Lai Chi Wai v. Tong Hung Kwok and Another

HCPI 1235/2014

[2020] HKCFI 1408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1235 OF 2014

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BETWEEN

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R U L I N G

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1.The plaintiff’s, the 1^st defendant’s and the 2^nd defendant’s solicitors have all written to me on 15 May 2020 requesting a ruling from me on the issue of interest on damages for loss of congenial employment, loss of society and pre-trial loss of earnings. This is my ruling.

2.In §88 on p.52 of my judgment dated 23 April 2020, I noted the parties’ agreement that interest was payable on general damages “from date of service of writ to date of trial at 2% per annum”[1].

3.In §137 of my judgment, I awarded $150,000 as damages for loss of congenial employment.  In §138 of my judgment,  I awarded $150,000 as damages for loss of society under section 20C(2)(a) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”).

4.In §143 of my judgment, I awarded interest on damages for PSLA at 2% per annum from the date of service of the writ to the date of judgment.  I did not make a similar award of interest at 2% per annum from the date of service of the writ to the date of judgment on my awards of damages for loss of congenial employment and loss of society.

5.An award of damages for loss of congenial employment is an award of general damages.  The award for damages for loss of society created under section 20C of LARCO is also an award of general damages.  The awards of damages for loss of congenial employment and for loss of society ought to attract an award of interest just as much as an award of damages for PSLA.  I apply the slip rule and award interest on my awards of damages for loss of congenial employment and for loss of society at 2% per annum from the date of service of the writ to the date of judgment.

6.In §88 on p.52 of my judgment, I noted the parties’ agreement that interest was payable on past losses and special damages “from date of accident to the date of trial at 4% per annum (half judgment rate)”[2].

7.In §143 of my judgment, I awarded interest on special damages at 4% per annum from date of accident to date of judgment.  In §127 of my judgment, I assessed loss of earnings from the commencement of trial on 10 January 2019 to 13 November 2019 in the total sum of $131,250.

8.Notwithstanding the parties’ agreement to take the pre-trial period as a period of 85 months from the date of the accident on 9 December 2011 to the date of the commencement of trial on 10 January 2019, the plaintiff’s solicitors “consider that the loss of earnings from 10^th January 2019 to 13^th November 2019 is “past loss” and therefore interest on loss of earnings from 10^th January 2019 to 13^th November 2019 is payable but the 1^st and 2^nd defendants disagree.”[3]

9.In §86 of my judgment I said:

“86. The parties have agreed to take the pre-trial period as a period of 85 months from the date of the accident on 9 December 2011 to the date of the commencement of trial on 10 January 2019, even though the trial was only concluded in September 2019 and closing submissions exchanged in October 2019. The delay in completing the trial was caused by the long period of time it took the parties to obtain expert evidence on the use and cost of an exoskeleton device. I am prepared to award special damages, including pre-trial loss of earnings, pre-trial value of services and other pre-trial losses and expenses, on this basis even though the actual pre-trial period from the date of accident to the date of judgment is a period of 100 months. The shortfall in the award of special damages for the lesser period of 85 months is offset somewhat by the larger multipliers adopted for future loss which were agreed based on the plaintiff’s age of 36 in January 2019 rather than based on his actual age of 37 today.”

10.In order to be consistent with the parties’ agreement, I confirm that I do not make any award of interest on my award of damages for loss of earnings from the commencement of trial on 10 January 2019 to 13 November 2019 in the total sum of $131,250.

11.I make a costs order nisi that there be no order as to costs in respect of this application and that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

ONC Lawyers, assigned by Director of Legal Aid, for the plaintiff

Massie & Clement, for the 1^st defendant

Anthony Siu & Co, for the 2^nd defendant