Wong Pan v. Eastern Pacific Circuits (HK) Ltd

DCPI1283/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1283 OF 2004

BETWEEN

Coram:  Her Honour Judge C.B. Chan in Chambers

Date of Hearing:  16 November 2005

Date of Delivery of Decision:  16 November 2005

D E C I S I O N

1.I have before me two applications.   One, by the plaintiff for leave to accept the payment into court made by the defendant in the sum of HK$220,000 notwithstanding the time to do so has expired.  Two, by the defendant for leave to withdraw the payment in to court.  

2.It was decided to hear the plaintiff’s summons first as it was first made in point in time.  But, in effect, the substance for the two summonses are identical. 

3.The main issue of the plaintiff’s application is that the plaintiff’s chances of success or failure or of greater or less damages were substantially the same as at the date of payment in.  On the other side of the coin, the defendant in establishing its application has to prove that there is a sufficient change of circumstances since the money was paid in to make it just that the defendant should have an opportunity of withdrawing.  The payments in were made by the defendant on 17 December 2004 and 12 and 29 January 2005, totalling a sum of $220,000. 

4.It is not in dispute that, prior to the payments in, the defendant was in possession of Part 1 of the accident claim form related to the plaintiff’s personal insurance policy with his insurer MLC, signed by the plaintiff on 27 December 2001. This states that the plaintiff was injured at home at around 4 pm on 8 December 2001.  Apart from that, the defendant’s solicitor was informed in a conference with a representative of MLC Insurance that the plaintiff had informed his doctor, Dr Peter Wong, on 21 December 2001 that the cause of the accident was “pain when moving furniture at home at 4 pm on 8 December 2001”. 

5.Upon receipt of the aforesaid information, the defendant’s solicitor wrote to the plaintiff’s solicitor on 4 August 2004 requesting for an explanation for the two different versions of the cause of accident given by the plaintiff.  The first version given is that given in the employee’s compensation claim and also in this action, and the second is that referred to in Part 1 of the accident claim form and the information given to Dr Peter Wong.  The plaintiff’s solicitor wrote in reply to the defendant’s solicitor, on 6 October 2004, in an attempt to give an explanation. 

6.The letter stated that the plaintiff could not have been injured at home as he was, in fact, injured at work.  The plaintiff’s solicitor continued to explain that it was the plaintiff’s insurance agent, Mr Frank Tse, who had asked the plaintiff to endorse on a blank claim form, and Mr Tse filled in the details by a mistaken belief that the plaintiff injured himself at home.  Mr Tse subsequently forwarded the wrong version of the form to Dr Wong, who then put down the wrong information in Part 2 of the accident claim form. 

7.The plaintiff’s counsel submits that the defendant’s solicitor had all along had the information which enabled him to draw the conclusions that he now states to be new evidence that he had discovered  since the date of the payment in.  The plaintiff’s counsel submits that the defendant’s solicitor had the oral information from the plaintiff’s insurer, MLC, that the plaintiff consulted Dr Peter Wong on 21 December 2001, and the defendant’s solicitor had a copy of Part 1 of the accident claim form which was dated 27 December 2001.  The accident claim form having been dated 27 December 2001 could not have been available to be sent to Dr Peter Wong. 

8.The defendant’s solicitor could have come to the conclusion that the explanation given in the letter of the plaintiff’s solicitor could not have been true.  Despite having such information, the defendant’s solicitor made payment into court. 

9.The defendant’s counsel submitted that the documents discovered by them from the plaintiff’s solicitors in May 2005 put a different light on the situation, and these documents disclose that the plaintiff’s chances of success as well as the amount of damages recoverable is not the same as that anticipated by them prior to the date of the last payment in.  The first document discovered is Part 2 of the accident claim form completed by Dr Peter Wong, where the doctor wrote in relation to the course of accident, “pain when moving furniture at home”.  This is at page 149 of the bundle of documents.  The defendant’s counsel, Mr Cheung, submits that, until receipt of this document, the defendant was not in possession of any documents that could point out that the plaintiff’s solicitor’s explanation of the two versions of accident was wrong.  Upon receiving this, they became clear that the explanation of the plaintiff’s solicitor could not be true. 

10.The defendant’s counsel further pointed out that despite this disclosure, the plaintiff’s solicitor in the affirmation of Juliana Lo Yuen-ching, at page 91 of the bundle of documents, stated in paragraph 5 thereof the same explanation for the version of accident given by Dr Peter Wong.  He submits that maintenance of the same stance which could not possibly be true in the face of evidence shows the lack of credibility of the plaintiff. 

11.The second document discovered is a letter written by the plaintiff found at page 157 of the bundle of documents.  This letter is dated 27 November 2003.  In this letter, the plaintiff stated that he met with an accident both at work and, at the same time, fell at home.  This adds a third version of facts which had not been disclosed when the defendant’s solicitor sought an explanation from the plaintiff’s solicitor in August 2004.  The defendant’s counsel submits that this reflects badly on the plaintiff’s credibility quite substantially. 

12.According to the defendant’s counsel, this information could further provide the defendant with a plea of novus actus intervenes to the defence and also could affect the outcome of the plaintiff’s claim for damages as the extent of the injury that could have been caused by the accident at work could have been increased by the accident at home, and the full extent of such injury suffered may not all be attributable to the accident at work. 

13.Having heard and considered submissions from both counsels and considered the evidence and documents, I come to the finding that the plaintiff’s chances of success or failure or of greater or less damages is not substantially the same as at the date of payment in.  Or, in other words, there is a sufficient change of circumstances since the money was paid in to make it just that the defendant should have an opportunity of withdrawing the payment-in. 

14.Despite having considered the submission of the plaintiff’s counsel related to likely prejudice to the plaintiff, I do not accept that submission as it seems likely that the plaintiff would not have accepted the settlement or the payment in were it not for the fact that it has become clear to him that his chance of success has been affected since the disclosure of the documents, there being no other explanation for the time lapse in acceptance of the payment in.   

15.I therefore grant the defendant’s application. 

16.Having so granted, as costs normally follow the events, I grant costs of the application to the defendant to be taxed if not agreed, with certificate for counsel. 

17.The plaintiff’s application be dismissed with costs of the application together with all costs reserved to the defendant, to be taxed if not agreed.  Certificate for counsel.

18.So order in terms of the defendant’s summons as amended.

Representation:

Mr Gary Chu, instructed by Messrs Yeong & Co., for the Plaintiff

Mr Kam K L Cheung, instructed by Messrs Paul C K Tang & Co., for the Defendant