Product Liability 2009 - Arnold & Porter LLP

Hong Kong
170
Lovells Hong Kong
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
Pre-trial depositions do not exist in Hong Kong.
Witness statements and expert reports are exchanged prior to trial.
The factual witnesses and experts will then give their oral evidence
and be cross-examined during the trial.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
In personal injury cases, it is possible to apply for the discovery of
documents from a likely party before proceedings are commenced
or from a non-party before trial to encourage settlement
negotiations between the parties concerned as soon as possible.
However, in other cases, discovery is usually only available once
proceedings have commenced. Following the pleadings stage, the
parties are obliged to disclose to each other the documents they
have in their control relating to the issues in dispute. This discovery
obligation extends to the discovery of documents that are both
helpful and damaging to one’s case. The obligation continues up
until trial.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
Arbitration is available as a method of dispute resolution provided
that the parties agree by entering into an arbitration agreement to
refer the dispute in question to arbitration.
The parties can also agree to the mediation of their dispute at any
time before or during court or arbitration proceedings.
5 Time Limits
5.1 Are there any time limits on bringing or issuing
proceedings?
Yes, time limits do exist.
5.2 If so, please explain what these are. Do they vary
depending on whether the liability is fault based or strict?
Does the age or condition of the claimant affect the
calculation of any time limits and does the Court have a
discretion to disapply time limits?
The Limitation Ordinance provides that claims based on breach of
contract or negligence must be brought within six years from when
the cause of action arose. However, claims for damages for
personal injury in an action for negligence, nuisance or breach of
duty must be brought within three years from the cause of action,
i.e. the date of injury or death or, if later, the date of the claimant’s
knowledge. In personal injury actions, the court may direct that the
time limits should not apply to the action where it would be
equitable to do so having regard to the degree of prejudice which
would be suffered by the claimant and the defendant.
The time limits may be extended where the claimant is under a
disability, i.e. is not of sound mind or is an infant.
5.3 To what extent, if at all, do issues of concealment or fraud
affect the running of any time limit?
The time limits for limitation purposes do not start to run until the
claimant has or could have with reasonable diligence discovered the
concealment or fraud.
6 Remedies
6.1 What remedies are available e.g. monetary compensation,
injunctive/declaratory relief?
Monetary compensation, injunctive relief and declaratory relief are
all available remedies.
6.2 What types of damage are recoverable e.g. damage to the
product itself, bodily injury, mental damage, damage to
property?
Damages for breach of contract are awarded to put the injured party
in the same position he would have been if the contract had been
properly performed. They include physical damage caused to
person or property; economic loss and consequential loss; and loss
which the court might reasonably expect to have been contemplated
by both parties in “special circumstances” where such
circumstances were known to the parties at the time the contract
was formed.
Damages for negligence are awarded to put the injured party in the
same position he would have been if the negligent act had not
occurred. They include loss arising from personal injury (including
mental injury), death or damage to property other than the product
itself. Damages in tort for pure economic loss are difficult to
recover unless specifically provided for by statute (such as the Fatal
Accidents Ordinance), or if the claim is for negligent misstatement
or where a “special relationship” exists. The latter is very
restricted.
6.3 Can damages be recovered in respect of the cost of
medical monitoring (e.g. covering the cost of investigations
or tests) in circumstances where the product has not yet
malfunctioned and caused injury, but it may do so in
future?
Future economic loss may be recoverable if the claimant can show
that the future expense is reasonable and there is a reasonable
likelihood that the expense will be incurred. In relation to the costs
of medical monitoring, the court may find that they are too remote
and refuse to make such an award.
6.4 Are punitive damages recoverable? If so, are there any
restrictions?
Yes, but only in very extreme cases where the court considers that
the defendant’s actions were particularly reprehensible and the
award of punitive damages is necessary to deter him and others
from committing similar acts in the future.
6.5 Is there a maximum limit on the damages recoverable
from one manufacturer e.g. for a series of claims arising
from one incident or accident?
No, there is no maximum limit on the damages recoverable.
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ICLG TO: PRODUCT LIABILITY 2009
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