LAI CHU YIU v. LEE MEI PING AND ANOTHER

DCPI 801/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 801 OF 2016

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1^ST DECISION

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Introduction

1.  There are two applications in this action which are fixed before me today.  The application before me this morning is the plaintiff’s summons dated 5 January 2017 asking for the 1^st defendant’s counterclaim be struck out under O18, r19 of the Rules of the District Court.

2.  The second one, fixed for this afternoon, is the 2^nd defendant’s summons of the same date asking for the 1^st defendant’s defence in the contribution and indemnity proceedings brought by the 2^nd defendant against the 1^st defendant be struck out, pursuant to O18, r19 or the inherent jurisdiction of the court.

3.  This decision concerns the first application only.  As I shall explain below, the plaintiff’s application is taken out in what can be described as the main proceedings in this action, ie, the action brought against the 1^st defendant by the plaintiff.

4.  This is to be distinguished from the contribution and indemnity proceedings brought by the 2^nd defendant against the 1^st defendant.

Background

5.  The action arises out of a traffic accident which happened in the morning of 20 June 2014 in Shatin.  The taxi driven by the plaintiff and the private car driven by the 1^st defendant collided when both vehicles were moving along their two respective lanes of Mei Tin Road.

6.  In January of the following year, the 1^st defendant was convicted of careless driving in the accident.

7.  The plaintiff now claims that he suffered neck and upper back injuries as a result of the 1^st defendant’s negligence.  He received treatment at the Accident & Emergency Department of Tseung Kwan O Hospital and later at a private clinic.  He claims also that he was granted sick leave of 30 days after the accident.

8.  In his statement of damages, the plaintiff claims a total sum of $305,300.  This sum is composed of, amongst other things, a claim for pain, suffering and loss of amenities in the sum of $200,000.  He pleads that when the accident happened, he was 50 years old and had enjoyed good health.  He had enjoyed swimming but after the accident could no longer enjoy swimming.

9.  I would pause here to make an observation that it is a straightforward personal injuries claim.

Procedural history

10.  The plaintiff issued the writ on 22 April 2016, almost two years after the accident.  On the same day, the statement of claim and statement of damages were filed.  The 1^st defendant was then the only defendant in the action.

11.  The 1^st defendant, acting in person all along in these proceedings (including today’s hearing), filed a document entitled “Defense and Counter Claims” on 23 May 2016.  The document contains a section headed “Counter claims”.  This is the part which the plaintiff now seeks to strike out.

12.  The plaintiff then filed his reply and defence to counterclaim on 13 June 2016.

13.  By order dated 26 September 2016, the 2^nd defendant, an insurer, was joined as the second defendant.

14.  In the affirmation filed by the 2^nd defendant in support of its joinder application, it was disclosed that it was the insurer of a motor insurance policy covering the private car driven by the 1^st defendant at the time of the accident.  The insured was however not the 1^st defendant, but her husband.  No notice was given to the 2^nd defendant of the accident in accordance with the terms of the policy.  For that reason, the 2^nd defendant subsequently repudiated liability under the policy and gave notice to that effect to the 1^st defendant’s husband.  Given that the 2^nd defendant would likely be liable to satisfy any judgment obtained by the plaintiff against the 1^st defendant in respect of the accident under section 10 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272, the 2^nd defendant asserted that it had a real interest in this action and ought therefore to be joined as a party.  Its application was allowed.

15.  After the joinder, on 14 October 2016, the 2^nd defendant issued its notice of contribution and indemnity to the 1^st defendant.  That is the beginning of the contribution and indemnity proceedings identified above.  The 2^nd defendant pleads that it had repudiated liability under the policy by letter dated 4 May 2016.  It claims, amongst other things, judgment against the 1^st defendant for any amount, including costs, which the 2^nd defendant may be obliged to pay to the plaintiff pursuant to a court order or judgment or a bone fide settlement agreement.

16.  In response to that, the 1^st defendant sent by post to court a document entitled “Defense and Counterclaims” and dated 5 December 2016.  This is the document which the 2^nd defendant seeks to strike out in the hearing to be heard before this court this afternoon.

17.  In parallel with the contribution and indemnity proceedings, the 2^nd defendant also took steps to deal with the main proceedings vis-à-vis the plaintiff.  On the same date as it issued the above contribution notice, the 2^nd defendant made a sanctioned payment in the sum of $145,000, which was subsequently accepted by the plaintiff.

18.  By order dated 21 February 2017:-

(i) Leave was granted for the payment out of the sanctioned payment to the plaintiff;

(ii) The 2^nd defendant do pay the plaintiff’s costs of the main proceedings, excluding costs in relation to the 1^st defendant’s counterclaim against the plaintiff;

(iii) The plaintiff do have leave to discontinue the main proceedings against the 1^st defendant;

(iv) As between the plaintiff and the 1^st defendant in the main proceedings, there be no order as to costs (save, again, those costs in relation to the 1^st defendant’s counterclaim).

19.  Subsequent to this order, the 2^nd defendant paid into court a further sum of $100,000 in settlement of the whole of the plaintiff’s costs in the main proceedings, by way of sanctioned payment, which was accepted by the plaintiff shortly afterwards.

The plaintiff’s striking out application

20.  It is necessary to set out the 1^st defendant’s counterclaim against the plaintiff in full as follows:-

“TheSolicitors for the plaintiff may not or do not exercise adequate professional legal due diligence of his professions or his best endeavor or to solicit the relevant proof documentation to substantiate from plaintiff or provide a expert opinion/endorsement from qualified third party[ies] to substantiate his claim that to valid the plaintiff damages loss, and suffer was valid such as, medical certificate, medical report that are not proven, nor endorsed by third party[ies], or subject matter expert[s], domain expert[s], plaintiff’s solicitors as a processional lawyer, may need to verify, or at least give significant documentation to substantiate his claim for permanent disability[ies] for the plaintiff who act on behalf of the plaintiff in this writ of summon [DCPI 801/2016],

I may be in doubt/question/if professional negligence or other vested interests or agenda[s] the plaintiffs’ solicitors working the plaintiff for accident damages/ injury for a vested interest.

I would demand a proof of the plaintiff’s solicitors of documentation that when and how the plaintiff would first made contact with the plaintiff’s solicitors, how often the proposed arbitrator/mediator proposed by plaintiff lawyer were working closely together on personal injury claims on traffic accident, which I don’t need such service at all.  And all the arbitrator/mediator resume and marketing material was sent to me and filed in the writ of summon which may intend, in my view, to mitigate the claim and settled by the arbitrator has connection the plaintiff’s solicitors.  So that I can seek third party investigator, my legal advise/lawyer, HK Solicitors society to investigate this case.” (emphasis added)

21.  Given the procedural history set out above, if the above counterclaim is struck out, the main proceedings as between the plaintiff and the 1^st defendant would be disposed of entirely.

22.  Mr Alexsander Wong acts for the plaintiff at today’s hearing.  His submissions are straightforward.  In gist, he argues that insofar as the counterclaim is directed, as it seems to be the case, against the plaintiff’s solicitors, as opposed to the plaintiff, it clearly discloses no reasonable cause of action against the plaintiff. In any event, there is no merit whatsoever in the 1^st defendant’s pleaded case as against the plaintiff or the plaintiff’s solicitors.

Analysis

23.  My preliminary observation is that it is not easy to understand what the 1^st defendant is trying to counterclaim.  It may help if the counterclaim is read in conjunction with her defence.  I do not propose to set out her defence in full.  The gist is essentially that the plaintiff and the plaintiff’s solicitors have not provided “significant proof” to substantiate the plaintiff’s claim.  In particular, she takes issue with the plaintiff’s plea on his inability to enjoy swimming after the accident, which the 1^st defendant seems to have characterised as a “permanent disability” in her pleading.  She writes:

“I would wonder it is a Plaintiff’s Solicitors made up such diagnosis[s] or verdict[s] or is it an expert judgment verdict/qualified medical professional practitioner diagnosis before the plaintiff attempted to file the writ of summon …”

24.  She also queries whether the plaintiff’s solicitors have “exaggerated” the claim.  She also challenges causation as she claims that after the accident happened, the plaintiff never requested to go on the ambulance for treatment.

25.  Therefore, if one reads the 1^st defendant’s counterclaim against the allegations made in her defence, it seems tolerably clear that the gravemen of the 1^st defendant’s case is against the plaintiff’s solicitors for “professional negligence” or “other vested interest”.  (It is however not known exactly what the latter means.)

26.  I agree with Mr Wong’s submission that as such, the counterclaim discloses no cause of action against the plaintiff at all.  For that reason, the 1^st defendant’s counterclaim must be struck out.

27.  In any event, as far as the plaintiff’s solicitors are concerned, no counterclaim is made against them and no third party proceedings are initiated by the 1^st defendant against them.

28.  Therefore, there is no need to deal with the merits of any claim the 1^st defendant purports to raise against the plaintiff’s solicitors.  Suffice it to say that in any event (a) the 1^st defendant would not be entitled to seek the correspondence between the plaintiff and his solicitors in relation to the accident as they are clearly covered by legal professional privilege, and (b) there does not appear to be any basis to compel the plaintiff or the plaintiff’s solicitors to disclose the latter’s previous dealings with any proposed arbitrator or mediator.

Order

29.  For the above reasons, I order that the “Counter Claims” as included in the 1^st defendant’s “Defense and Counter Claims” dated 21 May 2016 be struck out and her counterclaim against the plaintiff be dismissed.

(Discussion re costs)

30.  The plaintiff do have costs of the counterclaim and this application, including any reserved costs, with certificate for counsel, summarily assessed in the sum of $60,000, payable by the 1^st defendant on or before 8 August 2017.

31.  The plaintiff do draw up, file and serve today’s order.

DCPI 801/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 801 OF 2016

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2^ND DECISION

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1.  This is the second hearing in this action before me today.  In this hearing, the 2^nd defendant seeks to strike out the defence filed by the 1^st defendant in the contribution and indemnity proceedings brought against the 1^st defendant by the 2^nd defendant by way of a notice dated 14 October 2016.  The 1^st defendant’s defence is contained in a document entitled “Defense and Counterclaims” dated 5 December 2016.

2.  This morning, I heard the plaintiff’s application to strike out the counterclaim made by the 1^st defendant against the plaintiff.  I refer to my decision made, and the reasons given, at the end of that hearing.  (I shall adopt below the background of this case as set out in that decision.)  As a result of earlier court orders and my decision made this morning, the main proceedings as between the plaintiff, the 1^st and 2^nd defendants have now been entirely disposed of, including the issue of costs. 

3.  The current position of the parties in this action is therefore this:-

(a)  While the main proceedings have come to an end, the contribution and indemnity proceedings between the 1^st and 2^nd defendants are still ongoing.

(b)  However, if the 2^nd defendant succeeds in this striking out application, that would conclude those proceedings as well and judgment would be entered for the 2^nd defendant against the 1^st defendant as pleaded.

(c)  On the other hand, if the 2^nd defendant fails in this application, the contribution and indemnity proceedings will carry on.

(d)  In either case, though, the plaintiff will no longer have any involvement in the action.

The 2^nd defendant’s striking out application

4.  The 2^nd defendant seeks to strike out the 1^st defendant’s defence pursuant to O18, r19 of the Rules of the District Court and the inherent jurisdiction of the court and enter judgment against the 1^st defendant.

5.  The 2^nd defendant’s pleaded case against the 1^st defendant is as follows:-

(a)  The 1^st defendant failed to notify the 2^nd defendant of the accident in accordance with the policy terms.

(b)  That amounts to a breach by the 1^st defendant and accordingly the 2^nd defendant repudiated liability in respect of the accident.

(c)  It is likely that the 2^nd defendant will be liable to satisfy any judgment obtained by the plaintiff against the 1^st defendant, even though the 2^nd defendant might be entitled to avoid or cancel the policy, pursuant to section 10 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

(d)  Also, by reason of the Domestic Agreement dated 1 February 1981 between the Motor Insurers’ Bureau (the “MIB”) and the motor insurers, the 2^nd defendant might be called to satisfy the judgment obtained by the plaintiff.

(e)  For the above reasons, the 2^nd defendant claims that it is entitled to be indemnified by the 1^st defendant in respect of such sum payable by the 2^nd defendant.  In this regard, the 2^nd defendant pleads as follows:-

“... the 2^nd defendant is entitled to exercise the right conferred by the Domestic Agreement to seek recovery against the person on whose account such a judgment is satisfied.”

(f)  It further asks for judgment for any amount and costs “which the 2^nd defendant may be obliged, pursuant to either a Court Order/Judgment or a bona fide settlement agreement to pay the plaintiff in this action”.

6.  Given that the 2^nd defendant has settled the main proceedings in the sum of $145,000 for damages and $100,000 for the plaintiff’s costs, in effect, the 2^nd defendant is asking the 1^st defendant to indemnity it in the sum of $245,000, together with costs of the contribution and indemnity proceedings.

7.  The 2^nd defendant argues that the 1^st defendant’s defence discloses no reasonable defence to its contribution and indemnity claim. In the supporting affirmation filed on its behalf, it is stated:-

“18.  In the 1^st Defendant’s Contribution Defence, the 1^st Defendant does not dispute:-

(a)  How the accident happened;

(b)  The Brief Facts of Case prepared by the Police;

(c)  The prosecution laid by the Police;

(d)  The conviction of Careless Driving;

(e)  Her breach of the policy condition of the Policy;

(f)  The repudiation of liability under the Policy by the 2^nd Defendant; and

(g)  The 2^nd Defendant’s rights conferred by the Domestic Agreement to seek recovery.

19.  The 1^st Defendant, only in the 1^st Defendant’s Contribution Defence, raises her doubt on the causation of the Plaintiff’s injuries which is not an issue of liability in the Contribution and Indemnity Proceedings but an issue of quantum.”

8.  As I understand from the 2^nd defendant’s submissions, its striking out application is supported by two planks.  First, in the 1^st defendant’s pleading, there is no denial of and hence there is in effect admission to (a) the 2^nd defendant’s right to an indemnity from the 1^st defendant, and (b) the 1^st defendant’s liability to the plaintiff in respect of the accident.

9.  As such, the pleading contains no defence at all.

10.  Second, in any event, the matters which appear in the pleading does not give rise to any defence to the 2^nd defendant’s indemnity claim. Accordingly, the 2^nd defendant contends that the defence ought to be struck out.

Analysis

11.  I do not accept either plank of arguments.

12.  As to issue (a), in her defence, the 1^st defendant refers to the cancellation of the policy by the 2^nd defendant and then states at §6:-

“... as such we assumed that contract has been cancelled and the relationship with such policyholder associated with the said vehicle policyholder and the vehicle RY 9868 under such traffic accident event was come to an complete termination or dis-engagement.” (emphasis added)

13.  The 1^st defendant is in substance alleging that by reason of the cancellation, the 2^nd defendant has ceased to have anything to do with the policy or the accident and there is no further relationship between the 2^nd defendant and the vehicle or the policyholder.  In the circumstances, I do not consider that the 1^st defendant can be taken to have admitted to the 2^nd defendant’s alleged right to be indemnified.

14.  As to issue (b), in her pleading, the 1^st defendant is clearly disputing the existence or extent of the plaintiff’s injuries and the issue of causation. 

15.  For instance, see §5 in which the 1^st defendant states:-

“We doubt that the various medical/clinical visit showing the plaintiff had visit to public hospital and private clinic at various dated filed in the writ of summon DCPI 801/2016 has any relations to this traffic accident event.”

And see also §7 in which the 1^st defendant says:-

“I don’t quite why the plaintiff and the plaintiff’s representing lawyer and 2^nd defendant ... delineate a settlement proposal in writing with the Plaintiff and the Plaintiff’s representing lawyer and in court that was the proposed settlement amount without having knowing the plaintiff injury is proven with adequate endorsement by any witness or expert, medical report that are proved to be in relations to this accident, The plaintiff may be injured in other places, other events or other accident after this traffic accident event or right after the event driving back to other place or in other occasion; events or venue with no significant proof and evidence.” (emphasis added)

16.  It ought to be noted that contemporaneous records (in the form of police statements and hospital notes) show that the plaintiff did not seek medical treatment on the spot but went to the Accident & Emergency Department himself about three hours after the accident.  Therefore there is at least a basis in support of the 1^st defendant’s pleaded challenge on the issue of causation.  And that challenge is clearly something that cannot be dismissed outright at this interlocutory stage.  The burden to prove causation rests with the plaintiff.  If the plaintiff’s injuries are not proved at trial or if proved, it is not proved that they are caused by the accident, then the 1^st defendant would not be liable.

17.  Therefore, it is plain on the face of the defence that the liability issue is also seriously in dispute. 

18.  Given the clear denial of issues (a) and (b) as evident in the pleading, it is wrong for the 2^nd defendant to now say that the 1^st defendant’s defence contains no defence at all.  On the contrary, it is tolerably clear from her pleading that the 1^st defendant is disputing that she has an obligation to indemnify the 2^nd defendant in respect of claims arising out of the accident.  Both planks of argument put forward by the 2^nd defendant must fail.  In the circumstances, it is for the 2^nd defendant to prove that it has a right to indemnity and in order for the 2^nd defendant to strike out the 1^st defendant’s defence, it is incumbent on the 2^nd defendant to demonstrate that there is a valid legal basis on which it is entitled to be indemnified by the 1^st defendant. 

19.  In its pleaded case, the 2^nd defendant relies on the MIB Domestic Agreement.  However, the 2^nd defendant has not referred to any of the express clauses in that agreement which purport to give rise to the alleged indemnity.  Nor is the agreement itself exhibited to its affirmation evidence filed in the present application.

20.  In the absence of such evidence, I do not see how it is possible for me to come to a conclusive view that the 2^nd defendant is entitled to an indemnity as pleaded.  In fact, on the face of the pleading, the agreement is described as having been made between the MIB and all the motor insurers in Hong Kong.  On that basis, how does it give rise to an obligation on the part of the 1^st defendant, who is not privy to that agreement, to indemnify the 2^nd defendant?  Furthermore, it is common ground that the 1^st defendant is not even the insured under the policy.  It was her husband who was the insured.  It is therefore not clear at all on what basis the 1^st defendant, who apparently has had no contractual relationship with the 2^nd defendant all along, is liable to indemnify the 2^nd defendant.

21.  At the hearing this afternoon, the 2^nd defendant seems to have accepted that it is not the Domestic Agreement which gives rise to the alleged indemnity (which is of course in direct contradiction to its pleaded case).  Rather, the 2^nd defendant now submits that it is the terms of the policy which give rise to the 2^nd defendant’s entitlement to an indemnity.

22.  However, the policy is not exhibited to the 2^nd defendant’s affirmation evidence.  For that reason, I am unable to verify whether the 2^nd defendant’s (latest) submission is correct or not.

23.  Without knowing the legal basis giving rise to the alleged indemnity, it also follows that it is impossible to determine the scope of the alleged indemnity (assuming that it exists in the first place) and whether it would cover the settlement reached between the plaintiff and the 2^nd defendant in the main proceedings.  For instance, given the doubts raised by the 1^st defendant in respect of the existence or extent of injuries and the issue of causation, the obvious questions would be – does the alleged indemnity cover the settlement sum paid by the 2^nd defendant to the plaintiff and is the 1^st defendant liable to reimburse the 2^nd defendant for whatever amount the latter chose to pay the plaintiff? 

24.  To sum up, I do not accept the 2^nd defendant’s submission that in her pleading, the 1^st defendant has admitted to the alleged indemnity and her liability in respect of the accident.  Given that the issue of indemnity is in dispute, and that the 2^nd defendant has failed to demonstrate conclusively its entitlement to the indemnity against the 1^st defendant, there is no basis to say that the 1^st defendant’s defence is bound to fail.

Order

25.  For these reasons, the 2^nd defendant’s striking out application must be rejected and I dismiss the 2^nd defendant’s summons.

(Discussion re costs)

26.  I further order that:-

(a)  The 1^st defendant do have costs of this application, summarily assessed in the sum of $800, payable by the 2^nd defendant within 28 days from today.

(b)  The 2^nd defendant do write to the PI Master within 14 days from today to fix a date for a checklist review hearing. 

(c)  The 2^nd defendant do draw up, file and serve today’s order.