張烏治 v. Kot Man Tai and Another

HCPI000169/2000

HCPI 169/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 169 OF 2000

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Coram: Hon Seagroatt J in Chambers

Date of Hearing and Decision: 21 March 2001

Date of Decision in Writing: 28 March 2001

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D E C I S I O N

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1. This is a claim by a 76 years old lady who on the 10 January 1998 was knocked down by the 2nd Defendant when driving the 1st Defendant's vehicle. She has suffered serious injuries to her right leg.

2. She was sweeping the pavement outside the Yuk Dai Temple at No. 18A Kung Ngau Road in Shau Kei Wan. The 2nd Defendant reversed the vehicle on to the pavement on which she was working.

3. The driver was prosecuted for careless driving. He pleaded guilty to the offence. The statement of facts which he admitted included this sentence "At that time [the Plaintiff] was sweeping the ground on the nearside of the road". A sketch of the scene was prepared by the officer who took a statement from the Defendant. One officer witnessed the position of the Defendant's vehicle. None of that evidence has been made available to me so far.

4. When proceedings were commenced, the Statement of Claim was, for some reason I do not understand, only in Chinese. The Check List Review in early September 2000 was adjourned for a translation of it to be filed. At that stage the Defendants' Solicitors had not lodged any documents to the Check List Review and so were in clear breach of the 1998 Practice Direction.

5. The adjourned hearing was on the 15 December 2000. It was further adjourned because the Master rightly took the view that there appeared to be no defence to the Plaintiff's claim. The Defence filed denied negligence, denied the conviction was relevant to the issue of negligence and made some general "tongue-in-cheek" allegations of contributory negligence.

6. The Master gave the Defendants the chance to consider their position realistically. They had still not lodged any documents' statements or otherwise, to support the defence pleaded and were still in breach of the Practice Direction.

7. On the 9 January 2001 the further adjourned hearing came back before the same Master. The Defendants had still not remedied their breach of the Practice Direction. The Master decided to refer the matter to me and so it was that it came before me on the 21 March 2001.

8. The Defendants had still not lodged a single document or statement. Moreover I discovered that the Plaintiff's Solicitors had been unable to obtain all the necessary documents from the Commissioner of Police. In particular his delegated officer had refused to supply a copy of the Defendants' statement to the Police, an obstructive attitude which persists and must be remedied. Even more astonishingly the Defendants' Solicitors had refused to disclose a copy. The Solicitor concerned told me that his client's statement to the Police was a privileged document and that he was not obliged to disclose it to the Plaintiff's Solicitors or to the Court.

9. The Defendants are insured by the Bank of China Insurance Company. I have no doubt that they have a realistic interest in insurance claims to the extent that they wish to meet claims on a realistic and economic basis. Over six months have elapsed since the original Check List Review hearing. In that time there have been three hearings which have resulted in substantial costs all of which have fallen upon the Defendants' insurers, and all of which could have been avoided.

10. The result of the hearing before me is that judgment has been entered for the Plaintiff whose age requires expedition in the resolution of these proceedings. Three years have elapsed since the accident. The judgment against the Defendants has been entered under order 18 rule 19. The Defence pleaded was an abuse of the process of the Court on the available facts. Not one item of evidence has been lodged with the Court to support the Defence. On all four occasions the Defendants' Solicitors have ignored the Courts requirements. The litigation process will not be permitted to exist on this basis.

11. I have made directions for the assessment of damages. It will be dealt with by a Judge on the 11 May 2001 and will last for no more than half a day.

Representation:

Miss Ho Wai Han, of Messrs Pang, Wan & Choi Solicitors, for the Plaintiff

Mr Yip Kin Man, of Messrs Ford Kwan & Co. Solicitors, for the Defendants