(IV) Case illustration

Scenario:

One day Mr. C and his son were walking along the street. Suddenly, an aluminum window fell from a residential flat above and hit them. They were injured as a result. In addition to the criminal prosecution by the police, Mr. C intends to bring a personal injury claim against the owner of the flat.

Question 1:
Before the commencement of the personal injury proceedings, Mr. C received $10,000 as compensation from the flat owner. Does he consequently lose the right to sue him?Answer 1

Question 2:
Mr. C lost consciousness after the accident for about a day and cannot remember all the details of the accident. Will his lawyer or the police gather all the necessary evidence for the case?Answer 2

Question 3:
Mr. C can identify one witness to the accident. However, he refuses to give evidence in court. Can Mr. C request that the court compel the witness to give evidence?Answer 3

Question 4:
The flat owner received a court document stating that he is the defendant in a personal injury case. He doesn't think that he has any liability regarding the plaintiff's injury. How should he handle the court document?Answer 4

Question 5:
Mr. C's son died one week after the accident. Mr. C thinks that his son's death was caused by the negligence of the flat owner, but the flat owner denies negligence. Should Mr. C bring the case before the Coroners' Court to determine the cause of death before commencing the personal injury proceedings at the District Court or the High Court?Answer 5

Question 6:
Mr. C's claim is still in progress but he does not have the money to pay a huge medical bill. Can he apply for any "interim payment" during the proceedings?Answer 6

Question 7:
Mr. C has commenced the personal injury proceedings but his injury is worsening. Can he increase the claim amount while the proceedings are in progress?Answer 7

Question 8:
What happens if the defendant (the flat owner) dies during the proceedings? Can Mr. C obtain compensation from the defendant's property/estate?Answer 8

Answer 1

The loss of the right to sue depends on whether or not the payment is made as a full and final settlement of the dispute between the parties. If the flat owner had told Mr. C not to sue him before he paid the money, it is likely that Mr. C has agreed under the terms of the settlement to forego any rights to seek further compensation.

Answer 2
The police have a duty to investigate where a crime is believed to have taken place (i.e. to check whether there is criminal liability involved). The plaintiff's lawyer in a personal injury claim may also carry out their own investigation of the accident. If criminal liability is proved, then the plaintiff's lawyer should also try to obtain the relevant police statements and court documents to justify the personal injury claim.

Answer 3
Mr. C is entitled to require the attendance of a witness to give evidence in court by way of subpoena, i.e. to compel the witness to attend the court trial, under the Rules of the High Court Order 38 (Rules 14 - 19) or the Rules of the District Court Order 38 (Rules 14-18) .

Answer 4
The flat owner, as the defendant, must file an Acknowledgement of Service to the Court within 14 days (if the document is delivered by the plaintiff or his solicitor by hand) or 21 days (if delivered by post).

Within 14 days of filing the Acknowledgment of Service, he must file his Defence (stating all the grounds for denying the liability), together with other documents that include any statements made by him and other witnesses.

Answer 5
In a personal injury case, the plaintiff must prove that the defendant "caused" the injury or damage. A number of tests are applied by the District Court/ High Court to determine whether or not the defendant caused the injury or damage. There is, however, a distinction between the factual cause(s) of the injury or damage, and the legal cause – i.e. the cause which is most legally relevant for imposing liability. It is thus unnecessary to bring a fatal accident case before the Coroner's Court to determine whether or not negligence was the cause of death, though such a finding in the Coroner's Court would certainly serve to strengthen the plaintiff's case (if it is proved that the defendant was negligent).

Such a course of action, however, is a double-edged sword. A finding by the Coroner's Court that negligence was not the cause of death would weaken the plaintiff's case in suing for compensation at the District Court/ High Court.

Answer 6
An application for interim payment can be made where the defendant has admitted liability for compensation, or the plaintiff has obtained judgment with compensation to be assessed (i.e. the plaintiff has won the case but the Court needs more time to decide the amount of compensation).

In a personal injury claim, an order for interim payment is made only if the defendant is insured for the claim, is a public authority or has the financial resources to make such a payment.

Answer 7
The Statement of Claim may be amended after it has been issued either with the written consent of all the other parties, or with the permission of the Court.

Where there is a future possibility of serious disease or deterioration in the plaintiff's condition, the Court has the right to reassess the relevant losses and compensation at a later date if such a disease or deterioration occurs.

Answer 8
If the defendant dies during the proceedings, and the letters of administration have been taken out or probate has been granted, then the legal action survives and continues against the administrators or executors of the defendant's estate as normal.

If there is no grant of probate or letters of administration, then the plaintiff may commence legal action against the estate of the defendant. The plaintiff must write to the Court for an order that appoints someone to represent the defendant's estate (for the purpose of the legal proceedings) and an order that proceedings be carried out against the representative. A subsequent court judgment or order in such proceedings is binding upon the defendant's estate to the same extent and in the same way as if the grant of probate or letters of administration had been made. In other words, any compensation that is awarded should be deducted from the defendant's estate.