TANG SHUN HAY v. JETLINE CO. LTD. AND OTHERS

HCPI 948/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 948 OF 1996

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R U L I N G

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1. This is an application by the Plaintiff to re-amend the Statement of Claim in the terms of the draft annexed to the summons dated 12th November 1999.

2. The application is in respect of particulars of breach of statutory duty on the part of the 5th and 6th Defendants. There were already allegations of breach of statutory duty against the 5th Defendant before the amendment applied for and counsel for the 5th Defendant very properly, in my view, has informed me that he sees no prejudice in the amendment and therefore does not oppose the application to amend.

3. Counsel for the 6th Defendant does, however, oppose the amendment. His main objection is that hitherto there has been no allegation of breach of statutory duty against the 6th Defendant.

4. However, counsel for the Plaintiff has convinced me that the facts in respect of the particulars of negligence that have been pleaded previously are substantially the same as the facts in support of the allegation of breach of statutory duty relied on against the 6th Defendant, in particular the allegation that the 6th Defendant has acted contrary to Regulation 4 (5) of the Electricity (Wiring) Regulations. Section 35(5) and (6) of the Limitation Ordinance and Order 20 r.5(5) say that an amendment may be allowed, notwithstanding that the effect of the amendment will be to add a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed. The particulars of negligence that have previously been pleaded convince me that the facts in respect of the plea in respect of which the amendment is sought are the same or substantially the same and therefore I do not see any real prejudice caused to the 6th Defendant if I allow the amendment.

5. Mr. Lin also says that he has been deprived of an opportunity to consider whether or not to make a payment into court in respect of the claim in respect of breach of statutory duty against his client. I do not, of course, know whether any payment into court has been made or not but I do not think that is a realistic objection in my view. The facts have been sufficiently pleaded. That ought to have enabled the Defendants to consider whether or not to make a payment into court well before today. I do not see any additional facts being relied on in support of the breach of statutory duty claim against the 6th Defendant. I do not consider that objection to be a valid objection.

6. Mr. Lam says he is content with an amendment against the 6th Defendant confined to particulars C, namely contrary to Regulation 4(5) of the Electricity (Wiring) Regulations. So I will allow the amendment to that limited extent as far as the 6th Defendant is concerned but I will allow the amendment in full as far as the 5th Defendant is concerned.