CHAN KAM SAU v. THE KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER

HCPI 894/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 894 OF 2006

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J U D G M E N T

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Introduction

1. A short chronology of important events is as follows:

                   27.12.2003            Accident

                   18.06.2006            Writ and statement of damages filed

                   19.01.2007            Judgment in ECC claim

                   10.10.2007            Payment in of $300,000 in this High Court action

                   24.10.2007            Acceptance of the amount paid in

Any Discretion to Order High Court or District Court Scale?

2. The approach of Fung J in Wong Lan & Cheung So Kuen v. Hong Chang Construction Transportation Engineering Co. Ltd. & another HCPI 973 of 2005 is not inconsistent with Cho Ho Kuen v. Yu Kwok Wah CACV 480/2000 and presents a fair view.  It has taken into account the case of Wellegant Development v. Fire Telecom Ltd. & others [2007] 2 HKC 427 and Fung J has explained why he decided to depart from it.  I agree with his views and hold that the Court retains a discretion to order costs on either the High Court or District Court scale.

Exercise of Discretion

3. The question is whether there was any reasonable prospect of the plaintiff recovering in excess of the District Court jurisdiction at the time the writ was issued.  This is of course a less exacting exercise than assessment of damages after trial.  In answering this question, the amount of the plaintiff’s claim must take into account employee’s compensation.

4. The plaintiff filed its statement of damages at the same time as the writ, claiming a total of just under $1.5 million for damages.  It was made up of:

PSLA	$250,000
Pre-trial loss of earnings during 19 months’ sick leave	237,690
Pre-trial partial loss of earnings	153,690
Loss of future earnings at a multiplier of say 8.5	664,020
Loss of earning capacity	150,120
Miscellaneous items	9,000
Total	1,464,520

5. There are problems with that calculation:

(i)   The plaintiff had not deducted the ECC compensation in the amount of $202,460 received during his sick leave period.

(ii)   The plaintiff used the earnings of the last month before the accident ($12,510) as the basis for calculation of damages.  This was hotly disputed by the Defendants in both claims.  Whilst he could legally (and as accepted by the learned Deputy District Judge) do so for his ECC claim, it was questionable for the common law claim.  On the evidence before me, the monthly average earnings of 12 months before the accident was only $9,100.  In my view, even assuming for the purpose of this exercise the average monthly earnings were $10,000 this would reduce the loss of earnings to:

Loss during 19 months’ sick leave
	$10,000 x 19		$190,000
Partial loss of earnings
	($10,000 - $2,500) x 5
+	($10,000 - $3,500) x 5
+	($10,000 - $6,000) x 9		$106,000

(iii)     At the time the statement of damages was filed, the plaintiff has obtained medical reports from orthopaedic and psychiatric experts.  Although his 19 months’ sick leave was questioned by his own expert, I make no discount for loss of earnings for the purpose of this exercise.  Both experts stated that there was no difficulty in the plaintiff returning to his pre-accident job.  The claim for loss of earning capacity was not justified.

(iv)     I would adopt, for the purpose of this exercise, the multiplier of 8.5 in the statement of damages.

          ($10,000 - $6,000) x 12 x say 8.5                            $408,000

(v)  In any event the judgment in the ECC claim (given 3 months after the writ in this action was filed) should have alerted the plaintiff to review his claim and opt for a transfer to the District Court.

6. In view of paragraph 5, my assessment of the amount that the plaintiff could have reasonably claimed at the time of the issue of the writ would be:

PSLA	$250,000
Loss of earnings during 19 months’ sick leave	190,000
Pre-trial partial loss of earnings	106,000
Loss of future earnings at a multiplier of say 8.5	408,000
Loss of earning capacity	0
Special items	9,000
	963,000
Less: ECC received	(202,460)
	760,540

One can see that even if he were awarded the full amount of $150,120, the plaintiff’s claim would still be within the District Court’s jurisdiction.

7. I hold that there was no reasonable prospect of the plaintiff recovering more than $1 million at the time the writ was issued.  The amount paid in and accepted was well within the District Court’s jurisdiction.  I order costs of the action on the District Court scale.

Order:

8. Costs of the action are to be taxed on the District Court scale.

9.  On a nisi basis: (i) costs of this application be to the defendant with certificate for counsel to be assessed by me on 13 May 2008 at 11:30 a.m.  (ii) Taxation to take place on the same date.  (iii) If parties agree to paper taxation, they should let my clerk know within the next 7 days, in which event the usual directions will apply.  (iv) Order absolute 14 days after handing down of this decision.