YU KAI MING v. WING LEE SCAFFOLDING WORKS CO LTD AND ANOTHER

HCPI 1107/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1107 OF 2002

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

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

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

J U D G M E N T

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

1. The plaintiff is appealing the decision of the master in ordering that interrogatories served by him be withdrawn.

Background

2. The plaintiff is suing the 1^st and 2^nd defendants for injury sustained at work.  The claim is based, inter alia, on negligence and failure to provide a safe system of work.

3. The 1^st defendant was the employer and contractor for dismantling scaffolding at a site in Tin Shui Wai (“Tin Shui Wai Site”).  The 2^nd defendant was the principal contractor.

4. The plaintiff was a “banksman”, i.e. the worker assisting in directing the lowering of the load of dismantled bamboo poles from upper levels to the 1/F podium, and to untie the load upon lowered.

5. At the material time, the bamboo poles got caught on to the projecting pitched roof when being lowered.  In order to free the load, the plaintiff had to go up to the pitched roof and manually push the load over the edge of the pitched roof.  The plaintiff fell from the pitched roof and sustained injury when trying to free the load.

6. In the Statement of Claim, the plaintiff alleged that, inter alia, the 1^st and/or 2^nd defendant failed to provide a safe system of work for the plaintiff, and in particular, there was no guard rails or barrier, or no secure anchorage which the plaintiff’s safety belt could be attached while working on the pitched roof.

7. In the Defence of the 1^st and 2^nd defendants, it is denied that there was no safe system of work.  Further, it is averred that the accident was caused or contributed to by the negligence of the plaintiff in climbing onto the pitched roof without attaching his safety belt to the independent lifeline provided.

Investigation

8. In December 2003, the plaintiff instructed private investigator Kroll Fact Finders Limited to investigate into the work procedure of the 1^st defendant at its construction site.

9. The investigator went to the registered and business address of the 1^st defendant at 15/F, 20 Hennessy Road, Wanchai, Hong Kong.  They met one Mr Wong Man who introduced himself as the “principal” of the 1^st defendant and produced a name card with the 1^st defendant’s name and address, and one Mr Simon Wong who produced a name card with the 1^st defendant’s name and address with description of Assistant Quantity Surveyor.

10. The investigator asked for a brochure about the 1^st defendant and obtained a list headed Wing Lee Scaffolding Co. Ltd (永利棚廠有限公司) which included a site at Lockhart Road, Wanchai (“Wanchai Site”).  The letterhead of Wing Lee Scaffolding Co. Ltd shows the same address of the 1^st defendant.

11. At all times until the first day of the hearing of this appeal, the plaintiff wrongly thought that Wing Lee Scaffolding Co. Ltd and the 1^st defendant were the one and same company. 

12. The investigator went to the Wanchai Site and took video of the work of dismantling of scaffolding.  It is alleged that at the Wanchai Site, no safety belt and no lifeline was used when bamboo poles were lowered by hand and loaded on to a lorry DT 211.

13. Penta Ocean, the principal contractor of the Wanchai Site, confirmed that Wing Lee Scaffolding Co. Ltd was the scaffolding contractor for the Wanchai Site.

14. The investigator made a complaint to the Labour Department about his observations at the Wanchai Site.  Subsequently, prosecutions were brought which resulted in the conviction of one Kwok Kei Wing.

15. The shareholders of the 1^st defendant are Good Luck International Limited (499,999 shares) and Leung Kit Ling (1 share).  The directors are Wong Kang Yung and Leung Kit Ling.  The secretary is Wong Kang Yung.

16. The lorry DT 211 was owned by United Crown Transport Limited (“United Crown Transport”), which directors are Leung Kit Ling and Tam Wai Kei.

17. During the adjournment of the hearing of the appeal, company search was conducted on Wing Lee Scaffolding Co. Ltd.

18. The shareholders of the Wing Lee Scaffolding Co. Ltd are Tam Wai Kei (1 share) and Wong Kang Yung (1 share).  The directors are Tam Wai Kei and Wong Kang Yung.  Tam Wai Kei used to be the secretary of the 1^st defendant before 1988.

Similar facts evidence

19.  Mr Burke for the plaintiff submitted that the evidence of the work procedure at the Wanchai Site is admissible as similar facts evidence as it tends to support the plaintiff’s case that there were no lifeline at the Tin Shui Wai Site.

20. Mr Burke referred to O’Brien v. Chief Constable of South Wales Police [2005] UKHL 26.  In 1987, the respondent O’Brien was convicted of murder.  Eleven years later, the appeal was allowed and the judgement of the English Court of Appeal called in question the propriety of the conduct of the officer in charge of the investigation.  Mr O’Brien was awarded compensation under the Criminal Justice Act 1988 for the 11 years he spent in prison.  He claimed aggravated and exemplary damages for treatment by the officers which were oppressive, dishonest and unprofessional.  He sought to show that the same officers had in earlier cases resorted to the same or similar methods in order to try to obtain admissions and convictions.  The judge admitted the evidence.  On appeal to the House of Lords, Lord Bingham of Cornhill said :

“	2.	As the number of reported cases on the topic makes clear, similar fact evidence has proved a contentious and uncertain area of the law, particularly in criminal cases but also in civil cases like that before the House. But such evidence may be very important, even decisive. It is undesirable that the subject should be shrouded in mystery.
	3.	Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v. Kilbourne [1973] Ac 729, 756, ‘Evidence is relevant if it is logically probative or disprobative of some matter which requires proof … relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable’.
	4.	That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, enquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those earlier events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the process of judicial decision-making on issues of fact should diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon’s sense probative. If so, the evidence is legally admissible. That is the first stage of the enquiry.
	5.	The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment : whether evidence or some of it (and if so which parts of it), which ex hypothesis is legally admissible, should be admitted. … The strength of the argument for admitting the evidence will always depend primarily on the judge’s assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
	6.	While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided. This an argument which has long exercised the courts (see Metropolitan Asylum District Managers v. Hill (1882) 47 LT 29, 31 per Lord O’Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice : unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly, stress will be laid on the burden which admission would lay on the resisting party : the burden in time, cost and personnel resources, very considerable in a case such as this, of giving disclosure; the lengthening of the trial, with the increased cost and stress inevitably involved; the potential prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss of documentation; the fading of recollections. It is, I think, recognition of these problems which has prompted courts in the past to resist the admission of such evidence, sometimes (as, perhaps, in R v. Boardman [1975] AC 421) propounding somewhat unprincipled tests for its admission. But the present case vividly illustrates how real these burdens may be. In deciding whether evidence in a given case should be admitted the judge’s overriding purpose will be to promote the ends of justice. But the judge must always bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process which is fair to all parties.”

And Lord Philips of Worth Matravers said this :

“

53.

… I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action.”

21. Mr Burke also referred to Chan Tam Sze v. Hip Hing Construction Co. Ltd & 2 ors,HCA1931/1988 (17 October 1989) where Bokhary J (as he then was) ordered discovery against the Commissioner for Labour (a non-party) of, inter alia, notes of the factory inspector’s visit and reports prepared by the factory inspector in respect of industrial accidents occurring on the site in question during the period 12 months prior to and 12 months subsequent to the accident in question.  His Lordship applied the classic test of relevance for discovery in the Peruvian Guano Case (1882) 11 QBD 55 and said that :

“	10.	… Applying it, it seems to me that documents of the nature being sought in the cases now before me are, generally speaking, inherently relevant to issues of the type which commonly arise in cases such as these.
	11.	I have expressed myself in wide terms; and I have done so deliberately. I agree with the statement in para.12-68 at p.230 of the 13th ed. of ‘Phipson in Evidence’ that : ‘The condition or character of a place or thing may sometimes be proved by showing its condition or character at other times. Thus, in actions of negligence, to show that a particular spot was dangerous, previous accidents thereat, or even the condition of other similar places, may be proved.’ The documents sought here are by their nature likely to shed useful light on, among other things, the conditions that prevailed on each site at the time of each accident. Their relevance lies in that but not only that. I do not attempt an exhaustive list.”

22. Mr. Burke referred to a recent decision of Suffiad J in Hussai, Waqar v. Hyundai Engineering and Construction Co. Ltd and China Civil Engineering Construction Corporation t/a Hyundai CCECC Joint Venture HCPI 614/2004 (22 April 2005) where his Lordship said at p.4 para.9 that :

“It is trite law that the defendant’s knowledge of similar previous accidents to other persons could be relevant to show the defendant’s knowledge of the risk and the discovery of complaints of these previous injuries would be relevant.”

23. Mr. Burke submitted that evidence of similar accident will go to show the system of work adopted.

24. On the other hand, Miss Kang for the defendants referred to Amy So v. Tony Chiu Yun Kan & ors, CACV212/1994 (17 March 1995).  A standard form provisional sale and purchase agreement for real estate was signed by Amy So as purchaser and Goldie Fung the estate agent on behalf of the vendors Tong Chiu and Leslie Au.  The issue was one of authorization.  Godfrey JA said at para.33 :

“Of course, in civil cases the courts will admit evidence of similar facts it is logically probative, i.e. if it is logically relevant in determining the matter which is in issue; but facts which prove nothing more than likelihood of repetition, although logically relevant, should be rejected on grounds of fairness, since they tend to waste time, embarrass the inquiry with collateral issues, prejudice the parties with the facts finding tribunal, and encourage attacks without notice : see Attorney General v. Nottingham Corporation [1904] 1 Ch 673.  In his judgment in that case, Farwell J draws attention to the distinction between evidence having a direct relation to the principal question in dispute and evidence relating to collateral facts, which will, if established, tend to elucidate that question.  As the judge points out, to make the latter admissible the party tendering the evidence must satisfy the court that the collateral fact which he proposes to prove will, when established, be capable of affording a reasonable presumption or inference as to the matter in dispute and also to satisfy the court that the evidence which he is prepared to adduce will be reasonably conclusive.  As it seems to me, evidence that on some previous occasion Tony and Leslie authorised, or might have authorised, Goldie to make a contract on their behalf is of very little probative value in relation to the question whether Leslie gave express authority to Goldie to do so in the present instance.”

25. The issue here is the system of work.  No doubt the evidence relating to the Tin Shui Wai Site will be relevant to the system of work thereat.  The evidence Mr Burke sought to adduce related to another site within the 1^st defendant’s corporate group where a similar task of dismantling bamboo scaffolding was undertaken without providing a lifeline for the anchorage of the safety belt.  It seems to me that it is not evidence pointing to a condition at the Tin Shui Wai Site nor a system of work generally such as the unavailability of lifeline at the 1^st defendant’s undertakings.  It is a mere repetition on another occasion.  It is doubtful whether such evidence will be admitted as probative of the lack of lifeline on the occasion in question.  I just wonder where it will lead us if the 1^st defendant were to introduce evidence that a lifeline had been in use on the Tin Shui Wai Site or another site on a previous occasion?

26. Be that as it may, I shall consider the interrogatories on the assumption that the trial judge might rule the evidence of investigation admissible.

Interrogatories

27. The court has a discretion to allow or refuse interrogatories.  The two main principles are that the interrogatories must relate to any matter in question in the cause or matter; and they are necessary either for disposing fairly of the cause or matter or for saving costs.  Interrogatories will not generally be allowed where the object is to obtain an admission of a fact which can be proved by a witness who will in any case be called at the trial, and therefore the interrogatories will not save but add to costs.  Furthermore, interrogatories of maters which could be elicited during cross-examination at trial without causing prejudice to the party requesting for interrogatories are not allowed.  (See Hong Kong Civil Practice 2004 26/4/5 et seq).

28. The plaintiff has served interrogatories each containing ten questions on Miss Leung Kit Ling, shareholder and director of the 1^st defendant, and Mr Tam Wai Kei, former secretary of the 1^st defendant.  The plaintiff has added two more questions (No. 11 and 12) at the appeal.  The two sets of interrogatories are almost identical in terms, apart from the question whether Mr Tam is the secretary of the 1^st defendant.

29. Interrogatories nos. 3, 4, 5, 6, 7, and 8 seek to confirm facts found out in the investigation.  Interrogatories nos. 2, 9 and 10 seek to confirm the relationship between United Crown Transport and the 1^st defendant.  Interrogatories nos. 11 and 12 seek to confirm the relationship between Wing Lee Scaffolding Co. Ltd and the 1^st defendant.

30. Mr. Burke said the purpose of the interrogatories was to tie the 1^st defendant in with what was observed at the Wanchai Site.

31. Mr. Tam was only a past officer of the 1^st defendant.  Mr. Burke conceded that Mr. Tam might say that he had no connection with the 1^st defendant since 1988.  Upon the latest company search on Wing Lee Scaffolding Co. Ltd revealing that Wong Kang Yung is a common director of both the 1^st defendant and Wing Lee Scaffolding Co. Ltd, Mr. Burke seeks to substitute Wong Kang Yung for Mr. Tam.

32. Be it Mr. Tam or Wong Kang Yung, the interrogatories seek to confirm the relationship between Wing Lee Scaffolding Co. Ltd and the 1^st defendant. 

33. Mr. Burke conceded (but without withdrawing the appeal) that to be frank, as a result of the company search on Wing Lee Scaffolding Co. Ltd, he does not really need the interrogatories now.

34. With respect, it rather begs the question as to whether the interrogatories were necessary in the first place, because Mr. Burke had hitherto thought that Wing Lee Scaffolding Co. Ltd and the 1^st defendant were the same, not to mention the connecting factors found out in the investigation.

35. Assuming the evidence of investigation on the Wanchai Site were admissible at the trial, the interrogatories related to matters within the knowledge of the plaintiff as found out in the investigation (even before the latest company search).  They are primary facts which the plaintiff will seek to prove at the trial, for the purported conclusion of similar facts.  The interrogatories can be asked during cross examination of the 1^st defendant’s witnesses.

36. Mr. Burke submitted that the interrogatories sought to bind the 1^st defendant, and might perhaps avoid the necessity of a trial.  If Mr. Burke were right as to the probative effect of the investigation evidence, I daresay the desired result could be achieved by its disclosure per se to the 1^st defendant, with or without any interrogatories. 

37. I consider that the interrogatories sought tend to usurp the function of cross-examination at the trial, and are not necessary either for disposing fairly of the cause or matter or for saving costs.  Hence, they are disallowed. 

38. Mr. Burke anticipated the argument on costs in the event of the dismissal of the appeal, and submitted that costs should be in the cause, as the 1^st defendant had unreasonably maintained the stance that the 1^st defendant and Wing Lee Scaffolding Co. Ltd are separate legal entities, and refused to give any information.  Alternatively, costs should be reserved to the trial judge upon the ruling on admissibility of the similar facts evidence.

39. Mr. Burke’s criticism of the 1^st defendant’s stance of strict insistence on separate legal entity may be superficially attractive, but one must not lose sight of that the interrogatories are disallowed even on the assumption of admissibility of similar facts evidence.  However, as most of the argument on the first day of the appeal (actually the hearing only lasted the morning) was on similar facts evidence, I shall reserve the costs thereon to the trial judge.

40. I order that the plaintiff do pay the costs of the application and of the second day of the appeal to the 1^st defendant in any event, and the costs on the first day of the appeal be reserved to the trial judge.