Chan Yat Loi v. Kwok Tak Keung and Another

HCPI 313/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 313 OF 2008

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Before: Hon Fung J in Chambers

Date of Hearing: 11 June 2009

Date of Decision: 11 June 2009

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D E C I S I O N

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1.There are two summonses before me:

(1) the Plaintiff’s application to amend the Statement of Claim;

(2) the Defendant’s application to revise the Answer to Statement of Damages.

2.The Plaintiff was a motor cyclist.  He alleged that he was on the 2^nd lane of the highway and the Defendant cut in from the 1^st lane colliding with him.

3.The Defence pleaded that the Defendant was on the 3^rd lane, cutting into the 2^nd lane without any collision, and he later saw the Plaintiff fall down in the rear vision mirror.

4.The draft amendment to the Statement of Claim sought to introduce the alternative case that if the Defendant did cut in from the 3^rd lane, he was nevertheless negligent in colliding with the Plaintiff.

5.O. 18, r. 12A, RHC deals with pleading with inconsistent alternatives as follows:

“A party may in any pleading make an allegation of fact which is inconsistent with another allegation of fact in the same pleading if –

(a)   the party has reasonable grounds for so doing; and

(b)   the allegations are made in the alternative.”

6.Mr. Kwok, for the Plaintiff, submitted that the alterative case was based on the Defence, and is permissible inconsistent alternative under the new rule.

7.Mr. Sakhrani, for the Defendant, submitted that the pleading introducing an inconsistent alternative which is unnecessary for the fair disposal of the cause or for saving costs.

8.The Plaintiff’s alternative is not entirely based on the Defence.  The respective existing scenarios are: (1) the Defendant cutting in from the left causing collision, and (2) the Defendant cutting in from the right without causing collision.  The amendment introduced a 3^rd scenario: the Defendant cutting in from the right causing collision.  It is inconsistent with the Plaintiff’s own case.  Based on the existing cases, once the Court determined from which lane the Defendant cut into the Plaintiff’s lane, the ultimate issue of negligence will in all likelihood be resolved one way or the other.  Hence, the amendment is embarrassing and wasteful in costs.

9.Mr. Kwok submitted that the Plaintiff was entitled to say that even on the Defendant’s version, he is nevertheless negligent.  That is so if he is merely relying on the factual allegation in the Defence without adding any facts inconsistent with his own case.  But the Plaintiff is adding a collision to the Defence version. 

10.If the Plaintiff is saying the Defendant was negligent even on the Defence version, there is no need to amend the Statement of Claim as the Defendant has pleaded contributory negligence based on the Defence allegation (see Poon Hau Kei v Hsin Chong Construction Co Ltd, Taylor Woodrow International Ltd (Joint Venture) [2004] 2 HKLRD 442 (CFA)).

11.Here, the amendment is not allowed.

12.The revision of the Answer is not controversial and allowed.  However, it was made only two days ago, and could have been dealt with on paper if made earlier.

13.I set off the costs on the two summonses, and order the Plaintiff to pay costs summarily assessed at $1,500 to the Defendant.

Mr. Tim Kwok, instructed by Messrs Cheung & Liu, for the Plaintiff

Mr. Ashok Sakhrani, instructed by Messrs Szwina Pang, Edward Li & Co., for the Defendants