Leung Sai Kui v. Kai Tai Construction Co and Another

CACV000060/1984

BETWEEN

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Coram: Yang, Barker, JJ.A. & Power, J.

Date: 11 May 1984

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JUDGMENT

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Barker, J.A.:

1. The following is the judgment of the Court.

2. This is an appeal from the order of Mayo J. dismissing the Plaintiff's action for want of prosecution.

3. The Plaintiff's claim is for damages for serious personal injuries sustained by him in an accident during the course of his employment which occurred as long ago as the 28th December 1975. During the next two years, a workmen's compensation claim was successfully brought by the Plaintiff against the Defendant. But the bringing of such a claim is no excuse for delay in launching an action for damages at Common Law.

4. In fact the writ in this action was not issued until the 24th August 1978. This was within the limitation period but when a plaintiff delays commencing an action for so long after the accident has occurred it behoves him to proceed thereafter with all reasonable expenditure. This the Plaintiff did not do.

5. The original Statement of Claim pleaded that the Plaintiff during the course of his employment with the Defendant as a carpenter stepped on a wooden board which collapsed throwing him on to the floor below. The Defendant has always denied that it was the employer, notwithstanding the payment of compensation, it being its case that it was the head contractor and that the Plaintiff was employed by a sub-contractor, the Third Party, who has not appeared on the appeal, so that it was liable to pay compensation under section 24 of the Employees' Compensation Ordinance. The Defendant's concern about the accident was manifested by a premature application for further and better particulars of the Statement of Claim before Defence. The summons for these particulars was dismissed, but even after delivery of the Defence they were not forthcoming.

6. On the 23rd February 1980 an Order for directions was made. It was badly drafted. It ordered both Plaintiff and Defendant to serve on the other lists of documents "within 14 days after the filing of all pleadings consequential to this Order. " But in fact no further pleadings were ordered. The Order further provided that the action should be set down "within 42 days after the filing of all pleadings consequential to this Order. "

7. On the 3rd March 1980 the Plaintiff filed a Re-amended Statement of Claim. The version of accident now alleged was totally different from that originally pleaded, and was that the Plaintiff stepped on to a wooden board from which he fell. No reason was given (nor has ever been given) as to why he fell. Voluminous but vague particulars of negligence were alleged. Not unnaturally the Defendant sought further and better particulars of the Re-amended Statement of Claim. They were not forthcoming. Accordingly on the 15th September 1980 the Defendant took out a summons for them. This was by consent adjourned sine die.

8. The Defendant's solicitors on the 31st October 1980 wrote to the Plaintiff's solicitors as follows:

9. On the 23rd January 1981 the Plaintiff filed a Reply to the Amended Defence. On the 16th July 1981 the Defendant belatedly filed its list of documents. It was a lengthy document comprising 26 pages. But the Plaintiff has never thereafter supplied the further and better particulars of the Statement of Claim which the Defendant had requested. The Defendant still does not know the nature of the Plaintiff's case. Unless, and until it does, it cannot prepare its case.

10. No further procedural step in the action was taken by the Plaintiff until the 26th September 1983, when he gave one month's notice of his intention to proceed. But even thereafter the action was not set down, nor were the requisite further and better particulars forthcoming.

11. Finally the Defendant's patience was exhausted and on the 31st January 1984 a summons to dismiss for want of prosecution was taken out.

12. Clearly there has been inordinate and inexcusable delay - indeed this is conceded by the Plaintiff. Furthermore, and equally clearly, the Defendant is prejudiced by the delay. Quite apart from the fact that after a lapse of over 8 years memories of witnesses must inevitably have dimmed, the Defendant, not knowing the nature of the Plaintiff's case, is still unable properly to investigate it.

13. The sole ground of appeal is that the Judge should have dismissed the Defendant's application to have the action dismissed because the Defendant itself substantially caused or contributed to the delay.

14. The only appreciable delay attributable to the Defendant is that involved in the service of its list of documents. Delay there undoubtedly was, but the list was served 6 months after the filing of the Plaintiff's reply and having regard to the ambiguous wording of the Order for directions it is this period only which can be held against the Defendant. But the Defendant's delay pales into insignificance compared with that of the Plaintiff, for even after the list had been served the Plaintiff took no step in the action for 26 months; and then merely served notice of intention to proceed. As a result of the Plaintiff's delay there is a substantial risk that it is not now possible to have a fair trial of the action and the Defendant has been seriously prejudiced thereby. We can find no fault with the reasoning of Mayo J. nor with the conclusion at which he arrived.

Representation:

Mr. K. Bokhary, Q.C. and Mr. G.A. Mackay instructed by Messrs. F. Zimmern & Co. for Appellant/Plaintiff.

Mr. A. Allman-Brown instructed by Deacons for Respondent/ Defendant.

Third party absent