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Introduction
Welcome to the May edition of the Personal Injury and Fatal Accident Brief, where we highlight a recent decision where a defendant was ordered to pay indemnity costs for failing to beat Plaintiff's sanctioned offer, and whether infant Plaintiff's costs must be taxed on common fund basis.
Recent decisions show that the courts are making great use of costs sanctions to penalise parties for failing to settle before trial. The recent case of Fung Wing Yee (HCPI 657/2007) is another example of the court awarding indemnity costs and enhanced interest against a defendant because the judgment sum was more than the plaintiff's sanctioned offer.
In this case, the Defendant argued that such orders would be unjust since their solicitors needed more time to take instructions on the Plaintiff's sanctioned offer, their insurers being Anglo-Starlight. Further documents were also served by the Plaintiff after the sanctioned offer had been made and an enhanced costs order would deplete the MIB fund, which was against the public interest.
The court refused to accept such submissions and ordered the Defendant to pay enhanced interest and costs on indemnity basis.
In the same case, the Plaintiff asked for her costs to be taxed on common fund basis (an enhanced rate) since she is a minor, being sued by her friend. It has long been the general practice for courts to award costs on common fund basis to successful infant and patient plaintiffs.
However, in this case, the court held that this principle only applies to cases that are settled or compromised. If the case goes to trial and damages are awarded, there can be no doubt on the adequacy of the award and therefore, there is no need to order costs to be taxed on common fund basis. They should just be taxed on the usual party and party basis.
We are always looking for feedback so please feel free to email us your comments and/or suggestions for this newsletter.
Kelly Wong Meiling Yip
Partner Partner
k.wong@kennedys.com.hk m.yip@kennedys.com.hk
+852 2848 6306 +852 2848 6328 |
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Key Contacts
Kelly Wong
k.wong@kennedys.com.hk
 Meiling Yip
m.yip@kennedys.com.hk
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| Case Summary |
Plaintiff's Name |
Natue of Injury |
Award for PSLA/Total Award |
Award for Loss of Future Earnings |
Date of Judgment |
Ng Kai Man Samuel
HCPI 314/2008
DoA: 09/05/2005 |
Injury to right thumb as a result of examining crane parts on a barge |
$200,000 / $1,860,179 |
$858,816 |
08/04/2010 |
Leung Kwok Lung (P1)
and
Wong Hin Tat William (P2)
DCPI 2076/2007 &
DCPI DCPI 1521/2008
(Consolidated)
DoA: 13/07/2005 |
Injuries suffered by P1 from traffic accident resulting in fracture of the left tibia, contusion of the left hip and left knee, spraining of the right wrist and multiple abrasions |
$180,000 / $308,114 |
$46,641 (based on 3 months lost of earnings) |
14/04/2010 (Judgment handed down – Date of hearing: 09/02/2010) |
Chu Hon Chong
HCPI 541/2008
DoA: 16/09/2006 |
Multiple injuries suffered from a traffic accident resulting in fracture of fibular head, left knee; fracture base of the first metacarpal of the left thumb; fracture navicular, a tarsal bone of the left foot; and multiple abrasions |
$350,000 / $1,106,753 |
$324,000 |
14/04/2010 (date of hand-down of judgment and 02/02/2010 & 19/03/2010 – dates of trial) |
Leung Yun Keung
HCPI 457/2008
DoA: 12/04/2006 |
Injuries to right eye as a result of hitting against a rolling shutter gate |
$520,000 / $1,272,111 |
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30/04/2010 |
Chung Kin Ying
DCPI 1262/2009
DoA: 20/06/2006 & 11/07/2006
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Sprained back and adjustment disorder resulting from removal of heavy furniture |
$180,000 / $361,005.20 |
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30/04/2010 |
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