HU WAN v. SANWO INTERNATIONAL CO LTD

DCPI 3621/2019

[2021] HKDC 948

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 3621 OF 2019

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BETWEEN

	HU WAN	Plaintiff
and
	SANWO INTERNATIONAL COMPANY LIMITED	Defendant

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Before: His Honour Judge Andrew Li in Chambers (Open to public)

Date of Hearing: 27 July 2021

Date of Decision: 11 August 2021

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DECISION

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INTRODUCTION

1.  This is an application of the plaintiff by way of summons to vary the costs order nisi made by me in the assessment of damages on 26 February 2021 (“the Judgment”).  The plaintiff now asks for enhanced interest and costs on an indemnity basis, based on a sanctioned offer made by her on 5 May 2020. The last day of which the defendant could have accepted the sanctioned offer without leave was on 2 June 2020.

BACKGROUND

2.  In brief, the plaintiff sustained a work-related accident on 31 January 2016.  The writ was issued by the plaintiff on 14 August 2018.  On 14 September 2018, interlocutory judgment was entered against the defendant with damages to be assessed.

3.  The assessment of damages took place on 9 and 10 November 2020 before me. On 26 February 2021, I handed down the Judgment in favour of the plaintiff in the sum of HK$991,160 (net of EC payment) plus interest.

4.  As to be expected in any personal injury (“PI”) action, prior to the assessment of damages hearing, the parties had been engaged in active settlement negotiations with exchanges of offers and counter-offers.  Unsurprisingly, sanctioned offers and sanctioned payments were made by the parties during the process of negotiations. Obviously, the Court was not aware of such negotiations taking place behind the scene as should be the case.

5.  The following table gives a brief summary of the without prejudice/sanctioned offers/sanctioned payments made by the parties prior to the assessment of damages which was prepared by the plaintiff’s counsel:-

12 December 2016	The defendant’s loss adjustors made a global settlement offer of HK$360,000 (inclusive of employees’ compensation’s (“EC”) payment)
5 January 2017	The defendant’s loss adjustors increased the global offer to HK$420,000 (inclusive of EC payment)
31 October 2017	The defendant’s loss adjustors increased the global offer to HK$500,000 (inclusive of EC payment)
7 September 2018	The defendant made the 1st sanctioned payment of HK$220,000 on top of EC payment
9 October 2018	The defendant made the 2nd sanctioned payment of HK$50,000, increasing the offer to HK$270,000 on top of EC payment
7 November 2018	The defendant made the 3rd sanctioned payment of HK$70,000, increasing the offer to HK$340,000 on top of EC payment
12 December 2018	The defendant made the 4th sanctioned payment of HK$70,000, increasing the offer to HK$410,000 on top of EC payment
4 October 2019	The defendant’s solicitors wrote to the plaintiff’s solicitors, reopening the sanctioned payment of HK$410,000 for the plaintiff’s acceptance but with no order as to costs after 9 January 2019
5 May 2020	The plaintiff made the 1st sanctioned offer of HK$500,000
23 June 2020	The plaintiff made the 2nd sanctioned offer of HK$415,000

6.  Besides the above dates, the following dates and events are also material in the context of this case:-

30 April 2019	The joint orthopaedic experts’ report have been made available to the parties
9 July 2019	The plaintiff filed her witness statement in accordance with the Order of Master Grace Chan dated 28 January 2019. The parties should have exchanged their respective witness statements in April 2019. However, due to the defendant’s failure to exchange its witness statement and despite the repeated reminders for it to do so, the plaintiff filed her witness statement first
2 October 2019	The defendant filed the 1st witness statement of Miss Dream Hui, purportedly trying provide 2 comparable workers’ wages.  This witness statement was filed 6 months late with no explanations
6 April 2020	The defendant made request for extensive discovery on the plaintiff’s bank statements entries by letter
17 April 2020	Mediation took place but was unsuccessful
11 May 2020	The defendant sought particulars of 17 transactions of the discovered bank statements provided by the plaintiff
15 June 2020	Leave to set down was granted by Her Honour Judge Levy and the case was put on the running list not to be warned for assessment of damages before 31 October 2020
7 August 2020	The specific discovery exercise was completed as confirmed by the defendant’s letter

7.  From the above tables, it can be seen that the defendant had made a total of 4 sanctioned payments between 7 September 2018 and 12 December 2018.  Effectively, the defendant was offering a sum of HK$410,000 on top of the EC payment which had already been paid to the plaintiff in the sum of HK$282,500.24 in full and final settlement of the case.

8.  It is also clear that the plaintiff had made 2 separate sanctioned offers in the sum of HK$500,000 and HK$415,000 respectively.

9.  It is further not in dispute that this Court had awarded damages to the plaintiff more than the 1^st sanctioned offer she had made to the defendant. In fact, it was almost double of that amount if the element of interest were to be taken into account.

DISCUSSION

Applicable principles

10.  The applicable principles of law are not in dispute.  They can be briefly summarised in the following paragraphs.

11.  Order 22 rule 24 of the Rules of the District Court, Cap 336H (“RDC”) reads:

“(1) This rule applies where—

(a) a defendant is held liable for more than the proposals contained in a plaintiff’s sanctioned offer; or

(b) the judgment against a defendant is more advantageous to the plaintiff than the proposals contained in a plaintiff’s sanctioned offer.

(2) The Court may order interest on the whole or part of any sum of money (excluding interest) awarded to the plaintiff at a rate not exceeding 10% above judgment rate for some or all of the period after the latest date on which the defendant could have accepted the offer without requiring the leave of the Court.

(3) The Court may also order that the plaintiff is entitled to—

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

(b) interest on those costs at a rate not exceeding 10% above judgment rate.[1]

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

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

(a) the terms of any sanctioned offer;

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

(c) the information available to the parties at the time when the 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 offer to be made or evaluated.

(6) The power of the Court under this rule is in addition to any other power it may have to award interest.”

12.  These rules are designed to provide important incentives to encourage the plaintiff to make, and the defendant to accept, settlement offers at appropriate levels as early as possible.  Such an incentive would be deprived of effect unless the non-acceptance of an offer, which subsequently proves to have been a sufficient offer, ordinarily will advantage the plaintiff in the manner foreseen in the rules: See Hong Kong Civil Procedure 2021 Vol 1, §22/24/1.

13.  Order 22 rule 24(5) of the RDC stipulates that matters that the Court would take into account in determining what it considers to be “unjust”.  The Court will take into account all the circumstances of the case including rule 24(5)(a)-(d).

14.  In Arnold Robert Limited v Glorious Motors Limited[2019] HKCFI 91 at §12, it was held that for a circumstance to be taken into account as relevant in considering whether it is unjust to make such orders: (a) it ought to relate to the reasonableness or otherwise of the defendant’s non-acceptance of the sanctioned offer; or (b) it suggests that, while the continuation of the proceedings is primarily due to the non-acceptance of the sanctioned offer, costs are incurred or increased thereafter due to any unreasonable conduct of the plaintiff.

15.  Mr Ramanathan SC for the defendant (who did not appear at the original assessment of damages hearing) acknowledges that once Order 22 rule 24 is engaged, after taking into account of all the circumstances of the case, unless the Court considers it unjust to do so, it will order enhanced interest and/or indemnity costs.  Hence, Order 22 rule 24 is aimed at genuine offers to settle and not some “tactical ploy” for the purpose of advancing a claim under its umbrella thereafter: see Gill Ajmer Singh v Wah Hing Scaffolding Engineering Ltd and Another [2014] 1 HKC 495, 13 November 2013; (Deputy Judge R Lai).  It is further submitted by Mr Ramanathan SC that it is not automatic that a plaintiff will be entitled to indemnity costs just because he has made an Order 22 rule 24 sanctioned offer and receives a judgment which is better than the defendant’s offer.  Costs are, as always, remain in the general discretion of the Court.

16.  In undertaking this evaluation exercise, the Court is entitled to and should assess the conduct of the defendant over the course of the litigation and the reasonableness or otherwise of the defendant’s non-acceptance of the plaintiff’s sanctioned offer: see Wah Lun International Development Limited v Lau Chiu Shing[2021] HKCFI 1976, 8 July 2021, Deputy High Court Judge William Wong SC.

17.  I have no problem in accepting the above submissions made by the defendant’s counsel.

This Court’s findings

(i) Whether Order 22 rule 24 engages?

18.  In my judgment, there can be no dispute that the plaintiff’s 1^st and 2^nd sanctioned offers are valid offers and that the defendant was found liable to pay more damages than those contained in both of the sanctioned offers.  Hence, in my judgment, Order 22 rule 24 is engaged. This is not a matter which is disputed by the defendant.

19.  Order 22 rule 24(4) provides that where rule 24 applies, the Court shall make the orders referred to in rule 24(2) (ie enhanced interest) and rule 24(3) (ie indemnity costs) unless “it considers it unjust to do so”.

20.  Given the award made by this Court at the assessment of damages (at HK$991,160 plus interest) is more than double than the plaintiff’s 1^st sanctioned offer at HK$500,000 (which is inclusive of interest) or the 2^nd sanctioned offer at HK$415,000 (which is also inclusive of interest), I find it surprising that the defendant would choose to oppose the present application. 

(ii) Whether there is any injustice caused to the defendant?

21.  In the defendant’s solicitor’s affirmation filed in support of the opposition to the plaintiff’s present application, it has been stated that the 2^nd sanctioned offer made by the plaintiff on 23 June 2020 at HK$415,000, which was merely HK$5,000 more than the last sanctioned payment made by the defendant on 12 December 2018 (and was re-opened by letter on 4 October 2019 but with no order as to costs after 9 January 2019), was a tactical move/ploy made by the plaintiff. 

22.  Mr Ramanathan SC in his written submission stated that all along the defendant had acted reasonably in making the 4^th sanctioned payment and had not in any way dragged its feet in trying to achieve an amicable settlement of the claim without having to resort to trial.

23.  He submitted that when the joint orthopaedic experts’ report was made available to the parties on 30 April 2019, the defendant had reconsidered its position and sought advice as to whether the sanctioned payment needed to be topped-up. Hence, according to the defendant, the lapsed sanctioned payment made in December 2018 was revived on 4 October 2019 “in a genuine attempt” to effect a settlement with the plaintiff.  The sanctioned payment was made in the light of the joint orthopaedic experts’ evidence which concluded that the plaintiff could return to her pre-accident work which is something the plaintiff has all along disagreed with.

24.  With respect, I cannot agree with the defendant’s submission that the plaintiff’s 2^nd sanctioned offer at HK$415,000 was a “tactical move/ploy”. In my view, one must not lose sight of the fact that this case had been unnecessary prolonged by the late filing of the defendant’s witness statement without explanation.  Further, it has not been helped by the extensive discovery exercise undertaken by the defendant on the plaintiff’s bank account records between April and August 2020.  After the unsuccessful mediation which took place on 17 April 2020, this whole prolonged litigation process must have caused enormous stress and anxiety on the plaintiff. This is something which has been verified by the plaintiff in her affirmation filed in support of the present application. Hence, I am not surprised that she was willing to make the 1^st sanctioned offer at HK$500,000 in May 2020.  After receiving absolutely no response from the defendant at all, she then reduced that sanctioned offer to HK$415,000 in the hope that the defendant would settle that amount without her having to pay any costs of the defendant since the last sanctioned payment was made by it in December 2018.  With respect, I do not accept the claim that this bears “all the hallmarks of a purely tactical move/step” as alleged by the defendant in its solicitor’s affirmation.

25.  As explained by the plaintiff in her affirmation, after the joint orthopaedic experts’ report was made available on 30 April 2019, she obtained written advice from her legal aid assigned counsel in June 2019. She was advised that the defendant’s offer at HK$410,000 (net of EC payment) was unreasonable and too low. She was advised not to accept it.

26.  I further accept her explanation that the unexplained delay of the defendant in exchanging the witness statement and the late specific discovery requests made against her on her bank statement details had all caused unnecessary stress and pressure on her.  According to the Order of Master Grace Chan on 28 January 2019, the parties were supposed to exchange the respective witness statements on or before 25 April 2019.  While the plaintiff’s witness statement was ready to be exchanged on that day, the defendant’s solicitors had, by letter dated 24 April 2019, asked for time extension to exchange its witness statement. 

27.  After a couple of reminders, the plaintiff did not wait for the defendant and filed her witness statement on 9 July 2019.  In breach of Master Grace Chan’s Order, the defendant only served the witness statement of Ms Dream Hui on 2 October 2019, without any good explanation and with an unacceptable delay of 6 months.

28.  As I have found in the Judgment, the information in relation to the purported comparable workers’ would be earnings provided by Ms Hui in her witness statement was extremely unhelpful if not misleading.

29.  However, only 2 days after they had belatedly filed the witness statement of Ms Dream Hui, the defendant’s solicitors re-opened the offer of HK$410,000 on 4 October 2019, which is inclusive of interest but with no order as to costs after 9 January 2019, the last day which the plaintiff could have accepted the last sanctioned payment made in Court on 12 December 2018.

30.  The plaintiff also stated in her affirmation of the extreme exhaustion and pressure brought by the litigation after the unsuccessful mediation on 17 April 2020.  By this time, this case had been dragged on for more than 3 years.  Due to those pressure and the fact that the plaintiff just wanted to settle the dispute in order to avoid the trial, she instructed her lawyers to make the 1^st sanctioned offer of HK$500,000 on 5 May 2020.  However, as mentioned by her, the defendant did not make any reply or response to that offer at all.  In other words, that sanctioned offer was simply ignored by the defendant.  Instead, the defendant went on an elaborate exercise of specific discovery against plaintiff on her bank statements and sought further particulars on 17 separate transactions in her bank statements.  At the same time, the plaintiff was not able to resume her work as a salesperson and could only work as clerk as mentioned in the Judgment.  Not surprisingly, the lengthy litigation process took its toll and the plaintiff became despair and impatient.  Hence, according to her, as a last attempt to settle the case, she had, on 23 June 2020, made the 2^nd sanctioned offer in the sum of HK$415,000.  She did so of course with the aim to settle the matter without going to trial.

31.  In the light of the above facts, I cannot see how by making a sanctioned offer at a substantially reduced amount at HK$415,000 could be said to be a “tactical ploy” or an improper move on the part of the plaintiff or her legal advisors. In my opinion, this is exactly what the Order 22 regime is designed for, ie to facilitate early and reasonable settlement.  In my view, making a well conceded offer in order to prompt the other side to settle the case must be within the spirit of the rules to promote settlement.  This cannot be described as a “tactical ploy” in the same vein as in the case found by the learned judge in Gill Ajmer Singh, supra, cited by the defendant. Of course, in each PI case, like any civil case, it involves tactical moves made by opposing parties. This is what litigation is about. It is an art of compromise. In my view, as long as they are genuine attempts for the parties to achieve settlement without going to trial, I do not see anything wrong with that.  In fact, having had the benefit of seeing the plaintiff in person when she gave evidence in court and saw how she reacted towards the lengthy cross-examination undertaken by the defendant’s counsel who represented the defendant at the assessment, I could see that she was a lady of nervous composition and full of anxieties.  The fact that she was willing to compromise her claim substantially (which was against her counsel’s advice) should not in my view be treated as something deplorable or labelled as a “tactical ploy”. 

32.  On the other hand, the defendant, who was armed with all the relevant data as to the more accurate sum which a shopkeeper with similar background/experience as the plaintiff working at the defendant’s shop in Tseung Kwan O was able to make, chose not to disclose those evidence.  It also chose not to call Ms Dream Hui to give evidence at the assessment hearing on the purported reason that she had already left the defendant’s employment.  No explanation was provided by the defendant as to why she could not be subpoenaed to the Court to give evidence.  Nor was there any reason why a more senior officer from the human resources department of the defendant was not arranged to come to give evidence in place of the relatively junior staff who gave evidence on behalf of the defendant at the assessment hearing.

33.  In my judgment, the defendant must have been well aware of the risk that, if the plaintiff’s evidence (on her inability to return to her pre-accident employment) were to be accepted by the Court (in contrary to the joint opinion of the orthopaedic experts), the eventual damages awarded by the Court would be much higher than the sanctioned payments made by it or the sanctioned offers made by the plaintiff.  After undertaking the rather elaborated specific discovery exercise, the defendant’s legal advisors obviously were contended with taking that risk and proceeded to the assessment.  Now that the Court has found the damages was more than double than what the plaintiff had offered to settle the case, it is in my opinion “no use crying over spilled milk”.

34.  The defendant in its solicitor’s affirmation also mentioned the fact that it had admitted liability early in the proceedings; made genuine attempts to negotiate; and seeking the advice of counsel to offer or make sanctioned payment. They say these are all sensible and reasonable steps for a defendant to take.

35.  I do not dispute with that. However, the fact remains that, after a 2-day assessment hearing, the defendant was found liable to pay more than double of the plaintiff’s sanctioned offer.  And there was no appeal to the Judgment. I agree with Mr Wong for the plaintiff that a genuine but wrong assessment of the claim does not make it unjust for the Court to impose the orders set out under Order 22 rule 24. 

36.  In the context of this case, I find that had the defendant acted reasonably in accepting the plaintiff’s 1^st sanctioned offer, this case would have been ended much earlier and a lot of unnecessary costs could have been avoided.  The assessment of damages hearing did not need to take place.  Given the defendant’s refusal to settle at the much more favourable terms offered to it by the plaintiff back in May 2020, the plaintiff was forced to undergo a stressful trial process which had added to the already heavy emotional and financial burden placed on top of her physical sufferings resulting from the accident.

37.  In the abovestated circumstances, I find there is no injustice caused to the defendant in this case at all.  As a result, I shall make the following orders.

(iii) Enhanced interest on damages

38.  Order 22 rule 24 allows the Court to award enhanced interest at a rate up to 10% above judgment rate.  The rationale behind this is to encourage settlement and discourage unreasonable refusal to accept reasonable offers made by the plaintiff.

39.  The provision under Order 22 rule 24 is not compensatory.  As stated by Hon Au-Yeung J in Chow How Yeen Margaret & Others v Wex Pharmaceuticals Inc & Anor (unreported, HCA 537/2013, 5 September 2017) at §33, the power to award interest at an enhanced rate is:

“to redress the element of perceived unfairness, otherwise inherent in the legal process, which arises from the fact that damages, costs (even on an indemnity basis) and statutory interest will not compensate the successful claimant for the inconvenience, anxiety and distress of having resort to and pursue proceedings…”

40.  In Chow How Yeen Margaret, supra, despite the defendant’s purported reasons to explain why the offer was not accepted there and then, Au-Yeung J found no reason to reduce the enhanced rate and ordered 10% above judgment rate on judgment.

41.  The same rate was also adopted in Grupo Pacifica Incorporada v Worldwide Marine Product Limited & Others[2018] HKCFI 2584 (unreported, HCA 2640/2014, 22 November 2018).

42.  In the PI context, in Xu Xinhong v Cheung Chu Lau[2019] HKCFI 1691 where similarly the defendant was held liable for more than the plaintiff’s sanctioned offer, Master J Wong rejected the defendant’s submission that an enhanced interest rate should only apply to PSLA and pre-trial losses. The court adopted 10% above judgment rate as the interest rate on the plaintiff’s damages.

43.  In my judgment, the 10% above judgment rate in the non-PI cases cited by Mr Wong involve the defendant of extremely unreasonable behaviour.  They do not apply in the present case.  With respect to the learned master in Xu Xinhong, supra, I do not find there was any good reason to impose the 10% above judgment rate interest in that case. 

44.  I do not consider that this is an extreme case where 10% above judgment rate interest should be imposed on the damages.  Instead, as in line with most of the decided PI cases, I consider that a 2% above judgment rate as enhanced interest on damages is reasonable and the same should run from the date of deadline of accepting the sanctioned offer without leave (ie on 2 June 2020 up to the date of Judgment and thereafter at judgment rate).

(iv) Indemnity costs and interest on costs

45.  Given the above, I also find that the plaintiff is entitled to costs to be taxed on indemnity basis from 3 June 2020 onwards. 

46.  As to interest on costs, the Court may award at a rate not exceeding 10% above judgement rate.  The enhanced interest on costs is meant to compensate the party who offers settlement for the costs incurred before judgment: see Chu JA in Wong Tang Keung (黃登強) v Lee Wai Engineering Co Ltd (利維工程有限公司) & Anor [2014] 1 HKLRD 409 at §18.

47.  Contrary to the 10% above judgment rate they sought in the summons, the plaintiff now seeks interest at 2% above judgment rate by relying on the following PI cases:-

(a) Au Man Ming v Goldwell Property Management Limited (unreported, DCPI 636/2010, 28 September 2011) at 1% above judgment rate;

(b) Chan Lap Kwan v Skypy Limited & Anor (unreported, HCPI 258/2012, 7 September 2016) at 2% above judgment rate;

(c) Maysun Engineering Company Limited v International Education and Academic Exchanges Foundation Company Limited trading as Hong Kong Institute of Technology [2011] 2 HKLRD 844 at 2% above judgment rate;

(d) Union Glory Finance Inc & Others v Merrill Lynch International Bank Limited & Anor (unreported, HCA 2494/2013, 13 December 2016) at 2.5% above judgment rate;

(e) Tsang Chiu Yip v Ho Kwok Leung (unreported, HCPI 305/2013, 8 August 2016) at 3% above judgment rate; and

(f) Xu Xinhong v Cheung Chu Lau[2019] HKCFI 1691 at 2% above judgment rate.

48.  In the circumstances of this case, given the plaintiff’s latest concession, I would award enhanced interest on costs at 2% above judgment rate from 3 June 2020 until date of Judgment and thereafter at the usual judgment rate until payment.

(v) Costs to be taxed at the High Court scale before the case was transferred to the District

49.  This case was commenced in the High Court on 14 August 2018.  It was transferred to the District Court under the Order of Master Grace Chan on 3 October 2019.  On that occasion, Master Grace Chan ordered the scale of costs of action before the transfer would be at the discretion of the District Court. 

50.  The case was formally transferred to the District Court on 7 November 2019.

51.  In this case, I find that the plaintiff is entitled to costs to be taxed at the High Court scale prior to the date of transfer on 7 November 2019.  The eventual award of HK$991,160 plus interest demonstrates that it was reasonable for the plaintiff to commence this action in the High Court which then had a jurisdiction of any cases of over HK$1,000,000. The increase of the civil jurisdiction to HK$3,000,000 in the District Court took place in December 2018.

(vi) Enhanced interest on future loss

52.  In the plaintiff’s summons, Mr Wong also seeks enhanced interest of 10% above judgment rate for her loss of future earnings.

53.  I agree with Mr Ramanathan SC’s submission that, in normal PI cases, no interest is ever awarded for loss of future earnings.  I do not really see the rationale behind the claim of 10% above interest rate for the future loss of earnings.  I agree with the defendant that whatever award the Court has made under this head, the plaintiff will be receiving this lump sum “in advance” and there is no logical reason why she is entitled to claim enhanced interest for something that she is receiving for the future.  The other factor to be taken into account in this case of course is the fact that the plaintiff is on legal aid. Hence, she did not have to put up any costs on account to personally finance this action.  She is therefore not deprived of any money of her own in funding the litigation during the interim period.  Hence, I do not agree that enhanced interest for future loss of earnings should be awarded.

(vii) Costs of this application

54.  Mr Wong for the plaintiff asks costs of and incidental to the application to be awarded on an indemnity basis.  I see no reason in doing that.  I find the defendant was reasonable in their opposing of the present application and it had successfully argued that the enhanced interest should be reduced to 2% instead of the 10% enhanced interest the plaintiff was seeking for under the summons.  In the circumstances, I consider that the costs of this application should be taxed on the usual party and party basis instead.

CONCLUSION

55.  In conclusion, based on the above, I would make the following order.

56.  The order on interest made by this Court in the Judgment on 26 February 2021 be varied as follows:-

(1) On the PSLA award, there be interest at 2% from the date of issue of writ of summons to 2 June 2020 and since 3 June 2020 at 2% above judgment rate until the date of judgment, and thereafter at judgment rate; and

(2) On the loss of pre-trial earnings and special damages, there be interest at half of the judgment rate from the date of accident to 2 June 202 and since 3 June 2020 at 2% above judgment rate until the date of judgment, and thereafter at judgment rate.

57.  The order nisi on costs made by this Court on 26 February 2021 be varied as follows:-

(1) The defendant shall pay the plaintiff’s costs of the action (with certificate for counsel) on a party and party basis up to 2 June 2020, and from 3 June 2020 on an indemnity basis, to be taxed if not agreed;

(2) The plaintiff’s costs of the action be taxed at the High Court scale before its transfer to the District Court on 7 November 2019, and at the District Court scale thereafter;

(3) The defendant shall pay to the plaintiff interest on the plaintiff’s costs incurred after 2 June 2020 at the rate of 2% above judgment rate and since 3 June 2020 up to the date of Judgment, and thereafter at the judgment rate; and

(4) The plaintiff’s own costs of this action be taxed in accordance with the Legal Aid Regulations.

58.  Costs of this application with certificate for counsel be paid by the defendant to the plaintiff on a party and party basis, to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

59.  It remains for me to thank counsel on both sides for their helpful submissions in this application.

	( Andrew SY Li )
	District Judge

Mr Simon Wong, instructed by Ng & Co, assigned by the Director of Legal Aid, for the plaintiff

Mr Kumar Ramanathan SC, instructed by Leung & Lau, Solicitors LLP, for the defendant

DCPI 3621/2019

[2021] HKDC 237

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 3621 OF 2019

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BETWEEN
	HU WAN	Plaintiff
and
	SANWO INTERNATIONAL COMPANY LIMITED	Defendant

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

Before: His Honour Judge Andrew Li in Court (Open to public)

Date of Trial: 9 - 10 November 2020

Date of handing down assessment of damages: 26 February 2021

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is the assessment of damages arising out of an accident happened to the plaintiff at work on 31 January 2016 (“the Accident”). Interlocutory judgment on liability having been entered against the defendant, the only issue remains for the Court to decide is the amount of damages which the plaintiff is entitled to in this case.

BACKGROUND

The Accident

2.  The plaintiff was 27 years old at the time of the Accident.  She worked for the defendant as a saleslady in the defendant’s shop situated within a large shopping centre in Tseung Kwan O.  The defendant is a retailer of shoes.

3.  On the date of the Accident, at the request of her customers, the plaintiff had to go into the storeroom and climbed up a set of ladder in order to get 2 pairs of shoes for her customers for fitting.  While she was still standing on the ladder and carrying the 2 boxes of shoes in her hands, she slipped and fell from the ladder and thereby injured her left ankle.

Injuries and treatment

4.  Immediately after the Accident, the plaintiff attended the Accident & Emergency Department of Tseung Kwan O Hospital (“TKOH”).  Physical examination revealed ‘bimalleolar fracture to her left ankle’. Surgery of open reduction and internal fixation was done on 2 February 2016. She was discharged from the hospital on 4 February 2016.  At the time of discharge, she had to walk with a frame.

5.  On 26 February 2016, ankle foot orthosis was moulded and fitted post operation for immobilization after the plaintiff attended the Department of Prosthetic and Orthotic of TKOH. 

6.  The plaintiff was then followed up by the Department of Orthopaedics & Traumatology of TKOH where she received physiotherapy and occupational therapy treatments. 

7.  She also attended various out-patient clinics at Tsueng Kwan O Hospital Mona Fong General Out Patient Clinic (“Mona Fong Clinic”), Kwun Tong Community Health Centre and Ngau Tau Kok General Out Patient Clinic for follow-up treatments.

DISCUSSION

The medical experts’ evidence

8.  On 26 March 2019, the plaintiff was jointly examined by Dr. Wong See Hoi (the plaintiff’s orthopaedic expert) (“Dr Wong”) and Dr. Tsoi Chi Wah Danny (the defendant’s orthopaedic expert) (“Dr. Tsoi”) and a joint expert report was prepared by them which was dated 30 April 2019 (“the Joint Report”).

9.  In the Joint Report, both experts agree that the plaintiff suffered from ‘fracture of bimalleolar of left ankle’ which was directly caused by the Accident.

10.  The experts opine that the treatments that the plaintiff received including the operation of open reduction and internal fixation with screw and K-wire, followed by 1^st course of physiotherapy from 25 February 2016 to 12 January 2017, occupational therapy from 3 August 2016 to 1 January 2017 and 2^nd course of physiotherapy from 28 August 2017 to 28 February 2018 were standard and appropriate.

11.  Judging from the medical records, particularly the record of the last physiotherapy treatment dated 28 February 2018, the experts opine that the plaintiff has achieved a satisfactory recovery from left ankle fracture after rehabilitation by early 2018.

12.  During the joint examination, the plaintiff attended the clinic and was able to walk normally.  She managed to perform most tasks including sitting to standing, heels walking, single leg standing with no difficulty except presented with mild pain in tip-toes walking.  She could perform full squat but needed support to get up.

13.  Physical examination showed mild degree of muscle wasting over left thigh and calf muscle which indicated disuse atrophy after injury.  The experts opine that the pain and weakness were compatible with post fracture status. 

14.  As to prognosis, Dr. Wong opines that it is fair.  The plaintiff is expected to have intermittent attack of left ankle pain chiefly on exertion such as heavy lifting and carrying from supermarket, prolonged walking and standing in long journey or walking on uneven ground.  Dr. Tsoi opines that the plaintiff has recovered well.  Residual ankle soreness on prolonged walking, jumping, running and climbing is possible but should be of mild degree. 

15.  As to working capacity, the experts agree that the plaintiff should be able to resume her pre-injury occupation with mild reduced efficiency and capacity, especially in prolonged and persistent standing during sales duty, climbing up and down stairs and ladder for taking stocks, occasional squatting for picking up or serving customers in wearing shoes.  She may require intermittent rest because of left ankle pain.

The plaintiff’s evidence

16.  The plaintiff gave evidence at the assessment hearing.  I find her to be an honest and truthful witness. Eventhough she was subjected to extensive cross-examination by the defendant’s counsel, she came across as a straightforward and forthcoming witness.  She was never evasive or ambivalent in the answers she gave.  I accept her evidence.

17.  The plaintiff was born and grew up in the Mainland.  She received education up to secondary three level there.  In 2007, she started to work as a saleslady in Shenzhen.  In 2014, she came to reside in Hong Kong and continued working as a saleslady.  By the time of the Accident, she had been working in the retail industry as a saleslady for about 9 years.

18.  In her pre-accident job with the defendant, she had to stand for at least 8 hours a day and climb on the ladder to fetch shoes for customers’ fitting for 40-50 times a day.  Since the Accident, she is not able to stand for more than 2-3 hours at a time.    

19.  I accept her evidence that after the Accident, she was persuaded by the defendant to resign from her job after the 2-year sick leave period had expired.  She felt that she had no alternative but to resign.  She did that on 21 February 2019.  The defendant has not produced any evidence to contradict her evidence in this respect.

20.  Since the Accident, the plaintiff had tried to look for a sales job for some time in less demanding trades but could not find one.  In this regard, she has produced advertisements on such jobs which paid substantially less than her pre-accident job.  Again, this part of the evidence was not challenged by the defendant.

21.  Eventually, she managed to find a sales job and started working for Dah Chong Hong on 5 June 2019 at a monthly salary of $11,020.  However, the plaintiff found that she could not cope with the demands of this job which caused her further pain in her ankle. After consulting a private doctor, she quit the job on 10 June 2019. 

22.  The plaintiff then found a new job as an office assistant earning $11,000 per month which does not require her to stand for long hours or outdoor work.  She has been working in this job since 1 July 2019.

23.  I agree with the plaintiff’s counsel Mr Simon Wong’s submissions that the Court is never bound by the experts’ opinion.  On the issue of suitability to return to a particular job, the Court will take into account of all the evidence available in the case, including both factual and expert evidence.  In this case, besides the experts’ opinions stated in the Joint Report, I have taken into account of the nature of the plaintiff’s injuries; the objective medical evidence; her treatment records and history; the plaintiff’s explanations as to why she was unable to cope with the job as a saleslady; her attempts to find and work in other sales jobs; the demand of her pre-accident job; and her present complaints.

24.  I notice in the Joint Report there is no suggestion by the experts that the plaintiff has exaggerated her complaints. Indeed, objective findings made by the experts shows that there was muscle wasting on her left lower limb.  This is not something which plaintiff could have feigned.  Further, the experts agree that there would be pain and weakness, reduced efficiency and capacity and that she may require intermittent rest due to the left ankle pain.

25.  I accept the plaintiff’s injuries have caused her to suffer from some permanent lower limb deficit which would affect her job performance and earning capacity.  Given the relatively high physical demands of her pre-accident job, I accept that she would not be cope and therefore able to return to that job. 

P’s pre-accident employment

26.  The plaintiff was first employed by the defendant in October 2014.  Like many other new immigrants to Hong Kong, the plaintiff worked hard in order to earn more money and gain more relevant working experience. She obviously did so to equip herself for better promotion prospects and better future job opportunities.  Not long after she was employed by the defendant, she was promoted to the position of ‘Experienced Salesperson’.  She worked many overtime hours as her income records have indicated.  The defendant provided incentive to the plaintiff and her colleagues to do that as their remunerations were calculated based on the volume of sales they made and number of hours they worked.

27.  The following summary of the plaintiff’s earnings for the 12 months prior to the Accident has supported the above:

	Basic salary	Commission	Allowance	Overtime	Total
Jan 2015	7,800	1,200	1,000	---	10,000
Feb 2015	7,800	1,200	1,800	1,295	12,095
Mar 2015	7,800	1,200	1,450	857.50	11,307.50
Apr 2015	7,800	1,200	1,400	1,400	11,800
May 2015	7,800	1,200	1,800	980	11,780
Jun 2015	7,800	1,200	1,000	530	10,530
Jul 2015	7,800	1,200	1,000	805	10,805
Aug 2015	7,800	1,200	1,400	700	11,100
Sep 2015	7,800	1,200	1,000	1,225	11,225
Oct 2015	7,800	1,200	1,000 + 400	1,120	11,520
Nov 2015	7,800	1,200	1,000 + 800	1,032.50	11,832.50
Dec 2015	7,800	1,305.90	1,000 + 1,200	630	11,935.90
				Average	11,327.58

Sick leave period

28.  It is not disputed that the plaintiff was granted sick leave by the doctors at TKOH and various out-patient clinics from 31 January 2016 to 18 February 2019 (a total of 36.5 months). 

29.  When considering the significance and relevance of sick leave periods granted by doctors at public hospitals or clinics, the starting point is the case of Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 where Le Pichon JA stated that medical certificates were no more than a piece of evidence to be evaluated in the light of all available evidence including medical evidence, and the judge could not be bound by the mere issue of medical certificates since the issuance of such certificates would be primarily because of subjective symptoms reported to the doctors by the plaintiff.  Hence, the end of sick leave as a result of static of maximum medical improvement state on the basis that no further active or therapeutic treatment will be of assistance does not necessarily mean the patient has made full recovery or he can immediately return to pre-accident work or other gainful employment.  After all, it is a matter of assessment and degree.

30.  The experts in the present case agree with the sick leave granted up to 25 October 2017 as endorsed by Employees’ Compensation (Ordinary Assessment) Board (“MAB”) in the Form 9 is reasonable.  They further recommend one more month of sick leave after the removal of the implants. 

31.  With respect to both experts, they did not seem to have given any particular reasons to support their opinion of why sick leave of 21 months was appropriate in this case.  It appears that the experts did not analyze whether the plaintiff’s condition was static on 25 October 2017 or not.  Their opinion on the sick leave seems to have based solely on the opinion stated in the Form 9 which was dated 8 November 2017.  They have not taken into consideration of the further sick leave obtained by the plaintiff after she attended the MAB for assessment.

32.  Judging from the medical evidence which has become available after the MAB assessment, I accept the plaintiff’s condition had indeed not yet become static and had not reached the maximum medical improvement state by 25 October 2017. At that time, she was still receiving physiotherapy treatments, which, as the physiotherapist’s report suggests, had led to further improvements to her condition when comparing her August 2017 condition to that of her January 2018 condition.[1] The last session of physiotherapy treatment was on 28 February 2018, when she reported overall subjective improvement was 60-70% and she subjectively felt condition static.  She was discharged from physiotherapy on that day.  Obviously, the plaintiff must have found the physiotherapy treatments helpful, otherwise I do not think she would have agreed to undergo the 2 lengthy treatment sessions. 

33.  I do not accept the defendant’s contention that the plaintiff had deliberately “gambled” for longer sick leave when she went back to consult the doctors at the Mona Fong Clinic.  Nor do I accept the proposition that she had deliberately refused to undergo any “vocational resettlement program” offered by the occupational therapist because she wanted to have longer sick leave.  I do not find the plaintiff as such kind of person.  I believe her when she said the reason of her in declining the resettlement programme was because at that time she could not walk for more than 2-3 hours and any resettlement programme may further aggravate her condition.

34.  The defendant submits that the plaintiff has adopted a “sick role” after the reasonable sick leave period had expired.  It submits that she was “unmotivated to get back to work”.  I do not find that was the case at all.       

35.  Taking all the circumstances into account, I would allow sick leave up to end of the plaintiff’s last course of physiotherapy treatment on 28 February 2018 in this case.

Assessment of Damages

36.  The plaintiff has claimed damages under the following heads which I shall make my assessment accordingly.

(A)  Pain & suffering and loss of amenities (“PSLA”)

37.  The plaintiff submits that PSLA award should be in the range of $260,000 to $310,000 while Mr Poon for the defendant submits that a reasonable PSLA award should be in the region of $150,000 to $200,000.

38.  Mr Wong for the plaintiff relies on the following cases:

(a)  Tamang Tikaram v Tong Kee Company Limited & Others (unreported, HCPI 19/2013, 1 April 2015), the 36-year-old plaintiff had a minimally displaced fracture of right medial malleolus.  He received no operation but was given a short leg dynast which he wore for 7 weeks.  He was hospitalized for 3 days, attended 19 sessions of physiotherapy and 17 sessions of occupational therapy.  He could walk unaided.  X-ray showed no the fracture to have healed in anatomic position.  PSLA of $200,000 was awarded.  The award would be about $220,000 now[2].

(b)  Li Chi Sing v Equal Link Limited (unreported, DCPI 1930/2011, 6 March 2013), the plaintiff had a fracture of left malleolus and received open reduction and internal fixation with plate and screws.  He had 14 sessions of physiotherapy and total sick leave of 166 days.  He could achieve good recovery with normal walking resumed.  The fracture was also healed with good alignment.  Prognosis was good.  PSLA was awarded at $220,000.  The award would be about $260,000 now[3].

(c)  Lam Kam Fai v Yau Shing Scaffolding Co Ltd [2014] 2 HKLRD 448, the plaintiff was 24 years old at time of accident.  He had a fracture of left distal fibula requiring surgery.  He had to walk with crutches for about 9 months, and underwent 4-month physiotherapy. Two years later, he was readmitted for 6 days for removal of implants and required further physiotherapy.  But he could walk unaided and achieved full recovery.  The prognosis was good.  The Court accepted expert evidence that he suffered from a pre-existing old injury to left ankle and therefore made a discount of 10% to $325,000 to arrive at a PSLA award of $292,500.  The award of $325,000 would be about $370,000 now[4].

(d)  Tsui Wai Ho v Pride Glory Limited trading as Ziti’s[2019] HKDC 657, the plaintiff suffered from fractured distal fibula requiring open reduction and internal fixation.  There was also an operation for implant removal.  The fracture was found to be healed well with satisfactory range of movement.  There was no limitation to his daily activities and full recovery was achieved 2 years after the accident.  PSLA of $250,000 was awarded. 

(e)  Chan Mok Yau v 黃吉利 and Another [2018] HKCFI 1084, the plaintiff was 54 years old.  He only received conservative treatment by way of cast for his right ankle fracture.  But he required 424 days of sick leave.  Almost 2 years after accident, he still had moderately reduced range of movement as examined by an orthopaedic specialist.  PSLA of $250,000 was awarded.

39.  Mr Poon on the other hand has asked the Court to take into account of the following cases (besides case (b) & (e) above which have also been relied on by him) when considering the PSLA award:-

(a)  Cheng Muk Ping v Chan’s Machine Engineering Company Limited (unreported, DCPI 932/2007, 20 October 2008), the plaintiff was hurt by the push arm of a bulldozer and sustained a Lisfranc fracture on his right foot second metatarsal. He received an operation of open reduction and internal fixation. His foot was put in cast for 6 weeks. Sick leave for almost 6 months was granted. Further operation was conducted to remove screws inserted. The plaintiff suffered from 10% whole person impairment and 8% loss of earning capacity. PSLA of HK$180,000 was awarded.

(b)  Hau Kit Ho v Starway International Development Limited trading as Tao Heung Super 88 (unreported, DCPI 329/2002, 22 September 2003), the plaintiff was a customer of the defendant’s restaurant. When she went to the female toilet after the tea, she had a fall and suffered a fracture to her left ankle. X-ray on admission showed a fracture over the left lateral malleolus. Open reduction and screw fixation of the fracture were performed. The wound healing was satisfactory. There was no post-traumatic arthritic change. PSLA of HK$200,000 was awarded.

40.  In considering what would be the appropriate PSLA award in this case, I have taken into account of the following special features in the present case:

(a)  The plaintiff is relatively young: she was only 27 at the time of the Accident and 32 at the date of assessment;

(b)  She had a fracture which required open reduction and internal fixation;

(c)  She was hospitalized for 5 days;

(d)  There is a possibility that the plaintiff will need to have another operation for the removal of implant sometime in future although in my view this is rather unlikely;

(e)  She required 2 courses of physiotherapy treatments (from February 2016 to January 2017 and from August 2017 to February 2018) and 1 course of occupational therapy treatment (from August 2016 to January 2017) after the Accident;

(f)  There was slight muscle wastage at her thigh and calf on her left leg;

(g)  The injuries have left her with some well healed scars at the ankle area;

(h)  Both experts agree that there would be some residual attacks of left ankle pain and weakness;

(i)  She was given sick leave of around 36.5 months; and

(j)  The plaintiff cannot stand or walk for more than 2-3 hours which makes it extremely difficult if not impossible for her to return to her pre-accident job in a busy shoe shop.  

41.  In my judgment, the plaintiff’s injuries and condition are more akin to those suffered by the victims in the less serious cases cited by Mr Wong than the more serious cases cited by him and Mr Poon.  In particular, I find they are similar to those suffered by the plaintiffs in Li Chi Sing and Tsui Wai Ho. Having taking into account of the above special features in this case, I consider that an award of $250,000 is reasonable to represent the PSLA award in this case.  I so award such sum under this head.

(B)  Pre-trial loss of earnings

42.  Based on the evidence given by the plaintiff at the assessment hearing, I find it was reasonable for her not been able to return to her pre-accident job as a saleslady in a busy shoe shop with the defendant.  I further find that she has taken reasonable steps in mitigating her loss by looking for and at least tried once to work in jobs similar to her pre-accident employment.  I accept that it was reasonable for her not to return to the retail industry which requires long hours of standing and walking.  I consider that the office assistant job she was able to find since 1 July 2019 (until now) is a suitable one for her in light of her injuries and present condition. 

43.  For the would be earnings of the plaintiff with the defendant today had it not been for the Accident, I do not accept the earnings of the 2 supposed “comparable” workers put forward by the defendant are good comparison for several reasons. 

44.  First, those 2 workers worked at different shops in different areas.  Second, the shop which the plaintiff had worked in Tseung Kwan O generally reached a higher “commission level” than the shops where the 2 others workers worked in.  Third, the plaintiff earned more commissions, overtime payments and the attendance bonus than the 2 other workers.  Last but not the least, Ms Chan Yuk Yi (DW1), who incidentally was not the person who had compiled the information for the comparable workers, accepted that the 2 workers were not good comparison under cross-examination.  She could not however explain why these 2 workers had been chosen by her former senior colleague Ms Dream Hui who was the Retail Manager responsible for overseeing over 30 shops for the defendant.  I think the inevitable inference must be that the defendant has deliberately chosen 2 workers who were earning substantially less than the plaintiff at the time of the Accident for comparison purposes.        

45.  However, despite the fact that they are not good comparables, based on the increase in their basic salary, commission and attendance bonus, I find there will at least be a corresponding increase in the plaintiff’s would be income had she been able to continue to work for the defendant after the Accident.

46.  For the first comparable worker, the following increase could be found from the records disclosed by the defendant:-

(a)  Basic salary $7,800, which was increased to $8,100 in February 2019; and further increased to $8,500 in September 2019;

(b)  Commission $1,200 which was increased to $1,500 in March 2019; and further increased to $1,600 in October 2019; and

(c)  Attendance bonus $1,000 which was increased to $1,200 in March 2018.

47.  For the second comparable worker, the following increases can be found:-

(a)  Basic salary $7,800 which was increased to $8,100 in February 2017; further increased to $8,200 in February 2018 and further increased to $8,400 in February 2019;

(b)  Commission $1,200 which was increased to $1,400 in March 2018 and further increased to $1,600 in March 2019; and

(c)  Attendance bonus $1,000, increased to $1,200 in March 2018.

48.  Hence, even assuming there would have been no promotion had the plaintiff been able to continue to work for the defendant, I find the plaintiff’s salary with the defendant would have increased at least by 4% per annum by the time of the assessment as the average increase of those 2 “comparable” workers over the years has suggested.  This is consistent with the government statistics of the average of around 4% per annum increase for the service industry workers in the past 4 years since the Accident. 

49.  However, I shall adopt a higher starting point for the plaintiff at $11,328 as her average income at the time of the Accident in January 2016.  Hence, I assess her would be earnings with the defendant had it not been for the Accident would be at $13,252 by the date of the assessment, which is based on an annual increase of 4% on her average income at the time of the Accident.

50.  For her notional earnings after the expiry of her sick leave period, I shall adopt a sum of $11,000 per month which is what she is earning in her current job as an office assistant.  Given her lack of education and inability to speak or write any English, it is not surprising that she earns less than an average office assistant as shown in the government statistics. However, I accept that it is perhaps the best she can earn given her disabilities.   

51.  I will therefore assess the pre-trial loss of earnings of the plaintiff, including MPF contributions from her employer, in this case as follows:-

(1)  From 31 January 2016 (date of Accident) to 28 February 2018 (end of sick leave)

($11,328 + $12,252) / 2 x 25 months x 1.05 = $309,488

(2)  From 1 March 2018 to 9 November 2020 (date of assessment)

[($12,252 + $13,252) / 2 - $11,000] x 32.3 months x 1.05 = $59,419

Total: $368,907

(C) Post-trial loss of earnings

52.  Had it not been for the Accident, I estimate that the plaintiff’s earnings at the date of assessment with the defendant would be at no less than $13,252.

53.  Thus, her notional monthly loss will be at $2,252 ($13,252 – $11,000) during the post-trial period. 

54.  The plaintiff is 32 years old at the date of assessment.  Assuming a retirement age of 65 and applying a discount rate at 2.5%, I would allow a multiplier of 22.37 (Table 10 of Chan’s Tables refers):

                   $2,252 x 12 x 22.37 x 1.05 = $634,753

(D) Loss of earning capacity

55.  The plaintiff claims $150,000 under this head.  Mr Wong submits that the plaintiff’s ankle injury has made her much more “vulnerable”. Further, the plaintiff claims that her working capacity will be compromised due to her injuries.  Mr Wong relies on the following 2 cases for his claim: Rai Dipak Kumar v Dragages Hong Kong Limited[2019] HKCFI 728 and Gurung Bhakta Bahadur v Green Valley Landfill Limited (unreported, HCPI 333/2009, 28 January 2011).

56.  I do not accept that the plaintiff’s ankle injuries would make her more vulnerable than any other office assistants of her age.  According to the experts, this is one of the jobs she is well capable in doing with only “mild reduction in efficiency and capacity”. The plaintiff also gave evidence to the effect that she does not have to perform any outdoor duties and she can spend a lot of time sitting inside the office.  Hence, I do not see how she will suffer any risk of losing her present employment and therefore suffer a handicap in the open labour market as a result.

57.  I will not allow any award for loss of earning capacity in this case.

(E)   Future medical expenses

58.  The plaintiff claims $40,000 as cost for future surgery for removal of the implants in her ankle.

59.  I accept Mr Poon’s submission on this issue that the plaintiff had been given 3 separate opportunities by the doctors at TKOH to remove the implants in her ankle but each time she had failed to accept the offer to do so.  While her fear on the risks of surgery may or may not be real, I do not consider it is rational or reasonable.  In my view, it is extremely unlikely that she will ever willing to undergo such surgery in future. 

60.  In any event, as the plaintiff has told the Court during her oral evidence, she had been advised by the doctors at TKOH that the screws implanted in her ankle are of the “new type” and “can be dissolved by themselves”. I therefore do not consider it is likely that she will undergo another surgery to remove them in future.

61.  Even if she wishes to undergo surgery to remove the implants one day, there is no reason in my view why she cannot make use of the very efficient and high quality public service in the public hospitals which she has been well looked after so far.  The cost of such a surgery in the public sector will be nominal and I do not see why she needs to go to the private sector to do that.      

62.  I therefore will reject this claim.

(F) Special damages

63.  This sum has been agreed by the parties at $20,000.  I so make this award.

CONCLUSION

Summary of Assessment

	(A) PSLA	$250,000
	(B) Pre-trial loss of earnings	$368,907
	(C) Post-trial loss of earnings	$634,753
	(D) Loss of earning capacity	nil
	(E) Future medical expenses	nil
	(F) Special damages	$20,000
	(Less: EC payment)	($282,500)
		$991,160

64.  I will therefore assess the plaintiff’s loss as a result of the Accident at $991,160.

Interest

65.  There will be the usual interest at 2% for the PSLA award from the date of issue of writ to date of assessment and thereafter at judgment date.  Further, there will be interest on the loss of pre-trial earnings and special damages at half of the judgment rate from date of accident to date of assessment and thereafter at judgment rate.

Costs

66.  Despite Mr Wong’s submissions to urge the Court to impose a more stringent costs order against the defendant due to the late (and unhelpful) disclosure of the 2 comparable workers, I am not convinced that those data has made any substantial difference to the assessment at all.

67.  I therefore make the usual costs order that the defendant shall pay for the costs of the assessment on a party and party basis, such costs to be taxed at the District Court scale, with certificate for counsel. 

	( Andrew SY Li )
	District Judge

Mr Simon Wong, instructed by Messrs Ng & Co, for the plaintiff

Mr Edward Poon, instructed by Messrs Leung & Lau, for the defendant