CHAN YING WAI v. SECRETARY FOR JUSTICE for and on behalf of COMMISSIONER OF CORRECTIONAL SERVICES Defendant

HCPI 838/2015

[2019] HKCFI 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 838 OF 2015

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DECISION

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I. INTRODUCTION

1.  The plaintiff (“P”) was/is employed by the defendant (“D”) as an Assistant Officer II of the Correctional Services Department (“CSD”). At the material time, he worked at Lai Chi Kok Reception Centre (“Centre”). There was no dispute (a) D was P’s employer within the meaning of the Occupational Safety and Health Ordinance Cap 509 (“OSHO”) and was responsible for the Centre as a workplace within the meaning of OSHO, (b) D was an occupier of the Centre within the meaning of the Occupiers Liability Ordinance Cap 314 (“OLO”) and owed P a common duty of care under the OLO, and (c) D as employer owed P a duty of care to provide him with a safe system of work and other implied duties as to P’s safety in carrying out his work duties.

2.  P claimed that on 19 August 2013 when in the course of his employment he descended the stairway near the Main Dining Hall (“MDH”) of the Centre (“Stairway”), he slipped and fell down about 4 steps of stairs “due to the wet and slippery surface of the same caused from raining. During the fall, [P] landed heavily on his buttocks and back” (“Accident”).

II.  PLEADINGS

3.  In the Amended Statement of Claim (“ASoC”), P claimed the Accident was caused or contributed to by the negligence and/or breach of statutory duty under OSHO, breach of the common duty of care under the OLO, and breach of employer’s duty of care and/or breach of implied terms of the employment contract on the part of D, its servants and/or agents for whom D would be vicariously liable. P gave the following particulars in his ASoC:

“PARTICULARS OF NEGLIGENCE OF [D]

9.1 Failing to provide and maintain means of access to and egress from the workplace, that were, so far as reasonably practicable, safe and without any such risks.

9.2 Failing to provide or maintain any adequate or suitable safe system of work to enable [P] to carry out his work safely at the Scene.

9.3 Failing to take all reasonable care and/or precautions to ensure that [P] would be reasonably safe whilst he was working at the Scene.

9.4 Failing to devise and/or provide suitable and sufficiently safe place of work and/or to make and/or keep the place of work safe for [P].

9.5 Exposing [P] to the risk of damage or injury of which [D] knew or ought to have known.

9.6 Failing to supervise or organize the work adequately or at all so that the same was conducted in safety.

9.7 Failing to make any or any adequate assessment of risk of damage or injury.

9.8 Failing to provide [P] with any or any adequate instruction, warning sign and/or supervision as was necessary to ensure, so far as was reasonably practicable, the safety at work.

9.9 Failing to inform, advise, instruct, and/or forewarn [P] of the danger and risk of injury whilst he was working at the Scene.

9.10 Failing to make any or any adequate inquiries and/or arrangements for safety steps to be taken and safety measures before causing or permitting [P] to carry out his duties at the Scene (ie to ensure that no danger would befall [P]);

9.12 [P] relies on the occurrence of the Accident as evidence in itself of the negligence of [D].

9.13 [P] further relies upon the aforesaid breach of statutory duties as evidence of [D’s] negligence.

PARTICULARS OF BREACH OF THE COMMON DUTY OF CARE UNDER SECTIONS 3(1) AND 6(1) OF THE OLO BY [D]

9.14 Failing in their common duty of care to ensure that any lawful visitor would be reasonably in using the Scene or the purposes for which he was permitted by the occupier to be there (ie performing his work in the course of his employment with [D]); and

9.15 Failing to prevent dangers befalling [P] due to the state of the Scene.

PARTICULARS OF BREACH OF THE OSHO BY [D]

9.16 Contrary to Section 6(1)

Failing to ensure, as far as reasonably practicable, the safety and absence of risks to health at work for its employees in connection with, in this case, formwork works within the workplace where [P] worked (ie the Scene).

9.17 Contrary to Section 6(2)(a)

Failing to provide and/or maintain a system of work that was, so far as was reasonably practicable, safe and without risks to health of [P].

9.18 Contrary to Section 6(2)(c)

Failing to provide instruction, training and/or supervision as was necessary to ensure the health and safety of [P] whilst he was at work.

9.19 Contrary to Section 6(2)(d)(i)

Failing to maintain the workplace (ie Scene in a condition that was, so far as reasonably practicable, safe and without risks to health).

9.20 Contrary to Section 6(2)(d)(ii)

Failing to provide or maintain means of access to and egress from the workplace that were, so far as reasonably practicable, safe and without any such risks.

9.21 Contrary to section 6(2)(e)

Failing to provide and/or maintain a working environment for [P] at the Scene that was, so far as was reasonably practicable, safe, and without risks to health.

9.22 [P] relies upon the aforesaid breach of statutory duties as evidence of [D’s] negligence.

PARTICULARS OF BREACH OF THE EMPLOYER’S DUTY AND THE IMPLIED TERMS OF CONTRACT OF EMPLOYMENT BY [D]

9.23 [P] repeats and adopts the Particulars pleaded hereinabove in support of his plea that [D] as [P’s] employer failed to discharge its duty of care to its employee, namely [P].

9.24  Insofar as it is necessary, [P] will rely on the doctrine of res ipsa loquitur in aid of his proof of liability on [D].”

4.  By her Defence, D averred she had no knowledge of the alleged facts/matters in respect of the Accident, and further pleaded that “according to the record of [D], the surface of the staircase was dry at the time of the alleged Accident”. D also denied P’s pleas in paragraph 3 above, and averred that “reasonable steps were taken by [D] to ensure the safety of [P] when he was discharging his duties at the [Centre], including but not limited to the followings :-

“PARTICULARS OF STEPS AND SAFETY MEASURES TAKEN BY [CSD]

a. Handrails have been installed at both sides of the staircase;

b. Warning signs to raise the awareness of the users of the staircase against possible slippery have been placed by CSD in various prominent places of the staircase;

c. Adequate inspection has been conducted before the Accident to ensure the staircase was dry;

d. Proper instruction and supervision has been provided to [P] during the brief-in / brief out section;

e. Guidelines on occupational safety and health has been provided to all personnel to remind them for safety on a regular basis;

f. Pursuant to the Investigation Report prepared by CSD dated 26 August 2013, taking into account the statements of the duty staff and [P], it is concluded that the incident was accidentally caused by [P’s] own negligence; and

g.               In the circumstances, CSD had taken all steps which were reasonably practicable to ensure the safety of [P] at all material times.”

5.  The Defence pleaded that the alleged Accident (which D did not admit) happened without any negligence, breach of statutory duty under OSHO, breach of common duty of care under OLO and/or breach of employment contract and employer’s duties on the part of D and/or its employees, servants or agents. Further or in the alternative, D averred that the alleged Accident was wholly caused and/or contributed to by the negligence on P’s part, ie 

(a)	failing to have any or any sufficient regard to his own safety;
(b)	failing to take any or any proper care and adequate precautions for his own safety while he was walking on the Stairway;
(c)	failing to devote any or the whole of his attention to where he was placing his feet;
(d)	failing to keep any proper or adequate lookout while he was walking in the Stairway;
(e)	walking too fast in the circumstances;
(f)	failing to walk more slowly and take more care in the circumstances;
(g)	failing to maintain his balance to avoid slipping and thus causing personal injuries as alleged;
(h)	failing to take all reasonable care and apply common sense to ensure his own safety and/or exposing himself in the circumstances to an unnecessary risk of injury which he knew or ought to have known.

III.  WITNESS STATEMENTS AND DOCUMENTS

6.  P in his witness statement exchanged on 13 September 2017 stated that on the day in question he worked at the MDH at the 1^st Floor of the Centre supervising inmates having their morning meal. After this was done, he had to go to the fingerprint room and bring an inmate to visit the doctor. At about 7:26am, whilst on the way to the fingerprint room,

“我在1/F要先經過平台一列有鐵蓬頂約5 呎(闊) 的樓梯, 才可抵達位於另一座樓的指模房。此樓梯呈較剪型每堂約10 多級樓梯, 梯級是石屎建造而級邊有級咀, 左方是中空而右方是石屎牆。由於廚房飯堂煮飯後, 都會用膠箱將餸菜經此樓梯運送去給各犯人, 因此有機會餸汁濺落樓梯之間, 加上之前一晚曾經下雨, 故此令樓梯更濕。當時我穿著軍裝皮鞋, 1 人沒有提物, 我沿樓梯偏左步行, 當行落至3-4 級時, 腳部突然一跣隨即失去重心坐骨先著地, 繼而逐級「鄧」落約有2-4 級才停下。…… 意外發生後, 我的同事尹志亮 …… 告訴我他看到署方同事即時帶來數名犯人, 先將肇事地點樓梯清潔後才進行影相紀錄”.

P’s supplemental witness statement served on 30 January 2018 did not touch on matters of liability.

7.  The witness statement of P’s witness Wan Chi Leung exchanged on 13 September 2017 stated that when he passed by the Stairway at about 7:40am on the day in question, he “知道剛之前有1 名同事[later learned to be P] 途經上述樓梯時跣倒受傷, 而事發後我看到署方同事即時帶來數名犯人, 先將肇事地點樓梯清潔後才進行影相紀錄”.

8.  D also served various witness statements:

(a)	According to the witness statement of Choi Chak Hung (AOII 10711, “Choi”) dated 6 September 2017, at 7:00am on the day in question he was instructed by the officer-in-charge Wan Tat Man (“Wan”) to ensure the surroundings of the MDH (including the Stairway that led from the MDH to the Exercise Yard) would be dry and to place sufficient “caution - wet floor小心地滑” warning signs (“Signs”) at the Stairway and other floors for the safety of staff going to the MDH because the weather forecast predicted scattered rains later that day (paragraph 5). Even though there was no rain then, Choi immediately followed such instructions, and started to patrol the surroundings of the MDH (including the Stairway) and to place Signs near the entrance of the MDH and at conspicuous places of the Stairway including the stairway landing (paragraph 6). Choi went on to say that according to his observation it was not raining at the time, the surroundings of the MDH including the Stairway were dry with no obstacle, and the Signs were where he earlier placed them in front of the location where P claimed he had the Accident (paragraph 8).
(b)	According to Wan’s witness statement (Officer of CSD) dated 8 September 2017, his job duties “include but are not limited to maintaining proper order and discipline among prisoners and his subordinates, and to ensure the highest degree of security and cleanliness within the Institution” (paragraph 2). He was on duty at the Centre and was assigned as the officer-in-charge of the MDH (paragraph 3). Wan went on to say as follows: “5. On 19 August 2013, in view of the weather forecast of scattered rain, I had instructed [Choi] to ensure the surroundings of the [MDH], including the staircase, to be dry and to place sufficient [Signs] against slippery in the conspicuous of the staircase. 6. At about 0726 hours, …… I was reported by [Choi] that [P] had slipped for a few steps at the upper part of the [Stairway] from the [MDH] to the Exercise Yard. When I arrived at the spot, I was informed that [P] had been arranged to receive medical examination and treatment at the Centre’s Hospital. 7. At the time when I arrived at the spot of the incident, I found that the staircase as well as the surroundings of the [MDH] was dry and without any obstacle detected. Also, a [Sign] was found intact and placed at the platform between the upper and lower part of the [Stairway]. 8. In the premises, CSD has done all that is necessary including, inter alia, to engage a sufficient manpower to provide cleaning service to the [Stairway] and I fail to see that there is any negligence on the part of the Government.”
(c)	According to the witness statement of Tang Ho Chung (AOII7721, “Tang”) dated 8 September 2017, at about 7:28am on the day in question, after he had escorted inmates of Dayroom E6b to the MDH, he left the MDH and found P at the upper part of the Stairway. P told Tang “他不慎於上層樓梯滑下幾級樓梯, 並弄傷背部” (paragraph 5). Tang went on to say that according to his observation it was not raining at the time, and the surroundings of the MDH including the Stairway were dry with no obstacle, and there was a Sign placed in a conspicuous place in front of the location where P claimed he had the Accident (paragraph 6).

9.  The contents of the witness statements served by D were consistent with those of CSD’s report dated 26 August 2013 on investigation into the Accident as well as the staff statements by Choi, Wan and Tang dated 19 August 2013.

IV.  PROCEEDINGS

10.  The trial of the present action was scheduled to commence on 17 June 2019 with 4 days reserved. As at the pre-trial review hearing (“PTR”) on 21 February 2019, the state of the parties’ pleadings was as reflected in Part II above.

11.  It was evident from paragraph 3 above that P only pleaded broad/general allegations of negligence, breach of statutory duty, breach of common duty of care and breach of employer’s duty and contract of employment. The so-called particulars in paragraph 9 of the ASoC (see paragraph 3 above) were so generic that they would have been applicable to almost any claim for personal injuries as a result of work-related accident, and did not give insight as to the real/specific complaints in the particular circumstances of the Accident and/or the specific context of the present case.

12.  At the PTR, this court expressed concern as to the broad generality of the aforesaid pleas/particulars of “default” in the ASoC that failed to aver the material facts as to D’s actual acts and/or omissions in the particular circumstances of the Accident and the specific context of the present case. Such broad/general pleas/particulars did not enlighten the real issues of dispute on liability for the purpose of trial. At the PTR, Mr Cheung, counsel for P, acknowledged the generality of P’s pleas in the ASoC, and indicated P would make good his pleadings by application for leave to serve voluntary particulars. Given the lateness of the intended application to be made after the PTR and the potential opposition alluded to by Ms Siu, government counsel for D, this court did not give any directions at the PTR, and left it to P to make any application if, when and how he saw fit.

V.  SUMMONS

13.  On 28 February 2019, P filed a summons (“Summons”) for leave to file/serve voluntary particulars of the ASoC as per the draft annexed to the summons (“Draft Particulars”) within 7 days from the date of the order to be made, and for leave for D to make consequential amendments to her Defence and to file/serve an Amended Defence within 28 days thereafter, if necessary.

14.  However, it was only a month later on 29 March 2019 (ie 3 working days before the hearing of the Summons on 3 April 2019 (“Hearing”)) that P filed the affirmation of his solicitor Wong Daniel Tien Yau (“Wong”) in support of the Summons (“Wong Aff”). Such delay was regrettable especially when the Summons was a late application made after the PTR and when the trial was imminent. After all, D was entitled to know as early as possible the basis of the application by way of the Summons.

15.  Fortunately, D rose valiantly to the occasion by putting together and submitting the affirmation of Ho Pui Ki (Executive Officer (Personnel 1) of the CSD, “Ho”) affirmed on 1 April 2019 (“Ho Aff”) in opposition. In a nutshell, D opposed the Summons on the grounds that (a) D would suffer prejudice which could not be compensated by costs, and (b) the application was late, no reasonable explanation was offered for the delay, and no exceptional circumstances were demonstrated.

16.  The Summons came before me for hearing on 3 April 2019, ie just about 2½ months before the trial was scheduled to start.

VI. DRAFT PARTICULARS

17.  The Draft Particulars were said to be voluntary further and better particulars of the ASoC to be inserted after paragraph 9.10 and before paragraph 9.12 under “Particulars of Negligence of [D]” in the ASoC:

“9.11	(a)	Failing to take cognizance of the fact that in between 2400/hr on 18 August 2013 and 700 hr on 19 August 2013, there were intermittent rainfall of no less than 4.5mm in aggregate during the aforesaid period thus exposing the [Stairway] at the Scene ie the [Stairway] adjacent to the [MDH] leading to the Exercise Yard to become wet and slippery.
	(b)	(i) Failing to institute or enforce any or any adequate system of inspection or maintenance if the [Stairway], in particular, the [Stairway] adjacent to the [MDH] leading to the Exercise Yard, whereby the same was regularly inspected and the danger created by the said rainfall might have been detected and remedied before the Accident.
		(ii) Failing to institute and enforce a system for providing that any rain which fell on the [Stairway], in particular, the [Stairway] adjacent to the [MDH] leading to the Exercise Yard, whilst [P] was at work was cleared away so far as possible to make it safe.
	(c)	Failing to devise, institute, or operate or ensure the institution or operation of an adequate system of cleaning such as the placing of drying machines in the vicinity of the Scene and/or the implementing of expedient and regular mopping of the [Stairway], in particular, the [Stairway] adjacent to the [MDH] leading to the Exercise Yard, to see that the [Stairway] was and would remain safe to walk upon.
	(d)	Permitting or suffering the [Stairway], in particular the [Stairway] adjacent to the [MDH] leading to the Exercise Yard to come to be or to remain wet, slippery and dangerous as above.
	(e)	Exposing [P] to a danger or a trap and a slipping hazard and a foreseeable risk of injury.
	(f)	Failing until after the Accident to clean, clear, or otherwise render safe the [Stairway], in particular, the [Stairway] adjacent to the [MDH] leading to the Exercise Yard.
	(g)	Failing to warn [P] of the dangerous conditions prevailing upon the [Stairway], in particular, the [Stairway] adjacent to the [MDH] leading to the Exercise Yard, or otherwise preventing him walking thereon.
9.11A		Failing to ensure that suitable personal protective equipment namely safety footwear such as non-slip boots were provided to [P] while at work.”

18.  In a nutshell, the Draft Particulars concerned inter alia the following at the material times: (a) the overall system of inspection or maintenance implemented at the Stairway where P allegedly slipped and fell, (b) the overall cleaning system implemented including placing drying machines or mopping at the Stairway, and (c) the provision of personal protective equipment ie safety footwear to P.

VII.  WONG AFF

19.  After reciting extracts from the ASoC (see paragraph 3 above), Wong claimed it was clear from P’s pleadings that “he was alleging that the workplace was unsafe as a result of rainwater on the stairs, and in allowing the rainwater to remain thereupon, [D] had committed the negligence as pleaded” eg the particulars in paragraphs 9.1 and 9.7-9.10 of the ASoC. Wong also referred to extracts from D’s Defence (see paragraph 4 above).

20.  Wong claimed at the PTR this court suggested that if P were to proceed with an application to serve further particulars, D should be prepared to inform the court the ramifications of such application and of the proposed particulars on her case, eg whether D would need to amend her Defence or to adduce further evidence. Wong complained D did not inform them of such matters even though the Summons was served on D on 28 February 2019.

21.  The Wong Aff suggested that since D denied “the generally-phrased particular of negligence, gave comprehensive details of all positive safety steps that they had taken”, and asserted CSD had taken all steps as were reasonably practicable to ensure P’s safety at all material times, it was not foreseen that D would need to give further particulars of steps and safety measures taken in response to the matters raised in the Draft Particulars. But even if D wished to plead further in response to the Draft Particulars, “this would not require too much time and the Trial can proceed on the basis of the evidence already at hand”.

22.  The Wong Aff accepted the pleaded particulars were “already-wide reaching”, but the witness statements of D’s witnesses already dealt with the system of work, condition and inspection of the Accident scene and the placing of the warning Sign(s), eg paragraphs 5-6 and 8 of Wan’s witness statement (see paragraph 8(b) above) and paragraphs 5-6 of Choi’s witness statement (see paragraph 8(a) above). Further, P’s witness Wan Chi Leung also described D’s remedial actions after the Accident in his witness statement (see paragraph 7 above). On such basis, Wong suggested the Draft Particulars were “very much within the ambit of the evidence which [D’s] witnesses would give at Trial in any event”.

23.  Wong claimed D would not be prejudiced in her defence in any way that could not be compensated by costs because (a) P did not seek to vary his case or introduce a new cause of action, and (b) D had full notice of P’s allegations as to the Accident, its cause and D’s negligence, which D had to meet and to which D had fielded her Defence and witness statements. Further, it was said the Draft Particulars were not major/controversial averments that would blindside D, and it was “not a case that there is new evidence adduced by [P] but rather [P] seeks leave to add further particulars to his pleaded case against [D]”. Wong went so far as to say the Draft Particulars would narrow the issues at trial by focusing on key disputes on the liability issue, and would enable the real questions between the parties to be decided with savings on costs.

24.  Wong accepted the Summons was a late application, and sought to explain such delay by saying P thought the particulars as pleaded in the Statement of Claim and ASoC were adequate as (a) “it was only necessary to establish that [D] did not match the standard of a reasonable employer vis-à-vis the rainwater on the stairs, in order to establish the particulars of negligence against [D] at Trial”, and (b) “the detailed explanation of the specifics relating to each Particular would be covered in Counsel’s submissions before and at the Trial itself”. Wong said the inadequacy of such approach was only realised at the PTR, and further instructions were sought from P to bring the present application. It was suggested that despite their lateness the Draft Particulars only gave further details of P’s case, which case D was already well aware, and would not cause further delay to endanger the milestone trial dates.

VIII.  HO AFF

25.  Ho noted Wan, Choi and Tang gave witness statements as to the condition and inspection of the Stairway and the placing of warning Signs at the material time, but not in relation to maintenance system, cleaning system and protective equipment provided to P.

26.  Ho explained that as far as cleanliness of the Stairway was concerned, Wan was aware there was a cleaning system implemented at the Centre, ie cleaning was carried out regularly everyday as in any other correctional institutions. However, he was not the person responsible for instituting or executing such cleaning system at the material time, including frequency of mopping, placing of drying machines, etc. The same applied to Choi and Tang.

27.  Ho further explained that the institution or implementation of the cleaning system was the responsibility of the then Superintendent, Senior Superintendent and Chief Superintendent at the Centre. But the then Superintendent, Senior Superintendent and Chief Superintendent at the Centre at the material time had retired. There would have been Assistant Officer(s) responsible for executing the cleaning work in respect of the Stairway at the material time but their identities had yet to be ascertained.

28.  In respect of maintenance of the Stairway, ie checking on defects or arranging repairs and/or other remedial actions, Ho said Wan, Choi and Tang would be able to testify in that regard, but time would be required to search for records and prepare supplemental witness statements.

29.  In relation to protective equipment provided to P at the material time and adequacy of such equipment, the records (including those concerning replacement of protective equipment which were more than 6 years ago) were quite mundane and lacking in administrative value, so Ho anticipated it was likely they would have been disposed of. Even if Ho were required to conduct search for those records, it would likely take a few weeks to ascertain whether they were still available.

30.  As the trial would commence on 17 June 2019, Ho believed D would be prejudiced by not being able to adduce relevant evidence in response to the Draft Particulars before the trial dates or at all.

IX.  LEGAL PRINCIPLES

31.  Pleadings Although not cited by either Mr Cheung or Ms Siu, it is useful to refer to the recent guidance that has fallen from the Court of Final Appeal on the purpose of pleadings which also sheds some light on the purpose of particulars.

32.  In Sinoearn International Ltd v Hyundai-CCECC Joint Venture,[1] the Court of Final Appeal made observations on the running of 2 alternative unpleaded cases at trial without proper formulation by amended pleadings in respect of a contractual dispute over works involving dredging and removal of a large quantity of contaminated mud. One such unpleaded alternative case involved a contractual obligation to pay by reference to “the entire amount of contaminated mud that was dredged up from the CT9 project”. Ribeiro PJ held it was unacceptable for the plaintiff to run this unpleaded alternative case:

“30. …… A party must raise all the issues it wishes to raise to be dealt with at trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken. Notions like “the entire quantity of mud dredged from the CT9 project” might be studded with arguable questions as to how such quantity is to be ascertained dependent on the evidence. If there was room for exceptions regarding bad weather or anything else, the scope and effect of such exceptions could not doubt throw up factual and legal questions.

……

34. Pleadings are not mere formalities. They impose a necessary discipline and are fundamental enabling every procedural facet of the adversarial system to operate fairly.”

33.  In Kwok Chin Wing v 21 Holdings Ltd, Ma CJ said as follows:[2]

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Ltd v Crystal Jet International Ltd. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltd v Crystal Jet International Ltd:-

(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be “slipped in” when evidence is being given in the hope that the other side is not sufficiently alert to object.”

34.  Statement of claim  The central purpose of the statement of claim is to formulate the cause(s) of action against the defendant. A statement of claim must state (a) in summary form the material facts on which the plaintiff relies for his claim,[3] (b) specifically the relief(s) or remedy(ies) which he claims[4] and (c) the legal connection/nexus between the facts relied on and relief/remedy(ies) claimed to enable the defendant to know the case he has to meet.[5]

35.  The pleaded facts must be “material”, ie any fact which the party is entitled to prove at trial even though “it may relate only to the quantum of damages or the type of relief claimed”.[6] “Material” means necessary for the purpose of formulating a complete cause of action; and if any one material statement is omitted, the statement of claim is bad. Ordinarily, the material facts to be pleaded are those which existed at the date of the issue of the writ, but occasionally the rights of the parties may be affected by events or circumstances which happen or take place after the issue of the writ.[7] Hence, Order 18 rule 9 of the Rules of the High Court (“RHC”) provides that “…… a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ”. Thus, a plaintiff is entitled to plead an allegation of negligence in respect of the subject accident that is discovered only by interrogatories administered on the defendant and/or investigation (eg from expert evidence) made after the issue of the writ of summons.

36.  Particulars  Order 18 rule 12(1) of the RHC provides that “…… every pleading must contain the necessary particulars of any claim …… or other matter pleaded ……” Particulars are the details of the case set up, and form part of the pleadings. 

37.  The function of particulars is as follows: (a) to inform the other side of the nature of the case that he has to meet as distinguished from the mode in which the case is to be proved, (b) to prevent the other side from being taken by surprise at the trial, (c) to enable the other side to know with what evidence he ought to be prepared and to prepare for trial, (d) to limit the generality of the pleadings, the claim and the evidence, (e) to limit and define the issues to be tried, and as to which discovery is required, and (f) to tie the hands of the party so that he cannot without leave go into any matters not included. In a nutshell, particulars carry into operation the principle that the litigation, particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to save costs.[8]

38.  Voluntary particulars  Voluntary particulars are further and better particulars of a pleading served without request or order. DHCJ Au-Yeung (as she then was) in Christian Emil Toggenburger & ors v Luu, Hung Viet Derrick & ors explained as follows:[9]

“39. The practice of serving voluntary particulars without request is intended to show the readiness of the party concerned to inform the opposite party of the material facts upon which he intends to rely, to narrow the issues, to prevent surprises and to reduce costs: Hong Kong Civil Procedure 2011, para 18/12/65.

40. It is not intended as a device for a party to introduce new particulars to vary its case unilaterally or to introduce a new cause of action: Hong Kong Civil Procedure 2011, para 18/12/64-65.

41. It is also not the function of particulars to take the place of necessary averments in the pleadings nor to state the material facts omitted in order by filling the gaps, to make good an inherently bad pleading: Hong Kong Civil Procedure 2011, para 18/12/1.”

Thus, “voluntary particulars” must not be used unilaterally to amend, add to or vary the case of a party in a way that the court would not sanction. 

39.  Amendment of pleadings: approach  Order 20 rules 5 and 8 of the RHC provide as follows:

“(1) Subject to Order 15, rules 6, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleadings, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. ......” (rule 5)

“(1) For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and ...... on the application of any party to the proceedings order a pleading or any other document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(1A) The Court shall not under paragraph (1) order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. ......” (rule 8)

40.  I adopt but will not repeat here my observations on the relevant legal principles in Chan Kon Fung v Gallop Pioneer Limited & anor[10] and Incorporated Owners of Western Court v Conrad Salat Czakat Rumjahn appointed to represent the Estate of Usuf Rumjahn, deceased.[11] These principles have been reiterated and confirmed by the Court of Appeal in Bruce James Stinson v Gu Ming Gao.[12]

41.  Mr Cheung referred to the broad principles summarised in Ketteman v Hansel Properties Ltd[13] and VSC Building Products Company Limited v Kono Insurance Limited[14] which suggest that generally all amendments ought to be made as may be necessary for determining the real question in controversy between the parties, and the court is not to punish a party for his error or mistake unless the applicant has been acting mala fide or the mistake he has made causes injustice to the other party.

42.  But as a result of the Civil Justice Reform (“CJR”), these broad principles are tempered by the following considerations:

(a)	It is clear the court will not order a pleading to be amended unless it is of the opinion the amendment is necessary for disposing fairly of the cause or matter or for saving costs, and the onus lies on the party seeking the amendment to so satisfy the court.
(b)	An amendment will not be allowed if it causes injustice to the other party that cannot be compensated by costs. There is also a clear difference between allowing amendments to clarify issues in dispute and those that provide a distinct defence/claim to be raised for the first time. Much depends on the nature of the proposed amendment and the pleaded defence in the particular case.[15]
(c)	Such broad principles must be viewed through the prism of delay (especially when it is unexplained or unjustified) in the case of a late application, which brings to focus (i) the underlying objectives in Order 1A rule 1 of the RHC, including the need to increase cost-effectiveness, ensure expedition, promote reasonable proportion, and ensure fairness between the parties, and (b) the necessary recognition that the later an application is made to shift the litigation goalposts in terms of pleadings, the more likely it is to cause real prejudice to the other party.[16]

43.  Indeed, the Court of Appeal in Topwell Corp Ltd v Kwan Kam Kee describes the aforesaid caveat as follows:[17]

“39. ...... in the exercise of discretion, the Court must of course have regard to the underlying objectives in O.1A of the RHC ......, so it cannot be assumed that once the principles in Ketteman are satisfied, the amendment would be allowed. The court would need to balance all relevant factors to decide how its discretion should be exercised, if the application is made in circumstances offending one or more of the underlying objectives. In this particular case, a pertinent consideration in giving effect to the underlying objectives is that the Court “shall always recognise that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties” (O.1A rule 2(2) of the RDC).”

44.  Amendment of pleadings: lateness  Whether to allow a late application for amendment at the brink of a trial requires the court to carry out a balancing exercise, and the court must exercise its case management discretion in a fair manner having regard to all the circumstances and the explanation given for the lateness of the application. The court bears in mind that the primary aim of case management powers is to secure the just resolution in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC), but neither does the court forget the need to deal with cases expeditiously, cost-effectively and proportionately to achieve justice and fairness for the parties before the court and also for other litigants who have demands on the court’s resources. It is useful to refer to the reminder by DHCJ Lok (as he then was) in Li Shiu To v Li Shiu Tsang & ors[18] as follows:

“17. Second, there is heightened concern to guard against late applications after the implementation of the CJR. For case management purpose, there are now certain milestone dates in the course of litigation, and one of which would be the trial date. If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances. Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigation. Hence, one should not assume that, once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings.”

45.  For late amendment of pleadings, discovery and further statement evidence when the trial was imminent and with risk of disrupting the trial dates being milestone dates, the applicant for leave must establish by affidavit evidence exceptional circumstances to explain and justify the delay.[19] In Raytech Industries Co Limited v Leung Wai Kit,[20] DHCJ Le Pichon also said as follows:

“16. …… Surprisingly, there is no explanation why the proposed amendments are made so late in the day when limitation was such an obvious defence to plead. That the accounts claimed go back to payments/transactions from 2001 (10 years prior to the issue of writ) is readily apparent even from a cursory perusal of the statement of claim. In these circumstances, the delay is inexplicable and cries out for the explanation. There is none.

17. While the absence of explanation is not determinative, it is a factor to be taken into consideration and the weight to be given to it would depend on the particular circumstances. Unlike Li Shu To where the affirmations contained materials that provided some explanation for the delay, it is not the case here.

18. In the circumstances, the defendant’s conduct in the course of these proceedings assumes greater significance. It would be indicative of his general approach to this litigation. ……”

46.  Amendment of pleadings: particularity  In respect of proposed amendments to pleadings, the guidance by Nazareth VP in Wellfit Investments Ltd v Poly Commerce Ltd[21] remained applicable in the post-CJR era:

“…… Turning then to a general point made by Mr Benjamin Yu in pursuance of the respondent’s notice, the proposed amendments …… can be seen to be lacking in particularity in more than one respect.

Where amendments, particularly material amendments of the present sort, are made so shortly before the hearing, it must be incumbent upon the party seeking them to ensure adequate particularity. The constraints of time, and the high risk of disruption of the orderly conduct of trials by the courts and of prejudice to the other party must demand strongly that leave be refused ……”

X.  DISCUSSION

47.  I note 2 matters at the outset. First, notwithstanding the Summons filed after the PTR, P did not ask for the milestone trial dates (to commence on 17 June 2017) to be postponed. Hence, the Summons and the ramifications of acceding to the application thereunder must be viewed through the prism of an imminent trial that would start and proceed in/about 2½ months. Secondly, notwithstanding the contents of the Draft Particulars, P did not seek to adduce further witness or documentary evidence for the purpose of trial. Thus, the Draft Particulars must be viewed through the prism of the existing witness and documentary evidence.

48.  It is perhaps easiest to dispose of a short point raised in the Wong Aff set out in paragraph 20 above whereby Wong complained about D’s failure to inform P of the consequential effect of P’s application for leave to serve the Draft Particulars on D. I find there is no merit to such complaint. After all, when P filed the Summons in late February 2019, he chose not to file/serve any supporting affirmation when it was incumbent upon him (a) to give cogent explanation/justification for the delay and for the relevance/necessity of the Draft Particulars, and (b) to explain and justify exceptional circumstances (if the Draft Particulars were not mere particulars of the existing pleadings but amounted to further allegations requiring leave to amend pleadings). Plainly, D required sight of the supporting affirmation to be filed by P in order to put forward a proper response. It was only 3 working days before the Hearing that P filed the Wong Aff in support of the Summons, and in my view P was in no position to complain that D was dilatory when D came up with the Ho Aff 2 working days later. In any event, the contents of the Ho Aff clearly showed D had already begun efforts to ascertain whether she would be able to meet the Draft Particulars (if allowed) or whether she would be handicapped in her response.

49.  As the Wong Aff accepted, P’s application by the Summons was late. It could not have been otherwise given that the Summons was filed after the PTR, and the Hearing of the Summons was just about 2½ months before the trial. The delay was significant given that the present action commenced in 2015, and on the liability issue discovery was completed and witness statements were exchanged by 13 September 2017. There was no change of circumstances up to the time when the Summons was filed 17 months later. This powerfully demonstrated that the Summons could have been taken out much earlier, especially when P was all along legally represented.

50.  Turning next to the explanation for the delay given in the Wong Aff as set out in paragraph 24 above, I am not persuaded what Wong said amounted to any satisfactory explanation. In light of the legal principles as set out in Part IX above, especially in relation to the purpose of pleadings and particulars which essentially is to raise all the issues the party wishes to raise to be dealt with at trial so that the other party knows the entire case he has to meet and decides what pleadings in response are required, what discovery to give/seek, what evidence to adduce and what legal point to take. This has been the purpose of pleadings and particulars all along, and it has never been the case (which assertion I am unable to accept) that it is sufficient to plead broad/generic and non-case specific particulars that give no inkling to the court or the other party as to the true allegations of “default”, and to leave details of specific matters to be covered by counsel’s submissions before or at the trial. In any event, counsel’s submissions are neither pleadings nor evidence. On the contrary, as evident from the observations of the Court of Final Appeal set out in paragraphs 32-33 above, counsel’s submissions are subject to the necessary discipline of pleadings and evidence adduced at trial.

51.  Wong suggested “it was only necessary” to establish at trial D did not match the standard of a reasonable employer vis-à-vis rainwater on the stairs to prove negligence against D, but in my view this would not take the matter any further. Of course, P had the burden to prove the existence of rainwater on the Stairway as pleaded. But beyond that he also carried the burden to plead what precisely was D’s “default” in relation to the rainwater on the Stairway (if proved) for this was the very issue in dispute on the question of liability, and averring broadly in the ASoC that D did not take reasonable care or precaution for P’s safety or D failed to provide or maintain safe system of work would not provide enlightenment as to D’s true “default”.

52.  After all, for the cause of action on negligence, a plaintiff has to establish a duty of care and then go on to establish breach of such duty of care by the defendant’s act or omission, so the plaintiff must plead the material facts in relation to these essential elements for such cause of action. A duty of care envisages what the alleged tortfeasor should reasonably have done for the claimant (eg provision of a forklift to lift heavy load, provision of safeguard for dangerous machine, arrangement for 2 workers to carry out a particular work activity, use of non-slip tiles on the workplace floor, scheduling 2-hour rest breaks for intensive work, etc), and such duty of care sets the yardstick for assessing whether the alleged tortfeasor’s act or omission amounts to breach of such duty of care and hence negligence (eg only wheelbarrow but not forklift is available, no safeguard is installed, no co-worker is available for a 2-man job, slippery tiles are used for the flooring, no rest breaks are allowed, etc). The examples illustrate the material facts that ought to be pleaded for a claim in negligence. The details in support of such material facts are matters of evidence. Using the example of a duty of care to provide forklift to lift heavy load and breach of such duty by only making available a wheelbarrow, the circumstances as to how and why a forklift is required (eg the usual weight of the loads to be moved, the frequency of the loading/unloading exercise, the ability to manoeuver a forklift over the relevant route etc) and why using the wheelbarrow is inadequate (eg whether manual loading/unloading for the wheelbarrow will cause undue strain, whether the load might topple over easily, etc) will then be matters of evidence to be adduced by both the plaintiff and defendant. But such evidence will not be elicited and adduced unless the material facts and particulars are pleaded to properly raise such issue. Indeed, broad/generic assertions of, say, failure to take reasonable care/precaution for worker safety and/or failure to provide or maintain adequate/safe system of work do not inform the court and/or the defendant that the true issue is, say, whether a forklift or wheelbarrow is reasonably required for the relevant work activity, and the defendant will not know the fullness of the case he has to meet and to respond accordingly.

53.  Since there had not been any new developments on the issue of liability since September 2017 in the present action, and given the trite legal principles stated above, I am not satisfied there was any good reason for delay until February 2019 in filing the Summons.

54.  I now turn to the Draft Particulars. P put forward the Draft Particulars as voluntary particulars, so they could not be used to unilaterally amend, add to or vary P’s case in a way that the court would not sanction (see paragraph 38 above). I agree with Ms Siu that the Draft Particulars sought to “add to” P’s case as pleaded in the ASoC. Plainly, the allegations about failure to institute/enforce adequate system of “maintenance of the [Stairway]” (paragraph 9.11(b)(i)), failure to institute or enforce adequate system of cleaning the Stairway, including placing of drying machines at or implementation of regular mopping of the Stairway (paragraph 9.11(b)(ii), 9.11(c) and 9.11(f)), and failure to provide personal protective equipment such as non-slip boots (paragraph 9.11A) were not pleaded issues that had been previously raised in the ASoC, and as explained above, it was quite insufficient to say these specific matters were somehow subsumed within the broad/generic particulars in the ASoC.

55.  Mr Cheung submitted the court should apply “common sense” which would lead the court to recognise D must have systems in place for cleaning and maintenance of the Stairway, and P being the victim of the slip and fall Accident should not be shut out from raising the matters in the Draft Particulars because they were necessary for the just determination of the dispute between the parties.  As to how the court would conclude from “common sense” that D must have systems in place for cleaning and maintenance of the Stairway, Mr Cheung made a two-pronged submission. First, it was said even the Ho Aff accepted the CSD had cleaning and maintenance systems. Mr Cheung asked me to brush aside Ho’s affirmation evidence as to the current non-availability of witnesses/records and the time required to search for and gather witness and documentary evidence on the basis that (a) the CSD was part of the government (not any modest institution) and they should have full (probably electronic) records of their cleaning and maintenance systems that should have been in operation for years under internal house rules, and (b) the “presumption of regularity” was applicable such that the court should assume the CSD’s cleaning and maintenance systems and their records were in order. Secondly, Mr Cheung drew my attention not to P’s existing pleading (ie the ASoC), but to the Defence by which D pleaded that (i) “[adequate] inspection has been conducted before the Accident to ensure the staircase was dry”, and (ii) “…… CSD had taken all steps which were reasonably practicable to ensure the safety of [P] at all material times”. Although such pleas referred to action taken just before the Accident, Mr Cheung submitted these acts must have been part of the CSD’s cleaning and maintenance systems, and hence D’s aforesaid averments in (i)-(ii) above demonstrated the existence of such systems.

56.  In my view, the proper approach is to start with the existing pleadings. I have found the Draft Particulars raised new issues not pleaded in the ASoC (see paragraph 54 above). I now turn to the Defence. At the outset, I note the Defence was pleaded in response to the ASoC that did not raise the specific new matters now raised in the Draft Particulars (see paragraph 54 above), and it was not the function of D’s Defence to anticipate matters not yet raised in the ASoC. In this respect, I refer to Jacob and Goldrein, Pleadings: Principles and Practice as follows:[22]

“Deny only what is in fact claimed The defendant should not traverse any matter which the plaintiff has not actually alleged against him, although he might or ought to have done so.

Cross bridges only when one comes to them  Do not anticipate any matter the plaintiff might rise in his reply.”

Against such contextual background, the Defence quite simply did not raise the CSD’s overall systems for regular cleaning and/or regular maintenance of the Stairway at the Centre as I shall elaborate below.

57.  The primary line of D’s pleaded defence (see paragraph 4 above) in response to P’s plea as to his slip and fall which P claimed was “due to the wet and slippery surface of the [Stairway] caused from raining” was that at the time of the Accident the surface of the Stairway was dry. The further line of D’s pleaded defence (see paragraph 4 above) again in response to P’s aforesaid plea was that D had taken reasonable steps to ensure P’s safety at work at the material time, ie the facts and matters set out in paragraph 4(a)-(g) above. Since such further line of defence was in response to P’s plea in respect of the Accident itself, ie P slipped and fell “due to the wet and slippery surface of the [Stairway] caused from raining”, the pleaded “reasonable steps” concerned the state of the Stairway at the time of the Accident (see paragraph 4(a) above), the steps taken in temporal connection with the Accident (see paragraph 4(b)-(c) above), and general safety instructions to staff including P (see paragraph 4(d)-(e) above), all of which led to D’s view that D had done all that was reasonably practicable to ensure P’s safety at “the material times” (see paragraph 4(g) above), ie at the time of, shortly before and shortly after the Accident (see paragraph below), and the Accident was caused by P’s own negligence (see paragraph 4(f) above).

58.  Thus, the focal point of this further pleaded line of defence was that the CSD had done all it reasonably could particularly in respect to the Accident, which was made abundantly clear by the plea that adequate inspection had been conducted “before the Accident” to ensure the Stairway was dry. In my view, such plea was incident-specific and had nothing to do with and did not raise as defence the overall systems of regular cleaning and maintenance of the Stairway. There was no need to do so as P did not raise the same in the ASoC in the first place. Indeed, this was borne out by the witness statements of Wan, Choi and Tang which focused on the day of the Accident (which happened at 7:26am), ie (a) instructions given by Wan to Choi shortly before the Accident (ie 7:00am) to ensure the surroundings of MDH (including the Stairway) was dry and to place warning Signs at the Stairway, (b) Choi’s immediate compliance with such instructions to place the warning Signs and to inspect the Stairway to confirm it was dry, and (c) Tang’s observation of the Stairway at 7:28am just after the Accident that it was dry and with warning Sign placed thereat. Quite simply, the existing pleadings and witness evidence did not engage on the CSD’s overall systems of regular cleaning and regular maintenance of the Stairway at all.

59.  It was also telling that (a) the witness statements of P and Wan Chi Leung did not complain of any inadequate/insufficient overall systems of cleaning or maintenance of the Stairway, (b) there was no discovery (which should be on Peruvian Guano relevance) of any document in relation to the CSD’s overall systems of regular cleaning and regular maintenance of the Stairway, and (c) there was no application for specific discovery by P for such documents. The above analysis led inexorably to the conclusion neither P nor D raised in their pleadings and witness statements any issue in respect of the adequacy or otherwise of the CSD’s overall systems of regular cleaning and regular maintenance of the Stairway in contra-distinction the alleged rainwater that allegedly rendered the Stairway wet and slippery at the time of the Accident and D’s temporal acts particularly in relation thereto. This disposed of Mr Cheung’s 2^nd point in paragraph 55 above.

60.  There is also a short answer to Mr Cheung’s 1^st point in paragraph 55 above. The burden was on P as claimant to properly plead his claim and to deploy the allegations of negligence or breach of duty of care that he intended to rely for the purpose of trial. D’s obligation was to defend the pleaded allegations of “default” and not to anticipate potential allegations that had not been raised. If it were otherwise, civil litigation would be undisciplined and unfair. The focus therefore should not be on whether the CSD did have overall systems of regular cleaning and regular maintenance of the Stairway, but on what plea of “default” and what evidence was deployed in the present action against D. Since the matters in the Draft Particulars referred to in paragraph 54 above had not been pleaded and deployed in the ASoC, what P sought to do by the Summons was to shift the pleadings goalposts that had already been crystallised at the latest by the time leave was granted to set the present action down for trial by significantly expanding on the issues to be canvassed at trial at a late stage of the proceedings when the parties should really be concentrating their efforts on preparation for trial.

61.  In the above analysis I have concentrated on the CSD’s overall systems of regular cleaning and regular maintenance of the Stairway. But I do not forget that one of the new matters raised by the Draft Particulars in paragraph 54 above concerned alleged failure to provide personal protective equipment such as non-slip boots.  I have reviewed paragraphs 9.1-9.24 of the ASoC (see paragraph 3 above), and am unable to discern any plea that raised such issue. Indeed, the only place where boots were mentioned in the present action was in P’s witness statement in which he stated “當時我穿著軍裝皮鞋”. But this was a statement of fact, and not a complaint of “default” against D.

62.  In the circumstances, if P wished to deploy the new matters in the Draft Particulars in paragraph 17 above, he could not slip in the same by way of voluntary particulars, and must seek leave to amend the ASoC to add the same.

63.  In my view, it is fair to say that if the new matters in the Draft Particulars were allowed, the nature and character of the present action would be recast, and various allegations, which had not been relevant to the issues raised in the pleadings so far, would become relevant. There was force in Ms Siu’s submissions that the real issues at trial based on the existing pleadings were (a) whether the Stairway was wet and slippery at the time of the Accident, (b) if so, whether the wet and slippery condition created any unusual risk that D ought to have taken reasonable measures to avoid such risk, and (c) if so, what were those measures and whether D had failed to take those measures. Those matters were incident-specific. By the Draft Particulars P tried to add further measures/actions to the list pleaded in the ASoC. If allowed, the focus of the case would be shifted, and no doubt the preparation of the case on D’s part would have to be altered.

64.  Turning first to P’s case, I note P decided not to adduce further statement or documentary evidence, but had no factual/evidential basis on the strength of his existing statement and documentary evidence to support the new matters in the Draft Particulars. An obvious example is the alleged failure by D to provide personal protective equipment such as non-slip boots. As explained in paragraph 61 above, there was simply no evidence to support such allegation. Given the imminence of the trial, I am unable to see the purpose of allowing the addition of such new plea which in any event could not be proved at trial.

65.  In relation to the other new matters raised by the Draft Particulars in paragraph 54 above, paragraphs 6-7 above showed the statement evidence of P and Wan Chi Leung did not mention CSD’s overall systems for regular cleaning and regular maintenance of the Stairway at all. Nor could P point to any documentary evidence in relation to the same (see paragraph 9 above). As explained in paragraph 55 above, Mr Cheung drew attention to D’s pleadings (see paragraph 4(c) and (g) above), and suggested P could establish his claim on D’s pleaded case pursuant to Poon Hau Kei v Hsin Chong Construction Co Ltd, Taylor Woodrow International Ltd Joint Venture.[23] I am unable to accept Mr Cheung’s contentions. First, I have found D’s pleas in the Defence did not assist his contention (see paragraphs 56-59 above). Secondly, it was said in Poon Hau Kei that where an accident occurs on the basis of a scenario not pleaded by the plaintiff but is pleaded by the defendant, and it can be established that default arises on the defendant’s scenario, then provided it does so in a fair manner, the court may find liability for the plaintiff against the defendant.[24] This is because where the alternative scenario has been fully and clearly pleaded by the defendant, usually there will be nothing unfair to find for the plaintiff on the basis of the defendant’s scenario.[25] Since any success on the Poon Hau Kei approach would turn on D’s pleaded case and not on P’s pleaded case, I do not understand how this could be any cogent reason for the present application to add the Draft Particulars to the ASoC. There is no merit to these arguments, and I find there was no evidential basis to support the new matters raised by the Draft Particulars. That being the case, the application was quite unjustified.

66.  But I go further. In considering an application to add to pleadings by new averments, the court will take note of presence or absence of any real prejudice to the other party. Even though Nam Ching Wun v Tsun Un Pawn Shop also known as Tsun Yun Pawn Shop with Tang Yam Wan as trustee by Yeung Fook Mui and Tang Ying Ip (or Yip) as administrators of the estate of Tang Pui King alias Tang Yum (or Yam) Wun alias Tang Kin Cheung, deceased & ors concerned late application to adduce additional witness statement, the legal principles set out therein apply mutatis mutandis to a late application for amendment of pleadings:

“56. The court will take note of the presence or absence of any real prejudice to the other party. Delay itself can amount to real prejudice, and the later the applicant makes the application to adduce additional witness evidence, the more likely it is to cause real prejudice to the other party, especially when a milestone date is likely to be jeopardised by (a) insufficient remaining time until the milestone event to accommodate the other party’s response if the application is granted, (b) the other party being unfairly or oppressively burdened by having to scramble up a response if the application is granted which thereby adversely affects necessary efforts on his part to meet any milestone event/requirement, and/or (c) significant time that will be taken up by the new matters at trial such that the trial dates are likely to be compromised. The court is also unlikely to be sympathetic to any late application that raises a new dimension or focus at a late stage that shifts the litigation goalposts, especially when time and opportunity have already been given for the applicant to put forward the fullness of his case. Such procedural prejudice can amount to real and serious prejudice, and may overshadow any prejudice the applicant may suffer by, say, not having an additional witness statement admitted into evidence.

57. Significantly, after the CJR, the court expects careful and conscientious consideration and attention to be given to the completion of timetabling/listing questionnaires before the case is set down for trial. The court will be concerned to see if there is any conscious flouting of the rules of court, practice directions and/or case management timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant. Disobeying rules of court and court-imposed case management directions and timetable without good reason makes a mockery of the case management system envisaged by the CJR.

58. To sum up, after the implementation of the CJR and the awareness heightened by such reform as to the need for early, proper and comprehensive preparation for trial, the courts are unlikely to smile kindly on late applications. As I have said in Liu Chen v Chan Poon Wing & anor, “[to] say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, costs- effectiveness and fairness between parties enshrined in Order 1A of the RHC”.

59. [Counsel for the applicant] submitted the presumption is that all relevant evidence should be admitted unless there is a compelling reason to the contrary. Whilst such proposition is not objectionable as a matter of broad principle, it must be understood that well managed civil litigation envisages “all relevant evidence” that will be adduced at trial is introduced in a proper and timely manner so that the other party can effectively respond in good time and will not suffer forensic prejudice as a result of any lateness. In the end, [counsel for the applicant] did not shy away from the need, particularly in the case of a late application, for the court to conduct a balancing exercise for proper case management.”

67.  In my view, since P had no cogent explanation for the delay in taking out the present application, and there was paucity of evidential basis to support the new matters in the Draft Particulars, there were no exceptional circumstances warranting the granting of leave for P to file/serve the Draft Particulars which, as explained below, would cause forensic prejudice to D with real risk of derailing the trial dates. In this respect, I note the trial is a milestone event, and I have borne in mind the underlying objectives in Order 1 rule 1 of the RHC and the court’s duty under Order 1 rule 2 of the RHC.

68.  Ho deposed that relevant officers including the then Superintendent, Senior Superintendent and Chief Superintendent of the Centre responsible for the institution and implementation of the relevant cleaning system had retired, and the identity(ies) of their subordinate(s) who executed the cleaning work at the Stairway had yet to be ascertained. Also, cleaning records had yet to be ascertained. As regards the overall system of regular maintenance of the Stairway, Ho said time would be required to search for and retrieve relevant records. As for relevant records for replacement of protective footwear 6 years ago, Ho feared such mundane records had been disposed of, and in any event time would be required to search for and/or to confirm their availability. Plainly, given the shortness of time, D would suffer forensic prejudice with loss and/or unavailability of potentially relevant witnesses and records.

69.  Mr Cheung asked me to brush these assertions aside because the “presumption of regularity” was applicable to such a substantial institution as the CSD being an arm of the government (see paragraph 55 above). I cannot agree. First, the question now is not whether there used to be such witnesses and records. Obviously there would be relevant personnel and records as and when the overall suptems of regular cleaning and regular maintenance were instituted and implemented in the past. But D now faces the present problem of unavailability of the then involved personnel and records. Further, it was not for P to dictate what evidence D should deploy in response to the matters in the Draft Particulars. I cannot see how the so-called “presumption of regularity” would assist. Secondly, any so-called presumption was displaced by Ho’s affirmation evidence as set out in Part VIII above. In my view, D would suffer forensic prejudice if the late proposal to deploy the Draft Particulars was allowed.

70.  Further, D would also suffer procedural prejudice. Even if some witnesses/documents were still available, D would need time to interview the potential witnesses, and to search for and retrieve such records. D would have to review the instructions from witnesses and study the retrieved records to consider how to respond to the Draft Particulars by way of amendments to the Defence, to consider giving further discovery, and to prepare and adduce further and/or supplemental witness statements. In my view, given the imminence of the upcoming trial, the aforesaid exercise would impose an unfair burden on D to divert their attention from the preparation for trial in order to scramble up a response to the Draft Particulars because P for no good reason was late in making the present application. These concerns took on significance as there was a real risk that the time required for the aforesaid exercise might disturb the trial dates. Also, as Lam VP said in Li Xiao Yun & anor v China Gas Holdings Limited, “[last] minute pre-trial applications also disrupt the preparation for the trial on the part of the trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge will have to divert attention and spend time and effort on such applications”.[26]

71.  As Ms Siu submitted, the new matters in the Draft Particulars set out in paragraph 54 above not only did not narrow down the issues to reduce costs, they open up new lines of enquiries to the issues to be investigated by D and to be determined by the court.  Further, apart from the new matters, the rest of the Draft Particulars would not bring the case further. In respect paragraph 9.11(a) of the Draft Particulars, how much rainfall there was in the evening before the Accident, whether it was intermittent or continuous and/or whether any such rainfall occurred at the Centre would be a matter of evidence. In respect of paragraphs 9.11(d), (e) and (g) of the Draft Particulars, they were general allegations and had been pleaded in the list of particulars in paragraph 9 of the ASoC.

72.  In the circumstances, I find the Draft Particulars were unnecessary for the purpose of disposing fairly the cause or matter or for the purpose of saving costs. Mr Cheung asked me to use “common sense” to view the present application from the perspective of P as “victim” of the slip and fall Accident. Whilst I express no view ahead of the trial as to the merits of P’s claim and D’s defence, for the present purpose, whether P’s original pleaded claim could compensate P adequately is neither here nor there as regards whether P should be allowed to recast his case in a new dimension at this late stage by the Draft Particulars when D would suffer prejudice.

XI.  CONCLUSION

73.  I therefore dismiss the Summons. There is no reason why costs should not follow event, so I also grant a costs order nisi that P was to pay D’s costs of and occasioned by the Summons (including all costs reserved, if any) to be taxed if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations.

74.  For the avoidance of doubt, upon dismissal of the Summons, the new matters in the Draft Particulars set out in paragraph 54 above would not be part of the pleaded issues for the purpose at trial. Hence, trial counsel for both parties should take note in the preparation of their opening submissions and cross-examination of witnesses. In light of the guidance by the Court of Final Appeal set out in paragraphs 32-33 above, it would be regrettable if non-pleaded issues (now rejected by dismissal of the Summons) be “slipped in” when evidence is being given.

XII.  POSTSCRIPT

75.  This case is a salutary reminder to litigants and legal practitioners, especially in the personal injury jurisdiction, of the dangers of relying on the false security of abundant broad/general allegations of negligence and/or other breaches that did not properly raise the true case-specific issues that the other party has to meet. After the CJR (and indeed even before), litigants and legal practitioners cannot expect the court to smile kindly on any litigation culture of withholding true case-specific particulars of “default” until counsel’s opening submissions at trial and then applying for leave under Order 38 rule 2A(7)(b)(i) of the RHC to lead further evidence from witnesses to adduce evidential support for such late case-specific particulars. The rules of court do not require litigants and legal practitioners on their behalf to produce cumbersome pleadings of every detail or evidence. This will fly against the underlying objectives as such pleadings tend to bury/mask rather than elicit the true issues, and will add to costs. But litigants and legal practitioners should carefully consider the discussion in Part X above and prepare clear and concise pleading that fairly and precisely inform the other party of his case so that proper response and preparation are made possible.

76.  In the personal injury jurisdiction, it is understandable that at times a claimant may not be able to give precise particulars of “default” at an early stage of the proceedings. A pedestrian knocked unconscious may have no idea how the accident happened. An unskilled worker may not necessarily understand the intricacies of what went wrong with the overall work procedure that led to his injury. Investigation (and sometimes expert evidence) may well be required in order to elicit the basis of “default”, and the pre-action protocol under Practice Direction 18.1 is part of such process. What has been said in the above paragraph is not meant to be any encouragement for overly belligerent demand for further and better particulars and/or for striking out application at inappropriate stage of the litigation. But as the legal action progresses with, say, discovery, interrogatories and witness statements, it is incumbent upon the litigants and their legal representatives to revisit the original pleadings to see whether they require expansion or amendment to cover the real nub of complaint and/or whether they require correction or tailoring to pare off unnecessary allegations. Checklist review questionnaires serve as useful reminders for litigants and their legal representatives to revisit the adequacy of pleadings for each checklist review, and if required, to seek leave to amend at as early a stage as possible. Legal practitioners are expected to give advice on liability, quantum and evidence, and the adequacy of pleadings in light of the available evidence that has been gathered since the commencement of the litigation must be a key consideration in such advice. By the time the case is ready to be set down for trial, the claimant and his legal representatives must conduct an overall review of the pleadings before confirming to the court there is no outstanding matter.

77.  In light of all the above stages of litigation that the litigants and their legal representatives are compelled under the RHC and Practice Direction 18.1 to review the pleadings, and given the duty of handling practitioners to ensure their clients’ case is properly prepared, late applications to amend pleadings should be few and far between. As seen in this case, leaving such applications to the PTR and beyond may well excite unfavourable outcome.

78.  The CJR envisages joint effort by the court case manager and the practitioner case manager / litigant to ensure the case is ready and well prepared before it is set down for trial. The court expects careful and conscientious consideration and attention to be given to the preparation of pleadings that elicits the true issues for the trial, and to the completion of the checklist review questionnaires, otherwise it makes a mockery of our case management system. Litigants and their legal representatives should also expect personal injury masters to exercise proactive case management by reviewing the pleadings to identify the focal liability issues for the trial so as to properly assess the readiness of the case for setting down for the trial and to determine the proper estimation of trial time required. These matters should not be left to the PTR and beyond.