WONG MIU KWAN v. FPDSAVILLS PROPERTY MANAGEMENT LTD

HCPI 1061/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1061 OF 2003

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R E A S O N S  F O R  D E C I S I O N

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1. This is an appeal by the plaintiff against an order of Master Kwan made at the Check List Review hearing transferring the plaintiff’s claim to the District Court.  That order dated 4 November 2004 now appealed against was made by the Master of her own volition, without the least suggestion by the defendant.

2. At the hearing of this appeal, the defendant did not see fit to appear but indicated by letter to the court that they would take a neutral stand in the appeal.  The only request made by the defendant was that there should be no order as to costs in respect of this appeal and which was acceded to by the plaintiff.

3. After hearing submissions from counsel for the plaintiff, I allowed the appeal, but indicate that I would give my reasons in writing at a later stage.  I now do so.

The plaintiff’s claim

4. The plaintiff is a female, and was 45 years old at the time of the accident in November 2000.  Her claim is for damages for personal injuries against her former employers.  Her injuries were sustained by her when she slipped and fell on a ramp during the course of her employment as a building supervisor because the ramp used for loading and unloading goods at her place of work became wet and slippery after use.  It is the plaintiff’s case that as a result of her slip and fall on this ramp, she sustained a back injury with continuous back pain.

5. As for the amount of damages, the total claim pleaded by the plaintiff came to over $1.7 million as pleaded in her Statement of Damages, made up as follow :

	$
PSLA	350,000
Pre-trial loss of earnings	277,409
Future loss of earnings	889,308
Loss of earnings capacity	150,800
Loss of MPF	55,145
Special damages	13,200

6. Credit is given by the plaintiff for the amount of $85,756 being employee’s compensation already received by her, thus reducing the claimed amount to $1,650,107.

7. In so far as the loss of earnings claim is concerned, it is the plaintiff’s case that her pre-accident earning was $11,900 per month.  After the accident, the plaintiff was granted sick leave totalling some 57 days.  The sick leave ended in January 2001.  After this sick leave expired, the plaintiff returned to work for the defendant in the same capacity as before the accident with the same salary.  She continued in this work until the end of September 2002 when she resigned from the work with the defendant.  Shortly after the resignation with the defendant, the plaintiff secured alternative employment as a security guard earning on average $4,332 per month.  She has continued in this alternative employment throughout.

8. In formulating her claim for loss of earnings, both pre-trial and future, it is the plaintiff’s case that after the sick leave expired in January 2001, she returned to her pre-accident work despite the fact that she still suffered back pain.  The reason given was that she had to earn money for her family despite her back pain.  However, by September 2002 she had to look for a light duty job because of her continuous back pain.  That resulted in her taking up the alternative employment with Professional Security Services Ltd since 23 November 2002 which paid substantially less than her pre-accident employment.  At the time when she resigned from the defendant in September 2002, her salary was $11,600.  These matters are stated in the Statement of Damages.  Up to this stage of the proceedings, there does not appear to be any witness statement from the plaintiff in this matter from the bundle of documents used in this appeal before me.

9. On this basis of claim, the loss of earnings, both pre-trial and future, was calculated on the difference between her earnings in her job with the defendant and the earnings she was able to get in her alternative employment with Professional Security Services Ltd.  As for the future loss of earnings claim, a multiplier of 9 was adopted by the plaintiff in quantifying that head of claim in the Statement of Damages.

10. The plaintiff was examined by Dr Lau Hoi Kuen, the plaintiff’s orthopaedic expert, in November 2003.

11. After examining the plaintiff, Dr Lau commented that she suffered left wrist tenderness and back and right pelvic tenderness with decreased range of movement of the lumbosacral spine as a result of her accident on 2 November 2000.  X-ray of the lumbosacral spine showed decreased lordosis.

12. In his opinion, the MRI of her lumber spine taken in September 2001 had showed degenerative changes in her lumbosacral spine.  These degenerative changes should have existed before the accident on 2 November 2000.  But as the plaintiff was problem free before the accident, he opined that the accident was the cause of the persistent back pain.

13. He further stated that the plaintiff has had a long period of conservative treatment of her back which should have improved but that she is still left with significant residual pain over her low back.  However, there is no evidence to suggest that she is suffering from radiculopathy of her lower limbs.

14. He further opined that with the degenerative change and her persistent low back pain, the plaintiff needs to avoid heavy lifting, but should be able to continue to work as a security guard or building supervisor although with a degree of reduction in efficiency because of the back pain.

The law, practice and jurisdiction as to transfer

15. Section 43 of the District Court Ordinance allows the Court of First Instance of its own motion order the transfer of the District Court of all or part of any action of proceedings, which appears to the Court of First Instance, likely to be within the jurisdiction of the District Court.

16. Under Practice Directions 18.1, the Personal Injuries List, Direction 10 thereof deals with the Check List Review.  Under 10.12 thereof, a master is given the power to make a wide range of orders including, in sub-paragraph (f) thereof, :

“… any other order as may be deemed appropriate for the just expeditious and economic resolution of the action …”

17. In the case of Hang Seng Credit Card Ltd and ors v. Tsang Nga Lee and ors [2003] 3 HKC 269, a decision of Yam J, it was held that a master had the jurisdiction to order the transfer of a case from the High Court to the District Court.  In so holding, Yam J declined to follow an earlier decision of Jones J in Inchcape Hong Kong Ltd v. Performa (Asia) Ltd [1992] 2 HKC 364 on the point of jurisdiction of the master.

18. In the present case, it is not disputed by counsel for the plaintiff that a master had jurisdiction to transfer a case from the High Court to the District Court.  What is complained of by the plaintiff is that the master had erroneously exercised that jurisdiction and in doing so had effectively prevented the plaintiff from formulating her claim in the way that the plaintiff wanted to formulate it.

19. When determining the proper jurisdiction, whether District Court or High Court, in a personal injuries case, the court or a master may properly take into consideration any employee’s compensation already paid to and received by a plaintiff as provided for by section 32(2)(b) of the District Court Ordinance.

20. However, contributory negligence should not be taken into consideration unless such contributory negligence has been admitted by the plaintiff in his Statement of Claim (see section 32(2)(c) of the District Court Ordinance).  In practice, it will rarely be that a plaintiff will admit to contributory negligence in his Statement of Claim, but rather that will be a matter pleaded and relied on by the defendant.  If that be the case, the contributory negligence pleaded only by the defendant should not be taken into consideration in determining jurisdiction.

21. The above two matters are specifically provided for by statute.  Quite apart from such statutory provisions, as a matter of practice, the court or 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 different evidence or by believing or disbelieving some or all of the evidence.  That exercise can only be carried out when all 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.

22. In the present case, I have no doubt that the master erred when she ordered the case to be transferred to the District Court because she had allowed her mind to be influenced by the fact that the plaintiff had returned to her pre-accident work for some 21 months before resigning from it and thereafter was able to, within a short time, obtain alternative employment doing a similar type of work as a security guard of a building, albeit at a reduced salary.

23. Effectively, therefore, the master had dismissed from her mind the possibility of the plaintiff’s claim for loss of earnings, both pre-trial and future, with possibly the exception of the sick leave period of some 57 days.  In doing so, the master had already disbelieved the plaintiff’s explanation.  There the master erred.

24. The danger in such a course as adopted by the master is that at the trial of this matter, there is a possibility that the explanation given by the plaintiff may be accepted by the trial judge.  That possibility is not such a far-fetched one as it has some support from the opinion given by Dr Lau who says, in November 2003 when he examined the plaintiff, that she is still suffering from persistent back pain although he also opines that she can return to her pre-accident employment but with less efficiency.

25. I have also deliberately left out in this judgment and also from my consideration the opinion given by the defendant’s medical expert since that cannot be a matter for consideration when determining jurisdiction but would be for the trial judge to consider what weight is to be put on it as opposed to the plaintiff’s medical expert’s opinion.

26. It was, for these reasons given above, that I allowed the appeal by the plaintiff.