Li Ping Kwong v. Hong Kong International Terminals Ltd

HCPI 203/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 203 OF 2012

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BETWEEN

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Before : Master S Lo in Chambers (open to public)

Date of Hearing : 11 September 2014

Date of Handing Down of Ruling : 22 September 2014

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R U L I N G

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1.I handed down the judgment on assessment of damages on 6 August 2014 (“Jugdment”).  Before the order was drawn up and perfected, my attention was drawn by the solicitors for the plaintiff in their letter dated 25 August 2014 relating to the award of the pre-trial loss of earnings.

2.I therefore directed the parties to make submissions at the hearing on 11 September 2014, which was fixed for the plaintiff’s summons to vary the costs order nisi filed 13 August 2014.

3.Mr Leung, counsel for the plaintiff, submitted that there was an error in the Judgment due to my oversight, in that I has applied the plaintiff’s pre-accident earning for the entire pre-trial period of 58 months in para 64 of the Judgment whereas I accepts that the plaintiff’s notional earning as at the trial date was $23,448 per month when assessing his future loss of earnings in para 71 of the Judgment.  Mr Leung further submitted that I should have applied the median notional earning for the pre-trial period.

4.Mr Ko, solicitor for the defendant, submitted that I have made no mistake in the Judgment and that the plaintiff can only appeal against my decision.

Discussion

5.There is no dispute that it is within the powers of a judge or master to alter his judgment in relation to the accidental omission, clerical inaccuracy or mistake at any time before it is perfected[1].

6.Hence, the main issue is whether I had made any accidental or clerical mistake concerning the award of the pre-trial loss of earnings.  I accept the submission of Mr Leung, counsel for the plaintiff that it was my over-sight to apply the pre-accident earning to the entire pre-trial period.  I consider that I shall adopt the median of the plaintiff’s pre-accident earning and his notional earning at trial for the purpose of assessing his pre-trial loss of earnings.  In my view, there is no good reason to depart from applying this fair method which has been well adopted in many other cases[2]. I did make such accidental or clerical mistake in the award of the pre-trial loss of earnings.

7.In the circumstances, if I had not overlooked the matter, I would have adopted $18,562 being the median of the plaintiff’s pre-accident earning and his notional earning at trial as the multiplicand.  I should have therefore assessed the plaintiff’s pre-trial loss of earnings (inclusive of MPF) as $1,130,425.80 (ie $18,562 x 58 x 1.05), instead of $832,868.40.

8.With the above amendment, the total quantum of damages should now read as follows:

Item	Description	Amount (HK$)
(i)	PSLA	450,000.00
(ii)	Pre-assessment loss of earnings (incl. MPF)	1,130,425.80
(iii)	Future loss of earnings (incl. MPF)	1,254,752.10
(iv)	LOEC	144,980.00
(v)	Future medical expenses	24,000.00
(vi)	Special damages	20,025.00
	Sub-total	3,024,182.90
	Less EC payments received	343,146.00
	TOTAL	2,681,036.90

9.Mr Leung, counsel for the plaintiff, had submitted a draft order during the hearing, which was in principle agreed by Mr Ko, solicitor for the defendant, except the figure in paragraph 1 thereof concerning the revised judgment sum.

10.As regard the costs of this application, the solicitors for the plaintiff in their letter dated 12 September 2014 requested that the words “with certificate for counsel” be added in the relevant paragraph of the draft order.  I can see no good reason not to accede to this request.

11.To conclude, I make an order in terms of the said draft order with the figure of $2,681,036.90 be inserted in paragraph 1 thereof and the words “with certificate for counsel” be added in the paragraph 7 thereof.

12.Last but not least, the solicitors for the plaintiff in their letter dated 25 August 2014 also drew my attention to the typographical errors in the Judgment on counsel’s names, which should be Mr Kelvin Leung instead of Kevin Leung and Ms Julia Lau instead of Ms Julia Chan.  I would take this opportunity to rectify the mistake in the Ruling.

Mr Kelvin Leung, instructed by Li, Kwok & Law, for the plaintiff

Mr Rodney Ko of DLA Piper, for the defendant