THEBE SURYA KUMAR v. G4S GURKHA SERVICES LTD

HCPI 192/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 192 OF 2010

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D E C I S I O N

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1.  This is the defendant’s application to pay the plaintiff’s costs of action to be taxed if not agreed on the District Court scale.

BACKGROUND

2.  This is a personal injury claim and the action was initiated at the High Court by Littlewoods, the plaintiff’s then solicitors assigned by Legal Aid.  Littlewoods filed and served a “Plaintiff’s Schedule of Damages” (which I take to be the Statement of Damages) dated 12 May 2011 claiming HK$1,369,400 to HK$1,424,400 net of Employees Compensation.

3.  On 30 May 2012, Legal Aid has assigned Messrs. John M. Pickavant & Co. (“Pickavant”) to take over the plaintiff’s case from Littlewoods.

4.  The defendant made a Sanctioned Offer of HK$180,000 on 26 August 2014.  It did not give a prior written warning to the plaintiff of his intention to apply for taxation in the District Court scale.  The sanctioned payment was accepted by the plaintiff on 23 September 2014.

5.  The offer and acceptance were made before the landmark decision made by Bharwaney J.’s decision in Wong Chin Hing v. Discovery Bay Transit Services Limited (HCPI No. 254 of 2011).  The learned judge in that case formulated the practice (the “new practice”) that the defendant who makes a sanctioned payment within the jurisdiction of the District Court should give prior warning of his intention to apply for an order for taxation on the District Court scale when he serves the notice of sanctioned payment on the plaintiff.

6.  As it happened, Pickavant wrote to the defendant and agreed that the costs of the action should be taxed in District Court scale.

7.  It has taken some time for the bill of costs to be prepared by Pickavant and Littlewoods, and only then the defendant was made aware of the objection of Littlewoods regarding the scale of taxation.

8.  As the parties cannot agree on costs, a taxation hearing is scheduled to commence on 1 December 2016.

9.  Littlewoods, as the former solicitors of the plaintiff, have no standi in taking out any application in this case. Instead, the defendant has to take out the current application so that the scale of costs could be determined before the taxation hearing.

10.  The plaintiff, through Pickavant, did not attend this hearing as they have already agreed to the scale of costs and did not see the need to incur time and costs.  I have ruled during the call‑over hearing that the costs of and occasioned by this application is a matter entirely between Littlewoods as a firm and the defendant.

THE LEGAL PRINCIPLE

11.  The Sanctioned Offer and acceptance were made before the “new practice”, so Seagroatt J.’s decision in Lai Ki v. B+B Construction Co. Ltd. should be applicable here.

12.  That principle, which I will refer to as the “old practice”, is :

“The position in relation to a claim in the High Court settled...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.....

......Where a sum of money which is within the District Court jurisdiction is paid into court, and accepted by the plaintiff (without agreement by the parties as to the scale of costs to be taxed), the plaintiff must apply promptly by way of summons to the master for a determination of costs.”

13.  Mr. Millar of Littlewoods sought to argue that the “new practice” should be applicable instead.  His argument, as I understood, was that Littlewoods only came to knowledge of the settlement after the decision in Wong’s case.  Mr. Millar did not produce any precedent to support this argument.

14.  I am at a lost as to the logic of that argument: the law applicable to a certain act must be determined by the applicable law on the date of that act, and not by the applicable law on the date of a party’s knowledge of that act.

15.  In any case, the change in practice only dealt with a change in the “default” position of scale of taxation and what the plaintiff and defendant should do to apply to alter the “default” position.

16.  In this case, there is no dispute in the position between the plaintiff and the defendant: they agree that District Court scale should apply.

17.  There is certain merit in the argument on whether Littlewoods, which no longer represents the plaintiff, has standi to this application at all.  The plaintiff has already agreed that the scale of taxation should be on District Court scale, so any arguments on that by Littlewoods should be a contractual dispute entirely between the plaintiff and Littlewoods and not between Littlewoods and the defendant.

18.  Nevertheless, such arguments were not substantively canvassed by either side at the hearing.

19.  In case I am wrong about the “standi argument”, I will proceed to apply the “old practice” in this case on the basis that Littlewoods is representing its own interest in this application.

20.  I agree with Mr. Millar that the “old practice” was established on the assumption that the plaintiff was represented by the same firm of solicitors.

21.  The old practice required that the “default” position under the circumstances should be taxation in the District Court scale and if the plaintiff wishes otherwise, “the plaintiff must apply promptly by way of summons to the master for a determination of costs”.

22.  The plaintiff did not do so in this case simply because he had already agreed to the District Court scale of costs.

23.  The only prejudice against Littlewoods under the “old practice” would be that the defendant might raise an argument that since the plaintiff had not taken out any summons “promptly” or at all, the “default” position should apply.

24.  However, the defendant did not raise that argument at all.  In fact, quite contrary to that, the defendant took out the current application, thus allowing Littlewoods to argue its case despite the plaintiff not taking out any application “promptly” or at all.

25.  As such, there is no prejudice whatsoever to Littlewoods.

26.  Further, Mr. Millar’s allegation of delay in the defendant in taking out the summons is totally unfounded.  It is not for the defendant to do so at all, and Mr. Millar should count himself lucky for the defendant’s sense of fairness.

THE REASONABLE PROSPECT TEST

27.  In any case, irrespective of whether the “new practice” or “old practice” is being applied, Bharwaney J. set out in Wong’s case that the “reasonable prospect” test should still be applied (although he argued whether there is a need to extend this test to apply not only at the commencement of the action, but throughout the proceedings).

28.  I will therefore apply the “reasonable prospect” test to this case.

29.  Before the commencement of the action, 2 expert reports were available: a solo expert report from Professor Kumta dated 5 December 2010 obtained by the plaintiff and a joint expert report dated 17 February 2011 from Professor Kumta instructed by the plaintiff and Dr. Chun Siu Yeung instructed by the defendant.

30.  Mr. Sit, solicitors for the defendant, argued that taken to the highest, that is, when only the most favourable expert opinion (from Professor Kumta) was considered, the opinion would not support any claim in future loss of earnings (amounting to HK$632,520 in the “Plaintiff’s Schedule of Damages”.  This would have brought the claim to well below the jurisdiction of the High Court even if there is no dispute in all the other heads of claim.

31.  Professor Kumta, in his solo report, wrote:

“f. Whether the plaintiff is fit to resume his pre-injury occupation

I do not think Mr. Thebe can pursue an occupation that imposes repetitive bending movements on the spin or requires him to lift loads in excess of 10 kg.

g. The kind of occupation the plaintiff may be able to pursue

He may be able to pursue an occupation that is sedentary and does not require spinal bending, or repeated lifting.  A desk job as an attendant would be an example.”

32.  Professor Kumta further wrote in the joint report:-

“115. Dr. Kumta: I agree that Mr. Thebe has exaggerated his complaints and has exhibited the classic behaviour of symptom amplification. This is well known to exist in patients who have chronic pain and perceive it to be severe and disabling....Whether he is malingering merely for secondary gain is beyond my capacity to comment upon, as that would require ne to guess his intentions....”

“121: Dr. Kumta: Mr. Thebe should be able to return to work provided such work does not require him to lift weights or do repetitive spinal bending movements...”

33.  The defendant argued that the plaintiff’s occupation was a security guard which would not need to “lift weights (in excess of 10 kg) or do repetitive spinal bending movements”.

34.  Mr. Millar submitted that this did not take into account the reality of the employment situation as pleaded in the “Plaintiff’s Schedule of Damages” : that the plaintiff was “unable to return to work as a higher grade or better paid security guard” and “because of limitations imposed on him as a result of his pain, is limited to lower grade security guard jobs or watchman type jobs”.

35.  I have made this comment before, but I will say this again: in assessing whether there was a “reasonable prospect”, I would think that a lawyer should not simply take his client’s word for it without investigating and applying some common sense principle to what he was told, since, of course, it was for him to convince the court that his client’s words should be accepted.

36.  From the joint expert report, Mr. Millar would be aware that both experts agreed that the plaintiff has “exaggerated his complaints”, it would therefore be not sensible to rely entirely on the plaintiff’s words that he was “unable to return to work as a...better paid security guard...because of...his pain” without proper investigation of the evidence in support of this assertion.

37.  When even the plaintiff’s expert opined that “Mr. Thebe should be able to return to work provided such work does not require him to lift weights or do repetitive spinal bending movements”, I would expect that Mr. Millar should be investigating whether the plaintiff’s work involved any of these activities.  If it did not, then there would clearly be difficulties in proving the claim for future loss of earnings which Mr. Millar must take into account in assessing the “reasonable prospect” in the claim.

38.  In fact, I note that there was no mention of any such work-related weight lifting or repetitive back bending activities in the plaintiff’s Affirmation or (Witness) Statement.

39.  Further, in the Statement of the plaintiff, he stated that after his accident on 13 June 2007, he did not return to work until after September 2008, when his employer reassigned other jobs for him, one of which involved doing “gate control duty at a school on Robinson Road, which required me to stand for the whole shift, which I understood to be 12 hours. Because of continuing pain with my back I refused to do this particular job....I was eventually dismissed by letter dated 20 October 2008...”

40.  If this was the crucial reason why the plaintiff could not maintain his old and “better paid” job, then I would expect some investigations be conducted as to why a gate control at a school would need to stand continuously for 12 hours.  I doubt even the guards for the Queen of England are required to stand continuously for that long at Buckingham Palace!

41.  More importantly, even if this version of event was accepted, there was still no evidence that this job involved the plaintiff “to lift weights or do repetitive spinal bending movements”.  It must be clear to Mr. Millar that even on the plaintiff’s version of events, there would be difficulties proving future loss of earnings.

42.  In short, the prospect of this claim being in the High Court jurisdiction very much depended on the bare assertions of the plaintiff complaining of pain whilst working, and even his own expert opined that he exaggerated his complaints.

43.  There was clearly no reasonable prospect of this claim being in the High Court jurisdiction even at the commencement of the action.

44.  Mr. Millar also complained about the delay that the defendant made discovery of a pre‑employment medical check-up report.  I cannot see how one would expect that report to have anything relevant to the “reasonable prospect” test or, indeed, the whole action.

45.  One important reason to obtain medical records and reports is to provide them to the experts so that they could have a full picture of the medical history of the plaintiff when drafting their expert report.  However, experts should be trusted to alert the parties if there were crucial medical documents missing.  It would appear to me they never raised any request for the pre‑employment body check report.

46.  Further, the fact that the plaintiff was allowed to be employed must indicate that the body‑check was favourable.  It was not the plaintiff’s case that he was wrongly mis‑diagnosed as being fit for employment when he was not.

47.  If the reason that the plaintiff wished to seek discovery of this report was to show that he did not have a history of back pain, I do not see the need: neither orthopaedic experts ever opined that the plaintiff had a history of back pain. Professor Kumta stated in paragraph 84: “...in the case of Mr. Thebe, who has had no previous history of back pain, indicating that perhaps his spinal degeneration was not significant enough to cause pain...”. Dr. Chun did not dispute this history in paragraph 85: “...Absence of previous low back pain does not exempt an individual from having low back pain in the future in any event...”

48.  This should be “as good as it gets” for the plaintiff.  I see no point and no strategic “upside” (and in fact, all the “downside” risk) for the plaintiff to seek discovery of the body check report.  

49.  Of course, Mr. Millar eventually obtained discovery of this body-check report and he enclosed this in his submission.  As expected, it stated “fit for employment”.

50.  It therefore had no effect on the assessment of the “reasonable prospect” test or, indeed, the claim, and the whole exercise was therefore a total waste of time and costs.  Mr. Millar could not blame the lateness of discovery as a reason that he could not assess the claim properly.

51.  Mr. Millar’s other arguments were complaints directed towards the handling of the case by the defendant’s solicitors.  These would be matters for the taxation hearing and not relevant to the current application.

ORDER

52.  I would therefore order the defendant to pay the plaintiff’s costs of this action to be taxed if not agreed on the District Court scale.

53.  As for costs, I would order Littlewoods to pay the defendant the costs of and occasioned by this application.  If no agreement on costs is reached, the defendant is to serve and lodge a summary statement of costs within 28 days of this Order and the plaintiff is to serve and lodge a list of objections 28 days thereafter for summary taxation on the High Court scale.

54.  There will be no Legal Aid taxation for Littlewoods’ costs.

55.  The Plaintiff’s own costs, if any, be taxed in accordance with Legal Aid Regulations.

OTHER COMMENTS

56.  There is no evidence before the court as to the circumstances for the decision for the plaintiff to accept the sanctioned payment of HK$180,000.

57.  However, it is certainly of great concern to the court if a claim which was set out to be some HK$1.3‑1.4M but was settled for less than 13% of the original claim after more than 3 years of proceedings.

58.  My view, as stated above, was that the quantum was vastly over-estimated in the beginning and, with reasonably careful analysis of the evidence, the case might be handled differently and settled earlier to avoid incurring unnecessary costs and time.

59.  I wonder if this is a case where the Director of Legal Aid may look into to see if there is a need to improve the handling of such cases which may, indeed, include closer supervision of the handling solicitors in order to avoid wasting time and costs.  I am therefore directing that a copy of this judgment be sent to the Director of Legal Aid.