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HUSSAIN BASHARAT v. 曾慶裕 AND ANOTHER

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100697-EN-2015-09-29

HUSSAIN BASHARAT v. 曾慶裕 AND ANOTHER

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DCPI 508/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 508 OF 2012

------------------------------------

BETWEEN
	HUSSAIN BASHARAT	Plaintiff
and
	曾慶裕	1^st Defendant
	TSANG KWOK KEUNG	2^nd Defendant

------------------------------------

Coram: Deputy District Judge L C Cheng in chambers (open to public)

Date of Hearing: 20 July 2015

Date of Judgment: 29 September 2015

----------------------

DECISION

----------------------

Application

1. My Judgment in this case was handed down on 1 June 2015. In my Judgment, I held that the 2^nd defendant was not liable in this case and ordered, on a nisi basis, the plaintiff to pay costs to the 2^nd defendant regarding those costs between them.

2. By a summons dated 15 June 2015, the plaintiff applied to vary the costs order I made. The plaintiff’s application is to vary the costs order nisi between the plaintiff and the 2^nd defendant to the extent that the 2^nd defendant do pay the plaintiff’s costs of the proceedings with enhanced interest.

3. In this Decision, I shall not repeat the factual background of this case, which is covered in my Judgment. In a nutshell, the plaintiff’s case is that he sustained personal injuries due to the negligent driving by the 1^st defendant. The van involved was owned by the 2^nd defendant. After trial, I decided that the 2^nd defendant was not liable as I accepted that he was not vicariously liable for the negligent act of the 1^st defendant. In particular, I accepted that he had a contractual relationship with the 1^st defendant through a rental (or leasing) agreement (§§ 8-18 of my Judgment).

4. Ms Chung, solicitor appearing for the plaintiff, submits that the 2^nd defendant acted unreasonably by deliberately withholding the rental agreement contrary to the underlying objectives set out in Order 1A, rule 1 of the Rules of District Court. She also comments that the 2^nd defendant had failed to provide information including documents regarding the identity of the driver and the insurance policy and caused a significant increase in the length or costs of the proceedings.

Identity of the 1^st defendant and the rental agreement

5. Ms Chung points out that at the outset, the plaintiff did not know the identity of the 1^st defendant, ie, the driver. Having sent various letters to the police from May 2011 to January 2012 and after making a phone call on 19 March 2012 to the police, the police still refused and/or failed to disclose the name of the 1^st defendant. After reading the correspondences, I accept that the plaintiff was unable to know the correct name of the 1^st defendant and the insurer of the vehicle from the police.

6. Ms Chung further submits that from 22 August 2011 to 29 May 2012, the plaintiff was again unable to learn the identity of the 1^st defendant through the communication with the 2^nd defendant and/or his solicitors, Lim & Lok. In particular, by a letter dated 18 May 2012, Lim & Lok wrote to the solicitors for the plaintiff and said,

“We hereby confirmed that our client has no document showing the name of the driver …. and has no rental agreement between the owner of the public light bus and the driver.” (my emphasis)

7. Having read those correspondences, I am satisfied that the plaintiff was not only left in darkness as to the true identity of the 1^st defendant but was also misled into belief that no rental agreement existed between the 1^st and 2^nd defendants.

8. In the circumstance, I understand why initially the plaintiff commenced this action against the 2^nd defendant only and pleaded that the 2^nd defendant was the driver of the vehicle at the time of the accident.

9. It is true that in §4 of the Defence, which was filed in October 2012, the name of the 1^st defendant was stated. §6 of the Defence mentioned the rental agreement and averred that the 2^nd defendant was neither the principal nor the employer of the 1^st defendant. By then, the 2^nd defendant’s case was clear.

10. On one hand, the plaintiff was “informed” by Lim & Lok, through the said letter dated 18 May 2012, that there was no rental agreement. On the other hand, after being served the Defence, the 2^nd defendant’s case was that a rental agreement existed. I find that at that juncture, the plaintiff would no doubt be very confused.

11. Ms Siu, counsel for the 2^nd defendant, concedes that a copy of the rental agreement was only provided to the plaintiff on 4 January 2013, ie, after the parties exchanged the list of documents in December 2012.

12. Hong Kong Civil Procedure 2015,Vol 1, clearly stated that,

“In the case of a wholly successful defendant the judge must award him costs unless there is evidence :
(1) That the defendant brought about the litigation; or
(2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense; or
(3) has done some wrongful act in the course of the transaction of which the plaintiff complains.” (§62/3/3)

13. Although costs should normally follow events, taking all the circumstance into account, particularly the misleading information contained in the said letter dated 18 May 2012, I have no hesitation in concluding that the 2^nd defendant brought about this litigation. The plaintiff was reasonable, or even necessary, to pursue this action against the 2^nd defendant prior to 4 January 2013.

14. However, after the “production” of the rental agreement, the 2^nd defendant’s case had been unfolded. The plaintiff could have decided to discontinue this case against the 2^nd defendant at that juncture and sought to apply for all costs incurred due to the misleading information provided by the 2^nd defendant. The plaintiff, in deciding to continue to pursue the case against the 2^nd defendant, has to accept that it has to bear the risk of the 2^nd defendant being able to prove its case successfully at trial, leading to the consequential risk of having to pay costs to the 2^nd defendant.

Information about the insurance policy

15. Another reason for applying to vary the costs order nisi relied upon by Ms Chung relates to the 2^nd defendant’s failure to provide information about the insurance policy and/or the identity of the insurer. Ms Chung submits that despite numerous enquiries, the 2^nd defendant had failed to clarify if a valid insurance policy existed and that led the plaintiff to believe that there was no valid insurance policy. Further, the 2^nd defendant filed an answer dated 30 May 2014 to the interrogatories in that the 2^nd defendant replied “No” to the question on whether insurance policy includes the name of the 1^st defendant and covers liability of the 1^st defendant. Ms Chung therefore submits that the plaintiff was misled to believe that there was no third party insurance at the material time. By a summons heard during PTR, the plaintiff did in fact applied to further amend its re-amended statement of claim to include a cause of action based upon the absence of a valid third party insurance. The application was granted but on the 1^st day of trial, the plaintiff decided not to pursue on that issue.

16. In reply, Ms Siu points out that the plaintiff has been well aware of the existence of a valid insurance in 2012. She refers me to a letter dated 17 April 2012 from Messrs Mayer Brown JSM, representing the Motor Insurers’ Bureau of Hong Kong, to the solicitors for the plaintiff. In that letter, it is clearly stated that,

“According to our investigations, the mini van was in fact covered by valid insurance at the material time of the accident.”

17. The plaintiff, in receipt of the said letter, should be fully aware that the van had “a valid insurance policy”. I therefore do not agree with Ms Chung’s submission that the plaintiff was misled into belief that there was no valid insurance at the material time. The plaintiff could have, and in my view should have, taken out application seeking information about details of the insurance policy by disclosing the said letter by Messrs Mayer Brown JSM. Unfortunately, the plaintiff decided not to take that course. Rather, the plaintiff applied to add a new cause of action during PTR but decided not to pursue during trial. That extra costs incurred was quite unnecessary and the 2^nd defendant should not be blamed for it.

18. In the circumstance, I do not agree that the 2^nd defendant’s conduct regarding the disclosure of the insurance policy would increase the length or costs of the proceedings.

Enhanced interest

19. I fail to see any basis for the plaintiff to apply for enhanced interest on costs. In fact, Ms Chung makes no submission on that. I do not see any sanctioned offer. In any event, there is no evidence in this case as to when the plaintiff was out of pocket in having to make payment on account of costs, or in having to actually put up funds for payment of his legal costs. I do not consider appropriate to order any enhanced interest on the costs incurred by the plaintiff.

Without prejudice correspondence

20. In the circumstance, 4 January 2013 should be the cut-off date. Costs incurred on or before that date should be borne by the 2^nd defendant. Costs after that date should be borne by the plaintiff.

21. The plaintiff, through a without prejudice letter dated 24 April 2015 to Lim & Lok, proposed to discontinue the action against the 2^nd defendant with no order as to costs. That letter was only issued almost immediately before the commencement of trial and substantial costs should have already been incurred by the 2^nd defendant since 4 January 2013. I therefore do not think the offer contained in that letter will affect my decision on costs.

Conclusion

22. Both parties failed to conduct their respective case properly. The 2^nd defendant gave misleading and inaccurate information to the plaintiff. The plaintiff took out unnecessary application. Taking all the circumstance into account, I decide that the plaintiff should be entitled to costs against the 2^nd defendant on or before 4 January 2013. The 2^nd defendant should be entitled to costs against the plaintiff after 4 January 2013.

23. I therefore vary the costs order I made as follows :-

(1)The 1^st defendant do pay costs of this action to the plaintiff (include all costs reserved, if any) to be taxed if not agreed.
(2)As between the plaintiff and the 2^nd defendant,
(i) the 2^nd defendant do pay cost to the plaintiff (include all costs reserved, if any) on or before 4 January 2013, to be taxed if not agreed;
(ii) the plaintiff do pay costs to the 2^nd defendant (include all costs reserved, if any) after 4 January 2013, to be taxed if not agreed, with certificate for counsel.
(3)The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulation.

Costs of this application

24. The costs of this application is a matter between the plaintiff and the 2^nd defendant only. The submissions by Ms Chung and Ms Siu clearly show that the plaintiff intended to apply for all the costs to be borne by the 2^nd defendant whereas the 2^nd defendant fully contested. Neither party has fully succeeded and nobody is the ultimate winner. Taking all the circumstance into account, I order that, on nisi basis, there is no order as to costs of this application. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulation. Application to vary should be made within 14 days, otherwise, this costs order nisi shall become absolute.

	L C Cheng
	Deputy District Judge

Miss Chung Lai Kuen, of M C A Lai & Co for the plaintiff

The 1^st defendant was not represented and did not appear

Miss Rachel Siu, instructed by Lim & Lok for the 2^nd defendant

DCPI 508/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 508 OF 2012

------------------------------------

BETWEEN
	HUSSAIN BASHARAT	Plaintiff
and
	曾慶裕	1st Defendant
	TSANG KWOK KEUNG	2nd Defendant

------------------------------------

Before: Deputy District Judge L C Cheng in Court

Date of Hearing: 27-28 and 30 April 2015

Date of Judgment: 1 June 2015

----------------------

JUDGMENT

----------------------

Introduction

1. The plaintiff’s claim is for damages for personal injury, loss and damage arising out of the negligent driving of a mini bus driven by the 1^st defendant on 24 September 2010. The 2^nd defendant was the owner of the mini bus.

2. Interlocutory judgment was entered against the 1^st defendant on 16 September 2014. Having read the affirmation of Mr Mok, legal executive of the solicitors firm acting for the plaintiff, I am satisfied that the plaintiff had properly informed the 1^st defendant of the trial dates. I therefore decide to proceed this trial in his absence.

The accident

3. At about 1:26 am on 24 September 2010, the plaintiff got on the mini bus. When he intended to walk towards the rear seat, he lost his balance and fell on the floor. He therefore sustained injury.

The issue of trial

4. At the beginning of the trial, Mr Lai, solicitor for the plaintiff, confirmed that he would not pursue the case against the 2^nd defendant on the basis that the 2^nd defendant had failed to take out the necessary insurance policy.

5. Accordingly, there are only 3 issues of trial:-

(1)Was the 2^nd defendant vicariously liable for the negligent driving of the 1^st defendant?
(2)Was the plaintiff contributory negligent? and
(3)The quantum of damages.

Plaintiff’s case

6. The plaintiff testified that on 24 September 2010, he got on the mini bus driven by the 1^st defendant. He intended to take the seat at back row and at that juncture, the 1^st defendant suddenly started the mini bus. He lost his balance and fell down. As a result, he sustained injury to his right elbow, right shoulder and back.

2^nd defendant’s case

7. The 2^nd defendant testified that he was not in Hong Kong on the accident day and was not aware of the accident at that time. He admitted that he was the registered owner of the mini bus. He would drive the mini bus from 3:00 am to 3:00 pm either by himself or his substitute driver. The 1^st defendant would drive the mini bus between 3:00 pm to 3:00 am pursuant to a contract.

Issue 1 : vicarious liability

8. The 2^nd defendant, being the registered owner of the mini bus, was prima facie vicariously liable for the negligent act of the driver, namely the 1^st defendant (see Chong Ngan Seng v China Harbour Engineering Co Ltd [2013] 2 HKLRD 223).

9. Ms Siu, counsel for the 2^nd defendant, did not dispute that the 1^st defendant was negligent but submitted that the relationship between the 1^st and 2^nd defendants was neither an employer and employee, nor a principal and agent.

10. The 2^nd defendant testified in court that he had rented the mini bus to the 1^st defendant at $600 per day for about 9 years. In support of his contention, he produced a copy of a leasing agreement.

11. Mr Lai commented the overall credibility of the 2^nd defendant. He submitted that it is hard to believe that the 2^nd defendant did not adjust the rent for 9 years. Further, he doubted how the 2^nd defendant could rent the mini bus, which was manufactured in 2004, to the 1^st defendant in 2003.

12. There is no evidence in court about the market rent of a mini bus for the relevant period. However, there were too many considerations for the 2^nd defendant to adjust the rent of his mini bus. A long and stable relationship with the driver was apparently one of them. I therefore do not find it unreasonable for the 2^nd defendant not to adjust the rent over the years.

13. In the witness statement, the 2^nd defendant stated that he had rented the mini bus to the 1^st defendant since 2003. According to the documentary evidence, the mini bus was manufactured in 2004. When he was cross-examined in this aspect, he explained that he had an old mini bus rented to the 1^st defendant in 2003 and upon purchase of a new one in 2004, he rented it to the 1^st defendant. His explanation is reasonable.

14. Having heard the 2^nd defendant in court, I accepted his evidence. Although he was not well educated, he would give answer directly. He was unshaken throughout the trial. Although the leasing agreement was undated and did not specify the amount of the rent, I do not find it strange or unreasonable in view of the education level of the 2^nd defendant. Taking all the evidence into account, I accept the 2^nd defendant was an honest and reliable witness. He had a contract with the 1^st defendant for leasing the mini bus.

15. Mr Lai also submitted that the leasing agreement is not a genuine leasing agreement but instead an employment or an agency agreement in substance. In particular, he pinpointed that clause 1, 2 and 6 of the leasing agreement allowed the 2^nd defendant some control over the mini bus. Clause 4 and 5 capped the liability of the 1^st defendant at $30,000 respectively for repair cost and additional insurance charges due to traffic accident. He submitted that the 2^nd defendant had retained control of the mini bus.

16. I accept that the leasing agreement allowed the 2^nd defendant a certain degree of control over the repair and maintenance of the mini bus. Also, the 1^st defendant was not contractually free to find a substitute driver. Besides, the leasing agreement prohibited the 1^st defendant from driving the mini bus during inclement weather, carrying out illegal activities and using unauthorized oil. However, I find that these prohibitions aimed at protecting the mini bus owner instead of controlling the driver in doing his business. Taking all the evidence into account, the 2^nd defendant only retained the control over how the mini bus was to be used but not how the 1^st defendant operated his own business. The 2^nd defendant had no share of the profit generated by the 1^st defendant. I do not find that the 1^st defendant was acting as an agent for the 2^nd defendant.

17. The leasing agreement specifically stated that the 1^st and 2^nd defendants were not employer and employee. The law of what constitute that kind of relationship is clear : see Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951. The 2^nd defendant never admits that he was the employer of the 1^st defendant. I find no evidence to support that the 1^st defendant was an employee of the 2^nd defendant at the time of the accident.

18. Taking all evidence into account, I find that the 2^nd defendant had rented the mini bus to the 1^st defendant, who was operating his own business. Accordingly, the 1^st defendant was neither an agent nor a servant for the 2^nd defendant. In the circumstance, the 2^nd defendant was not liable in this case.

Issue 2 : contributory negligent

19. In light of my decision, it is academic to consider if the plaintiff was contributory negligent. I shall deal with that for the sake of completeness.

20. Ms Siu submitted that the plaintiff was negligent. She relied upon the police case details report dated 24 September 2010, which did not mention anything about sudden starting or high speed of the mini bus. Rather, the report stated that :

“the [plaintiff] ran from the front seat to the rear seat”

21. However, the police was apparently not inside the mini bus at the material time. There was no evidence to explain why the police stated that the plaintiff was running. I do not think that that piece of hearsay evidence is sufficient to substantiate any contributory negligent on the part of the plaintiff. Therefore, I find no contributory negligent in this case.

Issue 3 : Quantum of damages

22. The plaintiff came from Pakistan and entered Hong Kong in 2007. He then applied for the refugee status and started staying in Hong Kong. He was not allowed to work.

23. After the accident, he was admitted to the A&E department of Queen Elizabeth Hospital and was diagnosed to sustain injury to his right elbow, back and right shoulder. Afterwards, he got pain and reduced range of movement over his right shoulder and elbow. He received 14 sessions of physiotherapy. He was granted sick leave from 24 September 2010 to 25 October 2010, 28 October 2010 to 11 January 2011, 8 March 2011 to 30 June 2011 and 16 April 2011.

24. The medical evidence supports that he sustained soft tissues sprain and contusion to his right shoulder, right elbow and lower back. The tenderness and pain over his lower back and right shoulder would not resolve completely. When the plaintiff gave evidence in court, he still complained that after a prolonged sitting for about 2 hours, he was painful.

25. Mr Lai submitted that $100,000 is a reasonable sum for PSLA and cited 3 cases in support : Chow Ka Kat v Yiu Hsing Development Ltd, HCPI 495/2010; Mahmood Tariq v Kinway Engineering Ltd & others HCPI 149/2006; Chu Chin Wang Geroge v Wong Wai Man formerly trading as Sakura Japanese Restaurant, DCPI 1316/2008.

26. Ms Siu submitted that a reasonable sum of PSLA is within the range of $50,000 and $70,000 and cited 2 cases in support : Fu Chuen Sing v Ryan (HK) Limited, DPCI 2135/2009; 譚惠安對陳力恆and Tsun Tai Stationary Manufactory Limited, DCPI 465/2009.

27. Each case must be decided on its own fact. Considering the authorities cited and having regard to the medical condition of the plaintiff, I find that a fair and reasonable amount of PSLA should be $100,000.

28. Based on the decision in Abu Bakkr Shiddik v Elahi Manzor & Yavar Ali, DCPI 1204/2010,Mr Lai agreed that the plaintiff would not make any claim for the loss of earnings.

29. Since the plaintiff was not allowed to work in Hong Kong, Mr Lai conceded that it would be difficult to anticipate what kind of work the plaintiff might take up in future and accordingly would not make any claim for loss of future earnings.

30. In the circumstance, I will not award any pre-trial loss of earnings, future loss of earnings and loss of earning capacity in this case.

31. The plaintiff was not required to pay for medical expenses by reason of his status. No award under this heading will be allowed.

32. In the absence of receipt and justification for the expenses of tonic food, I will not allow any award under this heading.

33. The plaintiff was residing at Sham Shui Po district and was required to travel to Queen Elizabeth Hospital for each medical attendance. Mr Lai and Ms Siu had helpfully worked out that the total traveling expenses would be $220. I agree that is a reasonable sum.

34. In summary, the plaintiff is entitled to the following compensation against the 1^st defendant:-

HK$
(A)
PSLA
$100,000
(B)
Pre-trial loss of earnings
nil
(C)
Loss of earning capacity
nil
(D)
Future loss of earnings
nil
(E)
Special damages
$220

Total:
$100,220

======

Interest

35. There will be interest on general damages at 2% per annum from date of writ to the date of this assessment and on special damages at half judgment rate from date of accident to the date of this assessment.

Costs

36. Costs follows event. There will be an order nisi against the 1^st defendant to pay costs of this action to the plaintiff to be taxed if not agreed. As between the plaintiff and the 2^nd defendant, an order nisi that the plaintiff do pay cost to the 2^nd defendant to be taxed if not agreed with certificate for counsel. The plaintiff’s own costs be taxed with the Legal Aid Regulation. The order nisi for costs shall become absolute 14 days after today unless a party has applied to the court for varying the order.

	(L C Cheng)
	Deputy District Judge

Mr Lai Man Chun Anthony, of M.C.A. Lai & Co for the plaintiff

The 1^st defendant was not represented and did not appear

Miss Siu Rachael Suk Yu, instructed by Lim & Lok for the 2^nd defendant

		HK$
(A)	PSLA	$100,000
(B)	Pre-trial loss of earnings	nil
(C)	Loss of earning capacity	nil
(D)	Future loss of earnings	nil
(E)	Special damages	$220
	Total:	$100,220
		======