SIN MOON SHUI v. YAU LEE CONSTRUCTION CO LTD AND ANOTHER

CACV396/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 396 OF 2003

(ON APPEAL FROM HCPI NO. 1080 OF 2002)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a decision of Suffiad J given on 10 November last year whereby the judge was dealing with a large number of matters which were raised in this personal injury action. One of those matters was the question of whether the plaintiff should be allowed to amend its pleading to plead not only negligence, which is already pleaded, but breach of statutory duty and liability under the Occupiers Liability Ordinance.

2. The judge dealt with the other matters and they are not the subject of this appeal. This appeal is concerned solely with whether the plaintiff should be allowed to amend its statement of claim. The matter came before the judge, we are told, four days before the case was to be put in the warned list to be heard in the running list. The only matters which need be referred to here are that the plaintiff was a scaffolder and suffered severe head injuries in November 1999 when he fell from scaffolding. The cause of that accident is something to be found at the trial and therefore is not something which this court should comment on at the moment.

3. In the writ, the plaintiff relied not only negligence but on breach of statutory duty. In the statement of claim as filed, the breach of statutory duty was not specifically referred to. In those circumstances, the claim in respect of breach of statutory duty would be held to have been abandoned.

4. Therefore the question of whether the plaintiff should be allowed to plead and take the issue at the trial in relation to breach of statutory duty as well as occupier's liability is important for two reasons, because if at the forthcoming trial - as there will inevitably be - those issues are not raised, the plaintiff is likely never to be able to raise them again, both for the reason that he will be held to have abandoned the claim and also for the reason that he has not raised the claim in the first action and therefore should not be allowed to bring any further proceedings to raise that claim. There is, it seems, a possible juridical advantage to the plaintiff to rely not only on negligence, but on breach of statutory duty and I leave the matter there.

5. The question on which the judge decided the matter was that the defendants would be prejudiced by the late amendment. Indeed, the defendants would be prejudiced because they have prepared for trial and the trial would be put off. There is to be a trial of split liability and damages. If there is this amendment they will have to prepare their defence again. In argument, Miss Molloy says that if the amendments were allowed, the defendants would have to, as it were, go back to the drawing board again or base camp which was the other expression also used. It was said that the defendant might not be able to find any relevant witnesses and, anyway, memories would have failed.

6. There is no evidence that the defendant could not find the relevant witnesses or does not know who the relevant witnesses are and, therefore, that is just a matter of conjecture at the moment. As regards memories fading, memories would have failed or faded by the time this case came for trial in any event. Although it is four years since the date of the accident, and it will be presumably five years by the time this case comes to be heard, it is unfortunate and obviously personal injury claims should be disposed of, if at all possible, much quicker than that, but it is by no means the most lengthy period between accident and trial that would have occurred.

7. In my view, crucial to this case is whether the defendant could be compensated for in costs if the amendments are allowed. Having heard Miss Molloy as to the prejudice that would be occasioned, I consider that the defendants can be compensated for in costs if the amendments are allowed. Clearly the plaintiffs should be allowed to amend if that does not cause irreparable damage or an irreparable state of events which prejudices the defendants. That is not the case here and it seems to me that the question as to whether the defendants can be compensated for in costs was not directly adverted to when the judge was dealing with all the matters with which he had to deal.

8. In so permitting the amendments I would say this, however, that the parties to proceedings must direct their attention at an early stage to all the issues that are involved. It not only is of no assistance to the court in the proper disposal of the matters before it if late amendments are allowed, but it is also of no assistance to their clients if, at the proper time, the parties do not concentrate their minds on what the real issues are going to be. In so saying, I entirely endorse the sentiments expressed by the judge that late amendments are something to be wholly deprecated. I would therefore allow the appeal accordingly.

Hon Le Pichon JA:

9. I agree.