GURUNG LACHHAMAN v. GURUNG CHANDRA PRAKASH T/A METRO-CONSTRUCTION CO ADVANCE SPECIALIST TREATMENT ENGINEERING LTD AND OTHERS

HCPI 672/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 672 OF 2008

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BETWEEN

GURUNG LACHHAMAN Plaintiff
and
GURUNG CHANDRA PRAKASH trading as
METRO-CONSTRUCTION COMPANY
ADVANCE SPECIALIST TREATMENT
ENGINEERING LIMITED
1st Defendant
(香港雅士達-百利加有限公司)
LEIGHTON CONTRACTORS (ASIA) LIMITED
2nd Defendant
and KUMAGAI GUMI COMPANY LIMITED
trading as LEIGHTON – KUMAGAI
JOINT VENTURE
3rd Defendant

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Before: Hon Fung J in Chambers

Date of Hearing: 18 March 2010

Date of Decision: 18 March 2010

Date of reasons for Decision: 22 March 2010

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REASONS FOR DECISION

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1. At the hearing I held it is reasonable for the Defendants not to proceed further with mediation and they be not at risk of any adversecosts order.

2. The Plaintiff had an accident at work and complained of lower back pain. He alleged inability to return to the pre-accident joband had been unemployed.

3. Liability had been admitted and the case was set down for assessment in the Running List.

4. Upon discharge of Legal Aid, the Defendants applied for transfer to the Fixture List.

5. At the hearing on 28 October 2009, I explained to the Plaintiff the availability of the New Insurance Mediation Pilot Scheme (“NIMPS”)sponsored by the Hong Kong Federation of Insurers and administered by the Hong Kong Mediation Council (the mediation arm of the HongKong International Arbitration Centre). Under NIMPS, the mediator is paid for by the fund, and the unrepresented litigant may alsoreceive an allowance for independent legal advice and medical report, if necessary. The Plaintiff indicated willingness to try NIMPS.

6. Thereafter, the Plaintiff reneged on his indication and refused to mediate.

7. Another hearing was held on 17 December 2009 and further explanation was given to the Plaintiff. He again indicated willingnessto try NIMPS.

8. Since then, the parties had a pre-mediation meeting with the mediator. However, the Plaintiff requested that further MRI be conductedand the mediation be postponed.

9. At this hearing, the Plaintiff applied for further MRI report. However, he is unable to show any medical advice to support thenecessity to reopen the medical evidence.

10. In the event, I refused MRI examination and ordered there be no further medical evidence without leave of the Court, and the casebe set down for assessment before a Master with 2 days reserved, and that the Defendants be not at risk of any adverse costs orderfor not proceeding further with mediation. There is of course no such cover against costs for the Plaintiff.

11. On 17 December 2009, I ordered in the event that the Plaintiff changed his mind again and refuse to enter into mediation, he shallpay the costs of that hearing to the Defendants summary assessed at $3,000.

12. Although the Plaintiff did see the mediator, in fact he was not willing to enter into mediation in setting the condition of MRIexamination. Now that MRI examination is refused, I make the order nisi that he should bear the costs.

13. By the same token, the Plaintiff should pay the costs nisi of this hearing, summary assessed at $2,000.

14. The order nisi will be made absolute unless the Plaintiff makes the application to vary it within 14 days.

15. I commend the Defendants’ efforts in attempting mediation.

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

The Plaintiff in person, present

Ms K H Teh, of Messrs Deacons, for the Defendants