WONG WAI SUM AND ANOTHER v. YEUNG SOU WING AND ANOTHER

HCPI 388/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 388 OF 2000

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R U L I N G

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BACKGROUND

1.  On 8 April 1997, a fire broke out at Flat D of the 6^th Floor (“the said flat”) at No 3 Glee Path, Mei Foo Sun Chuen (“the said building”). As a result, Wong Chun Wing Tony (“the 1^st deceased”) and his grandmother Li Wai Hing (“the 2^nd deceased”) who were staying in another floor were killed.  Mr Wong Wai Sum, the administrator of the estate of the 1^st and 2^nd deceased took out this action to recover damages against the 1^st and 2^nd defendants.

2.  According to the statement of claim filed herein on 11 October 2000, the 1^st defendant was at the material time a co-owner of the said flat. It is the plaintiffs’ case that sometime before 12 noon on 8 April 1997, the 1^st defendant was sitting on a settee in the living area of the said flat with a lit cigarette.  The 1^st defendant fell asleep and the cigarette came into contact with the fabric of the settee.  As a result, a fire broke out in the said flat.

3.  The 1^st defendant and/or other occupants in the said flat fled the said flat.  After they left the said flat, the main door of the said flat remain opened.  The smoke generated from the fire escape through the main door of the said flat into the lift lobby outside the said flat.

4.  It is the case of the plaintiffs that the self-closing device of the smoke door next to flat A of 6^th floor of the said building was partially failed, and the smoke door was left open.  The smoke door next to the said flat was also jammed open by the raised floor.  As a result, the smoke escaped into the stairways, which were the only mean of escape. 

5.  At the material times, the 1^st and 2^nd deceased were staying inside flat A on 15^th floor of the said building (“the said flat A”).  They left the said flat A and intended to leave the said building through the stairways.  However, as the stairways and/or the lift lobby were filled with smoke, the 1^st and 2^nd deceased were overcome by the smoke and were asphyxiated on the floor of the lift lobby between flat A and flat B of 15^th floor of the said building.

6.  The 2^nd defendant was at the material time the developer as well as the manager of the estate known as Mei Foo Sun Chuen which includes the said building.  It was so appointed by the Deed of Mutual Covenant applicable to the said building.  The plaintiffs claim that the 2^nd defendant is in possession/control of the common areas and common parts of Mei Foo Sun Chuen.  Further, the 2^nd defendant is under contractual and statutory duty to manage and maintain the said building and its common areas and common parts.  The common parts include the smoke doors.

7.  The plaintiffs claim, inter alia, that the death of the 1^st and 2^nd deceased were caused by the negligence of the 2^nd defendant in failing to maintain properly or at all smoke doors as set out in paragraph 13b of the statement of claim, and causing or permitting the said smoke doors to be opened or to remain open contributing to and/or accelerating the spread of fire and/or smoke which caused the death of the 1^st and 2^nd deceased.  Further particulars of negligence and/or breach of duty of care have been set out in paragraph 13 of the statement of claim which I do not intend to repeat here.

8.  The writ has been served on the 2^nd defendant and on 8 November 2000, the 2^nd defendant filed its defence.  All allegations of the plaintiffs have been denied but no positive averment has been put forward.  At paragraph 15, the 2^nd defendant avers that the death of the 1^st and 2^nd deceased were caused or contributed to by the negligence and/or breach of common duty of care on the part of the 1^st defendant.

9.  Since filing of the 2^nd defendant’s defence, the proceeding has been in abeyance for a long period of time.  On 27 April 2012, the plaintiffs filed notice of intention to proceed.  On 29 May 2012, the plaintiffs filed their list of document and on 23 July 2012 they took out a summons returnable before Master M Ng (as she then was) seeking directions on discovery, exchange of witness statement and filing of the revised statement of damages.

10.  At the hearing before the learned master, the parties indicated that they intended to have mediation to resolve the dispute.  At the same time, the 2^nd defendant indicated that it wished to amend its defence.

The Application

11.  For the purpose of saving costs, the 2^nd defendant had served a draft defence on the plaintiffs (“the 1^st draft”).  No formal application for amendment had then been taken out.  Mediation has been attempted but failed.  On 15 July 2013, the 2^nd defendant issued a summons applying for leave to amend its defence.  The draft attached to the summons (“the 2^nd draft”) is different from the 1^st draft. On the hearing on 23 July 2013 before me, leave was granted to the 2^nd defendant to withdraw the summons with costs to the plaintiffs.

12.  By another summons filed on 22 July 2013 and returnable before me also on 23 July 2013, the 2^nd defendant applied to amend his defence but in the form of a 3^rd draft (“the 3^rd draft”).  This was resisted by the plaintiffs and I have the matter adjourned for argument.  But the summons has never been set down for argument.

13.  By another summons filed by the 2^nd defendant on 8 November 2013, the 2^nd defendant sought leave to withdraw the summons issued on 22 July 2013 with costs to the plaintiffs.  It further applied to amend its defence in the form of a 4^th draft (“the 4^th draft”). Leave was granted by Master M Wong for the 2^nd defendant to withdraw the summons filed on 22 July 2013 with costs to the plaintiffs.  On the application by the 2^nd defendant for leave to amend its defence as per the 4^th draft, the matter was adjourned for argument and it was set down before me today.

14.  Before I proceed to deal with the argument, I am informed that the defendant had by letter served a 5^th draft on the plaintiffs.  Mr Lee, solicitors for the 2^nd defendant, confirmed that they are relying on the 4^th draft and Mr Lim, counsel for the plaintiffs, seeks costs on the 5^th draft.  I shall deal with the question of costs in the conclusion of this ruling.

Legal Principles

15.  Mr Lee submitted that the guiding principle of cardinal importance on the question of amendment is, all amendments ought to be allowed for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any mistake or error in any proceedings.  He referred to Cropper v Smith (1884) 26 Ch D 700, Bowen LJ said in his judgment that: -

“It is a well established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. …… I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party …… It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

16.  Mr Lim referred me to the case of Li Fat Mui v Able Engineering Company Limited and others [1998] 1 HKC 469 when Seagroatt J. (as he then was) refers to Clarapede & Co v Commercial Union Association (1883) 32 WR 262 and said late amendment should be allowed if it would not cause the opponent some injury or prejudice him in some way that cannot be compensated for by costs or otherwise. 

17.  I believe the legal principle is not in dispute.  Mr Lim and Mr Lee agreed with me that after the Civil Justice Reform, the principle has to be read with the underline principle of Order 1A when this court consider whether to exercise the discretion for allowing the amendment.   I would refer to a judgment of Deputy Judge Lok given in Li Shiu To and Li Shiu Tsang and others HCA416/2003 when the principle has been set out.  I refer to the follow paragraphs in the judgment which I agree –

14. The principles under which the court exercises its discretion to allow or refuse amendments to pleadings can be summarised into 4 prepositions (see: Ketteman v Hansel Properties Ltd [1987] 1 AC189, per Lord Brandon at p 212F-H):

(i) first, all such amendments should be made as are necessary to enable the real questions between the parties to be decided;

(ii) second, amendments should not be refused solely because they have been made by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights;

(iii) third, however blameworthy (short of bad faith) may have been a party’s failure to plead the subject-matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party; and

(iv) fourth, there is no injustice to the other party if he can be compensated by appropriate orders as to costs.

16. I agree that the Ketteman principles remain good law after the CRJ, but I must put a caveat here.  First, the new O 1A of the RHC makes it clear that the court shall give effect to the underlying objectives when it exercises its power or interprets the RHC, including increasing cost-effectiveness of litigation, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, facilitating the settlement of disputes and ensuring that the resources of the court are distributed fairly.  If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.

17. Second, there is a heightened concern to guard against late applications after the implementation of the CJR.  For case management purposes, there are now certain milestone dates in the course of litigation, and one of which would be the trial date.  If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances.  …..

18.  The main objections of the plaintiffs are that this is a late application, and they will suffer from prejudice that cannot be compensated by costs.  Mr Lim submits that the plaintiffs may not be able to locate the relevant witnesses.  Or if they could be located, their memory must have faded.  Hence the application for amendment should not be allowed. 

19.  Alternatively, Mr Lim also referred to Order 20 rule 8(1A), which provides that, “the Court shall not under paragraph (1) order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”.  He submits that the proposed amendments do not come within paragraph (1A) and the application should not be allowed.

Evidence

20.  Before I consider the submission of Mr Lee and Mr Lim in details, I note that both parties have not filed any affirmation for this application.  The plaintiffs have filed a bundle including the investigation report by government chemist and fire investigation report of the cause of the fire.  The 2^nd defendant in response has put in a bundle of the transcript of the death inquest.  Mr Lee initially objected to the production of these reports.  But at the end, he does not retain his objection and leave it for me to decide whether I have to refer to those reports.  I do not consider necessary to read through all the reports but I have no objection to read the submission when Mr Lim and Mr Lee referred to those reports.

Discussion and Ruling

21.  By the new amendments, the 2^nd defendant now put forward some positive averments.  The 1^st major amendment is the new paragraph 6 which would be the case of the 2^nd defendant that firemen arrived at the scene at 1158 hours.  When they arrived at the 6^th floor of the said building, they had wedged open the smoke doors at 6^th floor to search and rescue the people and pulled fire hoses through the smoke doors to fight the fire at the said flat.  The smoke doors had to be opened and kept open in the course of extinguishing the fire and rescuing the people.  The intense smoke would move or spread into the staircase of the building.

22.  Further and in the alternative, the 2^nd defendant now claimed that when the other residents of 6^th floor fled, they had to push open and/or wedge open the smoke doors.  The intense smoke would inevitably move or spread into the stairways of the building. 

23.  It is also stated in the new paragraph 6 that when the firemen located the body of the 1^st defendant, they carried him out and the smoke doors had to be opened.  Inevitably, the intense smoke would escape into the stairways.  I did not repeat all the particulars.

24.  The 2^nd defendant also avers in paragraph 6 that if the 1^st and 2^nd deceased had remained in their flat, they would not have suffered the fatal injuries. 

25.  In gist, the 2^nd defendant avers that the cause of the escape of smoke from the said flat to the staircase was not due to the defects of the smoke doors on the 6^th floor of the said building and they should not be held liable for the fatal injuries to the 1^st and 2^nd deceased.

26.  Mr Lim submitted that the new paragraph 6 of the draft purports to plead some new positive averments as aforesaid.  The amendment sought raised new issue on causation.  If allowed, it would necessitate calling the occupants of the said building and the firemen who attended the scene, if they can be located. He submitted they would in all likelihood have no independent recollection. Accordingly, the prejudice to the plaintiffs cannot be compensated by costs.

27.  Mr Lim also complained that the contents of the government chemist’s report were made known to the 2^nd defendant in correspondence back in 2009 and 2010.  I believe he complains that the 2^nd defendant has taken out this application late.

28.  I have no evidence on such correspondence.  I do not think Mr Lee denies these correspondence.  In his written submission, Mr. Lee said the reports are not sufficient to show the actual circumstances of the fire accident, and all the issues on liability.  It is necessary to consider the transcript of the evidence given by firemen in the death inquest, which the 2^nd defendant only applied for in 2012. 

29.  Mr Lee referred me to the undisputed fact that for the period from 2000 to 2012 the plaintiff is not active in prosecuting the case.  There is no explanation for the delay.  Hence the 2^nd defendant cannot be blamed for taking out the application only in 2012 for amendment.  Further, there is no affirmation filed by the plaintiffs as to any attempt they have made to locate potential witnesses, or as to any difficulties they met.  In those circumstances, it is not sufficient for Mr Lim to submit that they would suffer prejudice.

30.  I first deal with the question of delay.  The fire broke out in 1997. This application is taken out 16 years later.  And the defence was filed in 2000, 12 years ago.  It looks like a late application.

31.  I have to agree with Mr Lee that for the intervening 10 odd years (between 2000 and 2012), the case is in abeyance and there is no action taken out by the plaintiffs until 2012.  No affirmation has been filed to explain the delay on the part of the plaintiffs.  And no explanation has been offered by Mr Lim why no step had been taken until 2012 when they filed their list of documents.  Even taking the written submission of Mr Lim that in 2004, the 2^nd defendant asked the plaintiffs to quantify their claims.  Between 2008 and 2010/2011, there were negotiations for settlement.  There is no reason why the proceedings cannot continue in the meantime, and the plaintiffs offer no explanation. 

32.  Even accepting that the 2^nd Defendant came to know about the government chemist’s report in 2009 or 2010, I cannot blame the 2^nd defendant for only taking out this application in 2012, when the plaintiffs have not proceeded with the action again by filed their Notice of Intention to Proceed.  At most, this is a short delay.

33.  More importantly, when I am considering if this is a late application, I should not only consider the time lapse between the accident and the date of application.  I should also take into account the progress of the case, and whether there is any milestone date fixed.  I note that the pleadings have been closed in 2000, but the plaintiffs only filed the list of documents in 2012.  Witness statement has not been exchanged.  Expert direction may be necessary but not given.  And the action is not ready to be set down.  This is not the kind of last minute application that I should refuse to exercise my discretion, having taking into account the underlining principle of Order 1A. 

34.  Next, I have to consider if the plaintiffs suffer prejudice if I allow the amendment.  Turning to the new paragraph 6, I also agree with Mr Lee that for various allegation raised involving the firemen, they have mentioned the firemen numbers in the 4^th draft.  It is possible to identify the firemen who gave evidence at the death inquest.  While I accept some firemen may have retired by now, I have no evidence from the plaintiffs that they have attempted to locate these witnesses and they could not be found.

35.  Mr Lim submits that the memory of the witness may fade.   Indeed, I have in front of me 3 box files of the investigation reports and the transcripts of the death inquest which I believe would provide valuable evidence for this case, and could refresh the memory of the material witnesses.

36.  As for other residents in the building, again there is no evidence if the plaintiffs have attempted to locate them and what are the difficulties.  I cannot be satisfied that the plaintiffs suffer such prejudice that cannot be compensated by costs if I allowed the amendment.

37.  Mr Lim also objected to paragraph 6 on the ground that the amendment did not come within the provision of Order 20 rule 8(1) and (1A). 

38.  The causation of the fire and how the smoke got into the stairways must be an important issue for trial.  It is indeed the case of the plaintiffs that the smoke escaped into the staircase was due to defective smoke doors.  And it is the duty of the 2^nd defendant to maintain the smoke door.  The issue now raised by the 2^nd defendant on other cause for the escape of smoke must be relevant to determine the real issue in dispute.

39.  Balancing the above, I consider it is appropriate for me to exercise my discretion to allow the amendment as set out in paragraph 6.

40.  I shall now move on to the paragraphs 7 to 11, and 16 to 23 of the 4^th draft.  The new paragraph 7 to 11 of the 4^th draft set out what the 2^nd defendant considers as the duty imposed on the manager by the Deed of Mutual Covenant and the Building Management Ordinance.  In particular, they referred to clause (j) of the 2^nd schedule of the Deed of Mutual Covenant which provides that “the Manager shall be under no liability to any Owner for the breach by the Manager of any of the terms herein unless such breach is caused by the willful neglect or default of the Manager”.

41.  These averment must be relevant to the issues.  And indeed the plaintiffs have referred to the Ordinance and the Deed in the statement of claim.  The 2^nd defendant now seeks to rely on an exemption clause, which is not an uncommon clause to be found in deed of mutual covenant.  Whether the clause could offer the protection the 2^nd defendant claims must be matter of interpretation at the trial.

42.  Paragraphs 16 to 20 are particulars on the averment that the 2^nd defendant has already discharged his duty of care if any.  The duty on the manager to manage the common area and common parts is in issue and accordingly, the new defence that he has discharged his duty must also be relevant.  I fail to see that this is not relevant to a just decision of the case. 

43.  The main argument of Mr Lim is that this is a late application.  I need not repeat my earlier finding.  He also argues that given the time, a lot of the management record may not be available.  As the pleader, the 2^nd defendant bears the burden to establish how they manage the building and how they maintain the common parts and common areas.  I only need to add there is no evidence filed to say that the plaintiffs have such difficulty to obtain evidence to rebut the 2^nd defendant’s argument.  I would allow the amendment.

44.  The next major objection to the proposed amendment by Mr Lim is in respect of the new paragraph 13 of the draft.  He complained that the proposed amendment is not based on facts but surmise and postulations.  He quoted for example that sub-paragraph (c)(ii) pleads that the “partial failure of the self-closing device of the smoke door next to Flat A on 6^th floor No. 3 Glee Path could be caused by the intense heat of the fire”.  As another example, he quoted sub-paragraph (c)(iii) which pleads that by reason of the low visibility, “when [the firemen] forced open the smoke doors to rescue the residents or fight the fire, the self-closing device of the smoke door might also be damaged”.  A total of 8 examples have been quoted by Mr Lim in his written submission which I need not repeat.  In some cases, choice of words like “might” or “could be” may create confusion.

45.  The Honourable Chief Justice said in Kwok Chin Wing v 21 Holdings Ltd (formerly known as GFT Holdings Ltd, Capital Prosper Ltd and Rockapetta Holdings Ltd & Another FACV 9/2012, “The purpose of pleadings, in clearly and unambiguously setting out the true extent and nature of a dispute not just for the benefit of the parties but also for the Court in managing and trying cases, remains important under our system of civil justice.”  The pleader must not leave the other parties to speculate the case to meet.  But to read the pleading correctly, one has to read the whole paragraph on the same issue. 

46.  If I refer to sub-paragraph (c)(ii) again, the 2^nd defendant also pleads that the fire in the Flat was fierce before suggesting that the partial failure could be caused by the intense heat.  Whether the fire is fierce would be a finding of fact and whether a fierce fire could cause the failure of the self-closing device would be matter for the trial judge after hearing all the evidence, including if appropriate expert evidence.

47.  Referring to sub-paragraph (c)(iii), whether the firemen has forced open the smoke door would be a finding facts and again, whether the self-closing device of smoke door was damaged would again be a finding for the trial judge to make on the evidence before the Court.

48.   I do not intend to go through all the complained issues, as the argument of Mr. Lim is the same.  And by reading each of the sub-paragraphs complained of, alleged facts have been pleaded before the 2^nd defendant pleads the reason why the smoke door was jammed or the self-closing device was damaged.  I cannot agree with Mr Lim that the drafting of the amendment amount to surmise or postulations. 

49.  I also note that paragraph 10(d), (e), (f), (g), (h) and (i) of statement of claim are mere description of how the fire broke out.  This is now answered by the amendment to paragraph 6 when the 2^nd defendant states its case on how the fire broke out and smoke got into the staircases.  And paragraph 13 can be read with paragraph 6 and that set out the case of the 2^nd defendant on why it said it is not liable for jamming the smoke doors and the fatal injury of the 1^st and 2^nd deceased.  I therefore allow the amendment to paragraph 13.

50.  The next proposed amendments relate to paragraph 14, 25 and 33 of the 4^th draft.  The 2^nd defendant raised in this draft the plea of contributory negligence.  In summary, the 2^nd defendant criticized the decision of the 1^st and 2^nd deceased to escape instead of remaining in the said Flat A, which solely caused or contributed to their fatal injuries.  Mr Lim said such a plea is unwarranted.  He referred me to the case of Brandon v Osborone Garrett & Co [1924] 1 KB 548.  Swift J. said in his judgment  

“…if a person is placed by the negligence of the defendant in a position in which he acts under a reasonable apprehension of danger and in consequence of so acting is injured, he is entitled to recover damages, unless his conduct in all circumstances of the case amounts to contributory negligence. If a person is not to be held guilty of contributory negligence because he, acting instinctively for his own preservation, does that which a reasonable man under those conditions would do, I cannot see why he should be any more held to be guilty of contributory negligence…”

51.  Mr Lim refers to paragraph 54 of the Fire Investigation Report where it was stated “One point worth mentioning here was that many of the occupants expressed that they saw grey smoke which are not very dense.  Perhaps it was the seemingly less harmful colour that deceived the judgment of the victims, because the two predominant toxic gases, Carbon Monoxide and Hydrogen Cyanide, were colourless”.

52.  I can see the argument of Mr Lim that the 1^st and 2^nd deceased should not be held guilty of contributory negligence because they act in a way how a reasonable man would react to danger.  There is force in his argument.  But this is not the proper venue to determine this issue.  Whether the plaintiffs are guilty of contributory negligence would be a matter of mix fact and law for the trial judge, after hearing evidence and full argument.

53.  I allowed the proposed amendment in the above 3 paragraphs.

54.  Mr. Lim has no objection to paragraph 24 of the 4^th draft. 

55.  That disposed of all the application for amendment.  I order as follows –

i) Leave to the 2^nd defendant to file and serve an amended defence as per the 4^th draft save and except the proposed amendment to paragraph 13 within 14 days from today;

ii) Leave to the plaintiffs to file and serve a Reply, if so advised, within 28 days thereafter;

iii) Parties to file and serve supplemental list of documents within 28 days thereafter;

iv) A Checklist Review Hearing be fixed on 8 July 2014 at 11:00 a.m. for further case management directions.

56.  The remaining issue is on costs.  The costs of the 1^st draft are not before me and may have been covered by the costs of mediation.  I am not prepared to deal with it.  The costs relating to the 2^nd and 3^rd drafts have been taken care of by earlier orders.  Mr Lee concedes liability on the costs of and occasioned by the amendment, and the summons.  The only matter in dispute is the costs of today’s hearing, and the costs of the 5^th draft.  Mr Lim applied for costs. 

57.  On the costs of the 5^th draft, Mr Lee opposed on the ground that this is not before me as there is no summons.  I fail to see why I cannot entertain the oral application of Mr Lim for costs which I do.  As the 5^th draft is abandoned by the 2^nd defendant, I would allow costs to the plaintiffs. 

58.  Mr Lee submitted that his client should have costs of today, if the application is allowed.  He refers to the judgment of Yam J. (as he then was) given in Lessy Sarl v Pacific Star Development Ltd & Another [1996] 2 HKC 326 and submits that the usual order is for their client to paid the costs of the amendment and the summons, and the plaintiffs should pay the 2^nd defendant the costs of today’s hearing.  He also relies on earlier correspondence with the plaintiffs’ solicitors when he alerts them of this judgment.

59.  Yam J. in his judgment also confirms that costs is at the discretion of the master hearing the application.  There are cases when this Court departs from the usual order.  But it is for Mr Lim to satisfy me that I should depart from the usual order.  I would give an order nisi that the costs of and occasioned by the summons and the 4^th draft be to the plaintiffs but the costs of today’s hearing be to the 2^nd defendant.