Case Details

Citation

LEE NUI FOON v. OCEAN PARK CORPORATION, AN INDEPENDENT STATUTORY CORPORATION, HCA 6078A/1986

Case Number

HCA 6078A/1986

Court

Court of First Instance

(CFI)

Decision Date

31 March 1995

Parties

Applicant(s):

LEE NUI FOON administratrix of the estate of CHIU YU FU, deceased

Respondent(s):

OCEAN PARK CORPORATION, an Independent Statutory Corporation

For Applicant(s):

Mr Neville Sarony, Q.C and Mr John Wright, inst'd. by M/s Simmons & Simmons

For Respondent(s):

Mr Richard Mills-Owens, Q.C and Mr Ruy Barretto, inst'd by M/s Haldanes

LEE NUI FOON v. OCEAN PARK CORPORATION, AN INDEPENDENT STATUTORY CORPORATION

HCA 6078A/1986

Court of First Instance31 March 1995

HCA006078A/1986 LEE NUI FOON v. OCEAN PARK CORPORATION, AN INDEPENDENT STATUTORY CORPORATION

HCA006078A/1986

1986 No.A6078

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HEADNOTE

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PRACTICE AND PROCEDURE - PRINCIPLES TO APPLY IN INTERROGATORIES

1986 No.A6078

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
	LEE NUI FOON administratrix of the estate of CHIU YU FU, deceased	Plaintiff
	and
	OCEAN PARK CORPORATION, an Independent Statutory Corporation	Defendant

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Coram: The Hon Mr Justice Cheung in Chambers

Date of hearing: 31st March 1995

Date of delivery of decision: 24th April 1995

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DECISION

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Nature of the Application

1. This is the Defendant's application that the interrogatories served by the Plaintiff be withdrawn. I have previously dealt with the Plaintiff's application for discovery of specific documents which was dismissed by me on 29th March 1995.

Principles

2. The principles regarding the discovery by interrogatories are set out in Order 26 of the Supreme Court Practice 1995 ("SCP") p. 489-500, Discovery by Matthews and Malek, 1992, pp.273-297, and Atkin 's Court Forms 1991, vol.22, pp.448-455, 474-479. The following is a summary of the principles to be applied in this area.

	1.	The interrogatories must relate to "a matter in question" between the parties (O26, r. 1 (3)).
	2.	The interrogatories must be "necessary" either -
		(a) for disposing fairly of the cause or matter, or
		(b) for saving cost (O26, r. 1(1)).
	3.	The interrogatories may not be administered if they do not relate to a matter in question between the parties (O26, r. 1(3)).
	4(1)	The interrogatories must not be fishing (Note 26/1/3 of SCP)
		In Hennessy v. Wright (No.2) [1890] 24 QBD 445,
		Lord Esher, MR held at page 448 that:
		"The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which if at present he knows nothing, and which will be a different case from that which he now makes, the rule against 'fishing' interrogatories applies."
		In The Shropshire [1972] 38 LT 667, in an action against the ship repairers for damage to a ship by fire alleged to have been caused by the negligence of the defendants, the court disallowed an interrogatory sought to be administered by the plaintiffs to the defendants as to the cause of the fire. Warrington, LJ held that the interrogatories was framed apparently with the object of compelling the defendants to set up an affirmative case, or alternatively to disclose their line of defence to the plaintiff's attack. In either case, he did not think that it was a proper question to be delivered. It is an impropriety to an interrogatory which was no part of the plaintiff's case and did not disprove the case of the defendant.
		In Hooton v. Dalby, [1970] 2 KB 18 in an action for the seduction of the plaintiff's daughter, where the defendant admitted carnal knowledge but traversed the allegation that he was the father of the daughter's child, an interrogatory whether the defendant alleged that carnal knowledge had taken place between the daughter and any other person, and, if so, asking for the name and address of such person was not allowed. Cozens-Hardy, MR held that:
		"In my view, this is really a fishing interrogatory intended to ascertain the names of witnesses whom the defendant may desire to call in support of his defence, and that being so I think the learned judge was perfectly right in refusing to allow the interrogatory to be delivered."
	(2)	The interrogatory must not be oppressive (Note 26/1/4, para.3(e) SCP).
		An interrogatory will be oppressive if the answer cannot be given without a prolonged examination of the respondent's record, with the expenditure of much time and trouble, per Jessel, MR in Parker v. Wells [1881]18 Ch. D.477 at 484. See also Rockwell v. Serck Industries [1988] FSR 187 at p.202 and White v. Credit Reform Association and Credit Index Ltd. [1905]1 KB 653 at pp.659-660.
		In Mentor Corp. & Another v. Hollister Inc. [1990] FSR 577 the plaintiffs wished to interrogate the defendant on whether the defendant's researchers were aware of the contents of four patents. Aldous, J held that:
		"In each case the person answering the interrogatory must illicit from the researcher what he knew from documents or conversations or otherwise and then form a view whether the researchers were aware of the contents of one or more of the patents specifications. This may require construction of the patents specifications to ascertain what constitutes the contents of this specification. Further, it places an impossible burden on the deponent to decide whether the question relates to the whole contents or the substance of the contents and, if the substance, what constitutes the substance. In my view such a burden should not be placed upon an officer of the defendant to answer such a question upon oath.
		... However, some of them (i.e. the researchers) are no longer employed by the defendant and therefore time and trouble will be required to make a proper answer, as enquiries will have to be made as to where such ex-employees are and whether they will assist.
		It is a principle underlying Order 26 that interrogatories will only be ordered if they are necessary. Thus, they would not be allowed if they exceed the legitimate requirements of the particular occasion or put upon a party a burden out of all proportion to the benefit to be gained by the applicant."
	(3)	The interrogatories must not be prolix (Note 26/1/4 para.3(f) SCP). Kay, LJ in Oppenheim v. Sheffield [1893]1 QB 5 at 15-16 held that:
		"... interrogatories may be in such a form, in respect of their length and character, that looking at them as a whole it is impossible to help seeing that they are an abuse of the practice as being prolix or unnecessary. If a general view of them brings the court to that conclusion it is no answer to say that there are in the set of interrogatories here and there some which might be admissible if they stood alone."
	(4)	The interrogatories must not be imprecise. In common law litigation generally the usefulness of interrogatories is limited to precise points on which information or admission is sought (Note 26/1/2 SCP).
	(5)	The interrogatories must not be questions which go to the evidence the opposing party intends to adduce (Note 26/1/5 SCP).
		In Marriott v. Chamberlain [1886]17 QBD 154 Lord Esher stated at p. 163 that:
		"... and I think we may go as far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions, it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue."
		This statement is qualified by Buckley, LJ in Hooton. After referring to the judgment of Lord Esher, Buckley LJ at page 21 stated that:
		"The interrogatories may, it is true, extend beyond facts directly in issue, but the plaintiff is not entitled to ask the defendant upon what line of facts he is going to rely as relevant to the existence or non-existence of the facts directly in issue. Shortly put, the interrogatories seems to be inadmissible, because it asked the defendant on what line of facts he is going to rely in support of his case."
	(6)	The interrogatories must not be questions which required an answer which is a matter of opinion or for an expert (Note 26/1/4 para.3(d) SCP).
	(7)	The interrogatories must not be questions which go to the facts which will assist in establishing the opposing party (i.e. the Defendant's case) as opposed to the case of the party seeking to interrogating (i.e. the Plaintiff), see Hooton and Rockwell.
	(8)	The interrogatories must not be effectively asking for documents or discovery (Note 26/1/12 SCP).
		In Robinson & Others v. Budgctt & Co. [1884] WN 94, the plaintiff administered interrogatories to the defendant on documents in the defendant's possession. Field, J held that:
		"In order to get this discovery the plaintiffs would have to show the existence and materiality of this document by some admission of the defendants either in their pleadings or affidavits, or by the inherent necessity of the case. Even if they could have shown in this manner that further documents existed, they have not taken the proper course in this case. They should have applied for a further affidavit or documents instead of interrogating as to them."

3. If the interrogatories do not comply with the requirement of the rules, they may not be administered (O26, r.1(3)). If they do comply with the requirements of the rules, the court nevertheless retains an overriding discretion as to whether or not to allow the interrogatories to be administered (Note 26/1/7 SCP). Where interrogatories without order are served, then the court may order them to be withdrawn (O26, r.3).

Nature of the Interrogatories

4. The interrogatories can broadly be divided into three categories:

	1.	The first category deals with the safety implication of certain matters in the Wave Pool and of the danger involved in the Wave Pool. Thus the Plaintiff is seeking information on whether the Defendant has investigated into the safety implication of installing a flotation line (Items 1 and 2), the prevention and reduction of reflective glare from the surface of the water (Items 4 and 5), the provisions to ensure members of the public were adequately aware of the danger peculiar to the Wave Pool (Items 15 and 16), the implementation and maintenance of the emergency operation plan in case of an accident (Items 17 and 18), the number of members of the public who would attend the pool (Items 25, 26 and 27) and the recognised danger associated with the operation of a pool (Item 3). In each of these interrogatories, the Plaintiff is seeking particulars of the investigation and further asking whether the Defendant had consulted experts in carrying out the investigation and for the production of the reports of the experts.
	2.	The second category deals expressly with the lifeguards. The Plaintiff is asking whether the Defendant has taken steps to investigate the safety implication of the number and posting of fixed lifeguards (Items 6 and 7), mobile lifeguards (Items 8 and 9), the rotation of lifeguards (Items 10, 11 and 12), the nature, quality and frequency of the supervision of the lifeguards (Items 13 and 14), the qualification, training and experience of the lifeguards (Items 19 and 20), whether the lifeguards were suitably trained (Items 21 and 22) and whether there was refresher course provided for the lifeguards (Items 23 and 24). Again, in each case, the Plaintiff is asking the Defendant for particulars of the investigation and whether expert opinion were sought in relation to these matters and also asked for production of reports and documents relating to such enquiries.
	3.	The third category, namely Items 28-29, deals with whether the Defendant had, after the opening of the Big Wave Pool and the death of the deceased, changed equipments, operation procedures, recruitment and training of lifeguards and facilities at the pool.

Reasons for the Interrogatories

5. Mr Sarony, leading Counsel for the Plaintiff, submitted that the case of the Plaintiff is a simple one : the deceased swam to the deep side of the pool, then he swam from one side to the other. He was seen in difficulties in the vicinity of the flotation rope close to the rear wall of the swimming pool and he was holding on to the rope in some difficulties. There were two failed attempts by his companions to rescue him, the companions then swam to the lifeguards for help and the lifeguards pulled the deceased out of the swimming pool. In paragraph 10 of the Amended Statement of Claim, the Plaintiff pleaded the particulars of negligence. It is alleged that the lifeguards failed to heed or see that the deceased was in difficulties and further they failed to hear the cries for help and they failed to retrieve the deceased from the swimming pool in time to save his life.

6. Apart from the plea of res ipsa loquitur and reliance on inference, Mr Sarony submitted that the Plaintiff is also relying on specific allegations on the shortcomings of the Defendant, namely, failure to train the lifeguards properly and the failure to station the lifeguards. The information regarding the training and the safety system of the swimming pool were in the possession of the Defendant, the Plaintiff is ignorant of these matters and is seeking the source of the information on these matters. He disputed that the interrogatories were fishing exercise. In the documents disclosed by the Defendant, one of the Defendant's experts, namely Mr T.E. Sanders, in his first report at page 27 (page 183 of the bundle) stated that the number of lifeguards on duty that day properly met the conditions of the policy for normal operation. He further stated that the qualifications and training of lifeguards including a minimum basic Royal Live Saving Award, supplementary instruction and simulated emergency training is properly professional and no less than current requirements in the U.K. and elsewhere. Mr Sarony submitted that the Plaintiff does not know about the policy referred to in Mr Sanders' report or the instructions or emergency trainings of the lifeguards.

7. On page 42, para. 7 of the report, Mr Sanders stated that the "Ocean Park would seem to be a well operated facility. In 1984 when wave pools were far less common, the systems and management compared well with current practice and standards." Mr Sarony submitted that these are the matters that the Plaintiff need to obtain information.

8. Further, Mr Sarony referred to the report of the Plaintiff's own expert Mr Ebben. In the report (page 295 of the bundle), it was stated that:

	"2.9 It is clear from the Defendant's documents already disclosed that, in drawing up the specifications for Water World, considerable research was undertaken in a number of countries to assess the viability of various facilities, designs, their modus operandi and potential for commercial success in Hong Kong."
	"2.10 There appears however to be little reference to the provision of any form of supervision of bathers and it must be presumed that the principle for the provision of lifeguards at the centre stem from both the legal requirement and an appreciation of good operation practice. Indeed the job description for the Manger at Water World requires compliance with all government regulations relating to swimming pools. Additionally, it may be useful to discover whether any advice apropos lifeguard provision and modus operandi was given to the management of Water World prior to the recruitment of the staff and the subsequent opening of the Centre."

General Objections to the Interrogatories

9. Mr Mills-Owens, leading counsel for the Defendant objected to the interrogatories. The Ocean Park was a development by the Royal Hong Kong Jockey Club on land provided by the government. It first open in 1977. In July 1982 Ocean Park announced details of a major redevelopment programme including, inter alia, the "Wave Pool". The planning development and construction of these facilities have taken place over a period of several years prior to their actual opening in about March or April 1984. The responsible officer of the defendant who is required to answer any interrogatories on oath relating to the enquiries made or planning of any part of the Ocean Park facilities must locate and go through any subsisting records of Ocean Park for a period covering, say 1979 to 1984, and to search for and locate documents which were between 10 and 16 years old. He has to identify relevant personnel with Ocean Park at that time, locate such personnel, contact such personnel and ascertain from them so far as he is able and so far as they can recall, details of enquiries made and information obtained during that period, some 10 to 16 years ago. Two relevant persons are no longer in Hong Kong.

10. The accident took place on 31st July. 1984. I agree with the Defendant's submission that it is oppressive that it should, at this late stage of the proceedings, be required, by some responsible officers to go through the burdensome exercise of locating documents and possible witnesses here and overseas in respect of events of some 10 to 16 years ago and then to swear as to the outcome of his enquiries on affidavit. The Plaintiff did not specifically name any of the personnels in the questions raised. Given the fact that the Plaintiff's pleaded case is said to be based on res ipsa loquitur or inference, it is not necessary for such an exercise to be carried out at this stage to fairly dispose of the matter and would certainly add to rather than save costs. In so far as positive allegations of negligence are pleaded, the Plaintiff is unable to particularise these allegations. I have dealt with these matters in my decision on specific discovery. The present action was commenced in 1986 and this can only delay matters further after the already extensive delay.

11. There are 29 questions in the interrogatories. Each question is further subdivided, giving a total of 117 questions in all. There is no affidavits explaining the relevance of any of these specific questions as to any particular issue in the pleadings. The sheer length of the interrogatories, many of them with alternatives, placed an onerous and heavy burden on the Defendant that is incommensurate with any benefit that the Plaintiff may get from the answers.

12. In regard to the source of information sought by the Plaintiff, it is observed that:

	1.	The Defendant had already disclosed the procedural manual which identified the duty of care that the Defendant extended to the users of the Water World and particularly detailing the role of the lifeguards nearly seven years ago in their second list of documents. It is difficult to understand why more discovery is required.
	2.	In regard to Mr Sanders' report, the report was exchanged for quite some time and if the Plaintiff was not clear about matters in Mr Sanders' report, for example on matters relating to policy, the Plaintiff could have written to the Defendant to clarify the matters or alternatively cross-examine Mr Sanders at the hearing.
	3.	In regard to Mr Ebben's report, it only demonstrated the fishing nature of the exercise with his suggestion of seeking further information from the Defendant.

13. Throughout the interrogatories the questions are directed at identifying the names and addresses of those officers or employees of the Defendant who carried out investigations or inquiries into certain matters. Interrogatories which seek to ascertain the names of witnesses of the opposing party will not be allowed (see Cozens-Hardy, MR in Hooton at 20-1 and Rockwell at p.206 and Mentor at 579 and 582).

14. A majority of the questions also asked whether the Defendant consulted any experts or consultants and required the Defendant to produce a copy of their advice if the answer to the question is positive. Such employees or experts would be potential witnesses for the Defendant to show that the design and operation of the pool was safe. The Defendant on the authorities would not be obliged to supply such information to the Plaintiff.

15. In so far as the interrogatories seek documents, the list of documents served on behalf of the Defendants would be conclusive. Further, interrogatories cannot be used to challenge the accuracy or completeness of an opposing party's list of documents. The Plaintiff's application for specific discoveries under O24, r.7 had been dismissed. If the Plaintiff is unable to make out a case under O27, r.7, it is not entitled to have a second bite by seeking discovery of documents in general terms through the medium of interrogatories.

16. I rule that in general all the interrogatories are objectionable and should be withdrawn for reasons as follows:

	1.	They do not relate to a matter in question between the parties;
	2.	They are not necessary for disposing fairly of the cause or matter or for saving cost;
	3.	The burden placed on the Defendant would not be commensurate with the benefit to the parties if the interrogatories are ordered;
	4.	They are oppressive, vexatious and prolix;
	5.	They are fishing:

	(a)	They are aimed solely to illicit information when the Plaintiff's case is insufficiently pleaded.
	(b)	They seek to ascertain the names of potential witnesses for the Defendant, none of whom is identified by name in the questions.
	(c)	They are immaterial because the information or document sought goes to the Defendant's case and not that of the Plaintiff.

The facts sought would go to establish the Defendant's case rather than to support the Plaintiff's case.

Ruling on Individual Interrogatories

Item 1

"1.

Did you take or cause to be taken any steps to inform yourself, investigate or inquire into the safety implications or otherwise of installing a flotation line at the deep end of the Big Wave Pool? If 'yes':

	(a)	Were they taken before opening Water World to the public.
	(b)	If the answer to (a) is no then at what stage did you do so?"

17. The Plaintiff pleaded in para. 10 (k) of the Amended Statement of Claim that the Defendant cause, require or permitted the flotation line to be used inappropriately. However, the "inappropriate use" is not specified or particularised (see Further and Better Particulars 6th October 1994 para. 14). In this Further and Better Particulars, the Plaintiff asserts that the "inappropriate use" is used as a form of trampoline without any further elaboration.

18. The Plaintiff referred to the report of W.M. Howells (Assessors) Ltd. dated September 7, 1984. At p.7, it was stated that the deceased and the companions reached the end of the pool and that they all held on to a life-line suspended across the pool's width and approximately 2' from the end of the pool. This lines has a number of red colour buoys attached and has been erected specifically to aid any swimmer who tires or gets into difficulties. However, notwithstanding this report and Mr Sarony's submission, in the second report prepared by Andrew Ebben, an expert of the Plaintiffs, at para.6.5, he stated that it is not clear as to whether the deceased was supporting himself on the rope immediately prior to and during the early stages of the incident or indeed, at which point he sank below the surface. Further, no where in the Statement of Claim or Particulars is any case made out that the line had any relevance at all to the difficulties the deceased got into, nor is there any pleading as to how this was somehow causative of the death of the deceased. Thus the reference to the flotation line is irrelevant. The matters contained in the two reports do not show the relevance of the flotation lines. Further, the reference to "or otherwise" after the words "safety implications" are imprecise and meaningless.

Item 2

"2.

If the answer to I above is 'yes'

	(i)	identify by name and address who carried out such investigation or inquiry.
	(a)	when.
	(b)	where, and
	(c)	the means and/or manner of so doing, identifying any similar bathing pools, leisure facilities or operators of like pools or facilities, at or in connection or liaison with which such investigations or inquiries were carried out.
	(ii)	Did you seek the advice or consult any consultant or expert in the field of safety in relation to flotation in similar bathing pools or leisure facilities?

If the answer to (ii) above is yes identify by name and address such consultant (s) and/or expert (s) and state whether or not any advice was given and if so whether oral or in writing.

(iii)

If the advice was oral state the gist of such advice and if in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 rule 11A Rules of the Supreme Court, upon the usual undertaking."

19. Apart from the general objections, this item is further objectionable on the basis that it seeks evidence of the Defendant's case; it seeks evidence of an expert or opinion and it seeks discovery of documents.

Item 3

"3.

Did you take any steps to inform yourself of the recognised dangers associated with the operation of such a wave pool?

If yes :	(i)	What precisely did you do?
	(ii)	Whom did you consult?
	(iii)	What reference material did you refer to?
	(iv)	What advice did you receive?
	(v)	From whom did you receive the advice?
	(vi)	Supply a copy of any document or documents with which you were supplied in response to your enquiries pursuant to Order 24 rule 11A Rules of the Supreme Court upon the usual undertaking."

20. As framed it is imprecise because it has never identified what are the recognised dangers. The Plaintiff has never identified in the Amended Statement of Claim what are the recognised dangers of the pool. In the Further and Better Particulars, para. 10, the Plaintiff simply asserted that the Defendant is not entitled to further and better particulars of a negative averment. Further, this item is objectionable because it seeks the Defendant's evidence, it seeks evidence of an expert or opinion and it seeks discovery of documents.

Item 4

"4.

Did you take any steps or cause steps to be taken to inform yourself investigate or inquire specifically into the safety implications of preventing or reducing reflective glare from the surface of the water in the Big Wave Pool

	(a)	Before opening Water World to the public:
	(b)	if the answer to (a) is none at what stage if at all?

If the answer to 3 above is 'yes'

	(i)	identify by name and address who carried out such investigation or inquiry:
	(a)	when;
	(b)	where;
	(c)	the means and manner of so doing;
	(d)	identify any similar bathing pools leisure facilities or operators of like pools or facilities at or in connection or liaison with which such investigations or inquiries were carried out."

21. The general objections apply to this item. Further the question of safety implications is imprecise and it is further objectionable on the basis that it seeks the Defendant's evidence.

Item 5

	"5.	Did you consult any consultant, expert in the field of safety in relation to such reflective surface glare in similar bathing pools or leisure facilities?
		If the answer to 5 above is 'yes'

	(a)	identify by name and address such consultant(s) or expert (s) and
	(b)	state whether or not you were given any advice and if so whether oral or in writing?
	(i)	If the advice was oral state the gist of such advice and if in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 rule 11A Rules of the Supreme Court upon the usual undertaking."

22. The general objections apply. This request is further objectionable because it seeks the evidence of the Defendant, it seeks the evidence of an expert or opinion and it seeks discovery of documents.

Item 6

	"6.	Did you take any steps or cause any steps to be taken to inform yourself investigate or inquire into the safety implications or otherwise of the number and positioning of fixed lifeguard stations at the Big Wave Pool?
		If 'yes'

	(a)	Before opening Water World to the public?
	(b)	If the answer to (a) is no then at what stage did you do so?

If the answer to either (a) or (b) above is yes:

	(i)	identify by name and address who carried out such investigation or inquiry and state:
	(a)	when,
	(b)	where,
	(c)	the means and/or manner of so doing.
	(d)	identifying any similar bathing pools leisure facilities or operators of like pools or facilities at or in connection or liaison with which such investigations or inquiries were carried out."

23. The general objections apply, the question of safety implication or otherwise of the number and positioning of fix lifeguards are imprecise, it seeks evidence of the Defendant, it seeks evidence of an expert or opinion and it seeks discovery of documents.

Item 7

	"7.	Did you consult any consultant (s) or expert (s) in the field of lifeguarding at similar bathing pools or leisure facilities?
		If the answer to 7 above is yes identify by name and address :

	(a)	whom you consulted;
	(b)	when;
	(c)	where; and
	(d)	what advice was given and if so whether oral or in writing.

(i)

If the advice was oral state the gist of such advice and if in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 Rule 11A Rules of the Supreme Court upon the usual undertaking."

24. Apart from the general objections, the request is objectionable because it seeks evidence of the Defendant, it seeks evidence of an expert or opinion and it seeks discovery of documents.

Item 8

	"8.	Did you take or cause to be taken any steps to inform yourself investigate or inquire as to the number and frequency of mobile lifeguard patrols at the Big Wave Pool?
		If 'yes'

	(a)	Before opening Water World to the public?
	(b)	if the answer to (a) is no when did you take such steps?

If the answer to (b) above is yes

	(i)	identify by name and address who carried out such investigation or inquiry:
	(a)	when
	(b)	where, and
	(c)	the means and/or manner of so doing, identifying any similar bathing pools. leisure facilities or operators of like pools or facilities at or in connection or liaison with which such investigations or inquiries were carried out."

25. The general objections apply. The request is also objectionable because they are imprecise and they seeks the Defendant's evidence.

Item 9

	"9.	Did you consult any consultant (s) or expert (s) in relation to mobile lifeguards at similar bathing pools or leisure facilities?
		If the answer to 9 above is yes

	(a)	identify by name and address such consultant(s) or expert(s). and
	(b)	state what advice was given and if so whether oral or in writing.
	(i)	if the advice was oral state the gist of such advice and if in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 rule 11A Rules of the Supreme Court, upon the usual undertaking."

26. The general objections apply. The interrogatories are seeking evidence of the Defendant's case, it seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 10

	"10.	Did you take any steps or cause to be taken to inform yourself, investigate or inquire into the safety implications or otherwise of the frequency of rotation of life guards on duty at the Big Wave Pool?
		If 'yes'

	a)	Before opening Water World to the public?
	b)	if the answer to a) is no then at what stage?

If the answer to 10 above is 'yes'

(i)

identify by name and address who carried out such investigation or inquiry.

	(a)	when;
	(b)	where, and
	(c)	the means and/or manner of so doing.
	(d)	and identify any similar bathing pools, leisure facilities or operators of like pools or facilities at, or in connection or liaison with which such investigations or inquiries were carried out."

27. The general objections apply. The request is imprecise, it seeks evidence of the Defendant's case. Further the words "or otherwise" is meaningless.

Item 11

	"11.	Did you consult any consultant(s) or expert(s) in relation to rotation of lifeguards at a pool such as the Big Wave Pool?
		If the answer to 11 above is 'yes'

	(a)	identify by name and address such consultant(s) or expert(s) and
	(b)	state whether or not any advice was given and
	(c)	whether the advice was oral or in writing."

28. The general objections apply. It seeks Defendant's evidence and it seeks evidence of an expert or opinion nature.

Item 12

"12.

It the advice was oral state the gist of such advice and if in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 rule 11A Rules of the Supreme Court, upon the usual undertaking."

29. The general objections apply. It seeks the Defendant's evidence. It seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 13

	"13.	Did you take or cause to be taken any steps to inform yourself investigate or inquire into the safety implications of the nature, quality and/or frequency of the supervision of lifeguards at the Big Wave Pool?
		If the answer is yes did you do so:

	a)	Before opening Water World to the public.
	b)	if the answer to a) is no, when did you do so?
	c)	identify by name and address who carried out such investigation or inquiry.
	d)	when
	e)	where and
	f)	the means and/or manner of so doing.
	g)	identify any similar bathing pools, leisure facilities or operators of like pools or facilities at, or in connection or liaison with which such investigations or inquiries were carried out."

30. Paragraph 10(h) of the Amended Statement of Claim pleaded that the Defendant had failed to supervise the lifeguards. However, it is not specified or particularised what supervision should have been but was not properly given. The Plaintiff asked for further and better particulars of Item 10(h). The answer given by the Plaintiff was that this is a necessary inference to be drawn from the circumstances of the case. Thus the Plaintiff does not assert any positive case but is looking for one.

31. Further, Item 13 is imprecise and the Plaintiff seeks evidence of the Defendant's case.

Item 14

	"14.	Did you consult any consultant(s) or expert(s) in the field of supervision and frequency of lifeguarding at similar bathing pools or leisure facilities?
		If the answer to 14 above is yes

	a)	identify by name and address such consultant(s) or expert(s).
	b)	state what advice was given and whether it was oral or in writing.

(i)

32. The general objections apply. The Plaintiff seeks evidence of the Defendant's case. It seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 15

"15.

Did you take or cause to be taken any steps to inform yourself, investigate or inquire into the safety provisions necessary in order to ensure that members of the public would be adequately aware of the dangers peculiar to the Big Wave Pool in particular :

	(i)	determining the number, size, siting, and visibility of signs, or notices required?
	(ii)	determining the audibility, timing and siting of mechanical or other voice warning?

If the answer to 15 is 'yes' give in detail what steps were taken :

	a)	before opening Water World to the public? and if not
	b)	what steps were taken after the opening of Water World to the public?

If the answer to 15 above is 'yes'

	(i)	identify by name and address who carried out such investigation or inquiry.
	(ii)	when,
	(iii)	where and
	(iv)	the means and/or manner of so doing.
	(v)	identifying any similar bathing pools, leisure facilities or operators of like pools or facilities at, or in connection or liaison with which such investigations or inquiries were carried out."

33. The general objections apply. The interrogatories are imprecise and it seeks evidence of the Defendant's case.

Item 16

	"16.	Did you consult any consultant(s), or expert(s) in relation to the provision of safety signs and/or warnings in similar bathing pools or leisure facilities?
		If the answer to 16 above is yes

	(a)	identify by name and address such consultant(s) or expert(s) and
	(b)	state whether or not any advice was given and if so whether oral or in writing.

(i)

If the advice was oral state the gist of it and if in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 rule 11A Rules of the Supreme Court, upon the usual undertaking."

34. The general objections apply. It seeks evidence of the Defendant's case. It seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 17

	"17.	Did you take or cause to be taken any steps to inform yourself, investigate or inquire into the implementation and/or maintenance of any or any effective emergency operation plan or procedure in the event of any accident occurrence at the Big Wave Pool?
		If the answer is 'yes':

	a)	Did you do so before opening Water World to the public?
	b)	If the answer to a) is 'no' at what stage did you do so?

If the answer to 17 above is yes:

	(i)	identify by name and address who carried out such investigation or inquiry.
	(ii)	when
	(iii)	when
	(iv)	the means and/or manner of so doing.
	(v)	identify any similar bathing pools, leisure facilities or operators of like pools or facilities at or in connection or liaison with which such investigations or inquiries were carried out."

35. The general objections apply. The interrogatory is imprecise and it seeks evidence of the Defendant's case.

Item 18

	"18.	Did you consult any consultant(s), or expert(s) in relation to the provision of emergency operational procedures in similar bathing pools or leisure facilities?
		It the answer to 18 above is yes

	(a)	identify by name and address such consultant(s) or expert(s) and
	(b)	state whether or not any advice was given and if so whether oral or in writing.

(i)

36. The general objections apply. It seeks evidence of the Defendant's case. It seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 19

	"19.	Did you take or cause to be taken any steps to inform yourself investigate or inquire into the qualifications and/or training and/or experience necessary for lifeguards employed at Water World and in particular at the Big Wave Pool?
		If the answer to 19 is 'yes'

	a)	Did you do so before opening Water World to the public?
	b)	if the answer to a) is no at what stage did you do so?

If the answer to 19 above is 'yes'

	(i)	identify by name and address who carried out such investigation or jnquiry.
	(ii)	when,
	(iii)	where and
	(iv)	the means and/or manner of so doing.
	(v)	identify any similar bathing pools, leisure facilities or operators of like pools or facilities at, or in connection or liaison with which such investigations or inquiries were carried out."

37. The general objections apply. The interrogatory is imprecise. The Plaintiff has not specified what qualifications they are referring to. They have indicated that they are not concerned with paper qualifications of the lifeguards. In respect of training, no positive case was pleaded so far and question of experience was not pleaded. Further, it seeks evidence of the Defendant's case.

Item 20

	"20.	Did you consult any consultant(s) or expert(s)in relation to the qualifications/training of lifeguards in similar pools or leisure facilities?
	(i)	If the answer is 'yes'

	(a)	identify by name and address such consultant(s) or expert(s) and
	(b)	state whether or not any advice was given and if so whether oral or in writing.

(ii)

38. The general objections apply. The interrogatory is imprecise. It seeks evidence of the Defendant's case. It seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 21

"21.

Did you take or cause to be taken any steps to ensure that lifeguards recruited for employment at Water World and in particular at the Big Wave Pool were suitably qualified, experienced and/or trained in:

	(1)	primary prevention of accident occurrence?
	(2)	prompt and effective handling of a water based accident?
	(3)	administration of adequate and appropriate first aid?
	(4)	techniques of resuscitation pending the arrival of more qualified medical attention?"

39. The general objections apply. The interrogatory is imprecise and it seeks evidence of the Defendant's case.

Item 22

"22.

If the answer to 21 is 'yes' did you do so and what precisely did you do

	(a)	before opening Water World to the public?
	(b)	if the answer to (a) is 'no'
	(i)	when were such steps taken?
	(ii)	identify by name and address who took such steps or precautions.
	(a)	when
	(b)	where and
	(c)	what means or methods were employed in so doing.

40. The general objections apply. It seeks evidence of the Defendant's case.

Item 23

"23.

Was any refresher training given to the lifeguards? If the answer is 'yes'

	(a)	by whom
	(b)	when and
	(c)	what means and methods were employed in so doing and the nature of such training?"

41. The general objections apply. It seeks evidence of the Defendant's case.

Item 24

	"24.	Was any reference made to or use made of any equipment, documents, training aids or manuals or other material in the course of such training?
		If yes :-

	(a)	what reference was made to and/or use made of any such equipment, document, training aids or materials or such other material.
	(b)	when
	(c)	where and
	(d)	what means or methods were employed in so doing?"

42. The general objections apply. It seeks evidence of the Defendant's case.

Item 25

	"25.	Did you take or cause to be taken any steps to inform yourself, investigate or inquire into the safety implications of what number of members of the public should be admitted into the Big Wave Pool at any one time?
		If the answer is 'yes' did you do so

	a)	Before opening Water World to the public?
	b)	if not, at what stage did you do so?"

43. The general objections apply. The relevance of the number of members of the public who should be admitted into the Big Wave Pool is unknown. The Plaintiff has not pleaded the number of members of the public in their pleadings. In any event, it seeks evidence of the Defendant's case.

Item 26

"26.

If the answer to 25 above is yes

	(i)	identify by name and address who carried out such investigation or inquiry
	(ii)	when
	(iii)	where and
	(iv)	the means and/or manner of so doing.
	(v)	identify any similar bathing pools, leisure facilities or operators of like pools or facilities at, or in connection or liaison with which such investigations or inquiries were carried out."

44. The general objections apply. It seeks evidence of the Defendant's case.

Item 27

	"27.	Did you consult any expert(s) or consultant(s) in relation to the safe capacity of numbers to be admitted to the Big Wave Pool by reference to similar bathing pools or leisure facilities?
		If the answer above is yes

	(i)	identify by name and address such consultant(s), or expert(s) and
	(ii)	state whether or not any advice was given and if so whether oral or in writing
	(iii)	If the advice was oral state the gist of such advice
	(iv)	if the advice was in writing supply a copy of the document or documents in which such advice is contained or referred to pursuant to Order 24 rule 11A Rules of the Supreme Court. upon the usual undertaking."

45. The general objections apply. It seeks evidence of the Defendant's case and it seeks evidence of an expert or opinion nature and it seeks discovery of documents.

Item 28

"28.

After the opening of Water World to the public did you take or cause to be taken any steps to change equipment, operational procedures, recruitment or training of lifeguards or facilities at the Big Wave Pool in respect of;

	(1)	the number and positioning of fixed lifeguard stations?
	(2)	the number and frequency of mobile lifeguard patrols?
	(3)	the frequency of rotation of lifeguards on duty?
	(4)	the installation of a flotation line at the deep-end?
	(5)	preventing or reducing reflective glare from the surface of the water in the Big Wave Pool?
	(6)	the nature, quality and/or frequency of supervision of lifeguards?
	(7)	the number, size, siting, quality, visibility or audibility of signs, warnings or notices whether oral or in writing, in order to ensure that members of the public would be fully aware of the dangers peculiar to the Big Wave Pool?
	(8)	the implementation and/or maintenance of any or any effective emergency operation plan or procedure in the event of any accident occurrence at the Big Wave Pool?
	(9)	qualifications, training and/or experience of lifeguards employed at Water World?
	(10)	the refresher training of lifeguards?
	(11)	the supervision of lifeguards?"

46. This item is oppressive. The question is open ended as to time. Mr Sarony submitted that, in view of Item 29 which deals with the changes after the death of the deceased, Item 28 is intended to refer to the time between the opening of Water World to the death of the deceased. But even if that is so, the Defendant is required to answer in respect of 11 categories of operation whether there had been any change. If indeed there had been changes in any of the operations listed, it is difficult to see now how that would bear any relationship to the issues as to the cause of the death of the deceased on 31st July 1984. If the Defendant answers yes to the various questions in Item 28, then presumably the Plaintiff would wish to put further questions as to what change had taken place, when and why. Each of the 11 category of questions itself contains a number of sub-categories or alternatives. This is clearly shown in Item 28(7) which relate to the number, size, siting, quality, visibility or audibility of signs, warnings or notice, whether oral or written etc. The various categories are largely repetitive of earlier questions. The interrogatories are fishing expeditions designed to try and find a case to support the pleadings which at present are simply based on res ipsa loquitur and/or inferences. Further, the interrogatories are imprecise.

Item 29

"29.

After the death of the deceased, did you take or cause to be taken any steps to change equipment, operational procedures or facilities, recruitment or training at the Big Wave Pool in respect of

	(1)	the number and positioning of fixed lifeguard stations?
	(2)	the number and frequency of mobile lifeguard patrols?
	(3)	the frequency of rotation of lifeguards on duty?
	(4)	the installation of a flotation line at the deep-end?
	(5)	preventing or reducing reflective glare from the surface of the water in the Big Wave Pool?
	(6)	the nature, quality and/or frequency of supervision of lifeguards?
	(7)	the number, size, siting, quality, visibility or audibility of signs, warnings or notices whether oral or in writing, in order to ensure that members of the public would be fully aware of the dangers peculiar to the Big Wave Pool?
	(8)	the implementation and/or maintenance of any or any effective emergency operation plan or procedure in the event of any accident occurrence at the Big Wave Pool?
	(9)	qualifications, training and/or experience of lifeguards employed at Water World?
	(10)	the refresher training of lifeguards?
	(11)	the supervision of lifeguards?"

47. This will require the Defendant to answer in respect of 11 categories of operations, whether there had been any change of the nature indicated at any time from July 1984 to date which covering a period of 11 years. The comments that I have made in relation to Item 28 applies equally to Item 29.

Conclusion

48. I am not satisfied that the Plaintiff is entitled to the interrogatories and I shall order that the interrogatories be withdrawn and that costs nisi of the application be to the Defendant.

	(Peter Cheung)
	Judge of the High Court

Representation:

Mr Neville Sarony, Q.C. and Mr John Wright, inst'd. by M/s Simmons & Simmons, for Plaintiff.

Mr Richard Mills-Owens, Q.C. and Mr Ruy Barretto, inst'd by M/s Haldanes, for Defendant.

LEE NUI FOON v. OCEAN PARK CORPORATION, AN INDEPENDENT STATUTORY CORPORATION

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