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HCPI 660/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 660 OF 2001
BETWEEN
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KWOK KAM MING (郭錦明) |
Plaintiff |
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and |
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CHINA AIRLINES, LIMITED
(A foreign company incorporated in Taiwan, Republic of China) |
Defendant |
HCPI 715/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 715 OF 2005
BETWEEN
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CHIU PUI YIN（趙沛賢） |
Plaintiff |
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and |
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CHINA AIRLINES, LIMITED
(
A foreign company incorporated in Taiwan, Republic of China)
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Defendant |
Before : Hon Sakhrani J in Court
Date of Hearing : 29 June 2006
Date of Judgment : 29 June 2006
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D E C I S I O N
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1. Having heard the submissions it seems to me that the orders made by the Master ordering a trial of the preliminary issue in the terms that she has ordered namely,
“of the entitlement of the Plaintiff to claim damages for his alleged post-traumatic stress disorder as ‘bodily injury’ within the meaning of Article 17 of the Conventions under the Carriage by Air Ordinance (Cap. 500) (‘the preliminary issue’).”
should be set aside.
2. It seems to me that the orders that the Master made ordering the preliminary issue in those terms must be set aside in respect of both plaintiffs. The reason I say so is that on a fair reading of the preliminary issue framed it is the entitlement of each of the plaintiffs to claim damages for his alleged post-traumatic stress disorder (and I emphasize the word “his”) which is to be considered. It is not a point of law as to whether a plaintiff who suffers from alleged post-traumatic stress disorder can regard it as ‘bodily injury’ within the meaning of Article 17. It is a specific entitlement of a specific plaintiff for his specific post-traumatic stress disorder in these two cases. That being so, it seems to me that medical evidence will have to be called in respect of each plaintiff’s medical condition. And from the medical evidence that I have been referred to there will also have to be evidence called as to whether or not there has been caused organic injury to each plaintiff’s brain so as to bring it within the words ‘bodily injury’ within the meaning of Article 17.
3. As facts have to be gone into which are seriously in dispute it seems to me that it is not proper for the matter to be framed as a preliminary issue and the order must be set aside.
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(Arjan H. Sakhrani)
Judge of the Court of First Instance,
High Court |
Mr Paul Harris, SC and Ms Lynda Shine, instructed by Messrs Henry H. C. Wong & Co., for the Plaintiff in HCPI 660/2001 and HCPI 715/2005
Mr Neville Sarony, SC, instructed by Messrs Stevenson, Wong & Co., for the Defendant in HCPI 660/2001 and HCPI 715/2005
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