Ma Choi Fung v. Great Hero Development Ltd t/a Wellborn International Play School

HCPI 713/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 713 OF 2015

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Coram: Master Roy Yu in Chambers

Date of Hearing: 18 August 2017

Date of Decision: 30 August 2017

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D E C I S I O N

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THE APPLICATION

1.This is an application taken out by the plaintiff for leave to adduce her supplemental witness statement, and to call 2 additional witnesses and to serve their witness statements.  She further applies to amend the Revised Statement of Damages and for consequential directions.  The application is opposed by the defendant. 

2.The application is taken out by a summons and there is no supporting affirmation.  It is helpful to set out the chronology of event which is not disputed –

18/1/2016	First Checklist Review Hearing Order
17/3/3016	The plaintiff served her witness statement dated 3/3/2016
10/5/2016	The plaintiff filed her Revised Statement of Damages
30/6/2016	By the Checklist Review Order given by consent on 18/1/2016, Master Roy Yu gives directions that parties are to obtain counsel advice and to take out all interlocutory applications by 30/6/2016
13/7/2016	Leave to set down was granted by Master Roy Yu
3/8/2016	Plaintiff proceeded to set down the case for trial
24/5/2017	Plaintiff provided the draft witness statement of Mr. Edward Tsui to the defendant by letter
16/6/2017	The defendant served notice on the employer of Mr. Edward Tsui, Renaissance Harbour View Hotel claiming that a director and the general manager of the hotel may be subpoenaed to give evidence
25/7/2017	This summons for amendment and additional witnesses was taken out
13/9/2017	PTR is fixed before DHCJ Marlene Ng
30/10/2017	Trial with 4 days reserved is fixed before DHCJ Sakhrani

THE PLAINTIFF’S GROUNDS

3.Mr Hu appears for the plaintiff and submits that I should consider the following factors in deciding whether I should grant leave, namely :-

a. Whether the evidence is material;

b. Whether there will be a possibility of a miscarriage of justice if the fresh evidence is to be rejected; and

c. Whether there will be serious prejudice to the defendant.

4.At the hearing, he also added that by the amendment and the new witness statements, no new claim has been raised.  It is an update of the Revised Statement of Damages and the defendant would not suffer any prejudice that cannot be compensated by costs.  Further, the trial dates would not be affected.

DEFENDANT’S OBJECTIONS

5.The defendant appears by its counsel Mr Leung.  In his submission, he argues that the summons should be dismissed for the following reasons –

a. The evidence now sought to be adduced does not have any probative value or is irrelevant, and is inadmissible;

b. The application is prodigiously late and there is no or no good reason given by the plaintiff as to why the summons is taken out at this late stage and why the summons could not have been taken out before the setting down of the trial;

c. The summons, if allowed would cause real prejudice to the defendant in preparing for the trial and will inevitably adversely disrupt the trial date, which is a milestone date; and

d. Plaintiff fails to satisfy the test adopted by the Court in dealing with late application for discovery and new witness statement as laid down in Liu Chen v Chan Poon Wing & Anor (Unreported) HCPI 779 of 2006 dd. 7 October 2009.

THE RELEVANT LEGAL PRINCIPLES

6.It is not disputed that the power to grant leave to amend pleadings and to allow supplemental witness statement and new witnesses to be called at the trial is at the discretion of this Court.  This is a case management power and shall be exercised judicially.

7.The plaintiff refers me to some pre-CJR decisions on how to exercise the discretion, in particular to the case Ketteman v Hansel Properties Ltd [1987] AC 189.  The Ketteman principle has been discussed in the judgment of DHCJ Lok (as he then was) given in Li Shiu To v Li Shiu Tsang and Ors HCA 416 of 2003 (unreported) dd. 14 August 2012 which I respectfully adopt.

“14. The principles under which the court exercises its discretion to allow or refuse amendments to pleadings can be summarised into 4 prepositions (see: Ketteman v Hansel Properties Ltd [1987] 1 AC189, per Lord Brandon at p 212F-H):

(i) first, all such amendments should be made as are necessary to enable the real questions between the parties to be decided;

(ii) second, amendments should not be refused solely because they have been made by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights;

(iii) third, however blameworthy (short of bad faith) may have been a party’s failure to plead the subject-matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party; and

(iv) fourth, there is no injustice to the other party if he can be compensated by appropriate orders as to costs.

16. I agree that the Ketteman principles remain good law after the CJR, but I must put a caveat here.  First, the new O 1A of the RHC makes it clear that the court shall give effect to the underlying objectives when it exercises its power or interprets the RHC, including increasing cost-effectiveness of litigation, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, facilitating the settlement of disputes and ensuring that the resources of the court are distributed fairly.  If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application. [my emphasis]”

8.The decision of DHCJ Lok is adopted by DHCJ Le Pichon in Raytech Industries Co Limited v Leung Wai Kit HCA 1360 of 2011 (unreported) dd. 16 May 2014.  DHCJ Le Pichon also mentioned that in exercising the discretion, a factor to be taken into account is the importance of not to disturb a milestone date.  Further, Li Shiu To’s case and Raytech’s case have different results and clearly one distinguishing factor is that in Raytech’s case, trial date has been fixed and the milestone date would be disturbed if the amendment is allowed. 

9.Mr Hu also refers to the judgment of Court of Appeal given in Zheng Chulin v Wo Kee Hong Kong Industrial Ltd (Unreported) CACV 56 of 2012 dd. 12 June 2012.  But this case is ruling on a narrow issue as stated in paragraph 2 of the judgment.  The issue is “whether the matters pleaded in the statement of claim are such that they amounted to clear and unequivocal acceptance of the defendant vendor’s repudiation of the agreement for sale and purchase of two properties so that the plaintiff purchaser should not be permitted to amend his pleading to claim specific performance of the agreements…”.  When Mr Hu claims aid from paragraph 16 of the judgment, it must be read with the background and the issue determined at the appeal.  And with no disrespect to the Court of Appeal, the case is distinguishable on the fact and not helpful in the determination herein.

10.Mr Leung refers to the judgement of Master Marlene Ng (as she then was) given in Liu Chen’s case.  I refer to paragraphs 36 and 37 of the judgment which deal with late application and the evidence expected of the applicant in considering such application : –

“36. Let me say as a general observation that the court is generally unhappy with last minute applications at the commencement of assessment hearing for further evidence to be filed or for further discovery to be made. After the CJR, the court is even more jealous to ensure that the assessment of damages will proceed as scheduled, and that the hearing will not be burdened with last-minute applications that take up valuable time thereby prolonging the assessment hearing, causing an adjournment and/or increasing costs for the party(ies). To say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost-effectiveness and fairness between parties enshrined in Order 1A of the RHC.

37.   In the circumstances, after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than what was required even prior to the CJR, namely, a full account for the lateness of the application. In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives. …”

11.I agree with the observation of Master Marlene Ng.  From the authority discussed above, a credible and satisfactory explanation on the reason for delay is an important information for considering whether to allow the late application.  And whether to exercise the discretion, I must take into account the underlying principle of Order 1A, and the prejudice caused to the defendant.

12.I also refer to Chan Wing Cheung, Allan v Ho Shu Yee, Susana (unreported), CACV 393 of 2004, 10 January 2005 which further supports my analysis above.  It is said by the Court of Appeal at paragraph 9 that :-

“9. In my view, the Judge was correct in his attempt to case manage the trial of this action as best he could in the circumstances. Certainly, in my view, the exercise of his discretion here cannot be faulted. The following points are of note : -

(1) While it can be accepted that the Defendant will inevitably be prejudiced by not having witness statements admitted into evidence, the Judge had to balance this prejudice against the prejudice caused to the Plaintiff in allowing them in at this very late stage.  The Plaintiff would be prejudiced by having to face an inevitable adjournment of a trial that had been fixed for hearing a very long time ago. This was recognized by the Judge, rightly in my view, as being sufficient to constitute serious prejudice. [my emphasis]

(2) The predicament that the Defendant finds herself in is entirely of her own making. As I have already remarked, the question of the loans allegedly made to the Plaintiff (the main issue in this action) was one that must have been obvious to the Defendant since at least the pleadings stage. Despite having said (in the 4th Checklist) that proofs were taken and that effectively she was ready for trial, the Defendant has waited until almost the last possible moment to introduce witness statements that contains substantial matters.

(3) ….

(4) In any event, where an indulgence is sought from the Court, it would be a rare case indeed that this would be given, even on terms as to costs, without a satisfactory explanation being given to justify the grant of the indulgence.  The fact that this represents in the present case the first time that an indulgence had been sought by the Defendant is neither here nor there.”

13.It is important to note that, while recognizing that the defendant would be prejudiced by not having her evidence admitted at trial, the Court of Appeal recongised the prejudice to the plaintiff if the trial might have to be adjourned to another date.  The prejudice to the defendant is created by herself.  And balancing the prejudice of the parties, the application is refused. 

14.I also note the judgment of DHCJ Wilson Chan (as he then was) given in Evergreen (FIC) Ltd v Golden Cup Industries Ltd t/a Super Star Group (unreported, HCCT 14 of 2015, 26 July 2016).  The application to serve supplemental witness statement which was only taken out one week before the trial was allowed when the applicant has given creditable explanation.  In coming to the decision, the DHCJ Wilson Chan also refers to and agrees with the judgment of Bharwaney J given in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705, saying : -

“5. Guidance for dealing with late applications for the filing of additional witness statements has been given by Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705. At paragraphs 6 and 7, the learned Judge had this to say : -

“6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of the Civil Justice Reform to ensure costs effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the Court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to the other parties, and the objectives of civil justice reform...””

15.I also remind myself of Order 1A rule 2(2) : -

“(2) In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

16.And Order 25 rule 1B : -

“(1) The Court may, either of its own motion or on the application of a party, give further directions relating to the management of the case or vary any timetable fixed by it under rule 1A.

(2) A party may apply to the Court if he wishes to vary a milestone date.

(3) The Court shall not grant an application under paragraph (2) unless there are exceptional circumstances justifying the variation.”

17.I do not believe there could be disagreement to the principles set out above.  I shall now analyse the argument of the parties in greater details.

ABSENCE OF EXPLANATION FOR DELAY

18.It cannot be argued that this is a late application.  

19.The parties including the plaintiff had been directed to obtain counsel advice and take out all interlocutory applications before leave was granted to the plaintiff to set down the case for trial.  The trial dates have been fixed in 2016.  The application was only taken out 3 months before the trial dates.  The burden rests on the plaintiff to give credible explanation and reason for the late application.  

20.It is not disputed that the explanation is not supported by affirmation.  Mr Leung submits that there is no good reason offered by the plaintiff to justify this late application.  The new evidence could have been adduced earlier and before the trial was set down.  The application should be dismissed.

21.Mr Hu frankly admits that he could not explain the reason for the delay as there is no supporting affirmation.  Mr Hu seeks to submit that the amendment and the supplemental witness statements are updates to the Revised Statement of Damages.  From the discussion below, the additional witness statements and amendment are clearly more than updates. 

22.It appears in the Questionnaires filed by the plaintiff for the Checklist Review Hearings, the daughter has been named as a witness for the plaintiff.  Why she later failed to provide a witness statement?  There is no explanation. 

23.And what the plaintiff seeks to adduce in her supplemental witness statement consisted of substantial information and document related to her employment history before she joined the defendant.  Mr Hu should remember that the plaintiff at all times claims she could return to work as a full time cleansing worker when her husband’s diabetes condition is stable in the Revised Statement of Claim.  With her draft supplemental witness statement, records from IRD and former employers are produced.  Why have these records not been disclosed earlier?  I have no doubt that the evidence and documents are available at or before the setting down. 

24.And the claim after amendment to the Revised Statement of Damages has been substantially increased.  In these circumstances, the delay is inexplicable and cries out for an explanation.  There is none.  And there would be further issue of the possibility that the trial dates would be prolonged, or that the trial dates in October may have to be aborted, thereby creating further delay and prejudice to the defendant.

25.Mr Hu has adopted the written submission prepared by his instructing solicitor.  It mentioned that the plaintiff found her old mobile phone with the message of her “ex-senior” Mr Edward Tsui inviting her to work which sheds light on her pre-trial loss of earnings. 

26.Even with the evidence of Mr Tsui, there is no explanation why she can only recall his invitation so late. 

27.I have to agree with Mr Leung that the earning of the plaintiff before she was employed by the defendant must be at her possession.  No explanation has been given on why she claims a project monthly earning of HK$11,000 in the Revised Statement of Damages and she now seeks to revise it to HK$18,500+. The explanation that she found her mobile could not justify the delay and the failure to disclose the documents she now seeks to disclose.

28.While delay and the absence of explanation is not determinative, it is an important factor to be taken into consideration.  I would also take into account the particular circumstances of this case and the contents of the witness statements before I rule on the issue. 

DISCUSSION AND RULING

29.I now turn to consider the contents of the draft supplemental witness statement of the plaintiff and the new witness statement to consider if allowing this late application would be against Order 1A, and to compare the prejudice to the parties if the application is allowed.  I am aware that the witness statements are not an affirmation.

30.The first 10 paragraphs of her supplemental witness statement give some additional data of the plaintiff’s earning and job nature before she joined the defendant.  From the reading of the draft, these are not new materials.  And the fact that the plaintiff has been working as a cleansing worker, and/or cleaning supervisor in hotel industries and restaurant has been mentioned in her original witness statement.  What have not been disclosed in her original witness statement are her earning records with her former employers. As attached to her supplemental witness statement, there are records from former employers, tax returns and records from IRD. 

31.I do not understand why the information of her earnings has not been set out in her original witness statement, and the employment record should have been disclosed in the List of Document filed.  Her supplemental witness statement consists of some 80 pages of new documents.  I presume the plaintiff is not suggesting such late discovery is part of a continuing discovery exercise that would not require leave of the court.  Sufficient and good reason must be given for such late discovery (see Kinetics Medical and Health Group Co Ltd and others v Dr Tse Ivan Cheong Yau HCA 1115 of 2010 unrep. 8 May 2013).  And for this kind of late discovery, it can be anticipated that the other party would raise objection and it is incumbent on the plaintiff to seek leave by inter parte summons supported by credible evidence to justify disclosure at this stage.  Times set by case management direction are meant to be followed.

32.Mr Hu tried to persuade me that this is update of the evidence. I would say these have been left out for some unexplained reason.  And given the amount of new/additional material, it must at least affect the length of cross examination, and hence the length of the trial.  Further specific discovery against 3^rd parties cannot be ruled out.  One must remember that the plaintiff has been given full opportunity to prepare her evidence for the trial and to give proper discovery of documents.  She is all along assisted by solicitor.  The plaintiff has given no explanation and hence no credible explanation for the delay in discovery, and for her failure to include those10 paragraphs in her original witness statement.  Taking into account the possible disruption to the coming trial, I consider in the spirit of the underlying principle of Order 1A, leave should not be granted for the plaintiff to state those 10 paragraphs of evidence nor to disclose the new documents. 

33.Paragraph 11 is about the health condition of her husband in 2008.  She seeks to adduce the medical test result of her husband in 2008 to suggest his diabetes condition has improved in 2011.  Such test result is disclosed for the first time.  And she could not give any opinion based on these test result as interpretation of these record would be expert opinion. No leave for expert evidence on the health condition of her husband has been applied for and is not admissible. 

34.Paragraphs 12 to 14 of the supplemental statement cover the telephone invitation by Mr Edward Tsui to the plaintiff to work with him at Harbour View Renaissance Hotel.  And Mr Tsui had given a witness statement which I shall also deal with at this juncture with paragraphs 12 to 14.

35.Besides being late, the main complaint by Mr Leung is that the reference to “offer” or invitation by Mr Tsui for the plaintiff to work at Harbour View Renaissance Hotel seems to be in conflict with the original witness statement of the plaintiff served.  At paragraph 61 of the plaintiff’s witness statement, she said “the previous hotel bosses also welcome her to return to work for them”.  I am not ruling on credibility and whether there is conflict between her witness statement.  But to admit her supplemental witness statement on the invitation by Mr Tsui to work for a new hotel that Mr Tsui was about to join, she had to explain the discrepancy for the purpose of a proper exercise of my discretion.  Mr Hu could not explain as there is no evidence filed.  If allowed, the new witness statement would call for further interlocutory applications, such as interrogatories on the said discrepancies and third party discovery. 

36.It can be anticipated from the follow up action of the defendant upon receiving the draft witness statement of Mr Tsui that they would seek to call witness from the management of Harbour View Renaissance Hotel.  Given the need to review and adduce evidence of the management of the Hotel over the period in question, not to mention the volume of documents that may have to be discovered, there would be substantial delay to the action.  The delay likely to arise would be considerable, as the additional issue would involve another round of pleadings, witness statements and discovery before the matter could be set down.  I agree with Mr Leung that there is a real risk that the trial has to be aborted.  The delay involved would cause significant prejudice to the defendant that cannot be compensated by costs. 

37.The trial dates, which are milestone dates should not be aborted without special reason.  When there is no explanation for the delay, no special reason could be proved.  I am not minded to allow the plaintiff to adduce the witness statement of Mr Tsui and supplemental witness statement of the plaintiff on this issue for the above reason. 

38.Paragraphs 15 to 17 of the supplemental witness statement are covered by her original witness statement save she mentioned for the first time of engaging a care assistant called管家易家居服務. There are no details of the costs and no supporting documents from this service being disclosed.  Since no supporting document has been disclosed, and given the delay, these paragraphs should not be allowed to be introduced.

39.The last 3 paragraphs relate to her physical condition after the injuries, this has been covered in her original witness statement.  As to her attempt to object to the opinion given by the experts, in particular the orthopaedic experts, this should be matter of submission by counsel as parties agree to adduce the expert evidence without calling the makers.

40.This is a late application without justification.  The plaintiff has been given full opportunity to prepare her case and it is against the underlying principle of Order 1A, including expedition, fairness between the parties and costs effectiveness.  In conclusion, I am not prepared to allow the plaintiff to adduce her supplemental witness statement, and the witness statement of Mr Edward Tsui. 

41.Equally, there is no explanation why the witness statement of the plaintiff’s daughter has only been adduced at this stage.  This is again not a new issue.  The plaintiff claimed the loss for her daughter who took care of her at the material time in the Revised Statement of Claim and has explained the loss in the witness statement of the plaintiff.  In the Questionnaires filed by the plaintiff for the Checklist Review Hearings, the daughter has been proposed by the plaintiff to be one of her witness.  There is no explanation why she could not give a witness statement and now she agrees to give a witness statement. 

42.The additional witness would prolong the trial.  I am told that her employment contract now attached to the witness statement has been disclosed, the plaintiff has evidence on this head of claim.  Balancing the prejudice, I am not prepared to allow the plaintiff to adduce the witness statement of her daughter. 

Re-Revised Statement of Damages

43.The plaintiff seeks to amend the Revised Statement of Damages. There are 2 main areas for amendment.  Firstly, it has always been the case of the plaintiff that after the contract with the defendant, and when her husband’s diabetes condition is stable, she would return to work as full time cleansing worker in the hotel industries at the projected earnings of HK$11,000 per month. 

44.The plaintiff seeks to amend her claim based on the new projected earnings of HK$18,500 with addition annual bonus and later HK$20,000 per month.  The pre-trial loss and post-trial loss have been substantially increased. 

45.There is in the Revised Statement of Damages a claim for care and attention provided by the plaintiff’s daughter, who has to quit her full time teaching job and change to a part-time teacher to take care of the plaintiff. There is a new alternative claim for care assistant from 26 July 2011 to 25 July 2015.  Again, there is no affirmation of explanation why the alternative claim is raised only at this stage. 

46.It was Mr Hu’s submission that the trial date could be maintained.  Interestingly, in the draft Re-Revised Statement of Damages, the plaintiff amended the notional trial date to January 2018.  It appears that her legal advisors anticipate some delay in commencing the trial.

47.Since I refuse the application to include the witness statement of Mr Tsui and the supplemental witness statement of the plaintiff, the corresponding paragraphs for a revised projected earning should not be allowed.  Indeed, there is no explanation as to why a higher projected rate is claimed at this late stage.  I would disallow the proposed amendment at paragraphs 2 to 8 of Part C (I) of the Re-Revised Statement of Damages.

48.And the plaintiff seeks to add 3 more medical reports to the Re-Revised Statement of Damages.  First, it is the MRI examination performed in June 2016.  The plaintiff has not even provided this Court and the defendant with a copy of the report.  Mr Hu, whom I suspect is only briefed for this hearing, does not know if there is a MRI report.  I expect the report has been obtained.  No explanation is offered for the failure to disclose the report, nor even whether there is such a report.

49.Two reports by treating doctors are to be included as per paragraph 12 g & h of Part B of the Re-Revised Statement of Damages.  It is not disputed that the medical report referred to in paragraph 12 g has not been disclosed.  Another report obtained from Prince of Wales Hospital dated 20 December 2016 has been disclosed in March 2017.

50.Being disclosed only in March 2017, i.e. 3 months from the date of report, although it is late, to be fair, I cannot say that the report should not be relied on.  In PI cases, the plaintiff has a continuing duty to disclose relevant medical report from treating doctor to update her condition.  But having disclosed the report, it should be included as part of the Trial bundle. Direction has been given at early Checklist Review Hearing that medical reports from treating doctors may be adduced without calling the makers.  And as far as a factual statement on the treatment received by the plaintiff at the material time, the plaintiff does not have to amend the Revised Statement of Damages to rely on this document.  The proposed amendment to include these reports are not allowed.

51.The plaintiff seeks to introduce a new alternative claim for costs to engage a care assistant.  Since it is an alternative claim, I presume the plaintiff would apply for the loss as alternative to the loss her daughter suffered for taking care of her.  Mr Leung raises 2 objections.  Firstly, there is no medical evidence to support the claim that the plaintiff needs nursing caring 8 hours a day for 4 years.  I agree.  I think the second point is more important. 

52.There is no evidence to suggest the plaintiff has engaged any care assistant with nursing experience for 4 years.  It has been her case as stated in the Revised Statement of Damages that she has been taken care of by her daughter who has quitted her full-time teaching job and changed to work as a part-time teacher to take care of the plaintiff.  Her loss is based on the loss of salary suffered by her daughter.  While the plaintiff is seeking to introduce a new alternative claim, on what basis that if her claim for the loss of salary suffered by her daughter failed, she could claim the costs of a care assistant? 

53.This alternative claim is not a claim for future loss.  It is a claim for the actual loss from 26 July 2011 to 25 July 2015, a total of 4 years. If the plaintiff has not paid the money, and she has not been served by such a care assistant, there is no basis for making this claim.  Mr Leung refers to Kings Light Industrial Ltd v Lo Wai Keung (Unreported) CACV 80 of 1992 dd. 21 December 1992.  This case is not directly on the point but supports the above position. 

54.The issue is whether the plaintiff is entitled to have the service of her daughter who at the material time acted as a care assistant. This has been pleaded.  And the further disputed issue is on quantum and it would be matter of evidence.  The application to include an alternative claim is ill-founded and disallowed.

55.The other amendments proposed are in fact updating of calculation adjusted in accordance with the trial date.  It is not unusual for Counsel for the plaintiff to give the variation at the first day of trial (and in his skeleton submission).  This include suggested amendment based on the actual trial dates, some updating of medical expenses and travelling expenses, change to the multiplier for post-trial loss due to the waiting time for the trial. I could safely leave these for submission before the trial judge.  

56.In conclusion, I disallow the application to amend the Re-Revised Statement of Damages.

COSTS AND ORDER

57.Accordingly, the summons is dismissed.  The defendant shall have costs of and occasioned by the Summons and I grant a certificate for counsel for the hearing before me.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  An order nisi on costs is accordingly made, to be made absolute within 14 days from the date of handing down of this Decision.

Mr Derek Hu, instructed by K. Y. Lo & Co., for the Plaintiff

Mr Herbert Leung, instructed by Tang & Lee, for the Defendant