XCHRX KOK FUNG v. HUI SHING FU AND OTHERS

HCPI 721/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 721 OF 1998

____________

____________________________________

REASONS FOR DECISION

____________________________________

In this action, I have already given judgment for the Plaintiff against the 1st-3rd Defendants for 100 percent liability but the claim against the 4th Defendant was dismissed. On the matter of costs, I made an order nisi against the 1st-3rd Defendants, but no order as to costs as between the Plaintiff who is legally aided and the 4th Defendant who was represented for the early stages but unrepresented at the trial. In other words, the Plaintiff would have to bear her own costs for unsuccessfully pursuing the 4th Defendant. The Plaintiff applied to vary the order nisi so that her costs for pursuing the 4th Defendant be borne by the 1st-3rd Defendants as well.

2. Miss Lee for the Plaintiff argued that the effect of the order nisi was to penalise the Plaintiff. Counsel said that for the Plaintiff to be penalised in costs the fundamental question must be whether it was reasonable to bring action against the 4th Defendant in the first place. Counsel said that the answer must be a resounding yes as evidenced by the pleadings, the documentary evidence, the oral evidence adduced at trial and the closing submission. These arguments, it should be noted, were already intimated during the course of the trial and I agonised over them before making the order nisi in the reserved judgment.

3. Mr Chan for the 1st-3rd Defendants objected to putting the burden of the Plaintiff's costs for unsuccessfully pursuing the 4th Defendant on his clients. Counsel submitted that it is not enough for a plaintiff to show that it was reasonable for the plaintiff to bring action against the successful defendant in the first place. That is only one of the factors the court must take into consideration. That factor is not conclusive one way or the other. See Gerdes-Hardy v. Wessex Regional Health Authority, CA, 29 April 1994, Lexis Transcript and Hong v. A & R Brown Limited [1948] 1 KB 515 cited therein.

4. Mr Chan further relied on Donovan v. Cammell Laird [1949] 2 All ER 82. In that case, the plaintiff relied on earlier authority on the construction and effect of certain statutory regulations in joining the 2nd and 3rd defendants. It then turned out that on the proper construction of those regulations they did not apply to the case in question. Thus the claim against the 2nd and 3rd defendants failed. Devlin J held that although it was reasonable in the circumstances for the plaintiff to join the 2nd and 3rd defendants, it would not be a proper exercise of the court's discretion to order the 1st defendant to bear the plaintiff's costs of pursuing the 2nd and 3rd defendants.

5. Miss Lee derived assistance from our Court of Appeal decision in Leung Lai Ha and another v. Hon Sau Ling and another [1993] 1 HKLR 86. Mr Chan contended that that decision was based on the peculiar circumstances of the case unlike the present one. The problem in that case is best encapsulated in the judgment of Bokhary J (as he then was) at p.92:-

"This case involves, among other things, credibility; and the difficulties which that throws up is illustrated by this. In evidence before the learned magistrate, the adult plaintiff said that, at the scene of the accident and immediately after it, she had upbraided Miss Hon for driving in a manner tantamount to "murder". But when the learned magistrate came to his decision, notwithstanding that he accepted the adult plaintiff's evidence, he said no more than, as my lord, Kempster, JA has pointed out, that he was satisfied that Miss Hon's driving "at least to some extent" caused the accident.

It is true that it was not pleaded by the plaintiffs that Mr Ho had gone on to his incorrect side of the road. But in her defence Miss Hon, in addition to pleading that Mr Ho went on to his incorrect side of the road, adopted the allegations of negligence which the plaintiffs did plead against him. In any event, the plaintiffs' failure to plead that Mr Ho went on to his incorrect side of the road may go more to their tactics than to showing that they had no doubt as to liability. Still less would it go to show that they no basis thinking that they were faced with cross-allegations which no counsel would be well-advised to make a final choice between at an early stage of the proceedings."

Moreover, Kempster JA at p.90 observed that when the writ was issued the expert reports which substantially blamed the 1st Defendant found solely liable were not available.

6. Costs is a matter in the discretion of the court. As Glidewell LJ said in Gerdes-Hardy v. Wessex Regional Health Authority, the court has and retains a general discretion to do what, in all the circumstances of the case, it thinks is right. Contrary to what Miss Lee thinks, I did not penalise the Plaintiff for costs by the order nisi. In principle, an unsuccessful party ought to bear costs of the successful opponent. That was a starting point. In any event, I did not stop at the starting point.

7. In this case, all the evidence before me, including the expert reports, were available to all the parties before issue of the writ. All the essential testimony or evidence as to facts had been rehearsed in a coroner's inquest and even more fully before a magistrate. The crucial piece of expert evidence from Dr Shek was disclosed before the learned magistrate who alluded to an external force or factor causing the accident. The Plaintiff, or rather those representing her, chose to adopt the opinion of a factory inspector as to the cause of the accident. That opinion is said to be supported by two more experts. But as is apparent from my judgment the other two experts were requested by the factory inspector to look at some nuts and bolts only. Those two experts did not examine (and they did not know about) the bent hanger bar or the horizontal beam which were indisputable pieces of physical evidence found at the scene of the accident. Dr Shek did tests and concluded that the hanger bar was bent by a much much greater force. The only logical inference one can draw in the light of that is that the skip was subjected to a force in addition to the load of cement. The Plaintiff simply ignored this factor and the associated evidence. No apparent attempt was made by the Plaintiff's side to obtain a second expert opinion on why the hanger bar and the horizontal beam were bent. Dr Shek's expert report was just placed in the trial bundle as evidence for the court. Dr Shek was not called for cross-examination. In the face of such uncontroverted expert and physical evidence available at the time of the issue of the writ, it requires no figment of imagination to see that allegations of fault against the 4th Defendant, to the say the least, are readily questionable. Thus, to answer the fundamental question, it was not reasonable to bring action against the 4th Defendant in the first place.

8. Moreover, there was little doubt from day one that the 1st-3rd Defendants would be liable for negligence and breach of statutory duty. Any suggestion of contributory liability from the 4th Defendant should be a matter between the Defendants. The Plaintiff had no need to join the 4th Defendant for the first three Defendants' benefit. Of course the 1st-3rd Defendants did issue notice of contribution. But, by the time the case came for trial, it was not possible for me to determine whether the 1st-3rd Defendants in trying to shift the blame to the 4th Defendant were just being unrealistic, misled by the factory inspector or misled by the Plaintiff's claim against the 4th Defendant. Since the Plaintiff initiated the process of laying blame at least in part on the 4th Defendant, it can be expected that the 1st-3rd Defendants would join in the chorus hoping to exploit the situation to their advantage.

9. In a nutshell, this case is analogous to Donovan v. Cammell Laird. Having reviewed all factors and circumstances and considered submissions from counsel, I was convinced that the proper exercise of my discretion was to make the order nisi absolute and to further order the Plaintiff to bear the costs of the hearing on costs. Miss Lee indicated that there would be an appeal against these orders and would like to have leave to do so. Leave was granted.

10. There is, however, one thing that I would like to draw the attention of the Director of Legal Aid. It has been made clear that those representing the Plaintiff did not pay sufficient attention to the implications of the expert evidence of Dr Shek and the associated physical evidence when advising the Plaintiff to give instructions to sue the 4th Defendant. The Court of Appeal has said in a personal injury case decided by me that in rendering judgment I needed not come to a conclusive view on the conduct of the case by solicitors. So I am not giving a conclusive view here. But it does appear that questions should be asked whether those representing the Plaintiff might have been less than careful in advising on evidence and in preparing the Plaintiff's case. If so, as I have mentioned during the hearing on costs, I wondered whether the Plaintiff should personally bear the consequences of costs order. Perhaps the Plaintiff ought not. But since I should not hold a conclusive view, I would not say that there was professional negligence such that costs of pursuing the 4th Defendant ought to be borne by those representing the Plaintiff.

11. Those representing the Plaintiff may be completely blameless, may have committed an error of judgment or may have been negligent. But with these possibilities, is it still proper for those presently acting to continue to represent the Plaintiff to prosecute an appeal on my order which, on one view possibly, reflects fault on their part. Is it fair to the Plaintiff for legal aid to be granted (with charge again on the damages recovered) to prosecute the appeal without independent advice on whether perhaps it should be the Plaintiff seeking remedies against her own legal representatives? The Director of Legal Aid may wish to ponder and follow up on these issues.