Read the full judgment text of HCPI 664/2009 on BabelCite. This Court of First Instance judgment was delivered on 24 February 2011 before Master Marlene Ng.
Civil procedure – specific discovery – Order 24 rule 7 of the Rules of the High Court – personal injuries action – plaintiff became quadriplegic after diving into public swimming pool with depth of 1.1m – no pleadings filed – whether plaintiff entitled to specific discovery of sections of the MacGregor Report concerning other public swimming pools, follow-up documents to the RSD Report and MacGregor Report, signage change documents and lifeguard briefings. Peruvian Guano test of relevance applied – documents sought must be relevant to matters in question and necessary for fairly disposing of the action or saving costs – class of documents must not be defined too widely – discovery not permitted as a fishing exercise. Court held that plaintiff had not established evidential materiality of site-specific observations/recommendations for other public swimming pools to the circumstances of the Accident – comparison between 'older' and 'new' swimming pools held to be speculative and amounted to a fishing exercise. However, the 'previous item' referenced in Disclosed Section 6 of the MacGregor Report on signage colour was necessary to make sense of the disclosed observation and must be disclosed. Requests for follow-up documents to the RSD Report and MacGregor Report dismissed for being too wide and including irrelevant materials and (in the case of New Document D) for uncertainty. Request for signage change documents dismissed as too wide and lacking evidential materiality – subsequent signage changes after the Accident irrelevant to whether duty of care discharged at the time. Reformulation Application to substitute Document F with New Document F dismissed as late and too widely cast. No order made in respect of Document B as voluntarily disclosed. Costs ordered against plaintiff in sum of two-thirds of costs of the Summons – costs order nisi – certificate for counsel refused.
Legal issues: Specific discovery of Undisclosed Section 6 of the MacGregor Report (Document A) · Specific discovery of New Documents C and D (follow-up documents to RSD and MacGregor Reports) · Specific discovery of Document E (signage change documents) · Reformulation Application for New Document F (operational guidelines and briefings to lifeguards) · Specific discovery of Document B (document to which the RSD Report is annex 2)
Outcome: Application for specific discovery largely dismissed. The Plaintiff's application for specific discovery of Documents A, C, D, E and F and New Documents C and D was dismissed. The Reformulation Application for New Document F was dismissed. The Plaintiff obtained only minor success: the Defendant was ordered to disclose the 'previous item' entry in Undisclosed Section 6 of the MacGregor Report insofar as it relates to signage colour. No order was made in respect of Document B (already voluntarily disclosed). Costs ordered in favour of the Defendant in the sum of two-thirds of the costs of the Summons.
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