Lee Nui Foon v. Ocean Park Corporation, An Independent Statutory Corporation

Case No.HCA 6078/1986

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA006078/1986

1986 No.A6078

-----------------

HEADNOTE

-----------------

PRACTICE AND PROCEDURE - PRINCIPLES TO APPLY IN SPECIFIC DISCOVERY

1986 No.A6078

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

BETWEEN
	LEE NUI FOON administratix of the estate of CHIU YU FU, deceased	Plaintiff
	and
	OCEAN PARK CORPORATION, an Independent Statutory Corporation	Defendant

-----------------

Coram: The Hon Mr Justice Cheung in Chambers

Date of hearing: 24th March 1995

Date of delivery of Decision: 29th March 1995

-----------------

DECISION

-----------------

Nature of the Application

1. This is the Plaintiff's application for discovery of specific documents pursuant to O.24, r.7. The Plaintiff is the mother of a young man who was drown in the big wave pool in the "Waterworld" of Ocean Park on 31st July 1984. The Defendant was the owner and occupier of Ocean Park.

2. The documents sought by the Plaintiff can be grouped generally under four categories:-

	(i)	Documents relating to the dimension of the pool (Item 1 of the Schedule);
	(ii)	Documents relating to the safety of the big wave pool between its opening in 1984 and the date of the accident (Items 2, 3 and 4 of the Schedule);
	(iii)	Reports on the accident made by the Defendant (Item 5 of the Schedule);
	(iv)	Documents relating to the lifeguards and lifesaving at the pool (Items 6, 7, 8 and 9 of the Schedule).

Principles

3. The principles relating to the application for specific discovery can be summarised as follows :-

(1)

The party seeking the order has to make out a prima facie that:

	(i)	there is in existence a specific document or class of documents;
	(ii)	the party against .whom the order is sought has or had the document in his possession, custody or power;
	(iii)	the document or class of documents relates to a matter in question in the action; and
	(iv)	discovery is necessary either for disposing fairly of the cause or matter or for saving costs.

(See Deak and Company (Far East) Limited v. N.M. Rothschild and Sons Limited and Others (Civil Appeal No.28 of 1981 and Berkeley Administration Inc. and Others v. McClelland and Others [1990] F.S.R.381).

	(2)	The prima facie case may be based on the probability arising from the surrounding circumstances or in part on specific facts deposed to. (Note 24/7/1 Supreme Court Practice 1995).
	(3)	"Relevance" means something which contains information either directly or indirectly enabling the party seeking discovery either to advance his own case or to damage that of his adversary, or which may fairly lead to a train or inquiry which may have either of these consequences.
		(See Campagnie Financiere ET Commercial Du Pacific v. The Peruvian Guano Company (1882) 11 Q.B.55
	(4)	A document may be relevant either by reason of its character - for instance, the mere fact that it is a document of a particular kind - or it may be relevant by reason of its contents, and, if the applicant is relying upon a particular class of documents because they may have certain contents, it is not enough for him to say "there must be this particular class of documents" unless the mere fact that they belong to the class is sufficient to constitute relevancy. If the mere fact that they belong to the class is not sufficient to constitute relevancy, but the relevancy has to depend upon the particular contents, then there must be a prima facie case for particular contents made, before, discovery can be granted.
		(See Astra-National Productions Ltd. v. Neo-Art Production Ltd, and Others [1928] W.N.218.)
	(5)	Where a claim to see a class is made, the class must not be defined or described so widely as to include documents which are not relevant to the issue (Note 24/7/1).

General Observations

4. Before I deal with the specific items, there are some general observations I shall make about this application.

5. The present application is supported by an affidavit of Mr Turnbull, the Solicitor for the Plaintiff, which, inter alia, stated that:

"I consider that given the nature of the Defendant's operation and business, any prudent organization in such business would have the documents and records listed in the said Schedule which are highly relevant to this Action and I so pray that an order be made..."

6. This is all the affidavit evidence relied upon by the Plaintiff. In the course of his submission, Mr Wright, counsel for the Plaintiff, also referred to the pleadings and the report of Mr Hitchin which I shall deal with later. It is repeatedly said that an affidavit of information and belief, not stating the source of the information or belief, is irregular, and therefore inadmissible as evidence (see In re J.L. Young Manufacturing Company Ltd [1900]2 Ch 753). Whilst it is appreciated that firstly, Mr Turnbull was not an employee of the Defendant and, to this extent, he may be handicapped in what he said regarding the documents of the Defendant and secondly, in the recent case of Deutsche Ruckversicherung Aktiengesellschaft v. Walbrook Insurance Co. Ltd and Others [1995]1 Ll.L.R.153, Philip J. held that a deponent of an affidavit need not identify as the source of his information or belief an original source of evidence which would be admissible at the trial, the underlining principle in an application under O.24, r.7 is that a prima facie on existence, possession and relevance must be made out. The Defendant has already filed two lists of documents disclosing documents such as the cross sectional drawing of the wave pool, sketch of the wave pool, procedural manual of the Waterworld, operation manual of the wave machine, internal reports made after the accident, notes of proceedings of the death inquiry and statements of the four lifeguards on duty at the time of the drowning (see first List and Report of Mr Hitchin at page 24). I have not seen the documents set out in the lists but it would appear that the documents I have outlined above come within the four categories sought by the Plaintiff. The Plaintiff in the affidavit of Mr Turnbull has clearly not set out a prima facie of the existence of documents other than those already disclosed by the Defendant.

7. In relation to relevance, Mr Wright, referred me to the Report of an expert, Mr Hitchin of 25th August 1994 in which he stated that drowning fatalities rarely occurred in swimming pools with a lifeguarding system in operation and, if they do, then it is due to:

	1)	dangerous design features;
	2)	plant defects or incorrect methods of operation;
	3)	failures in the lifeguarding system;
	4)	failures in the performance of rescues and/or resuscitation and;
	5)	ineffective management methods and/or poor supervision.

8. Mr Wright referred me to the Amended Statement of Claim which pleaded, inter alia, that the death of the deceased was caused by the negligence of the Defendant. He argued that the areas covered by Mr Hitchin are those pleaded in the particulars of negligence and hence the documents are relevant to the issues of this case. Whilst the pleadings may refer to the particulars of negligence, there must be in existence primary facts upon which the negligence can be established. The Defendant had asked for further and better particulars of Para.10(d) of the Statement of Claim before its amendment which pleaded that the Defendant had failed to ensure sufficient trained lifeguards were properly stationed to prevent the deceased drowning. The answer given was:

"The Plaintiff cannot give further and better particulars in the form requested. The Plaintiff does not allege specifically as part of her case that any particular number of lifeguards trained in any particular way, deployed and stationed in any particular way, ought to have been provided by the Defendant. The Plaintiff merely alleges that if the particular number of lifeguards on duty at the time, trained as they were, and all individually fully vigilent and using their best powers of observation and acting with the requisite level of dispatch and efficiency was insufficient to prevent this drowning from occurring in front of their eyes, then ergo a sufficient number of trained lifeguards properly stationed was not provided."

9. Similar line of response was given in respect of the Defendant's request for particulars of the allegation that the Defendant had failed to employ a safe system to ensure the safety of persons swimming in the pool. This apparently is still the stance of the Plaintiff at this stage of the litigation. In other words, the Plaintiff has not put forward a positive case in relation to matters such as the lifeguards and safe system. I agree with Mr Mills-Owens, leading counsel for the Defendant, that the Plaintiff is now attempting to fish out a case by seeking discovery of the documents.

10. The documents listed in the Schedule are not specific documents. As Astra indicated, a document may be relevant either by reason of its character or content. The Plaintiff has to show either the mere fact that the documents belong to the class is sufficient to constitute relevancy or a prima facie case for the particular content if the relevancy is dependant on the particular content. The documents in the Schedule are worded too widely. Insofar as they can be described as class documents, the Plaintiff still needs to show a prima facie case of possession and relevance.

Ruling on specific requests

11. I will now deal with the specific requests.

All documentation relating to the dimensions of the pool specifically detailing the changes in depth of water and the demarcation points. if any. of the changes.

12. I am not satisfied that these documents are relevant to the issues in this case. I cannot see how the dimensions of the pool would be relevant to the issue of someone drowning there. Mr Wright submitted that they are relevant to the question of warning and notices of the Defendant. But the Plaintiff has already disclosed a cross sectional drawing of the pool, sketch of the pool and notes of the inquest. The Plaintiff has not shown that there are other documents in existence and the disclosed documents are totally irrelevant and hence further documents are required.

All correspondence to and from advice or reports from any person(s) and/or organisation(s) employed or engaged or communicated with for advice, guidance or information on matters pertaining to safety, before, during and after the big wave pool at Waterworld, Ocean Park was opened for use in 1984 and prior to the 31st July 1984.

13. Mr Wright argued that for an operation like the Ocean Park one would expect the existence of these documents. The burden is on the Plaintiff to show a prima facie case of the existence and possession of these documents. There is no evidence that documents relating to the safety of the pool were in existence in 1984 or earlier.

14. The documents do not refer to specific or class documents. The description of the documents is too wide as it may include safety measures on matters other than the wave pool, such as fencing of machinery, guard rails and slippery nature of the floor.

15. The Plaintiff has not shown that the documents that were already disclosed have no relevance at all to the issue of safety or that there are other documents in existence as well.

16. Given the stance taken by the Plaintiff as indicated in the Answer to the Request for Further and Better Particulars and the reliance on res ipsa loquitor, I cannot see how the documents under this Item are discoverable. I do not see how discovery is necessary either for disposing fairly of the cause or matter or for saving costs. The Defendant is asked to swear an affidavit whether it has or had the documents in its possession. The Ocean Park was opened in 1984 and the documents sought by the Plaintiff would cover the period before its opening. I was informed by counsel for the Defendant, that the Jockey Club was also involved in the planning and operation of the Ocean Park. All these would mean that the Defendant would have to go through documents over 10 years old from various sources and these are documents the Plaintiffs have not shown a prima facie case of existence or relevance to the issues of this case.

3.	All documentation arising out of such advice and/or reports tendered or received as a consequence of the contact(s) communication made under paragraph 2 herein.
4.	All documentation relating to monitoring, inspection and/or supervision of the safety guidelines (if any) advised, suggested or considered under paragraph 3 herein prior to the 31st July 1984.

17. Items 3 and 4 can be dealt with together. The same comments I have made in respect of Item 2 will apply to these two items. In respect of Item 4, I agree with Mr Mills-Owens that the words "if any" after safety guidelines demonstrated that the Plaintiff has not made out a prima facie case of possession.

All reports arising out of the accident made by any member of management or staff before the Plaintiff's formal intimation of claim.

18. I have already dealt with the internal reports. The Plaintiff has not shown that there is in existence other reports as well.

All documentation relating to the provision and operation of lifeguarding and/or lifesaving at the pool from the date it was first opened to the public in 1984 to 31st July 1984.

19. The discovery is too wide, it includes documents relating to employment of lifeguards such as employment contracts which are not relevant to the issue.

20. Again, given the stance taken by the Plaintiff on the provision and operation of the lifeguarding and lifesaving, I do not see the relevance of the documents requested for.

All documentation relating to qualifications, age and experience of lifeguards, lifesavers, first aiders, and supervisors employed at the pool at the material time.

21. The same comment regarding Item 6 will apply. Further Mr Hitchin at page 24 of his report had already referred to the age and experience of the five lifeguards that were on duty at the time of the drowning. The Plaintiff has not shown the relevance of these documents in the light of what Mr Hitchin had said.

All documentation relating to the duties of all staff referred to in paragraph 7 on duty on 31st July 1984, identified by reference to the relevant duty roster, specific duties and hours of duty tasked to each said member or staff.

22. The Defendant has already given discovery of the operation manual. The Plaintiff has not shown the relevance of documents relating to the duties of the staff on duty on 31st July 1984 given the stance the Plaintiff has taken.

All documentation relating to all aspects of the training of lifeguards, lifesavers, first aiders and supervisors employed at the pool from the date of opening of the said pool in 1984 to 31st July 1984 in particular:-

	(i)	Training sessions showing dates and times.
	(ii)	Attendances at training sessions of those lifeguards, lifesavers and first aiders who were on duty at the pool at the material time on 31st July 1984.
	(iii)	Course contents and/or training manual for trainees and/or instructors attending such training sessions as identified at (i) above.
	(iv)	Names, addresses and qualifications of those lifeguards, lifesavers and instructors identified at (ii) hereinabove.
	(v)	Staff appraisal reports on those staff identified at (ii) above.

23. Again the relevance of training of the lifeguards has not been shown in the light of the case relied upon by the Plaintiff. To request documents relating to the training seems to me to be a fishing exercise to make out a case now pleaded in the Amended Statement of Claim.

Conclusion

24. Mr Wright has stressed the importance of the discovery to the Plaintiff. I am mindful of this and also of the tragic nature of the case but as I am not satisfied that the Plaintiff has made out a case for specific discovery, the Plaintiff's summons has to be dismissed with costs to the Defendant.

	(P. Cheung)
	Judge of the High Court

Representation:

Photocopying of this Headnote is not allowed

Mr John Wright, inst'd by M/s Simmons & Simmons, for the Plaintiff

Mr Richard Mills-Owens, Q.C. & Mr Ruy Barretto, inst'd by M/s Haldanes, for the Defendant