DOMINGA ELIZABETH IBIRONKE LAKHAN v. WU WING TAK AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. We are asked by this appeal to interfere in an action for damages for personal injury. The Plaintiff suffered quite serious injuries in a road accident which occurred here in 1981. Liability in general has been admitted, save for the matter of contributory negligence as to the failure to wear a seat belt.

2. A peculiarity of the proceedings is that, the Plaintiff's residence being normally in England, directions were given for evidence to be taken there on commission prior to the main hearing in this jurisdiction. In the result, the bulk of the evidence, including in particular  the evidence of three orthopaedic surgeons, has already been taken.

3. When the case was opened here yesterday an application was made to the trial judge to amend the Statement of Claim yet once again to include within it three further particular items of damage. The first is the cost of domestic help to cope with difficulties the Plaintiff experiences in going up and down stairs, carrying heavy bags of shopping and so on. The second is the cost of running a car to help overcome transport difficulties which she experiences through her partial immobility. It is possible that this particular question is already within the action by reason of a defence suggesting that she should mitigate her damages by taking up some form of employment, which in itself would probably necessitate her using a car. The third item is the cost of keeping her home much warmer than would be the case for a normal person, because by reason of her injuries she feels the cold much more than a normal person would.

4. A second application was made to the trial judge to admit in evidence the report of a Mr. Bart Hellyer. He is a witness whom we understand is quite well known in the English courts and would have made an appearance here in this action had not he unfortunately, at the last minute, himself suffered injuries and his doctor very firmly advised against international travel. His report sets our the estimated cost of providing in England the items to which we have just referred. The cost could be substantial.

5. Strictly read, his report goes further and gives his own opinion as to the particular needs of the Plaintiff. It is apparently based on the evidence of the surgeons. However any judge, in his consideration of this aspect of the case, would go straight to the actual evidence and would not pay any regard to the second-hand opinion of Mr. Hellyer.

6. The judge rejected both applications. We have no note of his reasons, but we understand him to have said that he was not persuaded that approval would not be unjust to the Defendant.

7. With every respect to him we think that he was plainly wrong. The application to amend is indeed a very late application. Counsel for the Plaintiff has conceded that in one sense it could properly be called "an afterthought". The Plaintiff therefor is willing to suffer any orders for costs that may appropriately be made. But the evidence of the orthopaedic surgeons which has been drawn to our attention indicates that there may be a need on her part for these particular services. The evidence has not of course in this respect, been tested in cross-examination as it would have been had these matters been raised when the evidence was taken in London. But the judge will be aware of that. It is something that may well tell heavily against the Plaintiff. The judge may eventually decide that she has no need of these items, or at least not a need to the extent that she hopes to be accepted. Nevertheless in our view it would be unjust to deprive her of all opportunity to put the matters to the test, unless that would work to the prejudice of the Defendant. We are unable to see that it would. We find no prejudice that cannot at least be cured by the undertaking, which the Plaintiff has given through her counsel, to submit herself to a medical examination here in Hong Kong by any doctor whom the Defendant may wish to nominate.

8. Once it is accepted that the amendment should be allowed, there is no reason whatsoever to exclude from evidence the report of Mr. Bart Hellyer, subject to the comment we have earlier made.

9. For these reasons we allow the appeal, give leave to amend the Statement of Claim as requested and order that the report of Mr. Hellyer be admitted in evidence at the trial.