Lam Pui Yi Anita v. Secretary for Justice and Another

HCPI 924/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 924 OF 2002

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Chambers

Dates of Hearing: 1 August and 13 October 2008

Date of Decision: 12 November 2008

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D E C I S I O N

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1.This is the plaintiff’s application to adduce further evidence after the conclusion of the trial but before the conclusion of final submissions.

2.The evidence concluded on 25 April 2008.  The date for the defendants to file their closing submissions was initially fixed at the end of May 2008 and was later extended to 30 June 2008.  The time for the plaintiff to file her closing submissions was also extended from mid-June 2008 to 11 August 2008.  The defendants duly filed their closing submissions on 30 June 2008.

3.On 14 July 2008, the Master Pay Scale of civil servants (“MPS”) was revised with retrospective effect from 1 April 2008.  The salaries at all the points on the scale were increased.  The plaintiff is a civil servant.  On 28 July 2008, the plaintiff made this application for leave to adduce the revised MPS as further evidence so that the quantum can be based on higher figures.  The defendants oppose the application.

4.The court no doubt has jurisdiction to admit further evidence after the conclusion of a trail (see Charlesworth v Relay Roads Ltd & Ors [2000] 1 WLR 230 at 233H to 238H).

5.Regarding the principle to be applied, the plaintiff referred to Secretary of State for Trade and Industry v Pauling [2005] 2 PCLC 667.  This is a decision of the English Court of Appeal which has been quoted in Keen Lloyd Energy Ltd v Bank of China (Hong Kong) Ltd, HCA 1299/2004 and HCA 1092/2006 (unreported decision of Poon J dated 4 January 2008).  The English Court of Appeal said in that case:

“The principle applicable to an application to admit fresh evidence after hearing but before judgment is handed down is no more instructive than would be applied by the Court of Appeal on appeal from a judge.”

6.The plaintiff further referred to para. 59/10/8 of Hong Kong Civil Procedure 2009 which sets out the criteria of the Court of Appeal for admitting further evidence.  In short, the applicant must:

(i)    establish “special circumstances” by satisfying the three conditions in Ladd v Marshall [1954] 1 WLR 1489;

(ii)   establish that the application was an exceptional case where the Ladd v Marshall conditions do not apply; or

(iii)  the evidence relates to matters which have occurred after the date of trial or hearing (but not evidence coming to light after trial of matters which occurred before trial).

The plaintiff submits that the revised MPS is evidence that can satisfy the conditions in Ladd v Marshall.  In fact, the revised MPS only came into being after the conclusion of evidence.  It is therefore not necessary to consider whether its admission is permissible under the Ladd v Marshall conditions.

7.The plaintiff then referred me to Huges v Singh & Anor, the Times 21 April 1989.  In that case, a police officer injured his right shoulder in an accident which was caused by the negligence of the 1st defendant in that case.  The surgeon who treated him was also negligent and became the 2nd defendant.  Both defendants admitted liability.  The judge assessed damages on the basis that the plaintiff would be able to serve out his time in the police force which meant that he would have another 10 or 11 years service in the force.  However, the plaintiff was discharged from the force about four months after the judgment.  The discharge was on medical grounds.  He only obtained another job about two months later but was at a substantially lower salary.  On appeal, he applied to adduce further evidence of his discharge from the force and his finding a new job at a substantially lower salary.

8.In his judgment, Russell LJ discussed four other cases where further evidence was admitted on appeal and the principle governing the exercise of the discretion to admit further evidence.  The learned Judge said:

“The circumstances in which the power is to be exercised have been the subject of judicial authority and we have been referred to four cases.  Curwen v James [1963] 2 All ER 619, [1963] 1 WLR 748 is a decision of the Court of Appeal and was under the old Legislation when a widow claiming damages under the Fatal Accidents Act remarried shortly after the trial.  The fact of her remarriage, which was then a relevant consideration, was admitted by the Court of Appeal.

Jenkins v Richard Thomas & Baldwins Ltd [1966] 2 All ER 15, [1966] 1 WLR 476, was a case where an injured workman was offered an alternative job by his employers but found, subsequent to the trial, that he was unable to carry out his duties satisfactorily and consequently his claim for continuing loss of wages was enhanced.  The Court of Appeal allowed fresh evidence to his effect to be adduced.

Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 [1969] 2 All ER 949, was a case where, as in the instant case, a plaintiff subsequent to the trial of his action for personal injuries had been dismissed from his employment.  The House of Lords in that case approved the admission of further evidence.

Finally Mulholland v Mitchell [1971] AC 666, [1971] 1 All ER 307, was a case where it transpired after trial that an injured plaintiff would require expensive nursing home treatment, that not having been envisaged by the trial judge.  The House of Lords again approved the admission of fresh evidence to make the real position plain.

From the speeches of their Lordships in these last two House of Lords cases I extract and cite only short extracts to illustrate the guidance given by those authorities.  In Murphy v Stone-Wallwork [1969] 1 WLR 1023 at page 1030 Lord Upjohn said ths:

‘First, it is a very fundamental and important principle of law established in the public interest that there should be an end to litigation between parties.  As Lord Lorehurn LC said in Brown v Dean [1910] AC 373 … a litigant who has obtained judgment ‘is by law entitled not to be deprived of that judgment without very solid grounds.’

‘On the other hand, where damages have to be assessed upon estimates as to the future, the likelihood of dismissal or further ill health or, in the case of a widow making a claim under the Fatal Accidents Act, the probability of her remarriage (these are, of course, only examples), then the court does in proper cases look at the facts that have happened since judgment.  So far as the Court of Appeal is concerned the matter is governed by the express terms of Ord 59, r 2, giving that court a general discretion to admit evidence of matters that have happened since the date’.

Then his Lordship went on to review Curwen v James and expressed his approval at what had been decided by the Court of Appeal in that case.

Lord Pearson in Murphy’s case at page 1036 said this:

‘I think the question whether or not the fresh evidence is to be admitted has to be decided by an exercise of discretion.  The question is largely a matter of degree, and there is no precise formula which gives a ready answer.  It can be said in the present case that the basis on which the case had been conducted on both sides and decided both at the trial and in the Court of Appeal was suddenly and materially falsified by a change of mind, involving a reversal of policy, on the part of the defendants, and in the circumstances it would not be fair or equitable to allow the defendants to retain the advantage of the decision given by the Court of Appeal on the basis which has been so falsified.’

Of course I remember that in the instant case there was no question of the defendants being identified with those who made the decision to terminate this plaintiff’s employment.

In Mulholland v Mitchell [1971] AC 666 at page 679 Lord Wilberforce said this:

‘Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.  All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal.  The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court.’

It is, in my judgment, plain from these authorities to which I have referred that the Court of Appeal has indeed a wide discretion to exercise the power to receive fresh evidence, but that it should always be exercised sparingly with due regard to the need for finality in litigation.  It is impossible to produce any sort of exhaustive list of the relevant considerations.  But for my part I would emphasise that the following must always be material: (1) the extent to which the fresh evidence may affect the award of damages; the greater the extent the more likely and ready the Court of Appeal should be to admit the evidence; (2) the time element.  It is not in my judgment necessary that fresh evidence should emerge before the case would ordinarily reach the Court of Appeal, but the closer to the date of trial the more likely it is that the evidence will be admitted. … (3) The conduct of the parties.  Any inequitable conduct on the part of a litigant is plainly relevant as other conduct may be in the course of the proceedings which have lead to the mistaken assessment.”

9.The plaintiff submitted that the revised MPS affects the quantum of damages and it would be affront to one’s sense of fairness not to admit it.

10.Counsel for the defendants however submitted that Huges and the four cases referred to therein should be distinguished from the present case.  In those five cases, the subsequent events caused significant changes to and falsified the bases on which damages should be assessed.  If fresh evidence of these events were not admitted and the assessments were allowed to stand, the assessments would become unjust as the bases upon which they were made had become false by reason of these events. 

11.However, the same cannot be said of the revised MPS.  The revision to the MPS has not produced any change to the basis of assessment of damages in this case.  It only updated the MPS. 

12.Furthermore, if the revised MPS should be admitted as further evidence in this case, then any after trial adjustment to the wages of a trade or craft or to the income of the employees of a company in which the plaintiff is or was employed would warrant such adjustment to be admitted as further evidence on quantum.  Solicitors will also have to be vigilant on adjustments of wages or salaries which may affect their clients despite the conclusion of the trial.

13.Extending this logically, fresh evidence of after trial adjustments to wages should also be admitted on appeal.  That will mean that the discretion to admit further evidence on adjustment of income will have to be exercised more frequently.  Such practice will also make it difficult for the defendants to make payment into court as it is difficult to anticipate after trial wage increase.

14.I agree with counsel for the defendants.  I do not think it right to admit the revised MPS as further evidence in this action as it does not alter the basis of the assessment of quantum.  I dismiss the plaintiff’s application.  I also make an order nisi that the plaintiff do pay the costs of this application to the defendants.

Mr Jeewan Hingorani, instructed by Messrs Poon, Sum & Cheong, for the Plaintiff

Mr Paul Francis, of Messrs Tang, Wong & Cheung, for the 1^st and 2^nd Defendants on 1 August 2008

Mr Tim Kwok and Mr Simon Wong, instructed by Messrs Tang, Wong & Cheung, for the 1^st and 2^nd Defendants on 13 October 2008