XCHRX SIU KOON MAN COLEMAN v. SHUM CHI CHUNG

HCPI 736/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.736 OF 2001

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J U D G M E N T

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1. This is an appeal by the plaintiff against a Master's order of 27 October 2001 ordering interim payment in the amount of $400,000 pursuant to the plaintiff's application by Summons for same dated 11 October 2001. By that Summons the plaintiff had asked for interim payment in the amount of $5 million.

2. By Notice of Appeal dated 29 October 2001, the plaintiff seeks to set aside the order of the Master of 27 October 2001 to be replaced by an order that the defendant do pay to the plaintiff interim payment in the amount of $5 million.

3. The plaintiff's claim is for damages for personal injuries sustained by the plaintiff on 21 November 1999 in a traffic accident along Pokfulam Road when the defendant lost control of the car (FH 6092) which the defendant was driving and which veered onto the opposite carriageway of Pokfulam Road resulting in a head-on collision with the plaintiff's motor-cycle.

4. Liability is not contested by the defendant and judgment has already been ordered against the defendant in full with damages to be assessed. There is also no dispute that the defendant is covered by Third Party Insurance in respect of this accident and the claim by the plaintiff.

5. The defendant further concedes that interim payment should be ordered. The only dispute between the parties is as to the amount of the interim payment.

Basis of plaintiff's application for interim payment

6. Immediately before the accident, the plaintiff was a sergeant in the Hong Kong Police Force at the time of the accident, aged 39 then, married with a daughter then aged 11. As a police sergeant he was earning a salary of $27,650 per month and quarters were provided for him and his family to live in. The plaintiff had joined the Police Force in 1980.

7. As a result of the accident, the plaintiff was admitted to the Queen Mary Hospital in an unconscious state with a Glascow Coma Score of 6 out of 15. Diagnosis including CT Scan and X-rays showed the followings injuries : -

(a) fracture of third cervical vertebra;

(b) cerebral contusion;

(c) bilateral pneumothorax with fractured left 3rd to 5th ribs;

(d) fractured dislocation of thoracic 4/5 vertebrae with compression of the spinal cord;

(e) comminuted fracture of right shaft of radius and ulna;

(f) hypo-volaemic shock;

(g) paraplegia of the lower limb; and

(h) double incontinence.

8. Without going into the details in length, the plaintiff was resuscitated, emergency treatment given and he was kept in Intensive Care for some three weeks. He remained in Queen Mary Hospital until 17 March 2000 when he was transferred to MacLehose Medical Rehabilitation Centre until his discharge on 28 October 2000.

9. For all intents and purposes, the plaintiff is now a paraplegic, wheelchair bound for life and is assessed to suffer 88% permanent disability.

10. Because of his condition as an invalid, the plaintiff has been forced to retire from the Police Force. His pre-retirement leave ended on 2 August 2001 and he was officially retired as from 3 August 2001.

11. The Commissioner of Police has also written to the plaintiff's solicitors informing them that the plaintiff, in accordance with Civil Service Regulations, will have two months from his pre-retirement leave to vacate his quarters.

12. The plaintiff has deposed in his affirmation that he and his family has been living in a flat, provided to him as staff quarters by the Hong Kong Government, which is situated in South Horizons. Due to his forced retirement, it is impossible for him to apply for mortgage or other financial facilities from a bank for the purchase of a property. Furthermore, because of the condition he is in being wheelchair bound, the adaptation cost for a new home is estimated to be around $100,000. Besides, it would not be feasible to carry out such adaptation in rented accommodation without the consent of the landlord and in any event such cost of adaptation will be wasted at the end of the tenancy.

13. Under those circumstances, the plaintiff is desirous of acquiring his own flat of about 1,000 square feet in the same South Horizons where he has been living. The cost of such a flat is around $4.3 million with the other incidental expenses including the cost of adaptation coming to about $0.7 million. This basically is the reason why he is asking for interim payment in the sum of $5 million.

14. The plaintiff has also deposed that he has some savings of $340,000 while his wife has about $6,000 in her bank account. She works as a civil servant earning $14,645 per month. Particulars of the monthly household expenses are given and they come to $32,000 odd per month.

15. Lastly the plaintiff deposed that he is advised by his legal advisers that the damages to be assessed in his case would in no way be less than $15 million but may be as high as $25 million.

16. It is therefore on such basis that the plaintiff makes his application for interim payment of an amount of $5 million.

Defendant's arguments

17. The defendant submits that the plaintiff's "urgent need" for accommodation is of his own making since the plaintiff was offered public housing assistance but refused such offer. In the circumstances, "need" has not been made out by the plaintiff.

18. It is further submitted that the Court should not exercise its discretion in such a way as to encourage the plaintiff to commit himself in acquiring a property which will have an impact on the outcome of the assessment hearing and which may not be reversible because at this stage the Court is not in a position to consider the evidence (and therefore the merits of the plaintiff's case on damages) until that evidence is presented at the assessment hearing.

19. For the purpose of this application for interim payment, the defendant submits that $550,000 is a reasonable amount to be ordered by way of interim payment.

20. At the same time Mr Chik who appears for the defendant is prepared to concede that the total damages which will be assessed in favour of the plaintiff in this case will not be less than $10 million.

Decision

21. I have earlier this year held in the case of Sun Jianqiang v. Chan Tai Kau and anr. [2001] 2 HKC 702 that there is no requirement for a plaintiff to show "need or hardship" before an order for interim payment can be made by the Court. This follows the decision of the Court of Appeal in England in the case of Stringman v. McArdle [1994] 1 WLR 1653.

22. However, in the present case, although there is no requirement to show "need", the plaintiff have certainly done so by showing that he has been asked to leave his quarters resulting from his forced retirement from the Police Force.

23. Given all the circumstances of the present case, in particular that full judgment has been ordered in favour of the plaintiff against the defendant and the fact that the defendant now concedes that at the end of the day an amount of not less than $10 million would be assessed for the plaintiff, it is difficult to see any good reason why there should not be an order for interim payment in the amount asked for by the plaintiff since the only practical consideration remaining in the present case is that under Order 29 Rule 11 the Court must ensure that in making an order for interim payment, the amount ordered would not exceed a reasonable proportion of the damages which the plaintiff is likely to recover at the end of the day.

24. In the present case, given the kind of injuries suffered by this defendant resulting in his being now a paraplegic and wheelchair bound for life, plus the fact that he was a police sergeant before the accident as well as his age, all these factors can give the Court some idea as to the likely damages which this plaintiff may recover at the end of the day. That coupled with the concession made by the defendant in that respect allows me to come to the conclusion an amount of $5 million being interim payment would leave a sufficient margin such that the Court can feel sure that if such an amount of interim payment is ordered it will not result in any overpayment being made to the defendant before the assessment is heard and determined.

25. In my view therefore $5 million interim payment more than satisfies that consideration laid down in Order 29 Rule 11 given the concession made by the defendant referred to above.

26. The Writ of Summons was taken out on 4 September 2001. With the Writ were served the Statement of Claim and a Schedule of Damages. Judgment on liability was conceded by the defendant through his solicitor before the Master at the hearing on 27 October 2001 and the Master had formally ordered judgment to be entered against the defendant. Apart from this application for interim payment and the appeal therefrom no steps other than those stated above has been taken in this matter. It is therefore unlikely that the assessment of damages could be reached within the next nine months considering the kind of injuries suffered by the plaintiff. (I am told that the defendant has not yet arranged for any medical experts to examine the plaintiff). This is a further factor which I can take into account.

27. Accordingly, the appeal against the order of the Master given on 27 October 2001 is allowed. That order of the Master is set aside and in place thereof an order that the defendant do pay to the plaintiff through the plaintiff's solicitors the sum of $5 million by way of interim payment within 21 days from the date of this order.

28. I should also add that in ordering this amount of interim payment requested by the plaintiff, it does not follow that the Court or the defendant are necessarily bound by the way in which the plaintiff makes use of that interim payment when it comes to the assessment of damages. If the plaintiff chooses to commit the interim payment in a particular way which, when it comes to the assessment hearing, is not endorsed by the Court, then the plaintiff takes that risk of so doing himself. He cannot be heard to say that by granting his application for interim payment the Court, or the defendant, has thereby given him the blessing for so utilizing the amount of the interim payment.

29. There will also be a cost order nisi that the costs of the hearing before the Master from which this appeal arises and the cost of this appeal be to the plaintiff in any event.