FUNG CHEUK LAU v. CHAN HON CHIU AND OTHERS

BETWEEN

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REASONS FOR DECISION

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1. This is the plaintiff’s application for an order that the costs of this action be taxed at the High Court scale.  The defendants oppose this application.

2. In the action for personal injuries, the plaintiff claimed against the defendants for the total amount of HK$2,136,055.  The defendants paid $400,000 into court.  Parties then reached a settlement whereby the plaintiff accepted $700,000 in full and final settlement of his claims.  It is a term of the settlement agreement that the $400,000 held by the court be paid to the plaintiff.  The parties were unable to reach an agreement as to the scale of costs of this action.  The defendants maintained that the scale should be the District Court Scale.

3. Having considered the written submissions of both parties together with the enclosed documents and authorities, I have come to a conclusion that the costs for taxation of this action should be the High Court Scale.  The followings are my reasons.

4. I do not agree with plaintiff’s counsel’s submission that by virtue of the defendants making payments into court, the scale of costs should be the High Court Scale by reference to the judgment of D.J. Chan in Wellegant Development Ltd. v. Fine Telecom Ltd. & Others HCA 132/2001 (unreported).  In that case the plaintiff accepted that payment-in in accordance with Order 22.  The court considered that by operation of Order 62 rule 10(2) and Rule 9(1), the costs had been determined by the Rules to be the High Court Scale.  The plaintiff did not accept the payment in and the aforementioned orders do not apply here.  Therefore the burden is on the plaintiff to persuade this court that it was reasonable for the plaintiff to start the action in the High Court at the time of issuance of the writ.  Lai Ki v. B+B Construction Co. Ltd.

5. Defence counsel submits that PSLA should be $250,000.  The plaintiff claims for $450,000.  The plaintiff suffered from serious head injury and was admitted in the intensive care unit of the hospital.  The case referred to me by defence counsel was not on head injury.  Plaintiff’s counsel refers me to 2 similar cases of head injury of less severity with the PSLA assessed to be $500,000 and $400,000.  I accept plaintiff’s counsel’s argument.  The PSLA should be $450,000.

6. I do not attempt to make assessment of damages of this action.  It is not necessary for me to do so for this application.  Having considered the arguments put forth by counsel for both parties, I say that it will be unreasonable to adopt the assessment of defence counsel for the pre-trial loss of earnings and the future loss of earnings, which are $36,600 (2 month’s wages) and nil respectively.  This can be clearly seen from the joint medical report in which Dr. Wong takes the view that the plaintiff’s neck pain may affect his concentration span during driving; he has difficulty in lifting and carrying heavy objects and it is difficult for him to turn his neck to watch the road condition during driving.

7. All in all, I find that it was reasonable for the plaintiff’s legal advisor, upon the medical evidence and other evidence available, to advise the plaintiff to start this action in the High Court.

8. According I give an order nisi for costs to the plaintiff, to be absolute after 14 days from the pronouncement of this Decision.  Such costs shall be assessed unless otherwise agreed between the parties.  For assessment of the costs, the plaintiff shall file and serve a schedule of costs (sample form available from court) within 7 days after the order becoming absolute under Order 42 rule 5B(6).  The defendants shall within 7 days thereafter file and serve the opposition and the hearing be fixed on a date with time estimate of 15 minutes.