HCPI 805/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 805 OF 2007
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BETWEEN
LEUNG CATHERINE
Plaintiff
and
TARY LIMITED
1st Defendant
惠州市駿洋塑膠有限公司
2nd Defendant
____________
Before: Hon Fung J in Chambers
Date of Hearing: 8 October 2009
Date of Decision: 8 October 2009
Date of Handing Down Reasons for Decision: 12 October 2009
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REASONS FOR DECISION
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1. A Case Management Conference was held to consider:
(1) The consent application for additional joint neurological examination and report after the Master has ordered no further medical evidence be adduced without leave of the judge;
(2) The amendment of the Statement of Claim; and
(3) The 1st Defendant’s refusal to the Plaintiff’s invitation to mediation.
2. I made the rulings at the hearing and I now give my reasons.
3. The Plaintiff was an employee of the 1st Defendant. She was deployed to work on the 1st Defendant’s business in the Mainland factory of a related company, the 2nd Defendant (now discontinued).
4. The Plaintiff drove a customer around in a golf cart. She alleged braking failure when negotiating a downward bend. The golf cart hit the kerb and went over the edge without falling, but the Plaintiff was thrown off and fell some 15 ft to the bottom of the slope. The injuries left the Plaintiff a tetraplegic.
5. The existing medical evidence consists of joint psychiatric report and joint occupational therapist reports. The parties agreed that they are to be adduced without calling the authors.
6. The parties belatedly applied, by consent, for leave to have a joint neurological examination and report. The respective experts are Dr Leonard Li and Dr Edmund Woo.
7. Belated as it were in that there had already been 3 previous Checklist Reviews (8 September and 27 October 2008 and 30 April 2009). At the last CLR, the Master ordered no further medical evidence without leave of the judge.
8. The indexed joint neurological report is for the purpose of assessing the life expectancy of the Plaintiff.
9. The Revised Statement of Damages has pleaded a life multiplier for future expenses based on the normal life expectancy.
10. Ms Sy, for the 1st Defendant, referred to the Whiteneck Report (1995) on the long- term survival of spinal cord injury victims, cited inTa Xuong v The Incorporated Owners of Sun Hing Building HCPI 496/1995 (30 October 1997)per Seagroatt J. She submitted on the reduced life expectancy of tetraplegic, and requested categorization of the Plaintiff’s tetraplegia according to the Frankel Grade scale.
11. Mr. Khaw, for the Plaintiff, supported Ms Sy’s application.
12. Ms Sy explained the delay in the application was due to late obtaining of counsel’s opinion. There has been recent debate about the need for counsel’s advice on evidence in PI cases where solicitors reputedly specializing in the field profess adequate case preparation before setting down without counsel’s advice. It befalls the handling solicitors to undertake early consideration of sufficiency of the evidence and/or to obtain counsel’s advice, such that milestone dates need not be moved by reason of omissions.
13. Ms Sy indicated that appointment has already been made for joint examination later this month, and the delay will be limited to 2 months.
14. I note that the case has not been set down for trial notwithstanding the 3rd CLR. Having considered the nature of the evidence, history of the proceedings, positions of the parties, and extent of the delay, I reluctantly allowed the application for joint neurological examination and report to be obtained within 2 months on no order as to costs.
15. As for the future, I suggest the Master should consider making an unless order for setting down to be sanctioned by dismissal of the action once it is concluded that case preparation is complete and sealed with an order of no further evidence without leave.
16. As to the amendment of the Statement of Claim, Mr Khaw wished to add 2 points to the particular of negligence:
(1) Failure to provide the Plaintiff with vehicles with sufficient safety device (clarified to mean safety seat belt only);
(2) Causing, instructing and/or instructing the Plaintiff to drive the golf cart when she did not hold any valid driving licence and/or was not trained to do so.
17. Ms Sy objected as she would need to investigate whether any golf cart is fitted with safety belt at all, and whether a driving licence is required to drive a golf cart in the Mainland or Hong Kong.
18. Having granted her the application to obtain the joint neurological report, Ms Sy indicated that those questions could be answered within the same period of 2 months. Hence, I allowed the amendment to be filed within 7 days, and 42 days for the consequential amendment of the Defence.
19. On 5 October 2009, solicitors for the Plaintiff wrote to invite the 1st Defendant to resolve the dispute by mediation. Solicitors for the 1st Defendant disagreed on the stated ground that the proceedings have reached an advanced stage, and the issue of liability is in dispute. Ms Sy expounded on the second point in that the present case is “all or nothing” as the Plaintiff alleged braking failure of the golf cart and the 1st Defendant alleged normal braking function to the contrary.
20. Although the part on mediation in PD 18.1 does not come into effect until 2 January 2010, it is an underlying objective of the Rules of the High Court under the Civil Justice Reform for the Court to facilitate settlement of disputes, and it is the Court’s duty in case management to encourage the parties to use alternative dispute resolution if so considered appropriate, and it is the duty of the parties and their legal representatives to assist the Court in furthering the underlying objectives of the rules.
21. Mediation is a voluntary process and a party is not forced to undergo mediation, but unreasonable refusal to attempt mediation (especially when the other party has made the request) is relevant conduct in litigation in the exercise of the discretion on costs.
22. So often has it been suggested in personal injuries that the stage has not been reached for mediation cases because medical evidence has not been obtained to assess a fair and adequate settlement. It is really Catch-22 to say that mediation should not be explored as the proceedings have already reached an advanced stage. It is better late than never, especially when time, expenses and uncertainty of the trial can be avoided.
23. To say that mediation is not suitable because the issue of liability is in dispute is yet again Catch-22 sub-paragraph 1. It begs the question of what mediation is,to wit , without prejudice negotiations assisted by a neutral third party to resolve disputes. Courts in England as well as in Hong Kong have observed that skilled mediators are able to achieve results satisfactory to both parties in many cases quite beyond the power of lawyers and courts to achieve (Dunnett v Railtrack Plc [2002] 1 WLR 2434 (CA); Supply Chain & Logistics Technology Ltd v NEC Hong Kong Ltd HCA 1939/2006).
24. Ms Sy has indicated that the defence case of normal braking function is based on evidence other than independent mechanical examination of the golf cart. It may be all or nothing for the Plaintiff (or vice versa for the 1st Defendant), but certainly not all for one party and none for the other. The disjunctive “or” makes it an attractive proposition to attempt mediation in order to avert the litigation risks of an unappealing nothing to oneself.
25. Ms Sy is well advised to fully explore the Plaintiff’s invitation to mediation with her client, lest there be an application for adverse costs order in the event of the 1st Defendant winning.
26. If Ms Sy were to deal with the insurer, if any, she should be well aware that the insurance industry embraces mediation by seed funding the New Insurance Mediation Pilot Scheme (“NIMPS”).
27. If she feel inhibited to fully advise her client due to her unfamiliarity with mediation, she may request the Master to conduct an information session on mediation for her client and herself so that the matter can be explored thoroughly.
28. On costs of the applications and the hearing, as a stamp of disapproval of the delay, I made no order as to costs on the application for the joint neurological report. I also made no order as to costs on the late amendment of the Statement of Claim except for the 1st Defendant’s costs on the consequential amendment. There is no order as to costs on the hearing.
(B Fung)
Mr Richard Khaw, instructed by Messrs Cheng & Wong, assigned by the Director of Legal Aid, for the Plaintiff
Miss SY Hana Connie, of Messrs Deacons, for the 1st Defendant