LEUNG HO KIT v. KWOK CHUN LEUNG AND OTHERS

HCPI 503/2013

PERSONAL INJURIES ACTION NO 503 OF 2013

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D E C I S I O N

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1.  On the last occasion I had made an order which has now been engrossed. It is dated 16 October 2015, and the order says:

“Provisional trial dates for this action shall be fixed before me on 16 to 17December2015 with 18December2015 also reserved.”

So those dates are provisional dates: they are not actual trial dates such that they are milestone dates which can only be vacated for exceptional reasons.

2.  I have heard the very able submissions of Ms Liu and, in any other case, I would accede to them and not allow the 3^rd defendant an opportunity, at the very last moment before trial, to adduce additional evidence.

3.  They and their solicitors have completely and utterly failed to abide by the court order of Master Leung to obtain advice from counsel.  They have not applied their minds to the type of evidence that a court needs to have regard to before it can even begin to consider the defence of contributory negligence that has been raised on their pleadings almost two years ago.

4.  They did not even apply by counsel last week for such evidence to be placed before the court.  They have only caught onto my tailcoat when I raised the possibility of the parties engaging a single joint expert on the seat belt issue.

5.  Why did I even raise that suggestion this morning?  I did it because the objective evidence suggests to me that these are matters that should properly be ventilated at trial and, perhaps, it is a failing on the part of my PI Masters not to have picked it up as well.

6.  We are moving on I think, albeit slowly, to a world where the responsibility of preparing a case for trial does not rest solely with the parties’ legal representatives.  The court is taking on a much more managerial role and a much more robust role.  To what purpose?  To ensure that all issues and matters that ought properly to be adjudicated upon are before the trial judge with all relevant evidence on those issues and matters.

7.  In this case, the front-seat passenger in the Honda Civic private car was wearing a seat belt and she was not injured. It appears that the three passengers in the rear were not wearing seat belts.  All three passengers were thrown out of the car when the accident occurred and two of them died.  The plaintiff is fortunate to be alive.  It appears that the driver of the vehicle managed to stay in his seat because he was wearing his seat belt.

8.  The defence raised is that there was contributory negligence on the part of the plaintiff for failing to wear a seat belt.  That can be said to be proved by the objective evidence that he was thrown out of the vehicle.  But a little bit more is required: what is also required is evidence to prove a causal link between his injuries and the failure to wear a seat belt.  Would wearing a seat belt have prevented or lessened his injuries?  If so, then the causal link has been established and the defence of contributory negligence would have been made good.  It is for the 3^rd defendant to adduce medical evidence that, had the seat belt been worn, the plaintiff would have suffered either no, or less serious injuries[1].

9.  The objective evidence here speaks so loudly to me that I think it would be unjust for me to refuse leave to the parties to instruct a single joint expert to report on the matter; and the person they should instruct is Dr Philip Beh, who is a very experienced pathologist who has produced many reports on this point.  I received a report from him on a seat belt issue in another case just last month and, as a result of that report, the liability issue was resolved between the parties without the need for a trial.

10.  I grant leave to the parties to jointly instruct Dr Philip Beh to prepare a report on the seat belt issue.  They should prepare joint instructions, within seven days, for Dr Philip Beh to consider all the evidence relevant to that issue in the form of the police statements, the transcript of the proceedings, the investigation reports, the motor vehicle examination reports, the photographs and the sketch plans and, of course, all the other evidence that is relevant for his consideration, including, of course, the medical reports.

11.  If the parties are unable to agree joint instructions they may write to me to resolve any differences they may have in relation to those joint instructions which I shall be happy to resolve.

12.  I give this direction because I feel that injustice would be done to the 3^rd defendant if they were not permitted to adduce evidence in relation to an issue which ought properly to be adjudicated at trial.  The failings - the very substantial failings - of their solicitors should not rest on their lap.  This is a case where I think the court can properly intervene.

13.  May I also say that, if I had not taken the exceptional step of securing some provisional dates for this trial, trial would likely have been fixed to be heard some 9 to 10 months later.

14.  So I think my intervention in this case has been of benefit to the plaintiff because the 3^rd defendant has now accepted that they are the insurer concerned and that they will satisfy the final judgment to be obtained against the driver.  But, it has also been of benefit to the 3rd defendant and, ultimately, to the court because it has ensured that justice is done to all parties.

15.  I vacate the provisional dates that I have fixed for the trial.  I direct that the parties report to me in writing the moment the expert report of Dr Philip Beh is at hand and, in the meantime,  I will give provisional dates for trial to take place before me on 27 to 29 April next year.

[Submissions on Costs]

16.  I make an order that the costs of this PTR be to the plaintiff in any event and that the costs incurred in relation to status of the 3^rd defendant as insurer concerned be reserved to be dealt with after trial.  I reserve those costs because the plaintiff seeks costs on an indemnity basis and I prefer to deal with that matter at the conclusion of trial. Half of today’s hearing was spent on the issue of the seat belt and half on the insurer concerned issue.