Choi Chun Ming v. Cosco-hit Terminals (Hong Kong) Ltd and Another
Read the full judgment text of HCPI 151/2008 on BabelCite. This High Court CFI judgment was delivered on 30 April 2009.
1. This is an application by the Plaintiff to adduce additional evidence on similar facts after the application to set down for trial on liability has been made.
Cited by 3 cases · Cites 5 cases
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HCPI 151/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 151 OF 2008 ____________ BETWEEN
____________ Before: Hon Fung J in Chambers Date of Hearing: 30 April 2009 Date of Decision: 30 April 2009 Date of Reasons for Decision: 4 May 2009 ________________________________ REASONS FOR DECISION ________________________________ 1.This is an application by the Plaintiff to adduce additional evidence on similar facts after the application to set down for trial on liability has been made. 2.The 1st Defendant takes a neutral stance on the matter and is excused from the hearing. 3.At the hearing, I allowed the Plaintiff’s application to serve the witness statements of Mr. K.K. Tam and Mr. C.W. Szeto and disallowed the Plaintiff’s supplemental statement, and I directed all parties to appear for case management conference on 4 May 2009. I now give my reasons. Background 4.The Plaintiff was a container truck driver employed by the 2nd Defendant. He sustained injuries while working in the container terminal operated by the 1st Defendant. The 1st Defendant was the owner of the tractor truck and semi-trailer and responsible for their maintenance. 5.On 5 April 2006, the Plaintiff drove the truck with a container to the terminal. He was directed by a signalman of the 1st Defendant to the designated spot. The overhead spreader (lifting device) hovered over and was attached to the top of the container. However, the 2 front latches connecting the base of the container and the trailer were not detached by the workman of the 1st Defendant, and the tractor was lifted up together with the container before falling down onto the ground, causing injuries to the Plaintiff. 6.The parties exchanged the original witness statements on 1 September 2008. At the Check List Review, the Plaintiff indicated only calling himself, an there were 5 witnesses for the defence. The Master gave direction to the Plaintiff to set the case down for trial on liability in the Fixture List with 4 days reserved by 28 December 2008. 7.On 16 December 2008, the Plaintiff’s solicitors served the additional witness statements without the leave of the Court. 8.The additional witness statements came from the Plaintiff himself and 2 fellow container truck drivers, Mr. Tam and Mr. Szeto. The Plaintiff said he had seen and heard of similar accidents in the past. The 2 ex-colleagues stated that their trucks were also lift up on other occasions within a month before the present accident because the workman did not detach the latches between the containers and the trailers. 9.On 18 December 2008, the Plaintiff’s solicitors wrote to the 2nd Defendant’s solicitors inviting consent to file the additional statements, and stated that unless the contrary were indicated, consent would be assumed. Apparently, nothing was heard. 10.On 29 December 2008, the Plaintiff’s solicitors lodged an application to set the case down for trial, but confirming only 5 witnesses and 4 days as indicated before without mentioning the additional witnesses. 11.The case was not set down by reason of the present dispute. Relevant principles 12.In Yu Kai Ming v Wing Lee Scaffolding Works Co Ltd & anor HCPI 1107/2002 [2005] HKCU 1165, I reviewed at the relevant authorities on admission of similar facts evidence in civil cases: O’Brien v Chief Constable of South Wales Police [2005] UKHL 26; Chan Tam Sze v Hip Hing Construction Co Ltd & 2 ors HCA 1931/1988 (17 October 1989) per Bokhary J (as he then was); Amy So v Tony Chiu Yun Kan & ors CACV 212/1994 (17 March 1995) per Godfrey JA. 13.In summary, the considerations are:
Discussion 14.The Plaintiff’s pleaded case against the 2nd Defendant is under employer’s liability and the Occupational Safety andHealth Ordinance (Cap. 509). In essence, it is the failure to provide a safe system of work. 15.Mr. Lin, for the Plaintiff, relied on the particulars that the 2nd Defendant failed to take reasonable precaution of safety, and exposed the Plaintiff to risk known or ought to have been known, and similar accidents in the past would seek to prove such risk. Mr. Lin submitted that the 2nd Defendant should have instructed the Plaintiff to alight from the truck before the lifting operation in the light of the previous accidents. 16.Mr. Lin submitted that the new evidence was available in October and November 2008, merely 2 months after the exchange of the original witness statements and the delay is not so serious. 17.Mr. Sakhrani, for the 2nd Defendant, submitted that knowledge on the part of the 2nd Defendant is irrelevant, as its duty was all the same with or without any pervious accident. The 2nd Defendant’s case is that it was only a labour contractor, relying on the elaborate system put in place by the 1st Defendant where so far there had been no problem. Under the house rules of the 1st Defendant, the driver of the container truck must remain in the cabin during the lifting and the 2nd Defendant was merely obeying orders. The accident was due to the human error on the part of the 1st Defendant’s workers. To enquire into 3 or 4 other accidents would mean lengthening the trial for no useful purpose. 18.Mr. Lin referred to Hussai Waqar v Hyundai Engineering & Construction Co Ltd and China Civil Engineering Construction Corporation t/a Hyundai CCECC JV HCPI 614/2004 (22 April 2005) where Suffiad J held that the defendant’s knowledge of similar previous accidents could be relevant to show the defendant’s knowledge of the risk and discovery of complaints of those previous injuries would be relevant. 19.Mr. Lin also referred to Cheung Kai Wing v Mok Sheung Shum t/a Mok Sum Ke & Anor [1993] 2 HKC 113 where the Court of Appeal affirmed the order for discovery of past records of Labour Department inspection of the construction site, and said if those similar facts by reason of their particular circumstances are not logically probative or otherwise not deserving of weight, the trial judge is best placed to deal with the matter (per Nazareth JA (as he then was) at p. 124A). 20.Mr. Sakhrani submitted that Cheung Kai Wing and Hussai Waqar were cases on discovery and the consideration now is very different. Under the new rules, the trial is a milestone date and cannot be changed except for exceptional circumstances. Although the case has not been fixed for trial, leave to set down is akin to the trial being fixed and the Court should not allow further delay. The present application is simply too late, and late conference with counsel is not an excuse. There is the added prejudice that the 2nd Defendant has been wound up, and there is not the same access and control on the records and witnesses as otherwise. 21.Mr. Sakhrani also criticised the Plaintiff’s solicitors in trying to mislead the Court in applying to set the case down by stating the previous estimate without pointing out the new evidence. 22.It is trite that the consideration of admission of similar facts evidence in a civil case must depend on the context of the particular case. Generally speaking, the condition and character of a place or thing which is permanent in nature and less subject to intervention of human operation may more readily be admissible. However, in the present case, whilst Mr. Sakhrani had indicated that knowledge is not relevant, he nevertheless submitted that the 2nd Defendant was entitled to rely on the system of work of the 1st Defendant where so far there was no problem. In such context, the fact that there were two similar accidents within a month in the past is prima facie relevant. 23.I bear in mind the underlying objective of the new rules in early identification of the issues and avoidance of late changes or additions upsetting the case management timetable. That said, the primary objective is the just resolution of disputes in accordance with substantive rights of the parties. I also bear in mind the conduct of the Plaintiff in not making this application earlier and trying to set the case down in the hope that the additional statements were unnoticed or unobjected. Be that as it may, I consider that an appropriate costs order and timetable will take care of the problem. 24.In balancing the probative value of the evidence, overall progress of the case, extent of the delay, and prejudice to the 2nd Defendant, I allowed the Plaintiff to serve the witness statements of Tam and Szeto. 25.I caution that this case should not be taken as any general indication of leniency on the part of the Court, as such late addition will not be considered favourably in future. Costs 26.I ordered that the Plaintiff do pay 2/3 of the 2nd Defendant’s costs of the application and the hearing forthwith, and 1/3 of the costs be the 2nd Defendant’s costs in the cause. 27.I so ordered notwithstanding the Plaintiff’s substantial success in the application in order to reflect the Court’s disapproval of the conduct of the Plaintiff’s solicitors’ in applying to set the case down as originally check-listed without formal leave to introduce the new evidence, and also for the delay occasioned. 28.I shall do a summary assessment at the CMC on 4 May 2009. 29.I shall also direct the Plaintiff to appear before me on a separate hearing to explain to him the situation. 30.Lastly, I thank counsel for their submissions.
Mr Kenny Lin, instructed by Messrs Y C Lee, Pang, Kwok & Ip, for the Plaintiff Messrs Holman Fenwick Willan, for the 1st Defendant, attendance excused Mr Ashok Sakhrani, instructed by Messrs Cheng, Yeung & Co, for the 2nd Defendant |
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