PUN SYAM v. PARAMOUNT ENGINEERING AND MANPOWER SERVICE LTD AND ANOTHER

HCPI 987/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 987 OF 2013

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DECISION
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1.  This is an application by the plaintiff for leave to accept a sanctioned payment under Order 22 rule 15(2)(b)(ii) of the Rules of the High Court as the 28 days for acceptance without leave has expired. The trial of this action will commence tomorrow. It is a four-day trial.

2.  The defendants served on the plaintiff’s solicitors a notice of the third increase of sanctioned payment on 24 August 2015.  The 28 days for acceptance expired on 21 September 2015.  The parties settled on liability on 28 October 2015 with the plaintiff shouldering 5 per cent contributory negligence.

3.  The plaintiff took out this application on 30 October 2015 which is nearly six weeks after the expiry of the 28 days. The plaintiff asks for costs up to 21 September 2015 which was the date on which the plaintiff could have accepted the sanctioned payment without leave of the court.  He offers to pay costs from 22 September 2015 up to 30 October 2015 when this application was taken out.

4.  The principles governing this kind of application have been discussed in Rai v Pacific Construction (Hong Kong) Company Limited [2011] 3 HKLRD 469 at §§ 31 to 38.  The main criterion for consideration is whether there has been any change of circumstances as would render it unjust to allow the offeree to benefit from the offer (§ 33).  Delay may also make the court less inclined to grant leave if the application is made at the eve of a trial particularly when the opposing party advances a cogent reason to oppose the application (§ 34).

5.  The defendants say that there are recent developments which are material changes in circumstances that will justify the defendants in arguing for a lower quantum.  The developments are the settlement on liability with the plaintiff bearing 5 per cent contributory negligence and recent medical evidence that reveals that the plaintiff is a chronic drinker diagnosed to have deranged LFT (liver function test).

6.  The defendants say that the new evidence will likely have negative impact on the quantum claimed by the plaintiff.  The quantum claimed is based on the plaintiff’s job as a tunnel worker until retirement at 65 and, hence, a multiplier of 20.77. 

7.  The recent evidence is in the form of a hospital discharge slip issued by the Queen Elizabeth Hospital to the plaintiff on 27 October 2015.  The plaintiff had been hospitalised from 25 October to 27 October.  The discharge slip stated under clinical information “chronic drinker, slightly deranged LFT for UGS HBS”.  It further stated under diagnosis “deranged LFT”.

8.  Since this discharge slip was only produced by the plaintiff on 30 October 2015, the defendants have not had the opportunity to obtain proper expert evidence on whether this diagnosis can allow the defendants to establish that the plaintiff’s working life will be reduced significantly below 65.  The defendants, however, will not be seeking an adjournment of the trial to obtain such expert evidence. 

9.  The defendants intend to ask their existing medical expert who will be called as expert witness at the trial to give evidence on this, but he is only an orthopaedic expert.  Miss Loh, counsel for the defendants, cannot confirm to me that this doctor is also qualified to say that this deranged LFT of the plaintiff will on a balance of probability reduce the plaintiff’s working life to significantly below 65.  I do not think the defendants have a real chance of establishing that.  In fact, the mere diagnosis of “deranged LFT” is insufficient for any proper conclusion to be drawn.  If the defendants would like to pursue this submission, it is likely that more tests will have to be conducted on the plaintiff with exchange of further expert reports by liver experts.  I therefore do not regard this disclosure of medical report by the plaintiff as a material change of circumstances.

10.  The next matter that the defendants rely on as a material change of circumstances is the settlement of liability on 28 October 2015 which fixed the plaintiff with 5 per cent contributory negligence.  This settlement was, however, based on the evidence disclosed by both sides well before the making of the third increase in sanctioned payment.  The defendants obviously made the third increase by taking into account all the evidence on liability and quantum.  This settlement of liability is thus not something new which would have prejudiced the defendants should leave be granted to the plaintiff on this application.

11.  Finally, the defendants say that the plaintiff is guilty of delay.  The defendants rely on Polyever Holdings Limited v Savills (HK) Limited HCA 1039/2010, a decision by Anthony Chan J on 30 June 2014.  In that case, the application for leave was made about one month before the trial and over seven months after the expiry of the 28 days for acceptance of payment.  The plaintiff there did not provide any concrete reason for the delay.  The learned judge dismissed the application mainly on the ground of delay.

12.  In the present case, the plaintiff says that he has just been discharged from hospital and cannot concentrate on the trial.  I do not think this hospitalisation from 25 to 27 October would have affected his consideration on whether to accept the sanctioned payment as the 28 days expired on 21 September.  However, bearing in mind that there is no cogent reason for opposing the application and the defendants will not be prejudiced by the grant of leave as all the costs from 22 September to 30 October 2015, including the costs incurred for preparing the trial up to that date, will have to be borne by the plaintiff.  Furthermore, the granting of leave will also save some judicial resources in that the trial need not take place.

13.  I therefore grant leave to the plaintiff to accept the sanctioned payment despite the expiry of the 28-day period on 21 September 2015.  I also order the defendants to pay the plaintiff’s costs of this action on the issue of quantum up to 21 September 2015, and the plaintiff to pay the costs of the defendants from 22 September 2015 to 30 October 2015.

(Discussion re costs)

14.  I make no order as to costs on the application.

15.  I formally order that the trial commencing 3 November 2015 be vacated.