LAU KAM TAI v. UNITED SOUNDFAIR ENGINEERING CO. LTD AND OTHERS

HCPI436/96

IN THE HIGH COURT OF THE

HONG KONG SPEICAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.436 OF 1996

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R U L I N G

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1. I gave judgment in this matter on 13th April 1999. Before the judgment was drawn up and perfected, my attention was drawn by the Director of Legal Aid to certain matters which were factually incorrect in my judgment. I therefore heard the parties in further submission on 8th May 1999.

Jurisdiction

2. The normal practice where a judgment has been drawn up and perfected is that a Court's jurisdiction to vary same will be confined to cases of accidental slip or omission and/or clerical inaccuracy or mistake. If, however, the order has not been drawn up, whether made in chambers or in open court, the position is quite different. It is within the powers of a judge to alter his judgment at any time before it is entered and perfected.

3. That the judge had such a power to do so was recognized by Jessel M.R. in the case of Re St. Nazaise Co. [1879] 12 Ch. D. 88 where he said at page 91 :-

"A judge can always reconsider his decision until his order has been drawn up."

This was also recognized to be so in the case of Re Suffield and Watts [1888] 20 Q.B.D 693 where Esher M.R. said at page 696 :

"He made the order of April 6 under the jurisdiction conferred by the Solicitor's Act, and after he had once made it, and it had been drawn up and perfected, he had no jurisdiction to alter it."

4. This is still the practice today as can be seen in the White Book in marginal note 42/1/4 under the heading "Effect of judgment before entry". It is clear from that and from the above cases that the Courts do have such jurisdiction.

5. The exercise of that jurisdiction is, however, quite a different matter. It was held in In re Barrell Enterprises [1973] 1 WLR 19 by the Court of Appeal in England that save in the most exceptional circumstances a matter could not be re-opened where oral judgments had been given even though the order had not been passed and entered.

6. This was followed by the Court of Appeal in Hong Kong in the case of The Association of Expatriate Civil Servants of Hong Kong v The Secretary for the Civil Service and The Secretary for Justice (unreported) Civil Appeal No.260 of 1995 where at page 2 of the judgment, Mortimer V-P, delivering the judgment of the Court, said :-

"The point taken is that the judgment of this Court has not been perfected and therefore it is open to him to make such an application. Let me say at once that there is no doubt whatsoever that the court has such a power. The court has power to hear a party before the judgment is perfected as it is not function. However, the circumstances in which a court will entertain such an application are very limited indeed."

The Application

7. Having heard the parties in further submission, I have reached the conclusion that there are two matters which I need to re-consider.

8. The first concerns the amount of $144,000 being the sick leave payment paid to the Plaintiff by his employers during the period of the Plaintiff's sick leave. It is now common grounds between the parties that this amount of $144,000 had already been taken into account when the amount of employees compensation was paid to the Plaintiff in 1998. Not being appraised of this fact, I had therefore wrongly deducted once more the sum of $144,000 from the pre-trial loss of earnings assessed by me in my judgment.

9. Since this is now common grounds accepted by both parties, the redress to it should rightly be by the application of the "slip rule" under O.20, r.11. In any event justice would require this error to be put right in whatever way it is to be looked at.

10. Secondly, it has also been drawn to my attention by the Plaintiff's counsel that the Plaintiff was granted sick leave up till 12th March 1996, and not, as stated by me in my judgment up to only early June 1995. Admittedly there are sick leave certificates in the Agreed Bundle of Documents before the Court certifying that the Plaintiff was granted sick leave up to 12th March 1996. Unfortunately I was misled by the medical report of Dr W.Y. Shen of the Department of Onthopaedics & Traumetology of Queen Elizabeth Hospital dated 6th March 1995 that the Plaintiff was granted sick leave up to 6th June 1995.

11. Besides these two matters, there were other matters raised by both the Plaintiff and the Defendant at the further hearing with a view to asking me to amend my judgment in relation to those matters. These other matters include the daily wage of the Plaintiff at the time of accident, the number of days he did work in a month, as well as whether interests should be awarded for pre-trial loss of earnings and special damages. Suffice it to say that all these other matters had been canvassed before me at the trial proper and I can see no good grounds or reason for me to amend my judgment in relation to them.

12. I shall therefore restrict amendment of my earlier judgment to only the two matters mentioned above, namely, the duplicated deduction of the sick leave payment of $144,000 and the sick leave period granted to the Plaintiff.

13. Taking these two matters into account, the pre-trial loss of earnings will be re-assessed as follows :-

1. From accident up to the sick leave granted, namely 34 months

24 days x $500 x 34 months = $408,000.00

2. From end of sick leave to trial, namely 37 months

24 days x $150 x 37 months = $133,200.00

Totally, the pre-trial loss of earnings comes to $541,200.00.

14. In the light of this re-assessment for pre-trial loss of earnings, the amount of interests awarded for pre-trial loss of earnings and agreed special damages, being 5.75% from accident until judgment, will need to be re-calculated. This comes to $191,424.30.

15. With the above amendments the total quantum should now read :-

PSLA	$250,000.00
Pre-trial loss of earnings	$541,200.00
Agreed special damages	$13,653.00
Future loss of earnings	$432,000.00
Future medical expenses	$6,000.00
Interests on PSLA	$15,000.00
Interests on pre-trial loss and agreed special damages	$191,424.30
Total quantum :	$1,449,277.30
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16. Deducting one-third for the Plaintiff's own contributory negligence from this sum gives $966,184.90. Further deducting the amount of Employee's Compensation award of $495,196.00 from this sum gives $470,988.90.

17. I shall therefore amend my earlier judgment amount and give judgment instead to the Plaintiff in the sum of $470,988.90.

Costs Order Nisi of the Judgment

18. When I gave judgment in this matter on 13th April 1999, having found in favour of the Plaintiff, I made a costs order nisi that the costs of the action be to the Plaintiff to be taxed if not agreed.

19. The Defendants indicated that they wished to be heard on that costs order nisi. This was dealt with at the same time as the Plaintiff's application to amend my judgment.

20. Mr Leung for the Defendants submitted that the general rule that costs to follow the event should not apply in the case by reason of the Plaintiff's improper and unreasonable conduct in making the allegation (which he withdrew at the trial) of some worker spraying the concrete mound with water and his exaggeration of his medical condition.

21. In this connection, I can do no better than re-iterate the judgment of Kekewich J. in the case of Lipman v George Pulman and Sons Ltd. (1904) 41 L.T. 132 where it was held that a successful plaintiff is entitled to the costs of the action unless one of two exceptions can be established, namely, if firstly, there are separate and distinct issues and the plaintiff fails on one, then he may be ordered to pay the costs of that issue on which he fails, or secondly, if he is guilty of misconduct directly connected with the subject matter of the action.

22. In the present case, there is only one issue before the court, whether or not the Defendants were negligent towards the Plaintiff resulting in the Plaintiff's injuries. The Plaintiff may have failed in one particular of negligence but nevertheless succeeded in proving negligence of the Defendants at the end of the day.

23. In these circumstances, and in the absence of any indication that the Defendants had made payment into Court sufficient to cover the damages awarded, I see no reason to depart the general rule that costs should follow the event.

24. Accordingly the original costs order nisi shall stand as the costs order as I do not see fit to make any amendments thereto.

Costs of this hearing

25. As this further hearing was necessary to amend the errors in my earlier judgment and the Defendants have failed on all the points taken by them at this further hearing, I shall order the costs of this hearing be paid by the Defendants to the Plaintiff. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.