LEUNG WAI KEUNG v. CHOI YEE MAY, THE PERSONAL REPRESENTATIVE OF CHOI KWOK PING, DECEASED trading as CHOICE OPTICAL CENTRE HCPI 917 / 2005

S’s words:-

The Plaintiff failed his claim on the issue of quantum with the issue of liability not in dispute. The employees’ compensation award was about HK$1.5 million. Such a huge amount for ECC compensation so received by a plainitff do make me feel surprising. If we understand about the formula for ECC claims well, it is too difficult to get an ECC award for such a huge amount bearing in mind in particular the plaintiff was very much over 50 years old at the time of the accident. Thus, one should have expected that the ECC award (which I believe the same was settled without a trial) did have at least partially taken into account of the common law claim (which later became the subject matter of this action).

I have no idea how the ECC award was so resolved but one should be careful as to how to proceed with a common law claim incidental to the same accident. If I were given the opportunity to handle such a case, Counsel’s advice to give a more precise estimate of the quantum was highly preferred even at pre-action stage. Certainly, only the handling solicitor/counsel would be in the best position to make comments or better estimate to the quantum of a claim.

Last to say, it is quite unusual for a defendant choosing to defend an action without any offer or payment into Court with the issue of liability being entered. If such settlement proposals was/were given to the plaintiff, the plaintiff might be regarded as having a hopeless case even before the assessment hearing. In any event, the case was just decided, it is not known yet whether the plaintiff would choose to appeal against the decision.

--- quote from judgment ---

Date of Judgment : 31 October 2008

1. By the Writ of Summons filed on 30 September 2005, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages sustained in the course of employment arising out of negligence and breach of contract of employment and statutory duty of the Defendant, its servant or agents at Shop G33, Ground Floor, Empire Centre Shopping Arcade, Tsimshatsui East, Kowloon, Hong Kong (“the Shop”) on 19 May 2003.

2. Interlocutory judgment on liability was obtained on 10 May 2006 with damages to be assessed.

3. The Plaintiff was born on 30 September 1949. He was almost 54 at the time of the accident. He is 59 at the time of this assessment.

87. Credit must be given to the sum of $1.5 million received by the Plaintiff in the Employees Compensation Claim. The award is less than the compensation received by the Plaintiff under the Employee Compensation Claim.

(i) Costs for the hearing on 6 March 2008
89. This assessment was first listed before me on 6 March 2008. The Plaintiff, then represented by Mr. T. Wong of Counsel instructed by Messrs. Yip, Tse and Tang, made an application for adjournment on the ground that the Plaintiff had a hoarse voice and was unable to give audible evidence. Mr. Sakhrani opposed the application on the ground that the Plaintiff’s complaint was not a genuine one. There was no medical evidence before me to support or contradict the Plaintiff’s complaint. I granted the application and with costs reserved. I also observed that it was very likely that I would order costs against the Plaintiff. Yet, should the Plaintiff be in the position to produce medical evidence to support his complaint was a genuine one, the position would be different.

90. Up till now, there is no evidence to support the complaint of the Plaintiff on 6 March 2008. The Plaintiff sought the adjournment and should bear the costs. Although there is no need for me to make any order in the light of the costs order made hereinbelow, ...