WONG KWEI PIU v. CHOW CHI CHEUNG t/a SUN LEE CO

DCEC 1082/2017 & DCPI 2318/2017

(Heard Together)

[2023] HKDC 1253

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1082 OF 2017

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2318 OF 2017

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DECISION

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A.  An Overview

1.  In these related employees’ compensation and personal injuries proceedings (respectively the “EC Action” and the “PI Action”), the employee (“Piu”) is the applicant/‌plaintiff; and the employer, Sun Lee Company (“Employer”), is the respondent/‌defendant.

2.  Piu was granted legal aid on nil contribution. His first Legal-aid assigned solicitor was Mr Burke (“Mr Burke”) of Messrs Burke & Co. On 7 March 2019,[1] Mr Tam Kam Tong (“Mr Tam”) was assigned by the Director of Legal Aid to replace Mr Burke. It is now known that Mr Tam has been Piu’s assigned solicitor throughout since he replaced Mr Burke despite his multiple changes of firms from Huen & Partners (“Huen”), Ellen Au & Co (“Ellen Au”), H Y Leung & Co LLP (“HY Leung”) to Chan & Associates. He is now with Yu Sun Yau Mak & Lawyers (“YSYM”).

3.  On 11 July 2017, about 2 months after the EC Action was commenced, the Employer made a sanctioned payment of $306,841.38 into court (“EC Sanctioned Payment”). The EC Sanctioned Payment expressly took into account the advance payment of $193,158.62 Piu had already received. This expressed advance payment of $193,158.62 is slightly less than the amount of $193,500 agreed by the parties at the trial, which latter sum was agreed to be continued to be adopted. For consistency, this court adopts this agreed amount of $193,500 as the advance payment (“Advance Payment”). Thus, an aggregate amount of $500,000 ($306,841.38 + $193,158.62) (“EC Aggregate”) had been paid by the Employer.

4.  On 24 August 2017, interlocutory judgment was entered by consent for the EC Action.

5.  On 19 October 2017, Piu issued the writ for the PI Action, and on 28 November 2017, interlocutory judgment was entered by consent.

6.  On 3 November 2020, a sum of $100,000 (“Interim Payment”) was agreed to be paid out from the EC Sanctioned Payment as an interim payment to Piu.

7.  On 27 January 2021, by a Notice of Sanctioned Payment filed in the PI Action, the Employer paid an amount of $150,000 into court (“PI Sanctioned Payment”). In the said notice, the Employer expressly stated that the PI Sanctioned Payment “takes into account” the Interim Payment, the EC Sanctioned Payment and the advance payment of $193,158.62, the aggregate of which is therefore $650,000 ($193,158.62 + $306,841.38 + $150,000) (“Total Aggregate”).

8.  Piu did not accept either of the Sanctioned Payments.

9.  At the trial for the assessment of compensation and damages on 7, 13 and 14 December 2021, Piu was represented by his assigned counsel Mr Tim Wong (“Mr Wong”), and the Employer by counsel Mr Maurice Chan (“Mr Chan”) who appeared together with Mr Leon Ho (“Mr Ho”).

10.  On 31 May 2022, this court handed down the judgment[2] (“Judgment”). In §203 of the Judgment, this court awarded Piu damages in the total sum of $865,190 (“PI Award”), and in §250, interest on the amount of PSLA of $400,000 at 2% from the date of the writ to the date of judgment; and on the amount of the pre-trial loss of earnings of $428,400 and special damages of $36,790 at half judgment rate from the date of the accident (18 February 2016) to the date of judgment.

11.  For the EC Action, Piu was awarded compensation in the amount of $192,476 (“EC Award”).

12.  By a Corrigendum issued on 20 June 2022 (“Corrigendum”), the amount of the PI Award was amended to $671,690 (“Amended PI Award”) and the amount of the EC Award was amended to $191,976 (“Amended EC Award”).

13.  As for costs, this court granted costs orders nisi ordering the Employer to pay Piu:-

(i)  For the EC Action (§§244 and 247 of the Judgment): (at the time, this court only knew that a sanctioned payment was paid without any further details) the costs of the assessment up till 28 days from the date of the last sanctioned payment, and thereafter there shall be no order as to costs.

(ii)  For the PI Action (§251 of the Judgment): the costs of the proceedings with certificate for counsel, except there shall be no counsel’s certificate for the Checklist Review hearing.

14.  The nomenclature in the Judgment, unless expressly stated otherwise, will be adopted in this Decision.

B.  The Variation Applications

B.1  The EC Action

15.  Piu did not accept the EC Sanctioned Payment in accordance with O 22, r 15 of the Rules of the District Court[3] within 28 days, i.e. by 8 August 2017 (“Deadline Date”). As the Amended EC Award is less than the EC Sanctioned Payment, Piu is therefore regarded as having failed to do better than the EC Sanctioned Payment. The consequences stipulated in O 22, r 23 are therefore engaged (see Section I) unless Piu could show that it would be “unjust” to make him pay costs to the Employer on an indemnity basis together with enhanced interest after the Deadline Date.[4]

16.  On 14 June 2022, the Employer issued a variation summons (“EC Summons”), and in §2 applied to vary the costs orders nisi in §§244 and 247 of the Judgment (see §13(i) above) for an order that:-

(1)  The Employer do pay Piu’s costs of the action (including all costs reserved) on a party and party basis up to and including 8 August 2017; and

(2)  After 8 August 2017, the costs be paid by Piu (including all costs reserved):-

(i)  on an indemnity basis, with certificate for counsel; and

(ii)  with enhanced interest on costs at judgment rate plus 5% per annum.

B.2  The PI Action

17.  In Maxwell v Keliston Marine (Far East) Ltd (In Liq) & Anor[5] at §23, the court stated that when “exercising its discretion as to costs in the common law proceedings”, it should “have regard to the fact and amount of any payment made into court in the employees’ compensation proceedings”. Hence, Piu is regarded as having done better within the meaning of O 22 in the PI Action as the Amended PI Award exceeds the Total Aggregate of $650,000.

18.  However, the Employer, relying on Piu’s failure to beat the EC Sanctioned Payment and the latter’s conduct, issued a variation summons (“PI Summons”) on the same date as the EC Summons to apply for an amendment/‌variation of the interest awarded in §250 of the Judgment (see Section J below) and for a variation of §251 of the Judgment (see §13(ii) above) by replacing it with an order of no order as to costs.

B.3  Evidence and representations

19.  After the above variation summonses were issued, and upon the court issuing the Corrigendum, §1 of each of the variation summonses is no longer necessary.

20.  The EC Summons and the PI Summons were each supported by an affirmation (“Au’s Affirmation”) of Au Siu Yan (“Mr Au”), the Employer’s handling solicitor, of Au & Associates. Piu opposed both summonses by the filing of an identical affirmation (“Tam’s 1^st”) of Mr Tam on 10 October 2022 in each of the summonses.

21.  After the trial, Piu was assigned a new counsel, Mr Nicholas Pirie (“Mr Pirie”) to replace Mr Wong. As for the Employer, only Mr Ho remained as his counsel.

C.  Piu’s applications for additional evidence in opposition to the variation summonses

22.  One day before the substantive hearing of the variation summonses on 8 March 2023, Piu, on 7 March 2023, issued summonses in each of the EC and PI Actions (collectively “Leave Summonses”) to seek leave to adduce three additional affirmations (“Additional Affirmations”) in opposition to the above-mentioned variation summonses. They are the affirmations of (i) Wu Pak Hin (“Wu”) dated 27 January 2023 (“Wu’s Affirmations”); (ii) Piu dated 4 March 2023 (“Piu’s Affirmations”); and (iii) Mr Tam dated 6 March 2023 (“Tam’s 2^nd”). Each of the three deponents’ affirmations were made in identical form in each of the EC and PI Actions. Hence, in the discussion below, singular and plural designations will be used interchangeably.

23.  At the hearing on 8 March 2023, the arguments of the Leave Summonses were superposed on the said variation summonses. By the end of the hearing, Mr Pirie had not yet completed his submissions. This court therefore adjourned the hearing to 9 May 2023 with directions given to the parties to lodge written submissions.

24.  At the end of the adjourned hearing on 9 May 2023, I made the following orders in respect of the:-

EC Summons

Leave was granted to file Tam’s 2^nd. Leave was refused for the Affirmations of Piu and Wu.

PI Summons

Leave was granted to file Tam’s 2^nd and Piu’s Affirmations. Leave was refused for Wu’s Affirmation.

25.  This court indicated that the reasons for my decision will be handed down together with the Decision for the EC and PI Summonses due to the substantial overlap of the background facts. Before discussing the contents of the Additional Affirmations in Section E below, it would be necessary to firstly discuss the grounds of opposition to the said variation summonses set out in Tam’s 1^st, which are pertinent to the determination of the Leave Summonses.

D.  The Grounds of Opposition to the Variation Summonses set out in Tam’s 1^st

26.  The grounds of opposition for both the EC and PI Summonses overlap, and can be briefly summarized as follows.

D.1  The EC Summons

(1)  The Notice of the EC Sanctioned Payment was defective as it did not deal with the ss 9 [6] and 10 [7] (sic) compensation.[8]

(2)  When the EC Sanctioned Payment was made, Piu’s entitlement to sick leave was still continuing.[9]

(3)  The PI Sanctioned Payment rendered the EC Sanctioned Payment irrelevant.[10]

(4)  Any adverse costs order to be made against Piu would have the effect of substantially diminishing or even wiping out the damages he has been awarded. This would be contrary to the legislative intention of the Employees’ Compensation Ordinance (“ECO”).[11]

D.2  The PI Summons

27.  Since the Amended PI Award exceeds the Total Aggregate, it is averred that Piu has beaten the PI Sanctioned Payment. It is therefore not justifiable to deprive Piu’s interest and costs.

E.  The contents of the Additional Affirmations

E.1  Wu’s Affirmations

28.  Wu deposed that he worked as Mr Wong’s secretary and assistant at the time of the trial of these proceedings. It was alleged that before the last day of trial on 14 December 2021, Mr Wong had instructed Wu to prepare 3 copies of an unsigned summons together with a draft ASOD, which were later submitted by Mr Wong to the court for his application to amend the Re‑Revised Statement of Damages. After the court granted Mr Wong’s application, Wu was allegedly asked by Mr Wong to file the amendment summons. However, as the amendment summons was not endorsed by solicitors, Wu therefore allegedly went to Mr Tam for him to endorse the amendment summons by appending his signature to the execution page of the summons. After the amendment summons was endorsed, Wu asked Mr Wong’s clerk to file it at the District Court registry.

E.2  Piu’s Affirmations

29.  Piu’s Affirmation contains legal advice privilege in relation to the legal advice that he had allegedly been given, which privilege was confirmed to have been expressly waived by Piu. It was averred that Piu was advised by Mr Burke, Mr Tam and Mr Wong that his claim was allegedly worth more than the EC and the PI Sanctioned Payments, and he therefore did not accept either of the Sanctioned Payments.

30.  It was further alleged against Mr Wong that he:-

(i)  without Piu’s instructions or knowledge, abandoned the earlier pleaded pain and disabilities caused by the injuries to Piu’s neck and shoulder;

(ii)  had failed to adduce the evidence of the Government Census and Statistics for drivers in support of Piu’s case for pre- and post-accident loss of earnings; and

(iii)  had necessitated Piu’s need to issue the Leave Summonses as a result of Mr Wong’s delay in returning the papers to Mr Tam after the reassignment of Mr Pirie to replace him.

E.3  Tam’s 2^nd

31.  Tam’s 2^nd substantially repeats similar allegations made by Wu and Piu against Mr Wong. The single most important evidence is an exhibit of a 100-page bundle of without prejudice (“WP”) correspondence exchanged between the parties before trial.

F.  Parties’ arguments of the Leave Summonses

F.1  Mr Pirie’s submissions

32.  On behalf of Piu, Mr Pirie submitted that the evidence of the Additional Affirmations was important as it would support Piu’s allegations of misconduct against Mr Wong, who had negligently run a false case by inflating Piu’s claim.

33.  In his written submissions dated 6 March 2023 (“Pirie March Submissions”),[12] Mr Pirie also faulted the Employer’s trial counsel, Mr Chan and Mr Ho, for having failed to refer at the trial to the provisions of s 11 (1A) and (1B),[13] ECO. He also criticised Mr Au for having breached “Practice Direction 18.1” in having allegedly refused to produce comparable wages of workers as well as having wrongly failed to deal with legal aid taxation when Au & Associates sent a WP offer to Mr Tam on 23 November 2021 (see §148 below).

34.  Mr Pirie asked this court at the hearing to exercise its “equitable jurisdiction” to grant leave to Piu to adduce the Additional Affirmations so as to “discipline the dishonest counsel of both parties”.

F.2  The Employer’s submissions

35.  In the written submissions dated 25 April 2023 (“Chan Ho Submissions”) of Mr Chan and Mr Ho lodged on behalf of the Employer in opposition to the Leave Summonses, the Employer relied on the three so‑called Ladd v Marshall[14] conditions for the adducing of new evidence as discussed in Falcon Insurance Co (Hong Kong) Ltd v ISP Holdings Ltd (formerly known as Synergis Holdings Ltd) & Anor.[15]

36.  First, it was contended that Piu had failed to satisfy the first condition that the evidence of the Additional Affirmations could “not have been obtained before with reasonable diligence”. It was suggested that when Piu filed on 10 October 2022 Tam’s 1^st in opposition to the EC and PI Summonses, all the evidence presently contained in the Additional Affirmations must have been available to him (through Mr Tam). More importantly, since Mr Tam was the assigned solicitor for all the proceedings after Mr Burke’s replacement, it was suggested that not only would Mr Tam have had knowledge of the factual background, he would have had all the papers. It was contended that it was only a lame excuse to have blamed Mr Wong for the delay. Further, Mr Ho stated that there was also no explanation as to why Wu’s evidence could not have been available when Tam’s 1^st was filed.

37.  Mr Ho also contended that since the contents of the Additional Affirmations were mostly accusations against a third party – Mr Wong, the Employer’s solicitors and counsel – such evidence would not have been relevant to the EC and PI Summonses. The accusations may be more relevant to an application against non‑parties or for personal costs orders against Mr Wong. It was therefore submitted that the Ladd v Marshall condition 2[16] is also not satisfied. Mr Ho made no submissions on condition 3.[17]

G.  Reasons for Decision of the Leave Summonses

38.  After having read the Additional Affirmations de bene esse, I find they contain lots of disturbing allegations. The allegations against Mr Wong are more than allegations of negligence, but verge on allegations of professional misconduct. Were these allegations indeed true, the alleged unusual arrangement between Mr Tam and Mr Wong that the former had totally left Mr Wong to have undertaken the duty of a solicitor (see §28 above), in my view, may warrant further investigations by the Director of Legal Aid, and if necessary, be referred to the respective professional bodies.

39.  For the present purposes, my focus is confined to the issue as to whether I should exercise my discretion to admit the Additional Affirmations.

G.1  Wu’s Affirmations

40.  The allegations Wu made against Mr Wong are serious and abhorrent. It is most unusual for a trial counsel to have allegedly undertaken entirely the duty of his instructing solicitor in filing court documents – the amendment summons and the ASOD.

41.  Without deciding on the veracity of these allegations, I am firmly of the view that they are wholly irrelevant to the EC and PI Summonses. Mr Tam was present during the trial together with Mr Wong. Hence, it is reasonable to believe that Mr Tam would have known those matters contained in Wu’s Affirmations. Hence, I find that such evidence fails to satisfy the conditions laid down in Ladd v Marshall stated above.

42.  Even if the abandonment of the neck and shoulders complaints had indeed been made without Piu’s instructions and approval as Piu alleged, I do not think that any alleged negligence or improper conduct of the trial counsel is a relevant consideration to the issues of the variation summonses.

43.  Hence, leave was declined.

G.2  Piu’s Affirmations

44.  Piu’s Affirmation covers wide-ranging matters from the disclosure of legal advice allegedly provided by Mr Burke and Mr Tam as well as Mr Wong, to the various allegations of negligence and misconduct against Mr Wong.

45.  As stated in §15, the issue the court needs to decide for the EC Summons is whether it is “unjust” to make the orders sought by the Employer. Allegations of misconduct or negligence against Piu’s legal advisers and counsel, in my view, are not relevant to this issue. Hence, leave was refused for the EC Summons.

46.  As for the PI Summons, the consideration of the application will require this court to consider the parties’ conduct and all the circumstances of the case (see Section J below). It is therefore important that Piu should be allowed to put in as much evidence as possible so that the court will be able to have a more comprehensive evaluation of all the circumstances. Presently, the evidence contained in Tam’s 1^st as summarized in Section D above is scanty. Greater latitude should be given in my discretion. For this reason, together with the reason I give below in relation to the explanation for the delay, I granted leave for the PI Summons.

G.3  Tam’s 2^nd

47.  Notably, Tam’s 2^nd contains an explanation as to why Additional Affirmations were available late and it is important. Despite my misgivings about the reason Mr Tam gave for the delay for the filing of the Additional Affirmations, I do not think that Piu should be prejudiced by the falling-out between Mr Tam and Mr Wong. I consider it right to excuse Piu for the delay.

48.  Since Mr Tam has been Piu’s assigned solicitor since 7 March 2019, the evidence in Tam’s 2^nd should provide more information on the important matters of the proceedings including the advice Mr Tam gave to Piu on the PI Sanctioned Payment and the WP correspondence exchanged between the parties. Without the evidence of Tam’s 2^nd, the court will not have complete evidence in its consideration of both summonses. Leave was therefore granted to Piu to adduce Tam’s 2^nd in the EC and PI Summonses.

H.  Costs of the Leave Summonses

49.  Pursuant to this court’s direction for paper disposal, the parties have lodged their written submissions in relation to costs. After Mr Pirie had lodged his written submissions dated 23 May 2023, and Mr Ho’s skeleton arguments dated 6 June 2023, Mr Pirie, without any leave of the court, lodged another submissions dated 18 June 2023 in response. As no leave had been given, Mr Pirie’s response submissions were therefore disregarded.

H.1  Mr Pirie’s Submissions

50.  Mr Pirie submitted that although Piu did not get leave to file Wu’s Affirmations and Piu’s Affirmation for the EC Summons, he should nonetheless be awarded the costs of the entire Leave Summonses without any proportionate deduction. It was submitted that such costs order was justified due to Mr Au’s “contumelious conduct” in suppressing the WP correspondence: §§3 & 4 of Mr Pirie’s submissions.

H.2  The Employer’s stance

51.  The Employer’s starting position is that since the Leave Summonses were last-minute applications, Piu should therefore be ordered to pay for the costs of the indulgence, including the costs of the hearing on 8 March 2023, with certificate for counsel and certificate for two counsel for the Chan Ho Submissions (see §35 above). It was further submitted that the costs for the hearing on 8 March 2023 and the Chan Ho Submissions should be taxed on an indemnity basis.

52.  The ground for the Employer’s seeking indemnity costs is based on Mr Pirie’s allegations against Mr Chan and Mr Ho in the Pirie March Submissions and at the hearing on 8 March 2023. Mr Ho submitted that as the allegations were very serious, the Employer was justified in instructing Mr Chan to settle the Chan Ho Submissions in response.

H.3  Discussion

H.3.1  Starting position

53.  It is trite that costs are at the discretion of a court, which discretion should be exercised judicially and justly.

54.  The Leave Summonses are interlocutory applications. It is therefore instructive to refer to a passage in the editorial introduction on O 62 in the Hong Kong Civil Procedure 2023, Vol 1 (“HKCP”), at §62/0/2 on p 1301 setting out the general approach to inter-party costs. Relevantly, it states:-

“(a) in relation to interlocutory applications, the principle that the costs should normally follow the event is no longer the prescribed usual order but just an option; and

(b) the Court shall take into account the underlying objectives of the Rules of the High Court and several additional matters in exercising its discretion as to costs, including

(i) the conduct of all parties;

(ii) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(iii) ...”

55.  The above general principles are equally applicable to the District Court. Notwithstanding that neither party has referred to the above passage, I do not think that there should be any dispute as to their applicability.

56.  Broadly, Piu, as the party seeking indulgence from the court, should normally be ordered to pay the costs. However, this starting position is countervailed by the Employer’s partial failure in his vigorous contesting of the Leave Summonses. In the circumstances, an appropriate costs order should be an order that properly reflects the nature and ultimate result of the Leave Summonses as well the conduct of the parties.

57.  Having considered the outcome of the Leave Summonses and the conduct of the parties, subject to the costs of the hearing on 8 March 2023, and the question of indemnity costs and certificate for two counsel which are to be separately discussed below, I grant the following costs orders:-

(1)  For the costs of Wu’s Affirmations, since leave was refused, Piu shall pay the costs of the Employer.

(2)  As for the costs of Piu’s Affirmations, Piu failed in the EC Summons but succeeded in the PI Summons. Hence, the different outcomes should cancel each other out. Thus, for simplicity, I order that there should be no order as to costs.

(3)  As for Tam’s 2^nd, Piu had a complete success. The Employer should pay the costs.

H.3.2  Conduct

58.  Before the hearing on 8 March 2023, Piu lodged the Pirie March Submissions for the Leave Summonses. The contents of the submissions, with the greatest respect to Mr Pirie, are full of multiple errors. Some of them are incomprehensible while most of them are irrelevant. By way of example:-

(i)  Piu was mis-spelled as “Pui”. The reference to the fact that Piu “is on a nil contribution” in §I is also irrelevant.

(ii)  Wu “resists the application for costs against him, because he is a non-party and has not been joined formally by the Defendant” at §II. This reference is incomprehensible.

(iii)  Mr Leon Ho was mistakenly referred to as “Mr Leo Wong” throughout.

(iv)  When alleging obstructive behaviour and incompetence of the Employer’s solicitors and “Mr Leo Wong (sic)” in Section III §1, Mr Pirie’s reference to “practice Direction Para 67” without any further specification makes it difficult to follow.

59.  In addition to the problems above, Mr Pirie also launched attacks against both the Employer’s trial counsel and the handling solicitor in the Pirie March Submissions. It may be more convenient to set them out below as taken from Mr Ho’s submissions:-

(1)  “Mr Leo Wong (sic)” did not produce the brief (Section I §1);

(2)  “Mr Au has not been candid with the court” (Section I §4);

(3)  “…we will ask for Indemnity Costs against Leo Wong (sic) and Mr Au personally for misleading the court” (Section I §6);

(4)  “Obstructive Behaviour and/or Incompetence of the Respondent’s solicitor, and Mr Leo Wong (sic)” (Section III); and

(5)  “...the Respondent’s solicitors have been less than helpful...their counsel [did not] bring to the Court’s attention [s 11(1A) & (1B)] when challenging d.o.a. earnings, and misled the Court in this respect” (Section III §3).

60.  At the hearing on 8 March 2023, not only did Mr Pirie continue to repeat the allegations and the criticisms against Mr Wong he had made in the Pirie March Submissions, there was no letting up in his attacks against Mr Au, Mr Chan and Mr Ho.

61.  Mr Pirie repeatedly alleged that “Mr Leo Wong (sic)” had failed to produce his brief, accusing the trial counsel and Mr Au of having been dishonest. It was alleged that the Employer’s legal team did not come with clean hands when they had failed to produce the comparable wages before trial and the WP correspondence that was only disclosed in Tam’s 2^nd. Mr Pirie suggested that this court should discipline Mr Au and Mr Ho by making them pay costs personally.

62.  The tirade of accusations against the Employer’s trial counsel and Mr Au, in my view, was wholly baseless. Not only do I agree with Mr Ho that they were unjustified allegations, I also think that they are not relevant to the Leave Summonses. Matters concerning counsel’s brief, and the absence of the evidence of comparable wages at the trial, are all irrelevant. The unjustified criticisms and the time wasted for the wholly irrelevant submissions should be properly reflected by an appropriate costs order, and I therefore consider it just to order Piu to pay the Employer’s costs of the hearing on 8 March 2023.

63.  Despite the unjustified accusations Mr Pirie made against the Employer’s trial counsel and his solicitors, I do not believe that Mr Pirie did so with malice. Mr Pirie was the newly-assigned counsel, and it would have taken him a lot of time to familiarize himself with the case. It appears that the falling-out between Mr Wong and Mr Tam would have likely compounded the difficulty Mr Pirie faced. The number of errors in the Pirie March Submissions (that I have highlighted above) was probably partly caused by such difficulty and partly by Mr Pirie’s own carelessness. All in all, I am satisfied that there was no malice on the part of Mr Pirie, and do not think I should order indemnity costs.

64.  While I have found that the allegations against the Employer’s legal team are clearly unfounded, I do not think that they were directed at Mr Chan personally. The allegations are clearly sweeping and irrelevant, and could have been ignored. For example, the remark as to the alleged unreasonably large fees Mr Chan charged for his brief, was clearly irrelevant. There was no need to call upon Mr Chan to address such an irrelevant matter. In any event, I also find that a large part of the Chan Ho Submissions in fact did not deal with Mr Chan’s response to the allegations. In the circumstances, I do not think that it is justified to allow certificate for two counsel as Mr Ho requested.

H.4  Conclusion and Orders

65.  Save and except for the costs for the hearing on 8 March 2023, which shall be paid by Piu to the Employer, with certificate for counsel, to be taxed if not agreed, I order that:-

(1)  For Wu’s Affirmations, Piu shall pay the costs of the Employer;

(2)  For Piu’s Affirmations, there shall be no order as to costs; and

(3)  For Tam’s 2^nd, the Employer shall pay Piu’s costs.

66.  For the costs ordered above, I further order that there shall be certificate for counsel and that the costs are to be taxed if not agreed. Piu’s own costs are to be taxed in accordance with the Legal Aid Regulations.

I.  The EC Summons

I.1  O 22, r 23 costs consequences

67.  Order 22, r 23 provides that:-

“(1) …

(2) The Court may by order disallow all or part of any interest otherwise payable under section 49 of the Ordinance on the whole or part of any sum of money awarded to the plaintiff for some or all of the period after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(3) The Court may order the plaintiff to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without requiring the leave of the Court.

(4) The Court may also order that the defendant is entitled to—

(a) his costs on the indemnity basis after the latest date on which the plaintiff could have accepted the payment or offer without requiring the leave of the Court; and

(b) interest on the costs referred to in paragraph (3) or subparagraph (a) at a rate not exceeding 10% above judgment rate.

(5) where this rule applies, the Court shall make the orders referred to in paragraphs (2), (3) and (4) unless it considers it unjust to do so.

(6) In considering whether it would be unjust to make the orders referred to in paragraphs (2), (3) and (4), the Court shall take into account all the circumstances of the case including—

(a) the terms of any sanctioned payment or sanctioned offer;

(b) the stage in the proceedings at which any sanctioned payment or sanctioned offer was made;

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

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

(7) …”

68.  By virtue of the above provisions, Piu shall be required to show that it is unjust to make the orders sought in §2 of the EC Summons.

I.2  Grounds put forward by Piu

69.  Piu’s objections stated in Tam’s 1^st, and in the submission set out in several of Mr Pirie’s repetitive written submissions (some of which were lodged without the leave of the court) can be summarized as follows.

I.2.1  The EC Sanctioned Payment was not properly made

70.  Piu made 3 attacks against the propriety of the EC Sanctioned Payment.

71.  First, it was suggested that the EC Sanctioned Payment was defective. In Tam’s 1^st at §6, it was averred that the Notice of [the EC] Sanctioned Payment failed to separately state the amounts of the ss 9, 10 and 10A payments. As Piu was still entitled to be paid a s 10 payment (“sick leave payment”, a misnomer Mr Tam used), it was suggested that the Notice was “probably defective”.

72.  Secondly, the EC Sanctioned Payment was made prematurely. This objection was only made at the substantive hearing on 26 June 2023. Mr Pirie contended that when the EC Sanctioned Payment was made, the MAB of the Labour Department had not yet carried out an assessment on Piu and further that the first medical expert evidence, i.e. the JOR, was also not available. It was therefore suggested that it was reasonable for Piu to reject the EC Sanctioned Payment, and continue to proceed with the PI Action.

73.  Thirdly, the EC Sanctioned Payment was abandoned by a “combined notice” of the PI Sanctioned Payment. In Tam’s 1^st (§6 and exh “TKT‑1”), it was suggested that by the operation of O 22, r 8(2)(c), the EC Sanctioned Payment notice was abandoned by the notice of the PI Sanctioned Payment.

I.2.2  Third Party’s fault

I.2.2.1  Mr Burke’s advice to reject

74.  At the time when the EC Sanctioned Payment was made, Mr Burke was Piu’s assigned solicitor. Piu was allegedly advised by Mr Burke that “his claim was worth then about $1 million”, and he should reject the EC Sanctioned Payment.[18]

I.2.2.2  Errors by Mr Wong

75.  In his submissions dated 28 December 2022 and 28 February 2023, Mr Pirie alleged that Mr Wong made a blunder in relation to Piu’s pre-accident wages, the medical expenses, the unauthorized abandonment of Piu’s disabilities caused by shoulder and neck and “the case for continuing Section 10 payments”.[19] It was suggested that had these errors not been made, Piu would have been awarded “an additional 13 months x 4/5 x [$]18,000 = $187,200 plus interest”.[20]

I.2.2.3  Failure to provide to the court up to date wages

76.  In Tam’s 2^nd at §5, it was alleged that the Employer had failed to comply with s 11 (1A) and (1B), ECO, by disclosing the earnings of two comparable workers for the 12 months before Piu’s accident and by failing to agree with the figures of the Consumer Price Index in accordance with s 11 (1C). As no such comparable earnings were adduced at the trial, Mr Pirie[21] stated that the Employer was “at fault and caused considerable time wasting as they had not complied with Practice Direction 18.2 Para 67”.[22] It was contended that had the comparable earnings been made available, Piu’s notional pre-trial wages should have likely increased by 15%, yielding to a much higher award for both the EC and PI Actions.

77.  In the same written submissions, Mr Pirie also blamed counsel for both parties for having failed to produce the materials of the up to date statistics on wages.

I.2.3  The requirement of statutory set-off

78.  Despite references having been made by Mr Tam[23] in relation to ss 25(1) and 26(1), ECO, it is not clear what point he wanted to advance for Piu. Mr Pirie also repeatedly referred to these two provisions in his various written submissions and at the hearing. I believe Mr Pirie’s arguments run like this. By virtue of the words of “shall be reduced” found in s 26(1), the Employer has the benefit of setting off the Amended EC Award against the Amended PI Award. Therefore, the Employer shall be required to take into account the compensation of the EC Action when making the PI Sanctioned Payment later.

79.  Mr Pirie’s reliance on these two provisions are understood to be in relation to his contentions that there is a requirement of set-off under O 22, r 8. It was suggested that since the EC and PI Actions “have been combined and heard together”,[24] Mr Pirie contended that the final judgment awarded in the “combined judgment” of the EC and PI Actions exceeds the PI Sanctioned Payment.[25] He urged this court to consider the totality of the amounts of the two Sanctioned Payments in the context of the “combined” proceedings. Mr Tam even went as far as to suggest that by the operation of O 22, r 8, the total amount of the Amended PI Award and the Amended EC Award exceeded the Total Aggregate by “$210,000 odd”,[26] therefore impliedly Piu had done much better.

I.2.4  The effect of any adverse costs order on Piu

80.  Since Piu paid nil contribution when he was granted legal aid, it was suggested that the Director of Legal Aid will need to deduct from the damages Piu was awarded and any amount of costs adversely made against Piu. It was stated that any adverse costs order effectively “would wipe out any net claim which was payable to [Piu] in the combined actions”.[27] It was submitted that since the employees’ compensation regime is a “remedial statute” requiring “a fair and liberal interpretation” in favour of an employee, depriving Piu of the fruit of the litigation is not fair.[28]

I.3  Discussion

81.  I have not separately set out Mr Ho’s submissions, but will refer to them in the appropriate parts of my discussion. Broadly stated, Mr Ho submitted that Piu’s grounds of objections are either irrelevant, incomprehensible or erroneous.

82.  Overall, I find the grounds advanced by Piu to resist the costs consequences of O 22, r 23 are mostly unsound, and at times, very strained.

83.  First and foremost, I reject the contention that the EC Sanctioned Payment was defective. Mr Tam’s assertion that it was “probably defective” is, in my view, clearly a try-on, and is devoid of any merits. I accept Mr Ho’s submission that there is no requirement that a Notice of Sanctioned Payment has to provide breakdowns.[29]

84.  In fact, I find that the Notice of the EC Sanctioned Payment (see §3 above)[30] has satisfied the various requirements set out in O 22, r 8(2) by including in it “the amount of the payment” (sub-r(a)); a reference that the payment was in settlement of “the whole claim” (sub-r(b)); and also a reference that it took into account the advance payment of $193,158.62 (sub-rr(c) & (d)). I believe that upon receipt of this Notice of EC Sanctioned Payment, Piu and Mr Burke would not have been in any doubt that the Employer had intended to dispose of the EC Action (without admitting any liability as interlocutory judgment had not yet been entered at that stage) as early as possible.

85.  I do not find any merits in the argument that the EC Sanctioned Payment was made prematurely. Independently, r 20 of the Employees’ Compensation (Rules of Court) Rules (“ECC Rules”) also provides for a similar O 22 sanctioned payment regime. Rule 20(2)[31] of the ECC Rules stipulates in plain language for the right of a respondent to make a payment into court, and the adverse costs consequence of an employee being awarded compensation less than the sum of money paid into court by a respondent. The combined effect of the statutory ECC Rules and the O 22, r 23 regime are clearly meant to enable a defendant/‌respondent to make payment into court as soon as he was served with the proceedings so that:-

“…He can therefore protect himself as to costs by this device from the earliest possible moment, even if he is prepared to allow a judgment in default of acknowledgment of service to be entered against him for damages to be assessed. It has been held that there is no scope in the wording of the order to imply that a plaintiff should be given a reasonable amount of time to investigate the merits of his own case before an offer can be made; a defendant is entitled to make an offer at any time; ... If a party intends to make a sanctioned payment, the sooner it is made the better, because costs may be running up.”[32]

86.  The above passage clearly undermines Piu’s excuse for not accepting the EC Sanctioned Payment. I also find the argument that the EC Sanctioned Payment was abandoned by the making of the PI Sanctioned Payment misconceived. As Mr Ho submitted,[33] the statutory regime under O 22 only has provisions for withdrawal or diminution of sanctioned payments. There is no provision for “abandoning” a sanctioned payment.

87.  In advancing the argument that the Amended PI Award has exceeded the Total Aggregate, Mr Tam and Mr Pirie have repeatedly alluded to the statutory set off provisions in s 26, ECO (together with the irrelevant s 25), and the EC and the PI Actions having been “combined” (see §§79 and 80 above). These repetitive contentions, in my view, seem to have stemmed from a misconception that quantum assessment for both Actions was tried together. I have clearly stated in the Judgment that the reason that the two Actions were tried together was because Piu’s legal advisers had allowed the EC and PI Actions to have proceeded in tandem without regard to the spirit of saving costs for parallel proceedings.[34] Ultimately, quantum assessments were separately carried out for the EC and PI Actions at trial, and separate awards were made. These submissions are simply unmeritorious.

88.  I am also not impressed by Piu’s blaming Mr Burke and Mr Wong in justifying his refusal to accept the EC Sanctioned Payment. I’m more inclined to believe that this unmeritorious argument is more a manifestation of Piu’s desperate attempt to salvage the adverse consequences he is currently facing. The alleged wrong legal advice is not a relevant consideration for the EC Summons.

89.  Equally unmeritorious is the faulting of the Employer for having failed to provide updated pre-accident wages. According to the two letters respectively dated 26 March and 14 May 2020 exhibited as “TKT‑5” to Tam’s 2^nd, Mr Tam (of Huen at the time) sent a written demand to the Employer’s former solicitors, Cheung & Yeung, for specific discovery in relation to detailed particulars on wage-related matters. The Employer duly made discovery. Had discovery been incomplete, it would have been incumbent on Mr Tam to take out an application for specific discovery. From the materials before me, I find no such application. Hence, the present complaint made by Mr Tam is irresponsible and likely an after-thought. In any event, the issue is clearly water under the bridge. In any event, Mr Pirie’s submissions on the 15% increase (see §76 above) are baseless and incomprehensible.

90.  It is even more puzzling for Mr Tam and Mr Pirie to have made reference to Piu’s zero contribution to his legal aid and the application of a liberal interpretation to the ECO in favour of Piu. Mr Ho is justified to have been so critical of this argument that it “is wrong on multiple aspects”.[35] The legislative intention of the ECO is to provide fast and quick financial relief to an injured worker. Mr Pirie also has not elaborated further as to how the ECO should be properly interpreted in relation to the sanctioned payment regime under discussion.

91.  I also do not find that the fact of Piu’s nil contribution carries much weight. The fact of zero contribution in fact would have required the assigned solicitors and counsel to exercise greater vigilance to safeguard costs and refrain from pursuing unrealistic and exaggerated claims so as to protect public funds.[36]

92.  Contrary to Mr Pirie’s submission (see §72 above), when the EC Sanctioned Payment was made, the Form 9 had already been issued (on 16 June 2017). After the EC Sanctioned Payment was made, the EC Aggregate was already in the total amount of $500,000. Piu and his legal advisers should already have had reasonably sufficient information to make a broad assessment as to the amount of the compensation Piu would likely obtain. Instead of accepting the EC Sanctioned Payment, the proceedings were dragged on for a long time, causing Piu to have “suffered from the long and distressing effects of litigation” as found by Dr CK Wong, Piu’s appointed psychiatric expert. Eventually, psychiatric illness inflicted on Piu around June 2019.[37]

93.  The history of these proceedings as gleaned from the court file together with the WP correspondence exhibited to Tam’s 2^nd reveal a lot of unsatisfactory handling by Mr Tam. Apart from holding a totally misguided view that the EC and PI Actions were “combined” actions, Mr Tam has failed in his duty as the legal representative of Piu to assist the court to further the underlying objectives set out in O 1A. Neither did he have any insight as to the proper conduct for the EC Action with regard to the legislative objective of the employees’ compensation regime of providing fast financial relief to an injured employee, Piu, in this case. The protracted litigation has not only affected Piu’s mental health, but has also severely exposed Piu to risk as to costs as the discussion below clearly demonstrates.

94.  After the entry of interlocutory judgment on 24 August 2017, Mr Tam has effectively allowed the EC Action to go stale. The court was only alerted to the inaction when Cheung & Yeung wrote to the court on 4 June 2020,[38] asking the court to set the EC Action down for trial. This resulted in a directions hearing before this court for the first time on 21 August 2020. Due to the slow progress of the proceedings, this court directed that all future case management directions for both the EC and PI Actions were to be dealt with together.

95.  At the hearing on 12 October 2020 for both Actions, this court had raised concern about the way Piu’s legal advisers conducted the EC Action, and urged Mr Wong attending the hearing to seriously consider settling the EC Action as expeditiously as possible.

96.  Not long after the above October hearing, the Employer then made the PI Sanctioned Payment, which Payment immediately prompted the sending out by Mr Tam, who was by that time with Ellen Au, 10 successive WP letters dated 27 January 2021 (the same date as the PI Sanctioned Payment was made), 1, 2, 3, 4, 5, 8, 9, 10 and 11 February 2021 to Cheung & Yeung, demanding the latter to propose a settlement for the EC Action.

97.  Strangely, there was a brief hiatus of about 3 months after the above WP correspondence. Mr Tam, who had by then changed to the firm of HY Leung, sent 7 WP letters[39] of the same contents to the Employer’s solicitors. In these letters, Mr Tam proposed that Piu would accept the EC Sanctioned Payment provided that the Employer would pay Piu his costs up to the date of the acceptance. The Employer rejected the offer[40] and only agreed to pay the costs up to the Deadline Date.

98.  The WP correspondence above clearly shows that the issue of costs has impeded the achievement of a settlement. Such costs predicament was chiefly caused by Piu’s failure to accept the EC Sanctioned Payment before the Deadline Date. By virtue of the statutory set-off requirement of employees’ compensation in s 26 of the ECO, to which provisions Mr Tam and Mr Pirie have repeatedly referred (see Section I.2.3), Piu should have, at the latest, applied for leave to accept the EC Sanctioned Payment after the interlocutory judgment was entered in the PI Action on 28 November 2017. There is absolutely no basis for Piu (through Mr Tam) in having continued the EC Action all the way to trial with no additional financial benefit to Piu himself.

I.4  Conclusion and rate of interest

99.  For the reasons stated above, I do not find that it is unjust to impose the consequences stipulated in O 22, r 23(3) and (4) by ordering Piu to pay the Employer’s costs of the EC Action on an indemnity basis together with enhanced interest from the Deadline Date, i.e. 8 August 2017, with certificate for counsel.

100.  As for the rate of enhanced interest, the Employer asked this court to award interest at 5% above judgment rate, relying on Ki Tak Yan v The Incorporated Owners of Kam Yuen Building, Boundary Street & Anor[41] and Tse Lai Sing (supra). Piu made no submissions in relation to this proposed rate of enhanced interest.

101.  The Employer produced copies of payment records[42] in the total sum of $747,206 that the Employer’s insurer, Falcon Insurance Company (Hong Kong) Limited, had paid for the disbursements and legal costs during the period from the Deadline Date to the date of judgment. Relying on Tse Lai Sing (at §13), Mr Ho suggested that this court should adopt the simplified approach by applying the Employer’s proposed interest rate as the enhanced interest for the said period of about 4.5 years.

102.  In Tse Lai Sing referred to by Mr Ho, the enhanced interest the District Judge adopted was in fact based on Yeung Ho Man (see f/n 36) and Shih Pik Nog v G2000 (Apparel) Ltd[43] which were the decisions of Bharwaney J. In Yeung Ho Man, his Lordship also considered his previous decision of Lai Sin Yan Elsie when determining the rate of enhanced interest. Before deciding the appropriate rate of enhanced interest, it will be useful to distill from these three authorities of Bharwaney J the court’s approach to enhanced interest as follows.

(1)  No order for interest or enhanced interest on costs should be allowed if the receiving party has not made any payment of costs and disbursements incurred and has not made any advance payment on account of fees: Shih Pik Nog at §21.

(2)  If the receiving party has made payments, there are two different methods to calculate enhanced interest:-

(i)  An approach modified by Lam J (as he then was) in Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd.[44] By this modified method, interest is calculated by enhancing the normal commercial rate of interest (prime rate plus 1%) by 3%. In other words, after adding 4% interest above prime (“Full Enhanced Rate”), the total is then halved when applying to the costs incurred for the whole period after the last date of acceptance without requiring leave of the court to the date of judgment on interest and costs. This method is more suitable for cases where there have been multiple payments spanning a long period of time: Shih Pik Nog at §18.

(ii)  Alternatively, by applying the Full Enhanced Rate of interest to the actual dates of payment when the receiving party had put up funds on account of costs and from which interest would run to the date of the judgment on interest and costs: Shih Pik Nog at §15. This approach is suitable for cases where there have only been a few payments: Shih Pik Nog at §18.

(3)  The above Full Enhanced Rate is usually applicable to the run-of-the-mill case where the only failure of the plaintiff was a failure to accept the successful sanctioned payment. The court can “set the rate of interest that is greater than purely compensatory in order to mark the court’s disapproval of improper conduct” (10% above judgment rate for each payment of costs): Yeung Ho Man at §23.

103.  The Employer has provided evidence that the insurer has paid 8 payments (“8 Payments”) for disbursements and legal costs in the total sum of $747,206 during the relevant period (29 August 2017 to 4 February 2022).[45] According to the approaches summarized above, I should adopt the approach set out either in §102(2)(i) or §102(2)(ii).

104.  As there is only evidence showing the 8 Payments for specific disbursements and legal costs and no evidence that the Employer or the insurer has paid solicitors costs on account, I do not think it is suitable to make a general award of interest including costs that have not yet been paid otherwise it would produce an unjust windfall for the insurer or the Employer: Shih Pik Nog at §17. After careful consideration, I believe that the proper approach should be the approach set out in §102(2)(ii) above, and I so order.

105.  The costs orders nisi in §244 and §247 of the Judgment are varied as follows:-

(1)  The respondent do pay the applicant’s costs of the action (including all costs reserved) on a party and party basis up to and including 8 August 2017;

(2)  After 8 August 2017, the applicant do pay the respondent’s costs (including all costs reserved)

(i)  on an indemnity basis with certificate for counsel, to be taxed if not agreed; and

(ii)  with enhanced interest on the 8 Payments costs at the Full Enhanced Rate set out in §102(2)(ii), i.e. prime rate plus 4%, in relation to each of the 8 Payments of costs from the date of each payment until full payment.

106.  As to §3 of the EC Summons on the Employer’s application to pay out the monies in court, I will withhold making any order until the matter of costs between the parties are settled. I grant the parties liberty to apply.

107.  Costs of the EC Summons will be discussed in Section K below.

J.  The PI Summons

J.1  Variation of interest

J.1.1  The basis of the application

108.  As a result of the discussion between this court and Mr Ho at the hearing on 26 June 2023, Mr Ho was granted leave to amend §2 of the PI Summons by including the calculation of interest in the Amended EC Award when setting off against the various damages awarded in the PI Action. Thus, after §2 has been amended, Mr Au’s calculations set out in Au’s Affirmation in support are no longer correct, and therefore cannot be relied on.

109.  According to Mr Ho’s submissions in support of the amended §2, the variation sought consists of two parts.

110.  Part one concerns the amount of $400,000 this court awarded for PSLA (see §10 above). According to the amended §2, the only amendment the Employer made is by amending the amount of $400,000 for PSLA to $364,868.62. No amendment was made to the interest of 2% awarded from the date of the writ to the date of judgment. According to the calculations Mr Ho submitted to this court, which I set out below, the said amended amount of $364,868.62 was arrived at as follows:

$865,190 - $193,500 - $306,841.38 = $364,868.62

111.  I think there was error in Mr Ho’s calculation. The correct sum should be $364,848.62 (emphasis added), instead of $364,868.62. Hence, I will correct the amount stated in the amended §2 by amending it to $364,848.62.

112.  As to how this amended amount was arrived at, I understand that the sum of $865,190 is the PI Award; $193,500 is the amount of the Advance Payment; and $306,841.38 is the amount of the EC Sanctioned Payment. In the Corrigendum, this court amended the PI Award by deducting the Advanced Payment from it, resulting in the sum of $671,690 as the Amended PI Award. By deducting the amount of the Advance Payment from the PI Award, the same result is yielded. Hence, for simplicity, I will use the Amended PI Award for the following discussion.

113.  It was the Employer’s argument that had Piu accepted the EC Sanctioned Payment of $306,841.38 within time, the said amount should have been applied towards the reduction of the amount of the Amended PI Award of $671,690, leaving a balance of $364,848.62[46] ($671,690 - $306,841.38). Hence, Mr Ho suggested that the 2% awarded by this court for the sum of $400,000 for PSLA should be reduced to $364,848.62.

114.  Part two concerns the sums of $428,400 and $36,790 this court respectively awarded for pre-trial loss of earnings and special damages. Based on the same argument in relation to Piu’s failure to accept the EC Sanctioned Payment, Mr Ho submitted that Piu’s entitlement to interest for these two special damages ordered to run to the date of judgment should be shortened to end on the Deadline Date, i.e. 8 August 2017.

115.  Relying on the case of Chiu Sui Ching, the administrator of the estate of Leung Ho Tin, deceased v Cheng Kwai Hung t/a Hang Nagi Works & Ors[47] as the authority he submitted at the hearing, Mr Ho stated that the computation of interest for the various common law awards should only be from the date of the accident to the date of the payment of the employees’ compensation.

J.1.2  Piu’s Stance

116.  Piu did not take any issue as to the jurisdiction of the court to amend/vary interest already awarded in the Judgment. Mr Pirie made two points in submitting that there was no basis for the Employer to vary interest.

117.  First, the set off of any employees’ compensation award and its interest should only be made on the date of judgment.

118.  Second, any set off should be done “type by type”. For example, the amount awarded for s 10 (in the EC Action) should be set off against the award for loss of earnings (in the PI Action); and the amount awarded for s 9 (in the EC Action) should be set off against the general damages awarded in the PI Action.

119.  Since the amendment to §2 was only dealt with almost at the end of the substantive arguments, Mr Pirie had not had the opportunity to submit authorities to support the above two arguments that he advanced at the hearing. I therefore granted leave to Mr Pirie to lodge authorities within 14 days in relation to the amended §2 of the PI Summons (emphasis added).

J.1.3  Mr Pirie’s further submissions and authorities after the hearing

120.  After the hearing, this court received additional authorities and submissions of Mr Pirie lodged by YSYM, Mr Tam’s latest firm, under 3 cover letters dated 27 and 30 June and 11 July 2023.

121.  Enclosed with the 1^st letter is a 5‑page written submissions dated 27 June 2023, and with the 2^nd letter is another 3‑page written submissions dated 28 June 2023 together with 7 authorities.

122.  Since there is no information from the 1^st and 2^nd letters that they had been copied to the Employer’s solicitors, I directed Mr Tam to do so.

123.  In response, Au & Associates stated in their letters dated 10 and 12 July 2023 that the 7 authorities referred to by Mr Pirie, with the exception of one of having marginal relevance, were all beyond the scope of the amended §2 of the PI Summons. They also suggested that this court should ignore all the written submissions as this court had not granted leave for further submissions.

124.  Given the fact that the amendment to §2 was made late at the substantive hearing, I am prepared to take a more lax approach concerning submissions. As the further submissions and authorities were already before this court, I would allow Piu to rely on them.

125.  The contents of the two written submissions attached to the 1^st and the 2^nd letters are identical save that the later written submissions dated 28 June 2023 contain two additional paragraphs §§1.01 IV and 2.02 (vii). It is therefore only necessary to consider the later submissions.

126.  After having considered the submissions and the 7 authorities, I agree with the Employer’s solicitors that the submissions and the authorities are not relevant to the issues of the amended §2.

127.  As a matter of fact, most of the further submissions are no more than a repetition of the submissions Mr Pirie made at the hearing. He repeated that:

(1)  by the operation of ss 25(1) and 26(1), ECO, the liability to pay compensation and common law damages merge on the date of the judgment of the common law action: Mr Pirie’s submissions dated 28 June 2023, §2.02 (i).

(2)  The interest calculations in the amended §2 are illogical as the Amended PI Award was “$206,000” more than the Total Aggregate.

128.  The other part of the submissions concerns adverse costs, and is irrelevant.

129.  Of the 7 authorities Mr Pirie submitted, 4 [48] of them, in my view, bear no relevance to the amended §2. As for the remaining 3 [49] authorities, though they relate to employees’ compensation proceedings and common law actions, they have no direct relevance to the amended §2.

130.  All in all, Mr Pirie advanced no new ground to support his submissions concerning the amended §2.

J.1.4  Discussion

131.  It is trite that the award of interest is discretionary: see Bristow v Judd [1933] PIQR Q117 referred to in Chiu Sui Ching (supra) at §12. In exercising my discretion, I should consider the circumstances surrounding Piu’s failure to accept the EC Sanctioned Payment and Piu’s overall conduct (which will be further elaborated upon in Section J.2 below).

132.  On this issue, I find neither party had provided much assistance to this court. Mr Ho has only submitted one authority in support and Mr Pirie’s authorities and submissions are not helpful.

133.  Since the Employer is the applying party, he would have been required to make good his arguments. Nonetheless, I am not impressed by the Employer’s reason for the application. The case of Chiu Sui Ching (supra) Mr Ho cited in support of the application does not concern the question under discussion as to whether interest for the damages awarded for personal injuries should be reduced owing to a plaintiff’s failure to beat a sanctioned payment. In Chiu Sui Ching, the court, after an assessment of damages of a fatal accident case, was required to decide whether interest for the award on bereavement should be calculated up to the date of the payment of the award for the plaintiff’s employees’ compensation or to the date of the interim payment paid to the plaintiff. It does not relate to the issue under consideration as to whether a court should vary interest for reason of non-acceptance of a sanctioned payment in employees’ compensation proceedings and/or a plaintiff’s conduct in having exaggerated his claim.

134.  Further, it is noted that among the 4 rules the Employer cited in the margin note of the amended PI Summons – O 20, r 11;[50] O 22A, r 1;[51] O 42, r 5B(6)[52] and O 62, r 5 [53] – none concerns variation of interest. In the circumstances, I am not persuaded that the Employer has put forward any reasonable grounds or sound arguments that could lead this court to vary my discretion on interest on account of Piu’s failure to accept the EC Sanctioned Payment and his conduct.

J.2  Variation of costs: §4

135.  The Employer relies on O 62, r 5, Piu’s “dishonest” conduct to support his application to vary the nisi costs order granted by this court in the Judgment. Mr Ho submitted that irrespective of the undisputed fact that Piu had succeeded in beating the PI Sanctioned Payment, the court should still consider whether costs should be varied on account of Piu’s dishonest conduct. In §5(4) of his November 2022 submissions, Mr Ho set out some of the findings by this court that “Piu exaggerated his injuries or that his evidence was unreliable”. Later in the submissions (§19), Mr Ho further submitted that:-

“Piu exaggerated his symptoms and lied to the doctors and also at the Assessment of Damages to inflate his claim. Piu was plainly dishonest, and a lot of time was spent on dealing with Piu’s untrue allegations. In the end, the damages awarded was substantially less than the amount claimed.”

136.  Such conduct, Mr Ho submitted, should be reflected by an appropriate costs order by an order of disallowing Piu’s costs, citing Pak Siu Hin Simon v JV Fitness Limited,[54]Painting v University of Oxford,[55]Yau Wang Ngai v Win Elite International Limited,[56]Pak Sai Ming v JV Fitness Limited[57] and Singh Bal Winder v IWS Waste Management Company Limited formerly known as Fook Woo Waste Paper Company Limited.[58]

137.  Apart from placing much greater emphasis on his allegations against Mr Wong, Piu’s objections and Mr Pirie’s submissions in relation to the costs variation largely overlap with those they have put forward in the EC Summons, which I have already set out in Section I.2 above. They will not be repeated here.

138.  Repeatedly, Piu stressed the fact of him having beaten the PI Sanctioned Payment (on account of the amount of the Total Aggregate). Thus in Tam’s 1^st and 2^nd, Mr Tam kept harping on this point and disclosed the fact that he was right to have advised Piu not to accept the PI Sanctioned Payment because he believed that “the Court would look at the payments in the combined actions as the Employer ... had sought the benefit of a set off provision in the [ECO] and did not have to make 2 payments as one would be set off against the other”: Tam’s 2^nd: §4. He advised Piu not to accept the PI Sanctioned Payment.

139.  Further elaboration was made by Mr Pirie in stating that had Mr Wong not wrongly abandoned Piu’s disabilities in relation to neck and shoulders, the final award would have likely been much higher. It was stated that Piu’s neck and shoulders complaints together with the issue of whether Piu could return to his pre-accident job warranted a trial. Hence, the court should not punish Piu for having chosen to go through a normal judicial process. It was suggested that if one were to look at the matter in the round, that Piu had in fact beaten the Total Aggregate by 1/3. This, Mr Pirie submitted, showed that Piu had not acted unreasonably.

140.  Mr Pirie further contended that O 62, r 5 is not written in stone. The court should look at all the circumstances when considering the conduct, including whether Piu had deceived the court, and whether he had really over-exaggerated the claim. It was stated that whether Piu is the “winning party” can simply be determined by looking at the total amount of the damages he was awarded in the PI Action. The fact that Piu “won some and lost some” should not be a basis for faulting his conduct. He cited the case of Singh Bal Winder v IWS Waste Management Company Limited formerly known as Fook Woo Waste Paper Company Limited,[59] and submitted that Piu in fact did much better than the plaintiff (Winder) in that case. The plaintiff in Singh Bal Winder was only awarded 10% of his pleaded claim for damages. In the case for Piu, the Amended PI Award was almost 50% of the amount ($2,146,153) pleaded in the Statement of Damages before it was revised; and was 30% of the amount ($2,798,443.43) pleaded in the ASOD. Mr Pirie suggested that when Piu’s claim was compared to that of Singh Bal Winder, there was no inflation of the claim. No adverse costs orders should be made against Piu. The court should only punish the behavior of serious malingering and gross exaggeration. The present case is not that type.

141.  Mr Pirie repeated his criticisms of the conduct of the Employer’s solicitors for having allegedly suppressed the pre-trial WP correspondence. It was suggested that the Employer and/or his legal advisers have not come to court with clean hands. The PI Summons was a satellite application, and unnecessary. Thus, the court should consider the conduct of both parties, not only Piu’s conduct alone.

J.2.1  Discussion

J.2.1.1  Legal Principles on court’s discretion on costs

142.  The legal principles governing the court’s exercise of discretion on costs under O 62, r 5(1) set out in the authorities of Mr Ho are not in dispute, and I summarize them below. A court in exercising its discretion as to costs may take into account, among other considerations:-

(1)  any payment of money into court.[60] The fact that a party cannot beat the claim by the sanctioned payment is a factor, but it is not a conclusive factor;[61] and

(2)  the conduct of all the parties,[62] which includes

(a)  whether the successful claimant exaggerated his claim. A dishonest plaintiff who made up personal injuries claim should be penalized by costs on indemnity basis;[63] an intentional and fraudulent exaggeration is an important element;[64] and

(b)  conduct before, as well as during, the proceeding.[65]

J.2.1.2  The Sanctioned Payment and Piu’s conduct

143.  As Piu is a clear winner in the PI Action, this court when deciding its discretion on costs should consider all aspects of conduct, including conduct of negotiations between the parties before trial, and Piu’s conduct at trial.

144.  The WP correspondence exhibited to Tam’s 2^nd, some of which has been discussed in Section I.3 above in relation to the EC Summons, will throw some light on the parties’ conduct in the negotiations.

145.  The analysis of the WP correspondence by this court was done with much difficulty. This is because it was chaotically arranged without proper pagination, and some of the documents in the bundle were incomplete or duplicative. Despite leave having been granted to Piu to adduce Piu’s Affirmation and Tam’s 2^nd, very little of such affirmations has been referred to by Mr Pirie.

146.  After having gone through the bundle of the WP correspondence, I believe that the Employer made the PI Sanctioned Payment with the intention of avoiding further costs being spent on the psychiatric expert evidence. This was because when the PI Sanctioned Payment was made, the court had not yet at that stage granted leave for the adducing of joint psychiatric expert evidence. The parties were still locked in discussions on the indication by Piu of his desire to engage Dr CK Wong as his expert.

147.  According to the WP correspondence set out in §97 above in relation to the EC Summons, Mr Tam’s offer to settle the EC Action was rejected. On 14 September 2021, this court had set down the EC and PI Actions for trial. The parties apparently engaged in mediation on 22 November 2021 but the mediation failed.

148.  After the failed mediation, Au & Associates sent a WP letter dated 23 November 2021 [66] to Mr Tam of HY Leung, offering an extra sum of $300,000 on top of the EC and PI Sanctioned Payments inclusive of costs in full and final settlement of both the EC and PI Actions. (emphasis added).

149.  In a reply letter of 24 November 2021, Mr Tam demanded Au and Associates to “give an explanation on (sic) the sudden and unjustified departure from the last WP offer made by Au & Associates at the conclusion of the mediation conducted on 22.11.2021...”. This appears to be the last WP correspondence before trial.

150.  From the WP correspondence discussed above, it is abundantly clear that costs had been the root cause preventing a settlement. As Piu had not accepted the EC Sanctioned Payment, Piu’s exposure to the costs-risk increased the more time passed. Piu would have likely incurred substantial costs by the time when Mr Tam made the numerous last-minute desperate attempts to settle the EC Action. As a result of Piu’s failure to accept the EC Sanctioned Payment, he is now facing adverse consequences by virtue of the orders that I made on the EC Summons. By acceding to the PI Summons for the same reason on account of Piu’s failure to accept the EC Sanctioned Payment would equate, in my view, to punishing Piu twice. That would not seem to be just.

151.  As for Piu’s conduct, it is important to consider the court’s findings in context. In the Judgment, the evaluation of the evidence of Piu is mixed. While this court was not convinced by certain aspects of Piu’s evidence, there was no finding of dishonesty: Judgment §54. In fact, this court had found that some of Piu’s conflicting evidence might have been likely to have been caused by the conflation of his multiple discomforts and injuries, some of which were accident-related, and some of which were not. As a matter of fact, this court rejected the Employer’s suggestion of Piu’s exaggeration of symptoms (Judgment §81 and §85 in relation to the cardiothoracic complaints Piu made to Dr Cheung), and also found Piu to have not committed any “conscious exaggeration or malingering” in relation to his mental disability: Judgment §116 and §118.

152.  When exercising my discretion, I consider that I should give weight to the fact that Piu had done better in the PI Action. After having taken into account the matters discussed above, I’m not inclined to the view that Piu’s non-acceptance of the EC Sanctioned Payment and his conduct should be weighed against Piu in depriving him of costs.

153.  I therefore reject §4 of the PI Summons.

J.3  Conclusion

154.  For the reasons stated above, §§2 and 4 of the amended PI Summons are dismissed. I grant orders in term of §3 in relation to the payment out of the PI Sanctioned Payment.

K.  Costs of the EC and PI Summonses

155.  From the discussion above, it appears that neither party is a complete winner in the sense that Piu failed in the EC Summons while the Employer failed in the PI Summons. To simplify the matter, I’m inclined to adopt the approach of setting off the costs of these two summonses against each other. Hence, I make an order that there be no order as to costs for each of the summonses save that Piu’s own costs be taxed in accordance with the Legal Aid Regulations.

156.  As statutorily required, I further order that the above costs orders be made on a nisi basis. Any application for variation of the nisi costs orders shall be made within 21 days from the date of the handing down of this Decision instead of the usual 14 days. The orders this court made in the EC Summons would likely impact upon the costs liability of the Director of Legal Aid. Having considered the evidence adduced before this court against the conduct of Mr Wong and the comments I made in various places in this Decision concerning Mr Tam’s conduct and his handling of this case, I grant leave to the Director to apply within 21 days from the date of the handing down of this Decision for wasted costs orders against Mr Wong and Mr Tam. If and when the court receives such an application, it would give directions to enable affected parties to be heard.

157.  I will also ask my clerk to furnish a copy of this Decision to the Director of Legal Aid. In view of the comments that I made about Piu’s assigned solicitor and counsel in this Decision, I request the legal aid counsel to interpret this Decision to Piu personally.

Postscript

158.  From the materials presented to this court in these proceedings, I have grave reservations as to whether the aided person has received proper and competent representation. If the legal team of the aided person – the assigned solicitor, mostly Mr Tam, and counsel, Mr Wong and Mr Pirie – had been nominated by the aided person rather than assigned by the Director of Legal Aid on merit, it certainly epitomizes the grave pitfalls of the existing nomination system. Given the very limited knowledge a lay person has as to the quality of the panel solicitors and barristers, the existing nomination system in allowing an aided person to nominate solicitors and barristers is likely open to abuse by some solicitors and barristers on the Legal Aid panel. The mechanism of nomination should be constantly reviewed.

Mr Nicholas Pirie, instructed by Yu Sun Yau Mak & Lawyers, assigned by the Director of Legal Aid, for the applicant/plaintiff

Mr Leon Ho, instructed by Au & Associates, for the respondent/defendant

DCEC 1082/2017 & DCPI 2318/2017
(Heard Together)

[2022] HKDC 437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1082 OF 2017

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2318 OF 2017

---------------------------

BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  On 18 February 2016, the 59-year old employee (Wong Kwei Piu (“Piu”) of a recycling company, Chow Chi Cheung (“Chow”) trading as Sun Lee Company (“Employer”), fell from a height of 3 meters from a collapsed wooden platform while at work. He sustained injuries to his right chest.

2.  On 17 May and 19 October 2017, Piu, through his former Legal-aid assigned solicitors, Messrs Burke & Co (“Burke”), issued against the Employer respectively an Application for employees’ compensation (“EC Action”) pursuant to the Employees’ Compensation Ordinance[1] and a writ for damages (“PI Action”).

3.  On 24 August and 28 November 2017, interlocutory judgments were entered by consent respectively in the EC and the PI Actions.

4.  Despite the entry of the interlocutory judgments in both Actions at an early stage, the EC Action was not settled but was litigated in tandem with the PI Action all the way to trial. More unsatisfactorily is that it was not until 25 May 2021 when this court expedited the matter directing that the joint psychiatric medical expert report adduced in the PI Action be used in the EC Action could the combined trial of the assessment of quantum of both Actions be set down at the adjourned hearing on 14 September 2021.

5.  By the time of the trial, Piu had changed his Legal-aid solicitors 4 times in both Actions: from Burke to Huen & Partners, then Ellen Au & Co, and lastly to H Y Leung & Co LLP, the present solicitors.

6.  At the trial, Piu was represented by his Legal-Aid assigned counsel, Mr Tim Wong, and the Employer by counsel Mr Maurice Chan who appeared together with counsel, Mr Leon Ho (Mr Chan and Mr Ho are jointly referred to as “Counsels”).

B. A PRELIMINARY MATTER: DISCLOSURE OF AN INTERIM PAYMENT ORDER IN THE EC ACTION

7.  After the conclusion of the assessment hearing and the lodging of the parties’ written submissions, this court accidentally found in the trial bundle[2] Piu’s solicitors had lodged, an interim payment order dated 3 November 2020 of HH Judge Leung (“IP Order”) granted in the EC Action. By the IP Order, the Employer was ordered to pay $100,000 to Piu as an interim payment, which payment was further ordered to be paid out from the sanctioned payment.

8.  Since the provisions of O 22, r 25(2), the Rules of the District Court, prohibit the communication of a sanctioned payment to the trial judge “until all questions of liability and the amount of money to be awarded have been decided”, this court therefore immediately informed the parties of this matter and directed them to lodge written responses. Their attention was particularly drawn to the question of recusal.

9.  In their written responses, the parties urged this court to continue dealing with the EC Action as they believed that no prejudice would be caused by the disclosure of the IP Order.

10.  I agree with the parties’ submissions, and do not consider that a recusal is needed in this case.

11.  A breach of O 22, r 25(2) does not automatically lead to recusal of the trial judge, who retains a discretion in deciding whether the disclosure of a sanctioned payment makes “a fair trial impossible and whether justice demands that he recuse himself”: See Elijah Saatori v Raffles Medical Group (Hong Kong) Ltd.[3]

12.  A pertinent fact of the IP Order is that it has only disclosed the fact of the sanctioned payment but not the amount. Thus, the amount of the sanctioned payment has not been communicated to this court. I am therefore of the view that the fact of a sanctioned payment having been made would have nil prejudicial effect in this trial of the assessment. On the other hand, a recusal would cause substantial incurring of extra costs and yet further delay. Having taken into account the parties’ positions, and most importantly that no prejudice would likely be caused to either party, I therefore consider that the continuation of the assessment of compensation is just in the circumstances.

C. INJURIES AND TREATMENT

13.  Piu’s medical treatment recorded in the medical reports, notes and records were admitted as agreed evidence. The following expert medical reports were ordered to be adduced as evidence without calling the makers:-

(i) The joint orthopaedic expert report of Professor Kumta (engaged by Piu) and Dr Chun Siu Yeung (for the Employer) dated 24 August 2017 (“JOR”);

(ii) The singe joint cardiothoracic surgery expert report of Dr Cheung Hing Chuen Henry (“Dr Cheung”) dated 16 December 2019 (“SJCR”); and

(iii) The joint psychiatric expert report of Dr Wong Chung Kwong (for Piu) (“Dr CK Wong”) and Dr Peter Yu (for the Employer) (“Dr Yu”) dated 16 August 2021 (“JPsyR”).

14.  At the Accident and Emergency Department (“A&E”) of Princess Margaret Hospital (“PMH”) to which Piu was admitted, the doctor found him to have suffered “tenderness over right upper back, abrasions over right thigh”, and fractured right 7^th to 9^th ribs, and was prescribed with analgesics.[4] Upon his discharge from the A&E on the same day, Piu travelled to Shenzhen, Mainland China, and stayed with Ms Zheng, his then girlfriend.

15.  On 10 April 2016, Dr Thomas Leung, whom Piu had consulted as from 24 February 2016, found from the X-ray he carried out on Piu the presence of pleural effusion at Piu’s fractured right ribs. Piu was then referred to the Department of Surgery of PMH.[5] After Piu was admitted there the next day, he was hospitalized for 4 days for pleural tapping.

16.  On 13 May 2016, Piu was examined by Dr Peter Tio, the orthopaedic doctor appointed by the Employer’s insurer. The X-ray conducted on that day showed “residual effusion and healing ribs fractures”. Dr Tio found Piu had localised pain at the right lower ribs with good air entry and full range of motion. He opined that Piu had made an overall improvement of over 50%.[6]

17.  On 22 July 2016, Piu was examined by Dr David Cheng (a specialist in orthopaedics & traumatology) engaged by the Employer’s insurer. Dr Cheng found that Piu had full chest expansion with normal air entry. The X-ray revealed that the pleural effusion had largely regressed, and that the 7^th to 9^th right rib fractures had healed satisfactorily. However, complaint of shortness of breath during severe exertion was reported.[7]

18.  Between 20 May and 19 August 2016, Piu had altogether received 13 private physiotherapy treatments at Allied Health Rehabilitation Centre.[8] The private physiotherapist reported that Piu was found to have subjective pain when carrying a heavy load but objectively, the swelling, tenderness and pain around the fracture site was found to have been reduced.

19.  On 12 September 2016, Dr Yeung Man (“Dr Yeung”) of Sunshine Medical Centre, the private doctor Piu consulted for his alleged persistent pain on his chest wall, referred Piu to the pain clinic of PMH.[9]

20.  From 14 September to 19 October 2016, Piu received occupational therapy services at the Occupational Therapy Department of PMH. At the work rehabilitation assessment on 14 September 2016, Piu’s “Overall Matching of Work Demand & Current Capacity” was recorded as “Not match, with significant degree of limitation”. The same findings were recorded for the assessment on 19 October 2016.[10] Piu’s overall work capacity was stated to be not-matched with his pre-accident job, and he was advised to change job with lesser physical demand.[11]

21.  On 2 June 2017, Piu attended a review assessment by the Employees’ Compensation (Ordinary Assessment) Board (“MAB”). In the certificate of review in the prescribed Form 9 (“Form 9”) issued on 16 June 2017, Piu’s injuries were stated to be “fracture of right 7-9^th ribs resulting in right chest wall and neck residual pain”. The MAB assessed the permanent percentage loss of earning capacity (“LOE”) at 1.5%; and entitlement of 3 periods of absence from duty, totalling 429 days:-

(i) from 18 February to 2 March 2016;

(ii) from 17 March to 10 August 2016; and

(iii) from 8 September 2016 to 2 June 2017.

22.  On 28 July 2017, the joint orthopaedic experts examined Piu and found that his fractures at the right 6^th to 8^th ribs had healed and reached maximal medical improvement. They did not find Piu’s neck pain that he complained of was related to the accident. They opined that the reasonable sick leave periods should only be limited to periods (i) and (ii) stated in the Form 9 above. They opined that Piu was fit to return to his pre-accident employment, and that he suffered 1% LOE.[12]

23.  On 7 February 2018, Piu was referred to the Department of Anaesthesiology of PMH for his “left neck and shoulder pain”.[13] Piu altogether received 3 trigger point injections on 29 March 2018,[14] 13 December 2018[15] and 6 June 2019.[16]

24.  From 3 April to 25 June 2018, Piu had another round of physiotherapy treatments at PMH.

25.  On 18 April 2019, a CT scan of Piu’s thorax at St Teresa’s Hospital was conducted. In the report of the said CT scan (“Teresa Scan”), old healed fractures of the right 6^th through to 12^th ribs[17] were reported.

26.  On 19 June 2019, upon the referral by Dr Yeung, Piu privately consulted Dr Clarence Lee (“Dr Clarence Lee”), a specialist in respiratory medicine. Dr Clarence Lee referred Piu to the government’s SKC Psychiatric Specialist Clinic after he diagnosed Piu with having “depressive symptoms with chronic insomnia, vague suicidal thoughts and financial constraints”.[18]

27.  On 21 October 2019, Piu was examined by the cardiothoracic surgery expert, Dr Cheung. In the SJCR, Dr Cheung opined that Piu’s complaint of chest wall pain was a direct result of the accident but the pain he had complained of was disproportionate. However, he did not find that Piu’s complaints of neck and shoulder pain and shortness of breath were related to the accident.

28.  Dr Cheung believed that Piu’s reported symptoms were not exaggerated but were more due to his severe distress than the result of exaggeration or malingering. He agreed with the observations by Dr Clarence Lee that Piu’s subjective pain complaints might have been psychosomatically related, and recommended him to seek psychiatric consultations.

29.  On 23 March 2020, Piu received psychiatric treatment from the government’s West Kowloon Psychiatric Centre (“WKPC”) of Kwai Chung Hospital. Since then and throughout 2021, Piu had been regularly followed up there at intervals of about 2 to 3 months.[19]

30.  Whilst seeking treatment from WKPC, Piu also concurrently sought private psychiatric treatment. On 21 May 2020, he consulted a private psychiatrist, Dr Yan, and later Dr Tsang Fan Kwong (“Dr Tsang”) on 25 May, 1, 8, and 19 June 2020, and from October to December 2020. Dr Tsang diagnosed Piu with having suffered from Major Depressive Disorder (“MDD”).[20]

31.  On 23 June 2021, Piu was jointly examined by the psychiatric experts, who diagnosed Piu with having suffered from a mild degree of MDD.

D. THE WITNESSES

32.  There were altogether three witnesses who testified at this combined trial: Piu himself and his 2^nd wife, Ms Zheng; and Chow of the Employer. All the 3 witness statements of Piu,[21] and each of the witness statements of Ms Zheng and Chow were ordered to stand as evidence-in-chief.

D.1 Piu’s evidence

33.  Piu was born on 6 August 1956, and is now 65. At the time of the accident, he was getting divorced from his 1^st wife. Before Piu got married to Ms Zheng in September 2018, Ms Zheng lived in Shenzhen with the couple’s 6-year-old son.

34.  Piu stated that he was greatly affected by the injuries he sustained from the accident. He became easily irritable as a result of his worries about his health and financial matters. In the beginning of 2018, Piu and Ms Zheng briefly broke up before they made up and later got married in Hong Kong.

35.  Piu had a long-standing employment relationship with the Employer going back to 1982. After several years working for the Employer, Piu left the employment but re-joined it in 1995. Since then he had continuously been working for the Employer until he met the accident. Piu stated[22] that before the accident, he was paid $18,000 basic monthly salary. In addition, he also received double pay of $18,000, and a bonus of $10,000 if the Employer made profit. In his oral testimony, Piu further stated that shortly before the Chinese New Year on 8 February 2016, he had received on 30 January 2016 one-month’s double pay and $10,000 bonus. Piu therefore claimed that his monthly average earnings before the accident were $20,000.

36.  Piu stated that after the accident, he could only do less physically demanding jobs such as to work as a security guard. In May 2017, he had in fact obtained a Category “A” and “B” security guard permit.[23] After the accident, he had also worked part-time as a packing worker of kitchen accessories for a friend, Mr Hui. He worked 5 hours a day at $40 per hour until Hui’s factory was closed down in 2018.[24]

37.  In October 2017, Piu had requested Chow to let him resume employment doing lighter duties. Piu said that when Chow turned down his request, he felt very pained.

38.  Piu testified under cross-examination that towards the end of 2020, he had worked for “Chan Keung” (陳強) for 1 or 2 days, sorting out rubbish. He stated that he could handle the job because it was largely automated. There was no fixed payment, and he could not recall how much he had received. He remembered having been paid $700 and at times instead of payment, he was given presents.

39.  Upon further probing by counsel, Mr Chan, on the total number of days he worked, Piu stated that due to the influence of the psychiatric medications, his memories were hazy (“懵懵懂懂”) and he could not be sure. He was however adamant that it would not have been 4 months as Mr Chan suggested.

40.  Upon questioning by this court, Piu stated that he had probably received from Chan Keung altogether $5,000 to $6,000.

41.  Piu said that the accident had affected him physically and emotionally. He did not accept that his neck and shoulder pain was not related to the accident. Piu stated that had the accident not happened, he would have been able to get a full-time job such as a security guard. He was living on social benefits.[25]

D.2 Ms Zheng’s evidence

42.  Ms Zheng was a PRC resident. She met Piu before he divorced his first wife. After she gave birth to their son, she worked as a part-time sales girl earning about RMB$2,000 per month. She stated that after Piu’s accident, she no longer worked but stayed home to look after Piu and the son. Ms Zheng also stated that Piu could not sleep well, and his mood had completely changed. Piu’s temper became so bad that she had briefly left Piu in the beginning of 2018 before they made up and got married later in the same year.

43.  She stated that Piu’s mood had affected their marital relationship.

D.3 Chow’s evidence

44.  Chow is one of the partners of the Employer. At the time of the trial, he was 71. His other partner called Cheng Shu Li (transliteration) was 73, who Chow stated that had only come back to work occasionally. Chow testified that he used to be closely involved (“親力親為”) with heavy-duty work (“粗重嘢”). However, due to his age, he only had helped out by doing lighter duties in the past 1 or 2 years. However, his long-standing employees, such as “Chan Ho Keung” (transliteration) and “Black-boy Ming (黑仔明)” were only in their 50s.

45.  Chow testified that the nature of the Employer’s re-cycling business roughly involved the collection of re-cycled materials which needed to be weighed once they were collected. Unless the materials were light weighing about 2 to 3 kg, they were mainly recycled by machines. The collected waste paper would be compressed to paper bundles weighing about 300 to 400 kg. These compressed paper would be taken to a push cart which would be pushed by 1 or 2 workers.

46.  Chow accepted that Piu was a good worker during the many years he worked for him. Piu’s duties prior to the accident included collecting, weighing, dismantling, and compressing recycled materials which were mainly metal, copper pipes, machines, clothes, paper and plastic. Occasionally, he needed to drive a 5.5-ton truck to deliver the recycled metals to a factory for sale.

47.  As for Piu’s pre-accident earnings, Chow stated that Piu was never paid double pay, but would sometimes be paid bonuses ranging from several thousand to $10,000 or a bit more before the Chinese New Year.

48.  Chow stated that when Piu requested, in October 2017, the resumption of the employment, he told Piu that he needed to discuss this with his partner before giving him a reply within one month. Chow said that as he and his partner were concerned with Piu’s litigations against them in relation to the accident, they had decided not to accede to Piu’s request. Chow also stated that Piu then told him that he had decided not to come back to work for him. Chow said he then believed that Piu had resigned, assuming that he would find other work as he had already got a security guard permit.

E. OTHER EVIDENCE

49.  The Employer had engaged Verity Consulting Limited (“Verity”), an investigation company, to conduct surveillance on Piu. The Employer disclosed in the Supplemental List of Documents filed on 8 May 2020 Verity’s Surveillance Reports dated 11 August 2016 (covering surveillances on 25 and 26 April, 21 May and 22 July 2016); 6 April 2017 (covering surveillances on 27 October 2016, 2 February and 2 March 2017); and 25 August 2017 (covering surveillances between May and August 2017).

50.  The surveillances mainly concerned Piu’s physical activities – going out and about, walking up and down the stairs without holding any handrail for more than 30 minutes[26] on some occasions.

51.  The relevancy of the surveillance evidence however has been overtaken by the event of Piu’s abandonment of, at the beginning of the trial, the part of his pleaded case in relation to neck and shoulder complaints and disabilities. With Mr Wong’s further confirmation that Piu’s claim was not based on walking disabilities or physical mobility, I am of the view that the probative value of the surveillance evidence had substantially negated. There is therefore no need to further elaborate on this evidence.

F. ISSUES AND THE EVALUATION OF EVIDENCE

52.  Apart from an agreed amount of $193,500[27] that Piu received as an advance payment, almost every single issue in these proceedings was vigorously contested throughout.

53.  It is trite that when assessing the overall truthfulness of a witness, this court should, apart from observing the demeanour of a witness, also take into account all the undisputed or indisputable evidence (documentary or otherwise).[28]

54.  Overall, I am most impressed by Chow, whom I have found to be a completely honest witness, and I accept his evidence. As for Piu, I have reservations as to the truthfulness of his evidence. Whilst I will refrain from stating categorically that he was a dishonest witness, I have however found that some of the material parts of the evidence were not corroborated, and tended to have been either exaggerated or not credible. Hence, should there be any differences of evidence between Piu and Chow, I prefer Chow’s.

55.  Ms Zheng’s evidence on Piu’s medical treatment is largely hearsay, and I place no weight on it. Her evidence about Piu’s mood is substantially similar to that stated by Piu. I find this part of the evidence credible as it is supported by the medical expert evidence. I accept it.

G. FINDINGS ON INJURIES

56.  According to the medical treatment summarized in Section C above, Piu’s symptoms and complaints were mainly pain and discomfort on his chest, neck and shoulders; shortness of breath; and depression. Since the complaints in relation to neck and shoulders were abandoned at trial, Piu’s pleaded disabilities according to the Amended Re-Revised Statement of Damages (“ASOD”) filed on 11 January 2022 are:-

(i) Pain over the right chest wall, which was aggravated by prolonged walking for over 30 minutes, sleeping on the right side, lifting heavy object of more than 30 kg for 8-10 minutes: §2(3)(a);

(ii) Shortness of breath on exertion with tolerance limited to 3 to 4 minutes of walking on slope: §2(3)(b);

(iii) Difficulty with straight arm lifting: §2(3)(g); and

(iv) MDD.

57.  The pleaded disabilities therefore consist of orthopaedic, cardiothoracic and psychiatric injuries, which will be discussed in turn below.

G.1 Orthopaedic injuries

58.  There is little dispute that Piu had suffered fractured ribs on the right side, which were complicated by pleural effusion.

59.  What is in dispute is the number of ribs that had been fractured and the location. In the medical note of the A&E of PMH (see §14 above), the fractured ribs were stated to have been the 7^th to 9^th ribs. However, in the JOR, they were only confined to the 6^th to 8^th ribs: JOR §§62 and 78.[29]

60.  Yet, in the Teresa Scan, there is a reference to old “healed fractures to the right 6^th through to 12 ribs”.[30]

61.  Accordingly, the number of the fractured ribs is the same (3 ribs) for both the A&E report and the JOR, and they only differ in location. On the other hand, the number of the fractured ribs reported by the Teresa Scan is double the number of either of the A&E report or the JOR, and also covers a much bigger area of the rib cage. Piu sought to rely on the Teresa Scan while the Employer contended that the finding in the JOR should be preferred.

62.  In my view, the most important matter in this assessment is to determine the totality of the impact the rib fractures had on Piu and the extent of the disabilities resulting from them. Hence, the disputes on the number and the location of the fractured ribs are not material.

63.  Nonetheless, I believe that the Teresa Scan is more accurate as it is the most recent examination. Based on the result of the Teresa Scan, I’d be inclined to find that the fractured ribs were the 6^th to 12^th ribs. I believe that the doctor in PMH, the orthopaedic experts, and even Dr David Cheng engaged by the insurer (see § 17 above) might have missed out the hairline cracks on the X-rays due to the reason stated by Dr Cheung in the SJCR that “the undetected fractures were hairline cracks and not displaced, so that it may easily be missed on a simple PA film. Delayed bleeding after rib fractures is not uncommon”.[31]

64.  A discussion of Piu’s injuries should begin with the results of the examinations carried out by Dr Peter Tio in May 2016 and Dr David Cheng in July 2016 (see §§16-17 above). By that time, Piu had already been discharged from PMH for pleural tapping. According to Dr Tio’s report, I find that in May 2016 Piu had not yet completely recovered from the injuries of the fractured ribs. However, his condition two months later was markedly different. By July 2016, the X-ray examination result, according to the medical report of Dr David Cheng,[32] shows that the fractured ribs were already satisfactorily healed. I believe that when Piu was examined by the orthopaedic experts one year later in July 2017, Piu’s residual symptoms caused by the fractured ribs were likely to have been diminished.

65.  In the circumstances, I agree with the findings made by Professor Kumta and Dr Chun in the JOR at §84 that Piu had recovered well from his chest injury. At that time, Piu’s neck pain he allegedly experienced 4-5 months after the accident was already noted but it was opined to have been not related to the accident. They were therefore correct in excluding the said complaint when providing their opinions. Having considered Piu’s abandonment of the shoulder and neck complaints, and the medical evidence discussed above, I consider that the joint opinion of the orthopaedic experts is reasonably held and accept their opinion. I adopt the opinion of the orthopaedic experts and find that Piu was able to return to his pre-accident job. The sick leave periods in the total number of 161 days[33] were reasonable; and the LOE to be 1%. Since the ending date for sick leave period (ii) (see §21 above) was 10 August 2016, it is almost 6 months as conceded by Counsels for the Employer.

G.2 Cardiothoracic injuries

G.2.1 Admissibility of the evidence of the cardiothoracic surgery expert

66.  Dr Cheung was jointly engaged by the parties to examine Piu’s cardiothoracic condition which Piu alleged to have developed after the accident.[34]

67.  Before discussing the findings and opinions of Dr Cheung, it is necessary to firstly deal with the contentions raised by Counsels in their closing submissions (at §33) about the admissibility of Dr Cheung’s opinion. It was contended that since Dr Cheung’s expertise was only in the field relating to lungs, he was not qualified to give an opinion on a chest injury, the injury Piu had.

68.  Mr Wong asked this court not to accept Counsels’ contentions[35] and submitted that Dr Cheung’s expertise included the areas on heart and chest.

69.  I am puzzled by these contentions on admissibility, especially when they were only raised at the late stage of Counsels’ closing submissions. It should be noted that as early as 3 September 2019, Master Peony Wong granted leave to the parties to adduce cardiothoracic evidence at trial and to instruct Dr Cheung of “Cardiothoracic Surgery specialist and an expert to be nominated by the Defendant [(the Employer)] to conduct a joint medical examination on the Plaintiff [(Piu)]”.[36]

70.  Further, by the order of this court dated 14 September 2021, when setting both of these Actions down for trial, I ordered, among others, that the SJCR compiled by Dr Cheung be adduced as evidence without calling Dr Cheung.[37]

71.  In light of the orders that I have referred to above, the issue of admissibility is effectively all water under the bridge. Notably, from the order dated 3 September 2019 made by the Master, Dr Cheung was in fact instructed by the Employer. Hence, I believe that the Employer would have been satisfied with the expertise of Dr Cheung when doing the nomination. I find it wholly inexplicable that Counsels would have seen it fit to advance the objections in their closing submissions. According to the declaration Dr Cheung signed in the SJCR, he declared that his report and medical opinion were provided in his capacity as a “specialist in cardiac and thoracic surgery”.[38] I therefore agree with Mr Wong’s submissions that Dr Cheung has medical expertise in the field relating to heart and chest. I hold that the evidence of Dr Cheung is admissible.

G.2.2 Dr Cheung’s findings and opinions

72.  Piu was examined by Dr Cheung on 21 October 2019, more than 3 years after the accident. Upon examination, Dr Cheung found that Piu’s fractured ribs were well healed without any impairment on his lung functions.[39] In the SJCR, Dr Cheung noted 4 items of complaints mentioned by Piu at the examination, namely:-

(i) right chest wall pain;

(ii) left neck and shoulder pain;

(iii) shortness of breath on exertion; and

(iv) insomnia.

73.  As Piu has already withdrawn his complaints in relation to neck and shoulder pain, item (ii) is no longer relevant. The only relevant items are therefore (i) right chest wall pain, (iii) shortness of breath on exertion; and (iv) insomnia. Items (i) and (iii) are cardiothoracic injuries, which Dr Cheung documented extensively.[40]

74.  For item (i), right chest wall pain, it was reported that Piu still complained bitterly of diffuse and severe pain over the entire right chest wall after standing for less than 30 minutes or sitting for an hour or two. Piu told Dr Cheung that the pain had affected his sleep, and he constantly felt tired. As a result, he was not able to do any kind of work.

75.  For item (iii), shortness of breath on exertion, Piu told Dr Cheung that he needed to stop and rest for a while before he could reach his home on the 5^th floor. For item (iv), Piu claimed that he could only sleep for 3-4 hours every night.

76.  In his examination, apart from some mild diffuse tenderness at the right side of the chest wall around the 4^th to 9^th ribs, Dr Cheung could not find any abnormalities[41] either on Piu’s chest walls or the respiratory system. He opined that only the complaint of pain on the right chest wall was a direct result of the accident, but not the shortness of breath: SJCR at §7. Dr Cheung found that the pain Piu still complained of was disproportionate to the actual physical injuries caused by the accident, and therefore believed that it was likely related to psychosomatic disorder.

77.  Hence, Dr Cheung opined that the permanent disability caused by the accident was the fractured ribs resulting in chest pain: SJCR at §16. Nonetheless, the combination of the chest wall pain (related to the accident) and Piu’s other neck and shoulder problems (not related to the accident) led Dr Cheung to opine that Piu would be unlikely to be able to resume any manual labour: SJCR at §8. Dr Cheung took the view that Piu’s sick leave should cover the period when he was still under active treatment, which was up till mid-2019: SJCR at §13. The LOE was opined to be at 5%: SJCR at §17.

G.2.3 Discussion

G.2.3.1 Dr Cheung’s conclusions on sick leave and % LOE rejected

78.  Counsels for the Employer asked this court to reject Dr Cheung’s opinion that Piu was unable to resume work. They stated that since Dr Cheung formed his opinion on the basis of Piu’s alleged orthopaedic and psychiatric conditions, but not cardiothoracic conditions, his opinion was therefore flawed.

79.  Counsels also suggested that Dr Cheung had failed to have regard to Piu’s exaggeration of symptoms when arriving at his conclusions. They stated that the intensity of the chest wall pain Dr Cheung recorded at the SJCR was shown to have been more than the time when he was examined by Dr Chun and Professor Kumta. This, Counsels contended, was a clear sign of exaggeration and fabrication of symptoms that Dr Cheung had failed to take into account.

80.  Since Dr Cheung had reviewed a large number of medical records and notes before examining Piu, I believe that he was in the best position to evaluate the genuineness of Piu’s symptoms. I find that Dr Cheung had taken great care to review Piu’s medical records. His prudent approach can be seen from the discerning decision in not repeating another CT thorax scan after a relatively recent Teresa Scan and the scan by Hong Kong Health Check & Medical Diagnostic Group Limited in June 2019. I also note that he had carefully discerned the issue of the disproportionality of Piu’s chest wall pain complaint to the injury that he had suffered. All in all, I am satisfied that Dr Cheung was acutely alive to the inherent risk of symptom exaggeration and the issue of malingering, which can be evidenced by the observations he set out at the concluding paragraph of the SJCR (§19):-

“I conducted a long interview with the patient and also secretly observed him while he was in the waiting room. I sincerely believe that the Plaintiff [(Piu)] is distressed and showed no signs of malingering or exaggeration of his alleged symptoms.”

81.  For these reasons, I accept Dr Cheung’s conclusion on the question of exaggeration that Piu’s complaints to him were genuine, but nonetheless reject his opinions in relation to sick leave and the percentage of LOE for the following reasons.

82.  As stated in §76 above, apart from the residual chest wall pain, Dr Cheung had not found any other symptoms or complaints that were related to the accident. Dr Cheung also found that the fractured ribs had healed after the resolution of the effusion in April 2016, and that “well healed multiple rib fractures” did not cause “obstructive airway diseases”: SJCR at §2. Thus, I find his opinion that Piu’s sick leave should be up till mid-2019 when he was under ongoing treatment clearly cannot be supported by these findings. I believe that his conclusion had likely been substantially influenced by Piu’s other complaints unrelated to the accident including shoulder and neck pain. Since Dr Cheung had not excluded the unrelated symptoms when providing his opinion in relation to Piu’s ability to resume work, the percentage of LOE of 5% and the sick leave period, I cannot accept his opinion in relation to these matters.

G.2.3.2 Court’s assessment of the reasonable sick leave and % LOE?

83.  In assessing the reasonable sick leave and the appropriate percentage of LOE, I need to examine all the evidence.

84.  As outlined in Section C above, since the accident, Piu has been receiving medical treatment involving multiple medical issues. The medical records show that several months after the accident, Piu also received treatment for the neck and shoulder problems, which Mr Wong had conceded only at the trial as not being related to the accident. As a result of the late concession, the medical evidence and Piu’s evidence adduced in the trial were bound up with evidence not just relating to the chest injuries (fractured ribs) caused by the accident, but also to other non-accident related medical issues.

85.  A massive conflation of evidence is therefore evident throughout this trial. I find Piu had a high tendency to attribute almost all of his alleged discomfort to the accident. The number of disabilities that Piu narrated in the 1^st Witness Statement of June 2017 (at §§11 & 79) is a good illustration of such tendency. In it, Piu alleged that he suffered injuries to his “neck, ribs, lungs and internal injury and also [his] back” with disabilities to his right ribs, problems with lungs, pain in the neck, problems with eyesight in his left eye, and the slight numbness in the right arm and hand. Apart from the ribs, and perhaps the lungs which might have been relevant to the accident, the other complaints are plainly unrelated or unsupported by the consultation notes from PMH to be discussed in §§86-87 below before he gave the 1^st Witness Statement.

86.  According to the medical notes of PMH[42] on 11 August, 8 September, 24 November and 22 December 2016; and 2 February and 2 March 2017, not only do they not support Piu’s complaints of problems with eyesight or numbness in the right arm and hand as stated in the 1^st Witness Statement, they show that the chest pain (caused by the fractured ribs) was improved and mild. The treatment Piu was provided during this time was largely related to his more serious complaints of back and neck pain. Notably at the consultation on 24 November 2016, Piu complained of “persistent right back pain and neck pain” and “pain on extension of neck” alongside with pain “over left posterior neck and posterior right chest wall”.[43]

87.  As evidenced by the consultation records on 22 December 2016[44] and 2 February 2017,[45] I find that Piu’s residual chest wall pain and tenderness would have substantially diminished by January 2017 at the latest. This is because by 2 February 2017 and afterwards,[46] the recorded complaints in the consultation notes were mainly relating to back and neck issues.

88.  The conclusion I reach above is further supported by Dr Cheung’s observations that Piu’s complaints of chest wall pain was disproportionate to the ribs injury, and he believed that they were more likely attributable to psychosomatic problems rather than cardiothoracic issues. Hence, I find that by January 2017, Piu’s ongoing treatment was unlikely to have been related either to orthopaedic or cardiothoracic symptoms but to some other symptoms relating to neck, shoulders and back and the psychosomatic issue, which later developed.

89.  As clearly reflected in the 1^st Witness Statement, Piu, probably due to the pain and discomfort caused by a host of medical conditions (which are largely unrelated to the accident), appeared to have not been able to discern the causes for the various symptoms that he experienced, and therefore had the tendency to conflate them. In fact, Piu in his testimony still insisted that his neck and shoulder pain was caused by the accident notwithstanding the abandonment of these complaints from his case. From an examination of the medical evidence discussed above, I believe that the 3 shots of trigger point injections Piu received at the Pain Clinic were most likely in relation to his neck and shoulder pain rather than symptoms related to the accident (see §23 above). Thus, when Piu was examined by Dr Cheung, the pain he exhibited was probably genuine, but it was (as Dr Cheung has found) mostly unrelated to the chest.

90.  At the trial, I found Piu’s tendency of conflation persisted. I do not believe that it was true when he stated in his testimony that he still felt pain on the ribs and the chest and that he had low breathing capacity (“唔夠氣”). The medical records discussed above simply do not support this.

91.  For the reasons stated above, I find that Piu’s ongoing complaints of pain and the medical treatment after January 2017 are unlikely to have been related to orthopaedic or cardiothoracic symptoms. Accordingly, his sick leave for his residual chest pain should be up till January 2017 (see §87 above), with the first 6 months overlapping with the sick leave that I have allowed for orthopaedic disabilities.

92.  As for the LOE, the medical evidence clearly shows that the fractured ribs had healed by April 2016, with little impairment on Piu’s lung functions. Dr David Cheng’s examination on 22 July 2016 (see §17 above ) , and the findings of the treating doctor at PMH on 11 August 2016[47] both confirm that Piu’s air entry was found to be normal. After having considered the JOR and the SJCR, I am clearly of the view that Piu’s orthopaedic and cardiothoracic disabilities caused by the fractured ribs in fact overlapped. In the absence of any evidence that the cardiothoracic injuries have affected his earning capacity beyond the time after rib-fractures had healed, I do not think that Piu has suffered any additional LOE over and above the percentage that has been found by the orthopaedic experts. I do not find Piu suffered any additional LOE in connection with cardiothoracic disabilities.

93.  In conclusion, based on my finding in §91 above, I assess Piu’s reasonable sick leave up till January 2017, and for assessment purpose up to 17 January 2017.

G.3 Psychiatric injuries

G.3.1 The JPsyR

94.  Piu’s psychiatric treatment and the diagnosis of MDD have already been discussed above (see §§26-31 above). The psychiatric experts jointly opined that as a result of the accident, Piu suffered and would continue to suffer from a mild degree of MDD on a long-term basis.[48] They opined that Piu had received appropriate and effective psychiatric treatment by Dr Tsang, and Piu had reached maximal medical improvement: JPsyR at §§89 and 99-100.

95.  The experts however differ in their opinions in relation to sick leave periods; Piu’s ability to resume work; and the percentage of LOE. For sick leave, Dr CK Wong opined a period of 12 months from 25 November 2019 to 24 November 2020, which was 6 months before and 6 months after Piu was first treated by Dr Tsang on 25 May 2020: JPsyR at §103.

96.  On the other hand, Dr Yu recommended sick leave of 6 months from 23 December 2019 to 22 June 2020, which was 3 months before and 3 months after the first attendance at WKPC on 23 March 2020: JPsyR at §106(c).

97.  As for the possibility of Piu to resume employment, Dr CK Wong remarked that due to the number of challenging stressors that Piu faced, his prognosis was guarded. Piu would continue to suffer from a mild degree of MDD despite the end of the litigation. He opined that Piu’s LOE caused by the MDD was 5%: JPsyR at §104. Dr Yu however opined that Piu was able to return to his pre-accident job despite suffering from a mild degree of MDD on a long-term basis. He assessed the LOE at 3%: JPsyR at §106(d).

98.  As for future treatment, Dr CK Wong recommended Piu to continue with psychiatric treatment by Dr Tsang for one year after the litigation: JPsyR at §§109-110; while Dr Yu did not believe private treatment was required, and Piu should continue with the treatment at WKPC which had provided Piu with appropriate and effective treatment since March 2020: JPsyR at §111.

G.3.2 Was the finding of MDD reliable?

99.  Counsels for the Employer contended that the findings of MDD by the psychiatric experts are unreliable.[49] It was suggested that the experts’ adoption of the psychiatric diagnostic manual “DSM-5”[50] was not a reliable methodology as it was largely based on the subjective mental state of Piu, who was prone to gross exaggeration.

100.  These contentions can be quickly disposed of as I find Counsels’ submissions are only bare assertions without any merits. The medical evidence adduced before this court overwhelmingly shows that Piu was diagnosed as having suffered from MDD. The diagnostic manual DSM-5 is commonly used in the field of psychiatry for assessing mental related diseases. Counsels were unable to refer to any evidence that provides for a more reliable or preferable methodology of assessment to support their arguments. As a matter of fact, I find little disagreement between the experts on the diagnosis. I also do not think Counsels were seriously disputing the diagnosis. Their real contention, in my view, is rather on the issue of causation to which issue I will next discuss.

101.  To conclude, I accept the experts’ diagnosis and find Piu suffered from MDD.

G.3.3 Was the MDD caused by the accident?

G.3.3.1 The arguments

102.  Apart from the diagnosis, Counsels for the Employer also challenged the reliability of the experts’ opinion that Piu’s MDD was caused by the accident. They stated that the experts’ attribution to Piu’s physical injuries and the 5 stressors[51] stated in the JPsyR (at §88) as the sufficient causes of Piu’s development of MDD was flawed.

103.  Counsels stated that when Piu was examined by the orthopaedic experts in 2017, his prognosis was already satisfactory. They contended that since the examination by the joint psychiatrists took place more than 3 years after the examination by the orthopaedic experts, Piu’s physical injuries and symptoms must have been resolved. They therefore suggested the experts’ conclusion on causation was problematic.

104.  Apart from contending that the physical injuries as being insufficient to support the experts’ opinion on causation, Counsels also argued that Dr CK Wong’s reliance on the 5 stressors was based on “false premises”. They criticized that the stressors were either untrue (such as financial stress) or lack sufficient connection with the MDD (such as the stressors in relation to Piu’s worries about future livelihood and litigation).

105.  Counsels also contended that one of the stressors, the litigation stress, should not be accepted as an attributable factor to Piu’s development of MDD: Hung Sau Fung v Lai Ping Wai & Anor.[52] Relying on a passage (§64) in Hung Sau Fung, Counsels stated that a tortfeasor will only be liable if a claimant has adopted an abnormal sick role in not getting proper treatment when a defendant has prolonged resistance to a rightful claim. It was suggested that in this case there was absolutely no resistance to Piu’s claim as the Employer admitted liability very early on.

106.  Counsels also referred to a Canadian case of Leblanc v London Life Insurance Co,[53] a judgment of the Superior Court of Justice in Ontario, in suggesting that the litigation stress that experts have included as one of the causative factors should be excluded as part of the vicissitudes of life.

107.  Mr Wong submitted that a positive prognosis made by the orthopaedic experts was a separate matter and it had nothing to do with the ongoing litigation anxiety Piu suffered as a result of the accident, leading to the development of Piu’s MDD. A relapse of a psychiatric condition as a result of anxiety generated by ongoing litigation could be regarded as a new cause related to the tort: see Lai Yuk Shim v Hung Ling Kwok (Practice Note),[54] at §§7-8.

108.  Mr Wong submitted that Counsels’ arguments were not supported by any expert opinion, and that their contentions about litigation stress were therefore clearly untenable in light of the remarks made by Bharwaney J in Lai Yuk Shim (supra) referred to above.

G.3.3.2 Findings

G.3.3.2.1 Causation

109.  I have found above that Piu had suffered pain caused by a host of medical issues. As I have already referred to Dr Cheung’s observation regarding the lack of signs of malingering, I have no basis to believe that Piu’s symptoms he complained of were not genuine. Hence, I find that the experts’ evaluation was based on genuine physical symptoms.

110.  A tortfeasor must take his victim as he finds him. If the physical or psychological symptoms of a victim are in the nature of “unconscious exaggeration” (unintended, which may relate to a recognized psychiatric disorder) as opposed to “conscious exaggeration or malingering” (which involves deliberate feigning or exaggeration of injuries), a tortfeasor will be liable for the full consequences from the accident, albeit that they are wholly unexpected and unforeseen.[55]

111.  The court went on to state that if it is found that a genuine complaint by the patient and one for which there is no organic basis, it should not be regarded as deliberate malingering and deliberate dishonest exaggeration. It is a condition called “functional overlay”, a concept elaborated in Digby v Essex County Council [1994] PIQR P53 referred to by Bharwaney J in Hung Sau Fung at §58.

112.  The court in Leblanc (supra) excluded the claimant’s mental stress associated with the litigation process in assessing damages and as an attributable factor to the illness for her claim for disability benefits. The Canadian court took the view that mental stress “is inherent in any dispute that cannot be resolved by the parties without the intervention of a court”.[56]

113.  I do not find Leblanc advances Counsels’ arguments. Quite apart from the fact that I do not think this case binds this court, litigation stress that Leblanc excluded only belongs to 1 of the 5 stressors Dr CK Wong identified in the JPsyR, in addition to physical injuries he opined as also one of the constituting causes of Piu’s MDD (see f/n 51). According to the JPsyR, the experts opined that Piu’s development of MDD was not caused by one isolating stressor of litigation stress, but by a number of stressors that were inflicted on Piu as a result of the accident.

114.  After having considered the medical evidence, I find that the views of the psychiatric experts about the adverse mental psychological effect of the accident on Piu was substantially corroborated by the opinion of Dr Cheung and the medical evidence referred to in Section C. I believe that the instance of break-up with Ms Zheng Piu mentioned in the evidence is probably due to the immediate adverse impact on Piu’s emotional state after the accident. I therefore accept the experts’ evidence in relation to Piu’s mood.

115.  Piu had been working for the same Employer for a long time before he met the accident. Hence, it is quite natural for Piu to have great attachment to this long-standing employment. Piu’s deep attachment to his pre-accident employment can be seen in his reaction when he mentioned the refusal by the Employer to let him return to work. I saw him break down in tears when he said that he felt very painful. The loss of his pre-accident employment would have naturally caused him mental anguish.

116.  Given Piu’s personal background (that he had a second marriage with a younger son) and age, and particularly the protracted litigation of quantum assessment, I find that Piu would have likely been subject to anxieties about a host of matters as Dr CK Wong stated in the JPsyR. On the evidence, I believe that Piu’s personal and family life, work prospects and financial situation had been adversely affected in many ways after the accident. These matters, according to Dr CK Wong, are stressors, which are capable of constituting “sufficient causes” for Piu’s development of MDD.

117.  Pertinently, I am unable to find any compelling reason as to why this court should not place weight on and accept the opinion and findings jointly provided by both psychiatric experts that Piu’s MDD had been caused by the accident: JPsyR at §112(c). The Employer adduced no evidence to support Counsels’ contentions against these opinions. On the contrary, I find that there is ample evidence that it is more likely than not that Piu had been mentally affected by the stressors mentioned in the preceding paragraph. In the circumstances, I accept the opinion of the experts and find that Piu had suffered MDD as a result of the accident.

118.  As discussed in §§26, 28 and 76 above, Piu’s complaints were found to have no organic basis. Thus, I find Piu’s complaints of pain were more likely to have been a case of “functional overlay” without any “conscious exaggeration or malingering” as discussed in Hung Sau Fung.

119.  Despite the Employer’s early admission of liability in these proceedings, the present litigation process, for whatever reason that was not immediately apparent to me, was indeed unduly long. In my view, it is a fact, as Dr CK Wong has stated, that Piu had suffered from the long and distressing effects of litigation. As Rogers VP stated in Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56[57] where the plaintiff had adopted an abnormal sick role: “[44] …as a result of an accident and what followed from that, that the plaintiff has suffered loss because she was unable to work because she had involuntarily had serious symptoms, such as pain and restriction of movement, and was not malingering or dishonest about it… [46] …the chain of causation from the original accident has not been broken…”. I’d therefore be inclined to find that the chain of causation has not been broken.

120.  In the circumstances, I find that Piu’s MDD was caused by the accident and the Employer, according to Hung Sau Fung, should be liable for the damage caused to Piu.

G.3.3.2.2 Sick leave and LOE

121.  As stated above, the experts held different opinions on these matters.

122.  According to the consultation summaries of WKPC, Piu started receiving treatment at WKPC on 23 March 2020.[58] Out of the 5 consultations Piu attended on 23 March, 18 May and 3 August 2020; and 18 January and 29 March 2021, except on two occasions on 18 May 2020 and 29 March 2021 when Piu was not granted any sick leave, he was granted sick leave for the other three consultations.

123.  Whilst receiving treatment in the public sector, he also concurrently received private treatment from Dr Tsang from 25 May 2020 until December 2020. In Dr Tsang’s report dated 21 June 2020,[59] Dr Tsang found that after Piu’s treatments at WKPC, his condition was improved by 20% to 30% with better sleep: §50 of Dr Tsang’s report, and continued improving after he was treated by Dr Tsang. In his supplemental report dated 24 December 2020[60] at §§7-8, Dr Tsang stated that Piu had better sleep and the mood remained low. He opined that Piu had moderate depression. As Piu was found to have an unsatisfactory response to combined/adjunct drugs treatment, Dr Tsang recommended Piu to try Transcranial Magnetic Stimulation (TMS) Therapy.

124.  Notwithstanding their differences, both experts however agreed Piu’s sick leave should have commenced sometime before he started receiving psychiatric treatment, i.e. towards the end of November 2019. Having considered the medical evidence discussed above, I accept the experts’ view that Piu should be entitled to sick leave before he started receiving psychiatric treatment. As noted in §26 above, in June 2019, Dr Clarence Lee had already diagnosed Piu with suffering from depression. It is there reasonable to adopt an earlier commencement date as suggested by Dr CK Wong, i.e. as from 25 November 2019.

125.  As to when the reasonable sick leave for Piu’s MDD should end, I do not accept Dr Yu’s opinion that it should end in June 2020. The medical evidence shows that after June 2020, Piu was still actively receiving treatment both privately from Dr Tsang and in the public sector at WKPC. As shown in the consultation summaries of WKPC above, Piu was still granted sick leave by WKPC on 3 August 2020 and 18 January 2021 notwithstanding the refusal to grant Piu sick leave by the treating doctor at WKPC on 18 May 2020 (see §122 above). Since Piu was still undergoing psychiatric treatments in both private and public sectors in May 2020, I find that the refusal of WKPC in granting Piu sick leave was at odds with the overall psychiatric medical evidence, and I therefore place no weight on that refusal. After having considered all the evidence in the round, I find that the end date of November 2020 opined by Dr CK Wong is more reasonable. I find that by that time, Piu’s MDD was reasonably managed and Piu was well enough to resume gainful employment as evidenced by Piu’s disclosure under cross-examination (see §38 above) that Piu worked for Chan Keung towards the end of 2020.

126.  In the circumstances, I’d be inclined to find that the reasonable end date was around November 2020. Similarly, for easy computation, I adopt the date of 24 November 2020. I therefore find that the reasonable period of sick leave should be 1 year from 25 November 2019 to 24 November 2020.

127.  By the time Piu was examined by the joint psychiatrists, Piu’s MDD was of a very mild degree as shown in the JPsyR. Hence, I reject Dr Tsang’s recommendation that Piu was in need of TMS, as well as Dr CK Wong’s recommendation for Piu to continue receiving treatment with Dr Tsang after the end of these proceedings.

128.  As for the effect the MDD had on Piu’s working capacity and his ability to return to his pre-accident employment, I prefer the opinion of Dr Yu as I find his opinion was based on a much more comprehensive examination of the medical evidence. Hence, I adopt Dr Yu’s opinion and find that Piu’s percentage of LOE to be 3% and that his ability to return to his pre-accident employment was not affected by the mild MDD.

G.4 Conclusion

129.  The summary of the findings is tabularized below:-

Types of Injuries	Sick Leave	% LOE	Ability to resume pre-Accident job
Orthopaedic	6 months 18 February -17 August 2016	1	Yes
Cardiothoracic	6 months overlapping with above, and continued until 17 January 2017	Nil	Yes
Psychiatric	12 months 25 November 2019 – 24 November 2020	3	Yes

130.  Based on the above summary, I find that Piu should be entitled to sick leave from 18 February 2016 to 17 January 2017 (“Period I”) for his orthopaedic and cardiothoracic injuries in the total of 11 months, and 12 months for the MDD from 25 November 2019 to 24 November 2020 (“Period II”). The total sick leave is therefore 23 months. The aggregate percentage for LOE is 4%. Piu’s ability to return to his pre-accident employment was not affected by the injuries he suffered in the accident.

H. ASSESSMENT OF DAMAGES IN THE PI ACTION

H.1 Pain and Suffering and Loss of Amenities of Life (“PSLA”)

131.  In the ASOD, Piu claimed an amount of $800,000 for PSLA, averring that Piu’s active life was in disarray after the accident, leading to a deterioration of his relationship with Ms Zheng.

132.  In Mr Wong’s closing submissions, the above amount was reduced to $450,000. The following authorities were relied on, but with particular emphasis on authorities (i) and (x):-

(i) Chung Chun Man v Chow Wai Kin & Ors;[61]

(ii) Lai Kam Wah v Wing & Kwong Co Ltd;[62]

(iii) Li Yik Wing v Secretary for Justice;[63]

(iv) Chau Kwai v Lee Chiu Fan and Anor;[64]

(v) Iau Kau Ih v Wan Kei Geotechnical Engineering Co Ltd & Ors;[65]

(vi) So Shu Keung Sammy v Tam Tak Fong & Anor;[66]

(vii) Lily Tse Lai Yin & Ors v Incorporated Owners of Albert House & Ors;[67]

(viii) Joan Carol Boivin v Wong King Yin & Anor;[68]

(ix) Sin Kin Man v Hsin Cheong Construction Co Ltd;[69] and

(x) Gaby Anderson v Wui Yip Co Ltd & Ors.[70]

133.  For the Employer, $350,000 was initially suggested for PSLA, relying on Chan Chi Ming v Sze Hing Sang & Anor,[71]Lam Wai Chun v Tam Chi Wai & Anor,[72]Wong Yeung Chui Yee v Citybase Property Management Ltd & Ors[73] in Counsels’ opening submissions. The contended sum was later reduced to $300,000 in Counsels’ closing submissions.

134.  In my view, the awards made in the previous decisions are only of limited value as the level of award is always fact sensitive. In assessing the appropriate amount for this head of damages, this court ultimately needs to take into account “the cumulative impact of the disabilities on the life of the victim”.[74]

135.  In light of my findings on causation in Section G.3.3.2.1, Counsels’ submissions that the psychiatric elements should be excluded in the assessment must be rejected. I find that Piu’s MDD had caused him mental anguish, and affected his overall enjoyment and amenities of life.

136.  In accordance with the categorization of the types of injuries defined in Lee Ting Lam v Leung Kam Ming,[75] I’d be inclined to find that Piu’s injuries belong to the bottom end of the lowest category of the 4 types of categories of disablement - the “Serious Injury” category, which covers “those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example…bad fractures leaving recurrent pain”.[76] The range of award for this category has been revised to $566,000 to $764,000.[77]

137.  I do not find the authorities that Mr Wong relied on support his suggested level of award, and neither of the authorities (authorities (i) and (x)) that he particularly emphasised are relevant. In Chung Chun Man, the amount of PSLA awarded was $350,000. In that case, notwithstanding that the plaintiff similarly suffered from psychiatric disabilities, it is however noted that his physical injuries were much more serious. His injuries were not just multiple fractured ribs, but right pneumothorax and right lung contusion, and lacerations of the liver, the spleen and the right flank of the abdomen. He was hospitalized for 16 days.

138.  Gaby Anderson’s injuries were also much more severe than Piu’s. She was found to have permanent whiplash injuries. Her persistence and permanence of the “neck pain” was found to have marred her general activities and enjoyment of life. Her psychiatric condition was found to be 5% of impairment before treatment but 1-2% after proper treatment. Her injuries were found to be within the “Serious Injury” category. By contrast, I find Piu’s chest fractures and residual pain were resolved within 12 months without permanent pain. His MDD was found to be mild and has a comparatively milder impact on his general activities and amenities.

139.  In my view, the impact of the physical injuries on the 91-year-old in Wong Yeung Chui Yee (supra) is comparable to Piu with the exception that Piu’s MDD was well managed and he did not require to be accompanied when going out as required by the former. After having applied the necessary upward adjustment to the award, the court awarded $430,000 for PSLA in that case.

140.  Having considered the cases of Wong Yeung Chui Yee (supra) wherein the plaintiff’s injuries were more serious than Piu’s, and all of the authorities both parties cited, I consider that an appropriate award for PSLA should be $400,000, and I so order.

H.2 Pre-Trial Loss of Earnings

141.  It is well-settled that a court is not bound by the sick leave certificates an injured claimant was granted.[78] Based on the conclusions I have reached in Section G.4 above, I believe that Piu’s entitlement to pre-trial loss of earnings should not be based on the sick leave he was granted but on the finding I made above, which is a total of 23 months. Piu’s pleaded case of continuous and uninterrupted total loss of earnings must therefore be rejected.

142.  In addition to sick leave, Mr Wong also urged this court to allow extra 6 months for Piu’s recuperation so that he was able to look for an alternative employment: Iau Kau Ih (supra at §39). It was suggested that during this period Piu suffered partial loss arising from a suitable alternative employment such as security guard, which monthly wages were $12,942.[79]

H.2.1 Period I

143.  Piu should be entitled to pre-trial loss of earnings of 11 months for Period I. I however do not find there is sufficient evidence to support Mr Wong’s submissions for additional time for recuperation.

144.  According to the medical evidence, by the end of Period I, Piu had already completed 13 sessions of physiotherapy and also occupational services (see §§18 & 20 above). I believe that Piu should have reasonably recovered to have enabled him to re-engage in gainful employment. In this respect, I find that Piu was very evasive about his work situation. According to the JOR (at §§45-46), Piu had helped a friend to do a packing job for 10 to 20 days before he was examined by the orthopaedic experts, and did not do any work after 22 June 2017.

145.  Contrary to the information stated in the JOR, Piu however denied under cross-examination that he was paid hourly. Instead, he alleged that Mr Hui would only give him something like $300 only if he was pleased (“鍾意”) or just gave him money for meals (“食飯錢”).

146.  It is plain that Piu was extremely coy about his earnings. The evidence about the period when he worked for Mr Hui and the payments is conflicting.

147.  In the circumstances, I do not find this part of Piu’s evidence credible. In the absence of any credible evidence to support Mr Wong’s submissions on damages for recuperation, I’d be disinclined to make any award for recuperation.

148.  Hence, the pre-trial loss of income for the period of 18 February 2016 till 17 January 2017 calculated at the agreed monthly amount of $18,000 is:-

$18,000 x 11 months = $198,000.

H.2.2 Period II

149.  As for the second period of 12 months in relation to Piu’s sick leave for MDD, Piu’s testimony about working for Chan Keung is important as it goes to the heart of Piu’s credibility in relation to his working ability. Significantly, this part of the evidence concerning Chan Keung was only disclosed for the first time during cross-examination.

150.  Counsels made severe criticisms of Piu’s credibility. It was suggested that not only had Piu provided no explanation for the concealment of his work with Chan Keung, Piu’s late disclosure of Chan Keung clearly shows that Piu was an evasive witness and should be disbelieved. They pointed out that the evidence about Chan Keung has clearly exposed Piu’s lies made to his treating psychiatrists,[80] as well as the psychiatric experts[81] that he was unable to do any work because of his alleged mental condition.

151.  Counsels contended that Piu’s pleaded case[82] that he “has not been able to resume work as a driver/general worker from the date of the Accident” was therefore baseless.

152.  I agree with Counsels’ criticisms of Piu’s evidence on his working ability. Apart from the inconsistency in relation to his work with Mr Hui (see §146 above), I also find Piu’s evidence in relation to the effect of his mental condition on his working ability untrue.

153.  Pertinently, Piu’s earnings of about $6,000 were never disclosed until this court sought clarification from Piu. Inevitably, the concession through Mr Wong of a deduction of $6,000 from the pre-trial loss of earnings had to be made. For the same reason of the lack of credible evidence, I’d also disallow any damages for recuperation. Hence, the total loss of earnings during the 12 months of sick leave for Piu’s MDD is:-

($18,000 x 12 months) - $6,000 = $210,000.

H.2.3 Total amount

154.  Of the total amount of $408,000 ($198,000 + $210,000), Piu should also be awarded the loss of the 5% MPF, which is in the total sum of $20,400 ($408,000 x 5%).

155.  I therefore award a total sum of $428,400 ($408,000 + $20,400) for pre-trial loss of earnings.

H.3 Future Loss of Earnings

156.  Piu will be 66 in August this year. In the ASOD, Piu pleaded that he would have, but for the accident, continued with the same job until 75. He averred that the accident has rendered him only capable of doing a less physically demanding job, which pays him around $12,773 (in accordance with the “Quarterly Report of Wage and Payroll Statistics, March 2021”).

157.  Applying a multiplier of 8.13, Piu claims a partial loss of $509,946.12 computed as follows:-

[($18,000 - $12,773) x 12 months x 8.13] together with the loss of 5% MPF of $25,497.31.

158.  However, the multiplier of 8.13 as pleaded was no longer pursued. On behalf of Piu, Mr Wong suggested that as evidenced by Chow’s testimony, Piu should have, but for the accident, been able to work until the similar age as Chow, 71. Mr Wong therefore urged this court to adopt a multiplier of 4.93 after a discount of –0.5%, relying on Chan Pak Ting v Chan Chi Kuen & Anor.[83]

159.  This claim was vigorously contested. In their contentions, Counsels suggested that no award should be made as Piu has failed to prove any future loss of earnings. They contended that Piu did not have any medical and expert evidence to support this claim. Piu, given his age, would not have been expected to continue to work beyond 65.

160.  To succeed in this award, Piu would have to prove firstly that the accident had rendered him unfit to resume his pre-accident employment. However, as discussed in §130 above, I do not find that was the case. The medical expert evidence overwhelmingly shows that Piu would not have been prevented from resuming his pre-accident job by the injuries caused by the accident. While there might be a possibility that other physical symptoms and complaints caused by the neck and shoulders might have indeed rendered him incapable, Piu cannot rely on them to support his claim.

161.  Hence, it is irrelevant whether Piu would have continued working beyond 65 as I do not find that the disabilities he suffered as a result of the accident have impacted on his future working ability.

162.  In any event, according to Chow’s evidence, the reason that Piu could not return to his Employer to work was the Employer’s concern with Piu’s claims brought against them.

163.  I therefore decline to make any award under this head.

H.4 Loss of Earning Capacity

164.  In the ASOD at §6, Piu averred that as a result of the injuries and disabilities caused by the accident, he would be “thrown into the labour market in the future because of his disabilities”. He claimed damages for $216,000, which was calculated with reference to the loss of one year of his pre-accident wages.

165.  On behalf of Piu, Mr Wong submitted that the court should compensate Piu’s additional risk of suffering from longer periods of unemployment between jobs owing to his handicap in the labour market. It was submitted that a sum of $80,000 (being equivalent to 4 months of Piu’s average monthly income) should be awarded for the loss of earning capacity , citing Moeliker v A Reyrolle & Co Ltd[84] and Lau Ho Ming v Wong Pak Ho.[85]

166.  It was contended that Piu should not be entitled to an award under this head. It was suggested that Piu was not able to prove that he would have been able to work for the Employer beyond 65. Notwithstanding that Chow had stated in his evidence that he and his partner were working beyond 65, it did not follow that it would necessarily have also been the case for Piu. Counsels suggested that Piu, due to the other health issues not related to the accident, would have unlikely been able to work as a recycling worker beyond 65.

167.  Piu needs to prove, on the balance of probabilities, that there was a substantial or real risk that he would lose his pre-accident employment in the future as a result of his injury caused by the accident, and be at a disadvantage in obtaining comparable employment: see Moeliker (supra).[86]

168.  According to Chow’s description of the nature of the Employer’s recycling business, and Piu’s description of his pre-accident duties, I find that a large part of his work was quite physically demanding. In my view, the fact that both Chow and his partner still worked does not advance Piu’s argument that but for the accident, he would have continued working in a similar job until 70. Being the bosses, Chow and his partner unquestionably could choose the type of the work they wanted to do whereas ordinary employees like Piu would not have the same degree of freedom. According to Chow, other workers were only in their 50s. Thus, there is no evidence supporting Piu’s averment that he could have worked beyond 65.

169.  From the evidence discussed above, Piu was suffering from severe neck and shoulder pain that was not related to the accident. Hence, as Counsels have correctly stated, the neck and shoulder pain would have likely prevented Piu from continuing to work beyond 65.

170.  In the circumstances, I do not find that Piu has proved that there was a substantial or real risk that he would lose his pre-accident employment in the future as a result of his injury caused by the accident. His claim for this award is declined.

H.5 Special Damages and Expenses

H.5.1 Arguments

171.  In the ASOD, Piu claimed a total sum of $85,000, comprising of $60,000, $15,000 and $10,000 respectively for medical, travelling and tonic food expenses.

172.  In his closing submissions, Mr Wong enclosed a “Schedule of Medical Expenses” (“New Schedule”), with an enumeration of 199 itemized expenses for the period from 24 February 2016 to 27 September 2021. The total amounts respectively under each of the columns of “Medical Expenses”, “Other Expenses” and “ECC” are stated to be $69,604, $158,075 and $20,230.

173.  The New Schedule, according to Mr Wong, was a summary of the expenses contained in a trial bundle entitled as “Bundle of Medical Expenses”, which Mr Wong had mistakenly thought was trial bundle “K” when it should have been bundle “J” (“Bundle J”). In the New Schedule, the items were numbered in accordance with the same pagination number of the documents in Bundle J. Although the amount for medical expenses in the New Schedule exceeded the pleaded amount of $60,000, Mr Wong stated that Piu was content to be bound by his pleading, and to restrict the amount to $60,000.

174.  As for tonic food, Mr Wong urged this court to allow $10,000, referring to Kings Light Industrial Ltd v Lo Wai Keung[87] and To Wei Kei v Vickcore Engineering Ltd & Anor,[88] which confirmed that a nominal amount for tonic food could be awarded when there were no receipts in support.

175.  Counsels were extremely critical of the late lodging of the New Schedule. This elicited a written response by Counsels’ lodging of their supplemental submissions. Irrespective that the supplemental submissions were lodged without any direction from court, I believe that it is fair, given the lateness of the New Schedule, to allow the lodging of the supplemental submissions.

176.  In their supplemental submissions, Counsels took great exception to Mr Wong’s reliance on the New Schedule, and urged this court to reject it. They contended that the New Schedule was served so late that they were deprived of an opportunity to have the items properly examined during the trial. They stated that the unindexed Bundle J was messy, non-chronological and non-categorized.

177.  Counsels pointed out that apart from the confusing arrangement of the documents in Bundle J, the New Schedule was so badly prepared that made analysis and scrutiny difficult. Not only did the items contain no pagination reference to Bundle J, they were also not arranged in chronological order, and there was duplication of items (e.g. it consisted of two Item Nos 60, 61, 62, 68, and three Item Nos 69). Furthermore, the periods of expenses covered by the New Schedule (from 2 March 2016 (Item 60) to 27 September 2021 (Item 142)) is different to the period covered in trial bundle “G”[89] concerning “Schedule of Sick Leave, Medical and Travelling Expenses”, which covered the period from 18 February 2016 to 25 June 2018 (“Schedule G”).

178.  In any event, Counsels stated that the total amount stated in the New Schedule ($69,604 for medical expenses, $158,075 for other expenses, totalling $227,679) exceeded the pleaded amount of $85,000. Counsels also pointed out that while the pleaded amount is less than the amount shown in the New Schedule, it is however higher than the amount shown in Schedule G. In Schedule G, the total amount for medical expense is $10,360, travelling expenses up to 25 June 2018 was $2,453, totalling $12,813, which is much lower than even the pleaded sum of $75,000.

179.  Counsels therefore contended that Piu was not entitled to be awarded medical expenses after he had recovered from his ribs injuries in 2016. The travelling expenses of $15,000 pleaded in the ASOD are excessive and unsupported by evidence. As for the claim for tonic food, Counsels suggested that Piu produced scant evidence. They submitted that where there is no evidence as to the advisability or suitability of nourishing food to assist the recovery of the injured person, only a nominal sum should be allowed for tonic food: Yu Ki v Chin Kit Lam & Anor.[90]

180.  The Employer suggested a total sum of $15,000 for all the three heads of special damages.

H.5.2 Discussion

H.5.2.1 Medical and Travelling expenses

181.  Based on my findings above, Piu should only be awarded reasonable medical and travelling expenses for Periods I and II.

182.  For Period I, I think it is only necessary to refer to the table of expenses in Bundle G without any need to consider the New Schedule as the table in Bundle G has already covered the entire Period I. Accordingly, the calculation of relevant expenses should start from Item 1 (18 February 2016) to Item 55 (22 December 2016).[91]

183.  Having looked at the amounts in a broad-brush manner, I consider all the medical and travelling expenses (including those incurred for private consultations with Dr Thomas Clinic) to have been reasonably incurred. I will allow them in full.

Item No	Medical expenses ($)	Travelling expenses ($)
1	700	24
2-6	1,900 (380 x 5)	500 (100 x 5)
7	380	0
8	340	100
9	380	14
10	400	14
11	60	14
12-13	0	50[92]
14	60	14
15-21	0	175[93]
22	60	14
23-28	0	150[94]
29	60	14
30-31	0	50[95]
32-35	240 (60 x 4)	56 (14 x 4)
36	0	25[96]
37	100	14
38-43	360 (60 x 6)	84 (14 x 6)
44	100	14
45-50	360 (60 x 6)	84 (14 x 6)
51	45	14
52	100	14
53	45	14
54-55	120 (60 x 2)	28 (14 x 2)
Total	5,810	1,480

184.  For Period I, I award $5,810 for medical expenses, and $1,480 for travelling expenses.

185.  For Period II, I do not think that I can rely on Schedule G as the period it covered ended on 25 June 2018, which is not within Period II. Despite the criticisms by Counsels of the messiness of the New Schedule, which criticisms in my view are entirely correct, I think it will be necessary to refer to the New Schedule in this exercise. After having carefully compared the items in the New Schedule with the medical receipts in Bundle J, I find that they were indeed a summary of the medical expenses.

186.  According to the New Schedule, Items 1 to 9 (from 25 May 2020 to 21 November 2020), consultation expenses of Dr Tsang, are within Period II. As discussed in §30 above, Piu’s mental condition was the most serious during this time, I therefore consider these private psychiatric consultation expenses to be reasonable and allow Piu to recover them. It is noted that after Item 9, Items 10 to 20 (from 28 November 2020 to 24 May 2021) are also expenses for consultation with Dr Tsang. Having regard to the contents of Dr Tsang’s reports (see §123 above), I think it would be wholly artificial to strictly adopt a cut-off date with reference to the sick leave entitlement that I have found above. As I have stated above, the specification of the commencement and ending dates was solely for computation purpose. I consider that it would be reasonable to allow Piu to recover private psychiatric expenses until the end of December 2020, which private consultations in my view were reasonable. Hence, I will allow Piu to recover medical expenses for Items 1 to 13. As for the other expenses incurred in 2021, I believe that they were unreasonable. By 2021, Piu had been receiving psychiatric treatment concurrently in the private and public sectors for more than 6 months. I consider that the ongoing private psychiatric treatment of Dr Tsang was unreasonable, and I disallow the recovery of the expenses for such treatment.

187.  Based on the amounts stated in Items 1 to 13 of the New Schedule, I allow a total amount of $21,810[97] for private psychiatric treatment.

188.  As for the other items that I have identified within Period II, they are Items 24; 48; 55 to 58; 91 to 92; 106 to 108; 109; 110; 113 to 115; 117 to 122; 130 to 135; 139 to 140; 143 to 155; 156; 159 to 172; 173-174; 175; 177; 178 to 187; 195 to 197 and 199.

189.  There is no need to consider the items that I have underlined above as no expenses had been incurred. Hence, the only remaining items that I need to deal with are Items 24; 48; 55 to 58; 109; 156; 173-174; 177 and 199.

190.  I disallow Items 24 and 48 as the receipts show that they were not for psychiatric consultations.

191.  Items 55 to 58 are expenses paid to Dr Yan Kam Sun in the total sum of $2,690.[98] Having examined the receipts, I consider that they were reasonably incurred in connection with Piu’s MDD, and should be allowed. In allowing the recovery of these expenses of Dr Yan, I have considered that they were incurred also during the period when Piu was treated privately by Dr Tsang. However, after having carefully examined the dates of the consultations, I do not find there is any overlap. Hence, I allow them in full.

192.  For the remaining items of Items 109; 156; 173-174 and 177, the receipts show that they did not relate to psychiatric treatment, and I disallow them. I also disallow the sum of $10,075 for Item 199, which is the expense for “Yan Chai Hospital Board So Kai Sing Dental Clinic”, an unrelated item of expenses.

193.  Since there is no evidence placed before me in connection with the travelling expenses having been incurred for this period, I am unable to make any award for travelling.

194.  Thus, I award a total sum of $30,310 ($5,810 + $21,810 + $2,690) for medical expenses and $1,480 for travelling expenses for Periods I and II.

H.5.2.2 Tonic Food

195.  In the absence of evidence to support the suitability of nourishing food to assist Piu’s recovery, I will apply the principle of Yu Ki (supra) and award a nominal sum of $5,000.

H.5.3 Total award for special damages

196.  Accordingly, I award a total of $ 36,790 ($30,310 + $1,480 + $5,000) under this head.

H.6 Care and Attention

197.  In the ASOD, Piu claims a sum of $10,000 for the care and attention by Ms Zheng.

198.  In support of Piu’s claim under this head, Mr Wong submitted that Piu should be awarded for the value of services provided by Ms Zheng even if the latter’s services were rendered voluntarily and gratuitously: Kot Yik Kam v Kwok Kam Hung & Anor[99] and Lee Suk Yin & Ors v National Insurance Company Limited representing the estate of Ngai Chung Lit, deceased.[100]

199.  It is noted that this item of claim was not included in Mr Wong’s opening submissions, and it was only referred to in his closing submissions. In the result, Counsels for the Employer might have been lulled into believing that Piu no longer pursued this claim, and therefore did not make any submissions on it.

200.  In my finding, Piu’s circumstances are different to the facts of the cases Mr Wong cited. In Kot Yik Kam (supra), the injured plaintiff had a very young child. As the result of the accident, she could not take care of her child and her mother therefore was required to take care of the child (see §§51-52). In Lee Suk Yin (supra), an award was made for the value of the services of a family member in taking care of the injured plaintiff during hospitalization; and the services of a domestic helper after the latter’s discharge from the hospital.

201.  Piu’s situation was entirely different to that of the plaintiffs mentioned in the cases above. Before her marriage to Piu in September 2018, Ms Zheng lived most of the time in Sheng Zhen with their son, and Piu did not stay with her on a full-time basis. After the marriage, the family of 3 only then started living together in Hong Kong. There is however no evidence that Ms Zheng was required to devote full-time care to Piu because of the injuries that he suffered from the accident. I am therefore not persuaded that this claim is proved, and make no award for this item.

H.7 Future Medical Expenses

202.  In the ASOD, Piu claims a sum of $18,000 for future psychiatric medical expenses of one year. However, Mr Wong has not included this item of claim in any of his written submissions. Hence, in any event, based on my finding in §127 above, I do not find that this head of claim is proved. I believe this claim is not pursued, and no award will be made.

I. SUMMARY OF DAMAGES IN THE PI ACTION

203.  The total amount of damages I award for the PI Action is therefore as follows:-

(A)	PSLA	$400,000
(B)	Pre-trial loss of earnings	$428,400
(C)	Future loss of earnings	Nil
(D)	Loss of earning capacity	Nil
(E)	Special damages	$36,790
(F)	Care and attention	Nil
(G)	Future medical expenses	Nil
		________
	Total	$865,190

204.  By the proviso to s 26(1), which stipulates that “any damages awarded against an employer in an action at common law…shall be reduced by the value, as decided by…Court…of any compensation which has been paid or is payable” awarded for employees’ compensation, the damages that I have awarded for the PI Action in the sum of $865,190 shall therefore be reduced by the value of the compensation for the EC Action.

J. ASSESSMENT OF COMPENSATION IN THE EC ACTION

J.1 Piu’s monthly earnings pursuant to s 11

J.1.1 Parties’ positions

205.  The monthly earnings for the purpose of computing the amount of compensation under ss 9 and 10 are disputed. Piu averred in the Application filed in the EC Action that his monthly earnings immediately preceding to the accident and the average 12-months’ earnings before the accident were both around $18,000 with “benefits”.

206.  According to the “List of Earnings” the Employer filed in the EC Action, Piu’s monthly earnings for the immediate 8 months before the accident was $18,000, whilst those in the 9 to 12 months prior to the accident were $16,000 per month. According to Piu’s MPF Statement (“MPF Statement”) for the period between 1 July 2015 to 30 June 2016,[101] Piu was paid monthly earnings in arrears at the last day of each calendar month. Before the accident, Piu was last paid his salary of $18,000 on 31 January 2016.

207.  Mr Wong urged this court to accept Piu’s evidence that his earnings were inclusive of double pay and bonus of $10,000. It was submitted that Chow only admitted the bonuses under cross-examination. This admission, Mr Wong stated, conflicted with the Employer’s case that Piu was on a fixed monthly income of $18,000.

208.  Mr Wong also stated if Piu were indeed paid monthly earnings of a fixed amount of $18,000, the MPF Statement would have shown a monthly 5% contribution of $900. Yet, in the MPF Statement, the Employer’s MPF contributions for the months of June and July 2015; and March 2016, were not $900 but $945. Mr Wong therefore submitted that the MPF Statement served to corroborate Piu’s case that his monthly earnings were more than $18,000.

209.  In his submissions, Mr Wong stated that Piu’s pre-accident monthly earnings should be calculated on the basis of Piu’s monthly salary of $18,000, a double pay of $18,000 and bonus of $10,000, making a total sum of $46,000 ($18,000 + $18,000 + $10,000).

210.  Since Chow had agreed in his testimony at trial that Piu had been paid bonuses before the Chinese New Year, Counsels on behalf of the Employer, no longer maintained the Employer’s pleaded case of $18,000. Having taken into the bonus into account, Counsels suggested that the appropriate amount should be $18,800, which was based on Chow’s evidence that Piu was paid a bonus at the Chinese New Year of around $10,000 before the accident. As the amount of bonuses paid to Piu, according to Chow’s evidence, varied from a few thousand dollars to $10,000 odd dollars, Counsels therefore rounded down the $10,000 to $9,600, and averaged it by 12 months to arrive at an average monthly bonus of $800.

J.1.2 Discussions

J.1.2.1 Section 11:Method of calculating earnings

211.  Section 11 states that:-

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings—

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.”

212.  Since Piu had worked for the Employer for more than 12 months before the accident, s 11 above is therefore applicable.

213.  It is not in dispute that Piu’s monthly salary was fixed at $18,000. The contentions are mainly in relation to the alleged double pay and the method of computation.

214.  Insofar as Piu’s allegation of the double pay of $18,000 is concerned, I find that Piu adduced no evidence to support his claim. It is important to bear in mind that the nature of double pay is entirely different to that of a bonus payment, the former is contractual while the latter is discretionary. Hence, had Piu indeed been paid double pay, such payment should have been reflected in the MPF Statement with a corresponding 5% MPF contribution of $900. However, the extra amount of $45 MPF contributions for the 3 months stated in the MPF Statement do not add up to anywhere near $900. In the absence of the corroborative evidence, I do not find that Piu’s earnings included double pay.

215.  Parties have adopted quite different methodologies for computing the amount of $10,000 bonus. If computed according to Mr Wong’s methodology (see §209 above), Piu’s pre-accident earnings would have been $28,000 ($18,000 + $10,000).

216.  On the other hand, the Employer’s approach of averaging the $10,000 for the whole 12 months would yield an additional amount of $833 to be added to Piu’s pre-accident earnings, which would therefore be at a total sum of $18,833 ($18,000 + $833).

217.  In my view, in determining the correct way of calculating the bonus, it is necessary to find the date when Piu would have likely been paid his bonus before the accident. The evidence between Piu and Chow in this regard was in conflict. Piu’s version was that the bonus was paid together with his monthly salary, which would have been on 31 January 2016, which payment date is also found to have corroborated with the same payment date of the $900 MPF contribution as shown in the MPF Statement.

218.  According to Chow’s version, however, the Employer would usually, by convention, distribute bonuses on the eve of the Chinese New Year. Thus, when Piu received the bonus, it was probably on 7 February 2016.

219.  I prefer Chow’s evidence as I find Chow’s version more in line with Chinese customs. By tradition, Chinese workers would usually stop work around the day before the Chinese New Year before taking a relatively longer than usual break during the festive period of the Chinese New Year. As can be seen from the MPF Statement, the monthly salary of $18,000 was always paid on the last date of each month. As bonus is discretionary by nature, I believe that it is more logical that the bonus would have likely been paid separately from the regular monthly salary payment. I therefore find that before the accident, it is more likely that Piu received a bonus on 7 February 2016, and not on 30 January 2016.

220.  Since Piu’s bonus was paid on 7 February 2016, and Piu’s earnings for the month prior to the accident were paid on 30 January, the bonus was therefore, according to s 11(1)(a), not part of the earnings “for the month immediately preceding the date of the accident”.

221.  I therefore reject Mr Wong’s submissions.

222.  As s 11(1)(a) is inapplicable, the alternative method of calculation under s 11(1)(b) falls to be considered. This is by computing an employee’s earnings “in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer”. Having regard to the nature of the bonus and my findings above, I consider s 11(1)(b) is applicable as it is the fairest way of computation in the circumstances. Hence, Counsels’ methodology of averaging the total amount of bonus of $10,000 for the past 12 months should be adopted. I therefore find that Piu’s monthly earnings were $18,833. This amount is in fact by and large consistent with the gross amount of earnings that Piu stated in his 1^st Witness Statement (see §35 above).

J.2 Section 9 Compensation

223.  Applying the total percentages of LOE (see §§129-130 above), which are in the aggregate of 4%, and the statutory “multiplier” of 48 for Piu’s age, the total amount of the s 9 compensation is therefore $36,159 ($18,833 x 4% x 48).

J.3 Section 10 Compensation

224.  Based on the findings I made above (see §130 above), Piu’s total periods of absence from duty was 23 months. Thus, his s 10 compensation is:-

$346,527 ($18,833 x 4/5 x 23 months).

225.  The sum of $346,527 should be reduced by the conceded income of $6,000 Piu received from Chan Keung, making the net total of $340,527.

J.4 Appeals against Form 9

226.  Both parties have appealed against the Form 9 assessment. In light of my findings, Piu’s appeal against Form 9 should be allowed.

J.5 Section 10A Compensation

227.  There is an overlap with the medical expenses that I have already assessed for the PI Action above. Unlike the PI Action, which requires Piu to prove reasonableness, there is no such requirement in the EC Action so long as the medical expenses Piu had incurred were in respect of the medical treatments of his injury caused by the accident. The daily maximum rate for expenses incurred after 9 February 2018 was $300, and $200 before that day.[102]

228.  According to the two periods of sick leave this court found Piu was entitled to, I therefore need to calculate the s 10A compensation for Periods I and II.

229.  Despite Mr Wong’s New Schedule that includes a summary of the s 10A medical expenses in its fifth column, I do not find it at all helpful. I find the entire summary chaotic, and cannot rely on it.

230.  Neither have Counsels assisted this court by showing how the amount of $4,610 they contended as the maximum amount was calculated.

231.  In the circumstances, this court will have to do its own calculations, using the information stated in Section H.5.2 above.

232.  Similarly, for Period I, I will base the assessment on Schedule G I refer to above, applying the applicable daily maximum rate during this period. Therefore, the expenses should be Items 1 to 55 in Schedule G. Apart from those items that had nil expense, I have set out in the table below the amount for each item.

Item No	Date	Amount Claimed ($)	Amount Allowed ($)
1	18.02.16	700	200
2	24.02.16	380	200
3	02.03.16	380	200
4	09.03.16	380	200
5	16.03.16	380	200
6	23.03.16	380	200
7	31.03.16	380	200
8	31.03.16	340	0 (see 7 above)
9	10.04.16	380	200
10	11.04.16	400	400[103]
11	28.04.16	60	60
12-13	13.05.16 & 20.05.16	0	0
14	26.05.16	60	60
15-21	27.05.16 – 24.06.16	0	0
22	30.06.16	60	60
23-28	30.06.16 – 05.08.16	0	0
29	11.08.16	60	60
30-31	12.08.16 & 19.08.16	0	0
32	26.08.16	60	60
33	08.09.16	60	60
34	14.09.16	60	60
35	19.09.16	60	60
36	20.09.16	0	0
37-38	21.09.16	160	160
39	23.09.16	60	60
40	26.09.16	60	60
41	28.09.16	60	60
42	03.10.16	60	60
43	05.10.16	60	60
44-46	07.10.16	220	200
47-50	14.10.16 – 16.11.16	60 each item	240
51	17.11.16	45	45
52	20.11.16	100	100
53	21.11.16	45	45
54	24.11.16	60	60
55	22.12.16	60	60
Total			3,690

233.  For Period II, the daily maximum rate for medical expenses is $300. Based on the findings above and by referencing to the New Schedule, applying the daily rate of $300, the amount allowed is tabularized as follows.

Item No	Periods	Amount Allowed ($)
1-13	25.05.20 – 19.12.20	3,900 (300 x 13)
55-58	21.05.20 – 25.09.20	1,200 (300 x 4)
Total		5,100

234.  The total amount of s 10A compensation is therefore $8,790 ($3,690 + $5,100).

K. SUMMARY OF COMPENSATION IN THE EC ACTION

235.  Accordingly, the total amount of assessed compensation is as follows:-

(A)	Section 9	$36,159
(B)	Section 10	$340,527
(C)	Section 10A	$8,790
	Less:  Advance payment	$193,000
		________
	Total:	$192,476

L. COSTS

L.1 PI Action

236.  For the PI Action I grant the usual order on a nisi basis that the defendant (the Employer) do pay the plaintiff (Piu) the costs of the assessment, including all costs reserved and certificate for counsel only for trial, to be taxed if not agreed. For the avoidance of doubt, I grant no certificate for counsel for the Checklist Review hearing (“CLR”) that counsel attended. Since I do not find any complexities in this case, I do not think attendance by counsel is reasonable. It baffles me that Mr Wong had attended several CLR on the assignment of the Director of Legal Aid.

237.  I order that the plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

L.2 EC Action

238.  The PI and the EC Actions in these proceedings are what commonly known as parallel proceedings, which require practitioners to have particular regard to the need for procedural economy and saving costs and expenses. In a Postscript (at §1) in the case of Rukhsar Begumv Native English Center Ltd t/a The Green Lounge,[104] a judgment of this court, which is also similarly in the nature of parallel proceedings, I stated as follows:-

“Parallel employees’ compensation and common law proceedings

1. Owing to the stipulation stated in proviso to s.26(1) requiring a common law award [to] be reduced by the amount of any statutory compensation which has been paid or is payable, practitioners should be vigilant to ensure that parallel proceedings are conducted in the most cost effective and procedurally economic manner, particularly when the parties in an employees’ compensation action and the related common law action are the same and are represented by the same firms of solicitors.”

239.  In this case, the issue of liability of both Actions was in fact resolved in the very early stage of the proceedings. Hence, there is even a more compelling reason for expediency. It would have been much more desirable that the EC Action could be disposed of at the earliest opportunity either by settlement (e.g. by the acceptance of sanctioned payment) or else by a staying of the EC Action unless the solicitors for Piu held a reasonable belief that the compensation in the EC Action would likely exceed the amount of damages to be awarded in the PI Action. This clearly is not the case.

240.  From the long protracted way these proceedings were conducted, I am clearly of the impression that the parties, especially the solicitors for Piu, have conducted the proceedings in total disregard of the guidance I refer to above.

241.  In this case, due to the circumstances described in Section B above, I am aware of the sanctioned payment having been made in the EC Action. By virtue of the provisions of s 26, I therefore believe that there is nothing to be gained for Piu not to have accepted the sanctioned payment after interlocutory judgment in the PI Action had been entered.

242.  Notwithstanding, and despite the multiple changes of solicitors, Piu was granted Legal Aid to vigorously proceed with the EC Action with full throttle that resulted in no obvious financial benefits for him.

243.  In the circumstances, I believe that it is appropriate to disallow Piu’s costs after 28 days of the last sanctioned payment.

244.  Thus, I grant an order nisi that the respondent do pay the applicant’s costs of assessment up till 28 days from the last sanctioned payment. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

245.  As for the costs of and occasioned by the inappropriate inclusion of the IP Order in the trial bundle, I believe that it was entirely the fault of Piu’s solicitors. I therefore order Piu to pay the Employer’s costs.

M. CONCLUSION AND ORDERS

M.1 The EC Action

246.  Judgment be entered against the respondent (the Employer) in favour of the applicant (Piu) for the total sum of $192,476.

247.  There be a costs order nisi that the respondent do pay the applicant the costs of the EC Action up till 28 days from the last sanctioned payment, thereafter there shall be no order as to costs.

M.2 The costs of the inclusion of the IP Order

248.  There be a costs order nisi that the applicant do pay the respondent the costs of and occasioned by the inclusion of the IP Order, to be taxed if not agreed.

M.3 The PI Action

249.  Judgment be entered against the defendant (the Employer) in favour of the plaintiff (Piu) for the total sum of $865,190. By the proviso to s 26(1), the amount of $865,190 shall be reduced by the EC compensation of $192,476. Thus the total damages as reduced are in the sum of $672,714 ($865,190 - $192,476).

250.  There shall be interest on the amount of PSLA of $400,000 at 2% from the date of the writ (19 October 2017) to the date of judgment; and on the amount of the pre-trial loss of earnings of $428,400 and special damages of $36,790 at half judgment rate from the date of accident (18 February 2016) to the date of judgment.

251.  There be a costs order nisi that the defendant do pay the plaintiff the costs of the proceedings with certificate for counsel, except there shall be no counsel certificate for CLR.

M.4 Taxation and variation of nisi costs

252.  The costs for both the EC Action (including the costs order in §248 above) and the PI Action to be taxed if not agreed. Piu’s own costs be taxed in accordance with the Legal Aid Regulations.

253.  The costs orders nisi made above will be made absolute 14 days from the handing down of this judgment if no application is made to vary them.

254.  Lastly, I will ask my clerk to provide a copy of this judgment to the Director of Legal Aid for his attention in relation to my observations in §§4-5 and Section L above.

DCEC 1082/2017:

DCPI 2318/2017:

DCPI 2318/2017

[2021] HKDC 281

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2318 OF 2017

--------------------------

--------------------------

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DECISION

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THE APPLICATIONS

1.  Before this court are two summonses, both filed by the plaintiff:

(1)  The summons filed on 30 June 2020 for leave to adduce psychiatric expert evidence (“the Expert Directions Summons”); and

(2)  The summons filed on 12 January 2021 for leave to file and serve the plaintiff’s Affirmation[1] (affirmed on 4 January 2021) (“the plaintiff’s Supplemental Affirmation”) in support of the Expert Directions Summons (“the Affirmation Summons”). 

2.  I will consider the Affirmation Summons first.

THE AFFIRMATION SUMMONS

3.  On 3 August 2020, Master Matthew Leung gave some usual directions for the filing of affirmations for the purpose of the Expert Directions Summons, and directed that no further affirmation may be filed without leave of the court.  The learned Master also adjourned the Expert Directions Summons for substantive argument to be heard on 9 December 2020[2]. 

4.  Affirmation in reply (his 2^nd Affirmation) was filed by the plaintiff pursuant thereto on 19 August 2020.

5.  The Affirmation Summons was subsequently filed only 8 days before the date fixed for substantive argument[3].

6.  Order 32 rule 16A(4) of the Rules of the District Court (Cap.336H) (“RDC”) provides that:

“Where the determination of the application is adjourned for the hearing of the summons, no further evidence may be adduced unless it appears to the Court that there are exceptional circumstances making it desirable that further evidence should be adduced.”

7.  In Jose Miranda Da Costa Junior & Another v Lorenzo Yih, also known as Yu Chuan Yih & Others (HCA 156/2010, unreported, 28 April 2014), Deputy High Court Judge Le Pichon had the following to say:

“11.   …where a direction prohibiting further evidence to be adduced without leave has been given, it has to be read with RHC O 32, r 11A (4). That provides that where the determination of the application is adjourned for the hearing of the summons, no further evidence may be adduced unless it appears to the Court that there are exceptional circumstances making it desirable that further evidence should be adduced.

12.  It will be seen that the rationale of O 32, r 11A (4) is to ensure that a case is dealt with as expeditiously as is reasonably practicable and to ensure fairness between the parties (those being the objectives of the CJR stated in O 1A, r 1 (b) and (d)): Fortune Assets Development Ltd v De Monsa Investments Ltd, HCA 167/2009, (unrep) 21 August 2009 at §§10-11 and the annotation in Hong Kong Civil Procedure 2014 at 32/11A/3 which states that the sort of ‘exceptional circumstances’ envisaged are likely to be along the lines of the exceptions laid down in Ladd v Marshall [1954] 1 WLR 1489.

13.  ‘Special circumstances’ are not made out if a proper review of the potential issues that might arise in proceedings ought to have resulted in the information contained in the affidavit being filed within the time limits imposed: Fortune Assets at §12.  I agree with that approach which is in line with the rationale underlying O 32, r 11A (4) and furthers the CJR objectives identified above.”

8.  Order 32 rule 11A(4) of the Rules of the High Court (as referred to by the learned Judge) and Order 32 rule 16A(4) of the RDC are identical.  Therefore, what the learned Judge said above is equally applicable to District Court cases.

9.  Under the criteria as discussed in Ladd v Marshall [1954] 1 WLR 1489, further evidence is admissible only where such evidence:

(1)  could not have been obtained before with reasonable diligence;

(2)  would or might, if believed, have a very important influence on the result of the case, though it need not be decisive; and

(3)  is apparently credible though it need not be incontrovertible.

10.  The evidence which the plaintiff now seeks to adduce is the Supplemental Psychiatric Report of Dr Tsang Fan Kwong (a specialist in psychiatry) dated 24 December 2020 (“the Supplemental Report”) which is exhibited to the plaintiff’s Supplemental Affirmation affirmed on 4 January 2021.

11.  As far as the Supplemental Report is concerned, I am of the view that the Ladd v Marshall criteria are satisfied:

(1)  The Supplemental Report provides up-to-date information on the treatment and diagnosis of the plaintiff since he returned to Dr Tsang for consultation on 3 October 2020.  Hence, it could not have been obtained earlier;

(2)  The Supplemental Report, if admitted as evidence, might have a very important influence on the plaintiff’s application to adduce psychiatric expert evidence; and

(3)  The Supplemental Report is credible because, among other things, it was prepared by Dr Tsang who is a specialist in psychiatry.[4]

12.  In opposing the Affirmation Summons, Ms Yu for the defendant has made a number of arguments, which will be dealt with below.

13.  Firstly, it was said that the plaintiff’s 3^rd Affirmation (filed in support of the Affirmation Summons) has not suggested what “exceptional circumstances” may have arisen since the date when the plaintiff took out the Expert Directions Summons. 

14.  The plaintiff’s 3^rd Affirmation is indeed a very short affirmation.  However, it has set out the date of the Supplemental Report, and the Supplemental Affirmation together with the Supplemental Report were exhibited thereto.  In other words, the plaintiff has placed before the court the required materials for the court’s consideration.  Whether “exceptional circumstances” exist should be addressed by counsel in his submissions, and any argument should not be contained in the supporting affirmation.  Ms Yu’s argument is therefore rejected.

15.  Ms Yu for the defendant then submitted that the new evidence cannot strengthen the plaintiff’s argument in the Expert Directions Summons, in particular, it was pointed out that the plaintiff’s counsel did not rely on the new evidence in his submissions at all, and that the Supplemental Report does not address the key issue of whether the plaintiff’s psychiatric conditions may have been caused by the accident. 

16.  The first point can be dealt with quickly, for it is factually incorrect for Ms Yu to allege that Mr Wong, the plaintiff’s counsel, has placed no reliance on the Supplemental Report.  He has plainly done so in paragraph 56 of his written submissions dated 18 January 2021.

17.  In relation to the second point, with respect, I do not think it is a prerequisite for the Supplemental Report to address on the so-called “key issue” before it will be accepted as new evidence.  The “key issue” should be dealt with by the experts nominated by the parties if the court allows the plaintiff’s application to adduce psychiatric expert evidence.

18.  In submitting that the Supplemental Report has “no important influence on the result of the case”[5] for the reason that the said report is silent on the issue of causation, it seems that Ms Yu has confused what “the case” should be, as it appears that she is referring to the ultimate outcome of the plaintiff’s personal injuries claim.  In my view, that is not right.  The “case” here should mean the Expert Directions Summons rather.  In other words, the correct question to ask is whether the Supplemental Report might have a very important influence on the plaintiff’s application to adduce psychiatric expert evidence, rather than on the plaintiff’s personal injuries claim as a whole.

19.  The Supplemental Report supports the plaintiff’s contention that he is still suffering from depression, and such a condition might have a bearing on, among other things, his ability to resume his pre-accident job.  In my view, this might affect the court’s decision on the Expert Directions Summons.

20.  Ms Yu further submitted that there is “a big question mark on whether the evidence is presumably to be believed”[6] because there was allegedly a clear intention for the plaintiff to raise various complaints and symptoms in front of Dr Tsang, so that these complaints and symptoms can be put on record. First of all, as far as the record of complaint is concerned, while I agree that the plaintiff’s complaints may or may not be genuine (this has to be decided at the trial), it does not affect the credibility of Dr Tsang’s report.  The focus should be on the accuracy and credibility of Dr Tsang’s record, rather than the plaintiff’s complaints. 

21.  Moreover, as pointed out by Mr Wong in his 2^nd submissions in reply, if Dr Tsang took the view that the plaintiff was exaggerating his complaints, he would be duty bound to point that out in the Supplemental Report.  On the basis of the materials placed before this court, there is nothing which supports any suggestion that Dr Tsang has failed his duty.

22.  Lastly, Ms Yu submitted, by referring to paragraph 18 of Jose Miranda Da Costa Junior & Another (supra), that the plaintiff’s late application has created a dilemma for the defendant to his prejudice, because “in order to have the Expert Summons to be heard as soon as possible, the defendant has to give up its (sic) opportunity to adduce evidence in opposition to the plaintiff’s Affirmation Summons.  The time spent by the defendant’s legal representatives on dealing with the plaintiff’s Affirmation Summons could have been better spent by the defendant in preparing for the Expert Summons.”[7]

23.  This submission is not accepted for the following reasons:

(1)  The strength of the defendant’s argument is substantially weakened by this court’s order of “paper disposal” which was made by consent of the parties.  There was thus no time-constraint (unlike the case of Jose Miranda Da Costa Junior & Another in which there were no more than 2 business days between the 1^st plaintiff’s receipt of the 1^st defendant’s new affirmation and the hearing) as such.   If the defendant really needed to file and serve any affirmation in response, he could do so without delaying substantially the disposal of the Expert Directions Summons, because this court might start considering the application on paper once the affirmations in response and in reply were filed.  There is no concern that the whole application has to be re-fixed to another date subject to the court’s diary.  Hence, I do not accept that there was any “dilemma” as such.

(2)  Furthermore, it should be remembered that when the court enquired with the parties (in writing) on 14 January 2021 as to how the parties would like to deal with the Affirmation Summons (which was fixed to be heard for 3 minutes on the same day as the substantive argument of the Expert Directions Summons), the defendant did not indicate at all that he intended to file any affirmation in opposition.  He only stated that he would like to make submissions on the Affirmation Summons.  Again, I cannot see there is any dilemma as alleged.

(3)  Because the matter is dealt with on paper, and there is no time constraint (as in the case where there is an oral hearing), the argument that the legal representative’s time could have been better spent on the Expert Directions Summons is a non-starter.  If necessary, the defendant could have requested this court to adjust the timetable on lodging submissions which was originally fixed without the Affirmation Summons in mind.  Indeed, upon the receipt of the Affirmation Summons, this court had expressly invited the parties to consider whether the original timetable had to be adjusted, however, no such request had been made by the defendant.

(4)  Given the nature of the new evidence (being the Supplemental Report), it is doubtful what further evidence the defendant may file in response thereto.  Indeed, the defendant has not suggested in his submission what evidence he would file if he were given the time to do so.  As aforesaid, when the defendant answered the court’s enquiry, he did not say that any affirmation in opposition would be necessary.

24.  As I take the view that there are exceptional circumstances making it desirable for the Supplemental Report to be adduced, I would grant leave for the plaintiff to file and serve an affirmation which is identical to the plaintiff’s Supplemental Affirmation which was affirmed on 4 January 2021 within 14 days hereof.  However, to avoid confusion, it should be named as the plaintiff’s 4^th Affirmation.

THE EXPERT DIRECTIONS SUMMONS

Legal principles

25.  Parties agreed that the applicable legal principles have been set out in Fung Chun Man v Hospital Authorityand Another (HCPI 1113/2006, unreported, 24 June 2011), in which Bharwaney J had the following to say:

“9.  The enactment of the CJR did not result in a change to O.38, r.36 of the Rules of the High Court (“RHC”).  However, after the enactment of the CJR, it is clear that the court’s discretion, whether or not to grant leave to a party to adduce expert evidence, is to be exercised within the ambit of the court’s management powers.  Those powers must be exercised in the light of the underlying objectives of the CJR, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

10.  The courts recognise that the primary aim of its case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.  However, the substantive rights of the parties to a personal injury action do not include a legal right to call experts of their choice.

11.  The expert evidence can only be adduced with leave of the court and, in deciding whether or not to grant leave, the court must ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR.

12.  In this regard, I echo the observations of Evans-Lombe J in Barings PLC v Coopers & Lybrand (No.2) [2001] Lloyds Report Bank 85:

‘45. Expert evidence is admissible …. in any case where the court accepts there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of those issues. Evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.’

13.  The Court of Appeal in Mann v Messrs. Chetty & Patel (a firm) [2000] EWCA CIV 267 proposed 3 questions that ought to be asked before deciding to allow expert evidence:

‘(a) how cogent the proposed expert evidence will be;

  (b) how helpful it will be in resolving any of the issues in the case; and

  (c) how much it will cost and the relationship of that cost to the sums at stake.’

14.  Chu J, as she then was, referred to Barings PLC v Coopers & Lybrand and concluded, in Wong Hoi Fung v. American Assurance Co. (Bermuda) Ltd. [2002] 3 HKLRD 507, that the expert evidence must be reasonably required to resolve the issues before the court before leave would be granted to adduce it.

15.  In summary, the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate.

16.  However, even if a prima facie case is made out for the admission of expert evidence, in every case, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant in cases where a late application is made for expert evidence to be adduced.  These matters have to be considered and weighed in the light of and against the underlying objectives of the CJR: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.  Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.’”

26.  In dealing with the specific question of whether expert evidence from clinical psychologists or psychiatrists should be allowed to be adduced, his Lordship stated that:

“23.  There appears to be a misconception that the courts will not readily grant leave for evidence from a psychiatrist or a psychologist to be adduced. The law of negligence does not provide a remedy for distress which does not amount to a recognised psychiatric illness, unless the distress, anxiety or fear is accompanied by a physical injury. The courts award damages where a party has suffered a recognisable psychiatric illness over and above emotional distress and disquiet. The court will almost invariably require expert evidence to determine whether or not this is the case. Even where it is not disputed that the plaintiff suffers from psychiatric illness, there may be a dispute as to causation: was the psychiatric illness caused or contributed to by the tort complained of. A trial judge who has to determine this issue of causation may need assistance from an expert in this field.

24.  Indeed, in most cases, the need for psychiatric treatment or psychological counselling is apparent long before the commencement of proceedings. Inappropriate conduct or speech is noted by family members or recorded on the hospital records. Prolonged sadness, excessive anxiety, unusual irritability and temper tantrums are all indicia of possible psychiatric illness. These are often recognised by treating doctors and nurses and the patient referred to a psychiatric unit, whether in-patient or out-patient, for assessment and treatment. Even if the hospital records or treating doctors and nurses make no mention of a plaintiff’s psychiatric illness or possible psychiatric illness, orthopaedic or neurological experts examining a plaintiff in order to prepare expert medical reports on his physical condition will often recognise the presence of a psychological or psychiatric component and recommend that reports be obtained from relevant experts in that field. Each case must depend on its own facts and a mere recommendation without supporting reasons by an expert from another field may be insufficient, but where the need for psychiatric or psychological evidence is clear and obvious, there can hardly be any realistic challenge to a request for relevant expert examination and reporting.

25.  In other cases, where there is no apparent indicia of a psychological component in addition to the physical injuries suffered by the plaintiff, the request for leave to adduce evidence from a psychiatrist or a psychologist will need to be properly justified. Such justification may be provided by submitting a written note from the intended expert setting out brief reasons explaining why the expert opinion is necessary in the particular case. However, for the reasons set out in §§18 and 19 above, a full medical examination and report should not be commissioned without agreement from the other party or leave of court.

26.  If the request is made late in the day, or close to the commencement of trial, it is likely to be refused even if justified. As Brooke LJ explained in Baron v. Lovell [2000] PIQR P20, each party is afforded an opportunity by the rules to make a well informed valuation of the claim and a well informed Part 36 offer (or, in Hong Kong, a sanctioned offer).  The regime simply will not work if the former latitude in serving late evidence is allowed to persist.  It is quite wrong for a trial to be delayed, and for the possibility of making an effective Part 36 offer (or, in Hong Kong, a sanctioned offer) to be rendered nugatory, because of the late service of an expert’s report.”

Relevance of psychiatric expert report

27.  It is the plaintiff’s case that expert evidence by specialists in psychiatry is required in the present case because of his psychiatric conditions.  In this regard, he referred this court, among other things, to:

(1)  the Patient Referral Form dated 19 June 2019 issued by Dr Clarence Lee (a specialist in respiratory medicine) in which it was stated that the plaintiff was diagnosed as suffering from post-traumatic stress disorder, having depressive symptoms with chronic insomnia and vague suicidal thoughts;

(2)  the single joint expert report dated 16 December 2019 prepared by Dr Henry Cheung (a specialist in cardiothoracic surgery) in which it was stated that the plaintiff has begun to exhibit symptoms of depression with chronic insomnia, depressive symptoms and thoughts of suicide;

(3)  his treatments received at the West Kowloon Psychiatric Centre of Princess Margaret Hospital on 23 March 2020, 18 May 2020 and 10 August 2020;

(4)  the medical report dated 22 June 2020 by Dr Yan Kam Sun (who held a Postgraduate Diploma in Community Psychological Medicine) who took the tentative view that the plaintiff was suffering from post-traumatic stress disorder;

(5)  the medical report dated 21 June 2020 by Dr Tsang, who opined that the plaintiff was suffering from Major Depressive Disorder and that this mental problem is likely to be caused by the injury suffered as a result of the accident; and

(6)  the medical report dated 24 December 2020 by Dr Tsang, who opined that the plaintiff was still suffering from depressive disorder and the prognosis was not as optimistic as before.

28.  Ms Yu submitted that the causal link between the accident and the psychiatric illness appears to be tenuous and that the plaintiff has failed to demonstrate that the proposed psychiatric expert evidence is relevant, necessary and of probative value, because:

(1)  there was nothing which suggested that the plaintiff has suffered from any psychiatric illness shortly after the accident on 18 February 2016, and the first time when “psychiatric illness” was mentioned was in the referral letter prepared by Dr Clarence Lee dated 16 June 2019.  As mentioned by Bharwaney J in Fung Chun Man as quoted above, in most cases the need for psychiatric treatment would be apparent long before the commencement of the proceedings, and indicia of possible psychiatric illness would often be recognised by treating doctors for assessment and treatment;

(2)  it was agreed by the orthopaedic experts in their report dated 24 August 2017 that examination by other specialists would not be required;

(3)  Dr Henry Cheung’s opinion that the plaintiff’s apparent signs and symptoms of depression were likely to be caused by the accident is unsupported by any explanation;

(4)  Dr Tsang’s assertion that the plaintiff’s mental problem is likely to be caused by the injury suffered in the accident is based on the wrong premise that the plaintiff’s mental symptoms appeared shortly after the injury and insufficient information.

29.  In the present case, the first question we need to ask is whether psychiatric expert evidence is reasonably required to enable the court to resolve the issues in dispute.  It is just another way to express the same consideration: whether psychiatric expert evidence is likely to be of real assistance to the determination of the issues before the court.  Such evidence will not be helpful, and needs not be adduced, where the issue to be decided is one on which the court is able to come to a fully informed decision without hearing such evidence.

30.  In my view, this court should only give negative answers to the aforesaid questions if it can be concluded at this stage and with the materials placed before the court that the plaintiff will not be able to establish, on the balance of probabilities, that his psychiatric illness (if any) is caused by the accident on 18 February 2016.

31.  I do not think I can come to that conclusion.

32.  It is true that the plaintiff’s alleged psychiatric illness was not diagnosed until Dr Clarence Lee referred to it in the Patient Referral Form dated 19 June 2019.  By then, it was already 3 years and 4 months since the date of the accident.  However, there is a question mark as to whether it is really the case that the plaintiff’s mental illness symptoms had never been mentioned in medical records at all until June 2019 (as alleged by the defendant), because it can be seen that:

(1)  In the triage assessment record of the A & E Department of Princess Margaret Hospital dated 7 October 2016, the plaintiff’s “condition on arrival” was described as “distress”;

(2)  In the triage assessment record of the A & E Department of Princess Margaret Hospital dated 16 November 2016, the plaintiff’s “condition on arrival” was described as “distress”, and it was recorded “sleep disturbed occasionally”.

33.  When the plaintiff consulted Dr Tsang on 25 May 2020, he told the doctor that, shortly after the injury, he was unable to get to sleep, that he had excessive worries, and became very irritable and hot tempered.  He also stated that he was very unhappy and unable to cheer up.  It was on this basis that Dr Tsang gave his medical opinion.

34.  In the light of the aforesaid triage assessment records, I do not think I can reject Dr Tsang’s opinion outright on the basis of his acceptance that the plaintiff’s mental symptoms appeared shortly after the injury.

35.  Even if the mental illness symptoms only appeared 3 years and 4 months after the accident, I still cannot come to the conclusion that the alleged psychiatric illness must be unrelated to the accident by reason of the lapse of time.  I have no basis to make that finding without expert evidence. 

36.  Furthermore, Ms Yu’s reliance on what Bharwaney J said in Fung Chun Man as quoted above, with respect, is misconceived, as I do not think his Lordship was minded to lay down any principle as such.  As his Lordship pointed out, each case must depend on its own facts.

37.  Neither do I think the orthopaedic experts’ view that examination by other specialists would not be required should be regarded as conclusive.  In any event, such a view may have to be revisited in the light of Dr Tsang’s opinion.

38.  For the above reasons, I hold the view that the plaintiff has overcome the first hurdle in satisfying this court that psychiatric expert evidence is relevant, necessary and of probative value in the circumstances of the present case. 

Other discretionary considerations

39.  Ms Yu submitted that in any event the court should not exercise its discretion in granting leave for the plaintiff to adduce psychiatric expert evidence because:

(1)  if the plaintiff was aware of his psychiatric illness by 16 June 2019, he should have sought expert directions much earlier, for example, at the Checklist Review hearing on 3 September 2019, rather than waiting until June 2020;

(2)  the plaintiff had given no explanation on the said delay;

(3)  allowing the plaintiff’s application would increase costs and make the speedy resolution of the present action impossible given Dr Tsang’s opinion that ideally the examination by psychiatric experts cannot take place until 12 months after Dr Tsang’s report (dated 21 June 2020).

40.  It is evident that the plaintiff’s solicitors had, by virtue of their letter dated 18 December 2019, proposed to the defendant’s solicitors, on the strength of Dr Clarence Lee’s Patient Referral Letter dated 19 June 2019 and Dr Henry Cheung’s expert report dated 16 December 2019, that psychiatric expert report(s) be obtained.  However, the defendant’s solicitors did not give any reply to this letter at all. 

41.  The plaintiff did not take out any summons for expert directions immediately thereafter.  He only did so after he had attended the first appointment at the Psychiatric Unit of the Princess Margaret Hospital on 23 March 2020[8] and consulted another specialist in Dr Tsang on 25 May 2020. 

42.  I am of the view that the plaintiff, at most, can only be blamed for not bringing up this matter at the Checklist Review hearing in September 2019.  He only did so in December 2019 by solicitors’ correspondence. There was thus at most a 6-month delay.  I do not think the plaintiff’s application should be dismissed for this reason alone.

43.  The plaintiff should not be blamed for not taking out a summons immediately after he has sent his solicitors’ letter in December 2019.  If the defendant was minded to give consent to the plaintiff’s proposed expert directions as suggested in December 2019, the defendant would have done so there and then, rather than choosing to give no reply at all. Facing such a situation, a prudent litigant would have waited to gather more evidential support before incurring further costs on applying for expert directions.  It can be seen that the plaintiff has taken out the Expert Directions Summons around a month after he has obtained Dr Tsang’s report dated 21 June 2020.  The time taken is acceptable.

44.  In relation to the defendant’s argument that allowing further expert evidence would increase costs, I think the point to consider is whether the costs to be incurred would be proportionate in the circumstances.  In this regard, I agree with Mr Wong’s argument that, taking into account the potential amount of damages which the plaintiff may be able to claim, the further costs to be incurred on psychiatric expert evidence would be proportionate.

45.  I have not lost sight of the fact that giving leave for the parties to adduce psychiatric expert evidence would necessarily mean that there will be further delay caused to the progress of the present case, which, according to Ms Yu, would otherwise be ready to be set down for trial. 

46.  It should be mentioned at this point that according to the Supplemental Report, the plaintiff’s psychiatric condition has become static in the last quarter of 2020.  In other words, Dr Tsang’s initial recommendation that the plaintiff should only be assessed in June 2021 seems to be no longer valid.

47.  Furthermore, delay to the progress of the case is just one of the matters to be considered.  I also have to bear in mind fair administration of justice between the parties and the fact that the primary aim of the court’s case management powers is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.  In my view, if I do not allow psychiatric expert evidence to be adduced, the prejudice to the plaintiff would be far greater than that which will be caused to the defendant by reason of the delay in the final resolution of disputes. 

48.  It is also noted that no milestone date has been fixed in the present case.

49.  I will therefore exercise my discretion in giving leave for the parties to adduce psychiatric expert evidence.

Expert directions

50.  Parties are directed to discuss between themselves on the precise expert directions to be obtained, having regard to the availability of the two experts nominated by the parties (Dr Wong Chung Kwong and Dr Peter Yu respectively).  They shall inform this court within 14 days of this Decision their agreed directions by a joint letter for approval. In the event they cannot agree on such directions, they shall each propose their respective directions in writing within 21 days hereof for the court’s consideration.  

COSTS

51.  The defendant should bear the plaintiff’s costs of both summonses because he has failed to resist both of them, subject to the followings:

(1)  the costs of the non-agreed bundle should not be allowed because the only document which was referred to in this bundle (which comprises 213 pages) by the plaintiff’s counsel was a letter dated 18 December 2019 issued by the plaintiff’s former solicitors to the defendant’s solicitors, which should have been exhibited to the plaintiff’s 1^st Affirmation (and included in the agreed bundle as an exhibit) as this letter was expressly referred to therein.

(2)  Only 85% of the costs of the plaintiff’s 1^st Affirmation filed on 30 June 2020 should be allowed because paragraphs 17 and 19 thereof are repetition of what he had already stated in paragraphs 7 to 9 of the same affirmation;

(3)  Only 20% of the costs of the plaintiff’s 2^nd Affirmation filed on 19 August 2020 should be allowed because:

(i)  Paragraphs 3 to 12 are basically repetition of what he had already stated in paragraphs 3, 7 to 9 and 17 to 19 of his 1^st Affirmation;

(ii)  Around 2/3 of the very long paragraph 18 is a repetition of paragraphs 4 to 6 of the same affirmation, which in turn, as aforesaid, are matters which have already been covered in the plaintiff’s 1^st Affirmation;

(iii)  Paragraphs 19 to 25 are nearly identical to paragraphs 22 to 26 and 10 to 11 of the plaintiff’s 1^st Affirmation;

(iv)  In other words, only slightly more than 5 paragraphs in this affirmation should have been included.

52.  I therefore make a cost order nisi that the defendant shall bear the plaintiff’s costs of the Affirmation Summons and of the Expert Directions Summons, with certificate for counsel, to be taxed if not agreed, subject to the deductions mentioned in the preceding paragraph. 

53.  For the avoidance of doubt, the costs of the psychiatric expert evidence to be obtained shall be in the cause of the action.

54.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations. 

55.  The above order nisi shall become absolute in the absence of application to vary within 14 days hereof.

Mr Tim Wong, instructed by Ellen Au & Co, for the Plaintiff

Ms Christine Yu, instructed by Cheung & Yeung, for the Defendant