Akhtar Mahmood v. Chun Wo-henryvicy-china Railway Construction Corporation Joint Venture

HCPI 336/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 336 OF 2007

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BETWEEN

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Coram : Before Master B Kwan in Chambers

Date of Hearing : 4 January 2007

Date of Decision : 14 January 2007

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D E C I S I O N

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The background

1.This is an Application by the plaintiff for discovery pursuant to Order 24 rule 7, and not under rule 7A, despite the margin note of the Summons.

2.It is common ground that at one time the plaintiff was employed in Hong Kong by the defendant (the “Chun Wo-Henryvicy-China Railway Construction Corporation Joint Venture”).

3.However, whilst the plaintiff asserts that the plaintiff was still employed by the defendant at the time of this alleged accident on 3 July 2004, the defendant asserts that he was working abroad for another joint venture (the “Cheng Long-Chan Chun-Chun Wo Joint Venture”) on the Taiwan High Speed Rail project.

4.Obviously the party who employed of the plaintiff at the material time, and party that was the occupier of the construction site in Taiwan must be matters for findings of fact by the Trial Judge.  This aspect of the background of the case is mentioned now because of the requirement of the applicant to show sufficient evidence that the documents sought are in the “possession, custody or power” of the other party.

A summary of the relevant and the main principles of law

A.	The burden of satisfying the court that production and inspection is necessary lies on the party applying: Dolling-Baker v Merrett [1990] 1 WLR 1205 at 1209;
B.	Three prerequisites for production of the documents must be established by the party applying before he can bring himself within the jurisdiction of rule 7.  Berkeley Administration v McClelland [1990] FRS 381.
C.	It was stated in the Berkeley case that there is no jurisdiction to make an order under Order 24 rule 7 for the production of documents unless:
	(i)	there is sufficient evidence that the documents exist which the other party has not disclosed;
	(ii)	the document or documents relate to matters in issue in the action;
	(iii)	there is sufficient evidence that the document is in the possession, custody or power of the other party.
	The position in Hong Kong is no different, see Full Range Electronics Company Ltd v General-Tech Industrial Ltd & Anor HCA 10374 of 1995; Wong Wai Chun v Au Yeung Fung Sim and Others [2001] 2 HKLRD G2 CFI.
D.	When it is established that the 3 prerequisites for jurisdiction do exist, the court will still have a discretion whether or not to order disclosure.
E.	Rule 7 is subject to rule 8, i.e. even if rule 7 is satisfied, discovery will only be ordered if it is shown to be necessary.
F.	It should be remembered that discovery should relate only to a material fact or facts. Discovery should not extend to the manner in which a party’s case is exclusively established.
G.	It should also be remembered that “the Peruvian Guano principles do not justify demands for documents at the far end of the spectrum of materiality which on the face of it are unrelated to the pleaded case of the plaintiff or the defendant and which were required purely for speculative investigation” per Coleman J in O co. v M Co. [1996] 2 Lloyd’s Rep 347.

The Items sought in discovery listed in the Schedule to the Summons

5.I shall now deal with the individual applications in the Schedule:

No.	Item			Master’s Ruling
1.	The Construction Site
	(a)	Progress photographs for the week of the accident		The 3 pre-requisites stated in Principle “C” above have not been satisfied.
				(i) There is no evidence adduced by the applicant to show that such photographs exist.  Just because it may be standard practice to take progress photographs at construction sites in Hong Kong does not mean that such a practice exists abroad.
				(ii) The pleadings do not show that the documents sought (photos) relate to matters in issue in the action.  The plaintiff says that the injury occurred when he was using force to adjust a sleeper of the rail line.  So the issues are whether the plaintiff should have been trying to adjust the sleeper himself, and whether he fell and injured himself in the manner claimed.
				(iii) There is insufficient evidence to show that the document is in the possession, custody or power of the other party.
				In this context, simply to argue that “Chun Wo” is a common party in the Hong Kong joint venture and the Taiwan joint venture is not the same as showing that Chun Wo has “possession, custody or power” over the documents.
				Principle “F” applies.
	(b)	Plans for the scene of the accident		Same comments as in Item 1(a) above, re Principle “C”.
2.	Safety at the Construction Site
	(a)	Safety/accident report book		Same comments as in Item 1(a) above, re Principle “C”.
				Also, the plaintiff conceded in the letter dated 7 January 2008 (enclosing the authority HCA 1931/1988 that had been referred to during Mr Burke’s submissions) that this authority is only relevant to non-party discovery.
				It is pertinent to note that, even if such documents exist, the documents are kept in Taiwan.
	(b)	Employees Handbook		The plaintiff has withdrawn his application for this item.
	(c)	All documents relating to the safety management system operated by the defendant including :
		(i) The company safety policy statement and safety plan		Same comments as in Item 1(a) above, re Principle “C”.
		(ii) Minutes of safety committees for period 6 months before/after the accident		Same comments as in Item 1(a) above, re Principle “C”.
		(iii) All documents relating to safety audits or safety reviews		Same comments as in Item 1(a) above, re Principles “C” and “G”
		(iv) All documents relating to safety training to the employees of the defendant		The plaintiff has withdrawn his application for this item.
		(v) Form 2 & 3 (or similar) for period covering 6 months before and after the accident, prepared pursuant to the Factories & Industrial Undertakings (Safety Officers & Safety Supervisors) Regulations, Cap 59		The plaintiff has withdrawn his application for this item.
	(d)	Risk Assessments for QC work, and laying of track including measurement of distance between sleepers and remedying defects		During submission, Mr Burke stated that “if it exists, it should be disclosed”.  This is contrary to Principles “A”, “B”, and “C” listed   above.
	(e)	Method statement for work being done by the plaintiff at the time of the accident		The plaintiff has withdrawn his application for this item.
3.	The work being done by the plaintiff on 13.07.2004
	(a)	Written instruction		The plaintiff has withdrawn his application for this item.
	(b)	Number of worker at work on shifts :		Contrary to Principle “C(ii)” above.
		(i) Day shift 12.07.2004		Contrary to Principle “C(ii)” above.
		(ii) Night shift on 12-13.07.2004		Contrary to Principle “C(ii)” above.
		(iii) Day shift 13.07.2004		Contrary to Principle “C(ii)” above.
4.	The Accident
	(a)	Accident / Investigation report, with statement of witnesses and photographs		The plaintiff has withdrawn his application for this item.
5.	Employment
	(a)	Personal records file of the defendant for the plaintiff including :
		(i) Leave record		Mr Burke submitted that this document is relevant to show that the plaintiff was “healthy prior to the accident”.  The defendant has already disclosed the sick leave record of the plaintiff for the period when the plaintiff worked for the plaintiff in Hong Kong.  The burden of proving the plaintiff’s physical condition lies on the plaintiff himself. Contrary to Principle “A” above.
		(ii) Training record		The plaintiff has withdrawn his application for this item.
		(iii) Performance appraisal		The plaintiff has withdrawn his application for this item.
	(b)	Records of the wages paid to the person(s) (up to 3 employees) currently employed by the Defendant in the same or similar position to that occupied by the Plaintiff, for the last 12 months		The defendant has stated that these documents do not exist.  There is in- sufficient evidence that the documents exist which the defendant has not disclosed. Contrary to Principle “C(i)”.  In addition, no sufficient shown that the documents sought from Taiwan are in the “possession, custody or control” of the defendant. Contrary to “C(iii)”.

6.For the reasons given, this Application for discovery is dismissed.

7.As costs should go with the event, there is a Costs Order nisi that the costs of this application be to the defendant, to be taxed if not agreed, and that the plaintiff’s own costs be taxed in accordance with legal aid regulations.  This costs order nisi shall become absolute within 7 days of the date of the handing down of this Order, unless a written is received by the Court.

Mr P Burke of Messrs Burke & Company for the plaintiff.

Ms Cheung of  Messrs Chau & Associates for the defendant.