Yang Yee Man, The Administratrix of the Estate of Lam Lok Kin, Deceased v. Leung Hing Hung

HCPI 443/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 443 OF 2010

------------------------

BETWEEN

------------------------

Before : Hon Bharwaney J in Chambers (Open to Public)

Date of Hearing : 14 December 2012

Date of Decision : 14 December 2012

--------------------

D E C I S I O N

--------------------

1.The first matter I deal with at this CMC is the issue of the defendant’s liability to the plaintiff. I had, at the commencement of this morning’s hearing, made some observations about the pleadings and the expert evidence in this case and I had suggested to Ms Wong of Messrs Clyde & Co, who appeared for the defendant, that she should take instructions to see whether or not the defendant was amenable, in the light of the matters I had raised, to interlocutory judgment being entered for damages to be assessed.

2.She has since taken instructions and she informs me that she has no instructions to consent to interlocutory judgment being entered.  In response to my invitation for her to make submissions why I should not actually do so, she made the point to me that if the car park had been properly designed then the accident would not have happened at all.

3.Since the enactment of the Civil Justice Reform, the courts have taken a far more proactive role in the conduct and management of cases, particularly personal injury cases.  The essential purpose of taking a proactive role is to facilitate the parties to bring their case to court for the expeditious and proportionate resolution of the real issues raised, and not to permit them to obtain a perceived tactical advantage by maintaining positions which are unsustainable.

4.In the furtherance of that underlying objective of the Civil Justice Reform, the taking of a more proactive role by the courts includes the court taking its own initiative, even if parties do not raise the matter themselves -- and I acknowledge that the plaintiff has made no application in this regard -- to see whether there are real issues to be tried, particularly on the question of liability in a road traffic accident case like the present one.

5.I turn up Order 18 rule 19 of the Rules of the High Court, just to remind the parties that:

“The court may, either of its motion or on application at any stage of the proceedings, order to be struck out or amended any pleading on the ground that it discloses no reasonable cause of action or defence, as the case may be, or it is scandalous, frivolous or vexatious.”

6.I invoke the powers conferred on me by that provision to strike out the defence on the grounds that it is frivolous and vexatious in the sense that it is obviously unsustainable.

7.This accident happened at about 1.20 pm on 31 August 2007.  It occurred in a car park at the Tai Pei Public Square Car Park in Tsuen Wan.  The defendant at the time was driving a medium goods vehicle and turned into the eastbound driveway of that car park. He then tried to make a right turn but found that he had insufficient space to do so.  He stopped his vehicle, drove it in reverse and, in the course of doing so, caused the offside rear bumper of his vehicle to strike and knock down a road sign.

8.The sign fell over and, unfortunately, struck the head of Mr Lam Lok-kin who happened to be in the vicinity of the sign at the material time, causing him serious injuries from which he subsequently died.

9.The defence pleaded makes out a case that the design of the car park was faulty.  Third party proceedings have been brought against the 1^st and 2^nd third parties in which the defendant has asserted that they are wholly or partly to blame for this accident because of the negligent design of this car park and the location of this particular sign at that part of the car park.

10.Directions were given for parties to exchange expert reports in the third party proceedings and the first report I have seen is the expert report of Timothy Runnacles and this is dated 3 January 2009.  He has since made two further reports in which he largely maintains the opinion he has given in his first report. 

11.At paragraph 11.1 of his first report he concludes that:

“The defendant cannot avoid some responsibility for the accident that killed Mr Lam Lok kin. He was driving the vehicle that caused the traffic sign pole to fall. If he had started the right turn from a somewhat different position and if he had been paying greater attention to right-hand side of his vehicle, rather than its opposite side, the accident might have been averted.”

12.Then he goes on to say that the third parties must share the blame.

13.In the light of the fact of the accident, the defendant’s conviction of careless driving I respect of this occurrence, and the absence of a plea that the conviction was erroneous, I conclude that the defence is obviously unsustainable.  Even if the accident would not have happened if the car park had been properly designed, the defendant is not without blame: if he had exercised reasonable care his vehicle would not have collided with the wrongly positioned parking sign.  It is not necessary for the plaintiff to prove that the defendant is entirely to blame for the accident: even if a defendant is only partly to blame, or even only minimally to blame, as compared with other potentially liable tortfeasors, that is sufficient for interlocutory judgment for damages to be entered against that defendant.  The reason for that, of course, is that the liability in this type of case is joint and several.

14.For these reasons, I strike out the defence filed and enter interlocutory judgment for damages to be assessed against the defendant. 

15.As indicated this morning, I want to deal with the third party proceedings first, in order to resolve the issue of the liability of the third parties and to ascertain whether there is any need for the third parties, or either of them, to participate in the assessment of the plaintiff’s quantum of damages.

16.To that effect, I have already earmarked some dates in April 2013 for the trial of the third party proceedings and I propose that the plaintiff’s case management conference this morning be adjourned to the conclusion of that trial in order to see to what extent the third parties need to be further involved in the assessment of the plaintiff’s damages.

Ms Helene Ho, instructed by Zeke Mol & Co., for the plaintiff

Ms L Y Wong, of Clyde & Co., for the defendant

Ms Patty Li, SGC, of the Department of Justice, for the 1^st third party

Ms Virginia Lee, of Woo, Kwan Lee & Lo, for the 2^nd third party