Leung Po Chun v. Yat Lee Booth - Construction Co Ltd

HCPI 1099/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1099 OF 2006

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BETWEEN

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Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 21 November 2007

Date of Ruling (Handed Down): 22 November 2007

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R U L I N G

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1.It seems to me that the weight of authority requires me to change my order nisi on costs and direct that the Plaintiff must have his costs taxed on the High Court scale notwithstanding that after a deduction of 50% for contributory negligence, he has been awarded $767,750 less a further deduction of $177,080 for Employees Compensation which he has already received and which has put him well within the District Court’s jurisdiction.

2.The leading case on this in Hong Kong is the decision of Seagroatt J in Lai Ki v B + B Construction Ltd [2003] 3 HKLRD 192.  The facts in that case are far removed from the present one.  In that case, the parties had settled the action at $510,000 which was $90,000 below the District Court’s then jurisdiction of $600,000.  In that case, there were a number of issues that required the judge’s attention which do not apply here.  What I get from Lai Ki is that provided a plaintiff can show that he had a reasonable prospect of obtaining damages in excess of the District Court scale, excluding the impact of any discount for contributory negligence, then the court in the exercise of its discretion should award him costs on the High Court scale.

3.In this case, I am satisfied that the Plaintiff was entitled to expect such an award which is what he received.  His gross damages exceeded the District Court’s jurisdiction by over $500,000.  The authorities all show that no account is to be taken of the effect of contributory negligence.  This being so I feel constrained to award the Plaintiff his costs on the High Court scale which is what I will do.

4.Mr Lim, for the Defendant, has suggested that I should have regard to the fact that the Plaintiff started the action in the District Court as an indication of the fact that he was accepting that the final award was going to be within that court’s jurisdiction.  Nevertheless, Mr Pang who appears for him has provided a perfectly sensible explanation, which I accept, as to why that was done which I need not repeat here.

5.The effect of the authorities is that the Court is required to completely leave out of account the likely impact of the deduction for contributory negligence on the final award.  Notwithstanding this feature, in what is a discretionary jurisdiction, I venture to think that in cases where a Plaintiff can barely show that the gross award of damages might reasonably be expected to be within the High Court’s jurisdiction and furthermore subject to what is likely to be a very substantial deduction for contributory negligence, that the court could and would in its overall appreciation of the outcome of the action only award him District Court costs.  Nevertheless, this is not one of those cases because the gross award was always going to be comfortably within the High Court’s jurisdiction and so I have not felt able to go down that road.  But in a more extreme situation of the type that I have just postulated a court may well be persuaded to reflect the justice of the matter by, in its discretion, awarding a Plaintiff costs on the lower scale.

6.The parties are agreed that the costs of this particular application should follow the event with the consequence that the plaintiff will have these costs also to be taxed on the High Court scale.

Robert Y H Pang, instructed by Messrs Christine M Koo & Ip, for the Plaintiff

Patrick D Lim, instructed by Messrs Krishnan & Tsang, for the 1^st and 2^nd Defendants