IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 943 OF 2007
Before: Hon Fung J in Chambers
Date of Hearing: 11 June 2010
Date of Decision: 11 June 2010
D E C I S I O N
1. In this Pre-trial Review, the Plaintiff sought:
2. The Plaintiff is sueing his employer for damages for personal injuries arising out of a traffic accident during his employment.
3. The Defendant is a bankrupt, and leave has been granted to proceed against him. He is not represented.
4. The Defendant has not bought employees’ compensation insurance. The EC awards has been paid by the Employees’ CompensationAssistance Scheme. The Plaintiff will be seeking the same recourse against ECAS in this action.
5. The Plaintiff was instructed by the Defendant to drive a load of cartons in the lorry. The Plaintiff suspected overloading andrang the Defendant but was told to do it. The Defendant denied this call.
6. The Plaintiff did not stop in time and collided with a stationary vehicle in front. The Government Motor Vehicle Examiner foundthat the lorry was overloaded by 27.4%, and the braking efficiency was 77% (c/f minimum of 50% required by the law).
7. The Plaintiff pleaded guilty to overloading, and was offered no evidence on careless driving.
8. The Defendant’s case is that it was the Plaintiff’s responsibility to watch the load, and he was not responsible at all as hewas not there. The accident was probably due to careless driving by the Plaintiff.
9. In July 2009, the PI Master refused leave for the Plaintiff to obtain expert evidence on effect of overloading on driving. Mr Burke,for the Plaintiff, did not appeal then as he had not obtained the report.
10. In December 2009, Mr Burke obtained the report of Prof Lai, Chair in Physics and Material Science of the City University. ProfLai drew on the findings of MVE report, and opined that the overloading in question would have affected steering.
11. The appeal was filed in February 2010 out of time.
12. I dismissed the appeal as everything useful in the proposed expert report was drawn from the MVE report, and the comment on steeringis not directly relevant as the case is one of failing to stop in time. In any case, the MVE findings are obvious to a layman, andthe real issue in this case is whether the Plaintiff had reported a suspected case of overloading to the Defendant, his conduct thereafter,and corresponding the degree of contributory negligence.
13. The orthopaedic experts in here are the same as in the EC proceedings. Leave were given to call them in the EC trial. Prof Kumta,for the Plaintiff, was called, but Dr Wong See-hoi, for the Defendant, was not as the Defendant was impecunious by then. Given thatthe Defendant would not be calling Dr Wong here, and that HH Mimmie Chan DJ made a comprehensive account of Prof Kumta’s evidenceat the trial and Dr Wong’s opinion on paper, Mr Burke agreed that subject to the further direction of the trial judge, the medicalevidence could be admitted without calling the maker thereof. There is no need to call the transcript of the EC trial either.
14. The same surveillance evidence was adduced by the maker at the EC trial, with notes by the EC judge. It is agreed that the videocould be admitted without calling the maker.
15. Mediation and/or meeting with ECAS were mooted. The Defendant refused as he had no time. I asked Mr Burke to enquire on the eligibilityof the Defendant for NIMPS, and ECAS’ stance on mediation if NIMPS were available, and to report within 3 months.
16. The Defendant is disputing quantum, and there is really no point to ask him to file any Revised Answer on damages in person.
17. I ordered that unless the case is set down in the Fixture List (2 days reserved) within 3 months, the action be struck out.
18. Costs of the PTR (45 mins) be in the cause, except there be no order as to costs in the appeal on expert evidence (15 mins) andthe expert report on liability.
Mr P Burke of Messrs Burke & Company, assigned by the Director of Legal Aid, for the Plaintiff
The Defendant in person, Present