To Kam and Another v. Chiang Mi Fook
Read the full judgment text of HCA 980/1977 on BabelCite. This High Court CFI judgment.
1. This is a hearing of the Defence of the Limitation Ordinance as a preliminary issue.
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HCA000980/1977
Coram: Zimmern, J. Date of Judgment: 11th December, 1978. ----------------- DECISION ----------------- 1. This is a hearing of the Defence of the Limitation Ordinance as a preliminary issue. 2. An inhabitant of the New Territories one Chu Sai Kit was riding a bicycle along Fan Kam Road on the morning of 4/2/74 when after falling off the said bicycle he was run over by an Army Vehicle driven by one David John Hill. Chu Sai Kit died the next day from the injuries sustained. 3. I am told the Letters of Administration of the Estate of the deceased was granted on 7/1/77 to the deceased's widow and another who are the Plaintiffs in this action suing the Defendant pursuant to Ordinance. The writ of summons with a Statement of Claim indorsed thereon was issued on 23/4/77 about 2 ½ weeks after three years from the date of death. There is a pending action against Hill. I am told there was a previous action against the Defendant herein but discontinued because prior notice had not been served on the insurers. There is now a valid notice for the present writ. The allegation against this Defendant is that immediately before the accident he after overtaking Hill on a car had driven back on to the deceased's lane in such a careless manner that he caused the deceased to fall off his bicycle. Furthermore as a result he was charged with and pleaded guilty to careless driving at a magistrate's court on 22nd February, 1974. 4. Anticipating a defence of statute barred the Plaintiffs pleaded under paragraph 2 "The Plaintiffs bring this action relying on section 27 of Limitation (Amendment) Ordinance 1974" and under paragraph 3 "In terms of section 27(6)C of the Limitation (Amendment) Ordinance the identity of the Defendant was first known to the Plaintiffs on 26/4/74". The Defence did plead the statute and further alleged the identity of the Defendant was known or that they might have reasonably acquired the knowledge prior to the date asserted. 5. At the hearing Counsel for the Plaintiffs successfully sought leave to amend paragraph 2 set out above by adding section 28 as well and told the Court he was really relying on section 28. Section 28(3) reads as follows:
6. Section 28 has effect subject to section 30 subsection (1) of which reads:
7. The widow was tendered for cross examination. She had lived in the mainland all her life and had only joined the deceased 5 months before the accident. She was in a new world and would not know her way. She applied for legal aid on 22/3/74 and on her application form there is stated "taking or continuing proceedings against driver of an army vehicle (No. 29 ES 03)". On 4/4/74 the Director of Legal Aid sought particulars from the Commissioner of Police who by a memo dated 23/4/74 brought up the identity of the Defendant and the fact of his conviction. This counsel for the Plaintiffs says was the first date of knowledge of the person for whose benefit the action is brought. This I accept. The Plaintiffs are simply country folks and their minds were directed on the vehicle which is alleged to have actually collided with the deceased. The Defendant called a Police officer from the Traffic Accident Office, N.T. who told the court that in any prosecution at the magistrate's court and before appearance of any defendant the police would notify the relatives of the deceased to attend. He could not prove that the Plaintiffs were so notified. The widow had said she knew nothing about the conviction of the Defendant. I say and hold therefore the Plaintiffs are not statute barred and further say that even if I had held otherwise I would have applied section 30 on the facts of this case. 8. Cost in the cause to be taxed in accordance with Legal Aid rules. Representation: F.A.L. Eddis (Director of Legal Aid) for Plaintiffs. William Lane (Johnson, Stokes & Master) for Defendants. |