IP SIU CHI v. KWAN WING HANG trading as FAI HUNG CONSTRUCTION COMPANY AND OTHERS

CACV 217/2024, [2026] HKCA 204

On Appeal From [2024] HKCFI 1237 &

[2024] HKCFI 1622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 217 OF 2024

(ON APPEAL FROM HCPI NO. 1200 OF 2018)

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JUDGMENT

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Hon Chu VP :

1.  I have the benefit of reading in draft the judgment of Cheung JA. I agree that the plaintiff’s appeal should be allowed on both grounds of appeal and the order proposed by Cheung JA. I also agree with His Lordship’s observations on the unsatisfactory delay in the employees’ compensation proceedings. I wish to add a few words of my own on two issues in this appeal.

I.  Pre-existing conditions and pre-trial loss of earnings

2.  As Cheung JA pointed out, this Court in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 at 965E-I held that where a pre-existing condition was likely to lead to disability and loss in the absence of the injury for which the plaintiff was entitled to recover, 1) the usual method of assessing the recoverable loss was to take account of those risks by an appropriate assessment of general damages; 2) the pre‑trial loss of earnings might also be reduced if the risks during the years concerned were sufficiently high; and 3) for post-trial loss of earnings, usually the most accurate way to take account of the risks of pre‑existing condition is by means of reduced multiplier. We understand from counsel that this part of the judgment in Chan Kam Hoi was not drawn to the Judge’s attention.

3.  There is no dispute that the plaintiff has pre‑existing psychiatric conditions. The Judge held (at [94] and [95] of the judgment) that the plaintiff’s post-accident psychiatric symptoms were caused both by her pre‑existing psychiatric conditions and the accident; and that a 30% reduction was appropriate to take account of the pre‑existing conditions and other accident unrelated stressors in life that had contributed to her post‑psychiatric conditions. There is no appeal against these findings. For the analysis and reasons given in [98] to [105] of the judgment, the Judge was correct, and there is no appeal, to apply the 30% reduction to the award on pain, suffering and loss of amenities.

4.  When it comes to pre-trial loss of earnings, the Judge would have to consider whether there were sufficiently high risks in the pre‑trial period that the plaintiff’s pre‑existing psychiatric conditions would lead to disability and loss in the absence of the accident. There is no specific finding on this aspect in the Judge’s judgment.

5.  Further and importantly, there is no evidence in the case to show that the post‑accident psychiatric conditions had occasioned loss to the plaintiff that was over and above the loss occasioned by her physical injuries that were caused entirely by the accident. As explained by Cheung JA, the Judge’s quantification of the pre‑trial loss of earnings consists of 1) total loss of earnings for the sick leave period, and 2) partial loss of earnings for the remainder of the pre‑trial period, being the difference between the income of a scaffolder and the income of a security guard or other sedentary jobs: see [117] to [119] of the judgment. This reflects the plaintiff’s loss due to her orthopaedic injuries. It has not been in any way increased by the additional psychiatric conditions. Reducing the pre‑trial loss of earnings by 30% on account of the plaintiff’s pre‑existing psychiatric conditions would result in the plaintiff being worse off by reason of having suffered two injuries instead of one injury, which as Cheung JA observed is an illogical outcome.

6.  Accordingly, even if there were sufficiently high risks during the pre‑trial period that the plaintiff’s pre‑existing psychiatric conditions would lead to disability and loss in the absence of the injury for which she was entitled to recover, on which there was no specific finding, there was no basis to reduce the loss of pre‑trial earnings on account of the pre‑existing conditions.

II.  The Judge’s costs order

7.  The Judge’s principal reason for awarding the plaintiff’s costs on Di0strict Court scale from the date of the employees’ compensation award or after discovery (whichever is later) is that the plaintiff should have transferred the case to the District Court in light of the increase in the District Court jurisdiction, her employees’ compensation award and the state of the evidence.

8.  There can be no dispute that costs is a matter of judicial discretion. There is also no dispute that the plaintiff was entitled to and had acted reasonably in commencing her claim in the High Court as the amount of her claim was well in excess of the District Court jurisdiction at the time. The main plank in Mr Ko’s submissions both here and below is that the plaintiff is under a continuous duty to review her prospect of obtaining an award in excess of the District Court’s jurisdiction limit, relying on the underlying objectives in Order 1A, rule 1 of the Rules of the High Court, Cap. 4A. It is said that the plaintiff ought to have transferred the case to the District Court either after the issue of the employees’ compensation award or after discovery.

9.  For my part, I accept that, post-Civil Justice Reform, the court should take into account the underlying objectives in Order 1A, rule 1 of the Rules of the High Court and the conduct of the parties when exercising its discretion as to costs, as required by Order 62, rule 5(1)(aa) and (e) of the Rules. When exercising the discretion on costs where the judgment award falls below the jurisdiction of the court, the fact that the action was at its commencement within the jurisdiction of the chosen forum is a relevant consideration. It is also relevant to consider whether the successful party has acted unreasonably in commencing and/or continuing the action in the chosen forum.

10.  However, as stated in the opening part of Order 62, rule 5, the furtherance of the underlying objectives and the parties’ conduct are to be considered “to such extent, if any, as may be appropriate in the circumstances”.

11.  In the present case, the primary reason accounting for the rather substantial difference between the amount claimed and the Judge’s award is the dispute over the amount of the plaintiff’s monthly income prior to the accident. The plaintiff’s case is based on her income in the three months immediately before the accident, as evidenced by three wage receipts (referred to as the Kon Kee receipts). The defendants challenged the authenticity of the receipts and further argued that, in any event, they should not be adopted to determine the pre‑accident monthly income. The Judge rejected the suggestion that the receipts were forgeries and held that the plaintiff did receive the payments shown in them. The Judge, however, did not feel able to rely on them as informing the plaintiff’s average income before the accident. She instead relied on the Employers’ Return for the two years prior to the accident. The average monthly income thus arrived at by the Judge was less than half of the average monthly income shown in the Kon Kee receipts.

12.  In the circumstances, while it is not wrong in principle to consider whether the action should have remained in the High Court after the increase in the District Court jurisdiction, the Judge’s conclusion that the plaintiff should have transferred her claim to the District Court cannot be supported.

13.  This is not a case where it is obvious that the plaintiff’s claim comes within the increased jurisdiction of the District Court or that it is plainly unreasonable for the plaintiff to continue her claim in the High Court after the increase in the District Court jurisdiction, such that the discretion on costs should be exercised against her. On the contrary, the parties’ factual dispute over the plaintiff’s average pre‑accident monthly income, which requires careful examination and assessment of oral and documentary evidence, can only be properly resolved at trial. This is also not a case, and the Judge did not find, that the plaintiff had exaggerated her claim. On the available evidence, the plaintiff cannot be said to have acted unreasonably in continuing her claim in the High Court. It is unrealistic to expect or require the plaintiff to seek a transfer of her claim to the District Court prior to the trial.

Hon Cheung JA :

III.  Background

14.  The plaintiff was a scaffolder. She had been a scaffolder for six years prior to the accident on 5 December 2015 when she fell from a height of two to three meters above ground during dismantling bamboo scaffolding at a building site (‘the Accident’). She sustained injuries and claimed damages against the 1^st defendant (the principal/main contractor), the 2^nd defendant (the subcontractor of the 1^st defendant) and the 3^rd defendant (a subcontractor of the 2^nd defendant). The 3^rd defendant did not take part in the action and interlocutory judgment was entered against him with damages to be assessed. By a judgment dated 6 May 2024 (‘the Judgment’), Deputy High Court Judge Phoebe Man found for the plaintiff after trial and awarded her damages of $1,509,202 against all defendants :

Particulars
Items	HK$
Pain, Suffering and Loss of Amenities	220,000
Pre-trial loss of earnings + MPF	1,218,270
Post-trial loss of earnings + MPF	1,779,876
Loss of Earning Capacity	180,000
Miscellaneous special damages	115,000
	3,513,146
Less
Pre-existing condition at 30%	- (1,053,944)
Employees’ Compensation	- (950,000)
Total:	1,509,202

15.  The Judge made the following costs order :

‘ 133. There will be a costs order nisi that the defendants do pay the plaintiff her costs of this action to be taxed if not agreed. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations. This costs order is nisi, and will become absolute without further order of the court, in the absence of an application to vary within 14 days.’

16.  Upon the 1^st and 2^nd defendants’ application, the Judge varied the costs order nisi as follows :

‘ the costs order nisi dated 6 May 2024 be varied that the costs awarded be on the High Court scale from the date when the Writ of Summons was issued (15 November 2018) to the date when the award for Employees’ Compensation was issued (25 January 2021) or when discovery has taken place and after documents had been produced (whichever is later), and thereafter be on the District Court scale;’

(‘the Decision on Costs’)

IV.  The plaintiff’s appeal

17.  The plaintiff now appeals against the Judgment of $1,509,202 and the Decision on Costs. The two grounds relied upon by the plaintiff are as follows :

1)  The Judge erred in discounting 30% in relation to the damages for pre‑trial and post‑trial loss of earnings (‘Ground 1’); and

2)  The Judge erred in ordering the plaintiff’s costs after the date of the Employees’ Compensation Award or date of discovery (whichever is later) be taxed on District Court scale (‘Ground 2’).

V.  Joint medical reports and findings

1)  Orthopaedic conditions

18.  The parties have prepared two joint‑expert medical reports. The orthopaedic report of Dr Ko and Dr Wong showed that the plaintiff suffered multiple sites contusion injury; neck and shoulder pain; bilateral lower limb weakness; left hand weakness with wrist drop. Both orthopaedic experts opined that such injuries were caused by the Accident.

19.  The Judge accepted Dr Wong’s opinion that the plaintiff would not be able to return to work as a scaffolder. She held that the plaintiff’s job was of such a nature that even injuries or conditions of the mildest nature might put the plaintiff’s life in danger when she is required to work at heights and that it would not be fair for the Court to conclude that the plaintiff could return to her previous job as a scaffolder when she still experienced numbness and weakness, however, mild those conditions might be, as they might compromise her ability as a scaffolder. [63(2) and (3)].

2)  Psychiatric conditions

20.  The other joint medical report is on the psychiatric conditions of the plaintiff prepared by Dr Fan and Dr Chan. Dr Fan was of the view that the plaintiff suffered from Adjustment Disorder with prominent disturbance of other emotions. He was of the view that the plaintiff’s emotional state was not caused by the Accident.

21.  Dr Chan was of the view the plaintiff was suffering from Post‑Traumatic Stress Disorder and depressive illness. She had been exposed to a stressful event, namely, the accident.

22.  The Judge accepted Dr Chan’s view. She addressed the psychiatric conditions of the plaintiff as follows :

‘ Joint Psychiatric Report

67. [The plaintiff] was examined jointly by her expert, Dr Chan, and [the defendants’] expert, Dr Fan on 10 July 2019. At the joint examination, [the plaintiff] said that after the Accident, she experienced sleep onset insomnia and had repeated flashback of the Accident. She was depressed in mood and had crying bouts. She also had shortness of breath and anxiety. She would feel cold in rainy and cold days like the weather on the day of the Accident. She had suicidal ideation but no actual suicidal attempt.

68. Such psychiatric symptoms were not reported between 5‑30 December 2015. On her psychiatric assessment on 10 December 2015, she was noted to be calm and relaxed, in a neutral mood with coherent and relevant speech. Sleep and appetite were normal with no suicidal or psychotic symptoms. No psychiatric follow-up was deemed necessary.

69. [The plaintiff] was first noted to be emotional and tearful with suicidal thoughts at a physiotherapy session at YCH on 30 May 2016. She was admitted into the emergency Medicine Ward of YCH for Adjustment Disorder with depressive features with suicidal ideas. [The plaintiff] was then assessed and reported to have turned increasingly depressed as she was pessimistic about the recovery of her lower limbs and left hand. She had poor sleep, poor appetite, social withdrawal and suicidal ideations.

70. [The plaintiff] then attended follow-up sessions in Kwai Chung Hospital in 28 June 2016 and was diagnosed to have Severe Depressive Episode without Psychotic Symptoms and Post-traumatic Stress Disorder (“PTSD”). She was put on anti-depressants.

71. [The plaintiff] also saw a private psychiatrist Dr Benjamin Lai on 23 July 2016 and was diagnosed to have PTSD and Depressive Illness. However, [the plaintiff] did not take any of the prescribed medication nor did she attend any follow-up with Dr Lai.

72. Several major life events, including the passing away of her father, marriage to her boyfriend and a pre-term spontaneous delivery of a baby happened during 2016.

73. At the psychiatric follow-up on 20 December 2016, [the plaintiff] was reported to be very irritable with compulsive behaviours developed. She had a suicidal attempt in December 2016 after arguing with her then husband.

74. In January 2017 she was assessed to be mentally unfit to take care of her baby, which stirred up emotions of worry, despair and anger. Her husband then quit his job and stayed home to help take care of the baby. This helped alleviate [the plaintiff’s] moods and she was reported to be stable from March to May 2017.

75. [The plaintiff’s] condition worsened again in May 2017 due to worsened relationship with the husband. [The plaintiff] then found out about her unplanned pregnancy with twins in July 2017. Her mood remained stable between August to October 2017 despite the workload in taking care of two more new-borns. However, she was referred to the Intensive Care Team of Kwai Chung Hospital as she was considered a case at risk with many needs of high complexity requiring crisis intervention. [The plaintiff] considered this as stigmatising and became uncooperative. She was noted to be emotionally very unstable during her psychiatric follow-up on 23 October 2017.

76. Between 23 November 2017 to 30 October 2018, [the plaintiff] was reported to be normal in mood and could enjoy playing with and taking care of her children. However she was still pre-occupied with unhappy thoughts about the first child’s premature birth, unstable power supply and past injury. [The plaintiff] had self-blaming thoughts of not being able to protect her daughter and she had loss of self-esteem.

77. At the joint examination, it was found that [the plaintiff’s] mood was stable and neutral. No overt anxiety or depressive features could be observed. No suicidal idea was present. No psychotic feature was evident. [The plaintiff] only became tearful when mentioning about her sleep problems and nightmares. There was no impaired cognitive function. [The plaintiff] denied having abused substances in the past and denied any serious suicidal attempts.’

23.  The Judge held :

‘ 82. Dr Fan and Dr Chan are both of the opinion that there is no evidence of malingering of psychiatric symptoms by [the plaintiff]. As such, I do not think it matters too much whether [the plaintiff’s] psychiatric symptoms are labelled as an Adjustment Disorder (as advocated by Dr Fan) or as PTSD (as advocated by Dr Chan). The court will assess the quantum of damages based on [the plaintiff’s] actual psychiatric conditions (if any).’

24.  The Judge found on the undisputed expert evidence that the plaintiff has pre‑existing psychiatric conditions :

‘ 83. The investigations by the experts revealed that having had a difficult childhood, [the plaintiff] had a history of polysubstance abuse since about 13 years old, including ketamine, ecstasy, cannabis and ice. [The plaintiff] also had a pregnancy terminated in 2004. [The plaintiff] was admitted compulsorily to Kwai Chung Hospital for 2 weeks in September 2004 for repeated suicidal attempts and self-injurious behaviours, including overdosing on hydrogen peroxide, Panadol and Midazolam, lacerating her wrists resulting in heavy bleeding leading to hypovolemic shock requiring resuscitation.

84. During her hospitalisation in 2004, she was diagnosed to have suffered from Emotionally Unstable Personality Disorder, Borderline Type and Adjustment Disorders with mixed disturbance of emotions and conduct. After discharge from Kwai Chung Hospital she had repeatedly defaulted in her follow-up sessions.

85. It is thus not disputed that [the plaintiff] has pre-existing psychiatric conditions.’

25.  The Judge referred to Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 and held that the plaintiff’s pre‑Accident psychiatric conditions, the Accident and the related stressors caused by the Accident had contributed to the plaintiff’s psychiatric symptoms. She held a 30% reduction in damages is appropriate to take into account these matters.

‘ 94. I am of the view that whilst [the plaintiff’s] pre‑Accident psychiatric conditions may have made [the plaintiff] more pre-disposed to the development of psychiatric conditions, the Accident and the related stressors caused by the Accident have certainly contributed to [the plaintiff’s] current psychiatric symptoms.

95. Whilst Mr Ko had submitted that there should be a 100% reduction in the assessment of damages relating to [the plaintiff’s] pre-existing psychiatric conditions, Mr Shum contended that there should not be any reduction. Neither formulation is helpful, as it is apparent that [the plaintiff’s] psychiatric symptoms are both caused by her pre-existing psychiatric disposition as well as the Accident. Drawing support from the 10 Stressors identified by Dr Fan, and that 5 of which can be said to be completely unrelated to the Accident (unplanned pregnancy in May 2016 and in 2017, housing issue, pre‑term delivery in 2016, and relationship problems) and taking into the account of the likely severity of each of the relevant stressors, I come to the conclusion that a 30% reduction in damages is appropriate, to take into account [the plaintiff’s] pre-existing psychiatric conditions and the existence of other stressors in life which contributed to [the plaintiff’s] current psychiatric conditions.’

26.  The related stressors were described by the Judge as follows :

‘ [91](1) Slow recovery of physical illness and residual disabilities – this referred to [the plaintiff’s] injuries caused by the Accident; (2) Loss of leisure activities – this was alleged by [the plaintiff] to be the case after the Accident; (3) Loss of working capacity owing to injury and disabilities – the inability to work was directly caused by the Accident; (4) Worsening of financial situation – the injuries caused by the Accident had meant that [the plaintiff] was prevented from earning the relatively high salary as a scaffolding worker; (5) Ongoing litigation over compensation for the Accident – this stressor is a direct consequence of the Accident.’

VI.  Ground 1

1)  The plaintiff’s argument

27.  The gist of Mr Shum’s argument for the plaintiff is that whilst the Judge had found the plaintiff has suffered from both orthopaedic and psychiatric injuries, the Judge’s conclusion that the plaintiff’s pre‑Accident psychiatric conditions contributing to 30% to her current conditions is related only to her psychiatric aspect of her health. That means 30% of her present psychiatric conditions is due to her pre‑Accident psychiatric condition. On the other hand, the plaintiff’s orthopaedic injuries caused by the Accident have nothing to do with her pre‑ and post‑Accident psychiatric conditions. From the Joint Orthopaedic Report, the plaintiff’s orthopaedic injuries alone render her unable to return to scaffolding work. Even with her pre‑Accident psychiatric conditions, the plaintiff was able to do scaffolding work for years and earn the average income of $25,090 (as found by the Judge at [114] of the Judgment). The only reasonable conclusion is that but for the Accident, even with the pre‑Accident psychiatric conditions the plaintiff would have continued to earn such income. Accordingly, the Judge was wrong to apply a 30% reduction to all heads of damages without giving any reason, which is contradicted by [63], [94] and [95] of the Judgment. The reduction of 30% on damages should not apply to the overall damages, particularly not to the heads of damages of pre‑trial and post‑trial loss of income. The plaintiff should have recovered such loss without any reduction.

28.  Mr Shum submitted that the correct quantum of damages should be :

Items	HK$
Pain, Suffering and Loss of Amenities	220,000
Loss of earning capacity	180,000
Miscellaneous special damages	115,000
	515,000
Less Pre-existing psychiatric condition at 30%	(154,500)
	360,500
Pre-trial loss of earnings + MPF	1,218,270
Post-trial loss of earnings + MPF	1,779,876
Subtotal:	3,358,646
Less Employees’ Compensation	(950,000)
Total:	2,408,646

2)  The 1^st and 2^nd defendants’ arguments

29.  Mr Ko (together with Mr Hung) for the 1^st and 2^nd defendants submitted that Mr Shum misunderstood the Judgment and the legal basis on which the Judge applied the 30% reduction in damages across all heads of damages. He submitted that the plaintiff’s pre‑existing psychiatric conditions fell within the second category identified in Chan Kam Hoi and Liu Chun Kow Joe v Lee Sau Wing [2008] 3 HKC 433. The 30% reduction was not applied to reflect the impact of the plaintiff’s pre‑existing conditions on her earnings as the plaintiff contended. Rather, it represented a necessary adjustment made to account for the possibility of ‘other vicissitudes of life’ which may occur at some point in time that would lead to the plaintiff’s psychiatric condition, even if the Accident had not occurred, by referring to the ten stressors relied on by the Judge in her decision. Mr Ko submitted that the adverse impact of the plaintiff’s psychiatric condition on her ability to resume work was undisputed.

3)  My view

(1)  Pre-existing disability or condition

30.  This Court in Chan Kam Hoi discussed the effect of a pre‑existing disability or condition of a person injured as a result of an accident in his claim for damages. The plaintiff who was doing heavy work in construction site sustained injuries to his back. The trial judge reduced the damages by 60% due to a pre‑existing condition of his back. Mortimer VP first referred to the first instance decision (unreported) HCPI 815/1995, 7 March 1997, at [18] on the possible outcome of a pre‑existing disability. That decision was restated with modification by this Court in Liu Chun Kow Joe :

‘ 36. There are three possible outcomes regarding pre-existing disability of a plaintiff :

1) The plaintiff would probably go through life without being affected by the disability. If this is the case the defendant would be liable for all damage caused by his wrongful act.

2) There is a strong possibility that some other event or natural progression of the condition would have brought about the plaintiff’s present state. The Court would then need to assess the degree of possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

3) The pre-existing condition would certainly lead to disability and loss in the future. In such case, an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.’

31.  Mortimer VP in Chan Kam Hoi held at page 965 E‑I :

‘ 1. Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.

2. When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff’s working life is likely to be limited by a pre‑existing condition as in this case.

3. This is not to say that we regard the judge’s approach as wrong. He has the support of some authority and indeed in this appeal there are strong reasons for not disturbing his method. He saw and heard the witnesses, and made an obviously careful assessment before rejecting Mr Ramanathan’s submission that 60% was the appropriate deduction and selecting 45%. If the judge’s method is not followed, there is a risk that the important advantage the Judge had over this Court will be lost.’

[For ease of reading, the paragraphs are numbered]

(2)  The Judge’s approach on the pre‑existing condition

32.  In [94] and [95] of the Judgment, the Judge was dealing with the dispute over causation between the experts and also counsel, i.e. whether the plaintiff’s post‑Accident psychiatric conditions were caused by the Accident or solely as a result of her pre‑existing psychiatric conditions. The Judge’s finding on the issue is that the plaintiff’s post‑Accident psychiatric conditions were caused by her pre‑existing psychiatric disposition as well as the Accident.

33.  In the second part of [95], the Judge dealt with the percentage of reduction and held that a 30% reduction would be appropriate ‘to take into account the plaintiff’s pre‑existing psychiatric conditions and the existence of other stressors in life which contributed to the plaintiff’s current psychiatric conditions.’

34.  The Judge’s assessment fell within the second scenario in respect of the possible outcomes of a pre‑existing disability stated in Liu Chun Kow Joe. There is no challenge that the plaintiff had pre‑existing psychiatric disability and the figure of 30% reduction. I will just observe that when Mortimer VP in Chan Kam Hoi referred to the ‘sufficiently high’ risk that a pre‑existing condition may likely lead to damages and pre‑trial loss of earnings (see [30] above), my understanding is that he meant that risk should be more than a remote possibility. This view was accepted by counsel in the present case. The Judge’s approach on reduction accords with what this Court held in Liu Chun Kow Joe at [38] which stated that the Court must assess the risk by the overall evidence that is available and :

‘ 39. Judges are not actuaries but their tasks frequently require them to make assessments of probabilities in quantitative terms based on available evidence. This is not done by way of a clinical, mathematical approach nor by intuition but in a way which more or less reflects the condition of the plaintiff based on the available evidence.....’

(3)  30% reduction to be applied to all damages?

35.  The core question is whether the Judge was correct to apply the 30% reduction to all heads of damages? The Judge’s 30% reduction to the damages for pain, suffering and amenities, loss of expectation of life and special damages was not challenged by Mr Shum despite his submission that it should not apply to all the damages. The remaining two heads of damages are pre‑trial loss of earnings and post‑trial loss of earnings.

(3.1)  Pre-trial loss of earnings

36.  In dealing with the pre-trial loss of earnings, the Judge divided it into two periods. The first period was when the plaintiff was on sick leave and could not work totally and the second period was from the end of sick leave to trial when she could work at a reduced income. In respect of the first period, the Judge referred to the plaintiff’s sick leave due to both the orthopaedic and psychiatric injuries. She accepted Dr Ko’s opinion that it was reasonable and appropriate to have sick leave from 5 December 2015 to 30 November 2016 for the orthopaedic conditions. Dr Chan’s opinion was that a sick leave for six to nine months due to the plaintiff’s Post‑Traumatic Stress Disorder was deemed reasonable. The Judge held that nine months of sick leave from the onset of the plaintiff’s psychiatric conditions in March 2016 to 30 November 2016 was appropriate for the psychiatric conditions.

37.  In the present case, the plaintiff’s average monthly income prior to the Accident was about $25,090. The Judge held, and the plaintiff accepted that she would be able to take on the work of a security guard or other sedentary jobs, fetching a monthly income of HK$15,000. The Judge calculated the pre‑trial loss of income before the 30% reduction as follows :

‘ 117 Therefore the pre-trial loss of earnings plus MPF from the Accident to the end of sick leave would be: 5 December 2015 to 30 November 2016, that is (11.9 months) x HK$25,090 x 1.05 = HK$313,500.

...

119 The pre-trial loss of earnings plus MPF from the end of sick leave to trial would therefore be: 1 December 2016 to 11 January 2024, that is (85.4 months) x (HK$25,090 – HK$15,000) x 1.05 = HK$904,770.’

38.  The Judge was plainly wrong to apply the 30% reduction to the first period of pre‑trial loss of earnings. Although there were overlapping sick leave for physical injury and sick leave for psychiatric problems, what Dr Wong, the orthopaedic specialist, said and what the Judge found was that the plaintiff was unable to return to work as a scaffolder after the Accident due to her orthopaedic injuries. The Judge then based on the view of Dr Ko, the other orthopaedic specialist, held that sick leave from 5 December 2015 to 30 November 2016 was reasonable and appropriate. As the plaintiff was, in any event, entitled to the whole of the sick leave due to her orthopaedic injuries, we find it illogical that somehow the damages recoverable for this period should be reduced because at some time during this period, the plaintiff suffered additional injuries in the form of psychiatric disorders which were caused both by her pre‑existing psychiatric conditions and the Accident as ruled by the Judge. I disagreed with Mr Ko’s submission that the 30% reduction represents a necessary adjustment made to account for the possibilities of ‘other vicissitudes of life’ which may occur in the future that would lead to the plaintiff’s psychiatric conditions even if the Accident had not occurred. This is not how the 30% reduction to the pre‑trial loss of earnings was arrived at by the Judge. In my view, the 30% reduction should not apply and the plaintiff is entitled in the first period of pre‑trial loss of earnings to the whole of the $313,500 as assessed by the Judge.

39.  In respect of the second period of pre‑trial loss of earnings, the same logic will also apply. Irrespective of the plaintiff’s post‑Accident psychiatric conditions, her inability to resume work as a scaffolder was, in the first place, due to her orthopaedic injuries. The onset of her psychiatric conditions has no additional impact to her ability to return to her work as a scaffolder. Hence, the 30% reduction should also not be applicable and the plaintiff is entitled to the whole of the second period of pre‑trial loss of earnings at $904,770.

(3.2)  Post‑trial loss of earning

40.  At the trial, the plaintiff was seeking a multiplier of 20.5 by reference to Table 10 of the Personal Injuries Table 2019 based on her age of 36 at the time of the trial and that she could continue to work as a scaffolder to the retirement age of 65. The defendant, on the other hand, submitted that a multiplier of 14 based on a scaffolder with a retirement age of 60.

41.  The Judge accepted a multiplier of 14 :

‘ 122. I take into account the following when deciding on the multiplier:

(1)  A scaffolder is a labour-intensive job which requires agility and strength, as it carries with it an inherent degree of danger associated with working at heights.

(2)  [The plaintiff] has had three children since the Accident, which may further reduce her ability to work as a scaffolder.

(3)  [The plaintiff’s] pre-disposition to the stressors affecting her psychological state would possibly also reduce the years that [the plaintiff] would be able to work as a scaffolder.’ (emphasis added]

42.  The Judge gave the following assessment :

‘ 124. The post-trial loss of earnings would thus be: (HK$25,090 – HK$15,000) x 12 months x 14 x 1.05 = HK$1,779,876’

43.  I have at [30] above referred to Chan Kam Hoi where Mortimer VP stated that in calculating damages for future loss of earnings a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence, particularly where the plaintiff’s working life is limited by a pre‑existing condition, although there were also authorities which supported a reduced percentage approach. The plaintiff there was 53 years of age at trial. Mortimer VP, at page 966 D‑H, adopted a multiplier of five instead of seven having regard to the nature of the plaintiff’s work and from the award deducted a further 45% for the pre‑existing condition :

‘ ...... For a man aged between 53 and 54 the appropriate multiplier on the same basis would be about seven. However, for a man in the plaintiff’s position, doing heavy work on construction sites, a reduction of the multiplier is appropriate to account for inherent risks apart from those associated with his back. In our judgment, the appropriate multiplier in the circumstances of this case is not less than five.

To rectify the Judge’s error in principle in his choice of multiplier and to make the assessment of damages for future loss of earnings consistent with his primary finding that the total damages ought to be reduced by 45% to allow for the pre-existing condition, we allow the appeal against the Judge’s award for future of loss of assess them as follows:

Continuing loss earnings:

$12,270 per month ($19,920 – 7,650) x 60 months

=$736,200 less 45% = $404,910’

44.  A lower multiplier was adopted in Chan Kam Hoi to account for the inherent risk of the plaintiff’s work i.e. performing heavy work on construction sites and the plaintiff’s back injury, but without taking into account the pre‑existing condition. The pre‑existing condition was then taken into account by applying the 45% reduction. The position in the present case is different because when the Judge chose a lower multiplier, she had already taken into account the pre‑existing condition :

‘ 122(3) [The plaintiff’s] pre-disposition to the stressors affecting her psychological state would possibly also reduce the years that [the plaintiff] would be able to work as a scaffolder.’ (emphasis added)

45.  The ‘pre-disposition to the stressors’ could only be a reference to the pre‑existing conditions. This meant that the pre‑existing conditions had already been factored in when a lower multiplier was adopted by the Judge. Accordingly, it was plainly wrong to reduce a further 30% from the award of loss of future earnings. Accordingly, the plaintiff is entitled to the sum of $1,779,876. The award for the pre‑trial and post‑trial loss of earnings before reduction should be re‑stated and the final award should be $2,408,646 as formulated by Mr Shum.

VII.  Ground 2

46.  When the writ was issued on 15 November 2018, the District Court had jurisdiction to hear and determine action in tort when the claim did not exceed $1 million. On 3 December 2018, the jurisdiction was increased to not exceeding $3 million.

47.  The present action was commenced in the High Court. The award by the Judge was $1,509,202. The 1^st and 2^nd defendants argued that it fell below the High Court jurisdiction and was within the District Court jurisdiction of HK$3 million and therefore the plaintiff was only entitled to costs based on the District Court scale.

48.  The Judge agreed with the defendants. She held :

‘ 7. Having considered the submissions from parties, I am of the view that the plaintiff ought to have applied for the case to be transferred to the District Court after the award has been made for the EC claim, or discovery, whichever is later:

(1) I agree that at the time the Writ was issued, it was reasonable and the plaintiff was entitled to commence the case in the High Court. However, after the increase of the District Court jurisdiction, discovery or the award of the EC claim (whichever is later), the plaintiff should have been updated in the advice on the merits of her claim and the quantum of damages sought in light of the new circumstances.

(2) As found by me, the available evidence does not support the plaintiff’s contention that her monthly salary was consistently at HK$50,000. The plaintiff ought also to have been aware of her pre-existing psychiatric condition (which was not disputed), which would lead to a possible reduction in the ultimate amount of damages awarded.

(3) Although I agree that a defendant would under normal circumstances also be expected to raise the issue of whether a case should be transferred to the District Court; in this particular case, where the plaintiff’s claim was over HK$17 million, it would have been unrealistic for a defendant to suggest that the case be transferred to the District Court, when the plaintiff has shown no indication that her claim would have been adjusted substantially downwards.

(4) I am not shown any authority in support of Mr Shum’s contention that the amount of interest ultimately awarded and the award for EC should be taken into account when assessing if a case should be within the District Court jurisdiction.

8. I am therefore of the view that the costs awarded should be on the High Court scale from the date when the Writ was issued, to the date when the award for EC was issued or when discovery has taken place and after documents had been produced (whichever is later). Thereafter, costs awarded should be on the District Court scale.

9. Costs of this clarification be to the 1^st and 2^nd defendants, to be taxed if not agreed, with certificate for one counsel. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.’

49.  The Judge was plainly wrong in her approach. The relevant time to consider whether the action was properly commenced in the High Court was on 15 November 2018 when the writ was issued. The relevant jurisdictional benchmark was $1 million and by the Judgment the plaintiff recovered more than $1 million. There was no issue that the case should not have been commenced in the High Court in the first place. The increase of the jurisdictional benchmark after the commencement of the action to $3 million was irrelevant because the plaintiff had the right to commence the action in the High Court on 15 November 2018 when the lower benchmark was in place. This was an accrued right. There is no provision that the increased benchmark of $3 million has any retrospective effect. This is a short point which answers all the argument raised in this case.

50.  In the Court below, the Judge agreed that at the time the writ was issued, it was reasonable and the plaintiff was entitled to commence the case in the High Court. However, after the increase of the District Court jurisdiction, discovery or the award of the employees’ compensation claim (whichever is later), the plaintiff should have been updated in the advice on the merits of her claim and quantum of damage in the light of the new circumstances and should have sought a transfer of the case to the District Court. The discussion would only become relevant when the award fell below the jurisdictional amount of $1 million that was in place at the time the action was commenced. The discussion has no application to a situation like the present case. The plaintiff in the Court below is entitled to High Court scale of costs.

VIII.  Conclusion

51.  Accordingly, I would allow the appeal with the following orders. The Judgment for the award of $1,509,202 and the Decision on Costs are to be set aside. There will be judgment for the plaintiff in the sum of $2,408,646 and the plaintiff is entitled to the costs below on the High Court scale of costs.

52.  There will be an order nisi that the plaintiff is entitled to the costs of the appeal. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

IX.  Delay in the employees’ compensation claim

53.  Some comments have to be made on the conduct of the related claim for employees’ compensation in the District Court which causes concern. The Accident occurred on 5 December 2015. The claim for employees’ compensation (‘the compensation’) was commenced in the District Court on 27 April 2016. The present common law claim was commenced in the High Court on 15 November 2018. It was only on 25 January 2021 that the plaintiff received her compensation in the District Court when leave was granted for her to accept the sanctioned payment made by the 1^st and 2^nd defendants on 23 December 2020. This means the plaintiff only received the compensation four years and nine months after she brought the claim and five years after the Accident. A delay of this length is unacceptable. The Employees’ Compensation Ordinance (Cap. 282) was enacted to provide a speedy and no fault remedy for workers injured during their employment if the condition of ‘personal injury by accident arising out of and in the course of employment’ is satisfied. However, this laudatory aim is clearly not met in the present case with this appalling delay. The parties have, at our request, provided a schedule of the procedural history of the employees’ compensation claim. We are alarmed by the tardiness of the prosecution by the parties of the case and the laxity of supervision by the District Court of its progress. Just to give some examples : the 1^st and 2^nd defendants only filed their Answer to the claim on 30 August 2017, a year and four months after the claim was filed on 27 April 2016 and their list of documents was only filed on 30 August 2017. On the same date of the filing of the claim, the plaintiff issued a summons for interim payment returnable on 24 June 2016. On the returned date (when two months had already lapsed), the hearing was adjourned and the 1^st and 2^nd defendants were given leave to file affirmations in opposition which were filed on 4 August 2016, i.e. more than three months after the summons was issued. The interim payment application, however, did not progress further. It was more than two years after the commencement of the claim that the Court on 24 July 2018 ordered the parties to exchange witness statements within 56 days. One would have thought that by that stage the time could well have been shortened to 14 or 21 days. The order for the parties to file orthopaedic and psychiatric reports was only given on 14 April 2019. The joint orthopaedic and psychiatric examinations were only conducted on 21 June 2019 and 10 July 2019 respectively, three years after the claim was lodged, and the reports were only produced on 24 September 2019 and 17 December 2019. Despite the availability of these reports, the sanctioned payment only came about a year later.

54.  Had the case been properly conducted and appropriately supervised and managed, the compensation could have been quantified well before the commencement of the common law claim below. The delay in quantifying and obtaining the compensation means that for about two years after the commencement of the present action, the plaintiff’s claim could not be properly quantified by taking the compensation into account which makes any proper assessment for settlement not possible. Those responsible for handling employees’ compensation cases, be they the lawyers, the Legal Aid Department and the District Court, are strongly urged to implement due case management safeguards to ensure that these cases are speedily dealt with.

Hon Au JA :

55.  I also agree that the plaintiff’s appeal should be allowed on both grounds of appeal and the order proposed by Cheung JA.

56.  I agree with the reasons set out in the judgment of Chu VP for both Ground 1 and Ground 2 and in the judgment of Cheung JA for Ground 1.