ANTHONY JOHN GETTY v. THE B.C.J. JOINT VENTURE

HCPI 719/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.719 OF 2000

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R U L I N G

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1. There are three applications before me by the plaintiff for :-

(a) summary judgment under Order 14 with damages to be assessed;

(b) interim payment under Order 29; and

(c) striking out of paragraph 3 of the Defence to the extent that it denies paragraphs 2(f), (g), (h) and (j) of the Statement of Claim.

2. This is a claim by the plaintiff for personal injuries and damage suffered by the plaintiff as a result of tripping over a metal stud which was protruding on a temporary path on 4 December 1997 which resulted in his falling down and injuring his knee.

3. The plaintiff's claim against the defendant is based on occupiers liability and the fact that the path on which the plaintiff tripped and fell was built by the defendant. This path, the subject matter of the claim is a temporary path which led from the ferry pier to the site office of the defendant when the airport at Chek Lap Kok was being constructed. The defendant is the contractor responsible for construction of the airport terminal building.

4. There is no dispute that the plaintiff did have an accident on the path on 4 December 1997 and the matter was reported to a Mr Urquhart, the Safety Officer of the defendant, and acknowledged and recorded by him at the time.

5. The main dispute between the parties here is who built the path in question. That is a disputed issue of fact.

6. The plaintiff has obtained evidence from a witness, Mr David Spicknell, who says that he was employed by the defendant from 1995 to 1998 and that he actually saw the path built by the defendant under the supervision of a Mr Coates. He further gives evidence that about one or two months before the accident to the plaintiff, he had already mentioned the protruding stud along that path to Mr Urquhart of the defendant but nothing was done about it.

7. In a witness statement of Mr Urquhart obtained by the defendant, Mr Urquhart confirms both the report to him about the plaintiff's accident and the fact that Mr Spicknell had spoken to him earlier about the protruding stud.

8. The defendant's stance however is that they have no documentary records now which could confirm that the path was built by them and not some other contractors on site and they are not prepared to admit that to be the case despite the evidence obtained by the plaintiff.

9. The plaintiff has also obtained evidence from a Mr Sullivan, another employee of the defendant at the time, that on one occasion a Mr Ives (another employee of the defendant then) had told him (Mr Sullivan) that he (Mr Ives) had built the path.

10. The plaintiff also seeks to rely on the fact that the defendant had produced from their custody an architectural drawing showing the path in question with architectural markings and numbers which do not conform with any architectural markings or numbers familiar to the Airport Authorities.

11. Lastly the plaintiff also seeks to rely upon a draft letter written by Messrs Masons, the then solicitors acting for the defendant, to their insurers, Crawford THG, the contents of which contains an admission that the path in question was built by the defendant.

12. In so far as that draft letter is concerned, there is now evidence before me that the instructions upon which that draft letter was drafted by Messrs Masons came from a Mr Bill Palmer of the defendant. However, upon further clarification being sought by Messrs Masons from Mr Palmer it became clear that the earlier instructions given to Messrs Masons by Mr Palmer was given by him under the assumption that the path in question was built by the defendant but that he had no actual knowledge that it was. The assumption arose from the fact simply that the path was near to or led to the site office of the defendant. That was why the draft letter remained a draft and was never sent out by Messrs Masons.

Application for Summary Judgment

13. On the basis of the evidence stated above, Mr Burke for the plaintiff submits that totality of the evidence adduced by the plaintiff coupled with the fact that the defendant, by the very stance that it takes, having no positive case to challenge that of the plaintiff therefore there can be no defence in the matter.

14. Mr Burke further submits that since there is no positive case set up by the defendant to meet that of the plaintiff, there is therefore nothing worthwhile for the defendant to cross-examine the plaintiff's witnesses on. Allowing the matter to proceed to trial would be a complete waste of time and legal expenses.

15. Lastly Mr Burke submits that since no good reason has been shown as to why the witnesses called by the plaintiff should lie as to the defendant being the builder of the path in question, the court should at this stage attach sufficient weight to the evidence which the plaintiff will be adducing and give interlocutory judgment for the plaintiff forthwith.

16. On the other hand, Miss Tong, appearing for the defendant submits that although no positive case by way of evidence has been put forward by the defendant, the question as to who had built the path in question is still a matter which the plaintiff has to prove, albeit on balance, and as such the defendant is entitled to test the plaintiff's evidence by cross-examination. To accede to the plaintiff's application for summary judgment now is effectively to debar the defendant from testing the evidence of the plaintiff at trial.

17. Miss Tong further points out that there are certain areas of the evidence of the plaintiff's witnesses as they now stand in their respective witness statements where the evidence is not entirely clear or require further explanation or elaboration which is another reason why the defendant is entitled to cross-examine these witnesses before the court can properly assess the degree of reliability or the weight which can safely be put on such evidence.

18. Moreover, since a part of the evidence relied on by the plaintiff is hearsay evidence, which, even if admissible, the court will need to assess the weight that can be put on it.

Decision

19. Strong though the case of the plaintiff may appear on paper, in the light of the lack of a positive case set up by the defendant to meet it, it is never the function of a court to hold a trial on affidavit, or for that matter on witness statements at the interlocutory stage. This is all the more so where the plaintiff's position is not one which is admitted by the defendant.

20. All the submissions made by Mr Burke on the available evidence are submissions which can and should properly be made at the trial. Indeed the trial of this matter on liability has been fixed for July of this year. That is not far off and there is really no good reason why disputed issues of fact should be decided at the interlocutory stage without the benefit of cross-examination.

21. Listening to Mr Burke's submission I cannot help but feel that the bottom line of his grievance is really that the defendant refuses to admit to being the builder of the path in question but which the defendant cannot adduce any positive evidence to challenge the evidence of the plaintiff. Mr Burke says that the defendant should not be allowed to take such a stance.

22. In my view, that is still not sufficient for granting interlocutory judgment. I shall accordingly grant unconditional leave to the defendant to defend.

Application for Interim Payment

23. The application is made under Order 29.

24. Although I have granted unconditional leave to the defendant to defend, that does not mean that the plaintiff's case cannot be a strong one. On the contrary, my view is that in the absence of any positive evidence to challenge the plaintiff's claim that the path in question was built by the defendant, there is a great probability that the plaintiff will succeed on liability at the trial.

25. Contributory negligence has been pleaded by the defendant, but in all the circumstances of this case, even if established, the amount of contributory negligence is not likely to be great.

26. I am therefore satisfied that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

27. As for the amount of the interim payment, the plaintiff has asked for a sum of $500,000. The amount claimed by the plaintiff as it appears in the Statement of Damages is in excess of $6 million. Most of that relate to the loss of earnings claim by the plaintiff, both pretrial and future.

28. From the available material at present, it appears that the plaintiff, aged 48 at the time of the accident, was hospitalized for three days immediately after the accident at Canossa Hospital where an arthroscopy operation to the knee was carried out under general anaesthetic. There was no fracture to the knee. Later after returning to England, the plaintiff had a second operation to the knee in Scunthorpe General Hospital in November 1998.

29. As a result of that knee injury the plaintiff had to walk with a stick until March 1998. He returned to England (on sick leave presumably) in May 1998 where he consulted a number of doctors and sought further medical treatment. His employment as a Sales Marketing Manager was finally terminated effective March 2000. Thereafter he started his own furniture business in England.

30. In so far as the injury to his knee resulting from the accident is concerned, the plaintiff had received some $214,000 by way of Employees Compensation.

31. In a short medical report dated 8 February 1999 prepared by Mr David W. Gale, a consultant orthopaedic surgeon, addressed to Crawford-THG, the defendant's insurers, Mr Gale, after setting out the plaintiff's history as to how he had injured his knee tripping and falling onto the concrete pavement, comes to the following findings :

"Clinically he (the plaintiff) stands with a tilt due to difficulty weight-bearing on the right knee. The entire knee is swollen and held in 10 degree fixed flexion. The range of flexion appeared limited to 50 degrees. A small effusion was found along with palpable synovial thickening. The knee was found to be diffusely tender, but with no evidence of erythema or increased warmth. The arthroscopy portal wounds are fully healed with correct placement. The knee appeared stable with regards the MCL, LCL and the Lachmann's test, with no obvious posterior snag.

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My opinion is that this man has genuine problems with his right knee which would clearly interfere with his work and social life."

32. Taking a global view of the matter at this stage, noting the findings by the defendant's medical expert, bearing in mind that updated medical reports as to the plaintiff's conditions are yet to be obtained and also bearing in mind that at this stage the plaintiff has not proved the major part of his claim being his loss of earnings, a reasonable amount of interim payment to be ordered in this matter would be $300,000. This will provide a sufficient margin to guard against overpayment at this stage.

33. Accordingly I will order interim payment of $300,000 to be paid by the defendants to the plaintiff's solicitors within 21 days from the date of this order.

Application for Striking Out

34. During the hearing it was conceded by Ms Tong for the defendant that in view of the defendant's stance taken in this matter, the defendant is strictly speaking not entitled to deny paragraphs 2 (f), (g), (h) and (j) of the Statement of Claim. The defendant is only entitled to non-admission of those sub-paragraphs.

35. To that extent, in so far as paragraph 3 of the Defence pleads a denial of those sub-paragraphs, it will be struck out but that the defendant will be allowed to amend paragraph 3 of the Defence to plead non-admission of same.

Costs

36. Of the three application brought by the plaintiff, the plaintiff has succeeded in two of them. There will be a costs order nisi that the plaintiff be entitled to two-thirds costs of the application and the hearings in any event such to be borne by the defendant.