RASHID HARRON v. PENTA OCEAN CONSTRUCTION CO LTD

HCPI 428/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 428 OF 2014

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DECISION
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1.  This is an application made at a very late stage for leave to file and serve a further witness statement in the proceedings. The application is made by the defendant and the statement sought to be filed and served is one of Mr Chan Chun-yeung dated 10 July 2015. He is a safety officer of the defendant company and in the statement, which is a short one, he purports to speak of three matters. One is that the defendant company had run an eye protection programme in April to May 2012 to educate workers’ awareness to the importance of eye protection.

2.  The relevance of this matter is that the accident in question occurred when the plaintiff, employed by the defendant, was undertaking some drilling work and, in the course of such work, some water containing chemicals splashed onto him and entered his eyes, causing him personal injury.

3.  The plaintiff’s case is that he had been wearing goggles but he avers, in §3 of the statement of claim, that the goggles slipped down and the water splashed on his face and the water went inside his eyes and, as a result, he suffered injuries to both eyes.

4.  The defence filed is to the effect that the defendant company was not negligent, that they had provided appropriate goggles and that, further or alternatively, the matters were caused by the plaintiff’s own negligence in that he failed to use protective goggles provided by the defendant when carrying out drilling work.

5.  The issues at trial make the reference to the eye protection programme relevant as background facts to be considered by the trial judge.

6.  The site safety officer also wishes to produce a transportation note showing that a total of 300 new pieces of eye goggles bearing the brand ‘Cranbrook’ had been purchased by the defendant for use at the accident site and showing that the date of that purchase was in January 2013, some months before the accident that had occurred on 4 April 2013.  Again, these are factual matters which are relevant to the issues raised at trial.

7.  The site safety officer also wishes to give evidence that there was regular inspection and supervision by foremen and safety officers to ensure that workers were using proper eye protection when performing hazardous work.  Clearly, that is also a relevant factual issue for the consideration of the trial judge.

8.  So, in terms of relevance of the witness statement, I am satisfied that the statement is relevant and in respect of which leave to rely on the same at trial would ordinarily be granted.  However, the fact remains that this is a very late application.  The case has already been set down for trial in the running list, with an estimated trial time of three days, and is not to be warned before 1 September 2015, which is less than a month away.

9.  However, it appears to me that if I granted leave to the defendant to serve this witness statement and to call its maker, Mr Chan, at trial, that the trial date is unlikely to be delayed because we still have a good number of days left in the month of August.

10.  In the course of my exchange with Mr Chau, who opposed the application on behalf of the plaintiff, he appeared to agree with me that the plaintiff is unlikely to be able to speak of any facts to rebut the eye protection programme that the defendant says had taken place before the plaintiff started working; or to rebut the fact that the defendant had purchased some 300 pieces of eye goggles in January of 2013.

11.  The only matter that he could possibly speak about and contest is the assertion by the safety officer that there was regular inspection and supervision by foremen and safety officers to ensure that workers were using proper eye protection goggles.  However, whether or not he wants to contest that is a matter that only he and his legal advisers can decide, given the fact that his case appears to be that he was wearing goggles at the time and that, for one reason or the other, they had somehow slipped off.

12.  In any event, Mr Chau did agree that any rebuttal witness statement the plaintiff may file in reply could be served within 21 days, which would be before 1 September and, taking that into consideration and balancing the need to ensure that all relevant evidence is before the trial judge against the underlying objectives of the Civil Justice Reform, I come to the view that this is a proper case for me to grant leave, even at this late stage.

13.  In exercising my discretion to do so, I take into account and accept the statement from Ms Wai, who appeared for the defendant, that her client had tried to locate these documents for a considerable period of time but they had only been located recently.  She did accept that, if they had been able to locate them earlier, she would have prepared a witness statement to similar effect at an earlier date.

14.  Nevertheless, to dissuade late applications of this nature, I must make an order of costs which departs from the usual order. In this case, I award costs of the application to the plaintiff which I summarily assess in the sum of $2,000, to be paid forthwith.

15.  Every effort must be made by parties, in the preparation of their respective cases, to ensure that all relevant evidence is discovered and exchanged in good time so as not to disrupt the timetable of the court.