HO OI MUI AND OTHERS v. KUONI TRAVEL (CHINA) LTD

HCPI 642/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 642 OF 2015

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R U L I N G

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1.  This is the defendant’s application to dismiss the action under Order 12, rule 8A and Order 2 of RHC, Cap 4A.

Background

2.  This is a personal injury claim concerning a tragic hot air balloon accident in Egypt on 26 February 2013.  The plaintiffs were the victims and the defendant is a travel agent in Hong Kong.

3.  A “protective” writ was taken out on 17 June 2015 (which was well before the limitation period should run out) which has not been served.  The Indorsement of Claim stated that the plaintiffs claim for damages “arising from the death…as a consequence of the negligent/or breaches of statutory duty of the defendant its servants or agents…”

4.  On 9 July 2015, the defendant served a Notice pursuant to Order 12 rule 8A on the plaintiffs requiring them to serve the writ within 14 days.

5.  The plaintiffs failed to do so and the defendant took out the current application on 15 September 2015 to dismiss the action.

6.  The death inquest concerning this accident is scheduled for 15 to 26 February 2016.

Issues in dispute

7.  Mr Chiu, solicitors for the defendant, submitted that the delay was unreasonable:

(a) There was no need to wait for the Death Inquest since the findings would not concern civil liability (Coroner’s Ordinance (Cap 504) ss 27(b) and 44, Dr. Gilbert Tien v William Lam Esq. [2004] 2 HKLRD 719 and Cheung Tai Fung v Hospital Authority DCPI 1606/2010);

(b) The case should be dealt with expeditiously as is reasonably practicable (Order 1A, r1(b)) and the plaintiffs should have all the information they need to pursue the claim including the accident report from Egypt, police statements, the expert report commissioned by the Police etc.  There should be no need to wait for the full transcript of the criminal proceedings in Egypt since the defendant was not a party to that (the full transcript was available on 12 October 2015 after the current application has been taken out).

(c) The defendant has suffered prejudice by not knowing the plaintiffs’ case against it.

8.  Whilst I agree that the plaintiffs may have enough information regarding the “probable” causes of the accident (which appeared to be stated in the accident report and, I would presume (as I have not seen it), in the expert report, this claim is more than that.  The defendant obviously is not the Egyptian operator of the balloon.  The crux of the claim, besides the need to establish negligence on the part of the balloon operator, was whether the relationship between the plaintiffs and the defendant was such that a duty of care and casual link could be established to the subject accident.

9.  The relationship between the defendant and the balloon operator is not entirely clear at this stage.  I understand from Mr Yim, counsel for the plaintiffs, that the plaintiffs may summon a witness at the inquest who may provide further information on the relationship between the defendant and the travel agent which organised the balloon tour in Egypt.

10.  Whilst I am not certain whether such a witness may provide useful information at the setting of the inquest, I cannot conclude that the plaintiffs have all the information required on hand to pursue the claim and no further investigation is needed.

11.  Given that the accident occurred less than 3 years ago and the obvious complexity in the nature of the claim, I cannot see any unreasonable delay on the plaintiffs’ part and any prejudice perceived by the defendant must be balanced by the need for overall fairness to the plaintiffs to allow adequate time for reasonable investigations, even if one may raise some criticisms that the “protective” writ was issued somewhat prematurely.

12.  More importantly, given the time frame, any claim in negligence is not yet time-barred.  It seems common sense that the Court should not dismiss one action only to have the plaintiffs re-issue another.

13.  Furthermore, the writ has not even expired.  It is therefore entirely premature for the Court to even consider dismissing the action.

14.  This would leave the issue of whether the Court should “make such other orders as it thinks fit” under Order12 rule 8A(2).

15.  Mr Chiu suggested that the court should set a time limit for the plaintiffs to serve the writ.

16.  However, I agree with Mr Yim that this is entirely premature, given the writ has not yet expired and the need for further investigations as stated above (via the death inquest or otherwise).  Surely, if the plaintiffs should fail to serve the writ by June 2016 and was applying to extend the validity of the writ, Mr Chiu’s arguments might be more valid and reasonable in opposing such an application.

Order

17.  I would therefore order that the defendant’s application be dismissed with costs to the plaintiffs with Certificate to Counsel.  If no agreement on costs is reached, the plaintiffs are to serve and lodge a summary statement of costs within 28 days of this Order and the defendant is to serve and lodge a list of objections 28 days thereafter for summary taxation on paper.