LIU KWAI FONG v. LAI HOO CHEUNG

HCPI 611/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 611 OF 2001

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REASONS FOR RULING

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1. This is an appeal against the decision of Master Kwan dated 13 December 2001 on interim payment and admission of expert evidence.

2. The Defendant asked for an adjournment of the appeal to enable him to place before the court the relevant expert evidence to support his case that the accident was caused by mechanical defect of the vehicle, for which he should not be held liable.

3. The expert evidence is not yet ready. According to what Mr Chiu, counsel for the Plaintiff told me, it took about 2 months for such an expert to be located. Defendant's solicitor was only able to engage that expert in early January 2002. Mr Chiu said he estimated that the report would be ready within 6 weeks' time. I think the expert should be able to do better.

4. The accident happened in December 1999. The writ in the present action was issued in July 2001. The plea as to mechanical defect was not raised in the original defence. It was however raised in the Amended Defence. Leave was granted on 4 December 2001 to the Defendant to amend the Defence. Hence, when the application for interim payment was heard by the Master, this line of defence was relied upon by the Defendant.

5. The new line of defence was raised as a result of advice by counsel. It is fair to say that prior to November 2001, the solicitors for the Defendant conducted the case on the basis that they were not relying on mechanical defect as a defence, see the letter of 15 October 2001 at p. 57 of the appeal bundle.

6. Unfortunately, due to the late change of stand by the Defendant, the relevant expert report was not yet available. In fact, it is still not available today.

7. If the Defendant wished to rely on expert evidence to resist the application for interim payment, it was his duty to place it before the court. If for any reason such report was not ready, the proper course was to apply for an adjournment.

8. Again unfortunately, the solicitor who appeared for the Defendant in the interim payment application did not think about this. She thought that she could just argue the point on the basis that the Plaintiff had insufficient evidence. Mr Chiu acknowledged that to be an error of judgment on the part of the solicitor.

9. Since the position as to expert evidence is the same today, the only proper course which Mr Chiu could take is to ask for an adjournment of the appeal as to interim payment pending the filing of such expert evidence as the Defendant deems necessary.

10. The application for adjournment was opposed by the Plaintiff. Ms Wong, solicitor for the Plaintiff, submitted that the adjournment would not serve any purpose because the expert evidence could not assist the Defendant. She submitted that the Defendant did not dispute that he had got back the vehicle from the garage on 9 December 1999, one day before the accident. At the time of the accident, the Plaintiff was in control of the vehicle. Hence, it was submitted that the Defendant would be liable even if the accident was caused by a mechanical defect in the vehicle. She also submitted that because the Plaintiff has pleaded a case of res ipsa loquitur, and it was common ground that the Plaintiff was not guilty of contributory negligence, the burden of proof was shifted to the Defendant to show that he was not negligent.

11. I cannot agree with that submission. Although the Plaintiff does plead a case of res ipsa loquitur, that does not mean that this must be a case of res ipsa loquitur. Bearing in mind that the Defendant had asked the garage to check the vehicle shortly before the accident, it may be arguable that he has discharged his duty as a reasonable car driver and road user.

12. The Plaintiff also submitted that the Defendant has had opportunity to adduce such expert evidence before the Master. Ms Wong further said that if the matter is adjourned, the Plaintiff would suffer hardship in terms of costs because she is not legally-aided.

13. With regard to these, I agree that they are relevant factors which I should bear in mind. However, I have to balance those factors against the prejudice to the Defendant if I refuse the adjournment. The expert evidence is highly relevant to the appeal. Mr Chiu has explained to the court as to why the evidence is still not yet ready. Although there was an element of fault on the part of the Defendant's solicitors in their failure to recognize the need for such evidence and to prepare the same much earlier, I am of the view that it would not be right to refuse the Defendant a second chance to put his house in order. After all, leave to amend was granted to the Defendant to enable such a defence to be run.

14. I am mindful to grant the adjournment provided that the Plaintiff can be fully compensated in terms of costs. Having heard submissions from the parties on costs, I ordered the Defendant to bear the Plaintiff's costs of today's hearing, such costs is fixed by me at $6,900.00 pursuant to Order 62 Rule 9 (4)(b) and is payable forthwith.

15. Since there is a pre-trial review before Seagroatt J on 25 February 2002, it was agreed by the parties that the appeal could be heard by Seagroatt J at the same time. I will order accordingly.

16. Mr Chiu asked for a stay of execution of the order for interim payment. He argued that if the payment was made, there is a risk that the Plaintiff could not refund the same.

17. In my judgment, it is not appropriate for such a stay to be granted. Firstly, there is no evidence before me as to the financial position of the Plaintiff and I cannot properly conclude that there is such a risk.

18. Secondly, the Defendant is seeking an indulgence from the court to enable him to put forward evidence necessary for his appeal. But for such request, the appeal as to interim payment could have been disposed of today. To grant a stay in these circumstances would prejudice the Plaintiff beyond the question of costs.

19. Thirdly, if the Defendant is right in his case as to the cause of the accident, it is possible that the garage would be held to be liable to the Plaintiff (if it is joined as a defendant). The interim payment made by the Defendant could be recovered accordingly.

20. Mr Chiu also submitted that the Master decided the application for interim payment on insufficient material and her decision was therefore wrong. I do not agree. As I said, it is up to each party to place before the court the evidence which he relies on. If a party chooses not to put forward a certain piece of evidence and argue an application with insufficient armour on his part, it is his own fault and he should suffer the consequences. On the material before the Master, I do not think one can say that her decision was wrong.

21. With regard to the appeal as to the filing of expert evidence, I was told by Ms Wong that it was not the Master's intention to shut the Defendant out from adducing expert evidence. All that the Master said was that before the court grants leave to adduce expert evidence, the party seeking such leave should justify the same. Since the Defendant has not placed before the court the relevant report nor identified the need for such evidence properly, the Master did not grant leave at that stage. The Master also said that the Defendant could apply again before Seagroatt J at the pre-trial review.

22. It seems to me that if that was the intention of the Master, it may be more appropriate to adjourn that application rather than to make an order in terms of paragraph 3 of the order in the Checklist Review.

23. However, since the Defendant is still not yet ready with the expert report, I am not in a position to assess whether the proposed evidence could properly be described as expert evidence and to grant leave for the same. I think the better course is to adjourn the appeal against paragraph 3 of the order made in the Checklist Review.

24. It is agreed by the parties that that paragraph should not prevent the Defendant from putting in expert evidence for the purpose of the appeal against the order for interim payment. For the avoidance of doubt, I will give directions for the same.

25. My order is therefore as follows:

(1) Appeal be adjourned to Seagroatt J to be heard together with the Pre-trial Review on 25 February 2002.

(2) For the purpose of the appeal against the order for interim payment, the Defendant be at liberty to file and serve his expert report on or before noon 11 February 2002. For the avoidance of doubt, such leave would not prejudice the appeal against paragraph 3 of the order of the Master made in the Checklist Review.

(3) Application for stay of execution dismissed.

(4) Defendant to pay forthwith the Plaintiff's costs of today, such costs being fixed at $6,900.00 pursuant to Order 62 Rule 9(4)(b).

As to the other costs of the appeal and the costs of the hearing before the Master, they would be reserved to Seagroatt J.