Lau Chi Chiu v. Tai Yieh Construction & Engineering Co Ltd
Read the full judgment text of HCA 3589/1989 on BabelCite. This High Court CFI judgment.
1. Each of these three appeals arise in a different action brought by a different plaintiff. They have been heard together because they involve a common question in regard to discovery against non-parties in personal injury cases under s.42 of the Supreme Court Ordinance, Cap. 4 and 0.24, r.7A of the Rules of the Supreme Court. Each plaintiff is a construction worker who was injured at work on a construction site and who has brought an action for damages. In each instance the appeal is by a plai
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HCA003589/1989 1988, No. 1931 1989, No. 3589 1989, No. 3618 ---------------------- H E A D N O T E ---------------------- Test case to determine plaintiffs' entitlement to discovery against the Commissioner for Labour as a non-party under s.42 of the Supreme Court Ordinance, Cap.4 and 0.24, r.7A in personal injury and fatal claims arising out of accidents on construction sites and in factories - Brett L.J.'s statement in The Peruvian Guano Case (1882)11 Q.B.D.55 at p.63 as applicable to s.42/0.24, r.7A discovery as it is to automatic discovery under 0.24, r.l(1) - Observations as to inherent relevance of certain types of documents to cases of this sort - Safeguards needed in cases of discovery of the kind sought : order under s.5(3) of the Factories and Industrial Undertakings Ordinance, Cap.59; and undertakings in regard to preservation of confidentiality and limited use - Costs of making discovery. IN THE SUPREME COURT OF HONG KONG HIGH COURT ----------------- 1988, No. 1931 BETWEEN
---------------- AND 1989, No. 3589
----------------- AND 1989, No. 3618
---------------- Coram: Bokhary, J. in Court Date of hearing: October 13 and 17, 1989 Date of delivery of judgment: October 17, 1989 ---------------------- J U D G M E N T ---------------------- 1. Each of these three appeals arise in a different action brought by a different plaintiff. They have been heard together because they involve a common question in regard to discovery against non-parties in personal injury cases under s.42 of the Supreme Court Ordinance, Cap. 4 and 0.24, r.7A of the Rules of the Supreme Court. Each plaintiff is a construction worker who was injured at work on a construction site and who has brought an action for damages. In each instance the appeal is by a plaintiff from a master's refusal to order certain discovery against the Commissioner for Labour, the non-party here in question. 2. Shortly stated, the background to each case is along these lines : In the 1988 Action, the plaintiff was injured on a construction site in Kornhill in the spring of 1985 when the abrasive wheels of a grinder, which he was operating to sharpen a drill bit, fractured and hit him in the face. 3. Both 1989 Actions involve injuries sustained as a result of falling from a height on a construction site : in Tai Tam in the summer of 1986 in the case of the earlier one, and in Ap Lei Chau in the autumn of that year in the case of the later one. 4. The Labour Department investigated the 1985 accident. But due, it seems, to a shortage of manpower the department did not investigate either of the two 1986 accidents. Thus there is a file relating specifically to the 1985 accident, but none relating specifically to either of the 1986 accidents. Master O'Donnell, who heard the application in the 1988 Action, ordered discovery of the file relating specifically to the 1985 accident. But he refused to order discovery of, to quote from the summons :-
5. The applications in the two 1989 Actions were heard by Master Perrior. In the earlier one, the summons, to quote from it, sought discovery of :-
6. In the later one, again quoting from the summons, what was sought was discovery of :-
Master Perrior refused to order any of the discovery sought before him. 7. Before moving on, I might just mention that the description of the site in the summons as "the American Club site at Stanley" is erroneous since that site is at Tai Tam. In any event, there should be no remaining confusion about the matter. It is the American Club site that I am referring to when I refer to a site in Tai Tam. 8. Under s.42(1) the Court's power to order discovery against non-parties in a personal injury or fatal claim is of any documents which are - to quote from the sub-section - "relevant to an issue arising out of that claim". 9. Mr Yuen, who appears for the Commissioner of Labour, submits that there is an important difference between those words and the words "relating to matters in question in the action" to be found in 0.24, r.1(1). Thus, he contends, Lord Justice Brett's classic statement in The Peruvian Guano Case (1882)11 Q.B.D. 55 is not applicable to cases such as the present one. Lord Justice Brett's statement appears at p.63 of the report. He said :-
10. It is well-established that this approach is the correct one in determining what documents - to employ the language of 0.24, r.1(1) - relate to matters in question in the action. Is it also the correct approach in determining what documents are - to employ the language of s.42(1) - relevant to an issue arising out of the claim? In my judgment, it is. As a matter of language, I do not see how, in the context of litigation, one can assign different meanings to the two phrases. If a document relates to a matter in question, it is relevant to an issue. Leaving linguistic considerations to one side for the moment, is there any reason why it is desirable that the formula in the section be given a more restrictive construction than the one in the rule? I find none. It is in interest of justice that - subject to proper safeguards of course - all material having a significant bearing on the truth be available to litigants and their advisors for them to place the same before the Court. It is true that discovery under the section is against non-parties. But, unlike discovery under the rule which is automatic, discovery under the section arises only if ordered by the Court in the exercise of its discretion. It is in this consideration, and not in any strained construction of the formula employed, that non-parties are to find their protection. In my judgment, Lord Justice Brett's statement applies. Applying it, it seems to me that documents of the nature being sought in the cases now before me are, generally speaking, inherently relevant to issues of the type which commonly arise in cases such as these. 11. I have expressed myself in wide terms; and I have done so deliberately. I agree with the statement in para. 12-68 at p.230 of the 13th ed. of 'Phipson in Evidence' that : "The condition or character of a place or thing may sometimes be proved by showing its condition or character at other times. Thus, in actions of negligence, to show that a particular spot was dangerous, previous accidents thereat, or even the condition of other similar places, may be proved." The documents sought here are by their nature likely to shed useful light on, among other things, the conditions that prevailed on each site at the time of each accident. Their relevance lies in that but not only in that. I do not attempt an exhaustive list. 12. If one is dealing with an accident in a factory, as opposed to on a construction site, the same considerations apply, although possibly not to so great an extent. I say that for this reason : Very often the situation in a factory at the time of trial, or at least at the time when the matter is being investigated by the legal advisors of the plaintiff, is not very different from the situation which prevailed at the time of the accident. In the case of construction sites, either the hole in the ground is getting deeper or the building erected on the foundations is getting higher. And by the time the claim is investigated by the legal advisors of the plaintiff, let alone by the time when the Court comes to try the matter, the situation is very often completely different. In fact, very often the construction site has disappeared; and in its place one has a building instead. 13. In the present case the Commissioner for Labour has filed no evidence to suggest that the sort of thing I have been saying is in fact not so - either generally or in these particular cases or any of them. He has filed no evidence at all. I do not make that observation by way of criticism of the Commissioner or his legal advisors. I merely state it as a fact. In truth, the Commissioner and his advisors deserve, and receive, my thanks for the extremely responsible way in which they have approached this matter, which has facilitated my task and contributed materially to my ability to give judgment straightaway. While on that subject, I should mention that when this matter was argued before me last Friday and earlier this afternoon, I sat in chambers, but I am now sitting in open court because of the importance of the questions which arise. 14. I think that discovery should be ordered. As far as the scope of the discovery to be ordered is concerned, the parties have put their heads together to devise an example of the sort of discovery that would normally be regarded by the Commissioner and the Director of Legal Aid as appropriate if it be right in principle that there should be discovery against the Commissioner in cases of this sort. I have decided that it is right in principle. Given that, the sort of discovery that it is felt would normally be appropriate is along these lines : There should be discovery, in relation to each construction site in question, of :-
15. Where one is concerned with a factory rather than a construction site, then the reference to "mechanical equipment" in item 7 should be to "machinery" instead; and item 8 should be left out altogether. 16. Coming to the three actions with which I am concerned, it is agreed that if discovery is correct in principle, then the appropriate discovery in relation to the site at Kornhill would be of items 1, 2, 4, 7, 8, and 9. In relation to the site in Tai Tam, it is agreed that if discovery is correct in principle, then the appropriate discovery would be of items 1, 2, 5, 6, 7, 8 and 9. The position is the same in regard to the site in Ap Lei Chau. 17. I order discovery along those lines. The discovery must be on terms. The Commissioner is rightly concerned about possible contravention of the duty laid down in s.5 of the Factories and Industrial Undertakings Ordinance, Cap. 59. The section is a rather long one; but I feel that it is necessary to recite its terms. It reads :-
18. First of all, any order for disclosure by the Commissioner under the provisions of s.42 of the Supreme Court Ordinance should be accompanied by an order made specifically under ss.(4) of the section which I have just read, namely, s.5 of the Factories and Industrial Undertakings Ordinance. I make such an order, taking the view that justice so requires. I order that discovery under s.42 of the Supreme Court Ordinance be made notwithstanding that the making of such discovery involves, or may involve, disclosure of the name or identity of any person who has made any such complaint as is referred to in s.5(1) of the Factories and Industrial Undertakings Ordinance or the disclosure of any such secret or process as is referred to ss.(3) of that section. 19. It is also necessary to protect complainants and the owners of any such secret or process. Making an order under ss.(4) protects those making discovery. But that is cold comfort for any complainant or owner of a secret or process. It is true that in the majority of cases there may well be no name, identity, secret or process to protect, as a matter of reality. Nevertheless, the Court should, as a matter of course, give such protection to complainants and owners of secrets or processes as can reasonably be devised. 20. In the course of the argument, I suggested to Mr Graham, who appears for each of the plaintiffs, that some sort of undertaking in regard to the preservation of confidentiality and limited use should be given; and Mr Graham agreed. 21. In this case, the Director of Legal Aid is acting as the solicitor for each of the plaintiffs; and the discovery will be made in effect to him. As a condition, the Director undertakes in each case not to disclose, without the leave of the Court, the name or identity of any person who was made any such complaint as is referred to s.5(1) of the Factories and Industrial Undertakings Ordinance or any such secret or process as is referred to in ss.(3) of that section, in so far as such name, identity, secretor process may be contained in the discovered material, save to the plaintiff, the plaintiff's counsel and his, her or their secretarial and clercial staff and any expert retained on behalf of the plaintiff to advise on the action. I make the order for discovery on such undertaking. It is hoped that once the point of principle has been resolved, discovery may proceed smoothly in all future cases : that is the hope of the Commissioner and the Director. Naturally, I share that hope. 22. Where complaints, secrets or processes are involved, it will be necessary, in each case, to obtain an order of the Court so that a specific order can be made under s.5(4) of the Factories and Industrial Undertakings Ordinance. It is anticipated that in all cases, unless some specific point arises, a consent summons can be taken out to obtain the necessary order under the sub-section. Naturally, any consent order will include the undertaking to which I have made reference. I would expect that in most cases, the judge before whom a consent summons came would find no difficulty in making an order in terms of the summons. But if and when any difficulty arises, the parties would of course be invited to attend. 23. In the present case, none of the defendants have appeared on the appeal. Whether any defendant will oppose orders of this sort in future, and how often such opposition may be found, I am unable to predict. 24. As between the Commissioner and the plaintiffs, it is accepted by the plaintiffs that the Commissioner must have his costs of making discovery; and I certainly make an order to that effect in the cases before me. Mr Graham has urged me to make the costs paid by the plaintiffs to the Commissioner costs in the cause so that the plaintiffs can recover those costs against any defendant against whom they succeed at the trial. Reading the summonses and notices of appeal, I can see how it can be said that it is open to the plaintiffs to seek orders that those costs be costs in the cause. However, although it is possible to read the summonses and notices of appeal in that way, I do not think that it has been made sufficiently clear to the defendants that such orders would be sought on the appeal for me to make any such order without first directing that the defendants be invited to reconsider their decision not to attend. That being so, I make no such order, without deciding whether it would be appropriate to make such orders in future. Certainly, my refusal to make such an order does not preclude the plaintiffs from inviting the trial judge to order the costs paid to the Commissioner against any unsuccessful defendant. 25. In the result, the appeals are allowed. It is only right that I acknowledge that the matter has been far more fully argued before me than before the learned masters whose decisions I reverse. It is equally appropriate to acknowledge that the discovery which I order is not exactly the same as that refused by the masters, since a new formulation was devised in the course of the appeal. Nevertheless, the result is that the appeals must be allowed. It is only by allowing the appeals that I can make the orders which I have already indicated earlier on in my judgment that I am making. 26. There may still remain one question as to costs, because the cost of making discovery where there is no contest is not the same as the cost which have been incurred in these cases, which have been argued - really as, together, a test case. I am not entirely sure what orders I am invited to make in regard to the costs of the appeals, by which I mean the hearing of the appeals rather than the costs of making discovery. That is something on which I will hear the parties now. [Submissions on costs] 27. Mr Graham concedes that, in the circumstances, it would be appropriate that the Commissioner have the costs of the appeals; and I so order. As far as the costs before the masters are concerned, my understanding is that the Commissioner already has those; and I simply leave the orders for costs made by the masters in that regard as they are.
Representation: Mr P. Graham (instructed by the Director of Legal Aid) for the plaintiffs Mr K.L. Yuen, Crown Counsel, for the Commissioner for Labour |