WONG YUN CHUEN v. MENZIES AVIATION GROUP (HK) LTD (formerly known as OGDEN AVIATION (HK) LTD) & OTHERS

HCPI 1189/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.1189 OF 2000

----------------------------

------------------------

---------------------

R U L I N G

---------------------

1. This is an application by the 3rd defendant (who is also the 2nd Third Party) for :

(a) leave to amend its Defence in the main action as well as its Defence in the Third Party Proceedings;

(b) leave to serve a witness statement of Peter Ng and a supplemental witness statement of Alex Lam; and

(c) leave to file a supplemental List of Document.

This application is opposed by the plaintiff and the 1st defendant with the 2nd defendant taking a neutral stance in the matter.

Background

2. The plaintiff brings this claim for damages for personal injuries. The plaintiff was an employee of the 2nd defendant. The plaintiff's claim arises from an accident which occurred on 25 July 1998 when he fell from the landing platform of a passenger step vehicle ("the vehicle") whilst assisting the 2nd defendant to load goods onto an aircraft and was thereby injured.

3. It is the plaintiff's case that the sliding gate on the landing platform of the vehicle came loose and bent outwards when he was trying to pull them open (in order to open the door of the aircraft against which the vehicle was parked) which caused him to loose his balance and fall off the landing platform to the ground some six metres below.

4. The 1st defendant is sued in negligence as the owner and occupier of the vehicle. The 2nd defendant is sued as the employer and the 3rd defendant as the supplier/manufacturer of the vehicle. The plaintiff alleges negligence by each of the defendant towards him for the injuries which he sustained from the fall.

5. The 2nd defendant has issued third party proceedings against the 1st Third Party and the 1st defendant has issued third party proceedings against the 2nd Third Party.

6. The 1st defendant's claim against the 2nd Third Party is brought on the basis that the 2nd Third Party was the seller or supplier of the vehicle in question to the 1st defendant and that the sliding gate of the landing platform thereon was defective thereby causing the accident.

7. The defence raised by the 3rd defendant/2nd Third Party is that while it denies that it was the manufacturer of the landing platform, it admits to being the supplier of it to the 1st defendant. It further denies all allegations of defectiveness in respect of the sliding gate.

The proposed amendments of the 3rd defendant/2nd third party

8. The proposed amendments by the 3rd defendant to the plaintiff's claim is contained in a draft attached to the Summons taken out by the 3rd defendant. Such proposed amendments involves the addition of paragraphs 7A, 7B, 7C and 7D to the original Defence of the 3rd defendant.

9. No objection is taken to the new paragraphs 7A, 7B and 7C.

10. The objection by the plaintiff is only to the proposed paragraph 7D which pleads :

"For the avoidance of doubt, the 3rd Defendant denies the relevance of the statutory definition of 'supply' in the Consumer Goods Safety Ordinance, Cap.456 ('the Ordinance') and/or the Ordinance."

11. The objection of the plaintiff is that by the proposed paragraph 7D the 3rd defendant is effectively withdrawing its previous admission that it was the supplier of the landing platform. Furthermore, such amendments coming at such a late stage prejudice the plaintiff in that it is now too late by reason of the Limitation Ordinance for the plaintiff to sue the manufacturer of the landing platform.

12. The plaintiff further objects to allowing the 3rd defendant to put in the witness statement of Peter Ng on the grounds that the proposed evidence of this witness is effectively expert evidence disguised as factual evidence and the plaintiff will not be in a position to call its own expert to deal with it short of an adjournment since the trial of this matter has been set down for hearing commencing 30 September.

13. In so far as the proposed amendments to the Defence of the 2nd Third Party is concerned it takes the form of adding paragraphs 4A, 4B, 4C and 4D to its Defence.

14. The proposed paragraphs 4A, 4B and 4C expands on the 2nd Third Party's already pleaded denial of being the seller of the vehicle by pleading that the vehicle was sold by Devtec Corporation to Ogden Aviation Services, both of which are companies in the U.S.A., and that the 2nd Third Party only arranged for the delivery of the vehicle to the 1st defendant.

15. The proposed paragraph 4D elaborates on its denial of defectiveness by denying that the vehicle was defective either in design or in its technical make such that the sliding panels would come loose.

16. The 1st defendant objects to such proposed amendments on the grounds that the 2nd Third Party, having admitted to being the supplier of the vehicle, the proposed amendments now effectively allows the 2nd Third Party to deny being the seller or manufacturer.

17. The 1st defendant further objects to the 2nd Third Party being allowed to rely on the documents under the proposed Supplemental List of documents being documents relating to the sale by Devtec Corporation to Ogden Aviation Services of the vehicle on the grounds of prejudice because the employee of the 1st defendant who would have knowledge of these transactions had now left the 1st defendant and cannot be located. This submission of the 1st defendant was made from the bar table and was not supported by any affidavit evidence.

Decision

18. In relation to the amendment sought in respect of the Defence of the 3rd defendant, I shall grant leave to the 3rd defendant to amend its Defence by the addition of the proposed paragraphs 7A, 7B and 7C, no objection having been taken in respect of these new paragraphs.

19. As for the proposed paragraph 7D, leave is refused for these reasons. Firstly it is unnecessary to plead law. Mr Chain in his submission effectively conceded that by pleading this paragraph 7D, he is not seeking to withdraw the admission that the 3rd defendant was the supplier of the vehicle. Indeed that admission is still intact in the pleadings. He accepts that 7D deals entirely with the law and submission can be made on law whether or not it is pleaded.

20. Secondly, what is contained in paragraph 7D is wholly irrelevant as neither the Statement of Claim, nor any other pleading in this matter had referred to the Consumer Goods Safety Ordinance Cap.456. Moreover, Mr Chain concedes that this Ordinance can have no application to the present case.

21. As for the proposed amendments to the Defence of the 2nd Third Party, I accept the submission by Mr Chain that the 1st defendant, in relying only on two quotations in its pleading as the basis for saying that the 2nd Third Party was the seller of the vehicle in question to the 1st defendant indicates to some extent that the 1st defendant may not have fully disclosed all the documents relating to that transaction. It is therefore incumbent upon the 2nd Third Party to fully disclose all the relevant documents concerned to enable the court to properly decide the dispute between them.

22. Furthermore, as already indicated above, the prejudice sought to be relied upon by the 1st defendant was without any evidential foundation.

23. In the circumstances, I am disposed to allow fully the amendments sought by the 2nd Third Party in respect of its Defence to the third party claim of the 1st defendant.

24. In so far as the objection taken to the evidence of Peter Ng is concerned, having viewed the proposed statement, I do not accept the contention by the plaintiff that it is expert evidence disguised as factual evidence. No opinion is given by the witness. I will therefore allow such statement to be served as factual evidence.

25. Accordingly, I shall make the following orders :

(1)	Leave to the 3rd defendant to amend its Defence by the addition of the proposed paragraphs 7A, 7B and 7C as per the draft attached to the Summons dated 5 September 2002 marked "A".
(2)	Leave to the 2nd Third Party to amend the Defence of the 2nd Third Party by the addition of the proposed paragraphs 4A, 4B, 4C and 4D as per the draft attached to the Summons dated 5 September 2002 marked "B";
(3)	Service of the Amended Defence of the 3rd defendant and Amended Defence of the 2nd Third Party be dispensed with;
(4)	Leave to the 3rd defendant and 2nd Third Party to serve the witness statement of Peter Ng Man Va and a supplemental witness statement of Alex Lam as per the draft attached to the said Summons marked "C" and "D" respectively;
(5)	Leave to the 3rd defendant/2nd Third Party to file a supplemental List of Document.

Costs

26. There will be a costs order nisi that the costs of and occasioned by such amendments and of the hearing be borne by the 3rd defendant/2nd Third Party in any event.