Kwok Kam Ming v. China Airlines, Ltd

HCPI 660/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 660 OF 2001

BETWEEN

HCPI 715/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 715 OF 2005

BETWEEN

Before : Hon Sakhrani J in Court

Date of Hearing : 29 June 2006

Date of Judgment : 29 June 2006

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D E C I S I O N

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1.Having heard the submissions it seems to me that the orders made by the Master ordering a trial of the preliminary issue in the terms that she has ordered namely,

“of the entitlement of the Plaintiff to claim damages for his alleged post-traumatic stress disorder as ‘bodily injury’ within the meaning of Article 17 of the Conventions under the Carriage by Air Ordinance (Cap. 500) (‘the preliminary issue’).”

should be set aside.

2.It seems to me that the orders that the Master made ordering the preliminary issue in those terms must be set aside in respect of both plaintiffs.  The reason I say so is that on a fair reading of the preliminary issue framed it is the entitlement of each of the plaintiffs to claim damages for his alleged post-traumatic stress disorder (and I emphasize the word “his”) which is to be considered.  It is not a point of law as to whether a plaintiff who suffers from alleged post-traumatic stress disorder can regard it as ‘bodily injury’ within the meaning of Article 17.  It is a specific entitlement of a specific plaintiff for his specific post-traumatic stress disorder in these two cases.  That being so, it seems to me that medical evidence will have to be called in respect of each plaintiff’s medical condition.  And from the medical evidence that I have been referred to there will also have to be evidence called as to whether or not there has been caused organic injury to each plaintiff’s brain so as to bring it within the words ‘bodily injury’ within the meaning of Article 17. 

3.As facts have to be gone into which are seriously in dispute it seems to me that it is not proper for the matter to be framed as a preliminary issue and the order must be set aside.

Mr Paul Harris, SC and Ms Lynda Shine, instructed by Messrs Henry H. C. Wong & Co., for the Plaintiff in HCPI 660/2001 and HCPI 715/2005

Mr Neville Sarony, SC, instructed by Messrs Stevenson, Wong & Co., for the Defendant in HCPI 660/2001 and HCPI 715/2005