XCHRX WONG YAT HUNG v. SUN KON SIN TRANSPORTATION (a firm)

HCPI 116/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.116 OF 1997

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J U D G M E N T

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1. This is an appeal by the defendant from the decisions of Madam Registrar Chu given on 13 January 1999 and on 24 May 1999 dismissing (in both instances) applications by the defendant for :-

(a) setting aside the Writ of Summons as a nullity and/or for irregularity for failing to comply with Order 6, rule 2 and/or Order 12, rule 8 of the Rules of the High Court; and

(b) for dismissing the action for want of prosecution.

2. By agreement of both parties, I have only heard submissions relating to the application for dismissal for want of prosecution and depending on my ruling in this respect, the defendant may or may not need to pursue the second application.

3. The plaintiff's claim is for damages for personal injuries against the defendant, his employer, in respect of an accident which arose on 28 February 1994. The plaintiff alleges that he was employed by the defendant as a container truck driver and that on 28 February 1994, after connecting some cables between the cabin of the truck and the trailer, he had to jump down from the platform thus spraining his back. The reason given for having to jump down was because no adequate or suitable steps were provided for ascent or descent from this platform of the truck and/or that the steps, if provided, were broken or inadequately secured.

4. As already stated, the accident took place on 28 February 1994. An application for employees' compensation by the plaintiff against the defendant was taken out on 9 January 1995. This application was settled by a Consent Order on 9 October 1995. For the employees' compensation application, the defendant was represented by Messrs K.F. Wong & Co. throughout - the same solicitor firm which now still represents the defendant. On 6 September 1996, the plaintiff's solicitors informed Messrs K.F. Wong & Co. by letter that they have been assigned to represent the plaintiff to claim damages under common law in respect of the matter arising from the employees' compensation application and asking if Messrs K.F. Wong & Co. has instructions to accept service. The Writ of Summons was then issued on 5 February 1997 - some three weeks before the limitation period expired. The Writ was served by letter on 7 April 1997 and service acknowledged on 6 May 1997. On 14 May 1997, Messrs K.F. Wong & Co. wrote to the plaintiff's solicitors asking to be served with the Statement of Claim as soon as possible. Up to this stage there is no delay which the defendant can complain of.

5. Thereafter, some 13 months later, on 25 June 1998, the plaintiff's solicitors wrote to Messrs K.F. Wong & Co. stating that they will shortly be in a position to file and serve the Statement of Claim. On 2 July 1998, the plaintiff filed a Notice of Intention to Proceed. On 25 August 1998, there was a telephone conversation between Mr Brettell of the plaintiff's solicitors and a Mr Lincoln Huang of Messrs K.F. Wong & Co. In this telephone conversation, the defendant's solicitors were told for the first time the plaintiff's allegation that the steps of the container truck was broken or damaged which necessitated the plaintiff jumping down from the platform.

6. On 1 September 1998, a draft Statement of Claim was sent to Messrs K.F. Wong & Co. by the plaintiff's solicitors and a summons taken out by them the following day for extension of time to file and serve a Statement of Claim. On 11 September, the defendant took out this summons to dismiss for want of prosecution.

7. From the above chronology of events, it is clear that the defendant's complaint as to delay involves just one period of delay - from the time they acknowledged service on 6 May 1997 up to the plaintiff's summons to extend time for service of the Statement of Claim - a delay of about 16 months. That there was such a delay is not disputed by the plaintiff. The reason for such a delay is given in an affidavit of Mr Paul Erving, the solicitor handling the matter at the time of the delay, that it was due to his own pressure of work. This is not a valid excuse for such delay and the plaintiff has, quite rightly, not disputed that the delay was inordinate and inexcusable.

8. The issue between the parties in so far as this application to dismiss the action for want of prosecution is concerned is whether there has been such prejudice to the defendant that there cannot be a fair trial by reason of such inordinate and inexcusable delay.

9. In so far as the action itself is concerned, the crux of the issue between the parties relating to negligence is that while the plaintiff alleges that the steps giving access to or descent from the platform of the truck was broken or damaged at the time of the accident thus forcing him to jump down from the platform and so causing the injury to him, the defendant on the other hand states in an affidavit that he verily believes "that a ladder was properly affixed to the said container truck for descent. At all material times, the said ladder was in good condition. The alleged accident would not take place if the plaintiff herein had made use of the said ladder".

10. The prejudice, resulting from the delay, to the defendant is alleged to have come about because the defendant had sold the container truck on 14 September 1996 and at the time the truck was sold, the defendant had reserved the registration number EV3548. That being the case, it is quite impossible for the defendant to locate the truck now since he does not know the new registration number of the container truck which he sold in September 1996. The effect of this, says the defendant, is that he has lost out on an important piece of evidence in his case - i.e. to show that there was a ladder or step going up to the platform of the truck and which was in good condition such that the plaintiff ought to have used it instead of jumping down from the platform thereby injuring himself.

11. The defendant says that had the plaintiff made the allegation as to the condition of the step or ladder when the Writ was issued, which was only about five months after the sale of the truck, it would still be easier for him to locate the truck in an attempt to gather such evidence to support his case, but the allegation of the condition of the ladder was made only for the first time in August 1998, almost two years after he had sold the truck, it is impossible for him now to trace the truck.

12. The plaintiff on the other hand argues that firstly there was no prejudice to the defendant because the defendant is able to say on affidavit dated 20 October 1998 that there was a step or ladder of the container truck in question and that step or ladder was in good condition and could have been used by the plaintiff. Therefore it is a matter of credibility rather than of memory. Secondly, the plaintiff contends that even if there had been no delay, that if the Statement of Claim was served within 14 days of the defendant acknowledging service of the Writ, by that time the defendant would already have sold its container truck. Therefore the fact that the defendant is unable to locate the truck is not something caused by the delay.

13. During submissions in this case, I was referred to a number of authorities by Mr Bharwaney, counsel for the defendant. The purpose of bringing me through all these authorities relating to prejudice is to show that judicial thinking is moving towards the direction that a defendant need not specifically show his memory or that of his witnesses have faded with the passage of time where there is inordinate delay on the part of the plaintiff but that the court should be ready to infer that. I am more than prepared to accept that proposition in a proper case. But here it has been shown (by the affidavit of the defendant himself) that his memory has not been affected - that he is able to say that there was a step or ladder leading up to the platform of the truck which was in good condition and should have been used by the plaintiff at the time of the accident.

14. I further take the view that if the truck, as a piece of evidence, is lost to the defendant, in order to show the condition of that step or ladder, it was not something which resulted from the delay complained of for the following reasons.

15. Firstly, since employees' compensation is not fault related, there was no need for the plaintiff to make any allegation concerning the condition of the step or ladder in the employees' compensation application and no doubt for that reason no such allegation was made. However the defendant was aware that in that application the plaintiff claimed to have jumped down from the platform of the truck thereby injuring himself. When on 6 September 1996, the plaintiff's solicitors informed Messrs K.F. Wong & Co. by letter that they have been assigned to pursue the common claim for the plaintiff, it must have been apparent to the defendant that the existence (not the condition) of the step or ladder was a material piece of evidence. That was about a week before the truck was sold by the defendant and, if the defendant had wanted to, photographs showing the existence of this step or ladder could and should have been taken of the truck to preserve that piece of evidence. That was not done by the defendant.

16. Secondly, if the plaintiff had served his Statement of Claim within the time provided for by the rules - say, on 20 May 1997, that would be some eight months after the sale of the truck by the defendant. In this respect, the evidence relied on by the defendant to say that he can no longer trace the truck are all evidence relating to communication with the Transport Department. I accept that the truck could not be traced through the Transport Department because the defendant does not know the new registration number of that truck. However there is no evidence before me that any other steps were taken by the defendant in his attempt to locate this truck - such as attempts to locate the party to whom he had sold the truck. Since it was only through the Transport Department that such steps were taken, I can see no difference whether such steps were taken eight months after the sale or whether it was done after the defendant became aware of the plaintiff's allegation as to the condition of the steps - it would still have availed the defendant nought.

17. Thirdly, even if the truck could be located (whether in early 1997 or at present) by the defendant, its relevance as a piece of evidence is only minimal. That is because the relevant issue in this case is the condition of the step or ladder (assuming it exists) on 28 February 1994 - not its condition in 1997 or at the present.

18. The law in this respect recognizes only too well that a causal link must be proved between the delay and the inability to have a fair trial or other prejudices as the case may be (see Rath v. C.S. Lawrence & Partners [1991] 1 WLR 399 at 410).

19. Although there was an inordinate and inexcusable delay in this case for some 16 months in serving a Statement of Claim, it has not been shown that the defendant has been prejudiced by it such that a fair trial of the issues is not possible.

20. Accordingly, this ground of the appeal from Madam Registrar Chu is dismissed. There is of course the remaining part of the appeal relating to the nullity of the Writ. I shall give the parties liberty to apply for a date to be fixed to restore the remaining part of this appeal to be heard before me. Costs reserved until the remaining part of this appeal is dealt with.