Chan Ching-chong v. Chan Kwan-lai and Another

HCA001133/1968

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 1133 OF 1968

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Coram: Li, J. in Chambers.

Date of Judgment: 11th December, 1975.

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JUDGMENT

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1. This is an appeal from the Registrar's order to strike out an action for want of prosecution. The action arose out of a fatal accident that occurred on the 4th of September 1967. The writ was issued by the deceased's son, who claimed as a dependant on his own behalf and on the behalf of his own children, on the 13th August, 1968. The Statement of Claim was filed on the 18th September, 1969 but there was no Defence filed. On the 24th October, 1969 the Defendants by summons applied for an order that the Defendants consent to judgment and that the Plaintiff be put to strict proof as to his General and Special Damages. An order was eventually made in these terms on the 8th November, 1969. It reads:

2. In his Statement of Claim the Plaintiff claimed as Special Damages $8,500 for funeral expenses and for General Damages he claimed also loss of expectancy of life on behalf of the deceased and also for the loss of benefit to the dependants of the deceased. Nothing happened as from the 8th November, 1969 until the 26th September this year when solicitors for the Plaintiff sent a notice to proceed and served it on the Defendants, and then there was a notice of hearing for the proof of damages dated 23rd October, 1975. In the meanwhile the Defendants issued a summons applying for the action to be struck out for want of prosecution. The grounds for the Defendants' summons are that there had been inordinate delay and inexcusable delay, such that would prejudice the Defendants' case. The reason as to prejudice is given as that after this lapse of time it will be difficult for the Defendants to verify the earnings of the deceased at the time of the accident and it will be difficult to verify and call rebuttal evidence as to the funeral expenses, and thirdly, as to the damages on pain and suffering. It was conceded before the Registrar that the burden of proving that there had been inordinate and inexcusable delay and prejudice was on the Defendants. It is contended that, on appeal, the burden would shift to the Plaintiff. However, the hearing on appeal from the Registrar's decision takes the form of a fresh hearing so that I am of the opinion that the bruden still lies with the Defendants to satisfy me that there had been such delay and there had been such prejudice.

3. In support of the Plaintiff's case, Mr. Ho, Plaintiff's solicitor, filed an affidavit. Mr. Taylor, solicitor for the Defendants, and the supervisor of the Insurance Company of the Defendants' vehicle filed the affidavits in opposition. Needless to say, I have taken all these into serious consideration and I find that from Mr. Ho's affidavit he fairly and freely concedes that there had been a delegation on his part on the conduct of the case to his clerks. There had been a constant change of clerks for the last few years in his firm resulting in the loss of the file for a short period and hence the delay. Reading his affidavit one can only observe that while in a solicitor's firm in modern times, and particularly in a one-man firm, life would be impossible without delegation. I must also observe that delegation would be completely inoperative and farcical unless there has been some proper supervision. In view of the circumstances, judging from the contents of the affidavit of Mr. Ho, I am satisfied in this case that there had been inordinate delay and that the delay is quite inexcusable.

4. There remains only one point and the point is whether the Defendants are prejudiced by the delay in that way. It is to be observed that when the order was made on the 8th November, 1969, the Plaintiff was to be put to strict proof as to General Damages and Special Damages and that the Defendants were allowed to call evidence in rebuttal in respect of the Special Damages, namely, the $8,500 funeral expenses. There is no question of any dispute on liability at all, the Defendants having consented to judgment.

5. My attention is drawn to the case of Kruschandl v. Bulkeley⁽¹⁾. This is admittedly not a full report but according to the Solicitors Journal, it is recorded that Lord Denning said:

"The plaintiff's solicitors' delay after change of solicitors had been prolonged and inexcusable. No notice of change of solicitors or of grant of a legal aid certificate had been given for a considerable time. Liability in the case was not in substance in dispute. The court would rarely dismiss an action for want of prosecution if liability was not in dispute."

This is very similar to the present case where there is no question of liability but only the question of damages.

6. In the case of Marlton v. Lee-Leviten⁽²⁾ an infant was involved and even the question of liability was involved; and a prolonged delay the action was not struck out. Allowing myself to be guided by such principle, I must also observe that when the question of funeral expenses is to be proved strictly in motor accident cases the funeral expenses are really assessed not so much on the Plaintiff's claim but at the judge's discretion as to what is reasonable in the circumstances. As to pain and suffering, this is also to be judged by the medical evidence which should be available in hospital records. As to the matter of dependency and loss of expectation of life, there again the damages is to be assessed by the court based on the conditions of health at the time of the death, age of the deceased and applying an actuarial test.

7. We have the evidence on the one hand that the Plaintiff claimed that the deceased earned $600 per month and contributed about $300 for his family expenses, for his benefit and his children. On the other hand, immediately after the accident or shortly after the accident, a Mr. Wong, the supervisor of the insurance company of the Defendants' vehicle, had an interview with the Plaintiff and there he obtained certain information as to the earnings of the Plaintiff's mother. That, of course, would be taken into consideration. The question of general damages is mainly one of contribution to the benefit of the Plaintiff and the Plaintiff's children. As far as the multiple is concerned, it depends on the actuarial test. As far as the actual earnings is concerned, there is the evidence that had been obtained by the Defendants at the time that the deceased earned only about $100 to $200 per month and there is a conflict of evidence that the Plaintiff set a claim that she earned about $600 per month. That is the only bit that might be affected with the lapse of time. However, whoever is going to assess the damage should obviously take into consideration that there has been a lapse of time and the burden is on the Plaintiff to prove strictly as to the contribution and as to the earnings of the deceased. If the Plaintiff should fail in satisfying the assessor with such strict proof, obviously the damage would be considerably reduced or would come to nothing. My main concern is that there had been an admission of liability and that obviously the Plaintiff is entitled to some quantum of damages, the content of which is to be determined by the assessor. If I order the action be struck out, the Plaintiff would get practically nothing although he might or might not be able to take action against his own solicitors. Even so the Defendants are not to be completely absolved from some admitted liability.

8. In the circumstances I would allow the appeal and reverse the Registrar's decision and order that the action should be restored. Costs before the Registrar will be costs to the Defendants in any event. No order as to costs in this appeal.

Representation:

(1) (1968) 112 Sol. Jo. at 763.

(2) (1968) 1 W.L.R. at 1214.