Ho Kwok Kei v. A S Watson Group (HK) Ltd

DCMP 3016/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3016 OF 2013

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BETWEEN

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J U D G M E N T

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1.This is the plaintiff’s application for pre-action discovery of the following categories of documents:-

(a) service agreement made between the defendant and Chung Hing Transportation Limited dated 15^th March 2010;

(b) all documents showing the particulars of the driver in question and the terms agreed between the defendant and Chung Hing Transportation Limited upon which the defendant’s vehicle bearing registration number GY8469 was driven by the driver as of 3^rd December 2010 at about 11:30 am;

(c) the insurance policy(ies) covering:

(i) services to be delivered to Park N Shop; and

(ii) third party liability referred to in the service agreement between the defendant and Chung Hing Transportation Limited dated 15^th March 2010; and

(d)   motor insurance policy of the defendant’s vehicle bearing registration number GY8469 as of 3^rd December 2010 at about 11:30 am.

2.The application is opposed by the defendant.

Background

3.At the material time, the plaintiff was employed by A S Watson & Company (“Watson”) as the manager of Watson’s supermarket on Yin Hing Street in San Po Kong.

4.It is the plaintiff’s case that at about 11:30 am on 3^rd December 2010, he was unloading goods from a lorry bearing registration number GY8469 parked outside the supermarket.  He was pulling a pallet of goods from the trunk of the lorry to the tailgate by a hand jack when the tailgate suddenly inclined downward and the wheels of the jack rolled over the plaintiff’s right foot, causing personal injuries to him.

5.It is common ground that the defendant is the owner of the lorry.  In the pre-action letter dated 23 April 2013 sent to the defendant, the plaintiff attributed the accident to the fault of the lorry driver in mishandling the tailgate.  It was alleged that the defendant is vicariously liable as the driver was acting as the defendant’s agent or servant.

6.In response, the defendant replied on 27 September 2013 that an independent contractor called Chung Hing Transportation Limited was responsible for the delivery at the material time, and the defendant provided to the plaintiff a one-page extract of the service agreement dated 15 March 2010 signed between the defendant and Chung Hing.  The extract contains nothing more than two clauses in the recitals and a clause concerning insurance.  The clauses in the recitals provide that the defendant wishes to engage Chung Hing for the provision of transportation service and Chung Hing has agreed to provide such service on the terms and conditions of the agreement, and the insurance clause basically requires Chung Hing to take out insurance in relation to the service to be provided to the defendant and third-party liability.

7.After receiving the reply, the plaintiff wrote to the defendant on divers dates seeking the documents covered by this application but to no avail.

The applicable law

8.There is no dispute on the applicable law.  This has been succinctly summarised in paragraph 24/7A/3 of Hong Kong Civil Procedure 2014:-

“An application for an order for the disclosure of documents before the commencement of proceedings can only be made where the following three conditions can be fulfilled, namely:

(a) that the person making the application appears to be likely to be a party to subsequent proceedings in the courts;

(b) that the person against whom the order is sought appears to be likely to be a party to such proceedings; and

(c) that such person appears to be likely to have had in his possession custody or power any relevant documents.”

9.The plaintiff will have to prove that the documents requested are “directly relevant” [1],and “a document is only to be regarded as directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings if:-

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b) the document supports or adversely affects any party’s case”.[2]

10.There is an additional requirement that any order made must be necessary either for disposing fairly of the cause or matter or for saving costs.[3]   

Discussion

11.Given the plaintiff’s allegations, the defendant has not disputed the fact that the plaintiff appears likely to be a party to legal proceedings relating to the accident.  In fact, I am told by the defendant’s solicitor that the plaintiff has already commenced the personal injury action DCPI 2493/2013.

12.On the first category of documents, there is no dispute that the defendant is in possession of the service agreement.  The defendant’s objection to let the plaintiff have a complete copy is premised on the plaintiff’s case that the lorry driver is liable for the accident, and Chung Hing (being the driver’s employer) should be vicariously liable. Since Chung Hing is an independent contractor of the defendant, the defendant should not be liable and is thus unlikely to be a party to any legal proceeding.

13.The defendant’s contention hinges on whether Chung Hing was really an “independent contractor”.  With respect, this is not for the defendant to decide.  Since Chung Hing was engaged by the defendant on the terms and conditions stated in the service agreement, one cannot fully appreciate their true relationship without looking at the entire agreement.

14.Given the fact that the defendant was the owner of the lorry and the plaintiff’s allegations are directed against the driver, I am satisfied that the defendant is, prima facie, likely to be a party to the legal proceedings relating to the accident.  In order to avoid liability, the defendant would have to rely on the service agreement to establish that Chung Hing was really an independent contractor.  As such, the agreement would likely be relied on by the defendant in evidence. If the defendant manages to establish that Chung Hing was an independent contractor, the plaintiff’s claim against the defendant would be adversely affected.  In my view, discovery of the service agreement at this early stage would be necessary so as to avoid unnecessary costs of the plaintiff in pursuing against the defendant and the defendant in defending such action.

15.All in all, I will order discovery of the entire service agreement.

16.Today, the plaintiff’s counsel elects not to proceed with the application in relation to the second category of documents. The application is therefore dismissed.

17.According to the insurance clause in the service agreement, the responsibility to take out insurance rests with Chung Hing (and not the defendant).  The defendant’s solicitor has gone on affirmation to say that the defendant does not have the third category of documents.  Subject to one minor point, I am minded to dismiss the application.

18.It is not suggested that the defendant’s solicitor has personal knowledge of whether the defendant is or is not in possession of such policies.  He must have derived such information from someone from the defendant, but he has not disclosed the source of his information.[4] The defendant’s solicitor is offering to undertake to file and serve a supplemental affirmation within the next 7 days to identify the source of information.  Subject to such an undertaking, I dismiss the application in relation to the third category of documents.

19.Lastly, Mr Lim argues that the motor insurance policy of the lorry is relevant because section 6(1) Motor Vehicles Insurance (Third Party Risks) Ordinance mandates such policy to cover “bodily injury to any person caused by or arising out of the use of a motor vehicle on a road.”  He submits that since the tailgate is an integral part of the lorry, the accident may be regarded as arising out of the use of the lorry and thus covered by the policy.  With respect, this is a bit far-fetched. 

20.As far as the plaintiff’s case goes, the lorry was stationary at the time and the accident was caused by the negligence of the driver in handling the tailgate.  It is not suggested that the accident has anything to do with any mechanical failure of the tailgate.  There is also no suggestion that the lorry was being driven at the time.  I do not see how it can be argued that the plaintiff’s injury was caused by or arose out of the use of the lorry on a road.

Conclusion

21.For the above reasons, I only make an order in terms of the originating summons in relation to the service agreement.  The application relating to all other documents is dismissed.

[Discussion on costs]

22.On the basis of section 47C(3) of the District Court Ordinance and the “without prejudice save as to costs” letter dated 17 December 2013, I order that costs of the whole action, including the costs of this hearing, be to the defendant, to be taxed if not agreed, and there be legal aid taxation of the plaintiff’s costs.

Mr Patrick Lim, instructed by Szwina Pang, Edward Li & Co, assigned by the Director of Legal Aid, for the plaintiff.

Mr J Fu of Fairbairn Catley Low & Kong, for the defendant.