LAW YIN POK BOSCO v. DR CHAN YEE SHING also known as DR CHAN YEE SHING ALVIN

CACV 276/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 276 OF 2012

(ON APPEAL FROM HCPI NO 369 OF 2010)

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DECISION
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Hon Barma JA (giving the decision of the court):

1.  On 19 February 2014, we handed down our judgment in respect of the plaintiff’s appeal against the quantum of damages awarded to him by Deputy Judge Seagroatt in respect of personal injuries suffered by the plaintiff, a young child, as a result of the negligent treatment of an injury to his right ring finger by the defendant doctor, which resulted in part of the finger having to be amputated. We allowed the appeal to a limited extent, and increased the amount of the damages awarded by the Deputy Judge (HK$314,608) by HK$205,000, by increasing the amounts to be awarded under two of the heads of damages claimed by the plaintiff (namely, pain suffering and loss of amenities, and the costs of providing prostheses to the plaintiff in the future). As for a third head of damage, in respect of the value of care provided to the plaintiff by his father, we ordered that this aspect of the plaintiff’s claim should be adjourned and heard by the Court of First Instance together with a claim made by his parents against the defendant, which was originally to be heard together with his claim, but was directed by the Deputy Judge to be heard separately shortly before the trial began. It is therefore possible that the final amount of damages that the plaintiff will recover in respect of his injury will increase further, by up to an additional HK$296,000 if this claim is allowed in full.

2.  We also made a costs order nisi in respect of the costs of the appeal requiring the defendant to pay half the plaintiff’s costs of the appeal, to be taxed on the common fund basis if not agreed, with the plaintiff’s own costs being taxed in accordance with the Legal Aid Regulations.  We reserved consideration of the costs of the trial until after the claim in respect of the value of care provided by the plaintiff’s father had been determined.

3.  There are now two matters before the court:

(1) By summons issued on 4 March 2014, the defendant applies to vary the order nisi made against it, seeking in its place an order that the plaintiff pay the defendant’s costs of the appeal on the indemnity basis, with interest on such costs at the rate of 10% above the judgment rate.  It also seeks costs of the application to vary the order nisi to be awarded to it on the indemnity basis.

(2) By a Notice of Motion issued on 19 March 2014, the plaintiff asks for leave to appeal against our judgment to the Court of Final Appeal, pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), contending that the proposed appeal raises a point of great general or public importance, or alternatively on the “or otherwise” limb of that section.

Variation of costs order nisi

4.  Dealing first with the application to vary the costs order nisi, written submissions were lodged by the parties in accordance with directions given by the court.  These were subsequently supplemented to deal with certain points which the court raised with the parties.

5.  Initially, the defendant’s application was founded on the fact that it had made, in the proceedings below, a sanctioned payment which it said exceeded the amount of the award to the plaintiff in the court below and after appeal, and which would inevitably exceed such award as the plaintiff might ultimately succeed in obtaining after the remaining element of his claim (relating to the value of the care provided by his father) has been dealt with.  It was suggested that in these circumstances, the defendant was entitled to take advantage of the provisions of RHC Order 22 providing for costs to be awarded on the indemnity basis, together with interest on such costs at enhanced rates, where a plaintiff fails to do better than a sanctioned payment made by a defendant.  However, the defendant eventually accepted that as these proceedings were governed by RHC Order 80 (as the plaintiff is an infant), Order 22 could not apply, and the provisions of Order 22 relating to the basis of taxation and enhanced rates of interest on costs were not available.

6.  However, the defendant maintained that this remained an appropriate case for indemnity costs to be ordered in its favour, notwithstanding that the plaintiff had succeeded by his appeal in obtaining from this court an increase in the award of damages made by the Deputy Judge.  It was submitted by Mr Huggins SC for the defendant that failure to accept a sanctioned payment could be taken into account under RHC Order 62 rule 5 even in cases governed by RHC Order 80.  He submitted that where (as he suggested was the case here) the damages award, even though increased on appeal, did not beat the sanctioned payment that had been made in the proceedings below, this was a highly relevant factor to be taken into account in considering the appropriate costs order to be made, and that an indemnity costs order should be made here, to take account of what he said was the plaintiff’s unreasonable pursuit of an exaggerated and unjustifiable claim, both at first instance and on appeal (although the amount claimed on appeal was less than that claimed at first instance, Mr Huggins pointed out that it was still substantially more than the damages that were ultimately awarded by this court, even including the whole of the claim for care by the father, which might not be allowed in full, if at all).

7.  Reliance was placed by Mr Huggins on Montrio Ltd v Tse Ping Shun David [2013] HKEC 167 at paragraphs 2-4 of the judgment, Sino Trifone Ltd v Express Logistics Ltd [2013] HKEC 793 at paragraph 16 of the judgment, in both of which cases the Court of Appeal had regard to the plaintiff’s unreasonable failure to accept a sanctioned offer made in the proceedings below, and awarded indemnity costs in respect of the appeal against the plaintiff, taking account of the fact that had the plaintiff accepted the offer in the first place, there would have been no trial, let alone any appeal, and the defendant would not have been put to unnecessary and avoidable expense at either level of court.

8.  This court (differently constituted) has recently considered the impact of a sanctioned payment in the court below on the award of costs in connection with an appeal: see Ryder Industries Limited v Chan Shui Woo and Ryder Industries Limited v Timely Electronics Company Limited (CACV 164 & 165/2013, unreported, CA, 13 March 2015) at paragraphs 29 to 34 of the judgment.  It was there noted, without deciding the point, that the provisions of Order 22 suggest that the scheme contained within that Order applies only to trials in the High Court (and not to appeals before the Court of Appeal) (see paragraphs 29 to 34 of the judgment).  The court went on hold that in any event, a sanctioned offer in the court below could not be relied on to invoke the provisions of Order 22 in respect of the costs of the appeal, but that such a sanctioned offer could, and should in appropriate cases, be taken into account, both in dealing with the costs below and on appeal.

9.  In the present case, the question of the applicability of Order 22 to appeals likewise does not arise, both because there was no attempt to make a sanctioned offer for the purposes of the appeal itself, and because these proceedings are governed by Order 80.  It is therefore neither necessary nor appropriate for us to address that question here.

10.  However, the present case shares with the Ryder case the common feature that while the appellant failed to better the sanctioned offer made below both below and on appeal, it did improve its position in terms of the amount of the award that was obtained in this court.  This was not something that could have been achieved without the bringing of the appeal, and serves, as noted in the Ryder case (at paragraph 37) to distinguish the present case from the situation in the cases relied upon by Mr Huggins (where the appellant did not improve his position at all on appeal) in an important respect.  The plaintiff was, we think, successful in his appeal, even if not completely so.  That being the case, we are of the view that the costs order to be made in respect of the costs of the appeal should properly reflect that success, and it would not be appropriate to make an order for costs against the plaintiff, despite Mr Huggins’ arguments to the contrary.

11.  Mr Huggins also had a fallback position, which was to suggest that the costs order nisi we proposed (namely, that the plaintiff should have half of his costs of the appeal, to be taxed on the party and party basis) was too generous to the plaintiff, and did not adequately reflect the extent to which the result obtained fell short of what the plaintiff was seeking, both in terms of amount, and in terms of the heads of damage resulting in an element of further recovery for the plaintiff. We have carefully considered Mr Huggins’ submissions in this regard, but consider that notwithstanding that the plaintiff was less successful than he might have wished to be, the order nisi was and is a reasonable reflection of the outcome of the appeal.  We therefore decline to vary that order, which is made absolute.

12.  As the application to vary the costs order nisi has been unsuccessful, we shall dismiss it, with costs to the plaintiff, to be taxed on the common fund basis if not agreed.  As before, the plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.

Leave to appeal to the CFA

13.  So far as the plaintiff’s application for leave to appeal to the Court of Final Appeal is concerned, the plaintiff’s Notice of Motion identifies a single point that is said to be of great general public importance, namely:

“whether an infant Plaintiff, (1) who has suffered permanent disability adversely affecting his functional ability, such that he is disadvantaged in certain career, (2) but because of his young age, cannot prove his eventual career, is entitled to be compensated by the Defendant for loss of future earnings/loss of earning capacity”.

14.  It is alternatively suggested that leave ought to be granted under the “or otherwise” limb of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance having regard to the question raised, and the fact that the interest of an infant (and other infant plaintiffs) is at stake.

15.  With due respect to Mr Ko, who appears for the plaintiff, we do not think that any question of great general public importance arises in this case.  As we observed at paragraph 33 of our judgment, none of the approaches canvassed by the plaintiff in relation to the means of assessing loss of earnings or loss of earning capacity assisted him, having regard to the relatively less serious injury suffered by the plaintiff compared with those suffered by the plaintiffs in the cases which were drawn to our attention.  Mr Ko, in his written submissions, has drawn our attention to a number of other decisions, but with respect, the same point must be made in relation to these further cases also.  The further cases cited were Croke v Wiseman [1982] 1 WLR 71, which involved a child with brain damage who was left a severe spastic quadriplegic; Jamil bin Harun v Yang Kamsiah [1984] AC 529, which involved severe brain damage and physical disabilities; Cheung Kam-cheung v Siu Chick-por [1978] HKLR 530, where there were severe injuries to both legs and pelvis; Ho Yuk Yin v Lau Ah Lung (unreported, High Court, HCA 2141/84, 12 November 1985), where all the toes of one foot had to be amputated; and Lee Hon Cheung v Chang Tang Kai Lan [1995] 3 HKC 640, where there was a moderate degree of permanent neurological deficit, with cognitive and personality deterioration.  It is in our view clear that the plaintiff’s disabilities were far less severe than those of the plaintiffs in any of those cases.  Our decision, and that of the judge in the court below were clearly based on the particular nature of the plaintiff’s injuries, which is of necessity a highly fact-sensitive matter.  The cases show that there is no uniform approach, and that the approach taken in any given case depends on its particular facts.  Thus, we do not consider that any question of great general public importance can be said to arise here, and decline to give leave to appeal on this basis.

16.  So far as the “or otherwise” limb is concerned, it is well established that this court will not generally give leave to appeal to the Court of Final Appeal under this limb, and that it is for that court to consider whether or not, having regard to the circumstances of the case, it thinks it appropriate to do so.

17.  We therefore dismiss theNotice of Motion, and make an order for costs nisi that the costs of it should be paid by the plaintiff to the defendant, to be taxed on the party and party basis if not agreed, with the plaintiff’s own costs again to be subject to taxation in accordance with the Legal Aid Regulations.