NGAI HOI YEUNG AND ANOTHER v. THE PACIFIC INSURANCE CO LTD

1987 No. A5099

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On the 17th day of May 1980, Ngai Hoi Yeung, a young girl aged 5 years, was crossing Ma Tau Street under the care and control of her aunt Chan Ah Fung (3rd Defendant) when she was knocked down by a vehicle driven by Lee Chun Wah (1st Defendant), the agent of the owner of the vehicle Mok Wai Hun (2nd Defendant). The infant brought an action through her father Ngai Yung Fung as next friend against the three Defendants in Action 4723 of 1981. The Defendants disputed liability.

2. On the 24th day of February 1983 after hearing Counsel for all the parties in respect of terms of settlement arrived at between the parties and stated to be beneficial to the infant Plaintiff, Mr. Commissioner Clough, as he then was, made an order the terms of which states:

"(1) That all further proceedings in this action be stayed save and except for proceedings for the assessment of damages together with interest thereon or any application by the Plaintiff for interim payment on account of damages and for the purpose of carrying the terms in the Schedule herein into effect and that there be liberty to apply : -

S C H E D U L E

(a) That the 1st and 2nd Defendant do pay to the Plaintiff in the manner as the Master shall direct 75% of the damages to be assessed together with interest thereon to be paid within 14 days of the assessment;

(b) That the 3rd Defendant do pay to the Plaintiff in the manner as the Master shall direct 25% of the damages to be assessed together with interest thereon to be paid within 14 days of the assessment;

(c) That the 1st and 2nd Defendants do pay to the Plaintiff the costs of this action to be taxed forthwith;

(d) That upon payment by the 1st and 2nd Defendants and by the 3rd Defendant of 75% and 25% respectively of the damages together with interest thereon assessed to be payable to the Plaintiff, the 1st and 2nd Defendants and the 3rd Defendant be discharged from any further liability in respect of the Plaintiff's claim in this action;

(e) That in default of payment by any Defendant of any sum of damages together with interest thereon assessed hereunder within 14 days of assessment such Defendant shall pay interest on such sum of damages together with interest thereon from the date of assessment until payment at the prescribed rate applicable to a judgment debt."

3. On the 19th day of April 1984 Faster Wilson made an order for an interim payment which was made by the 1st and 2nd Defendants. The 3rd Defendant was given leave to apply for payment by instalments.

4. On the 5th day of February 1987 a Consent Order was made by Master McInnes in respect of the assessment of damages. The Order states, inter alia, that

"1. Judgment be entered herein in favour of the Plaintiff against the Defendants for the agreed sum of $295,222.00 plus interest in the agreed sum of $14,757.00 plus costs to be taxed (if not agreed) in accordance with the Legal Aid Regulations.

2. Payment of the aforesaid sums do occur in the following ways:

(a) The 1st and 2nd Defendants having made an interim payment of $115,500.00, pursuant to Order of Master Wilson of 19th April 1984 and the 1st and 2nd Defendants' liability herein having been apportioned at 75% pursuant to the Order of Mr. Commissioner Clough of 24th February 1983. The said 1st and 2nd Defendants do pay into Court the balance sum of $116,984.25 within 14 days of today.

(b) The 3rd Defendant's liability herein having been apportioned at 25% pursuant to the Order of Mr. Commissioner Clough of 24th February 1983. The said 3rd Defendant do pay into Court the sum of $77,494.75 within 14 days of today."

5. The terms of Master McInnes' Order in respect of paragraph 2 are incorrect in so far as reference is made to Mr. Commissioner Clough having apportioned liability between the parties. In the Order of Mr. Commissioner Clough there is no such apportionment of liability - if there had been then the current action would not be before the Court.

6. It is not in dispute that the 1st and 2nd Defendants have paid 75% of the damages assessed and that the 3rd Defendant has not paid 25% of the damages or any part thereof.

7. The Plaintiff issued the present action against the Pacific Insurance Co. Ltd, the insurer of the goods vehicle involved in the accident, under the provisions of the Motor Vehicles Insurance (Third Party Risks) Ordinance Cap. 272 seeking judgment in the sum of $77,494.75 being the balance of the judgment sum still due.

8. It is common ground that where a Plaintiff sues two or more Defendants who are liable in respect of the same damage, the Plaintiff will be awarded his entire damages against each Defendant. The Court, of course, has power to apportion damages as between the Defendants and it often does, but there is no power to apportion this against the Plaintiff.

9. It is the Plaintiff's case that the 1st and 2nd Defendants and the 3rd Defendant are only discharged from this liability after payment of the 75% and 25% shares respectively which has not yet happened. The Plaintiff points to paragraph 1 of the Order of Master Jennings as a reflection of this position in that judgment was entered for the total damages assessed against all of the Defendants. The Plaintiff argues that an apportionment of those damages between the Defendants is a matter for the Defendants and does not affect their liability to the Plaintiff as joint tort feasors.

10. It is the Defence case that the Order of Mr. Commissioner Clough must be looked at as a whole and that paragraph 4 should not be taken in isolation.

11. It is suggested that when this is done, it is clear that the infant Plaintiff has either contracted out of her general right to sue joint tort feasors for the total damages or that she has waived that right. In my view, for this submission to have substance, it would be necessary for the Terms of the Order to spell out in clear and unequivocal language that the infant Plaintiff had agreed to forego or to waive her right to recover total damages from each of the joint tort feasors. It would have been a very simple matter for the terms to clearly reflect this but they do not do so. On the contrary paragraph 4 states that the Defendants will only be released from liability after the damages have been paid in full, in the proportions stated. I find that the Plaintiff has not in the Order of Mr. Commissioner Clough contracted out of or waived her right to proceed against the 1st and 2nd Defendants for the balance of the damages still outstanding.

12. The Defendant further submits that the Plaintiff is now estopped by having accepted the payments ordered to be made under the Order for interim payment. The 1st and 2nd Defendants were, under the Order of Mr. Commissioner Clough, obliged to pay 75% of damages to be assessed. Under the Order for interim payment, they have done no more than what they were legally obligated to do as a result of the earlier Order. I cannot see that by the 1st and 2nd Defendants making and the Plaintiff accepting such payments, that the 1st and 2nd Defendants have acted to their detriment or altered their position. After the making of the order on the 24th day of February, 1983 they were always required to do what they did pursuant to the interim Order for payment. The 3rd Defendant was given leave to apply for payment by instalments, and it is true that the Plaintiff has not actively pursued the recovery of payment from the 3rd Defendant. I cannot see how this in any way estops the infant Plaintiff from now pursuing her legal rights against the 1st and 2nd Defendants in this action. There will accordingly be judgment to the Plaintiff in the sum of $77,494.75 together with interests thereon and costs.