LEUNG PING YEUNG AND OTHERS v. JETOUR HOLIDAY LTD

HCPI 707/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 707 OF 2008

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BETWEEN

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REASONS  FOR  DECISION

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1.  There are divers applications by the Defendant heard at this Case Management Conference:

HCPI 707/2008

(1)  To adduce expert evidence on liability;

(2)  To adduce expert evidence from an insurance broker;

(3)  Request for Further and Particulars of the Statement of Claim;

(4)  To adjourn for service on the Third Parties outside jurisdiction;

HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008

(5)  To consolidate with HCPI 707/2008, or alternatively to stay HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008.

Background

2.  This case involved the tragic coach bus accident of Hong Kong tourists in Egypt in 2006. There are 8 PI claims and 4 fatal claims in HCPI 707/2008. There are 3 other claims sought to be consolidated.

3.  The Plaintiffs’ case was that the tour was running behind schedule and the Defendant’s tour guide instructed the Egyptian driver to speed up in order to catch an anti-terrorist convoy in crossing the desert. The Defendant is sued in negligence as the tour operator.

4.  The Defendant had taken out some travel insurance for the Plaintiffs. It is also sued in tort as well as implied contract for failing to advice and/or to obtain sufficient insurance coverage for the Plaintiffs.

5.  The Defendant denied speeding. It also denied being the tour operator, and claimed to be the mere agent of the Egyptian tour operator.

6.  The parties have agreed to a split trial on liability first.

Expert evidence on liability

7.  The Plaintiffs alleged speeding. The Defendant’s tour guide denied it. The Egyptian driver has been convicted of careless driving, but is appealing the conviction.

8.  Miss Lau, for the Defendant, applied to adduce expert evidence to show the layout sketch of the accident scene and the possible speed.

9.  Mr Ozorio SC, for the Plaintiffs in HCPI 707/2008, submitted expert evidence in road traffic cases is the exception rather than the rule (see Liddell v Middleton [1996] P36 (CA)).

10.  In Chan Wai Kit v Li Pak Wah & anor HCPI 246/2007; [2009] HKCU 505, I had this to say on expert evidence on liability:

“10.  The function of the expert is to furnish the Court with the necessary scientific criteria and assistance based upon special skill and experience not possessed by layman to enable the judge to interpret the factual evidence of the accident. The expert is not entitled to conclude from statements of eye witnesses that the defendant (or the plaintiff) was going at a certain speed at a certain point, which are facts for the trial judge based on evidence he accepts and inferences on the primary facts found (see Liddell v Middleton [1996] PIQR P36 per Stuart-Smith LJ at p. 42).

11.  Matters such as the speed that the plaintiff was travelling and the driver’s responses are matters for the judge to find after hearing the evidence and they are not matter which the trial judge would need expert evidence to assist him (see Tong Ho Wing v Wong Fuk & Ors HCPI 1369/1999per Suffiad J at p. 11).

12.  No amount of expert evidence is going to tell the trial judge anything approaching precision the approach speed or impact speed or the distances of the vehicles (see Fong Sai Ho v Hairfast Co Ltd & Ors HCPI 1199/2003 (4 March 2005) per DHCJ Carlson at para. 16).

13.  In some cases, expert evidence is necessary and desirable to assist the judge in reaching primary finding of facts such as speed of the vehicles, e.g. where no witness is capable of describing what happened and deductions have to be made from circumstances such as position of vehicles, road marks, damage to vehicles (see Liddell v Middleton at p. 42).”

11.  Miss Lau indicated that there is no accident sketch and/or measurements of tyre marks at hand, and the expert’s comments on the speed will be based on the driver.

12.  Apart from the possible delay to this case, there is simply nothing to show the suggested expert evidence on liability is probative and/or necessary.

13.  Hence, the application was refused.

Evidence as to insurance coverage

14.  Miss Lau sought to adduce expert evidence from a broker on the practice of the local tourist industry on obtaining insurance coverage for the group members travelling aboard.

15.  Mr Ozorio did not strongly contest it upon the indication of prima facie relevance qua implied contract, but submitted that Mr Chau, the Defendant’s Director of Operations, who had 23 years of experience in the trade and had made a lengthy witness statement in the case, could have given the evidence. In the end, Mr Ozorio did not object to the relevant evidence to be supplemented by Mr Chau.

16.  Miss Lau preferred the evidence from an insurance broker.

17.  The proposed evidence is not on the availability of the product, as the Defendant did take out some insurance. The trade practice should come from the trade itself. In any case, it should be the same whether coming the buyer or the seller, and having Mr Chau will save 1 witness.

18.  Hence, I allowed Mr Chau to file a supplemental statement within 14 days on the industry practice on insurance coverage for the group. It shall be in form of an unless order sanctioned by the debarring of reliance.

F&B Particulars of the Statement of Claim

19.  Mr Ozorio has conveniently grouped the requests into 2 groups:

(1)  Those which are matters of evidence and not material facts: under paras. 5, 6, 9, 12, 18, 23(ix), 23(xxi);

(2)  Those which are points of law: under paras. 23A, 23B, 23C.

20.  Mr Ozorio submitted the purpose of giving particulars is to apprise the other party what case to meet. With the current practice of extensive exchange of witness statements, there is no point to give F&B particulars of matters already set out in the statements.

21.  I agree with Mr Ozorio save that a party may be required to adhere to a particular case where the pleadings and the evidence are at variance or in conflict. But that is not the case here.

22.  Those requests relating to factual matters seem to be in the nature of cross-examination asking the Plaintiffs to explain why a particular fact is alleged. It will be over argumentative at this stage to delve into them and they can be left to the trial.

23.  As to those relating to points of law, such as why there is a duty to advice on and/or take out adequate insurance for the tour group, the case is based on the security considerations of the region and is apparent on the pleadings, and they are really the ultimate questions for the Court after hearing the evidence and submissions.

24.  Hence, all the requests are refused.

Consolidation

25.  HCPI 707/2008 is ready for setting down. The other cases are yet to exchange witness statements.

26.  Mr Chiu, for the Plaintiff in HCPI 933/2008, agreed to a stay pending the determination of the HCPI 707/2008, subject to the term that the Defendant be bound by the result in HCPI 933/2008 qua his client.

27.  I am afraid that Mr Chiu cannot eat the cake and still have it. The Defendant must be allowed to defend against a party whom it is potentially liable.

28.  A stay will be a convenient order given the different progress of the cases. The acceptance or rejection of the defence witnesses in the HCPI 707/2008 will give good practical guidance of the success or failure of the other unconsolidated claims.

29.  Hence, I ordered a stay of HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008 pending the determination of HCPI 707/2008.

Third Parties proceedings

30.  The case was commenced in 2008 and the Defence was filed then. The Third Parties proceedings were issued late in the day.

31.  Ms Lau explained the difficulties in serving the Third Parties. A fortiori, I doubt the value of waiting for some uncertain event.

32.  Further, forum conveniens against the Third Parties seems prima facie to be Egypt.

33.  Hence, I refused the adjournment to serve the Third Parties proceedings outside jurisdiction.

Mediation

34.  Mr Ozorio indicated that he has not considered mediation since liability is in dispute.

35.  In Leung Catherine v Tary Limited HCPI 805/2007; [2009] HKCU 1529, I had this to say on mediation:

“21.  Mediation is a voluntary process and a party is not forced to undergo mediation, but unreasonable refusal to attempt mediation (especially when the other party has made the request) is relevant conduct in litigation in the exercise of the discretion on costs.

22.  So often has it been suggested in personal injuries that the stage has not been reached for mediation cases because medical evidence has not been obtained to assess a fair and adequate settlement. It is really Catch-22 to say that mediation should not be explored as the proceedings have already reached an advanced stage. It is better late than never, especially when time, expenses and uncertainty of the trial can be avoided.

23.  To say that mediation is not suitable because the issue of liability is in dispute is yet again Catch-22 sub-paragraph 1. It begs the question of what mediation is, to wit, without prejudice negotiations assisted by a neutral third party to resolve disputes. Courts in England as well as in Hong Kong have observed that skilled mediators are able to achieve results satisfactory to both parties in many cases quite beyond the power of lawyers and courts to achieve (Dunnett v Railtrack Plc [2002] 1 WLR 2434 (CA); Supply Chain & Logistics Technology Ltd v NEC Hong Kong Ltd HCA 1939/2006).”

36.  Mr Ozorio indicated since I have granted leave to have the case set down in the Fixture List with 5 days reserved (which should be in the form of an unless order within 42 days sanctioned by striking out of the claims), the likely trial date will be some 6 months away, giving the parties sufficient time to consider, and if so advised, undergo mediation.

37.  I order all parties in all the cases to file mediation certificates. I also order all the lay clients to fix appointment within 21 days to attend the briefing in the Mediation Information Office. I shall ask the MIO to report on any failure to fix appointment and/or attending.

Costs

38.  I ordered costs of the CMC to be in the cause, and costs on the expert evidence and F&B Particulars be borne by the Defendant.

39.  The hearing has taken 45 minutes. For the ease of the Taxing Master, I apportion 15 minutes on the CMC, and the remaining 30 minutes on costs to be borne by the Defendant.

40.  Lastly, I thank counsel’s helpful written submissions which much shortened the hearing.