Upon receiving instruction to act for a person in a personal injury claim, the first thing to do is, of course, to meet with the lay client and obtain a full statement from him/her. This is emphasised in the Sep 99 Guidance, para. D [pp.5-8].

1. It will be in the form of a witness statement, NOT an attendance note. You should try as much as possible to record word for word lay client's own description of the accident and his injuries. You should not simply summarise them in the form of an attendance note.
2. The statement should be in lay client's own language.
3. Once the statement is prepared, a copy of it should be supplied to the lay client so that he can refresh his memory from the statement whenever he wants to.

The statement should contain the followings :

4. Date of birth of the intended Plaintiff. (Do not forget to take a copy of the Plaintiff's ID card or passport).
5. Whether the intended Plaintiff reads and write Chinese and English and a brief outline of his education background.
6. His work history.
7. His occupation and earnings at date of accident, including basic salary, allowances and overtime (and how the allowances and overtime are calculated).
8. How he was paid his wages or salaries - cash ? autopay ? regular pay day ?
9. Date, time and location of the accident.
10. Full description of the events leading to the accident, the accident itself and the Plaintiff's condition immediately after the accident - was he conscious ? was he in pain ? could he stand up by himself or did people come to his assistance ?
11. Identity of the witnesses to the accident, if any.
12. If the accident involved a tool or machine or other equipment, full description of it.

The Statement should be as comprehensive as possible.

If the Plaintiff has made any previous statement to the Police or the Factory Inspector and there is any discrepancy, remember to clarify with the Plaintiff.

Apart from taking a statement from the Plaintiff, you should ask him to supply to you all relevant documents : e.g. sick leave certificates, medical receipts, the statement he made to the Police or the Factory Inspector, tax returns, salary receipts or bank passbook, if any.

You should also remind the Plaintiff to keep all future receipts, sick leave certificates and other vouchers.

If the Plaintiff has resumed working but in a reduced capacity, e.g. on a casual basis, you should remind the Plaintiff to keep a record of his earnings and keep all receipts or documents, if any, relating to the new employment. Explain to him the importance of doing this.

Ask him to contact the witnesses, if any, or supply you with the contact addresses and telephone numbers of the witnesses so that you may contact the witnesses directly and interview them.

Following the initial conference

Remember to mark the expiry date of the limitation period. The Writ must be issued before the limitation period expired. You only have 3 years from the date of the accident to start proceedings [Limitation Ordinance, Cap.347, s.27], unless the Plaintiff is a minor (or a mental patient) in which event you have 3 years after the Plaintiff has attained his majority (or has ceased to be a mental patient) to start proceedings [Limitation Ordinance, Cap.347, s.22].

Medical Reports

Write to the hospital and the out-patient, physiotherapy and occupational therapy clinics to obtain reports on the Plaintiff.

After you have got the medical reports, you should know what specialist medical experts you should instruct to examine the Plaintiff in order to prepare a full report on the Plaintiff - orthopaedic surgeon, neurosurgeon, psychiatrist or clinical psychologist, etc.

The specialist's medical report should enable you to plead all the material facts in the Statement of Damages, e.g. it should state the permanent disabilities of the Plaintiff, the percentage impairment, the prognosis of the Plaintiff's condition and whether any future operation or treatment are required and their estimated costs.

In Lee Ching-por v Ban Wu HCA No.A1524/90, (1991) HKLJ 127-128, Master Jones made these comments :

"Two medical reports were produced under the hearsay notice, one from Dr. C.Y. Lam, consultant in the Orthopaedic and Traumatology unit at Princess Margaret Hospital; the other from Dr. Yeung Po Sun, a private practitioner. The court can only assume that Dr. Yeung is a consultant surgeon from the initials after his name on the letterhead. Nowhere in his report does he state his precise qualification and field of specialised expertise to lend weight to the conclusions in his report.

The court emphasises that practitioners seeking, entirely laudably, to save costs by producing medical documents under hearsay notice should ensure that those documents are largely self-explanatory.

Similarly, both reports refer to the plaintiff having suffered a "subtrochanteric fracture of the right femur". If this condition holds any medico-legal implications beyond those of a simple fractured femur, they are lost on the court without explanation. It is again incumbent on practitioners to ensure that reports produced under hearsay adequately explain the more esoteric aspects of their own contents."

Bearing these comments in mind, it is helpful if each specialist medical expert can state, perhaps in an appendix to his report, his qualifications, expertise and experience and give a glossy of the medical terms used in the report.

The costs of medical reports are part of the costs of the proceedings, not part of the special damages [Chung Man Yau v Sihon Co Ltd [1996] 3 HKC 614, Leonard J].

Locate the Witnesses if any

Do not wait until after the action has been commenced as the Plaintiff might have lost contact with the witnesses by then. Moreover, except where the accident has been investigated so that the witnesses may have already made statements to the Police or the factory inspectors, if witnesses are contacted a long time after the accident, their memory of the accident may fade. Not being a party to the accident, they have no reason to occupy their minds with the facts of the accident. So in most cases you should try to have a conference with the witnesses and take full statements from them. If possible, try to impress upon them that they are very important persons, that you and the Plaintiff are extremely grateful to them for sparing the time to meet with you and you would be grateful if they would notify you of any change of correspondence address.

You should take the statement of a witness in the same way as you take a statement from the intended Plaintiff including such particulars as :

13. Date of birth of the witness. (Do not forget to take a copy of his ID card or passport).
14. Whether the witness reads and write Chinese and English and a brief outline of his education background.
15. His occupation.
16. If he was a co-worker working for the same employer, his earnings at date of accident, how he was paid his wages, how long had been working with that employer before the accident, whether he continued to work for the same employer and for how long and what has been his earnings since the accident. (These are relevant in substantiating the Plaintiff's earnings at date of accident and his notional earnings at trial date).
17. Date, time and location of the accident.
18. Full description of the events relating to the accident and any tool or equipment involved.

If the witness has made any previous statement, always let him refresh his memory from that statement and clarify any discrepancy.

Remember to ask the witness to sign the statement, so that if you lose contact with him at a later stage, you may still rely on his signed statement.

Evidence of the Plaintiff's earnings

If the Plaintiff has been unable to work, then evidence of his earnings at the time of the accident and the annual increase since the accident should be obtained. You may find a figure in the Form 2 filed by the employer under the Employees' Compensation Ordinance. This may or may not be the correct figure. If ECC proceedings has been commenced, then the employer will have to file a List of Earnings in those proceedings. Confirm with the Plaintiff whether he agrees with those figures. If he does not, then full discovery of the wage records and/or administration of appropriate interrogatories may have to be made in due course to obtain the necessary evidence.

If loss of future earnings is to be claimed, then the general retirement age of the Plaintiff's pre-accident occupation as well as the annual increase since the accident are relevant. Appropriate discovery should be made with the employer. Statistics should be obtained from the Census and Statistics Department. Some trade unions may also be able to supply you with relevant data. Enquiry with the relevant trade union may be made, e.g. The Construction Industry Employees General Union, The Hong Kong Confederation of Trade Unions, The Goods Loading, Unloading and Transportation Workers' Union and Cargo Supervisors' Association, The HK & Kowloon Metal Industry Workers General Union, etc.

Evidence in a Traffic Accident

Write to the Vehicle Records Office of the Transport Department to obtain the "Particulars of Vehicle" as at the date of the accident.

Write to the Commissioner of Police to obtain the following documents :

19. All statements of witnesses relating to the accident and their English translations, if any, including the statement made by the Defendant.
20. Sketch Plan.
21. Photos or laser copy of the photos (not black and white photocopies - Sep 99 Guidance, p.13).
22. MVE Accident Report.
23. Particulars of Parties involved in a Traffic Accident.
24. Case Result, Brief Facts and Summonses in relation to any prosecution arising out of the accident.

The witnesses statements should be the unedited version [Lily Tse Lai Yin & ors v The Incorporated Owners of Albert House & ors [1999] 1 HKC 386, Suffiad J - application of the Personal Data (Privacy) Ordinance, Cap.486 is exempted].

Strictly speaking, in order to prove the conviction, you should get true copies of the Summonses (or charge sheets) and records of proceedings from the Magistrates' Court - a true copy is a copy certified by the clerk of the court to be a true copy [Evidence Ordinance, Cap.8, s.62(4); O.25 r.8(1)(dd)]. But usually, the Defendant does not deny the conviction, in which case the documents obtained from the Police will suffice.

If the conviction was after trial, however, then you may want to get the full record of proceedings because the Plaintiff, the Defendant and other witnesses would have given evidence at the trial. You may want to see what they said and how they stood under cross-examination. True copy of the record of proceedings may be obtained under Magistrates Ordinance, Cap.227, ss.34, 35 and 35A [Wong Siu Hing v Lo Che Keung [1991] 1 HKC 412, Kaplan J].

Use of expert evidence in traffic accident cases is not encouraged : Liddell v Middleton [1996] PIQR 36, CA, Stuart-Smith LJ :

"We do not have a trial by expert in this country; we have trial by judge. In my judgment, the expert witnesses contributed nothing to the trial in this case except expense. ......... in road traffic accidents it is the exception rather than the rule that expert witnesses are required." [p.42]

Evidence in an Industrial Accident

Write to the Labour Department to obtain all relevant documents [Cheung Kai-wing v Mok Sheung Sum t/a Mok Sum Kee & Anr. [1993] 2 HKC 113, CA], e.g. :

25. Statements of witnesses and all relevant reports compiled by the factory inspectors relating to the accident.
26. All relevant photographs or their laser copies (not black and white photocopies - Sep 99 Guidance, p.13).
27. If there were other accidents on that site of the same nature or involving the same machine or equipment, reports relating to these other accidents.
28. Notes of factory inspectors' visits to the construction site or factory premises in the 12 months preceding and the 12 months following the accident.
29. All correspondence with the principal contractor concerning the safety of the site and breach of relevant statutory provision.

The witnesses statements should be the unedited version [Lily Tse Lai Yin & ors v The Incorporated Owners of Albert House & ors [1999] 1 HKC 386, Suffiad J].

If there has been any prosecution against the Defendant, then true copy of the record of proceedings in the Magistrate's Court should be obtained [see paras. 32 & 33 above].

If no investigation into the accident has been made, you may have to consider WHETHER expert evidence is necessary. I put "whether" in capital letters because the remarks of Stuart-Smith LJ in Liddel v Middleton cited above has been reiterated in many subsequent cases - industrial accident cases as well as road traffic cases.

In Liddell v Middleton [1996] PIQR 36, CA, at p.67 :

"There has been a regrettable tendency in recent years in person injury cases, both road traffic and industrial accidents, for parties to enlist the services of experts whether they are necessary or not. When they are not necessary, they simply add to the already high cost of litigation and the length of the trial. In industrial accidents and expert may well be needed to explain complicated machinery or to give evidence of practice and safety procedure. But in road traffic accidents it is the exception rather than rule that expert witnesses are required. Where the Plaintiff is in receipt of legal aid the Legal Aid Board should not authorise the employment of an expert witness without the opinion of Counsel as to the matter upon which an expert opinion is required and the necessity of such evidence.

Where in an opinion of the Court expert evidence is called unnecessarily the Court can and should invite the Taxing Master to consider specifically whether the costs relating to such evidence had been reasonably incurred (see O.62, r.12). While this is a decision for the Taxing Master, he may well derive assistance from the observation of the Trial Judge."

[see also Hawkes v London Borough of Southwark, 28-2-1998, CA, Lexis transcript; Hurd v Stirling Group Plc, 26-5-1999, CA, Lexis transcript].

If the Defendants are limited companies or trading in a firm's name, then searches with the Business Registration Office and the Companies Registry should be made.

Preservation of machine/equipment

If the accident involved any machine or other equipment, unless the accident has already been investigated by the factory inspector who would have taken all the relevant facts relating to it, see if it is still possible to locate it and take photos of the piece of machine in question. Inform its owner (who is quite often the intended Defendant) that the Plaintiff intends to institute legal proceedings and the machine/equipment in question will be a relevant piece of evidence so that you should be notified before any move is made to dispose of it. If necessary, you may make an application to preserve the machine/equipment before or after the action [High Court Ordinance, ss.41-44, RHC O.29 rr.2 & 7A].

Discovery against non-party

If you have problems getting the documents from the Police or the Labour Department, application made be made against them under the High Court Ordinance, s.41 or s.42 (before or after the commencement of action) [Lily Tse Lai Yin & ors v The Incorporated Owners of Albert House & ors [1999] 1 HKC 386, Suffiad J] [see also para.33 above].

Letter before Action

A pro-forma "letter before action" may be conveniently found in as Annex B to the Sep 99 Guidance. This was annexed as "an encouragement to the Plaintiff's solicitors to notify the Defendants in an intelligible and helpful form of the salient features relating to the claim" [Sep 99 Guidance, p.14].

Commencement of Action

An action brought to recover damages for personal injuries or fatal accidents must be commenced by Writ [RHC O.5 r.2(c)].

Every Writ must be in Form No.1 in Appendix A to the RHC [O.6 r.1].

The Writ shall, notwithstanding the filing of the Statement of Claim contemporaneously, contain on its reverse the concise statement of the nature of the Plaintiff's claim (i.e. a General Indorsement as provided in O.6 r.2(1)(a)) as if the proceedings were commenced by issue and filing of the Writ alone [Practice Direction 18.2, para.1].

If the Writ is not indorsed with a Statement of Claim, then the Statement of Claim must be served on the Defendant before the expiration of 14 days after that Defendant gives notice of intend to defend [O.18 r.1].

The Writ is valid for service within 12 months of its issue [O.6 r.8].

But with the Check List Review procedure in force since 1^st September 1998 [PD para.6], unless there are exceptionally good reason, the previous practice of issuing a generally indorsed writ just before the limitation period expired to buy time and then kept it quiet for 12 months before serving it is no longer feasible.

Issue of the Writ

With effect from 15^th April 1996, all personal injury, fatal accident and medical negligence actions will be assigned to the Personal Injury List [PD para.1]. The Writ will be marked in the top left hand corner with an action number "P.I. 1234 of 2000" [O.72 r.4(1)].

On filing the Writ to the Registry for issue, you should lodge with the Registry a Notice of Check List Review in duplicate [PD Appendix 2].

A date for the Check List Review Hearing will be given and indorsed on the Notice which shall be not less than 6 months and not more than 7 months from the date of issue of the Writ [PD para.6.3].

One copy of the Notice will be filed at the Registry and one copy sealed will be returned to you for service on the Defendant.

Service of the Writ - indorsed with the Statement of Claim

The following documents shall be served with the Writ, each as a separate document :

30. The Writ contain on its reverse the concise statement of the nature of the Plaintiff's claim [see paragraph 46 above].
31. The Statement of Claim separate from the Writ [Practice Direction 18.2, para.1]
32. The Statement of Damages [PD para.2] [see Sample Documents].
33. Medical report or a bundle of medical reports. For fatal accidents, the post-mortem report should be served instead.
34. Notice of Check List Review.
35. Notice to Insurer under the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, s.10(2)(a) (which must be served not later than 7 days after the issue of the Writ). In industrial actions cases, notice would have been given to the insurer under the Employees' Compensation Ordinance, Cap.282, s.43. If no notice has been served, it is advisable that notice be given to the insurer of the proceedings even if it is not mandatory.
36. Notice to the Motor Insurers' Bureau ("MIB"), if applicable (which must be served not later than 7 days after the issue of the Writ).

Under the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, s.16 the Police have power to require a driver to provide his name and address and the name and address of the owner of the vehicle and to produce the certificate and policy of insurance for inspection. On enquiry with the Police, they will be able to supply you with "Particulars of Parties involved in a Traffic Accident" on which the name of the insurance company, the policy number as well as from the name and address of the driver (and perhaps the owner) are stated. So it is usually not necessary to make any further enquiry, though under s.13 of the Ordinance, Cap.272, you may demand the driver to state whether he is insured by an effective policy and give you particulars of the policy as per the certificate of insurance.

If you find out whether from the Police or from the driver directly that no effective insurance was in force to cover the driver's liability, then you must of course give notice to the MIB under Clause 8 of the First Fund Agreement between the Government and the MIB dated 1^st February 1981. Like the notice to Insurer, it must be given before or within 7 days after the commencement of proceedings. There is no provision for any waiver of the time limit.

The Statement of Claim

Matters which must be specifically pleaded in the Statement of Claim :-

37. Breach of statutory duties, if any.
38. Convictions of the Defendant, e.g. conviction of careless driving, conviction of offences under the Factory and Industrial Undertakings Ordinance, Cap.59, if any [RHC O.18 r.7A(1)].
39. Provisional Damages [O.18 r.8(3); O.37 rr.7-10].
40. Interest [O.18 r.8(4); High Court Ordinance, Cap.4, s.48].

The Statement of Claim shall not plead any description of injuries other than those identified by the hospital or by the Plaintiff [Practice Direction 18.2, para.2]. In general I would prefer not to include any of these in the Statement of Claim. Instead, I would simply refer to the Statement of Damages for particulars of the Plaintiff's injuries.

If the Statement of Claim was not indorsed on the Writ, then the claim and reliefs must be consistent with the General Indorsement of Claim [O.18 r.15(2)].

Matters arising both before and after the issue of the Writ may be pleaded [O.18 r.9].

The Statement of Damages

The Statement of Damages must comply with PD para.2 [see Sample Documents].

Government as Defendant

If you want to bring any action against any government department, you should name "the Secretary for Justice" as the Defendant [Hong Kong Reunification Ordinance, Cap.2601, s.18].

Plaintiff a person under disability

O.80 applies to a "person under disability" which includes a minor or a patient.

A minor is a person under18 [Age of Majority (Related Provisions) Ordinance, Cap.410, s.2].

Most people remember to comply with O.80 when the Plaintiff is a minor. However, many overlook the case of the Plaintiff who is suffering from mental disorder.

If you know that the Plaintiff has a mental history, you must take care to ascertain whether he is or is not "incapable of managing and administering his property and affairs" [O.80 r.1]. In case of doubt, you should arrange for the Plaintiff to be examined by a psychiatrist for this purpose.

Preparation for the Defendants

The steps you should take will be similar to the steps that the solicitors for the Plaintiff would take. You would likewise have to gather all relevant evidence and interview all relevant witnesses which will usually include the Defendants and/or the responsible officers, e.g. the foreman and safety officer of the site, the company's accountant responsible for calculating and paying the Plaintiff's wages, the person who signed the Form 2 filed under the Employees' Compensation Ordinance. You should obtain full signed statements from them [see paras.8 to 10 above].

Steps in the action

Acknowledge service of the Writ and state the Defendant's intention to defend if that is the case [RHC O.12].

File and serve the Defence on the Plaintiff and other co-defendants, if applicable, before the expiration of 14 days after the time limited for acknowledging service [O.18 r.2(1) & O.18 r.5A].

File and serve Notice of Contribution against any co-defendant, if applicable [O.16 r.8].

The Defence

Matters which must be specifically pleaded in the Defence :

41. Denying the conviction (if applicable) [O.18 r.7A(3)].
42. The conviction is erroneous (if applicable).
43. Denying that the conviction is relevant to any issue in the proceedings (if applicable).
44. Any relevant statute of limitation [O.18 r.8].
45. Volenti non fit injuria.
46. Contributory negligence (good practice to plead).
47. Reduction of any award for loss of earnings by the Plaintiff's tax liability, if applicable.

Realistic approach

The September 1999 Guidance at pp.10-11 :

"There are cases where the Defence filed does not in fact disclose a defence; where statements themselves do not disclose a defence; and where a Defendant in default of the requirement of the Practice Direction has failed to file, without reasonable excuse, any statements in support, and where in such circumstances, it is clear that as a matter of law and fact the Plaintiff must succeed wholly, judgment will be entered for the Plaintiff. The Court will not allow its resources, and the court process to be abused by wholly irrational and unmeritorious contentions. Some allegations of contributory negligence are an offence to common sense; some cases disclose such clear negligence on the part of the Defendants, relying upon facts which are not controverted or are incontrovertible, that it would be pandering to an irrational litigiousness to allow the matter to proceed as a contested one. Practitioners should therefore have a realistic regard to the merits of their case and be prepared to argue what is arguable at the hearing."

The obvious case is where the Defendant has been convicted of any relevant offence, e.g. careless driving in a traffic accident or breach of the Construction Site (Safety) Regulations in an accident in construction site. In such cases, you may want to negotiate with the Plaintiff to agree to an appropriate degree of contributory negligence, if applicable and enter judgment at the reduced percentage.

Because of the court's robust approach, it is wise to obtain an early advice from Counsel on liability, at least well before the Check List Review.

 

Automatic Directions - O.25 r.8

If liability is not admitted, when pleadings are deemed to be closed, i.e. 14 days after service of the Defence [O.18 r.20], the following directions take effect automatically :

48. Discovery of documents within 14 days. Inspection within 7 days thereafter.
49. Disclosure any medical reports or other expert reports within 6 weeks. Mutual exchange should be arranged [O.25 r.8(2)].

Remember to include in the List of Documents any photographs, sketch plan, MVE reports which the party wishes to rely on and true copies of the notes of proceedings in the Magistrate's Court or any other tribunal relating to any relevant prosecution of the Defendant. Under O.25 r.8, there is an automatic direction that these documents shall be receivable in evidence.

Apart from the automatic directions, for actions commenced before 1^st June 1999 when the amendments to the Evidence Ordinance came into effect, then Hearsay Notice and Counter-notice, if applicable, must be served.

The Hearsay Notice may list the sick leave certificates, medical receipts and wage receipts in the index, but it is not necessary to annex them to the Notice itself to avoid duplicate photocopying of these voluminous documents [Sep 99 Guidance, p.13].

You may also consider whether further discovery should be sought, whether any request for further and better particulars should be made or whether any interrogatories should be served.

A common example is discovery of the wage records of the Plaintiff and other comparable workers if the Plaintiff's employer is one of the Defendants.

 

The Check List Review ("CLR")

Either party may apply for an earlier or later date for the CLR upon reasons.

50. For application for an earlier date, see PD para.6.6 & Sep 99 Guidance, pp.2-3.
51. For application to postpone the CLR, see PD para.6.5 & Sep 99 Guidance pp.4-5.

Both parties must each file a Check List (standard form at Appendix 3 of PD) not later than 7 clear days prior to the CLR - remember to exclude Sunday and general holiday in counting the number of clear days [O.3 r.2].

In addition, the Plaintiff's solicitors must file the followings with the Check List - if and only if these documents have not been filed and served previously [PD para. 6.9] :

52. All the witness statements in compliance with O.38 r.2A.
53. In a running down action, the witness statements taken by the police, the case result, summons and brief facts in relation to any prosecution of the Defendant, the sketch plan of the accident location and photographs or their laser copies, if any.
54. In cases of industrial accidents, the report of the factory inspector or any other investigation report by any other government department.
55. Additional medical reports, if any.
56. Expert reports, if any.
57. True copy of the record of proceedings in the Magistrate's Court or Coroners' Court relating to the accident and any prosecution of the Defendant.
58. Any pleadings, further and better particulars or interrogatories not already filed with the court.

In addition, the Defendant's solicitors must file the followings with the Check List - if and only if these documents have not been filed and served previously [PD para. 6.10] :

59. All the witness statements in compliance with O.38 r.2A.
60. Any statutory record, report or form completed by or on behalf of the Defendants or in the Defendant's possession or control arising out of the accident.
61. Additional medical reports, if any.
62. Expert reports, if any.

Remember, all documents need to be filed once only. So, for example, if the sketch plans and photos of a traffic accident location has been served on the Defendant as part of the automatic directions, you do not have to serve them again with the Check List. Likewise, the medical reports would have been filed with the Statement of Claim and/or in compliance with the automatic directions, just state in the Check List that they have been filed. There is no need to file them again.

Avoid unnecessary duplication and excessive photocopying. Such documents as sick leave certificates and medical receipts should not be filed [Sep 99 Guidance, p.10].

These documents must be put into a hard file, not ring binder or clip file or other cover and you should state on the file that it is filed for the CLR [Sep 99 Guidance, p.9].

Duty of Counsel : If you intend to retain Counsel to advise in the proceedings, perhaps you should do so well in advance of the CLR so that Counsel may advise you on the witness statements (but not to draft it) and what, if any, interlocutory application should be made before or at the CLR, e.g. application for interim payment, split trial under O.33 r.4, further discovery, administration of interrogatories, etc.

No certificate for Counsel will be allowed, however, if you instruct Counsel to appear at the CLR [PD para. 6.11].

In the event of dispute, interlocutory applications should be made at the CLR instead of by separate hearings. If necessary, parties may apply for an early date for the CLR [Sep 99 Guidance, p.2 & p.12].

Interim payment application are encouraged : Sep 99 Guidance, pp.11-12 :

"Interim payments are not sought as often as they should be. There are many cases where they are appropriate. The procedure as provided by the Rules of the High Court did not envisage a cumbersome process. Many Defendants' only resistance to such a request appears to be a reluctance to release money which they are going to have to release in any event. The court will seek to open up this channel of early partial payment of damages in all appropriate cases in order to facilitate resolution of actions."

Specimen Directions at a CLR may be found at Annex A to the Sep 99 Guidance.

If further directions are required, the PI Master may require the parties to attend a second (or even third) CLR. Alternatively, if no further directions are required, then a direction for trial may be given.

The best way to prepare for a CLR is to carefully go through each and every item in the Check List and the Specimen Directions and decide what directions are outstanding.

N.B. for solicitors for the Defendant : Judgment may be entered at the CLR where liability has been admitted or through default of the Defendant in complying with any rule or order or "where there is patently no defence in fact or in law" [Sep 99 Guidance, p.12; para.72 above] . So if the Defendant is disputing liability, the Defendant must have his evidence in support of the Defence ready by the CLR.

If judgment is entered at the CLR, then directions may be given for the assessment of damages [Sep 99 Guidance, p.12].

Witness Statement for filing into Court under O.38 r.2A :

As said above, you should take a comprehensible statement from the Plaintiff in the first conference you had with him, which I shall call the "client's statement". If further facts and up to date information are obtained as the case progresses, these should be added to the client's statement. But in preparing for the witness statement to be filed in court, you may have to edit the client's statement. There may be matters which are privileged from disclosure. There may be matters which are not relevant to the issues. There may be matter which are purely unsubstantiated hearsay. There may be facts which have been admitted already so that details are unnecessary.

Remember to comply with O.38 r.2(A)(4) :

63. The Statement must be dated and signed.
64. The witness shall state : "the contents are true to the best of my knowledge and belief".
65. If the witness refers to any documents, they should be sufficiently identified. There is no need to annex them to the statement, just identify them.

In stating the injuries and disabilities, if the Plaintiff agrees with the contents of the medical reports that have been disclosed, then rather than repeating his complaints, he may instead confirm that the description in the medical reports of his injuries and current disabilities are true and correct [Butterworths Personal Injury Litigation Services, Issue 32, Para. IV[17.1]]. This has the added advantage of avoiding any inconsistency between the Statement and the Medical Reports.

Similarly for the special damages such as medical and travelling expenses, instead of the Plaintiff repeating tediously the expenses, I find it easier for the Plaintiff to simply confirm that the special damages pleaded in the Statement of Damages are true and correct.

Do not forget to deal with any matters raised by the Defence, e.g. allegations of contributory negligence.

Counsel may be asked to advise on the witness statement, but not to draft it [Sep 99 Guidance, pp.7-8].

Pre-trial Review ("PTR")

PD para.6.8 provides that at the CLR, if the PI Judge or PI Master considers that no further order as to the conduct of the action needs to be made and the case is in a sufficient state of readiness, he may fix a date for the PTR or a date for expedited trail without a PTR.

It is now made clear in the Sep 99 Guidance that PTR will be ordered only in "complex or other than run-of-the-mill" cases [p.11 & p.15]. So in most cases, the CLR will deal with all the necessary directions and when the case is ready for trial, a direction to set down will be given at the CLR.

If in the exceptional cases where PTR is ordered, the procedures laid down in PD para.9-11 and Sep 99 Guidance p.15 should be followed.

Compliance with Practice Direction 18.1 is important

Tong Yi Sang v Fung Law & Ng [1993] 2 HKC665, Kaplan J :

"Practice Direction are intended to be complied with. They are designed, in consultation with the profession, to ensure the efficient, expeditious and economical dispatch of the court's business." [p.669E-F]

"If in future, these Practice Directions are ignored, save in the most exceptional circumstances, I propose to refuse to hear the case and adjourn it to a date to be fixed by which time I will expect the Practice Directions to be fully complied with. Further, I will expect an undertaking from solicitors who have ignored the Practice Directions to the effect that they will not seek to charge their clients for the costs thrown away. If not given, then I will consider inviting the solicitors to show cause why they should not pay the costs personally." [p.670B-C]

"Counsel cannot shirk their responsibilities. If instructed, other than the night before, it is also their duty to advise their instructing solicitors about compliance with these Practice Directions." [p.670E-F]

See also Korea Sonbak Shipping Co v Charter Harvest Shipping Ltd [1994] 1 HKC 494, Keith J, at p.502E-F; Re Boon Voon King, ex parte Nedcor Asia Ltd [1998] 2 HKLRD 456, Le Pichon J.]

Preparation for Trial - the Trial Bundle

This is specified in the Sep 99 Guidance, p.14 :

66. One single trial bundle,
67. In lever arch file,
68. With different sections/dividers :-

A - Pleadings and relevant orders;

B - Statements and reports on liability;

C - Medical Reports;

D - Relevant documents

69. In continuous pagination.

If the Statement of Claim or Defence has been amended, only the amended version need to be included. Likewise, only the revised Statement of Damages and Answer need to be included. The Hearsay Notice may be included but not the documents annexed to the Notice as they would be duplication. [These are my suggestions]

All the medical reports, agreed or non-agreed, should be put under one section - the Plaintiff's reports first in chronological order followed by the Defendant's reports in chronological order [Sep 99 Guidance, p.13].

The sick leave certificates, medical receipts and wage slips should not be put into the trial bundle "unless for some reason they have a particular significance and all parties require their conclusion" [Sep 99 Guidance, p.13].

Only documents which are contentious are required. In large or complex cases, more than one lever arch file may be required but the emphasis must in general be on a compact volume [Sep 99 Guidance, p.14].

Fatal Accidents

Commencement of proceedings - Before letters of administration has been obtained

Following Chung Yi Yuen v Lau Kook Shing [1999] 2 HKLRD 413, CA, it is now clear (at least unless and until the decision is reversed by the Court of Final Appeal) that the formula "AB, intended administrator of the estate of XY, the deceased" should never again be used.

So who should be named the plaintiff or plaintiffs in the Writ ?

The followings are my suggestions.

First of all, in order to bring a claim under LARCO, i.e., a claim on behalf of the estate:-

70. The Writ should be issued in the name of the Deceased under RHC O.15 r.6A(3) - "XY, deceased" [Chan Chu Hang v Man Yun Sau [1997] 2 HKC 144, p.151D].
71. After the Writ is issued, application should FORTHWITH be made under RHC O.15 r.6A(4) and O.15 r.15 for an order to appoint a person (e.g. the widow) to represent the estate of the Deceased for the purpose of the proceedings.
72. N.B. : It was held in Re Yam Wong Tak, Deceased [1973-1976] HKC 355, Yang J that application may be made under RHC O.15 r.15 only after an action has been commenced. Before an action is commenced, the proper application should be made under the Probate and Administration Ordinance, Cap.10, s.36. [see also Overseas Trust Bank Ltd v Ho Pui Wah [1987] 2 HKC 459, Barnes J, pp.460I-461A & 462B].

Secondly, in order to bring a claim under FAO, i.e., a claim on behalf of the dependants :

73. The Writ should be issued in the name of the dependants to comply with the FAO, Cap.22, s.5.
74. Care should be taken to draft the name of the plaintiffs in order to comply with s.5(2). It requires the action to be brought "by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it", i.e. by and in the name of the dependants.
75. There is a difference in opinions as to what "all or any" means. Some people consider it sufficient if one of the dependants is named as plaintiff. I take a different view. I consider that all the dependants who are making a claim (or on whose behalf a claim is made) should be named as plaintiffs. The reason the section allows for "all or any" is to cater for the situation where one or more dependants, for whatever reason, may not want to make any claim or be joined as a party and the reluctance of these dependants to claim should not inhibit the other dependants from instituting the proceedings and making a claim. So I would name all the claiming dependants. This may result in a very long description of the plaintiffs, but I consider this unavoidable. Of course, you may or may not agree with me.

If proceedings have already been commenced using the "old" formula, then a summons should forthwith be issued :

76. To seek an order to appoint a person to represent the estate under O.15 r.15.
77. To seek leave under O.15 r.6 and O.20 r.5 to amend the Writ so to comply with s.5 of the FAO.

Commencement of Action - After Letters of Administration has been obtained

In such a case, the action should be commenced in the name of the administrator or administrators (or administratrix or administratices) in such capacity.

If any of the dependants are minors, then there must be at least 2 administrators [Probate and Administration Ordinance, Cap.10, s.25(1)].

All administrators, if there is more than one, must be joined as plaintiffs [Chan King Wan v Honest Scaffold General Contractor Co Ltd [1998] 2 HKC 358, Cheung J, p.361D]. If anyone of them is unwilling or unable to do so, he must be joined as a defendant.

Commencement of Proceedings - the Defendant is dead

If possible, you should ascertain with the solicitors acting for the intended defendant whether any probate or letters of administration have been obtained. If so, then the executor or administrator, as the case may be, shall be named as defendant in that capacity.

If no probate or administration has been made or if it is not feasible to ascertain beforehand whether any has been made, then the Writ should be brought against "The personal representative of XY, deceased" in accordance with RHC O.15 r.6A(2).

After the Writ is issued, application should forthwith be made under O.15 r.6A(4) to appoint a person to represent the Deceased [Trustee of the property of Law Ip Po v Yuen Yip Kan [1994] 3 HKC 493, p.496H]. Before the application is made, you should have enquired with the solicitors for the Defence as to whether any person is willing to represent the estate.

Evidence in a Fatal Accident action

If the police has prepared a report on the accident or a death inquest will be held, then you may want to obtain the relevant documents from the Coroner under Coroners Ordinance, Cap.504, s.13 & Schedule 2. After the death inquest, you may apply for the record of evidence taken at the inquest under the Coroners Rules, rule 20.

Evidence of the Deceased's income at the date of his death and his notional income at the date of trial must be obtained in every case (unless, of course, the Deceased was a child or a housewife) [see para.27 above].

Full particulars of each and every dependant should be obtained [see Sample Statement of Damages].

Do not forget to take copies of the dependant's ID card or passport and the birth and marriage certificates as proof of the relationship between the Deceased and the dependants.

Note : Parents-in-law are arguably not dependants within the meaning of s.2 of the FAO unless they were living with the Deceased at the date of his death [Chan Sim Lan v Sheen State International Ltd [1994] 1 HKC 460, Kaplan J, pp.467H-468A].

If loss of dependency is claimed, e.g., the Deceased a married man, then the widow should be interviewed and a full witness statement should be obtained from her [See para. 8 above on the taking of statements] :-

78. The state of health of the Deceased prior to his death. Did he smoke, drink and gamble ?
79. The Deceased's education background and work history.
80. How much did she receive from the Deceased each month ? Did the Deceased pay her in one lump sum on a particular day each month ? Or did the Deceased pay by different payments ? Did the Deceased pay the money to the widow for her to disperse the household expenses or did the Deceased pay for any of the expenses directly, e.g. rent ?
81. Was the widow working at the date of the Deceased's death ? If she was, what was her occupation and earnings ? Out of her earnings, how much did she spend on the household expenses, how much did she spend for the children and how much did she spend on herself ?
82. Is the widow still working ? If so, is she in the same job and how much is her current earnings ? If the widow has ceased working, was it because of the Deceased's death ? [See Tsang Mei Ying v Lam Pak Chiu [1999] 2 HKLRD 807, [1999] 3 HKC 59, Seagroatt J, p.815 in which an award was made for the widow's loss of earnings on the evidence that the Deceased's mother could no longer look after the children as a result of the Deceased's death whereby the widow had to give up her job to look after the children herself.]
83. Were the children working or were they still studying at the time of the Deceased's death ? If they were students, which school were they attending and at what year at the time of death and currently ?
84. If any child was working or has started working after the Deceased's death, what is his work history ? What were and are his earnings and contributions to the household, if any ? How are the contributions made ?
85. Anyone else contributed to the household expenses at the date of the Deceased's death ? His name, age, occupation and earnings ? Did he pay the money to the widow ? Did he pay in one lump sum on a particular day each month ? Or by different payments ?
86. Particulars of household expenses, e.g. food, electricity, telephone, water, gas, TV, rent, etc.
87. Particulars of individual expenses, e.g. lunch, pocket money, school fee, stationery, medical fees, clothing, transportation, entertainment, etc.
88. All the evidence in support of the items of expenditures, e.g. bills, receipts, cheque book, bank passbook. As the amounts may fluctuate from month to month or quarter to quarter, it is preferable to obtain the figures for the 12 months preceding the Deceased's death for a more accurate average to be calculated. The widow should be asked to continue to keep all the vouchers up to the date of trial. If no record has been kept by the widow, it may be possible to write to the relevant utility provider to obtain a record of the payments made.
89. In addition, did the Deceased take the family out for meal and movies, etc. ? and did he buy presents for the family ? If so, how often did he do so ? Approximately how much would he spend on these ?
90. Did the Deceased pay money or buy presents to, e.g. his aged parents ? If so, how much ? Did the Deceased pay the money directly or through the widow ? If he paid directly, then the parents may have to give evidence on this fact instead of the widow.

In Fenton v Thorley [1903] AC 443, HL, the workman worked at a machine which required him after each operation to move a lever and then turn a wheel to raise the lid. On the day in question, after repeating the process many times for most part of the day without a hitch, at about 9 p.m., when he tried to turn the wheel, he found that the wheel would not turn. He called a fellow workman to his assistance and the two men together set to work to move the wheel when suddenly he felt "a tear in his inside". It was found that he had ruptured himself. The House of Lord was unanimous that the workman suffered an "injury by accident" within the meaning of the English Act.

Lord Macnaghten [pp.446-448] :

.......... Now the expression 'injury by accident' seems to me to be a compound expression. The words 'by accident' are, I think, introduced parenthetically as it were to qualify the word 'injury', confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. ............. I come, therefore, to the conclusion that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed."

Lord Robertson [pp.451-452] :