NIP CHI TING v. SECRETARY FOR JUSTICE FOR AND ON BEHALF OF COMMISSIONER OF POLICE

HCPI 156/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 156 OF 2006

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J U D G M E N T

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1. I have before me an appeal from a decision of a Master on a specific discovery application.  The appeal was brought because the Master refused the application in total. 

2. I have read the transcript of the Master’s reasons given for dismissal.  I would simply like to say I totally disagree with what the Master had said, in particular about his blanket reference to the documents sought being irrelevant.  In my view they are all relevant. 

3. The subsequent event to the dismissal has brought, I think, considerable common sense to the parties.  I have been told today that much of the items in the Schedule are no longer at issue because many of the items the parties have agreed and that a number of the documents in the Schedule have been given.  What I have now are only four items : Items 4, 5, 8 and 9 which require a decision by the court.  I will go through them in numerical order.

4. So far as Item 4 is concerned, the wording in the Schedule is “All other records, internal investigation report(s) and statements in relation to the accident”.  If I may first make reference to that what had happened is that at a weapons training exercise held by the police with the plaintiff taking part, he was stepping back as a result of the move by the suspect (someone who was playing the suspect), and his back backed into an open door as a result of which the plaintiff suffered serious injury.  This is therefore a personal injuries claim brought by the employee against the employer.  The employer has denied total liability and said the whole fault was that of the plaintiff.  The employer has also alleged contributory negligence.  It is against this background that the plaintiff has brought this specific discovery application.

5. Turning back to Item 4.  Item 4 is “All other records, internal investigation report(s), statements in relation to the accident”.  Now I myself will have thought apart from the use of the word “other”, that it is an adequate description of the class of documents that is sought.  It is clearly shown today by Mr Harris, for the plaintiff, that there is a reference in the further documentation that has been disclosed to a Case Summary in relation to that accident.  It seems to me that as a class, I should make an order against the defendant for discovery of that class of documents which I would describe as “All records including internal investigation reports and statements, and case summary in relation to that accident”.  And then it is up to the defendant to say what documents it has and what has happened to them.

6. In relation to Item 5, “Personnel record file of the Plaintiff”, this has now been narrowed down by the plaintiff to appraisal and promotion reports on the plaintiff for the last five years prior to the accident.  There is no serious objection to that category because it is clearly relevant on the question of damages of the loss of the future earnings as a result of the accident because it is stated in the Statement of Claim that he could easily be promoted to the sergeant rank if he had not suffered in the accident.

7. So far as Item 8 is concerned, again, I think after hearing the observation from the Bench, Mr Wong, for the defendant, has very kindly indicated that he does not seriously object to that as a class.  So, that again, can be made the subject of the Order.

8. The only item that attracts some controversy is Item 9, “SP WT’s Standing Order” which is the short form of “Superintendent Weapons Training’s Standing Order”.  The weapons training was what took place at the time when the accident happened.  So that Standing Order is for me a critical document instead of being, as suggested by Mr Wong, not relevant because he said it may contain a lot of material which is not relevant.  But what is the position of the police in relation to what ought to have happened at such a training is a critical document to my mind.  It is critical in the sense that it may be inadequate in stating the steps to be taken, or it may show that there are breaches of the Order.  Either way, it is the foundation, I would have thought, of examination at the trial of what happened.  So, that would be the starting point, this is what an employer has asked his employee to do when he has been asked to undertake such training exercise.  With the Standing Order as the basis of what is supposed by the plaintiff and the defendant to do at the training, it seems to me that this document is highly relevant, and anything said to the contrary, it seems to me is bizarre.  I therefore consider that it is a crucial document which should be disclosed.  There is no dispute that such a document exists and that it is in the possession of the defendant. 

9. In my view, therefore, the Order that I would make is per Items 4, 5, 8 and 9 in the way as amended by the court.  Costs of the appeal and costs below be to the plaintiff.