PAU CHI TAK v. HONG KONG TELEPHONE CO. LTD

HCA 106/1987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 106 OF 1987

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REASONS FOR DECISION

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1. This is an appeal against the decision of Master Kwan who dismissed the Plaintiff's claim for want of prosecution.

2. At the material times, the Plaintiff was employed by the Defendant, Hong Kong Telephone Co. Ltd as a technical officer.

3. On 25 January 1984, the Plaintiff in the course of his employment with the Defendant fell off a vehicle when it was driven off a garage by a servant or agent of the Defendant.

4. The Plaintiff suffered quite serious injuries and had to be hospitalised.

5. In January 1986, the Plaintiff brought a claim against the Defendant for employees' compensation. One year later in January 1987, the Plaintiff brought the present action against the Defendant for common law damages.

6. The Plaintiff was then legally aided.

7. In April 1988, the Plaintiff was awarded about $28,000.00 in the employee's compensation action.

8. In respect of the present action, the Defendant paid into Court a sum of $185,000.00 in August 1988. In January 1989 a further sum of $50,000 was paid into Court.

9. In December 1989, the Legal Aid Department discharged the legal aid granted to the Plaintiff. The Plaintiff appealed against such decision but the appeal was dismissed.

10. The Plaintiff has since been acting in person.

11. Since November 1989, neither parties had taken any step in the proceeding until 24 September 1998 when the Defendant's solicitor served a notice of intention to proceed on the Plaintiff. Despite the service of such notice, the Plaintiff took no step in furtherance of his claim against the Defendant.

12. In July 1999, the Defendant took out the application to strike out the Plaintiff's claim for want of prosecution which summons was eventually heard by Master Kwan on 19 January 2000.

13. Master Kwan granted the Defendant's application and struck out the Plaintiff's claim, hence the present appeal.

14. In an application of this nature, the Court has to consider first if there has been inordinate and inexcusable delay. If there has been inordinate and inexcusable delay, whether such delay will give rise to a substantial risk that it would not be possible to have a fair trial, or will cause serious prejudice to the Defendant as a result of absence of witnesses or the impairment of their recollection of the relevant events. (Allen v. Sir Alfred McAlpine & Sons Ltd & Another [1988] 2 Q.B. 229)

15. The Plaintiff suggests that when he was legally represented, his lawyer did not proceed with his case with due diligence. When he was not legally represented, he did not know what to do and dared not make any move.

16. He also suggested that the Defendant had done nothing to get on with the case since 1990 and has not got in touch with him for a prolonged period.

17. There is also a vague suggestion that at the initial stage, the delay was caused by the offer of a settlement. But the Plaintiff refused to accept the offer as it was too low.

18. Negotiation for a settlement is not an excuse for allowing the case to idle for too long. The fact that a party is acting in person is not too significant a factor in deciding if there has been inordinate or inexcusable delay.

19. I also agree that the Defendant has no duty to guide or push the Plaintiff to proceed with the case with diligence as long as he does nothing to encourage this Plaintiff to delay the proceeding.

20. The delay in question is indeed very substantial. It is a period of over 15 years from the date of the accident and almost 10 years from the time when the Plaintiff last took any step in the proceeding.

21. I have considered the matter carefully and in a manner most favourable to the Plaintiff. I have also tried to give the Plaintiff as much leeway as possible.

22. But the delay on the part of the Plaintiff in the circumstance is indeed inexcusable.

23. In the defence of the Defendant, it was not disputed that the Plaintiff fell from a vehicle driven by an employee of the Defendant as it was leaving a garage. However it was suggested that the accident was caused wholly by or contributed to by the negligence of the Plaintiff.

24. The Defendant also denied that the injuries allegedly suffered by the Plaintiff were suffered as a result of the accident. In particular it was alleged that the Plaintiff was malingering on the effect of his head injuries.

25. If the case proceeds to trial, the Court has to examine in details the circumstance in which the accident occurred and the extent and effect of the Plaintiff's injuries.

26. The Defendant suggests that of the 4 witnesses who were present at the time of the accident, 2 of them cannot be located, the other 2 no longer have any recollection of the details of the accident.

27. The Plaintiff had been examined by 4 doctors, Dr Arthur Hodgson and Dr David Lee appointed by D.L.A. for the Plaintiff, Dr Wedderburn and Dr Arthur Yau appointed by the Defendant.

28. Dr Hodgson and Dr Wedderburn are dead. Dr Lee has retired and is living in Thailand.

29. Looking at the reports prepared by the doctors on the condition of the Plaintiff, it is clear that they had different opinion on the condition of the Plaintiff, including the percentage of his permanent disabilities. They also disagreed as to whether the Plaintiff had malingered and if so the extent of such malingering.

30. Quite apart from the prejudice that the Defendant will suffer by reason of the huge increase in the award in personal injury cases over the past 15 years, the long delay means it is not possible for the court to properly determine the circumstances in which the accident occurred. It is also not possible to assess fairly and reasonable the nature and extent of the Plaintiff's injuries or the impact of such injuries on the Plaintiff.

31. It is in the circumstances not possible to have a trial which is fair both to the Plaintiff and the Defendant.

32. The learned Master has come out a correct decision in striking out the Plaintiff's claim. There is no valid basis upon which I can interfere with such decision.

33. The appeal must therefore be dismissed.

34. In the light of the rather unusual circumstances, I make no order as to costs on this appeal.

35. The order on costs is an order nisi to be made absolute 14 days after the handing down of the judgment.