LEUNG CHOI PING v. LEUNG KING CHOI AND ANOTHER

HCPI 975/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 975 OF 2006

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D E C I S I O N

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1.  The issue to be decided is whether the Plaintiff should be entitled to have her costs taxed on High Court scale or District Court scale.

BACKGROUND

2.  The Plaintiff was a cleaning worker.  On 6 August 2005, she was pushing a handcart loaded with refuse that she had collected when she was knocked down by the light goods vehicle owned by the 2^nd Defendant and driven by the 1^st Defendant. 

3.  The Plaintiff suffered serious injuries and was taken to Caritas Medical Centre for emergency treatment.  She received hemihepatectomy and later developed ankle edema and pleural effusion.  She was eventually discharged from hospital on 30 August 2005 with follow-up treatment at outpatient clinics.

4.  On 9 November 2006, the Plaintiff commenced this personal injuries action against the Defendants to claim for common law damages. 

5.  By an order dated 22 June 2009 made with the consent of the parties, the Plaintiff was granted leave to accept the total sum of $850,000 paid into court by the Defendants.  By consent, the Defendants have been ordered to pay the Plaintiff’s costs of this action up to and including 2 October 2008 and the court made no order as to the costs incurred thereafter.

DISCUSSION

6.  The settlement sum of $850,000 falls within the jurisdiction of the District Court.

7.  According to Seagroatt J in Lai Ki v B+B Construction Co Ltd [2003] 3 HKLRD 192 at para.21 (which is not disputed):

“The position in relation to a claim in the High Court settled or adjudicated upon in a sum which is within the District Court jurisdiction is as follows:

(1)          The usual order will mean that costs will be on the District Court scale unless the High Court is, in the exercise of its discretion, persuaded that there was a reasonable prospect of obtaining an award in excess of the District Court jurisdiction.  To that end the valuation of the claim must be on the basis of full liability;

(2)          …”

8.  It is common ground that the matter has to be viewed at the time when the writ was issued and given the circumstances pertaining at that time: see Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Limited, HCPI 77/2007, 9 September 2008 (Suffiad J) at para.14.

9.  The parties have respectively quantified the Plaintiff’s claim as at the commencement of this action as follows:

	Plaintiff’s quantification	Defendants’ quantification
PSLA	$600,000	$400,000
Pre-trial loss of earnings inclusive of loss of MPF	$138,600	$100,800
Future loss of earnings inclusive of loss of MPF	$504,000	$201,600
Special damages	$14,720	$14,720
Loss of earning capacity	$100,000	$100,000
Cost of future medical treatments	$36,960	$36,960
Accrued interest	$25,865	$9,000
Total	$1,420,145	$863,080

10.  Based on their respective calculations, the Plaintiff’s solicitor contends that there was reasonable prospect for the Plaintiff to obtain an award in excess of the District Court jurisdiction of $1 million, whereas the Defendants’ solicitor seeks to argue otherwise.

11.  It has been said that an argument on costs such as the present one 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.  The court will not go into questions of damages in any depth and it will only be on rare occasions that any authority on the levels of PSLA or other aspects of damages will be required: see Chiu Tsz Ying v Hui Ka Chun, HCPI 590/2006, 18 July 2008 (Saunders J) at para.11.

12.  Both solicitors agree that for present purposes, I need only to focus on:

(a)  PSLA; and

(b)  future loss of earnings.

(a)  PSLA

13.  This depends on the injuries suffered by the Plaintiff as a result of the accident, the treatment received and her prognosis.

14.  On arrival at the hospital on the day of the accident, the Plaintiff was in serious condition and circulatory shock.  There were pain, tenderness and bruises over her right chest wall and the right side of her abdomen.  Chest X-ray showed fractured right 8^th rib and right clavicle.  Ultrasound scanning of her abdomen revealed fluid inside, which was consistent with haemoperitoneum.  The Plaintiff was actively resuscitated and then sent to the operation theatre for laparotomy.

15.  The surgical team found 2 litres of blood in the Plaintiff’s abdominal cavity and a deep laceration at the right lobe of the liver.  Right hemihepatectomy was done to stop the severe bleeding.  After the operation, the Plaintiff had encephalopathy with mild elevation of blood ammonia and developed sputum retention and pneumonia.  Intensive treatment was given and her condition was finally stabilized.  Twelve days after she had been admitted to ICU,she was transferred to the general surgical ward for further management.

16.  The Plaintiff then developed shortness of breath and bilateral legs edema.  Chest X-ray showed bilateral pleural effusion.  She received further treatment in the medical ward.  The Plaintiff responded well and plural effusion and leg swelling decreased.  She was finally discharged on 30 August 2005.

17.  The Plaintiff received follow up treatment at the Surgical Outpatient Clinic and the Orthopaedics Clinic.  She also received physiotherapy for about 3-4 months.

18.  The Plaintiff was examined by Dr. Au Ka Kau on 28 April 2006.  X-ray showed healed fracture of the 8^th rib with minor buckling, healed fracture of right clavicle with residual bony deformity, and normal and intact left knee joint.  The doctor’s findings were:

(a)  There were multiple scars over the body.

(b)  There was no muscle wasting of the upper limbs and the neurological status was normal.

(c)  Movement of the right shoulder was limited.

(d)  There was a 23 cm surgical scar over the midline of the abdomen with tenderness over left the costal margin.

(e)  Air entry was normal on both sides.

(f)   There was tenderness over both patello-femoral joints with crepitation on knee-bending.

(g)  There were 2 hypertrophic scars over the anterior aspect of the left knee but no swelling or effusion.  There was muscle wasting of the left leg.  Movement of the left knee joint was normal but full flexion would cause pain.

19.  Based on such findings, Dr. Au opined that:

(a)  The Plaintiff’s right shoulder pain and tenderness is compatible with the shoulder injury she sustained during the accident.

(b)  The Plaintiff probably sustained concomitant injury to her left knee, which resulted in the kneecap cartilage injury.

(c)  The Plaintiff’s complaint of left chest wall pain probably is unrelated to the accident.

(d)  In the long run, the Plaintiff should avoid activities that involve frequent bending of her knee joint, such as squatting, kneeling and stairs climbing.

(e)  The Plaintiff is not fit to return to her pre-accident job, although she is fit for light duty jobs, such as cashier and car park attendant.

20.  The Plaintiff was also examined by Dr. Edwin Lam on 6 August 2006 and the doctor opined that:

(a)  The Plaintiff has some depression and developed chronic anxiety as a result of her traumatic experience.

(b)  The Plaintiff is not able to return to her pre-accident job but she is fit to perform light duties work.

(c)  In view of the fact that the Plaintiff is a chronic hepatitis B carrier, she is at risk of developing primary hepatoma and cirrosis.  However, her right hepatectomy will reduce her chance for a major liver resection or receiving other forms of treatment such as chemotherapy.  The Plaintiff is therefore prone to developing complications of chronic hepatitis such as ascites and hepatic encephalopathy in the future.  The Plaintiff is advised to follow up with a hepatologist every 6 months.

21.  The Defendant does not dispute the above findings and opinions.

22.  The Plaintiff’s solicitor relies on Yan Chui Sim v Paul Y-ITC General Contractors Limited, HCPI 244/2003, 1 September 2004 (Suffiad J) and Lee Yuen Ngan, Amy Lawrence v Lau Wing Hop, HCPI 233/1999, 4 June 2001 (Suffiad J) in contending that a proper award for PSLA should be about $600,000.

23.  On the other hand, the Defendants’ solicitor has cited Lam Yan Foo v Pun Wai Hong, HCPI 5/1997, 22 March 1999 (Deputy High Court Judge McMahon) and Kwong Yui Hung v Wong Fat Kan, HCPI 336/2001, 20 March 2002 (Deputy High Court Judge Muttrie) in suggesting $400,000.

24.  In my view, Yan Chui Sim and Lam Yan Foo involve different kinds of injuries and are of limited reference value.  The Plaintiff has not developed major psychiatric problems such as those in Lee Yuen Ngan, Amy Lawrence.  The Plaintiff’s injuries are more consistent with that in Kwong Yui Hung although the plaintiff there did not seem to have suffered from depression or anxiety.

25.  Based on the information available at the commencement of this action, it was reasonable for the Plaintiff to expect an award for PSLA in the region of $500,000-$550,000.

(b)  Future loss of earnings

26.  What divides the parties in their quantifications is:

(a)  How much the Plaintiff should be expected to earn in future given her injuries?

(b)  What should the proper multiplier be?

	Plaintiff’s suggestion	Defendant’s suggestion
Plaintiff’s expected monthly earnings in future	$6,000	$8,000
Multiplier	10	8

27.  The Plaintiff was 46 years old at the time of the accident and about 48 years old when this action was commenced.  She was born in Hong Kong and had completed Form 3 education.  She is married and the couple has a teenage son. 

28.  Prior to the accident, the Plaintiff worked as a self-employed cleaning worker earning about $10,000 a month.  She collected rubbish from shops and transfer them to rubbish depots by means of handcart.  She worked 4-5 hours a day and 7 days a week.  I do not have information concerning the Plaintiff’s husband.  But given the fact that they have to support a teenage son, it is reasonable to expect the Plaintiff to continue to work until her normal retiring age. 

29.  It is not disputed that the Plaintiff cannot return to her pre-accident job given her injuries.  However, she can undertake light duty work that do not require frequent squatting, kneeling and stair climbing.

30.  Both solicitors invite me to look at the Table for Average Monthly Salaries of Selected Occupations for 2008-2009 published by Census and Statistics Department.  However, I should be making this assessment based on the information available at the end of 2006 when this action was commenced.  The figures then were lower. 

31.  Having regard to the Plaintiff’s circumstances and the information then available, I do not find the Plaintiff’s suggestions unreasonable.

CONCLUSION

32.  Given my above findings, I am of the view that there was a reasonable prospect for the Plaintiff to obtain an award in excess of the jurisdiction of the District Court.  Even if this were a borderline case, High Court scale should still apply: Lam Wing Sum Monica v. Tam Ka Kit Joe, HCPI 933/2005, 26 June 2006 (Suffiad J) at para.13-15.

33.  The Plaintiff should therefore be entitled to have her costs up to and including 2 October 2008 taxed on High Court scale if not agreed.

34.  Costs normally followed the event.  I make a costs order nisi that the costs of this application be to the Plaintiff to be taxed if not agreed.