PANGMA DAMBAR DHOJ v. DRAGAGES HONG KONG LTD AND ANOTHER

CACV 112/2017

[2018] HKCA 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2017

(ON APPEAL FROM HCPI NO 76 OF 2014)

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Judgment of the Court) :

1.  This is an appeal by the plaintiff against the judgment of Deputy High Court Judge Saunders (“the Judge”) dated 15 May 2015, dismissing his claim for damages for personal injuries.  At the hearing on 2 May 2018, the plaintiff, acting in person, did not appear.  Having heard the defendants’ counsel, Mr Simon Wong, we dismissed the appeal with costs.  We indicated that we would hand down the reasons for judgment later, which we now do.

JUDGMENT BELOW

2.  The plaintiff was an employee of the 1^st defendant.  The 1^st defendant was a subcontractor of the 2^nd defendant, who was the principal contractor for the works at a construction site in Cheung Sha Wan.

3.  On 12 December 2011, the plaintiff, in the course of his duties, was instructed to assist in manually opening and closing a heavy metal gate at the main entrance of the site to allow lorries to enter and leave the site.  While he was pushing the metal gate to close it, the plaintiff’s right ankle sustained injury.

4.  On liability, the Judge found the defendants liable for negligence in respect of the injury caused to the plaintiff.  However, he also found that the plaintiff was 25% liable in contributory negligence.

5.  On quantum, the Judge, after considering the conflicting medical evidence adduced by the parties, accepted and preferred the evidence of Dr Henry Ho Ching Lun, the defendants’ orthopaedic expert and rejected that of Dr Wong Chin Hong, the plaintiff’s orthopaedic expert.  He then concluded that the accident that the plaintiff suffered on 12 December 2011 was not the cause of the conditions of right heel pain that he experienced at the time of the trial.  On the contrary, the Judge found that the evidence established on a balance of probabilities that his then conditions and pain were unrelated to any injury he suffered in the accident.  On that basis, the Judge dismissed the plaintiff’s claims in their entirety.

THE JUDGE ERRED

6.  In the notice of appeal, the plaintiff basically sought to challenge the various findings made by the Judge on liability, but the plaintiff was unable to show that the Judge’s findings were plainly wrong for the Court of Appeal to interfere.

7.  However, with respect, the Judge erred in the way he disposed of the case on quantum.  As was fairly conceded by Mr Wong for the defendants, although the plaintiff’s subsequent right heel pain and his conditions at trial were unrelated to the accident, the plaintiff did suffer from the accident an injury to his right ankle, entitling him to damages accordingly.  The Judge should have assessed the damages attributable to that injury but failed to do so.

ASSESSMENT OF DAMAGES

8.  In this regard, Mr Wong had very helpfully pointed out that based on the undisputed medical evidence :

(1)   The accident did not result in any fracture, wound or even bruise on the plaintiff’s right ankle.

(2)   By the end of December 2011 (about 2 weeks after the accident), the plaintiff’s condition had become satisfactory (mild tenderness only with normal gait and normal range of movement).

(3)   By the end of March 2012 (about 3.5 months after accident), the plaintiff’s condition must have improved (almost no tenderness, satisfactory ankle movement, pain free).  Even the plaintiff’s treating doctor, Dr Patrick Wong, kept advising the plaintiff to return to work because he only had “mild symptoms”.

(4)   In May 2012, significantly, there was no more tenderness over the original site of medial and lateral malleolus.  But he started to complain about slight tenderness over medial side of right heel, which was a different location.

(5)   In September 2012, the plaintiff complained of burning sensation over medial aspect of right foot, (which was a different location from the ankle where he suffered injury from the accident) for 2-3 months.  MRI in March 2013 showed retro-calcaneal bursitis.

9.  Further, according to Dr Ho’s evidence, which was accepted by the Judge :

(1)   The plaintiff had a minor contusion of the soft tissues of the right ankle.  It was a minor injury.

(2)   The plaintiff had a good clinical recovery.  At the joint assessment, there was no swelling, bruising or deformity.  There was no loss of ankle motion or muscle wasting in his right lower limb.  The prognosis was excellent, and he should not be suffering from disabling symptoms.

(3)   The plaintiff should be fit to return to his pre-injury job without much difficulty.

10.  In the circumstances, the evidence showed clearly that :

(1)   As a result of the accident, the plaintiff only suffered from a minor contusion of the soft tissues of his right ankle.

(2)   Such contusion had recovered fairly well by end March 2012 (when Dr Patrick Wong observed “minimal swelling and almost no tenderness; ankle movement was satisfactory and pain-free”), and in any event was well recovered by 16 May 2012 (when Lady Trench GOPC report recorded no more tenderness over the medial and lateral malleolus).

(3)   The plaintiff had not been suffering from disabling symptoms.  He was fit to return to his pre-injury job without difficulty.

11.  Against the above medical conditions of the plaintiff at the material times, he was granted sick leave certificates intermittently between 13 December 2011 and 23 January 2013.  Mr Wong took issue with the length of the sick leave.  He drew our attention to the following matters :

(1)   The opinion of Dr Ho was that given the minor injury, sick leave should not be more than 6 weeks (or 1.5 months) i.e. up to end January 2012.

(2)   The plaintiff’s treating doctor Dr Patrick Wong suggested the plaintiff return to work at end March 2012.  At that time, the plaintiff had “almost no tenderness”, “satisfactory ankle movement and pain free”.

(3)   On 16 May 2012, there was no more tenderness over the medial and lateral malleolus.

12.  Mr Wong submitted that even taking the most generous view in favour of the plaintiff, the appropriate sick leave period should have ended in mid-May 2012.  In light of the plaintiff’s condition, there should be no award of loss of earnings thereafter.  There should be no award of loss of earning capacity either.  Mr Wong then computed the highest award that the plaintiff might be able to obtain as follows :

Appropriate Sick Leave Period	5 months
PSLA	$80,000
Pre-trial loss of earnings & MPF	$97,629
Medical and traveling expenses	$5,000
Sub-total	$182,629
(Less contributory negligence 25%)	($45,657)
Total	$136,972

13.  We agreed with Mr Wong.

14.  It is not disputed that the plaintiff had already received employee’s compensation in the sum of HK$257,051.59. In other words, even had the Judge properly assessed quantum, the highest award that the plaintiff might be able to obtain would not have exceeded the employee’s compensation he had already received.  The plaintiff’s claims for damages would have to be dismissed on that basis.

CONCLUSION

15.  It was for the above reasons that we dismissed the plaintiff’s appeal.

CACV112/2017

[2018] HKCA 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 112 OF 2017

(ON APPEAL FROM HCPI 76 OF 2014)

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DECISION

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Hon Chu JA giving the decision of the Court:

1.  By summons filed on 5 January 2018, the 1^st and 2^nd defendants apply for an order that the plaintiff provides security for their costs in this appeal in the estimated sum of $186,500.  The plaintiff has not filed an affidavit nor put in any submission on the application.

2.  Having considered the papers, we are of the view that it is appropriate to deal with the application on paper without an oral hearing.

The Judgment

3.  In this appeal, the plaintiff seeks to appeal against the judgment of Deputy High Court Judge Saunders given on 15 May 2017, dismissing his claim against the defendants for damages for injury to his right foot sustained during an accident that happened on 12 December 2011 when he was employed by the 1^st defendant.  The 2^nd defendant was the principal contractor at the construction site where the accident occurred.

4.  In the judgment, the judge found against the 1st defendant on liability, but held that the plaintiff was 25% liable in contributory negligence.  The judge has made no finding on liability in respect of the 2nd defendant.  On quantum, the Judge held (at §§36 and 37) that the plaintiff “has failed to establish on the balance of probabilities that the accident he suffered on 12 December 2011 is the cause of the conditions he now experiences” as “[a]ny consequences of that injury would … have been resolved well within 12 months of the date of the accident, leaving [the plaintiff] injury free.”  The Judge accordingly dismissed the plaintiff’s claim with costs to the defendants.

This appeal

5.  The plaintiff acts in person in these proceedings.  He served and filed the Notice of Appeal on 22 May 2017. The Notice of Setting Down an Appeal was filed on the same day.  On 9 June 2017, the defendants filed a Respondent’s Notice seeking to affirm the Judgment on the additional or alternative ground that any award to the plaintiff on his claim would not exceed the amount of employees’ compensation he had already received.

6.  The plaintiff failed to lodge the draft appeal bundle within the time directed by the Court.  Pursuant to the direction of Master Chow given on 25 July 2017, the defendants’ solicitors lodged the draft appeal bundle on 28 August 2017.  On 9 October 2017, the defendants applied to fix a date for hearing of the appeal.  On the same day, the defendants’ solicitors wrote to the Court requesting to hold a direction hearing for the purposes of: (i) passing a copy of the appeal bundle to the plaintiff, and (ii) ensuring that the plaintiff would indeed pursue the appeal before further costs were incurred.  Not surprisingly, the Registrar of Civil Appeal refused the request for reasons given in the Court’s letter dated 11 October 2017.  On 3 November 2017, the appeal was fixed for hearing on 2 May 2018 with one day reserved.

The application for security for costs

7.  On 15 December 2017, the defendants’ solicitors wrote to the plaintiff to request for security for costs. The plaintiff did not respond.  On 5 January 2018, the defendants took out the present summons.

8.  The principal ground on which the defendants make the application is that the plaintiff is impecunious and that it will be difficult and expensive to enforce a costs order against him if his appeal was unsuccessful.  The defendants rely on the fact the plaintiff had been legally aided, his failure to pay the costs previously ordered against him in the sum of $46,000, and also references made by the plaintiff in the Notice of Appeal, a letter to the Court in this appeal and two affirmations he filed in the proceedings below to the effect that his financial position is poor and he lacks financial support.  As noted above, the plaintiff has not filed any evidence to contest the defendants’ contention that he is impecunious.

9.  In the written submission of Mr Wong for the defendants, reliance is also placed on the plaintiff’s lack of intention to proceed with the appeal as reflected by his failure to comply with the directions on preparation of appeal bundles and to apply to fix a date for hearing the appeal.  Mr Wong further argues that the plaintiff’s appeal does not enjoy a reasonable prospect of success.

Discussions

10.  It is well established that applications for security for costs must be made promptly and should be made as soon as possible after the appeal is set down: Hong Kong Civil Procedure 2018 vol 1 para. 59/10/34; see also Lily Cheung v. Cheung Wai Kwok & Anor (unreported) CACV 154 & 156/2015, 23 September 2016, at §§13.1 & 13.2.

11.  The defendants’ application for security for costs is a very late application.  It was made more than seven months after the appeal was set down, and less than four months from the hearing of the appeal.  By the time the defendants’ solicitors raised the request by correspondence in December 2017, all the preparations for the appeal had been completed and a significant portion of the costs had been incurred, as can be seen from the estimated breakdown of costs exhibited to the affirmation in support of the application (exhibit LSL-3). 

12.  Mr Wong’s submission has referred to the plaintiff’s inaction throughout the appeal.  If it is the defendants’ view that the plaintiff does not have a genuine intention to prosecute the appeal, then all the more reason for the defendants to act promptly to request and apply for security for costs.  The fact that the plaintiff was legally aided has been known to the defendants since the commencement of the action below. The plaintiffs’ two affirmations in which he admitted to be in poor financial position are dated 29 May and 2 June 2017.  The defendants ought therefore to be well aware of the plaintiff’s impecuniosity shortly after the appeal was commenced. Had the defendants moved promptly to seek security for costs, the time and costs associated with the preparation of the appeal bundles, to say the least, could have been avoided.

13.  Neither the affirmation filed in support of the defendants’ present application nor the written submission has explained why request and application for security for costs were not, or could not, be made earlier.

14.  In the circumstances, we are of the view that the defendants’ application for security for costs should be refused.

Disposition

15.  We dismiss the summons and make no order as to the costs of the application.