JENNY FUNG BY HER FATHER AND NEXT FRIEND FUNG WAI HUNG ALEXANDER v. BELAIR GARDEN MANAGEMENT CO LTD AND OTHERS

HCPI 307/2010
(formerly HCA 1103/1993)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 307 OF 2010

(formerly High Court Action No 1103 of 1993)

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D E C I S I O N

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I. INTRODUCTION

1. The plaintiff Jenny Fung (“P”) is now 26 years old.  According to the Amended Statement of Claim filed on 22 June 2010 (“ASoC”), P had permanent cognitive impairment, and her age equivalent has been assessed to be within a range of 6-12 years in various intellectual abilities.  P claimed these impairments are the result of severe head injuries she (then a five-year-old little girl) suffered as a result of an accident in 1991 (“Accident”).  P brought the present action by her father and next friend Fung Wai Hung Alexander (“Father”) against the 1^st defendant Belair Garden Management Company Limited (“D1”), the 2^nd defendant Yick Fung Estates Limited (“D2”) and the 3^rd defendant Shui Hing Investment Company Limited (“D3”).

2. P used to be a resident of Belair Gardens, Shatin (“Estate”).  D1 was/is the manager of the Estate under a deed of mutual covenant (“DMC”).  D2/D3 were the registered owners of the children’s playground (“Playground”) and shops of the Estate and also the owners of a residential unit of the Estate until 30 April 2002, and they appointed D1 under the DMC to have management and control of the Estate including the Playground. 

3. There was no dispute that:

(a)   D1 was responsible for the management and maintenance of the common parts of the Estate including the Playground (but D1, D2 and D3 (collectively, “Ds”) did not admit P’s allegation that D2/D3 were also or alternatively responsible as well).

(b)   D1 was the occupier of the Playground and P was a lawful visitor thereat within the meaning of the Occupiers Liability Ordinance Cap 314 (“OLO”) (but D1 did not admit and D2/D3 denied P’s claim that D2/D3 were occupiers of the Playground).

II.  PLEADINGS ON LIABILITY

4. According to the ASoC, the Accident happened at/about 5 pm on 29 April 1991 when P was playing on a swing at the Playground (“Swing”) in the company of her Filipino helper (“Helper”), and one of the supporting chains of the Swing suddenly broke without warning.  As a result, P was thrown off the swing, and she landed on her head on the ground.  The ASoC averred that P suffered severe head and multiple injuries in the Accident resulting left hemiplegia.

5. P claimed that the Accident was caused by the negligence and/or breach of common duty of care and/or breach of statutory duty on the part of D1 and/or D2/D3, their servants and/or agents.  D1 denied this and claimed they have taken all reasonable steps to properly maintain the swings at the Playground.

6. D1 by their Amended Defence filed on 3 September 2010 denied the Accident and averred that at all material times (a) the supporting chain of the Swing had not broken as alleged or at all, (b) there was no report of the Accident on or shortly after 29 July 1991 or the incident of the broken chain to D1, and (c) the swings at the Playground had been properly maintained and were in good condition.  D1 first knew of the alleged Accident upon receipt of a letter dated 2 March 1992 from P’s solicitors.

7. D2/D3 by their Amended Defence filed on 16 December 2010 claimed they were the developer of the Estate and D1 was/is a competent independent contractor that had all the powers/duties to manage the Estate including the Playground since no later than 8 March 1982 and until the date thereof.  Since no later than 26 April 1982 and until about 22 December 2009, D2/D3 assigned the Playground to D1 to hold/occupy/manage the same for the use/enjoyment/benefit of all co‑owners of the Estate, and hence D1 was the sole occupier of the Playground within the meaning of the OLO.  On 22 December 2009, D2/D3 assigned the legal and beneficial interest of the Playground to the Incorporated Owners of the Estate.  Since no later than 8 March 1982 and until about 1995/1996, D1 (but not D2/D3) was solely responsible for the erection, management, maintenance and repair of all the facilities of the Playground (including the swings) and to keep them in good and safe working condition.  In/about 1995/1996, the Playground including the swings erected thereat was demolished. 

8. D2/D3 denied the Accident.  But even if P was injured as a result of the Accident, D2/D3 denied P was/is a patient of unsound mind and under disability pursuant to section 22 of the Limitation Ordinance Cap 347 (“LO”), and further averred that P’s claim was time-barred because her cause of action accrued latest by 10 July 2003 when she was 18 years old and more than three years had elapsed since then before she sued D2/D3.  Further, it would not be just and equitable for P to rely on section 30 of the LO to override the time bar and proceed with the present action against D2/D3.

9. In her Reply filed on 24 November 2010, P denied her claim was time-barred under section 27 of the LO, and averred she was still a patient under disability due to severe head and multiple injuries suffered as a result of the Accident, and hence the limitation period under section 27 of the LO was extended or excluded by virtue of section 22 of the LO.

10. P further averred that by failing to apply to dismiss P’s summons dated 5 May 2010 to join D2/D3 in the present action, consenting to be joined as parties to the present action, proceeding with the defence, and failing to take out a strike out application in respect of the ASoC despite a court order dated 13 September 2010, there was acquiescence on the part of D2/D3 who had waived their rights to raise (and/or were estopped from relying on) their alleged defence that it was not equitable for P to commence/proceed with the present action against D2/D3.  Further or alternatively, P averred that D2/D3 had not suffered any serious prejudice and that a fair trial of the issues in the present action was still possible.

III.  STATEMENT OF DAMAGES

11. According to the Statement of Damages filed on 29 July 2010 (“SOD”), when P had the Accident and landed on her head, she was found unconscious with her eyes “rolling” and vomiting.  She was hospitalised in a comatose state.  Investigation revealed she had basal skull fracture with diffuse brain injury.  Emergency burr hole intraventricular catheterisation was performed.  She was kept in the ICU with ventilator support and intensive treatment, but had attacks of epilepsy.  Her condition stabilised after eight days, and she was transferred to the general ward.  She remained in a coma for four weeks, and suffered early post-traumatic epilepsy that required anti-convulsant prophylaxis.  She also had left hemiplegia that required regular physiotherapy and occupational therapy.  She lost control of her bladder and required use of a catheter for about a month.  She then developed speech, swallowing, eyes and chest problems as well as epilepsy, and she had impaired memory.  She was unstable emotionally. Upon intensive rehabilitation of physiotherapy and occupational therapy, she gradually recovered and was discharged home on 4 June 1991.

12. The SOD went on to claim that P continued with her intensive rehabilitation treatment and neurological follow up.  She was put on medication for more than a year after her discharge to prevent epileptic attacks.  She “had assessment at different stages of the permanent mental retardation caused as a result of the [Accident]”.  P had moderate learning difficulties in all measured areas and was placed in special learning support classes at school.

13. According to the SOD, P and her family emigrated to the United Kingdom (“UK”) in 2002, mainly for the sake of her higher education.  She pursued special needs secondary education first in Hong Kong and then in the UK until 2003, and then attended a course in the UK until 2005.  She tried but could not find any job with her cognitive impairment.

14. The SOD claimed P suffered from severe permanent cognitive impairment.  She was socially naïve/vulnerable, and had occasional headaches and poor coordination of limbs which had become weak.  She had been assessed to be within a range of 6-12 years in various intellectual abilities and short term memory.  She had difficulty with basic numeracy and was functioning at an age equivalent of eight years.  She also had difficulty listening to conversation due to slow processing and short term memory difficulties.  She did not understand the need for financial planning, and was not (and would not be) able to manage her financial affairs.  She was on disability allowance.

15. The SOD further claimed P remained dependent on her family (mainly her parents (“Parents”)) for some basic activities of daily living such as cooking, shopping, doing house chores, etc.  Her emotions/personality were severely impaired, and she had become emotionally labile.  She was a vulnerable/reliant adult with a child-like mentality, and lacked insight as to her emotional and cognitive problems.  She gave birth to a baby boy in January 2009 as a single mother, went back to college to study catering in the summer of 2009 (but failed in all courses she attended), and planned to take a course in child care in September 2010.  She continued to live at home with her Parents. 

16. It was said that P’s disabilities were permanent and substantial improvements were not expected.  She had permanent neurological and physical impairments, and she would never lead a normal life or compete with others for jobs in the open employment market.  She had not been able to find any work and had remained unemployed after finishing her special needs studies in 2005, and she would highly and likely remain unemployable for the rest of her life.

17. According to the SOD, P’s mother Audrey Fallon (“Mother”) used to work as a secretary for the BBC Television Company and a reputable law firm in London in her early career.  Her last job was an office administrator in a law firm in Hong Kong.  Prior to the Accident, the Mother was a housewife, but she had plans to return to work.  The Parents had to take care of P everyday when she was hospitalised.  When she was discharged home, the Mother with the Father’s help continued to provide round the clock care to P until August 1991.  P could not walk steadily with her left-sided weakness, so in the initial years after the Accident the Mother spent long hours taking care of her in all her daily activities including taking her to follow up treatment and helping her through her rehabilitation programme. 

18. The SOD claimed the Mother continued to take care of P in her daily living activities after the family moved to the UK.  But the Mother had a traffic accident in April 2005 (“Mother’s Accident”) and became seriously disabled and wheelchair-bound.  Since then, the Father became P’s main carer.  As at the time of the SOD, P remained dependent on the Parents, and she would require supervision, advice and assistance in many basic daily activities such as cooking, shopping for daily necessities and groceries, doing household chores, etc.  Over the years, the Parents spent on average at least 4-6 hours and often up to half a day (and sometimes even days) supervising and taking care of P and dealing with difficult situations/emergencies, particularly managing or attempting to manage her relationships.  At the time of the SOD, the Parents continued to look after P and her baby son full-time as P would not be able to bring up or look after her child or herself.

19. According to the SOD, the Parents claimed for the value of their services in looking after P at $12,000 per month in the initial one year after the Accident, and thereafter at $8,000 per month and continuing.

20. At the present stage, the Ds were not required to file/serve any Answer to the SOD as yet.

IV.  PROCEEDINGS

21. By my order dated 13 September 2010, the parties were directed to serve/exchange witness statements as to fact on/before 8 November 2010.  At that time, P intended to serve the witness statements of the Father, Fung Wai Ming and the Helper. 

22. As recorded in my order dated 11 November 2010, P elected not to adduce witness evidence as to fact from Fung Wai Ming and nominated a further witness as to fact, ie the Mother.  I extended time until on/before 25 November 2010 for P and D2/D3 to serve/exchange witness statements as to fact and to serve such statements on D1, but reserved the issue of the timetable for D1 to serve witness statement as to fact.

23. By my order dated 2 December 2010, I set aside my earlier order and granted retrospective leave for P to serve witness statement as to fact of Fung Wai Ming.  I further directed D1 to serve their witness statement as to fact on P and D2/D3 on or before 30 December 2010.

24. By a summons filed on 12 April 2011 (“Summons”), P applied for leave to serve the Mother’s supplemental witness statement dated 27 January 2011 as annexed to the Summons (“Mother’s 1^st Draft”).  On 19 April 2011, I adjourned the Summons for argument before the PI Master at the next checklist review to be scheduled with costs reserved.

25. Thereafter, much time and effort were engaged in obtaining expert medical evidence.  By my order dated 14 April 2014, I granted inter alia the following directions:

(a)   if P intended to seek leave to serve supplemental witness statements of the Parents, she shall on/before 30 June 2014 serve drafts thereof (“Drafts”) on the other parties;

(b)   the parties shall on/before 11 August 2014 jointly write to this court on the following:

(i) state whether P had served the Drafts on the other parties;

(ii) if so, state whether P would seek leave to serve the Parents’ supplemental witness statements as per the Drafts;

(iii) if so, enclose copies of the Drafts and state whether the Ds would oppose P’s application for such leave;

(iv) if so, state whether an oral hearing would be required for resolving the dispute as to whether leave should be granted for P to serve the Parents’ supplemental witness statements as per the Drafts;

(v) if so, state the estimated length of time for hearing such argument;

(vi) state whether P would apply to withdraw the Summons;

(vii) if so, propose directions for the final disposal of the Summons;

(viii) if the parties were unable to agree on the terms of final disposal of the Summons, state whether an oral hearing would be required for resolving such dispute over the terms of the final disposal of the Summons;

(ix)   if P would not apply for withdrawal of the Summons, propose case management directions to restore the Summons for hearing/disposal.

26. On 11 August 2014, the parties jointly wrote to this court and stated inter alia as follows:

(a) on 27 June 2014, P served the Drafts (with attachments) on the Ds for their consent to her application for leave to serve the Parents’ supplemental witness statements as per the Drafts;

(b) the Ds had no objection to P’s application for leave to serve the Father’s draft supplemental witness statement (“Father’s Draft”);

(c) the Ds objected to paragraphs 6-12 (“Impugned Paragraphs”) and Attachments 1-2 (collectively, “Impugned Attachments”) of the Mother’s draft supplemental witness statement marked up in red and annexed to the joint letter dated 11 August 2014 (“Mother’s 2^nd Draft”), which they considered to be repetition/rephrase of the detailed account of the Mother’s Accident already mentioned in the Mother’s existing witness statement dated 25 November 2010 (“Mother’s Statement”), and the Ds claimed that “[any] more information on how the [Mother’s Accident] happened in 2005 (attachment 1 to the [Mother’s 2^nd Draft]) and the injury and medical treatments received/recommended to be received by [the Mother] in 2006 (medical report in attachment 2 to the [Mother’s 2^nd Draft]) are irrelevant as they would not assist the trial judge in determining the issues of liability and quantum of [P’s] claims herein.  As such, the [Impugned Paragraphs and Impugned Attachments (collectively, “Impugned Parts”)] are suggested to be taken out from the [Mother’s 2^nd Draft]”;

(d) P was of the view that the details of the Mother’s Accident in 2005 would be relevant to P’s case as they would reflect the difficulties the Parents faced when taking care of P, which difficulties they still face now;

(e) P would not apply to withdraw the Summons at that stage and would apply for the Summons to be heard together with her application to adduce the Drafts.

By their joint letter dated 11 August 2014, the parties also made proposals as to whether the resolution of the Summons and the outstanding matters in (c)-(d) above (“Outstanding Matters”) should be by oral hearing or paper disposal.

27. By my order dated 3 September 2014, I granted inter alia the following directions:

(a) retrospective leave be granted to P to serve the supplemental witness statement of the Father dated 15 June 2014 (ie the Father’s Draft);

(b) the Summons and the Outstanding Matters in respect of the Mother’s 2^nd Draft be determined by paper disposal;

(c) leave to P, D1 and D2/D3 to lodge with the court and serve on the other parties written submissions in respect of the Summons and Outstanding Matters within 28 days;

(d) save and except for (c) above, no further written submissions shall be received for paper disposal of the Summons and Outstanding Matters.

28. On 30 September 2014, the parties lodged the written submissions of P’s counsel Mr Ozorio SC (and Ms Loh with him), D1’s solicitor Ms Wong, and D2/D3’s counsel Mr Lam.

V.  MOTHER’s STATEMENT

29. Pursuant to my orders referred to in paragraphs 21-22 above, P served on the Ds inter alia the Mother’s Statement. Apart from describing the Accident, P’s treatment/condition over the years and P’s then current state, the Mother disclosed that P was then expecting her second baby.  For the present purpose, I need only summarise the account of the Mother’s Accident in the Mother’s Statement.

30. In the Mother’s Statement, the Mother explained she was knocked down and severely injured in the Mother’s Accident in the UK in 2005.  As a result, she became wheelchair-bound.  She gave more information about the Mother’s Accident and its effect on her in Attachment 1 thereto. By such attachment, the Mother described (a) the brief background of the Mother’s Accident, (b) her condition after such accident, (c) the treatment she received and was then still receiving, (d) her post-accident change in lifestyle and accommodation, (e) the special care/attention she required, (f) her expected future needs and (g) the status of her claim.  I summarise below the contents of Attachment 1 to the Mother’s Statement in respect of the matters in (a)-(g) above.

(a) Brief background of the Mother’s Accident

31. On 21 April 2005, the Mother on her way back from shopping was chatting with a neighbour when a car mounted the pavement and rammed them down.  The neighbour was so badly injured that he died after admission to hospital.  The Mother was thrown into the air and when she fell her left leg was crushed between the car and a wall.  She bled profusely but did not lose consciousness.  She lifted her injured leg to reduce blood loss, and a female driver (formerly a soldier) stopped by and called for a medical helicopter to transfer the Mother to hospital.

(b) Condition/treatment after the Mother’s Accident

32. The Mother’s left leg was so severely injured that it had to be amputated.  She also suffered neck and back injury and could only turn her head to the left no more than 45°.  After the operation, the Mother suffered serious and continuous phantom pain, and she could not do anything to help P, her baby and/or P’s sister who suffered from mild cerebral palsy and permanent brain damage due to birth asphyxia.  After five years of trial and error, the Mother still had not got a prosthesis which she could use to walk with getting hurt (mainly back muscles and stump blisters) due to wrong angle setting and stump socket fitting.  She was limited to “furniture walking” at home for a few hours a day after which she would have to take off the prosthesis to rest for the day. She had to use a wheelchair when going out.  The Mother required osteopath treatment more than once a month to ease her muscle pain, and she had been advised to swim at least once a week as “compensation exercise” since she was unable to walk.  Whilst she was eager to walk in the first two years after the Mother’s Accident and thought she would be able to get up and “keep going”, by the time of the Mother’s Statement she found her physical condition would only have allowed her to walk properly if she had a right prosthesis, but she would not be fit enough to keep going.

(c) Post-accident lifestyle and accommodation changes

33. The Mother described her pre-accident condition as follows:

“I was very active physically before the [Mother’s Accident]. I enjoyed gardening, jogging and dancing. I looked after everybody in the family and did almost everything in the house (such as going up the roof to repair a leak). I did all household work. Every night I prepared a timetable of what I planned to do the following day. From morning till night I moved like ‘military actions’ to complete all ‘tasks’ which I had planned the night before.

I was physically fit prior to the [Mother’s Accident]. I did not drive. I always hand-carried all shopping for my family of 4 (Alex was then working in Hong Kong and China) from supermarkets to home. It took a good 20 minute walk between home and the nearest supermarket even without carrying any shopping.

Besides household work, I spent a significant amount of my time in teaching/coaching [P and her sister].  I tried to teach them independent skills in the house.  I also comforted/ coached them in their emotional matters.  I enjoyed taking the children out to travel – caravanning, theme parks etc”

34. The Mother claimed that after the Mother’s Accident she was unable to do anything she did before including cooking, and the Father had to drive her everywhere, eg hospital appointments, swimming sessions, shopping etc.  Since the Father retired from work in Hong Kong in 2006 he had taken up all household work, but he could not coach/comfort the children’s emotional issues.  The Mother still did that with limitations because she could not go out to meet different people with the children.  In the last two years, the Parents spent significant time to look after P’s baby whilst P “assisted” them.  Their home had been adapted for disabled use, and the grounds around their house had been levelled with ramp installed for the main entrance.  The former sitting and study rooms on the ground floor had been converted to the Mother’s en-suite bedroom.

(d) Special care and attention

35. The Mother claimed that whilst she could do a lot of things herself, she required assistance almost at all times.  The Father was her carer, and he also cared for P and her sister.  The Mother had to visit the hospital periodically for her prosthesis fittings, monthly osteopath treatment, and weekly swimming sessions.

(e) Expected future needs

36. For more than five years since the Mother’s Accident, the Mother’s priority was to get a properly fitted prosthesis so that she could walk better and gradually resume doing more things independently.

(f) Status of the Mother’s claim

37. The Mother lodged a compensation claim in respect of the Mother’s Accident, and her case was settled out of court in late 2006.

VI.  MOTHER’s 2^nd DRAFT

38. The Impugned Paragraphs which the Ds objected were as follows:

“6. I was knocked down and severely injured in a traffic accident in the UK in 2005 and have ever since been wheelchair bound.

7. For a detailed account of the [Mother’s Accident], please refer to Attachment – 1, my draft witness statement prepared by my UK lawyers Messrs Irwin Mitchell (“IW”), in or about 2006 in my intended action for compensation in respect of the traffic accident. I do not intend to repeat the facts of the accident or my disabilities here. Suffice to say that I suffered grievous injuries and our family as a whole suffered a terrible time, in particular [the Father] upon whom the main burden of care for all of us, fell.

8. According to the information provided by the UK Police, the driver Esther Murphy was charged with the offence of “careless driving” and was fined £600 and had her licence suspended for 5 years.

9. As liability was clear cut, IW immediately obtained advanced payments from the driver’s motor insurer in or about 2005 or early 2006 to cover my then immediate medical expenses and needs.

10. With the assistance of IW and for the preparation of my personal injury claim against Esther Murphy, I was examined by a Consultant in Rehabilitation Medicine Dr S Sooriakumaran and J Sullivan, Prosthetic Manager on 17 February 2006. Please refer to a medical report dated 11 May 2006 by Dr Sooriakumaran and J Sullivan attached herein as Attachment – 2. My medical condition, disabilities and prosthetic needs were set out in detail in the medical report.

11. The claim was eventually settled at a very early stage without going to Court in or about late 2006.

12.  I am now physically handicapped as I have had an above knee amputation to my left leg.  It took me a long time to adjust and overcome the problems and fears associated with losing one leg and mobility, and with having to make difficult adjustments to my life.  My mobility is severely affected and I have serious difficulties in taking care of all my daily activities, not to mention taking care of [P] and the other children of the family.  I love [P] and all my children, however, it is too much of a stretch for me to take care of them due to my physical constraints.  [The Father], apart from the children, had to also take care of me after the accident.  For example, [the Father] had to drive me everywhere, carry my bags and push my wheelchair.  He also had to do a lot of shopping with/ for me, and he needed to do a lot of the housework because I cannot handle weights, have to move slowly, easily get tired and cannot stand up for long.  Prior to my accident, I used to spend a few hours per day looking after [P]; after my accident, [the Father] had to take up a substantial portion of my work in taking care of [P], particularly in driving the children around as their schedule was done by me before the accident.  Nowadays, I can only take care of [P] in terms of emotional support and supervision and guidance, and of teaching her how to take care of her children, ie act as a mother.  This has been and continues to be difficult because [P] is not a mature adult, rather she is just another child.  Whereas for [the Father], he had to take care of almost all aspects of [P’s] daily life, including travelling, finance, career, and even her life as a mother of 3 children.”

39. The Mother’s draft witness statement prepared by IW in respect of the Mother’s Accident being Attachment – 1 to the Mother’s 2^nd Draft (“IW Draft”) gave more detail as to how the Mother’s Accident happened from the time she went shopping up to the time she was taken to hospital by helicopter. In the IW Draft, the Mother also gave background information about P and her sister, and also further information about her hospitalisation as follows:

“1. …… My two daughters have learning difficulties. [P] was involved in an accident when she was almost six. She fell off a swing when the bolt holding up the chain came out and this has caused a significant brain injury. I do not consider that she is capable of independent living. [P’s sister] has a heart condition. This has meant that her activities have been severely curtailed. Like [P], she also has learning difficulties and they have both had to go to special schools. I also doubt whether she is capable of independent living.

……

9.  I am now in the Mayday Hospital in Croydon.  They are trying to fit an artificial limb to enable me to be able to walk.  The aim is to try to get me to be able to walk upstairs unaided.  I go back home during the weekend but return to hospital.  [The Father] is not working at the moment.  Before the [Mother’s Accident], he used to work full time in Hong Kong and China.  He is having to look after our children while I am in hospital.  I do become depressed.  I did have flashbacks every night for a few weeks after the [Mother’s Accident] but these are less frequent now.”

40. The report by Dr S Sooriakumaran and J Sullivan of 11 May 2006 being Attachment – 2 to the Mother’s 2^nd Draft (“Report”) described her (a) clinical background, (b) prosthetic rehabilitation and mobility, (c) residual limb and phantom pain, (d) activities of daily living, (e) psycho‑social aspects, (f) education and employment, (g) leisure and sports, (h) examination, (i) prosthetics and gait pattern, (j) considerations for prosthetic prescription, (k) prosthetic recommendations, and (l) costs of recommended prosthetic provision and maintenance, with (m) summary and prognosis. 

41. The initial part of the Report being (a)-(g) above appeared to be a record of the clinical and personal history taken from the Mother.  The sections of the Report on (h) above dealt with physical examination of the Mother by the experts, on (i) above dealt with history taking in relation to the Mother’s use of her existing prostheses, and on (j) above dealt with the functionalities of a suitable prosthesis for the Mother.  The sections on (k)-(l) above in the Report contained expert opinion on a suitable prosthesis and costs thereof.  It is useful to set out the section on summary and prognosis in (m) above as follows:

“14.01 [The Mother] is a 48 years old healthy lady who has acquired a transfemoral level amputation as a result of a road accident. Nearly a year after the accident she is yet to make sufficient progress in prosthetic rehabilitation to achieve regular walking. This is mainly due to the delay in the provision of comfortable prostheses and due to low back and right leg pain. She is now in the process of being fitted with a prosthesis privately. She is unable to wear the prostheses supplied through NHS and has been relying on crutches and a wheelchair to mobilise.

14.02 The residual limb has been fashioned in an optimal manner and [the Mother] has the potential to achieve regular prosthetic use, walking independently indoors full time and walking good distances outdoors relying on a stick for rough terrain (SIGAM grade E).

14.03 She would warrant investigation and treatment of the low back pain prior to completing fitting and training with the new prosthesis.

14.04 Previous to the accident she was active, caring for three children of whom two of them are disabled. In addition, she was working full time and regularly engaged in physical leisure pursuits and did DIY jobs in and around the house. All this has been seriously compromised by the accident and amputation. The psychological impact of this is significant and she has required regular counselling. Long term impact is best reported on by a suitably qualified Psychiatrist/ Psychologist.

14.05  As a transfemoral amputee she would be recommended one level spacious accommodation with provision for wheelchair mobility.  Access to toilet, bath, kitchen, garden etc should be made safe.”

VII.  LEGAL PRINCIPLES

42. Order 38 rule 2A(2) of the Rules of the High Court (“RHC”) provides that the court shall at a case management hearing direct every party to serve on the other parties within a specified period written statements of the oral evidence which the party intends to adduce on any issues of fact to be decided at the trial.

43. Order 38 rule 2A(7) of the RHC provides that where the party serving the statement does call such a witness at the trial, then inter alia (a) the court may direct that the statement served or part of it to stand as the evidence-in-chief of the witness or part of such evidence, and (b) the witness may with the leave of the court (i) amplify his witness statement and (ii) give evidence in relation to new matters which have arisen since the witness statement was served on the other party.  Order 38 rule 2A(7A) of the RHC provides that the court may grant leave under (b) above only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.  However, nothing in Order 38 rule 2A(8) of the RHC shall make admissible evidence which is otherwise inadmissible.

44. Even under the pre-CJR regime, Keith J in Ng Kam Chun, Stephen trading as Chun Mou Estate Agency Company v Chan Wai Hing, Janet & ors,[1] said:

“3. …… The witness statement [exchanged under Order 38 rule 2A(2) of the RHC] should contain the whole of the witness’ evidence in the detail in which the witness should have given it if his evidence has been elicited by oral questions at the trial. Anything less than that prevents the statements from serving the purposes for which they are intended to achieve – saving time, eliminating any element of surprise in the witnesses’ evidence, enabling the parties to know the full strength of the case they have to meet, and enabling counsel to prepare a crisp and effective cross-examination. I give notice to the profession that, unless there is a good explanation for a witness statement not properly covering the areas to which supplementary questions are sought to be asked, I shall be unlikely to give leave, pursuant to Ord. 38 r. 2A(5)(a), for evidence to be led from that witness on those topics.”

45. In Hanwa Kozai (HK) Company Limited v Hangyiu Limited & anor,[2] Keith J reminded litigants of the guidance in Ng Kam Chun, Stephen trading as Chun Mou Estate Agency Company, and added as follows:

“31. …… In my view, that practice should prevail whether or not the master has at the same time ordered that the statement should stand as the witness’ evidence-in-chief. I see no room for a witness statement which represents a half-way house between the pleadings (which are limited to the assertions which the parties seek to prove, and are not intended to incorporate the evidence which the parties propose to call to prove those assertions) and the witness statements (which are intended to set out the evidence which the parties propose to call to prove the facts asserted in the pleadings.”

46. I bear in mind that Order 38 rule 2A(1) of the RHC provides that the powers of the court under such rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case, including (but not limited to) (a) the extent to which the facts are in dispute or have been admitted, (b) the extent to which the issues of fact are defined by the pleadings, and (c) the extent to which information has been or is likely to be provided by further and better particulars, answers to interrogatories or otherwise.

47. It is evident from the above discussions that the contents of witness statements as to fact should be full and complete.  If the court directs such witness statements to stand as the evidence-in-chief of the relevant witnesses, the evidence of such witnesses is largely confined to the contents of such witness statements unless the court grants leave for amplification, but the court may grant leave only if there is good reason not to confine the evidence of the witness to the contents of his witness statement.

48. In personal injury cases, the plaintiffs’ physical, mental and/or medical state or personal circumstances may change over time. As I have explained in Lam Po Yee & anor v Dr Chan Yee Shing also known as Dr Chan Yee Shing Alvin,[3]

“119. If it is merely a matter of updating special loss incurred to date, one expects the ongoing obligation for discovery and eventual production of such discovered invoices and receipts would take care of the documentary evidence. There is no suggestion that any further supplemental witness statement will canvass completely new dimensions …… other than the [claimants’] situation since their last witness statements. That being the case, it is for the [claimants] to seek leave of the court at the assessment hearing to “give evidence in relation to new matters which have arisen since the witness statement was served on the other party”. If such application is made at the assessment hearing, the court will consider the merits of such application in light of (a) Order 38 rule 2A(7A) of the RHC, (b) the need to assess damages down to the assessment hearing, (c) the consideration that objectively irrelevant matters are not admissible, and (d) any other pertinent considerations at the time of the application.”

49. Here, the crux of the matter is whether the Impugned Parts are relevant to the issues in dispute that have to be resolved at trial.  In approaching the matter of relevance (according to P) or irrelevance (according to the Ds) of the Impugned Parts, I bear in mind the following matters:

(a)   There can be no doubt that the Impugned Parts concerned issues of quantum rather than liability, but at this stage the Ds are not yet required to file/serve their respective Answer to the SOD.  So there is no formal joinder of issues as yet on matters of quantum, and the court will have to take into account the likely disputes and issues based on existing information/material.

(b)   At this stage, it is not for this court to determine/resolve disputes or issues of fact amongst the parties.  Rather, this court is concerned with whether the matters raised or to be raised in witness statements or supplemental witness statements as to fact are relevant to the present action regardless of which parties’ version is to be preferred, and if not relevant, whether they should be allowed to remain or be included in any witness statement or supplemental witness statement as to fact. 

(c)   But pending the joinder of issues on matters of quantum, the present action has yet to be set down for trial.  If there is genuine doubt as to whether certain facts and matters are relevant to the issues in dispute, then it is proper for them to be included in the witness statements or supplemental witness statements as to fact, and the court can rule on their admissibility at an appropriate stage in the trial.  However, facts and matters that are obviously irrelevant to the disputed issues should be expunged or not included.

VIII.  PARTIES’ POSITIONS

50. Mr Ozorio SC submitted that the Impugned Parts were directly relevant to the issue of quantum because they gave important background information on P’s home situation and the difficulties the Parents faced and would face in taking care of P due to her injuries as a result of the Accident.  The Impugned Parts explained that the Mother had been P’s main carer until the Mother’s Accident when she was rendered disabled and the Father became P’s main carer.  He had to stop working for 5-6 years from 2004 to 2010 to deal with the difficult family situation and to take care of the Mother and P’s sister (who were both disabled). 

51. Mr Ozorio SC submitted that the Parents were unable to take care of or adequately supervise P who sometimes lived away from home with her boyfriend.  It was suggested that the Mother’s Accident and its aftermath were part of the reason for P’s undesirable relationship with her boyfriend in which she was exploited and abused, and her having three children.  Since January 2009, the Parents had the added burden of having to take care of P’s children. 

52. Mr Ozorio SC submitted that all of the above matters, including the Mother’s physical condition/disabilities caused by the Mother’s Accident would impact upon future accommodation for P and the children and were “directly relevant to the nature of the care regime provided by [the Parents] to [P] pre- and post-trial.  The inadequacy of such information is reflected in the Care & OT Report dated 15 November 2013 (pages 36-40) where little or nil allowance was made for gratuitous services provided by the [Parents] from 21 April 2005 to 30 June 2006”.

53. Mr Ozorio SC submitted that the extent of pain and suffering and disabilities the Mother suffered as a result of the Mother’s Accident would have a direct impact on the court’s assessment of quantum under the heads of “value of services of the Parents”, “past loss of earnings of the Father” and “costs of future care and attention”.  On such basis, the Mother’s Accident, her injuries, sufferings, rehabilitation and disabilities would be examined at trial, and hence the inclusion of such facts/matters in the Mother’s supplemental witness statement would save time and costs at trial and would prevent the Ds from being taken by surprise.  Such approach would enable the trial judge to be apprised of the full picture of P’s circumstances and needs (which were inextricably interlinked with the circumstances of the Parents and her siblings) and to determine the question of relevance at trial, which Mr Ozorio SC submitted was in line with the objectives specified in Order 38 rule 2A(1) of the RHC.  He claimed that to exclude the Impugned Parts now would lead to further arguments at trial.

54. Mr Ozorio SC submitted that the Ds would suffer no prejudice by the inclusion of the Impugned Parts in the Mother’s supplemental witness statement, and the Ds’ objection was merely to seek a forensic advantage so that they might rely on “the absence of justification for the extensive role played by [the Father] who had to give up his job for a few years and start self-employed work in recent years in order to have the flexibility to meet the needs, supervision and care required for [P] and her 3 children”.

55. On the other hand, Ms Wong complained the Impugned Paragraphs served no useful purpose since they merely repeated/ rephrased and expanded on the details in respect of the account of the Mother’s Accident and the Mother’s treatment, sufferings and disabilities already canvassed in the Mother’s 1^st Statement.  Ms Wong suggested the Impugned Paragraphs and the IW Draft (which covered the course of the Mother’s Accident, her injuries and condition/disabilities) were irrelevant to the issues in dispute in the present action.  As regards the details of the Mother’s own personal injury claim against the tortfeasor (who was also criminally charged) in respect of the Mother’s Accident, including the interim payments she received, the expert medical evidence she obtained and the out-of-court settlement she achieved, Ms Wong submitted they were again irrelevant to issues in dispute herein.  In any event, the Mother had given details of her medical condition, disabilities, treatment and prosthetic needs in the Mother’s Statement, and there was no need for the court to further canvass irrelevant details or peruse the Report. 

56. Both Ms Wong and Mr Lam complained there was no explanation as to why the details (which should have been available to the Mother all along) were not included in the Mother’s Statement. Mr Lam reiterated that the Mother’s Statement had given a full and detailed account of what the court needed to know about the Accident and the Mother’s injuries.  Mr Lam submitted that the Mother’s Accident was largely irrelevant to the present action which was focused on the Accident and P’s injuries/disabilities, and there was no need to go into any further detail. He argued that the Impugned Parts were not only irrelevant but also repetitive of what had already been stated in the Mother’s  Statement (eg, the IW Draft repeated the account of the Mother’s Accident and its aftermath already canvassed in Attachment 1 to the Mother’s Statement).  Mr Lam submitted this was compounded by the proposed inclusion of the Report, which was irrelevant since the present action was focused on P’s injuries and not those of the Mother. 

57. Mr Lam urged the court to bear in mind “the golden rule that only relevant evidence is admissible” and to disallow the Impugned Parts.  He further complained that if the Impugned Parts were included in the Mother’s supplemental witness statement, the Ds and the court would have to unnecessarily divert efforts to deal with irrelevant matters which would not aid resolution of the disputes between the parties in respect of the alleged Accident and P’s alleged injuries.

IX.  DISCUSSION

58. “[In] an accident claim the evidence must demonstrate both how an accident happened and how, as a result, injury and other damage was sustained.  …… If the claimant fails to establish that the defendant caused the harm of which complaint is made, or some part of it, then the action will fail.”[4] Situations can and do arise where the responsibility for causing an accident is not the same as that for causing damage suffered.  “It is a question of law, whether the evidence allows a reasonable finding of causation, but it is a question of fact, whether any particular head of damage has been caused by a defendant’s negligence or breach of statutory duty.”[5]

59. For the present purpose, since the Mother’s Accident happened many years after the Accident, such accident is plainly irrelevant to the issue of causation on liability in respect of the Accident.  I shall therefore focus on the question of causation as to damage.  The essential dispute between the parties is whether the Impugned Parts are arguably relevant to the issue of causation (and also to the issue of quantum) as to damage.  In the absence as yet of any Answer to the SOD, I shall assume that the Ds deny or at least not admit any causation as to damage and put P to strict proof, and (where appropriate) to allege remoteness of damage.

60. Mr Ozorio SC submitted that the Impugned Parts would be relevant to explain the situation of P’s family since the Mother’s Accident, which would in turn explain the difficulties the Parents had in looking after P and her children, and further explain (at least partly) why P entered into inappropriate relationship with her boyfriend and her having three children.  It was suggested that the Mother’s condition/disabilities would impact on the claim for accommodation needs for P and her children, on the care regime for P and her children provided and/or to be provided by the Parents, and on various heads of claims eg value of the services of the Parents, the Father’s past loss of earnings, and costs of future care and attention.

61. It is for P to develop the argument (as suggested by Mr Ozorio SC) that the Mother’s injuries/condition/disabilities as a result of the Mother’s Accident should be taken into account in ascertaining the “culpable” damage for which the Ds are liable, and if it can be reasonably so argued, then there is certainly credible basis to suggest that the Impugned Parts should not be excluded. I have set out Mr Ozorio SC’s contentions in paragraphs 50-54 above. However, I find there is no need to further analyse P’s position because even from a defence perspective of putting P to proof on the matter of causation of damage and possibly alleging remoteness of damage, in my view there is arguable basis to suggest that the Impugned Parts may be relevant.

62. In my view, on the materials presently before me, it can be respectably argued (and at this interlocutory stage it is unnecessary for me to go further or form any definitive view) that the Mother’s condition/disabilities as a result of the Mother’s Accident and the effect they have on her family were not caused by the Accident. Plainly, the Mother’s condition/disabilities were not due to any pre-existing condition/disability. I also note that the Mother’s Accident (a) happened more than a dozen years after the Accident, (b) occurred in the UK and not even in Hong Kong, and (c) was the result of a tort caused by a third party tortfeasor and not by any of the Ds.

63. Indeed, the Mother’s Statement (especially Attachment – 1 thereto), the Mother’s 2^nd Draft and the IW Draft all suggested she was an active and energetic lady who was well able to look after her three children (two of them allegedly disabled) thus enabling the Father to work in Hong Kong and Mainland China.  Indeed, the Mother’s own description in the Mother’s Statement of her condition before the Mother’s Accident (see paragraph 33 above) was that she was able to spend “significant amount of [her] time in teaching/coaching [P and her sister]”, and it was the Mother’s Accident that changed all that.  Indeed, Mr Ozorio SC suggested the Mother’s Accident and its aftermath were part of the reason for P’s undesirable relationship with her boyfriend and her having three children (see paragraph 51 above).

64. In my view, there is arguably credible basis for putting forward a contention (and again I form no definitive view) that (a) the Mother’s Accident was not reasonably foreseeable and (b) the “thin skull” (ie the victim’s damage was unexpectedly severe as a result of pre-existing susceptibilities or predispositions which might have never troubled the victim but for the tort) or “crumbling skull” (ie a pre-existing though perhaps asymptomatic condition that is aggravated or accelerated by the tort) arguments are inapplicable.  That being the case, the Ds may arguably suggest the “thin skull” principle that “the tortfeasor has to take the victim as he finds him” or the “crumbling skull” principle that “the tortfeasor is only responsible for the extent to which he or she has worsened the victim’s condition” does not apply.

65. Consequently, it may also be credibly argued compensation should be denied on the premise that the Mother’s Accident, not being reasonably foreseeable, amounted to an independent intervening cause in the form of a wrongful act by a third party (ie the car driver who rammed into the Mother in the Mother’s Accident) that broke the chain of causation between the tort (ie the Accident to P) and the ultimate harm (ie the Mother allegedly not being able to care for P and her children due to her own condition/disabilities as a result of the Mother Accident with consequent impact on P and her inappropriate relationship and consequent need for the Father’s care and services to P and her children).[6]

66. Of course, whether such argument will be pleaded in the Ds’ Answers to the SOD (or eventual Revised Statement of Damages) and (if so pleaded) whether it will succeed is not known at this stage, and it is a matter of judgment at trial, based on the facts of the present case, whether or not the intervening act (ie the Mother’s Accident) is reasonably to have been foreseen as likely to follow upon the Ds’ negligence (although on present materials it is not easy to appreciate any such foreseeability).[7]  At this stage, I accept the Ds are entitled to dispute causation of damage and/or allege remoteness of damage.  It must also be remembered that the loss the Mother suffered as a result of the Mother’s Accident had been the subject of her legal claim or intended legal claim against the car driver, and any loss and damages attributable to the Mother’s Accident had merged in the settlement of that claim.

67. In my view, in considering the question of causation as to damage, it is quite likely that the court will have to consider whether the various heads of loss alleged by P (as referred to paragraph 60 above) are attributable to the Accident or due to alleged novus actus interveniens being the Mother’s Accident.  In respect of the Mother’s claim or intended claim against the car driver, it appears from the IW Draft that the Mother and her legal advisors were aware of the impact of her injuries/disabilities on P and her sister, and the need for the Father to cease work in Hong Kong and Mainland China to look after their children as a result of the Mother’s Accident (see paragraph 39 above).  As noted above, the Mother has settled her legal claim or intended legal claim against the car driver in respect of the Mother’s Accident, and hence she has received compensation for loss and damages arising out or as sequelae to the Mother’s Accident.  The Mother’s 2^nd Draft did not mention the amount or calculation of the settlement sum. But even if the Mother has not received full compensation (say, eg, she had waived certain claims to achieve a quick settlement or the car driver had defaulted in payment of any part of any agreed compensation), it may still be argued that such under-compensation (if any) should not be laid at the Ds’ door since they neither satisfy the “but for” nor the “material cause” tests. 

68. I therefore agree with Mr Ozorio SC that a key question in this case is proof of a causative link between the Accident and the damage suffered, which in turn affects the remoteness and quantum of the damages claimed.  Bearing in mind that the Ds are only liable for “culpable” damage that flow from the Accident, so even assuming that liability is proved, for the purpose of determining the issues of causation, remoteness and quantum as to damage, the trial judge may well have to investigate at trial whether or not the Accident and the Mother’s Accident are separate and independent acts of negligence, and if so, whether the Ds or any of them will be liable for the full consecutive damage successively suffered as a result of each accident.[8]

69. Further, irrespective of whether or not the defence propositions discussed above can be established, the trial judge will have to assess the “culpable” damage for which the Ds are liable (assuming that liability is proved) in context of the realities of P’s and her family’s situation.  There is no turning the clock back from, say, (a) the alleged fact that P had inappropriate relationship and (b) the fact that she now has three children, and the trial judge will need sufficient evidence to enable him/her to decide what loss or damage is attributable to the Ds’ “culpability”.

70. In my view, if the Ds (as they are entitled to) dispute causation of damage and/or allege remoteness of damage, it is likely that the court will have to assess and weigh the evidence as to loss and damage to see if the above contentions can or cannot be made out as a matter of law and fact.  But as I have said, it is not for me to come to any definitive view at this stage.

71. Whilst I agree with the Ds that (a) the question of liability is focused on the Accident and (b) the trial judge will be concerned on the issue of quantum with “culpable” damage that flows from the Accident, I disagree that the matters in the Impugned Parts are therefore irrelevant (especially when P claimed for loss in both pre-trial and post-trial periods that encompass the period after the Mother suffered the Mother’s Accident) – at least it is not possible for me at this stage to say so without sight of the Answer to the SoD or in due course the Revised Statement of Damages.  In light of the above, it is premature at this stage to consider the admissibility or otherwise of the Impugned Parts as evidence at trial.  I take note of the Ds’ complaint of some repetition over details between the Impugned Parts and the Mother’s Statement (including Attachment – 1 thereto), but in light of the issues on causation that may have to be addressed at trial, at this stage I am not persuaded the details are necessarily irrelevant.  I am therefore prepared to allow the Impugned Parts to be included in the Mother’s supplemental witness statement.

X.  CONCLUSION

72. In the circumstances, I grant the following order:

(a)   leave for P to serve the supplemental witness statement as to fact of the Mother as per the Mother’s 2^nd Draft within 14 days from today;

(b)   leave to P to withdraw the Summons.

73. Normally, costs in respect of an application for leave to adduce supplemental witness statements to provide updated information would be in the cause.  But there is no reason why costs should not follow event in respect of the dispute over the Outstanding Matters.  I therefore grant a costs order nisi that:

(a)   there be no order as to costs in respect of the Summons and the application to withdraw the Summons;

(b)   the Ds do pay P costs of and occasioned by the arguments in respect of the Outstanding Matters;

(c)   save and except as provided in (b) above, costs of P’s application for leave to serve the supplemental witness statement of the Mother be costs in the cause.

The above costs order nisi shall include all costs reserved if any to be taxed if not agreed, and certificate for two counsel.  I further order that P’s own costs be taxed in accordance with Legal Aid Regulations.

XI.  CONTRIBUTION NOTICE

74. I notice that on 27 July 2010 D2/D3 have filed a Notice of Contribution against D1 that in the event of D2/D3 being held liable to P they would claim against D1 for (a) an order that D1 do indemnify them against P’s claim for damages and interest in full or do contribute to such extent as the court shall think just in respect of any of such claims which P may successfully pursue against them, and (b) judgment for the amount of costs that they may be adjudged to pay to P and for the amount of their costs in defending the present action and in respect of the proceedings against D1.

75. However, to date neither D1 nor D2/D3 have applied to this court for case management directions to file/serve pleadings, make discovery of documents, and serve witness statements as to fact in respect of the contribution proceedings.  I therefore grant an order that D1 and D2/D3 shall within 14 days from today jointly write to this court (with copy to P) to propose comprehensive case management directions for the conduct of the contribution proceedings.