LAU KWAI SHEUNG v. TRADE EASY DEVELOPMENT LTD

BETWEEN

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D E C I S I O N

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I.  Background

1.  This is a Personal Injury claim commenced at the High Court on 21 October 2010 for a sum of HK$1,436,830.99 as stated in the Statement of Damages (on top of Employees’ Compensation of HK$143,584.01).

2.  The case was settled on 15 January 2013 for a sum of HK$530,000 (inclusive of interest and on top of the Employees’ Compensation).

3.  The settlement terms stipulated, inter alia, that the defendant do pay the plaintiff’s costs of this action to be taxed at a scale of costs to be determined by a High Court Master.  This leads to the current hearing.

II.  The case for the parties

4.  The defendant is seeking for the costs of the action to be taxed at District Court scale. The plaintiff is seeking High Court scale taxation.

5.  The law is not in dispute: for an action commenced at High Court but with damages awarded or settled within the jurisdiction limit of District Court, the test of whether the costs should be taxed at High Court or District Court scale is whether, at the commencement of the proceedings, the plaintiff has a reasonable prospect of recovering a sum in excess of the District Court jurisdiction.

6.  Another version of this test is “whether it would be obvious to a reasonable plaintiff or his legal adviser that the case was a District Court rather than High Court case”.  (Wong Chi Ho Jacky v Poon Yuk Shan HCPI 910/2002).

7.  The test is “objective” and does not rely on the subjective belief of the plaintiff or his legal advisers.

8.  In the context of a personal injury case, if a plaintiff was found to be malingering or in any way dishonest with his doctors, he could not then reap the benefit of the argument that his legal advisers, by relying on such doctors’ reports, had thought that there was a “reasonable prospect”.  A reasonable and “objective” plaintiff would have known otherwise.

9.  In determining the appropriate forum for action, all statutory employees’ compensation paid should be deducted.  In this case, we are looking at the “starting” claim of HK$1,436,830.00.

10.  The bulk of the damages claimed by the plaintiff was the claim for loss of future earnings of HK$710,000.  The issue in question was whether the plaintiff’s alleged injury meant that she could not work as a waitress but needed to take up her current (allegedly lower paid) job as a cashier.

11.  Mr E Tang for the defendant has made extensive submissions on the question of malingering and “symptoms exaggeration”.

12.  I agree that there are plenty of evidence to raise a strong suspicion: the relatively trivial mode of injury (being hit by a hand-pushed trolley manipulated by a co-worker), the absence of objective medical investigation findings, the abnormal “pain behavior” for a soft tissue injury, the finding of “no permanent injury” by the treating orthopaedics doctors, the finding of “inconsistent performance” during work capacity evaluation by the occupational therapist, and the expert opinion from the two orthopaedics experts (eg positive Waddell’s Tests) etc.

13.  On the other hand, Mr A Tang for the plaintiff did point to some evidence from medical and occupational therapy reports which seemed to support that there were some findings of pain, tenderness and decreased sensation.  There was also some indication of an “egg skull rule”-type argument regarding the MRI findings of pre-existing spine degeneration, as well as some indication of a psychological/psychiatric explanation of the abnormal “pain behaviour”.

14.  This case did not progress to a full trial so I do not have the benefit of hearing all the evidence tested in an open court.  As such, I am not in a position make any definitive findings of malingering or “symptom exaggeration”.

15.  However, I do accept the point raised by Mr E Tang of the defendant that the evidence did not support that the plaintiff suffered any significant loss in income as a result of her alleged injury.  In particular, in the plaintiff’s Supplemental Witness Statement, she stated that (as translated): -

“The above table showed that in some previous months I could suddenly earn about HK$7,000 to HK$8,000. This was because the current employer would ask me to do overtime work when there was not enough manpower. In fact, my income was not stable. If the employer has enough manpower, I need not do overtime work.”

16.  During the hearing, Mr A Tang of the plaintiff submitted that the plaintiff chose to work in that particular supermarket because of its convenient location for travel, and the plaintiff did not have any difficulties in travelling.

17.  I note that the plaintiff’s pre-accident earnings as a waitress was also around HK$7,000 to HK$8,000.  Therefore, there could not have been any significant difference in post-accident “loss of earnings” and any such loss was due to the fact that no overtime work was available and not because she could not do any overtime work due to her injuries.

18.  Both orthopaedics experts and the single psychiatric expert also confirmed that the plaintiff should be able to return to her pre-accident job as a waitress.  Admittedly, such evidence only came into existence after the commencement of action and could not assist the Plaintiff or her legal advisor in assessing the prospect of the claim at the beginning.  But then a reasonable plaintiff would know her own ability to work all along without need for “expert endorsement”.

19.  As such, I am of the view that it should be obvious to a reasonable plaintiff that the claim under “Loss of Future Earning” would not be substantial, if any would be awarded at all.

20.  I will also consider the claim under PSLA.

21.  I am of the view that for a case of a relatively non-violent accident with only soft tissue injury, even if there was some psychological/psychiatric element, a claim of HK$500,000 would be wildly optimistic.  Even taking the plaintiff’s claimed injuries to the highest, a “reasonable prospect” should be no more than HK$200,000.

22.  Taking into account of the reductions of just these two heads of claim, I would think that it should be obvious to the plaintiff all along that a reasonable prospect of the total award in this action should be well below HK$500,000, taking this case firmly into the jurisdiction of the District Court.

23.  As such, a settlement of HK$530,000 that she has achieved was already an extremely good result.

III.  Conclusion

24.  I would therefore make the order that: -

(a) The defendant do pay the plaintiff’s costs of this action (except costs of and occasioned by this application) to be taxed at the District Court scale.

(b) The costs of and occasioned by this application be to the defendant to be taxed at the High Court scale with Counsel’s certificate.