LO YUEN CHONG v. IWS ENVIRONMENTAL TECHNOLOGIES LTD (formerly known as FOOK WOO ENVIRONMENTAL TECHNOLOGIES)

HCPI 1070/2014

[2019] HKCFI 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1070 OF 2014

__________________

D E C I S I O N

__________________

1.  This is an application by the plaintiff made under the slip rule and/or the inherent jurisdiction of the court. She first sought to correct a said mathematical error in the assessment herein. If it were allowed, she further sought consequential adjustment of damages awarded to her, and then, variation of costs order having made by the court.

2.  On 28 October 2016, I handed down my assessment herein.  After exchange of some correspondence among the parties and the court, a corrigendum was issued on 9 December 2016.

3.  Upon application by the defendant, on 21 July 2017, I further handed down a decision wherein I declined to vary the interest awarded to the plaintiff on general damages.  However, I did agree to vary the costs order nisi because the plaintiff had failed to beat the sanction offer made by the defendant.

4.  The plaintiff appealed my decision and took up the matter to a Judge[1]. On 20 March 2018, the learned Judge adjourned the matter with costs reserved.   

5.  On 27 April 2018, the plaintiff issued the present summons.  In the supporting affirmation, it was said, inter alia, that the Judge adjourned the appeal hearing to see whether parties could come to terms, and if not, the plaintiff might apply under the slip rule before me.  Paragraph 26 of the assessment contained a mathematic error.  The correct figure of the average pre-trial monthly earning of the plaintiff should be $8,840 (i.e. $7,954 x 1.1114 = $8,840) instead of $8,780 (i.e. $7,900 x 1.1114 = $8,780).

6.  The defendant disagreed.  The Judge in fact took the view that the plaintiff’s appeal should have been made to the Court of Appeal. Counsel for the plaintiff then asked for a direction that an application be made to me under the slip rule.  The Judge replied that his assistance was not needed and the plaintiff was free to do so if she so wished.  There was no mathematic error because I had agreed with the suggestions from their counsel and clarified in the corrigendum that it was made in principle.  The plaintiff had never raised such mathematic error issue and should not be allowed a second bit after 1.5 years.  In any event, costs remained an exercise of discretion of the court and could not be amended under the slip rule.

7.  The plaintiff made no further reply affidavit.

8.  Parties appeared before me on 2 October 2018 for the argument.  After hearing from both counsel, I reserved my decision to be handed down.  Here it is.

9.  Upon consideration of all the evidence authorities and submissions from the parties, I have decided to dismiss the application.

10.  First, the slip rule aims at correcting clerical mistakes arising from accidental slip or omission, including arithmetical error in calculation of damages.  However, upon review of the assessment, it was indeed my intention to adopt the figure of $8,780 for the purpose of calculating the damages to be awarded to the plaintiff.

11.  Second, the argument of the plaintiff can also be dismissed if one looks at the relevant exchange of letters and correspondence with the court from the handing down of the assessment to the corrigendum. On 3 November 2016, the plaintiff’s solicitors informed the court certain clerical mistakes and sought clarification of sick leave and interest on special damages.

12.  Solicitors for the defendant replied on the following date that they would seek variation of costs order nisi and interest on both general and special damages.  All matters could be dealt with there and then.  On 23 November 2016, they further informed the court that parties had some disagreement as to computation of the plaintiff’s loss of past earnings and MPF.  Copies of parties’ exchange of letters were also exhibited. From these documents, it is clear that parties adopted the figure of “$8,780” and only disputed on the period to be applied.

13.  At the end, the corrigendum issued on 9 December 2016 includes that “4. Paragraph 26 should read as “… I accept in principle the calculation proposed by Ms Lau.”

14.  Third, at the hearing on 2 October 2018, Ms Lau took me again through parties’ case and counsel’s skeletons as to how the figure of $8,780 was arrived at.

“16. The Plaintiff was on sick leave between 15^th December 2012 and 21^st February 2014. Before her sick leave, her average monthly earning was about $7,954 – as her earnings varied from month to month.

17. There was no dispute between the parties at the assessment hearing that the Plaintiff started to work for the Defendant as a workshop clerk as from 31^st October 2011 onwards. Her basic salary, as per the employment agreement disclosed at page 256, was $7,560 with three months’ probation. The Plaintiff was entitled to receive overtime allowance should she work overtime but not double pay under the employment agreement.

18. There was also no dispute between the parties that Madam Wong Mei Mei and Madam Kwok Yuen Kwan were comparable workers. They were comparable workers because both of them were, like the Plaintiff, employed to work as a workshop clerk for the Defendant since 2012 and their salaries were also comparable to that of the Plaintiff prior to the Accident, namely, $7,560 as at January 2012 (as per their wage records disclosed at page 253 and 255).

19. In the Closing Submission of the Defendant, the Court’s attention was drawn to the following factual matters (which were not denied by the Plaintiff):

(1) The basic salary of both Madam Kwok and Madam Wong as at January 2012 was $7,560;

(2) Similar to that of the Plaintiff, their respective basic salary was later increased to $7,900 in June 2012;

(3) Their respective basic monthly salary was increased to $8,780 in 2013;

(4) Their respective basic monthly salary was increased to $9,050 in 2014.

{all the above figures were shown on the disclosed wage records at pages 252-255}

20. While the Plaintiff contended in her Revised Statement of Damages that she would have enjoyed a flat 10% increase per annum in her salary but for the Accident, the increase in the earnings enjoyed by Madam Kwok and Madam Wong during the sick leave period of the Plaintiff, ie between 2012 and 2013, was 11.14% only (being [($8,780 - $7,900) / $7,900 x 100%].

21. Hence, the rate of 11.14% was adopted by the Defendant as the notional increase in the notional earnings of the Plaintiff for her sick leave period between 15^th December 2012 and 21^st February 2014 (as per paragraph 91 of the Closing Submission of the Defendant at page 211).

22. The figure of $7,900 was used as it was the basic salary of both comparable workers which was also similar to that of the Plaintiff in 2012. This thus gives the figure of $8,780 (being $7,900 x 11.14%).

23. The Plaintiff, on the other hand, contended that her notional earnings would have been increased to $11,635.71 by the time of the assessment hearing in 2016 by comparing the salaries of both Madam Wong and Madam Kwok (see paragraph 14 of the Plaintiff’s Closing Submission at page 180). No detail was provided as to how the figure of $11,635.71 was calculated.”

15.  Ms Lau’s submissions refresh and coincide with my memory and I respectfully adopt them.

16.  The above suffices to dispose of the plaintiff’s summons and I do not believe that I need to go so far as suggested by Ms Lau that the real purpose of the application was another attempt made to get round the unfavorable outcome to of the assessment and consequential adverse costs order.  

17.  As I have decided against the plaintiff on her attempt to increase the damages awarded to her, it is not necessary to go further to consider a re-exercise of discretion over the question, upon the inherent jurisdiction of the court, as contained in my decision dated 21 July 2017 herein. 

18.  There appears to be no reason to depart from such general principle that costs follow the event.  Assistance from counsel is helpful to me.  I will therefore make an order nisi that the plaintiff do pay costs of the defendant in the application, including costs reserved and certificate for counsel for hearing on 2 October 2018, on High Court scale, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

HCPI 1070/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1070 OF 2014

_________________________

_________________________

__________________

D E C I S I O N

__________________

APPLICATION

1.  This is an application to vary interest awarded and costs order nisi.

BACKGROUND

2.  The plaintiff suffered a slip and fall injury during work when she was employed by the defendant.  The latter conceded liability in the present proceedings leaving quantum to be decided for the former by the court.  Parties appeared for 2 days before me in August 2016.  I handed down my decision on 28 October 2016.  I awarded about $359,319[1] to the plaintiff.  

		$
(a)	PSLA	300,000
(b)	Loss of past earnings and MPF	131,817
(c)	Loss of future earnings	Nil
(d)	Loss of earning capacity	52,680
(e)	Special damages	18,211
		502,708
	Less: Employee compensation received	143,389
		359,319
		======

3.  In my ruling, I also awarded the plaintiff usual interest.

(a)   For general damages, 2% per annum from date of writ to date of judgment.

(b)   For special damages, half judgment rate from date of accident[2] to date of judgment.

4.  On 10 November 2016, the defendant issued the present summons.  The defendant’s solicitor prepared the supporting affirmation.  In short, he sought to deduct the interests awarded by me to the plaintiff.  If it would be successful, the defendant failed to beat a sanctioned offer made by the plaintiff.  Hence, the costs order nisi made by me in favor of the defendant should also be reversed after the date the plaintiff should have accepted the sanctioned offer.

5.  The defendant divided the special damages[3] into 3 categories.

(a)   Advanced payments (sick leaves and medical expenses) in the total sums of $104,327 were made to the plaintiff in the employee compensation claim, no interest should be awarded to them.

(b)   As to the balance of $45,701[4] ($131,817 + $18,211 - $104,327), interest should only be awarded from date of the accident to 11 July 2014 because the plaintiff accepted the sanctioned offer of $39,062 in the employee compensation claim.

(c)   As to the remaining balance of $6,639[5] ($45,701 - $39,062), interest was to be calculated from 12 July 2014 to 17 December 2014.

6.  On the other hand, for general damages, interest should not run from date of writ (17 October 2014) but 29 December 2014 because the plaintiff failed to comply with PD 18.1 by commencing the present proceedings “pre-maturely”.

7.  If this court would accept all the defendant’s submissions on interest as above, the sum recovered by the plaintiff in my assessment was less than the sanctioned offer of the defendant made on 19 November 2014.

8.  The plaintiff opposed the application.

9.  The plaintiff’s solicitor prepared the affidavit in opposition.  Briefly, he argued that the plaintiff had not breached PD 18.1.  He further took the court through the correspondence and explained that the defendant’s solicitor did not make any constructive reply and there was nothing wrong for the plaintiff to commence the present proceedings on 17 October 2014.  In any event, he did not agree that the breach of PD (which was denied) should deprive the plaintiff of interest as alleged.  The plaintiff proposed that the court should even grant more interest to her by allowing interest to run from date of the letter before action on 28 August 2014.  Regarding the sanctioned offer made on 19 November 2014, the plaintiff was not in a position to consider if it was to be accepted at the material time because joint medical report and earning records of comparable employees of the Defendant had not been made available.

10.  As to special damages, the plaintiff did not seek to argue that no interest should be awarded to the advanced payments made under the employee compensation claim. However, she disagreed any deduction on the rest because they were largely 1/5 salary during sick leave, tonic food, travelling expenses and so forth.

11.  The defendant further suggested some other dates for the court to consider when interest regarding both general and special damages are to be calculated.

12.  Finally, as the defendant’s application was only premised on deduction of interests resulting in the plaintiff’s failure to bet the sanctioned offer by a small sum, the plaintiff further set out different scenarios for court’s consideration. 

13.  No affidavit in reply was filed by the defendant.

DISCUSSION

14.  Parties appeared before me on 16 June 2017 for the substantive argument.  I had the same counsel as in the assessment.  Ms. Lau acted for the defendant and Mr. Lam, for the plaintiff.  Upon hearing from them, I reserved my decision to be handed down.  Here it is.

JURISDICTION?

15.  Mr. Lam argued that my assessment on 28 October 2016 was “final and absolute”.  The interest awarded could be varied, other than by way of a formal appeal.  The defendant did not raise any argument on interest in the assessment.  They could not do so later.

16.  Upon thought, while agreeing that the issues on interest were not raised in the assessment and should have been made therein, I note that the no order or judgment has been sealed herein.  It is trite law that the court will retain jurisdiction to deal with the matters until the order or judgment will be sealed.  To apply such principle here, I take the view that I still have the necessary jurisdiction to deal with the question of interest in the assessment.

AMENDMENT OF SUMMONS?

17.  Mr. Lam also argued that the defendant was bound by the terms of interest sought in the summons, notwithstanding it sought something different in the supporting affirmation.  There was no formal application to amend the summons.  The court should not allow Ms. Lau to do so on counsel table.

18.  Again, while noting the good practice as suggested by Mr. Lam, as a matter of exercising discretion, I respectfully agree to entertain different formulas of calculation of interest by the defendant (as well as those from the plaintiff).  It is also trite law that this court looks at the substance rather than form.  There is no argument that interest is a matter within the sole discretion of the court, to be exercised judicially in the circumstances of each case.  Once the jurisdiction of this court has been triggered, I see no reason to find a right formula for calculation of interests, having considered all the factors referred to me by the parties.  Indeed, both parties have put before me a number of different calculations.  After all, I see no real prejudice done to the plaintiff by looking into the case to decide on the appropriate interest to be awarded to her.

19.  I now move to the substantive argument between the parties, interest on special damages and then, general damages.

INTEREST ON SPECIAL DAMAGES

20.  Both counsel kindly agreed that the cardinal principle in awarding interest on damages is: interest should be awarded to the plaintiff, not as compensation for damage done, but for being kept out of the money which ought to have been paid to her.

21.  With this in mind, there is no argument that, in the employee compensation claim, the plaintiff was paid the said advance payment and accepted the sanctioned payment therein.  Hence, I agree with the suggestion by Ms. Lau as per paragraph 5 (a) and (b) above as the plaintiff was not kept out of those monies.

22.  As to the balance of $6,639 in paragraph 5 (c), I will stick to the usual rule of awarding interest at half judgment rate from the date of accident to the date of judgment.

INTEREST ON GENERAL DAMAGES

23.  Two questions arise out of parties’ argument regarding interest on general damages.

(a)   Was the defendant’s reply to the plaintiff’s letter before action a constructive one under PD 18.1 so that the plaintiff should not have commenced the present proceedings within one month from such letter?

(b)   If the answer to (a) is “yes”, should the court reduce interest to be earned by the plaintiff in general damages?

24.  Both counsel took me through the relevant correspondence.  Upon thought, I take the view that the defendant has not been “constructive” enough for the purpose of our PD 18.1.

25.  Paragraph 19 of PD 18.1 reads:

“ The letter of claim should be sent no later than 4 months prior to the commencement of proceedings, and the proposed defendant(s) or insurer(s) concerned should reply constructively thereto within one month. A simple acknowledgement is not a constructive reply. If there is no such reply, the claimant will be entitled to commence proceedings forthwith without risk as to costs arising out of non-compliance of this paragraph. If such reply is received within one month, the parties should over the next 3 months communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and quantum (including, without limitation, the information and documents identified in Schedules A and B of the specimen letter which have not already been served) as are reasonably required for attempting to settle the claim in whole or in part, instructing medical expert(s) and / or arranging expert medical examination (see paragraph 22 hereof).”

26.  Mr. Lam drew my attention to the ruling of Master Yu (the PI Master) in Wong Shui Lam v. Hospital Authority dated 31 December 2009 to understand more about the aforesaid PD.  The following extracts shed some lights in the present case.

“24. Ms Kang for the Defendant tries to argue that the 6 November letter is a constructive response. I cannot agree. It is only a letter of acknowledgment and commitment to investigate the incident on the Defendant side. But they have not followed up the investigation as requested by the practice direction and has never responded if they admit liability, or if they dispute liability, state their ground of defence.

25. And under the new Practice Direction, it is provided –

20. If the proposed defendant(s) fail to give a constructive reply or reasonably investigates into the merits of the claim and give a positive reaction, then they will not receive sympathy from the Court after the commencement of proceedings, and the Court may not allow time for them to make up for their omission.

26. This must be read with the new Order 1A of the Rules of the High Court, in particular rule 1(b) and (e). The underlying objectives of the Rules of the High Court are to ensure that a case is dealt with as expeditiously as reasonably practicable and to facilitate the settlement of disputes. And Order 62 rule 5 provides that the Court in exercising its discretion on costs shall take into account the underlying objective as set out in Order 1A rule 1. Failure to comply with the new Practice Direction may result in stringent cost sanction.

27. In my limited experience in handling Checklist Review, it is not uncommon to find Insurers giving no respond to pre‑action letters. I have been told repeatedly by solicitors that they have no instruction or they have not been instructed at that stage. Insurers may wish to defer the expenses of any legal costs to the latest stage. But in light of the new Rules, such delay are in breach of the spirit of the Civil Justice Reform, and for cases in Personal Injuries List, in breach of PD 18.1. Solicitors are obliged to advise their client including insurers to comply with the new PD to save any cost sanction. If the Insurers are minded to save costs, an alternative is to engage in mediation. No action taken, as in this case, is clearly in breach of the spirit of the Civil Justice Reform and call for costs sanction.

28. As for the Plaintiff, I also have reservation on the way of pressing on the request for admission of liability. In the situation where admission of liability is not forthcoming, under the Practice Direction, we expect parties to engage in some discussion to narrow down their issue. Letters after letters requesting the other side for admission of liability is not something constructive or moving toward the direction of a settlement or saving costs.

29. I also note a special feature of this case, namely that the Plaintiff is in fact the employee of the Defendant.  It cannot be disputed that the Defendant had been subject to investigation and prosecution from the Labour Department.  Accordingly, there must be some materials for the Defendant to investigate into with or without the assistance from the Plaintiff.  For a constructive response in such a circumstances, we expect the Defendant to come back with either admission of liability or their grounds of defence.  I have to say that a lot of the effort of Mr. Millar is not necessary.  But the non‑responding attitude from Messrs. Deacons is inexcusable.”

27.  With the above in mind, I note the following facts in the present case.

(a)   On 28 August 2014, the plaintiff’s solicitors issued the letter before action.  After setting out circumstances of the accident, he went on to say that:

“…

At this stage of our enquiries we would expect the following document to be relevant to our client’s claim and request that you provide copy to us within one month:-

1. Full particulars of your insurer;

2. Any investigation report(s) in relation to the captioned accident;

3. Any statements or records concerning the captioned accident, in particular, the statements made by you and any eye‑witnesses; and

4. Any photographs of the accident scene;

Pursuant to the Practice Direction 18.1 (paragraphs 14 and 25 to 29) and Practice Direction 31 (Mediation), we would advise our client to enter into negotiations for settlement at this stage by all suitable means whether by way of without prejudice negotiations and/or other mode(s) of ADR. Please let us have your responses to the following questions regarding mediation:

(1)Are you willing to attempt mediation with a view to settling these proceedings?

(2)If you are not willing to attempt mediation, please state the reason or, if thought desirable, such reasons or additional reasons should be set out in a statement signed by you or your solicitor.

We invite you or your insurer to jointly engage a medical expert to conduct medical examination and prepare expert medical report on our client. Alternatively, you may nominate your own expert to conduct joint medical examination with our expert. Kindly revert within one month.

A copy of this letter is attached for you to send to your insurers. Finally, we expect a constructive reply to this letter within one month by yourselves or your insurers, failing which we shall forthwith commence proceedings.

…”

(b) Eight days later, on 5 September 2014, the defendant’s solicitors replied.  They asked for documents.

“…

A copy of your letter dated 28^th August 2014 addressed to our client has been passed to us with instructions to respond thereto. We, however, are instructed that only the 4‑page pre‑action letter has been received by our client. Please therefore send to us the documents referred to in p.2 & 3 of the said letter, the Schedule A attached thereto as well as the documents referred to in the said Schedule A.

…”

(c)   The plaintiff’s solicitors answered six days later on 12 September 2014.  They asked for copying charges and pressed ahead the expert matters.

“…

Kindly let us have a cheque in the sum of 100.00 ($1 x 100 pages) being our photocopying charges,

We once again suggest to you that a joint expert be engaged to medically examine our client or alternatively, you may nominate an expert to conduct joint examination with our expert on our client for the purpose of assessing our client’s injury. Please let us know your decision within 7 days from date hereof failing which we shall take out the appropriate application without further notice. Kindly also let us know whether your client would admit liability within 7 days.

…”

(d)   (i)   On 15 September 2014, the defendant’s solicitors replied. They disagreed to pay the copying charges and said that, without the documents, they could not reply to the joint examination.

“…

Our instructions are that you have not sent to our client the requested documents, hence our request on 5^th September 2014. In the circumstances, we do not deem it appropriate to pay for the photocopying charges incurred by you for sending to us the missing documents.

Without the opportunity to consider the documents to be delivered to us, we are not in the position of responding to your proposal to conduct a joint examination on your client. Should you deem it appropriate to make an application (to the Court presumably), please proceed to do so.

As regards the issue of liability, we shall revert to you in due course.”

(ii)  Four days later, the defendant’s solicitors further wrote:

“…

Please be informed our client nominates Dr. Lam Kwong Chin as its expert to conduct a joint examination on your client with the expert she instructs.  Kindly ask the 2 experts to liaise direct for an appointment convenient to all and advise us the time and venue of the examination thereafter.”

(e)   The plaintiff commenced the present proceedings on 17 October 2017 and service was done on 20 October 2017.

(f)   On 24 October 2014, the defendant’s solicitors complained.

“…

Your pre‑action letter was sent to our client on 28^th August 2014. Subsequently, upon our request, you provided us with copies of the documents which had not been enclosed with the said pre‑action letter. On 19^th September 2014 we nominated Dr. Lam Kwong Chin to conduct a joint examination on your client.

To our surprise and in breach of P.D. 18.1, on 17^th October 2014 you issued a Writ in the High Court on your client’s behalf. Please let us have your justification for deviating from paragraph 19 of P.D. 18.1. In case such is not forthcoming or we do not find your explanation acceptable, our client will bring to the attention of the court of your said breach and invite the Court to disallow the whole or part of your client’s costs in preparing the Writ of Summons, Statement of Claim, Statement of Damages, etc. For that purpose, copies of this and other relevant letters will be produced.

…”

(g)   By letter of 6 November 2014, the plaintiff’s solicitors replied and disagreed.

“…

Neither the Defendant nor the insurer replied constructively within one month to our Letter before Action dated 28^th August 2014. Your 5^th & 15^th September 2014 letters addressed to us were only a simple acknowledgement of your Letter before Action.

Further, most (if not all) of the documents sent to you under our 12 September 2014 covering letter had already been disclosed under the connected DCEC1195/2014 in which your esteem firm was representing the same Defendant and insurer and such DCEC case was settled between parties on 11 July 2014. You should be familiar with the subject accident and the outstanding of the said documents should not prevent you / your clients to reply to us constructively by 28^th September 2014, i.e., one month upon receipt of our Letter before Action.

In any event, the said 2 letters from you were NOT a constructive reply as prescribed in Paragraph 19 of the Practice Direction 18.1. Therefore, the Plaintiff is entitled to commence the present proceedings forthwith.

As to the joint exam, we have engaged Dr. Lau Chi Yuen Mike to conduct a joint exam, on the Plaintiff with your Dr. Lam Kwong Chin. We are given to understand that both doctors are still liaising with each other on the date and time of the intended joint exam. We shall keep you informed once the date of the joint exam has been mutually arranged by doctors.

We reserve our rights to produce copies of all the relevant correspondence exchanged between parties to the Court on question of costs if such an issue arises.

…”

28.  With respect, the defendant fails me because:

(a)   The plaintiff was the employee of the defendant. Their DCEC case had been settled in July 2014 before the issuance of the said letter before action in August 2014.  The defendant should be familiar with the accident and the injury. I have not heard any explanation as to how the request of documents would help the defendant to make a constructive reply.

(b)   Ms. Lau also argued that the defendant did respond promptly on the request for joint medical examination (once they received all the documents from the plaintiff).  However, in my view, it is still neither admission nor grounds of defence, albeit more positive to the progress of the case.

29.  Further or in the alternative, even assuming that I was not correct in the first question, the failure on the part of the plaintiff in complying with PD18.1 does not in any event justify a reduction of interest to be earned by her in general damages awarded by the court.  It is simply not the consequence stated in the said PD. Ms. Lau has been able to show any authorities to support her proposition.  Upon being questioned, she referred to me to O.22 r.23 RHC.  I do not think that the provision will help the defendant as we are not discussing the matter in the context of sanctioned payment. I am afraid that the defendant only insisted for such redress for the purpose of reducing the interest to be awarded to the plaintiff, and hence, she would not be able to beat the sanctioned offer.  It is not right to do so.

30.  Having said the above, I decline to vary the interest having awarded to the plaintiff regarding the general damages in the assessment. There is no need for me to consider other alternative dates as proposed by Mr. Lam on the said deliberate withholding of comparable workers’ earning record and joint orthopaedic expert report made available on 12 June 2015 only. In any event, I do not consider that the complaints by the plaintiff are justified.

RESULT OF VARIATION OF INTEREST APPLICATION

31.  To conclude, after the variation, I will award the following interest to the plaintiff.

(1) Regarding general damages, 2% per annum from date of writ to date of judgment.

(2)  Regarding special damages,

(a)   For the sum of $104,327, no interest is awarded.

(b)  For the sum of $45,701, half judgment rate per    annum from date of accident to 11 July 2014.

(c)  For the sum of $6,639, half interest rate per annum from date of accident to date of judgment.

HAS THE PLAINTIFF DONE BETTER THAN THE SANCTIONED OFFER?

32.  With the above, one might think that the plaintiff has beaten the sanctioned offer by a comfortable margin, as submitted by Mr. Lam because the interest to be earned by the plaintiff on general damages has exceeded the sum of $10,000. However, it is so when the interest will run until the date of judgment.

33.  For the purpose of answering the question if the plaintiff has done better than the sanctioned offer, one looks at the date on which it could have been accepted with leave, i.e. 17 December 2014. By reference to this particular date (not the date of Judgment), the interest that the plaintiff could earn would only be the sum of $4,406.

(a)  $1,000 ($300,000 x 2% p.a. x 17.10.2014 to 17.12.2014)

(b)  (i) $2,875 ($45,701 x 4% x 15.12.2012 to 11.7.2014)

(ii)  $531 ($6,639 x 4% x 15.12.2012 to 17.12.2014)  

34.  As such, the plaintiff fails to beat the sanctioned offer by $475 ($364,200 - $4,406 - $359,319).

VARIATION OF COSTS ORDER NISI?

35.  By such failure, it triggers the court’s jurisdiction and discretion to see if the costs order nisi should or should not be varied, if so, to what extent?

36.  There is no argument that costs remain a matter within the sole discretion of the court to be exercised judicially in the circumstances of the case.

37.  Order 62 rule 5 (1) RHC states that the court, in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account, among others, the underlying objectives of Order 1A, rule 1 and conduct of parties[6]. For the purpose of considering conduct of parties, sub-rule (2) further states that it includes whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

38.  In the present case, from my assessment, I found that the joint medical report did not support the claim by the plaintiff of her loss of earnings. The plaintiff resigned from the defendant on her own and there was no future loss of earnings awarded.

39.  Order 22 rule 23 Rules of the High Court also contains the relevant provisions governing the present situation. To state it briefly for our purpose:

(1)If the plaintiff fails to do better than the sanctioned payment, the court may:

(a)   disallow all or part of interest, and/or

(b)   order him to bear costs (on indemnity basis) of the defendant (with penalty interest at a rate not exceeding 10% above the judgment rate),

after the date he could have accepted the sanctioned offer without leave.   

(2)The court shall make the above orders unless it considers it unjust to do so. 

(3)In considering whether it is unjust to make the orders, the court shall take into account all the circumstances of the case including:

(a)   terms of the sanction payment,

(b)   stage in the proceedings at which any sanctioned payment was made,

(c)   information available to the parties at the time when the sanctioned payment was made, and

(d)   conduct of parties with regard to the giving and refusing to give information for the purposes of enabling the payment to be made or evaluated.

40.  In the present case, I note the followings.

(a)  The sanctioned payment is a sum of money at $362,400 (inclusive of interest).

(b)The sanctioned payment was made at early stage of the proceedings. To be precise, it was one month and 3 days after commencement of the proceedings.

(c)  By the time that sanctioned payment was made, the relating DCEC claim had been settled by the same parties after the plaintiff’s acceptance of $39,062 on 11 July 2014.

(i)   The joint orthopaedic expert report was not available and completed until 10 July 2015.

(ii)   On 8 August 2016, the plaintiff’s solicitors requested for comparable workers’ earnings record and the defendant’s solicitors answered it on 16 August 2016.  

(d)  Parties’ conduct with regard to the giving and refusing to give information for the purposes of enabling the payment to be made or evaluated is either irrelevant or neutral.

(e)   The plaintiff only failed by a sum of $475 out of an award of $502,708, i.e. about 0.1%.

(f)   Ms. Lau asked for variation by way of split of costs order^[7] but not redress on interest under the rules

41.   With the above, I take the view that the appropriate costs order (i.e. it is unjust to the plaintiff if she will be disallowed any interest and/or ordered to pay penalty interest on costs payable to the defendant, bearing in mind in particular the factor of paragraph 40 (e) above) in the present assessment ought to be:

(a)  The plaintiff is entitled to costs of the assessment, on District Court scale, including costs reserved, up to and including 17 December 2014, on party and party basis, to be taxed, if not agreed.

(b)The defendant is entitled to costs of the assessment, on High Court scale, including costs reserved and certificate of counsel for hearings on 29 and 30 August 2016, from 18 December 2014 to 28 October 2016, on indemnity basis, to be taxed if not agreed.

(c)  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

I so vary the costs order nisi accordingly.  

COSTS OF THE APPLICATION  

42.   Costs usually follow event.  There is no reason to depart from such general principle.  I therefore further make an order nisi that the plaintiff do pay costs of the defendant in the application, on High Court scale, including costs reserved and certificate for counsel for hearing before me on16 June 2017, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

HCPI 1070/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1070 OF 2014

_________________________

_________________________

__________________________

ASSESSMENT OF DAMAGES

__________________________

INTRODUCTION

1.  This is an assessment of damages.

BACKGROUND

2.  The plaintiff was born in Hong Kong on 14 February 1981.  She was brought up and educated locally up to secondary level.  She had the working experience of a waitress and an office clerk for a total of about 10 years.  In 2011, she joined the defendant as a workshop clerk. 

3.  On 15 December 2012, at around 8:00 p.m. on her way to a washroom, she slipped and fell with her buttocks onto the ground.  She suffered injuries, mainly on her left wrist. She was and is right hand dominant.

MEDICAL EVIDENCE

4.  The plaintiff was taken to the A & E Department of Tseung Kwan O Hospital. The report[1] says that:

“...

Investigation results:

Xray of the left wrist showed fracture of the left distal radius, with dislocation of the distal ulnar radial joint.

The provisional diagnosis:

Fracture left distal radius

...”

5.  At the request of the plaintiff, she was further treated at Yan Chai Hospital. Its A & E Department says[2]:

“3. On examination the following condition were found:

Other physical findings in detail

• Her left wrist was deformed with tenderness and swelling

• The distal circulation of her left forearm was normal

Investigation

• X-ray of left wrist showed communited fracture of distal elbow[3] with suspected distal radio-ulnar joint dislocation

       ...”

6.  There are 3 further reports prepared by Yan Chai Hospital for the plaintiff.

(a) Medical Report[4] from Department of Orthopaedics & Traumatology

“...Close reduction and dynacast application was performed and the post‑reduction alignment was satisfactory. She was discharged on 17 Dec 2012.

At her first follow‑up on 31 Dec 2012 a repeated X‑ray showed displacement of fracture site in cast. Open reduction and internal fixation was offered and patient agreed for operation. Open reduction and internal fixation was performed on 10 January 2013 and she ran an uneventful post‑operative course. She was discharged on 11 Jan 2013.

She was admitted again on 19 Jan 2013 as she noticed left wrist pain and blister formation. No neurological deficit was noted. Repeated X‑ray showed similar alignment of fracture site. She was discharged on 20 Jan 2013.

...”

(b) Physiotherapy Report[5]

“...

[The plaintiff’s] first appointment was 08.02.2013...

After 24 sessions of physiotherapy treatment, there was some improvement of [the plaintiff’s] condition by 80% decrease of her left wrist pain. There was no swelling on her left wrist. The left wrist extension and flexion mobility, supination and pronation mobility were all increased to full range of movement. She can hold a full fist on her left hand and the left side hand grip power was increased to 15kg.

She was discharged for home exercise after the treatment session on 19.08.2013...”

(c) Occupational Therapy Report[6]

“ COMMENT

[The plaintiff] was referred to us for left hand functional training and 1^st session was given on 15/2/13. Mobilization, edema control, scar management and later strengthening programs were provided. Assessment on 26/11/13 indicated the grip strength of right/left hand = 34/25 kgf and tripod pinch strength of right/left hand = 7.5/6 kgf respectively.

She was discharged from us on 11/12/13.

...”

7.  The plaintiff was given about 14 months’ sick leave, from 15 December 2012 to 21 February 2014.

8.  After the sick leave, she did not resume her job with the defendant.  On 14 February 2014, she gave 7 days’ notice to the defendant to resign.

“...

辭呈

本人因私人理由現決定辭去工埸文員之職務，最後工作日期為2014年2月21日。本人於2012年12月15日不幸因工受傷，病假至2014年2月21日止。在此，感謝公司給予本人學習的機會，並取得寶貴的工作經驗。希望本人的離職不會為你帶來很大的不便。

本人希望在離職之前，能夠取得離職通知書...”

9.  A few months later, the plaintiff was assessed on 8 May 2014 by the Employment Compensation Board.  Her injury was described as “LEFT WRIST INJURY RESULTING IN LEFT WRIST RESIDUAL PAIN[7]”. Her loss of earning capacity permanently caused by the injury was assessed at 0.5%.

INTERLOCUTORY JUDGMENT

10.  On 17 October 2014, the plaintiff commenced the present proceedings. The defendant conceded liability. By consent order dated 12 January 2015, among others, interlocutory judgment on liability was entered for the plaintiff, leaving damages to be assessed.

ASSESSMENT

11.  Parties appeared before me for 2 days in August 2016.  Both parties were represented by Counsel, Mr Osmond Lam for the plaintiff and Ms. Julia Lau, for the defendant.

DIFFERENCE BETWEEN PARTIES

12.  The difference of position between the parties may be seen from the calculation of damages put by them.

		plaintiff[8]	defendant[9]
(a)	PSLA	575,357[10]	200,000
(b)	Pre-trial loss of earnings + MPF	213,317	129,066
(c)	Future loss of earnings	629,829	Nil
(d)	Loss of earning capacity	120,000	Nil
(e)	Special damages	18,211	13,901
		1,556,714	342,967
	Less: ECC payment	143,389	143,389
		1,413,325	199,577
		+ interest	+ interest

13.  I will in turn deal with their differences item by item as per the table.

PSLA

14.  The extent of injury suffered by the plaintiff is found in the above medical reports.  It can further be seen in the joint medical expert reports prepared by parties.  Dr. Chan (for the plaintiff) and Dr. Lam (for the defendant) agreed on a number of matters of which Mr. Lam kindly summarized them in paragraph 11 of his Opening Submission.

“i. The Plaintiff suffered from a left wrist injury with a fracture in the left distal radius which was compatible with the described mode/mechanism of the Accident;

ii. The Plaintiff was suffering from a mild dorm of carpal tunnel syndrome;

iii. The Plaintiff’s median nerve was not damaged and was promptly released. Hence, prognosis was generally good;

iv. Despite the Plaintiff’s current complaints about the residual on and off pain in her left wrist, there is no objective sign of median nerve palsy nor any detectable sensory loss or muscle wasting;

v. X‑ray results showed that the fracture has healed in a good alignment;

vi. Even though left hand grip is weaker than the right side, it is rather satisfactory for a non‑dominant limb in a female;

vii. There is no feature of Complex Regional Pain Syndrome;

viii. No further treatment or surgery is necessary as the Plaintiff could be regarded as having maximal medical improvement from the Accident;

ix. Duration of sick leave was acceptable;

x. However, even though the Plaintiff enjoys satisfactory wrist movement, its flexibility is hindered due to a slight lag in radial and ulnar deviation;”  

15.  Mr. Lam further drew my attention to three features in the case of the plaintiff.

(a) The fracture is not an ordinary one but “comminuted”.

(b) Carpal tunnel syndrome was developed during recovery process and as such, a second operation was performed.

(c) 2 scars (35 mm and 20 mm respectively) are left causing much discomfort.

16.  On the other hand, Ms. Lau asked me:

(a) To doubt the so called “comminuted” fracture as it was only mentioned in the report of the A & E Department of Yan Chai Hospital, but not elsewhere in other reports.

(b) To bear in mind that the carpal tunnel syndrome was only a mild one.  The median nerve was not damaged.  The condition of the plaintiff was promptly taken care of and her prognosis, good.

(c) Not to accept the authorities submitted by Mr. Lam as they were far more serious and not comparable. 

17.  To these 3 arguments, I take the following views.

(a) On balance, I accept that the plaintiff suffered “comminuted” fracture.  It was stated in one of the “ground” medical reports of the plaintiff.  Both experts accepted it without mentioning that it was a “typo”, as they did so by pointing the word “elbow’ in the same sentence.  The observation of Ms. Lam might bear some force but she had no supporting evidence at all.

(b) On the carpal tunnel syndrome, both counsel are in fact making the same point, but from different perspectives only.

(c) The scars left on the left wrist of the plaintiff cannot be disputed.  As to the relevant authorities cited by both counsel on PSLA, I do not propose to go through them as each case really depends on its own facts.  It suffices for me to conclude that the case of Chan Nga Yin formerly known as Chan Mei Yi, Sicely v. MTR Corporation Limited, DCPI 1675 of 2012, H.H. Judge Tam, 25 June 2014, is a better comparable among all. Ms. Lau kindly summed up the case in paragraph 44 of her Closing Submission.

“The plaintiff was a lawful visitor to a shopping mall operated by the defendant. While she was walking along a public corridor towards the supermarket, she was a cleaning lady mopping the floor and she took a little detour to the right as a precaution but otherwise continued to proceed. However, as she walked, she slipped and fell backward onto the floor with her left palm pressing against the floor instinctively as she tried to lessen the harm that might befall her. As a result, the suffered fracture of her left distal radius and she was admitted to the Yan Chai Hospital for treatment. She underwent open reduction and internal fixation and after that she attended follow-up regularly with physiotherapy given. She suffered mild limitation of range of movement of her left wrist and both experts considered she should be able to return to work in her pre‑accident job with mild decrease in efficiency. The Court awarded her a sum of $200,000 as general damages.”

18.  Further, I also remind the clarification sought by me from the plaintiff at the examination over her loss of amenities, in particular her hobbies of fishing and embroidery.  In my observation, there was either some exaggeration on her part or that she had not carefully thought of alternative options open to the activities.

19.  With all these, I find a sum of $300,000 appropriate under this head of damages, bearing in mind the factor of inflation mentioned by Mr. Lam.

PRE‑TRIAL LOSS OF EARNINGS

20.  Regarding loss of pre‑trial earnings, parties agreed that the average month earning of the plaintiff is $7,954 and 14 months’ of sick leave, reasonable.  However, both counsel came up with different calculations.

Mr. Lam:  $11,635.71 x 17.46 months x1.05 = $213,317[11]

Ms. Lau:  $8,780 x 14 months x1.05 = $129,066[12]

21.  Upon thought, I agree with the suggestions from Ms. Lau.

22.  To start with, the joint medical report does not support the case of the plaintiff.

“60. We agree that with the present recovery, [the plaintiff] should be able to continue with her pre-injury job as a workshop clerk.

61. Dr. Chan: she can do so on the condition that she is not required to lift heavy object.

62. Dr. Lam:

She might have some reduction in her working efficiency and endurance due to the residual wrist symptoms, but the adverse influence is mild and would gradually subside with time...

64. We agree that besides this, she could have most types of sedentary or manual jobs suitable for an average female of her age, education background and physical build, including jobs such as waitress and office clerk.

65. We agree that the subject injury would have mild adverse effect on her activities of daily living.

...”

23.  Second, on balance, I find that the defendant resigned from the defendant on her own.  It was not related to her ability to resume her pre–injury job.

(a) The defendant filed its list of documents on 2 April 2015.  Item number one on the list is: “Letter of resignation submitted by the Plaintiff to the Defendant dated 14/2/2014”.  As seen from the extract of such resignation letter as per paragraph 8 above, the plaintiff resigned voluntarily.  About 2 months later, she prepared and signed her witness statement on 27 May 2015.  Nothing was stated in her statement to explain or dispute such resignation letter.

(b) I was only until her examination before this court, the plaintiff offered explanations.  However, they are far from satisfactory. 

(c) She explained that, among others, she had to carry some boxes of A4 papers with 2 hands at the same time.  After the injury, she would not be able to do it.  The resignation letter was not prepared by her.  She knew that the defendant was sending her to remote places to work thereby reducing her salary significantly after the necessary travel expenses.  Alongside with the residual pain, she therefore signed the letter.

(d) As pointed out by Ms. Lam, the defendant had every intention to continue to employ the plaintiff (even accepting the change of working places proposed by the defendant), it is therefore only the plaintiff’s own decision (for the reason best known to her) to resign, any loss of earnings after the sick leave is a result of her own decision.

24.  Third, having found the above, it is not necessary for me to resolve the argument as to why the plaintiff resigned from her new job as a cashier in a snack shop from May to July 2014, during which she earned a total of $20,000.  If I had to do so, on balance, I would find it unrelated to her injury.

(a) In her witness statement dated 27 May 2014, she said that the job required lifting of heavy items.  Due to the pain in her left wrist, she could not carry weight for long time and as such, she quitted.

(b) However, as per the joint medical report dated 2 June 2015, the experts recorded that the plaintiff told them (on the date of interview of 31 March 2015) the resignation was due to “close of business”.

(c) During examination, the plaintiff disagreed that she had told the experts as recorded.  They only gave a simplified version.  In fact, the business of the snack shop was not good and she did not wish the other co‑worker to be dismissed (as the plaintiff could not carry heavy items on her own), she decided to resign.

25.  Mr. Lam asked me to accept the explanation from the plaintiff, having taken into account of her feelings on the injury, her attempts to practice physiotherapy and her demeanour in giving testimony before the court.  However, the joint report was there for a long time and no step had been taken to seek correction, if any, from the experts. “Close of business” is simple and straight-forward and I cannot see how it could fit in the explanation sought to offer by the plaintiff.  As suggested by Ms. Lau, if the plaintiff would agree that she quitted because of the closure of the snack shop, she would, in effect, admit that she could work there, lifting weight in the course of work and earning a sum exceeding her pre‑accident job.

26.  With the above findings, together with the concession from the defendant that the plaintiff would have been enjoyed similar increase in her salary (but for the resignation) as her colleagues, I agree to adopt a notional increment of 11.14% which is to be applied to the said average month earning of the plaintiff at $7,954, arriving at $8,780.  In the end, I accept the calculation proposed by Ms. Lau.

FUTURE LOSS OF EARNINGS

27.  As I have found that the plaintiff resigned from the defendant on her own, there is no future loss of earnings which the defendant should be held responsible.

LOSS OF EARNING CAPACITY

28.  In my view, the impact of the injury upon the plaintiff is not significant and a sum of $52,680, i.e. 6 months’ wages in the aforesaid sum of $8,780 is appropriate to compensate her for any disadvantage in labour market or higher chance of losing job in future.

SPECIAL DAMAGES

29.  The sums claimed under special damages by the plaintiff are relatively nominal.  Mr. Lau conceded some and Ms. Lam agreed some, leaving only certain costs of bone setter and tonic food in the total sums of $4,310 argument.  On balance, I find them within the range of reasonableness to be spent by the plaintiff as a result of her injury.

SUMMARY

30.  To conclude, the defendant shall pay the followings to the plaintiff.

(a)	PSLA	$
(b)	Loss of past earnings and MPF	300,000
(c)	Loss of future earnings	129,066
(d)	Loss of earning capacity	Nil
(e)	Special damages	52,680
		18,211
		499,957
	Less: Employee compensation received	143,389
		356,568
		=========

INTEREST

31.  As to general damages, the Plaintiff is further entitled to interest at 2% per annum from the date of writ to the date hereof.  Regarding special damages, interest will be calculated at half judgment rate from the date of judgment until the date of judgment herein.

COSTS

32.  Finally, there will be a costs order nisi that the Defendant is entitled to costs of the assessment, on District Court scale, including costs reserved and certificate of counsel for the hearings before me, on party and party scale, to be taxed, if not agreed.