HO CHI HANG WILLIAM v. HONGKONG AIR TERMINAL SERVICES LTD.

HCPI 1526/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTIONS NO. 1526 OF2000

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REASONS FOR DECISION

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1. This is, on the face of it, a straightforward claim for damages for personal injuries by a passenger in one of two vehicles involved in a night time collision on 31 March 1998 in a service road on the Kai Tak Airport site. The Defendants are the driver and owner of a light goods vehicle. The Third Party owns the light goods vehicle in which the Plaintiff was a front seat passenger, and is also his employer.

2. The Writ and Statement of Claim were filed on the 28 December 2000. The Defence was filed on the 15 February 2001. It contains a good deal of unnecessary evidential detail. It makes no allegations of contributory negligence against the Plaintiff but alleges negligence on the part of the driver of the vehicle in which the Plaintiff was travelling. Not surprisingly the Defendants issued a Third Party Notice against the owner of that vehicle but were slow in so doing. Having blamed the Third Party in mid-February, they allowed a further five months to elapse before obtaining leave to issue the Notice. The Notice was ordered to stand as the Statement of Claim against the Third Party. The Defendants pleaded no particulars of negligence, an odd state of affairs. The Third Party pleaded its Defence promptly.

3. The action came before me for a Pre-Trial Review on the 15 October 2001. Amongst the directions I gave was one giving leave to the Plaintiff to set the action down for trial in the Running List, not to be warned before 15 April 2002. The estimated length of trial is four days. It was suggested at this hearing on the 4 June that Counsel for the Defendants had indicated to the Court (and to the Plaintiff) on 15 October last that they would seek to amend their Defence. That may well be so. But indicating an intention is one thing: actually applying to do so is another.

4. The action was in fact set down on 13 March 2002. It is currently in the Running List with a likely trial date in June or early July.

5. The Defendants' summons for leave to amend their Defence and their Third Party Notice was issued on 2 May 2002 with a return date on 14 May 2002. The time estimated for the hearing was 30 minutes. That was unrealistic given the nature of the amendments sought and the anticipated opposition of the Plaintiff and the Third Party. It came before his Honour Judge Longley when all parties agreed that a two hour estimate was more appropriate. It was adjourned to be argued before me on 4 June.

The preceding history of the Defendants' Applications

6. This is not the first occasion on which the Defendants have issued a summons to obtain leave to amend their pleadings against the other parties.

7. They took out an identical summons on 14 January 2002. It sought, as does the one before me, to make a number of amendments to the Defence and Third Party Notice not all of which are easy to follow. However the essence was to raise, for the very first time, an allegation of contributory negligence on the basis that the Plaintiff failed to wear his seat-belt, and thereby contributed to his injuries. I do not doubt that Miss Molloy would have prefered to settle a new defence altogether and was doing her best to graft the Defendants' new issue, onto someone else's pleading. In relation to the Third Party Notice the proposed amendments provided the particulars of negligence on the part of the Third Party which were notably absent from the original notice. It also raised an entirely different issue. It alleged that the Third Party was in breach of its duty of care as an employer to the Plaintiff. Since that was no part of the Plaintiff's claim - it has not joined the Third Party as a Defendant - it is difficult to see how the Defendant can raise this. No duty of care, on the basis alleged, was owed to the Defendant. However it is clear that these allegations really emanated from the point which the Defendants sought to raise against the Plaintiff. It was the seat-belt issue in another guise. However the application was withdrawn by consent on the 2 February 2002.

8. The Defendants next served Interrogatories on the Plaintiff and Third Party on 6 February. The Plaintiff issued an application to have them withdrawn. This application came before Suffiad, J on 22 February. In a Ruling dated 25 February Suffiad, J ordered them to be withdrawn. They related to the question of the seat belt which was not an issue between the parties. Novel though the Defendants' effort was, it was entirely inappropriate. The information sought were matters of evidence for the Defendants to prove. On 5 March the Third Party gave its Answers to the Interrogatories confirming that a seat belt had been fitted to the passenger seat in its vehicle in which the Plaintiff had been travelling. It appears that at no time had the Defendants applied to inspect the vehicle in its post-accident state, before or after repair.

9. On or about 15 March 2002 the Defendants' solicitors obtained a report from a Dr Beh Swan Lip upon which they rely in their argument before me to the effect that they have expert evidence in support of the allegation, which they once more, at this 'eleventh' hour, seek to add to their defence.

10. Although not directly relevant to the merits of their renewed application it is worthwhile having a close look at this report. There is of course in existence an order that no expert evidence as to liability be adduced in this action so that is yet another obstacle for the Defendants to overcome.

11. The report is just over one page in length. It makes it clear that there was no detailed description of the injuries sustained by the Plaintiff available to Dr Beh. He had the same photographs as appear in the bundle. They are police photographs essentially to show the position of the two vehicles concerned. There are no detailed photographs of the extent of the damage nor is there any report by an automobile engineer of the full extent of the damage. There is no report on the nature, fitting and condition of any seat-belts in the vehicle. The report therefore, as an expert report for the purposes of proving what the Defendants seek to prove, is notably deficient. That is no reflection upon the writer of the report. He was limited by the material provided to him.

12. Miss Molloy argues that the issue is clear cut as a matter of commonsense on the undisputed facts. If that is so the Defendant ought to have pleaded the point at the outset or, at the very latest, pursued the application in January, though I am by no means saying that the Defendants would have succeeded had they pursued their original application.

13. My attention was directed to the Court of Appeal decisions in Ho Wing Cheung v. Liu Siu Fu & Anor 1980 HKC 212 and Wong So Ching v. Official Administator 1987 2 HKC 213. Both cases relied upon the English Court of Appeal decision in Froom v. Butcher 1976 QB 286, acknowledged as the seminal decision following legislation in the United Kingdom imposing sanctions for the non-wearing of seat-belts. It is acknowledged that prudence dictates the wearing of seat-belts and that failure to do so may reduce an award of damages. In Ho Wing Cheung's case the judgment at page 218A contains what I think must be an error of wording. It reads:

"If he does not do so (wear a seat-belt fitted) he is at least partly to blame for the consequences of his failure."

It should read ".... he may be at least partly to blame...." otherwise it ignores the evidential burden upon the party alleging causation, and the importance of Froom v. Butcher. There has to be evidence to prove the causative link.

14. Wong So Ching's case (at page 226 E-G) states unarguably in my view, that

"There is no hard and fast rule that expert evidence from a doctor or an engineer is required to establish contributory negligence in a seat-belt case. The primary facts of some cases will speak for themselves on this issue."

This is not such a case. It is now so late that it is not possible to establish some of the necessary primary facts.

The Defendants' Merits

15. This application is made nearly seven months after the order giving directions for trial and about 1 1/4 years since the original defence was filed. It is identical to the application issued four months earlier which was abandoned. The Defendants have been slow and uncertain in the steps they have sought to pursue. There is no reasonable explanation for the tardiness displayed. Miss Molloy has helpfully provided a chronology but this serves only to underline the conclusions I have expressed earlier.

The effect of allowing the Defendants' application.

16. The action would have to be taken out of the Running List. The Plaintiff would need to serve a Reply and would have to be given the opportunity to investigate the allegations concerning the seat-belt. Further expert evidence would probably have to be obtained. The police investigations would need to be reviewed with a specific emphasis. I anticipate that it is not now possible to examine the vehicles concerned because both will have been repaired. One or both may have been the subject of assessment by an automobile engineer, but it is highly unlikely that they will have been examined with specific emphasis on the nature, condition and fitting of the seat-belts at the time of the accident. The medical evidence will have to be examined with specific reference to head and facial injuries in relation to the interior of the vehicle. The Third Party will need to conduct its own investigations although, as a matter of law, it may not have to meet the new cause of action raised by the Defendant.

17. All these necessary steps would delay trial of this action by at least 6 months. Why should this be permitted when the Defendants, had they prepared their case properly and promptly, could have raised the issues within a reasonable timescale for this action? The "Yes, we will, No, we will not" approach should not be allowed to interrupt the planning of other parties.

Prejudice to the Plaintiff

18. Miss Molloy contended that if her application were to be allowed, there would be no prejudice to the Plaintiff which could not be compensated for by an order for costs. I cannot agree. The amendments would raise for the first time, when the action is close to trial, an issue which, if resolved against him, would reduce his level of damages. The Defendants have had ample opportunity to confront him with this, and have changed their minds once already. It would mean that now over 4 years after the accident, he would have to obtain expert evidence to deal with the issue, and he would be handicapped by not being able to examine the vehicle in its immediate post-accident state. The resolution of his claim would be delayed by at least six months. At present he has to prove only 1% negligence on the part of the Defendant to succeed 100%. The first Defendant pleaded guilty to careless driving. The burden upon the Plaintiff in that regard is likely to be somewhat easily discharged.

The Case Management Aspect

19. If the Defendants' application were to be allowed it would make a nonsense of case management. It would in effect allow a Defendant to disrupt the course of progress towards early, economic and a fair trial on the issues identified at the outset. The Defendants had the opportunity to raise these issues in relation to the Plaintiff and the Third Party at the outset of these proceedings. They had some thoughts on the matter in or about October 2001. They did nothing until January 2002 and then they abandoned that effort. Courts are not geared to permit any party to manipulate its process to put in effect last minute thoughts or postponed efforts. The general principles have been stated on many occasions and are reflected in Yiu Wai Kam v. Ooi Iu Aik HCPI 1247 of 1995 and Man Ching Fuk v. Lee Siu Nam HCPI 1085 of 1998.

20. The application to amend the Defence is accordingly refused with costs; the application to amend the Third Party Notice is allowed only in respect of the particulars of negligent driving - therefore only paragraph 6 is to be amended by the addition of the particulars under (i) to (v). The Third Party is to have the costs of and occasioned by this. There is no need for a consequential amendment to the Third Party's Defence.