LEUNG SAU KUEN v. ALLIANCE SECURITY LTD AND ANOTHER

DCPI 2735/2022

[2026] HKDC 931

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2735 OF 2022

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DECISION

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Introduction

1.  In this action the Plaintiff (“P”) claims for personal injuries arising out of an accident that took place on 9 September 2020 whilst she was employed by the 1^st Defendant (“D1”) as a security guard at Penny Bay’s Quarantine Centre (“Centre”). It is alleged that the 2^nd Defendant (“D2”) was the property manager and/or occupier of the Centre.

2.  Before me is P’s application to re-amend the Statement of Claim. It has been readily acknowledged that the application is late, with the trial scheduled to start in a months’ time on 22 June 2026.

3.  D1 has indicated that it has no objection to the proposed amendments. On the other hand, the amendment application is opposed by D2 not only in relation to the proposed pleas that concern D2 but also those that concern D1. It is D2’s position that if the amendments are allowed, the trial dates would inevitably have to be sacrificed and moved. P’s position is that if I am only minded to allow the amendments on condition that the trial dates are vacated, P would no longer wish to pursue the amendment application.

4.  Given the imminence of trial (the trial bundles and P’s written opening submissions are directed to be due on 8 June 2026) and the likely impact of my decision on proper preparation and conduct of it, upon hearing submissions I indicated to the parties that my written reasons for decision would be prepared on an expedited basis. Accordingly I have kept this decision brief and have avoided significant citation of legal authorities or background materials. This does not mean that I have overlooked the applicable principles or the submissions and arguments of the parties; I have fully taken them into account.

Background facts and the proposed amendments

5.  The background facts have been set out in a separate decision of Deputy District Judge Damian Wong dated 10 April 2026 ([2026] HKDC 640) regarding an application for a determination under O.14A (which was refused). The amendment application was also made returnable before the learned Deputy Judge but at that stage D2 has not filed an affirmation in opposition (which led to the adjournment of the amendment application now before me). I gratefully adopt the factual background set out in that decision as follows (emphasis added):

“5. At the material time:-

(a) D1 was engaged by the Department of Health to provide security services at [the Centre];

(b) P was employed by D1 as a security guard and deployed to work at the Centre; and

(c) Civil Aid Service (“CAS”) was the manager of the Centre.

6. On 9 September 2020 at about 4:30 am, P went into a resting room (“Room”) in the Centre to take a nap. She felt that the Room was too hot and humid, and decided to adjust the air‑conditioner (“AC”). As the AC was installed at a height of around 1.9 metres and there was no remote control in the Room, P stood on a chair (“Chair”) to reach the control panel. When she stepped on the top of the Chair, it moved because of the unequal length of its legs and slipped further on the wet floor. P fell to the ground and sustained injuries (“Accident”).

7. P now claims damages against D1 and D2 for the injuries sustained in the Accident. As pleaded in the Amended Statement of Claim (“ASOC”):-

(a) P’s claim against D1 is founded on (i) negligence; (ii) breach of implied terms in the contract of employment; and (iii) breach of statutory duty under section 6(1) of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”);

(b) P’s claim against D2 is based on (i) section 3 of the Occupiers Liability Ordinance (“OLO”); and (ii) section 7(1) of OSHO; and

(c) The only case‑specific particulars pleaded in the ASOC are: (i) failure to provide a remote control; and (ii) failure to post warning notices in the Room warning against the potential danger of standing on a chair. The particulars as pleaded do not specifically refer to the state of the Chair.

8. Both Defendants deny liability. In essence, D1’s case is that:-

(a) It did not have control over or access to the whole of the Centre. Its staff were only permitted to enter and use those areas (including the Room) that had been designated by D2 for the performance of D1’s contractual duties. The responsibility for providing a remote control to the AC in the Room lay with D2;

(b) P was resting in the Room and was not performing her work duties at the time of the Accident. She stood on the Chair to reach the AC control panel on her own initiative and for her own personal comfort, not in the course of her employment. The Accident was caused, at least in part, by her own negligence; and

(c) The Accident was also caused or contributed to by the negligence and/or breach of statutory duties, ie section 3 of OLO and section 7(1) of OSHO, on the part of D2. D1 specifically pleads that D2 had provided a defective chair with unequal leg length (ie the Chair).

9. D2 admits that CAS deployed its officers to act as the manager of the Centre. Its case is that:-

(a) The Room was one of the prefabricated units allocated to various contractors, including D1, for use as storerooms, and was also used as a standby room by D2;

(b) Contractors had non‑exclusive access control to their respective allocated units, such that the usage and access control of the Room were the responsibility of D1 and/or its employees. CAS staff would not enter contractors’ units or interfere with the contents unless there was operational need. Therefore, D1 was the occupier of the Room and responsible for its maintenance;

(c) Some 700 sets of AC remote controls were available for use at the Centre. They were kept in the Centre’s storeroom and were available for use by D1’s security guards, including P; and

(d) The Accident was caused or contributed to by P’s own negligence as well as by the negligence, breach of contract and breach of statutory duties on the part of D1. D2 adopts P’s particulars of negligence and breach against D1.

10. As between D1 and D2, each seeks indemnity or contribution from the other in the event of being held liable to P.

11. In the contribution proceedings, D2 adopted D1’s Defence to the ASOC as D1’s Statement of Claim and filed a Defence and Counterclaim accordingly. Thus, D1’s claim against D2 is based not only on breach of statutory duties but also on negligence, and relies, inter alia, on the allegation that D2 had provided the defective Chair; see §8(c) above.

12. On 11 June 2025, D2 took out the O.14A Application.

13. On 16 February 2026, being more than 8 months after the O.14A Application and less than one month before its substantive hearing, P took out the Amendment Application seeking, inter alia, to:

(a) Add a new cause of action in OLO against D1;

(b) Add a new cause of action in negligence against D2; and

(c) Add new particulars of negligence and breach of OLO and OSHO on the part of D1 and D2 concerning the defective Chair.”

6.  The particulars of negligence that P wishes to introduce through the amendment application are as follows:

Against D1

(i)  By providing a defective chair with uneven length of legs for use in the Room;

(ii)  By failing to inspect or maintain the Chair;

(iii)  By failing to identify the defect of the Chair and report the same to D2;

(iv)  By failing to adopt any or any adequate system to ensure that the equipment in the Room, including the Chair, was safe and fit for use;

(v)  By failing to take preventive steps to mitigate the risk of dangerous practice adopted by its employees (including P) of standing on a chair to adjust the AC, such as by providing remote controls to the AC for use in the Room;

(vi)  By failing to inform its employees (including P) of the existence of the procedure and means to obtain remote controls to the AC.

Against D2

(i)  By failing to inform D1 of the procedure to obtain the remote controls to the AC (while D2 knew or ought to have known that D1’s employees may have to rest and nap in the Room and adjust the temperature of the AC);

(ii)  By providing a defective chair in the Room for use by D1’s employees including P;

(iii)  By failing to adopt any or any adequate system to inspect the condition of the chairs in the Room.

7.  Some of these particulars are then repeated to sustain causes of action for breaches under the OLO and the OSHO by both D1 and D2. Specifically against D2, the particulars sought to be introduced for breach of statutory duty are (i) the provision of a defective chair for use in the Room and (ii) the failure to adopt any or any adequate system to inspect the condition of the chairs in the Room.

Applicable legal principles for late amendment applications

8.  I am mindful of the requirements under O.20 rr. 5 and 8 of the Rules of the District Court (Cap.336H). I remind myself that an amendment application, albeit late, should be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties and, if possible, technical and procedural rules should not stand in the way. That said, this has to be balanced against the prejudice that the other parties may suffer that cannot be compensated by costs. These are trite principles set out in the White Book and also in Hsu Ming Chi v Lam Shu Chit (unreported, HCCL 8/2013, 22 October 2014) at paragraphs 12-18.

9.  There is a clear difference between allowing amendments to clarify the issues in dispute and those that provide a distinct or new defence or claim to be raised for the first time. This is particularly important in respect of late amendments. An application made close to or at trial that seeks to introduce a wholly new cause of action or defence is more likely to cause prejudice, delay and waste of costs. The court will not readily accede to such an application especially when the new claim or defence could have been raised earlier and the need for amendments was abundantly apparent before the trial began. See White Book 2026 para 20/8/11. As an example, in Igal Dafni v CMA CGM SA [2013] 2 HKLRD 73 at para 26, the Court allowed a late amendment to the pleadings when the subject matter had already been covered in the witness statements and the responding party could not realistically claim that it was taken by surprise. It was in that context that the Court concluded that the amendment was only to clarify an issue that was already live between the parties.

10.  With these principles in mind, I now proceed to deal with the amendment application.

Analysis

11.  In my judgment, the focus of the analysis is whether the proposed amendments raise “new” issues or they are merely “clarifications” of an issue that is already live on the existing pleadings.

12.  The matter is made slightly more complicated than usual by virtue of the existence of contribution proceedings between D1 and D2. In particular, D1’s “claim” against D2 in the contribution proceedings is not set out in the form of a Statement of Claim; the contribution notice provides no particulars of the contribution claim. D2’s Defence in the contribution proceedings treats D1’s Defence in the main action as its statement of claim in the contribution proceedings. In other words, D1’s Defence in the main action serves a dual purpose: a defence in the main action and a statement of claim against D2 in the contribution proceedings.

13.  This peculiar feature provides important context to the amendment application. It is common ground that if leave is given to P to amend, D1 and D2 should have corresponding leave to make consequential amendments to their respective Defences in the main action. But D1’s amendments to the Defence also alter its claim against D2 for contribution, and the manner of it is currently uncertain (understandably there is not yet a draft Amended Defence from D1). Accordingly, I consider that there are good grounds for D2 to object to the proposed amendments sought by P that solely relate to D1 (on top of those that concern D2), on the basis that even if those amendments are not opposed by D1, it is eminently plausible for D1 to then make new allegations in response in its Amended Defence which will then translate into a new claim against D2. This will self-evidently be prejudicial to D2 which cannot be adequately compensated by costs.

14.  With this in mind, I take the view the proposed amendments should only be allowed if it is an issue that both D1 and D2 would previously have regarded as live. This way there is no realistic possibility that the consequential amendments made in D1’s Defence will become a new issue for the purpose of the contribution proceedings.

15.  Of all the 3 proposed amendments against D2 (see paragraph 6 above), I am only satisfied that the plea concerning the provision of a defective chair for use in the Room is a live issue on the existing state of the pleadings, and it is one that is live between D1 and D2 (so none of them can claim to be taken by surprise). In this regard, paragraph 16(e) of D1’s Defence in the main action specifically pleads the provision of “a defective chair with unequal length of legs” as one of the particulars of negligence against D2.

16.  D2 submits that if this amendment is allowed, it would need to take steps to carry out investigations or to approach appropriate witnesses and the trial would have to be adjourned. I am not persuaded by that argument, for the simple reason that the plea has been in D1’s Defence since 2023 and the provision of a defective chair (with unequal length of legs) has been a live allegation ever since. If investigative steps are required to be taken, they should have started a long time ago.

17.  D2 also submits that there is a material difference in the allegation being raised in the contribution proceedings and now in the main action if the amendment is allowed. The argument runs as follows: where the allegation was only initially relevant in the contribution proceedings, D2 was entitled to take the view that P would not succeed against any of D1 and D2 (so the issue of contribution does not arise), such that a more “relaxed” approach may be justified in terms of the investigative steps taken; now that the issue becomes relevant in the main action and the allegation is directed by P specifically towards D2, a “more serious” treatment is understandable. I am unable to accept this submission. While I acknowledge that the issues in the main action and the contribution proceedings are to be resolved sequentially as a matter of logic and approach (see Fitzgerald v Lane [1989] 1 AC 328 at 338G-340C), there can be no dispute that both the main action and the contribution proceedings are to be resolved in the upcoming trial so it is an issue that the trial judge would have to grapple with in any case. The way a party historically decides to treat or handle a pleaded issue cannot alter the fact whether the issue is live or not.

18.  D2 also submits that the particulars of negligence concern the provision of a defective chair, and D2 needs time to ascertain whether the Chair was in fact provided by D2 or other entities or departments. Again the short answer lies in the fact that the “provision allegation” has been live ever since it has been raised in D1’s Defence. It is also open to D2 to plead a non-admission so that P is put to strict proof that the Chair was in fact provided by D2.

19.  Parties also made brief submissions as to whether the proposed amendments are bound to fail or unsustainable as a matter of law. In short I do not see the proposed pleas as wholly unsustainable (up to the strike out standard), and the matter is best left for the trial judge to decide in a month’s time.

20.  Balancing all the relevant factors including the merits of the application, the need to secure the just resolution of disputes in accordance with the substantive rights of the parties (under O.1A), the reasons and length of the delay and the potential prejudice that may be caused, I allow the amendment application only insofar as it relates to the provision of a defective chair (with uneven length of legs). I am prepared to allow D1 and D2 to file a supplemental witness statement solely in relation to this amendment.

21.  For the sake of completeness, I am unable to see how the other 2 proposed amendments against D2 may be said to have been previously raised or pleaded. As to the allegation about D2’s failure to inform D1 of the procedure to obtain the remote controls, while there is some evidence from D2 already provided in an affirmation (see Affirmation of Li Ming Cheung) that there were briefing sessions with D1’s staff in the past about equipment requests procedure at the Centre, I accept D2’s submission that I should not pre-suppose such evidence to be a full response on the matter had the issue been formally pleaded and raised (e.g. D2 might be able to call the person who conducted the briefings).

22.  As to the allegation about the failure to adopt an adequate system to inspect the condition of the chairs in the Room, this is not an issue previously pleaded and in my judgment the complaint about the lack of a proper system necessarily entails significant discovery and evidence as to what steps have been taken and the reasons behind if certain steps were not taken. P relies on paragraph 16(f) of D1’s Defence in the main action (alleging negligence against D2 for failing to keep the Chair in the Room in good repair and condition), but that is plainly different from an allegation about the lack of adequate system.

Conclusion, trial timetable and costs

23.  For these reasons, I only allow the amendment application insofar as it relates to the provision of a defective chair (with uneven length of legs), being draft Re-Amended Statement of Claim paragraphs 6(d), 7 including particulars (b), 8(b) and 8(d) against D1 (for 8(d), strictly in relation to the provision of a defective chair and no more), and 8(a) and 8(c) against D2 (for 8(c), strictly in relation to the provision of a defective chair and no more).

24.  This Decision is to be handed down on 26 May 2026. There is a very limited window for me to work on a procedural timetable without disturbing the trial dates. I direct that P shall file and serve the Re-Amended Statement of Claim on or before 4 pm on 27 May 2026. D1 and D2 shall file and serve their respective Amended Defences (making consequential amendments only) and supplemental witness statements (if any, and solely in relation to the amendments) within 7 days thereafter (i.e. on or before 3 June 2026). P shall file and serve the Amended Replies within 2 days thereafter (i.e. on or before 5 June 2026). If D2 desires to consequentially amend its Defence and Counterclaim in the contribution proceedings in view of the amendments to D1’s Defence, D2 may also file and serve such amended version on or before 5 June 2026.

25.  The time for trial bundles and P’s written opening submissions to be lodged and served is varied to 9 June 2026, and D1 and D2 shall lodge and serve their respective written opening submissions by 16 June 2026. The trial will start on 22 June 2026 as scheduled. This is the best I can do.

26.  As to costs, I make a costs order nisi to the effect that costs of and occasioned by the amendment application (including the hearing before me on 20 May 2026) shall be paid by P to D1 and D2, to be taxed if not agreed with certificate for counsel. I consider D1 and D2 to be reasonable in taking their respective positions in the amendment application and P is seeking the indulgence of the Court. P’s own costs shall be taxed in accordance with Legal Aid Regulations.

27.  I indicated to the parties that I will provide an expedited timetable to cater for a possible application for leave to appeal, especially in view of the imminence of the trial. I direct that any such expedited application shall be taken out within 7 days of the handing down of this Decision (i.e. on or before 2 June 2026) and I will dispose of that application on paper.

28.  By way of postscript, parties have informed me that there was no PTR conducted in this action, and the trial directions were given by a Master upon setting down. While in some cases a PTR may be dispensed with, once the parties recognise that there are late applications that require substantive determination, and the result of which may jeopardise the trial dates, they should immediately inform the Court of the latest developments and usually a PTR ought to be fixed immediately and as a matter of urgency – it is not uncommon for these last-minute amendment applications to be substantively argued and resolved at the PTR. In the present case, the amendment summons was taken out on 16 February 2026. A PTR could have been fixed soon thereafter, and the Court (and the parties) will be left with a much greater leeway in devising a more workable timetable for matters to be properly sorted.