China Heavy Equipment & Automation (HK) Ltd v. Modern (International) Access & Scaffolding Ltd

DCCJ2041/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2041 OF 2004

BETWEEN

Before: H H Judge Chow in Chambers (Open to the public)

Date of Hearing: 29 April 2009

Date of Decision: 29 April 2009

D E C I S I O N

1.The crux of the defence is shown at paragraph 15 of the Defence, namely, “the accident occurred all because the Plaintiff knew and chose to leave the gap in a risky or dangerous way.  The staff of the Defendant had no alternative but to leave the gap in such a way under the instructions of the plaintiff.”  Two pieces of fact are implicit in the first sentence: (i) the way of lifting the gap is risky or dangerous; (ii) the Plaintiff knew and chose to do it in that way.  The gist of the Defence is they did it in that risky or dangerous way under the instruction of the plaintiff.  By deleting such a defence and the relevant parts relating to this defence, such admitted facts are no longer there.  So the Defendant is withdrawing an admission of material facts.  This is clearly a change of stance but no explanation has been offered for such a change.  So there is no basis by way of affirmation or affidavit on which I can consider whether this change of stance is justified or not.  In the absence of such an explanation, I disallow the amendment relating to the deleted parts of the defence. 

2.Under paragraph 7 (4) of the defence, the proposed amendment (apart from the proposed amendment relating to the deleted parts) is similar or better use of language, according to the defence counsel.  In my judgment, the present version of the defence is sufficiently clear in its language.  The proposed amendment is unnecessary.  Therefore, it is not allowed.

3.The amendment (7) on page 7 is a piece of evidence, without any consequence stated to reflect the significance of this piece of evidence to the issue in this case, so I will not allow it.

4.Regarding paragraph 6 (4) to (10), even if the proposed facts pleaded there are correct, they are not relevant to the cause of the accident.  It is not alleged that the accident happened because of the plaintiff's failure to provide adequate information to the defendant for the purpose of lifting the gap in the walkway.  The accident occurred because of one reason, as pleaded under paragraph 15 of the defence, namely, the accident occurred all because the plaintiff knew and chose to leave the gap in a risky or dangerous way, so that is the only reason leading to the occurrence of the accident and nothing else.  So clearly, paragraph 6 (4) to (10) has nothing to do with the cause of the accident.  So even though the facts pleaded there are proved, they serve no purpose.  I disallow this part of the proposed amendment. 

5.Regarding paragraph 23 of the counterclaim, there has been no allegation of negligence or fault on the part of the plaintiff regarding the damage of the crane.  Without such course of action, even though there is damage to their crane the plaintiff cannot be adjudged to be negligent to cause a damage of the claim because it has not been pleaded there.  Therefore, the defendant will not succeed.  Even if there is such negligence on the part of the plaintiff, which has not been pleaded and which cannot succeed in any event, the claim will be time-barred because the accident and so the damage occurred on 7 April 2003.  So I disallow the amendment in this part. 

6.Save and except for the parts disallowed, I allow the rest of the application for amendment.

Mr. Jeffrey Chua, instructed by Messrs Fairbairn Catley Low & Kong, for the Plaintiff

Mr. Victor Luk, instructed by C H Chan & Co., for the Defendant