PANG LAI HUNG v. MAXSON TRANSPORTATION LTD AND OTHERS

LA/RD/12039/2003 (CB04)

DCPI565/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 565 OF 2005

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DECISION

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1.  This is a summons application taken out by the Plaintiff and the 1^st and 2^nd Defendants for an Order that: -

(1) the trial fixed for on 15^th, 16^th and 17^th day of May 2006 be vacated;

(2) upon the Plaintiff’s acceptance of the payment into Court made by the 1^st and 2^nd Defendants, the party and party costs of all the proceedings be taxed at District Court scale payable by the 1^st and 2^nd Defendants to the Plaintiff; and

(3) the aforesaid costs of all the proceedings shall cover and include the Plaintiff’s costs of prosecuting the claim against the 3^rd Defendant.

2.  The parties have no dispute on items 1 and 2 of the summons, but the 1^st and 2^nd Defendants oppose the application made under item 3.

3.  In the Statement of Claim it was pleaded that on 18 July 2001 the Plaintiff was the passenger in a public light bus (PLB) owned by the 1^st Defendant and driven by the 2^nd Defendant.  Due to a sudden brake, the Plaintiff fell down inside the PLB and sustained personal injuries.  The Plaintiff took out the Writ on 23 June 2004.  On 30 September 2003, the 1^st and 2^nd Defendants wrote to the Plaintiff, alleging that the Plaintiff was responsible for her own misfortune; alternatively the accident was caused by a third party dashing onto the road, and not due to the negligence of the 1^st and 2^nd Defendants.  Subsequently the Plaintiff ascertained the identity of the third party from the police, and then she sued the 1^st and 2^nd Defendants as well as the 3^rd party (the 3^rd Defendant).

4.  The 1^st and 2^nd Defendants made a payment into Court, which was accepted by the Plaintiff.  By an order dated 16 March 2006 granted by H.H. Judge H.C. Wong, the Plaintiff reached a settlement with the 3^rd Defendant.  Under that Order the Plaintiff and the 3^rd Defendant bears her/his own costs and the Plaintiff reserved her right to claim her costs against the 1^st and 2^nd Defendants.  The sum paid in by the 1^st and 2^nd Defendants was released to the Plaintiff on 3 April 2006.

5.  In relation to the issue as to whether the Plaintiff’s costs of prosecuting the claim against the 3^rd Defendant was to be paid by the 1^st and 2^nd Defendants, the Plaintiff submitted that the test should be “Was it not unreasonable for the Plaintiff to join the 3^rd Defendant into the proceedings?”.  The 1^st and 2^nd Defendants blame the 3^rd Defendant for causing the accident, and vice versa.  So it was not unreasonable for the Plaintiff to join the 3^rd Defendant into the proceedings.  But this is only 1 of the factors to be considered by the Court before it makes an order for costs.  The question to be considered in awarding costs ultimately rests on liability, and liability cannot be determined until there is a full trial of the case or until there is an admission of liability by the party concerned.  There is no admission of liability in this case.  After a trial, the following scenarios may ensue:-

(1) the Plaintiff may fail in her claim;

(2) the 1^st and 2^nd Defendants may fail in their defence;

(3) the 1^st and 2^nd Defendants may succeed in their defence;

(4) the 3^rd Defendant may be liable for the Plaintiff’s injuries.

Under scenarios (1), (3) and (4), the 1^st and 2^nd Defendants would not have to pay costs of this action. 

6.  The Plaintiff submitted that:-

“Furthermore, since P accepted the payment in made by D1 & D2, and without the help of D1 & D2, it would be impossible for P to claim against D2 (P did not actual see the D3), P was compelled to settle with D3 and P should therefore be entitled to recover her costs of prosecuting the claim against D3 from D1 & D2.  If P would have to pay costs to D3 (for costs of D3 to defend in these proceedings), P should be entitled to recover that part of costs from D1 & D2 as well.  In that sense D1 & D2 have already saved that part of costs.”

7.  I do not accept that because the Plaintiff accepted the payment in made by the 1^st and 2^nd Defendants, and without the help of the 1^st and 2^nd Defendants, it would be impossible for the Plaintiff to claim against the 3^rd Defendant.  She can summon them as witnesses in the trial.  There is no indication to support the allegation that they will not help in the trial against the 3^rd Defendant.

8.  To join in the 3^rd Defendant is only an important step in the proceedings.  But this step alone do not assist the Court in the determination of liability between the parties.  The onus is on the Plaintiff to show that the 1^st and the 2^nd Defendants are liable for the Accident.  But without a trial or admissions on liability from the 1^st and 2^nd Defendants, the issue of liability cannot be determined.  Therefore the Plaintiff has failed to discharge the burden that they are liable for the accident.  Therefore there is no basis to support the application that the costs under paragraphs (1) and (2) of the summons should also cover and include the Plaintiff’s costs of prosecuting the claim against the 3^rd Defendant.  I therefore dismiss item (3) of the summons.

Costs

9.  I make an order nisi, to be made absolute 14 days’ time, that the Plaintiff do bear costs of this application, to be taxed, if not agreed, and that the Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.