Lo Chi Hoi v. Mastery Engineering Ltd V.Trading As Leung Pui Form Mould & Engineering Co. and Another

HCPI 858/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 858 OF 2001

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BETWEEN

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Before : Deputy High Court Judge Fung in Chambers (Open to the public)

Date of Hearing : 14 October 2005

Date of delivery of Decision : 14 October 2005

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D E C I S I O N

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1.The plaintiff was injured in an industrial accident.  He had a fall and his chest was injured by some protruding metal.  He filed the claim in October 2001 and his statement of damages claimed about $6.8 million, taking into account another ligament injury.  In December 2004, the case was settled before me at $1.16 million. 

2.The issue before me now is whether cost which has been awarded to the plaintiff should be on the District Court scale or the High Court scale, as on 3 March 2003, the plaintiff obtained an Employee’s Compensation award of $640,000, effectively bringing the claim within the District Court jurisdiction as from that date. 

3.Mr Clough submitted that as at the date of 3 March 2003, the District Court jurisdiction was $600,000, and subtracting the settled amount with the employee compensation paid, the net amount recovered was $520,000, $80,000 short of the District Court jurisdiction.  By 1 December 2004, the District Court’s jurisdiction limit was increased to $1 million, and the relevant calculation being done, the shortfall would be $480,000.

4.Under section 32(2) of the District Court Ordinance, in reckoning the jurisdiction of the District Court, the plaintiff’s claim means the amount of the plaintiff’s claim after taking into account any compensation as defined in section 3 of the Employees’ Compensation Ordinance, Cap. 282, paid to the plaintiff under that Ordinance and that the plaintiff admits in his statement of claim.  Mr Tang for the plaintiff submitted that the only relevant time for consideration was at the time of the filing of the writ. 

5.I hold that in the consideration of the scale of costs, one must look at the case continuously so as to see whether it actually falls within the District Court jurisdiction, and be transferred to the District Court, even if that were not actually done.  Hence, I will look at the situation both at 3 March 2003 as well as at 1 December 2003. 

6.I have made some enquiries as to why the claim originally at $6.8 million was settled at $1.16 million.  I must admit that in carrying out this exercise, I cannot go into all the details.  Otherwise, it would be trying the case which had already been settled.  I merely look for key indicators which would direct one’s mind decidedly one way or the other.  I have been told that there were two main disputes, one relating to the earnings of the plaintiff; secondly, as to whether the plaintiff’s ligament injury actually related to the accident in question or some other accident.

7.The plaintiff had another accident and he had filed another High Court action.  It was said that in that action he claimed that his income at the relevant period was $400 per day.  In the present case, he claimed $1,700 per day.  But it was said that the defendant in the Employee’s Compensation proceedings arising out of the present accident admitted $1,600 per day.  Yet, there are disputes as to all this.  Mr Tang for the plaintiff told me that he only learnt of the figure of $400 per day in November 2004, very shortly before the trial, which led to his revised opinion.

8.I must say that by looking at the matter broadly, the  discrepancy of income figures, even without deciding on the merits of the matter, must have affected the assessment of credibility, and its late disclosure to the plaintiff’s legal advisors must have a bearing on this case.  Bearing this in mind, in assessing the situation as at 3 March 2003, I cannot say that anyone could be blamed if there is only a shortfall of $80,000, as we are dealing with the unpredictable business of litigation. 

9.But as at 1 December 2003, the shortfall was $480,000.  Prima facie, it is a large shortfall, not to mention the sharp decrease from the original claim.  Bearing in mind the possible attack to the plaintiff’s credibility that would have been mounted had there been a trial, I am minded to accept that the shortfall is a matter which consequence the plaintiff himself is to bear, in not informing his legal advisers earlier the prior inconsistent statement he had made in another case.   

10.Hence, I make the order as follows: that the costs up to 1 December 2003 be on the High Court scale, and the costs as from 1 December 2003 be on the District Court scale.  Costs of today’s hearing be to the defendant, with Certificate for counsel.

Mr Ronald Tang, instructed by Messrs Henry Wan & Yeung, for the Plaintiff

Mr Neal Clough, instructed by Henry H C Wong & Co., for both Defendants