Case Document

100%Judiciary

HCPI 1070/2014

[2019] HKCFI 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1070 OF 2014

_________________________

BETWEEN
	LO YUEN CHONG	Plaintiff
	And
	IWS ENVIRONMENTAL TECHNOLOGIES LIMITED (formerly known as FOOK WOO ENVIRONMENTAL TECHNOLOGIES)	Defendant
	_________________________

Coram: Master J Wong in Chambers (open to public)

Date of Hearing: 2 October 2018

Date of Handing Down: 1 February 2019

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D E C I S I O N

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1.This is an application by the plaintiff made under the slip rule and/or the inherent jurisdiction of the court. She first sought to correct a said mathematical error in the assessment herein. If it were allowed, she further sought consequential adjustment of damages awarded to her, and then, variation of costs order having made by the court.

2.On 28 October 2016, I handed down my assessment herein. After exchange of some correspondence among the parties and the court, a corrigendum was issued on 9 December 2016.

3.Upon application by the defendant, on 21 July 2017, I further handed down a decision wherein I declined to vary the interest awarded to the plaintiff on general damages. However, I did agree to vary the costs order nisi because the plaintiff had failed to beat the sanction offer made by the defendant.

4.The plaintiff appealed my decision and took up the matter to a Judge[1]. On 20 March 2018, the learned Judge adjourned the matter with costs reserved.

5.On 27 April 2018, the plaintiff issued the present summons. In the supporting affirmation, it was said, inter alia, that the Judge adjourned the appeal hearing to see whether parties could come to terms, and if not, the plaintiff might apply under the slip rule before me. Paragraph 26 of the assessment contained a mathematic error. The correct figure of the average pre-trial monthly earning of the plaintiff should be $8,840 (i.e. $7,954 x 1.1114 = $8,840) instead of $8,780 (i.e. $7,900 x 1.1114 = $8,780).

6.The defendant disagreed. The Judge in fact took the view that the plaintiff’s appeal should have been made to the Court of Appeal. Counsel for the plaintiff then asked for a direction that an application be made to me under the slip rule. The Judge replied that his assistance was not needed and the plaintiff was free to do so if she so wished. There was no mathematic error because I had agreed with the suggestions from their counsel and clarified in the corrigendum that it was made in principle. The plaintiff had never raised such mathematic error issue and should not be allowed a second bit after 1.5 years. In any event, costs remained an exercise of discretion of the court and could not be amended under the slip rule.

7.The plaintiff made no further reply affidavit.

8.Parties appeared before me on 2 October 2018 for the argument. After hearing from both counsel, I reserved my decision to be handed down. Here it is.

9.Upon consideration of all the evidence authorities and submissions from the parties, I have decided to dismiss the application.

10.First, the slip rule aims at correcting clerical mistakes arising from accidental slip or omission, including arithmetical error in calculation of damages. However, upon review of the assessment, it was indeed my intention to adopt the figure of $8,780 for the purpose of calculating the damages to be awarded to the plaintiff.

11.Second, the argument of the plaintiff can also be dismissed if one looks at the relevant exchange of letters and correspondence with the court from the handing down of the assessment to the corrigendum. On 3 November 2016, the plaintiff’s solicitors informed the court certain clerical mistakes and sought clarification of sick leave and interest on special damages.

12.Solicitors for the defendant replied on the following date that they would seek variation of costs order nisi and interest on both general and special damages. All matters could be dealt with there and then. On 23 November 2016, they further informed the court that parties had some disagreement as to computation of the plaintiff’s loss of past earnings and MPF. Copies of parties’ exchange of letters were also exhibited. From these documents, it is clear that parties adopted the figure of “$8,780” and only disputed on the period to be applied.

13.At the end, the corrigendum issued on 9 December 2016 includes that “4. Paragraph 26 should read as “… I accept in principle the calculation proposed by Ms Lau.”

14.Third, at the hearing on 2 October 2018, Ms Lau took me again through parties’ case and counsel’s skeletons as to how the figure of $8,780 was arrived at.

“16. The Plaintiff was on sick leave between 15^th December 2012 and 21^st February 2014. Before her sick leave, her average monthly earning was about $7,954 – as her earnings varied from month to month.

17. There was no dispute between the parties at the assessment hearing that the Plaintiff started to work for the Defendant as a workshop clerk as from 31^st October 2011 onwards. Her basic salary, as per the employment agreement disclosed at page 256, was $7,560 with three months’ probation. The Plaintiff was entitled to receive overtime allowance should she work overtime but not double pay under the employment agreement.

18. There was also no dispute between the parties that Madam Wong Mei Mei and Madam Kwok Yuen Kwan were comparable workers. They were comparable workers because both of them were, like the Plaintiff, employed to work as a workshop clerk for the Defendant since 2012 and their salaries were also comparable to that of the Plaintiff prior to the Accident, namely, $7,560 as at January 2012 (as per their wage records disclosed at page 253 and 255).

19. In the Closing Submission of the Defendant, the Court’s attention was drawn to the following factual matters (which were not denied by the Plaintiff):

(1) The basic salary of both Madam Kwok and Madam Wong as at January 2012 was $7,560;

(2) Similar to that of the Plaintiff, their respective basic salary was later increased to $7,900 in June 2012;

(3) Their respective basic monthly salary was increased to $8,780 in 2013;

(4) Their respective basic monthly salary was increased to $9,050 in 2014.

{all the above figures were shown on the disclosed wage records at pages 252-255}

20. While the Plaintiff contended in her Revised Statement of Damages that she would have enjoyed a flat 10% increase per annum in her salary but for the Accident, the increase in the earnings enjoyed by Madam Kwok and Madam Wong during the sick leave period of the Plaintiff, ie between 2012 and 2013, was 11.14% only (being [($8,780 - $7,900) / $7,900 x 100%].

21. Hence, the rate of 11.14% was adopted by the Defendant as the notional increase in the notional earnings of the Plaintiff for her sick leave period between 15^th December 2012 and 21^st February 2014 (as per paragraph 91 of the Closing Submission of the Defendant at page 211).

22. The figure of $7,900 was used as it was the basic salary of both comparable workers which was also similar to that of the Plaintiff in 2012. This thus gives the figure of $8,780 (being $7,900 x 11.14%).

23. The Plaintiff, on the other hand, contended that her notional earnings would have been increased to $11,635.71 by the time of the assessment hearing in 2016 by comparing the salaries of both Madam Wong and Madam Kwok (see paragraph 14 of the Plaintiff’s Closing Submission at page 180). No detail was provided as to how the figure of $11,635.71 was calculated.”

15.Ms Lau’s submissions refresh and coincide with my memory and I respectfully adopt them.

16.The above suffices to dispose of the plaintiff’s summons and I do not believe that I need to go so far as suggested by Ms Lau that the real purpose of the application was another attempt made to get round the unfavorable outcome to of the assessment and consequential adverse costs order.

17.As I have decided against the plaintiff on her attempt to increase the damages awarded to her, it is not necessary to go further to consider a re-exercise of discretion over the question, upon the inherent jurisdiction of the court, as contained in my decision dated 21 July 2017 herein.

18.There appears to be no reason to depart from such general principle that costs follow the event. Assistance from counsel is helpful to me. I will therefore make an order nisi that the plaintiff do pay costs of the defendant in the application, including costs reserved and certificate for counsel for hearing on 2 October 2018, on High Court scale, to be taxed if not agreed. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.