SANDHU JATINDER SINGH v. MA SHIU MING AND ANOTHER

DCPI 2647/2022

[2025] HKDC 1205

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2647 OF 2022

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DECISION

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INTRODUCTION

1.  The assessment hearing of this personal injuries action was heard before this Court on 23 and 25 July 2024, and the Judgment handed down on 27 August 2024 (“Judgment”). 

2.  The 2^nd Defendant (“D2”)  took out a summons on 6 September 2024 under O 22 rr 8 & 23 of the Rules of the District Court (“RDC”)  to vary the costs order nisi thereof.  The summons was heard on 11 November 2024 and my Decision varying the costs order nisi was handed down on 11 December 2024 (“Decision”).

3.  By a summons filed on 7 May 2025 (“Summons”)  together with an affirmation in support (“Affm”), the Plaintiff (“P”)  seeks leave to appeal out of time the Decision (“Appeal”)  under O 58 r 2(4)(c)  of the RDC.  On the same date, P filed a Notice to Act in Person.

4.  It transpired that the P did not serve the Summons on both Defendants.  D2 only came to know about the Summons on 11 July 2025 afternoon upon the court’s enquiry. The 1^st Defendant (“D1”)  was absent at today’s hearing.  As my Decision only concerns P and D2 and upon the submission of D2 that D1 had all along been absent from these proceedings, I consider it appropriate to proceed the hearing in the absence of D1.  D2, despite the last minute notice of the Summons, did not seek to adjourn today’s hearing so as to avoid wasting further time and costs.

THE ISSUES

5.  Regarding the Appeal, this Court would consider whether leave should be granted to P to appeal against the Decision on costs out of time, the deadline being within 14 days from the date of the Decision.

6.  The guidelines are set out in Hong Kong Civil Procedure 2025, commentary §59/4/9, which states:-

“It is entirely in the discretion of the court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are: (1)  the length of the delay; (2)  the reasons for the delay; (3)  the chances of the appeal succeeding if time for appealing is extended; and (4)  the degree of prejudice to the potential respondent if the application is granted;”

7.  P in his Affm sets out the following reasons for delay:-

(i)  He took time to seek legal advice from different solicitors and counsel;

(ii)  He, being not a native Cantonese speaker, faced difficulties arranging interpretation and meeting these legal advisers; and

(iii)   He required time to ask his solicitors Messrs MCA Lai Solicitors LLP (“MCAL”)  to pass the papers and all documents to the legal advisers.

8.  P had all along been represented by MCAL in this action until 7 May 2025. I do not accept the reasons put forward for the delay.

9.  In any event, even if I granted time extension for P to proceed the Appeal, he has not shown any “real prospect of success of the appeal”, or indeed any prospect of success.  He repeatedly submitted at the hearing that this Court should have added the property damage of $9,000 to the judgment sum in considering adequacy of the sanctioned payments.

10.  This argument was put forward by his counsel at the last hearing of D2’s application for variation of costs order nisi.  It has been fully considered by this Court and dealt with in §§28 to 42 of the Decision.  The argument cannot sustain and does not justify granting of leave to appeal. 

CONCLUSION

11.  There is no legal basis for the Appeal.  P’s application for leave to appeal out of time is dismissed.

COSTS

12.  Costs should follow the event.  Having heard the submissions on costs of P and D2, I agree with D2 and consider that summary assessment is appropriate in accordance with O62 r 9A(1)(a)  of the RDC.

13.  I order that P do pay D2 the costs of the Appeal, summarily assessed at $5,000, to be paid within 28 days from the date hereof.

The Plaintiff, appearing in person

The 1^st Defendant, acting in person and did not appear

Ms. Veronica Lee of Messrs Winnie Leung & Co, for the 2^nd Defendant

DCPI 2647/2022

[2024] HKDC 2092

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2647 OF 2022

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DECISION

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THIS APPLICATION

1.  By a judgment on assessment of damages dated 27 August 2024 (“Judgment”), this Court adjudged damages payable to the Plaintiff in the total sum of $433,765 (plus interest).

2.  In this decision, I shall adopt the same abbreviations in the Judgment, save otherwise indicated.

3.  In the Judgment, I granted a costs order nisi in favour of P against D1 and D2 who should pay P the costs of and occasioned by the assessment of damages, to be taxed if not agreed, with certificate for counsel. The costs order nisi shall become absolute after 14 days unless any party applies to vary it within 14 days.

4.  D2 took out a Summons on 6 September 2024 (“Summons”) seeking to vary the costs order nisi pursuant to O 22 rr 8 & 23 and O 23 rr 1 & 2 of the Rules of the District Court, Cap 336H (“RDC”) on the basis of 3 sanctioned payments it had made on 3 November 2022, 30 December 2022 and 31 January 2023 (“Sanctioned Payments”). D2 argues that P had failed to do better than the 3 Sanctioned Payments totalling $450,000, justifying costs sanctions against P under O 22 r 23.

5.  D2 the motor insurer joined in these proceedings pursuant to a joinder order dated 28 October 2022. There is no dispute that the last day for P to accept the Sanctioned Payments (upon the last payment made on 31 January 2023) without leave fell on 28 February 2023. By the Summons, D2 seeks the following varied costs orders, as between P and D2, as follows:-

(i)  D2 do pay P’s costs of the assessment from 28 October 2022 up to 28 February 2023;

(ii)  P do pay D2’s costs of the assessment or any part thereof which the court deems fit on an indemnity basis with enhanced interest; and

(iii)  The sanctioned payments totalling $450,000 paid by D2 be kept and remain in court until further order, as security for costs payable by D2, pending taxation of costs referred to in paragraph (ii) above.

6.  I have perused and considered D2’s Affidavit of Leung Fung Chi filed on 6 September 2024 (“D2’s Affidavit”) in support of the Summons, P’s Affidavit of Lau Kam Lun filed on 9 October 2024 (“P’s Affidavit”) in opposition, D2’s skeleton submissions dated 23 October 2024 and P’s skeleton submissions dated 30 October 2024. I have considered the submissions of Ms Veronica Lee of D2’s solicitors and counsel Mr Kamlesh A Sadhwani for P made at the substantive hearing, and the authorities relied on by the parties.

BACKGROUND

7.  P claims in this action damages for personal injuries arising out of a traffic accident on 7 September 2020 (“Accident”) met by him when riding a motorcycle.

8.  Interlocutory judgment in default of defence was entered on 21 September 2022 against D1 (who was then the only defendant in this action), the driver of the offending motorcycle, leaving damages to be assessed. D1 never entered an appearance in these proceedings.

9.  Soon after that, the motor insurer of the offending motorcycle took out a Summons for joinder on 30 September 2022 (“Joinder Application”), and was granted leave on 28 October 2022 to intervene and became D2 herein, and to defend the issue of quantum.

10.  In the Affidavit of Leung Fung Chi filed on 30 September 2022 in support of the Joinder Application, it is stated clearly (§§5-6) that the intention was to safeguard D2’s position as the motor insurer in respect of its potential liability to pay the judgment of damages obtained by P in respect of the bodily injury claim under the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (“Ordinance”) notwithstanding cancellation/repudiation of the relevant motor insurance policy.

11.  P’s claim as pleaded in the Revised Statement of Damages filed on 25 September 2023 (“RSOD”) is as follows:-

PSLA	$500,000
Pre-trial loss of earnings+MPF	$541,282.25
Loss of earning capacity	$120,000
Other special damages/misc expenses
(medical, travelling and tonic food)	$12,000
(property damage/motorcycle repair)	$9,000
Total:	$1,182,282.25 ==========

12.  The action (on quantum only) proceeded to assessment of damages which took place on 23 and 25 July 2024.

The Judgment Sum

13.  After assessment, the damages adjudged by this Court as set out in the Judgment are as follows:-

PSLA	$240,000
Pre-trial loss of earnings [agreed]	$127,400
Loss of earning capacity	$50,000
Other special damages/misc expenses
(medical, travelling and tonic food)	$7,365
(property damage/motorcycle repair) [agreed]	$9,000
Total:	$443,765 =======

The Sanctioned Payments

14.  D2 had shortly after its joinder in this action made 3 Sanctioned Payments under O 22 r 8(2) of the RDC as follows:-

(i)  1^st Sanctioned Payment of $330,000 on 3 November 2022;

(ii)  2^nd Sanctioned Payment of $70,000 on 30 December 2022; and

(iii)  3^rd Sanctioned Payment of $50,000 on 31 January 2023 (“3^rd Sanctioned Payment”), bringing the total amount offered in settlement to $450,000.

15.  In all the 3 Notices of Sanctioned Payment, it is expressly stated that the payment was made “in settlement of”, with a tick in the 1^st check-box “part of your claim”, followed by explanatory notes immediately below the 1^st check-box: “Being motor insurer, the 2^nd Defendant is not statutorily liable for the Plaintiff’s property damage claim.”

D2’S ARGUMENTS

16.  There should be no dispute that the total judgment sum ($443,765), when added with interest, would exceed the total sum of $450,000 on offer in the 3 Sanctioned Payments.

17.  D2’s arguments in support of variation of the costs order nisi is that the Sanctioned Payments were made expressly in respect of part of P’s claim only in accordance with O 22 r 8(2) of the RDC, ie in respect of the bodily injury claim only and exclusive of property damage (of the agreed sum of $9,000).

18.  On that basis and for the purposes of assessing sufficiency of the Sanctioned Payments totalling $450,000 as at the deadline date of 28 February 2023 for acceptance of the 3^rd Sanctioned Payment without leave, D2’s calculations of interest are as follows:-

(i)  Interest on PSLA (208 days from date of Writ on 5 August 2022 up to 28 February 2023): $240,000 x 2% x 208/365 = $2,735.34

(ii)  Interest on pre-trial special damages (from date of accident to 28 February 2023): ($127,400 + $7,365) x 4.4375% x 905/365 = $14,827.61

19.  The judgment sum, together with interest, but nett of the property damage of the agreed sum of $9,000, according to D2’s calculations, is therefore:

PSLA	$240,000
Pre-trial loss of earnings [agreed]	$127,400
Loss of earning capacity	$50,000
Expenses (medical, travelling and tonic food)	$7,365
Interest on PSLA	$2,735.34
Interest on pre-trial special damages	$14,827.61
Total:	$442,327.95 =========

20.  D2 therefore argues that P had failed to do better in the Judgment than the Sanctioned Payments made up to the 3^rd Sanctioned Payment which had brought the total settlement offer to $450,000 in respect of part of P’s claims, namely the bodily injury claim but nett of the property damage.

P’S ARGUMENTS

21.  P’s counsel makes no objection to the above calculations but argues that D2 had taken an erroneous view or interpretation of the Judgment.

22.  D2’s Summons seems to be premised on its argument that the property damage/motorcycle repair cost should not form part of the quantum assessed in the Judgment as D2 being the motor insurer is not statutorily liable to pay for property damage under the Ordinance. P argues that this is a wrong approach/interpretation of the Judgment, as stated in P’s Affidavit (§§4-5), that the property damage/motorcycle repair cost clearly forms part of the Judgment for which D2 is liable to pay irrespective of whether D2 is of the view that it is not under a statutory liability to do so.

23.  It is clear that this Court had ruled (in §98 of the Judgment) that the property damage, agreed in the sum of $9,000, arose out of one and the same tortious occurrence hence one cause of action of negligence of D1 in this personal injuries action, and should form part of the Judgment. There was no intention in the Judgment or of this Court to treat the property damage and bodily injury claims separately.

24.  Hence it is wrong for D2 to argue that the Judgment sum on the bodily injury claim only (nett of property damage) should form the basis for considering sufficiency of the Sanctioned Payments.

25.  P’s counsel also argues that the Notices of Sanctioned Payment have failed to specifically state that the monies were paid into court for the bodily injury claim only. By merely stating that D2 is not statutorily liable for P’s property claim, it is not clear to which part of the claim the monies paid in were related to specifically.

ANALYSIS

26.  Parties have no dispute on the trite legal principles governing O 22 r 23 of the RDC, and the consequences resulting from sanctioned payments.

27.  O 22 r 8 of the RDC provides:-

“(1) A sanctioned payment may relate to the whole claim or to part of it or to an issue arising from it.

(2) A defendant who makes a sanctioned payment shall file with the Court a notice in Form No. 23 in Appendix A, that—

(a) states the amount of the payment;

(b) states whether the payment relates to the whole claim or to part of it or to an issue arising from it and if so to which part or issue it relates;

(f) if a sum of money has been paid into court (other than as security for costs), states whether the sanctioned payment has taken into account that sum of money.”

[emphasis added]

28.  There is no dispute that all 3 Notices of Sanctioned Payments are valid and were issue in accordance with O 22 r 23 of the RDC.

29.  I do not accept the argument of P’s counsel that it is not clear from the 3 Notices of Sanctioned Payment to which part of the claim the monies paid in were related to specifically.

30.  It has been expressly made clear that the 3 Sanctioned Payments were made in respect of part of P’s claim in this action, as the Notices all had the check-box “part of your claim” ticked, with an explanation immediately following this check-box that D2 “Being the motor insurer… is not statutorily liable for the Plaintiff’s property damage claim”.

31.  Adopting the approach of Master Marlene Ng (as she then was) in interpreting the notice of sanctioned payment/prescribed Form 23 in the decision of Lin Yanjin v Smart Billion Engineering Ltd HCPI 739/2009 (10 August 2011) (§§155-160) and in accordance with usual principles of statutory interpretation, a natural and purposive meaning should be given, in that the property damage claim was excluded.

32.  This is also consistent with D2’s pleaded case all along, as stated in the Affidavit of Leung Fung Chi filed on 30 September 2022 (§§6-7) in support of the Joinder Application and D2’s Answer to RSOD filed on 24 October 2024 (§14).

33.  In light of this background and reading the Notices of Sanctioned Payment in context, I am driven to the construction that they cannot carry other meaning, but that all 3 Sanctioned Payments were made in respect of P’s claims herein but nett of the property damage claim. The argument of P’s counsel fails to give proper meaning to the plain terms of the notices, which was in my view also obvious given the background of the case.

34.  P’s claim in the present action comprises different types of claim, namely the bodily injury claim and the property damage to P’s motorcycle in the agreed sum of $9,000, both arising out of the same and one cause of action in tort of negligence as I have ruled in the Judgment (§98), which both parties acknowledge and accept. This ruling follows the Court of Appeal judgment of Chan Chiu Tung v Cheng Ka Fai Philip [2024] 1 HKLRD 82 (§56) that the different types of claims, namely the injury to the plaintiff’s person and the damage to his motorcycle, flow from one single act of negligence of the 1^st defendant’s negligent driving. Where one tortious occurrence results in two types of damage, it gives rise to one single cause of action (§59).

35.  A sanctioned payment can be made in respect of part of the claim or one type of the different claims, as clearly provided in the prescribed form and what exactly D2 has expressly stated in the Notices of Sanctioned Payment.

36.  The Summons is based on the Sanctioned Payments made in respect of part of the claim, namely P’s bodily injury claim and exclusive of the different type, ie property damage claim. It is not D2’s argument that the property claim should not be included in the judgment sum, which P has misinterpreted as argued in opposition of the Summons. In any event, the Judgment was given against D1 the tortfeasor and the assessment of damages must include all types of claims, irrespective of whether D2 would be statutorily liable, and for which part of the claims.

37.  It would be up to P to decide whether to accept the Sanctioned Payments made by D2 in settlement of the bodily injury claim only, whereby his costs of proving quantum up to the time of acceptance would be secured as against D2. Upon acceptance by P of the Sanctioned Payments, D2 would go out of the picture. P could then decide to proceed with the remaining claim for property damage against the (absent) tortfeasor D1 by carrying on this action as against D1 only. The costs of proving the straightforward property damage claim, supported by a receipt, would be minimal. Substantial costs of P proving quantum of the bodily injury claim at trial would be saved.

38.  This course of action follows that endorsed by the Court of Appeal in the judgment of Chan Chiu Tung (supra): In that case, the plaintiff, having settled his bodily injury claim (in the sum of $1.9 million) with the 3^rd defendant insurer, was held not barred but was entitled to pursue his motorcycle property damage claim (for the mere sum of $11,421) against the 1^st defendant tortfeasor and continue the action in the District Court (§§64-69).

39.  The Court of Appeal ruled further in that case that the 3^rd defendant insurer, despite repudiation of the insurance policy, is under a statutory duty to satisfy any judgment in favour of the plaintiff, but confined to the bodily injury claim, under the Ordinance (§63).

40.  Similarly in the cases of Lui Yat Ling Elaine v Tam Kwok Fai & Ors[2018] HKDC 1611 and Chea Hung Cheung v Lo Tak Yiu & Anor DCPI 691/2012 (unreported, 14 May 2013), the insurer defendants settled the bodily injury claims only of the plaintiffs and were ruled to be out of the picture, leaving the plaintiffs to pursue the remaining property damage claims against the tortfeasor defendants in the same action.

41.  For the above reasons, I conclude that D2 had made valid Sanctioned Payments up to a total sum of $450,000 as at 31 January 2023 in respect of part, namely the bodily injury claim only, of P’s claim herein. The judgment sum in respect of the bodily injury claim only should be referred to in considering sufficiency of the Sanctioned Payments made by D2.

42.  It follows that the adjudged damages for bodily injury claim only plus interest, totalling $442,327.95 as set out in §19 above, fall short of the sum of $450,000 on offer. P has failed to obtain a judgment better than the Sanctioned Payments, and is liable to face the sanctions on costs prescribed under O 22 r 23 of the RDC.

The Sanctions on Costs

43.  O 22 r 23 of the RDC states as follows:-

“(1) This rule applies where a plaintiff-

(a) Fails to obtain a judgment better than the sanctioned payment;

…

(2) The Court may by order disallow all or part of any interest otherwise payable under section 48 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 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 without requiring the leave of the Court; and

(b) interest on the costs… 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…

(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 … 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…”

[emphasis added]

44.  O 22 r 23(5) of the RDC stipulates that the costs sanctions provided under O 22 r 23(2), (3) and (4) are mandatory in that the court “shall make the orders… unless it considers it unjust to do so”.

45.  In accordance with O 22 r 23(3), and I consider it just, that P should be liable to pay D2 the costs of the assessment of damages after 28 February 2023, ie the 28-day deadline on which date P could accept the Sanctioned Payments without leave.

46.  P’s counsel has not made submissions on the costs sanctions nor argued why it would be unjust for this Court to make the costs sanctions sought by D2 in the event that D2 succeeds in arguing that P had failed to beat the Sanctioned Payments.

47.  The onus is on P to show that in view of all the circumstances of the case, including the factors set out in O 22 r 23(6) of the RDC, it is unjust to make the orders provided in O 22 r 23(2), (3) and (4). Further, it is a question of fact in each case whether a party who fails to beat the sanctioned payment is able to persuade the court that it is unjust to allow the statutory consequences.

48.  I have considered the circumstances in which the Sanctioned Payments were made but not accepted by P. D2 has acted promptly in making the 3 Sanctioned Payments soon after the Order for joinder was made on 28 October 2022. It showed every genuine intention of settling the case in a reasonable and efficient manner. This would help achieve the underlying objectives of time efficient and costs economical case management under the CJR under O 1A r 1 of the RDC and should be commended.

49.  On the other hand, P has inflated his claim by pleading in the RSOD filed on 25 September 2023 a total claim of $1,182,282.25, or $1,173,282.25 for bodily injury exclusive of the property damage claim. The pleaded sum of damages is more than 2.5 times the sum adjudged by this Court. The claim is shown to be highly inflated and wholly unreasonable for reasons stated in the Judgment. P’s evidence on the seriousness of the R wrist and L fingers injuries, and the longstanding incapacitating impact on his work capacity and even daily activities, was found unreasonable and wholly incredible, and was rejected by this Court.

50.  There are no circumstances justifying departure from or rendering it unjust for costs sanctions provided under O 22 r 23(2), (3) and (4) to be imposed. It has not been shown to be unjust to order indemnity costs against P, and I exercise my discretion to so order.

51.  Parties have not made submissions on the appropriate rate of the enhanced interest to be adopted.

52.  I have considered the “modified” approach (of half of the full rate of 4% above prime in Hong Kong) of Johnson Lam J (as he then was) and the “full rate” approach adopted by Bharwaney J in the respective landmark cases of Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273 (at pages 279-280) and Shih Pik Nog v G2000 (Apparel) Limited [2011] 4 HKLRD 121 (at pages 128, 129), and the thorough and helpful discussion on the topic in the recent decision of Marlene Ng J in Chan Wai Chung v China Travel Tours Transportation Development (HK) Ltd & Anor[2023] HKCFI 1442.

53.  The “modified” approach is usually adopted where there is no evidence on the amounts and actual dates when the receiving party had paid or put up funds on account of costs, and from which interest would run at half of the full enhanced rate of interest, eg 4.5% pa, being half of 9% pa, in Golden Eagle (supra) to the date of judgment.

54.  In Shih Pik Nog (supra) (page 130), Bharwaney J took the view that in personal injuries cases where the receiving party was the insurer for the defendant who did not pay the costs to the solicitors until conclusion of the case, the court should not award any interest on costs if the insurer had not made any advance on account of fees incurred under O 22 r 23(4)(b) of the Rules of the High Court because otherwise it would produce an unjust windfall for the insurer. In that case, where the defendant insurer was directed to and did provide evidence of payment of costs, the court ordered the plaintiff to pay interest at the full enhanced rate of 9% pa on the actual sums paid from the dates of payment to the date of judgment.

55.  Both the “modified” approach in Golden Eagle (supra) and the “full rate” approach in Shih Pik Nog (supra) have been widely accepted and followed in the court’s consideration of sanctions on enhanced interest under O 22 r 23 depending on the circumstances and evidence of the case.

56.  In the present case, it is stated in D2’s Affidavit (§16) that D2 had through the solicitors paid the following sums on costs:-

(i)  $27,500 paid on 11 September 2023 in respect of medical expert’s fee; and

(ii)  $7,000 paid on 7 May 2024 in respect of half of mediator’s fee.

57.  On such evidence, it is appropriate for this Court to adopt the “full rate” approach in considering enhanced interest to be imposed.

58.  Reference is made to the current judgment rate of 8.875% pa. The level of enhanced interest awarded must be proportionate to the circumstances of the case, and the maximum of 10% pa above judgment rate must be reserved for the worst kind of cases.

59.  In the circumstances of the present case, I consider that the appropriate full enhanced rate of interest should be 3% pa above judgment rate, ie 3% pa + 8.875% pa = 11.875% pa, following the approach and assessment of Marlene Ng J in Chan Wai Chung (supra).

60.  I therefore award enhanced interest at 11.875% pa on each actual payment of costs made by D2 from the date of payment up to the date of judgment.

Sanctioned Payments be Kept and Remain in Court?

61.  D2 by the Summons also seeks an order that the sanctioned payments totalling $450,000 paid by D2 be kept and remain in court until further order, as security for costs payable by P to D2, pending taxation of D2’s costs ordered herein.

62.  D2 has made no submissions on the grounds or reasons in support of such an order.

63.  The onus is on D2 to give good reason why the money should remain in court. See Powell v Vickers, Sons & Maxim, Limited [1906] 1 KB 71, at 77.

64.  In Darcy Grant Dmetrichuk v Tung Wah Group of Hospitals Wong Fut Nam College HCPI 416/2005 (unreported, 22 June 2006), DHCJ Wright entered judgment in favour of the plaintiff in a sum with interest that was less than the sum the defendant paid into court shortly before trial. The learned judge granted with the judgment a costs order nisi in favour of the plaintiff against the defendant. The defendant’s application for variation was granted for the plaintiff to pay the defendant’s costs after the payment into court, but the court refused to make a further order sought by the defendant that the monies it had paid into court be held as security for its costs.

65.  On the issue of whether the monies that the defendant had paid into court should be retained until such time as the costs due to it had been taxed so that such costs be paid from those monies, the learned judge recognised that an order to such effect was effectively a form of security for costs (§18). He cited Powell (supra) “in which it was made clear that an order of this nature is exceptional and should only be granted where a defendant is able to discharge an onus to give some good reason why the money should remain in court” (§20). It was held that there was no justification for granting the relief sought.

66.  The principles were cited and followed in the decision on costs of DHCJ Marlene Ng (as she then was) in Ng Chi Kwan, Danny Summer (alias夏韶聲) & Anor v Yeung Yiu Kwai & Anor HCPI 633/2011 (unreported, 28 November 2014) (§§31-34). In that case, the learned judge refused to accede to the defendants’ request for the monies paid into court by them to be retained in court pending taxation of the parties’ respective costs. It was ruled that the sanctioned payments were made by the defendants for the purpose of disposing of the plaintiffs’ claim. The plaintiffs should prima facie be entitled to the release of a sum equivalent to the judgment out of the sanctioned payments in their favour. The defendants’ request was a de facto stay of execution of the judgment, and a security for costs awarded to the defendants pending taxation. It was for the defendants to demonstrate good reasons and to justify why the court should grant such order to enable them to enjoy such security. Further, without any evidence on costs estimates of the parties, there was no sufficient basis for the court to consider or exercise the discretion in favour of the defendants to retain the monies paid into court.

67.  Likewise in the present case, there is no evidence before me on the costs estimates and no good reason having been advanced by D2 for keeping the sanctioned payments in court as security for the costs due to it, the burden has not been met. The relief sought is refused.

ORDER

68.  In the circumstances, the costs order nisi, insofar as it relates to D2, is varied as follows:-

(1)  D2 do pay P’s costs of the assessment of damages from 28 October 2022 (the date of joinder) up to 28 February 2023, with certificate for counsel, to be taxed if not agreed;

(2)  P do pay D2’s costs of the assessment of damages after 28 February 2023, with certificate for counsel, on the indemnity basis up to the date of judgment, to be taxed if not agreed;

(3)  P do pay D2 enhanced interest on costs at 11.875% pa:-

(i)  on the sum of $27,500 from the date of payment on 11 September 2023 up to the date of judgment; and

(ii)  on the sum of $7,000 from the date of payment on 7 May 2024 up to the date of judgment.

69.  Costs of the Summons for variation of costs order nisi be to D2, payable by P, to be taxed if not agreed. This is an order nisi which shall become absolute in the absence of application by any party to vary within 14 days.

Mr Kamlesh A. Sadhwani instructed by Messrs M.C.A. Lai Solicitors LLP, for the plaintiff

Ms Veronica Lee of Messrs Winnie Leung & Co., for the 2^nd defendant

DCPI 2647/2022

[2024] HKDC 1376

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2647 OF 2022

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is the assessment hearing of the claim by the Plaintiff Mr Sandhu Jatinder Singh (“P”) for damages for personal injuries arising out of a traffic accident on 7 September 2020 (“Accident”) met by him when riding a motorcycle.

2.  Interlocutory judgment in default of defence was entered on 21 September 2022 against the 1^st Defendant Mr Ma Shiu Ming (“D1”), the driver of another motorcycle involved in the Accident.

3.  D1 has not entered an appearance in these proceedings.

4.  The 2^nd Defendant The Tokio Marine and Fire Insurance Company (Hong Kong) Limited (“D2”) was the motor insurer of D1. By an order dated 28 October 2022, it was granted leave to join in these proceedings to defend the issue of quantum.

5.  P was the only witness of fact called at the hearing.

6.  The evidence of the reports of public and/or private hospitals and/or clinics as to the treatment and care of P has been ordered to be adduced as agreed evidence (as to admissibility and authenticity) without calling the makers thereof.

7.  Joint orthopaedic experts examination of was conducted on 30 May 2023. The Joint Orthopaedic Expert Report dated 11 August 2023 (“JOER”) commissioned by the experts has been ordered to be adduced without calling them at trial, subject to the directions of the trial judge.

P’S CASE ON INJURIES AND DISABILITIES

8.  Prior to the Accident, P was a self-employed food delivery worker.

9.  At the time of the Accident, whilst riding on his motorcycle in making delivery, P’s motorcycle was collided by the other motorcycle driven by D1. As a result he fell on his right side to the ground. He sustained injuries including right (R) wrist sprain, left (L) 4^th and 5^th fingers fractures and abrasion wounds, and abrasions to his L elbow and R knee.

10.  P’s case is that despite treatment, he has suffered in the past 4 years and continues to suffer now pain, weakness and numbness in the R wrist and the L injured fingers. The residual symptoms have resulted in a weakened handgrip of his L hand. He dares not resume driving motorcycle as he cannot control the heavy brakes and the heavy motorcycle with his weakened L handgrip and painful L injured fingers.

11.  His pleaded case as set out in the Revised Statement of Damages (RSOD) filed on 25 September 2023 is that he has not resumed work but remained unemployed since the Accident. He would only be able to perform light duty work such as a security guard.

12.  On the other hand, P gave evidence in court, as he had reported to the medical experts during joint examination, that he had started working as a part-time security guard soon after sick leave expired on 4 August 2021.

13.  The residual disabilities have allegedly rendered P unable to enjoy life as a normal person, particularly given he is L-handed. He has to switch to use mostly his R hand to avoid causing pain to his dominant L hand. He is occasionally woken by pain, and his quality of sleep is affected. He has to take painkillers to reduce the pain, especially during winter time. The continuous pain has also affected his daily activities, such as watching TV and cooking, and he cannot comfortably do exercises.

D2’S CHALLENGE

14.  D2 has no dispute on the injuries sustained by P in the Accident as supported by the medical evidence, but argues that the alleged severe residual disabilities and their impact are highly exaggerated.

15.  D2 challenges genuineness of P’s complaints, length of a reasonable sick leave and P’s work capacity in resuming his pre-accident work, in gist, credibility of P.

16.  D2 argues with reference to the medical reports that P had long recovered with probably only minimal residual pain in his L injured fingers which should not affect his work capacity or resumption of work as a food delivery worker. Sick leave should end by March to April 2021. He should be able to resume his pre-accident work after the sick leave, and indeed he did resume working during the sick leave.

MEDICAL EVIDENCE

17.  P was admitted to the Accident & Emergency Department (A&E) of North Lantau Hospital. He was then transferred to the Department of Orthopaedics and Traumatology (O&T) of Princess Margaret Hospital (PMH) for management.

18.  Examination revealed the following injuries:

(1) L little finger proximal phalanx (PP) fracture with intra-articular involvement;

(2) L ring finger volar plate avulsion fracture of middle phalanx (MP);

(3) R wrist soft tissue sprain/contusion injury; and

(4) Multiple abrasion wound injuries to R wrist, L little and ring fingers, L elbow and R knee.

19.  The abrasion wounds were treated and wrist resting splint was given. P was discharged from the hospital on 10 September 2020.

20.  On 14 September 2020, P was re-admitted to the O&T of PMH and had an operation of reduction and internal fixation for treatment of the L little finger PP fracture. The surgeon decided on conservative treatment for the L ring finger MP fracture after examination under anesthesia. P was given buddy splint for the injured fingers. He was discharged from the hospital on the following day on 15 September 2020.

21.  P then attended regular follow up at the O&T out-patient clinic of PMH for about a year up to 4 August 2021.

22.  Subsequent serial x-rays report of the L little and ring fingers showed satisfactory bone reunion of the healed fractures.

23.  P was referred for physiotherapy treatment for the L little finger injury at the Physiotherapy Department of PMH. He attended a total of 14 treatment sessions during the period from 29 October 2020 to 28 January 2021.

24.  He also attended occupational therapy and work rehabilitation sessions for hand and upper limb rehabilitation at the Occupational Therapy Department of PMH during the period from 21 October 2020 to 11 March 2021.

25.  At the last Work Rehabilitation Assessment (WRA) conducted on 11 March 2021, P reported subjective complaint of slight decreased pain over the L little finger. No mention is made of R wrist pain or other symptoms.

26.  The occupational therapist upon the last WRA assessed P’s overall work capacity to be not matched with his previous job demand as a food delivery worker, with significant degree of limitation – this is P’s pleaded case as set out in the RSOD. P was discharged from occupational therapy after O&T follow up on 17 March 2021 in view of his static progress.

27.  The PMH O&T consultation summaries all along record P’s complaints/ findings of residual pain/swelling/numbness of the injured L little and ring fingers.

28.  Intermittent sick leaves were granted from the day of the Accident up to 4 August 2021 for the L little finger PP fracture and R wrist injury.

29.  The above relatively simple account covers all treatments attended by and sick leave granted to P as a result of the injuries sustained in the Accident. P did not seek further treatment after 4 August 2021.

30.  For the purposes of assessing credibility of P with regard to his complaints of prolonged pain and disabilities despite treatment, this court has, as suggested and submitted by counsel for D2 Mr Chung, taken a close look and considered the contemporaneous medical records, in particular the consultation records which record P’s symptoms and disabilities reported to the treating doctors in different periods shortly after the Accident.

31.  The discharge summary dated 7 September 2020 and the out-patient treatment / progress sheet dated 29 October 2020 of the O&T of PMH record P to be right handed.

32.  The PMH O&T consultation summary dated 30 September 2020 records P’s report of no right wrist pain. Examination revealed no swelling or tenderness, active range of movement in all aspects was near full, and without pain. Consultation summaries of subsequent follow ups on 19 October 2020, 30 November 2020, 1 February 2021 and 17 March 2021 all record the same nil pain or tenderness, nor any abnormal findings of the R wrist.

33.  Consultation records of the O&T of PMH show that P had declined analgesics during follow up on 17 March 2021, and none was prescribed to him, nor in the subsequent follow ups.

34.  P had in fact attended an earlier WRA with the Physiotherapy Department of PMH on 5 February 2021, more than a month prior to the last WRA on 11 March 2021. He complained of severe L little and ring fingers pain, and was noted to have low pain threshold. He could manage unilateral carrying of 20 lbs but he avoided using the L little finger. He reported to be not confident to ride a motorcycle due to pain in the L injured fingers and difficulty in grabbing the handbrake. L and R handgrip strength was found to be 14 kgf and 48 kgf respectively.

35.  The occupational therapist at this earlier WRA assessed P’s performance and concluded that his work capacity matched physical demand of previous job as a food delivery worker, but not confident to ride a motorcycle.

36.  The records also show that during follow up on 17 March 2021, the treating doctor had explained to P that his condition had become static and treatment was completed. Sick leave will soon be terminated and he was advised to return duty/change job as required.

MEDICAL EXPERT EVIDENCE

37.  P was jointly examined by orthopaedics expert Dr Wong Chin Hong (“Dr Wong”) for P and Dr Peter Ko (“Dr Ko”) for D2 on 30 May 2023, about 2 years 9 months after the Accident. The JOER was commissioned pursuant to the joint examination.

38.  As recorded in the JOER, P still complained of unresolved R wrist pain, continuous R ring finger pain and R little finger pain and numbness affecting weight handling capacity at the time of the joint examination. He demonstrated minimal L handgrip power, to the extent that he could not even hold a glass of water with his left hand. He reported that he was L-handed, but due to the L fingers injuries, he was using his R hand exclusively for all activities. He reported that he still required to take painkillers 2 to 3 times a month.

39.  P reported to the experts that he has not tried driving a motorcycle at all, but he has been driving his private car (with automatic gear) sometimes.

40.  The experts are agreed, as stated in the JOER, on the diagnoses, treatment and status of recovery of P’s R wrist and L little and ring fingers injuries.

41.  For present purposes, it should suffice to set out a summary of the medical experts’ agreed or slightly different opinions on the permanent disabilities and their impact on P’s work capacity as follows:

(1) Physical examination of the R wrist reveals normal findings. Dr Ko considers the R wrist injury trivial and that P had attained full functional recovery soon after the injury.

Dr Wong agrees that P’s complaint of R wrist pain after driving for 1-2 hours and pain at end range ofmovement is in line with good recovery;

(2) Dr Ko queries genuineness of the minimal L handgrip power demonstrated by P, which in his view is highly suspicious of some degree of manipulation and even under performance, be it intentional or not.

Dr Wong agrees that the diffuse tenderness along the whole L little and ring fingers, and the markedly reduced/minimal L handgrip power are not consistent with the satisfactory recovery and findings shown in the clinical records; these are likely to be over expression of symptoms and signs;

(3) The experts are agreed that P had appropriate and adequate treatment. Dr Ko considers P’s injuries to have reached maximum medical improvement (MMI) status by around 21 March 2021 upon completion of physiotherapy and occupational therapy treatment.

Dr Wong considers that P had continuous recovery through the follow up period, and had reached MMI status by 4 August 2021, ie the date of the last follow up at the O&T of PMH;

(4) Dr Ko considers a reasonable sick leave up to around March 2021, ie when P’s condition had reached MMI, appropriate.

Dr Wong considers the sick leave granted up to the last follow up on 4 August 2021 reasonable.

(5) On work capacity, Dr Ko opines that P should be able to resume his food delivery and motorcycle driving work with his reasonably good and satisfactory functional recovery of the L hand/fingers and R wrist;

Dr Wong opines that P’s L-hand condition would further improve, and that he would be able to ride a motorcycle, though he would need to modify the L-hand grip. He would be suitable to work as a driver or private chauffeur.

(6) Dr Ko assesses permanent whole person impairment and loss of earning capacity in respect of the L little and ring fingers injuries at 2.5%. The R wrist injury had recovered, leaving no permanent impairment.

Dr Wong’s assessment, also taking into account the R wrist injury, is 4%.

P’S EVIDENCE GIVEN AT TRIAL

42.  P gave evidence in Punjabi. He insisted in his live evidence that his R wrist is still painful, and he has pain sometimes.

43.  When being pointed out during cross examination by D2’s counsel that the contemporaneous medical and consultation records show that his R wrist problems had largely, if not completely, resolved by 30 September 2020, P replied that he had all along told the doctors that he still had R wrist pain sometimes. There must be some misunderstanding with the doctor as he did not speak English.

44.  When it was pointed out to him that the consultation summary of the first consultation on 30 September 2020 at the O&T of PMH records “…came with wife…right wrist no pain”, P replied that he was accompanied by his wife at the first consultation only as his wife could speak English. He had attended all subsequent consultations alone.

45.  Contemporaneous consultation summaries however show that P was accompanied by his wife, his son and friend (as interpreter) in most of the subsequent consultations. P gave no further explanation, but insisted by saying that “no, I went alone. I always went alone”, and that he had informed the doctors all along that he still/sometimes had pain in his R wrist and L injured fingers.

46.  P confirmed that both his wife and son could speak English. He was adamant that he had informed the doctors “I had continuous pain, but now it is sometimes pain”, “I sometimes have pain but not regular pain” and “sometimes when I pick up weights, I feel pain”, and “I did say to the doctor I don’t have pain every day. When I woke up after sleep and when I work, I have pain …and when I use (my R hand) for a long time.”

47.  When queried whether he was L- or R-handed, P insisted that he was L-handed. He had to switch to use the R hand since the Accident because of the painful L injured fingers.

48.  When asked whether he could hold a glass of water with his L hand (which he reported in the negative to the medical experts), P answered that “Yes I can hold and drink, but I cannot hold for long”.

49.  When asked further whether he had to use his R hand exclusively for all activities (as he had reported to the medical experts), P became shifty and said he used mostly his R hand and could only do light acts, such as picking up a spoon, with his L hand because of pain, and also he was scared of dropping things or injuring his L injured fingers further. He repeatedly said he was scared of using his L hand for fear of causing pain and further injuries.

50.  When cross examined on how his residual R wrist and L little and ring fingers disabilities have affected his daily living activities, such as watching TV (as stated in his witness statement §21), P explained that as he had only one sofa at home where he and his family would sit on to watch TV, he was worried that his injured L fingers would come into contact with others accidentally causing pain, so he simply “moved out from there”. When asked why he could not bring a stool to sit and watch TV, he said he did not feel like watching because he had pain sometimes, so he just went in his room and sat in there.

51.  During cross examination, counsel for D2 suggested to P that the R wrist and L fingers pain had subsided a few months after the Accident as he had declined analgesics during follow up on 17 March 2021 at the O&T of PMH, and none was prescribed to him thereafter.

52.  P was adamant that he still had pain at that time, and he even requires analgesics sometimes until now. He declined analgesics on that occasion because he was prescribed with much analgesics on previous follow ups. He had an abundant stock at home so he did not want more of it.

53.  P agreed upon cross examination that during follow up by 17 March 2021, the doctor had told him that sick leave would soon expire. The purpose of further sick leaves extended until 4 August 2021 was for P to contact the Labour Department to arrange for examination by the Medical Assessment Board (MAB) (which never took place).

54.  Regarding work capacity and the ability to resume driving, P’s evidence is that he dares not ride a motorcycle due to L little and ring fingers pain, so he has not been able to resume his pre-accident work as a food delivery worker. He admitted that he was able to drive a private car (with automatic gear).

55.  Contrary to P’s evidence that he was rendered not able to resume food delivery work as a result of the Accident, Inland Revenue Department (IRD) records show that P received a total of $202,036, apparently all from his work with two food delivery companies (namely Delivery Hero Food Hong Kong Limited and Deliveroo Hong Kong Limited) for the year of assessment 2020/2021.

56.  On P’s pleaded case that his pre-accident monthly earnings were $20,000, the IRD records for 2020/2021 indicate that P should have received earnings from food delivery work of around $100,000 for the 6 odd months post-accident period from 7 September 2020 to 31 March 2021.

57.  Evidence of service payment summaries issued by another food delivery company Foodpanda show the following payments to P for delivery service provided in the periods immediately after the Accident:

7–20 September 2020	$1,086.71
14–27 December 2020	$1,912.30
28 December 2020 – 10 January 2021	$374.71
22 March – 4 April 2021	$706.03

58.  Such income records also show that P did receive earnings for food delivery work performed during the post-accident period from 9/2020 to 3/2021, ie during the sick leave. When queried by D2’s counsel that he had in fact resumed food delivery work, P explained that the work was done by his wife and his son, though he sometimes accompanied them. He however could not drive a motorcycle or work alone.

59.  When queried whether his wife and son could drive a motorcycle, P replied that they drove their private car for the delivery work. He would also drive sometimes for 1 to 2 hours but no more.

60.  When asked why the son and wife did not apply to work in food delivery under their own accounts, P said the application would take a long time. Also the son did not normally live in Hong Kong but in Australia; he only helped out P with the delivery work sometimes when he came to visit in Hong Kong.

DISCUSSION

61.  On the overall medical evidence, in particular the hospital treatment records and consultation summaries, this court is inclined to accept Dr Ko’s conclusion that P had suffered a trivial R wrist soft tissue injury which had resolved shortly. He had no pain in his R wrist and had attained full range of movement within a month after the Accident by end-9/2020. No further complaint of R wrist pain was made by P in subsequent follow up consultations.

62.  Other than the initial treatment as recorded in the initial A&E record, no mention is made of treatment or complaints regarding the abrasion wounds in other body areas of L elbow, R knee, etc. These should be taken to have fully healed and recovered.

63.  A careful reading of the WRA reports reveals that P’s work capacity was assessed to be matched with his previous job physical demand as a food delivery worker at the earlier WRA conducted on 5 February 2021. He was noted to have the capacity to manage unilateral carrying of 20 lbs, which was above the weight handling demand in his job. The nil complaint of R wrist symptoms and R handgrip strength of 48 kgf all indicate a satisfactory or nearly full recovery of the R wrist injury.

64.  The occupational therapist’s conclusion upon the last WRA on 11 March 2021 of P’s incapacity to assume his previous work was seemingly based on P’s report of lack of confidence in riding motorcycle allegedly limited by pain of the L injured fingers when gripping the handbrake, and his refusal to attend driving assessmentas he had no concrete work plan.

65.  The reported deterioration of the L injured fingers conditions between the 2 WRAs conducted in February and March 2021 is not supported by medical or pathological findings, and is wholly unreasonable.

66.  I found P’s complaints of having R wrist pain on and off or sometimes up till now, and the great impact of the L little and ring fingers residual symptoms on his daily activities, highly exaggerated.

67.  P’s assertions in his witness statement regarding lack of full movement in his R wrist, avoidance of using the L hand, impact of the residual pain on his daily activities such as watching TV, inability to hold a glass of water with his L hand, and his complaint of continuous L injured fingers pain up to the time of the joint examination are highly exaggerated.

68.  Both Dr Wong and Dr Ko query genuineness of P’s complaints and the minimal L handgrip power and movements demonstrated, in light of the (much better) results shown in previous tests conducted during WRAs. P’s presentation of L-handgrip power of 0-4 kgf at the joint examination is wholly unreasonable compared to 14 kgf presented during WRAs more than 2 years earlier.

69.  The alleged continuous need for painkillers for L injured fingers pain is another exaggeration, when the consultation summary back on 17 March 2021 was remarked “decline analgesics”. P explained that he had so much painkillers at home from previous consultations so did not want more – this is contradicted by medical records which state prescriptions in the 4 previous consultations of painkillers in the amounts just sufficient for the interim period until the next scheduled follow up.

70.  The medical experts are agreed that P had attained MMI long ago by March-April 2021 (per Dr Ko) or August 2021 the latest (per Dr Wong), and that he should be able to resume driving motorcycle, albeit with some modification of the L handgrip according to Dr Wong.

71.  P’s evidence and report to the medical experts of his being L-hand dominant, contradictory to the contemporaneous medical records of R-handedness, raises doubts of an attempt to exaggerate the impact of the L fingers injuries.

72.  The IRD and service payments records show that P did resume food delivery work shortly after the Accident and during the sick leave. His explanation that such work was conducted by his wife and/or son in place of him, first raised during cross examination and without the wife and son’s evidence or witness statements in support, is unreasonable and incredible.

73.  On the other hand, adduced in evidence is the relevant Independent Contractor Agreement dated 20 March 2020 signed by P with Foodpanda in which it is stipulated that the contractor, ie P, may not assign the agreement unless with the prior consent of the company.

THE COURT’S FINDINGS

74.  In view of the above, I take the view that P’s evidence of severe residual disabilities of his R wrist and L injured fingers/hand impacting on his daily living and inability to resume driving motorcycle is highly exaggerated and incredible.

75.  This court makes findings on P’s injuries, disabilities and impact on his work capacity as follows:

(1) The R wrist soft tissue injury had recovered within 1 to 2 months after the Accident, leaving no residual symptoms;

(2) The L little and ring fingers fractures had healed with satisfactory functional recovery, leaving mild symptoms of pain and stiffness. P did not require further treatment or analgesics after August 2021; and

(3) P was able to, and did, resume food delivery work by driving a motorcycle or private car after the Accident and during the sick leave, with only minimal to mild impairment of his work efficiency and effectiveness due to residual pain and stiffness symptoms of the L injured fingers.

QUANTUM OF CLAIM

Pain, Suffering and Loss of Amenities (“PSLA”)

76.  P claims damages for PSLA in the sum of $500,000 as pleaded in the RSOD.

77.  Towards the end of the assessment hearing, P’s counsel Mr Choi in his closing submissions proposes an appropriate range for PSLA of $200,000 to $300,000, closer to the upper end, with reference to the following authorities:

(1) Chan Ming Yat v Youh Eng Michael trading as Prime Industrial Co (Hong Kong) (unrep, DCPI 201/2003, 5 June 2004)

(2) Yeung Pui Lap v Siu Fai trading as Hung Fai Electric Co (unrep, HCPI 1250/1998, 9 October 2000)

(3) Wong Tai Yau v Transward Stevedore Limited (unrep, HCPI 1080/2006, 9 October 2009)

78.  PSLA awards of $150,000 to $250,000 were made in the above cited judgments in years 2000 to 2009 involving slightly more serious injuries of fingers fractures and nerve damage injuries to one or two fingers or the right thumb. These awards should be revised upwards to a range of $200,000 to $300,000 currently.

79.  Counsel for D2 Mr Chung argues that the appropriate award for PSLA should not exceed $150,000. I have considered the following cases involving fingers injuries comparable to those of P in the present case referred to in D2’s opening submissions:

(1) Muhammad Asghar v Kwok Kong Moon formerly trading as Makos Engineering and Others[2022] HKDC 1184

(2) Khan Irram v Wai Hing Engineering Company Limited (unrep, DCPI 1465/2009, 4 November 2011)

(3) Wong Yun San v Cheung Yue Yiu t/a Radio Engineering Co (unrep, DCPI 1909/2007, 21 July 2008)

(4) Yeung Tsz Man v Everbest Port Services Ltd (in liquidation)[2018] HKDC 1054

80.  P had an operation to treat the L little finger PP fracture, and was hospitalised for a total of 6 days. I accept Mr Chung’s submissions and find that the L little and ring fingers fracture injuries and residual disabilities suffered by P should be awarded damages for PSLA in the sum of around $150,000 to $200,000.

81.  Taking into account inflation since the dates of judgments cited above, and also the R wrist injury and abrasions wounds to other body areas, I assess an appropriate award for PSLA at $240,000.

Pre-Trial Loss of Earnings

82.  P’s pleaded pre-accident monthly earnings of $20,000 are agreed.

83.  He claims as pleaded in the RSOD full loss of earnings for 11 months during the sick leave up to 4 August 2021, plus partial loss of earnings up to the notional date of trial (7 September 2024) based on notional residual monthly earnings of a security guard at $12,000, in the total sum of $515,506.90.

84.  In his closing submissions, P’s counsel concedes on a reasonable sick leave of 6.37 months up to 17 March 2021 only. According to P’s evidence, sick leaves after that date were extended for the purpose of arranging for MAB assessment only. P makes no claim for partial loss of earnings after the sick leave.

85.  The claim for pre-trial loss of earnings is therefore agreed at $127,400 ($20,000 x 6.37 months). P makes no claim for loss of MPF benefits.

Loss of Earning Capacity

86.  P has no claim for future loss of earnings, but argues that by reason of his permanent L hand/fingers disabilities suffered as a result of the Accident, he will suffer handicap and will be disadvantaged in the labour market.

87.  His claim for damages for loss of earning capacity pleaded in the sum of $120,000 in the RSOD is reduced towards the end of the assessment hearing to $60,000, as submitted by P’s counsel during closing submissions.

88.  The overall medical evidence does in my view support permanent mild residual pain and weakness of the fractured L little and ring fingers. P would likely suffer reduced work efficiency and effectiveness, albeit only minimal to mild on the evidence of defence medical expert Dr Ko.

89.  In his job as an independent contractor involving riding his motorcycle to provide food delivery service, P would take orders through a platform, and service fees would be paid to him upon completion of the delivery orders. His position is similar to that of a casual worker, ie the provision of work and orders would depend to a great extent on his efficiency in completing delivery orders.

90.  I have considered the judgment of Keith JA in Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314 referred to by P’s counsel on, inter alia, loss of earning capacity claimed by a casual worker at p.320C-F:

“I take it that what the master was saying was that the plaintiff had not passed the first stage of the two-stage exercise referred to by Browne LJ. Since he was always going to work as a painter, there was no question of him losing ‘his present job at some time before the estimated end of his working life’. But that seems to me to ignore the fact that the first stage of the exercise has to be modified if the worker was a casual worker not working for one employer continuously. In the plaintiff’s case, the question which the master should have asked was whether there was a substantial or real risk that, as a result of his reduced capacity and as a result of the greater possibility of the onset of degenerative arthritis, the plaintiff would not be able to obtain as much casual work as a painter as he would have done if he had continued to be able-bodied. If there was such a risk, the plaintiff was entitled to an award for loss of future earning capacity to the extent that that loss had not been reflected in the award for loss of future earnings.”

(emphasis added)

91.  I accept that P will be faced with a real or substantial risk that, by reason of his L fingers injuries resulted in reduced work efficiency and effectiveness, he will not be able to obtain as much work as a food delivery worker as an able-bodied person. An award under this head is appropriate.

92.  Bearing in mind the mild disabilities, I consider an award for loss of earning capacity in the sum of $50,000 would be reasonable in the circumstances.

Other Special Damages/ Misc Expenses

93.  P claims other special damages / misc expenses incurred and paid in respect of medical, travelling, tonic food and motorcycle repair expenses in the respective sums of $5,365, $2,000, $3,000 and $9,000 as set out in the closing submissions of P’s counsel.

94.  The medical expenses claimed are supported by medical records and receipts. These should be allowed.

95.  Travelling expenses claimed are of a modest amount given the numerous O&T, physiotherapy and occupational follow ups and treatment sessions attended by P. The claim is allowed.

96.  As for the claim for tonic food expenses, there is no evidence from P or of any receipts in support other than a bare plea in the RSOD. It is not known what kinds of tonic food were purchased or consumed, and whether such was taken upon medical advice or for the purpose of enhancing recovery from the injuries. No provision should be made.

97.  P claims damages for property damage / motorcycle repair cost of $9,000, which is supported by a receipt dated 23 April 2021.

98.  D2’s counsel initially raised the objection that it being the insurer should not be held liable to pay for the property damage in accordance with sub-sections 10(1) and 6(1)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. This is misconceived. The claim for property damage arising out of D1’s tortious act should appropriately form part of D1’s liability to P established in the present action based on negligence.

99.  Parties agreed at the closing submissions stage on the property damage claim / motorcycle repair cost of $9,000. This is awarded accordingly.

100.  I make an award of $16,365 in respect of P’s claims for property damage and medical and travel expenses incurred.

Interest

101.  Interest on PSLA is assessed at the usual 2% pa from the date of the writ of summons to the date of judgment. Interest on all pre-trial special damages is assessed at half of the judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment.

Summary on Quantum

102.  I summarise the award for P’s claim for damages as follows:

PSLA	$240,000
Pre-trial loss of earnings	$127,400
Loss of earning capacity	$50,000
Other special damages / misc expenses	$16,365
Total:	$433,765
	(plus interest)

103.  P’s total claim herein is thus assessed at $433,765 (plus interest). Credit should be given for the interim payment paid by D2 in the sum of $100,000.

ORDER

104.  I therefore make an order that D1 do pay damages to P in the sum of $333,765 plus interest.

105.  Costs should follow the event. I make an order nisi that D1 and D2 should pay P jointly and severally the costs of and occasioned by the assessment of damages (including all costs reserved, if any), to be taxed if not agreed, with certificate for counsel.

106.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

OTHER MATTERS ON COSTS

107.  This court noted with disapproval the improperly prepared RSOD and P’s Certificate of Time Estimates for Trial filed by P’s solicitors. This has necessitated amendments to the RSOD, and resulted in a waste of judicial resources and costs.

108.  D2’s counsel has confirmed that it has no claim for wasted costs which are modest, and would be difficult to quantify.

109.  I accept the explanation and apology offered in court by Mr Anthony Lai of P’s solicitors, and his undertaking to waive the solicitors and own client costs of P pertaining to the Amended RSOD and P’s Certificate of Time Estimates for Trial.

110.  Lastly, I thank counsel for their assistance.

Mr Samuelson Choi, instructed by M.C.A. Lai Solicitors LLP, for the Plaintiff

The 1^st Defendant was acting in person and did not appear

Mr Gary Chung, instructed by Winnie Leung & Co, for the 2^nd Defendant