YIP WING HONG v. MAEDA CORPORATION

HCPI 518/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 518 OF 2000

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J U D G M E N T

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1. This is a trial of a preliminary issue on whether the Court should disapply the provisions of section 27 of the Limitation Ordinance, Cap. 347 ("the Ordinance"), and allow the plaintiff to proceed with the action under section 30 of the Ordinance.

The Plaintiff's claim

2. The plaintiff was employed by the defendant as a tunnel worker at the defendant's construction sites in Lai King MTR station. His work involved waterproofing the surface of a tunnel under construction.

3. By a writ of summons issued on 8 May 2000, the plaintiff brought an action against the defendant claiming damages for personal injuries, losses and damage sustained in two accidents which occurred on 14 September 1996 ("the 1st accident") and on 21 January 1997 ("the 2nd accident") respectively.

4. In respect of the 1st accident, it is pleaded in the amended statement of claim that on 14 September 1996, whilst the plaintiff was lifting and moving rolls of waterproofing materials inside a tunnel, he stepped on a heap of wet and muddy debris; lost his balance and fell onto the ground. It is averred that as a result of the accident, the plaintiff suffered injuries to his back and was granted sick leave for 8 days from 14 September 1996 to 21 September 1996. Thereafter, the plaintiff resumed his work for the defendant until he was dismissed by the defendant on 4 December 1996 by reason of redundancy.

5. In about late December 1996, the plaintiff suffered a relapse of back pain and was granted a further sick leave period of 15 days.

6. On 12 January 1997, the plaintiff was re-instated and re-employed by the defendant. He continued to work for the defendant until he met his 2nd accident on 21 January 1997.

7. For the 2nd accident, it is pleaded in the amended statement of claim that on 21 January 1997, whilst the plaintiff was standing on a temporary working platform trying to retrieve a metal pipe from a pile of bars and pipes, he lost his balance and fell from the platform onto the ground. It is pleaded that as a result of the accident, the plaintiff sustained serious injuries to his back. He suffered a disc extrusion between the 4th and 5th lumbar vertebra and had to undergo fenestration and disectomy. He was granted sick leave for a period of about 301/2 months and is not expected to return to his pre-accident job.

8. In the present action, the plaintiff sues the defendant as his employer and occupiers of the sites in question. He bases his claim on negligence; breach of implied contractual duties to provide safe system and safe place of work; breach of statutory duties under the Construction Site (Safety) Regulations and under the Occupiers Liability Ordinance and at common law. According to the statement of damages filed on 8 May 2000, the total amount of claim by the plaintiff amounts to over $6 million.

9. In the defence filed on 4 July 2000, the defendant denied the allegations and simply put the plaintiff to strict proof of the accident and as to breaches of duty, loss and damage. The defendant also asserted that the action was barred under the Ordinance.

10. Apart from the present action, I should mention that the plaintiff was granted legal aid to institute employees' compensation proceedings against the defendant in respect of the said 2 accidents namely under DCEC No. 546 of 1998 and DCEC No. 559 of 1998. Both employees' compensation claims were commenced within the statutory time limit stipulated under the Employees' Compensation Ordinance, Cap. 282. In the Answers filed by the defendant thereto, the defendant initially denied the claims and put the plaintiff to strict proof. Subsequently by a Consent Application dated 25 May 2000, the defendant admitted liability in respect of the employees' compensation claims and judgment was entered against the defendant. Compensation in the sum of $794,000.00 was awarded to the plaintiff together with costs.

The Issues

11. Section 30(1) of the Ordinance provides that if it appears to the Court that it would be equitable to allow an action to proceed, the Court may direct that the provisions of section 27 shall not apply to the action.

12. The Court in exercising its unfettered decision to disapply the limitation period, should consider whether it would be equitable, i.e. fair and just, to allow the action to proceed. And in deciding whether it is fair and just to allow the action to proceed, the Court has to take into account under sections 30(1)(a) and (b) prejudice to both the plaintiff and defendant, that is prejudice that would be suffered by the plaintiff if the action was not allowed to proceed and prejudice that would be suffered by the defendant if the action was allowed to proceed. The Court should also take into account all the circumstances of the case and in particular to the six specific matters mentioned in section 30(3) of the Ordinance (see Hartley v. Birmingham City District Council [1992] 2 A11 ER 213 and Halford v. Brookes [1991] 1 WLR 428). In this connection, the onus is on the plaintiff to show that in the particular circumstances of the case, it would be equitable to override the time limit. (Thompson v. Brown [1981] 1 WLR 744 at p. 752, and cited by Sakhrani J. in Ng Ngan Chiu v. Paramount Printing Co. Ltd. [1998] 3 HKC 730 at p. 734)

13. In the present case, it is not in dispute that the action was brought after the expiration of 3 years from the date of either accident. The 1st accident was commenced about 8 months after the expiration of the limitation period and the 2nd accident was instituted about 31/2 months after the expiration of the statutory time limit. However, Mr. Chan, Counsel for the defendant, argued that due to the fault of the plaintiff there was delay in instituting the present action and for which the plaintiff had failed to explain the cause of such delay. Mr. Chan further contended that the delay had caused serious prejudice to the defendant and that the Court should not exercise its discretion to disapply section 27 of the Ordinance. I shall now turn to the arguments.

14. For the purpose of this hearing, the chronology of events and the bundle of documents prepared by the plaintiff's solicitors are agreed by the parties. The statement of the plaintiff, Mr. Yip Wing Hong dated 3 October 2000 and the statement of Mr. Yamakita Takeshi, Chief Administrator of the defendant, dated 1 March 2001 are also admitted as evidence by agreement.

The delay

15. Under section 30(3) of the Ordinance, the Court is required to consider all the circumstances of the case and in particular to the six specific matters set out thereunder. One of them is the length of, and the reasons for, the delay on the part of the plaintiff. If the delay is due to the fault of the plaintiff, this must be an important factor in the balancing exercise as delay can lead to the fading of recollections and disappearance of evidence to the extent that a fair trial cannot be had. As pointed out by Parker LJ in Hartley v. Birmingham City District Council [1992] 2 All ER 213 at 224 that:-

"......as prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."

16. On the other hand, the Court has to consider the delay in the pre-limitation period (see Ng Ngan Chiu v. Paramount Printing Co. Ltd. (supra) at p. 562. Sakhrani J. citing Donovan v. Gwentoys Ltd. [1990] 1 WLR 472).

17. In the chronology of events submitted at the hearing, it sets out in detail the events and the steps taken by the plaintiff prior to the commencement of the present action. Mr. Wong, Counsel for the plaintiff, submitted that because of the 2nd accident in January 1997, the plaintiff suffered serious injuries to his back. He was granted sick leave for a long period of time and was required to attend follow-up treatments. In a MRI scan done in May 1997, it was confirmed that the plaintiff had a disc extrusion between L4 and L5 lumbar vertebra. He was then admitted to hospital and was required to undergo fenestration and disectomy operation. He was discharged on 30 September 1997.

18. However, just over a week after his discharge from hospital, the plaintiff was diagnosed (i.e. on 9 October 1997) to have suffered from a life-threatening illness namely seminoma of the right testis. In his witness statement dated 3 October 2000, the plaintiff described his feeling as follows:-

"......At this point in time, I was very upset and depressed. I did not quite understand how and why bad luck should strike at my door twice......."

19. On 4 February 1998, another operation was done on the plaintiff to remove his right testis. This was followed by 2 courses of chemotherapy treatment and other follow-up treatments.

20. The plaintiff first applied for legal aid to sue the defendant for employees' compensation and common law damages on 17 April 1998 which was about 2 months after his operation to remove his right testis. However, his applications for legal aid to claim for employees' compensation were granted (for both accidents) but not his common law claims. Thereafter, the plaintiff had on 3 separate occasions lodged similar applications for legal aid to sue the defendant for common law damages. All these subsequent applications were refused on grounds that he had no merit in his claims and that it was unreasonable in the particular circumstances of the case to grant him legal aid. The plaintiff had lodged appeal against the decision of the Director of Legal Aid in the High Court, but his appeal was again dismissed by the Deputy Registrar. Because of the plaintiff's repeated applications for legal aid in connection with his common law claims, a "Regulation 11 Order" was issued against him by the Director of Legal Aid under the Legal Aid Regulations. The effect of this order is that any further applications for legal aid by the plaintiff on the same or similar subject matter would not be considered by the Legal Aid Department for a period of 3 years.

21. In about February/March 2000, the plaintiff's applications for common law claims were reviewed by another Legal Aid Counsel. After a re-assessment of the matter, legal aid was eventually granted to the plaintiff to commence the present action. Base on the above, Mr. Wong argued that the plaintiff was not a dilatory person. The delay in commencing the present action was not entirely his fault. He submitted that the plaintiff only received education up to primary 5 level in the Mainland, and after his repeated applications for legal aid were rejected, the plaintiff, who was then a cancer patient, simply did not have the financial means, the ability nor the mental strength to pursue his claims against the defendant. He said the delay was understandable.

22. In support of his contention, Mr. Wong cited the case of Rule v. Atlas Stone Co. [1987] C.L.Y. para. 2335. In that case, the plaintiff's wife died of mesothelioma. The plaintiff took no steps to issue proceedings as he was upset and depressed. He had to look after 4 children and work as a long-distance lorry driver. There was a delay of 18 months between the date of expiry of the 3-year limitation period and the issue of proceedings, but it was held, inter alia, that although the plaintiff did not act promptly but this was understandable. The plaintiff in that case was allowed to proceed with his claim.

23. On this issue of delay, Mr. Chan, Counsel for the defendant, argued that the plaintiff's medical condition and his subsequent cancer illness were not good reasons for the delay in issuing the present action. He submitted that the delay in bringing the present action was caused by the Legal Aid Department's refusal to grant legal aid to the plaintiff which was due to the plaintiff's failure to satisfy the Legal Aid Department that he had merits in his claims and hence the fault of the plaintiff. He submitted that the plaintiff had also failed to explain the cause of delay.

24. In the instant case, and having considered the evidence before me in particular to the chronology of events and the statement of the plaintiff, I am satisfied that the delay in instituting the present action cannot be regarded as a long delay. The delay in respect of the 1st accident is less than 8 months. For the 2nd accident, it is less than 4 months. But more importantly, I find and accept that there are good reasons for the delay and that this is not a case where there was inactivity on the part of plaintiff.

25. I accept that no steps had been taken by the plaintiff prior to 17 April 1998 (i.e. the date the plaintiff first applied for legal aid) to pursue his claims against the defendant, but the failure could be explained by the fact that during this period of time, the plaintiff was suffering from back injuries as well as seminoma of the right testis; an illness which could be life-threatening. He had to undergo 2 operations and was required to take chemotherapy treatments. According to the plaintiff, he was "very upset" depressed, confused and scared during that period of time". I accept that with the plaintiff's condition and predicament at that time, he would not have the physical and mental strength to pursue his claims.

26. As to the delay after 17 April 1998, I take the view that the failure of the plaintiff in obtaining legal aid was not entirely his fault. On the evidence, the plaintiff had taken all reasonable steps to apply for legal aid. He had made 4 applications between 17 April 1998 to 24 August 1999, but all his applications were respectively rejected. On 15 September 1999, he appealed to the High Court against the refusal but it was dismissed. Indeed, his persistence in applying for legal aid had led to the issue of a "Regulation 11 Order" against him. In my view, the plaintiff had done what he could have reasonably done in order to obtain legal aid. The fact that his applications were refused on ground of lack of merits is something which is beyond the control of the plaintiff. The reality is that without the assistance of legal aid and given his education background, the plaintiff would not have the financial means nor the ability to pursue his claims against the defendant.

27. In the case of Hymer v. Mass Transit Railway Corporation & others [2000] 2 HKLR 589, Mr. Justice Ribeiro, JA (as he then was) had discussed about the delays caused by difficulties in obtaining legal aid. This is in the context of striking out a claim for want of prosecution on grounds of inordinate and inexcusable delay. At page 607 thereof, Mr. Justice Ribeiro, JA agreed with the Judge of the First Instance and stated that:-

"......difficulties in obtaining legal aid may, in appropriate circumstances, constitute a valid excuse for delays in progressing an action. Thus in Birkett v. James [1978] AC 297 itself, Lord Salmon (at p. 327) stated that it was impossible to consider a delay "due to obtaining legal aid" inexcusable."

He continued at page 608 and stated that:-

"As I read it, Lord Salmon's dictum contemplated excusable delays incurred in the process of getting legal aid, for instance, where the ultimately successful applicant encounters complications and takes a particularly long time to secure approval. Indeed, a diligent application for legal aid may well be regarded as part of the plaintiff's proper prosecution of the action, preventing the time spent in that process from being regarded as in any way inexcusable."

But in the context of the Hymer case itself, Mr. Justice Ribeiro, JA held that the very long delays in that case cannot be excused on the basis that they are attributable to difficulties in getting legal aid.

28. As we see from the Hymer case, some delays caused by difficulties in obtaining legal aid may, in appropriate circumstances, be excusable. And as far as the instant case in concerned, I am of the view that there was no long delays on the part of the plaintiff in applying for legal aid. Apart from some delay caused by his illness, the plaintiff had taken all reasonable steps to obtain legal aid and had acted promptly in lodging appeal against refusal of legal aid. The delay, in my judgment is short. It is explicable and understandable. It should not be weighed heavily against the plaintiff in the balancing exercise.

The Prejudice

29. Under section 30(1) of the Ordinance, the Court has to balance the prejudice to the plaintiff if he is shut out from prosecuting his claim against the prejudice to the defendant if he is called upon to resist the claim after the limitation period has expired. On this issue, Mr. Chan, Counsel for the defendant based his argument under 2 limbs namely prejudice to the plaintiff and prejudice to the defendant.

30. On the issue of prejudice to the plaintiff, Mr. Chan submitted that the plaintiff had a weak case against the defendant. He argued that at different stages, the plaintiff had given a different account as to how the accidents occurred. He said that the descriptions given by the plaintiff to his doctors namely Dr. Au Ka Kan and Dr. Cheng Chi Chung on how he injured in the accidents were not in complete accordance with the pleaded case. For instance, the plaintiff pleaded that the 1st accident occurred when he stepped on a heap of wet and muddy debris and fell on to the ground. But the medical report prepared by Dr. Au only stated that the plaintiff sprained his back whilst lifting the waterproofing materials. There is no mention of any slipping and falling. Further in the 2nd accident, the plaintiff pleaded that he fell from a working platform. In the medical report by Dr. Cheng, the plaintiff had not mentioned of any falling from a working platform. He only claimed that he sprained his back whilst lifting heavy objects.

31. Mr. Chan further contended that the pleaded case of the plaintiff is also different from the facts stated in the employees' compensation Application under DCEC No. 559 of 1998. In the amended statement of claim, it is averred that the plaintiff fell from a working platform in the 2nd accident. The EEC Application had not referred to any falling from a working platform.

32. On the above basis, Mr. Chan argued that the present claim against the defendant was weak. In any event, he said that the prejudice to the plaintiff was minimised as the plaintiff had received some damages in the sum of $794,000 by way of employees' compensation. He said that the amount of damages claimed under present action was highly exaggerated as it had failed to take into account of the intervening event/illness namely the seminoma of the right testis suffered by the plaintiff which could affect the amount of damages the plaintiff claimed.

33. On the issue of prejudice to the defendant, Mr. Chan contended that the delay in commencing the present action had caused serious prejudice to the defendant. He said that it was very difficult, if not impossible, for the defendant to defend the plaintiff's claims as the defendant would be unable to retrieve the relevant documents, locate or identify the related witnesses.

34. He submitted that the related project in which the 2 accidents occurred was completed at the end of March 1998. All the foremen and labourers were laid off. It was thus difficult for the defendant to locate eye-witnesses for the plaintiff's accidents. He said that the defendant used to rely on its ex-general foreman, a Mr. Lau Fai Sang for matters relating to former workers, but the said Mr. Lau passed away on 24 April 2000, after the expiration of the limitation period. As such no one could assist the defendant to locate and identify the ganger supervising the plaintiff and the co-workers working with the plaintiff. Further, due to the demolition of the sub-office and project sites, some of the documents and records relating to the projects, such as the day-to-day allocation plan for gangers and workers had all been disposed of. However, I observe that save the said day-to-day allocation plan, the defendant has not been specific as to what documents and records relating to the accidents and which may assist the defendant have been disposed of.

35. On the issue of prejudice, Mr. Chan took 2 further points. Firstly, he submitted that had the plaintiff issued a letter before action or a general indorsed writ before the limitation period expired, the prejudice caused to the defendant would have been greatly reduced. Secondly, he stated that although the plaintiff had instituted employees' compensation proceedings against the defendant, the issues involved in the employees' compensation proceedings and common law claims were entirely different, thus the evidence required was also different.

36. In response to the above, Mr. Wong, Counsel for the plaintiff, did not dispute that the pleaded case of the plaintiff was in some respects different from the facts stated in the employee's compensation Applications. He explained that this might due to some confusions or misunderstandings between the plaintiff and his legal representatives.

37. I observe that the facts stated in the Application for employee's compensation were inconsistent with the plaintiff's pleaded case herein, but this would not, in my view, necessarily follow that the plaintiff must have a weak case. Whether the plaintiff could prove his claim would depend on the evidence adduced at the trial and not just on the pleadings. Indeed, the pleadings could be amended by appropriate application if necessary. Further, it is not appropriate for the Court to go into the details of the evidence at this stage and inquire into what the plaintiff had said or had not said to his doctors when he consulted them. All these would be a matter of evidence to be examined and resolved at the trial. What is more important for the Court to consider is whether the plaintiff has any prospect of success in his claim. As pointed out by Lord Diplock in Thompson v. Brown Construction (Ebbw Vale) Ltd. [1981] 2 All ER 296 at p. 301-303 and cited by Parker LJ in Hartley v. Birmingham City DC [1992] 2 All ER at p. 220 that:-

"...... the degree to which the plaintiff would be prejudiced by being prevented from proceeding with his action will be affected by how good or bad would have been his prospect of success;......"

38. On the prospect of the plaintiff's claim, I note that the defendant had submitted two Form 2 (pursuant to section 15 of the Employees' Compensation Ordinance, Cap. 282) to the Commissioner for Labour in respect of both accidents. The defendant's safety officer, a Mr. Henry Kwok ("Mr. Kwok") had also investigated and compiled two reports on the 2nd accident (see p. 88-100 of the bundle of documents). In my view, although the said Form 2 and reports prepared by the defendant had given a somewhat different description of how the two accidents occurred, these documents lend support to the plaintiff's claim that he had on the dates in question had two accidents at the defendant's sites. The admission of liability by the defendant in the employee's compensation proceedings further support his case. On the other hand, and as pointed out by Mr. Wong, the safety officer Mr. Kwok had in fact stated in his report that the "unsafe conditions" in the 2nd accident were due to "unsafe process or job methods". In this respect, I tend to agree with Mr. Wong's submission that there is at least a good arguable case against the defendant in negligence and possibly breach of statutory duties under the relevant ordinances.

39. On the argument by Mr. Chan that evidence used for employees' compensation proceedings would be different from the evidence required in the common law proceedings, I cannot with respect agree. In my view, both set of proceedings involve different legal issues, but they would not involve different issue of facts and thus the evidence to prove those facts. In my opinion, both proceedings would involve the same issue of facts namely on whether the accidents had occurred to the plaintiff at the sites in question, if so, when, how and under what circumstances they occurred; what were the causes of the accidents and whether the plaintiff suffered any injuries as a result. All these are common issue of facts involved in both proceedings.

40. On the available evidence, I agree that the plaintiff does not have an overwhelming or case-iron case against the defendant, but considering the plaintiff's claim as a whole, he does have a good arguable case with reasonable prospect of success. If the Court accepts that the plaintiff's cancer illness does not amount to an intervening event, and his evidence on the loss of earnings and loss of earning capacity is accepted by the court, there is a reasonable prospect that he may be awarded substantial damages over and above the employee's compensation that he received namely in the sum of $794,000.

41. On the issue of prejudice to the defendant, I do not agree that the defendant's failure to retrieve documents, locate and identify witnesses was caused by the plaintiff's delay.

42. I agree that prior notice of the common law claim is important to a defendant as it would afford an opportunity to the defendant to prepare for the claim that he has to meet. As stated by Lord Griffiths in Donovan v. Gwentoys Ltd. [1990] 1 All ER 1018 at p. 1024 that:-

"In weighing the degree of prejudice suffered by a defendant it must always be relevant to consider when the defendant first had notification of the claim and thus the opportunity he will have to meet the claim at the trial if he is not permitted to rely on his limitation defence......"

43. In the present action, Mr. Chan argued that the plaintiff had not received any notice of the intended common law claims before the limitation period expired. The letter before action was issued by the Legal Aid Department only on 28 April 2000 which was after the limitation period. He therefore submitted that the delay in commencing the present action couple with the lack of notice prior to the limitation period had caused serious prejudice to the defendant. The defendant was deprived of the opportunity to prepare for the claim, to retrieve the relevant documents and locate the witnesses.

44. It is correct that no notice of common law claim had been issued to the defendant before the limitation period expired, but the fact is that the defendant had been sued for employees' compensation in respect of the same accidents back in 1998 and before the expiration of the limitation period for common law claim. As I have pointed out above, though the common law claim and the employees' compensation proceedings involved different legal issues, they do have a common issue of facts. As such, when the defendant was served with 2 claims for employees' compensation in July and August 1998 respectively, it would be reasonable to expect that the defendant or its legal advisers would take steps to collect and preserve documents relating to the accidents as well as to identify and locate witnesses to meet the employees' compensation claims. It is to be borne in mind that the defendant had initially denied the claims in the employees' compensation proceedings, all the more that the defendant would be expected to take steps to collect evidence to defend the claims. It is therefore surprising to learn that the defendant only began to retrieve the relevant documents and locate witnesses after it had received notice of the intended common law claim in April 2000. Indeed, if Mr. Chan's argument is accepted, does that mean that despite the employees' compensation claim received in July/August 1998, the defendant had not collected any document regarding the accidents nor taken proof of evidence from any witness at all? If that is the case, the defendant could not put the blame on the plaintiff for its failure to retrieve documents or to locate witnesses. In my view, the defendant should have collected and preserved the relevant documents and taken proof of evidence from witnesses as early as in July and August 1998 when the defendant had knowledge of the employees' compensation claims.

45. On a similar point, Mr. Justice Ribeiro, JA has the following observations in Hymer v. Mass Transit Railway Corporation & others (supra) at p. 610:-

"As soon as someone, particularly a professional person, is told that he is to be sued for negligence, it seems to me a matter of commonsense that he should use all reasonable diligence to review his position, to secure any evidence that may be relevant (by preserving documents and proofing witnesses) and to seek advice if necessary. Such a defendant can reasonable be regarded as being just as aware as anyone else that time is likely to dim his recollection of the events in question and that witnesses may disperse and documents lost. He can therefore be expected, particularly when considering at that stage and to take at least some basic steps to preserve relevant evidence."

I think the above observations by Mr. Justice Ribeiro, JA applies to the defendant herein.

46. I note that the defendant had made attempt to contact the ex-foreman Mr. Lau Fai Sang for his assistance to identify and locate witnesses. The attempt failed because Mr. Lau had passed away on 24 April 2000. However, I cannot understand why the defendant had not contacted the safety officer Mr. Kwok for his assistance in the matter. Mr. Kwok is certainly a very important and material witness as he had investigated into the accidents and had compiled reports on the matter. I can only say that there is no evidence from the defendant on any attempt to contact Mr. Kwok.

47. In the course of the argument, Mr. Wong pointed out that the defendant was facing a similar common claim under HCPI No. 817 of 1999. He said that the victim in that case was also an employee of the defendant. He suffered a slipping accident whilst maneuvering heavy weight inside the defendant's tunnel on 6 November 1996. Mr. Wong therefore argued that the defendant would not suffer much prejudice as the evidence preserved in defending that case could be used in the present action. Mr. Wong cited the case of Buck v. English Co. Ltd. [1977] 1 WLR 806 to support his argument.

48. In the Buck case cited, the deceased plaintiff contracted pneumoconiosis because he had been working at the defendant's factory under very dusty conditions. Other employees of the defendant had previously sued the defendant on the same ground. The common feature of all these claims is that the nature of complaint by the deceased plaintiff and other employees is the same. Further, the defendant was faced with the same accusation namely the dusty work and inadequate tasks. In my view, unless there are sufficient evidence to show that the facts of the case in HCPI No. 817 of 1999 are so related to or share a common feature with that of the present case, Mr. Wong's argument above cannot be substantiated. It appears to me that they are two separate unrelated accidents.

Conclusion

49. Having considered all the circumstances of the case in particular to the issues of delay and prejudice to the plaintiff and defendant, I am satisfied on the evidence of the present case that it would be equitable and just to allow the plaintiff to proceed with the action. In my judgment, the delay in commencing the present action is short and explicable. It is not an inordinate delay. As I have pointed out above, the prejudice alleged to have been suffered by the defendant was self-inflicted. The argument that the defendant could not have a fair trial cannot stand as the unavailability of documents or witnesses is not caused by the delay on the part of the plaintiff. On the other hand, if the plaintiff was not allowed to proceed, he would suffer prejudice as he has a good arguable case against the defendant which may entitle him to recover substantial damages from the defendant as a result of his injuries. In the light of the above, I exercise my discretion in favour of the plaintiff and direct that section 27 of the Ordinance shall not apply to the action.

Cost

50. On the question of costs, I see no reason why the costs should not follow the event. I therefore make an order nisi that the defendant do pay the costs of this application to the plaintiff (including any related reserved costs) in any event to be taxed if not agreed. There will be a certificate for Counsel. The plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.