Ho Mui v. Gammon (Hong Kong) Ltd and Another

Case No.HCA 2584/1973

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA002584/1973

IN THE SUPREME COURT OF HONG KONG

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ORIGINAL JURISDICTION

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1973 No. 2584

BETWEEN:	HO MUI, widow of LEUNG Wah Kwan, deceased for himself and on behalf of the dependants of the said deceased	Plaintiff
	and
	GAMMON (HONG KONG) LTD.	1st Defendant
	RICHER CO. (a firm)	2nd Defendant

Coram: Mr. Registrar Barnes in Chambers.

Mr. R. Tang of Counsel (D.L.A.) for Plaintiff.

Mr. R. Mills-Owens of Counsel, (Deacons) for 1st Defendant.

Mr. Taylor of Johnson Stokes & Master for 2nd Defendant.

Date of Judgment: 14th November, 1974.

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JUDGMENT

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DECISION:

1. This is an application on the part of the 1st Defendant for an order that the Plaintiff serve on the 1st Defendant certain further and better particulars of the Statement of Claim.

2. The Plaintiff's claim is for damages under the Fatal Accidents Ordinance. In paragraph 4 of her Statement of Claim she has pleaded:-

"The deceased was at all times material to this action a plaster employed by the 1st Defendant, alternatively by the 2nd Defendant, to do exterior plastering and finishing work at the Connaught Centre".

3. The 1st Defendant in its Defence has denied that allegation and pleaded that the deceased was not employed by the 1st Defendant but was a sub-contractor of the 2nd Defendant which itself was a sub-contractor of the 1st Defendant.

4. The 1st Defendant seeks the following further particulars of the Plaintiff's allegation in paragraph 4 of her Statement of Claim:-

"State whether it is alleged that the deceased was employed under an oral contract or a contract in writing; if in writing, identify the document, if oral, give particulars of the date, time and place that such contract was entered into and identify the person who is alleged to have employed the deceased on behalf of the 1st Defendant".

5. The Plaintiff's response to this request was as follows:-

"The particulars claimed are within the knowledge of the 1st Defendant and, further, the 1st Defendant is not entitled to the same until after discovery is completed. Alternatively, the 1st Defendant is not entitled to the same by reason of being estopped from denying such employment".

6. In my view there is no merit in the Plaintiff's first objection to supplying the requested particulars but her objection, framed in the alternative, is valid.

7. In her Reply to the Defence of the 1st Defendant the Plaintiff has pleaded that the 1st Defendant, in proceedings brought under the Workmen's Compensation Ordinance, has already admitted liability in respect of the personal injuries and death suffered by the deceased arising out of and in the course of his employment by the 1st Defendant and that as it was the same accident and the same injuries which give rise to the claim in this action, the 1st Defendant is estopped from denying that the deceased was at all material times employed by the 1st Defendant.

8. In the present form of the pleadings it appears that, as between the Plaintiff and the 1st Defendant, it has been judicially determined in a final manner that a contract of service existed between the deceased and the 1st Defendant at all times material to this action. In my view, therefore, the 1st Defendant is estopped from denying that a contract of service existed at the time of the accident which gives rise to these proceedings. Accordingly, I agree with the plaintiff's contention that the 1st Defendant is not entitled to the further particulars requested.

9. The 1st Defendant has also requested further and better particulars of the Plaintiff's Particulars of Negligence set out in paragraph 8 of the Statement of Claim. Those particulars, the 1st Defendant's request and the Plaintiff's reply thereto may be tabulated as follows (omitting of course what is not relevant on this Aplication):-

	PARTICULAR	REQUEST FOR FURTHER & SETTER PARTICULARS	FURTHER PARTICULARS SUPPLIED
(1)	Hailing adeouately to secure the cradles to the working face of the eastern side of the Connaught Centre so as to prevent or restrain the cradles from swaying or swaying excessively or tipping forwards	Give full particulars of the manner in which it is alleged that such cradles were not adequately secured. Give full particulars of the manner in which it is alleged that such cradles should have been secured so as to render such securing "adequate".	Sufficient particulars of inadequacy are pleaded in the (original allegation) and the 1st Defendant is not entitled to further particulars thereof or to particulars of the manner in which it is alleged that such cradles should have been secured so as to render such securing adequate.
(2)	Causing or permitting the cradles to be positioned too close to the counterweight of the cargo-hoist	Give particulars of the manner in which it is alleged that the 1st Defendant caused the said cradles to be positioned too close to the counter-weight. Give full particulars of the manner in which it is alleged that the 1st Defendant permitted the said cradles to be positioned too close to the said counter-weight. Give particulars of what is alleged to be "too close".	These requests are frivolous and the 1st Defendant is not entitled thereto.
			A position not sufficiently far away.
(3)	Failing to provide any or any sufficient anchorages on the cradles for safety belts.	It is alleged that the 1st Defendant failed to provide any anchorages on the cradles for safety belts?	(The original allegation) is that the 1st Defendant (its servants or agents and/or the 2nd Defendant, its servants or agents) or any of them (a) failed to provide any anchorages on the cradles for safety belts, or (b) in the alternative to (a) hereof, failed adequately to secure the said cradles to the said working face. In so far as the allegations (allege) a failure adequately to secure the said cradles, sufficient particulars of in adequacy are pleaded in (the original allegation) and the 1st Defendant is not entitled to further particulars thereof or to particulars of the manner in which it is alleged that such cradles should have been secured so as to render such securing adequate.
		Give particulars of the manner in which it is alleged that there were insufficient anchorages.
		How many anchorages is it alleged should have been provided?
(4)	Failing to provide or set-up or main-tain any or any adequate system of safety supervision at the Connaught Centre to ensure that all systems, equipment and methods of work at the Connaught Centre were reasonably safe.	Identify each and every system that it is alleged that the 1st Defendant should have provided. Give full particulars of the manner in which it is alleged that the 1st Defendant failed to maintain such systems. State precisely what it is that the 1st Defendant should have provided and failed to provide. Identify each and every system alleged to be inadequate.	The 1st Defendant is not entitled to these particulars.
		State in what manner the 1st Defendant has in each case failed to maintain the adequacy of such system. Is it alleged that any system and if so which set up by the 1st Defendant was not reasonably safe? If so alleged, identify the system and give full particulars of the matters relied upon in support of the allegation that such system was not reasonably safe. Is it alleged that any of the equipment was not reasonably safe? If so alleged identify each and give full particulars of the matters relied upon in support of such allegation.
		Is it alleged that any and if so which methods of work were not reasonably safe? If so alleged give full particulars of the matters relied upon in support of the allegation that each such method of work was not reasonably safe.
(5)	Failing to provide any adequate safety rail or other adequate guard at the front (working side) of the cradles so as to minimize the risk of workers on the cradles from being tipped from or otherwise falling out of the cradles.	Give full particulars of all matters relied upon in support of the allegation of inadequacy. State precisely what it is alleged that the 1st Defendant should have provided.	Sufficient particulars of inadequacy are pleaded (in the allegation) and the 1st Defendant is not entitled to further particulars thereof or to particulars of what it is alleged the 1st Defendant should have provided.
(6)	Failing to enclose or adequately guard the path of the counterweight of the said argo-hoist so as to prevent the cradle from being struck by the moving counterweight.	Of the allegation (of failure) to adequately guard the path of the counterweight -- Give full particulars of the matters relied upon in support of the allegation of inadequacy.	The allegation of inadequacy is sufficiently pleaded.
		State precisely the manner in which it is alleged that the path of the counterweight should have been guarded.	The 1st Defendant is not entitled to the particulars requested.
(7)	Failing to provide any sufficient system of warning workers on the cradles of the approach of the counterweight or of the intention to set the cargo-hoist in motion.

(8)	Operating or permitting the cargo-hoist to be operated at a time when the deceased was working on the cradles and when the said cradles were in close proximity to the path of the counterweight of the cargo-hoist.	Give particulars of what is meant by "in close proximity".	The allegations are sufficiently pleaded.

10. Mr. Mills-Owens' argument was that, the Plaintiff having alleged that the 1st Defendant failed to provide a safe system of work, the obligation fell upon her to particularise what system was employed, how it was unsafe and what system should have been provided which would have been safe.

11. In support of his argument he relied upon Colfax v. Coggins & Griffith (Liverpool) Ltd. [1945] A.C. 197, per Viscount Simon, L.C., at p.203; General Cleaning Contractors Ltd. v. Christmas [1953] A.C. 180 per Lord Tucker at pp.195 and 197; and Gilfillan v. National Coal Board 1972 S.L.T. 39, 44.

12. Mr. Tang, in reply, contended that ...(illegible) obligation was on the employer to prove that the system in use was safe and that the Plaintiff was under no obligation to provide further particulars. He referred to Dixon v. Cementation Co. Ltd. [1960] I W.L.R. 746; and Ceneral Cleaning Contractors Ltd. v. Christmas (supra) per Lord Oaksey at pp. 190-1.

13. Some of the dicta to which I was referred by Counsel seemed to me, at the time, to be in conflict. But, having had time to refer to them more closely, it now seems to me that each was an individual observation on the question whether, in the particular circumstances of the case, the particulars supplied were sufficient to outline the case to be made against the Defendant.

14. The overriding principle seems to be that "particulars will be ordered whenever the master is satisfied that without them the applicant cannot tell what is going to be proved against him at the trial" (Odgers on Pleading and Practice, 18th ...(illegible) p.158). And the "what" is that which is sufficient to indicate to the defendant the nature of the evidence he will be required to adduce to meet the plaintiff's allegation. (The Supreme Court Practice, 1973 at p.276, citing Elkington v. London Association, etc. 27 T.L.R. 329).

15. Applying that principle it seems to me that the Plaintiff has indicated to the 1st Defendant the nature of the evidence it will need to have available at the trial with this exception: the particulars in paragraph (4) of the table set out above (which is Paragraph 8(v) in the Statement of Claim) indicate that the Plaintiff intends to put in issue matters regarding safety supervision not relevant to this action. The 1st Defendant is entitled to have these particulars expressed more precisely so that it will know the nature of the evidence it will need to have available on this issue.

16. I therefore order that the Plaintiff do within 21 days serve on the 1st Defendant the further and better particulars set out in the summons in respect of paragraph 8, sub-paragraph (v) of the Statement of Claim. I further order that if the Plaintiff should default in supplying the said particulars within the said time or within any extension of that time either agreed upon by the Plaintiff and the 1st Defendant or allowed by the Court the Plaintiff be precluded from adducing at the trial of this action any evidence relevant to the said particulars. The costs of and incidental to this application to be costs in the cause with a certificate for counsel.

17. DATED the 14th day of November, 1974.

	(E.C. Barnes)
	Acting Assistant Registrar

Representation: