WONG CHIM HING v. DISCOVERY BAY TRANSIT SERVICES LTD

HCPI 254/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 254 OF 2011

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R U L I N G

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1. The plaintiff was at the material time an employee of the defendant.  She was injured while on duty on 15 April 2008. 

2. The defendant operated a number of bus routes in Discovery Bay.  The plaintiff was at the material times one of its employees and her duty is to drive the bus.  On the date of the accident at about 8:35 pm, the plaintiff was driving the bus into the bus terminal for route no 8.  It is the plaintiff’s case that the floor of the entrance or exit near the front part of the bus had oil stain and was oily and/or slippery.  When she had to get off the bus in order to drive another bus from Discovery Bay Pier to Tung Chung, she slipped and fell onto the ground from the bus, hurting her back and/or buttocks and her left shoulder hit the kerb of the bus terminus.  She sustained back and left shoulder injury.  It is her case that she could not return to work as a driver and she was on sick leave since the accident.  Her employment ended in June 2013.

3. A Writ was issued on 13 April 2011, just within the limitation period. The Writ was not served on the defendant until 26 March 2012 and a Statement of Damages together with the Statement of Claim was filed herein on 13 June 2012.

4. It is not in disputed that there was a corresponding DCEC action which was settled on 25 June 2010.  As a result, the plaintiff received employee’s compensation in the sum of $360,350.78, which sum shall be set off from any award to be granted by this Court.

5. According to the Statement of Damages, the plaintiff claimed a total sum of over HK$2.9 million after setting off the employee’s compensation.  The total claim was amended in the Revised Statement of Damages to about HK$3.3 million.

6. After the action had been set down for trial, the defendant made a sanctioned payment of HK$700,000.00.  The plaintiff accepted the sanctioned payment on 5 November 2013.  As the settlement sum is less than HK$1 million, the plaintiff took out this application to seek an order for the costs of the action to be taxed at High Court Scale.  The defendant opposed the application.

7. It is not disputed that when a claim commenced in the High Court was settled or resulted in a judgment for a sum which was within the jurisdiction of the District Court, the usual order would be costs at District Court scale unless the High Court, in the exercise of its jurisdiction, was persuaded that there is a reasonable prospect that the plaintiff would obtain an award in excess of the District Court jurisdiction.  As Mr Justice Seagroatt (as he then was) observed in Lai Ki v B+B Construction Company Limited & others [2003] 3 HKLRD 192 at 197, “The acid test therefore has been, ignoring all questions of contributory negligence, has the plaintiff a reasonable prospect of recovering a sum of money in excess of the [District] Court jurisdiction?”

8. Further, in Wong Chi Ho Jacky v Poon Yuk Shan HCPI 910/2002, Deputy Judge Jat SC held that the test was an objective one ie whether it would be obvious to a reasonable plaintiff or his legal advisor that the case was a District Court case rather than a High Court case.  The subjective intent of the plaintiff and his legal advisor would not normally be relevant.

9. Mr Yau, counsel for the plaintiff referred to the affirmation of Ng Cheuk Tat Ambrosefiled herein on 9 January 2014 in support of this application. Mr Ng is the solicitors for the plaintiff.  He sets out the summary of claims as pleaded in the Statement of Damages and the Revised Statement of Damages. He explains how he assessed the possible claim of the plaintiff on quantum when Statement of Damages and Revised Statement of Damages are filed respectively.  He also submits part of the latest advice from counsel dated 2 July 2013 when the best case of the plaintiff is analysed, but is still over $1 million.  I understand this is the figure relied on by the plaintiff to show that she has a reasonable prospect to claim above HK$1 million after setting off employees’ compensation throughout the proceedings.  The damages are roughly divided into 5 heads of claims.

10. The first claim is for PSLA.  In both the Statement of Damages and Revised Statement of Damages, the claim is for HK$450,000.00.  For today’s purpose, Mr Yau is prepared to accept a sum of HK$300,000.00 as being the reasonable claim.  This is indeed very close to the figure submitted by Ms Chan, solicitors for the defendant.  Ms Chan submits that taking all the facts into account, a reasonable award would not be more than HK$250,000.00.  I accept the submission of Mr. Yau.

11. The second heads of claim is for pre-trial loss of earnings and MPF. For today’s purpose, Mr Yau is prepared to agree that the sum of HK$619,837.42 would be the reasonable claim for the plaintiff.  This is the figure in his final advice to the plaintiff.

12. According to the calculation of Ms Chan, she initially considers that the award under this head is nothing more than HK$470,000.00.  The main argument is, according to the expert evidence, the sick leave of the plaintiff would be up to and including 18 January 2012 (as opined by Dr Wong, a psychiatrist nominated by the plaintiff) or only up to 23 December 2011 (as opined by Dr Lam, a orthopaedic expert nominated by the plaintiff).  And there is some dispute on the pre-trial monthly earnings.  At the hearing, I am given to understand that Ms Chan is happy if I use the figure of HK$583,732.29.  And the difference with the pre-trial loss of earning as submitted by Mr Yau is less by HK30, 000.00.  I am prepared to take a board bush approach to use $600,000 as the reasonable claim for pre-trail loss.

13. Ms Chan is prepared to accept a sum of $100,000 as the reasonable claim for loss of earning capacity, which is the claim by the plaintiff. The claim for special damages for $50,000 is not disputed.

14. The main difference in the parties’ argument is whether the plaintiff could return to work after her sick leave. 

15. Ms Chan relies heavily on the joint psychiatric expert report prepared by Dr Wong Chung Kwong and Dr Peter Yu Wai Tak dated 16 February 2012 and the joint orthopaedic expert report prepared by Dr Lam Chi Cheung Johnson and Dr Chun Siu Yeung dated 31 March 2012.

16. Before I go into the comment made by the experts, I shall first go to the witness statement of the plaintiff when she sets out her capacity to work after the accident.  The plaintiff claims that because of the accident, she had lower back pain.  The pain would increase when she sits, stands for long time, walking, sleeping and raise heavy object.  She also claims that she felt numbness and some unusual feeling in her legs.  She also has left shoulder pain and sitting for long period of time, standing and sleeping would cause her left shoulder pain. 

17. The plaintiff, in her Revised Statement of Damages, refers to the work capacity evaluation report of Prince Margaret Hospital (“PMH”) dated 8 December 2008 and says she had persistent low back pain, bilateral buttock pain, posterior thighs pain, numbness of buttocks, left shoulder pain and she had decreased sitting tolerance.  Her working capacity as a coach driver was assessed to be marginally matched for light duty only.  And in January 2010, she was referred to pain clinic for treatment.

18. Further, the plaintiff attended the West Kowloon Psychiatric Centre (“WKPC”) in December 2009 and was diagnosed as suffering from adjustment disorder with prolonged depression reaction.  She is still receiving treatment from PMH and WKPC and cannot return to work.

19. At paragraph 27 of her witness statement, she said that the PMH and WKPC have issued 3 certificates confirming that she is not suitable to carry out the work of a bus driver.  The first 2 certificates were issued on 2011 and the third was issued on 2012.  I do not intend to repeat all the other particulars mentions in her witness statement which I have taken into consideration before coming to this decision.

20. It is the plaintiff’s case that she cannot return to work as a bus driver.  According to the practice of the defendant, her retirement age is 60. She may apply for extension to 65 and it is the plaintiff’s case that she would work until 65.  Accordingly, Mr. Yau submits that the appropriate multiplier for future loss of earning should be 14.

21. As a draw back position, Mr Yau submits that even if I do not agree that the plaintiff could not return to work as a bus driver, from the medical evidence adduced, they show that the plaintiff has handicap.  As such, she may at best return to work with the defendant company as a non-driving employee.  As a result, driving benefit applicable to drivers would be removed and as such, she would suffer a loss of around HK$3,000 a month.  As such, putting the plaintiff’s case to its lowest, it will still exceed HK$1 million after setting off the employee’s compensation.

22. Mr Yau also refers to the judgment of Mr Justice Reyes (as he then was) given in Khan Amar v Cheung Ying Construction Engineering Limited & Anor HCPI 231/2005 when the judge observed that the medical evidence shows that the injured plaintiff would likely to have a reduction in his efficiency.  Accordingly, in times of a weak or competitive construction market (since the injured plaintiff worked as a steel frame worker), the reality is the injured plaintiff will experience difficulty in finding work.  “Companies will prefer to hire the more able-bodied before considering somonee with reduced efficiency.” 

23. I believe the comment by the Honourable Judge is not of general application and must be limited to the fact before him.

24. I believe it is important in this case to look at the medical expert evidence available.  I appreciate that the medical evidence was obtained after the Writ has been issued.  However, the medical evidence was obtained before the Statement of Damages was served.  It is not disputed that the Writ was served and issued as a protective writ, and Mr Ng admits in his said affirmation that filing and service of the Statement of Claim and Statement of Damages had been delayed pending the joint medical expert evidence mentioned above.  In the circumstances of this case, the expert medical report should be taken into account as the information of the plaintiff when she issued the writ.

25. Even if I were wrong, to assess the plaintiff’s position at the date of the Writ, I am to assess objectively if the plaintiff has a reasonable prospect of claiming damages over $1 million.  Consideration of the expert medical report could shed light on whether the claim of the plaintiff has a reasonable prospect of being believed at the trial and whether a reasonable man in the position of the plaintiff would find it appropriate to commence this action in the High Court.  As submitted by Ms Chan, the medical report commented that the plaintiff could return to work, this would be a matter that I shall take into consideration in assessing whether the plaintiff shows that she could not return to work and had acted reasonable to commence the proceeding in the High Court.

26. Ms Chan also refers me to the judgment of Mr Justice Tang (as he then was) given in Lee Tsz Kin Ken v Climax Paper Converters Limited HCPI 504/2003.  The case came before Mr Justice Tang for trial and after trial, and after deducting employee’s compensation, the plaintiff received an award of below HK$20,000.00.  The defendant applied to Mr Justice Tang for the costs to be taxed at Small Claim Tribunal Scale.  Mr Justice Tang said he found that the plaintiff has exaggerated his disabilities. It is said in the judgment “This is not the case where I simply prefer the evidence of one medical expert to another.  A reasonable person in the position of the plaintiff would probably not have exaggerated his disabilities and, on the basis of his actual disability, he would probably think that the prospect of recovering more than HK$600,000.00 quite poor.”

27. The reference of HK$600,000.00 is the limit of money judgment for District Court in 2004.  I appreciate Mr. Justice Tang made the said determination after trial and he has assessed the evidence of the parties.  I did not have the advantage of hearing any evidence.  But I share the observation of Mr Justice Tang that, “a reasonable man would not exaggerate his disability”.  It must be in knowledge of a person himself of his weakness.  And in this case, one of the complaints of the plaintiff is mainly on pain oriented disability which the plaintiff is in the best position to know. The expert evidence is directly relevant to assess the claim of the plaintiff on her disability at the time of the Writ.

28. I therefore now move on to consider the medical evidence and other evidence before me on the ability whether the plaintiff may return to work when the Writ was commenced.

29. I firstly refer to the joint report by the 2 psychiatrists.  On whether the plaintiff could return to the pre-accident work, both Dr Yu and Dr Wong concluded that the plaintiff is mentally fit to return to the pre-accident employment/occupation and does not need to consider alternative employment.  Dr Wong based on his opinion on the finding that he has serious doubt about the integrity of Ms Wong.  He said during the joint psychiatric examination, the plaintiff showed signs of exaggeration of mental symptoms.  She claimed to be under severe and continuous physical pain and yet she was composed most of the time. The only moments when she seems to be in pain was when she got up from her chairs, saying that she was in pain.  When she was absorbed in talking with the experts, she did not grimace in pain.

30. Dr Wong also makes reference to the surveillance DVD provided to them, which was recorded in November 2011(which I would come to later).  He said the way the plaintiff behaves was totally different.

31. Dr Wong comments that the plaintiff suffered from adjustment disorder for 6 months.  As her physical symptoms recovered, the adjustment disorder should have also recovered.

32. Dr Yu is also of the view that the plaintiff suffered from adjustment disorder after the injury.  However, he said severity of the mental symptoms is in doubt.  The plaintiff has described the pain involved multiple body areas and has been severe and unremitting since its onset.  The doctors in PMH could not find structural lesions to explain the symptoms.  As the physical symptoms are overstated, suffering from pain or distress from disabilities is overstated as well.  In addition, the plaintiff gave the experts inconsistent descriptions of the pain, which further discredited the symptoms.

33. It appears that the experts in coming to their conclusion pointed to exaggeration on the part of the plaintiff.   When the plaintiff claims that she could not return to work, these experts who are examiners around the time when the Writ was commenced could not support her claim of psychiatric illness. They have also taken into account the medical report from her treating doctor, including those referred to above.

34. I note that the other 2 experts in orthopaedic field also give a similar opinion that the plaintiff could return to the pre-accident job.  Dr Chun is of the opinion that the plaintiff had exaggerated her pain and disability out of proportion to the initial injury.  Her presentation during the joint examination was not consistent with what is observed from the surveillance DVD suggesting that she had faked during the examination for the sack of compensation.

35. And Dr Lam commented that Madam Wong walk into the clinic with a right-handed walking stick.  However, referring to the surveillance recording, she could walk rather normally and take public transport without need of walking stick.  And on examination, all the Waddell’s Tests/inappropriate signs were positive.  Presence of these inappropriate signs suggests an element of exaggeration on the part of the plaintiff.

36. I also note that Dr Lam opines that, “it is likely that Madam Wong still has genuine pain and disability in the low back, and probably still has some residual pain in the left shoulder.  However, the degree may not be as severe as she described.  The degree is assessed to be mild to moderate for the low back and probably mild for the left shoulder.”

37. When asking if she could return to her pre-accident work, Dr Chun opined that she had no difficulty.  Dr Lam opines that with more confidence, better pain control, more self exercises to strengthen the back, and a gradual to work program, the plaintiff may be able to return to work with reduction in work capacity.  I believe the evidence of Dr Lam may be in favour of the plaintiff to certain extent. 

38. I have also been shown the surveillance report and some photographs taken from the surveillance tape.   The contents support the comments by the experts.  Further, it is clear evidence pointing to exaggeration.

39. I recall the affirmation of Mr. Ng referring to the report from treating doctors and the 3 certificates confirming the plaintiff cannot return to work as bus driver.  These have been provided to the experts and must have been taken into account by the experts before coming to their conclusion.  And the observation of the experts must be more up to date.  I pay little weight to the reports and certificates.

40. Given the above analysis, there is no objective evidence to support the plaintiff’s claim that she could not return to work.  There is a lot of evidence to dispute her claim that she cannot return to work. And applying an objective assessment of a reasonable plaintiff, I cannot accept that a reasonable plaintiff with this background would commence the proceeding in the High Court.  Even if she has to commence the proceeding before the limitation, no reasonable plaintiff would continue the claim in the High Court on receipt of the medical reports.

41. Mr Yau invites me to consider that the plaintiff would suffer certain degree of disability.  I believe he relies on the opinion of Dr Lam which I have set out above. 

42. I believe Dr Lam agrees that there is some residual pain and some reduction in work capacity.  But there is no suggestion by Dr Lam that she cannot return to work as a bus driver.  Taking the comment by Dr Lam to the highest, the plaintiff had to have some further treatment or training before she return to work.  This could be reflecting in a higher figure of loss of earning capacity, or longer sick leave period.

43. The defendant has conceded there is a loss of earning capacity in HK$100,000.00 as claimed by the plaintiff.  This could be increased to HK$200,000.00 to reflect on the additional time for the plaintiff to return to full working capacity.  And I believe it is a more than generous award based on the condition of the plaintiff, reading with the opinion of these experts, and available medical reports. There is no reasonable prospect to recover any further loss of future earnings.

44. Accordingly this would be my conclusion on the best case of the plaintiff at the time when this action commenced mainly: -

(a)	PSLA	HK$300,000.00
(b)	Pre-trial loss of earning and MPF	HK$600,000.00
(c)	Loss of future earning and MPF	HK$0
(d)	Loss of earning capacity	HK$200,000.00
(e)	Special damages	HK$50,000.00
	Less EC payment	(HK$360,350.78)
	Total:	HK$789,649.22

45. From the above analysis, the plaintiff fails to satisfy me that there is reasonable prospect of recovering more than HK$1 million when the Writ was commenced and I therefore direct the cost be taxed at District Court scale. The defendant shall have costs of this application to be taxed if not agreed at High Court Scale and the plaintiff’s own cost be taxed according to Legal Aid Regulations.