Leung Ping Yeung and Others v. Jetour Holiday Ltd
Read the full judgment text of HCPI 707/2008 on BabelCite. This High Court CFI judgment was delivered on 5 February 2010 before Hon Fung J.
Civil procedure – personal injuries – case management conference – multiple actions arising from coach bus accident in Egypt in 2006 – whether to allow expert evidence on liability – whether to allow expert evidence from insurance broker – Further and Better Particulars of Statement of Claim – consolidation or stay of related actions – service on Third Parties outside jurisdiction – mediation – Liddell v Middleton applied – expert evidence in road traffic cases is exception not rule – no accident sketch or tyre mark measurements – expert's opinion on speed based on driver's account not probative – Mr Chau with 23 years of industry experience to provide evidence on trade practice for insurance coverage – F&B Particulars refused given extensive exchange of witness statements – questions of law are ultimate questions for the court – stay of related actions on terms Defendant bound by result – Third Party proceedings issued late and forum conveniens against Egyptian Third Parties points to Egypt – mediation ordered despite liability dispute as it is voluntary and not a precondition – Catch-22 to refuse mediation on basis of liability dispute – costs of CMC in the cause; costs on expert evidence and F&B Particulars borne by Defendant – HCPI 707/2008 set down for liability trial with 5 days reserved.
Legal issues: Whether to allow expert evidence on liability in road traffic accident case · Whether to allow expert evidence from insurance broker on industry practice · Whether to order Further and Better Particulars of the Statement of Claim · Whether to consolidate or stay related personal injury actions · Whether to adjourn for service on Third Parties outside jurisdiction · Whether to order mediation in personal injuries action
Outcome: All applications by the Defendant were determined. Application to adduce expert evidence on liability was refused. Application for expert evidence from insurance broker was allowed in modified form (Mr Chau to file supplemental statement). F&B Particulars application was refused. HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008 were stayed pending determination of HCPI 707/2008, subject to condition that Defendant be bound by the result. Adjournment for service on Third Parties outside jurisdiction was refused. Mediation certificates ordered in all cases.
Cites 6 cases
|
HCPI 707/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 707 OF 2008 ____________ BETWEEN
AND HCPI 857/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 857 OF 2008 ____________ BETWEEN
____________ AND HCPI 858/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 858 OF 2008 ____________ BETWEEN
____________ AND HCPI 933/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 933 OF 2008 ____________ BETWEEN
____________ Before: Hon Fung J in Chambers Date of Hearing: 4 February 2010 Date of Decision: 4 February 2010 Date of Reasons for Decision: 5 February 2010 ________________________________ REASONS FOR DECISION ________________________________ 1.There are divers applications by the Defendant heard at this Case Management Conference:
Background 2.This case involved the tragic coach bus accident of Hong Kong tourists in Egypt in 2006. There are 8 PI claims and 4 fatal claims in HCPI 707/2008. There are 3 other claims sought to be consolidated. 3.The Plaintiffs’ case was that the tour was running behind schedule and the Defendant’s tour guide instructed the Egyptian driver to speed up in order to catch an anti-terrorist convoy in crossing the desert. The Defendant is sued in negligence as the tour operator. 4.The Defendant had taken out some travel insurance for the Plaintiffs. It is also sued in tort as well as implied contract for failing to advice and/or to obtain sufficient insurance coverage for the Plaintiffs. 5.The Defendant denied speeding. It also denied being the tour operator, and claimed to be the mere agent of the Egyptian tour operator. 6.The parties have agreed to a split trial on liability first. Expert evidence on liability 7.The Plaintiffs alleged speeding. The Defendant’s tour guide denied it. The Egyptian driver has been convicted of careless driving, but is appealing the conviction. 8.Miss Lau, for the Defendant, applied to adduce expert evidence to show the layout sketch of the accident scene and the possible speed. 9.Mr Ozorio SC, for the Plaintiffs in HCPI 707/2008, submitted expert evidence in road traffic cases is the exception rather than the rule (see Liddell v Middleton [1996] P36 (CA)). 10.In Chan Wai Kit v Li Pak Wah & anor HCPI 246/2007; [2009] HKCU 505, I had this to say on expert evidence on liability:
11.Miss Lau indicated that there is no accident sketch and/or measurements of tyre marks at hand, and the expert’s comments on the speed will be based on the driver. 12.Apart from the possible delay to this case, there is simply nothing to show the suggested expert evidence on liability is probative and/or necessary. 13.Hence, the application was refused. Evidence as to insurance coverage 14.Miss Lau sought to adduce expert evidence from a broker on the practice of the local tourist industry on obtaining insurance coverage for the group members travelling aboard. 15.Mr Ozorio did not strongly contest it upon the indication of prima facie relevance qua implied contract, but submitted that Mr Chau, the Defendant’s Director of Operations, who had 23 years of experience in the trade and had made a lengthy witness statement in the case, could have given the evidence. In the end, Mr Ozorio did not object to the relevant evidence to be supplemented by Mr Chau. 16.Miss Lau preferred the evidence from an insurance broker. 17.The proposed evidence is not on the availability of the product, as the Defendant did take out some insurance. The trade practice should come from the trade itself. In any case, it should be the same whether coming the buyer or the seller, and having Mr Chau will save 1 witness. 18.Hence, I allowed Mr Chau to file a supplemental statement within 14 days on the industry practice on insurance coverage for the group. It shall be in form of an unless order sanctioned by the debarring of reliance. F&B Particulars of the Statement of Claim 19.Mr Ozorio has conveniently grouped the requests into 2 groups:
20.Mr Ozorio submitted the purpose of giving particulars is to apprise the other party what case to meet. With the current practice of extensive exchange of witness statements, there is no point to give F&B particulars of matters already set out in the statements. 21.I agree with Mr Ozorio save that a party may be required to adhere to a particular case where the pleadings and the evidence are at variance or in conflict. But that is not the case here. 22.Those requests relating to factual matters seem to be in the nature of cross-examination asking the Plaintiffs to explain why a particular fact is alleged. It will be over argumentative at this stage to delve into them and they can be left to the trial. 23.As to those relating to points of law, such as why there is a duty to advice on and/or take out adequate insurance for the tour group, the case is based on the security considerations of the region and is apparent on the pleadings, and they are really the ultimate questions for the Court after hearing the evidence and submissions. 24.Hence, all the requests are refused. Consolidation 25.HCPI 707/2008 is ready for setting down. The other cases are yet to exchange witness statements. 26.Mr Chiu, for the Plaintiff in HCPI 933/2008, agreed to a stay pending the determination of the HCPI 707/2008, subject to the term that the Defendant be bound by the result in HCPI 933/2008 qua his client. 27.I am afraid that Mr Chiu cannot eat the cake and still have it. The Defendant must be allowed to defend against a party whom it is potentially liable. 28.A stay will be a convenient order given the different progress of the cases. The acceptance or rejection of the defence witnesses in the HCPI 707/2008 will give good practical guidance of the success or failure of the other unconsolidated claims. 29.Hence, I ordered a stay of HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008 pending the determination of HCPI 707/2008. Third Parties proceedings 30.The case was commenced in 2008 and the Defence was filed then. The Third Parties proceedings were issued late in the day. 31.Ms Lau explained the difficulties in serving the Third Parties. A fortiori, I doubt the value of waiting for some uncertain event. 32.Further, forum conveniens against the Third Parties seems prima facie to be Egypt. 33.Hence, I refused the adjournment to serve the Third Parties proceedings outside jurisdiction. Mediation 34.Mr Ozorio indicated that he has not considered mediation since liability is in dispute. 35.In Leung Catherine v Tary Limited HCPI 805/2007; [2009] HKCU 1529, I had this to say on mediation:
36.Mr Ozorio indicated since I have granted leave to have the case set down in the Fixture List with 5 days reserved (which should be in the form of an unless order within 42 days sanctioned by striking out of the claims), the likely trial date will be some 6 months away, giving the parties sufficient time to consider, and if so advised, undergo mediation. 37.I order all parties in all the cases to file mediation certificates. I also order all the lay clients to fix appointment within 21 days to attend the briefing in the Mediation Information Office. I shall ask the MIO to report on any failure to fix appointment and/or attending. Costs 38.I ordered costs of the CMC to be in the cause, and costs on the expert evidence and F&B Particulars be borne by the Defendant. 39.The hearing has taken 45 minutes. For the ease of the Taxing Master, I apportion 15 minutes on the CMC, and the remaining 30 minutes on costs to be borne by the Defendant. 40.Lastly, I thank counsel’s helpful written submissions which much shortened the hearing.
Mr Michael Ozorio, SC, instructed by Messrs Cheng, Yeung & Co, for the Plaintiffs in HCPI 707/2008 Mr C K Wong, instructed by Messrs Chau & Associates, for the Plaintiff in HCPI 857/2008 and HCPI 858/2008 Mr S Y Chiu, of Messrs F Zimmern & Co, for the Plaintiffs in HCPI 933/2008 Ms Julia Lau, instructed by Messrs DLA Piper Hong Kong, for the Defendant in HCPI 707/2008, HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008 The 1st to 3rd Third Party in HCPI 707/2008, absent |
Cases cited in this judgment
Further hearings and rulings under HCPI 707/2008