WAN CHOI HA v. THE MENTAL HEALTH ASSOCIATION OF HONG KONG - LUNG HANG CENTRE AND ANOTHER

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES LIST

PI304/98

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J U D G M E N T

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1. This is an application by the defendants to amend their defence so as to raise, for the very first time, an allegation against the plaintiff of contributory negligence, including in particular, an allegation of 'volenti non fit injuria'.

2. This accident occurred in 1991. The Statement of Claim was served in or about August of 1994 and the Defence was served in September of 1994. It is true that this case has taken some time to come to trial, but trial is presently fixed for 10 December of this year. On 10 June, I made the order setting the case down for trial and stated that if the defendant sought to amend its Defence - some indication having been given to me that that was a possibility - then the defendant was to make such application within 7 days of that particular order, namely 10 June 1998.

3. The application was made in that time. However, a further consideration of the chronology is of some relevance here. The defendant's checklist, prepared for the checklist hearing on 27 April 1998, gave no indication that there was likely to be any future application to amend the pleadings. Indeed, question 8 in the checklist, "Are you satisfied the pleadings will require no further amendment?" was answered, "Yes", but the words, "subject to counsel's advice" were written in. It transpires on inquiring of Miss Park, who has done all that she could possibly do in respect of this defendant's application, that she was instructed in May of this year.

4. I find that quite inexcusable and, indeed, Miss Park has conceded that this is a late application in itself and there is no excuse for it being made so late. It seems to me that when a checklist question is answered that the party is satisfied that "the pleadings require no further amendment, subject to counsel's advice", that steps should be taken to obtain counsel's advice in respect of the pleadings and evidence immediately, in fact, preferably before the checklist was, in fact, signed, so that the 2nd defendants in this case - or the defendants in this case - could properly demonstrate that they are conducting their client's case with expedition and efficiency.

5. When one looks at the nature of the proposed amendments, it is quite clear that a number of the alleged particulars are inadequate, in that they lend themselves, quite obviously, to a request for further and better particulars. This applies especially to II, III and VI, VII and VIII. The plaintiff would be entitled to know precisely what is meant by the very general pleading. But I am quite satisfied that there is clear prejudice to the plaintiff being faced with an allegation of contributory negligence for the very first time, 7 years after the accident.

6. When the Defence was settled in September 1994, one would have expected the defendants, who employed the persons concerned, to have had available to them all the information enabling them to have a defence which fully reflected their case. They had available the means of interviewing their employees; of checking records, if those were important; and more particularly, of alleging against the plaintiff any omissions that they regarded her as having made or any other matters that they wish to criticise her for.

7. It seems quite clear to me there must be prejudice to a plaintiff after this lapse of time in having to meet an allegation for the very first time, particularly where the allegations are not, in themselves, clear enough as to particulars. Memories do fade. Witnesses do become difficult to trace. It is clear one of the witnesses mentioned by the defendant in a statement is no longer available and it seems to make nonsense, to my mind, of the organisation and preparation of cases, that defendants should be allowed to make amendments of this nature at this extremely late stage. They had plenty of opportunity to do so earlier.

8. Indeed, one of the purposes of the checklist hearing is to require parties to set out specifically what the state of play is concerning the preparation of their respective cases and when a case is set down for trial, the indications are that the case is ready for trial, as far as both the parties are concerned. Although some five months is to elapse before the trial of this particular case takes place, nonetheless if I were to allow this pleading - quite apart from the prejudice which I have set out - it would open up the pleadings by reason of the need for the defendant to be more specific in the allegations he makes. I do not think it is conducive to efficient, prompt dispatch of civil litigation, that I should allow that course to be taken when prejudice to a Plaintiff is involved. Accordingly, the defendant's application is dismissed with costs to the plaintiff on a party and party basis.