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

Case No.HCPI 707/2008
Court
High Court CFI
Date05 Feb 2010
JudgeHon Fung J
Case Document
100%Judiciary

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

  LEUNG PING YEUNG 1st Plaintiff
  LEUNG PING YEUNG, the administrator
of the estate of YAU WAI KUEN, deceased
2nd Plaintiff
  LEUNG YUEN TING MARIA 3rd Plaintiff
  LEUNG YUEN WAI DOROTHY 4th Plaintiff
  LEUNG WONG CHING WAN 5th Plaintiff
 
  LEUNG WONG CHING WAN, the
administratrix of the estate of
LEUNG YIU WAI STEPHEN, deceased
6th Plaintiff
  LEUNG WONG CHING WAN, the
administratrix of the estate of
LEUNG TING CHUNG SAMSON, deceased
7th Plaintiff
  CHENG YIN LING 8th Plaintiff
  LAM KA CHUEN 9th Plaintiff
  LAM CHIN SING, the administrator of
the estate of LIU KUEN TAI, deceased
10th Plaintiff
  LEUNG YUK YING BARBARA 11th Plaintiff
  MAK YAN SING 12th Plaintiff
  and
  JETOUR HOLIDAY LIMITED Defendant
  and  
  SAKKARA TRAVEL GROUP 1st Third Party
  SAKKARA TOURS 2nd Third Party
  SAKKARA TRANSPORTATION 3rd Third Party

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

  CHEUNG SUK YUEN Plaintiff
  and  
  JETOUR HOLIDAY LIMITED Defendant

____________

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

  CHEUNG SUK YUEN, the administratrix
of the estate of LEUNG KWOK KI JOHNSON,
deceased
Plaintiff
  and  
  JETOUR HOLIDAY LIMITED Defendant

____________

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

  CHAN TING KWOK TERRENCE,
the executor of the estate of
CHAN KER LOK KEROL alias
KEROL KER LOK CHENG, deceased
1st Plaintiff
  CHENG GOR YIN KELSEY
(lately a minor but now full age)
2nd Plaintiff
  and  
  JETOUR HOLIDAY LIMITED Defendant

____________

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:

HCPI 707/2008

(1)  To adduce expert evidence on liability;

(2)  To adduce expert evidence from an insurance broker;

(3)  Request for Further and Particulars of the Statement of Claim;

(4)  To adjourn for service on the Third Parties outside jurisdiction;

HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008

(5)  To consolidate with HCPI 707/2008, or alternatively to stay HCPI 857/2008, HCPI 858/2008 and HCPI 933/2008.

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:

“10.  The function of the expert is to furnish the Court with the necessary scientific criteria and assistance based upon special skill and experience not possessed by layman to enable the judge to interpret the factual evidence of the accident. The expert is not entitled to conclude from statements of eye witnesses that the defendant (or the plaintiff) was going at a certain speed at a certain point, which are facts for the trial judge based on evidence he accepts and inferences on the primary facts found (see Liddell v Middleton [1996] PIQR P36 per Stuart-Smith LJ at p. 42).

11.  Matters such as the speed that the plaintiff was travelling and the driver’s responses are matters for the judge to find after hearing the evidence and they are not matter which the trial judge would need expert evidence to assist him (see Tong Ho Wing v Wong Fuk & Ors HCPI 1369/1999per Suffiad J at p. 11).

12.  No amount of expert evidence is going to tell the trial judge anything approaching precision the approach speed or impact speed or the distances of the vehicles (see Fong Sai Ho v Hairfast Co Ltd & Ors HCPI 1199/2003 (4 March 2005) per DHCJ Carlson at para. 16).

13.  In some cases, expert evidence is necessary and desirable to assist the judge in reaching primary finding of facts such as speed of the vehicles, e.g. where no witness is capable of describing what happened and deductions have to be made from circumstances such as position of vehicles, road marks, damage to vehicles (see Liddell v Middleton at p. 42).”

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:

(1)  Those which are matters of evidence and not material facts: under paras. 5, 6, 9, 12, 18, 23(ix), 23(xxi);

(2)  Those which are points of law: under paras. 23A, 23B, 23C.

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:

“21.  Mediation is a voluntary process and a party is not forced to undergo mediation, but unreasonable refusal to attempt mediation (especially when the other party has made the request) is relevant conduct in litigation in the exercise of the discretion on costs.

22.  So often has it been suggested in personal injuries that the stage has not been reached for mediation cases because medical evidence has not been obtained to assess a fair and adequate settlement. It is really Catch-22 to say that mediation should not be explored as the proceedings have already reached an advanced stage. It is better late than never, especially when time, expenses and uncertainty of the trial can be avoided.

23.  To say that mediation is not suitable because the issue of liability is in dispute is yet again Catch-22 sub-paragraph 1. It begs the question of what mediation is, to wit, without prejudice negotiations assisted by a neutral third party to resolve disputes. Courts in England as well as in Hong Kong have observed that skilled mediators are able to achieve results satisfactory to both parties in many cases quite beyond the power of lawyers and courts to achieve (Dunnett v Railtrack Plc [2002] 1 WLR 2434 (CA); Supply Chain & Logistics Technology Ltd v NEC Hong Kong Ltd HCA 1939/2006).”

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.

  (B Fung)
  Judge of the Court of First Instance
High Court

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