CHEUNG CHI WAI v. CHEUNG CHUNG LEUNG

HCPI 888/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 888 OF 2007

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BETWEEN

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R U L I N G

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The Issue

1.  The Plaintiff claimed for damages in the region of $1.4 million but the claim was settled at $750,000. The settled sum is within the jurisdiction of the District Court. The Defendant is to pay the Plaintiff’s costs herein on a scale to be determined by the Court if not agreed. No agreement is reached and the Plaintiff applies to me to allow his costs be taxed at High Court Scale.

The Law

2.  Cost is always at the discretion of the Court. When the settled sum is within the jurisdiction of the District Court, the receiving party has to apply to Court for a ruling that he is entitled to tax his cost at High Court Scale. The test to be applied in deciding whether High Court or District Court scale of fees are to be applied for taxation is, in the words of Glyn-Jones J. in Hopkins v Rees & Kirby Ltd [1959] 2 AER 352 –

“Putting myself as far as I can, in the position of the Plaintiff at the time when he issued that Writ, am I satisfied that it was then obvious that this was a county court action, or was it an action which, when tried by one judge rather than another, might have resulted in an award exceeding [the jurisdictional limit] excluding any reduction for contributory negligence?”

3.  The above passage is adopted by Mr. Justice Saffiard in Wong Choi Fung v Fung Kai Public School Operating as Fung Kai Care and Attention Home for the Elderlyin HCPI 534/2004. His Lordship further adopted a passage from the judgment of Mr. Justice Seagroatt in Lai Ki v B + B Construction Co. Ltd. [2003] HKLRD 192 that –

“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 County Court jurisdiction?”

4.  The Defendant’s solicitor does not disagree with these able rulings. I follow these principles in considering the application.

The Issue

5.  The Defendant’s solicitor submitted in their written submission that when the Writ was issued, there was no reasonable prospect that the claim would be over the jurisdictional limit of District Court, being $1 million.

6.  According to the Statement of Damages filed by the Plaintiff with the Writ on 16 October 2007, the claims are –

PSLA	450,000
Pre-trial loss of earning	164,185
Post-trial loss of earning	655,200
Loss of earning capacity	100,000
Damaged vehicle	13,250
Medical expense	3,345
Special damages	1,680
Tonic food	5.000
Travelling expenses	3,000
Total:	1,395,660

7.  Save for a minor adjustment on the claim for medical expenses, these are the amounts claimed under the Revised Statement of Damages.

8.  The Defendant’s solicitor submitted that the claims are excessive. The main items in dispute are PSLA and loss of earning, both pre-trial and post-trial.

9.  The Defendant’s solicitor submitted that for the injury of the Plaintiff, the award of PSLA would not exceed $150,000. The Defendant’s solicitor also submitted that the claim for pre-trial loss of earning is excessive. And further, the Defendant’s solicitor submitted that the Plaintiff could return to his pre-accident job, there would be no loss of further earning.

The Injury

10.  According to the Statement of Claim, on 20 September 2006, the Plaintiff while driving a motorcycle collided with a medium goods vehicle driven by the Defendant. The Defendant was convicted of careless driving for the said accident.

11.  After the accident, the Plaintiff was admitted to the A & E Department of Prince of Wales Hospital for treatment. On examination, there was abrasion over the Plaintiff’s left hand, left foot and right forearm. He also sustained sprain left knee.

12.  The Plaintiff was treated and discharged on the same day. The Plaintiff re-attended PWH on 9 October 2006 due to residual pain over his left knee. On 28 October 2006, left knee arthroscopy was performed as the Plaintiff he suffered from anterior cruciate ligament (“ACL”) tear.

13.  On 22 March 2007, left ACL reconstruction was performed, followed by physiotherapy for rehabilitation.

14.  The Plaintiff still complains of residual pain on his left knee after walking for about 30 minutes, or standing for about 20 minutes, or squatting, sitting for one to two hours. There is stiffness of his left knee. He is scared of driving motorcycle again. He is able to squat with slight modification.

15.  The Plaintiff is independent in his activities of daily living. He does not need any walking aid and goes out using public transportation without restriction.

16.  In total, the Plaintiff has been hospitalized for 8 days. Sick leave was given from 20 September 2006 to 17 May 2007, and 20 July 2007, a total of 241 days.

My Assessment on the Claim for PSLA

17.  The main argument advanced by the Defendant is the ADL tear is not caused by the accident.

18.  The medical opinion on the injury, in particular if the ADL tear was caused by the accident, is divided. For the purpose of this application, I am not ruling on which expert opinion is correct. It is not possible as I have not heard evidence or submission. As Mr. Justice Saffiard put it, “quantum can only be looked at globally in the round, particularly at those facts which are either not in dispute or cannot be disputed. It would also have to be viewed from the plaintiff’s perspective when the Writ was issued in this matter.” (Wong Choi Fung’s case).

19.  The Defendant’s solicitor submitted that the Plaintiff only suffered from left knee contusion without tear of ACL. Reference is made to the joint report by Dr. Daniel Yip and Dr. Poon Kai Ming. Dr. Yip doubted if the ACL tear was caused by the accident. But Dr. Poon opined that the ACL tear was caused by the accident.

20.  The Plaintiff’s solicitor submitted that the Plaintiff suffered from ACL tears and falls within the “serious” category as defined in Lee Tin Lam v Leung Kam Ming [1980] HKLR 657.

21.  The Plaintiff’s solicitor further submitted that there is reasonable prospect of recovering damages for PSLA in the region of $450,000. He relied on 2 cases, namely, Ruthanna Lau Sau Yee v Hong Kong Ballet Ltd & Anoin HCPI 772 of 1997 and Tsang Yuk Nam v Hung Yun Metalware Company Ltd.in HCPI 602 of 2001.

22.  It cannot be disputed that there is knee injury recorded by PWH on the date of accident. ACL tear was confirmed by PWH on 28 October 2006. And Dr. Poon opined that the ACL tear was caused by the accident. I have to take a global approach and I agree that there is a reasonable prospect that the Plaintiff could prove the ADL tear was caused by the accident.

23.  And with the benefit of the medical report, I found that the injury is less serious that the injury to the plaintiffs in the cases cited by the Plaintiff’s solicitor. I would say that, PSLA could be awarded would be in the region of $300,000 to $350,000.

The Plaintiff’s Loss of Earning

24.  At the time of the accident, the Plaintiff worked as a van driver. His work included picking up heavy goods. His monthly income was $11,000. He was given 241 days of sick leave.

25.  While noting that Dr. Yip opined that a reasonable sick leave period of 2 months is sufficient, if the ADL tear was not caused by the injury. Given my ruling that there is a reasonable prospect to find that the ADL was caused by the injury, it follows that there is reasonable prospect of recovering damages for the full period of sick leave. I allow the whole period for the purpose of this application.

26.  It is the case of the Plaintiff that he resumed his pre-accident work as a van driver, with the same employer driving the same van. However, due to the fact that he could not lift up heavy goods, his monthly salary was reduced from $11,000 to $7,000. He claims damages for loss of earning from the end of his sick leave to the day of trial and 13 years thereafter.

27.  It is the opinion of Dr. Poon that the Plaintiff could not be capable of handling heavy goods. Dr. Yip opined that the Plaintiff could resume his work to carry heavy goods as the reconstructed ACL ligament has healed after one and a half years.

28.  Again, there is a difference in opinion on the recovery of the reconstructed ACL. But there is a real prospect of success to satisfy the Court that the Plaintiff could not carry heavy goods. As such, it would not be surprising if his employer wish to reduce his wages because he cannot perform as before the accident.

29.  Nevertheless, I have some reservation in the case of the Plaintiff that he suffered a loss of $4,000 a month. I believe his mainly duty is a driver. There is doubt if the Court would accept his loss at $4,000 per month. I believe a more realistic loss should be $2,500. And I adopt a multiplier of 13.

30.  I accept that for his injury, loss of earning capacity at $100,000 is appropriate. I set out hereunder a comparison table –

DAMAGES	AMOUNT CLAIMED	PROJECTED AWARD
PSLA	450,000	350,000
Pre-trial loss of earning	164,185	[11,000 x 241/30] + [(11,000 – 8,500) x 17 months] x 1.05 =137,410
Post-trial loss of earning	655,200	[(11,000 – 8,500) x 13 x 12] x 1.05 = 409,500
Loss of earning capacity	100,000	100,000
Damaged vehicle	13,250	13,250
Medical expenses	3,345	3,345
Special damages	1,680	1,580
Tonic food	5.000	5,000
Travelling expenses	3,000	3,000
Total:	1,395,660	1,023,085

31.  From the table, there is a real prospect of claiming damages over the District Court jurisdiction. I therefore rule that the costs of the Plaintiff should be taxed at High Court Scale and the Plaintiff should have costs of this application to be taxed if not agreed, such order of costs to be an order nisi, to be made absolute within 14 days.