Pun Syam v. Paramount Engineering and Manpower Service Ltd and Others

HCPI 987/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 987 OF 2013

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REASONS FOR DECISION

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Introduction

1.This is a personal injuries case about an accident which occurred on 20 September 2012 (“the Accident”). The Writ, endorsed with a Statement of Claim was issued on 20 November 2013.

2.The Pre-Trial Review (“PTR”) hearing took place on 29 September 2015. Solicitors for the plaintiff stated in a document called “The Pre-Trial Review” that:

they intended to “seek the following direction at the pre-trial review … Nil”; and

the PTR would be attended by Mr Kelvin Leung of counsel.

3.A 4-day trial is fixed for hearing before me commencing on 3 November 2015.

4.On 23 October 2015, the plaintiff issued a summons returnable on 3 November 2015 for leave to:

(a) amend the Statement of Claim; and

(b) “served (sic) the Witness Statement …” as per draft attached. The draft is not signed and there is no signed statement of truth.

5.On 26 October 2015, the plaintiff issued another summons, also returnable on 3 November 2015, this time for specific discovery of:

“employment contracts and salary advices relating to the earnings of the workers contained in the Labour Wages Table produced by the 2^nd Defendant with their letter dated 6^th October 2015”.

6.I ordered the hearing of both summons to be brought forward to 28 October 2015. After hearing counsel for the plaintiff and counsel for the defendants, I dismissed both summonses with costs to be paid by the plaintiff to the defendants, to be taxed, if not agreed.

7.I said reasons for my Decision would be handed down later. I now give my reasons.

Amendment of the Statement of Claim

8.The plaintiff asked for leave to amend the Statement of Claim on 2 points:

(1) The capacity of the plaintiff’s employment:

Paragraph 1 (d):

“The Plaintiff was employed by the 1^st Defendant as a General Labour Tunnel Worker.”

(2) The way in which the Accident happened:

Paragraph 3:

“…At around 11:00 a.m., after the Plaintiff finished grinding a segment pocket and was getting off the said metal bracket while the Plaintiff was grinding a segment pocket by standing on the said metal bracket, he suddenly lost balance and fell on the ground landing (sic) his back and was injured (‘the Accident’).”

9.I was told that the defendants did not oppose the amendment application. I told counsel for the plaintiff that he still had to persuade me.

10.The plaintiff knew the capacity in which he was employed. He also knew how the Accident occurred. There was no explanation of why no application for amendment had been made until 11 days before the commencement of trial. To make matters worse, the judge at the PTR had been told there was no application by the plaintiff for direction.

11.Mr Kelvin Leung, counsel for the plaintiff who appeared at the PTR and before me, said:

“This is a personal injuries case, I can tell the Court that I am quite experienced in this kind of cases and most of them are settled without bothering the Court and therefore …”

12.Whether or not most personal injuries cases are settled, it is the bounden duty of counsel to exercise due diligence in the conduct of his cases.

13.I see no reason why the Court should be vexed by interlocutory applications which could and should have been made long before trial.

14.Further and in any event:

(a) falling while standing on the metal bracket working;

is not the same as;

(b) getting off the metal bracket after having finished grinding.

15.While seeking to run a case of getting off the metal bracket after having finished grinding, the following allegations of standing on the metal bracket working remain in the pleading:

(a) Paragraph 2 (a):

“… particularly the risk associated with carrying out grinding works while standing on a metal bracket”;

(b) Paragraph 2(c):

“Failing to provide appropriate and suitable platform … to stand on while carrying (sic) grinding works”;

(c) Paragraph 2(d):

“Failing to provide any platform … for the workers … to stand on while carrying out grinding or other works for preventing them from falling from the metal bracket”;

(d) Paragraph 2 (k):

“To put up adequate warning … of the hazards associated with working while standing on a metal bracket”;

(e) Paragraph 3:

“The 1^st and 2^nd Defendants knew or ought to have known that grinding while standing on a metal bracket was unsafe act of work; however the Plaintiff was not provided with any stool or ladder to carry out the work safely…”

(f) Paragraph 5(a):

“Exposing the Plaintiff to a risk of injury … while standing on a metal bracket”

(g) Paragraph 5(c):

“Failing to provide appropriate and suitable platform … to stand on while carrying (sic) grinding works”;

(h) Paragraph 5(d):

“Failing to provide any platform … to stand on while carrying out grinding or other works for preventing them from falling from the metal bracket”;

(i) Paragraph 5(k):

“Failing to put up adequate warning … to warn … of the hazards associated with working while standing on a metal bracket”;

(j) Almost all the particulars under paragraph 9 involved grinding a segment pocket while standing on a metal bracket.

16.The draft Amended Statement of Claim is a confusing and embarrassing piece of pleading. The lack of due diligence was apparent. This is another reason why leave to amend was refused.

17.I dismissed the amendment application with costs.

Service of new witness statement

18.The plaintiff claims in paragraph 11(a) of his Revised Statement of Damages dated 23 September 2014 drafted or settled by Mr Kelvin Leung that:

“… but for the Accident and the impairment suffered, due to the general increases in the earnings for construction site workers, including tunnel workers and general labourers, he would have earned about HK$24,589 per month since 02.05.2014”.

19.The burden of proving this claim is on the plaintiff.

20.The draft witness statement has attached to it copy Pay Advices of 2 workers said to be employed by some other employer:

Worker	Position	Month	Grand Total ($)
A	Miner	July 2015	25,888.30
A	Miner	August 2015	24,445.40
A	Miner	September 2015	35,788.00
B	General Labour	July 2015	25,394.45
B	General Labour	August 2015	26,403.00
B	General Labour	September 2015	28,051.00

21.The draft Witness Statement is undated and unsigned, without any signed statement of truth.

22.The summons did not ask for dispensing with service.

23.Evidence on current wages should have been ready before the PTR judge was told that the plaintiff had no application for direction.

24.There is no explanation for the delay in the application said to be in response to the defendants’ solicitors’ letter dated 6 October 2015.

25.Further, there is no application to amend the averment quoted in paragraph 18 above. The plaintiff’s case on current wages is confusing and embarrassing.

26.I thus dismissed the witness statement application with costs.

Application for specific discovery

27.There is no explanation why this application had not been included in the Summons dated 23 October 2015. It should have been but it was not.

28.I dismissed with costs the application for specific discovery.

Mr Kelvin Leung, instructed by Li, Kwok & Law for the plaintiffs

Ms Phillis Loh, instructed by Deacons for the 1^st and 2^nd defendants