Chea Kam Wing Victor v. Kwan Kin Travel Services Ltd

HCPI 970/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 970 OF 2005

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BETWEEN

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Before : Hon Sakhrani J in Chambers

Date of Hearing : 18 December 2006

Date of Judgment : 18 December 2006

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J U D G M E N T

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1.This is an application by the defendant to take this action out of the Running List.  The defendant also applies for leave to issue the Third Party Notice on Spring China Travel Service Ltd. in Taiwan and for leave to serve the Third Party Notice on Spring China Travel Service Ltd. out of the jurisdiction.  I shall refer to Spring China Travel Service Ltd. as the Third Party. 

2.The action was set down for trial in the Running List on 17 October 2006. 

3.The plaintiff was injured whilst on a holiday in Taiwan.  The plaintiff was part of a tour group that entered into a contract with the defendant to provide a package tour to Taiwan. 

4.On 18 October 2004 the plaintiff, together with other passengers, was injured whilst travelling on a tour bus driven by Mr Tsui Chung Hing (“the driver”).  It is alleged that the driver was negligent.  The particulars of the negligence included the fact that he was driving under the influence of alcohol and driving at an excessive speed.  As a result of the accident, 5 persons died and 32 other passengers suffered severe injuries, one of them being the plaintiff. 

5.On the material before the court it seems to me that the plaintiff will have little difficulty in establishing that the driver was negligent. 

6.The defendant denies that it provided local transportation services in Taiwan.  Its case is that it engaged the Third Party to provide the local transportation services in Taiwan.  It appears that the Third Party engaged another sub-contractor Zai Xing who either sub-contracted the transportation services to or employed the driver. 

7.It is common ground that the purpose of O. 16 is two-fold :

(1)    to prevent multiplicity of actions and to enable the Court to determine disputes between all parties to them in one action; and

(2)    to prevent the same question from being tried twice with possibly different results.

8.The chronology of events presented by the plaintiff shows clearly that there has been delay on the part of the defendant in seeking leave to issue the Third Party Notice.  The defendant well knew of the plaintiff’s claim ever since the demand letter was sent on 26 April 2005.  The writ was issued on 24 October 2005 and the defence was filed on 9 December 2005.  Although by the defendant’s checklist dated 27 February 2006 it indicated that it would apply for third party proceedings, it was only in late July 2006 that it made an application ex parte for leave to issue the Third Party Notice. 

9.On 25 July 2006 Master J Wong ordered the defendant to issue an inter partes summons so that the plaintiff could be heard on the matter.

10.There were two further checklist review hearings before Master B. Kwan in August 2006 after the order of Master J Wong but no inter partes summons was issued by the defendant until much later and after the action was set down.  As I have said, the action was set down on 17 October 2006 and placed in the Running List where it presently is. 

11.There is absolutely no explanation for the delay in issuing the summons until 2 November 2006. 

12.I bear in mind that in the main action between the plaintiff and the defendant the main issues on the question of liability are :

(1)    whether the driver was negligent; and

(2)    whether the defendant is protected by the exemption clause in the contract between the plaintiff and the defendant. 

13.As to (1), it seems to me to be clear that the driver was negligent.  In my view there is no real risk that the Court in subsequent proceedings between the defendant and the Third Party will reach a different conclusion on the question of the negligence of the driver. 

14.As to (2), it is a matter of the terms of the contract and the construction of the exemption clause in the contract between the plaintiff and the defendant which the Court in the main action will have to decide.  It is not the same contract that the defendant entered into with the Third Party and not the same question as will be decided between the defendant and the Third Party.  That would be a construction of the contract that they have themselves entered into. 

15.It seems to me that if leave is granted to the defendant to issue the Third Party Notice and to serve the same out of the jurisdiction at this late stage it will inevitably lead to a substantial delay of the trial of the plaintiff’s claim.  The plaintiff’s legal representatives presently estimate the delay at about a year but it could be longer if further leave is subsequently sought to bring in the sub-contractor Zai Xing as a further party. 

16.Despite Mr Kevin Wong’s submissions, I am of the view that taking the action out of the Running List now and giving leave to the defendant to issue and serve the Third Party Notice out of the jurisdiction at this very late stage will inevitably cause serious delay.  Such delay would, in my view, be prejudicial to the plaintiff in his claim for damages.  He should not be kept him waiting for his damages much longer than necessary.  As I have said, there has been absolutely no explanation for the delay given by the defendant. 

17.In the exercise of my discretion I dismiss the application.

Mr Wong Chi Kwong, instructed by Messrs Chau & Associates, for the Plaintiff

Mr Kevin Wong, instructed by Messrs Reimer & Partners, for the Defendant