POON KWOK WING ERNEST v. AIRPORT AUTHORITY

cacv 257/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 257 of 2006

(on appeal from HCPI NO. 305 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Suffiad J given on 30 June 2006.  The matter before the judge was an appeal from a decision of the master whereby the master had dismissed the plaintiff’s application for specific discovery and had refused to grant leave to the plaintiff to adduce expert evidence on liability.  The judge dismissed the plaintiff’s appeal.  At the conclusion of the hearing of this appeal judgment was reserved.

Background

2.  The plaintiff was employed as a curb supervisor at Chek Lap Kok Airport.  There is no dispute that he was injured at work at about 1 p.m. on 9 April 2001.  At that time he was on his way from the 8^th floor of the airport where he had been on duty to the 3^rd floor where he would have his lunch in the canteen.  His journey took him on the escalator which descended from the 5^th floor to the 3^rd floor.  What is not in doubt is that he fell on the escalator.  After his fall he ended at the bottom of the escalator, he fainted and when he came to the escalator was no longer moving.  Exactly how the accident happened is not clear from the plaintiff's own versions of the accident.  In paragraph 5 of the statement of claim it is pleaded that:

“As he stepped on the escalator (No. TIV 2) (“the said escalator”) which was running from the 5^th Floor to the 3^rd Floor, the escalator suddenly stopped and the plaintiff fell down on the landing of the said escalator and sprained his low back, ankles and neck (“the Accident”).”

3.  Miss Susannah Ho, the reporting officer who made the Miscellaneous Incident Report to the Landside Operations Department on the same day as the accident occurred, said in the report that she had received information at 1:05 p.m. that there had been an accident and at 1:06 p.m. she had arrived at the scene; she went on to say:

“Mr. Poon informed me that he was walking down the escalator and when he reached the third or fourth step from the top, the escalator suddenly stopped and then he subsequently fell all the way to the bottom.”

4.  In the Incident Report which was filed by the plaintiff himself on 12 April 2001 he said:

“When I walked to the TIV Waiting Lounge south escalator upper landing stepping on plate, I noted the escalator was in normal down running direction.

I stood at the escalator left hand side with my left hand putting on the escalator rubber handrail.  When the escalator travelling down to the 5^th steps it suddenly auto stop without any emergency stop button was being operated.

Owing to the unawareness of escalator stopping, I easily lost my body balance fell forward to the down direction onto the 7^th steps and subsequently rolling down to the escalator low landing stepping off plate.”

The plaintiff is recorded by McLarens Hong Kong Limited, who are apparently loss adjusters, as saying much the same as in his Incident Report when he made a statement to them, save that in that statement he said in addition that there was no other person on the escalator.

5.  It is thus not at all clear from the plaintiff’s own statements as to how the accident occurred.  In particular the statements are not consistent as to whether the plaintiff was standing on the escalator or whether he was walking down the escalator; nor is it clear whether the accident occurred as soon as the plaintiff stepped on the escalator or whether he had stood on the escalator for a short time whilst it had moved down.  There is no doubt that the plaintiff is a large person and doubtless, when he fell, he fell heavily.  What is apparent is that there was nobody who claims to have seen the accident happen and, as noted, from the plaintiff’s own statement it would appear that he thought there was nobody else on the escalator at the time.

6.  Another matter that is apparent from the statement of claim is that the plaintiff has not put forward any specific allegation of defect in the escalator.  The pleading as to negligence is generalised.  The first few allegations refer to the defendant failing to take care for the safety of the plaintiff and failing to provide or maintain a safe place of work.  The remainder of the allegations continue that the plaintiff failed to ensure that escalator was not dangerous and that it was a free from hazards.  Finally it is said that the plaintiff failed adequately or at all to examine, inspect, repair or maintain the escalator which was insecure, defective and dangerous.  Quite apart from the fact that such a plea calls out for further and better particulars, it is apparent that the plaintiff’s advisers could not point to any specific defect or fault in the escalator.  What, at best, might be said, is that properly maintained escalators do not stop suddenly.  However, two matters must be borne in mind.  In the first place all escalators are fitted with emergency stop buttons to enable persons in the vicinity of the escalators to stop them if they think it is necessary for example if they were to see somebody falling or otherwise in danger.  There are also, apparently, trip mechanisms which would also stop the escalator if there is a danger of overloading it either on the escalator itself or on the stepping-on or stepping-off plates.

7.  What is known is that on the day of the accident the company responsible for maintaining the airport escalators, CNIM Hong Kong Ltd, dispatched mechanics to inspect the escalator immediately on being told of the accident.  According to the occurrence report completed the following day the mechanics had arrived at about 1:45 p.m.  They inspected all the safety switches, they tested them and found them to be in good condition.  The Investigation Report signed on the day of the accident, presumably by the person carrying out the inspection, found that the escalator was in good working condition.  The escalator was restarted just over an hour after the mechanics had arrived without any need to activate the reset button.  It is also apparent that there had been an overhaul including cleaning and examination and testing of all safety devices on 28 and 29 March 2001 when again the escalator had been found to be in good working condition.  Finally, three days after the accident, on 12 April 2001, there was an inspection by inspectors of the Electrical and Mechanical Services Department of the Hong Kong Government in the presence of persons from CNIM Hong Kong Ltd and, again, apparently, no defects were found in the escalator.

The application for further discovery

8.  The first request for specific discovery relates to all documents contained in the file bearing the reference number “IR No.: LOD/IR/01-04-008”.  That is the reference number on the right-hand side of the Miscellaneous Incident Report referred to above.  Based on what was said by fellow workers, the plaintiff maintains that a file would have been opened and it would also contain photographs since there was a Polaroid camera specifically provided for taking photographs of locations where accidents happen.  Reference was made by Mr Wong, who appeared on behalf of the plaintiff, to the entry against the heading “Recommendation” at the foot of the report.  That entry appears to have been made by the Deputy Manager who countersigned the report.  It reads:

“To investigate cause of the accident to see any improvement area needed.” 

There was nothing entered in the portion headed “Follow up action:”

9.  From the schedule kept of the Landside Accident/Incident Reports it appears that the preliminary incident investigation report was sent to the Human Resources and Airport Authority Safety offices.

10.  When the plaintiff’s solicitors wrote to the defendant’s solicitors seeking discovery of further documents the reply that was received was as follows:

“In relation to your request in respect of staff members who arrived at the accident scene shortly after your client’s accident on 9 April 2001, we are instructed that Chan Yin King was an employee of CNIM.  He resigned from CNIM, and we do not know his present whereabouts.

We have already disclosed to you all relevant reports made in respect of the alleged accident.  We do not have anything additional for discovery.

Our client has been able to locate the half yearly inspection report of October 2001, and a copy of the same is enclosed here with for your reference.  As the accident occurred on 9th April 2001 we do not understand the relevance of this report.  In respect of your request for other service/survey reports, we are instructed that our client has contacted CNIM, and our client has been advised that those reports have been disposed of.

We confirm that EMSD did conduct a survey on the escalator on 12 April 2001.  We are instructed that EMSD did not make any adverse comment nor did they have any technical concern about the escalator.  EMSD did not give any written report to our client.”

11.  As the judge below said the reference number is insufficient in itself to show the existence of discoverable documents.

12.  From everything that is known from the reports which do exist there was no defect in the escalator which was revealed either prior to the accident or when CNIM Hong Kong Ltd’s mechanics inspected the escalator or when the EMSD staff inspected the escalator.  The fact that there was a note in the Miscellaneous Incident Report to the effect that the cause of the accident should be investigated to see whether there should be any improvement does not indicate that anything further than the two subsequent inspections would have taken place in respect of the escalator.  There may well have been a camera available to take photographs of locations or equipment which were the site of accidents but, given the fact that there was no apparent defect which could be observed in relation to the escalator, it would have been singularly useless for anybody on to have taken a Polaroid photograph of the escalator.  There is nothing which would lead the court to the conclusion that photographs must have existed.

13.  The second class of documents sought were those which were said to be contained in a file bearing reference number IR No.: IN#01004478.  It would appear from the Miscellaneous Incident Report and the summary of the Landside Accident/Incident Reports that this number is the police reference number for the report which was made.  The judge rightly rejected the application in this respect.

14.  The third class of documents which is sought are all letters, faxes, emails, memorandums, incident reports, statements, photographs, sketch plans and drafts thereof relating to the plaintiff’s accident from 12 named individuals.  As the judge, in my view correctly, pointed out there is no evidence that any of those 12 persons or entities brought into existence any documents which are now sought.

15.  The fourth class of documents which is sought includes the Preliminary Incident Investigation Report and all documents arising therefrom kept by the defendant’s human resources department and safety department in relation to the plaintiff’s accident.  As the judge pointed out the defendant has already disclosed the occurrence report prepared by CNIM Hong Kong Ltd following the accident and the further report following the EMSD inspection.  It would appear that, in any event, what was referred to in the summary of Landside Accident/Incident Reports was most probably the Miscellaneous Incident Report itself.

16.  The judge dealt with classes for 5 to 12 together.  The plaintiff now no longer seeks either documents in class 5 or class 12 and has modified the request in relation to some of the other classes.  The documents which were sought include repair, maintenance, service and survey reports, log book for walkways or escalators, comments/suggestions of EMSD after its inspection on 12 April 2001, operations manuals of the escalator, guidelines given in respect of stoppage.  I would particularly mention class 8 which reads “in respect of the Log it Book for walkways or escalators which was prepared by CNIM, all documents or copy thereof, including but not limited to all letters, faxes, emails, memorandums, reports, statements, photographs, sketch plans and draft thereof relating to each and every fault as listed below”.  There are then listed more than 60 incidents which relate to various escalators and presumably walkways throughout the airport.  Not only, as the judge said, was relevance not established in relation to any of these documents but in relation to the class 8 documents I consider that, in view of the absence of any indication of relevance, the discovery sought would be quite oppressive.  As the judge pointed out, the documents sought under class 13, which were the circuit diagrams of the escalator, would not appear to be relevant on the matters which are at present in issue in this case.

17.  In those circumstances I consider that the judge and the master were correct in refusing to make any order for further discovery.  There is no basis for an application for specific discovery.

18.  The judge dismissed the plaintiff’s application to have expert evidence because he considered that it would serve no purpose as regards the issues in the case.  In my view he was correct.  It is now nearly 6 years since the accident occurred.  There is no request for inspection of the escalator and apart from the fact that it would be, in effect, a fishing expedition in itself, any inspection at this stage would be of very little purpose.  In the absence of any inspection and any alleged specific defect either in the construction or design of the escalator there appears to be no purpose to be served in having so termed “expert” evidence.  As was argued, the court should not permit expert evidence unless there is some need for it.

19.  I would therefore dismiss this appeal with an order nisi of costs in favour of the defendant.

Hon Le Pichon JA:

20.  I agree.