Chiu Sui Ching, The Administrator of the Estate of Leung Ho Tin, Deceased v. Cheng Kwai Hung t/a Hang Nagi Works and Others

HCPI 939/2017

[2022] HKCFI 3642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 939 OF 2017

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BETWEEN

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RULING ON INTEREST

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I. BACKGROUND

1.On 11 November 2022, I handed down written judgment in the assessment of damages in the present action (“Written Judgment”), and granted judgment in the sum of $216,265.03 in favour of the plaintiff (“P”)  against the 1^st to 5^th defendants (collectively, “Ds”)  jointly and severally (“Judgment”)  together with a costs order nisi (see paragraph 418 of the Written Judgment”). For convenience, I shall adopt the abbreviations in the Written Judgment.

2.On the same day as handing down this Ruling, this court also issued a Corrigendum to the Written Judgment (“Corrigendum”). Paragraphs 3-9 and 14 of the Corrigendum concerned clerical or arithmetical errors. The balance of the Corrigendum arose from the date of the Assessment Hearing in March/April 2021 which was erroneously stated in the Written Judgment to be in October 2021 (“Date Error”). P and D2-D5 brought the Date Error to the attention of the court by way of the Joint Submission referred to in paragraphs 5-6 below. Such inadvertent error had implications on the calculations for pre-trial loss of dependency, loss of accumulation of wealth and interest on pre-trial loss of dependency even when the rationale, basis and metholodology of such awards were undisturbed. Hence, this court issued the Corrigendum.

3.The awards for heads of damages and interest assessed by this court in the Written Judgment as amended by the Corrigendum were as follows (“Awards”):

Description	HK$
Pre-trial loss of dependency	153,000
Post-trial loss of dependency	519,840.00
Loss of accumulation of wealth	265,000.00
Funeral expenses	66,463.70
Bereavement	150,000.00
Interest:
(a)  on pre-trial loss of dependency	6,548.40
(b)  on funeral expenses	31,461.53
(c)  on bereavement	98,040.00
	1,290,353.63
Less EC Sum received	(1,070,038.00)
Total:	220,315.63

4.At the Assessment Hearing, Mr Sakhrani, counsel for D2-D5, submitted that (i)  funeral expenses in the sum of $18,402 under Form 25 was paid to P on 23 September 2014, and (ii)  the EC Sum was paid on 6 October 2015. Mr Chong (and Mr Ho with him), counsel for P, did not make submissions on (i)-(ii)  above, so the amounts of interest awarded in the Awards (see above paragraph)  premised on (i)-(ii)  above with breakdown in (a)-(c)  below were made on nisi basis (see paragraphs 414-415 of the Written Judgment and paragraphs 28-29 of the Corrigendum)  (“Interest Nisi Awards”):

(a)	Interest on the award for bereavement is awarded at 8%pa from the date of death (12 September 2014)  to the date of judgment herein (11 November 2022)[1] being 8 years and 61 days or 8.17 years, ie $150,000 x 8%pa x 8.17 years = $98,040.
(b)	Interest on funeral expenses is awarded on the partially paid sum of $18,402 at 8%pa from date of death (12 September 2014)  to such payment on 23 September 2014 (12 days)  and on balance sum of $66,463.70 - $18,402 = $48,061.70 from date of death (12 September 2014)  to the date of judgment herein (11 November 2022)  being 8.17 years (see (a)  above)  totalling $31,461.53:
	(i)	$18,402 x 8%pa x 12 days ÷ 365 days = $48.40;
	(ii)	$48,061.70 x 8% x 8.17 years = $31,413.13.
(c)	Interest on pre-trial loss of dependency is awarded at 4%pa from date of death (12 September 2014)  to date of payment (6 October 2015)[2] being 1 year and 25 days or 1.07 years, ie $153,000 x 4%pa x 1.07 years = $6,548.40.

5.In paragraph 416 of the Written Judgment, I directed the solicitors for P and the solicitors for D2-D5 to jointly write to this court within 14 days from the date of the Written Judgment with copy to D1 (“Joint Submission”)  on the following:

(a)	confirm whether the facts in paragraph 4(i)-(ii)  above were correct, and if not, what were the correct facts as to the dates and amounts of payments made by D2;
(b)	confirm whether the arithmetical calculations of interest in paragraph 4(a)-(c)  above were correct, and if not, submit revised marked-up arithmetical calculations that reflected the Interest Nisi Awards;
(c)	confirm in light of (a)-(b)  above whether the arithmetical calculations of the overall award in paragraph 3 above (then not yet amended by the Corrigendum)  were correct, and if not, submit revised marked-up arithmetical calculations that reflected my overall award;
(d)	confirm when and how the Joint Submission was served on D1.

6.On 25 November 2022, the solicitors for P and the solicitors for D2-D5 jointly lodged the Joint Submission, and confirmed the Joint Submission upon being lodged with the court would also be served on D1 by ordinary post to his last known address.

II.  JOINT SUBMISSION

7.There was substantial agreement and common ground between P and D2-D5 both on (a)  factual backround matters that pertained to the Interest Nisi Awards, and (b)  their calculation of the interest awards, so essentially there was 1 outstanding matter.

8.P and D2-D5 agreed and confirmed the following:

(a)	D2 paid a sum of $70,000 as funeral expenses advance payment to the Mother on 23 September 2014 (ie 12 days from the date of death);[3]
(b)	the EC award for the Mother was paid on 6 October 2015 (ie 1 year and 25 days from the date of death)  and the EC award for the Sister was paid on 7 October 2016 (ie 2 years 36 days from the date of death);
(c)	the pre-trial period was 79 months, so the pre-trial loss of dependency would be $1,500/month x 79 months = $118,500 for the Mother[4] and $500/month x 69 months = $34,500 for the Sister, totalling $153,000;
(d)	pursuant to the order of Master Roy Yu dated 12 September 2019, D2 and D5 had paid a total sum of $550,000 as interim payment to P on 12 September 2019 (ie 5 years from the date of death).

9.P and D2-D5 had no disagreement on the calculation of interest on the awards for pre-trial loss of dependency and funeral expenses, so the following agreed calculations of interest shall replace the Interest Nisi Awards in paragraph 415(b)-(c)  of the Written Judgment (as amended by paragraph 10 of the Corrigendum):

(a)

Interest on pre-trial loss of dependency: (i)  For the Mother: $118,500 x 4%pa x 1 year and 25 days = $5,064.66; (ii)  For the Sister: $34,500 x 4%pa x 2 years and 36 days = $2,896.11;

(b)

Interest on funeral expenses: (i)  Interest on part of the award for funeral expenses in the sum of $18,402 calculated at 8%pa from the date of death to date of advance payment, ie $18,402 x 8%pa x 12 days = $48.40; (ii)  Interest on the balance of the award for funeral expenses in the sum of $48,061.70 calculated at 8%pa from the date of death to the date of advance payment, ie $48,061.70 x 8%pa x 12 days = $126.41.

10.The only uncertainty that required ruling from this court concerned the Interest Nisi Award on beareavement. It was agreed that interest on bereavement should be calculated at 8%pa and from the date of death. The debate was whether such interest should be calculated up to the date of the EC award or alternatively the date of interim payment.

11.The Interest Order Nisi on bereavement was calculated up to the date of judgment (11 November 2022)  since this court was unaware of any interim payment at the time. Since both P and D2-D5 accepted interest on bereavement would at most be calculated up to the date of intereim payment and not to the date of the Written Judgment, the true question was whether interest should be calculated up to the date of the EC award because otherwise interest would be calculated up to the date of interim payment. On this latter point, P and D2-D5 drew my attention to Bristow v Judd.[5]

12.In Bristow, the plaintiff suffered very serious personal injuries. Liability was not contested and the judge awarded damages in favour of the plaintiff. There were 2 interim payments. The English Court of Appeal declined to give general guidance on the calculation of interest when interim payments on account of damages had been made as the award of interest was discretionary and the facts of each case were likely to differ widely. The calculation of interest in that case was on conventional rates, ie interest on general damages at 2%pa from the date of service of the writ of summons and interest on special damages at half judgment rate from the date of the accident to trial. Beldam LJ (with whom Sir Christopher Slade and Nourse LJ agreed)  held at page Q130 as follows:

“…… I would accept in principle that the payment of an interim award should be taken to be compensation first of all for loss and expense incurred until the date of payment of the interim award. Until an interim payment reduces the amount due for special damage, a plaintiff is entitled to interest at one half of the special account rate on the full amount due, and thereafter to interest at that rate on the amount outstanding. Where an interim is made which exceeds the amount of special damage due on the date it is paid, I see no reason why the balance should not be taken to have been paid in diminution of the compensation payable as general damages. Thereeafter the plaintiff would be entitled to interest at one-half the special account rate on special damages accruing between the date of the interim payment and the date of trial and 2 per cent. on the outstanding amount of special damages ……” (my emphasis)

13.In my view, in the present case, interest on bereavement should not be calculated up to the date of the EC award. At the Assessment Hearing, it was never D2-D5’s stance that interest on bereavement should be calculated up to the date of the EC award. In paragraph 61(b)  of Mr Sakhrani’s written closing submissions, D2-D5 asked for interest on bereavement to be calculated at 8%pa for 78.5 months (ie from the date of death up to the date of the Assessment Hearing[6] (which period would now be truncated by the interim payment that was necessarily revealed post-judgment to the court in the Joint Submission)  without any suggestion or alternative that interest was to calculated up to the date of the EC award only. D2-D5 was well aware of the EC award as evident from the fact that at the Assessment Hearing Mr Sakhrani asked for interest on the award for pre-trial loss of dependency to be calculated up to the date of the EC Award (see paragraph 61(f)  and footnote 7 of Mr Sakhrani’s written closing submissions). I have not granted leave for the parties to re-argue the rationale, basis or methodology for the awards of interest (see paragraph 417 of the Written Judgment). In my view, this is sufficient to dispose of the matter, and I conclude that interest on bereavement was to be calculated at 8%pa from the date of death to the date of interim payment, ie $150,000 x 8%pa x 5 years = $60,000.

14.It should be left to another day to deal with the interesting debate (on which I have not received any submissions)  over (a)  whether an EC award under the ECO is by nature different from an award for bereavement (in contra-distinction to an interim payment which necessarily encompasses and is therefore of like nature to an award for bereavement in the same common law action), and (b)  if the EC award and the award on bereavement are different in nature, whether interest on bereavement should be calculated up to the date of judgment or interim payment in the absence of attempt to attribute or “claw back” the EC award for bereavement and/or interest thereon, or calculated up to the date of the EC award in light of section 26(1)  of the Employees’ Compensation Ordinance Cap 282 that provided for reduction of damages awarded in the common law action by the EC award.

III.  CONCLUSION

15.In the circumstances, the Interest Nisi Awards are varied and made absolute and the awards in paragraph 414 of the Written Judgment (as amended by paragraph 28 of the Corrigendum)  are revised and replaced as follows:

Description	HK$
Pre-trial loss of dependency	153,000.00
Post-trial loss of dependency	519,840.00
Loss of accumulation of wealth	265,000.00
Funeral expenses	66,463.70
Bereavement	150,000.00
Interest:
(a)  on pre-trial loss of dependency	7,960.77
(b)  on funeral expenses	174.81
(c)  on bereavement	60,000.00
	1,222,439.28
Less EC Sum received	(1,070,038.00)
Total:	152,401.28

16.I therefore grant final judgment in the sum of $152,401.28 in favour of P aganst Ds jointly and severally. The costs order nisi in paragraph 418 of the Written Judgment is maintained.

Michael Pang & Co, solicitors for the plaintiff

1^st defendant, acting in person

Munros, solicitors for the 2^nd to 5^th defendant