WONG LAM WEI HOLLY v. HOSPITAL AUTHORITY

DCEC2755/2021

[2024] HKDC 2069

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO 2755 OF 2021

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DECISION

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1.  On 23 August 2024, I gave judgment (“the Judgment”)  finding the Respondent liable to pay compensation to the Applicant under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”)  in respect of an injury at work on 5 January 2020. However, given that the Applicant has already received a total of HK$159,080.38 as periodical payments for which she has to give credit, and given my ruling on quantum was for an amount much lower than the periodical payments received, no award of compensation was made.

2.  I also made an order nisi that the Applicant was entitled to the costs of the action, including any costs reserved, with certificate for counsel to be taxed if not agreed, and the Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

3.  By a summons dated 2 September 2024, the Respondent seeks to vary the costs order nisi under Order 42 rule 5B(3)  of the Rules of the District Court, Cap 336H, to the effect that:

(i)  the Applicant shall instead pay the Respondent’s costs of the action, including any costs reserved, with certificate for counsel to be taxed if not agreed, and

(ii)  the Applicant’s own costs since 4 May 2022 shall be taxed in accordance with the Legal Aid Regulations. Regarding this part, there is no dispute that the Applicant was only granted Legal Aid on 4 May 2022.

4.  Having considered the nature of the application, I directed on 8 November 2024 that the application was to be dealt with by way of written submissions.

5.  The facts of the case have been set out in the Judgment and I shall not repeat the same here, save that references will be made to the relevant facts and findings in the discussion below.

6.  In support of its application, the Respondent relies on the fact that the Applicant had already received the sum of HK$159,080.38 being periodical payments prior to the commencement of the action (including an amount of HK$1,485.42 for her sick leave on 5 and 6 January 2020 (see paragraphs 90 to 95 of the Judgment).

7.  Before the Respondent filed its Answer, by a letter dated 29 June 2022, the Respondent’s solicitors invited the Applicant to discontinue the proceedings to save further costs. Subsequently, the Respondent’s solicitors also rejected the Applicant’s offer of HK$424,000.00 together with costs in settlement of the proceedings. The Applicant was once again invited to discontinue the proceedings.

8.  Subsequently, in its Answer filed on 18 August 2022, the Respondent raised a challenge on the issue of causation of the Applicant’s alleged injuries.

9.  The Respondent submits that an employee or claimant is normally to bear costs if the amount of compensation or damages assessed is less than the amount received by the employee or claimant prior to the commencement of the proceedings. In this regard, Mr Ho for the Respondent firstly refers to Tsui Koon Wah v Ip Mei Ho t/a Michelle Ip & Co, Solicitors [2021] HKCFI 3437 where Marlene Ng J held at paragraph 101 that:

“101. Where nominal damages are awarded, it has been said (a)  the court or tribunal ought not exercise the discretion against the successful party except for some reason connected with the case, but (b)  “to deprive a claimant of their costs and to order them to pay those of the defendant in a case where they have been awarded nominal damages but have had no good reason for suing, is surely an exercise of the discretion for a reason connected with the case”. Hong Kong Civil Procedure 2022 also stated that “[where] a plaintiff is successful on the issue of liability but recovers nominal damages only, the normal order for costs is in the defendant’s favour ……” Thus, it is not unusual (or unknown)  in a case where the claimant succeeds on liability but fails to sufficiently prove quantifiable or substantial damages (ie he recovers only token or nominal damages)  for a cost order to be made for the claimant to pay costs to the defendant or, at least, for no order as to costs.”

10.  Mr Ho also relies on Ho Wan Yung v A.S. Watson & Co Ltd HCPI 264 of 2008, 3 June 2010, in which Fok J (as he then was)  ruled that the plaintiff should pay the defendant’s costs of the action, in a case where although the court found in favour of the plaintiff on the issue of liability, the total amount of damages including interest was less than the sum of employees’ compensation for which credit was to be given. Ho Wan Yung was followed in Cai Guoping v Yim Hok Wing & Others HCPI 494 of 2013, 23 June 2015, DHCJ Cooney SC in a similar situation. The same approach was also adopted in recent cases like Tsue Lai Kee v Nanyang Commercial Bank Limited [2021] HKDC 1415[1] and Tjang Shu Thu 對 Cathay Pacific Catering Services (HK)  Ltd [2021] HKDC 1193. Although the above authorities are concerned with personal injuries claims instead of claims for employees’ compensation, I do not see any reason to differentiate between claims under common law and those under the statutory framework for compensation for the present purpose.

11.  As such, the Respondent submits that since the Applicant has received before the commencement of the proceedings a sum significantly higher than that found to be payable in the Judgment, there is no reason why the Applicant should not pay the costs of the Respondent.

12.  On the other hand, the Applicant relies on her success on establishing liability of the Respondent.

13.  The Applicant further submits that it was reasonable for her to have proceeded to the trial of the case given that there has been a reasonable prospect of recovery of compensation in excess of the periodical payments received.

14.  Lastly, the Applicant submits that the threshold for reversing a decision on costs, which is discretionary, is a high one, relying on Tsui Koon Wah referred to above, in which the court referred (at paragraph 73)  to a judgment of the Court of Appeal in Progetto Jewellery Company Limited v Lau Chiu Ying & Anor [2022] 2 HKLRD 845. However, as the Respondent has pointed out, it is obvious that the present application is for variation of a costs order nisi, and is not concerned with reversing a costs order on appeal. As Chow JA has said in the recent decision in Sir Elly Kadoorie & Sons Limited (for and on behalf of itself, its current and former officers, employees and agents, including its legal representatives, Messrs Simmons & Simmons)  v Samantha Jane Bradley [2024] HKCA 1070 at paragraph 8:

“8. In dealing with an application to vary a costs order nisi, the court considers the matter afresh. The applicant does not bear any burden to show that the court’s provisional views for making the costs order nisi are wrong or not justified…”

15.  As such, I do not think the last point raised above by the Applicant is a valid one.

16.  Coming back to the other points raised by the Applicant, although the Applicant has succeeded in establishing liability, she has failed to establish her case on quantum to a significant extent. Despite the submission by the Applicant that there was a reasonable prospect of recovery of compensation in excess of the periodical payments received by her, the fact remains that in the Judgment, I have ruled that she is not entitled to any compensation under Sections 9 and 10A of the Ordinance, but only an amount of HK$1,228.00 under Section 10 representing sick leave limited to two days only (see paragraphs 88 to 97 of the Judgment). As mentioned above, the Respondent has been disputing the causation of the Applicant’s alleged injuries, and hence the quantum of compensation, in its Answer filed since August 2022.

17.  The Applicant has not challenged the authorities referred to above by the Respondent on the failure by a claimant to establish his case on quantum, which I accept as applicable to the present situation. Having considered the matter afresh, in particular with the additional information concerning the abovementioned negotiations carried out by correspondence between the parties, I am of the view that the costs order nisi should be varied and made absolute as follows:

(i)  the Applicant shall pay the Respondent’s costs of the action, including any costs reserved, with certificate for counsel, to be taxed if not agreed, and

(ii)  the Applicant’s own costs since 4 May 2022 shall be taxed in accordance with the Legal Aid Regulations.

18.  As for the costs of this application, the same shall be paid by the Applicant to the Respondent, to be taxed if not agreed, and the Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.