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HCPI 1409/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 1409 OF 2003
BETWEEN
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CHENG WAI CHUEN
and SO KA HO,
the Administrators of the estate
of SO CHUN CHUNG, deceased |
Plaintiffs |
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and |
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TSANG KWAI YAN |
1st Defendant |
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TSANG KA LAI |
2ndDefendant |
Before : Hon Sakhrani J in Chambers
Date of Hearing : 2 December 2005
Date of Decision : 2 December 2005
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D E C I S I O N
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1. This is an application to vary the costs order insofar as it concerns the 1st defendant. I made an order nisi for costs that the 1st defendant’s costs of the action be paid by the plaintiff.
2. The 1st defendant was the owner of the vehicle in question. The 2nd defendant was the driver. The question it seems to me that I have to consider is whether it was reasonable for the plaintiff to join the 1st defendant in these proceedings.
3. In the absence of other evidence, an inference can be drawn from the fact of ownership that the driver was the servant or agent of the owner at the material time (see paragraph 41 of my judgment).
4. It was submitted on behalf of the defendants that the plaintiff had sufficient material before commencing the proceedings against both defendants to come to a view that the 2nd defendant was driving the vehicle not for the 1st defendant’s purposes but for her own purposes. It was submitted that the police statements of the 2nd defendant and the witness Wong Nga Ting sufficiently show that the purposes for which the 2nd defendant was driving were her own purposes.
5. With respect, I am unable to agree. I have read the police statements of the 2nd defendant and Wong Nga Ting. They do not supply sufficient information to enable solicitors and counsel advising the plaintiff to confidently take the view that the facts established by those statements are to the effect that the 2nd defendant was driving for her own purposes and not for the 1st defendant’s purposes.
6. In those circumstances, it seems to me that it was reasonable for the plaintiff to join both defendants in the proceedings. That being so, it seems to me that the order for costs should be varied and I vary the order for costs insofar as it concerns the 1st defendant to make an order that the 1st defendant’s costs should be paid by the 2nd defendant.
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(Arjan H.
Sakhrani)
Judge of the Court of First Instance,
High Court |
Mr. Simon H W Lam, instructed by Messrs Andrew Chan & Co., for the plaintiffs
Mr.William Lai Chi Kuen of Messrs Hoosenally & Neo, for the 1st and 2nd defendants
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