Ho Ka Yin v. Express Security Ltd

HCPI 344/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 344 OF 2008

____________

BETWEEN

____________

Before : Hon McWalters J in Chambers

Dates of Hearing : 14 September 2011

Date of Decision : 20 September 2011

____________________

DECISION ON COSTS

____________________

1.In this action the plaintiff claimed damages for personal injuries suffered by her arising from two accidents involving her wheelchair. In my judgment of 21 July 2011 I found the defendant liable for the injuries sustained in the first accident but not for those sustained in the second accident. I also made an order nisi that the defendant pay the plaintiff’s costs.

2.By summons dated 4 August 2011 the defendant sought a variation of that costs order so that its costs are limited to those occasioned by the plaintiff in respect of the first accident only and also that those costs are taxed at the District Court scale.

3.The defendant says that the justice of the case dictates that it not be penalised for the plaintiff pursuing a claim in respect of the 2^nd accident that the plaintiff and her advisers must have known had no reasonable prospects of success.  Ensuring that justice is done to it, the defendant says, requires that the court adopt an issue-based approach to costs.  The defendant further says that in  order to get the benefit of such an approach it does not have to go so far as to show that the plaintiff did in fact act either unreasonably or improperly in pursuing her claim in respect of the second accident.

4.On the issue of the scale of costs the defendant simply says that as the judgment entered for the plaintiff in respect of the first accident was below the District Court’s jurisdictional limit the normal costs order should be that the District Court scale should apply.

5.The plaintiff says that an issue-based approach to costs is not the norm, is not used in personal injury litigation but that even if applied to this case would not operate in favour of the defendant. Counsel for the plaintiff argues that given the medical evidence which supported a causal link between the 1^st and 2^nd accidents and given the size of the damages flowing from the second accident, neither the plaintiff nor her legal advisers should be blamed for pursuing a claim in respect of the second accident and in so doing acted reasonably and responsibly.

6.I do not believe that in the circumstances of this case the plaintiff and her lawyers have acted unreasonably or irresponsibly in pursuing a claim in respect of the second accident.  There was medical support for the claim and though the factual evidence did not unequivocally support the plaintiff’s case, a potential case nevertheless existed.  I do not think that this is an appropriate case for an issue-based costs order and I do not think that it would be fair and just to the plaintiff to deny her costs of the second accident.  I decline to vary the order nisi in this respect and therefore refuse this part of the defendant’s summons.

7.In respect of the application for the plaintiff’s costs to be taxed at District Court scale I take the relevant legal principles to be those set out by Seagroatt J in Lai Ki v B+B Construction Company Ltd & Ors HCPI 63/2001.  These are that :

(i)     the usual costs order is that costs are taxed on the District Court scale; but that

(ii)    the usual course can be departed from if the court is persuaded that there was a reasonable prospect of the plaintiff obtaining an award in excess of the District Court jurisdiction.

8.Much the same arguments as were relied upon by the parties in respect of whether the plaintiff should be denied the costs of the second accident were also relied on for this application.

9.A considered decision was taken by the plaintiff to pursue the second accident claim because that claim was assessed as having a reasonable prospect of success.  With the benefit of hindsight a different assessment might have been made.  But issue-based costs orders and taxation at a lower scale are not to be used to discourage litigants from pursuing claims that have a reasonable prospect of success.  That the claims did not succeed does not mean that they never had such prospects or were without merit.

10.Had the second accident claim succeeded the plaintiff’s total damages would have easily exceeded the District Court scale. Though ultimately I found against the plaintiff it was not due to me not believing her evidence in any way.  It was my analysis of the evidence which led to my finding that though the plaintiff suffered sequelae from the first accident and that this sequelae made her more vulnerable to losing her balance and thus more prone to accidents, they were not in fact the cause of the second accident.  In my view the plaintiff has satisfied the exception described by Seagroatt J.  She has persuaded me that there was a reasonable prospect of her obtaining an award in excess of the District Court jurisdiction.  I therefore also decline to vary this part of the costs order nisi.

11.I dismiss the defendant’s summons and order that the costs of the summons be costs in the cause.

Mr. B.K. Ho, instructed by Messrs Lau & Chan assigned by D.L.A., for the Plaintiff

Mr. Paul K.N. Wu, instructed by Messrs Damien Shea & Co., for the Defendant