LAU CHO YU v. CHAU CHUNG SANG

HCPI 15/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 15 OF 2014

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D E C I S I O N

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1.  This claim has been settled by the plaintiff accepting sanctioned payments amounting to a sum below the jurisdiction of the High Court. The costs of the action was awarded to the plaintiff with arguments on the scale of costs reserved to this hearing.

I  Background

2.  On 23 September 2012, the plaintiff, a 20 year old female university student, was a passenger in a taxi driven by the defendant in a road traffic accident.

3.  As a result, the plaintiff suffered multiple lacerations on her face (6-8 cm over the nasal bridge, 2cm over the right upper lip), nasal bone fracture and various soft tissues injuries to her legs, back and neck.

4.  Her nasal bone fracture was treated with closed reduction.  However, she is left with “a 3.5 cm vertical scar extending from her forehead, between the eyebrows, to the right side of her bony nasal bridge”, “a 1.5 cm faint scar, involving both the skin and the mucosa, over the right side of her upper lip”, “a mild depression…over her left nasal bone” and “a quite inconspicuous hump…over the nasal bridge”.  (see Joint ENT expert report).

5.  The plaintiff was referred to consult a psychiatrist in January 2013 and she had also been seeing a psychologist.  She was diagnosed as suffering from PTSD and Adjustment Disorder with depressive features.  These diagnoses were agreed by both psychiatric experts in the subsequent report.

6.  The plaintiff commenced proceedings at the High Court in January 2014.  The Statement of Damages claimed some HK$1.6M excluding the claim under Future Loss of Earnings (left blank “subject to further medical examination”) and interest.  In the Revised Statement of Damages, the figure was revised to some HK$1.7M plus interest.

7.  On 5 May 2015, the plaintiff accepted the Sanctioned Payment amounting to HK$650,000 (inclusive of interest) as full and final settlement with costs to the plaintiff in any event “save that the issue of scale of costs to be applied…be adjourned for argument.”

II  The legal principles

8.  Mr Justice Bharwaney has set out the principles succinctly in Wong Chim Hing v Discovery Bay Transit Services Limited HCPI 254/2011:

(a) The “default position” is that upon the plaintiff’s acceptance of the defendant’s sanctioned offer or sanctioned payment, without requiring the leave of the court, the plaintiff is entitled to his costs of the proceedings up to the date of service of his notice of acceptance taxed on the High Court scale (regardless of whether or not the sanctioned offer or sanctioned payment is within the jurisdiction of District Court), unless the Court otherwise orders.

(b) For the Court to order a departure from the “default position”: -

(i) The defendant should have given a written warning that he was seeking such an order at the time he served the notice of sanctioned payment.

(ii) There must be “exceptional circumstances”: -

- At the time when the plaintiff issue the writ, has he a reasonable prospect of recovering a sum of money in excess of District Court Jurisdiction?

- The facts of the case eg the complexity of the factual and legal issues.

(iii) This discretion would not likely be exercised if the settlement sum was close to the jurisdictional limit of the District Court.

III  Issues in dispute

9.  The settlement sum in this case was not close to the jurisdictional limit of the District Court, and, in view of the wordings of the order for acceptance of sanctioned payment, there was no dispute that the defendant has given the requisite notice.

10.  The dispute therefore only concerns with whether there are “exceptional circumstances” for the Court to exercise its discretion.

11.  The Statement of Damages claimed HK$1M under the head of PSLA, some HK$90,000 for pre-trial loss of earnings (the plaintiff claimed to earn HK$2,500 a month as a private tutor), HK$200,000 for loss of earning capacity, HK$100,000 for loss of society, HK$200,000 for special damages, plus the yet-unsubstantiated claim for future loss of earnings.

12.  This would put the claim well into the jurisdiction of the High Court.  The question is whether the plaintiff has a reasonable prospect of such with information available to her at the relevant time.

13.  At the time the writ was issued, the plaintiff only has the joint orthopeadics expert report.

14.  As I have observed during the hearing, this is rather unfortunate because it is now clear that the most significant injuries to the plaintiff are not the orthopaedics injuries (all soft tissues injuries are of self-limiting in nature) but the scaring to her face.  From the (later) joint psychiatric expert reports, it is also now clear that the plaintiff’s psychiatric conditions have stemmed substantially from a fear of permanent disfigurement, a particular concern given that the plaintiff is a young lady.

15.  With some benefit of hindsight, it may seem that the more important information to determine the size of the claim may be expert evidence from plastic surgeons: the condition and prognosis of the scars, what treatment options may be available, what may be the costs, risks and benefits of each option and what to what extent each may likely improve the scars.

16.  Some of these issues were touched upon by one orthopaedics expert and later the ENT experts (after the issue of the writ so not relevant to the current argument) but they were not experts in the field and they did not addressed all the issues listed above.

17.  Such information will not only affect the claim under PSLA, but also the claim under loss of earnings given that the extent of the plaintiff’s facial scars may conceivably directly affect her career prospects (her university degree was in marketing) as well indirectly affecting her career by causing her psychiatric conditions.

18.  Nevertheless, the claim has now been settled without the benefit of expert opinion from plastic surgeons.  As a passing comment, I would think that had the claim continued, this matter would have been addressed.

19.  Nevertheless, for the purpose of this exercise, we are only assessing the information reasonably available to the plaintiff at the commencement of the action.

20.  For the PSLA claim, I would think that although a claim of HK$1M might appear too optimistic, it was not unreasonable to expect an award to be around HK$0.5M taken into account the age of the plaintiff, the likely effect of permanent facial scars on her social life and career, and her psychiatric conditions.

21.  With the uncertainty of the treatment options, condition and prognosis of her facial scars, it was reasonable to assume that there would be a claim in loss of earnings.  Her earnings at the time as a part-time private tutor was not substantial, but she was an university student in marketing, so it was not unreasonable to expect a far larger claim in loss of future earnings.

22.  Together with the claim for future psychiatric and cosmetic treatment costs, I find that it was not unreasonable for the plaintiff to assess that the award would be over HK$1M.

23.  Each case turns on its facts. I would expect the Court having less sympathy if this was a “try-on” claim. For example, if a malingering plaintiff was exposed by the medical experts or video surveillance late in the proceedings and, in order to “quit whilst still ahead”, accepted a sanctioned payment below the High Court jurisdiction.

24.  In such a case, it could be argued that the plaintiff himself (if not his legal advisers, assuming that he has lied to them as well!) must knew right from the beginning that this was a “try-on”.  As such, I have no doubt that this would be an example of an “exceptional circumstance” that the Court should consider making an order for the costs to be taxed in the District Court scale.

25.  The current case is completely different. This is no “try-on”: the facial scars are objective findings not disputed by the experts, and her psychiatric conditions are also agreed by the experts.

IV  Order

26.  I would therefore order that the costs of this action, including the cost of and occasioned by this application, be to the plaintiff to be taxed in the High Court scale with certificate to counsel for this hearing.