SUN JIANQIANG v. CHAN TAI KAU AND ANOTHER

HCPI 1375/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1375 OF 2000

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R U L I N G

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1.  I need to decide the question of interest in respect of the Plaintiff’s damages consequent on my judgment handed down on 16 March this year.  Both parties have filed submissions, supporting calculations and other relevant documents for which I am grateful.

2.  There is also the matter of the calculation of the Plaintiff’s special damages about which I did not have all the material when preparing my judgment.  This has now been provided and special damages as calculated by the Plaintiff’s solicitors and agreed by the Defendants’ solicitors are $178,038.

3.  On interest, the dispute relates to the period over which interest should run.  Perfectly reasonably the Defendants’ solicitors point to the fact that the trial took place nine years after the writ was issued and eight years nine months after judgment on liability was entered against the Defendants’.

4.  It is therefore submitted that one might reasonably have expected the assessment of damages to have been concluded within two years of the judgment on liability that is to say by early 2003.  

5.  I have been provided with a chronology by the Defendants’ solicitors.  This shows that there was brisk activity in 2001.  Judgment on liability was entered in January and by April that year the Plaintiff had applied for interim damages which also required an appeal to be heard from the Master to the Judge.  There was then an eight month hiatus from 11 April 2001 to 27 January 2002 when the Plaintiff filed his witness statement.  Thereafter, nothing happened for three yeas and seven months until 20 September 2005 when the Defendants’ applied to strike out the claim for want of prosecution.  This was heard on 6 February 2006.  The Master held that there had been inordinate and inexcusable delay but dismissed the application to strike out the claim on the basis that the Defendants had not proved prejudice.

6.  On 15 March 2006, there was a check list review hearing after which in April 2006 the Plaintiff filed a second list of documents followed by an eight month delay until the Plaintiff filed his revised statement of damages which occurred in November 2006 to which the Defendants’ replied in quick order the following month.

7.  2007 moved along reasonably productively and by September 2008 the assessment was fixed for hearing before Master Ko.

8.  This was preceded by alot of skirmishing about further medical examinations which caused further delay.  The original hearing date was then adjourned because the Plaintiff said that he had suffered a breakdown in the medical condition of his leg and eventually the matter came on for trial, in rather leisurely fashion, in October and November 2009.

9.  I am afraid that this unimpressive catalogue of delay is all down to the Plaintiff.  I am in agreement with the submission that the period of interest should be curtailed by a significant margin.  Nevertheless, I do not think restricting the period to two years is correct.  I consider that this case should have been over and done with no later than five years after the entry of judgment on liability, that is to say by 8 January 2006.  

10.  Interest will therefore be calculated on that time frame.  It will run at 2% on pain, suffering and loss of amenity from the date of service of the writ until 8 January 2006 being the notional date of judgment, and for special damages at half the prevailing judgment rate from the date of the accident again to the notional date of judgment which is the 8 January 2006 and thereafter at the judgment rate from the actual date of judgment [16 March 2010] until the date of payment.

11.  The calculation of interest will exclude EC payments [$242,199.88 + $330,000], medical expenses paid by the Defendants’ [151,721.99] and interim damages of $150,000, which comes to a total of $873,913.78.

12.  This should be sufficient to enable the Plaintiff’s solicitors to make the appropriate calculations after which the judgment can be entered into the Court’s record.

13.  I will also say that there will be no order for costs as to the preparation of the materials submitted by the parties for this ruling save for legal aid taxation of the Plaintiff’s costs.