Tang Suk Yee Daisy and Others v. Wong Yuk Chau and Another

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

HCA008222A/1981

1981 No. 8222

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

	TANG SUK YEE, DAISY administratrix of the estates of TANG MAN deceased and KO SIN deceased	Plaintiff
	and
	WONG YUK CHAU	1st Defendant
	THE KOWLOON MOTOR BUS CO. (1933) LTD.	2nd Defendant

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Coram: Hon. Kempster, J.

Date of Judgment: 26th January 1984

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DECISION

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1. This is an appeal from an order made by Master Hansen on the 5th January of this year granting the plaintiff leave to amend her Statement of Claim.

2. The action has a rather complicated history. On the 30th August 1980 an accident occurred as a result of which two people died. Proceedings claiming damages under the Law Reform Ordinance were commenced on the 20th November 1981 on the footing that the two deceased died as a result of the direct or vicarious negligence of the defendants in driving a public-service motor bus.

3. On the 27th August 1982 interlocutory judgment was signed for damages to be assessed and on the 8th November Master Barrington-Jones heard argument and evidence on such assessment. In the course of the assessment objection was made to certain evidence as going beyond the parameters of the Statement of Claim. It was not conceded that amendment was required and no amendment was formulated. With hindsight it may be thought unfortunate that the Master did not require the solicitor then appearing for the plaintiff to submit an amendment in writing while granting the defendants any necessary adjournment at the plaintiff's cost. That was certainly the view of the Court of Appeal. 1983 H.K.L.R. 154 at page 159.

4. The assessment made was the subject of a successful appeal on two grounds:

	(1)	That when damages are claimed in respect of the "lost years" for the benefit of the estates of more than one person killed in the same accident it is the duty of the Court to make an assessment in respect of each estate applying a separate multiplier.
	(2)	That the Statement of Claim had not given the defendants due notice of the plaintiff's case and that the evidence led at the assessment had gone beyond its parameters.

5. When on the 24th March 1983 the Court of Appeal made its decision and ordered a re-assessment the question of costs arose and the not unfamiliar problem of possible injustice to defendants faced by legally-aided plaintiffs arose. Section 14(3)(c) of the Legal Aid Ordinance Cap. 91 provides that "where any legal aid certificate is filed the aided person (here the plaintiff) shall not for so long as it remains in force, except where express provision is made in the Ordinance, be liable for costs to any other party in any proceedings to which this certificate relates". The appeal to the Court of Appeal was such a proceeding but section 19(2)(a) provides for an award of costs to be made on appeal in favour of an unaided party only if that unaided party has appeared as a respondent. Here, of course, the unaided party appeared as an appellant. So the Court of Appeal had no option but to refuse any order for costs. No order for costs against the respondent could have been made in relation to that appeal by any tribunal. The defendants can, I think, fairly say that to this extent they have suffered a loss which they would not have suffered had the plaintiff not been legally-aided.

6. Following the decision of the Court of Appeal the plaintiff was pretty tardy about applying for leave to amend. The summons was only issued on the 21st November of last year and made pursuant to R.S.C. O.20 r.5 which gives the Court an admitted discretion at any stage of proceedings to allow the plaintiff to amend the writ or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner if any as it may direct.

7. Mr. Sakhrani, who appears for the defendants, here the appellants, has drawn my attention to a number of quite old but still authoritive decisions illustrating the proper approach to such an application. Those I consider on this appeal. They have a common thread namely that leave should be granted in order to define the real issues between the parties at any stage providing that the opposing party can be put in as good a position as he would have enjoyed had the amendment been made at the outset. It is not suggested here that the defendants are unable to trace a material witness whose evidence has or will become material by reason of the amendment or that they are otherwise prejudiced in like manner. What is contended is that they have already suffered the loss which I have described by being unable to obtain an order for costs in the Court of Appeal. That is a loss which the defendants would have had to bear and will have to bear whether or not amendment of the Statement of Claim is allowed. It is not, in my view, the sort of prejudice which this Court should take into account in considering the propriety or otherwise of Master Hansen's order. Any injustice arises not from the default of the plaintiff but from the stringent words of the ordinance which cannot properly be nullified by putting the plaintiff on terms in the present context. In the circumstances I happily follow the guidance, for example, of Lord Justice Bowen in Cropper v. Smith⁽¹⁾ at page 710. I think the plaintiff's error is one that the Court ought to correct and that it can be done without injustice to the defendants. In the circumstances the appeal fails and the order of Master Hansen stands.

	(M. Kempster)
	Judge of the High Court

(1) (1884) 26 Ch. 700

Representation:

A. Sakhrani Q.C. & A. Pire (J.S.M.) for appellants/defendants

Michael Ozorio (D.L.A.) for respondent/plaintiff