1993, NO. 6295
IN THE SUPREME COURT OF HONG KONG
|SHEK CHI WAI
Coram: Hon. Yam, J. in court
Dates of trial: 7, 27 and 28 June 1994
Date of delivery of judgment : 28 June 1994
J U D G M E N T
1. This is an application under section 30(1) of the Limitation Ordinance Cap. 347 by the plaintiff. The plaintiff seeks an order from the court to override the time limits for a claim in respect of personal injuries.
2. According to the plaintiff, he alleged in his affidavit that on 25th February 1990 he left home at or about 13.00 hours. He proceeded to cross King's Road at the sub-zebra crossing near the junction of King's Road and Oil Street. It was in fact a pedestrian crossing controlled by traffic lights. There were renovation works going on in King's Road such that a wooden platform had been erected by the side of the road on which pedestrians could stand. It formed a bridge over a trench which had been dug in the road. He had partially crossed King's Road as he alleged. In fact he had just proceeded from the pedestrian sidewalk onto the front of the wooden platform. He was standing on the wooden platform waiting to cross to the other side of King's Road when, as he said, his right ankle was hit by a Mercedes Benz, registered number DM 3826 driven by the 1st defendant.
3. In the plaintiff's statement to the police on 26th March 1990, he said this,
"As there were road works in the left lane of eastbound carriage way of King's Road, a wooden bridge was placed there for pedestrians to cross the road. I stepped on the wooden bridge, standing near the road. At that time, the red traffic light was on. I did not pay attention to things around me but just looking south. At that time I stood on the foremost part of the wooden bridge and was close to the railings on the east. After the green walking man signal was on for one to two seconds (At that time, the pedestrians on the other side had stepped out on the road but no one on my side walked out), I heard a "bang". I then took a look at the right immediately. I saw something being thrown out but I did not know what it was. I also saw a private car DM 3826 travelling eastward at a distance of one to two feet (the distance between its front and me) from me. Then the private car drove past me quickly. Afterwards, my right foot felt very painful. Private car DM 3826 only stopped when I cried. Later, police arrived to handle the accident."
4. In his evidence the plaintiff pointed to a red dot on the wooden platform in the diagram at page 10 of bundle one. He said the wooden platform was raised half to one foot above the road. According to the diagram, he was just on the front of the wooden platform before the road for vehicles. He eventually sat on the left side of the platform but beyond it, on the road just by the side of the road works.
5. The plaintiff said he was not sure how he was injured and how the defendant's car struck him and in particular his ankle. It was not the plaintiff's case that the near side mirror of the defendant's car struck him causing him to twist his ankle. In his evidence before me, he did not say that he actually stepped onto the road and was struck by the defendant's car. He was not on the road yet. In fact, he was not sure which part of the car had come into contact with him. In other words, he was not sure how the accident actually happened.
6. In this application the plaintiff said he was told by doctors both at Tang Siu Kin Hospital and the Out-Patient Department thereof that a medical report could not be prepared until three years later and he could not institute any proceedings until the report was ready. It was not until September 1992 that he was told by a Mr Ng of the Traffic Accident Victim Assistance Fund ("TAVAF") that there is a three-year's limitation period for a claim in personal injuries.
7. The plaintiff said he went to the Legal Aid Department in January 1993 with an introduction letter from TAVAF and he gave it to the staff of Legal Aid Department. There is no explanation why he waited until January 1993, but in any event he was still within time by then. He was told by the staff of the Legal Aid Department to go home and wait for their reply. In April 1993 he went to Legal Aid Department as he was told.
8. After the last hearing before me, the matter was adjourned and a second bundle was placed before me. It comprised documents from the Legal Aid file. The documents, I was told, were all the documents relevant to the application before me. They do not support the plaintiff's story. The first document was a legal aid reference card by the number of 11109/93 dated 19th April 1993. Pages 2 to 5 are Form 1 of Application for Legal Aid dated 19th April 1993.
9. At page 14 there was a memo from the Director of Social Welfare (Traffic Accident Victims Assistance Section) to Director of Legal Aid informing them that the plaintiff had made an application for assistance under
the TAVAF scheme and $24,832 had been paid to him. In case of payment by the tortfeasor as a result of a claim of damages, the Director of Social Welfare asked Director of Legal Aid to transfer the same amount to them. Together with this memo it was enclosed therewith an agreement by the plaintiff to authorise the Director of Social Welfare to receive the same amount out of any damages or compensation awarded to him or to be awarded to him as a result of an anticipated claim. The memo was dated 12th July and the letter of authorisation of the plaintiff was dated 9th July 1993. Apparently it was the first contact between TAVAF and Director of Legal Aid and there was no reference to any previous introduction letter given to the plaintiff.
10. I have the impression that the plaintiff probably had confused this letter with what he called a letter of introduction which he gave to the Legal Aid in January 1993. There was no reference whatsoever that there was any attendance by the plaintiff on the Legal Aid Department in January 1993. In short, I found that the plaintiff did not attend Legal Aid Department after September 1993 when he was first aware of the three years limitation until April 1993 i.e. a period of about seven months.
11. There was no clear evidence to explain why he waited for seven months or why he waited from September 1992 until January 1993. He told me there were two burglaries on his home in August 1992 and October 1992. At first the plaintiff said he had lost some documents but it turned out that there was no loss of any document which had hindered him from going to Legal Aid or which had hindered him from processing his application. In fact in August 1992 he began to work again for a year until August 1993.
12. Section 30 of the Limitation Ordinance provided that:
"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
(a) the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and