Tong Tak Man v. Yuen Cheong Fire Engineering Co Ltd and Others

HCPI 775/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 775 OF 2007

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing: 21 October 2008

Date of Decision: 21 October 2008

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D E C I S I O N

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1.The 1^st and 2^nd Defendants have taken out a summons for specific discovery against the 3^rd Defendant. 

Background

2.The Plaintiff is a plumber-electrician.  The 1^st Defendant is the direct employer and sub-contractor of the 2^nd Defendant, the main contractor.  The 3^rd Defendant is the demolition contractor.  The site in question was undergoing demolition and decoration work and the Plaintiff was tasked with installing electrical wire tubing at the ceiling.

3.The ceiling at the site was buttressed by vertical poles rising from the floor.  Vertical poles were installed by the 3^rd Defendant.

4.It is the Plaintiff’s case that he was standing near the top rungs of a ladder and suddenly one of the poles collapsed and hit the ladder causing him to fall from height. 

5.The 1^st and 2^nd Defendants sought to obtain three categories of documents from the 3^rd Defendant:

(1)  Documents (a) to (g) (on the summons) relate to prior approval for commencement of various items of demolition works under the Building (Demolition Works) Regulation (Cap.123);

(2)  Item (h) relates to records of site inspection by Mr Chan, witness of the 3^rd Defendant, as mentioned in his witness statement;

(3)  Items (i) to (j) relate to safety briefings conducted by Mr Chan, and the 2^nd and 3^rd Defendants are seeking record of attendance of the workers as well as the source document of the briefing such as safety manual.

6.The application is objected to by the 3^rd Defendant as fishing expedition.  Miss Pang, for the 3^rd Defendant, submitted that:

(1)     No lack of approval and/or breach of the Regulation has been pleaded by any party;

(2)  It was not the pleaded case of the Plaintiff that the pole which hit the ladder was being demolished or removed at the time of the accident; 

(3)  On items (h) to (j), Miss Pang are seeking instructions from client as to the existence of such documents.

7.Specific discovery may be ordered if it is relevant to an issue and it is necessary for the saving of costs and fair disposal of the cause. 

8.True there is no pleading of lack of approval, but there is pleading of negligent installation of the poles during demolition work. Poles are installed for support and should not have collapsed.  Approval for demolition work and installation of the poles is a pre-requisite before commencement of the work.  The lack of approval would support a case of negligent installation of the poles.  Although it is not directly pleaded, it is relevant to a matter pleaded.  The documents must be in existence unless there was no approval.  So it is amenable to specific discovery. 

9.It was not pleaded that at the time of the accident the pole in question was being demolished,  but it was pleaded that the pole which was the part of demolition work had collapsed and caused the fall from the ladder.  So it is also relevant in advancing the case of negligence of the 3^rd Defendant.

10.As to items (h) to (j), Miss Pang did not contest seriously that in the ordinary cause there ought to be such documents in existence on the inspection and safety briefings as referred to in witness statement.  They are relevant to allegations in the witness statement.

11.All in all, all these were issues that would have to be explored at the trial, and the earlier identification of the relevant documents or lack of it would be conducive to costs saving and fair trial.  So in the premises, I would allow the application in terms of the summons as explained further by Mr Yung, solicitor for the 1^st and 2^nd defendants, at the hearing today.

12.Miss Pang contested costs as the terms of the summons were not clear and explanation has to be sought from Mr Yung.  Be that as it may, Miss Pang should have asked for clarification before refusing them.  Hence, I order costs against the 3^rd defendant.

Absent – Messrs Yip Tse & Tang, for the Plaintiff

Mr Yung Rocky Pun Lok of Messrs JSM, for the 1^st & 2^nd Defendants

Miss Pang Mei Ngan of Messrs Wong & Fok, for the 3^rd Defendant