CHAN KAM SAU v. THE KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER

HCPI 894/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 894 OF 2006

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J U D G M E N T

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1.  This is an appeal from the Order of Master B Kwan made on 16 May 2007 on a question of discovery of documents.  The subject matter of these proceedings arises out of an accident which occurred on 27 December 2003 when there was a collision between a goods vehicle driven by the Plaintiff and a public bus owned by the 1^st Defendant and driven by the 2^nd Defendant.

2.  The Writ of Summons was issued on the 18 October 2006 and, on 15 November 2006, the parties caused a Consent Order to be made by the Court whereby judgment on liability was entered against the 1^st Defendant and 2^nd Defendant in favour of the Plaintiff with damages to be assessed.

3.  At the time of the accident, the Plaintiff was a driver of goods vehicles employed by a company by the name of Yee Hing Construction Transportation Company Limited (“Yee Hing”).

4.  On 18 October 2006, the Plaintiff filed a Statement of Damages.  In paragraph 2 of that Statement of Damages, the Plaintiff has claimed “loss of earnings” and one of the items claimed is his loss of monthly income of HK$12,510.00 which he used to receive when he was employed by Yee Hing.

5.  Under paragraph 3 of the Statement of Damages, the Plaintiff has claimed “Loss of Earning Capacity”.  So it is quite clear that in these proceedings the past and present earnings and earning capacity of the Plaintiff are very much matters in issue between the parties.

6.  On 25 January 2007, the Plaintiff filed his List of Documents. Item 20 of that List refers to copies of cheques for salaries and daily wage records of the Plaintiff (various).

7.  On 8 March 2007, there was a Checklist Review hearing before Master B Kwan.  On that occasion, Master B Kwan adjourned 2 items before her to another day for argument between the parties.  The 2 items related to the Plaintiff’s claim against his former employer Yee Hing for employees’ compensation in the District Court under Case No. DCEC No. 1361 of 2005 (“EC 1361”).

8.  On 4 May 2007, the Plaintiff filed a Supplemental List of Documents disclosing 7 items or categories of documents all of which are documents in EC 1361.

9.  The next hearing before Master B Kwan took place on 16 May 2007 when she dealt with the 2 items which she had adjourned from the earlier hearing.

10.  The Order made by Master B Kwan on 16 May 2007 (“Master B Kwan’s Order) consists of 3 paragraphs, paragraph 1 reads:

“The Plaintiff do within 14 days from the date hereof, i.e. on or before 30 May 2007, file and serve an affidavit stating whether the documents referred to in paragraph 2(a) of the Order on Checklist Review dated 8 March 2007 and which of them are or is or have or has at any time been in his possession, custody or power, and if the same or any of them, having at any time been, be not now in his possession, custody or power, stating when he parted therewith and what has become thereof.”

11.  Paragraph 2 reads:

“The Plaintiff do within 14 days from the date hereof, i.e. on or before 30 May 2007, file and serve a further and better List of Documents pursuant to Order 24, Rule 3, Rules of High Court, disclosing all documents in relation to the Plaintiff’s employees’ compensation claim arising out of the accident (DCEC No. 1361 of 2005).”

12.  The third paragraph refers to the question of costs.

13.  On 29 May 2007, the Plaintiff filed his 2^nd affirmation in compliance with paragraph 1 of Master B Kwan’s Order.  On that same day, 29 May 2007, the Plaintiff also filed a Notice of Appeal to Judge in Chambers against paragraph 2 of Master B Kwan’s Order.  This is the appeal which I have to deal with today. 

14.  In support of the Plaintiff’s appeal, Mr Tso on behalf of the Plaintiff has put forward a number of grounds.  First of all, he said that the application for discovery made by the Defendants before Master B Kwan was pre-mature because the employees’ compensation application by the Plaintiff against Yee Hing was still on going and, therefore, there would necessarily be more documents coming into existence in that application.  Mr Tso also said that the Defendants have already got all the documents in the employees’ compensation application which are necessary and relevant to the present proceedings.  The Plaintiff has also produced a draft Further and Better List of Documents of the Plaintiff listing a large number of documents which have come into existence in relation to the employees’ compensation application.

15.  Mr Tso further submitted that as a result of the possibility of more documents coming into existence in the employees’ compensation application, the Plaintiff has had genuine difficulty in making the discovery that has been ordered by Master B Kwan.

16.  Ms Tsang on behalf of the Defendants has indicated to the Court that the items of documents disclosed in the draft Further and Better List of Documents by the Plaintiff would constitute sufficient disclosure or discovery in compliance with the paragraph in Master B Kwan’s Order under appeal.

17.  There is no doubt that the central issues in the present case are the past and present earnings and the alleged loss of earning capacity of the Plaintiff.

18.  In the first written submission of Mr Tso, in paragraph 8, he sets out what the common grounds between the parties are.  They are as follows:

(a)     The Defendants are entitled to have discovery of the Plaintiff’s EC documents;

(b)    There are in the Plaintiff’s possession, custody or power EC document other than those already disclosed;

(c)     The Plaintiff will have to give credit for the employees’ compensation he received when calculating his common law damages.

19.  Order 24 rule 3 of the RHC reads as follows:

“Subject to the provisions of this rule and of the rules 4 and 8, the Court may order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause of matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party.”

20.  Rule 8 of the same Order reads as follows:

“On the hearing of an application for an order under rule 3, 7 or 7A the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

21.  In my judgment, the discovery ordered by Master B Kwan in paragraph 2 of her Order dated 16 May 2007 is clearly relevant and necessary to the present proceedings.  When looked at objectively, it must be of relevance and necessity for the Defendants to have sight of the documents in the employees’ compensation application in order to assess the genuineness of the Plaintiff’s claim in the present case in respect of quantum of damages.  All that are required to be disclosed by the Plaintiff under paragraph 2 of Master B Kwan’s Order are the documents which have been filed in Court and all the documents which have been disclosed by the parties in that application.  The discovery that has been ordered will produce no difficulty or hardship on the Plaintiff.  In fact the Plaintiff has been able to produce before me, the draft Further and Better List of Documents of the Plaintiff which Ms Tsang has indicated would be sufficient for the purpose of compliance with that paragraph of Master B Kwan’s Order.

22.  In the circumstances, the Plaintiff’s appeal is dismissed with costs to the Defendant in any event.  There will be taxation for the Plaintiff’s costs in accordance with the Legal Aid Regulations.