YAU KAM CHING v. CHEUNG SHUN KAU

DCPI 522/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 522 OF 2012

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REASONS FOR RULING

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Introduction

1. On 11 December 2014, after hearing submissions from counsel this court dismissed the plaintiff’s summons taken out on 10 October 2014 and said that reasons would be given.  This I now do.

Background

2. The case was about the plaintiff’s claim for damages against the defendant (a taxi driver) for personal injuries sustained by her in a traffic accident.  It was found that the accident was caused by the defendant’s negligence but that the plaintiff was also contributorily negligent to the extent of 70%.

3. The traffic accident occurred in the course of and arising out of the plaintiff’s employment.  During closing submissions, the court was told that the plaintiff had already been awarded, but yet to receive, compensation under the Employees’ Compensation Ordinance, Cap 282. Counsel for the plaintiff agreed that credit should be given to the employees’ compensation awarded whether or not it had been received.  In the event, the court found in favour of the plaintiff’s on liability and made reference to s 25(1)(a) of Cap 282.  After deducting for contributory negligence and giving credit to the employees’ compensation, the plaintiff was awarded damages in the amount of $15,944 together with interests and costs.[1]

4. Afterwards, the defendant sought leave to appeal against liability.  The application for leave to appeal was refused by this court on 22 May 2014[2] and subsequently also by the Court of Appeal on 15 August 2014.[3] 

5. It now transpires, however, that the plaintiff has been unable to receive any compensation from her former employer.  By the present application, her counsel, Ms Christina Lee,[4] asked that the court “confirm” the Judgment in that “the defendant is liable for the damages net of contributory negligence at $138,721[5] plus interest”.  The application was opposed by Mr Martin Wong, counsel for the defendant. 

The issues

6. The following issues are raised by the parties in the present application:-

(a) whether the court still has jurisdiction to confirm or amend the order (which has yet to be sealed) and if so, whether the present case falls within the scope of that jurisdiction;

(b) assuming that the court still has jurisdiction, whether the order should be amended in spite of the agreement of the parties at the time of the trial; and

(c) whether the interests of justice demand that the plaintiff’s application be allowed. 

Consideration

As to (a): jurisdiction

7. With respect, as put by Mr Wong, although the present application is dressed up as an effort to seek “confirmation” or “clarification” of the judgment order, there is in fact no uncertainty to confirm or ambiguity to clarify.  The effect of the Judgment is clear, namely the plaintiff is awarded a net sum of $15,944 together with interest and costs. 

8. It seems that the real purpose of the plaintiff’s application is to ask this court to alter the substance of the Judgment. Needless to say, this court does not sit as the appellant court of its own judgment and it has not been given any power of review similar to that given to magistrates under s 104 of the Magistrates Ordinance, Cap 227.  Furthermore, Ms Lee has accepted that the plaintiff could not appeal against this court’s decision to allow credit to be given the employees’ compensation, as it was rightly made pursuant to s25(1)(a) of Cap 282.  She has also accepted that there is no error in the Judgment which would give rise to a ground of appeal.[6] In any event, any appeal by the plaintiff as to quantum would be way out of time.

9. It is well-recognised that finality of proceedings is an important public interest in the administration of justice. Therefore, whilst I accept that there are occasions when a court can confirm, clarify or amend an order or give further direction after judgment, the occasions where that can properly be done must be limited.  In my judgment, the case authorities relied upon by Ms Lee are not pertinent or applicable to the present application in that:-

(i) the Judgment as propounded is perfectly capable of being understood and can be worked out without any further order: contrast with Penrice v Williams;[7] and Law Wai Duen v Badwin Construction Co Ltd; [8]

(ii) the “confirmation” sought is one of substance which involves this court exercising its judicial junction.  There is no ambiguity in the judgment order so as to require an amendment or variation order “to make plain what the court has in fact already decided” as manifested in the body of the Judgment: compared with Man Ping Nam v Man Fong Hang (No 2);[9]

(iii) the Judgment is of a final character which is very unlike an ex parte junction which would require the continued involvement or supervision of the court: see eg, Lai Hoi Ping’s case;[10] and

(iv) the “slip rule” under Order 20 Rule 11 of the Rules of the District Court is not applicable, as there has been no accidental slip or omission.

10. Based on the above, in my judgment the present case is no occasion for the Court to exercise its inherent or implied power to give further direction and there is nothing in the Judgment which calls for any confirmation or clarification.

As to (b): agreement

11. It is appreciated that there are circumstances where a judgment or order obtained by consent can be varied or amended: see eg, Leung Yee & Another v Ng Yiu Ming & Another[11]; and Siebe Gorman & Co Ltd v Pneupac Ltd.[12]  The question is whether the plaintiff should be allowed to retract from the concession made by her former counsel.

12. In this regard, it is noted that in the letter of the plaintiff’s solicitors to the court dated 21 August 2014, the plaintiff’s solicitors said:-

“Contrary to the impression given at the trial, the Plaintiff in fact had not received the sum of HK$122,777 awarded by Deputy Judge Victor Dawes in DCEC 1400 of 2009 on 5^th June 2013 or any other sum.”

13. I regret to say that the above sentence is misleading.  There was in fact no “contrary impression” given at the trial.  During the closing submissions, counsel then representing the plaintiff (not Ms Lee) informed this court explicitly that the plaintiff had, by the time, not yet received any compensation from the employer.  On the other hand, there was not any hint from counsel that the plaintiff would have any difficulties obtaining the payment.  Upon enquiry by this court as to whether the plaintiff would agree that credit be given to the employees’ compensation whether or not it had been received, counsel then representing the plaintiff answered in the affirmative.[13] The following points are readily discernable from the above episode:-

(i) the concession was made on the plaintiff’s behalf during closing submissions in the knowledge that the employees’ compensation had not been paid, although it had already been awarded since 5 June 2013;

(ii) it now transpires[14] that by the time of the closing submissions, the employer had not responded to any of the cashing letters sent to it by the plaintiff’s solicitors.  Therefore, the plaintiff must have known or must be taken to have known that there was a risk that she might not receive any compensation from the employer at all; and

(iii) the concession was much more than a mere “no objection” to credit being made.  It was an agreement between the parties as to what was the right thing to do in the circumstances of the present case. 

14. It is trite that a litigant is generally bound by the way a matter was conducted by his or her counsel. The fact that a second counsel or subsequent set of lawyers thought differently could not be a basis for re-opening a matter: see Chiang Lily v Secretary for Justice.[15] In the present case, I can see no justification to allow the plaintiff to retract from the concession made on her behalf, there being no vitiating factors, such as fraud, mistake or material change of circumstances, which affect the basis of the concession. 

As to (c): interest of justice

15. What is discussed above should be sufficient to dispose of the present application.  However, in deference to the amount of arguments devoted on this topic, I should say a few words on this as well.

16. As succinctly put by Mr Wong, neither the defendant nor this court has imposed a penalty on the plaintiff in the event that her former employer cannot pay.  Her own concession, with full awareness of the risk, did.  This court can see nothing wrong in law for her then counsel to make the concession as he did.  However, if the plaintiff thought that the concession was one which should not have been made or was made without or contrary to her instruction, then it is a matter entirely for her to explore other avenues of redress.

17. Besides, the plaintiff by her present application is asking this court to alter the substance of the Judgment by reason of a piece of information which was known to her but which had not made known to this court at the time of the trial, namely that her former employer had not paid and there was a risk that it would not pay.  If this piece of information was relevant, as Ms Lee seems to be suggesting, then the plaintiff owed an explanation to the court as to why it had been withheld from this court at the trial.  With respect, I am unable to see how the revelation of this information now can afford her a ground to ask the court to change the substance of the Judgment.

18. Furthermore, had it not been for the concession and had the court refused to give credit to the employees’ compensation awarded, the defendant might have sought leave to appeal against quantum on the basis of s 25(1)(a) of Cap 282.  It now appears that the opportunity for the defendant to do so has gone.  If the court were to accede to the plaintiff’s present request and deprive the defendant of the advantage which he has obtained by reason of the concession, it would be most unfair to him. 

19. Lastly, it is not the case that the plaintiff would be left without any remedies if she is unable to recover the employees’ compensation from her employer.  One possible option open to her is to consider making application for payment from the Employees’ Compensation Assistance Fund: see s 16 of the Employees’ Compensation Assistance Ordinance, Cap 365.  I echo the remarks made by the Court of Appeal when dealing with the leave application that disproportionate costs have already been incurred in this case.  This is especially so now that the legal costs of both the plaintiff and the defendant are now funded by public resources.  This is because the defendant’s insurer is now in liquidation and the matter has been taken over by the Motor Insurance Board.  With the greatest respect, I am unable to see why the present application was made, when there is an apparently more sensible and proper way to help the plaintiff.

Conclusion

20. Based on the above, the plaintiff’s application is dismissed. 

21. I have ordered that the plaintiff pay the defendant’s costs for this failed application.  For the purpose of saving further costs, I asked that the defendant’s solicitors submit a statement of costs together with the plaintiff’s comments to facilitate a gross sum assessment. 

22. There are now before this court the defendant’s statement of costs and the plaintiff’s comments.  The defendant’s solicitors are seeking a total of $77,664 as costs of the application.  The plaintiff solicitors, on the other hand, say that the sum should only be $21,374. 

23. I accept that representation by counsel was necessary in this application.  As such, certificates of counsel are granted to both sides.  However, I take the view that the relative legal principles are well-defined and that there are not many documents involved. Having considered what the materials before me, I am of the view that the $77,664 demanded is on the high side in that:-

(i) the total time taken for attendance on client (3 hours) and other parties (4.4 hours) is excessive;

(ii) the time taken for perusal of documents (7.5 hours) hours is also excessive; and

(iii) the counsel fee is also on the high side. 

24. Taking the matter globally, in my view a total sum of $50,000 would be reasonable and this is the costs that I award to the defendant. 

25. I further order the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations, as I said with counsel certificate.