Wong Ka Ming v Ng Yin King And Another

HCPI 760/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 760 OF 2009

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BETWEEN

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D E C I S I O N

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1. This is the 2^nd Defendant’s application to vary my costs order nisi dated 2 June 2011.

Background

2. To recap, there was a traffic accident on 4 March 2008 and the Plaintiff was injured. The 1^st Defendant was the driver of the offending vehicle and the 2^nd Defendant was his insurer. Judgment was entered against both Defendants with damages to be assessed.

3. The Plaintiff is an experienced public light bus driver. He claimed almost $2.5 million of damages in his Revised Statement of Damages. On 2 June 2011, I assessed the damages payable to him to be $245,370 plus interest. I also made an order nisi that the Defendants do pay the Plaintiff the costs of the assessment to be taxed on District Court scale if not agreed.[1]

4. Parties have now placed before me evidence on the circumstances of three pre-action Calderbank offers made by the 2^nd Defendant, and three sanctioned payments by the 2^nd Defendant and two sanctioned offers by the Plaintiff after the commencement of this action. These can be summarized in the following chronology:

4.3.2008	Date of accident
2.2.2009	2nd Defendant received Plaintiff’s pre-action letter
3.6.2009	2nd Defendant disclaimed liability on the insurance policy
18.6.2009	2nd Defendant requested documentary evidence on Plaintiff’s alleged daily income of $800
9.7.2009	2nd Defendant received a reply from Plaintiff, enclosing a letter from Inland Revenue Department
28.10.2009	2nd Defendant’s 1st Calderbank offer in the sum of $80,000 (inclusive of interest) plus costs
6.11.2009	2nd Defendant’s 2nd Calderbank offer in the sum of $88,000 (inclusive of interest) plus costs
19.11.2009	2nd Defendant’s 3rd Calderbank offer in the sum of $100,000 (inclusive of interest) plus costs
7.12.2009	Commencement of this action, against 1st Defendant only
21.1.2010	2nd Defendant was joined in, by court order
1.2.2010	Date of Joint medical report
18.2.2010	Judgment entered against 1st Defendant, for damages to be assessed
6.3.2010	2nd Defendant again requested documentary evidence on Plaintiff’s alleged daily income of $800
10.3.2010	2nd Defendant received copies of Plaintiff’s bank passbook
11.5.2010	2nd Defendant re-instated its 3rd Calderbank offer of $100,000
2.6.2010	2nd Defendant’s 1st sanctioned payment of $160,000
20.7.2010	Judgment entered against 2nd Defendant, for damages to be assessed
11.8.2010	2nd Defendant’s 2nd sanctioned payment of $210,000
25.11.2010	Plaintiff’s 1st sanctioned offer to accept $740,000 plus interest and costs to be taxed if not agreed
31.12.2010	2nd Defendant’s 3rd sanctioned payment of $250,000
7.5.2011	Plaintiff’s 2nd sanctioned offer to accept $400,000 (inclusive of interest) plus costs
18.5.2011	Assessment of Damages commenced

5. The focus of the argument is no doubt on the third and last sanctioned payment of the 2^nd Defendant on 31 December 2010 in the sum of $250,000, although parties have also referred to the other settlement offers in argument.

6. Under Order 22, rule 15, a plaintiff may accept a sanctioned payment made not less than 28 days before the commencement of the trial without requiring the leave of the Court if he files with the Court and serves on the defendant a written notice of acceptance not later than 28 days after the offer or payment has been made. It is common ground that the last date on which the Plaintiff could have accepted the sanctioned payment was 28 January 2011.

7. There was initially a minor dispute over the amount of interest accrued on the judgment up to that date. Parties have agreed at the hearing that I should take the Plaintiff’s calculation as correct and the amount of interest accrued was $20,696. The total amount of judgment plus interest as at 28 January 2011 was therefore $266,066, which was $16,066 more than the sanctioned payment of $250,000.

Discussion

8. By its summons, the 2^nd Defendant applies to vary the costs order nisi so that:

(a) the 2^nd Defendant shall pay the Plaintiff the costs of this action up to 28 January 2011; and

(b) each party shall pay his own costs in this action on or after 29 January 2011.

9. In contending for such an order, Mr Gidwani (counsel for the 2^nd Defendant) likens this case to Lau Chi Keung v Wong Wai Kei[2].

10. Lau Chi Keung was also a personal injuries action. The defendants there made a sanctioned payment of $450,000. The damages awarded to the plaintiff after trial inclusive of interest and after deducting the employees’ compensation received came to $452,922.80. That was marginally better than the sanctioned payment by $2,922.80. The learned Judge initially made a costs order nisi giving costs of the action to the plaintiff. The defendants then applied to vary the costs order such that the plaintiff should pay them the costs incurred after the date of their sanctioned payment. The learned Judge was apparently satisfied that there were “special circumstances” in that case justifying a departure from the usual rule that a successful claimant should be entitled to recover all his costs from the losing party[3]. He ordered the defendants to pay the plaintiff’s costs up to the date of the sanctioned payment only.

11. Mr Gidwani has been unable to identify from the written decision in Lau Chi Keung what those “special circumstances” were. Nonetheless, he puts forward the following as the special circumstances in this case justifying a departure from the norm: [4]

“ (a) The 2^nd Defendant had made, altogether, 7 offers (including one that is re-instated) to the Plaintiff for settlement. Evidently, the 2^nd Defendant had conducted themselves in reasonable (sic) way in achieving settlement where possible.

(b) The Plaintiff had never, through his instructed (sic) solicitors, made any settlement offer or counter offer to all Calderbank offers and the sanctioned payments until nearly 1 year after commencement of court proceedings and about 2 years after the pre-action demand.

(c) The present claim was exaggerated by nearly 10 times the amount the Plaintiff was awarded.

(d) The length of the proceedings had unreasonably been prolonged (with concomitant adverse cost (sic) consequence) due to the Plaintiff’s insistence on his entitlement to ‘future loss of earnings’ when there is no medical evidence or expert’s opinion supporting this head of damages.

(e) The length of the proceedings had also been unreasonably prolonged (with concomitant adverse cost (sic) consequence) due to the Plaintiff’s insistence on his entitlement to ‘loss of earning capacity’ when this head is clearly not recoverable for self-employed person according to decided cases, and there is no evidence to support that the Plaintiff would, by reason of his disability, be likely to be placed at a disadvantage in the labour market.

(f) The Plaintiff did not provide a breakdown or explain in details of how the self-declared $800 daily wage was derived whether in the correspondence or even in his witness statement, and despite our specific requests made on at least two occasions for further proof. The formulation of his profits was only disclosed at the trial. The 2^nd Defendant was therefore deprived of the opportunity to consider this evidence in an early stage to decide the proper offer to be put forward…

(g) The Plaintiff’s allegation relating to his lower limb weakness was not accepted by the court.”

12. In my view, the starting point of the discussion is the basic principles that: