CHU KEUNG FAI AND OTHERS v. YUEN POR AND OTHERS

Action No. 4517 of 1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an appeal by the 3rd Defendant against a Master's decision dismissing its application for the action to be dismissed as against the 3rd Defendant for want of prosecution. In deference to Counsel's comprehensive and carefully prepared submissions I am stating my reasons fully.

2. The action arose out of events that occurred on the evening of Saturday, the 29th July 1978, about 8 o'clock. It was very dark and raining heavily. The No. 8 typhoon signal was up. A taxi owned by the 1st Defendant and driven by the 2nd Defendant was taking two passengers to the vicinity of Pat Tze Wo Village in the Fo Tan Valley at Shatin. It somehow went off the road and into a pond. The two passengers drowned.

3. The 1st and 2nd Plaintiffs are the co-administrator and co-administratrix of the estates of the two deceased. Their action is both for the benefit of the estate under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) and of the dependants of the deceased persons under tine Fatal Accidents Ordinance ( Cap. 22). Those dependants are an infant born in January 1968 and two adults.

4. The 3rd Defendant is alleged to have been in occupation of the area in which the accident occurred and to have carried out the associated construction work.

5. The chronology of material events as follows -

6. Limitation has not yet run out against the infant dependant and her claim therefore should not be struck out (Birkett v. James [1978] A.C. 297; Tolley v. Morris [1978] 1 W.L.R. 592; Craggs v. A.G. [1981] H.K.L.R. 429). The question therefore is whether the claims of the adult dependants should be struck out, limitation having run out since the issue of the writ.

7. The principles upon which that question is to be answered were decided in the well-known case of Allen v. McAlpine [1968] 2 Q.B. 229. The power to dismiss an action for want of prosecution should not be exercised unless the Court is satisfied - (1) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (2) that such delay will give rise to substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Defendants either as between themselves and the Plaintiff or between each other or between them and a 3rd party.

8. As Salmon L.J. said in that case at p.268F, what is or is not inordinate must depend on the facts of each particular case. It would be highly undesirable and indeed impossible to lay down a tariff. It is idle therefore to suppose that there would be dicta of direct application to the facts in this case, and none was cited to me. But such as there is as to what might constitute inordinate delay is set out rather more fully in earlier editions of the Supreme Court Practice than in the current edition e.g. in the 1980 Edition at p.472 et. seq. There is also a helpful consideration of the matter by Hunter J. in Lam Fong v. Kiu May Construction Company [1985] H.K.L.R. at p.25. I do not propose to set out those passages since the question is so clearly one of fact and the facts of this case do not appear to be paralled in any of the cases that have been brought to my notice. Proceeding then to the facts in this case, I do not think there could be said to be inordinate delay after the writ was filed but prior to the 3rd January 1984 when the 3rd Defendant supplied copies of his documents to the Plaintiffs. Indeed it was not sought to contend otherwise on behalf of the 3rd Defendant. But it was forcefully submitted for the 3rd Defendant that the Plaintiffs having been directed to set down within 48 days of the 30th March 1982, and that period having by consent been extended by five days on 21st April 1983, the delay after 3rd January 1984 was inordinate.

9. It is not disputed that the Plaintiffs took no action following receipt of the 3rd Defendant's copy documents on 3rd January 1984, except to file the notice of intention to proceed on 3rd July 1985, some 18 months later. The Plaintiffs' notice of intention to proceed can hardly be regarded as action to prosecute their claim; it was simply to save them from the consequences of their inaction. They continued their inaction for several more months until they were forced to react to the 3rd Defendant's summons for dismissal. In all the circumstances, particularly the further extension of time to set down, by only 5 days in April 1983, I have no hesitation whatever in concluding that the delay was inordinate. In applying the guidance offered by Cumming-Bruce L.J. in Tabata v. Hetherington (Times 15th December 1983) I think there can be no question but that the delay is materially longer than the time which is usually regarded by the courts and the profession as an acceptable period of time.

10. I proceed then to the question of whether the delay was inexcusable. No attempt has been made to point to any excuse. No do the affidavit filed on the Plaintiffs' behalf and the exhibits thereto, which are of not inconsiderable length, present anything that would excuse the delay. The desirability of doing that was pointed to at p.473 (25/1/3 B) of the Supreme Court Practice 1980. No excuse whatever having been brought to my notice I can only find that the delay was inexcusable, and indeed that seems in any case to be the position.

11. I proceed then to the 3rd principle i.e. prejudice. It was upon this that Miss Susan Kwan for the Plaintiffs rightly concentrated her submissions.

12. Before coming to those it is necessary to set out the facts in some greater detail and also to outline the pleadings. The statement of claim alleges that at all material times, the 3rd Defendant was occupying or carrying out excavation or construction work at the site. It alleges against the 3rd Defendant that the 3rd Defendant permitted the pool to accumulate to the hazard of vehicles using the adjoining road; that it failed to put up fences or barriers; and that it failed to display any signs or lights. Against the 1st Defendant it is alleged that he drove too fast, failed to take due care, exercise due skill and keep a proper lookout, and the like.

13. The 3rd Defendant denies that it was in occupation of the site, that it consented to the 1st Defendant's entry, that it permitted the pool to accumulate, and that it failed to put up a barrier and display signs.

14. The 1st and 2nd Defendants' 3rd party notice against the 3rd Defendant makes similar allegations to those in the statement of claim. By its statement of claim against the 1st and 2nd Defendants, the 3rd Defendant makes allegations similar to those of the Plaintiffs.

15. Among the issues will be the following: was the 3rd Defendant in occupation of the site, was it negligent or in breach of any duty to users of the adjoining road, in particular reference to the nature or absence of a barrier or fence and lights, and also to the accumulation of the pool of water.

16. At the time of the accident the 3rd Defendant was one of two contractors engaged by the Hong Kong Government to carry out excavation, site formation and other works over a large area. The 3rd Defendant's site agent was a Mr. Ma. He was one of its employees and had the day-today control and supervision over the site works. Of the 3rd Defendant's employees he was, it is affirmed, the best acquainted with the site works. He left the 3rd Defendant's employment prior to 1979, and some time in 1985 called in to say good-bye as he was emigrating. The assumption is that he has emigrated. Mr. Mak, the 3rd Defendant's Managing Director, says the 3rd Defendant does not have any means of contacting Mr. Ma.

17. At the time of the accident, the 3rd Defendant employed a sub-contractor at the site, one Mr. Ng. He would, it is claimed, have been familiar with the site and was likely to have been the person who erected a temporary barrier between the pool and the road. One of the 3rd Defendant's solicitors managed to trace him only to be told by Mr. Ng that he could no longer recall any matter relating to the issues. Mr. Mak's affidavit, which is relied upon by the 3rd Defendant in this respect, is framed, apparently quite deliberately, in less than helpful terms (as, I may say, it is in reference also to Mr. Ma). Although Mr. Mak knows a good deal about the site and works, it is reasonable to conclude that his knowledge cannot be as detailed as that one might have expected from Mr. Ma and Mr. Ng before the one emigrated and the other's memory failed. That in short is the prejudice upon which the 3rd Defendant relies. It is contended by the 3rd Defendant that once inordinate and inexcusable delay has been identified the position prior to the delay, even prior to the issue of the writ, can be looked to. That does not seem to be necessary in this case.

18. Miss Susan Kwan for the Plaintiff submitted that the 3rd Defendant will in any event have to defend the action on precisely the same issues and evidence in respect of the minor defendant's claim as upon the claim of the adult defendants; that therefore there could be no prejudice. It is clear from Craggs v. A.G. that the case of each defendant is separate and that the claim of a plaintiff in respect of which limitation applies can be dismissed notwithstanding that those of co-plaintiffs cannot because they are subject to disability which stops limitation running against them. I do not accept that the protection afforded to persons under disability should shelter co-plaintiffs who are not subject to disability from their inaction simply because their claims and the issues and evidence are the same.

19. Miss Kwan then went en to submit that there is no authority on the question of whether any or what degree of prejudice is necessary. She says first that the onus of establishing prejudice lies upon the 3rd Defendant. I would accept that.

20. Second Miss Kwan says the prejudice should relate to the issues in the action, and she relies for that upon the reference to a fair trial in the second limb of the Allen v. McAlpine principles. I observe that that second limb consists of alternatives, and that substantial risk that it is not possible to have a fair trial being one, and serious prejudice being the other. I think the prejudice need only be to the Defendant in pursuing its defence; it seem to me not to matter whether or not the prejudice relates to an issue though I imagine it usually will.

21. Third Miss Kwan submits that degree of prejudice must be substantial. In what way this is to vary or place a gloss upon the clearly stated principle in Allen v. McAlpine I am not sure. In the absence of authority to persuade the otherwise, I propose to adhere to the latter.

22. Miss Kwan then proceeded to identify the issues and to submit that the evidence of Mr. Ma and Mr. Ng was irrelevant or unnecessary. As to whether the 3rd Defendant was occupying the site, I do not think the 3rd Defendant will be caused serious prejudice by the absence of their evidence. However as to the nature of the barrier or fence, any lighting, and the accumulation of water in the pool, Mr. Ma and Mr. Ng may well have been able to provide some evidence.

23. The deaths of the two passengers naturally caused a great deal of concern at the time. There were reports for instance by the Resident Site Engineer and the Resident Engineer of the consulting engineers of the project; a type-written report by Mr. Ma to the officer-in-charge of the Shatin Police Station; a letter to the Project Manager from Mr. Mak exonerating the 3rd Defendant on 5 grounds, while refuting the former's allegation that certain instructions of the Engineer were not carried out. All these and probably more are still available.

24. In addition there are minutes of site meetings which Mr. Mak attended and which bear upon some of the issues, daily work reports of the 3rd Defendant, and copies of correspondence between the 3rd Defendant and the Resident Engineer. In short a considerable amount of documentary evidence.

25. Again, as I have already said, it is clear that Mr. Mak was by no means unfamiliar with the situation at the site, although it is reasonable to infer that he would not have been as knowledgeable about all aspects as would Mr. Ma and Mr. Ng. It is not alleged that his memory has faded.

26. I have already referred to one unhelpful aspect of Mr. Mak's affidavit. Another that underlines the 3rd Defendant's application generally is the absence of any positive indication that no other evidence is available; nor of what Mr. Ng himself has to say about his alleged total lapse of memory; a phone call from a strange solicitor is exactly what might prompt such a reaction to avoid involvement. No indication is given of any genuine steps to trace Mr. Ma.

27. Having regard to all the foregoing I am nonetheless satisfied on the probabilities that there is likely to be some prejudice to the 3rd Defendant from the absence of Mr. Ma and the failure of Mr. Ng’s memory. That prejudice could possibly be serious. But I do not think on the probabilities that that can be said to be likely to cause serious prejudice. On the contrary the considerable amount of documentary evidence, the availability of Mr. Mak, the obvious concern that the accident caused at the time and the resulting investigations that were carried out, the absence of any indication that other evidence is not available, all suggest to me the likelihood that the 3rd Defendant will not be seriously prejudiced.

28. In conclusion I would refer to draconian nature of the power, upon which the courts have commented. It should not be lightly exercised to drive a party from the judgment sent.

29. For the foregoing reasons the appeal is dismissed with costs.