CHUI FUNG YEE v. LAU HING KWAN

CACV 346/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 346 OF 1999

(ON APPEAL FROM HCPI 1242/1998)

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J U D G M E N T

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Hon Rogers JA:

1. This appeal, in my view, must be rejected.

2. The plaintiff was badly injured in a traffic accident in September 1996. A writ was issued in December 1998 and just a few days ago, the defendant admitted liability for the accident. The plaintiff, of course, has been examined by doctors and brain specialists and there is no doubt that he has been badly affected by the accident.

3. In May of last year, an occupational therapist instructed by the defendant went to see the plaintiff in the nursing home to which he had been removed by then. Her report is dated 19 July. But for some reason, it was not supplied to the defendant or his lawyers until 15 September. We have not been told the reason for this delay, although there is evidence that not even a draft report was supplied to them before then.

4. On 13 September of last year, the judge in charge of the Personal Injury List made a peremptory order that any report from that occupational therapist should be supplied by 27 September. The defendant's solicitors did not attempt to supply a copy until 12 October. On the following day, they filed an application to have the report admitted notwithstanding it was late. The affidavit in support of that application simply stated that the report had been given to their client (in fact, the defendant's insurer) who was well aware of the time for filing it. The solicitors said that they considered that they were duty bound not to file or supply the affidavit until they had their client's instructions.

5. Quite apart from the fact that that approach to an order of the court seems to me to be, if I might say so, slightly arrogant, it is wrong if not worse. There was no justification for the delay. The report, which we have been shown, would take no longer than about 10 minutes to read and understand. It said, in any event, little more than could be gleaned from the medical reports and other reports which had already been contained in the papers of this case.

6. The Judge refused the application for extension of time. In my view, he was right to do so. The defendant's insurer had taken a deliberate decision, not to file or supply the report, notwithstanding it had been in its possession for 12 days prior to the deadline. The solicitors' affidavit, as I have said, makes clear that the client was well aware of that deadline. The defendant and his insurer must abide by the decision not to rely on the report. It is useless for the court to make orders on a case management basis for the efficient dispatch of cases, if parties are going to carry on just as they please, simply because it pleases them.

7. So far as this court is concerned, I would repeat what Godfrey JA had said in the case of Cheung Yin Mong v. So Kwok Yan and another [1996] 2 HKLR 48 :-

"The giving of such directions is a matter of case management peculiarly within the province of the judge of first instance. This court will not review decisions of a judge of first instance on matters of case management unless it is satisfied that the judge's decision was plainly wrong. Only then it is the duty of this court to interfere with it, and only then is this court entitled to substitute its own view as to what is reasonable for that of the judge. The judge's decision must fall outside the ambit of possible reasonable decisions before this court will interfere with it. What we have to consider in the instant case is whether, in the respect in which it is challenged, this order did fall outside the ambit of possible reasonable decisions."

8. The only possible ground, it seems to me, on which the defendant could now rely is to show that it would suffer a severe and unfair disadvantage at the trial if that report is not admitted in evidence. I am not satisfied that the defendant will suffer any detriment because the report has not been filed or may not be used. Its exclusion from the case, in my view, simply lightens the paperwork involved and reduces the amount of material that adds nothing to the proceedings that is not already there.

9. However, Mr Clough has drawn our attention to the fact that an application has been filed which is due to be heard within the next week or so. That application is an application on behalf of the plaintiff to amend the particulars relating to damage, but we have not been concerned with the details of that application. It seems to me that if the plaintiff does indeed change his case to any material extent, it is of course open to the judge to re-consider whether the report of this occupational therapist, or a new report, needs to be admitted as a matter of justice. I have no doubt that the judge in the efficient conduct of the case management of this case will consider all these matters. But as far as the decision of last October is concerned, when the judge refused to extend the time for the admission of this report, I am quite satisfied that his decision was correct.

Hon Godfrey JA:

10. Although Mr Clough has presented this difficult appeal most attractively, I am simply not satisfied that this is a case in which the overriding principle that justice must be done (see Mortgage Corporation v. Sandoes, reported in "The Times" newspaper, 27 December 1996) compels us to disturb here the discretion exercised by the judge as a matter of case management.

11. For the reasons given by Rogers JA, I too would dismiss this appeal. The defendant must pay the plaintiff's costs of the appeal (to be taxed if not agreed) and there will be a separate taxation of the plaintiff's costs for the purposes of the Legal Aid Regulations.