CHANG SUI MAN v. WING KEI BAMBOO SCAFFOLDING CO. LTD AND ANOTHER

HCPI 693/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 693 OF 2005

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REASONS  FOR  DECISION

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1.  The Plaintiff is appealing against the decision of the PI Master dated 14 December 2009 in relation to the preparation of evidence for the case.

2.  The Plaintiff was a construction worker.  The 1^st Defendant was alleged to be the employer, which is disputed, and the 2^nd Defendant was the principal contractor.

3.  The Plaintiff fell from a platform inside a lift shaft.  He became paraplegic and wheelchair bound.

4.  The Master refused the following applications:

(1) Calling the occupational therapists/rehabilitation experts on the future care needs of the Plaintiff;

(2) Obtaining a surveyor’s report on the market rents of alternative accommodation;

(3) Filing of supplemental witness statements by the Plaintiff and his witnesses;

(4) Specific discovery of documents of the 1^st Defendant;

(5) Amendment of the Re-Revised Statement of Damages.

Accommodation

5.  The Plaintiff is currently residing with his parents and sister in the parents’ Home Ownership Scheme flat in Chai Wan.  The net area is 462 sq ft.

6.  The Plaintiff and his sister owned another Home Ownership Scheme flat in Stanley.  The net area is 322 sq ft.  It is usually left vacant, but used by the Plaintiff as a sanctuary when the relationship with his family becomes a bit tense.

7.  The Plaintiff prefers to live with his family, as he is bored.  Both the care experts thought the Stanley flat is too small even for only the Plaintiff and the helper, and while it is possible to stay in the Chai Wan flat (with alterations), it is more satisfactory to give the family a bigger flat.  They have given their respective estimates on floor areas for both family and self living.

8.  Ms Lee, for the Defendants, contended that the existing flat is sufficient with alterations recommended by the experts.

9.  Notwithstanding that, upon the framing of issues, there are 3 possible scenarios on the alternative accommodation claim:

(1) To allow the notional rent of a bigger flat for the family (whatever size) less the notional rent of the Chai Wan flat and the Stanley flat;

(2) To allow the notional rent of a bigger flat for the Plaintiff and helper less the notional rent of the Stanley flat;

(3) To ignore the value of the Stanley flat at all in either case.

10.  Both the Chai Wan and the Stanley flats are Home Ownership Scheme flats and are subject to sale or renting restrictions before the payment of the alienation premium to the Housing Authority.  It is common ground not to consider repayment of the premium on either part of the Plaintiff or the Defendants, and the notional rents of the Chai Wan and the Stanley flats should be calculated at a discount of the current market rent by the fraction of the unpaid premium of Home Ownership flat.

11.  Ms Lee submitted that it is rare to call for surveyor report on the market rent since the available of transaction records on the internet.

12.  Mr Lam, for the Plaintiff, submitted that a surveyor report is necessary to consider wheelchair accessible buildings in the Chai Wan area.

13.  Wheelchair access has been part of the building specifications since the early 1980’s, and most except older buildings have wheelchair access.  Rents are usually related to age of the building and size of the flat, and not wheelchair access.  Fair compensation could be based on the range of rental figures for suitable district and floor areas where the Plaintiff could then look for the building with wheelchair access.  The Plaintiff could obtain the rental figures from the internet.  Minute investigation of sample flats is not necessary.  Hence, the surveyor’s report is refused.

14.  As to calling the care experts, they are not necessary on the point of accommodation.  The issue is the reasonable quality of life of the Plaintiff, one to be resolved after hearing the needs and wishes of the Plaintiff and the family.  The experts have listed out the extra floor areas per sections of the home in relation to the wheelchair and other needs of the Plaintiff and it is really a matter of common sense.

15.  Mr Lam submitted that both experts agree that the Plaintiff should be provided with a disability vehicle but they disagree on the model and maintenance costs.  The Plaintiff has been travelling on taxis and his complain is on of expense.  I do not think the experts are necessary on this point or any other items of purchase.  Hence, the joint rehabilitation report is admitted without the calling of the makers.

Supplemental witness statement

16.  The Plaintiff and his witnesses have filed further statements relating to the cause of the accident.   Ms Lee objected on delay as the Plaintiff’s side had already filed successive statements on the point.  It is now 8 years from the accident, and any further investigation by the Defendant is extremely difficult if not impossible.

17.  Mr Lam submitted that there is no deliberate delay on the part of the Plaintiff.  There was delay for about 1 to 2 years caused by the disagreement on the joint rehabilitation report.  Then the Master laid down the timetable that counsel’s advice be obtained after the report is ready. 

18.  I have relaxed the general rule for obtaining of counsel advice in PI cases in view of expertise of specialist solicitors in the field.  It is up to the solicitor to decide whether counsel’s advice is necessary.  It is hardly surprising that once counsel is engaged, they will have his/her own views.  But the Practice Direction makes it clear that late obtaining of counsel’s advice is no excuse for delaying the otherwise completed trial preparation.  Be that as it may, the further statements relate to the accident rather than quantum.  Mr Lam could not suggest any grave unfairness to the Plaintiff outweighing the prejudice to the Defendants and/or good case management.

19.  The Plaintiff’s sister has also filed a statement claiming loss arising from giving care to the Plaintiff.  Such information was contained in the Plaintiff’s statement, and now with updates.  That claim has been traversed and there is no need for response.  Hence, I allowed the statement.

20.  Except the sister’s statement, other statements were refused.

Discovery

21.  The Plaintiff sought a receipt for safety equipment (hat and belt) signed by the Plaintiff on 2 September 2002 (date of accident), if any.

22.  The 1^st Defendant disclosed such receipt for 1 September 2002, and said safety equipment was distributed daily.  Hence, the request.

23.  Ms Lee submitted that the discovery is irrelevant:

(1) There is no issue on the point as the Plaintiff said he had the safety equipment; and

(2) Although the Defence said daily distribution, the Plaintiff’s co-workers said (in the disallowed further statements) the equipment was distributed on 1 September 2002 and they kept them for daily use.

Hence, discovery was also refused.

Amendment

24.  The amendment relating to the sister’s income was allowed, to be filed within 7 days.  The Defendants were allowed consequential amendment within 14 days thereafter, with costs.

Costs

25.  I allowed summary assessed costs of $35,000 for the Defendants’ substantial success.  I have already taken into account the minor success of the Plaintiff.

26.  The costs order of the Master was not disturbed.