XCHRX SUN JIANQIANG v. CHAN TAI KAU AND ANOTHER

HCPI 1375/2000

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HEADNOTE

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Personal injury action - interim payment - Order 29, rule 11 - whether any requirement to show need by the plaintiff - exercise of discretion - what factors should be considered in the exercise of such discretion.

HCPI 1375/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1375 OF 2000

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J U D G M E N T

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1. This is an appeal from the decision of a Master dismissing an application by the plaintiff for interim payment.

Background

2. The plaintiff suffered personal injuries when he was knocked down by a tour coach owned by the 2nd defendant and driven at the material time by the 1st defendant on 27 October 1999. The Writ herein was issued on 7 November 2000 and interlocutory judgment was entered against both defendants and for damages to be assessed upon the plaintiff taking out summary judgment application under Order 14. The interlocutory judgment was dated 8 January 2001.

3. On 23 February the plaintiff made an application by summons for interim payment. The summons asked for an amount of $200,000.00 interim payment. This application was heard by the Master on 16 March 2001 and was dismissed after arguments. The plaintiff now appeals from this decision of the Master.

4. As a result of that accident, the subject matter of the claim herein, the plaintiff suffered fractures of the 3rd to the 10th ribs of his left chest. He also suffered a compound fracture of the femur bone of his left leg. He was admitted into the Prince of Wales Hospital and surgery was performed the following day to fix the fracture site with an intramedullary nail inserted into the left femur. Two further operations were performed for debridement of the wound. The plaintiff remained in hospital for some five weeks and was then transferred to the Cheshire Home for convalescence for a further 40 days after which he continued with physiotherapy treatment. At the end of January 2000, the plaintiff, a national of the People's Republic of China, returned to China.

5. The plaintiff's case is that before the accident, the plaintiff, who was 43 years old, was employed by a Mainland company as a tour coach driver commuting between Hong Kong and the Mainland and has been a professional driver for over 20 years. The plaintiff gives his pre-accident salary as $10,000.00 per month. Since the accident the plaintiff claims that he has not been able to resume his pre accident work. Apart from not having fully recovered from the effects of the injuries he has suffered, the plaintiff says that his driving license has not been renewed by the Chinese authorities which requires that he be fully fit for the job of a tour coach driver before a driving license would be issued.

6. The plaintiff was examined by Dr David Cheng in August 2000. A report prepared by Dr Cheng indicates that while the fracture to the ribs have satisfactorily healed with no residual disability, the fracture to his left femur has resulted in some reduced movement to his left hip, there is muscle wasting in the left thigh the plaintiff still walks with a limp and cannot fully squat. There is also weakness in the left leg. Dr Cheng further recommends the removing of the nail inserted into the left femur by a further operation and indicates that the plaintiff's condition is expected to further improve therefore it is too early to make any precise assessment as to his permanent disability.

7. The defendants have also instructed Dr Lam Kwong Chin to examine the plaintiff. Dr Lam holds very similar views to those expressed by Dr Cheng.

8. An update report has been obtained from Dr Cheng dated 29 March 2001 in which Dr Cheng opines that while there is still some discomfort in the plaintiff's left thigh, they would settle with time. The fractured femur has satisfactorily healed with some residual stiffness of the left hip and knee and some wasting of the muscle leading to weakness in the left leg. These are common complications of a fracture and with physiotherapy and exercise improvement is these aspects are a distinct possibility.

9. Dr Cheng further states that the plaintiff has not reached maximal medical improvement and recommends the removal of the intramedullary nail to be followed by a course of physiotherapy for six months after the surgery.

The Appeal

10. When the learned Master dismissed the plaintiff's application for interim payment, she gave short reasons as follows :

"Even if 'need' element abrogated by later case quoted in the White Book, the Court still has to have regard to what reasonable requirement of applicant is and to other factors such as overpayment. Satisfied that the defendant has been regularly paying RMB8,600 per month to plaintiff who lives in Mainland. Whilst that sum would obviously not be sufficient in Hong Kong, that is different for people living across the border. Having weighed all the circumstances, exercise discretion not to order interim payment."

11. At the hearing of the appeal before me, Miss Liu, who appears for the plaintiff submits that the plaintiff does not need to prove any need or requirement or even hardship in applying for interim payment and in that respect the learned Master had wrongly exercised her discretion in refusing the plaintiff's application.

12. On the other hand, the defendants argue that while there is nothing in Order 29, Rule 11 to indicate that a plaintiff has to prove any need or requirement before an interim payment is ordered, since such an order is an exercise of discretion by the court, all the circumstances including the plaintiff's needs and requirements should be taken into account by the court in exercising that discretion.

The Law

13. I start off with the footnote at 29/11/7 of the 1999 U.K. White Book which reads :

"The former custom in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need, Schott Ken Ltd. v. Bentley [1990] 3 WLR 397 has been abrogated by Stringman v. McArdle [1994] 1 WLR 1653; the former case was a two judge decision of the Court of Appeal and the latter was a three judge decision."

14. Schott Kem Ltd v. Bentley was not a personal injuries case. However, Neill L J drew a distinction between personal injuries cases and other civil cases in respect of the practice relating to interim payment when giving the judgment of the court in that case. The relevant part of his judgment at page 406 is as follows :

"As I understand the present practice, it is customary in personal injury actions for interim payments to be limited to sums for which the plaintiff can show a need. This is a sensible course because large interim payments in such cases may lead to difficulties if an order for repayment is subsequently made under Ord.29 r.17.

I am not satisfied, however, that there is any restriction implicit in the rules which prevents an interim payment order being made in the absence of evidence of need or prejudice. By the use of the words 'if it thinks fit' both rules 11 and 12 confer a discretion on the court whether to order an interim payment at all. Moreover the amount of the payment is expressed to be 'of such amount as [the court] thinks just,' with the additional limitation in the case of damages that the amount is not to exceed 'a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff' after taking into account the matters specified. For my part I can see no basis for any further limitation on the jurisdiction of the court to order interim payment other than those set out in Order 29 itself."

15. In the Hong Kong White Book, while it does not repeat what is stated in the 1999 White Book, it has the following passage at 29/11/4 :

"The Court must not risk overpaying the plaintiff (r.11(1)) since a final adjustment under r.17 may not be effective in such a case. There is nothing in the rules which requires the plaintiff to show need in order to found jurisdiction and the plaintiff's reasons for seeking an interim payment and the degree of his need are irrelevant to the exercise of the court's discretion."

16. The case of Stringman v. McArdle, referred to in the 1999 White Book, the plaintiff there was a minor severely injured and became tetraplegic in a road accident when she was 11 years old. Interlocutory judgment was entered against the driver of the car with contributory negligence agreed at 5%. Two earlier applications for interim payments had been ordered totalling 87,000 pounds for the purchase of a car and a house. A third application for a further 100,000 pounds to adapt the house already bought was refused by a district judge and a High Court judge both taking the view that the plans for conversion of the house were over-elaborate and might leave the plaintiff insufficiently provided.

17. The Court of Appeal in England allowed the appeal by the plaintiff holding that the plaintiff was not required to demonstrate any particular need beyond the general need to be paid her damages as soon as reasonably possible and the court should not, when considering whether to order such a payment, investigate how the money was to be used.

18. If there is any confusion in the local courts as to a plaintiff being required to show need before he can succeed in an application for interim payment, particularly in the context of personal injuries cases, that confusion may have arisen as a result of certain passages in some judgments given locally in the past, many of which were decided before the case of Stringman v. McArdle.

19. In the case of Yeung Sek-sung v. Cheung For Ming [1991] 1 HKLR 1, a decision of Jones J in chambers in 1990 (therefore before Stringman v. McArdle), that was a personal injuries case in which Jones J decided that the object of an application for an interim payment is to alleviate hardship or prejudice to the plaintiff during the period from the institution of proceedings up to the date of trial. In that case, he also decided (inter alia) that although the plaintiff, on the balance of probabilities, is likely to succeed in obtaining judgment against the 1st defendant and will be awarded substantial damages, no evidence of hardship having been provided by the plaintiff an award for interim payment should not be made.

20. It seems to me that the last part of the decision by Jones J above would go against what was decided in Stringman v. McArdle and what is now stated in the Hong Kong White Book to be the present practice in Hong Kong today.

21. A later decision in Hong Kong is to be found in the judgment of Kaplan J in chambers in the case of Paul Y Construction Co. Ltd v. A.G. of Hong Kong [1992] 2 HKLR 120. This was not a personal injuries case and was decided by Kaplan J in March 1992, again before the judgment of Stringman v. McArdle. In that case, the plaintiff was claiming a sum of over $2 million from the defendant as a certified sum due from the defendant under a construction contract between them. While the defendant did not dispute the claimed amount to be certified under the construction contract between the parties, the plaintiff's application for interim payment was opposed by the defendant on the grounds firstly, that the defendant had a set-off against the plaintiff's claim and secondly, that an interim payment can only be ordered where the applicant show need or hardship.

22. On the first ground, Kaplan J decided on the facts that the proposed set-off raised by the defendant is insufficiently connected to the plaintiff's undisputed claim.

23. As for the second ground, Kaplan J also drew a distinction between personal injuries cases and non-personal injuries cases holding that there is no rule that an order for an interim payment cannot be made under Order 29, rule 12 unless the plaintiff would suffer hardship or prejudice if it was made, though the rationale behind such a practice in personal injury actions is self evident relying on and agreeing with the decision in Schott Kem Ltd. v. Bentley. (which is now abrogated by Stringman v. McArdle).

24. In the unreported case of Pham Van Ngo v. Attorney General (High Court Action No. 4985 of 1990), a decision of Jones J in chambers given on 12 June 1992 (therefore again before Stringman v. McArdle), Jones J seemed to have taken a slightly different view after his decision in Yeung Sek sung v. Cheung For-ming. Perhaps the difference in views by the same judge in those two cases can be explained by the distinction which was thought, in those days, to apply to personal injury cases and other civil cases where interim payment was concerned since Pham Van Ngo was not a personal injuries case. Whatever the reason, Jones J had this to say when his earlier decision in Yeung Sek-sung was cited to him in the later case of Pham Van Ngo :

"Although Mr. McCoy indicated that I had in Yeung Sek-sung v. Cheung For-ming and another said that hardship had to be established before an interim award could be made, in fact I said that the provision for an award is intended to alleviate hardship. If any confusion has arisen as a result of my decision, I hasten to say that I agree with both the above decisions, but although hardship does not have to be proved, it is a matter to be taken into consideration when the court is asked to exercise its discretion."

25. The two decisions referred to by Jones J and which he agreed with in the above cited passage are the cases of Schott Kem Ltd v. Bentley and the Paul Y Construction Co. Ltd v. A.G. of Hong Kong, both of which I have already referred to above in this judgment.

26. Viewing all these cases, and the somewhat confused state of the law, the time has come when there should be a standard practice adopted in respect of applications for interim payment irrespective whether the case is a personal injury case or not. This is the effect of the decision by the Court of Appeal in Stringman v. McArdle. Of particular note are the following passages of the judgment of Stuart-Smith L.J in Stringman v. McArdle at p.1657 where he said :

" Once the threshold conditions in R.S.C. Ord.29 r.11(1), sub-paragraphs (a), (b) or (c) are satisfied, what the court has to do, if it thinks fit, is to make an interim payment of such amount as it thinks just not exceeding a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account contributory negligence and any set off or counterclaim. It should be noted that the plaintiff does not have to demonstrate any particular need over and above the general need that a plaintiff has to be paid his or her damages as soon as reasonably may be done. It will generally be appropriate and just to make an order where there will be some delay until the final disposal of the case. Therefore what the court is concerned with in fixing the quantum is that it does not exceed a reasonable proportion of the damages which in the opinion of the court are likely to be recovered. ... That is all the judge should have been concerned with. In the case of an adult of sound mind, the court making an order under R.S.C. Ord.29 r.11 is not concerned in any way with what the plaintiff does with his damages. In the case of an infant, the money will normally be paid into court and then the next friend will apply to the district judge for payment out as and when the money is required."

27. I find myself in full agreement with Stuart-Smith L.J in respect of the passage cited above and the reasons given. Those words should henceforth apply equally to personal injury cases as much as it does to non personal injury cases and there should be no distinction.

28. I do not discount the possibility that there will be some personal injuries cases where a plaintiff can show, because of the injuries suffered or for some other reason, that he is suffering some hardship and there is a real need or requirement for an interim payment. Provided that the other threshold conditions of Order 29, rule 11 are met, I can see nothing to stop a court from taking that into account in making an order for interim payment. In other words a plaintiff's need, requirement or hardship may be taken into consideration in an enabling way but not in a restrictive way in the exercise of the court's discretion.

29. Applying these principles to the present case, the learned Master had wrongly exercised her discretion in that she dismissed the application on the basis that the plaintiff had failed to show the need for an interim order to be made.

The Present Application

30. Since an appeal from a Master's order to a judge in chambers is by way of complete rehearing, the parties renewed in toto their arguments before me in this appeal.

31. In opposing the application for interim payment, apart from the argument that the plaintiff has failed to prove a need for an interim payment which I have dealt with above, the rest of the defendants' arguments can be summarized as follows - firstly, that the plaintiff's claim is not a substantial claim; secondly, since the accident, the plaintiff has been paid a monthly payment as well as all his hospital and medical expenses incurred in Hong Kong and thirdly, the plaintiff has been delaying these proceedings, but for that delay, the assessment of damages would have been heard. In all the circumstances, the defendants submit that there is therefore a risk of overpayment if interim payment is ordered.

32. In so far as the first point is concerned, it was submitted by the defendants that the plaintiff is looking at the region of $150,000.00 as respect general damages for pain suffering and loss of amenities. Next I was asked to disregard the bulk of the special damages claimed because the evidence from the defendants, as contained in the affirmation of Kwan Long Yee Corrina, is that the former employers of the plaintiff, Guangdong Ananda Bus Co. Ltd, a related company of the 2nd defendant herein, had been paying to the plaintiff a monthly sum of RMB8,678 per month since the accident up to March 2001. Moreover, the defendants have also paid HK$109,605.00 being the medical or hospital expenses incurred in Hong Kong.

33. In so far as these payments are concerned, the plaintiff accepts that he has been paid monthly sums of about RMB8,000 odd and also accepts that the defendant has paid the HK$109,605.00 being the hospital and medical expenses he had incurred in Hong Kong as a result of the accident.

34. Although the defendants accept that there may be some loss of earnings capacity or possibly even future loss of earnings, I have been urged by counsel for the defendants to disregard both general damages for pain and suffering as well as all claims for future loss on the basis that these do not impact on the plaintiff's present need. On that basis, the defendants say that for this application the plaintiff is only looking at several tens of thousand of dollars which is not substantial and thus a risk of overpayment if an order for interim payment is made.

Decision

35. I do not accept the submission made by the defendant that I should not consider damages for pain and suffering as well as future loss for the purposes of this application for interim payment. Order 29, rule 11 makes no such distinction. What I have to consider for present purposes is "the damages which in the opinion of the Court are likely to be recovered by the plaintiff". In this case, interlocutory judgment (with damages to be assessed) has already been entered. There is therefore no question of any contributory negligence nor any set-off or cross claim.

36. From all the facts and the contents of the medical reports which are now apparent, and taking into account the plaintiff having already received $109,605.00 for medical and hospital expenses from the defendant to date, I should think that a very conservative estimate of the total damages which the plaintiff is likely to recover would not be less than $300,000.00, perhaps even much more depending on the evidence to be adduced at the assessment hearing and which I do not have the benefit of at present. In arriving at this figure, I have taken into account the fact that the general damages for pain and suffering is likely to be much higher than what has been suggested by the defendants in the light of the injuries suffered by the plaintiff. I have also taken note of the fact that in the affirmation of Kwan Long Yee Corinna, it is stated there that the plaintiff had been paid RMB8,678 per month since the accident by his employers. Although it is also stated in the same affirmation that the plaintiff's former employers are "a related company" to the 2nd defendant, it is accepted by the defendants that they are separate legal entities. Whether or not the total amount of damages that the defendant has to pay at the end of the day should be reduced by such monthly payments to the plaintiff by his former employers must again depend on the evidence to be adduced at the assessment hearing in due course.

37. Lastly, I do not accept that there was any delay on the part of the plaintiff. There is no good reason for a plaintiff to delay the assessment hearing (where interlocutory judgment had already been entered) just to make an application for interim payment. There is also the opinion of Dr Cheng that the plaintiff is recommended by him to remove the intramedullary nail and to be reassessed six months after the removal as he thinks there is a distinct possibility of further improvement. In those circumstances it would be reasonable to expect the assessment to be heard after such re-assessment. Indeed that would be of benefit to the defendant as well if such improvement can be shown.

38. Accordingly for the above reasons, I would, in the exercise of my discretion make an order for interim payment for the amount of $150,000.00. I chose this figure not only because this was the figure put forward by the plaintiff's legal representative at the hearing of this appeal, having come down on the figure of $200,000.00 as stated in the original Summons. Furthermore, this figure ensures that there is a sufficient margin to guard against any overpayment.

39. I also note that the defendants are protected by third party insurance in so far as this accident is concerned and notice of this claim has already been given to the Ming Ah Insurance Co. Ltd so that the defendants do not come within the categories listed under Order 29, rule 11 (2).

Order

40. Accordingly, I shall order that the order of Master Kwan given on 16 March be set aside and replaced by an order that the defendants do pay to the plaintiff by way of interim payment the sum of $150,000.00 such sum to be paid to the plaintiff's solicitors within 21 days from this order.

Costs

41. This application for interim payment had been opposed by the defendants both before the learned Master and in this appeal. Seemingly, costs should follow the event. There will be a costs order nisi that the costs of the application and the hearing before the learned Master as well as the costs of the appeal be to the plaintiff in any event.