CHEUNG KING TING v. YAU SHUK KUEN AND ANOTHER

DCPI 2526/2023

[2024] HKDC 2100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2526 OF 2023

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DECISION

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Introduction

1.  I am asked to decide this: in a case under the personal injuries list, can a defendant raise the issue of contributory negligence of the plaintiff despite an interlocutory judgment on liability having been entered into by default?

2.  The above question is raised by the plaintiff’s appeal against the Decision given by a Master on 2 July 2024.  The learned Master allowed the defendants to adduce the witness statement of Yau Shuk Kuen dated 3 January 2024 (“D1’s W/S”)  with costs to the defendants forthwith.

3.  It is trite that, in hearing this appeal, I am not bound by the reasons put forward by the learned Master, but I am entitled to give suitable weight to them as I find proper.

Background

4.  The underlying accident is simple.  On 20 July 2021, the plaintiff was the driver of a private vehicle bearing the registration number CKKT; the 1^st defendant was the driver of another private vehicle bearing the registration number NH378.  When the plaintiff’s vehicle travelled along the 2^nd lane of Tong Mi Road near the junction with Argyle Street, the plaintiff says the 1^st defendant’s vehicle swerved into the 2^nd lane from the 1^st lane.  The right front part of the 1^st defendant’s vehicle collided with the left side of the plaintiff’s vehicle.  The plaintiff claims he was injured as a result of the 1^st defendant’s negligence.  He asks for $748,290.00 in damages by the Revised Statement of Damages dated 19 August 2024.

5.  The plaintiff gives the following particulars on how the 1^st defendant is said to be negligent in causing the accident, for which the 2^nd defendant is vicariously liable:-

“Particulars of Negligence of the 1^st and/or 2^nd Defendants

(a)  Driving too fast or at speed which was excessive in the circumstances.

(b)  Failing to manage or control NH378 or to take any or any sufficient steps so as to avoid the said collision.

(c)  Failing to apply a brake to avoid the collision.

(d)  Failing to keep any or any proper lookout of the traffic condition nearby.

(e)  Failing to see or notice in time or at all approach or presence of CKKT.

(f)  Failing to observe and ensure unimpeded the right side before swerving NH378 into right lane.

(g)  Driving NH378 at an aggressive manner.

(h)  Driving NH378 without due care and attention;

(i)  Failing to stop, slow down, swerve or in any other way so to drive, manage or control NH378 or to take any or any sufficient steps so as to avoid the said collision.

(j)  Failing to exercise due care and attention when driving NH378 in the circumstances, and in the premises, failing to drive up to the standard of a reasonable driver.”

6.  An interlocutory default judgment was entered into against the defendants on 7 November 2023 with damages to be assessed, on default of any notice of intention to defend being given.

7.  By way of their Answer to the Revised Statement of Damages dated 8 November 2024, the defendants claim that, whilst the 1^st defendant was negligent (for which the 2^nd defendant was vicarious liable)  in causing the accident as pleaded in the Statement of Claim, the plaintiff was contributorily negligent in causing the accident.  I set out below the particulars of the plaintiff’s negligence as pleaded by the defendants:-

“Particulars of the Plaintiff’s Negligence

(1)  Drove too quickly and/or at a speed which was excessive in the circumstances;

(2)  Failed to manage or control his own private car, bearing registration number CKKT, or to take any or any sufficient steps (including applying a brake in time)  to avoid the collision with NH378 driven by the 1^st Defendant at the material time;

(3)  Failed to keep any or any proper look out of the traffic condition nearby, including NH378, particularly given the heavy traffic at the place of the Accident;

(4)  Failed to see or notice in time or at all the presence of NH378;

(5)  Drove CKKT in an aggressive manner and/or without reasonable care or attention;

(6)  Failed to stop, slow down or in any other way drive, manage or control CKKT or to take any or any sufficient steps to avoid the collision; and/or

(7)  Failed to exercise reasonable care, skill and attention when driving CKKT and, in the circumstance, failed to drive up to the standard of a reasonable driver.”

8.  By D1’s W/S, the defendants seek to provide the factual evidence to support their allegations of contributory negligence.  The 1^st defendant explains that, at the time of the accident, she was trying to park her vehicle on the 1^st lane of Tong Mi Road.  As the parking space was tight, she had to turn her vehicle into the correct angle by moving back and forth several times.  But then the plaintiff’s vehicle suddenly came up on the 2^nd lane and collision between the 2 vehicles happened.

This appeal

9.  Mr Steven Lau, counsel for the plaintiff, argues that the existence of the default judgment prevents the defendants from raising the issue of contributory negligence, because such allegation goes to liability rather than quantum.

10.  Ms Clara Wong, counsel for the defendants, argues otherwise.  She submits that contributory negligence is an issue that goes to quantum, and is hence permissible in the context of an assessment of damages.

11.  I would like to approach the issue with the following observations first.

12.  First, I agree with the plaintiff that, in personal injuries litigation, it is the usual case that a defendant will apply to set aside a default judgment against him, if the defendant wishes to argue that the plaintiff was contributorily negligent in causing his own injuries.  That is consistent with my experience that defendants often refrain from formally admitting liability if the issue of contributory negligence remains live, despite the reality that the defendant’s liability is clear.

13.  Secondly, I agree with the suggestion that it was rather late in the proceedings for a defendant to raise a defence of contributory negligence in his answer to the plaintiff’s revised statement of damages.  By then, a personal injuries case is usually past the stage of evidence gathering.  The reliance of such a defence at that stage will invariably pull the case back several steps in its quest towards setting down for trial.  I see ample grounds requiring a defendant to raise an allegation of contributory negligence as early as possible in the context of an assessment of damages.

14.  Thirdly, I do not think there is any provision in Practice Direction 18.1 (“PD 18.1”)  that governs how contributory negligence must be raised.  I believe no wordings in any part of PD 18.1 indicate how it ought to be raised.  Since the issue of contributory negligence is frequently raised in personal injuries litigation, there appears to be a need for the court to give guidance as to how it should be properly put forward, in order to achieve consistency across cases.

15.  Fourthly, I do not agree with Mr Lau that the court in some previous cases has already expressed the view as to the proper way in which an allegation of contributory negligence should be raised by a defendant.

16.  Mr Lau refers me to Sun Jianqiang v Chan Tai Kau HCPI 1375/2000 (Suffiad J; 11 April 2001), in which the court was asked to decide whether a plaintiff in an interim payment application was required to show a need for such payment.  When considering the facts of that case to see whether the plaintiff was entitled to any interim payment, the learned judge simply noted as fact that the defendant did not raise any issue of contributory negligence or set-off.  I disagree that one should read into the decision the meaning that a defendant is prevented from doing so if an interlocutory judgment on liability is extant.

17.  He next refers me to Wong Yin Wa v Chan Shing HCPI 1125/2000 (Master M Yuen; 31 January 2002), which was a judgment handed down for an assessment of damages.  The defendant acted in person in that case, and argued that the plaintiff was also negligent in bringing about the injuries upon herself.  The learned master held at §6:

“… As the issue of liability has been determined in the interlocutory judgment, I do not feel it is within my jurisdiction at the assessment hearing to re-open the issue of liability to decide if there has been contributory negligence on the part of the plaintiff in bringing about her injuries.”

18.  It is not clear when and how the defendant in that case raised the argument on contributory negligence; there was also no discussion on whether the defendant’s argument contradicted with the interlocutory judgment entered against him.  In light of the extensive discussion of the correct principles in the other cases I refer to above, I decline to accept that the learned master’s decision authoritatively determined that contributory negligence cannot be raised during an assessment of damages.  Insofar as it is necessary, I find the learned master’s decision per incuriam and I do not think I should follow it.

19.  Lastly, it is a matter for the judge in charge of the personal injuries list to decide what ought to be the proper practice, and deference must be given to her experience in dealing with this type of cases.  It goes without saying that the personal injuries list may adopt procedures different from that of the general list.  The consideration the judge in charge may take into account goes beyond the confines of the facts of the present case to cater for different scenarios.  No matter what my decision is in the present appeal, it should not be taken as laying down any definitive rule as to how contributory negligence should be raised in personal injuries litigation generally.

20.  With the above observations, I turn to the case authorities the defendants rely on.

21.  Ms Wong submits that a series of cases decided in England, viz Maes Finance & Anr v AL Philips & Co (a firm) (Sir Richard Scott VC; 12 March 1997); Lunnun v Singh (Simon Brown, Peter Gibson LJJ & Jonathan Parker J; 1 July 1999); Pugh v Cantor Fitzgerald International [2001] EWCA Civ 307; and Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB), shows that the issue of contributory negligence can be raised on an assessment of damages even if a default judgment has been entered into.

22.  In Maes Finance, the mortgagee sued the mortgagors’ solicitors for damages flowing from the fraud perpetuated by the mortgagors.  Despite a holding Defence filed by the solicitors, a summary judgment was granted in favour of the mortgagee by consent for the causes of action in negligence and contract, with damages to be assessed.  Subsequently, the solicitors applied to amend the Defence by contending, inter alia, that the mortgagee had contributed to its own loss by their own fault.  The mortgagee argued that the amendment should not be allowed, because contributory negligence was a partial defence to liability, and there was no application to set aside the summary judgment.

23.  Sir Richard Scott VC (as Lord Scott of Foscote then was)  held as follows:

“I agree, up to a point, with Mr Jackson’s analysis. Before the enactment of the Law Reform (Contributory Negligence)  Act 1945, contributory negligence was, potentially, a complete defence to an action in tort. Once liability had been established contributory negligence could not be raised, unless the judgment on liability were first set aside. But the part played by contributory negligence in “fault” litigation post the 1945 Act is quite different from the part it played in the pre Act days. It is no longer a complete defence. It now goes to the reduction of recoverable damages, liability having already been established, cannot, in my judgment, now be answered simply by categorizing contributory negligence as a “defence”. Whether it can be raised after judgment depends, in my opinion, on the nature of the issues that were settled by the judgment. It may be that the obtaining of a judgment for damages to be assessed, whether summary judgment or judgment at trial, would have settled some issue on which an allegation of contributory negligence would depend. If that were so, then contributory negligence could not be raised without first having the judgment set aside. But if the judgment had not settled any issue on which an allegation of contributory negligence would depend, I do not see any reason why contributory negligence should not be raised on the assessment of damages. Mr Jackson put forward as a reason that contributory negligence was concerned with causation and that causation issues should be determined at the time liability was determined. It is true that the causative effect of a defendant’s acts or omissions must, at least to some extent, be established at the time the defendant’s liability for those acts or omissions is established. The defendant cannot thereafter contend that his acts or omissions were not causative of any loss to the plaintiff …

In principle, in my judgment, there is no reason of law why a contributory negligence plea should not be raised on an assessment of damages.  The fact that it operates as a partial defence on quantum is, in my view, no bar.  Indeed it is a reason why it is suitable to be raised at the assessment stage.  It must, of course, be specially pleaded.”

24.  The Law Reform (Contributory Negligence)  Act 1945 is of course equivalent to section 21 of the Law Amendment and Reform (Consolidation)  Ordinance (Cap.23).  In my judgment, the characterization of contributory negligence as a partial defence on quantum as quoted in the passage above applies equally to such defence in our jurisdiction.

25.  In Lunnun v Singh, the claimant alleged that damage caused by water leakage to his property was caused by the defendants’ wrongful interference of his enjoyment of his property.  The defendants did not give any notice of intention to defend, and thus a default judgment was entered into with damages to be assessed.  No application to set aside the default judgment was ever made.  In response to the claimant’s schedule of damage, the defendants filed a counter schedule with an introductory plea that they were entitled to dispute that the water leakage was causative of the plaintiff’s damage.

26.  Clarke LJ (as Lord Clarke of Stone-cum-Ebony then was)  held as follows:

“… In my judgment the relevant principles … may be summarized as follows:

(1)  …

(2)  …

(3)  The following propositions assume that the judgment is not set aside. They also assume that there has been no judicial determination of any of the issues because if there has that determination will of course bind the parties subject to any appeal.

(4)  On the assessment of the damages the defendant may not take any point which is inconsistent with the liability alleged in the statement of claim.

(5)  Subject to (4)  the plaintiff may take any point which is relevant to the assessment of damages.

(6)  Such points will include the following:

(i)  Contributory negligence: see the passage quoted by Mr Justice Jonathan Parker from Maes Finance …”

27.  Peter Gibson LJ stated as follows:

“First, in [Maes Finance], the approach of Sir Richard Scott VC on the question whether contributory negligence could be raised at the assessment stage was to consider whether the judgment for damages to be assessed settled some issue on which an allegation of contributory negligence would depend. If it did not, he saw no reason why contributory negligence should not be raised on the assessment of damages. In light of Pitts v Hunt [1991] 2 QB 24, it is not possible to find a defendant guilty of 100% contributory negligence; accordingly, a contributory negligence plea operated only as a partial defence. The Vice-Chancellor though that was a reason why it was suitable to be raised at the assessment stage …”

28.  In Pugh v Cantor Fitzgerald International, Ward LJ held that the principles stated in Lunnun v Singh survived the introduction of the new Civil Procedure Rules in England and Wales.

29.  Finally, in Symes v St George’s Healthcare NHS Trust, the claimant sued the defendant for the negligent treatment it provided.  An interlocutory default judgment was entered into against the defendant for its failure to acknowledge service of the claim.  Subsequently, the defendant argued that its negligence did not cause the more substantial loss endured by the plaintiff in the delayed removal of a malignant tumour.  Deputy Judge Picken QC accepted that Maes Finance and Lunnun v Singh continued to represent the law regarding the effect of a default judgment, and applied the principles enunciated in those cases to the case before him.

30.  I am not privy as to how personal injuries cases are managed in England.  In my view, despite the reference to Maes Finance and Lunnun v Singh, the defendant’s challenge in that case really went to the causal relationship (or the lack thereof)  between the defendant’s treatment and the plaintiff’s loss, rather than the defendant mounting a positive allegation that the plaintiff also committed a tortious act which brought about the loss.  Looked in that light, Symes v St George’s Healthcare NHS Trust is similar to what has been routinely adopted as acceptable in cases under the personal injuries list locally: see, for example, Andrew Graham Young v Dr Ho Chun Kit Peter HCPI 583/2010 (Bharwaney J; 9 May 2012)  at §16.  The reason why the issue of causation can be ventilated in an assessment of damages under the personal injuries list, in my view, is that such an argument often hinges on, and is hence determined by, medical evidence or expert evidence on quantum.  This does not bring about any adverse effect on the case management for an assessment of damages.

31.  Whilst I agree with Ms Wong that the issue of contributory negligence is one that goes to quantum based on the above cases, I am of the view that they are only persuasive as to how the issue can be raised in the context of a case under the general list.  I do not find them indicative as to how such issue ought to be raised in personal injuries litigation in our jurisdiction.

32.  In my judgment, the defendants should not be allowed to raise the issue of contributory negligence as late as their Answer to the Revised Statement of Damages, for a case under the personal injuries list like the present.  My reasons are as follows:

32.1.  The requirement of filing a statement of damages separate from the statement of claim stems from Order 18 rule 12(1A)  of the Rules of the District Court (Cap.336H)  (“RDC”).  Based on PD 18.1 at §67, there is no requirement for a defendant to file any pleading in response to the statement of damages when the defence is filed.

32.2.  There is no express rule with regard to the filing of a revised statement of damages.  The practice is for the court to order such pleading to be filed to bring the plaintiff’s claim up-to-date after evidence has been obtained.  It is only by then that the court will also direct a defendant to file an answer in response to the revised statement of damages.

32.3.  By then, the parties ought to have put before the court all evidence they think relevant.  If a defendant is allowed to defer raising an allegation of contributory negligence to that juncture, the court will have to allow time for parties to put forward evidence on that issue.  The case is invariably delayed as a result.  It is also nonsensical to allow the possibility that parties may collate and adduce evidence in 2 separate stages.  In my view, this is contrary to the underlying objectives stated in Order 1A rule 1(b), (c)  and (f)  of RDC.

32.4.  The sudden emergence of an allegation of contributory negligence may upset the case management operation of the court.  One can see that Part S of PD 18.1 has separate provisions applicable to an assessment of damages.  Case management may be complicated by the fact that the defendant only discloses to the court his intention to argue contributory negligence when he files his answer in response to the revised statement of damages.  This equally undermines the underlying objectives of the Civil Justice Reform.

32.5.  I do not find the case authorities discussing the practice permissible for the general list relevant to the context of the personal injuries list.  For a case under the general list, the plaintiff will have the relief sought, with some specificity, in the statement of claim; and the defendant has to state its response to that in the defence.   Even for the rare occasion that a judgment has been obtained by a plaintiff (either by default or consent)  based on a generally indorsed writ, the court has the power to order the plaintiff to set out in a pleading his case on quantum, to which the defendant may traverse to[1].  Any desire of a defendant to rely on an allegation of contributory negligence will be apparent prior to collating the relevant evidence.

32.6.  There is nothing to prevent the defendants in the present case to apply to set aside the default judgment on liability, to allow them to ventilate their case on the plaintiff’s alleged contributory negligence.  Whether the defendants should be entitled to so set aside the default judgment is to be decided by the court seized of the matter, in light of the evidence to be presented.  What is relevant, however, to the present appeal is that the defendants have no good reason to reserve their arguments on contributory negligence until they filed the Answer to the Revised Statement of Damages.

33.  I have the misfortune of disagreeing with the learned Master.  I do not think the court ought to give leave to the defendants to adduce D1’s W/S. Indeed, I do not think the court should permit the allegation of contributory negligence to remain in the defendants’ Answer to the Revised Statement of Damages.

34.  I shall deal with the parties’ remaining dispute in case a decision is required in due course.  It remains for me to decide whether the allegations of contributory negligence raised by the defendants in the present case is inconsistent with the default judgment.

35.  In my judgment, the defendants’ allegations do not contradict with the facts pleaded in the Statement of Claim.  The only possible conflict that Mr Lau can point to is at §3(b)  of the Statement of Claim, by which it is averred that the defendant swerved into the 2^nd lane, and caused the collision between the 2 vehicles.  Mr Lau submits that, in D1’s W/S, the 1^st defendant claims to be parking her vehicle; as such, she could not have swerved into the 2^nd lane at the time of the accident.

36.  I disagree with Mr Lau.  I find “swerving” in the Statement of Claim sufficiently wide to accommodate how the 1^st defendant might be driving at the time of the accident.  On a plain reading of the Statement of Claim, the plaintiff avers that the 1^st defendant suddenly cut into the 2^nd lane.  It does not necessarily bear the meaning that the 1^st defendant’s vehicle was travelling along any particular lane before the swerving action.  Indeed, the Statement of Claim does not describe the location and motion of the 1^st defendant’s vehicle immediately prior to its swerving action.  Without pre-judging the issue or limiting the scope of cross examination, it may be that the 1^st defendant’s vehicle suddenly cut into the 2^nd lane in the course of adjusting its angle for parking. 

37.  If the defendants were entitled to raise the issue of contributory negligence only by their Answer to the Revised Statement of Damages, I would have been content to allow D1’s W/S to be adduced in the present form.

Conclusion

38.  The plaintiff’s appeal is allowed.  The Order of the learned Master is set aside.  The defendants’ application to adduce D1’s W/S is refused.

39.  On the court’s own motion, it is ordered that §5 of the Answer to the Revised Statement of Damages be struck out.

40.  For the costs before the learned Master and before me, I think the fairest order is no order as to costs.  The defendants fail in their quest to introduce the issue of contributory negligence; but the plaintiff resist that not really on the arguments he presented to the learned Master and before this court.  For the arguments he did pursue, I have largely ruled against them.  Therefore, it appears to me that neither party can be said to be a clear winner.  Any application to vary the costs order nisi shall be raised by letter within 14 days of this decision, and shall be dealt with on paper.

41.  I find it regrettable that I have to close this decision yet again by citing the parties’ failure to produce the hearing bundle with reasonable care. Irrelevant materials have been included, e.g. the entire Writ of Summons instead of the relevant excerpt of it; court orders that are irrelevant to the issues of the appeal[2]; correspondence between solicitors that are irrelevant to the issues of the appeal[3]. The court is invariably distracted from properly preparing for the hearing, as it needs to second guess the purpose of including those irrelevant materials in the bundle.