LU GUO XIANG v. HONG KONG MING WAH SHIPPING CO LTD

HCPI 254/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 254 OF 2006

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JUDGMENT (No.2)

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1. On 17 December 2008, I gave judgment for the plaintiff on liability after the trial on liability only.

2. It was clearly agreed between the parties that only three issues were involved in the trial on liability as follows :

(1)  whether the court should exercise its discretion under section 30 of the Limitation Ordinance (Cap.347) that the provision of section 27 barring the plaintiff’s action should not apply in this action;

(2)  whether the plaintiff’s contractual claim under the ITF contract is time-barred; and

(3)  whether the defendant is negligent or in breach of its implied terms of employment.

3. At the trial, the court and the plaintiff were repeatedly assured by counsel for the defendant that the only issue under the ITF contract is whether this claim is time-barred.

4. At the time of pronouncing the judgment immediately after the hearing at the trial on 17 December 2008, I pronounced my conclusion that the plaintiff’s claim under the ITF contract is not time-barred, Mr Tim Kwok, counsel for the plaintiff, immediately sought clarification from the bench as to whether it is the judgment of the court that the defendant is liable under the ITF contract.  To that enquiry, this court has clearly stated that since the only issue under this claim on ITF contract is whether the claim is time-barred and the court has decided in favour of the plaintiff that his claim is not time-barred, the defendant is therefore liable to the plaintiff under the ITF contract. 

5. Unfortunately when the judgment was sealed on 7 January 2009, the plaintiff only drafted the judgment in respect of the ITF contract that :

“2.  The plaintiff’s claim under the ITF contact is not time-barred.”

6. In fact, in order to reflect the actual decision and judgment of the court, this paragraph should go on to state :

“… and the defendant is therefore liable to the plaintiff under the ITF contract.”

That would put an end to any ambiguity. 

7. On 9 January 2009, I handed down my “Reasons for Judgment”.  Since the only issue as agreed by the defendant is whether the plaintiff’s claim has been time-barred, and I have considered this issue in favour of the plaintiff; therefore I said at paragraph 41 :

“… I consider that there is no time bar in respect of the plaintiff’s claim under the ITF contract.”

8. Since this is only my “Reasons for Judgment”, once the only issue is resolved in favour of the plaintiff, the defendant is liable to the plaintiff as surely as night follows day.  There is no need in the Reasons for Judgment to state that the defendant is therefore liable to the plaintiff under the ITF contract, though with the benefit of hindsight, this could be spelled out in order to remove any ambiguity.

9. It was further adjudged in the judgment that damages should be assessed on a date to be fixed.  Consequently parties appeared before Recorder Fung on 29 July 2009.  At that hearing, Mr Tim Kwok appeared for the plaintiff and he submitted a skeleton opening.  Unfortunately there were a number of misunderstandings on the part of Mr Kwok, counsel for the plaintiff.  First, he stated that :

“… Judgment for the Plaintiff was given on 9 January 2009 after 10 days of hearing…”  

The judgment was actually pronounced and entered on 17 December 2008 immediately at the end of the trial.  It was not the case that the judgment was given on 9 January 2009.  The court only handed down its Reasons for Judgment on 9 January 2009.

10. This misunderstanding on the part of counsel for the plaintiff is also evidenced by his recent submissions before me dated 29 October 2009 in which he said in paragraph 102 :

“The Plaintiff seeks the Judgment dated 7 January 2009 [Bundle A—A111] be amended to reflect this Court’s Judgment or intention … ”

11. The judgment, as I have said, was pronounced and dated 17 December 2008 as stated in the document at p.A111 :

“dated and entered the 17^th day of December 2008” 

The date 7 January 2009 is only the date when the judgment was sealed and this date appeared by the date chop immediately under the seal of the High Court.  9 January is the date of handing down “Reason for Judgment” and therefore this is also not the date of judgment. 

12. Consequential to the aforesaid mistake on the part of counsel for the plaintiff, he said in his skeleton opening before Recorder Fung SC that :

“6.  For the contractual claim, Yam J held that there was no time bar to stop the Plaintiff from pursuing the action.  However, no declaration has been made to render the Defendant liable to pay contractual compensation/damages in accordance with the specific provisions of the employment contract as set out in the Further Re-Amended Statement of Claim.  By its Further Re-Amended Defence, the Defendant disputes its obligation to pay compensation/damages under such specific provisions.  Liability for breach of such specific contract provisions remains to be tried. 

7.   This Assessment Hearing accordingly concerns the PI common law claims only.”

13. The aforesaid submissions of counsel for the plaintiff cannot be further from the truth.  Mr Kwok obviously had forgotten that the defendant had conceded liability under the ITF contract should the court find that there was no time bar to that contractual claim.  The reason why there was no declaration in the judgment to render the defendant liable to pay contractual compensation/damages in accordance with the specific provisions of the ITF contract was because they did not enter judgment for such a declaration when they applied to have the judgment dated 17 December 2008 to be sealed.  The court has already pronounced on 17 December 2008 that the defendant is liable under the ITF contract.  The assessment of damages therefore should not concern with the personal injury common law claims of the plaintiff only. 

14. The defendant sought to argue that (paragraph 58) :

“… if D lost the time-bar issue ‘D is liable under the ITF contract’ or ‘D is liable for the ITF contract’ have to be understood.  In such context, or those words meant was no more than that the ITF contract would apply and D would be liable to honour the obligations imposed by the ITF contract.  They did not mean that D was liable for breach of the obligations imposed by the ITF contract, and in particular those imposed respectively under clauses 17 and 21.”

15. I do not see how the defendant can submit that even if the defendant is liable to honour the obligations imposed by the ITF contract, it was not liable for breach of the obligations imposed by the ITF contract.  In fact, the exchange between counsel and the bench after oral judgment was pronounced on 17 December 2008 is quite clear in this respect :

“Mr Kwok :    … I wonder if that would impliedly follow that the defendant is liable to the plaintiff under the ITF contract.  

Court :     Yes. 

Mr Kwok :   That would follow.

Court :   Of course.  If there is no time-bar, you’re liable.”

16. The last line should read “they’re liable” meaning the defendant company is liable.

17. By reason of the aforesaid analysis, it is unnecessary to explore the legal principles involved in amending a judgment of the Court.  In the present case, the intention of the Court is clear and therefore it obviously has the jurisdiction to amend the sealed judgment to reflect its intention.

18. Another incidental matter is whether the plaintiff is still entitled after the liability judgment to rely on the Purple Amendments to the Statement of Claim.  Chronologically the plaintiff’s amendments in respect of his statement of claim are as follows :

(1)  18.04.2008   The Red Amendments introducing the ITF contract claim was made by consent.

(2)  22.11.2008   At the PTR the Green Amendments was made without opposition from the defendant.

(3)  12.06.2009   The plaintiff filed its summons for the Purple Amendments.

(4)  25.06.2009   Mr Albert Yau, counsel for the defendant filed a written skeleton for the hearing on the next day stating clearly that the defendant’s only objection to the plaintiff’s summons was that there should be a stay of the quantum hearing pending the defendant’s appeal.

(5)  26.06.2009   Court ordered in terms of the plaintiff’s summons for the Purple Amendments upon no objection from Mr Yau for the defendant.  Thereafter the defendant never appealed against the order allowing the Purple Amendments.

19. By reasons of the aforesaid matters the plaintiff is entitled to have damages assessed in the quantum hearing based on the Purple Amendments.

The 2^nd summons dated 12 August 2009 (F&B summons)

20. In paragraph 26E of the defendant’s further Re-amended Defence dated 17 July 2009, the defendant pleaded that the plaintiff had waived the overtime payment, paid leave and subsistence allowance, etc. under the Seaman’s Employment Contract/the ITF agreement.

21. On 6 August 2009, the plaintiff sought further and better particulars on all facts and material relied on by the defendant to establish the alleged waiver. 

22. There is no longer any issue on this summons except as to costs thereof.  The F&B particulars sought were answered by the defendant.

23. On the question of costs, the defendant pointed out that the plaintiff’s first request for the further and better particulars was on 6 August 2009.  There and then, he has unreasonably fixed 7 days deadline for the reply of the further particulars.  The defendant’s solicitors has already stated by their letter dated 11 August 2009 that they would reply to this request, but they asked for 14 days, i.e. until 20 August 2009.  

24. However the plaintiff issued a summons on 12 August 2009 and that was even before the expiration of the stipulated 7 days deadline on 13 August 2009.  On 13 August 2009 the defendant informed the plaintiff of its agreement to provide an answer to the plaintiff’s request.  Eventually the further and better particulars were furnished on 17 August 2009.

25. In this respect I agree with the defendant that the plaintiff acted prematurely in issuing the summons even before the expiration of the 7 days stipulated by the plaintiff’s side.  When the further and better particulars were furnished, the plaintiff should immediately withdraw the summons. 

26. For the aforesaid reasons I think the defendant is entitled to costs under the 2^nd F&B summons.

The 3^rd summons for quantum hearing to be reserved to and fixed before Yam J

27. In light of the quantum hearing before Recorder Fung, the plaintiff has to spend some time in informing the judge as to the background and the findings in the liability trial.  It was also due to the mistake of Mr Tim Kwok for the plaintiff as aforesaid.  The plaintiff therefore requested that the assessment of damages, as a matter of expeditious disposal of the matter, should be fixed before me.  The defendant in this respect alleged the plaintiff of forum shopping. 

28. I have in the past, before the hearing before Recorder Fung, indicated that any forum is appropriate to assess the damages.  However when the case developed up to this stage, I must say that in the interest of justice, if the assessment of damages is heard before me, it would save a lot of costs as I am more familiar with this case.  I therefore order in terms of the 3^rd summons that the assessment of damages should be fixed before me as soon as possible after the hearing of the appeal on liability. 

Conclusion