CHILKURI LOBO KAVITA GRACE ANN v. CATHAY PACIFIC AIRWAYS LTD.

HCPI 472/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.472 OF 2001

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REASONS FOR RULING

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1. This matter came before me as the hearing of a preliminary issue to determine whether the Court should disapply the Limitation period pursuant to section 30 of the Limitation Ordinance, Cap.347.

2. On 20 June 2002, after much of the affidavit evidence had been filed by both parties relating to that preliminary issue, the defendant took out a Summons asking, inter alia, that the determination of the preliminary issue be deferred to the trial judge in this matter on the grounds that the determination of the preliminary issue would involve so much disputed facts that hearing of oral testimony and cross-examination would be unavoidable and that the disputed facts are so intricately involved with the factual issues, including the credibility of witnesses on both sides, that it should in all the circumstances of this case be heard by the trial judge and not separately as a preliminary issue on its own.

3. At the commencement of the hearing before me, I was informed by counsel for the plaintiff that the plaintiff would not dispute that the preliminary issue be dealt with by the trial judge. However at the same time the plaintiff's counsel submitted that the trial judge should only deal with the preliminary issue and certain issues pertaining to liability first leaving other issues pertaining to causation and quantum to be dealt with afterwards if the need arose. In so submitting, counsel for the plaintiff says that there is a clear demarcation in respect of the issues to be dealt with first as distinct from the issues they ask to be dealt with later.

4. On the other hand the defendant submitted that all the issues in the case are so intrinsically interwoven that the trial judge should deal with all the issues at the same time without splitting them up and that credibility of the plaintiff and most of the witnesses of fact are central to many of the factual issues to be determined. It cannot therefore be just and convenient to split up the issues in the way suggested by the plaintiff.

5. After hearing submissions from both counsel, I accepted the submission put forward by the defendant and ordered that the trial of the preliminary issue was to be determined by the trial judge along with all the other issues in the matter without splitting up of any of the issues in this matter. I further indicated that I shall give my reasons later which I now do.

Plaintiff's case

6. The plaintiff's case is that on 31 October 1996 she was a flight attendant employed by the defendant and was discharging her duties as a flight attendant on one of the aircraft of the defendant which had just taken off when during the ascend, a food cart went loose and rolled towards her on the aisle, crashed into her stomach and pinned her against the rear of the galley thereby injuring her lower back. She was only released when a colleague came to free her from being pinned by the food cart.

7. When the flight landed in Hong Kong, the plaintiff consulted the company doctor of the defendant, Dr Billingham and was given pain killers and two or three days off. The plaintiff continued working relying on the pain killers. In January she consulted Dr Billingham again because the pain persisted. Later she consulted a physiotherapist on her own in Sai Kung.

8. When the pain persisted, she went to India and consulted a Dr Loy there in June 1997. In early 1998, she consulted Dr Julian Chang in Hong Kong and a back operation was carried out in March 1998. A second operation was carried out by Dr Chang in August 1999.

9. The plaintiff was on sick leave from 5 March 1998 to 22 May 2000 when her employment with the defendant was terminated because of her prolonged sick leave.

10. The plaintiff further alleges that it was during that second operation in August 1999 that Dr Julian Chang mentioned to her that her back injury was work related and asked if she had reported it to the Labour Department. As a result she approached the Labour Department in October 1999 for the purpose of reporting this accident to them.

11. In May 2000 the plaintiff approached the Duty Lawyer Service for advice in respect of her employment dispute with the defendant in which this accident was discussed. She was referred to the Legal Aid Department by the Duty Lawyer Service.

12. The plaintiff made an application for legal aid on 25 May 2000 and was then told by Legal Aid the two-year limit for Employees Compensation had passed. That application for legal aid was refused on financial grounds. Immediately thereafter the plaintiff renewed her application for legal aid, this time for supplementary legal aid, paying $1,000. That application for supplementary legal aid had to be processed and she was finally granted legal aid on 10 March 2001 to bring employees compensation claim and on 27 April 2001 to bring this common law claim.

13. The Writ was issued on 29 May 2001 by the assigned solicitors.

14. The plaintiff attribute negligence to the defendant for that accident in that the defendant failed to take the necessary precaution to prevent the food cart from rolling on the aisle of the aircraft and crashing into her.

Defence case

15. The defence case is that the accident on 31 October 1996 did not happen in the way the plaintiff alleged it to have happened but that the plaintiff reported the accident as one in which she slipped on the aisle of the aircraft while carrying out her duties as a flight attendant lost her balance and fell.

16. Moreover, the defendant says that the plaintiff has a long history of low back pain even well before the date of the accident. After the date of the accident, the plaintiff had made no complaint against the defendant or in respect of that accident.

17. It is also the defence case that after the 31 October the plaintiff did not take sick leave and attended at doctors in a very limited extent but continued working until some eight months later when in June 1997 the plaintiff was diagnosed to have a degenerated disc at L4/5 with a slight bulge. It is further alleged by the defence that notwithstanding such diagnosis, the plaintiff continued still to work until another domestic accident causing back injury to her on 21 February 1998.

18. The defendant says that the report made by the plaintiff to the Chief Purser as well as when she saw Dr Billingham no reference was ever made to a food cart being involved

The issues

19. It can be seen immediately that a number of issues are disputed between the parties. The plaintiff does not dispute that she has a history of back problem. However, one major issue in dispute is that while the plaintiff says she suffered a serious injury on 31 October 1996 in the accident and the rest of her back history is minor and not relevant, the defendant says that what happened on 31 October 1996 is but one minor incident when properly seen against a long history of back problems.

20. This suggests to me that the medical evidence in this case is so intrinsically linked to the issues of liability and causation that no clear demarcation can be drawn between them. The medical evidence would, needless to say, also be highly relevant to quantum.

21. Moreover, credibility of the witnesses as well as the plaintiff must be central to deciding the issues of liability, causation as well as those disputed facts relating to the preliminary point.

22. In all the circumstances of this case and the issues in dispute, I am not persuaded that it can be either just or convenient for these issues to be split up and be determined at separate hearings. I take the view that they should be dealt with not only by the same judge but also at the same hearing.

23. It is for the above reasons that I made the order which I did.