XCHRX YIU WAI KAM AND ANOTHER v. OOI IU AIK AND ANOTHER

1995, No. PI-1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1247 OF 1995

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J U D G M E N T

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1. This action arises out of a Road Traffic Accident which occurred in January 1993 over six years ago. The 1st Plaintiff claims as administratrix of the estate of her son who was killed in the accident. The 2nd Plaintiff claims damages for personal injuries suffered in the same accident. Both the deceased and the 2nd Plaintiff were passengers in the car driven by the 2nd Defendant and owned by the 1st Defendant.

2. No other vehicle was involved. The 2nd Defendant failed to control the car properly on a bend; it left the highway hit the nearside banking, careered back across its carriageway and went over to the opposite side of the road. The 2nd Plaintiff was thrown out of the car onto the carriageway.

3. The 2nd Defendant was prosecuted initially for causing death by reckless driving. There was in my view no answer to that allegation but the prosecution was prevailed upon to accept a plea of guilty to careless driving. The 2nd Defendant was fortunate. No doubt the prosecution had an eye on time and cost. Perhaps they had some reservations about the strength of their case though I think they were unduly timid in that regard.

4. The Writ and Statement of Claim were served in December 1995. A Defence was served in January 1996, now three years ago. It pleaded simply a denial of negligence.

5. The Plaintiffs proceeded slowly with their action. The Defendants did not seek to chivvy it along. To all intents and purposes it went to sleep between January 1996 and September 1998. In that month the new Practice Direction had come into force and the action 'emerged from the woodwork'. The Plaintiffs' solicitors had to apply for a Check List Review hearing and they duly did so, notifying the Defendants that the hearing would be on 18th March 1999, five and a half months ahead.

6. The Practice Direction required the parties to file with the court, seven days in advance of that hearing all statements, reports and other specified documents upon which they relied. The Plaintiffs filed the police documents including their statements to the police. The Defendants filed their statements in the form of proofs dated March 1998 (one year earlier). The Defendants had also taken out a summons on the 13th March 1999, returnable on the date of the Check List Review hearing, seeking to amend their Defence to plead against the deceased, contributory negligence on his part for failing to wear a seat-belt. They relied upon a passage in the 2nd Defendant's statement to the effect that immediately before the accident, the deceased was not wearing a seat-belt, and was leaning forward from the back seat taking up a mid-way position chatting to the 2nd Defendant and the front seat passenger, the 1st Plaintiff. The 2nd Defendant described this as a dangerous position. It was apparent from the dating of the Defendant's statement that a year had elapsed before it was decided to apply to amend the Defence.

7. In order for such an allegation to have any foundation it has to be proved that the deceased was not wearing a seat-belt. Secondly, it has to be shown by expert evidence that the position occupied by the deceased unrestrained by a seat-belt was such that given the nature of the collision and the subsequent movement of the vehicle and the occupants, had she worn a seat-belt she would not have died; or would at least have suffered significantly less serious injuries. In practical terms, given the principles in relation to the awards of damages, the Defendants would have had to demonstrate that on the balance of probabilities she would have suffered only minor injuries.

8. The Defendants have no evidence with which to lay the basis for the necessary causation. There is no engineer's report dealing with the nature of the damage to the vehicle postulating what protection the seat-belt would have afforded the deceased. The damaged vehicle is not in existence and there are no photographs of the scene or of the vehicle. There is no medical evidence dealing with the nature of the injuries themselves how they were caused, and to what extent, if any, a seat-belt would have prevented or lessened them. There is no evidence as to what if anything the 2nd Defendant said to the deceased about the wearing of a seat-belt. There is of course no evidence of the type, age or condition of the seat-belt in the rear, if there was one. The Defendants would be in breach of the Practice Direction if they are in possession of such evidence but Mr. Ip indicates that they have no such evidence. It would be wholly wrong to permit an amendment to the Defence at this stage to allege, on a highly speculative basis, such contributory negligence. In any event, if allowed, it would place the 1st Plaintiff in an impossible position six years after the accident and three years after the Defence was filed. The material does not exist for her to combat such an allegation. It would be substantially prejudicial even if the Defendants were to come into possession of material which lent support to their allegation. It would also make a nonsense of case management of this action which is now ready to proceed to assessment of damages. Accordingly the

application is dismissed with costs. There is no Defence. Judgment will be entered for both Plaintiffs, with costs, with damages to be assessed.