Cai Mingyou v. Lau Kin Pang and Others
Read the full judgment text of DCPI 4401/2022 on BabelCite. This District Court judgment was delivered on 5 May 2026.
1. This is the assessment of damages of the 2 nd Defendant’s (“the D2’s”) contributory and indemnity proceedings against the 1 st Defendant (“C&I Proceedings” & “the D1”).
Cites 13 cases
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DCPI 4401/2022 [2026] HKDC 1081 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 4401 OF 2022 -------------------------------------------------- BETWEEN
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--------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------- Introduction 1.This is the assessment of damages of the 2nd Defendant’s (“the D2’s”) contributory and indemnity proceedings against the 1st Defendant (“C&I Proceedings” & “the D1”). Background 2.The main action involved a claim by the Plaintiff (“the P”) resulting from an incident took place in or about 18:20 hours on 22 January 2020. The P was a pedestrian and the D1 was the driver of the taxi with registration number TT4389 (“the Taxi”). At the material time, the P was walking across Ting On Street heading towards Kwun Tong, the D1 has negligently drove the Taxi which has caused its offside to collide with the P and subsequently rolling over her left foot (“the Accident”). The P sustained personal injury and claimed against D1 for damages. 3.The D2 is the insurer of the Taxi Insurance Policy No 33-19-62390(01) (“the Policy”) purchased by the Third Party (“the TP”), who is the registered owner of the Taxi. Pursuant to Clause 18(b) of the Policy, the TP was required to give written notice to the D2 immediately after the Accident. Clause 18(b) reads:
4.The D2 asserted the TP was in breach of Clause 18(b) that the TP have failed to give notice to the D2 immediately after the occurrence of the Accident. 5.By the Order of Master Eleanor Yeung dated 8 June 2023, the D2 was joined as a party to defend issues on both liability and quantum in this action. 6.On 9 May 2024, the D2 issued (i) a Notice by 2nd Defendant to the 1st Defendant claiming Contribution and Indemnity (“the C&I Notice”); and a Third Party Notice to the TP (“the TP Proceedings”). 7.On 23 December 2024, the P accepted sanctioned payments totalling $180,000 in settlement of the whole of P’s claim. 8.By an Order made by me dated 7 February 2025, interlocutory judgments were entered leaving damages to be assessed in both (i) C&I Proceedings; and (ii) the TP Proceedings. 9.In a subsequent order made by me dated 9 January 2026, the assessment of damages of the C&I Proceedings and the TP Proceedings were duly set down. The D2 has served the Notice of Appointment for Assessment of Damages on both the D1 and the TP on 4 February 2026 by ordinary post. An affirmation of service was filed on 28 April 2026. 10.On 4 May 2026, a day prior to this hearing, the D2 informed the Court in writing that the TP has been adjudged bankrupt by an Order dated 21 October 2025. Before commencing the assessment, both the D2 and the TP submitted a consent application which I have approved to the effect that D2’s TP proceedings be discontinued with no order as to costs, including all costs reserved. In this regard, the assessment of damages is only the C&I Proceedings between the D2 and the D1, to assess the loss and damage which the D1 should contribute and indemnify the D2. 11.I am satisfied the C&I Notice was duly served on the D1 and it was his choice to be absent in this hearing. I shall proceed in D1’s absence. I directed the D1 to lodge written final submission by 11 June 2026 which the D1 has failed to do so. 12.In this assessment, the D2 has only called its employee, Mr. Wong （黃君政） as its witness. The D2’s case 13.By way of the C&I Notice, the D2 sought contribution and indemnity against D1 for damages, interest and costs paid to the P. (See section 10 of the Motor Vehicles Insurance (Third Party) Ordinance, Cap 272 (“Cap 272”) and sections 3 and 4 of the Civil Liability (Contribution) Ordinance, Cap 377 (“Cap 377”). In other words, the D2 claimed against D1 for contribution and/or indemnity in relation to (i) the Settlement Sum; (ii) the P’s legal costs and disbursement paid by D2 in the main action; and (iii) the P’s own legal costs and disbursement in defending the main action. Legal Principles 14.The law is settled in this area. An insurer is obliged to pay to the person entitled to the benefit of the judgment (usually the injured person) i.e. damages in respect of any such liability as is required to be covered by a policy. An insurer is also required to pay such sum even if the policy has been avoided or cancelled. (See section 10(1) of Cap 272). 15.After satisfaction of such payment, an insurer can recover such sum from the insured, including the amount in excess of the amount insured by the policy. (See section 10(4) of Cap 272) 16.By operation of sections 3(1) and 3(2) of Cap 377[1], an insurer can recover the sum from the insured by way of contribution and indemnity proceedings. 17.In cases when a claim has been settled, by operation of sections 3(4) and 3(5) of Cap 377, an insurer can recover contribution from the insured but not be excessive[2]. 18.In a contribution proceeding, the recoverable amount from any person is determined as may be found by the Court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question. (see section 4 of Cap 377) 19.The above legislation is further elaborated in Biggin v Permanite [1951] 2 KB 314 at 324 – 325. It was decided, when a party seeks contribution and indemnity from another person, evidence must be called to establish their case. If the evidence which they call satisfies the Court that settlement and costs were reasonable, damages awarded will be the amount of the settlement and the costs reasonably incurred. Alternatively, or if upon the evidence, the judge is satisfied that the damages would be somewhere around the figure at which the plaintiff has settled, he would be justified in awarding the settlement figure. 20.Briefly, applying the above, the D2, the insurer who is liable to pay damages under section 10 of Cap 272, have settled the P’s claim accordingly has a right under Cap 377 to recover such sum from the D1, provided that the amount be determined by the Court to be just and equitable. This is precisely the test here. 21.The D2 cited two District Court cases, namely Falcon Insurance Company (Hong Kong) Limited v Chan Chun Kit [2025] HKDC 195 and Liberty International Insurance Limited v Yeung Kai Chung, Stanley, DCCJ 2775/2015, 21 August 2017, to demonstrate how it should be assessed. Broadly speaking, the Court shall pay attention to (i) the nature and extent of the P’s injury; (ii) the probable award for each head of the P’s claim based on available evidence; and (iii) whether there is issue on contributory negligence and if so, its impact on quantum. The P’s claim 22.The P claims the following items in her Revised Statement of Damages (“the RSOD”):
23.In assessing P’s damages, this Court is not bound by the Settlement Sum but is empowered with a discretion to disallow any excessive amount. 24.As the D2’s witness, Mr Wong’s evidence is not contested, I accept the case was duly settled as mentioned. The remaining question is whether the Settlement Sum and costs are just and equitable. Evidence Nature and extent of the P’s injury 25.The P was sent to the Department of Accident & Emergency of United Christian Hospital (“UCH”) after the Accident, she reported her left foot was run over by the Taxi and she fell down afterwards. Examination revealed tenderness, bruises and swelling over both her left foot and knees. There was no open wound, deformity or fracture. X-ray of the left foot revealed increased space over the 1st and 2nd metatarsal base. The P was then admitted to the orthopaedic ward for one day. In a subsequent MRI examination, it showed a dorsum hematoma with bone edema over the 3rd metatarsal bone. 26.The P attended follow up treatments with the orthopaedic clinic and physiotherapy clinic of UCH until 22 July 2020 and 13 August 2020 respectively. 27.On 26 February 2021, the P attended UCH due to reoccurrence of pain in her left foot one month after returning to work. Physical examination revealed diffuse tenderness over the left forefoot without bruises and swelling. The P was able to walk unaided. Doctors referred the P to undergo physiotherapy treatments in Queen Elizabeth Hospital (“QEH”) and she has received a total of 16 sessions from 2 September 2021 until 25 January 2022. 28.For the above injuries and treatments, the P was granted sick leave intermittently for 242 days from 22 January 2020 to 22 August 2023. 29.According to the single joint expert report prepared by Dr Lee Po Chin dated 30 August 2024 (“the Expert Report”), Dr Lee confirmed the P’s injury were limited to soft tissues injury without articular injury or major ligament disruption. Having reviewed the medical reports and records, Dr Lee was of the view that the P’s recovery should be satisfactory and has achieved maximum medical recovery by August 2020. Sick leave up to the end of August 2020 is appropriate. 30.The residual pain over her left foot should be mild, future treatment is unnecessary. The P is able to return to her pre-accident job as a waitress (or to work as a janitor) with mild impairment in work efficacy. The permanent impairment of whole person is assessed to be 1%. Possible award for each of the P’s claim Pain, Suffering and Loss of Amenities 31.The P claims $180,000 as damages for PSLA. The D2 submits her claim is excessive and the appropriate range of damages under this head shall be a sum between $51,000 to $123,000. 32.I take into account the following cases submitted by the D2:
33.The reason the D2 put forward the maximum level of damages at $123,000 is because the D2 has opted for the highest amount, being $80,000 in Fung Tak Yau plus inflation until today. Without considering inflation, in the present case, comparing the P’s injury to that of the plaintiff’s injuries in the above authorities, it is fair for me to say the probable damages awarded would likely in the range of $50,000 to $80,000. 34.I accept and will follow the damages assessed in Fung Tak Yau because Mr Recorder J. Fok SC decided therein, a District Court case, Wong Wai Hung v. Loo Kin & City Pipe Technologies (Hong Kong Limited) (DCPI 643 of 2006, 30 March 2007) is of useful guidance in assessing PSLA for similar injuries. In this respect, the appropriate damages for PSLA in this action should be at positioned at $80,000. 35.The D2 submitted Fung Tak Yau was decided in 2008 which is 20 years ago, as at today, the Consumer Price Index (“CPI”) has risen by 53.7%[3] and that the awarded damages awarded shall also be increased by 53% to reach $129,960. Although I find it is justifiable to raise the amount for reason of inflation, the Court generally do not strictly apply CPI to update damages. Taking into account inflation rate submitted, I find it reasonable to adopt an increase conservatively by 25%. The PSLA damages assessed is therefore, ($80,000 x 1.25) = $100,000. Pre-trial loss of earnings 36.At time of the Accident, the P was a waitress earning a monthly salary of $16,000. The pre-trial loss of earnings claimed during the period from 22 January 2020 until 14 January 2021 is in the sum of $197,733.66. 37.The P submits the following evidence in support of her claim, that being:
38.The D1 did not challenge the above. Having considered all evidence on pre – trial income, I accept the above as true records and the figures tallied with the P’s claim of $16,000 per month. The D2 has conceded and invited to take the lower figure of $15,810.80 per month which I also accept. 39.With the assistance of Dr Lee’s opinion that the P is able to return to her pre-accident job as a waitress, or a janitor which also need prolonged walking and standing, after 7.5 months of sick leave (which is until the end of August 2020), the pre-trial loss of income would be $15,810.80 x 7.5 months = $118,581. Adding MPF on such sum will be $118,581 x 1.05 = $124,510.05. Future Loss of Earnings & Loss of earning capacity 40.The D2 concedes the P’s claim of loss of earning capacity is untenable. 41.The criteria for assessing damages under this head is whether, because of the P’s injury, there exists a real risk of losing her job and being disadvantaged in the labour market. The chance is minimal here because the P has worked for the Hospital Authority as an Operation Assistant IIIB on contract since 15 January 2021 and her contract has been renewed twice. There is no evidence that the P would be unable to continue working due to the residual injury. 42.For this reason, I share the D2’s view that an award under this head is unlikely. Future medical expenses 43.The D2 further concedes the P’s claim of future medical expenses is bound to fail. Dr Lee has clearly opined in the Expert Report that after the P’s maximum medical recovery, there should only be mild residual pain, if it exists at all. 44.The opinion is premised on the reasoning that there was no unilateral muscle wasting in the P’s left calf and left foot. The presence of muscle wasting would be objective evidence indicating underuse of a body part possibly in response of pain and limitation in movement, therefore, the lack of muscle wasting provides direct and objective scientific evidence to support actual physical capability. (See Santosh v Mclaughlin [2024] 1 HKLRD 6) Special damages 45.The P claims $17,379.50 which comprised of medical expenses in total sum of $9,055, travelling expenses $3,520, tonic food and other miscellaneous expenses at $3,402.50 and data request and process fees for medical notes and records at $1,402. 46.In this end, for medical expenses, the test is whether they are reasonably and honestly incurred. (See Au Yeung Miu Sim v Tsang Kwong Wai [2004] 2 HKLRD 187. 47.The D2 submitted the P’s medical expenses were supported by receipts, adding up to $9,055. Dr Lee opined the treatment received by the P was appropriate and adequate, I accept those stated are very probable, reasonably and honestly incurred. I allow them in full. 48.For the P’s claim of travelling expenses, the supporting taxi fare receipts only amounted to $129.10. However, I am aware the P has produced 22 sick leave certificates and of which I see it fair that the P has incurred travelling expenses to various hospitals and clinics. The P was suffered from foot injury, it would be understandable for her to take taxi both ways to attend those treatments. Arithmetically, $3,520 for 22 treatments will arrive an average of $160 per round trip. I accept this is reasonable and allow them in full. 49.The P claimed a total of $1,554 for tonic food and other expenses which are all substantiated by receipts. There are other expenses on purchasing sport shoes, sock compensative insole at Dr Kong and Shoe at Footspot. The duration of sick leave is 7.5 months, it is expected the P has attempted to acquire a different kind of shoes to alleviate pain and to expedite recovery. I accept this is also reasonable. 50.The D2 has correctly pointed out that data request and process fees for medical notes and records at $1,402 should be part of costs instead of damages. 51.To conclude, special damages for medical expenses, travelling expenses and tonic food expenses are allowed in full at $15,977.50[8] as pleaded. Contributory negligence 52.The issue of contributory negligence shall be considered when the D1 has pleaded it as his Defence, precisely, the D1 says the P has suddenly and negligently stepped out from the pavement behind a light goods vehicle without stopping and looking around in a quick pace walking across Ting On Street towards Kwun Tong. The D1 further pleaded the Accident was solely caused or substantially contributed by the P including failing to stop, failing to look around and failing to pay sufficient attention to the oncoming traffic. 53.The D1 was not prosecuted in contravention of any traffic offence. 54.The D2 pleaded in its Answer that damages payable to the P should have regard to the P’s contributory negligent act. 55.In terms of evidence, the D1’s evidence stated while he was turning right to Ting On Street, just before the Accident, the P had emerged from the back of a light good vehicle which has stopped at the junction. The P was already very close to the right rear mirror[9]. It turned out the D1 was not prosecuted by the police. 56.In this regard, the D2 considered a real chance that the Court will find the P some degree of contributory negligence. 57.In assessing contributory negligence, the Court will consider both causation and blameworthiness, however, each case must depend upon its particular facts and the Court gets little assistance from detailed comparisons of outcomes in other cases. It is more likely than not that the trend of case law is to attribute more responsibility to the driver than the pedestrian. (See Lee Yam Kan v. Ng Pui Kuen [2016] 6 HKC 318) 58.In terms of degree, the D2 submitted the following authorities which the court finds respective pedestrian (as a plaintiff) was contributory negligent in the range between 25% to 75%:
59.In the present case, the D2 submitted there are factors warranting the P’s degree of contributory negligence resting at the lower end, that being,
60.Having considered the degree of contributory negligence determined by other Courts for similar plaintiffs, I find contributory negligence on the part of the P should not be categorized at the serious end. It is indisputable that the P has ignored traffic condition, however, her conduct was not the worst case. The P simply crossed the junction with no evidence that she was talking or using her mobile phone, as opposed to plaintiffs dashing and running across the road. I shall in this regard lower the degree of contributory negligence to that of 25%. The award of damages 61.My assessment of the P’s award of damages, taking into account a possible deduction of 25% contributory negligence, is a follows:-
Is the Settlement Sum just and equitable? 62.The D2’s choice to settle the P’s claim in the main action is because the D1 would be at some degree of negligent when he has caused the Taxi to hit onto the P. Furthermore, the issue on contributory negligence is one of fact sensitive and the possible degree might vary to a great extent. It is also impertinent to consider the costs incurred when the case is to proceed for trial. 63.The D2 further says it attempted to negotiate with the P for a full and final settlement in order to mitigate loss. The settlement was effected by way of the P’s acceptance of two sanctioned payments totaling $180,000. 64.During the course of negotiating for settlement, neither the P (or the TP) objected to the D2’s proposal, neither did both of them took active steps in the C&I Proceedings and the TP Proceedings. 65.From an insurer’s point of view, when risks of litigation are uncertain and when costs awarded to the plaintiff is on a discretionary basis, effecting sanctioned payment of $180,000 is an arm’s-length compromise. Hence, I am satisfied that damages would be somewhere around the figure at which the P has settled and consider it a just and equitable sum. Recovery of D’s & P’s costs and disbursement in the main action 66.The indemnity includes the amount of legal fees a defendant had to pay to its own lawyers to deal with the plaintiff’s claim. (See So Wing Kwong v Cheng Chi Kwong [1999] 3 HKLRD 689) It is the Court’s duty to decide whether such costs are reasonable. 67.The P suggested $283,140.20 as her costs in the main action. Without response from the D1 and TP, the costs as such was agreed to be $145,000 including disbursement on the part of the P. The D2 paid such sum by way of two separate cheques in the sum of $135,000 and $10,000. 68.The D1’s evidence says he saw the P emerged suddenly at the offside of the Taxi, D1 could not avoid hitting on her although he has applied the brake immediately. It is correct for the D2 to plead contributorily negligent on the part of the P in its defence. In other words, the way the D2 has conducted to defend the main action is appropriate. 69.The D2 submits the main action was settled almost 2 years after its commencement on 23 December 2022. By the time when the P has accepted the sanctioned payments, the parties has reached the stage of filing the Answer to the P’s RSOD. In order to save costs, the D2 agreed the P’s counter offer of $145,000, which is half of the initial suggested sum. I am satisfied the mutual agreement on costs is reasonable. 70.In relation to the D2’s own costs in the main action, I see it is also reasonable when the D2 submits it is also around this figure. In that the D2 claims $139,500 and the sum of $15,375 being half share of the costs of jointly instructing Dr Lee Po Chin, the single joint orthopaedic expert in the main action. I shall summarily assessed such costs be $154,875. Summary 71.By reason of the aforesaid, I conclude the following:
Costs of the C&I Proceedings 72.The D2 shall also be entitled to costs of the C&I Proceedings. The D2 suggested which I agree costs of the C&I Proceedings shall be assessed summarily. I have the benefit to read the Statement of Costs prepared by the D2 dated 21 April 2026, save and except I shall tax off in Part D Professional Work[10] in sum of $11,180, the other items be taxed as drawn. Therefore, the D2’s costs of the C&I Proceedings shall be $78,735.25. Disposition 73.I grant the following order:
The 1st Defendant was not represented and did not appear Mr. Joseph Ng instructed by Messrs. John Lam, Law & Co, for the 2nd Defendant The Third Party appeared in person [1] “any person liable for damage to another may recover contribution from others liable for the same damage. A person can seek contribution even if they are no longer liable for the damage, as long as they were liable immediately before making the payment for which the contribution is sought, regardless of whether the liability was joint or otherwise.” [2] “a person genuinely settles or compromises a claim against for damages against them can recover contributions regardless their actual liability for the damage, provided they would have been liable assuming the factual basis of the claim against him could be established. When determining the extent of contributions, the court shall disregard any part of the payment in respect of which contribution is sought which appears to be excessive.” [3] The D2 relied on the Table 510-60001: Consumer Price Indices (October 2019 – September 2020 = 100) as reference. The CPI in 2008 was 71.9 whereas CPI in Feb 2026 is 110.5. Therefore, the rate of increase shall be (110.5 / 71.9) = 53.7%. i.e. $80,000 x 1.537 = $129,960 (rounded up to $123,000). [4] $12,345 / 5% contribution / 15 months = $16,460 [5] $790.54 / 5% = $15,810.80 [6] Date of accident on 22 January 2020. [7] $124,780 / 8 = $15,597.50 [8] $9,055 + $3,520 + $3,402.50 = $15,977.50 [9] See cautioned statement of the D1 dated 17 April 2020. [10] JL1: 2 hours & CC: 1 hour [11] Date of interlocutory judgment of the C&I Proceedings. |
Cases cited in this judgment