Ng Chi Kwan Danny Summer v Yeung Yiu Kwan
Court of First Instance
Personal Injuries Action No. 633 of 2011
Deputy Judge Marlene Ng
Tort
30 September 2014

Tort – negligence – causation and remoteness – plaintiff-singer cancelled concerts allegedly due to personal injuries – claim for wasted pre-cancellation expenditure – whether causation established – on assumption that but for accident concert would have gone ahead, expenses rendered futile in any event due to poor ticket sales, not defendants’ negligence

P was a well-known artist, singer and sole director and shareholder of C. On 6 December 2008, P was injured in a road traffic accident for which D1–2 were liable in negligence. He was diagnosed at an Accident and Emergency Department (the “A&E”) with a “sprained right neck” with full power and range of movement and no weakness or numbness. P was discharged with no follow-up appointments or sick leave. On 7 December 2008, P attended the A&E complaining of inter alia right neck pain, radiation to right shoulder/arm and mild numbness in his right fingers. P was referred for physiotherapy and granted 16 days’ sick leave until a follow-up appointment on 22 December 2008. He claimed that persistent pain/numbness in his right arm and hand would prevent him from playing the guitar or performing. On 10 December 2008, P cancelled a concert scheduled for 24 December 2008 and ticket sales stopped the same day. However, he did not seek any medical or other treatment (other than taking analgesics) in the following week or attend physiotherapy as recommended. Only 413 tickets had been sold in the one-month period up to that time. P claimed damages for inter alia wasted pre-cancellation expenses for the concert. Ds denied the cancellation was due to P’s injuries.

Held, dismissing P’s claim, that:

  • P was not a credible or reliable witness. On the medical evidence, his injuries from the accident were mild and he had exaggerated their extent and severity.
  • P had failed to establish the “but for” causal connection between Ds’ wrong and the alleged wasted pre-cancellation expenses for the concert. On balance on the evidence, by early December 2008, P knew that had it gone ahead, he would have suffered significant losses due to poor ticket sales and substantial expenses. Any promotion efforts after 10 December 2008 would not have significantly increased sales. Against this background, given P’s mild symptoms and failure to seek medical prognosis and/or therapeutic/rehabilitative treatment between 7and 20 December 2008, his injuries did not so seriously affect his ability/dexterity as to prevent him from performing at the concert and/or cause or contribute to its cancellation. That decision was caused by P’s recognition: (a) of the poor ticket sales and likelihood of significant loss; and (b) that relying on the accident would give him a face-saving exit.
  • Where a party sustained loss from a breach of contract, he was to be placed in the same position, with respect to damages, as if the contract had been performed. Protection of the expectation interest took account of both expected profits and necessary expenses in reliance on the contract being performed to compensate the loss of bargain. By contrast, the measure of damages in tort was assessed on the basis of restoring as far as possible the status quo ante as if the tort had not been committed. There was no causal link between the tort and the reliance interest, since the expenses would have been incurred under the contract in any event. Thus, the expenses rendered futile by the wrong did not have the same importance in tort as they had in contract as the claimant was not in tort taking action in reliance on the tortfeasor’s promise.
  • Here, assuming contrary to the conclusion above, that but for the accident the concert would have gone ahead, the pre-cancellation expenses would have been rendered futile in any event by the losses due to poor ticket sales, and this did not flow from Ds’ negligence. Indeed, on this assumption, Ds’ wrong reduced P’s loss as the cancellation decision saved some expenses which would not have been recouped, yet P would make a windfall gain if awarded “compensatory” damages. As it had been shown that if the concert had occurred, P and C would not have made sufficient profits to recoup the pre-cancellation expenses, the claim for such wasted expenditure wholly failed.

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