CONNIE FRANCES HAINES v. CHEUNG HING CHEONG

HCPI 551/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 551 OF 2000

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R U L I N G

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1.  The defendant applies to dismiss the plaintiff’s claim for want of prosecution and/or as an abuse of process.

The Proceedings

2.  The defendant, Mr Cheung, bought a flat in Caine Road, Hong Kong, in about January 1998.  He leased the flat to the third party, Ms Deane, for a term of one year from 14 December 1998.  The plaintiff, Ms Haines, came from Singapore to stay with her friend Ms Deane, over the New Year.  On the evening of 30 December 1998, while Ms Haines was sitting in the kitchen of the flat, the ceiling light fitting fell down and injured her.  She pleads that the light fitting exploded and fell on her; in her witness statement she says that she heard an explosion above her.  She also pleads that the defendant replaced the light fitting with another, which also fused and fell a few days later, and that another light fitting also fell in a bedroom some time after the accident.  Ms Haines’ claim is founded in negligence and breach of the common duty of care under the Occupiers’ Liability Ordinance, Cap. 314.

3.  As to particulars, Ms Haines pleads that Mr Cheung failed to take adequate precautions, exposed her to a risk of damage or injury of which she knew or ought to have known, failed to ensure the light was suitable for installation in the kitchen, failed to ensure that it was installed by a suitable and competent workman, and failed to ensure that it was properly secured to the ceiling and that it had been inspected and passed as safe.

4.  Mr Cheung’s defence is a bare denial of liability.  In answer to interrogatories he pleads that he bought the flat in January 1998 and did not have it inspected by a surveyor before renting it to Ms Deane.  He rented it to her on about 13 December 1998.  He had minor renovations done, not including the fitting of the ceiling light.  He did have the light replaced after the accident, and was informed that it had fallen again.  He did not know of any other ceiling light having fallen.

5.  In third party proceedings, Mr Cheung pleads that Ms Deane was the occupier and the accident came about through her negligence and breach of duty under the Ordinance.  He relies on Clause 2(c) of the tenancy agreement which provides for the tenant to keep the interior non-structural parts, etc. in good condition and on clause 4(g) by which the tenant indemnifies the landlord against claims arising from the defective or damaged condition of the premise or the landlord’s fixtures.  As to particulars, he pleads that Ms Deane failed to take adequate precautions, exposed the plaintiff to a risk of damage or injury of which she knew or ought to have known, failed to keep the ceiling light in good and substantial repair and condition pursuant to the agreement, and failed to inform the defendant of its damaged or defective condition.

6.  For her part, Ms Deane denies liability.  She adopts Ms Haines’ averments of negligence and further says that Mr Cheung knew or ought to have known of the risk, by reason of his actual occupation and his having had the premises renovated.

Evidence of fact

7.  There is not much evidence of fact.  Ms Haines can only say that she heard an explosion above her, and that the light fell and injured her.  Mr Cheung can only say that he bought the flat and occupied it in January 1998.  He had minor renovations done.  He bought the light, and had it fitted by a lamp shop in Hung Hom whose name he cannot remember.  He leased the premises to Ms Deane from 14 December 1998 for one year at $8,000 per month.  In early January 1999 Ms Deane told him of the accident and he found that the whole ceiling light had been disposed of, so he did not know what had happened to it.  He had the light replaced, and was later told that the new fitting had also exploded and fallen; so he got his contractor to put in a new bulb to replace it.  He did not know of any problems or malfunctions when he lived in the flat between January and December 1998 and he was not told of any by Ms Deane before the accident.

8.  As to Ms Deane, if she has made a statement, it is not in the bundle before me.  I understand that witness statements have not been exchanged in the third party proceedings.

The progress of the action and third party proceedings

9.  Ms Haines proceeded to obtain medical reports on her injuries, wrote a letter before action to the defendant on 14 April 2000, and then issued her Writ on 12 May 2000.  She moved to Australia in June 2000.  The Statement of Claim was filed on 15 September 2000; a Third Party Notice was issued on 16 October 2000; and both the main action and the third party proceedings went ahead until about March 2002.

10.  On 7 March 2002, the defendant served his expert’s reports, and on 22 March his solicitors wrote to the plaintiff’s solicitors, without prejudice, seeking quantification of the claim.  The plaintiff’s solicitors replied on 25 March to the effect that it was not accepted that the plaintiff was yet capable of performing heavy work, that she had been unable to obtain steady long-term employment, and that they were unable at that stage to prepare a proper quantification of the claim.  After that, no further steps were taken in the action until 18 May 2005 when the plaintiff gave notice of intention to proceed.  In September 2005 the plaintiff applied to restore the checklist review hearing.

11.  A checklist review was held on 8 November 2005 at which the defendant indicated that he would apply to strike out the proceedings, as the third party had left Hong Kong.  He was directed to issue his application to strike out within a month, and he did so on 6 December 2005.

The defendant’s case for striking out

12.  The defendant’s case is set out in two affidavits by his solicitor, Ms Yeung Sau Ling, Raina.  She says that there has been inordinate and inexcusable delay on the part of the plaintiff, in that she did not issue her Writ until almost 17 months after the accident.  There was a further 4 months delay in filing the Statement of Claim and Statement of Damages.  She refers to other steps in the proceedings, and generally complains of delay in the period before March 2002.  She says that the most obvious phase of delay runs from January 2001 to May 2005, and complains that the plaintiff further delayed for four months before applying to restore the checklist review hearing.

13.  Ms Yeung says that the plaintiff has suffered prejudice because of the delay.  In the first place, as informed to the court by her then solicitor in November 2005, Ms Deane left Hong Kong permanently in May 2005.  Her whereabouts are unknown.  This makes it virtually impossible for the defendant to enforce his indemnity against her.  If the plaintiff had proceeded with her claim after March 2002, the likelihood of enforcing the judgment against Ms Deane was very high.

14.  In the second place, Ms Yeung says that although Ms Deane left in May 2005, she was not informed until November of that year.  Given the relationship between the plaintiff and Ms Deane, it was too much of a coincidence that the former should only start up her action again, after the latter had left Hong Kong.

15.  In the third place Ms Yeung says that the injuries from the accident concerned here are now clouded by the injuries the plaintiff suffered in her second accident in 2003.  The delay makes it difficult to assess the true extent of the injuries arising from the first accident.

16.  In the fourth place, Ms Yeung refers to the fact that after so many years, the memory of witnesses is likely to fade.  This will prejudice the defendant’s right to a fair trial.

The plaintiff’s case on striking out

17.  The plaintiff’s solicitor, Mr Burke, has exhibited a detailed chronology.  He says that problems were encountered between mid 2002 and 2004, especially in the latter year.  He says that the defendant’s reports were served more than a year late, in March 2002.  He sought instructions, which he obtained in May 2002.  The plaintiff instructed a second medical expert opinion, and he then obtained authority from the Legal Aid Department to instruct a new expert.

18.  Mr Burke then sought recommendations in Australia, where the plaintiff had moved in 2000.  He found a Professor Bogduk, to whom he sent an initial letter in October 2002, and formal instructions in March 2003, but there were problems in arranging an examination, because of the need to obtain a referral letter, so the examination was carried out in November 2003.  By this time, in May 2003, the plaintiff had suffered a second, unrelated accident and Mr Burke says that because of this, the examination could probably not have been scheduled any earlier.

19.  After that, medical reports were served on the defendant, who was also advised of the second accident.  At that stage the defendant raised no objection concerning the delay.

20.  It appears from Mr Burke’s affidavit that he had some difficulty in obtaining instructions from the plaintiff in 2004.  She was sent Professor Bogduk’s report in February 2004 and her instructions were sought on this and her employment.  She did not, however, give instructions until November 2004.  Her solicitors in Australia, acting for her in relation to the second accident, did not send documents relating to current employment and wages until May 2005.

21.  On the point of the failing memory of witnesses, Mr Burke says that the defendant has already provided full details on liability in his witness statement and answers to interrogatories, in November 2000.  He was not then able to give details about the installation of the light fitting.

22.  As to the second accident, he says that the plaintiff does not pursue any claim for economic loss after the occurrence of that accident in May 2003, and therefore the delay to this extent assists the defendant.  He denies the suggestion of conspiracy between the plaintiff and Ms Deane, to delay proceeding until she had left Hong Kong; he says there is no evidence of it (as indeed there is not).  In any event there would always be difficulty in enforcing any judgment against Ms Deane, who is not insured, although the defendant is.  In fact Ms Deane has now been found to reside in South Africa.  He says further that the fact that she is no longer in Hong Kong might assist the defendant in obtaining judgment.

The defendant’s reply

23.  Ms Yeung in a second affidavit takes issue with various points.  In particular she says that there was no correspondence between Mr Burke’s firm and hers, between 25 March 2002 and 17 February 2004.  There was then another lapse in communications, until 9 September 2005.  It took 2½ years to obtain Professor Bogduk’s opinion, and to obtain information about the second accident.  The plaintiff’s solicitors did not themselves know of this second accident until September 2003 so this accident could not account for delay before this date.

24.  Ms Yeung says that no delay was caused by the request for quantification.  This was not a case where the parties tacitly agreed to hold off, pending negotiations.  She denies that delay was caused by late service of the defendant’s medical expert reports.  She relies on the fact that there was no order requiring service of those reports, and they were provided in March 2002 almost immediately on request.

25.  Other points are made in reply, in particular that the plaintiff’s injuries were not so serious as to justify such a long delay; there was little dispute between experts by March 2002, and they agreed that she could by then resume her pre-accident work.  However the plaintiff she went behind this, to obtain the opinion of Professor Bogduk.  This took a long time and there was there was further delay in 2004 in obtaining details of earnings from the plaintiff herself and there is no explanation for these delays; and the plaintiff’s solicitors have never put forward any quantification of claim during the inactive period, or sought to discuss settlement.

Medical Evidence

26.  The plaintiff’s original medical experts are Dr Ian Nicolson, plastic surgeon, Dr Brian Choa, neurosurgeon, and Dr David Cheng, orthopaedic surgeon.  In addition, she has obtained the opinion of Professor Bogduk who is a pain expert.  The defendant’s experts are Dr Danny Choi, orthopaedic surgeon, and Dr Edmund Woo, neurosurgeon.

27.  It appears that the hot light fitting fell on the plaintiff’s neck and left shoulder region and she also suffered abrasions, lacerations and a superficial burn to the left cheek.  According to Dr Nicolson’s report dated 21 September 1999 she was left with conspicuous scars inn the left shoulder region, and discomfort in the scars caused by clothing.  There was also pain and restriction of left shoulder movement and referred pain in the left arm.  Dr Nicolson said that there was permanent cosmetic disability, which would not be lessened by plastic surgery.

28.  Dr Choa, whose report is dated 30 September 1999, found reduced elevation and medial rotation of the shoulder joint, with the left deltoid muscle 20% weaker than expected.  He found enervation and
re-innervation of the muscle.  He also found a mild disc prolapse at C5/6.  He said that the plaintiff was likely to be left with some permanent stiffness and weakness of the shoulder and assessed her at having 5% impairment of the whole person and a 5% loss of earning capacity.

29.  Dr Cheng, whose report is dated 30 November 1999, diagnosed multiple superficial lacerations, since healed, and contusion of the left shoulder.  There was abnormality of the shoulder on MRI scan.  There was some subjective discomfort and weakness of the left shoulder, but no demonstrable sign of any impairment of strength or reduction of range of motion.  He referred to with Dr Choa’s findings and said that it was possible that the plaintiff would have shoulder weakness and discomfort, especially during sustained action, as when she works, although such weakness was not demonstrated on examination.  He said that she could continue her work as a freelance designer or image consultant though she may have symptoms which would reduce her efficiency.  He agreed with Dr Choa that there should be a 5% loss of earning capacity.

30.  Dr Tsoi, who saw the plaintiff on 11 January 2001, said that she was complaining of neck pain and stiffness, headache, pins and needles in the left hand and to a lesser extent in the right hand, pain over left shoulder on movement and difficulty in elevating the left arm to overhead level.  She said she was unable to perform pre-injury sports.

31.  Dr Tsoi found no muscle wasting, normal reflexes, normal fine co-ordination of fingers, normal elbow, wrist and finger muscle strength, and subjective pain over the tip of the left thumb, index and middle finger.  On X-ray he found inter alia, a mild degree of degenerative change at C5/6 level.  He thought that the neck and left shoulder pain were probably caused by the irritation of the C5 nerve root by the herniated disc and that the injury could have caused this.  Though the plaintiff complained of disabling pain, he found minimal objective signs of it.  He estimated 3% permanent impairment of the whole person, and said that the plaintiff should be able to continue her pre-accident work.  Apart from jobs requiring lifting heavy weights overhead, there should be no limitation to her employment prospects.  He agreed a loss of earning capacity of 5%.

32.  Dr Woo, who also saw the plaintiff on 11 January 2001, likewise found little objectively wrong except a mild limitation in anterior neck flexion with mild paravertebral muscle spasm on the left side.  There was no evidence of residual neurological disability.  According to him, there should be 2% impairment of the whole person.  The plaintiff should be able to return to her pre-accident work as image stylist though the pain and stiffness may limit her performance.  He agreed a loss of earning capacity not exceeding 5%.

33.  I have set out the views of the experts on impairment of the whole person and loss of earning capacity, though these may not be seen as assisting the court on estimating quantum, so as to show the fairly close agreement between the experts on both sides.  By January 2001, they all thought there was nothing much wrong with the plaintiff apart from some subjective pain and stiffness which would not stop her from returning to work, though it might impair her efficiency somewhat.

34.  As to what that work entailed, in her witness statement the plaintiff says that she worked as an image stylist for the Television Corporation of Singapore.  Her work entailed selection of clothes for TV presenters; she had to pick the clothes and carry them back to the studio, and she had difficulty in carrying them after the accident.  She would also occasionally dress the performers and do make-up and hair.  When doing make-up and hair, she had a problem if she had to use her left arm.

35.  It is not clear from the statement, or the histories taken by the medical experts, what heavy and prolonged lifting Ms Haines had to do in her pre-accident job.  She continued in that job until the end of May 1999.  It appears that she is saying that her neck and shoulder problems got worse later.

36.  Professor Bogduk, who saw the plaintiff on 12 November, takes a rather different view from the Hong Kong experts.  Apparently he suggested, on the basis of the other medical reports, that a diagnosis of complex regional pain syndrome type II, following damage to cutaneous nerves, might have been overlooked.  Having seen the plaintiff, he ruled this out.

37.  Professor Bogduk said that on examination the plaintiff had features of neck pain.  He could not find any convincing signs of nerve injury.  He considered that the features she exhibited were consistent with an injury, but not to the neck.  They were more consistent with an injury to the suspensory apparatus of the left upper limb.

38.  He asked Ms Haines why the previous reports made little or no mention of neck pain.  She explained that her condition had been evolving.  Early on the skin wounds were the major problem.  Later, when those had settled, the neck pain became dominant.  Professor Bogduk accepted this as a reasonable explanation.

39.  He went on to explain some detail his view on the injury to the suspensory apparatus of the shoulder.  If I have understood correctly, and can distil it in this way, he considers that the heavy downward blow to the shoulder, caused by the falling light fitting, probably injured the suspensory apparatus, i.e. the levator scapulae and rhomboid muscles, in which the plaintiff exhibited tenderness.  This is a muscle sprain.  While some consultants might argue that simple muscle sprains should heal this is wishful thinking.  Many patients with undiagnosed pain from the suspensory muscles of the shoulder suffer persistent pain.  This has not been studied scientifically, and there is no established diagnostic test, but that does not mean that the condition does not exist.

40.  As to the neck pain, this is subjective because the source is close, and it can be treated.  There is, however, no established treatment for pain from the suspensory shoulder muscles.  All that the Professor and his group can offer is an assessment and formulation of the problem, but no treatment or cure.  The plaintiff has a problem that will last indefinitely until a legitimate intervention can be devised.  Injection of local anaesthetic into the tender areas could be explored, but this would technically be experimental.  The default position is that the plaintiff will remain permanently disabled, as a result of the injury.

41.  I have, of course, not heard any evidence, and I can only make a tentative assessment based on the reports, but I have to say that it does not seem to me that Professor Bogduk’s report takes the assessment of quantum much further.  Put simply, what he is saying is that the plaintiff has some pain and weakness in the left shoulder and neck, which will last indefinitely.  That is, in effect, what the Hong Kong experts agreed in early 2001.  They also agreed that the plaintiff could return to her pre-accident work, with some diminution in efficiency.  On this point, Professor Bogduk does not express an opinion.  He does not say that she cannot carry clothes or work on costumes, hair and make-up.  So it is difficult to see that the trial judge will be assisted by his report to any great degree.

The applicable law

42.  In Hongkong & Shanghai Banking Corp Ltd v Kuan Tao Sheng & Ors [1998] 1 HKC 438 at 443E, Mortimer VP set out the applicable law, which he accepted as an accurate, if general, statement of principle :

“In Trill v Sacher [1993] 1 WLR 1379, 1398-1400, Neill LJ summarises the relevant principles and guidelines.  It is useful to set these out in full :

(1) The basic rule is that an action may be struck out where the court is satisfied (a) ‘that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers,’ and (b) ‘that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party:’ see Birkett v James [1978] A.C. 297, 318.

(2) The general burden of proof on an application to strike out for want of prosecution is on the defendant.

(3) Inordinate delay cannot be precisely defined.  ‘What is or is not inordinate delay must depend upon the facts of each particular case:’ Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, 268F.  It is clear, however, (a) that for delay to be inordinate it must exceed, and probably by a substantial margin, the times prescribed by the rules of court for the taking of steps in the action; and (b) that delay in issuing the writ cannot be classified as ‘inordinate’ provided the writ is issued within the relevant period of limitation.

(4) Delay which is inordinate is prima facie inexcusable: see Allen’s case at p. 268F.  It is for the plaintiff to make out a credible excuse.  For example, difficulties with regard to obtaining legal aid may provide such an excuse.

(5) Where a plaintiff delays issuing proceedings until towards the end of the period of limitation he is then under an obligation to proceed with the case with reasonable diligence:  Birkett v James [1978] AC 297, 323D.  Accordingly, a court is likely to look strictly at any subsequent delay which is in excess of the period allowed by rules of court for taking the relevant step, and may regard such subsequent delay as inordinate even though a similar lapse of time might have been treated less strictly had the action been started earlier.

(6) A defendant cannot rely on a period of delay for which he has himself been responsible.

(7) A defendant cannot rely on a period of delay if at the end of the period he ‘so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay:’ Allen’s case [1968] 2 QB 229, 260.  It has been said that this rule is based on waiver or acquiescence, but the better view appears to be that the defendant is estopped: see County & District Properties Ltd v Lyell(Note) [1991] 1 WLR 683, 690F.

(8)     Save in exceptional cases an action will not be struck out for want of prosecution before the expiry of the relevant limitation period: Birkett v James [1978] AC 297, 321D.  It is not altogether clear how this rule is best explained.  It may be that before the limitation period has expired the delay cannot properly be regarded as ‘inordinate:’ cf. Birkett’s case, at p. 321D/E.  Alternatively, it may be that, though the delay is both inordinate and inexcusable, the court would not in the ordinary case exercise its discretion to strike the action out if a fresh writ could be issued at once.  To do so would only delay the trial.

(9) Once the limitation period has expired the court is entitled to take account of all the earlier periods of inexcusable delay since the issue of the writ.  These periods can include: (a) periods of delay occurring before the expiry of the limitation period which at an earlier stage could not be treated as ‘inordinate’ (see (8) above), and (b) periods of delay on which at an earlier stage the defendant could not rely because he was estopped from doing so by inducing the plaintiff to incur further costs in the reasonable belief that the action was going to proceed to trial, but which have been revived by subsequent inordinate and inexcusable delay.  This proposition seems to follow from Diplock LJ’s proviso in Allen’s case [1968] 2 QB 229, 260c: ‘unless the plaintiff has thereafter been guilty of further unreasonable delay.’  It is also supported by a later passage in his judgment, at p. 260:

‘But it must be remembered that the evils of delay are cumulative, and even where there is active conduct by the defendant which would debar him from obtaining dismissal of the action for excessive delay by the plaintiff anterior to that conduct, the anterior delay will not be irrelevant if the plaintiff is subsequently guilty of further unreasonable delay.’

(10) A defendant cannot rely on any prejudice caused to him by the late issue of a writ.  Thus such prejudice is not due to delay which can be characterised as inordinate or inexcusable.  Some additional prejudice after the issue of the writ must be shown.  The additional prejudice ‘need not be great compared with that which may have been already caused by the time elapsed before the writ was issued, ‘but it ‘must be more than minimal; and the delay in taking a step in the action if it is to qualify as inordinate as well as prejudicial must exceed the period allowed by rules of court for taking that step:’ Birkett v James [1978] AC 297, 323.

(11) Prejudice to the defendant may take different forms.  In many cases the lapse of time will impair the memory of witnesses.  In other cases witnesses may die or move away and become untraceable.

(12) The prejudicial effect of delay may depend in large measure on the nature of the issues in the case.  Thus the evidence of an eyewitness or of a witness who will testify to the words used when an oral representation was made is likely to be much more seriously impaired by the lapse of time than the evidence of someone who can rely on contemporary documents.  A defendant may also suffer some prejudice from prolonged delay in an action which involves imputations against his reputation, though this factor by itself is unlikely to provide a ground for striking out.

(13) When considering the question of prejudice and, if it is raised, the question whether there is a substantial risk that it will not be possible to have a fair trial of the issues in the action, the court will look at all the circumstances.  It will look at the periods of inordinate and inexcusable delay for which the plaintiff or his advisers are responsible and will then seek to answer the questions: has this delay caused, or is it likely to cause, serious prejudice, or is there a substantial risk that because of this delay it is not possible to have a fair trial of the issues in the action? As Slade LJ stressed in Rath v C S Lawrence & Partners [1991] 1 WLR 399, 410: ‘a causal link must be proved between the delay and the inability to have a fair trial or other prejudice, as the case may be’. 

The defendant's arguments

43.  Counsel for the defendant, Mr Sakhrani, argues that the cumulative delay amounts to about four years.  The matter should have been set down for trial soon after March 2002.  Given the efficiency of the listing by that time, the matter could have gone to trial before the date of the second accident.  The delays are prima facie inordinate and inexcusable and they have not been properly explained.

44.  As to the third party proceedings, these rely primarily on the indemnity in the tenancy agreement (clause 4 (g)) whereby the landlord is not to be liable to the tenant or his invitees for any damage or injury which may be sustained on account of the defective or damaged condition of the fixtures.  This is consistent with the common law rule expressed in Cavalier v Pope [1906] AC 428 that a landlord is not liable to his tenant or the tenant’s visitor for injuries sustained by reason of the defective condition of the premises.

45.  It is argued primarily that Mr Cheung is prejudiced because he has lost the chance of successfully obtaining an indemnity against Ms Haines.  It is also argued that prejudice arises from the lapse of time and the impairment of the witnesses’ recollections which is bound to arise.

The plaintiff's arguments

46.  Mr Merry's arguments for the plaintiff are long and detailed and I will not try to paraphrase them here.  In particular he says that the principles set out at nos. 6, 7, 9, 11, 12 and 13 in the passage cited above are relevant.

Discussion

47.  Dismissal for want of prosecution is a matter of discretion.  While principles on abstruse matters such as waiver and estoppel have to be taken into account, in the end the court must take a practical view on the case before it, and the issues in that case.  It is necessary to decide first whether the delay was inordinate and inexcusable, and then whether the delay has made a fair trial impossible or resulted serious prejudice, or the risk of serious prejudice, to the defendant.

Inordinate and inexcusable

48.  The accident happened on 30 December 1998.  It is now April 2006.  If the matter goes to trial, I doubt that it will come on before next year.  Prima facie the delay is inordinate.  It should not take so long to get a simple personal accident case to trial, especially since the improvements in procedure made by Seagroatt J.

49.  Delay between the accident and the writ was not excessive, and some delay thereafter can be explained by the plaintiff’s move to Australia, and the defendant’s issue of the third party proceedings.  The defendant took 12 months to serve his expert medical reports; no particular reason for this is given except that the plaintiff’s solicitors did not ask for them until that month.  I am not impressed.  In January 2001, the defendant’s solicitors were in a position to serve reports containing opinions that Ms Haines was in a position to resume work, and I do not see why they did not do that.

50.  Most of the delay came about after March 2002.  It was caused by Ms Haines herself.  She did not accept either her own or the defendant’s medical reports.  There is really no satisfactory explanation as to why it took so long to find an expert, such as Professor Bogduk, in Australia, or why it took him so long to produce a report.  Then we have practically the whole of 2004, in which Ms Haines simply did not reply to her solicitors’ requests for instructions.  There is no explanation for this either.  It is all very well to say that the second accident complicated matters, and no doubt it did, but at least a possible inference is that by 2004, Ms Haines herself had largely lost interest in pursuing this claim.

51.  However, as Mr Merry points out, the defendant’s solicitors themselves did nothing in this time.  They had asked for quantification; they had been told, in March 2002, that the claim could not be quantified yet.  They did nothing thereafter and they did not react to the report of Professor Bogduk, sent in February 2004, or on being told of the second accident.  Nor did they react to the Notice of Intention to Proceed in May 2005.  One would have thought that by that time, the delay, and any prejudice that might have arisen from it, was obvious.  It seems to me, therefore, that there was acquiescence on the part of Mr Cheung, or his solicitors, in this period.

52.  Then we have the defendant’s solicitors’ letter of 16 September 2005.  They said that the claim was unrealistic, and that the plaintiff’s solicitors had not responded to a previous request for quantification.  There was very little room for settlement; and the parties should progress with the matter.  The plaintiff’s solicitors agreed with this course on 21 September.

53.  I accept that Mr Cheung or his solicitors in effect invited Ms Haines to take further steps, and in reliance on this invitation she did so, and incurred further costs in the expectation that the case would go to trial.  I accept that Mr Cheung would be estopped from relying on delay thereafter but there was little delay; he applied to strike out in December 2005.

54.  Overall, it seems to me that the delay was inordinate, but to an extent excusable because of the defendant’s acquiescence in it.

Fair Trial

55.  It must be borne in mind that there is little evidence on liability.  We know that the ceiling light fell on Ms Haines, but no one really knows why.  I would have thought that the starting point would be to blame the person who screwed it on to the ceiling and connected the wires.  Presumably the Hung Hom lamp supplier was an independent contractor, but nothing is pleaded about this, or its effect on liability as occupier under the Ordinance.  In any event, the supplier is not identified.  There is nothing to suggest that there was any defect which was or should have been obvious either to Mr Cheung or to Ms Deane, so that either of them knew of a risk and exposed any visitor to it.  There is nothing to suggest that either of them tampered with the light fitting.

56.  It is said that the delay will affect the recollection of the witnesses and that there is a substantial risk that it will not be possible to have a fair trial.  In particular it is said in the affirmation of Ms Yeung that the defendant will testify on facts regarding who fitted the lights before and after the accident, and that there is a dispute as to whether there was another explosion after the accident.

57.  I do not see the force of this.  As I have indicated, Mr Cheung says he cannot remember who supplied and fitted the light.  There is therefore nothing for him to forget, due to lapse of time.  What some later incident has to do with liability is quite unclear to me; what happened later would not have any bearing on foreseeability, so whether some other light fell down later, or exploded, seems irrelevant.

58.  In fact, none of the witnesses concerned seems to have known very much, in the first place, which he or she might by now have forgotten.  I do not see that there is any reason why there should not be a fair trial, or one no more or less fair than if it had come on in 2002 or 2003.  I do not see that the defendant is any worse off on liability now, than if the case had gone to trial then.

Prejudice

59.  This is the main plank of the defendant’s arguments.  If the matter had gone ahead, he might have been able to enforce his indemnity against the third party, Ms Deane.

60.  The indemnity claimed is provided for by clause 4(g) of the tenancy agreement.  It excludes the landlord from liability on account of the defective or damaged condition of the premises or the landlord’s fixtures.  It is argued, and I am inclined to agree, that the ceiling light was not a fixture.  It would be held up by some screws, and attached to the electric supply by wires.  Its function would be partly decorative and partly to provide light, but it could be removed and replaced very easily and it is difficult to see that it would ever become annexed to the property.  So if it was not a fixture, it would not be part of the premises and the indemnity would not apply.

61.  As to Clause 2(c) which is also pleaded, there is an obligation on the tenant to repair fixtures and fittings but there are exceptions for fair wear and tear and latent defects.  There is no evidence of any visible defect here.  I do not see how any liability could be fixed on the tenant under this sub-clause.

62.  I am not clear as to how the case of Cavalier v Pope assists.  It may be that at common law, Ms Haines as the tenant’s visitor would have no claim against the landlord for defective premises but how that would make Ms Deane as tenant liable to indemnify Mr Cheung as landlord, if he were found liable, is not clear.

63.  In any event, whether or not Mr Cheung might have a good case in law against Ms Deane, it is necessary to look at the practicalities of the situation.  Ms Deane is single expatriate lady.  She was paying rent of $8,000 per month for a 500 square foot apartment.  Though I have no evidence on this, I would not expect her to have been earning a particularly high salary, or to be much good for satisfying a judgment for substantial damages out of her own pocket.  She was not insured.

64.  Now, it appears, Ms Deane is married, and in South Africa.  She left Hong Kong in about May 2005.  There would necessarily always have been a risk that she, as a single expatriate lady, might get employment somewhere else, or get married to another expatriate, and leave Hong Kong if and when that person moved away.  But if she was not much good for satisfying a judgment in the first place, whether she remained in Hong Kong or not would make little difference.

65.  Mr Cheung had carriage of his third party proceedings against her but he did not actively pursue them; it appears that witness statements were not even exchanged in those proceedings.  This suggests that Mr Cheung himself was taking the practical view that, if there was a judgment against him, and if he managed to establish his claim against Ms Deane, she would not be much good for meeting it.

66.  I do not see, therefore, that Mr Cheung can really complain that his difficulty in enforcing his claim, which is essentially for a contractual indemnity, was caused by delay on the part of the plaintiff.  The claim is not dependent on evidence.  Mr Cheung could have pursued it without waiting for the main action to go ahead.

Result

67.  I am not satisfied that this is a proper case to be dismissed for want of prosecution.  I cannot see any abuse of process.  The defendant’s summons is dismissed, with costs (nisi) to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.