WONG WAI MAN v. YI WO YUEN AGED SANATORIUM CENTRE LTD

HCPI 77/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 77 OF 2007

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DECISION  ON  COSTS

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1. This is an application by Summons by the plaintiff to vary the costs order nisi given in the judgment after trial in this matter.

2. This is a personal injuries case the trial of which took place between 22 May and 6 June 2008.  A written judgment was given on 15 August in which judgment in the amount of $505,321 was given to the plaintiff against the defendant.  That amount of the judgment had already taken into account the deduction of $183,893 as being ECC payment already received by the plaintiff.  That judgment was on the basis of full liability of the defendant with no contributory negligence on the part of the plaintiff found.

3. As a result of the amount of the judgment, I made a costs order nisi giving the costs of the action to the plaintiff to be taxed on the District Court scale.

4. By this Summons, the plaintiff seeks to vary that costs order nisi to the effect that the plaintiff’s costs of the action be taxed on the High Court scale rather than the District Court scale.

5. The basis upon which this application for the variation of the costs order nisi is made is that at the time the Writ was issued in January 2007 in this matter, there was a reasonable prospect of the plaintiff recovering an amount in excess of the District Court jurisdiction, namely of over $1 million.

6. There is no dispute between the parties as to the legal principles applicable and which has been clearly stated by Seagroatt J in the case of Lai Ki v B+B Construction Co. Ltd [2003] HKLRD 192.

7. The specifics as to how at the time of the Writ, the plaintiff had a reasonable prospect of recovering an amount in excess of the District Court jurisdiction was put of the following basis by counsel for the plaintiff.

8. The accident to the plaintiff happened on 26 December 2004 when she was in the course of giving a bath to a resident of an old age home run by the defendant.  The initial injury entailed a sprain to her back.  The pain was persistent and the plaintiff received treatment and underwent physiotherapy as well as occupational therapy throughout 2005.  She was also given sick leave until mid May 2006.

9. Since February 2006, the plaintiff also attended the West Kowloon Psychiatric Centre due to adjustment disorder with depressive mood.  In the latter half of 2006, the diagnosis was revised as being major Depressive Disorder and the dosage of antidepressant increased.  Thereafter, her symptoms gradually improved over time.  It was only by April 2008, that the plaintiff’s mood had improved substantially and she became less anxious about the work and her well-being.

10. Given the circumstances of her psychiatric condition, it was submitted by her counsel that when the Writ was issued in January 2007, her condition was far from what it was by April 2008.  At the time when the Writ was issue, her psychiatric condition had only shortly been revised as being major Depressive Disorder.

11. It was only shortly before the trial started that the plaintiff was said to have substantially improved from her psychiatric condition.

12. Therefore, submits Mr Sakhrani, at the time the Writ was issued in January 2007, there was every reasonable prospect for the plaintiff to include a claim for future loss of earnings in her claim although at the end of the day no loss of future earnings was awarded because of her substantial improvement in April 2008, but that was not a matter which could have been perceived by her lawyers in January 2007.

Decision 

13. I have no doubt that submission by Mr Sakhrani is correct.

14. That the matter has to be viewed at the time when the Writ was issued and given the circumstances pertaining at that time is supported by the words of Glyn-Jones J in Hopkins v. Rees & Kirby Ltd [1959] 1 WLR 740 at 742 where he said :

“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?”

15. In the judgment given, although full loss of earnings for the pre-trial period was assessed and awarded to the plaintiff, no future loss of earnings was awarded due to the substantial improvement made by her in her psychiatric condition in April 2008.

16. While that was the position at trial, if the matter was to be viewed at the time of issue of the Writ back in January 2007, it cannot be said to be wrong of the plaintiff to have included a claim for future loss of earnings in her Statement of Damages since there was every prospect of her recovering same given her condition then.

17. The amount of loss of future earnings claimed by the plaintiff in the Statement of Damages served with the Statement of Claim herein was calculated at $739,200 using her pre-accident earnings of $7,400 per month, giving allowance for $3,000 as being what she might earn by way of alternative employment, and using a multiplier of 14 in view of the age of the plaintiff being 41 at time of trial.

18. Even given the fact that the multiplier adopted by the plaintiff may have been reduced slightly by the court when making an assessment, given the amount of future loss of earnings claimed, and for which there was a reasonable prospect of the plaintiff succeeding, given the situation as it existed in January 2007, I am convinced that it cannot have been obvious to the plaintiff in January 2007 that this was a District Court claim, albeit that at the end of the day she did not succeed on obtaining any award for loss of future earnings, even if the entire amount of ECC compensation is deducted.

19. It was however, brought to my attention at the hearing that at the time when the Writ was issued in January 2007, the plaintiff had already received an advance payment of $122,893 (which is part of the ECC compensation ultimately deducted).

20. At that time, $44,000 had been paid into court in the ECC claim by the defendant on 23 December 2005.

21. A further payment in of $17,000 was made by the defendant in the ECC claim on 17 March 2007.

22. The two payments in, totaling $61,000 was accepted by the plaintiff on 30 March 2007.  That would be some two months after the issue of the Writ herein.  The overall effect being that the $61,000 added to the advance payment make up the amount of the ECC compensation which had been deducted in arriving at the final amount of the judgment awarded to the plaintiff herein.

23. These matters therefore cannot in the least affect the conclusion that I have come to namely, that there was a reasonable prospect of the plaintiff recovering an amount in excess of the District Court jurisdiction and it was not obvious to the plaintiff when the Writ was issued that this was a District Court matter.

24. Accordingly, the costs order nisi will be varied to the effect that the defendant is to pay the plaintiff her costs of the action to be taxed on the High Court scale if not agreed.

25. There will be a further order that the costs of this application and the hearing of it is to be paid by the defendant also to be taxed on the High Court scale if not agreed.