Gurung an Parsad v. Great Wealthy Engineering Co Ltd and Another

HCPI 687/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 687 OF 2010

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BETWEEN

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Before : Hon Bharwaney J in Chambers (Open to Public)

Date of Hearing : 24 May 2012

Date of Practice Note: 18 June 2012

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PRACTICE NOTE

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1.This matter came before me as an appeal from the decision of a master and was resolved when I made an order in terms of a consent summons filed by the parties on 1 June 2012. Notwithstanding the resolution, it is pertinent for me to speak of the circumstances giving rise to the appeal, and to its resolution, in order to provide guidance to civil practitioners, in general, and to personal injury practitioners, in particular.

2.This is a personal injury action for loss and damage allegedly arising as a result of an injury sustained in an accident at work by the plaintiff who was employed by the 1^st defendant as a scaffolder.  Liability is in issue and there is a further plea, in the alternative, of contributory negligence on the part of the plaintiff. Orders were made at the hearing of the first checklist review that took place on 10 June 2011 and a further consent order was made on 26 October 2011 which provided that the checklist review hearing be adjourned to 13 March 2012 for leave to set the case down for trial.  On that day, the master had before him the plaintiff’s questionnaire for checklist review dated 12 March 2012.  In it the plaintiff sought the following relief :

“The Plaintiff seeks leave to serve further witness statements (para E2)

The 1^st additional witness mentioned, Mr. Gurung Giri Raj, is a qualified scaffolder. He is now also a contractor supplying scaffolding services. It is anticipated that in his statement he will be able to explain what the job entails and whether the Plaintiff would be likely to face practical disadvantages because of his injury if he were to attempt to obtain further employment in his pre-accident occupation. His statement should be available within 28 days.

The 2^nd additional witness mentioned is Mr Lee Chak Lam, the Secretary/organizer of one of the Hong Kong scaffolding unions.  The Plaintiff’s solicitors are informed that he will be able to to deal with the requirements of the job of a steel scaffolder and also with any health & safety issues that could, in practice, be likely to arise if any company was considering employing the Plaintiff in his pre-accident job.  It is hoped his statement will be available within 28 days but the Plaintiff asks for 42 days in case this a slightly longer period is necessary...”

3.Given the fact that, apart for this late application to serve additional witness statements, the case was ready to be set down for trial and, further, given that the plaintiff’s solicitors had not furnished signed witness statements of the persons concerned, so that the master was not in a position to assess the admissibility of their contents, their relevance and probative value, he was entirely right to dismiss this application.  Masters invariably give leave to the parties to file witness statements as to fact and often require no more than the identification of the witnesses in question before granting such leave.  However, when the case has progressed to the stage where it has been or is ready to be set down for trial, a late application for leave to file additional witness statements will only be entertained if the signed witness statement containing a statement of truth is furnished to the master in order to enable him to consider the admissibility of its contents, and their relevance and probative value, and to exercise his discretion, either to grant or to refuse leave to rely on the statement, after having regard to its admissibility, relevance, probative value and the underlying objectives of the civil justice reform.

4.When the matter came before me on appeal, the plaintiff’s solicitors sought leave to adduce additional evidence for the appeal in the form of the draft witness statement of Mr Gurung Giri Raj.  At that hearing, I indicated that I would not be prepared to entertain the appeal without a witness statement, containing a statement of truth, signed by Mr Raj and I also indicated that, if such a signed statement were to be provided to me, that I might be prepared to grant leave to the plaintiff to rely on the same at trial insofar as Mr Raj spoke in that statement of relevant factual matters such as practices in the work place and wage levels, but that I would not grant leave to allow the plaintiff to adduce into evidence the inadmissible opinion of Mr Raj on whether or not his company would employ the plaintiff if, hypothetically speaking, the plaintiff were now to apply to work for his company.  The hearing of the appeal was then adjourned to 1 June 2012 to enable the plaintiff’s solicitors to furnish the signed witness statement of Mr Raj.  As it turned out, Mr Raj was not willing to sign the draft witness statement or to provide another signed witness statement and the parties then agreed certain directions and orders, including the direction that the hearing on 1 June 2012 be vacated, and I made an order in terms of those agreed directions and orders. 

5.Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6.Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application.  These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.  

7.It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform.  It must be remembered that the usual directions made at the checklist review hearings sometimes include the grant of leave to the plaintiff to file and serve a revised statement of damages, together with any further statements as to quantum and any documents in support not already disclosed.  The purpose of granting leave in these terms is to enable the plaintiff to update his case on quantum.  However, the grant of such leave does not permit a plaintiff to raise a new case on quantum or to raise new heads of claim.  Specific leave must be sought to do so.  Finally, a late application for leave to rely on additional witness statements, that is to say, an application made after the case has been, or is ready to be, set down for trial, will not be considered without signed witness statements containing a statement of truth being furnished.

8.Chung Hiu Bun, the administrator of the estate of Chung Chun Kong, deceased v. Yeung Yiu Sing and anor., HCPI 123/2012, 28 July 2011 is an example of a case where a party, after the case was set down for trial, sought to present new evidence and a new case.  The plaintiff was not to blame for not adducing this evidence earlier because the new evidence had only been discovered recently and rather fortuitously.  In this case, the defendants could see that the witness statements that were sought to be adduced and the amendments that were sought to be introduced were very relevant to the claim so they very sensibly consented to the plaintiff’s application.  However, there are many other cases where strong opposition can be made to any such late application, particularly where the probative value of the new evidence is low and of marginal relevance.  Further, the court would also be less inclined to accede to such late applications where additional witness statements are produced that speak of the same facts that have already been mentioned in previously served witness statements.

9.Very strong grounds would be required to move a court to accede to such applications if doing so would result in trial dates being vacated. 

Mr Simon Cleve of Krishan & Tsang, for the plaintiff

Ms Christina Lee, instructed by Tong & Tsoi, for the 1^st and 2^nd defendants