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Lin Yanjin v Smart Billion Engineering Ltd

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
Judgment Date10 August 2011
Year2011
Judgement NumberHCPI739/2009
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI739/2009 LIN YANJIN v. SMART BILLION ENGINEERING LTD

HCPI 739/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 739 OF 2009

_________________________

BETWEEN

LIN YANJIN Plaintiff
And
SMART BILLION ENGINEERING LIMITED Defendant
_________________________
Coram : Before Master Marlene Ng in Chambers (open to the public)
Dates of Hearing : 26 July 2011 and 4 August 2011
Date of Handing Down Decision : 10 August 2011

______________

D E C I S I O N

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I. BACKGROUND

1. The Defendant was the contractor responsible for carrying out improvement works to the Sha Tin Country Trail (“Site”), and employed the Plaintiff as a construction site labourer.

2. On 26 February 2007, whilst the Plaintiff was operating a rubber track carrier to transport cement up an inclined path at the Site, the carrier’s engine failed. The carrier slipped backwards and overturned, thus causing the Plaintiff to suffer personal injuries (“Accident”).

3. On 24 November 2007, the legally aided Plaintiff through his assigned solicitors Messrs TS Tong & Co (“TST”) commenced the present action against the Defendant to claim damages for personal injuries as a result of the Accident.

4. The present action has been settled by the Defendant’s payment of the sum of HK$220,000.00 on top of the employees’ compensation settlement sum of HK$359,501.33 already received by the Plaintiff (“EC Sum”). Such settlement sum of HK$220,000.00 has been paid into court by way of three sanctioned payments in the respective sums of HK$161,000.00, HK$39,000.00 and HK$20,000.00 on 26 August, 19 October and 19 November 2010 (“1st, 2nd and 3rd SP”).

5. The outstanding dispute before me concerns certain costs that have been reserved in the course of the litigation, ie costs on the issue of liability in the present action (“1st Reserved Costs”), costs of the Checklist Review (“CLR”) hearing on 13 January 2011 (“2nd Reserved Costs”), and costs of the Defendant’s summons filed on 3 May 2011 (“Settlement Summons”) including costs of the hearing of such summons on 18 May 2011 (“3rd Costs”).

6. At the hearing before me on 26 July 2011 (“1st Hearing”), the parties made some concessions in respect of the 2nd Reserved Costs and the 3rd Costs which helped to narrow the scope of the dispute. But since the present action and its settlement have a chequered history, it is necessary to recount the chronology of the salient events for proper understanding of the dispute.

II. CHRONOLOGY OF EVENTS

7. In the Statement of Claim, the Plaintiff averred inter alia that the Accident was due to the Defendant’s default, and as a result his “left lower limb was hit and pressed by the [carrier]” and he sustained injuries to his left lower limb, back and neck (“Alleged Injuries”). In the Statement of Damages, the Plaintiff claimed damages in the total sum of HK$1,310,783.67 with interest.

8. In the Defence, the Defendant admitted negligence on their part in respect of the Accident. In paragraph 5 of the Defence, the Defendant admitted the occurrence of the Accident save as except that (a) the causation of the Alleged Injuries was not admitted (“Causation Dispute”), and (b) the Plaintiff was put to strict proof that his left lower limb was hit and pressed by the carrier and that he sustained personal injuries to his left lower limb, back and neck. The Defendant further averred that upon taking into account the EC Sum already paid to the Plaintiff and the expert medical opinion already available at the commencement of the present action the Plaintiff would not be entitled to any recoverable common law damages in respect of the Accident.

9. On 24 March 2010, the Director of Legal Aid (“DLA”) re-assigned Messrs Joseph Leung & Associates (“JLA”) to act for the Plaintiff.

10. At the CLR hearing on 28 April 2010 (“28/4/10 CLR”), notwithstanding the Defendant’s admission of negligence, case management directions were granted inter alia in relation to the issue of liability, such as directions for (a) serving “witness statement as to fact” (as opposed to witness statements as to quantum), (b) limiting expert evidence on liability to the occupational safety officer’s accident report, and (c) adducing the statements made to (and the plan and/or photographs taken by) the Labour Department in relation to the Accident (“28/4/10 Order”).

11. The letter from JLA to WKT referred to in paragraph 13 below suggested that at the 28/4/10 CLR the PI Master had explored with JLA and WKT the option of entering judgment on liability, but WKT “adopted ‘no liability / no pay / defend’ stance …… despite the learned Master’s repeated advice and warning”.

12. On 4 May 2010, WKT sent a letter to JLA on a “without prejudice save as to costs” basis to remind them that the Defendant had admitted negligence in respect of the Accident and that the Defendant merely required proof of the Alleged Injuries. They asked JLA to treat paragraph 5 of the Defence as amended to the effect that the Defendant admitted the circumstances of the Accident as averred by the Plaintiff “save and except the extent of the [Alleged Injuries] is denied and the Plaintiff is put to strict proof thereof. The Defendants shall rely on Dr Lam Kwong Chin’s evidence to rebut the Plaintiff’s claim as well as his medical expert’s evidence”. On such basis, WKT suggested that the only outstanding issue would be the assessment of damages, and there was no need for the parties to revisit the issue of liability in terms of the cause of the Accident and/or to prepare their respective case on the issue of liability. They told JLA not to include any evidence on the issue of liability in the Plaintiff’s witness statement since the Defendant would not bear any wasted costs in this regard.

13. On 5 May 2010, JLA by open letter to WKT reminded them to make proper application to amend the Defence, and stated that they would not regard WKT’s letter as any amendment of the pleadings. They also informed WKT that following the 28/4/10 CLR (which specified 19 May 2010 as the deadline for serving the Plaintiff’s witness statement) they had already taken the Plaintiff’s instructions on the issue of liability and had prepared his draft witness statement, so they rejected WKT’s refusal to bear such costs. JLA noted the court still had no record that liability would not be in issue, and asked WKT whether interlocutory judgment could be entered against the Defendant.

14. On 6 May 2010, WKT by open letter to JLA stated that although the Defendant had admitted negligence the Plaintiff in fact suffered no loss or damages over and above the EC Sum and the advance payments he had already received, and therefore he was not entitled to any judgment on liability. WKT went on to say that “[if] you so wish, you may go ahead with your so-called summons for “judgment”. We will oppose the same vigorously and claim costs against you on a full indemnity basis, if necessary. Your client and you proceed at your perils”. On the question of costs on the issue of liability, WKT said “[we] will never concede that you are entitled to costs of the action on liability and on the accident since our Defence. Quite to the contrary, it is very clear that you have only tried to inflate the costs contrary to the Civil Justice Reform”.

15. On the same day, WKT also sent on a “without prejudice save as to costs” letter to JLA and stated that in order to save time and costs they would be prepared to advise the Defendant to enter into a Consent Order on inter alia the following terms and asked JLA to take instructions:

(a) judgment on liability be entered against the Defendant in favour of the Plaintiff with damages, if any, to be assessed;

(b) costs of this action on the issue of liability up to and inclusive of this application, if not agreed, be reserved for further argument before the court after the assessment of damages or at the conclusion of the present action.

16. On 14 May 2010, JLA wrote to the PI Master to seek clarification as to whether the parties were required to prepare witness evidence as to liability. The PI Master replied he would not give comments without hearing from the Defendant.

17. On 20 May 2010, pursuant to the 28/4/10 Order, the Plaintiff served his witness statement dated 18 May 2010, which canvassed inter alia some aspects of the issue of liability, including the circumstances of the Accident.

18. On the same day, WKT wrote to the PI Master referring to the above correspondence between the solicitors for the parties and maintaining their complaint against the inclusion of matters that touched on the issue of liability in the Plaintiff’s witness statement. They also asserted that notwithstanding the Defendant’s admission of negligence in respect of the Accident, interlocutory judgment on liability should not be entered because the Plaintiff did not suffer any recoverable loss or damages.

19. Apparently, on the same day, JLA sent a reply to WKT on a “without prejudice” basis, but such letter was not placed before me. Nevertheless, WKT’s letter dated 2 July 2010 (see paragraph 23 below) alluded to JLA’s reply which stated inter alia that the Plaintiff was entitled to costs on the issue of liability.

20. On 1 June 2010, the PI Master (who was not the master who granted the 28/4/10 Order) by written directions to the solicitors for the parties urged the Defendant to clarify their position to enable early resolution of the issue of liability, and provisionally opined that the following matters implicitly suggested that liability had not been admitted: (a) the terms of the 28/4/10 Order and (b) the need for the Plaintiff to prove his case on the issue of liability at trial in the absence of any...

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