Chan Ka Ki v. Lau Sin Ting and Another

HCPI 900/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 900 OF 2011

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D E C I S I O N

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1.This is a tragic case of a road traffic accident that occurred in the early hours of 29 January 2009

2.I say it is a tragic case because the accident resulted in the deaths of two passengers and injuries being sustained by the other passengers, including the driver of the vehicle, and the plaintiff in this case, Chan Ka Ki, who suffered very severe injuries rendering her tetraplegic.

3.An unusual feature of this case is that the insurance cover for the vehicle in question had lapsed some days before the accident occurred, with the result that, at the material time of the accident, the driver of the vehicle, the 1^st defendant, who lost control of the vehicle and collided with a stationary van, was uninsured.

4.It is for this reason that the Motor Insurers’ Bureau (“MIB”) came to participate in these proceedings and, rightly, applied to be joined and, rightly, was joined by Master K K Pang as the 2^nd defendant on 5 January 2012, who gave leave, at the same time, to the plaintiff to amend the writ of summons.

5.The grant of leave to amend the writ of summons in such cases is given to enable the plaintiff to add MIB as an additional defendant.  It is not given to enable the plaintiff to pursue a direct cause of action against MIB.  There is no such cause of action before a relevant judgment has been obtained against an uninsured driver and which is unsatisfied.  

6.Some time thereafter, interlocutory judgment was entered against the 1^st defendant driver and that interlocutory judgment remains on file.  MIB, pursuant to the leave granted to join in the proceedings, filed a defence, not contesting liability, but raising the issue of contributory negligence by asserting that the plaintiff failed to wear a seat belt at the material time, and asserting, further, that, if she had done so, her injuries would have been considerably lessened.

7.Of course, I make no findings in respect of these assertions, which must be the subject matter of the trial.  I am informed that, at the material time, there were four passengers in the rear seat of the accident vehicle, which was a rather old Honda Civic, and, apparently, this vehicle was only fitted with three seat belts, and rightly so, because it was licensed to only carry three passengers in its rear seat.  Chan Ka Ki was one of the four passengers.

8.I say no more about this, and move on to deal with the conundrum that has been created by, on the one hand, the existence of an interlocutory judgment against the 1^st defendant for damages to be assessed and, of course, the effect of that is that all issues of liability have now come to an end, and that the only remaining issue in the proceedings would be one of assessing the quantum of damages.

9.On the other hand, that interlocutory judgment sits in the court file together with the defence of MIB asserting an issue of liability and alleging that the damages ought to be reduced on account of contributory negligence.  It is because of this conundrum that Master Ng rightly referred this matter to me, and she framed this question for my decision, namely, whether the pleadings on liability in the present proceedings should be allowed to stand in view of the interlocutory judgment or whether the interlocutory judgment should be set aside.

10.I have been informed that the 1^st defendant driver has taken no part in the proceedings from the time of its commencement.

11.To my mind, the answer to this problem is actually fairly simple.  Ever since the leading judgment on point was given by the Court of Appeal in Gurtner v Circuit [1968] 2 QB 587, it has been common practice for MIB to be allowed to be joined in cases such as this where the driver is uninsured and where the liability will fall either on MIB, or on the insurer concerned under the Domestic Agreement with MIB.  The reason for allowing their joinder is clear and, if I may borrow the words of Lord Denning in that decision, at p.596D-E :

“It is thus apparent that the Motor Insurers’ Bureau are rightly concerned in the outcome of the action. They are directly affected not only in their legal rights but also in their pocket. They ought to be allowed to come in as defendants. It would be most unjust if they were bound to stand idly by watching the plaintiff get judgment against the defendant without saying a word when they are the people who have to foot the bill.”

And then he went on to say, at p.596G :

“On being added, they should be entitled to defend the action and to exercise all the rights of the defendant driver therein.”

12.I think it is good practice for masters, when they allow MIB, or even a motor insurer, to be joined in proceedings and to participate in proceedings, to expressly spell out that the joinder is to enable them to participate on either some, or all, issues of liability and quantum.  Of course, there may be some cases where the participation ought to be confined to quantum or to some other discrete issue but, in the majority of cases, I think it is right to allow MIB to be joined, and to be entitled to defend the action and to exercise all the rights of the defendant driver in the action.

13.If, after joinder, MIB has served a defence to liability or has asserted that the plaintiff was guilty of contributory negligence, it is no longer possible for the plaintiff to enter default judgment against the driver.    

14.I now turn to the orders I should make in the present case.  I make a direction to that effect that the MIB is entitled to defend the action and to exercise all the rights of the 1^st defendant in the defence of these proceedings.  I also order that the interlocutory judgment entered against the 1^st defendant be set aside.  I also make an order that the costs of today’s proceedings be in the cause, with certificate for counsel.  I further direct that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Mr Patrick Lim, instructed by Szwina Pang, Edward Li & Co., assigned by Director of Legal Aid, for the plaintiff

1^st defendant, in person, absent

Ms Marina Fung, of Mayer Brown JSM, for the 2^nd defendant