LAM TAM LUEN v. ASIA TELEVISION LTD

HCPI 1394/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NOS. 1394 AND 1395 OF 2003

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 (Consolidated by the Order of Master de Souza dated 29 November 2004) 

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R U L I N G

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1. The trial of this matter took place before me from 3 to 12 January 2006 but was adjourned part-heard to be resumed on 31 July 2006.

2. Before the trial was adjourned on 12 January, the plaintiff sought, in the midst of the trial, to amend her pleadings by the addition of a further particular of negligence to paragraph 9 of her Statement of Claim in both actions.

3. In respect of that application to amend, I had given a preliminary ruling on 12 January.  Arising from that ruling, it became necessary for the plaintiff to furnish further particulars in relation to the plaintiff's proposed amendments.  Therefore the order made at that time was to adjourn the plaintiff's application to amend pending the particulars (or further particulars which the defendant may seek) to be supplied relating to the proposed amendments.

4. The present application before me is the defendant's application by Summons dated 24 March 2006 asking that the proposed amendments by the plaintiff be disallowed.

5. The basis of the defendant's application to disallow the proposed amendments is that the proposed amendments seek to introduce a new cause of action which is, at the time of the application to amend, statute-barred and that the court has no jurisdiction to allow the amendment sought.

6. This application of the defendant to disallow the proposed amendments is opposed by the plaintiff who maintains that the amendments do not introduce a new cause of action but which merely seek to clarify on the cause of action already pleaded by the plaintiff in the Statement of Claim.

Plaintiff's claim before amendments

7. The plaintiff claims against the defendant for damages to herself and on behalf of the estate of her deceased husband arising from the death of her husband (“the deceased”).

8. It is common ground that the deceased and the plaintiff were beaten by one Tang Kin Kwong (“Tang”) armed with a wooden pole on 30 December 2000 and the deceased died on 1 January 2001 from the injuries sustained from that beating.

9. It is the plaintiff's case that in about April 1999, the defendant had in one episode of a television programme compiled by the defendant and aired on the local television by the name of “To See Better Today” attempted to expose Tang who claimed to practise as a Chinese herbalist and was able to cure cancer with tree roots.

10. In that episode, the deceased, who also practised as a Chinese herbalist several shop spaces from Tang's clinic was also interviewed by the defendant and who was asked for comments on Tang's claims of being able to cure cancer.

11. The main thrust of the plaintiff's claim against the defendant was that when the deceased was interviewed by the defendant and asked to comment on Tang's claims, initially the deceased had refused to give the interview, but later agreed after the deceased had been assured by the interviewing crew from the defendant that the deceased's image would not appear in the programme during its broadcast and that the deceased would not be harmed in any way and therefore the defendant owed a duty of care to the deceased to take reasonable steps to keep the deceased's identity in confidence when broadcasting the interview with the deceased.

12. It is the plaintiff's case that when the programme was aired, nothing was done by the defendant to cover up the identity of the deceased in the interview given by the deceased to the TV crew of the defendant, thereby being in breach of its duty of care owed to the deceased and his family as well as being in breach of the assurance given.

13. Paragraph 9 of the Statement of Claim was pleaded as follows :

“The aforesaid attack perpetrated by Tang on the Deceased and the Plaintiff was caused by the breach of the agreement and/or negligence of the Defendant through its servant and/or agent in failing to keep the Deceased's identity confidential during the broadcast of the interview of the Deceased, knowing that failing which the Deceased as well as the family would be exposed to risk of violence, hostility and physical harm from Tang.

                   PARTICULARS OF NEGLIGENCE

(i)    Wrongfully showing the face and broadcasting the comment made by the Deceased in the programme.

(ii)   Revealing the name of the Deceased in the programme.

(iii)   Failing to cover, conceal, disguise the image and voice of the Deceased.

(iv)  Failing to heed the Deceased's warning that the broadcast of the programme without concealing his identity would jeopardize his family's safety.

(v)   Alternatively, failing to heed any risk of vengeance upon the Deceased, the Plaintiff and their family.

(vi)  Failing to give any or any sufficient consideration to the safety of the Deceased, the Plaintiff and their family.”

The proposed amendments

14. The amendments proposed by the plaintiff is to add a further sub-paragraph (vii) to the particulars of negligence pleaded in paragraph 9 of the Statement of Claim.  The proposed amendments read as follows :

“(vii)  Having regard to the condition of Tang as exhibited in the programme, the Defendant should have taken effective steps to avoid any harm or risk of harm to anyone appearing in the programme, in particular, Tang and the Deceased.”

15. After the adjournment of the trial on 12 January, voluntary particulars relating to the proposed amendments have been supplied by the plaintiff to the defendant.  Those voluntary particulars relate to “the condition of Tang” as well as to the “effective steps” which the defendant should have taken.

16. Thereafter, the defendant has sought even further and better particulars of the voluntary particulars which have also been answered by the plaintiff.

The defendant's application

17. In a nutshell, the basis of the defendant's application to disallow the proposed amendments, as already stated above, is that the amendments plead a new cause of action.

18. It is submitted by the defendant that the further particulars given by the plaintiff relies on the “unhealthy mental condition” of Tang which the plaintiff says can be gauged objectively from the interview of Tang in the programme.  Since no mention had been made of Tang's “unhealthy mental condition” in the original pleadings, which only relies on the assurances given to the plaintiff and the deceased at the time the deceased was interviewed, it is said that these amendments tantamount to a new cause of action not originally pleaded.

19. In this respect, the defendant refers to Order 20 rule 5(5) which reads :

“An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”

20. The deceased died on 1 January 2001 from the attack by Tang.  The application for the proposed amendment, raising this new cause of action is well after the limitation period of 3 years in a fatal injuries claim.

21. The law and practice is such that the court would only have jurisdiction to allow such an amendment if the new cause of action arose out of “the same facts or substantially the same facts” as the original cause of action.

22. In the present case, the original cause of action pleaded was the assurance given to the plaintiff and the deceased by the TV crew of the defendant but that the new cause of action arises from the “unhealthy mental condition” of Tang, which was not even pleaded in the original pleadings.

23. For these reasons the defendant asks that the application to amend be disallowed.

Decision

24. Firstly, I am not persuaded by the defence that the proposed amendments raise a new cause of action for the following reasons.

25. Paragraph 9 of the Statement of Claim (without the proposed amendments) makes it clear that the plaintiff's claim was brought in both contract and tort.  It pleaded the breach of the agreement (i.e. based on the assurances given) and also pleaded expressly “negligence” as an alternative. Indeed the original six items of particulars given in paragraph 9 of the Statement of Claim were particulars of negligence.

26. Moreover, the case, when it was opened by Mr Lee, leading counsel for the plaintiff, was opened on both contract and tort.  In his opening Mr Lee specifically referred to Chitty on Contract at page 1448 as to the remoteness of damage, as well as to Clark and Lindsell on Tort at page 120 paragraph 2-115 as to the foreseeability of damage in a case of tort and indicated that he would take a broad approach when referring to paragraph 2-126 in respect of the law applicable in this case.

27. Therefore there can be no doubt that the plaintiff had pleaded and relied on negligence as well as breach of contract in his original claim.

28. The act or omission complained of by the plaintiff was the failure of the defendant to cover up the identity of the deceased when the defendant aired the interview with the deceased commenting on Tang's practice and claim of being able to cure cancer with tree roots on its programme “To See Better Today”.

29. That still remains to be the act or omission complained of by the plaintiff even with the proposed amendments.  Therefore nothing has changed in so far as the act of negligence goes.

30. The effect of the proposed amendment merely serve to allow the plaintiff to say why, based on the contents of the interview of Tang by the defendant, the defendant ought to have the knowledge that if it failed to keep the deceased identity confidential during the broadcast of the interview with the deceased, the deceased and his family would be exposed to risk of violence, hostility and physical harm from Tang, a matter which had already been pleaded in paragraph 9 of the Statement of Claim.

31. I therefore do not accept the submission of the defendant that the effect of the proposed amendments is to add (or substitute) a new cause of action which had hitherto not been relied on by the plaintiff.

32. Secondly, I must also consider the prejudice, if any, which may be caused by this late amendment.

33. In this respect I take into account that the mental condition of Tang was a matter known to both parties, especially after Tang's evidence given in the criminal trial in which he was the defendant being charged with the killing of the deceased.

34. Indeed that was the very basis for the parties to have instructed their respective psychiatric experts to prepare expert reports and to give evidence in this case relating to the mental condition of Tang.

35. Moreover, much of what the plaintiff attempts to rely on in her proposed amendments and the further particulars given were matters already commented upon by the host of the programme broadcasted by the defendant and/or by the respective psychiatric experts instructed in this case.

36. In any event, the defendant have not completed their evidence and there is no objection by the plaintiff for the defendant to adduce any further relevant evidence which is necessary for the defendant to meet the amendments of the plaintiff.

37. Finally, it must be said that the contents of that programme has all along been a central piece of evidence in this case, even before the application by the plaintiff to amend.

38. Given the above, there can be little or no prejudice to the defendant which cannot be cured by consequential orders allowing for further evidence from the defendant, both expert and factual, should such be necessary, to meet the amendments proposed by the plaintiff.

39. In the circumstances, I am prepared to allow the amendments sought by the plaintiff together with the further particulars already given by the plaintiff relating to such amendments.

40. Accordingly, I shall order that paragraph 1 of the Summons dated 24 March 2006 taken out by the defendant be dismissed.

41. There will be the following further orders in respect of both actions :

(1)     The plaintiff in both actions do have leave to amend the Statement of Claim by adding the proposed sub-paragraph (vii) to the Particulars of Negligence pleaded in paragraph 9 thereof;

(2)     leave to the defendant to amend its Defence in both actions within 28 days of this Order;

(3)     leave to the parties to exchange supplemental expert reports if so advised within 28 days thereafter;

(4)     leave to the parties to exchange supplemental/additional witness statement if so advised within 42 days from this Order.

Costs

42. There will be a costs order nisi that the costs of and occasioned by such amendments be to the defendant in any event but that the costs of the hearing on 28 April 2006 be borne by the defendant in any event.

43. The plaintiff's own costs be taxed in accordance with Legal Aid Regulations.