XCHRX HO CHI HANG WILLIAM v. CHEUNG KIN AND ANOTHER

HCPI 1526/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1526 OF 2000

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R U L I N G

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1. This is an application by the plaintiff for the 1st and 2nd defendants to withdraw Interrogatories administered by the defendants to the plaintiff dated 6 February 2002. The application is opposed by the defendants.

Background

2. The plaintiff claims against both defendants for personal injuries arising from a traffic accident which occurred on 31 March 1998 within the compound of the old Kai Tak International Airport.

3. The plaintiff is an employee of Hong Kong Aircraft Engineering Company Limited ("HAECO"). At the time of the accident, the plaintiff was a front seat passenger in a light goods vehicle ("LGV") which was driven by a fellow colleague of his. The LGV collided with a tow truck driven by the 1st defendant and owned by the 2nd defendant.

4. The pleaded case of the plaintiff is that the collision was caused by the negligent driving of the 1st defendant and for which the 2nd defendant, being the employer of the 1st defendant, is vicariously liable. The collision resulted in the plaintiff suffering physical injuries mainly to his forehead and eyes.

5. The defence pleaded by the 1st and 2nd defendants deny that the collision resulted from the negligence on the part of the 1st plaintiff but pleads that it was due to the negligent driving of the driver of the LGV. The defendants have brought third party proceedings against HAECO on the basis that HAECO is vicariously liable for the negligent driving of the driver of the LGV as an employee of it.

6. As the Defence now stands, there is no plea of contributory negligence against the plaintiff. Neither has there been any reference at all to seat belts in the Defence. Although there was an earlier application by Summons taken out by the defendants for leave to amend the Defence to include a plea of contributory negligence on the part of the plaintiff for failure to wear a seat belt, however, that application for leave to amend the Defence has been withdrawn by a Consent Summons dated 1 February 2002.

7. On 6 February 2002, less than a week after the Consent Summons withdrawing the application to amend the Defence, the Interrogatories, the subject matter of this application, was served by the defendants on the plaintiff asking the plaintiff whether, at the time of the accident :

(a) a seat belt was fitted to the front passenger seat of the LGV in which the plaintiff was traveling;

(b) if so, was the seat belt functioning properly at the time; and

(c) whether the plaintiff was wearing the seat belt at the time.

The Application for withdrawal of Interrogatories

8. The plaintiff makes this application on the basis that the present Interrogatories served on the plaintiff by the defendants do not relate to "a matter in question" between the parties since the defendants have not pleaded contributory negligence. Moreover, contributory negligence is a matter which must be pleaded in order for the defendant to rely on it at the trial.

9. In the circumstances of this case, the plaintiff says that the Interrogatories asked for by the defendants amount to "fishing interrogatories" as referred to by Cheung J (as he then was) in the case of Lee Nui Foon v. Ocean Park Corp. (No.2) [1995] 2 HKC 395.

10. On the other hand, counsel for the defendants submits that since the defendants have denied negligence on their part and put the plaintiff to strict proof of that, it is incumbent upon the plaintiff to prove causation. She further submits that causation is made up of both the collision and also the plaintiff's failure to wear a seat belt. As such the issue relating to seat belt is very much in issue between the parties despite the fact that as the pleadings now stand, there has not been pleaded contributory negligence by the defendants.

Decision

11. For my part, I am unable to accept the submission made by counsel for the defendants for the following reason.

12. In the context of the present case, on its facts, a distinction must be made between the causation for the collision and causation resulting in the injuries to the plaintiff. The causation for the collision can, on the facts of the present case, only be put at the door of the two drivers, either or both of them. It cannot be attributed to the plaintiff even if it transpired that he was not wearing a seat belt.

13. The fact that the plaintiff may not have been wearing a seat belt can only go to the question of causation of his injuries.

14. Once this distinction is made, it can readily be seen that, if it is the defence case that the plaintiff had failed to wear a seat belt and thereby aggravated his injuries which resulted from the collision, that can only be put forward by way of contributory negligence and cannot be advanced as a cause of the collision itself.

15. Therefore in the absence of a plea of contributory negligence by the plaintiff in the Defence, it is not open to the defendants to say that the issue of the seat belt can be a matter in question between the parties in the present case.

16. Neither is it open to the defendants to say that they intend, in due course, to apply to amend the Defence to include a plea of contributory negligence. For until that is done (which depends on whether leave would be granted to the defendants so to do) there is no issue between the parties which properly relate to seat belts.

17. For the reasons given, the Interrogatories do not relate to a matter in question between the parties. I shall therefore order that the Interrogatories administered on the plaintiff by the defendants and dated the 6 February 2002 be withdrawn.

Costs

18. There will be a costs order nisi that the defendants do bear the costs of this application in any event. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.