MA MAN CHUN and MA MAN KAM, the Administratrices of the Estate of FOCK KAM CHAU, Deceased v. FU KA ENGINEERING & CONSTRUCTION LTD AND OTHERS

HCPI 272/2020

[2025] HKCFI 5147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 272 OF 2020

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BETWEEN

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DECISION

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1.  Trial of the liability issue on the Running List was warned, but vacated by the trial judge. In directing the case to revert to further case management, the learned trial judge (“the Learned Judge”) gave leave to the plaintiffs to apply to amend their pleading. The application has since been taken out and heard before this court. Time was then given to the parties for further submissions, which unfortunately did not yield additional assistance. This is the decision on the plaintiffs’ application.

BACKGROUND

2.  The fatal industrial accident happened on 10 July 2017 in an underground hand dug tunnel under construction (“the Tunnel”) at the junction of Gillies Avenue South and Baker Street in Hunghom (“the Site”). The Tunnel was constructed for the purpose of laying underground electric cables for CLP Power Hong Kong Limited (“CLP”). The Tunnel being dug between 2 excavation pits was about 90 metres long with cross section of about 1.4 x 1.4 metres, and was slightly inclined upwards from Pit 1 to Pit 2. The excavation face (“the Excavation Face”) was about 3 to 4 metres below the ground surface.

3.  CLP subcontracted the construction of the Tunnel to the 2^nd defendant (“Kum Shing”). Kum Shing in turn subcontracted the part of tunnel digging work to Cheer Top Civil Engineering Limited (“Cheer Top”) while the part of design and site supervision work was subcontracted to the 3^rd defendant (“Fugro”). Cheer Top further subcontracted the tunnel digging work to the 1^st defendant (“Fu Ka”). At the time, the Deceased was working as a tunnel worker under the employ of Fu Ka.

4.  Including the Deceased, 3 tunnel workers lost their lives on the day in question. In the course of work inside the Tunnel, the excavation area was flooded by a sudden inflow of large amount of foul water and hydrogen sulphide (“H₂S”). The Deceased was found unconscious, submersed in water, and subsequently certified dead by drowning and the adverse effect of H₂S.

5.  The accident led to the prosecution of, amongst other parties, the defendants for breach of various statutory duties. Insofar as those relating to compliance with statutory requirements and ensuring a safe work system at the material time were concerned, the defendants were acquitted after trial in 2020.

6.  The Deceased was survived by his wife and his then 3-year-old son. Letters of administration of the estate of the Deceased was granted to the plaintiffs in 2019.

7.  In June 2021, the plaintiffs commenced the present action on behalf of the dependents and the estate of the Deceased pursuant to the Fatal Accidents Ordinance, Cap 22 and the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 respectively. The representatives of the other 2 deceased workers have also commenced their actions claiming damages in the High Court and the District Court respectively.

8.  In the present action, the statement of claim was filed on 10 June 2021 and the pleadings were closed in September 2021. Upon the joint application of the parties, the master directed in December 2023 that the liability issue in the present case should be tried together with that in the other action commenced on behalf of another deceased worker in the High Court as mentioned above. Leave was given to set down these cases for trial of the liability issue on the Running List with 3 days reserved.

9.  The action commenced on behalf of the other deceased worker on this level of court was settled before the trial, which was vacated as mentioned. That commenced on behalf of the remaining deceased worker in the District Court has also been discontinued. Hence the claim by the plaintiffs in the present action remaining.

10.  When the case was warned for trial on 16 April 2024, the learned Deputy High Court Judge (as the Learned Judge then was) saw issues, for which the parties were heard in chambers before the trial commenced on the first day. At the end of it, she vacated the trial. She explained her decision in [2024] HKCFI 1147.

11.  One of the reasons for vacating the trial was the state of the evidence. During case management by the master, the parties consented to adducing various documents including the accident investigation report, statements of opinions and expert reports, most of which were in fact adduced by the prosecution and the defendants in the criminal proceedings mentioned above. The parties agreed that subject to the direction of the trial judge, the makers of those documents would not be called to testify at the trial.

12.  After the application to set down the case for trial, the plaintiffs served notice in respect of a whole list of documents as hearsay evidence. They included the documents mentioned above as well as interview records and statements of various individuals involved in the accident investigation and the further documents arising out of the criminal proceedings.

13.  The evidence mentioned above accounted for some 30 box files at the time of the trial, of which 17 to 18 contained the statements given by some 70 individuals involved in the accident investigation mentioned above. The difficulty in expecting the Learned Judge to have to swim across such voluminous documentary evidence to identify the relevant parts when warned before her for trial is understandable.

14.  The plaintiffs intended to call no witness. When the case came on for trial, the defendants apparently decided to call 1 witness who was from Kum Shing.

15.  By way of opening submission, the defendants took issue that some of the contentions advanced by the plaintiffs in their opening submission were not accommodated by their pleadings. It is not clear to me that such issue was taken when the defendants consented to the setting down of the case for trial on the basis of the existing pleadings and the state of the evidence. The Learned Judge apparently took a similar view about the pleading deficiency, which she thought needed sorting out to enable an orderly trial. Counsel for the plaintiffs acknowledged that observation. Hence the other reason for the Learned Judge vacating the trial.

16.  The Learned Judge made an unless order limiting the time within which the plaintiffs might take out an application to amend the statement of claim, which should be returned before the Personal Injuries (“PI”) Judge. In any event, the parties were directed to seek further case management directions before the case may come on for trial again.

17.  On 14 May 2024, the plaintiffs filed their summons for leave to amend the statement of claim as per draft annexed to the summons. As directed by the Learned Judge, they also filed an affidavit setting out references to the evidence on which the proposed amendments are based. This court gave directions in respect of further affidavits and substantive argument later in the same month. This application was eventually heard before this court as the PI Judge in October 2024.

18.  Substantial part of the evidence mentioned above was adduced, which also evolved and was tested during the oral evidence at the criminal proceedings. Over 30 witnesses, including the experts, testified at the 15-day criminal trial. It was the trial Magistrate’s evaluation of the evidence and submissions by the prosecution and defence[1] then which led to his findings and verdict. Subsequently there was the review application before the Magistrate. The transcript of the criminal proceedings accounted for 4 to 5 box files which the defendants, in view of the verdict in their favour, heavily rely on. However, the findings and verdict of the trial Magistrate should not bind the plaintiffs or the court in the present case. The Learned Judge said so when vacating the trial. So do I for the present purpose.

19.  For the purpose of the present application, this court directed the parties to assist by submitting their considered joint statement of the agreed and non-agreed relevant facts with references to the relevant evidence, taking into account what transpired in the criminal proceedings. As requested by the parties, time was given up to the end of January 2025 for them to submit the joint statement.

20.  The subsequent correspondence from the parties to this court demonstrated that the above exercise did not go well. Instead of allowing such disagreement to escalate into a satellite dispute, this court directed at the end of February 2025 that the plaintiff’s application for leave to amend would be considered on the basis of the materials so far placed before this court. Effectively this court is not materially assisted by the joint statement from the parties in its draft form.

21.  The opposition to the present application is nothing short of strenuous.

THE EXISTING STATEMENT OF CLAIM

22.  The statement of claim predated the related criminal proceedings mentioned above. According to it, the accident happened in the following manner.

23.  At the time of the accident, it was a team of 4 workers. The Deceased was responsible for digging work at the Excavation Face while a worker was responsible for shovelling the excavated soil into a mud bucket on a cart. Another worker (“Fong”) was responsible for transporting the cart to the bottom of Pit 1. The remaining worker was responsible for welding the I-beam support inside the Tunnel. The team had worked as such in the Tunnel in the morning. Upon resuming work in the Tunnel after lunch, they noticed water seepage at the Excavation Face. Fong therefore returned to the ground level to prepare for grouting, which was the standard method to stop water seepage.

24.  Subsequently, repeated attempts on the ground to get in touch with the other 3 workers, including the Deceased, inside the Tunnel through the intercom were in vain. At the same time, the foreman noticed rising water level inside Pit 1 and the bottom of Pit 1 being submerged under water. He then attended to the operation of the pumps. The foreman then instructed a worker to enter the pit to find out the situation inside the Tunnel. By then, the water level inside the Tunnel had reached about 70-80 centimetres. They found the Deceased some 20-30 metres from the bottom of Pit 1, unconscious, submersed and facing down in the water. The Deceased was brought to the ground, but was certified dead at the hospital. As mentioned, cause of death was drowning with adverse effect of H₂S.

25.  The pleaded case of the plaintiffs is that the defendants have been in breach of their duties in the following manners respectively:

Negligence and breach of common duty of care under the Occupiers’ Liability Ordinance Cap 314 (“OLO”) on the part of the defendants

(1) failing to provide the Deceased with a safe place and safe system of work;

(2) failing to provide safety equipment including but not limited to approved breathing apparatus;

(3) failing to install continuous gas monitoring equipment to warn of the presence of hazardous gases including but not limited to H₂S;

(4) failing to install audible hazardous gas detector warning equipment inside the Tunnel to warn the workers of the presence of hazardous gases including but not limited to H₂S;

(5) failing to continuously monitor the efficiency of the water pumping equipment once it was noticed that there was water seepage into the Tunnel;

(6) failing to keep the water level inside the Tunnel below a level which had the risk of drowning;

(7) failing to install video equipment inside the Tunnel in order that workers on the ground level could continuously monitor the workers inside the Tunnel so as to be able to rescue the workers from inside the Tunnel if they were overcome by hazardous gases and/or from rising water due to water seepage;

(8) failing to rescue the workers including the Deceased without delay once there was no response from the workers inside the Tunnel on the intercom;

(9) failing to warn the Deceased of the danger of working inside the Tunnel of the risk of inhaling hazardous gases including but not limited to H₂S;

(10) exposing the Deceased risk of injury they knew or ought to have known;

(11) failing to take any or any reasonable care to see that the Deceased would be reasonably safe in using the Tunnel as lawful visitor;

(12) failing to conduct any or any sufficient risk assessment in respect and/or supervision to the Deceased; and

(13) in all circumstances, failing to take all reasonable steps to ensure the safety of the Deceased.

Breach of statutory duty under the Factories and Industrial Undertakings (Confined Space) Regulations, Cap 59AE (“the Regulations”) on the part of the defendants

(1) failing to appoint a competent person to carry out an assessment of the working conditions in a confined space and make recommendations on measures to be taken in relation to safety and health of workers while working in that space, contrary to section 5(1);

(2) failing to ensure that no worker entered a confined space within the industrial undertaking for the first time until the proprietor had received in respect of such confined space a risk assessment report, contrary to section 6(1)(a)(i) of the Regulations.

Breach of the employer’s duty under the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”) on the part of Fu Ka

(1) failing to provide and maintain plants and system of work that were, so far as reasonably practicable, safe and without risks to the health of the Deceased, contrary to section 6(2)(a);

(2) failing to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health at work of the Deceased, contrary to section 6(2)(c);

(3) failing to maintain the workplace in a condition that was, so far as reasonably practicable, safe and without risks to the health of the Deceased, contrary to section 6(2)(d);

(4) failing to provide or maintain a working environment for the Deceased that was, so far as reasonably practicable, safe and without risks to his health, contrary to section 6(2)(e).

26.  Res ipsa loquitur is also pleaded.

THE DEFENCE

27.  The defence runs like this.

(1) CLP had engaged an independent checking engineer (“ICE”) to monitor the construction work and safety at the Site.

(2) Kum Shing as the main contractor subcontracted the design and geotechnical supervision work in relation to the structural integrity of the Tunnel to Fugro. Fugro was not contracted to provide supervision work as contended by the plaintiffs.

(3) The detailed design submitted by Kum Shing and Fugro was approved by the ICE. Kum Shing subcontracted the construction of the Tunnel to Cheer Top, which further sub-contracted the same to Fu Ka, while Kum Shing and Fu Ka, particularly the former, were actively and diligently involved in the following related works:

(a) preparing adequate documents in relation to work methods and safety, and submitting the same for approval, if necessary;

(b) assigning competent persons to conduct proper and adequate risk assessment for the work on the Site after thoroughly considering the risks involved, but risk of inflow of H₂S and large amount of accumulated underground foul water was unforeseeable;

(c) contacting the police and the Highways Department for locating an appropriate site for the construction work, and obtaining excavation permit for constructing the Tunnel;

(d) making proper investigations into the soil nature and underground water utilities prior to the commencement of the construction work;

(e) communicating with and convening meetings for CLP, ICE and all subcontractors in relation to the construction work and general safety matters prior to and after the commencement of the work at the Site;

(f) devising appropriate safety guidelines and safety mechanism for all workers;

(g) providing workers and foremen with suitable and appropriate working tools and safety equipment;

(h) ensuring workers, foremen and working staff from all subcontractors to be aware of and familiar with the safety guidelines and the risks involved in the construction work;

(i) providing adequate and sufficient trainings and instructions for workers and foremen;

(j) supervising site construction work in that a site engineer from Kum Shing was specifically assigned to supervise on site;

(k) reporting to the ICE and/or other relevant parties in relation to the daily construction work and progress;

(l) providing a safe place and system of work;

(m) other substantial tasks.

(4) The tunnelling work commenced after meetings of the representatives of all the relevant parties in about March 2017 regarding the work procedure, risk assessment and work safety. Instructions and safety procedures were clearly and adequately communicated.

(5) The inflow of water and H₂S on the date of accident was sudden and unforeseeable.

(6) Due to the accident, the defendants were prosecuted for breach of the Regulations but acquitted after trial. The trial Magistrate found that:

(a) the inflow of large amount of accumulated underground foul water and H₂S, which caused the accident, was unknown, unforeseen and not reasonably foreseeable;

(b) a safe system of work had been provided by the defendants;

(c) sufficient information, instruction, training and supervision were provided by the defendants; and

(d) there was no significant change in the condition of the confined space at all material times.

(7) By the time of the accident, the digging of the Tunnel had been completed up to about 75 metres.

(8) The sudden inflow of large amount of underground foul water and H₂S on the day of the accident, as mentioned above, was unknown and unforeseeable risk to the defendants at all material times. Nor was the risk of hazardous gas and injury.

(9) In any event, the defendants had properly discharged their duties as pleaded above. In particular:

(a) a safe system and place of work was provided;

(b) appropriate safety equipment including approved breathing apparatus was provided;

(c) continuous gas monitoring was in operation;

(d) gas detectors was installed on site;

(e) water pumps on site were functioning properly;

(f) whilst seepage into the Tunnel, which was below sea level, was a natural phenomenon, the water level of the Tunnel was constantly monitored and kept below the set standard prior to the accident;

(g) methods deployed including intercom communication were sufficient for maintaining a safe system;

(h) proper rescue mechanism was devised, and firemen arrived at the Site 3 minutes after the workers and foremen on site immediately contacted the fire station;

(i) risk assessment for the Site was proper and adequate while training and supervisions were sufficient;

(10) Kum Shing had appointed a competent person to carry out a risk assessment report prior to the workers entering the confined space.

THE REPLY

28.  The reply was filed when the prosecution was then seeking review of the verdict of acquittal in the criminal proceedings. So it was pleaded too. Other issues were joined. Amongst others, the plaintiffs dispute that the inflow of foul water and H₂S was unforeseeable as alleged by the defendants. Such risk is said to have been foreseeable by reason of an incident in June 2017 where a cracked 375mm foul water pipe near Pit 2 was reported to the Drainage Services Department (“DSD”). The presence of a large amount of stagnant foul water underground and near the soil wall of the Tunnel as well as the escape of foul water and H₂S into the Tunnel is said to be reasonably foreseeable. Notwithstanding that, no portable continuous hazardous gas monitoring equipment and emergency gas masks was provided.

THE PLAINTIFFS’ OPENING SUBMISSION BEFORE THE LEARNED JUDGE

29.  The Learned Judge observed that the statement of claim was deficient in accommodating the case advanced in the plaintiffs’ opening submission. She pointed out 3 aspects: (i) cause of the inflow of the foul water and H₂S; (ii) source of the foul water and H₂S; and (iii) incidents which would arguably make the risk of such inflow reasonably foreseeable prior to the accident.

30.  Regarding the cause of the inflow of the foul water and H₂S, the plaintiffs in their opening submission referred to the evidence and advanced the following contentions:

(1) Reference was made to the evidence of report of a broken 375mm diameter foul water drain pipe near the tunnel face in June 2017. As mentioned, this is pleaded in the reply. However, the plaintiffs also referred to broken foul water pipes, giving the impression that it might not be just the 375mm foul water pipe. Indeed, reference was made to the evidence of discovery by the defendants of a 600mm foul water pipe near Pit 2 and their report of the same to the DSD. The DSD subsequently inspected the manholes concerning the 600mm foul water pipe, and found that Pit 2 was submerged with clean water instead of foul water.

(2) In any event, the plaintiffs contended that it was likely that the stagnant foul water, which produced H₂S, was trapped between the silty clay soil and the road pavement slab. Grouting was carried out with a view to stopping the seepage detected at the Excavation Face immediately prior to the accident. The likelihood of the grouting pipe being driven into and thus damaging the soil wall separating the pool of stagnant water and the Tunnel is suggested. This allegedly caused the sudden inflow of the foul water with the H₂S.

28.  With reference to the daily reports of the Site between 7 June and 10 July 2017, the plaintiffs contend that the risk of inflow of water was reasonably foreseeable prior to the accident. This is premised on the state of knowledge on the part of the defendants at the time as follows:

(1) The Site was in an area near the water table where there were underground water and leaking utilities. The plans and drawings available revealed drainage and other utilities but not underground water.

(2) Prior to the accident, the work at Pit 2 had been suspended due to unexpected ingress of foul water with bad smell. There was suspicion about a cracked 375mm foul water pipe near Pit 2. Report was made to the DSD. The plans also revealed a 600mm foul water sewer near Pit 2. The DSD inspected the upstream and downstream manholes concerning the 600mm foul water sewer. Eventually, DSD found that Pit 2 was submerged with clean water, but not foul water. The source of the foul water was unknown.

(3) There were at least 2 further episodes of sewage seepage at Pit 2 since June 2017, with the second one more serious than the first one and each one lasting for a few days. Grouting had to be done to stop seepage on 7 and 8 July 2017. Despite that, there was still water seepage at the Excavation Face on 10 July 2017 immediately prior to the accident.

29.  The plaintiffs argued in their opening submission that where there was underground source of water such as from leaking utilities or voids underground as well as prior seepage of foul water known by the proprietor, the risk of inflow of such leakage water with release of H₂S should be reasonably foreseeable.

30.  The plaintiffs acknowledged the contrary contentions and evidence relied on by the defendants in respect of the above issues. However, they argued in their opening submission that as a matter of law, it was not necessary for the precise concatenation of the circumstances to be envisaged, if the consequence is one that was within the general sphere of contemplation and not an entirely different kind which no one can anticipate. Therefore, so long as there was a real risk of inflow of foul water from some nearby underground source, it is not necessary for the plaintiffs to identify the precise source of the water.

31.  As mentioned, the defendants pleaded that the condition in the confined space had not significantly changed. The plaintiffs disagreed, and argued that the condition since June 2017 had significantly changed, rendering the risk assessment conducted and the associated work arrangements made by the defendants back in March 2017 no longer valid. Hence the need for reassessment before allowing the workers to enter the Tunnel to work and/or doing so without appropriate safety equipment such as the specific types of gas detectors and breathing apparatus alleged. On the same basis, reliance is also placed on section 5(4) of the Regulations and the Code of Practice in accordance with the Guidance Notes on Safety and Health of Hand-dug Tunnelling Work.

THE APPROACH

32.  In view of the direction of the Learned Judge relating to the application for leave to amend the statement of claim then to be taken out, the state of the evidence before this court and the manner in which the application was argued, I find it necessary to state the approach for the present purpose.

33.  The amendment of pleading expected of the plaintiffs essentially serves to ensure the existence of proper pleading to accommodate their case as advanced in their then opening submission, and thus founding the relevance of the current evidence to be relied on. In her order, the Learned Judge defined the ambit of the amendment as that “to reflect [the plaintiffs’] case as disclosed in their opening submissions”.

34.  The Learned Judge also directed the plaintiffs to file an affidavit setting out the evidence which would support their amendments. Such direction, in my view, should be understood with caution.

35.  The plaintiffs must have their basis for pleading a contention, which they will verify by statement of truth. For that, they rely on the evidence arising out of the accident investigation and the expert evidence. However, they do not have to justify the amendments by demonstrating at the pleading stage that the evidence, as they understand and seek to draw inference from, will be accepted by the court in the present action in substantiation of the veracity of the contentions. The defendants would be quite entitled to dispute them according to the evidence, including the findings in the criminal proceedings. Such as now pleaded will become issues to be adjudicated by the court at trial. The direction of the Learned Judge, properly understood, does not change that.

36.  This court approaches the application essentially by asking whether the amendments are contentions based on facts either known (and therefore undisputed) or evidence (albeit subject to understanding or interpretation, which is disputable). Only if the contention clearly falls foul of either cover, or fails the specific challenge on any of the grounds put forward by the defendants and discussed below, would its introduction be denied.

37.  One should also note that whilst arguing against the proposed amendments, the defendants do not seek to argue whether the contentions in the existing statement of claim are sustainable with reference to the current state of evidence.

38.  Therefore, the consideration of whether amendments should be allowed in accordance with the general principles, factoring in the underlying objectives of O1A of the Rules of High Court, Cap 4A referred to by the defendants should nevertheless be applied to the circumstances of the present case against the background of the present application mentioned above.

THE DRAFT AMENDED STATEMENT OF CLAIM

39.  Unless otherwise specified, references below are those to the paragraphs of the draft amended statement of claim.

40.  The proposed amendments to §1(a) and (b) are cosmetic.

41.  §2 relates to the background, and (h) to (r) are now added, namely:

(1) In the risk assessment carried out on 16 March 2017, the safety officer of Kum Shing made no recommendation in respect of whether or not portable breathing apparatus and audible warning device should be provided to the tunnel workers (§2(h)).

(2) The plan was to dig the Tunnel from Pit 1 to reach 75 metres when digging would begin from Pit 2 towards Pit 1 (§2(k)).

(3) The digging from Pit 1 commenced on 29 March 2017 (§2(i)).

(4) The digging of Pit 2 commenced in early June 2017, and it was dug to 3 metres deep (§2(j)).

(5) On 7 June 2017, there was ingress of foul water with bad smell at Pit 2 where there was a 600mm diameter sewage pipe (§2(l)).

(6) After 7 June 2017, work at Pit 2 was suspended but the excavation from Pit 1 towards Pit 2 continued (§2(n)).

(7) According to the daily reports from 7 June to 10 July 2017, the work at Pit 2 was suspended due to the unexpected ingress of foul water with bad smell, but the source of the foul water was not known (§2(m)).

(8) On 7 and 8 July 2017, grouting was carried out to stop to seepage on the Excavation Face (§2(q)).

(9) By reason of the discovery of foul water with bad smell at Pit 2 in June 2017, the risk assessment carried out in March 2017 became no longer valid, but no further risk assessment was conducted (§2(o) and (p)).

(10) In the vicinity of the excavation of the Tunnel, foul water from broken pipe or pipes had filled inter-connected pockets and pores in the ground around those broken pipe or pipes. Such stagnant foul water produced H₂S which became trapped in the ground (§2(r)).

42.  §5 relates to the background and circumstances of the accident. Now (f) and (ff) are introduced as further particulars of the cause of the inflow, namely:

(1) Upon noticing water seepage at the Excavation Face after lunchtime on the day, Fong returned to the ground level to prepare grouting, and brought 3 grouting pipes of 1.5 metres long and several hemp bags to the Tunnel with a view to inserting the same into the soil wall for the purpose of grouting (§5(f)).

(2) The soil wall was damaged by the insertion of the grouting pipe, leading to sudden inflow of foul water and H₂S trapped in the inter-connected pores and pockets (§5(ff)).

43.  §8 sets out the particulars of negligence of the defendants. Now (o) to (x) are added as further particulars, namely:

(1) Failing to warn the Deceased of the risk of using the grouting pipe on the Excavation Face and the risk that it may damage the soil wall separating the pores and pockets of foul water from the Tunnel (§8(o));

(2) Failing to conduct re-assessment of the risk after foul water with bad smell was discovered at Pit 2 in June 2017 and to consider the risk associated with the ingress of foul water with bad smell there (§8(p));

(3) Continuing with excavation work from Pit 1 towards Pit 2 without considering the risk of inflow of foul water into the Tunnel (§8(q));

(4) Failing to conduct re-assessment of the risk after there was seepage on 7 and 8 July 2017 which had to be controlled by grouting (§8(r));

(5) Allowing the tunnel workers to decide on using grouting to deal with the seepage on 10 July 2017 instead of stopping work and conducting re-assessment of the risks by a competent person (§8(s));

(6) Failing to provide and ensure that the workers wore portable escape-type breathing apparatus to the workers inside the Tunnel (§8(t));

(7) Failing to provide and ensure that the workers wore portable type multi-gas (including H₂S) monitoring equipment with an audio-visual alarm inside the Tunnel for continuous air monitoring (§8(u));

(8) Failing to provide life line to the workers for rescuing the workers in the event of an accident (§8(v));

(9) Failing to devise a system of rescue in the event of inflow of foul water into the Tunnel (§8(w)).

44.  By the new §9A, plea of breach of section 5(4) of the Regulations on the part of the defendants is introduced. The contention is that the defendants failed to appoint a competent person to carry out re-assessment of the working conditions in the confined space and make recommendations on measures to be taken in relation to the safety and health of the workers working in that space, when there was a substantial likelihood of a change in the environment by the discovery of ingress of foul water with bad smell at Pit 2 in June 2017 as well as ingress of water on 7, 8 and 10 July 2017 inside the Tunnel which had to be controlled by grouting.

45.  The particulars of negligence, included those sought to be added as mentioned above, are now repeated for the purpose of the alleged breach of the employer’s duties under the OSHO. Hence the addition of §11(e).

46.  In addition to the plea in the existing reply joining the same issue raised by the defence, §12A(a)-(h) are now introduced to the statement of claim for the contention that the inflow of foul water with H₂S into the Tunnel on the day of the accident was a reasonably foreseeable event by reason of the following:

(1) The Site was an area near the water table where there was underground water and there were leaking utilities (§12A(a)). The plans available covered the drainage and other utility services but there was nothing on underground water (§12A(b)).

(2) On 7 June 2017, foul water with bad smell was found at Pit 2 (§12A(c)). The project manager of Kum Shing noticed ingress of foul water with bad smell, and discovered the top of a 600mm foul water drain (§12A(d)). The engineer of Fugro determined from the plans that it was the 600mm foul water drain, and suspected seepage from this pipe (§12A(f)). In that month, the engineer of Cheer Top also discovered ingress of foul water with bad smell at Pit 2 for at least 2 times (§12A(e)).

(3) On 2 consecutive days on 7 and 8 July 2017, there was seepage in the Tunnel, and grouting had to be carried out on the Excavation Face (§12A(g)).

(4) On 10 July 2017, there was a down flowing seepage of about 20 to 30cm long on the excavation (§12A(h)).

47.  The proposed amendments reflect the case of the plaintiffs in respect of the cause of the sudden inflow of water and H₂S on the day in question, namely the driving of grouting pipe into the soil wall which caused breakage so that the foul water and H₂S trapped in the voids near the Excavation Face at Pit 2 managed to flow into the Tunnel.

48.  As to where such foul water originated from, the plaintiffs first referred by way of reply (§§9; 15) to the report of suspected cracking of a 375mm foul water pipe near Pit 2 on 7 June 2017. In their opening submission for the trial, they referred to that while also referring for the first time to a 600mm sewage pipe near Pit 2. By referring to the daily reports from 7 June to 10 July 2017, including the DSD visit and inspection of the manholes concerning the 600mm pipe, the plaintiffs actually acknowledged that the source of the foul water was then unknown.

49.  Against this background, the plaintiffs now propose to plead that the foul water rushing into the Tunnel in the accident originated from broken foul water pipe or pipes in the vicinity. The impression is that the plaintiffs is not advancing a positive case in respect of the exact origin of the foul water which became trapped in the soil and eventually flowed into the Tunnel on the day of the accident.

50.  As the plaintiffs argued in their opening submission then, their stance remains that reasonably foreseeability on the part of the defendants of the risk of inflow of water into the Tunnel was the real question. This was in fact put in issue and extensively pleaded by the defendants, to which the plaintiffs did reply, albeit briefly. Now the plaintiffs seek to plead in the statement of claim the circumstances between early June and the accident in July 2017 surrounding the Site as the premise for the contention that, contrary to the defence, the risk of inflow of foul water into the Tunnel was reasonably foreseeable by the defendants prior to the accident. Hence the further plea that there was significant change in the condition warranting risk reassessment, which was also an issue raised by the defendants in defence with reference to the findings of the Magistrate in the criminal proceedings. This also forms the premise for the additional contention of breach of section 5(4) of the Regulations.

POSITION OF THE DEFENDANTS

51.  By affidavit, the defendants complain that the need for amendments should have been identified by reference to the materials available years prior to the original trial.

52.  The defendants also complain that the plaintiffs are selective in their reference to the evidence for their proposed amendments as well as fail to acknowledge the evolution of the evidence and the findings in the criminal proceedings.

53.  The defendants take no issue as to the amendments to §§1 as well as 2(i) and (j). Insofar as the proposed amendments of which the defendants take issue, they indicate that they would be prepared to agree to §2(k) if clarified in terms as proposed by the defendants. Other proposed amendments under §§2, 5, 8 (and accordingly 11(e)), 9A and 12A are opposed.

LATE APPLICATION

54.  That the application for amendment now is late needs no mention. Counsel for the plaintiffs refers to Chen Yusheng v Wo Ming Engineering & Anor [2020] HKCFI 1000 at 37-41; Liu Shih Teng, the Administrator of the estate of Liu Hak Wing, deceased v HKCC Dotcod Ltd [2022] HKCFI 474 at 76-81 as instances of the application of the relevant principles. Absent prejudice which cannot be adequately compensated by way of costs, leave to amend with a view to enabling the real issues and disputes to be properly placed both before the parties and the court should not be denied on the mere ground of delay.

55.  It needs no reminder that the trial was vacated by the Learned Judge for reasons, of which the need to sort out the plaintiffs’ pleading was but one. With or without the amendments, the case would have to be further case managed before again coming on for trial. The Learned Judge must be conscious of the inevitable delay consequential upon her vacating the trial and directing the case to be further case managed including amendment of the pleading. How material, if at all, the difference between delay with and that without the amendments would be is hard to gauge definitely, particularly in view of the issues already taken by the parties’ existing pleadings. Late application for amendment in these circumstances becomes a relatively neutral consideration.

THE EVIDENCE AND THE CRIMINAL PROCEEDINGS

56.  The parties have agreed to rely on the documents, reports and written opinions arising out of the accident investigation and criminal prosecution as evidence in the trial of the present case without their makers being called to testify. The plaintiffs have also filed hearsay notice in respect of these as well as other statements and other documents. Whilst how the evidence contained in these documents evolved or transpired in the course of the oral evidence in the criminal proceedings would be relevant, they remain part of the hearsay evidence to be taken into account in the trial of the present action.

57.  As of the time when this case was last warned for trial, the plaintiffs apparently did not have their own source of further evidence while the defendants would have called one witness. On the one hand, it may be suggested that the plaintiffs lack evidential basis for contradicting what transpired at the criminal proceedings. On the other hand, it is premature to suggest for the present purpose that the facts are conclusively demonstrated by the evidence, literally read, before evaluation and submission at the trial of the present action.

58.  As an example, a specific complaint by the defendants relates to the state of the expert evidence adduced by the prosecution and the defence in the criminal proceedings. They argue that the plaintiffs are not entitled to rely on part of the experts’ evidence which has been withdrawn and their reports accordingly redacted in the course of the oral evidence of the experts in the criminal proceedings. It does not appear that redaction or exclusion of the expert reports was ever requested when the defendants consented at the end of 2023 to the order for that accident investigation report and those expert reports to be admissible as evidence in the present action without oral evidence from the makers.

59.  In any event, the plaintiffs argue that the defendants’ understanding of what transpired at the criminal proceedings in this respect is incorrect. The plaintiffs understand that the relevant parts of the expert reports were based on the observations and findings in the post-accident investigation report, but its maker was somehow not called to testify, and therefore the report was inadmissible in the criminal proceedings. Hence the redaction of such parts of the expert evidence in the proceedings. It was therefore not a case of withdrawal or abandonment of opinion at the initiative of the experts but exclusion due to the rule against hearsay evidence for the purpose of those proceedings. The relevant part of the transcript at least permits such understanding of what transpired then.

60.  As discussed below, if what the defendants argue with reference to the evidence as they read it for the present purpose is accepted, so that the plaintiffs have no evidence in support of their plea in respect of various circumstances and contentions, the extent of the existing pleading in respect of such issues already raised should have likewise been liable to be struck out. Insofar as the admittedly key issue of foreseeability of the risk of the kind of accident as it happened in the present case, similar argument for the purpose, if accepted, would have entailed the consideration of a similar fate of even the entire claim. As mentioned, no such stance however has been or is taken by the defendants.

THE PROPOSED AMENDMENTS

§1

61.  The amendments to this paragraph are cosmetic and uncontroversial.

§2(h) to (r)

62.  The existing §2 sets out the general background of the accident. The plaintiffs now seek to plead further particulars and contentions.

63.  In §2(i) to (k), the plan of the digging then was spelt out. The defendants do not say that this is wrong or flatly contradicted by the evidence. They only offer to agree to the plea under (k) provided that further particulars proposed by them are also pleaded, namely a further risk reassessment would be conducted before commencing digging from Pit 2 towards Pit 1.

64.  What the plaintiffs plead under (k) is the plan at the relevant time for the digging of the Tunnel, which was to commence from Pit 1 up to a certain distance before digging from Pit 2 towards 1 would begin. If this suffices for the plaintiffs’ purpose, which is not flatly contradicted by the evidence or misrepresenting the picture, it is sustainable as a matter of pleading plainly of that fact.

65.  Even if the plea under (k) is considered in the context of the other proposed amendments in relation to risk reassessment under §2 and/or other parts of the statement of claim, it will still be up to the defendants, if so advised, to respond by pleading in defence such other particulars which they say are or are also relevant with reference to this proposed subparagraph. Yet this does not constitute a ground for opposing the plea under this proposed subparagraph.

66.  The circumstances pleaded under §2(l) to (n) as the background are repeated in the proposed new §12A whereby the risk of the accident is said to have been foreseeable. However, these proposed subparagraphs under §2 remain the plaintiffs’ plea of the background fact. The nature of the plea is not objectionable.

67.  However, the defendants question the content of such plea, namely that the ingress in June 2017 had to do with the 600mm sewage pipe near Pit 2. They say that the plaintiffs imply that that pipe was the source of the foul water, which is not substantiated by the evidence, and the plaintiffs’ stance is conflicting.

68.  Level of precision in the plea of the plaintiffs aside, the defendants arguably have misread the plaintiffs. What the plaintiffs pleaded in respect of a 375mm pipe in the reply and are now seeking to plead in respect of a 600mm pipe were, and could only be, what they understand from the evidence of discovery and suspicion at the relevant time. As repeated with more precision under §12A, the plaintiffs acknowledged the investigation by the DSD did not substantiate such suspicion. Here the plaintiffs indeed seek to plead that the source of the foul water seeped into the Tunnel on such occasion was unknown. There is no conflicting stance in respect of which water pipe was the source of the foul water discovered then. Nor is there shift of case in this respect.

69.  Reference is again made to the oral evidence of the experts in the criminal proceedings whereby they are said to have withdrawn part of their opinion and hence redaction of their reports in the evidence. The parts of their reports redacted then for the reason mentioned above also concerned their consideration of the possibility of the ingress of foul water at the time from broken foul water pipe. The Magistrate’s evaluation and finding in this respect on the basis of the extent of admissible evidence in those proceedings aside, that the source of the inflow of foul water may not be found to come from any foul water pipe indeed remains a possibility in the trial of the present action. However, that would be a conclusion to be reached upon the evaluation of the evidence by the trial judge in the present action.

70.  More significantly, as discussed, the plaintiffs are not resting their case on proving the origin of the water inflow being a particular pipe or pipes. It is common ground that the inflow which hit the Tunnel and causing the accident was foul water with H₂S, which required certain environment and duration to develop. Hence the intended plea at §2(r) that it was stagnant foul water trapped in pockets or voids in the ground which produced H₂S, and the source of such foul water was believed to be broken pipe or pipes. The plaintiffs do not seek to be more specific than that.

71.  Therefore, whilst the defendants say that there is no evidence in support that the foul water originated from either the 375mm or the 600mm pipe in the vicinity, the plaintiffs in fact are not advancing a positive case that it had to be either of these pipes. They take the stance of not having to advance such a positive case, which was what the plaintiffs argued in their opening submission at the vacated trial. Whether or not that suffices for the proof of their cause of action as a matter of law and fact remains to be decided at the trial of this action.

72.  §2(h) as well as (o) to (q) may be considered at the same time.

73.  §2(h) contains a statement of the fact that no recommendation in respect of the safety devices mentioned therein was made in the risk assessment conducted in March 2017. Whether or not such recommendation would have been necessary as a matter of compliance with the Regulations at that stage is not what the plaintiffs are seeking to plead or contend. The different reading submitted on behalf of the defendants, in my view, is not correct.

74.  With reference to the situation as of the risk assessment conducted in March 2017 pleaded under (h), the plaintiffs seek to plead that after the discovery of ingress of water at Pit 2 in June 2017 and subsequently July 2017, no risk reassessment was conducted. Insofar as these formed the background, they are not objectionable as pleadings of mere fact.

75.  Admittedly, to make sense out of the above pleadings of fact, the intended plea under (o) is important. The plaintiffs seek to plead that by reason of the discovery of ingress of water at Pit 2 during the period between early June and early July 2017, the risk assessment pleaded under (h) became no longer valid. Effectively, the plaintiffs are contending that there was likelihood of material change in the condition inside the Tunnel which rendered the risk assessment in March 2017 no longer valid. This also paves the way for the proposed amendments to the particulars of negligence pleaded under §8 and the additional contention of breach of statutory duty under §9A on the basis of failure of risk reassessment.

76.  The issue of whether there was likelihood of material change in the condition inside the Tunnel by reason of the discovery of ingress of water at Pit 2 during the period the month immediately prior to the accident was in fact first taken by the defendants. As summarised above, the defendants pleaded that in defence (at §12) on the basis of the finding of the Magistrate in the criminal proceedings that there was no significant change in the condition of the confined space at all material times. That was an issue in terms of the statute under which the defendants were then prosecuted.

77.  The plaintiffs joined issue with the defendants on that (at §10), and they now seek to plead further to that by way of amending the statement of claim. These constitute the elements of the prescribed duty under section 5(4) of the Regulations expressed in terms of a substantial likelihood of a change in the environment in the confined space. This is what the plaintiffs seek to introduce under the proposed new §9A.

78.  However, whilst the statutory provision provides a measure of the reasonable duty in this respect, it does not exclude the co-existence of a general duty not to be negligent in the same respect, under which the test may not have to be identical. The burden of proof in the criminal proceedings and the present action certainly differs.

79.  The Magistrate, as the defendants have pleaded in defence, came to his findings in respect of section 5(4) of the Regulations upon his evaluation and findings on the basis of the extent of the evidence admissible in the criminal proceedings. This forms part of the evidence in the present case, but does not disentitle the plaintiffs from pleading and seeking to prove the co-existent cause of negligence under §8. The issue of likelihood of material change in the work condition inside the Tunnel by reason of the discovery of the ingress of water in Pit 2 during the month preceding the accident is argumentative. So is the consequential issue of whether risk reassessment was justified before the accident. They are to be evaluated with reference to all the evidence at the trial of the present case.

80.  By the way they categorise them in their affirmation in opposition, the defendants say the proposed amendments to §2 are contentions as to the defendants’ alleged failure to comply with statutory requirements, which they oppose. In view of the above discussion, the categorisation is neither helpful nor accurate. They are sought to be pleaded under the paragraph as part of the background facts.

§§5(f), (ff)

81.  These are introduced as particulars of the cause of the sudden inflow of the foul water with H₂S, ie what caused or allowed the foul water and H₂S trapped in the soil in the vicinity of Pit 2 to rush into the Tunnel on the day of the accident. Such intended plea also has bearing on the intended plea under §8(o) whereby it is alleged that the defendants failed to warn the Deceased of the risk of using the grouting pipe on the Excavation Face and the risk that it may damage the soil wall separating the pores and pockets of foul water from the Tunnel.

82.  The defendants argue that there is no evidence in support of the contention that the workers did drive the grouting pipe into the soil wall and thereby damaging it and causing the foul water and H₂S trapped in the pores and voids to flow into the Tunnel at the time of the accident. Hence no basis for the relevance of the alleged failure to warn the workers of the risk of using the grouting pipe on the Excavation Face.

83.  The plaintiffs acknowledge the lack of eye-witness. They refer to the expert report of the expert engaged on behalf of the defendants for the criminal proceedings. However, the expert went only so far as suggesting a possibility that the workers started the preparation work by driving the grouting pipe ahead while the grout was being prepared on the ground. This sounds flimsy as the evidential basis of the plaintiffs’ suggestion, let alone, according to them, inference that this in fact happened. That said, a conclusive view as that suggested by the defendants on the basis of the evidence as well as the Magistrate’s evaluation and findings on the basis of the extent of such evidence admissible in the criminal proceedings is not to be drawn for the present purpose at this stage.

84.  Following from the above, the plea proposed under §8(o) would seem to make better sense if this is made subject to the qualification insofar as the accident was caused in the manner as pleaded under §5(ff). On this basis, the argument of the defendants remains that ingress of water in the course of tunnel digging work was normal, and grouting was the standard method in the industry to stop the seepage. The assessment of that at the trial would entail the consideration of the exact circumstances and extent. The Magistrate’s evaluation and findings on the basis of the extent of evidence admissible in the criminal proceedings are but part of the evidence to be taken into account at the trial of the present case. A conclusive view of that as sufficient to exclude the plaintiffs’ plea is again not to be made at this stage.

85.  That said, the common ground is that foul water and H₂S probably trapped in the soil in the vicinity suddenly flowed in. This happened as a matter of fact, whether or not as a result of the immediate cause suggested by the plaintiffs. Assuming that such immediate cause suggested by the plaintiffs is not sustainable by the evidence on the balance of probability, are they not entitled to proceed on the basis of the mere fact of the sudden inflow to be considered against the background of ingress of water, including at least one occasion of foul water with bad smell, in the preceding month? The conclusion, in my view, should still be deferred until after evaluation of the evidence and hearing of submissions at trial.

§8

86.  This paragraph sets out the particulars of negligence alleged against the defendants. To the extent that the defendants in their affirmation in opposition categorise the proposed amendments to this paragraph as the plaintiffs’ contention of the defendants’ failure to comply with statutory requirements, this is not correct.

87.  The proposed addition of §8(p) to (s) relate to the plaintiffs’ contention in respect of the alleged need and failure to conduct risk reassessment by reason of the discovery of ingress of water at Pit 2 during the month preceding the accident. The above discussion in respect of the particulars of the background pleaded under §2 refers.

88.  The existing §8(b), (c) and (d) contain the plaintiffs’ plea of alleged failure of the defendants to provide safety equipment, including approved breathing apparatus, continuous gas monitoring equipment and audible hazardous gas detector warning equipment. In defence, the defendants deny the allegation. Specifically, it was pleaded that they had provided the workers with approved breathing apparatus, continuous gas monitoring and gas detectors. The present case would have gone to trial on such basis.

89.  What is new about the allegations of the plaintiffs in this respect concerns the specific types of such equipment now sought to be pleaded under §8(t) and (u). The defendants criticise that the plea in §8(t) and (u) in respect the various safety devices that they were either invented by the plaintiffs or their inapplicability was explained in the criminal trial or could be adequately explained. In this respect, it does appear that the alleged duty to provide the specific types of such equipment lacks evidential basis as a matter of contention.

90.  The proposed plea under §8(v) and (w) relates to the system of rescue in case of accident. In fact, it was the defendants which raised by pleading the existence of device of proper rescue mechanism on site. The plaintiffs joined issue of that by way of reply.

91.  Now the plaintiffs seek to plead the alleged failure of the defendants in devising a system of rescue in case of accident. That cannot be objectionable. That said, I am sceptical about the intended plea as failure to provide specifically life line to the workers. On the basis of the background pleaded by the plaintiffs, the Deceased did not come to be rescued before death because the foreman and Fong on the ground were not aware of the accident, and it was too late by the time when they came down to the Tunnel and discovered the Deceased. Hence the allegation of the failure of a warning system. There is also evidence that the Deceased could have been knocked out by the water and/or the H₂S before he managed to escape from the Tunnel. Hence the allegation of the failure to provide approved breathing apparatus. The bearing, if at all, of the provision of a lifeline for rescuing the workers in the event of an accident is not readily understandable.

§9A

92.  As mentioned above, this paragraph is introduced for the intended plea of breach of statutory duty under section 5(4) of the Regulations. The defendants complain that this is a new cause of action, which would have been time-barred by now.

93.  A new plea which effectively introduces particulars of an existing cause of action already pleaded does not give rise to such concern. Where a new plea introduces a new cause of action but arising from the same or substantially the same facts as the existing cause of action already pleaded, amendment of the pleading to introduce such a new cause is likewise not objectionable substantively: see for instance, Liu Shih Teng (above) at §292.

94.  Breach of the Regulations is an existing plea. So is the alleged breach by failing to conduct the necessary risk assessment of the condition of the relevant work. Alternatively, insofar as the alleged breach of the specific statutory duty overlaps with the breach of other common law duties, such as negligence, plea of reliance on the applicable statute as suggestive of the reasonable standard of the common law duties is also permissible not as a cause of action but as particulars of the alleged breach of the common law duties already pleaded.

95.  Whether or not such alleged breach of statutory duty is introduced, the premise equally permits the plaintiffs to proceed on the basis of other existing causes of action such as general negligence and breach of employer’s duties under the OSHO. The complaint about the alleged breach of section 5(4) of the Regulations as a new cause of action, which has been time-barred, should therefore be viewed in such light.

§11(e)

96.  §11 sets out the contention and particulars of alleged breach of the employer’s duty under the OSHO. By the proposed amendment, the plaintiffs repeat the particulars of alleged negligence under §8 for the purpose of the contention. The discussion in respect of §8 above refers.

§12A

97.  These are introduced in relation to the plaintiffs’ case on reasonable foreseeability. The discussion with reference to the plea of the background under §2 and that by now refer, and in my view suffice for the present purpose.

98.  A major argument of the defendants is that the plaintiffs have no evidential basis for their case on foreseeability, which is therefore bound to fail. As such, the proposed amendment should be denied. In that case, it would have been fatal to the plaintiffs’ case. Indeed, the defendants seem to say so. If this is indeed the conclusion which this court is entitled to and should reach for the purpose of the present application, it would follow the plaintiffs’ claim, with or without the proposed amendments, is clearly and obviously liable to be struck out. Yet such stance is not taken by the defendants.

OTHER GROUNDS

99.  By affirmation, the defendants also question the particularity of the plaintiffs’ proposed amendments. It is a matter of degree. The substance of the matter must be that it allows the defendant to know the case to answer. That further and better particulars may be legitimately requested does not mean that the plea is bad for lack of particularity. See for instance Liu Shih Teng (above) at §81.

100.  The complaint about unnecessary amendments must be properly understood. The failure of the plaintiffs’ pleading to accommodate the contentions advanced when the case was warned for trial was raised by both the court and the defendants. Hence the court’s leave to the plaintiffs to apply to amend their pleading to address the problem. In the circumstances, by unnecessary amendments, the defendants could only be suggesting that those proposed by the plaintiffs now do not quite align with what are reasonably expected to be necessary to fill in the gap between the existing plea and the contentions intended to be advanced. The defendants cannot complain if the proposed amendments address their complaint about the areas lacking proper pleading then made when the case came on trial. No blowing hot and cold, that is.

CONCLUSION AND ORDER

101.  Hence the following order:

(1) Leave is granted to the plaintiffs to amend and file within 14 days from the date hereof their amended statement of claim as per the draft annexed to their summons subject to the following:

(a) the reference to “60mm foul water pipe” in §12A(d) should be “600mm” instead;

(b) at the beginning of §8(o), “Insofar as the accident happened in the manner as pleaded in §5(ff) above” should be added;

(c) §8(t) is allowed save that “portable escape-type” be deleted;

(d) §8(u) is allowed save that “portable type” and “with audio-visual” be deleted;

(e) §8(v) is disallowed;

(2) Service of the amended statement of claim on the defendants be dispensed with;

(3) Leave is granted to the defendants to file and serve their amended defence consequential upon the amendments to the statement of claim as mentioned above, if so advised, within 28 days thereafter;

(4) Leave is granted to the plaintiffs to file and serve their amended reply, if any, within 28 days thereafter;

(5) Within 28 days from the close of pleadings as directed above, the parties do propose by way of joint letter to this court further case management directions including, if necessary, the fixing of a direction hearing before this court, failing which applications should be taken out by any party within the same time (ie 28 days from the close of pleadings) to be returnable before this court;

(6) Unless otherwise proposed by the parties pursuant to (5) above, the present action shall continue to proceed on the basis of a split trial on liability only.

102.  As to costs, the plaintiffs should expect to pay the defendants their costs of and occasioned by the application for leave to amend. They offered that in their summons, and so I order. Such costs shall be taxed, if not agreed, with certificate for counsel. The plaintiffs’ own costs shall be taxed in accordance with legal aid regulations. The costs order is nisi, which shall in the absence of application to vary within 14 days from the date hereof, become absolute without further order.

POSTSCRIPT

103.  Acting pursuant to the direction of the Learned Judge, the plaintiffs are amending their pleading merely to reflect the case they intend to run on the basis of the existing state of the evidence. That the plaintiffs have to rely on the existing evidence remains. That they have to do so in the absence of their own source of further evidence remains. Doors are not open as a result of the amendments for the introduction of new evidence.

104.  Compilation of a joint statement of agreed and non-agreed relevant facts, albeit aborted for the purpose of the present application, remains necessary, if this case is to be ready for setting down again for trial on the basis of the current state of the evidence. The observation of the Learned Judge is echoed. Therefore, the parties are not absolved from the duty to assist the court by doing so, and their inputs in the aborted exercise are not written off.

105.  As a result of the effective rehearsal of the parties’ arguments with reference to the current state of evidence first when the aborted trial commenced and now for the purpose of the present application, the cards are very much on the table, and the parties must know what to expect if the case becomes ready to come on for trial. There should be room for considered decision to narrow down the relevant facts and issues in dispute, and hence the scope and volume of the relevant evidence necessary for the trial.