CHAN YUET LUI REBECCA v. THE RITZ-CARLTON LTD. AND OTHERS

HCPI 565/1999, HCPI 570/2000
& HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.565 OF 1999

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AND

PERSONAL INJURIES ACTION NO.570 OF 2000

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AND

PERSONAL INJURIES ACTION NO.658 OF 2000

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(Consolidated pursuant to the Order of the
Honourable Mr Justice Seagroatt dated the 21^st day of July 2000)

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D E C I S I O N

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1. This is an application made by Ming An Insurance Co. (HK) Ltd (“Ming An”), being the 3^rd defendant in the consolidated actions herein, by Summons dated 17 November 2005for directions.

2. This matter has a chequered history to it, and it is essential to know the background leading to this application.

Background

3. On 9 March 1998, there was a car accident in which the two plaintiffs in the consolidated actions, being Tse Ngan Heung (“Tse”) and Chan Yuet Lai Rebecca (“Chan”) were injured by a car driven by Lo Sin Tak (“Lo”).

4. Lo was at the time of the accident a car-jockey employed by a hotel, being the Ritz-Carlton Ltd (“the Hotel”).

5. The car driven by Lo at the time was owned by Parklane and rented to the Hotel.  The car was insured by Ming An.

6. As a result of the accident, Tse and Chan instituted actions for damages for personal injuries against Lo and the Hotel, but not Parklane.  Ming An was allowed to join in the actions as the 3^rd defendant to protect its interests because it had potential liabilities and obligations under the MIB Agreement since Lo was an uninsured driver and a person of little means.

7. After the trial on the issue of liability only, Seagroatt J, on 18 January 2001, ordered Interlocutory judgment (with damages to be assessed) in favour of Tse and Chan against Lo but found the Hotel not liable.

8. On 23 November 2001, Ming An appealed against Seagroatt J’s finding the Hotel not liable but the appeal was dismissed by the Court of Appeal.

9. On 7 January 2002, damages were assessed by Jackson J in respect of Chan at totally $19,243,576 against Lo.  This total sum was inclusive of $51,935 being interests on PSLA and $302,754 being interests on Specials.

10. On 10 January 2002 damages were assessed by Master Chan in respect of Tse at totally $1,001,775 against Lo.  Again this total sum was inclusive of $18,315.07 being interests on PSLA and $8,505.93 being interests on Specials.

11. Between 3 June 2002 and 8 January 2003 Ming An paid to Chan and Tse the total amounts of damages assessed in their favour against Lo.

12. On 4 December 2002, upon further appeal by Ming An on the issue of liability, the Court of Final Appeal allowed Ming An’s appeal and held that the Hotel was also (together with Lo) liable to Tse and Chan for the accident.

13. Prior to the decision of the Court of Final Appeal, Chan and Tse had assigned their rights in their claims in the consolidated actions to Ming An by assignments on 25 September 2002.

14. The Hotel was notified and provided with copies of such assignments together with notice under section 9 of Law Amendment and Reform (Consolidation) Ordinance on 11 December 2002.

15. On 19 December 2002 the Hotel paid Ming An $20,245,351 being the aggregate of $19,243,576 assessed as total damages in favour of Chan and $1,001,775 assessed as the total damages in favour of Tse.  The Hotel also paid a further sum of $72,107 as representing interests on the two judgment sums in favour of Chan and Tse calculated at 8.125% from 4 December 2002 (being the date of the judgment by CFA) to 19 December 2002 being the date of payment by the Hotel.

16. Not contented with that, Ming An claims that it is also entitled to recover post-judgment interests from the Hotel as the assignee of Chan and Tse.

17. In this respect, Ming An took out a summons for “reimbursement” for the outstanding payment of interests.  That application was heard on 25^th April 2003 but was dismissed by Jackson J.  Written Reasons were later given on 5 May 2003.

18. Ming An appealed against that decision by Jackson J and the appeal came before the Court of Appeal on 17 December 2003.  That appeal was adjourned sine die (inter alia) upon indication by the Court of Appeal that interlocutory judgment had not yet been formally entered against the Hotel in favour of Tse and Chan pursuant to the judgment of the CFA of 4 December 2002.

19. Thereafter, interlocutory judgment was formally entered against the Hotel in favour of Chan and Tse on 12 June 2004.

The present application

20. By this Summons dated 17 November 2005, Ming An, as the assignee of Chan and Tse, seeks direction to proceed to assessment of damages pursuant to the Interlocutory judgment entered against the Hotel and pursuant to Order 37 rule I of the Rules of High Court.

21. Directions having been given (on 20 January 2006) that the Hotel be bound by the assessment of damages made by Jackson J and Master Chan, in favour of Chan and Tse respectively in this matter, the hearing itself became a preliminary hearing, pursuant to those directions, to determine whether the Hotel would be liable for the interests now claimed by Ming An.

22. The stance taken by Ming An is that the Hotel is liable to Ming An (as assignee) for interests in two respects :

(a)	for the amount of $592,072.59 (details of which appears in paragraph 3(p) of the skeleton submission of counsel for Ming An) being post-judgment interests which Ming An was obliged and compelled to pay and did pay Tse and Chan under both final judgments against Lo; and
(b)	for post-judgment interests from the date of judgment against Lo up to the date of payment by the Hotel to Ming An (i.e. 19 December 2002) and from that date to the present (computation of such interests were handed to court encompassing 3 different scenarios for the calculation of post-judgment interests which range from $1,806,680 to $1,319,881).

23. At all times it was accepted by Ming An that the Hotel had paid Ming An the principal amounts of the assessments made by Jackson J and Master Chan in favour of Chan and Tse respectively and that the Hotel had also paid Ming An $72,107 as being interests from 4 December 2002 (date of judgment of the CFA) to 19 December 2002 (date of payment by the Hotel).

24. In bringing this application, Ming An has stressed the fact that this application is brought under its entitlement as an assignee of Chan and Tse, alternatively under its Order 16 notice, which is a fall back position.  In so doing, Ming An has expressly declined to bring a restitution action despite that suggestion having been made to it by the Court of Appeal during the hearing on 17 December 2003 when Ming An appealed from the decision of Jackson J.

Decision

25. As can be seen from the background leading up to this matter, this matter is complicated not only by the fact that Ming An is not the normal kind of plaintiff in a personal injuries action, but its entitlement springs from being an assignee of Chan and Tse having paid off the two of them.  It is also further complicated by the fact that the subject of this dispute is not the principal amounts assessed but only post-judgment interests.  The third complication arise from the fact that the Hotel was only adjudged to be liable by the CFA, needless to say therefore, some time after judgment (both interlocutory and final), had been entered against Lo.

26. In pressing for its claim for post-judgment interests, Ming An is faced with difficulties arising from such complications, which cannot be said to be simply of a technical nature.

27. The first and probably the most crucial of such difficulties for Ming An to overcome is that as yet there is no final judgment against the Hotel.  Despite there being no final judgment against the Hotel, Ming An is seeking post-judgment interests against it.

28. Secondly, Ming An accepts that the principal amounts assessed as damages (which include pre-assessment interests) in respect of both Chan and Tse have already been paid by the Hotel to Ming An on 19 December 2002.  Despite such concession, Ming An attempts to quantify its claim for post-judgment interests for the period after 19 December 2002 on the basis of the principal sums assessed in both cases (at least for Scenario 2, albeit giving credit for the principal amounts paid).

29. Having identified some of the difficulties faced by Ming An in pressing for such a claim, I have come to the conclusion, not without considerable difficulty, that I am unable to entertain this claim by Ming An for the following reasons.

30. Even as matters stand at present, there is only interlocutory judgment entered against the Hotel on 12 June 2004, and even that only at the insistence or reminder of the Court of Appeal during the hearing on 17 December 2003.

31. I do not see how Ming An can claim for post-judgment interests from the Hotel before there is a final judgment against the Hotel.

32. In this respect, the suggestion by counsel for Ming An for me to exercise the discretion provided for by section 48(3) of High Court Ordinance, by ordering that interests is to run from the date of the judgment given against Lo is quite unreal.  If that is done, it will be done solely for the purpose of enabling Ming An to claim for post-judgment interests which otherwise it will not be able to.  I decline such suggestion.

33. Turning now to deal with the $592,072.59 which was interest paid by Ming An to Chan and Tse but not repaid to it by the Hotel.

34. In so far as this amount is concerned, it was post-judgment interest which Ming An had to pay by reason of having taken time to pay off Chan and Tse for the assessed amount of damages.

35. I would have had the same sentiments as expressed by Jackson J in the penultimate paragraph of his written Reasons given in this matter on 5 May 2003, however, the stumbling block standing in that way of that is that Ming An has refused to bring a restitution action but insists on going about this matter in the way that it has, namely a claim for post-judgment interests.

36. In choosing to claim for post-judgment interests rather than to bring a claim for restitution, Ming As has put even this amount of $592,072.59 out of its reach.

37. Finally, I accept the suggestion of Mr Bharwaney, counsel appearing for the Hotel, that Ming An, in pursuing the matter in the way that it has chosen, is effectively attempting to gain a windfall which it is not entitled to.  The simple reason for that is because as the assignee of Chan and Tse, Ming An could not have gotten more than what Chan and Tse would have been entitled to.  What Ming An is now seeking is far beyond what Chan and Tse would have been entitled to.

38. For these reasons it is clear that Ming An would have been entitled to a claim for restitution and had that been brought, Ming An likely would have recovered the $592,072.59 or, if not that entire sum, at least a part of it depending on the defence raised to such a claim for restitution by the Hotel.

39. As matters now stand, and for the reasons given above, I come to the conclusion that Ming An’s claim against the Hotel must be dismissed.

40. Accordingly, this application brought by Summons dated 17 November is dismissed with costs (order nisi).  The costs order nisi covers all of the hearings which took place as a result of the Summons.

HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 658 OF 2000

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J U D G M E N T

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1. This is a serious case of unnecessary satellite litigation involving an unreasonable amount of work and generating grossly disproportionate costs on the part of lawyers. On this topic alone I remind the lawyers concerned of pages 15 and 16 of my judgment of 31 October 2000 in respect of an interlocutory hearing in this same action. Amongst other comments I made was the following:

"In the context of the question of cost, about which I am to say a little more, I think these parties have wasted enough costs so far, that any Court would feel itself obliged to take steps to prevent further wastage."

2. The two Plaintiffs in the consolidated action obtained judgment against the second Defendant on 18 January 2001 after a trial before me. They were pedestrians who had been injured by a Mercedes car driven negligently by the second Defendant which went out of control and mounted the pavement. The only issue at the trial on liability was whether the second Defendant was acting within the scope of his employment and therefore as servant or agent of the first Defendant by whom he was actually employed. If he was so acting then the judgment would be against the first Defendant as well and its insurers would be obliged to meet the judgment under the policy of insurance. The involvement of the third Defendant was as insurer concerned (being the insurer of the Mercedes vehicle which was on hire to the first Defendant) and on behalf of the M.I.B. It was accepted that if the second Defendant was not driving in the course of his employment then the M.I.B. would satisfy the judgment under the domestic agreement in respect of uninsured motorists. To ensure that the M.I.B.'s interest was properly protected by evidence and argument in support of the case against the first Defendant, the third Defendant was joined in the action.

3. It is not without significance that at some earlier stage the Plaintiffs (or at least one of them) had commenced an action against the first Defendant and on advice had discontinued that. The first Defendant had been brought back into the scheme of things by the Plaintiff(s) at the specific request of the M.I.B. on an undertaking that the M.I.B. would give an indemnity in respect of the costs involved.

4. The position as far as the M.I.B. was concerned at the time the action came on for trial before me, was that the Plaintiff(s) had done what was requested of them by the M.I.B. so that it was in a position to protect its interest by trying to establish liability on the part of another insurer (i.e. that of Ritz-Carlton, the first Defendant). No other potential tortfeasor or insurer featured.

5. I held that the first Defendant was not liable and therefore the M.I.B. was liable to satisfy the Plaintiff(s)' judgment. The Court of Appeal upheld this decision on 23 November 2001.

6. The assessment of the first Plaintiff's damages was handed down by Jackson, J. on 7 January 2002. In accordance with the Rules, interest at judgment rate accrued on the full amount of the judgment until payment. The third Defendant had not asked for a stay of execution pending any appeal to the Court of Final Appeal.

7. It appeared that there was a number of errors in the figures in the judgment which caused the Defendant's solicitors to write seeking agreement to the amount of the judgment being amended. This was quickly agreed to and the sum of $139,465 was deducted leaving a net judgment of $19,243,576 damages.

8. On 21 February 2002, the judgment not having been satisfied, the Plaintiff's solicitors wrote to the second Defendant, the third Defendant's solicitors and to the solicitors for the M.I.B. requesting satisfaction of the judgment. Over one month had elapsed since the amount of the judgment had been amended.

9. Ip Kwan, solicitors for the third Defendant, then raised a technical point which should have been raised earlier. It made no difference to the M.I.B.'s liability to satisfy the judgment nor to the fact that interest would accrue at judgment rate on the amount of the judgment debt. They sought a further amendment to the judgment however.

10. At the same time Ip Kwan sent to the Plaintiff's solicitors a copy of an assignment for the Plaintiff to sign. This was an assignment of the Plaintiff's rights in respect of the judgment debt to the M.I.B. upon the M.I.B. satisfying the judgment and costs.

11. What occasions considerable surprise is this. The basis upon which the M.I.B. had agreed that it was liable to satisfy the judgment and costs if Ritz Carlton escaped liability, had been established even before I gave judgment on liability. It had been the reasoning behind the application of the third Defendant to be joined in the action. It was the reason for the Plaintiff agreeing to rejoin the first Defendant in the proceedings upon the M.I.B.'s undertaking as to costs. I do not understand why the assignment, appropriately drafted to reflect the state of play, could not have been drawn up and put to the Plaintiff before my judgment. If not then (for some reason which I cannot fathom), it could have been dealt with before the appeal against my judgment was heard by the Court of Appeal. As almost a last endeavour it could have been dealt with before Jackson, J. made the assessment of damages. At any of those stages it would have involved minimal work, documentation and skill. The assignment is standard. The Plaintiff wanted her damages. She was entitled to recourse against the M.I.B. She had complied with its requirement to pursue the first Defendant. It was inconceivable that she would not assign her rights of recourse against any defendant, existing or potential, in exchange for the satisfying of her judgment.

12. Somehow the lawyers for both parties contrived to turn an extremely simple, uncomplicated exercise into the inflated issue before me. This litigation had experienced a convoluted and complex earlier life.

13. Provided for my consideration was a bundle of 271 pages, the vast majority of its content being irrelevant. Many of its contents have been duplicated within the bundle. Its existence is proof of waste.

14. Any practitioner holding himself or herself out as experienced in personal injury cases is aware of the M.I.B. agreements. They include the form of assignment referred to. In the assignment supplied by Ip Kwan, the Plaintiff's solicitors objected to and struck out clause 7. I think that it was entirely reasonable to do so. There is no reason why the Plaintiff should have to pay the costs involved in checking through the document by her solicitor.

15. However I can see no justification for striking out clause 2 and rewriting it. It is a standard form of provision. It is of course clear that in this case, Ming An, on behalf of the M.I.B., wanted to protect the position in relation to any action to be pursued against the first Defendant. I do not think Miss Kwan's contention that there might be some other tortfeasor yet to be ascertained is realistic.

16. There then followed an extensive exchange of correspondence and telephone discussions. Ip Kwan wrote on 28 February 2002 saying that payment in satisfaction of the judgment was ready to be made but they required the signed assignment first. That exchange of correspondence was in my view entirely unreasonable on both sides.

17. I consider that it did not matter which version was signed, subject to the exclusion of the costs provision. The Plaintiff's solicitor is a very able and experienced practitioner yet for some reason which I have been quite unable to understand, instructed counsel to consider the assignment. He proposed draft amendments to no good purpose, but as I have indicated they were inconsequential.

18. Eventually after discussion about the interest on the judgment debt, and costs, a slightly amended form of assignment was signed by the Plaintiff. The dispute over interest and costs raged on. Ip Kwan contended that delay in payment of the judgment debt had been occasioned by the Plaintiff's (or her solicitors') obstinacy in delaying signing the assignment. Furthermore in respect of the provision for payment of costs, Miss Kwan contended that in her telephone discussion with Miss Pang the latter had more or less agreed that she would charge her costs against the interest paid. I prefer Miss Pang's version of this conversation. It is recorded contemporaneously and is consistent with a follow-up letter of confirmation. Knowing that this letter of confirmation in particular weakened her own version of events, Miss Kwan said that she had overlooked the material paragraph in her overall concern with the matter. Given the extent to which arguments over costs raise the adversarial stakes in this region, I find that explanation unconvincing.

19. This then is the somewhat extravagant series of events preceding the application before me for the interest and costs, the actual judgment debt having been paid on or about 3 June 2002.

20. The Plaintiff is entitled to interest on the damages at Judgment rate from 30 January 2002, being the date on which the Court revised the figure downwards. Miss Kwan had advanced in correspondence some odd formula as the basis of a substantially reduced amount for interest which she has not sought to sustain before me. The figure for interest will have to be calculated. I cannot conceive that there is any further basis for dispute. For the avoidance of debt it runs from 30 January 2002 to 4 June 2002 being the date on which the actual funds were likely to be credited. There is no claim for interest on interest. Had there been Miss Kwan would have been hard put to resist it. I allow the interest for the period specified in rejection of Miss Kwan's contention because she should have accepted the amended assignment. It in no way derogated from the M.I.B.'s entitlement. More importantly however, there had been the earlier opportunities for dealing with the mater which I have identified. Accordingly the matter seems to have been left almost as afterthought.

21. The costs aspect is a much more vexatious one. There was no justification for counsel to be instructed in this, let alone for him to re-draft provisions in the assignment. Had the matter arisen at any of the earlier stages I referred to, it would have occupied minimal time, effort and thought so that any costs would have been absorbed in the costs of the action itself, by lawyers acting reasonably.

22. I asked both parties to submit a written statement of the costs they would claim if either of them were to succeed. The Plaintiff's statement of costs totalled $75,000. That bald statement conveys nothing of the astonishment it caused to me. $75,000 for what, I asked myself? The sum is made up of $30,000 solicitors costs and $45,000 counsel's fees.

23. This was a simple matter calling for the simplest of approaches. It cannot have involved more than two hours work for any experienced solicitor including the necessary attendance upon the Plaintiff. In the distant but not so dim past I was not without experience of such matters involving claims for and against the M.I.B. I regret to have to assert that fact but the claim for costs at this level is extravagant.

24. In short the claim for solicitors costs and counsel's fees is insupportable. It is small wonder that interested bodies outside the profession are cynical of the claimed "market forces" justification for the level of lawyers' fees.

25. Miss Kwan put forward a figure of $16,750 which although commendably offering a stark contrast, is nonetheless a little on the high side.

26. I regard the Plaintiff's solicitors as entitled to some costs being the necessary and reasonable costs involved in dealing with this simple assignment and having to come to Court to obtain an order in relation to interest. I allow $12,000. Counsel's fees are not allowed. It was quite unnecessary to instruct counsel at all and the fees claimed are grossly excessive. If this Plaintiff were under a disability the Court would be in a position to protect her damages from any reduction to meet these costs claimed by her lawyers. Regrettably it is powerless to do so.

Representation:

Mr Ashok Sakhrani, instructed by Messrs Szwina S K Pang & Co., for the Plaintiff(s).

Miss Corrina Kwan of Messrs Ip, Kwan & Co., for the 3rd Defendant.

HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 658 OF 2000

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ASSESSMENT OF DAMAGES OF THE PLAINTIFF

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1. By writ issued on 30 May 2000 the plaintiff, who was born on 7th March 1970 and who is now aged 31, claims damages for the injuries which she suffered on 9th March 1998 when she was struck by a motor vehicle whilst she was walking along the pavement outside the Police Headquarters in Queensway.

2. Liability in this case has already been determined in favour of the plaintiff against the 3rd defendant the insurer of the 2nd defendant. This is now the assessment of the plaintiff's damages.

3. At the hearing of the assessment the plaintiff was represented by Mr Ashor Sakhrani of counsel and the 3rd defendant was represented by Ms Josephine Pinto of counsel. The 2nd defendant was not represented and did not appear. The 1st defendant is no longer concerned in these proceedings.

4. I say at the outset that I have been greatly assisted by counsel in this matter both in oral argument and in written submission.

The plaintiff's injuries (general)

5. Immediately prior to the accident the plaintiff, (who was then an accountant aged 28, single, and living with her parents and siblings in public housing accommodation) enjoyed an active social and sporting life. She had a boy friend whom she planned to marry in due course and, insofar as her employment was concerned, she had professional ambitions, one of which was to become a chartered accountant.

6. As a direct consequence of the accident the plaintiff has been confined to a wheelchair for the rest of her life. She has lost her employment and her professional prospects; she can no longer participate in her previous social and sporting activities, and her marriage plans are gone, as are her hopes of one day starting a family.

7. In the accident the plaintiff suffered a head injury with diffuse axonal injury and she was rendered unconscious. On admission to hospital her Glasgow Coma Scale was 11/15. She suffered a fracture dislocation of T8/9 with paraplegia, fracture of the right femur, laceration of the left knee, and bilateral haemothorax. The fracture dislocation was treated by open reduction and internal fixation. The fractured femur was treated by internal fixation and the haemothorax by internal chest drainage. She was nursed in the intensive care unit for 6 days during which time she required intracranial pressure monitoring and mechanically-assisted ventilation. She was subsequently found to have bilateral vocal cord palsy and this was treated conservatively. She was hospitalised for 9 months and discharged home with a wheelchair. Once in this period she had to be treated for a breakdown of one of the wounds. She has had about 5 episodes of urinary tract infection.

8. The plaintiff's condition has remained substantially unchanged for the past 2 years. She is completely paraplegic with no volitional activity in any of her leg muscles. There are frequent involuntary spasms in the legs and there is constant pulling/stretching discomfort in both legs, extending proximally into her back. There is intermittent pain in her back. Recently she had some external rotation of the left hip. She has a scar over her scalp from the right frontal burr-hole and a long midline surgical scar over the thoracic region.

9. The plaintiff suffers an adjustment disorder with depressed mood but there is some disagreement as to whether she suffers Post-Concussional Syndrome.

Orthopaedic and Neurological Assessment

10. The Plaintiff suffers from the neurological consequences of the fracture dislocation of T8 and T9 vertebrae. The lower end of the spinal cord (from T8 to the sacral segments) and the spinal roots arising from this part of the spinal cord (cauda equina) are damaged. As a result, she experiences complete paraplegia, sensory disturbance below the groin and sphincter dysfunction.

11. The Plaintiff is still left with mild cognitive impairment as a result of the head injury.

12. No further treatment will be able to reverse these neurological impairments which are likely to be permanent.

13. The common late physical complications of paraplegia from a lower thoracic spine fracture dislocation include the following:

a) flexion contracture of the joints in the paralysed portion of the limbs (contracted joint in the flexed position).

b) spontaneous flexor spasms

c) pressure sores and skin eczema

d) urinary tract infection

e) weak or poor balance, and pain at the fracture site of the spine.

14. Flexion contracture of the lower limb joints impairs one's ability to stay comfortably in the wheelchair or to stay in a sitting position in bed. In the younger age group, it might decrease the capacity or preclude one from using the ambulatory type of orthosis.

15. The Plaintiff suffers mild contractures at the knees and ankles and frequent involuntary muscle spasms in both lower extremities. All modalities of sensation are absent below the T8 dermatomes bilaterally.

16. The neurologists are in agreement as follows:

(1) Further improvement in the Plaintiffs neurological functions is not expected.

(2) Patients with paraplegia are prone to a host of medical complications, chief of which are urinary sepsis and pressure sores. At present, the Plaintiff's medical condition is stable and well maintained. She has not had any pressure sores or urinary sepsis since returning home. Nevertheless, she ought to have the following medical care with a view to minimize the risk of complications:

(a) Medical consultation every 3 months by a neurologist, a neurosurgeon or an orthopedic surgeon

and (b) Urological consultation

(3) As her RGO no longer fits her properly, it needs to be revised at intervals. This should preferrably be arranged at her follow-up evaluation at the orthopedic clinic of the Duchess of Kent Children Hospital.

(4) There is no indication for regular physiotherapy or occupational therapy.

The neurologists are in slight disagreement in their assessment of the incidence of post traumatic syringomyelia.

Urological Assessment

17. Examination of the Plaintiff revealed that:

(a) The urinary system probably was of the balanced neurogenic bladder type. This has recently changed into the more spastic - upper motor neuron type. She has no voluntary voiding activities and requires the use of the intermittent catheterization program.

(b) There have been urinary tract infections related to the above.

(c) The upper tracts have not been compromised.

(d) Constipation and rectal incontinence requires the use of laxatives. The situation is exacerbated by the use of Ditropan; and

(e) Sexual Dysfunction.

18. The urologic disability secondary to her injury will be the requirement to use self intermittent catheterization, as well as the possibility of subsequent bladder and upper tract changes. These would include uninhibited contractions, which lead to incontinence and detrusor hypertrophy. These can also affect the upper tracts with hydroureter and/or hydronephrosis. Renal damage and stone formation are possible results of these conditions.

19. The Plaintiff's conditions are permanent. It is unlikely that her condition will improve. Rather, there is a risk of deterioration of the upper tracts from the uninhibited detrusor contractions and/or detrusor-sphincter dysynergia. The treatment objective is to prevent further deterioration of the urinary tract (from stones, infections and/or obstructions).

20. The schedule recommended for urologic follow-up is as follows:

* Physician's visit every 3 months;

* Urinalysis and Urine Culture every 3 months;

* Ultrasound of the kidneys and bladder every year;

* Serum creatinine every 6 months;

* Urodynamics every 2 years;

* Cystoscopy every 2 years; and

* Renal Scan every 2 years.

Psychiatric Assessment

21. Dr Chung See Yuen who examined the Plaintiff in 1999 and again, jointly with Dr Singer, in May 2001 concluded that her memory function was intact but that she was suffering from two mental disorders as follows:

(1) Adjustment disorder with mixed anxiety and depressive mood--- The mental disorder is characterised by the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s). The symptoms that she is having consist of depressed mood, bad temper, feelings of inability to cope, feelings of worthlessness, low self-esteem, lack of motivation, and anxiety when she is in the street or travelling in a motor vehicle. The disorder is directly caused by the trauma of the accident, the disability and the resultant psychosocial problems.

(2) Postconcussional disorder --- The disorder is an acquired impairment in cognitive functioning, accompanied by specific neurobehavioral symptoms, that occurs as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion. She is displaying some symptoms of postconcussional disorder consisting of headache, slow response and forgetfulness. The disorder is directly caused by the head trauma. The disorder is probably persistent. The disorder is mild.

22. Dr Chung also concluded that the Plaintiff requires psychotherapy. He suggested 12 one hour sessions related to the trauma of the accident and her acceptance of her disability, and 30 one hour sessions in the event of her suffering from the likely complications of paraplegia and her interaction with other people.

23. Dr Chung also recommends family therapy (10 one hour sessions) for the Plaintiffs parents and siblings who require counseling on how to alleviate their emotional disturbances and who, having received that therapy, will be better able to attend to the Plaintiff's needs.

24. Dr Singer agrees with Dr Chung that the Plaintiff is suffering from the adjustment disorder but he disagrees concerning the postconcussional disorder. He too recommends psychotherapy for the Plaintiff and her family but is of the opinion that fewer sessions are required.

Physiotherapy and Occupational Therapy Assessment

25. The assessment of David K W Siu is as follows:

(a) The Plaintiff suffers from paralysis of her lower limbs and is unable to walk. Although she is able to practise walking with the RGO and a walking frame for short distances, it is not a practical way of ambulation as she may fall and it tires her out easily. For all practical purposes, she has to rely on her wheelchair for ambulation.

(b) She has suffered a loss of sensation from below her waist level.

(c) She has spasms in her lower limbs. She is often wakened by the spasms during her sleep.

(d) She cannot pass urine voluntarily. Intermittent catheterization has to be carried out every four hours. There is leakage of urine in between catheterization and she has to wear a diaper. This causes a great deal of difficulty and embarrassment to her social life. It is also a significant obstacle to her employability.

(e) Contracture of the Achilles' tendon in her ankles. This leads to restricted flexibility of the ankle joints.

26. The quality of her life from now on will be determined by the relative independence and mobility level she achieves despite her disabilities. In concrete terms, her activities of daily living will depend on her wheelchair skills, her transferring skills, and a pair of intact upper limbs. These crucial factors are based on more fundamental elements such as the strength and flexibility of the upper limb musculature and soft tissues; sitting balance capacity, and flexibility in the paralysed lower limbs.

27. Physiotherapy is necessary for the maintenance of her physical wellbeing and relative independence despite her disabilities. The objectives are:

(1) To correct the contracture of the Achilles' tendon in her ankles and to maintain the flexibility of her paralysed lower limbs.

(2) To supervise her practice in walking exercise with the RGO. This is good exercise for her and is also good for her morale.

(3) To maintain the strength and flexibility in her upper limb muscles and joints.

(4) To improve her balance and transfer skills and enhance her safety in her activities of daily living.

28. Mr Siu recommends a physiotherapy programme as follows:

(1) Three sessions a week for 4 weeks;

(2) Weekly sessions for 12 weeks; and

(3) Monthly sessions for the rest of her life.

29. Long-term maintenance therapy is necessary to prevent the deterioration of her physical condition and to maintain her relative independence in her activities of daily living. This is especially relevant when she gets older with the adverse effects of ageing setting in on top of her disabilities.

30. Home visit physiotherapy is more suitable in view of her wheelchair bound status.

31. Stephen K S Wong essentially agrees with Mr David Siu in his assessment and in particular expresses the opinion that the Plaintiff requires physiotherapy to preserve her upper limb function and to prevent contractures.

32. However, if I have understood his opinion correctly, much of the beneficial effect of physiotherapy can be achieved from its administration not by (or only by) a physiotherapist but by those who care for the Plaintiff i.e. her family and home helper and that they require instruction (presumably from a physiotherapist) in the appropriate exercises designed for the Plaintiff's benefit.

33. Indeed he puts it this way:

"As the Plaintiff will be staying in her home and will be taken care of mainly by her parents and helper, the main goal for physiotherapy is to train the helper in those simple but essential physiotherapy procedures to help the Plaintiff. These procedures include passive movements to the joints, stretching to the essential soft tissues, and simple active routine home strengthening exercises.

To ensure that the helpers learn the home routine procedures well and correctly, they should be trained by the physiotherapist on a daily basis for one week at his clinic. The physiotherapist should also conduct home visits to observe how the helpers perform at the Plaintiff's home, and provide on-site training as well as corrections when necessary. The frequency of home visit after the training of the helpers in the clinic could be once a week for 3 weeks, followed by once every two week for 2 months.

The Physiotherapist's visit and training could then be reduced to once a month for 3 months and discontinued if the helper was performing her duty correctly. In this aspect I will disagree with the opinion by Mr Siu David that the Plaintiff requires monthly sessions of physiotherapy for the rest of her life."

34. Mr Wong then adds the caveat that, of course, any replacement helper would also have to undergo the training process.

Pain Suffering and Loss of Amenities

35. The extent of the injuries and disabilities suffered by the plaintiff are not in dispute. What is in dispute is whether the award under this head should be $1.7 million or $1.5 million and I have heard a great deal of reasoned argument from counsel about this. I am persuaded that by reason of factors in this case which aggravate the 'disaster', and which include the multiple injuries suffered; the psychiatric disability; the lost marriage and child bearing opportunities; the risk of future neurological and urological complications and the plaintiff's young age a reasonable amount of damages under this head would be $1.7 million and I award that sum: $1,700,000.00.

Special Damages (Pre-trial)

36. The following items of special damages pre-trial as well as the amount claimed for each item are not in dispute between the parties:-

	$
(a) Medical expenses	20,700.00
(b) Transport costs	73,054.00
(c) Miscellaneous expenses	662,555.00
(d) Value of mother's services	337,500.00
	1,093,809.00

37. I am satisfied on the evidence before me that those amounts have been expended and are reasonable and they will be allowed.

38. In the pleadings the plaintiff also claimed $1,133,243.00 in respect of loss of earnings up to the date of this assessment. However Mr Sakhrani acknowledged that this was in error and based upon the mistaken premise that by the time of assessment the plaintiff would have been earning $30,000.00 per month.

39. The 3rd defendant's answer to that was that but for the accident the plaintiff's monthly salary at the date of assessment would have been $18,416.00. It was not in dispute that at the time of the accident the plaintiff was earning $16,000.00 per month exclusive of an annual bonus equivalent to one month's salary.

40. In my judgment, and upon the evidence before me, I am quite satisfied that given the plaintiff's additional qualifications attained not long prior to the accident and the additional experience which she would brought to her employment by the time of this assessment, she would have been earning a basic monthly salary of no less than $19,000.00

41. That being so, the calculations for the past loss of earnings are as follows:-

$16,000 x 13÷12 = $17,333
$19,000 x 13÷12 = $20,583
[$17,333 - $563(tax) + $20,583 - $1,094(Tax)]÷2 x 45
	= $815,828.00
Add Loss of MPF
$19,000 x 12 x 5%	= $11,400.00
	$827,228.00
Less sick leave pay	= $69,332.00
	$757,896.00

42. I award the sum of $757,896.00 in respect of loss of earnings up to the date of this assessment and thus the total award of pre-trial damages is:-

$1,093,809.00
$ 757,896.00
$ 1,851,705.00
============

Future Loss

Loss of Future Earnings

43. In respect of this head of damages the plaintiff pleads a multiplier of 17 to which the 3rd defendant responds with one of 15. Once again I have had the benefit of careful and reasoned argument, in support of their submissions from counsel, and I accept, of course, that it is not a matter of finding a balance between two competing claims but rather a fair judicial assessment based upon many factors which include the tables of personal injury and fatal accident multipliers between 1997 and 2001 and the life expectancy of the plaintiff which is assessed at between 32.7 to 36.7 years.

44. In seeking the appropriate multiplier for future loss of earnings (and indeed that for future expenses) I respectfully adopt the approach of Suffiad J at page 8 of his assessment in Lee Suk Yi v National Insurance Co. Ltd (HCPI No. 439 of 2000).

45. In my view the appropriate multiplier for future loss of earnings in the particular circumstances of this case is one of 16 and that is the multiplier which I apply.

46. A good deal of the evidence, of the argument and of the submissions before me concerned the likelihood - or the probability - of the plaintiff acquiring the status and, consequently, the earning capacity of a 'chartered' accountant.

47. In the course of that evidence and argument I was presented with (undoubtedly honest) expressions of optimism on the part of the plaintiff; statistics as to the likelihood of qualification given the changes to the regime permitting such qualification and evidence as to the plaintiff's past endeavours with that ultimate aim of such qualification in mind. I have been invited to consider, in terms of percentages, the chances of such qualification given the evidence of past endeavours.

48. I do not doubt for one moment the diligence and ambition of the plaintiff but, given all that I have been told in evidence, I find (albeit with no little reluctance) that the plaintiff's prospects of so qualifying as a 'chartered' accountant were remote to the point of being 'insignificant' (as that term was used in the judgment of Otton LJ in Doyle v Wallace [1998] C of A (Civil Division) 142 SJ LB 196) and I hope that it is quite apparent that I intend no discourtesy to the plaintiff by that, because if endeavour was the sole criterion for such qualification I am in no doubt whatsoever, (upon her evidence which I accept without reservation), that she would have qualified as a 'chartered' accountant with distinction.

49. Having reached that conclusion upon the evidence, I calculate the plaintiffs damages under this head as follows:

$20,583 - $1,094 (tax) x 12 x 16	=	$3,741,888.00
Add MPF : $3,741,888 x 5%	=	$187,094.00
	=	$3,928,982.00
		============

Loss of Future Advancement in Career

50. In respect of this head of damages the plaintiff claims either the sum of $250,000.00 or a sum equivalent to a percentage of lost income based upon an estimated percentage (put at 35%) of lost chances (see Anderson v Davis and Anor [1992] PIQRQ 87 and Doyle v Wallace (supra)).

51. Ms Pinto responds to this claim by submitting that it is based wholly upon speculation and, given that the plaintiff is to be compensated for loss of earnings as an Accounting Supervisor, she has not suffered any loss of chance of promotion to that post.

52. Whilst I fully understand that argument it does, with respect, somewhat miss the point and I agree with Mr Sakhrani that to make no award under this head would be to under compensate the plaintiff in all of the circumstances of the case, and that it would be unjust. I am not however prepared to travel along the 'estimated percentage of lost chances' route. That would involve pure guess work on my part.

53. In my view the appropriate award is one of $250,000.00 and that is the award that I make.

Cost of Future Medical and Nursing Care; of a domestic helper and a case manager

54. In respect of this claim I am satisfied upon careful consideration in the light of the arguments of counsel, and what I have said is paragraphs 43 and 44 above, that the appropriate multiplier is 20.

55. That being so, and the following multicands not being in dispute, I make awards in respect of the following items:

Urological treatment
$12,500.00 x 20	=	$ 250,000.00
Domestic Helper
$85,000.00 x 20	=	$1,700,000.00
Case Manager
$4,800.00 x 20	=	$ 96,000.00
	=	$2,046,000.00
		=========

56. Items under this head which are disputed beyond the question of the multiplier are psychological counselling; family counselling; physiotherapy; occupational therapy; medical consultation and medication; hospitalisation and nursing care - and I shall now deal with each one of these in turn given the disagreements concerning the needs of the plaintiff over a prolonged period and doing the best that I can.

Psychological counselling

The claim (based upon Dr Chung's report) is for $105,000.00 and the offer (based upon Dr Singer's assessment) is $48,000.00. I allow the claim of $105,000.00 in full it being, in my view, fully justified and reasonable.

Family counselling

The claim is for $25,000.00 and the offer is $12,500.00. I allow $12,500.00 accepting, as I do, Dr Singer's assessment that the plaintiff's family will require 5 sessions at $2,500.00 per session.

Physiotherapy and occupational therapy

This is recommended strongly by the physiotherapists and for reasons which I, with the greatest respect, would have thought were obvious. Whilst the neurologists do not share that view and whilst the physiotherapists have different views as to how to achieve the same aims, I allow the sum of $24,000.00 for the initial therapy and (given the uncertainties expressed in the evidence before me) the sum of $5,000.00 applying a multiplier of 20 in respect of life time therapy. The total sum allowed for physiotherapy is - $24,000.00 + $100,000.00 = $124,000.00.

The occupational therapy evaluation report recommends monthly therapy for the plaintiff's life time and I accept that recommendation. The cost of this is estimated at between $800.00 - $1,000.00 per hour for treatment at a private clinic and between $1,000.00 - $2,000.00 per hour at home.

In my judgment a reasonable multiplicand is $12,000.00 which over 20 years amounts to $240,000.00

The total then allowed for physiotherapy and occupational therapy is:

124,000.00 + $240,000.00 = $364,000.00

Medical consultation and medication

The sum claimed is $105,600.00 and the sum offered is $43,200.00 based upon a multiplier of 18 and upon the recommendations of the neurologists that the annual costs will be $2,400.00. I award $48,000.00 accepting, as I do, the evidence of the neurologists but applying a multiplier of 20.

Hospitalization and nursing care

In respect of hospitalisation a multiplicand of $15,000.00 is claimed and agreed. However the plaintiff seeks that sum applying a full multiplier whilst the 3rd defendant, relying upon the joint assessment of the neurologists, would apply a multiplier of 4. To my mind that is too conservative and I apply a multiplier of 10 giving a total of $150,000.00.

As to nursing care the difference between the parties lies essentially upon the assessed need of full time care at a later stage. On the evidence before me such need has not been made out. For nursing care (a Chinese care assistant part time) I award $59,701.00 x 20 = $1,194,020.00.

The total award for hospitalization and nursing care is $150,000.00 + $1,194,020.00 = $1,344,020.00.

The total award in respect of the cost of future Medical and Nursing care is as follows:-

	$
Urological Treatment	250,000.00
Domestic Helper	1,700,000.00
Case Manager	96,000.00
Psychological Counselling	105,000.00
Family Counselling	12,500.00
Physiotherapy and Occupational Therapy	364,000.00
Medical Consultation and Medication	48,000.00
Hospitalization and Nursing Care	1,344,020.00
	$ 3,919,520.00
	===========

Future Transport costs

57. I heard a good deal of argument about this matter. The plaintiff claims either a car with its associated expenses in the total sum of $1,559,222.00 or a sum, in respect of extra travelling costs, of $3,000.00 per month.

58. The 3rd defendant argues that a car is not 'reasonably necessary' to meet the plaintiff's travel needs but is prepared to agree a sum in respect of extra travelling costs of $300.00 per week.

59. Suffice it, I think, for me to say that whilst the provision of a car to the plaintiff would be extremely beneficial to her in many ways, such provision has not been justified before me. The plaintiff has no driving licence of any kind and is, not surprisingly, in fear of traffic.

60. In my judgment her reasonable needs, given all that I have been told both in evidence and in argument, can properly and entirely justifiably be met by a monthly allowance under this head of $3,000.00

61. Accordingly I award to her the sum of $3,000 x 20 x 12 = $720,000.00

Costs of Future Special Equipment

62. There are 32 items here only 3 of which are agreed. Some of the remaining items are not agreed because the specialists suggest somewhat cheaper items; some because it is said that there is no evidence to support them and some because it is said that the plaintiff would have expended money upon them regardless of the accident. I do not propose to deal with each and every one of the contested items. Suffice it to say that I have considered each one and have made the awards which appear in the first schedule which in my view are justified on the evidence as being reasonable. The only item which I will refer to specifically is the electric wheelchair and its associated expense (items 29-32). The 3rd defendant rejects this claim upon the basis that the domestic helper (in respect of whom an award is being made) can propel the plaintiff in her present wheelchair over difficult as well as normal terrain. As I said during the hearing of this matter that is not, to my mind, an attractive argument in all the circumstances of this case. I am in no doubt that the provision of an electric wheelchair will contribute to the general welfare of, and will be beneficial to, the plaintiff for many reasons which I should have thought were quite apparent. The claims in respect of it and its associated items are accordingly allowed as being both necessary and reasonable.

The total sum which I allow is $1,349,141.00

Miscellaneous Future Recurring Expenses

63. There are 15 items of miscellaneous future recurring expenses which are claimed. The multiplicands of items 1, 7, 8, 9, 10, 11 and 15 are agreed. Items 2, 3, 4, 5, 6, 12,13 and 14 are not agreed either because lesser sums have been put forward by the specialists or because they are said to be unnecessary. I will deal shortly only with the latter 8 items as follows:

Item 2, Future DIY expenses I do not accept that the plaintiff would, in any event, have hired a 'handyman'.

Item 3, Extra cost of holiday This claim (adjusted by the multiplier) is entirely reasonable and is allowed.

Item 4, Extra electricity for A/C ) These claims (adjusted by the

Item 5, Extra washing powder ) appropriate multiplier) are entirely

Item 6, Extra tissues and toilet rolls ) reasonable and are allowed.

Item 12 Tubes K-Y Jelly ) These claims (adjusted by the

Item 13 Antrseptant disinjectant ) appropriate multiplier) are entirely

Item 14 Skin ointment ) reasonable and are allowed.

The total sum which I allow (as shown in the 2nd schedule) is $681,460.00

Claim for Alternative Accomodation and Related Expenses

64. I again have been presented with a great deal of evidence and argument concerning this matter. The fact is that the plaintiff has moved from living with her parents and siblings in public housing accommodation into private accommodation in Whampoa Garden which is much more suited to her needs.

65. The annual rent of these premises is $207,600.00 and the plaintiff (applying a multiplier of 22) claims the sum of $4,567,200.00. The 3rd defendant counters this by saying, if I have understood the argument correctly, that the plaintiff should purchase new premises at a cost of $4,400,000.00 and that the cost of the rental of the pre-accident premises (applying a multiplier of 18) of $432,000.00 should be deducted from that sum; and that the annual cost of providing the resulting capital sum of $3,968,000.00 at 2% interest over the plaintiff's lifetime is the sum which the 3rd defendant should pay.

66. With the greatest respect, I find myself unable to agree with that argument.

67. The fact of the matter is that there is no saving, (and therefore there should be no deduction in respect of it), because the rent for the old premises still has to be paid by the plaintiff's parents and siblings and, applying the multiplier which I consider to be appropriate of 20, the cost of renting the premises at Whampoa Garden is still cheaper than buying it or its equivalent.

68. Ms Pinto then submitted that whatever figure I assess as being appropriate under this head I should deduct from it (or further deduct from it) what is, in truth, a notional sum based upon what the plaintiff's contribution would have been had the accident not occurred; had she become married and had she contributed, say, $6,000.00 per month out of her income for the provision of the matrimonial home. I just add here that that figure of $6,000 per month derived from an estimate, if not a guess, from the plaintiff in her evidence, based upon the assumptions that there had been no accident; that she had married a man earning $30,000 per month; that they had chosen to live in private rented accommodation and that they had a family but she continued to work (employing a helper to look after the child/children).

69. In my view, whilst I accept (again doing the very best that I can, based wholly and necessarily upon conjecture) that some allowance should be set off against the award in respect of future loss of earnings to reflect an estimated future contribution towards her accommodation, the sum of $6,000.00 is too speculative and far too high.

70. Having given this matter, and the authorities cited to me, the most anxious consideration it is my view that an appropriate sum to be deducted from my award in respect of this head is $2,000.00 per month i.e. $2,000.00 x 12 x 20 = $480,000.00

71. Taking the monthly rent of the new accommodation at $17,300.00 and applying a multiplier of 20 the calculation is as follows:-

$17,300.00 x 12 x 20 (- $480,000.00) = $3,672,000.00 and that is the sum which I award under this head, adding to it the agreed cost of alteration in the sum of $384,325.00; the legal costs of the tenancy agreement ($1,820.00 x 10 = $18,200.00); the agency fees ($11,500.00 x 10 =$115,000.00) and 50% of the stamp duty ($693.00 x 10 = $6,930.00).

72. The total award then in respect of this item of the claim is as follows:

$
3,672,000.00
384,325.00
18,200.00
115,000.00
6,930.00
$4,196,455.00
=========

Cost of Fund Manager

73. I do not agree with the contention made on behalf of the 3rd defendant that because the plaintiff was an accountant she should be able to manage her own damages. In my judgment the employment of such a manager is not only reasonably necessary but it is essential. Adopting 10% of the assessed future earnings as being the appropriate sum under this head the award I make is $392,898.00.

Interest

74. Interest will be awarded (as agreed) on general damages for pain suffering and loss of amenities at 2% per annum from the date of the writ. Interest on pre-trial special damages will be awarded at 4.91% from the date of the accident.

Summary of Assessment

75. $

Accordingly the plaintiff's total damages inclusive of interest is assessed at $19,383,041.00

Costs

76. There will be a costs order nisi that the costs of the assessment in relation to the plaintiff will be borne by the 3rd defendant, to be taxed on a party and party basis if not agreed. There will also be an order for the plaintiff's cost to be taxed under the Legal Aid provisions.

Representation:

Mr Ashor Sakhrani, instructed by Messrs Szwina S K Pang and Co, assigned by DLA, for the Plaintiff

Mr Josephine Pinto, instructed by Messrs I P Kwan and Co, for the 3rd Defendant

HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 658 OF 2000

____________

_______________

J U D G M E N T

_______________

1. On the 9 March 1998 at some time between 9.30 and 10.00 p.m. both these Plaintiffs were walking on the pavement on the nearside of Queensway towards Wanchai. They were struck by a fast-moving Mercedes-Benz saloon which mounted the pavement. It was driven by the second Defendant who was employed by the first Defendant, the renowned Ritz-Carlton Hotel. How did he come to be driving a car hired by the Hotel from Park Lane Limousines as a courtesy car for the use of hotel guests? It is not disputed that the two Plaintiffs were injured as a result of the negligent driving of the second Defendant and are entitled to have their claims satisfied on the basis of full liability. The sole issue is whether the second Defendant was driving the vehicle in the course of his employment by the first Defendant as their servant or agent, or was driving outside the terms of his employment, in breach of those terms, without permission and on a trip for his own purposes.

2. As far as the Defendants are concerned this consolidated action has a somewhat chequered history. I do not need to review this as the details are set out in an earlier judgment which dealt with the interests of the two insurance companies concerned: that of the Ritz-Carlton Hotel and that of the owners of the vehicle the latter being, in fact, the "insurers concerned" for the purposes of the involvement of the Motor Insurers' Bureau being the insurers of the vehicle concerned owned by Park Lane Limousines.

3. Although both Plaintiffs' actions have proceeded neither has given evidence. On liability there is little purpose to be served as they are bound to succeed against the second Defendant. In any event they have no recollection of events since both were rendered unconscious. They cannot of course give any evidence bearing on the sole issue between the two Defendants.

4. The second Defendant was convicted of reckless driving on his own plea of guilty. He was also convicted of driving without insurance cover for third party risks. That latter fact is not however conclusive of any issue between the Defendants.

The second Defendant and his employment by the first Defendant.

5. Lo Sin Tak was employed as a doorman at the Ritz-Carlton. He was under the supervision of the Senior Bell Captain, Au Tse Pun. Mr Lo's jobs included valet parking for the hotel's customers. He might also be required to move any of the courtesy cars hired by the hotel from Park Lane Limousine Services if space was required or an adjustment in the car's position was necessitated and the chauffeur hired with the limousine had gone off duty. For such circumstances, the chauffeur was required to leave the keys at the hotel counter. If such movement was necessary to provide space or to give another vehicle the freedom within which to vacate a space, there were two routes available if a simple manoeuvre was not feasible: the short one was down Club Street into Chater Road then immediately back down the scavenger lane, into Connaught Road, then up Club Street. This is the 'round the block' route. If the scavenger lane was obstructed, or perhaps a little longer time was required, the route was down Club Street, from Chater Road into Queensway, down Arsenal Street returning along Harcourt Road into Connaught Road and then back up Club Street.

6. The practice was essentially to park the hired courtesy cars on the hotel car park which is part of the forecourt of the hotel. During the course of a visit it was easy to see how this was done. There is a greater parking area on the left of the hotel forecourt as one enters the hotel, than there is on the right. One can envisage from the layout that there may well be occasions when cars parked on a temporary basis constitute an obstruction to the flow of traffic and it is thus necessary to move them. It is not disputed that when Lo Sin Tak was performing any of the valet parking services, either in relation to customers' cars, or the courtesy cars - his position when performing such a duty was described as a 'car jockey' - he was acting in the course of his employment. This then is the overall picture of how such matters should function.

The representation of the second Defendant and the Insurer concerned

7. At the commencement of this trial on liability, Mr Warren Chan SC and Mr Paul Lam and their instructing solicitors, represented Lo Sin Tak through Ming An Insurance Company. Ming An were the insurers of the courtesy cars through Park Lane Limousines who supplied them on hire to the Ritz-Carlton. Ming An clearly had an interest identical to that of Lo Sin Tak. He wished to establish that he was driving with his employer's authority, express or implied; the Insurance Company wished to establish vicarious liability on the part of his employers. If both failed to obtain such a finding there would be a judgment against an uninsured motorist leaving the Motor Insurers Bureau to satisfy the judgment. Ming An were the insurers concerned. Their interest was the same as that of the M.I.B.

8. On the second day of this trial it was clear from the position outlined by Mr Chan that Lo Sin Tak was no longer interested in taking part in the trial. He had told his solicitors such and it became clear that he was not cooperating with them and their position had become impossible. Accordingly Mr Warren Chan SC and Mr Lam and their instructing solicitors sought leave to withdraw and cease to act respectively. It was inevitable and I gave leave. Then, as anticipated, Mr Chan applied on the instructions of the same firm and Ming An Insurance Company for Ming An Insurance Company to be joined as third Defendant. The application was made under Order 15 rule 6. Mr John Bleach SC for the first Defendant sought to oppose this though I think that this was essentially a tactical opposition. The circumstance had changed significantly since I refused an identical application some months ago. Undoubtedly Ming An had an interest. It was now necessary in order that such interest could properly be protected that Ming An be made a party. There was a real risk that, unrepresented, the issue could go against them by default. I had no hesitation in granting it.

The case of Ritz-Carlton against Lo Sin Tak

9. In short the hotel's case was that Mr Lo went off on a frolic of his own, unauthorised, knowing he was not authorised, for his own purpose and/or the interest of another staff member. In order to see how this case is framed it is necessary to examine closely the circumstances of that evening. To that end we all visited the hotel forecourt and entrance at 8.00 a.m. on the second day of trial and in Court reviewed the security video film recording movements on a substantial part of that forecourt over the relevant time. I have watched the video through on three occasions. It is a highly significant record.

10. It needs analysis against statements made by Mr Lo - two to the Police and another, earlier this year, for the purpose of these proceedings. In his first statement to the Police he stated that the vehicle he was driving had earlier been left on the pavement outside the hotel car park by the chauffeur who had asked him to park it on the hotel car park when a space became available. At about 9.40 p.m. a space did become free and he drove the vehicle, which he said was outside and beyond the entrance to the car park, the long way round from Chater Road to Queensway intending to go down Arsenal Street into Connaught Road back into the hotel car park. He was however involved in the traffic accident in Queensway. It was after the journey began that he noticed a bell boy, who was in fact Kwok Sze Lun, taking a rest in the front seat. Lo made no mention of being unable to take the short "round the block" route.

11. In his second interview with the Police it was put to him that he had taken the courtesy car without authority. He maintained that he had authority and that it was necessary to move it to relieve congestion caused by parked vehicles. If he had not done so, the vehicle would have been ticketed by the Police. Therefore he drove around and was going to use the opportunity to buy some food. He declined to answer questions relating to whether the buying of food was in accordance with a company request or a decision of his own, and why Kwok Sze Lun was in the vehicle on the journey.

12. About 2 1/2 months after the accident he was interviewed again but gave no worthwhile information. He suggested that at the time of the accident his speed was 50 k.p.h. That may have been the speed at the time when the two Plaintiffs were struck. His speed before that moment had been excessive and dangerous.

13. The first of his two statements prepared for the purpose of these proceedings is dated 23 February 2000. Much of it is concerned with the authorised activities of the 'parking-jockeys'. It is unnecessary to repeat the detail but before relating what happened as a variation on his earlier story to the Police he had viewed, as we all now have, the security video-recording. It also emerged that prior to his employment by Ritz-Carlton he had been employed by Parklane Limousines as a chauffeur.

14. He said he was confused about the position from which he had driven the Mercedes when giving a statement to the Police. It was now accepted by him that the car had been parked on the forecourt at right angles to the hotel front and with two cars on its left side. It was facing out towards Club Street.

15. In short he drove it out and around because it was obstructing the free flow of cars. After he had moved the car about a metre Kwok Sze Lun ran towards the car shouting (or motioning) for him to stop and he did so. Kwok jumped into the car. Lo said Kwok wanted to drive round to get some snacks for the supervisor and other jockeys. The buying of food for night snacks was something the hotel and supervisor permitted. However his own reaction to Kwok was that if it could be done on the journey and traffic allowed he would let him out to buy food. In view of the rainy weather however he had already decided before the accident that he would not stop for food.

16. Earlier he described the two routes available: "round the stock" using the scavenger lane, and the Queensway route which he described as the most regularly used. The former route he said was not often used because the scavenger lane was narrow and it was often obstructed.

17. The second statement is a detailed consideration of provision for staff meals and the practice and mechanics of fetching food from outside particularly later in the evening.

18. None of the contents of these statements has been given in evidence by Mr. Lo because he has not attended court of his own volition nor responded to the service of a subpoena upon him by the third Defendant. Therefore his version or versions have not been given on oath or tested by cross-examination. It remains simply evidence of what he has said to other people on different occasions.

19. Kwok Sze Lun, the bell boy who travelled with Lo, did give evidence. He explained the practice of obtaining night snacks from outside and I have little difficulty in accepting that there was such a practice. I do not doubt, as Wilson Leung Tat-kei explained, hotel catering for staff, which may even have consisted of "left-overs" and other food, was probably less than appetising and there had been for some time a reliance on food brought in freshly cooked from outside. The circumstances under which such food was obtained and the means used to that end were, I also accept, governed by rules or regulations, not all of which were written. There was a requirement that staff be present to fulfil essential duties at all times and the needs of customers were not always predictable whatever the hour of the evening. Any arrangements to obtain food from outside were "ad hoc" and subject to the hotel's priorities.

20. He spoke of asking the Park Lane chauffeurs to bring in meals for members of the staff and sometimes a member of the staff would go out with a chauffeur to get meals in conjunction with hotel duties. He made it clear that when such a member of the staff did this he was sometimes instructed to do it, that they had to report any intention to do so, and in any event if the trip with the chauffeur was solely to get food, then the senior or supervisor had to be notified.

21. On the night in question he was the only bell-boy on duty. There were only two valet parkers (or 'car jockeys') on duty of whom the second Defendant was one.

22. He denied having got into the car driven by the second Defendant, in order to get some rest. This was in any event a most implausible aspect of his original story to the Police. It is highly likely that this explanation was concocted both to help Kwok Sze Lun as well as Lo Sin Tak. This is certainly what he was saying as far as his own position was concerned. He maintained a story which had him, quite coincidentally, jumping into the vehicle as the second Defendant was about to move it, there having been no prior discussion or request to go and get some food. He said he did not raise this matter until he got into the car, and was uncertain whether Lo Sin Tak would agree to this.

23. More importantly, he said that he thought his senior or supervisor would agree to his going on this errand even though he was the only one on duty. It was clear that he had not obtained permission. He said that on other occasions he had not done so.

24. Although it seems to have been the practice that when food was to be obtained from outside the hotel it was shared amongst all, as if by inference to suggest that all concerned acquiesced in such a food gathering exercise, it would not be right to conclude that all, particularly those in a senior or supervisory capacity, were prepared to condone irregular actions such as that, on this occasion, done by Kwok Sze Lun, even though the latter suggested his actions, though done without permission, were not disapproved of afterwards.

25. The baggage master on duty that night was Wilson Leung Tak Kei, a relative by marriage of the bell-boy Kwok Sze Lun. Mr Leung was in charge of the bell-boys and also had authority over the valet-parkers. He confirmed that it was usual for members of the staff to seek meals from outside the hotel. This was achieved by staff going by taxi specifically for that purpose, or by asking a Park Lane chauffeur if he was willing to do so but the need or practice was governed by the hotel's requirements.

26. Undoubtedly Mr Leung was in a potentially difficult and embarrassing situation. Kwok Sze Lun was linked with his family. He himself and others shared in the food brought back. His disciplinary or at least supervisory authority, could be seen to be compromised by reason of this. When it had happened he assumed permission had been given even though it was not he who had been asked. On that particular evening he was not aware that the bell-boy and Lo Sin Tak had gone out for food - or for any other reason. He would not have given them permission in view of the limited staff at that time of night. I found him a very candid and honest witness. Some of the questions I asked were clearly designed to see how open he was prepared to be. Some of his answers were capable of putting him in a questionable light yet he did not flinch from giving them. I am however satisfied that he did not give either Lo Sin Tak or Kwok Sze Lun express or implied permission on that occasion. I am also satisfied that his recognition of his obligations and the hotel's priorities meant that he would not have given permission if asked and furthermore that if he had any inkling of what the two of them were about he would have made it clear that they were not to go.

The case of Lo Sin Tak that he was acting in the course of his employment.

27. The explanation put forward by him was clearly designed to suggest that, when he was driving the car, it was part and parcel of his usual employment. Even his story, allegedly to protect Kwok Sze Lun was self-serving. Its purpose was to indicate that the two of them did not have a common intent and that when it was put to him, he rejected the request to stop for food.

28. The evidence in the video film is conclusive in a number of respects. The Mercedes courtesy car in its position on the hotel forecourt did not constitute an obstacle for traffic proceeding through that forecourt. It is clear that such traffic moved with ease and with no apparent restriction. The car, when driven by Lo Sin Tak, was seen to pull out a few feet from its parking position, stop for a few seconds apparently to let someone (Kwok Sze Lun) into it, and then drive off. The film also showed that the scavenger lane was free from obstruction and therefore that the short 'round the block' route was available. There was therefore no need to move the car and if some adjustment had been necessary to give a temporary exit for any other parked car, the short 'round the block' trip was sufficient for that purpose.

29. The evidence to be culled from the statement of witness Fun Chi King Johnson is quite significant, and describes the speed of the Mercedes driven by the second Defendant as being over 90 k.p.h. when it passed his own vehicle on the offside near the United Centre. It then zig-zagged across from the fourth lane to the first lane, overtaking vehicles and then moved back to the fourth lane. After more overtaking it switched back to the first lane. Then it went out of control striking the pedestrian railing (and it would appear the Plaintiffs). It "bounced" back to the second lane where it came to a stop.

30. What weight am I to give to this account given to the Police by an independent witness? It is, of course, extremely difficult for another motorist to give accurate estimates of speed but he can give reliable impressions. It is clear that he was describing the dangerous or reckless manoeuvres of a motor car. He had the impression of excessive and dangerous speed and I have no reason to question the validity of his conclusions - excessive speed, reckless manoeuvres culminating in a loss of control of the vehicle. He was describing the Mercedes car driven by the second Defendant.

31. All this indicated that the second Defendant was in a hurry to complete his journey. If he was on a legitimate journey there would be no need for such extreme haste. It all indicates a desire to accomplish the journey, and anything else incidental to it, as quickly as possible. This is entirely consistent with the need to be back at the hotel as quickly as possible before his (or their) absence was noted and/or before there was a demand for their services within the hotel.

32. None of these inferences raised, has been displaced by any evidence from or on behalf of the second Defendant.

Conclusions

33. I have no doubt that the second Defendant was acting outside the scope of his employment. All that he did and the adverse inferences irresistibly to be drawn from all that he has said and from all other incontrovertible evidence leads inexorably to this conclusion. He had no authority to drive off one of the hired courtesy cars in the existing circumstances. His previous employment by Park Lane Limousines may have created a certain arrogance or indifference on his part which led him to adopt an attitude that no one would question a quick, harmless (so he thought) trip on his part. He was wrong in principle and events exposed his contrived story or excuse.

34. In these circumstances, it is unnecessary to consider the law in detail. The line of cases from Canadian Pacific Railway Co. v. Lockhart 1942 AC 591; Harvey v. O'Dell 1958 2 QB 78; Nottingham v. Aldridge 1971 2 QB 739 and others, are consistent in their application of the principle. Eveleigh J (as he then was) recalled Lord Denning's reference to the law imposing "vicarious liability for reasons of social policy" [Launchbury v. Morgans 1971 2 QB p.245] in his judgment in Nottingham v. Aldridge but even that degree of flexibility, as society and its hazards evolved, did not alter the approach of the Judicial Committee of the Privy Council in the Canadian Pacific Railway Co. case as cited by McNair J in Harvey v. O'Dell:

".... If the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case the servant is not acting in the course of his employment but has gone outside of it."

35. The case of Irwin v. Waterloo Taxi-Cab Company Limited 1912 3 KB 588, cited by Mr Sakhrani, is not pertinent to this issue, and its decision, in no way inconsistent with the general principles, turned on the particular facts of that case.

36. There will be judgment for both Plaintiffs against the Defendant, Lo Sin Tak, with costs. There will be judgment for the Defendant Ritz-Carlton Limited against both Plaintiffs but with an order that Ming An, the third Defendant pay the costs of Ritz-Carlton Limited, in accordance with Ming An's requirement that their actions be pursued against Ritz-Carlton. Mr Bleach, at the outset, stated that Ritz-Carlton would not pursue its application to strike out the second Plaintiff's action (570 of 2000). The second Plaintiff will have her costs of and occasioned by that application, such costs to be paid by Ming An.

37. On the assumption that logic and reason prevail and Ming An or the M.I.B. will meet the Plaintiffs' judgment and costs it is not necessary for me to make a specific order against Ming An. However, these orders are nisi orders although some of them do not need to be so I anticipate the parties can resolve any technical problems. Agreed adjustments to any such orders can be made without formal hearing.

38. I think I should record one further matter in fairness to Mr Wilson Leung, the baggage master of Ritz-Carlton Limited, consistent with what I indicated to Mr John Bleach SC at the end of the trial. Mr Leung was suspended without pay by Ritz-Carlton after the accident and whilst the matter was investigated. He was in charge of both Lo Sin Tak and Kwok Tse Lun and I can well understand why he was suspended given the circumstances. However I am satisfied he was not at fault and is an honest, straightforward man. It would be harsh, indeed unjust, if he has not had his pay for those two weeks restored. I anticipate he will in any event have lost patrons' gratuities over that two week period, a loss itself which he in no way deserved.

HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 658 OF 2000

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J U D G M E N T

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1. This is a relatively straightforward claim for damages for personal injuries by two Plaintiffs who were injured as a result of the negligent driving of a motor vehicle by the second Defendant, a chauffeur by occupation formerly employed by the first Defendant. It is in fact now a consolidated action, there originally having been separate actions by each Plaintiff. These were consolidated by me on 21 July this year.

2. The Plaintiffs were both pedestrians on the pavement of Queensway, when they were knocked down by the second Defendant who drove the vehicle on to the pavement. The accident happened in March 1998. Both Plaintiffs are bound to succeed against the second Defendant. There can be no question of contributory negligence.

3. The sole issue concerns the Defendants. Was the second Defendant driving as servant or agent of the first Defendant, or was he driving the vehicle outside the scope of his employment by the first Defendant? Was he on a frolic of his own? The action is fixed to be tried on the 6 December of this year.

4. In that idiosyncratic way which characterises much of Hong Kong's personal injury litigation, the second Plaintiff's action experienced a few bumps and ripples before it settled on a rational course.

5. Madam Tse started her action against both Defendants in May 1999. She was quicker off the mark than the first Plaintiff whose action was not commenced until one year later in May 2000.

6. For some reason which is not wholly clear, though it seems to have been based on a conviction of the second Defendant in the Magistrates Court of an offence of failing to have Third Party Insurance, the second Plaintiff, Madam Tse, discontinued her action against the first Defendant whose Defence pleaded that the second Defendant was not driving in the course of his employment. The second Defendant's Defence had however admitted that he was driving as servant or agent of the first Defendant. Here was clearly the issue between the two Defendants which justified the action being pursued against both. The two Defences were filed in late August and early September respectively. The Notice of Discontinuance was dated 16 November 1999. It appears to be in the form of a Consent Order involving the Plaintiff and the first Defendant only. The second Defendant was not apparently informed, a singularly unhappy aspect in the procedure adopted particularly since the second Defendant had served through his solicitors, a "Third Party Notice" claiming indemnity against the first Defendant.

7. That discontinuance was made on the basis of an agreement between the Plaintiff and the first Defendant which provided for the Plaintiff being able to reconstitute the action against the first Defendant in certain circumstances. I may be required to consider that agreement and its surrounding circumstances in due course.

8. However the Plaintiff did bring the first Defendant back into the picture by commencing another action against the first Defendant in May 2000 which is also consolidated. And so we have the first Defendants back in the picture subject to some ruling which I may have to give at some later stage.

9. The relatively straightforward personal injuries action, though marginally complicated by the meandering I have referred to, has become further complicated by this application by Ming An Insurance Company to be joined as a third Defendant. I say at the outset that I regard this further complication as quite unnecessary and I propose to consider the legal representation afforded to the second Defendant and the history of it to illustrate this.

10. Originally Fairbairns acted on behalf of both Defendants. On 18 August 1999 Fairbairn obtained an order that they be allowed to cease to act for the second Defendant, their prime reason being a conflict of interest. They contended that the second Defendant was not covered by the first Defendant's policy of insurance.

11. In action 565 of 1999 (the second Plaintiffs' first action) the Defence of the second Defendant (the driver) was served on 2 September 1999 by Ip Kwan & Co. who had taken over his representation. On the same day a Third Party Notice was served on the first Defendant by the second Defendant. There was then a flurry of activity between the two Defendants. Throughout this Ip Kwan & Co. acted for the second Defendant.

12. On the 16 November the second Plaintiff, as mentioned earlier, discontinued its action against the first Defendant by the Consent Order. The second Defendant was not a party to that step and seemed unaware of it. It was irregular. Despite this strange state of affairs the first Defendant continued to seek further and better particulars of the second Defendant's Third Party Notice (which was in fact a notice between Defendants) even though the first Defendant was no longer a party to the action. This was on 18 December 1999. These were nonetheless supplied by Ip Kwan & Co. on the 30 December 1999.

13. On the 20 December 1999 the second Defendant had obtained an order for discovery against the first Defendant again despite the fact that there was, then, no first Defendant. The second Defendant's solicitors were seemingly unaware of what the Plaintiff had agreed with the first Defendant i.e. the discontinuance.

14. Then, as if the first Defendant (now no longer a Defendant) suddenly realised the effect of its non-involvement, it took out an application to strike out the second Defendant's Notice, an unnecessary action in itself. The reality was that with the first Defendant no longer being involved in the action, all matters involving it had fallen away and yet it had persisted in relation to the second Defendant as if it remained in the action. What the second Defendant needed to do at this stage, if it had been fully aware of the strange 'goings-on', was to commence proceedings to join the former first Defendant as a Third Party. Nonetheless it was in my view misled by the conduct of the first Defendant in continuing to conduct matters as if no discontinuance had taken place.

15. By the 29 January 2000 the second Defendants solicitors had become aware of the Plaintiff's discontinuance against the first Defendant. Miss Kwan was sworn to an affirmation in support of an application (dated 31 January 2000) to join the American Home Assurance Company (through AIU) being the insurers of the first Defendant, as a Third Party. What they should in fact have done was to join the former first Defendant as Third Party, thereby re-involving the latter's insurers. What is clear is that although back in August 1999 Fairbairns were saying that they could not make contact with and obtain instructions from the second Defendant, Ip Kwan & Co. had had no difficulty whatsoever.

16. Ip Kwan & Co's application was made ex-parte. This was quite inappropriate and the Master rightly refused to deal with it on that basis. In the meantime however - on 17 February 2000 - Fairbairns took out their application to strike out the second Defendant's Third Party Notice which I have referred to earlier, thus adding further confusion. On the 21 February 2000 the Master adjourned Fairbairn's application because one or both parties indicated that counsel would become involved and that two hours would be required. Had the parties applied their minds to the position they would have realised the simplicity of the situation and that it was the first Defendant's solicitors who had created the confusion.

17. Following that, Ip Kwan & Co. took out an application for leave to cease to act for the second Defendant. It was adjourned from the 29 March 2000 to the 5 April when the order sought was made. The second Defendant did not attend on either occasion. By this time he must have been thoroughly confused as to what was going on and I have considerable sympathy for him in this regard. I have spent a considerable time going through the Court file and the mass of paperwork unnecessarily generated in order to see what has been going on.

18. Miss Kwan's affirmation in support of her application to go off the record, sworn on the 15 March, sets out that her instructions come from Ming An Insurance Co. (HK) Ltd who are the insurers of the vehicle concerned in the accident, which was leased to the former first Defendant (Ritz-Carlton) by the car hire company, Park Lane Limousine Service Limited,. Ming An insure Park Lane. Park Lane are not and never have been a party in this action (or any of the actions). The representation of the second Defendant hitherto had therefore been under the aegis of Ming An, although one assumes the second Defendant was happy for that to be so and I am told that there was some agreement to that end. It is quite clear that Ming An's interest is identical to that of the second Defendant i.e. he was driving as servant or agent of the former first Defendant and so it is the common contention that it is the employers' insurers who are liable to meet the claim under their policy of insurance.

19. The affirmation goes on to state that the conviction of the second Defendant in the Magistrates' Court for driving a vehicle whether Third Party Risk's Insurance is a finding of fact which binds a civil court in these proceedings. That is not correct. The conviction means that the driver was unable to satisfy the court that he had such insurance cover. It is not and cannot be "res judicata" of the issue of whether the driver was driving as servant or agent of the employer (Ritz-Carlton).

20. Furthermore, Ming An's interest in the proceedings remains as insurer concerned, as it is party to the MIB Agreement even though its contention is that it is not on risk directly, as Park Lane is not a party, and therefore it will not be called upon under the policy.

21. Because of the discontinuance by the second Plaintiff of her action against the first Defendant, she was then proceeding against an uninsured motorist. Accordingly Ming An has invited the Plaintiff to take proceedings against the first Defendant on the undertaking to indemnify her in respect of the costs of so doing. At that stage the Plaintiff had not responded. In that vacuum, Ming An (through its solicitors Ip Kwan & Co.) were acting on the advice of Counsel in seeking to cease to act for the second Defendant. I do not need to consider the correctness of such advice. Apparently such advice also suggested that Ming An or the MIB should in due course apply to be joined in the action as intervener.

22. Apparently the second Defendant had accepted representation by Ip Kwan & Co. (on behalf of Ming An) on a basis which was without prejudice to Ming An's right to refuse to indemnify. Since the driver's case was that he was driving as servant or agent of Ritz-Carlton, his then employers, Ming An could not at any stage be his insurers or on risk to indemnify him. They would only be on risk if Park Lane were being sued. They are now only concerned by virtue of the MIB Agreement. That comes into play if the Plaintiff obtains a judgment against the second Defendant, which is not satisfied by him, and she has complied with the MIB's requirement that she proceed against any other potential tortfeasor who is insured i.e. Ritz-Carlton. The apparent reason for Ip Kwan & Co. therefore ceasing to act is the non-pursuit of an action by the Plaintiff against Ritz-Carlton. No doubt the reason that Ming An were prepared to provide representation for the driver in the first instance, when Fairbairns ceased to act, was that its interest was identical to that of the driver i.e. establishing vicarious liability on the part of Ritz-Carlton. The only change was the Plaintiff's discontinuance, to me inexplicable.

23. On the 16 May this year the first Defendant's application to strike out the second Defendants Third Party Notice came back before the Master for argument. The second Defendant did not attend. He was by now unrepresented, but Miss Kwan, who did attend, was asked to wait outside whilst this issue was put, without opposition before the Master. Why Miss Kwan should have been excluded by the first Defendant's Counsel I cannot understand. It may well be if she had been present (and been able to assist the Master with the full picture) the whole of the subsequent events would have taken a different and more sensible course. However the first Defendant (who had not been a party to the action since mid-November 1999 of the previous year) obtained the order sought, for what it is worth.

24. On the day before this hearing, the second Plaintiff again commenced proceedings against Ritz-Carlton. Its case was the same as that originally commenced almost exactly one year earlier which had been discontinued in November of the same year. If the Plaintiff's solicitors had been notified of the hearing of the first Defendant's summons on the 16 May I anticipate that they would have attended and everyone would have been in the know. As it was the futility of that exercise went unrealised to that extent.

25. As a footnote to this aspect the second Plaintiff's solicitors had also taken out an application to rejoin the first Defendant in its existing action (565 0f 1999). This was served only on the first Defendants. Unaccountably the second Defendant was left in ignorance of this too. It came before Master Poon on 3 May who adjourned it to 16 May to be heard by the same Master, who was to hear the first Defendant's application against the second Defendant to which I have referred a little earlier.

26. Somehow it came before a different Master. So the situation resulted with one Master due to hear an application in the action in which the applicant (Ritz-Carlton) had ceased to be a party, and another Master was due to hear in the same action, an application by the Plaintiff to rejoin Ritz-Carlton as a Defendant. In the second application the same counsel appeared for Ritz-Carlton to vacate by consent that hearing, as appeared before the other Master to pursue its application. He ought to have ensured that both matters came before the same Master as indeed the solicitors concerned - Fairbairn's - should have. That however was not the end of this progressively bizarre and unjustifiably convoluted matter. Also on the same date was another application by the second Plaintiff (565 of 1999) to be heard by the Master before whom its earlier summons had been vacated by consent. This was an application to withdraw an affirmation filed by the Plaintiff's solicitor in support of the application to rejoin Ritz-Carlton. That set out the solicitors understanding of certain matters which led to the original discontinuance of the action against Ritz-Carlton and then the later decision to bring Ritz-Carlton back into the proceedings. It is not necessary to go into the detail but one aspect concerned the MIB's requirement that the Plaintiff should proceed against the employer of the driver, on the basis of vicarious liability. The implication of failure to comply with this was obvious - the MIB could decline to meet any judgment obtained against the second Defendant if the action did not proceed against Ritz-Carlton as well. I mention in passing, if only to indicate that it was not a complication, that the limitation period had not expired and does not expire until a date in March 2001.

27. This application was opposed by Counsel for the first Defendant who told the learned Master that it was "more complicated than it may look". It had indeed become complicated by reason of the fog generated by the lawyers acting for Ritz-Carlton and the second Plaintiff. It was in fact startlingly simple. The Affirmation had been filed. It had to stay there. It had been served on the solicitors for Ritz-Carlton. They had obviously read it. There was no sound conceivable reason to remove it. Moreover the Plaintiff's solicitors had commenced a new action against Ritz-Carlton. The Master was persuaded to adjourn it with an estimate of an hour for argument. Miss Kwan of Ip Kwan & Co., who had taken out her own application to join Ming An as intervener almost a month earlier, was present as she clearly had an interest in what was going on. This makes it even more astonishing that Counsel for Ritz-Carlton should have objected to her presence on that same day when he was arguing, without opposition, without locus, that the second Defendant's Third Party Notice should be struck out (i.e. the notice between Defendants in the same action).

28. The position by the end of May of this year was this:

29. The first Plaintiff had started her action against both Defendants. The second Plaintiff had started a second action against Ritz-Carlton and had agreed to adjourn its application to re-join Ritz-Carlton as the first Defendant in its first action. The second Defendant was now unrepresented. Ip Kwan, his most recent solicitors, now had an application to obtain an order for Ming An, who was happy enough to instruct them to represent the second Defendant until it was realised that the first Defendants had dropped out of the picture, to be joined as a third Defendant.

30. I have heard this application spread out over two days. Ming An's interest in this litigation is no different now than it was at the outset. It is the same interest as that of the second Defendant, namely that Ritz-Carlton should bear vicarious liability. Whilst the first Defendant was in the action it was content to represent the second Defendant through the solicitors nominated by it. This is no reasonable argument against it so doing both as a matter of sensible practice and on the authorities, which do not call for consideration at this stage. In any event the first Plaintiff's action, properly constituted, continues against both Defendants. There has been no waywardness in its progress. Furthermore this is now a consolidated action. Therefore Ming An, through Ip Kwan & Co., can participate by representing the second Defendant. It is also with a sense of relief that the solicitors for the first Plaintiff, who have not been embroiled hitherto in these matters, have since June, taken over representation of the second Plaintiff.

31. It is unarguable that Ming An, and Ip Kwan & Co., withdrew representation from the second Defendant because it was felt that, once the second Plaintiff had discontinued its action against the first Defendant (Ritz-Carlton), Ming An would be prejudiced if it continued to represent him. In my view that is a fallacy. The first Defendant could have been brought back into the picture by Third Party proceedings. However I accept that Ming An and its solicitors may have been confused by the fact that the discontinuance was quite inexcusably kept from them and then the first Defendant continued as if it were still a party in the action. Now that the first Defendant is back in the proceedings there is no reason why Ming An, through Ip Kwan & Co., should not take up representation of the second Defendant. It would be entirely proper for them to do so and also a practical aid to the trial judge since it will ensure that the second Defendant's interest and that of Ming An (and the MIB) will be fully provided for. There is therefore no need for Ming An to be joined as a Defendant, with the consequent need for pleadings, extra representation and a degree of unnecessary cost.

32. I have taken full account of the contents of Miss Kwan's affirmations, the latest being that sworn on 18 April 2000 in support of this application. They make it quite clear what is the interest of Ming An. I have no hesitation in saying, as I have earlier, that Ming An's interest must be properly represented. It was provided for fully when it arranged representation for the second Defendant when Fairbairns ceased to act for him. Now that the first Defendant is a party in the consolidated proceedings, Ming An's interest will be fully provided for if it resumes, through its solicitors, representation for the second Defendant.

33. In support of Ming An's application to be joined as a Third Defendant, I have been referred to a number of cases relating essentially to the representation of the interests of insurance companies and the MIB. They include principally:

Gurtner v. Circuit & Anor [1968] 2 QB 587.

White v. London Transport [1971] 2 QB 721.

Chu Yuen Wah v. Lee Kwok-kee [1995] 2HKLR 280

Gaston v. Hui Wing-kuen & Anor (Mortimer, J 21 July 1993)

34. I have considered all those cases and others. The case before me is of striking simplicity. I have already indicated how the insurers interest (and that of the MIB) can properly be provided for. A detailed exposition of these cases is quite unnecessary. The application is therefore dismissed.

35. In considering the question of costs I have taken into account all those matters to which I have referred earlier and which have generated inordinate costs and continued to complicate matters. Ming An however could have resolved this matter simply by taking up representation of the second Defendant again, as the first Defendant's and Plaintiff's counsel had argued. This hearing would not have been necessary. There is no doubt that Ming An, and Ip Kwan & Co. were quite pointlessly and wrongly, kept out of the picture by the second Plaintiff's and the first Defendant's solicitors for a number of months, but once they were in the picture the proper course was in my view obvious. Therefore they will have to bear the costs of and occasioned by this application. Although I cannot see any argument against such an order for costs, I will nonetheless make this a nisi order at this stage.

36. The first Defendant has an outstanding application to stay the proceedings against it on the basis that the second Plaintiff is estopped from further proceedings against it by the agreement reached in respect of the discontinuance on 16 November 1999. This is now a consolidated action. The first Defendant's application relates only to the second Plaintiff. It cannot affect the first Plaintiff's claim. Its argument is on a narrow issue which can be dealt with, without any prejudice to the first Defendant, at the trial of the consolidated action. There will be no savings by an earlier decision. The second Plaintiff still has to prove the claim on quantum against the second Defendant in any event. If the first Defendant's application were to be dealt with as a discrete issue before trial of the main action, it would involve unnecessary and excessive cost. Furthermore in the context of the question of cost, about which I am to say a little more, I think these parties have wasted enough costs so far, that any Court would feel itself obliged to take steps to prevent further wastage.

37. On that latter topic this seems readily apparent to me. There have been wasteful applications to the Court involving the second Plaintiff, and more particularly, the first Defendant which have involved a significant degree of expenditure. I do not know at present whether that has arisen through inexperience and/or ignorance, or some other factor. I do know that much use of court resources has been unnecessary. It has shown an unrestrained, unthinking recourse to interlocutory proceedings. I am concerned that the lay clients should be expected to pay for what seem to me to be ill-judged forays in the adversarial system. Accordingly, the parties concerned will be required to justify their past actions if they seek to recover their costs from any other party, in spite of existing orders, and the lay clients should be given the opportunity to attend. I shall be particularly concerned to know what parties seek to charge in respect of Counsel's fees for the hearings on 16 May 2000 and whether separate briefs were delivered in respect of the these hearings scheduled for that day. The taxing Master will in any event need to know such matters but there is a public interest in the matter of the use of Court resources and the costs of such litigation.