Instance’s jurisdiction, case management has, in my judgment, been properly exercised in this case.

19. The plaintiff’s appeal must fail with a cost order nisi to the defendant to be taxed if not agreed.

20. I have deliberately delayed the handing down of this decision.  At the time of the hearing I informed the parties that I would do so in case the hearing itself had enabled the parties to focus on the real issues and realities of the case, so that further negotiations might take place with the real prospect of a further saving of time and money to both sides and anxiety to the plaintiff.  I informed the parties that I would therefore not hand down a written decision before 29 October 2005.