XCHRX YING CHOW LUNG v. THE KOWLOON MOTOR BUS CO. (1933) LTD. AND ANOTHER

HCPI74/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 74 OF 1998

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R U L I N G

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1. This is an appeal by the 2nd Defendant from the Order of Master Chung given on 8th October 1998 wherein it was ordered by the Master that unless the 2nd Defendant do exchange and file signed witness statements as to facts by 4 pm on 22nd October 1998, the Plaintiff be at liberty to enter interlocutory judgment with damages to be assessed.

2. This matter arises from a road traffic accident in which the Plaintiff being a passenger on a bus owned by the 1st Defendant was injured when the 1st Defendant's bus collided with a van driven and owned by the 2nd Defendant. As a result of that accident, the Plaintiff brings this claim against both the 1st Defendant and the 2nd Defendant.

3. At the checklist hearing, an order was made by Master Chu on 3rd June 1998 wherein it was ordered that parties do exchange witness statements within 90 days, that 90 days would have expired by 31st August 1998.

4. Up to today, the 2nd Defendant has been unable to file signed witness statement of the 2nd Defendant. It is because of that failure that the Plaintiff took out his summons dated 3rd September 1998 asking for an unless order that unless the 2nd Defendant do effect exchange of signed witness statement as to facts within 7 days from the date of the order to be made therein, no further leave will be granted to the 2nd Defendant for filing and serving of signed witness statement pursuant to O.38 r.2A of the Rules of High Court.

5. However, at the hearing before the Master, the Master made the order that he did which I have referred to above.

6. The 2nd Defendant now appeals from that Order and the point taken by Mr Lim for the 2nd Defendant is simply that there is no need for the 2nd Defendant to call any witnesses at the trial. The allegation, in particular that of contributory negligence by the 2nd Defendant, was that the Plaintiff had failed to take proper care of himself whilst travelling in the bus, standing up, moving and failing to hold properly onto handrails when the bus was in motion. This is a point that can well be explored in cross-examination of the Plaintiff by the 2nd Defendant and indeed, it needs no evidence from the 2nd Defendant who was at that time not inside the bus.

7. Be that as it may, O.38, r.2A (10) states :

"Where a party fails to comply with the direction for the exchange of witness statements, he shall not be entitled to adduce evidence to which the direction related without the leave of the Court."

And although paragraph (17) of the same order and rule gives the Court power to vary or override any of the provisions of this rule and to give alternative directions as it think fit, in this case, I have been informed by Mr Lim that the difficulty with filing of witness statements by the 2nd Defendant is that the 2nd Defendant, the driver of the van involved in the collision, could not be found, and that this matter is one in which the insurance company has taken over these proceedings although still in the name of the 2nd Defendant.

8. In the light of what I have been told by Mr Lim, I am prepared to allow this appeal, set aside the Order of Master Chung and in its place make the following order : unless the 2nd Defendant do file signed witness statement as to facts by 4 pm on 1st December 1998, the 2nd Defendant shall not be entitled to adduce evidence without the leave of the Court at the trial of this action.

9. I make the following order as to cost. The issuing of the Summons by the Plaintiff dated 3rd September 1998 came about because of the 2nd Defendant's failure to comply with the Order at the checklist hearing for exchange and of filing of witness statements, for that reason, I do not seek to disturb the costs order below made by the Master, namely, that the costs of and occasioned by the Plaintiff's summons be paid by the 2nd Defendant to the Plaintiff in any event. In so far as the costs of this appeal today, I can see no reason why costs should not follow the event, and accordingly, I will grant the costs of today's hearing of the appeal to the 2nd Defendant to be paid by the Plaintiff in any event.