SHEK CHI WAI v. JENNIFER CHAI

1993, NO. 6295

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an application under section 30(1) of the Limitation Ordinance Cap. 347 by the plaintiff. The plaintiff seeks an order from the court to override the time limits for a claim in respect of personal injuries.

2. According to the plaintiff, he alleged in his affidavit that on 25th February 1990 he left home at or about 13.00 hours. He proceeded to cross King's Road at the sub-zebra crossing near the junction of King's Road and Oil Street. It was in fact a pedestrian crossing controlled by traffic lights. There were renovation works going on in King's Road such that a wooden platform had been erected by the side of the road on which pedestrians could stand. It formed a bridge over a trench which had been dug in the road. He had partially crossed King's Road as he alleged. In fact he had just proceeded from the pedestrian sidewalk onto the front of the wooden platform. He was standing on the wooden platform waiting to cross to the other side of King's Road when, as he said, his right ankle was hit by a Mercedes Benz, registered number DM 3826 driven by the 1st defendant.

3. In the plaintiff's statement to the police on 26th March 1990, he said this,

"As there were road works in the left lane of eastbound carriage way of King's Road, a wooden bridge was placed there for pedestrians to cross the road. I stepped on the wooden bridge, standing near the road. At that time, the red traffic light was on. I did not pay attention to things around me but just looking south. At that time I stood on the foremost part of the wooden bridge and was close to the railings on the east. After the green walking man signal was on for one to two seconds (At that time, the pedestrians on the other side had stepped out on the road but no one on my side walked out), I heard a "bang". I then took a look at the right immediately. I saw something being thrown out but I did not know what it was. I also saw a private car DM 3826 travelling eastward at a distance of one to two feet (the distance between its front and me) from me. Then the private car drove past me quickly. Afterwards, my right foot felt very painful. Private car DM 3826 only stopped when I cried. Later, police arrived to handle the accident."

4. In his evidence the plaintiff pointed to a red dot on the wooden platform in the diagram at page 10 of bundle one. He said the wooden platform was raised half to one foot above the road. According to the diagram, he was just on the front of the wooden platform before the road for vehicles. He eventually sat on the left side of the platform but beyond it, on the road just by the side of the road works.

5. The plaintiff said he was not sure how he was injured and how the defendant's car struck him and in particular his ankle. It was not the plaintiff's case that the near side mirror of the defendant's car struck him causing him to twist his ankle. In his evidence before me, he did not say that he actually stepped onto the road and was struck by the defendant's car. He was not on the road yet. In fact, he was not sure which part of the car had come into contact with him. In other words, he was not sure how the accident actually happened.

6. In this application the plaintiff said he was told by doctors both at Tang Siu Kin Hospital and the Out-Patient Department thereof that a medical report could not be prepared until three years later and he could not institute any proceedings until the report was ready. It was not until September 1992 that he was told by a Mr Ng of the Traffic Accident Victim Assistance Fund ("TAVAF") that there is a three-year's limitation period for a claim in personal injuries.

7. The plaintiff said he went to the Legal Aid Department in January 1993 with an introduction letter from TAVAF and he gave it to the staff of Legal Aid Department. There is no explanation why he waited until January 1993, but in any event he was still within time by then. He was told by the staff of the Legal Aid Department to go home and wait for their reply. In April 1993 he went to Legal Aid Department as he was told.

8. After the last hearing before me, the matter was adjourned and a second bundle was placed before me. It comprised documents from the Legal Aid file. The documents, I was told, were all the documents relevant to the application before me. They do not support the plaintiff's story. The first document was a legal aid reference card by the number of 11109/93 dated 19th April 1993. Pages 2 to 5 are Form 1 of Application for Legal Aid dated 19th April 1993.

9. At page 14 there was a memo from the Director of Social Welfare (Traffic Accident Victims Assistance Section) to Director of Legal Aid informing them that the plaintiff had made an application for assistance under

the TAVAF scheme and $24,832 had been paid to him. In case of payment by the tortfeasor as a result of a claim of damages, the Director of Social Welfare asked Director of Legal Aid to transfer the same amount to them. Together with this memo it was enclosed therewith an agreement by the plaintiff to authorise the Director of Social Welfare to receive the same amount out of any damages or compensation awarded to him or to be awarded to him as a result of an anticipated claim. The memo was dated 12th July and the letter of authorisation of the plaintiff was dated 9th July 1993. Apparently it was the first contact between TAVAF and Director of Legal Aid and there was no reference to any previous introduction letter given to the plaintiff.

10. I have the impression that the plaintiff probably had confused this letter with what he called a letter of introduction which he gave to the Legal Aid in January 1993. There was no reference whatsoever that there was any attendance by the plaintiff on the Legal Aid Department in January 1993. In short, I found that the plaintiff did not attend Legal Aid Department after September 1993 when he was first aware of the three years limitation until April 1993 i.e. a period of about seven months.

11. There was no clear evidence to explain why he waited for seven months or why he waited from September 1992 until January 1993. He told me there were two burglaries on his home in August 1992 and October 1992. At first the plaintiff said he had lost some documents but it turned out that there was no loss of any document which had hindered him from going to Legal Aid or which had hindered him from processing his application. In fact in August 1992 he began to work again for a year until August 1993.

12. Section 30 of the Limitation Ordinance provided that:

"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -

(a) the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents, the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(2) The court shall not under this section disapply section 28(2) except where the reason why the person injured could no longer maintain an action was because of the time limit in section 27; so that if, for example, the person injured could at his death no longer maintain an action under the Fatal Accidents Ordinance because of the time limit under the Carriage by Air (Overseas Territories) Order 1967, the court has no power to direct that section 28(2) shall not apply.

(3) In acting under this section this court shall have regard to all the circumstances of the case and in particular to -

(a) the length of, and the reasons for, the delay on the part of the plaintiff,

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against he defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

13. Apart from the prejudice the defendant might suffer, I have to consider all the circumstances of the case. The defendant said she was prejudiced because she did not report the matter to the insurers until after the writ was issued. Eventually I think Mr Hung for the defendant agreed that this point is a red herring. Even if, in my view, the defendant had, within the time limit shortly before 25th February 1993, instituted the present proceedings, the defendant would still have been late in reporting the matter to the insurers. The insurers would in any event still repudiate the policy leaving the defendant liable to pay for any damages the plaintiff might have succeeded in claiming against her.

14. In the case of Thomson v Brown (1981) 1 WLR 744, Lord Diplock said at page 750,

"Section 2D empowers the court to direct that the primary limitation period shall not apply to a particular action or cause of action. This is by way of exception, for unless the court does make a direction the primary limitation period will continue to apply. The effect of such a direction, and its only effect, is to deprive the defendant of what would otherwise be a complete defence to the action, viz. that the writ was issued too late. A direction under the section must therefore always be highly prejudicial to the defendant, for even if he also has a good defence on the merits he is put to the expenditure of time and energy and money in establishing it, while if, as in the instant case, he has no defence as to liability he has everything to lose if a direction is given under the section. On the other hand, if, as in the instant case, the time elapsed after the expiration of the primary limitation is very short, what the defendant loses in consequence of a direction might be regarded as being in the nature of a windfall."

15. In other words, Lord Diplock only referred to the windfall in cases where the defendant had no defence. Here the prejudice to the defendant is to deprive her of what would otherwise be a complete defence to the action. Further she would be put to the expenditure of time and energy and money in establishing her defence.

16. The plaintiff's reason, as I have said, in explaining his delay is not convincing. It is not true that he contacted the Legal Aid Department in January 1993. Otherwise it would have been very apparent to the staff of the Legal Aid that the matter was very urgent because time would have run out very shortly afterwards. The plaintiff has delayed for seven months. He did not go to the Legal Aid Department until, as I found, April 1993. In my view the length was quite considerable in the circumstances of the case and there was no explanation for such a delay. The plaintiff had not acted promptly and reasonably once he was aware of an actionable claim for damages.

17. The plaintiff also relied on subsection (d), that is the duration of any disability arising after the date of the accrual of the cause of action. No doubt the plaintiff was hospitalised for some time. However, he started to work by August 1992. Mr Hung for the defendant submitted that disability referred to the legal disability of a person being a minor or being a person under the Mental Health Ordinance. However, Mr Hung submitted the decision which he found was decided against him. This is Pilmore v Northern Trawlers Ltd 1986 1 Lloyd's Law Report 552. Eastham, J. said at page 554,

"I now come to the one which has caused me the most serious worry and concern, and that is (d), the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action, because this unfortunate man sustained dermatitis during the course of his employment, and had the cause of action been pursued, almost certainly, subject to any issue of contributory negligence, he would have prevailed to some extent at any rate in his claim. In any event he would be more likely to succeed than to fail, and it is clear and conceded that this disability, apart from the three occasions upon which he has worked, has continued right from the date of the accrual of the cause of action whenever that was, between 1971 and 1980, and the present time, and is likely to continue in the future, and, therefore, it is an important consideration."

In other words, Eastham, J. considered that disability sustained by dermatitis, a kind of physical disability, is the disability suffered by the plaintiff.

18. This sub-section provided for "the duration of any disability of the plaintiff". Mr Chan for the plaintiff submitted that if the legislature had in mind disability because of minority and mental health, it would not say "disability of plaintiff arising after the date of the accrual of the cause of action". Minority would not be applicable. It is inconceivable that disability could be caused after the accrual of the cause of action in terms of minority. The only other thing is the plaintiff became mental patient after the accident which gave rise to the cause of action. If it is limited to injury which rendered the plaintiff becoming mental health patient, the legislature would have said so. I agree with Mr Chan that disability has its ordinary, general meaning rather than a term of art of disability restricted to minority and mental health patient only.

19. However, in my view, there is no disability on the part of the plaintiff in the case before me which impaired him from taking any action. There was no severe disability to immobilise the plaintiff. As I have said, by August 1992 he started working again. There is no suggestion that he could not go to Legal Aid after he had gone to TAVAF in September 1992 when he was told by Mr Ng of the three years limitation period. In my view, the plaintiff's disability in this case is irrelevant.

20. Apart from the delay which was not explained properly by the plaintiff, I find it very important in this case to consider the prospect or futility of the plaintiff's claim. There is no clear evidence of how the accident actually occurred and in what way the defendant was negligent. There is no clear evidence from the plaintiff of how the defendant's vehicle came into contact with him. Apparently, according to his version, he was moved for some distance from the platform to the left side of it. Eventually he sat on the road. There was no suggestion that the defendant's vehicle had crossed or mounted the wooden platform and came into contact with him. There is no suggestion that there was an impact of the side mirror with the plaintiff which caused him to fall and twist his ankle. The plaintiff only said he just heard loud bang and then he just collapsed and sat on the road and found his ankle "deformed".

21. After I heard the plaintiff's version and the defendant's testimony, I could not pinpoint any negligence on the part of the defendant. The defendant said she suspected that the plaintiff somehow twisted his own ankle and then grabbed hold of the side mirror and that was the reason why the side mirror was damaged. It was not the plaintiff's case that the defendant's vehicle struck the plaintiff with the side mirror. The defendant categorically said there was no contact, she was aware of, between her vehicle and the plaintiff. The plaintiff could not say which part of the defendant's vehicle actually had contact with him.

22. I find that what really influenced me in this case (apart from the delay which has not been explained by the plaintiff and the fact that the defendant would be prejudiced in the sense that she would have to be put to time and money and energy to defend the action) is that it would be futile to allow the plaintiff's claim to proceed. There is no clear evidence which can pinpoint the negligence of the defendant. It would be futile to allow the plaintiff to proceed in this case.

23. For the aforesaid reasons I would, in the end, not exercise my discretion to override the limitation period pursuant to section 30 of the Limitation Ordinance as sought from me by the plaintiff.

24. The order I am making is: the plaintiff's application is dismissed. Consequently the plaintiff's action is dismissed. Costs of the application and the action be to the defendant to be taxed if not agreed. The plaintiff's own cost to be taxed in accordance with Legal Aid regulations.