SO TAK YU by her next friend, SO KWOK FAI v. HO MAN HEI AND OTHERS

HCPI 8/2024

[2026] HKCFI 3743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 8 OF 2024

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BETWEEN

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DECISION

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A. The Application

1.  This is the Plaintiff’s (“P”) application by Summons filed on 12 January 2026 (“the Summons”) for an interlocutory judgment on liability (with damages to be assessed) against the 1^st Defendant (“D1”) and the 3^rd Defendant (“D3”) on three alternative bases:

(1) a judgment in default (a) against D1 for default of notice of intention to defend under Order 13 rule 2 of the Rules of the High Court (“RHC”); and (b) against D3 for default of defence under Order 19 rule 3 of the RHC; or

(2) a summary judgment under Order 14 rules 1 and 2 of the RHC against D1 and/or D3; or

(3) a summary judgment under Order 14A rules 1 and 2 of the RHC against D1 and/or D3 for absence of legally arguable defence.

2.  At the hearing, Mr Shum, counsel for P, told the Court that P pursues only paragraph 1(1) above, and does not pursue paragraphs 1(2) and 1(3) above because D1 and D3 had not filed any defence. See: Order 14 rule 1(1), Order 14A rule 1, Tam Ki Kam Wah Agnes[1] §19; Sum Chi Chung[2] §26.

B. Background

3.  The present claim arose out of a traffic accident happened on 31 October 2021 during a race or pacemaking between two private vehicles driven by D1 and Fung respectively (“the Accident”). P was a passenger of the vehicle driven by Fung. The Accident caused the death of Fung and the driver of another vehicle driven in the opposite direction. P sustained personal injuries.

4.  D1 has not filed any Acknowledgment of Service of the Writ or the Amended Writ. He has not appeared in this action thus far.

5.  D3 is the administratrix of the estate of Fung. She filed an Acknowledgment of Service of the Amended Writ giving notice of intention to defend on 20 August 2024 but she has not filed any Defence.

C. D2, the insurer

6.  D2 was the insurer of both vehicles driven by D1 and Fung at the material times. After the Accident, D2 repudiated these insurance policies. Despite the repudiation, D2 has a statutory duty under section 10(1) of Motor Vehicle Insurance (Third Party Risks) Ordinance (“MVIO”) to satisfy any judgment against D1 and D3 for third party injury. D2 has a direct interest in this action.

7.  Bharwaney J said in §12 of Chan Ka Ki[3] that in the majority of cases, “it is right to allow MIB to be joined, and to be entitled to defend the action and to exercise all the rights of the defendant driver in the action”. He cited in §11 the following dicta of Lord Denning in Gurtner v Circuit[4] to illustrate the underlying rationale:

“It is thus apparent that the Motor Insurers’ Bureau are rightly concerned in the outcome of the action. They are directly affected not only in their legal rights but also in their pocket. They ought to be allowed to come in as defendants. It would be most unjust if they were bound to stand idly by watching the plaintiff to get judgment against the defendant without saying a word when they are the people who have to foot the bill.

….

On being added, they should be entitled to defend the action and to exercise all the rights of the defendant driver therein.”

8.  D2 obtained leave to join in these proceedings before D3 was joined as a party. By an Order dated 14 February 2024, leave was granted for D2 to join in these proceedings and to defend “as if it was D1”.

9.  After D3 was joined as a party, D2 applied for leave to defend the action as if it was D3. As D3 (acted in person) appeared at the hearing of the application, D2 withdrew its application. Subsequently, by a letter dated 22 November 2024, D3 informed D2’s solicitors that she did not object to D2 handling this case.[5]

10.  It is common ground that D2 was joined in this action to defend its independent interest arising from the statutory duty under section 10(1) of MVIO, but not for and on behalf of D1 and/or D3: Tam Li Kam Wah Agnes §§17-18.

11.  P argued that as leave was only granted for D2 to defend as if it was D1, not D3, D2 is only permitted to take part in the present action to defend P’s claim against D1 and not otherwise[6]. As the pleadings currently stand (see paragraph 2 of D2’s Amended Defence and paragraph 2 of the Reply), this is a live issue in dispute, on which I refrain from expressing any view.

12.  Suffice for the purpose of this application is that P accepted that the defence raised by D2 are to be considered in her application for an interlocutory judgment in default against both D1 and D3.

D. Default judgment

13.  A plaintiff may enter an interlocutory judgment in default with damages to be assessed (a) under Order 13 rule 2 if the defendant “fails to give notice of intention to defend” the claim; and (b) under Order 19 rule 3 if the defendant “fails to serve a defence on the plaintiff”.

14.  A default judgment is not a judgment on merits. It may be set aside or vary by the Court: Order 13 rule 9 and Order 19 rule 9.

15.  Application to set aside may be made by third party who has a direct interest in the matter, for example D2 in this case: Hong Kong Civil Procedures 2026, Vol. 1 §13/9/22.

16.  This power is also exercisable by the Court on its own motion at any stage of the proceedings: Hong Kong Civil Procedures 2026, Vol. 1 §13/9/23, and Lai Pui Ling[7] §2 wherein Evans v Bartlam was cited:

“The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

17.  D1 failed to give a notice of intention to defend and D3 failed to serve a defence on P. Prima facie, P may enter a default judgment against D1 under Order 13 rule 2, and against D3 under Order 19 rule 3.

18.  Instead of adopting the usual procedure to enter an interlocutory judgment in default against D1 and D3, which if granted, would very likely be subject to a set aside application, P took out the Summons and invited this Court to determine whether P is entitled to enter a default judgment against D1 and D3 in these circumstances.

19.  A judgment should only be given on the plaintiff’s claim provided the pleaded facts give rise to the relief sought. If the facts averred fail to support the relief sought, there is ground for refusing to enter a judgment in default: Lam Chi Fat v Liberty International Insurance[8] §27; Lai Pui Ling §14.

20.  In cases where MIB or the insurer had joined in the proceedings and served a defence on liability or pleaded that the plaintiff was guilty of contributory negligence, Bharwaney J said in §13 of Chan Ka Ki that it is “no longer possible” for the plaintiff to enter judgment against the defendant driver.

21.  Marlene Ng J remarked in §22 of Tam Li Kam Wah Agnes that after the insurer (the 2^nd defendant therein) filed a defence to defend the plaintiff’s claim, it is correct for the parties to set aside the interlocutory judgment previously obtained against the 1^st defendant in default of notice of intention to defend because:

“… If the [default judgment] were not set aside, [the 2^nd defendant] would be bound by such judgment and would have to satisfy any damages assessed by the court in due course pursuant to section 10 of [MVIO]. This could not be right where [the 2^nd defendant] had filed a defence to contest all issues of liability, causation and quantum for opposing [the plaintiff’s] claims in the present action.”

22.  In Wong Shu Keung v Kam Luen Consolidation Limited [9], Judge Kent Yee set aside a default judgment entered against the defendant and allow the insurer to challenge both liability and quantum of the plaintiff’s claim.

23.  In Lai Pui Ling, it was found after trial that the plaintiff failed to prove the 2^nd defendant breached any legal duty of care towards the plaintiff. The personal injuries claims against the 2^nd defendant (the employee or agent of the 1^st defendant) was dismissed. The Court then, after hearing the parties, set aside the default judgment entered before trial against the 1^st defendant (the principal or employer who was claimed to be vicariously liable for the acts of the 2^nd defendant). This jurisdiction of the Court to set aside the default judgment, to strike out the plaintiff’s statement of claim and dismissed the action was not challenged in appeal: Lai Pui Ling (CA)[10] §§37-39 & 45.

24.  In Burns v Kondel [11], the Court of Appeal in England and Wales allowed the appeal against the refusal to set aside a default judgment. Lord Denning said at page 555:

“In any case, however, I regard the insurance company as the person really interested in the defence … They are the people who will have to pay. They should not be shut out altogether from having contributory negligence investigated. I would expect that it was only by the merest chance that the judgment was signed.”

25.  The above cases illustrated that in these circumstances, a default judgment should not be entered or continued to have effect against the defendant drivers when the defence pleaded by the insurer or the MIB has not been properly adjudicated.

E. The pleadings

26.  P claimed that the Accident was caused by the negligence and/or breach of statutory duty of D1 and/or Fung (paragraph 6 of the Amended Statement of Claims).

27.  D2 denied and averred that the Accident was caused or contributed by the negligence of P, D1 and Fung (paragraph 9 of the Amended Defence).

28.  In the Amended Defence, D2 averred that

(1) P, D1, Fung and other passengers were friends and they agreed to go for a joy ride along Bride’s Pool Road at high speed (paragraph 6);

(2) P was aware that the two private vehicles concerned were speeding and racing (paragraph 7);

(3) the following are the particulars of P’s negligence (paragraph 10):

“Particulars of Negligence of the Plaintiff

(a) Boarding Fung’s vehicle for joy ride on Halloween on the said road when she knew or ought to have known that Fung and [D1] would seek to have fun by racing and/or pacemaking at speed along Bride’s Pool Road, which was unsafe due to the nature of the road.

(b) Boarding Fung’s vehicle in such circumstances when she knew or ought to have known that Fung’s driving experience was limited to around 2 years and that he might not have the necessary experience and skill to negotiate the single lane with bends at speed, and thus put her life at risk.

(c) Failing to insist throughout the journey, and particularly after the first time that Fung crossed the lane dividing lines at a bend at speed, that he drive (sic) within the speed limit or stop to allow her to alight, especially since there was no reason why he would refuse to comply with this request.

(d) Failing to use her mobile phone to telephone [D1] or her friends in [D1’s] vehicle to demand that Fung and [D1] stop racing and/or pacemaking and/or driving dangerously along Bride’s Pool Road.

(e) Failing to use her mobile phone to telephone the police as a means of forcing Fung and [D1] to stop racing and/or pacemaking and/or driving dangerously along Bride’s Pool Road.

(f) In the premises, voluntarily assuming the risk of boarding and/or remaining in Fung’s vehicle.

(g) In the premises, failing to take reasonable care for her own safety.”

29.  In Reply, P

(1) acknowledged that “the only issue on liability raised by [D2] is the issue of apportionment of liability among [P], [D1] and Fung.” (paragraph 3)

(2) denied the claims for her contributory negligence (paragraph 4)

(3) attempted to characterise D2’s plea of P’s contributory negligence as follows (paragraph 5):

“In reply to paragraphs 7(e) and 9 and the particulars of negligence of [P] in paragraph 10 of [D2’s] Amended Defence relating to [P’s] alleged contributory negligence in that [P’s] voluntary assumption of risk of injuries, by operation of section 12 of the Ordinance, the said pleas of [D2] are prohibited and of no effect in law.”

F. Defence of contributory negligence or volenti non fit injuria

30.  The real question in dispute is whether D2 pleaded the defence of volenti non fit injuria which is restricted by operation of section 12 of MVIO; or the defence of P’s contributory negligence, the merits of which shall be considered at trial and a default judgment on liability should not be entered.

31.  Volenti non fit injuria and contributory negligence are two separate and distinct defences.

32.  There can be a significant overlap between conduct that might be classified as volenti non fit injuria and contributory negligence: Clerk & Lindsell on Torts (24th ed.) §3-47. It was explained by Lord Denning in Nettleship v Weston[12] that,

“… In former times this defence [of volenti non fit injuria] was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered, and, in consequence, it has been severely limited.”

33.  Volenti non fit injuria is a complete defence. If it applies, the plaintiff recovers nothing.

34.  If contributory negligence is proved, there will be an apportionment of liability between the plaintiff and the defendant. A finding that the plaintiff was 100 per cent contributorily negligent has been held to be “logically unsupportable”: Pitts v Hunt[13], per Balcombe LJ at 51E, per Dillon LJ at 52B.

35.  To establish volenti non fit injuria, the defendant has to satisfy the following three conditions[14]:

(1) the plaintiff agreed to absolve the defendant from any legal responsibility for his conduct;

(2) the plaintiff’s agreement is voluntary; and

(3) the plaintiff has full knowledge of the nature and extent of the risk that he was assumed.

36.  Statements of facts with sufficient particulars in support of the above conditions must be pleaded.

37.  Mere knowledge of the risk of injury, or a willingness to take the risk of injury is not sufficient to establish the defence of volenti non fit injuria. There must be an agreement, express or implied, by the plaintiff “to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant; or, more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him”: Nettleship v Weston, per Lord Denning[15]. This agreement has to be pleaded with sufficient particulars.

38.  D2’s Amended Defence, properly considered, does not raise a defence of volenti non fit injuria:

(1) Firstly, the essential elements of volenti non fit injuria were not pleaded. Most importantly, D2 has not pleaded any agreement by P, expressly or impliedly, to absolve the drivers from any legal responsibility or to waive all or any claims for personal injuries suffered by her during the ride. The plea in paragraph 6 of the Amended Defence that P agreed to take part in the joy ride is not sufficient.

(2) Secondly, the use of the words “voluntarily assuming the risk” in Particular (f) by itself would not give rise to a defence of volenti non fit injuria.

(3) Thirdly, P’s conduct and/or omissions pleaded in Particulars (c), (d) and (e) are to show P’s failure to take reasonable care of her own safety. They are facts pleaded in support of a claim for P’s contributory negligence.

39.  Having pleaded in the Reply that the only issue on liability raised by D2 is the issue of apportionment of liability among P, D1 and Fung, P has acknowledged that the defence raised by D2 is not a defence of volenti non fit injuria which requires no apportionment of liability.

40.  The defence raised by D2 is P’s contributory negligence which involves factual disputes and ought to be investigated at trial.

G. Order

41.  For the reasons set out above, the Summons is dismissed.

42.  There is no reason to depart from the starting point of costs follow the event. I make an order nisi that P do pay D2 the costs of the Summons at an amount to be summarily assessed. D2 shall lodge and serve a statement of costs (not more than 2 pages in A4 size) within 14 days from the date hereof, and P shall lodge and serve a statement of objection (not more than 1 page in A4 size) within 7 days thereafter. The costs will be summarily assessed by way of paper disposal.

43.  I thank Mr Shum and Mr Wu for P, and Mr Sakhrani for D2, for their assistance.