LU GUO XIANG v. HONG KONG MING WAH SHIPPING CO LTD

HCPI 254/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 254 OF 2006

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D E C I S I O N

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1. There are two applications before me today namely :

(1) The plaintiff’s summons filed on 25 August 2008 for leave to file and serve two medical reports namely :

(a) Dr Fung Ching Fai, a neurosurgeon, dated 23 July 2008, and

(b)    Dr Lau Hoi Kuen, an orthopaedic surgeon and his report is dated 7 August 2008; and

(2) the plaintiff’s summons filed on 29 August 2008 for leave to file and serve the Statement of Damages.

2. These two applications were made after the following happenings.  On 6 November 2000 the plaintiff was injured in a ship moored outside Florida and the plaintiff alleged that he was the employee of Hong Kong Ming Wah Shipping Company Limited.  The writ however was not filed and served until 17 March 2006 and therefore it was out of the three years’ limitation period.  

3. On 3 August 2006, the plaintiff’s solicitors then filed a preliminary issue summons and applied for an order to disapply the limitation period.  By 29 March 2007 and by consent, the court ordered inter alia, that :

(1)  there shall be a split trial liability and damages in this action; and

(2)  the hearing of the plaintiff’s preliminary issue be deferred to the trial judge and be heard at the same time with the trial on liability.

4. A year later on 12 March 2008, the plaintiff’s solicitors filed a Notice of Pre-trial Review (“PTR”) and confirmed that there would be no medical expert reports.  However, on 5 May 2008 which is less than two months later, the plaintiff’s solicitors informed the defendant’s solicitors that the plaintiff would like to adduce medical reports upon which of course the defendant’s solicitors objected to the admission of medical reports.  But the plaintiff’s solicitors maintained their position and on 29 August 2008 they took out the aforesaid summons for argument and this is now before me today. 

5. There are two main issues to be decided in the preliminary issue summons and that is whether the delay on the part of the plaintiff was due to his disability.  Secondly whether the size of the plaintiff’s claim is relevant for the consideration of disapplying the Limitation Ordinance and in particular section 30(3) or section 30 of the Limitation Ordinance. 

6. The plaintiff was treated immediately in Florida and in particular in a hospital called Tampa General Hospital and there were medical findings of the hospital which treated the plaintiff.  In the proposed Statement of Damages the plaintiff alleged that he had been hospitalised since the accident and was discharged on 11 May 2001.  He then resumed his work in China under the defendant in 2002 but his duty was similar to clerical work.  His salary was reduced to RMB$2,300 per month.  However he was limited by the severe of pain of right lower limb and was unable to work on board.  He was then dismissed by the defendant in 2004.  Thereafter he was employed as a teacher at an international ship management company limited at the Guangzhou Training Centre for which he was paid at RMB$2,300 per month. 

7. In respect of the issue of explanation of delay, none of the items put forward by the plaintiff concerned with his disability and the affirmation of the plaintiff dated 2 August 2006 was entirely silent on his disability leading to his delay in the claim.  Instead it is quite clear from this Chinese affirmation that he relied on a number of allegations including misrepresentation and duress of the defendant.  That was paragraphs 32 to 53 thereof.  It is not the plaintiff’s case that the delay has anything to do with his disability. 

8. In any event as I have said the plaintiff’s previous medical records in respect of his injury and treatment have been disclosed by the plaintiff and included in the trial bundle to be used at the trial starting from 1 December this year.  Consequently or accordingly I am persuaded by Mr Herbert Au-Yeung, counsel for the defendant that the issue of the plaintiff’s disability is entirely irrelevant to the preliminary issue of disapplying the Limitation Ordinance or liability. 

9. The second issue is the size of the plaintiff’s claim.  Mr Au-Yeung was fair enough to concede that this is a very sizeable claim and according to the Statement of Damages, the plaintiff claims a total of more than HK$7 million.  Thus it is not relevant to consider whether this action was so modest in financial terms so as to give rise to its proportionate legal costs as decided in the two cases of Robinson v. St. Helens Metroplitan Borough Council [2002] All ER 388 and later on in McGhie v. British Telecommunication plc [2005] EWCA Civ 48 both of which are Court of Appeal decisions in England.

10. I agree with Mr Au-Yeung that the defendant’s undertaking to this court given this morning, to the effect that the defendant would not rely on the proportionality principal argument at the trial of the preliminary issue would be sufficient and thus the quantum and the two medical reports would not be relevant to the consideration of disapplying the Limitation Ordinance under section 30.  For the aforesaid reasons I dismiss both summonses with costs to the defendant and Legal Taxation for the plaintiff’s own costs. 

[The court went on and decided that in spite of the dismissal of these two summonses, the most recent assessment is the trial will require nine days instead of six days and that is from 1 December until 11 December.]

[Mr Tim Kwok applied to have the 2 aforesaid reports to be sought and obtained before the trial.]

11. I consider the matter and the proportionality in this respect in the sense that would it be disproportional to the matter before me.  There are two scenarios when the doctors’ report will be relevant and that is (1) the Court of Appeal heard the appeal and reversed my decision; and (2) the plaintiff’s won on the liability point including the preliminary issue summons.  Thus, medical opinion would then be relevant in terms of quantum of damages.  I was told by Mr Kwok that they may even facilitate a settlement or at least narrowing down the issues in terms of quantum.  Of course the medical bills may be wasted if the plaintiff lost on the liability of the preliminary issue.  But the size of the medical bill would be comparatively modest when compared with the size of the whole case.  In any event, the defendant would not be prejudiced because if Mr Kwok could obtain the consent of the Director of Legal Aid, he would be paying the medical bills.  In that event, I am conscious of course that the public fund would have to be used.  However, this is part and parcel of litigation for a legally aided plaintiff and the whole purpose was to save up other funds because if I decided otherwise there will be certain enormous amount of wasted costs in vacating the nine days’ trial on liability. 

12. Thus, I would make an order and direction that by 4 p.m. tomorrow when I shall be informed by the plaintiff side that the Director of Legal Aid has given his consent for such a measure to be taken and the direction is : Dr Brian Chao and Dr Chun Siu Yeung shall be jointly instructed by the parties herein and each one of them shall examine the plaintiff on or before 14 October 2008 and to produce an independent report within 21 days thereafter.