LAW KA YEE v. QUALITY DRIVER TRAINING CENTRE LTD

DCPI 3929/2021

[2025] HKDC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3929 OF 2021

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DECISION

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INTRODUCTION

1.  This is an application made by the defendant (“D”) seeking leave to appeal against an assessment of damages I made on 12 August 2024 (“the Decision”).

2.  In the Decision, I assessed the damages which D has to pay the plaintiff (“P”) for the loss and damage she suffered as a result of the accident at HK$788,436, plus interest and costs (“the Order”).

3.  D was dissatisfied with the findings I made and by way of a summons dated 23 August 2024 (in Chinese) seeks leave to appeal against the Decision (“the Summons”).

4.  The grounds of the application has been stated in the affirmation filed by Mr Law Sing Hong (“Law”), the director of D, in support of the Summons. He has not filed any written submissions for the application. However, as the affirmation contains all D’s arguments for the application. Thus, for all intents and purposes, I shall treat it as D’s submissions (“D’s Affirmation”).

5.  D also asked for a stay of execution of the Order. However, it has failed to state the grounds of why a stay should be given. Nor has it produced any evidence to demonstrate to the Court why a stay of execution was necessary.

6.  P has not filed any evidence in opposition of D’s Summons. She is not required to. However, she has, through her counsel, Mr Kelvin Leung, lodged written submissions on 4 November 2024, setting out her grounds of opposing D’s application (P’s Submissions”).

DISCUSSION

Legal principles involved

7.  The legal principles in respect of granting leave to appeal as well as for stay of execution are trite and not controversial. I can do no better than to cite what Mr Leung has set out in P’s Submissions in the following terms.

(i) Leave to appeal

8.  Subject to subsection (3), an appeal can, with leave of a judge or the Court of Appeal, be made to the Court of Appeal from every judgment, order or decision of a judge in any civil cause or matter: s 63 of the District Court Ordinance, Cap 336 (“DCO”).

9.  Leave to appeal granted under section 63 may be granted –

…

(b)  subject to such conditions as the judge, the master or the Court of Appeal hearing the application for leave considers necessary in order to secure the just, expeditious and economical disposal of the appeal: s 63A(1)(b) of DCO.

10.  Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that ---

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard”: s 63A(2) of DCO.

11.  In KNM v HTF (HCMP 288/2011, [2011] HKEC 1210), the Court of Appeal confirmed that “The relevant test of whether an appeal has a reasonable prospect of success under section 63A [District Court Ordinance], is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’.” It was insufficient to show that the appeal was “merely arguable” and “not fanciful” for the court to be satisfied that it had a reasonable prospect of success.: §59/2A/4 HKCP 2025 Vol.1.

(ii) Stay of execution

12.  “Except so far as the Court may otherwise direct, an appeal under this Order shall not operate as a stay of the proceedings in which the appeal is brought”: O 58 r 3 of the Rules of the District Court, Cap 336 (“RDC”)

13.  “Stay of execution – Notice of appeal does not, of itself, stay execution. The judge has jurisdiction to grant such a stay subject to such conditions as he thinks just, but such conditions should not normally involve payment of sums not otherwise payable (Sewing Machines Rentals Ltd v Wilson [1976] 1 WLR 37, [1975] 3 All ER 553)”: §59/19/13 HKCP 2025 Vol.1.

14.  The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal: World Trade Centre Group Ltd v Resourceful River Ltd. That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted: §59/13/1 HKCP 2025 Vol.1.

15.  “Security for costs of action – The English Court of Appeal held in Stabilad Ltd v Stephens & Carter Ltd (No 1) [1999] 1 WLR 1201 that the court had power under O.59 r.13 to direct a stay of execution of an order for payment out of a sum lodged in court by way of security for costs, and that whether such an order was to be made was a matter of discretion and balance: §59/13/6 HKCP 2025 Vol.1.

16.  Where the appeal is against an award of damages, the long established practice is that a stay will normally be granted only where the appellant satisfies the court that, if the damages are paid, then there will be no reasonable prospect of his recovering them in the event of the appeal succeeding (Atkins v Great Western Ry Co (1886) 2 TLR 400, following Barker v Lavery (1885) 14 QBD 769: §59/13/1 HKCP 2025 Vol.1

17.  “Terms on which a stay is ordered – The court has a discretion whether to impose terms on the grant of a stay. As regards the debt or damages awarded, there is no general practice: according to the circumstances (for example, the probability of their not being recovered if the appeal is successful, and the chances of success in the appeal) the money may be ordered to be paid into court, or only some part of it”: §59/13/5 HKCP 2025 Vol.1.

D’s proposed grounds of appeal

18.  D’s proposed grounds of appeal as set out in D’s Affirmation can be briefly summarized as follows:-

(i)  Ground 1: The award for pain, suffering and loss of amenities (“PSLA”) at $590,000 was excessive and exceeded P’s claim stated under the revised statement of damages (“RSOD”). D suggests that an appropriate sum should be at $250,000: See §1 of D’s Affirmation.

(ii)  Ground 2: There should not be any award for loss of earning capacity in this case: See §3 of D’s Affirmation.

(iii)  Ground 3: The award for special damages was excessive because the medication prescribed by P’s colleagues was improper. Further, the expenses incurred on private physiotherapy should not be allowed and there was no indication that the physiotherapist had any professional qualification as, according to D, the physiotherapy treatment should only be given by qualified person: See §4 of D’s Affirmation.

FINDINGS OF THE COURT

19.  In my judgment, none of the above proposed grounds of appeal contains any merits and has no reasonable prospect of success at all.

20.  For Ground 1, while it is true that the Court has allowed a higher PSLA award than the one pleaded by P’s lawyers under the RSOD in this case, the figure was reached after careful analysis of P’s injuries, her treatment records and the treating doctors as well as the medical experts’ opinions. They were then used to compare with decided cases where victims had suffered from similar injuries. It was only after the above exercise that the figure of $590,000 was arrived at.

21.  However, it has been well established that in considering any awards for general damages, including PSLA awards, the Court is not confined to take into account of the cases / authorities submitted by the parties only. Nor is it restricted or limited by the figures pleaded by them. In each case, the Court is trying to reach a fair and appropriate figure after taking into account of the above matters as well as the inflation factor.

22.  I do not consider the figure of $590,000 for PSLA in this case is excessive. There is certainly no basis for D to say that the award should be as low as $250,000 as suggested by Law under D’s Affirmation.

23.  For Ground 2, D’s argument that because P is a public servant (who works as a dental surgery assistant for the Department of Health of the Hong Kong SAR Government), she will not run the risk of losing her employment as a result of the injuries suffered by her in the accident has in my view been ill conceived.

24.  It is clear from the medical evidence, which is supported by P’s own oral evidence, she still suffers from inability to stand or walk for a long time. This has and will continue to affect her performance at work. While the risk is not high, she still runs the risk of losing her present employment due to her disabilities and therefore suffers a handicap in the open labour market should one day she can no longer able to work in her present job. I have already taken into account that such risk is a low one and therefore have reduced it from 6 month to a 3-month loss.

25.  I do not see anything wrong with that. Hence, insofar as D is relying on the proposed Ground 2, it will be rejected as it contains no reasonable prospect of success at all.

26.  In respect of Ground 3, it also contains no merits and can be soundly rejected.

27.  D submits that the physiotherapy expenses incurred by P in the private sector should only be allowed if such treatments were provided by “qualified therapists”. This has been completely misconceived based on two reasons. First, this issue has never been raised by D during the assessment hearing, in particular that the qualifications (or the alleged lack of them) of the physiotherapists P saw in the private sector were in question. It is not open for D to raise them now. Second, it is well accepted as a principle of law that the victim of an accident is entitled to seek treatments either in the private or public sector provided that the treatments are shown to be necessary and reasonable (both in terms of duration and cost). There is nothing unusual or unreasonable about P in seeking treatments in the private sector when she found the physiotherapy treatments provided to her at the public hospitals were inadequate or insufficient.

28.  D also made the serious allegation that the prescription of analgesic medication prescribed by her colleagues at the dental clinic she was working in was “an act of theft” (「貪小便宜的盜竊行為」). This can be soundly rejected also on the following grounds. First, there is no indication to suggest that P, being a civil servant, was not entitled to free medication. Second, there is no evidence to suggest under what circumstances P had received or been prescribed those medications from her colleagues. There is simply no evidence to show that P had obtained them illegally least from stealing them. Such serious allegation was totally unfounded and uncalled for. Nor was the serious accusation made by Law against the Court that it was being bias towards P because she was a “fellow civil servant” being appreciated. The veiled threat that it would report the “theft” to the ICAC, Hospital Authority and/or the Civil Service Bureau shows the ignorance and desperation of D and/or Law.

29.  In the aforesaid circumstances, in my judgment, none of the proposed grounds of appeal contains any merits of any reasonable prospect of success. Hence, the application for leave to appeal is hereby refused.

Stay of execution

30.  D has failed to put forward any reason or evidence to demonstrate why a stay of execution should be granted in this case.

31.  As such, the application for stay is refused.

CONCLUSION

32.  Based on the discussions above, D’s application for leave to appeal and stay of execution is dismissed with costs in favour of P, such costs to be taxed if not agreed with certificate for counsel.