SINGH BAL WINDER v. IWS WASTE MANAGEMENT CO LTD AND ANOTHER

HCPI 1126/2014

[2018] HKCFI 2242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1126 OF 2014

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D E C I S I O N

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1.  By a judgment dated 29 May 2018 (“The Judgment”), this court awarded damages of HK$447,845.02 plus interest and made an order nisi for the plaintiff’s costs to be paid by the defendant on District Court scale.

2.  This is the defendant’s summons to vary the cost order nisi.

Background

3.  This is a personal injury case concerning a slip and fall accident at work. The details are stated in the Judgment and need not be repeated here.

4.  The defendant had made 3 sanctioned payments to the court totaling HK$460,000 (HK$300,000 on 29 April 2015, HK$80,000 on 4 June 2015 and HK$80,000 on 19 November 2015).

5.  With interest, the judgment sum would come to HK$475,124.48 at the date of the last sanctioned payment. As such, the plaintiff has beaten the payment by about HK$15,000.

6.  The defendant submits that the costs order should be varied to a no order as to costs on the basis that the court has found that the plaintiff has exaggerated his injuries and damages awarded was around 10% of the sum claimed. A further ground was that it was reasonable for the defendant to expect that the sanctioned payments were sufficient. The defendant made it clear that there was no intention to disturb the findings in the judgment.

7.  The plaintiff argues that the decision in Gurung Devchandra v Pacific Construction (HK) Co. Ltd & Anor [2014] HKCU 2494 provides a complete answer.

Legal principle

8.  In the Gurung case, Deputy High Court Judge Sakhrani (as he then was) quoted Charm Marine Incorporated v Elborne Mitchell (unreported, 22 July 1997) which stated, in short, that there should be a “clear-cut rule” that even if the plaintiff recovered more than the sanctioned payments by “even a small margin”, he should be said to have succeeded, and that such “established rule” should not be qualified “by reserving the court some power to order the plaintiff to pay the defendant’s costs”.

9.  However, Deputy Judge Sakhrani did qualify this by stating that “each case depends on its own facts”. In saying so, he must mean that such an “established rule” did not take away the general power of the court to award costs in a way that it sees just and reasonable.

10.  I see it this way: the Charm Marine case concerned with the defendant, having failed to beat the award by its sanctioned payment, sought to reverse the usual “costs follow the event” principle and seek an award of costs. Of course, it is trite that the court would not allow this unless under very exceptional circumstances.

11.  But this is not the case here. The defendant is not seeking an award of costs, but an order for “no order as to costs”.

12.  This cannot be an “open and shut” case under the circumstances.

13.  Looking at it in another way, let’s assume a scenario where the defendant has not make any sanctioned payment into court at all. Having found for the plaintiff and given an award on damages, does the court still have the discretion to award costs in way it thinks just? The answer must be a resounding “yes”.

14.  Under such circumstances, the court will unlikely reverse the usual “costs follow the event” principle. However, it certainly can, after considering all the relevant facts of the case, make an order that the defendant should only pay a certain percentage of the plaintiff’s costs if, for example, the court finds the plaintiff’s conduct highly culpable and has incurred unreasonable costs.

15.  There should be no difference in the court’s power to exercise this discretion between a case where the defendant made no sanctioned payment and a case where the defendant’s payment failed to beat the award.

16.  Thus, all these precedents are no more than a reiteration of the general principle in awarding costs (irrespective of the circumstances when no payment was made or that the payment failed to beat the judgment): the court will always have a discretion, after consideration of facts of each case, award costs as it sees fit. The “established rule” of “costs follow the event” should apply generally but this does not mean the court cannot award a reduced amount of costs depending on what is just and fair under the circumstances.

Facts of this case

17.  One striking fact of the case is that the plaintiff was claiming HK$4,286,763.25 plus interest but this court only gave an award of HK447,845.02 plus interest, or merely 10% or so of the claim.

18.  The bulk of the plaintiff’s claim concerns the loss of earnings claims which this court mostly dismissed.

19.  Ms. Lee, counsel for the plaintiff, sought to submit that the plaintiff was truthful in his belief of his persistent symptoms.

20.  I disagree.

21.  I note that, firstly, both experts agreed that the plaintiff has exaggerated his symptoms with positive Waddell’s test.

22.  Of course, the Waddell’s test cannot tell the court whether the exaggeration was truthful or otherwise. To establish the former, there needs to be expert evidence to support that the plaintiff honestly believes that he suffers from such symptoms despite there being no “physical” explanation for them, so there should be a diagnosis of a “psychosomatic” type of pain.  There was no such expert evidence before the court.

23.  Ms. Lee also suggested that the plaintiff’s complaint was “consistent”.

24.  My view is that just because the plaintiff’s complaints have been “consistent” does not mean that it is truthful: he may just be telling the same lies to the treating doctors.

25.  A distinction must be made between a witness being “consistent” in his evidence under cross-examination (which generally considered to assist in establishing credibility), and a patient being “consistent” with his complaints to the treating doctor. As I have stated in many cases before, a treating doctor relies on doctor-patient trust and should not be cross-examining his patient. He may likely be simply recording what symptoms the patient has told him.

26.  I further note that, in this case, the plaintiff has been told by his treating doctors that he has recovered satisfactorily from the operation and he has not seen a doctor since November 2013.

27.  More importantly, I have found that the plaintiff did not behave like what one would expect of a reasonable person with such symptoms and disabilities. I think that a patient who truthfully believes that he is suffering from pain (even if the pain has no physical explanation and thus a “psychosomatic” pain) will still likely take very active action to seek medical help. This is clearly not the case here.

28.  In attempting to maintain his claim that he could not return to his previous job, the plaintiff even lied in court about “test-driving” a friend’s lorry.

29.  All these would infer that it has all along been a conscious effort for the plaintiff to maligner and not to return to his previous work in order to make a bigger loss of earnings claim against his former employer. He himself must be fully aware that this claim is, in truth, not justifiable.

30.  This culpable conduct meant that the plaintiff was maintaining his vastly inflated claim at some HK$4.3M, and as such, did not accept the defendant’s sanctioned payments of HK$460,000. In fact, the positions of the parties should have been only about HK$15,000 (instead of almost HK$4M) apart. There should have been every chance of an early settlement.

31.  In all fairness, the defendant could also be criticised (perhaps with some hindsight) that it could have protected its position by making a slightly higher sanctioned payment but it did not.

32.  Nevertheless, having considered all the facts of this case, it is clear that it has been the plaintiff’s malingering behavior that has unnecessarily prolonged the proceedings and increased the costs.

Order

33.  I would therefore order that:

a)   the defendant should pay 50% of the plaintiff’s costs of this action (except the costs of this summons) to be taxed if not agreed in the District Court scale, with certificate to counsel granted;

b)   the cost of and occasioned by this summons be to the defendant to be taxed if not agreed in the District Court scale, with certificate to counsel granted;

c)   The plaintiff’s own costs be taxed in accordance with Legal Aid regulations.