Zhong Ruyin v. Fuk on Home of Aged Limited

CACV 130/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 130 OF 2012

(ON APPEAL FROM DCPI NO. 1795 OF 2010)

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JUDGMENT

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Hon Yuen JA (giving the judgment of the court):

1.On 23 April 2013 we gave judgment allowing the defendant’s appeal from a judgment of HC Wong DJ in a personal injuries action. The plaintiff had been awarded a sum which included loss of earnings in the sum of $208,000 and corresponding loss of MPF in the sum of $10,400.

2.In our judgment we assessed the loss of earnings at $140,000 and corresponding loss of MPF in the sum of $7,000.  Accordingly we allowed the appeal and directed that the parties lodge written submissions on any consequential matters within 14 days.

3.The defendant sent written submissions on 7 May 2013 and the plaintiff, on 13 May 2013 (out of time).

4.Essentially the defendant is asking this court to order that:

(1) the costs of the appeal (including the costs of the defendant’s application for leave to appeal) be paid by the plaintiff to the defendant, such costs to be taxed if not agreed (“proposed order (1)”);

(2) the order of the trial judge giving enhanced interest to the plaintiff be set aside (“proposed order (2)”). 

Proposed order (1)

5.As we understand the plaintiff’s submissions (see para. 7), there is no quarrel with this proposed order.  However even if the plaintiff were to argue otherwise, we would take the view that the defendant is entitled to the costs of the appeal (including the costs of the defendant’s application for leave to appeal) following the general principle that costs should follow the event.  The fact that the defendant has refined its appeal over the course of time does not affect the fact that it has been successful in reducing the claim for loss of earnings by a substantial amount ($68,000 + $3,400). 

Proposed order (2)

6.The trial judge had given enhanced interest because the plaintiff had made a sanctioned offer of $200,000.  However with the reduction of loss of earnings consequent on our judgment, it is no longer an applicable consideration.  The plaintiff has not proffered any arguments to challenge the defendant’s submissions in this respect. 

Order

7.Accordingly we would make the following order absolute:

1.       The costs of this appeal including the costs of the Defendant’s application for leave to appeal under HCMP 727/2012 be paid by the Plaintiff to the Defendant, such costs to be taxed if not agreed;

2.       The Order of Her Honour Judge H.C. Wong dated 3^rd April 2012 insofar as it relates to costs (save for the Plaintiff’s own costs) and enhanced interest under DCPI 1795/2010 be set aside and substituted with the following:

(a) Costs of the Plaintiff’s application for variation of the costs order nisi by way of Summons dated 3^rd February 2012 be paid by the Plaintiff to the Defendant to be taxed if not agreed with certificate for counsel;

(b) Costs of the Defendant’s application for leave to appeal by way of Summons dated 16^th February 2012 be paid by the Plaintiff to the Defendant to be taxed if not agreed with certificate for counsel;

(c) Costs of the action be paid by the Defendant to the Plaintiff on a party & party basis to be taxed if not agreed;

(d) The Defendant do pay the Plaintiff interest on the amount of general damages (less 20% contributory negligence) from the date of writ to the date of judgment at 2% per annum, interest on the amount of the special damages and pre-trial loss of earnings (less 20% contributory negligence and after deduction of the EC payment) from the date of the accident to the date of judgment at half judgment rate and thereafter at full judgment rate until full payment.

3.       The Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

Mr Gary K.H. Chung, instructed by Winnie Leung & Co., for the Defendant/Appellant

Yip, Tse & Tang, assigned by Director of Legal Aid, Solicitors for the Plaintiff/Respondent