RAI SIVA RAJ v. NORMAN LIANG t/a J. LIANG & SON AND ANOTHER

HCPI 772/2016

[2020] HKCFI 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 772 OF 2016

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DECISION ON COSTS

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1.  By a judgment handed down on 4 March 2020, damages in the sum of HK$1,626,268.28 (before computation of interest and net of Employees’ Compensation of HK$690,666) was awarded in favour of the Plaintiff (the “Judgment”). By an order nisi, the 1^st Defendant was ordered to pay the costs of the action to the Plaintiff to be taxed if not agreed.

2.  By a Summons dated 18 March 2020, the 1^st Defendant seeks to vary the costs order nisi in that “1. The costs of the action to be paid by the 1^st Defendant to the Plaintiff to be taxed if not agreed. Such costs shall be taxed on the High Court scale up to 2^nd December 2018 and at District Court scale from 3^rd December onwards”.

3.  In light of the General Adjournment Period occasioned by the viral pandemic, I directed that the Summons be disposed of by way of written submissions.

4.  In essence, the 1^st Defendant’s application is premised upon the increase in the civil jurisdiction of the District Court from HK$1,000,000 to HK$3,000,000 with effect from 3 December 2018 (s.32 of the District Court Ordinance, Cap. 336) so that the Plaintiff ought to have applied for transfer of the case to the District Court for trial.

5.  The writ herein was issued on 12 July 2016 and there is no question that the action was properly issued in the High Court.  The only question is whether it was reasonable for the Plaintiff to maintain the action in the High Court after 3 December 2018.

6.  First and foremost, the District Court Ordinance (Cap. 336) provides as follows:

“32. General jurisdiction in actions of contract, quasi-contract and tort

(1) The Court has jurisdiction to hear and determine any action founded on contract, quasi-contract or tort where the amount of the plaintiff’s claim does not exceed $3,000,000.

(2) The amount of the plaintiff’s claim means the amount the plaintiff claims after taking into account—

. . .

(b) any compensation, as defined in section 3 of the Employees’ Compensation Ordinance (Cap. 282), paid to the plaintiff under that Ordinance; and

(c) any contributory negligence,

that the plaintiff admits in his statement of claim.

…

43. Transfer to the Court from the Court of First Instance of proceedings within the jurisdiction of the Court

(1) The Court of First Instance may, either of its own motion or on the application of any party, order the transfer to the Court of all or part of an action or proceeding, other than a counterclaim, which appears to the Court of First Instance likely to be within the jurisdiction of the Court.

(2) An order may be made under this section at any stage of the proceedings of the motion of the Court of First Instance itself or on the application of any party.

(3) The Court of First Instance is required to make an order under this section unless it is of the opinion that, by reason of the importance or complexity of any issue arising in the action or proceeding, or for any other reason, the action or proceeding ought to remain in the Court of First Instance.”

(emphasis added)

7. Prior to the increase in the civil jurisdiction of the District Court in December 2018, in the determination of the scale of costs in a High Court case where the plaintiff recovered damages within the District Court jurisdiction, Seagroatt J in Lai Ki v. B+B Construction Co Ltd [2003] 3 HKC 322 (at Paragraph 12) adopted the approach of the Glyn‑Jones J in Hopkins v. Rees & Kirby Ltd [1959] 1 WLR 740 (at 742) or (1959) 2 All ER 352 (at 353H), namely:

"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?"

8.  The learned judge then concluded that “The acid test therefore has been, ignoring all questions of contributory negligence, has the Plaintiff a reasonable prospect of recovering a sum of money in excess of the County Court jurisdiction?”

9.  With the advent of the Civil Justice Reform, the issue was revisited by Bharwaney J in Wong Chim Hing v. Discovery Bay Transit Services Limited [2016] 1 HKC 491 wherein the observation of Seagroatt J in Lai Ki (supra) was adopted.  In addition, the learned judge explained:

“19.  Tang ACJHC, as he then was, questioned in Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd [2011] 3 HKLRD 425 at §32 whether a more stringent test was required after the implementation of the CJR but left the matter to be determined in future.  I am tempted to say that the time has come to restate the test, taking into account the objectives of the CJR to promote proportionality and fairness.  Active case management under the CJR ensures that the parties, when apprised of the case being put by the other side, are able to assess on the evidence that has been discovered whether or not the plaintiff has a reasonable prospect of recovering a sum of money in excess of the District Court jurisdiction at the time that the sanctioned offer has been accepted by the plaintiff.  Active case management processes ensure that the parties continuously evaluate their case and, where appropriate, make application for transfers to the District Court.  However, in the absence of full argument and detailed consideration of the potential impact on PI and non-PI civil litigation by any restatement of the test, I must also leave the matter for determination on another occasion.”

. . .

21.  Of course, there may be other considerations, such as the complexity of the factual and legal issues involved, which would justify proceedings being brought in the High Court, which was the reason for the decision of Poon J to award costs on the High Court scale in Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd . . .” (emphasis added)

10. In their written submissions, both the Plaintiff and the 1^st Defendant rely on the observations of Bharwaney J in Wong Chim Hing (supra) with which I respectfully agree.

11. In this case, no contributory negligence has been admitted by the Plaintiff or established by the 1^st Defendant. The total recovery is HK$1,787,719.28 (inclusive of interests, computed after deducting the amount of Employees Compensation in accordance with Paragraph 241 of the Judgment). This is the amount the Court is concerned with in the consideration of the scale of costs (see s.32(2)(b) of Cap. 336).

12. On the face of it, there is some force in the 1^st Defendant’s argument that the amount of damages recovered by the Plaintiff falls well within the District Court jurisdiction and the Plaintiff ought to have considered applying for the case to be transferred to the District Court after 3 December 2018 in light of evidence, in particular, the conflicting opinions as to liability and quantum canvassed in the Joint Orthopaedic Reports.

13. However, there has been no application for a transfer of the case to the District Court on the part of the 1^st Defendant either. Nor is there any evidence that the 1^st Defendant has implored the Plaintiff to consider transferring the case to the District Court.

14. The net amount recovered by the Plaintiff (HK$1,787,719.28) exceeds the previous jurisdictional limit of the District Court by a wide margin. However, it falls short of the new jurisdictional limit mainly by reason of the fact that the amended case on Future Loss of Earning was not advanced with full vigour (see Paragraph 231 of the Judgment). In all circumstances, I am of the view that the damages recovered is not so far off the mark that I should hold it against the Plaintiff for failing to have the case transferred.

15. More importantly, I am of the view that it is justifiable for the Plaintiff to maintain the case in the High Court on account of complexity (see s.43(3) of Cap. 336 and Bharwaney J in Wong Chim Hing (supra)).

16. Ironically, however, it is evident in the course of the trial that the Plaintiff has rather underestimated the complexity of the case in terms of the diametrically opposite factual and medical evidence, bearing in mind that the burden of proof rested squarely upon him.

17. Firstly, this case is crying out for expert evidence on liability in light of the wide array of disputes as fundamental as the layout and dimensions of the unusual workplace and the work process. There was no attempt to seek proper direction for expert evidence, proper discovery (including non-party discovery) or site inspection. Evidently, the Plaintiff’s solicitors did not properly investigate and analyze the case and the trial was unnecessarily prolonged. It is unknown if counsel was instructed in a timeous fashion to review the evidence.

18. Secondly, it was glaringly obvious that the Court would not be in a position to resolve the serious disagreements between the respective orthopaedic experts, without oral evidence, on various important issues pertinent to liability, causation and quantum. In essence, the competing diagnoses of the nerve palsy suffered by the Plaintiff and the aetiology thereof were called into question to challenge the veracity of Plaintiff’s case as to occurrence of the accident and degree of impairment. For one reason or another, the learned Masters conducting the Check List Reviews were apparently not alerted to the need for calling the experts to give evidence.

19. Time and again, the Court has reminded that it is incumbent upon the legal representatives of the parties to assist the Court in the early identification of expert issues and the need for oral evidence (see Kwan JA in Cheung Oi Yan Ruby v. Wong Hoi Sum, CACV 259 of 2011, unrep, 17 July 2012 at Paragraph 44 and Chau Chin To Chadow v. Wing Fung Financial Group Limited, CACV 196 of 2017, unrep, 28 August 2018, at Paragraph 41).

20. In particular, Kwan JA in Lam Kam Fai v. Yau Shing Scaffolding Co. Ltd [2015] 3 HKLRD 119 explained the duty of the parties’ legal representatives in the following terms:

“18.    . . .Mr [x], who appeared for the plaintiff here and below, said it is normal for an order to be made that medical records and reports be adduced at trial without the need to call the makers. Notwithstanding this kind of order being regularly made, and despite the engagement of a single joint expert, it is incumbent on practitioners involved in personal injuries litigation to assess whether there is any need to call the joint expert at the trial to deal with any aspect or issue that is diametrically opposite to their client’s case, and the court should have been alerted to this before the case is listed for hearing.” (emphasis added)

21. Bearing in mind the serious issues in disputes, it was incumbent upon the parties, in particular, the Plaintiff, who bore the burden of proof, to properly consider the need for oral expert evidence and how best to assist the court in resolving the disputes. It is patently clear that the Plaintiff’s representatives have not properly addressed their mind to such matters. As a result, the trial had to be adjourned part-heard in order for the experts to be called.  Quite apart from the inconvenience caused to the Court, extra time was incurred for re-reading into the papers during the adjournment. Further, it was not until a requisition made by the Court that the essential medical literature relied upon by the respective experts were made available. 

22. The lack of preparation on the part of the Plaintiff was also reflected in the haphazard way in which the trial bundles were put together. It is no exaggeration that the organization of the trial bundles is an exercise to be respected. There is no point in mass production of the trial bundles, just to meet the time-frame set by the Court, unless a master version has been properly prepared and cross-checked (by physical inspection of the hardcopy, not just the index, carried out by a responsible person who has proper understanding of the case). Otherwise, one can only be sure that the mistakes are multiplied by the photocopying rendering it burdensome, if at all possible, for corrective measures to be taken when the mistakes are subsequently discovered.   

23. In the trial bundles, the medical records were not organized in any meaningful manner. A number of pages were duplicated or even triplicated. The defects were not entirely cured by the culling exercise undertaken during the adjournment. Much of the Court’s time was wasted in collating and cross-referencing the information.

24. The Court was also treated to a pile of haphazardly arranged receipts in respect of medical expenses, which was not helpful at all. Further, a large number of pages in the trial bundles are not even legible. All these call to my mind the sentiment expressed by DHCJ Seagroatt in Thapa Surendra v E W Cox Hong Kong Limited & Anor, HCPI 451/2009, unrep, 11 July 2011 (at Paragraph 60) that:

“60. . . .Practitioners seem to have forgotten or ignored the lessons of a decade ago.  I shall draw the attention of Taxing Masters to this aspect of wasted costs so that they may deal with it accordingly.” 

25. In conclusion, the 1^st Defendant’s Summons is dismissed with no order as to costs. The costs order nisi is made absolute. The Plaintiff’s costs to be taxed in accordance with Legal Aid Regulations. However, I direct that the matters identified in Paragraphs 14, 16 to 24 hereinabove be brought to the attention of the Taxing Masters for the purpose of inter parte and common fund taxation (if any).

26. For the sake of completeness, there is no need for any variation of the costs order arising from the joinder of the 2^nd Defendant (see Paragraph 3 of the Summons). An order to the same effect has already been made in Paragraph 242 of the Judgment.