NG SHUI SHAN v. KEEN BRAVE DEVELOPMENT LTD

HCPI 479/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 479 OF 2002

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D E C I S I O N

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The Application

1. In this application, the Plaintiff's solicitors ask for amendment of the Statement of Claim and leave to revise the Revised Statement of Damages. Mr. Andrew Li, Counsel for the Defendant, objected to one of the proposed amendment of the Statement of Claim, namely, the addition of paragraph 6A, which reads as follows:-

"Further or alternatively, the multiple disc prolapses at C3/4, C5/6 and C6/7 levels suffered by the Plaintiff as revealed by the MRI cervical spine performed on 24th March 2000 was caused by the Defendant's continuous negligence and breach of employment contract in failing to provide the Plaintiff with a safe system of work as particularized in paragraph 5 hereof."

2. I should also recite paragraph 5 of the Statement of Claim as referred to in the said new paragraph 6A:-

"The accident to the Plaintiff on 28 February, 2000 was caused by the negligence and breach of the terms of contract of employment of the Defendant as particularized below:-

PARTICULARS OF NEGLIGENCE AND
BREACH OF CONTRACT OF THE DEFENDANT

(a)	Requiring the Plaintiff to carry 3 large cases containing spectacle frames which was too heavy for the Plaintiff to handle alone.
(b)	Failing to provide the Plaintiff with any or any adequate tool and equipment such as ransack so as to enable the Plaintiff to carry the spectacles and to perform her duties in a safe and proper way.
(c)	Failing to devise and institute a safe and proper system of work for the Plaintiff to carry out her duties in a safe manner.
(d)	Failing to provide the Plaintiff with necessary training to handle the manual work.
(e)	Failing to give the Plaintiff any or any adequate warning of the danger of injury which may be caused by the carrying of the 3 large cases."

3. According to the Plaintiff's case, the Plaintiff was a sales executive of the Defendant. One of her duties was to visit the Defendant's customers to promote the Defendant's optical products such as spectacle frames. On 28 February 2000, when the Plaintiff was going to the shop of one of the Defendant's customers and walking pass Ma On Shan Shopping Plaza, the three large cases that she was carrying suddenly slipped off her hand. She lost her balance and fell down on the staircase. On 1 March 2000, she was admitted to the hospital because of the pains over her neck, arm and whole body. She was hospitalized for 8 days and a MRI spine performed on 24 March 2000 show that she suffered disc prolapse at C3/4, C5/6 and C6/7 levels with mild narrowing of C5/6 Intervertebral neural foramen.

The Reason for the Proposed Amendment

4. On 6 December 2001, the Defendant's medical expert, Dr. Lau Hoi Kuen ("Dr. Lau") examined the Plaintiff. In his report dated 16 February 2002, Dr. Lau opined (at Comment (2) of the report) as follows:-

"It is impossible for a single accident on 28 February 2000 to have produced disc prolapse at so many levels of her cervical spine. The disc pathology should be related to degeneration and should have existed before the accident. Even if there was no accident, it is most likely that her spinal problem will become symptomatic in the next few days."

5. I note the Plaintiff's medical expert, Dr. Johnson C. K. Lam ("Dr. Lam") shared a similar view. In point 3 of his Supplementary Medical Report dated 8 March 2003 (enclosed in the bundle for this hearing), Dr. Lam referred to a statement made in a joint report of the Plaintiff dated 25 January 2003:-

"The cause of the multiple disc prolapses: Dr. Lau is of the opinion that it was impossible for a single accident on 28 February 2000 to have produced disc prolapse at so many levels of her cervical spine. The disc pathology should be related to degeneration and should have existed before the accident. The accident, on the other hand, could have acted as the aggravating factor for the radiculopathy problem of her right upper limb. Dr. Lam holds a similar opinion that it was unlikely that the single accident would have caused disc prolapse at so many levels of her cervical spine. However, it was more likely that the symptomatic disc prolapse at C4/5 level (right) was casually related to the accident on duty."

"In other words", as Dr. Lam then stated in point 4 of his Supplementary Medical Report, "both Dr. Lau and I agreed that Madam Ng suffered from severe cervical radiculopathy as a result of the sprain injury to the neck, irrespective of the relation between the multiple disc protrusion and the sprain injury."

6. Therefore, so far as the evidence reveals to me, both parties' medical experts hold the similar view that it was unlikely that the single accident would have caused the multiple disc prolapses. This might have a bearing on the cause of the Plaintiff's injury, namely whether the accident taken place on 28 February 2000 caused the whole or only part of the Plaintiff's injury.

7. In the Plaintiff's solicitor's own words (in paragraph 8 of his Skeleton Submission), the proposed amendment is "in order to cover all eventualities", "to allege continuous neglect on the part of the Defendant in the same manner prior to the Accident which caused or contributed to the Plaintiff's injuries". Although here the Plaintiff's solicitor seems to suggest that the proposed amendment is relating to the same acts and omissions of negligence and breach of contract as particularized in paragraph 5 of the Statement of Claim as quoted above, the Defendant's solicitor admitted at the hearing that from the plain wording of the new paragraph 6A of the Statement of Claim, the alleged continuous act of negligence and breach of contract of the Defendant is confined to the Defendant's failure to provide the Plaintiff with a safe system of work.

The Defendant's Objection

8. Mr. Li objected to the proposed paragraph 6A and the consequential revision in the proposed Re-Revised Statement of Damages. He had two grounds:-

(1)	The effect of the amendment was to allow the Plaintiff to introduce a new cause of action outside the limitation period and hence deprive the Defendant a defence based on that ground.
(2)	The proposed amendment as it now stand fails to plead all the material facts to introduce a complete new cause of action so as to enable the Defendant to know what case it has to meet.

General Principles for Grant of Leave to Amend

9. Before I start considering the merits of the objection, I think it is important to remind myself of what the learned editors of Hong Kong Civil Procedure 2002 describe as "a guiding principle of cardinal importance on the question of amendment" in paragraph 20/8/6 that "generally speaking, all such amendments ought to be made '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' (see, per Jenkins L. J. in G. L. Baker Ltd v. Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216 at 1231; [1958] 3 All E.R. 540 at 546)".

10. Therefore, the Court should endeavour whenever possible to allow such amendment so that the real question in dispute can be determined. See Bowen L.J. in Copper v. Smith (1883) 26 Ch. D. 700 at 710-711 as cited in paragraph 20/8/6 of Hong Kong Civil Procedure 2002, where His Lordship observed:

"It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right".

Limitation

11. On the other hand, I cannot lose sight of the difference between allowing amendments to clarify the issues in dispute and those that provide a distinct claim to be raised for the first time. If that claim amounts a new cause of action and the time limit to commence proceedings under the Limitation Ordinance, Cap. 347 has expired, I shall have to decide whether I should exercise my discretion to grant leave to amend under Section 30 of the Limitation Ordinance or Order 20, rule 5 of the Rules of the High Court, Cap. 4.

New Course of Action?

12. The Plaintiff's solicitor argued that the proposed amendment in the new paragraph 6A of the Statement of Claim did not introduce a new cause of action. He relied on Hay v. London Brick Co Ltd [1989] 2 Lloyd's Rep 7, CA which held that "an amendment which relies on the same facts but seeks to substitute a new date on which an accident is alleged to have happened, being a date over a year after that pleaded, will be allowed, as it does not substitute a new cause of action, since the date itself is not a material part of the cause of action". If the new paragraph 6A does not amount to a new cause of action, then there will be no question of limitation.

13. It appears to me that the Hay case can be distinguished from the present case. In the Hay case, there was a mistake on the date pleaded of the accident which caused the plaintiff's injury. The plaintiff therefore applied for amendment of the statement of claim to substitute the later correct date for the earlier wrong date. The opposition of the defendants in the Hay case was also based on the limitation, contending that to allow this amendment to be made would introduce a new cause of action and if it were made by a separate writ it would have been statute-barred. The English Court of Appeal held that no new cause of action was introduced by the substitution of the date of the accident. The plaintiff in that case did not allege that there was more than one accident which caused the injury.

14. However, in the present case, the Plaintiff's proposed amendment in paragraph 6A is much more than a substitution of the date of the amendment. In a nutshell, the Plaintiff's original plea was that the Defendant's negligence and breach of contract caused the accident and the accident caused the Plaintiff's injury. The new paragraph 6A adds the plea that the Defendant's negligence and breach of contract in failing to provide a safe system of work, by itself, caused the Plaintiff's injury. This is quite clearly a new cause of action.

15. As submitted by Mr. Andrew Li, the use of the opening words "further or alternatively" for paragraph 6A indicates that the plea in this new paragraph is either in addition to or an alternative to the original plea. The Plaintiff is now trying to say to the Defendant: not only that your negligence has led to the accident, your negligence has also directly (and either partly or wholly) led to my injury.

16. I therefore hold that the amendment proposed in paragraph 6A amounts to introducing a new cause of action.

17. I also accept Mr. Andrew Li's submission that as it is not in dispute that the last day of her actual employment with the Defendant was on 29 February 2000, any negligence and/or breach of employment contract on the Defendant's part must have taken place before 29 February 2000. Hence if the Plaintiff were to issue a new writ for the new plea in paragraph 6A, three years have lapsed and she has now been time-barred by section 27 of the Limitation Ordinance.

Discretion to Allow the Amendment

18. There are two ways for a plaintiff to seek amendment of his/her statement of claim to add a new cause of action after the expiry of the time limit in the Limitation Ordinance. The first way is to ask the Court to invoke its power under section 30 of the Limitation Ordinance to direct that the 3-year limitation period shall not apply to this action or this new cause of action. This involves equitable consideration, having regard to all the circumstances of the case and in particular to the factors set out in section 30(3) of the Limitation Ordinance, such as (a) the length of, and the reasons for, the delay on the plaintiff, (b) the effect on the evidence to be adduced by both parties, (c) the conduct of the defendant such as the degree of his/her cooperation in responding to the plaintiff's request for information or inspection, (d) the duration of any disability of the plaintiff arising after the accrual of the new cause of action, (e) the conduct of the plaintiff after knowing the possibility of the new cause of action and (f) the steps taken by the plaintiff in seeking medical, legal or other expert advice and the nature of such advice. See paragraph G1/30/7, Hong Kong Civil Procedure 2002.

19. Secondly, a plaintiff may apply under Order 20, rule 5 of the Rules of the High Court. In granting leave to amend, the Court must be satisfied that:-

(1)	it is just to do so (Order 20, rule 5(2)); and
(2)	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 in the action by the plaintiff (Order 20, rule 5(5)).

20. The second way above stems from section 35 of the Limitation Ordinance. Section 35(5) authorizes that rules of court may provide for allowing a new claim to be made in the course of any action after the expiry of any time limit under the Limitation Ordinance but only if conditions specified in section 35(6) are satisfied, and subject to any further restrictions the rules may impose. The condition set out in section 35(6)(a) for addition of new cause of action basically resembles the said Order 20, rule 5(5).

21. During the hearing, Mr. Andrew Li submitted that in considering whether to allow the amendment, the requirements in Section 30 of the Limitation Ordinance and Order 20, rule 5(5) must both be satisfied. I disagree. This is quite plain from the wording of Section 35(3) of the Limitation Ordinance, which reads:-

"Except as provided by section 30 or by rules of court, the court shall not allow a new claim ..." (emphasis underlined).

And it is explained in paragraph 20/8/7 of Hong Kong Civil Procedure 2002 that:-

"The Act [sic] is imperative in its terms that the court must not allow such claim to be made in the course of any action after the expiry of any time limit under the Ordinance which would affect a new action brought to enforce the claim, except as provided by s.30 of the Ordinance which provides a discretionary power or to extend the time-limits in respect of actions for damages for personal injuries or death or as provided by rules of court." (emphasis underlined)

22. In relation to Section 30, the Plaintiff did not file any evidence. Hence it is not quite possible for me to consider all circumstances including the factors mentioned above in section 30(3) and to exercise my discretion to grant the amendment under that section.

23. In relation to Order 20, rule 5, I have to consider "whether 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 in the action by the party applying for leave to make the amendment". In other words, whether the factual matrix in the new cause of action is the same or substantially overlapping with the factual matrix of the existing cause of action.

24. The new paragraph 6A alleges that the Defendant has failed "to provide the Plaintiff with a safe system of work as particularized in paragraph 5". Particular (c) of paragraph 5 refers to the Defendant's failure "to devise and institute a safe and proper system of work for the Plaintiff to carry out her duties in a safe manner". The wording of paragraph 6A is not so clear as to whether the new plea also includes reference to other particulars in paragraph 5. But it is reasonably clear that the factual matrix to be relied on in establishing the new cause of action in paragraph 6A is either the same or substantially the same as that in particular (c) of paragraph 5.

25. Mr. Andrew Li complained that the Defendant did not even know what facts the Plaintiff is relying on in the new paragraph 6A. In my view, although paragraph 6A could have been pleaded in a clearer manner (e.g. to spell out exactly as to which items of particulars in paragraph 5 that the Plaintiff is relying on) and better particulars could have been provided (e.g. dates or period of the "continuous" negligence and breach of contract and the load that the Plaintiff was required to carry and/or had been carrying during the alleged period before the accident, etc.), the material facts of the new cause of action are basically there. And these material facts, as explained in paragraph 24 above, are basically the same as the material facts of the existing cause of action.

26. In this connection, I note the observation of Lord Justice Stephenson in the Hay case, at page 10 of the judgment, where His Lordship referred to facts like dates and place of the accident which the plaintiff would in the ordinary course seek to prove:-

"It is, of course, essential that the defendants should know those facts in order that they should be able to meet the case which the plaintiff alleges and a cause of action has to be particularized so as not to take the other party by surprise. If it is not particularized adequately it may be dismissed, but dismissed because orders requiring it to be particularized adequately are not obeyed. It cannot in the ordinary way, and in this statement of claim, in my judgment, certainly could not be struck out or dismissed if no date had been pleaded for the happening of the accident."

27. Since I have found material facts have been pleaded in the new paragraph 6A, although particulars on circumstances of the Plaintiff's daily working condition might well be called for, I do not think this should be a ground to disallow the amendment.

28. I have no doubt that the Plaintiff's application was prompted by the common view expressed by both parties' medical experts that it was unlikely that the single accident taken place on 28 February 2003 would have caused the multiple disc prolapses. The Defendant's medical expert opined that the disc pathology should have existed before the accident, which on the other hand, could have acted as the aggravating factor for the radiculopathy problem of the Plaintiff's right upper limb. The Plaintiff asserted that if the accident did not wholly contribute to the multiple disc prolapses, it had to be the Defendant's failure to provide the Plaintiff safe system of work which had contributed the rest. In my view, this is part and partial of the real issue in controversy that should be allowed to be canvassed at the trial under the general principle of amendment as explained above and it will be unjust for the Court to bar the Plaintiff from raising this claim and adducing evidence thereof.

29. On Mr. Li's second ground of objection, as I mentioned above, I do not think that the Plaintiff has raised a new case which the Defendant do not know what to meet. The Plaintiff has pleaded her manner of work in the original Statement of Claim. Now in the new further or alternative case the Plaintiff relies on no more than the same particular (c) of the paragraph 5 of the original Statement of Claim. This is very different from Poon Hau Hei v. Hsin Chong Construction Co. Ltd. & others [2003] 2 HKLRD 56, where the first instance judgment was found on a new version of facts which had not been pleaded at all and the Court of Appeal held otherwise that the new version of facts should have been pleaded in order to enable the Court to have fully before it all the facts and evidence and to arrive at a considered view of the Defendant's liability. Here, after the new cause of action has been pleaded, the Defendant may ask for further and better particulars and if the Plaintiff fails to provide adequate and proper particulars in compliance with any court orders, the Plaintiff may apply for striking-out of the Plaintiff's new claim. However, following the reasoning of Lord Justice Stephenson in the Hay case in the passage cited above, which I respectfully adopt, I should not reject the amendment in contemplation of such contingencies. Hence, the Defendant's second ground of objection is rejected.

30. I should also mention that other than the second ground of objection, which in Mr. Li's submission could amount to a prejudice to the Defendant, the Defendant did not raise the question of prejudice.

31. In the premises, I am satisfied that the condition in Section 35(6)(a) of the Limitation Ordinance and Order 29, rule 5(5) of the Rules of the High Court has been met and it is just for me to exercise the discretion given to the Court under Order 29, rule 5 to allow the Plaintiff to amend her Statement of Claim.

32. Accordingly, I make the following order:-

(1)	The Plaintiff be granted leave to amend the Statement of Claim as per the draft Amended Statement of Claim annexed to the Plaintiff's Summons filed on 22nd July 2003.
(2)	The Plaintiff be granted leave to revise the Revised Statement of Damages as per the draft Re-revised Statement of Damages annexed to the Plaintiff's Summons filed on 22nd July 2003.
(3)	Service of the Amended Statement of Claim and the Re-revised Statement of Damages be dispensed with.

33. Regarding the question on costs, I note the usual order for case where an application for leave to amend has been resisted but is allowed as set out in Lessy SARL v. Pacific Star Development Ltd & Another [1996] 2 H.K.C. 326 and cited in Hong Kong Civil Procedure 2002, paragraph 20/8/51. Although at the end the Plaintiff is successful in obtaining the leave to amend, Mr. Li for the Defendant has succeeded in most of the arguments at the hearing, save on the part where I decided to exercise the discretion to allow the amendment. As such, I do not think I should give the Plaintiff costs of the hearing as per the usual order. Instead, I am of the view that no order as to costs of the hearing will be just. Accordingly, I make an order nisi that :

(1)	Costs of this application and costs of and occasioned by the amendment be to the Defendant in any event.
(2)	There be no order as to costs of the hearing on 14 October 2003.