LIMBU NETRA KUMAR v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER

HCPI 234/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

PERSONAL INJURIES ACTION NO. 234 OF 2002

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D E C I S I O N

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1. The plaintiff met his accident at work on 20 April 1999, as a result a writ was issued for common law damages in the High Court on 25 March 2002, the defendants being the employer of the plaintiff.  Trial on both liability and quantum was heard by me from 1 to 7 February 2007.  A written judgment was delivered on 25 April 2007.  In that judgment the plaintiff was found to be 30% contributory negligent and taking into account the contributory negligence of the plaintiff, judgment was given to the plaintiff for the sum of $1,020,395.  The written judgment included the usual costs order nisi that the defendants pay the plaintiff his costs of the action to be taxed if not agreed and the plaintiff’s own costs to be taxed in accordance with Legal Aid regulations.  The defendants now apply for variation of that costs order nisi. 

2. The grounds on which the application was made was that the defendants had by a Calderbank offer contained in their solicitor’s letter dated 19 June 2002 which letter was headed “without prejudiced save as to costs” offered to accept 70% liability subject to the plaintiff’s contributory negligence of 30%.  That was exactly what the court found in relation to the issue of liability and contributory negligence.  On that basis the defendants asked that the court order nisi be varied so that the defendants may be given the costs but only relating to the issue of liability as from the date of the Calderbank letter, that is 19 June 2002.  

3. The plaintiff on the other hand objects to this application by the defendants to vary the costs order nisi, submitting that this is a simple money claim therefore a Calderbank letter was quite inappropriate.  It was also submitted that had the defendants wished to protect their position as to costs, the proper way to do so was by payment into court and not by Calderbank letter.  As a matter of fact there were three payments into court made by the defendant on :

(1)     27 November 2003;

(2)     12 December 2005; and

(3)     27 January 2007. 

It is not necessary to go into the amount of each of these payments suffice it to say that the total amount paid into court by the defendants in all three payments in came to $850,000 only.  The judgment ultimately given in favour of the plaintiff was for $1,020,395.  Therefore the total payment in was short of the judgment sum by $170,395. 

4. The plaintiff submits that the defendants having failed quite significantly to match the judgment amount by its total payment into court cannot seek to vary the costs order nisi by relying on its Calderbank letter of 19 June 2002.  The defendants accept that this case being a personal injuries case it is a monetary claims only.  However the defendants seek reliance on the proviso to Order 22 rule 14.  That proviso reads as follows :

“Provided that the Court shall not take such offer into account if, at the time it is made, the party making it could have protected his positions as the costs by means of a payment into court.” 

5. The defendants contend that at the time of the Calderbankletter, namely 19 June 2002, it could not have made a payment into court because the plaintiff had prior to that day defaulted three appointments for medical examination by the defendants’ ortheopaedic Dr Lam Kwong Chin. 

6. I am told in submission that the dates of the three defaulted appointments by the plaintiff to be examined by the defendants’ orthropaedic expert was 29 May 2002 and two other appointments prior to that date, but that the defendants’ solicitor did not have the exact dates with them.  Ultimately the plaintiff was examined by the defendants’ orthropaedic expert on 24 June 2002 and a medical report compiled by him dated 8 July 2002.  Moreover I was also told that there had been an earlier medical report given by Dr Lam Kwong Chin in respect of this plaintiff, which report was dated 29 November 2000.  

7. Counsel for the defendants takes the view that very likely this medical report in November 2000 was compiled by Dr Lam in relation to the related ECC proceedings and after examination by Dr Lam.  Whilst that earlier medical report from Dr Lam dated 29 November 2000 may be relating to the ECC compensation claim by this plaintiff, the injuries suffered by the plaintiff would have been the same injuries sustained by him in the accident, the subject of the common law claim. 

8. I cannot therefore accept the defendants’ contention that at the time of the Calderbank letter of 19 June 2002 they could not have made a payment into court thereby bringing themselves within Order 14 rule 1.  In a personal injuries action, once a writ is issued and served on a defendant and who acknowledges service thereof, machinery will be in place for that defendant to make the payment into court to meet the plaintiff’s claim which, under the present practice, will have to be quantified and contained in a Statement of Damages served together with the Statement of Claim.  Obviously there can be occasions when a defendant can have difficulties or hindrances by way of evidence, be it a medical evidence, expert evidence or even factual evidence, and that such obstacles or hindrances may take time to overcome.  However such obstacles, in my view, poses a difficulty to a defendant to calculate or quantify the amount of the payment in rather than prevent or be an obstacle to making a payment into court.  There may also be instances where such an obstacle to calculation is so insurmountable by a defendant then it makes it almost impossible for the defendant to quantify a payment into court.  It is a matter of degree in each case. 

9. My reading of the proviso to Order 22 rule 14 is that the wording of it cannot be so widely construed as to encompass situations where as here a defendant says that he could not make a payment into court because of difficulty only in quantifying the amount to be paid into court.  In the present case the defendants say that their difficulty was getting the plaintiff to be examined their orthropaedic expert, but in the light of the earlier report from Dr Lam dated 29 November, I am not persuaded that the defendants even had such difficulty in quantifying the amount as at 19 June 2002, the date of the Calderbank letter much less making a payment into court. 

10. Accordingly in the present case when the defendants’ payment into court the total amount of which falls quite significantly short of the judgment sum found in favour of the plaintiff, it cannot be right for the court to take account of the “without prejudice save as to costs” offer of the defendants in their letter dated 19 June 2002 to vary the costs order nisi.  In the circumstances the court order nisi will stand and will be made absolutely. 

[Submissions on costs of the hearing]

11. Insofar as costs of this application is concerned, the defendants accept that they cannot resist costs, however they do resist that costs be paid on the common fund basis as asked for by the plaintiff.  The defendants must have known that in bringing this application on the basis that it was brought in the light of their having a medical report from Dr Lam Kwong Chin as early as 29 November 2000 made this application quite unmeritorious.  Although what I have been told by Mr Clough for the plaintiff as to the judgment sum being kept in the Government’s treasury and thereby not generating interests for all this time pending this application, was not directly due to any act of the defendants, however it cannot be denied that it was still an indirect consequence of the defendants bringing this application which was devoid of merits.  Costs of this application is therefore to be paid by the defendants to the plaintiff on common fund basis. 

12. The costs order nisi has been made absolute.  The costs order that I am making now is the costs relating to this application and that is to be on common fund basis, which relates only to this application.