Yeung Fu v. Guardforce Ltd

DCPI213/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES NO. 213 OF 2004

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BETWEEN

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Before: Her Honour District Court Judge Marlene Ng in Chambers (Open to Public)

Date of Hearing: 19^th January, 2006

Date of Handing Down Decision: 3^rd March, 2006

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DECISION

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I.  Introduction

1.The Plaintiff, a driver of armoured vehicle employed by the Defendant security company, had a traffic accident and suffered personal injuries. He sued the Defendant in negligence for damages on the grounds inter alia that (a) the Defendant failed to provide the Plaintiff with sufficient “resting time”, and (b) the Plaintiff was too tired to drive on day of the accident but he was too scared to take the day off as feared for his job.

2.The Defendant averred that it had a safe system of work, sufficient supervision and adequate arrangements to ensure the Plaintiff had sufficient rest or “resting time” (the “Sufficient Rest Defence”). It further relied on the Plaintiff’s conviction of careless driving to say that he was wholly or partly responsible for the traffic accident.

3.There are two applications for me :

(a) the Plaintiff’s summons for further and better particulars of the Defence (the “FBP”); and

(b) the Defendant’s summons for leave to issue interrogatories and for the Plaintiff to answer the same by affidavit.

II.  FBP

(a) Background

4.On 9^th August 2005, the Plaintiff’s solicitors (“PS”) issued a request for the FBP (the “Request”) and sought a reply on/before 15^th August 2005. On 10^th August 2005, the Defendant’s solicitors (“DS”) provided PS with copies of some of the Defendant’s discovered documents (the “Documents”). On 12^th August 2005, PS raised some queries in respect of the Documents, the gist of which was summarised in paragraph 7 of the affirmation of Mr Tso, the solicitor for the Plaintiff. On 15^th August 2005, DS advised that the Documents “would provide sufficient information in answering your [Request]”. PS then amended the Request by abandoning certain requests for FBP (the “Revised Request”). On 23^rd August 2005, PS sought clarification and better copies of certain Documents. By its letter dated 12^th December 2005, DS claimed that “most if not all of the answers requested of should have been answered by the [Documents]. The rest of the requests relate to evidence and your client is not entitled to further particulars thereof.” 

5.Mr Tso complained that to date the Defendant failed to provide the FBP requested under the Revised Request or better copies of some of the Documents. He further submitted that it was essential for the Plaintiff to understand the Defendant’s case regarding the Sufficient Rest Defence. Mr Yeung, solicitor for the Defendant, submitted inter alia that (a) the Defendant had already provided sufficient particulars in its Defence, (b) some items of the Revised Request asked for evidence or were irrelevant or related to discovery and (c) the Revised Request had been sufficiently answered by the Documents.

(b) Applicable principles

6.There is no dispute that :

(a) pleadings must contain material facts and not evidence;

(b) material facts are those facts which must be proved in order to establish a ground of claim or defence;

(c) all necessary particulars of the material facts must be pleaded;

(d) the court will not order further and better particulars of a pleading where the particulars sought constitute evidence.

7.The function of particulars is helpfully summarised in Hong Kong Civil Procedure 2006 at para.18/12/1 at p.307 as follows :

“The requirement to give particulars reflects the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as far as possible, so as to minimise costs. In Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co. Ltd. [1994] 2 H.K.C. 264 Bokhary J.A. said at 269E-270E that the functions of properly particularised pleadings are as follows:

(1) to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(2) to prevent the other side from being taken by surprise at the trial;

(3) to enable the other side to know with what evidence they ought to be prepared and to prepare for trial;

(4) to limit the generality of the pleadings, the claim and the evidence;

(5) to limit and define the issues to be tried, and as to which discovery is required;

(6) to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).”

8.The particularity of what is required from the pleader depends on the facts of each case. The modern approach is stated in McPhilemy v Times Newspapers Ltd & ors [1999] 3 All ER 775 as follows : The current practice of requiring witness statements, expert reports and so forth to be exchanged should reduce the need for further and better particulars to clarify pleadings. As long as the pleadings do convey the nature of the party’s case and state the material facts, they should not attract applications for further and better particulars even though some details that are likely to come forth in discovery or witness statements are not disclosed.

9.Lord Woolf’s remarks, given in the context of the English Civil Procedure Rules, are equally applicable to the current practice here. He said at p.793 as follows :

“As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification. In addition, after disclosure and the exchange of witness statements, pleadings frequently become only of historic interest. …… the case is overburdened with particulars and simpler and shorter statements of case would have been sufficient. Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged. In this case the distinct impression was given by the parties that both sides were engaged in a battle of tactics. Each side was seeking to fight the action on, what from that party’s perspective appeared to be, the most favourable ground. The dispute over particulars was just being used as a vehicle for that purpose …… The judiciary had been exhorting proportionality whenever an appropriate opportunity to do so arose. ……”

10.Such approach is also reflected in Midland Realty International Ltd v Wise Surplus Ltd [2002] 3 HKC 318. Deputy Judge Gill considered that the further and better particulars sought by the defence were a matter of evidence to be proved at the trial. A representative of the plaintiff, with full knowledge of the history of the dispute, would give evidence and had filed a comprehensive witness statement which set out in some detail the evidence upon which the plaintiff intend to rely. The learned judge decided that it would be wrong to require this to be incorporated into the pleadings, even in gist.

11.I now apply the above principles to the Revised Request, which relates to paragraphs 6 and 7 of the Defence (ie the Sufficient Rest Defence).

(c) Request 1 – paragraph 6(a) of the Defence

12.Paragraph 6(a) of the Defence pleaded as follows :

“The number of basic working days in each month for the Plaintiff equals the total number of calendar days minus all Sundays and statutory holidays at 8 hours per day with overtime pay for hours worked in excess of –

i.   8 hours for basic working days;

ii.  basic working day.”

13.Mr Tso submitted that the pleadings are convoluted and incomprehensible. He said he could not be sure whether paragraph 6(a) of the Defence was in relation to the number of working days or to overtime pay. He argued that the pleadings did not make clear what the difference between basic working days and working days was. He said the Plaintiff was entitled to know the Defendant’s precise averments.

14.Mr Yeung submitted that the pleadings were clear and that DS’ letter of 19^th December 2005 already informed PS that the answer to this request could be found in the Plaintiff’s employment contract with the Defendant being part of the Documents.

15.I am of the view that the Plaintiff is entitled to Requests 1(1) and (2), but not Requests 1(3) and (4). It appears from the plain reading of paragraph 6(a) of the Defence that its focus is on the calculation of the number of basic working days in each month for the Plaintiff. There is no dispute that such pleading was drawn from the terms of the Plaintiff’s employment contract with the Defendant. However, the true issue raised by such pleading in the context of the Sufficient Rest Defence turns not just on the calculation of the Plaintiff’s basic working days but also on whether such contractual stipulation was adhered to in actual practice. In the circumstances, I allow the Plaintiff to seek FBP as to whether it is the Defendant’s case that the Plaintiff had to work on all “basic working days” (Request 1(1)) and if not, to identify the days in a month except Sundays and statutory holidays that the Plaintiff was not required to work (Request 1(2)). Such requests go to the core issue of whether the Plaintiff had sufficient “resting time” and they could not be answered by looking at the employment contract. However, if no time limit were set for such requests, they would be too wide. Mr Tso fairly accepted (and I agree) that such requests should cover a 6-month period before the said traffic accident. 

16.In respect of Request 1(3) there is no averment or plea in the Defence that the Plaintiff was required to work on Sundays and/or statutory holidays to support such request.  In respect of Request 1(4), I cannot see how the Plaintiff’s remuneration in respect of overtime work is relevant to the Sufficient Rest Defence. In my view, these 2 requests are at best attempts to look for evidence. Mr Tso also conceded that Requests 1(3) and (4) might not be appropriate requests for FBP. I therefore disallow such requests.

(c) Request 2 – paragraph 6(b) of the Defence

17.Paragraph 6(b) of the Defence pleaded as follows :

“The Plaintiff, employed by the defendant as a heavy driver (大車司機), was required to work in watches, which could be rotated and each watch was of any length from 8 to 12 hours”.

18.Mr Tso submitted that paragraph 6(b) of the Defence was imprecise. He argued it was necessary for the Plaintiff to know how many hours there were in a “watch”, how the “watches” were rotated and what the Plaintiff’s rostered rest days were. He submitted that it was the Plaintiff’s case that he was sometimes required to work until 1:00 am and then report for the following morning shift.

19.Mr Yeung argued that the Plaintiff should be well aware of the rotation of his own “watches”. Alternatively, he said such request was merely fishing for evidence. The Defendant had already discovered and provided PS with copies of the Plaintiff’s time cards, so the Plaintiff knew very well the actual dates and times of his own “watches”. Mr Tso complained that some copy time cards did not have date chops and some had dates that were illegible. Mr Yeung had 2 answers to such complaint. First, he said the copies provided to PS were the best copies. Further, DS by letter dated 23^rd August 2005 invited PS to physically inspect the Documents, but there was no response or further request from PS thereafter. In any event, this related to discovery/inspection of the Documents and should not be made subject of a request for FBP. Secondly, the Defendant provided PS with a computer record printout setting out the dates and times of the Plaintiff’s “watches” as marked on the time cards. So even if the dates of some time cards could not be legibly photocopied, the relevant information was still available to the Plaintiff.

20.I am of the view that the Plaintiff is not entitled to Request 2(1), namely, to state precisely the rotation of “watches”. However, I agree with Mr Tso that the Plaintiff is entitled to Request 1(2), which requires the Defendant to state precisely the rotation of the Plaintiff’s “watches”. The averment in paragraph 6(b) of the Defence is directed at the rotation of the Plaintiff’s “watches” and not at any general rotation of “watches”. There is no suggestion in the pleadings that there is a distinction between the rotation of “watches” generally (if any) and the rotation of “watches” for the Plaintiff. I do not think that Request 1(1) is necessary or justified.

21.I disagree that Request 1(2) is a fishing request. Such pleading does not sufficiently address the material facts in relation to the averment on the rotation of the Plaintiff’s “watches” in respect of the Sufficient Rest Defence. In my view, the Plaintiff is entitled to know the Defendant’s case on the subject, eg whether it is suggested that the Plaintiff had sufficient “resting time” based on, say, a rotation arrangement of back-to-back “watches” or one with intervals between the “watches”. Clearly, these are material facts (and not just evidence) that impact on the core issues of the Sufficient Rest Defence. To aver that the Plaintiff was required to work in “watches” which “could be” rotated is materially unclear.

22.Whilst I agree that the time cards (subject to better copies and/or physical inspection) may show the actual periods of work by the Plaintiff, they do not necessarily show the Defendant’s case on how the “watches” “could be” rotated, ie the schedule of rotation of “watches” designed by the Defendant for the Plaintiff. I am not persuaded by Mr Yeung’s argument that the Plaintiff must have been aware of his actual rotation of “watches” is a sufficient answer. Hong Kong Civil Procedure 2006 Vol.1 para.18/12/61 at p.318 states as follows :

“It is sometimes urged as an objection to an application for particulars that the applicant must know the true facts of the case better than his opponent …… But this objection is misconceived: each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story.”

(d) Request 3 – paragraph 6(c) of the Defence

23.Paragraph 6(c) of the Defence pleaded as follows :

“The Plaintiff was entitled to 1 rest day in every 7 days to be arranged on roster.”

24.Mr Tso argued that paragraph 6(c) of the Defence was ambiguous and imprecise. He submitted that it is necessary for the court to know the roster of rest days for the Plaintiff.

25.Mr Yeung submitted that “rest day” as referred to in the pleadings was the statutory rest day. He further submitted that the answer to Request 3(1) could be found in the Plaintiff’s employment contract with the Defendant and therefore there was no justification for such request. As regards Request 3(2), Mr Yeung submitted that the information had been disclosed in the time cards.

26.I am persuaded that I should allow Request 3(1), namely, to identify the Plaintiff’s roster for his “rest days”. In my view, although there is nothing unclear or ambiguous about the averment that the Plaintiff was entitled to have 1 rest day out of every 7 days, it is unclear what is meant by “to be arranged” on roster. The thrust of the Sufficient Rest Defence is that the work arrangements for the Plaintiff would allow sufficient “resting time”. It is therefore plain that the arrangement or schedule by the Defendant for rostering the Plaintiff’s rest days is a material fact, which is quite different from the actual rest days taken by the Plaintiff as shown by the time cards. This is because the Sufficient Rest Defence can turn on the reasonableness of either the scheduled arrangement or the actual implementation or both.

27.However, I am not persuaded that I should allow Request 3(2), namely, whether Sundays and statutory holidays were counted as part of the “7 days” as pleaded. In my view, there is no ambiguity and no qualification in the plea of “every 7 days” in paragraph 6(c) of the Defence. This is a fishing request and should be disallowed. Whether this averment is correct or can be supported by evidence is another matter.

(e) Request 4 – paragraph 6(e) of the Defence

28.Paragraph 6(e) of the Defence pleaded as follows :

“As a driver, the Plaintiff had a significant amount of time waiting and resting in the armoured vehicle while he waited for his colleagues to perform cash-in-transit duties during the shift;”

29.Mr Tso submitted that paragraph 6(e) of the Defence was ambiguous. He argued that the Plaintiff was entitled to know what the Defendant meant by “waiting and resting”. Since it is unclear from such pleading whether the Defendant regarded “waiting and resting” in the armoured vehicle as “resting time”, Mr Tso submitted that the Plaintiff was entitled to request the Defendant to state whether its case was that the Plaintiff was not working whilst waiting for his colleagues to perform cash-in-transit duties (Request 4).

30.Mr Yeung submitted that it was the Defendant’s case that waiting and resting in the armoured vehicle whilst the Plaintiff’s colleagues performed their duties was “resting time” for the Plaintiff. Nevertheless, he argued that Request 4 in asking whether the Plaintiff was “working” whilst so “waiting and resting” was a fishing request.

31.I am of the view that the Plaintiff is not entitled to Request 4, which is plainly a matter for evidence and cross-examination. The averment only stated the material fact that the Plaintiff’s job as a driver involved a significant amount of time “waiting and resting” in his vehicle whilst his colleagues did other duties. There is nothing unclear and ambiguous about such averment. It does not put in issue whether he was or was not working but merely stated as a fact that this was how the Plaintiff actually spent a significant amount of his time as a driver. Whether this averment is sustainable by evidence or whether it can be challenged that the Plaintiff could not be “resting” whilst he was on duty (albeit sitting in his vehicle waiting for his colleagues to perform other duties) was a matter for witness statements, cross-examination and/or submissions, but not for FBP.

(f) Request 5 – paragraph 7(a) of the Defence

32.Paragraph 7(a) of the Defence pleaded as follows :

“Provided the Plaintiff with sufficient resting time.”

33.Mr Tso submitted that paragraph 7(a) of the Defence was ambiguous and the Plaintiff was therefore entitled to know the Defendant’s definition of “resting time”. Mr Yeung submitted that this was a fishing request. He said that plainly rest days were the Plaintiff’s resting time.

34.Request 5(1) asked the Defendant to define “resting time” and Request 5(2) asked the Defendant to “state precisely what and when the Plaintiff’s “resting time” were”. It seems to me there is an overlap between the 2 requests. If the Plaintiff properly defines “resting time” by stating the material facts, it will have dealt with what and when “resting time” was. In the circumstances, I am prepared to allow Request 5(1) and not Request 5(2).

35.In my view, Request 5(1) is justified. Although Mr Yeung submitted that the rest days referred to in paragraph 6(c) of the Defence amounted to “resting time”, paragraph 6(e) of the Defence also refers to “waiting and resting” by the Plaintiff in the vehicle. It is therefore unclear from the pleaded Defence what the Defendant meant by “resting time”. Since this goes to the core of the Sufficient Rest Defence, I consider it appropriate that the Defendant should give the FBP under Request 5(1).

(g) Conclusion and costs

36.The Plaintiff’s summons for FBP of the Defence is therefore allowed to the extent set out above. The Plaintiff’s solicitors should submit a draft order for approval. As regards costs, I am of the view that the Plaintiff was justified in taking out the application since the Defendant resisted all the requests for the FBP sought under the Revised Request. However, I also bear in mind that the Plaintiff was only successful for about half of his requests pursuant to such application. Accordingly, I grant a costs order nisi that the Defendant do pay the Plaintiff half of the costs of the summons for the FBP of the Defence (with all costs reserved if any) to be taxed if not agreed. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

III.  Interrogatories

(a) Applicable principles

37.Both Mr Tso and Mr Yeung agree that the applicable legal principles are set out in paragraphs 18-20 of my judgment in Ascoba Company Limited v Safeco Express Services (HK) Limited DCCJ6161/2003 (unreported, 3^rd August 2005). I do not propose to repeat them here. However, I have reminded myself that the overriding principle is that the interrogatories in question must be necessary either for disposing fairly of the cause or matter or for saving costs. Fishing, oppressive, prolix or imprecise interrogatories should not be allowed. Ultimately, the matter is for the court’s discretion and in the exercise of such discretion the court should take into account all the circumstances of the case.

(b) Interrogatory 1

38.Mr Yeung decided not to pursue Interrogatory 1(i). Mr Tso had no objection for leave to be granted for Interrogatories 1(ii), (iii) and (iv).

(c) Interrogatory 2

39.This Interrogatory relates to paragraph 26 of the Plaintiff’s witness statement dated 3^rd June 2005, which dealt with his conviction for the offence of careless driving in relation to the said traffic accident. The Plaintiff said in his witness statement that he was convicted and fined. “I believe I was not to be blamed for the accident and the Magistrate wrongly convicted.”

40.Interrogatories 2(i) and (ii) ask the Plaintiff to state whether he has appealed against the said conviction and if the answer is in the negative, to state the reason why the Plaintiff has not appealed against the said conviction. It is apparent from the Plaintiff’s witness statement that he does not challenge the existence of the conviction of careless driving against him. He only contended that the magistrate was wrong in convicting him. This meant that section 62 of the Evidence Ordinance is applicable to shift the burden of proof on the Plaintiff. I agree with Mr Tso that Interrogatories 2(i) and (ii) do not form any step in establishing liability or aid in establishing anything which the Defendant has to prove on any contested issue. Whether the Plaintiff’s belief (as stated in the above paragraph) is justified is a matter of evidence and cross-examination.

41.Interrogatories 2(iii) and (iv) ask the Plaintiff when he first obtained his driving licence and to disclose all his driving convictions since he first obtained his driving lience up to the date of the said traffic accident. Mr Yeung submitted that such interrogatories would enable the Defendant to find out whether the Plaintiff was generally a careful or careless driver so the Defendant could then decide whether there would be a case for saying the Plaintiff had a propensity for negligence in driving. In my view, there is no proper foundation for such interrogatories, which are classic fishing requests. Plainly, leave should not be granted for such interrogatories.

(d) Interrogatory 3

42.Mr Tso did not resist Interrogatories 3(i), (ii) and (iii).

(e) Interrogatory 4

43.This interrogatory was based on paragraph 27 of the Plaintiff’s witness statement. The Plaintiff said that he was tired and felt weak on the day of the said traffic accident, so he was not fully alert and could not focus properly. He said he should not have worked on that day and should have taken the day off, but his past experience was that his application for taking a day off for being too tired would be rejected unless he could produce a doctor’s certificate. The Plaintiff claimed he would get a warning letter if he produced doctor’s certificates 2 times per month, and he would be fired if he received 3 warning letters. But if he told the Defendant he wanted to rest on the following day, he would be fired for absenteeism. The Plaintiff claimed that the Defendant would not allow “us” rest or close “our eyes” during the 30-minute meal period, and that if “we” were caught closing “our eyes” during such period, “we” would get a warning letter.

44.The Defendant sought leave to issue Interrogatories 4(i) to (xi). Mr Tso and Mr Yeung at the hearing sensibly agreed that it would be appropriate to first administer Interrogatory 4(iii) which asked the Plaintiff to “state how many warning letters had the Plaintiff received from the Defendant throughout his employment since he commenced work with the Defendant in 1986 up to the date of accident on 5^th May 2001 as a result of his producing doctor’s certificates for sick leave” and defer consideration of Interrogatories 4(iv)-(xi). If the answer to Interrogatory 4(iii) is in the negative, then the other interrogatories may possibly not be necessary. If the answer to Interrogatory 4(iii) is in the affirmative, it may still be sensible to await discovery of the relevant warning letters before considering whether further interrogatories are appropriate. In the circumstances, I will grant leave to issue Interrogatory 4(iii) but not Interrogatories 4(iv)-(ix).

45.The remaining interrogatories are Interrogatories 4(i) and (ii). Interrogatory 4(i) asks the Plaintiff to state how often he applied to take days off because he was too tired to drive and provide the approximate dates thereof. Interrogatory 4(ii) asks the Plaintiff to state the experience he had with the Defendant where he was not allowed to take a day off for rest with detailed dates and occasions where the Plaintiff was not so allowed to do so. Mr Tso claimed that Interrogatories 4(i) and (ii) should not be allowed as they related solely to the evidence which the party interrogated intended to adduce (as distinct from the facts he alleged).

46.In my view, these matters are not necessarily covered by the Defendant’s obligation to give discovery, eg if the alleged applications for days off and the corresponding refusals were made orally. It is also unclear whether such matters are within the knowledge of both parties or within the knowledge of the party intended to be interrogated. It will turn on many factors, including whether the Plaintiff in applying to the Defendant to take days off has made known his purpose in doing so and/or whether the Defendant denies having received such applications and/or refused them. The information requested by these interrogatories is clearly relevant to the core issue on the propriety and reasonableness of the Defendant’s system of work. It is not evidence but the alleged facts which the Plaintiff relies on to establish his case.

47.However, it is undesirable to leave an open-ended time period for these interrogatories. In my view the legitimate requirements for the Defendant’s proper understanding of the Plaintiff’s assertions would require answers to these interrogatories within a period of one year before the said traffic accident. With such timeframe imposed, I consider Interrogatories 4(i) and (ii) helpful in fairly disposing of the contested issues between the parties and they should be allowed.

(f) Interrogatory 5

48.Mr Tso informed the court that the Plaintiff had no objection in answering Interrogatory 5(i), which was in relation to the Plaintiff’s psychiatric illness.

49.The Plaintiff in paragraph 29 of his witness statement said that he was told by the doctor that he was suffering from schizophrenia. Interrogatory 5(ii) asked the Plaintiff to “state whether any of [his] family members was suffering from or had ever suffered from schizophrenia or any other form of psychiatric illness and if so, give further particulars of those family members and the diagnosis of their psychiatric illness and the names of the medical institutions where they are seeking or having sought treatments from”. This is classic example of fishing and/or oppressive interrogatory. No basis has been shown as to how the interrogatory relates to any matter in question in the present cause or matter. Mr Yeung’s assertion that schizophrenia could run in the family is a bare claim from the Bar table unsupported by medical or other evidence. This interrogatory must be disallowed.

(g) Conclusion and costs

50.In the circumstances, I grant leave for the Defendant to serve on the Plaintiff Interrogatories 1(ii), (iii) and (iv), Interrogatories 3(i), (ii) and (iii), Interrogatories 4(i) and (ii) limited to within one year before the date of the said traffic accident, Interrogatory 4(iii) and Interrogatory 5(i). I further order that the Plaintiff do provide answers thereto by filing/serving an affidavit within 28 days from the date of service of the aforesaid interrogatories.

51.Since leave of the court is required for serving interrogatories in the District Court and the final merits of the present case are yet to be determined at the trial, I consider the appropriate costs order should be costs in the cause of the Defendant’s summons of 21^st December 2005 and I grant a costs order nisi to such effect. The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr A Tso of Messrs Fan, Wong & Tso for the Plaintiff.

Mr Ivan Yeung of Messrs Fairbairn Catley Low & Kong for the Defendant.