Pak Siu Hin Simon v. J.V. Fitness Ltd

HCPI 574/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 574 OF 2014

____________

____________

______________

D E C I S I O N

______________

Introduction

1.By a Judgment dated 15 May 2017 (“the Judgment”), this Court awarded damages of HK$89,594.04 plus interest to the Plaintiff, and made an order nisi for the Plaintiff’s cost to be on District Court scale since the time he received the employees’ compensation.

2.This is the Defendant’s application to vary the costs order nisi so that the Defendant shall have costs on indemnity basis.  The grounds for the Defendant’s application is that the Plaintiff was a malingerer and was not entitled to further damages under this action.

3.The Plaintiff’s solicitors could not contact the Plaintiff for instructions since June 2017, and no affirmation or submission has been filed in opposition.  I therefore proceed to deal with the summons in the absence of the Plaintiff.

The Facts

4.Shortly after the accident, the plaintiff received $795,766.96 as employee’s compensation.  On 4 April 2014, the Defendant made a sanctioned payment of HK$304,233.04 in the employees’ compensation proceedings in DCEC 569/2014 (“the EC Proceedings”).  On 3 September 2014, the sanctioned payment was, by consent, released to the Plaintiff as interim payment.  He had thus received a total of HK$1,100,000 before the trial of this personal injuries claim.  His application for further interim payment in the amount of HK$1,000,000 was dismissed by Deputy Judge Marlene Ng on 4 September 2015.

5.After trial, this court awarded damages such that the total the Plaintiff would have received was $885,361 ($795,766.96 + $89,594.04). Accordingly, the Plaintiff has failed to beat the sanctioned payment in the EC proceedings.

6.In addition, this court has found that the Plaintiff exaggerated his injuries and was malingering.  See particularly §56 of the Judgment.  This Court expressed doubt as to whether or not the Plaintiff needed psychiatric treatment at all; the Plaintiff was apparently shopping for sick leave certificates after those for orthopaedic cause had expired.  This Court substantially cut down the period for which he was entitled to sick leave.

7.The Plaintiff’s appeal to the Court of Appeal against the Judgment has been stayed since 18 October 2017 pending his provision of security for costs of the appeal within 28 days.  The Court of Appeal commented that there was no indication that the appeal had a strong chance of success.

Legal principles

8.Order 62, rule 5(1) of the Rules of the High Court provides that the court in exercising its discretion as to costs may take into account, amongst others, any payment of money into court and the conduct of all the parties.

9.Conduct of the parties includes (a) whether the successful claimant exaggerated his claim; and (b) conduct before, as well as during, the proceedings: Order 62 rule 5(2).

10.A plaintiff who made up a dishonest personal injuries claim should be penalized by costs on indemnity basis: Summers v Fairclough Homes Ltd [2012] 1 WLR 2004, at §§52 and 53.

Analyses

11.The Defendant did not make a sanctioned payment in this action. However, the Plaintiff has failed to do better than the interim payment he received under the EC proceedings.  If the Plaintiff had settled on receiving that interim payment, 3 years’ costs leading up to the trial in the present action would have been saved.  Instead, he sought further interim payment before DHCJ Marlene Ng.  At that hearing, there was no psychiatric evidence. Accordingly, the parties had to incur further costs on psychiatric experts afterwards.

12.On paragraph 11 alone, the Defendant is entitled to costs on indemnity basis for this action.

13.If that was not enough, the Plaintiff clearly had not made use of the 3 years since issue of the writ on 17 June 2014 to reflect on his claim.  DHCJ Marlene Ng set out his medical evidence in quite some detail but observed the lack of psychiatric evidence.  That did not deter the Plaintiff.  By the time of the trial he still sought damages for the wholly unrealistic sum of HK$8,700,000 when both orthopaedic experts opined that he could have returned to his pre-accident job. 

14.Meanwhile the Plaintiff spent money on a new car and 3 pleasure trips out of Hong Kong. 

15.This court has made express findings that he was a malingerer.  By way of examples, there were findings that he had feigned physical disabilities by the use of a stick, shopped for sick leave certificates from a doctor after the sick leave granted by orthopaedics have expired, gave untrue evidence about seeking advice from Dr Chan before travelling to Korea.  Much of this conduct was before commencement of this action.  The Plaintiff could have no reasonable belief in a claim for $8.7 million.

16.The Plaintiff has not advanced any reason to show why it is unjust to order indemnity costs. 

17.In the circumstances of this case, I have no hesitation in varying the costs order nisi to one of costs to the Defendant on indemnity basis for this action, including the costs of this application for variation.

18.I thank Mr Leon Ho for his assistance.

Attendance of B. Mak & Co, for the plaintiff, was excused

Mr Leon Ho, instructed by Au & Associates, for the defendant