LEE TSZ KIN KEN v. CLIMAX PAPER CONVERTERS LTD

HCPI000504A/2003

HCPI 504/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.504 OF 2003

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BETWEEN
LEE TSZ KIN KEN Plaintiff
AND
CLIMAX PAPER CONVERTERS LIMITED Defendant

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Coram: Hon Tang J in Court

Dates of Hearing: 9 and 10 June 2004

Date of Further Written Submission by the Plaintiff: 10 July 2004

Date of Further Written Submission by the Defendant: 8 July 2004

Date of Ruling on Costs: 23 July 2004

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RULING ON COSTS

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1. After a two-day trial, I gave judgment in favour of the plaintiff in the net sum of $14,973.84 after deduction from employee’s compensationof $328,290.00. The employee’s compensation award was made on 28 May 2003 after the commencement of this action. However, the actioncould have been transferred to the District Court if the plaintiff’s claim did not exceed $600,000.

2. On 20 April 2004 the defendant paid $20,000.00 into court. As the net amount recovered is less than $20,000.00, the parties are agreedthat the defendant should have the costs after that date on the High Court scale. It is also agreed that the plaintiff is entitledto the costs prior to the payment in. However, they differ on the scale of the defendant’s costs. The plaintiff submits that he shouldbe awarded costs on the High Court scale or at least the District Court scale. The defendant contends that the plaintiff’s costsshould be on the Small Claims Tribunal scale.

3. Mr Li, for the plaintiff, has submitted that the test is whether the court accepts at the commencement of the action, it is clearto a reasonable person in the position of the plaintiff that no judge would award less than $600,000 (the jurisdiction of the DistrictCourt was only raised to $1,000,000 on 1 December 2003). That was the approach favoured by Seagroatt J in Lai Ki v. B+B Constrcution Co Ltd [2003] 3 HKC 322, paras.11, 12 and 21.

4. In this case, I have found that the plaintiff has exaggerated his disabilities. This is not a case where I simply preferred the evidenceof one medical expert to another. A reasonable person in the position of the plaintiff would probably not have exaggerated his disabilitiesand, on the basis of his actual disabilities, he would probably think that the prospect of recovering more than $600,000 quite poor.However, I am prepared to accept that such a person might think that he has a reasonable prospect of recovering more than $50,000(the jurisdiction of the Small Claims Tribunal).

5. In all the circumstances, I would award costs in favour of the plaintiff on the District Court scale up to the date of payment in.Thereafter, the defendant is to have his costs on the High Court scale. All costs to be taxed, if not agreed. The plaintiff is onlegal aid. The plaintiff’s costs are to be taxed in accordance with the Legal Aid Regulations.

(Robert Tang)
Judge of the Court of First Instance
High Court

Representation:

Mr C.Y. Li, instructed by Messrs Au Yeung, Cheng, Ho & Tin, assigned by Director of Legal Aid, for the Plaintiff

Mr Albert Yau, instructed by Messrs Henry H.C. Wong & Co., for the Defendant