CHAK KIN SUN AND ANOTHER v. LAM KWOK YUEN AND ANOTHER

CHAK KIN SUN AND ANOTHER v. LAM KWOK YUEN AND ANOTHER

The defendant affidavits failed to disclose any triable issue of contributory negligence in respect of a seven year old lawfully on the pavement and, separately, the defendant's sworn evidence contained material unexplained inconsistencies; for those two independent reasons the court refused to set aside the interlocutory default judgment and dismissed the appeal.

Citation
CHAK KIN SUN AND ANOTHER v. LAM KWOK YUEN AND ANOTHER
Parties
1st Plaintiff (minor by Next Friend): Chak Kin Sun; 2nd Plaintiff (father and Next Friend): Chak Chi Kan; 1st Defendant (driver): Lam Kwok Yuen; 2nd Defendant (owner): Swire Bottlers Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 November 1983
Case Number
HCA7429/1983
Procedural Posture
Tort Personal Injury/negligence Arising From Road Traffic Accident / Appeal Under Order 58 Against Master's Dismissal of Application Under Order 13 Rule 9 to Set Aside Interlocutory Default Judgment
Outcome
Appeal dismissed; application to set aside interlocutory default judgment refused
Legal Topics
Contributory Negligence, Default Interlocutory Judgment, Setting Aside Judgment, Vehicle Pedestrian Collision, Evidence Inconsistency
Source Language
EN
Tort Negligence Civil Procedure Road Traffic Law Contributory Negligence Default Interlocutory Judgment Setting Aside Judgment Vehicle Pedestrian Collision +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Chak Kin Sun

1st Plaintiff (minor by Next Friend)

Chak Chi Kan

2nd Plaintiff (father and Next Friend)

Lam Kwok Yuen

1st Defendant (driver)

Swire Bottlers Limited

2nd Defendant (owner)

Procedural Posture

Tort Personal Injury/negligence Arising From Road Traffic Accident / Appeal Under Order 58 Against Master's Dismissal of Application Under Order 13 Rule 9 to Set Aside Interlocutory Default Judgment

Legal Issues

  1. 1 Whether affidavits disclose a triable issue of contributory negligence by a seven year old child
  2. 2 Whether unexplained inconsistencies in defendant's sworn evidence justified refusal to set aside a default interlocutory judgment
  3. 3 Whether the explanation for the default was adequate to obtain relief under Order 13 rule 9

Ratio Decidendi

The defendant affidavits failed to disclose any triable issue of contributory negligence in respect of a seven year old lawfully on the pavement and, separately, the defendant's sworn evidence contained material unexplained inconsistencies; for those two independent reasons the court refused to set aside the interlocutory default judgment and dismissed the appeal.

Court Disposition

Appeal dismissed; application to set aside interlocutory default judgment refused

Orders

  • Dismissal of the defendants' appeal against the Master's order
  • Refusal to set aside the interlocutory judgment entered in favour of the plaintiffs under Order 13