LAU WING YEUNG v. KOWLOON CRICKET CLUB

HCPI 955/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 955 OF 2013

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D E C I S I O N

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1.  There are three summons: two by the defendant for specific discovery against the plaintiff and against the plaintiff’s wife, Chan Wai Hing, respectively, and one by the plaintiff for leave to file a Re-revised Statement of Damages and a Supplemental Witness Statement.

I.  Background

2.  The plaintiff was employed by the defendant to work in its kitchen and he allegedly suffered a “slip and fall” accident on 20 April 2008 causing back injury (“the Kitchen Accident”).

3.  The orthopaedics experts, Dr Jack W.K. Wong (instructed by the plaintiff) and Dr Chun Siu Yeung (instructed by the defendant) examined the plaintiff on 2 September 2010 and produced a Joint Assessment Report on 11 October 2010 (“the First Joint Report”).

4.  In the First Joint Report, it was stated under “Past medical history” (and presumably based upon what the plaintiff told the experts during the assessment) that besides a fall and injury at home in 1998 / 1999 with “no recurrence of pain”, “he was (has) no other injury before or after the captioned accident”.

5.   In the plaintiff’s own witness statement, with its duly signed Statement of Truth dated 6 October 2011, the plaintiff only mentioned the Kitchen Accident and went on to state how this injury subsequently affected his health, daily life and working capacity etc..  In particular, he stated, as translated into English:

“…my income greatly decreased after I changed to a part-time kitchen job, and I became unemployed from March 2010, having tried diligently looking for job but failed….the financial support of the family was heavy, and this relied completely on my wife’s income which barely covered the expenses….”

and that after employment ended with the defendant on 22 June 2009: -

“I was employed by the Helena May between 29 August 2009 and 23 March 2010 as a part-time kitchen worker…but because my injury had not fully recovered, I felt very tired if I needed to stand for a long time so I could not work for a long time, so the employer did not contact me for work after 23 March 2010. From then on until now, I remained unemployed.”

6.  In the Revised Statement of Damages, the plaintiff claimed under the head of “Pre-Trial Loss of Earnings & MPF” 186 days of sick leave (from 20 April 2008 to 22 October 2008 as deemed “appropriate” by the plaintiff’s own expert when in fact he took sick leave until 21 June 2009) and, after the expiratory of “appropriate” sick leave, the plaintiff claimed that, instead of being able to work 26 days a month, he was only able 20 days a month as the result of the accident, thus he was earning HK$13,846 instead of HK$18,000 per month until trial.

7.  Under the head of “Post-Trial Loss of Earnings & MPF”, the plaintiff claimed that he “would be able to recover gradually from the injury and he would be able to work for 22 days per month, earning HK$16,923 instead of likely HK$20,000 per month until his retirement.

8.  At some stage of the proceedings, the defendant performed a Court Search and came to knowledge that, after the Kitchen Accident, the plaintiff had suffered a road traffic accident on 3 November 2009 (“the Road Traffic Accident”) and had commenced another Personal Injury Claim (“DCPI 2491/2012”) regarding this.  It also transpires that the plaintiff was represented by the same law firm, Or & Partners, in DCPI 2491/2012.

9.  The defendant then sought several rounds of discovery of documents related to the Road Traffic Accident including relevant medical reports and records.  The parties had since arranged for a second joint examination of the plaintiff with their respective experts and a Second Joint Assessment Report has been prepared dated 11 April 2013 (“the Second Joint Report”)

10.  On 21 October 2013, the defendant took out two applications for specific discoveries.

11.  The subject documents in the first application (“the First Summons”) were:

“ (a) In respect of the subsequent traffic accident of the Plaintiff on 3^rd November, 2009 :

i. The pleadings in District Court Personal Injuries Action No. 2491 of 2012 (“DCPI 2491/2012”);

ii. Medical reports and earning documents filed in DCPI 2491/2012, pursuant to PD18.1;

iii. Medical Expert reports in DCPI 2491/2012;

iv. Witness statements of the Plaintiff in DCPI 2491/2012; and

v. All papers (including declarations as to the Plaintiff’s earnings) in respect of his application for assistance for the accident on 3^rd November, 2009 from the Social Welfare Department;

(b) In respect of the Plaintiff’s updated bank records…” (The Plaintiff did not dispute paragraph (b) of the First Summons.)

12.  The second application (“the Second Summons”) was against the wife of the plaintiff, Chan Wai Hing (“Chan”) and the subject documents were: -

“ (a) Records of earnings and allowances received by Chan contained reasonably sufficiently either in her pay slips, statement(s) obtained from her employer(s) together with copies of her tax return….her OROS and/or MPF Statements from 20 April 2008 up to now; and

(b) Bank transaction records of Chan from 20 April 2008 up to now showing the following transactions of money being transferred to the Plaintiff’s bank accounts….” (The Defendant identified the bank accounts and identified the dates and sums involved for each relevant transaction)

13.  The plaintiff took out a summons on 29 January 2014 (“the Third Summons”) for leave to file and serve a Re-revised Statement of Damages and a Supplemental Witness Statement of the plaintiff.

14.  All three summons were heard together presently.

II.  The issues in dispute

15.  Before going into the issues in dispute, I would observe that right from the beginning, the plaintiff, and those advising him, should be aware that there was an overlap of injury (back injury) in the Kitchen Accident and Road Traffic Accident and both claims should have been consolidated so that, whilst liability could be determined separately against different defendants, the issues of causation and damages has to be investigated and apportioned, if needed, between the defendants.

16.  Further, the consolidation application should have been made before the joint expert examination of the plaintiff in the current case so that experts could be jointly instructed regarding both accidents to address the issues of causation and apportionment of damages.

17.  Instead, as it happened here, information regarding the Road Traffic Accident was not given to the experts in preparation of the First Joint Report. The defendant was understandably suspicious when, as it appeared, the plaintiff withheld information of his injuries in the Road Traffic Accident from the experts during the examination.

18.  More seriously, it would appear that the plaintiff’s law firm, Or & Partners, which appeared to have been handling both claims, did not take any positive steps to rectify the obvious misinformation in the First Joint Report (“he was (has) no other injury before or after the captioned accident”).

19.  No information was given to this court, however, whether the same lawyer in Or & Partners has been handling both claims.  If so, this court would be even more critical of the way these two claims have been handled.

20.  It is also undesirable that only at the current hearing that the plaintiff’s counsel revealed that DCPI 2491/2012 has been wholly settled and that there was no medical expert report in that case.  This evidence should have been properly and timely revealed in form of an affidavit.

21.  Be it as it may, it is not the purpose of the current hearing to deal with what should have been done but to deal with the three summons.

22.  It is trite law that the party seeking discovery needs to show prima facie the following: -

i) The document exists;

ii) The party against whom the party is sought has or had the document in his possession, custody or power; and

iii) Relevance of the specified documents

23.  The question of whether the documents sought are relevant (Order 24, Rule 7) is that they “relate to one or more of the matters in question in the cause or matter” and the test is set out in The Compagnie Financiere et Commerciale du Pacifique v The Perusian Guano Company (1882) 11 QB 55, 63 (per Brett LJ):

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.”

24.  The defendant submitted that:

“The matter in issue is whether any of the Plaintiff’s pleaded losses and damages is / are caused by the subsequent accident (the Road Traffic Accident). This relates to the issue of causation.”

25.  For the First Summons, the defendant claimed that the documents it had requested, that is, the pleadings, medical and expert reports, documents regarding earnings and witness statements in DCPI 2491/2012 were relevant because the plaintiff had also claimed to suffer back injury (as well as neck injury) in the Road Traffic Accident, and that for such injuries, the plaintiff was given sick leave from 6 November 2009 to 29 November 2010.

26.  The plaintiff was of the view that the documents sought were only for credibility purposes, and that discovery solely for the purpose of impeaching the credit of the plaintiff or a witness should not be ordered, whether on ground of irrelevancy or as a matter of discretion: Tai Fook Futures v Cheung Moon Hoi HCA 9932/1999 (unrep., 7 March 2005) and Hong Kong Civil Procedure 2014 24/8/2.

27.  The plaintiff also argued that as DCPI 249/2012 was settled, there had been no adjudication passed upon any aspect of the pleadings so such pleadings could not be any assistance to the court in the current proceedings.  Further, any issue of causation had been sufficiently dealt with by the Second Joint Report.

28.  The peculiar aspect of the current case is that the plaintiff has stated in his witness statement that, due to his injuries from the Kitchen Accident, he could only work part-time at Helena May until 23 March 2010.  Although he was unable to find work (despite active efforts) since that date (and had to rely on her wife’s income), he did not claim a total loss of earnings from that date in his Revised Statement of Damages.

29.  Instead, in the Revised Statement of Damages, the plaintiff pleaded that, due to the injuries from the Kitchen Accident, instead of being able to work 26 days a month, he was only able to work 20 days a month in the pre-trial period, and would be able to work 22 days a month with improvement of his injuries in the future post-trial loss of earnings claim.

30.  Indeed, there were many fairly substantial sums of money deposits (averaging about twice a month or more) into the plaintiff’s two bank accounts since around June 2009.  The defendant had raised two Requests for Interrogatories on these transactions and in the Answers the plaintiff claimed that the majority of these were payment from his wife for settlement of insurance bills, credit card bills, household and person expenses etc.

31.  This alleged “loss of earnings” period spanned the date of the Road Traffic Accident and also the period of the resulting sick leave and beyond, and yet the plaintiff’s witness statement, his wife’s witness statement and the Revised Statement of Damages (amongst others) were completely silent on the Road Traffic Accident and the resulting sick leave.

32.  Therefore, the plaintiff’s actual “loss of earnings”, and the issues of causation and apportionment of such “loss of earnings” between the Kitchen Accident and the Road Traffic Accident are the relevant issues for discovery here, and discovery of any documents touching on these issues is not “solely for the purpose of impeaching the credit of the Plaintiff or a witness”.

33.  Obviously, not all the pleadings in DCPI 2491/2012 are relevant for discovery here. I would accept the plaintiff’s argument that the case was settled without trial and pleadings were not adjudicated.  As such, pleadings stated in the Statement of Claim would be of no assistance to the Court in the current case.  However, the pleadings relevant to the issue of damages claimed are clearly relevant even without the benefit of adjudication by the court, since what was being claimed under the Road Traffic Accident would assist the court in the current case on the issue of causation and apportionment of damages between the two accidents.  This would be the Statement of Damages and Revised Statement of Damages, if any.

34.  Similarly, I would say that medical reports and documents concerning the plaintiff’s earnings, medical expert reports (if any), witness statement of the plaintiff filed in DCPI 2491/2012 would have necessarily touched on the plaintiff’s injuries in the Road Traffic Accident and/or its effects and/or consequences (like loss of earnings) so would also be relevant for discovery purposes.

35.  The plaintiff argued that the Affidavit of Mok Wing Kwan (the plaintiff’s solicitor) (“Mok’s Affidavit”) dated 25 October 2013 has already affirmed that “documents as to the Plaintiff’s earnings….have all been either disclosed to the Defendant or otherwise in the Defendant’s possession” and that this should be regarded as conclusive.

36.  However, I am of the view that Mok’s Affidavit did not verify or address whether the plaintiff had earnings documents filed in DCPI 2491/2012 in his own possession, custody or power or had in any time had in his own possession, custody or power (which was what the defendant sought under Order 24 Rule 7).  Further, I cannot see how the plaintiff’s solicitor, rather than the plaintiff himself, is in a position to verify and affirm what documents are or have been in the plaintiff’s own possession, custody or power. The most the plaintiff’s solicitor can affirm is what the plaintiff’s instructions regarding such are.  As such, I do not accept that Mok’s Affidavit can be regarded as “conclusive” in any way.

37.  The defendant also requested for discovery of “all papers (including declarations as to the plaintiff’s earnings) in respect to his application for assistance for the accident on 3^rd November 2009 from the Social Welfare Department”.  I note that from the Answer to the defendant’s 2^nd Interrogatories Affirmation of Lau Wing Yeung dated 11 November 2013, the plaintiff admitted that he had received payment from TAVAS on at least 4 occasions (17 December 2009, 2 February 2010, 10 March 2010, 10 May 2010).

38.  The defendant submitted that application for TAVAS would normally require the plaintiff to declare his earnings (and perhaps even to provide supportive evidence) to the Social Welfare Department.  Such documents are clearly relevant to the issue of discovery but I am of the view that the ambit of discovery was worded too wide.  I would allow specific discovery of “all papers relevant to the Plaintiff’s earnings in his application for assistance for the accident on 3^rd November 2009 from the Social Welfare Department”.

39.  As for the Second Summons, the defendant submitted that the witness statements of the plaintiff and his wife both stated that since the plaintiff lost his job in March 2010, the family had relied on the wife’s income.  Further, as stated above, the plaintiff had identified many fairly substantial deposits of money into his accounts as “for settlement of household and my personal expenses” “from my wife”.

40.  I am with the plaintiff’s argument that the wife’s employment and financial situation is not relevant to the issue of discovery thus I will not allow paragraph (a) of the Schedule of the Second Summons seeking specific discovery of “records of earnings and allowance received….etc” by the wife.

41.  However, I am of the view that bank transaction records of the wife showing various sums being deposited into the plaintiff’s two bank accounts at various dates as listed under paragraph (b) of the Schedule of the Second Summons are relevant.

42.  The plaintiff argued that discovery against non-party under Order 24 Rule 7A are “exceptional” (To Kan Chi & Ors v Pui Man Yau [1998] 3HKC 371 and Tullet Prebon (Hong Kong) Limited v Chan Yeung Fong and others HCA 2197/2009 (unrep, 9 June 2011)).  However, given the peculiar features of this case as stated in paragraphs 28 to 32 above, I am of the view that these documents are relevant in the assessment of the plaintiff’s actual “loss of earnings”.

43.  I have also considered the plaintiff’s argument that in the Second Joint Report, the experts were able to deal with the issue of causation and amount of sick leave insofar as medical opinion is concerned.  However, as the plaintiff had rightly pointed out, the experts were only able to give a medical opinion as to the issue of causation regarding the Kitchen Accident and the Road Traffic Accident, ie how each accident affected the plaintiff’s medical condition and future prognosis, and how such factors might affect his ability to work.  However, the medical experts were not in a position to give an opinion on the actual loss of earnings allegedly suffered by the plaintiff, what actual loss of earnings were attributable to each of the accidents, nor the circumstances of how the loss of earnings occurred.  These are factual matters to be determined by the Court.

44.  In particular, I note that Dr Chun Siu Yeung, the defendant’s medical expert, stated in the Second Joint Report (under paragraph 127) that during the two examinations (for the First Joint Report and the Second Joint Report), the plaintiff did not give a consistent account of how he was coping with returning to work and how much work he was actually doing (in terms of hours of work per day and numbers of days he worked) after each of the two accidents.

45.  These are issues that need to be addressed in order for the Court to assess the plaintiff’s actual “loss of earnings” and causation/apportionment of such “loss of earnings” between the Kitchen Accident and the Road Traffic Accident.  As stated above, these are the relevant issues for discovery here.

46.  Given that the plaintiff appeared to be inconsistent in accounting his “post accidents work history” to the medical experts, the defendant’s request for specific discovery on documents of money deposits into his bank accounts is all the more relevant and necessary.

47.  There has been some discussion during the hearing on whether the Second Joint Report adequately addressed the medical issue of causation between the two accidents and whether a Supplemental Expert Report was required. I have now perused both the First Joint Report and the Second Joint Report again and, unless the parties make an application and submit otherwise, I am satisfied that such an issue has been adequately addressed by the experts already and no Supplemental Expert Report is required.

48.  As for the Third Summons, the defendant did not oppose the plaintiff serving a Supplemental Witness Statement of the plaintiff so I will allow this.

49.  As for the plaintiff’s application under the Third Summons for leave to file and serve a Re-revised Statement of Damages, as stated during the hearing, I am of the view that, given the current specific discoveries, it is premature for the plaintiff to make this application and this application is therefore dismissed.

III.  Conclusion

50.  I would therefore give the following orders:

i)   For the First Summons: Order in terms of paragraphs 1 and 2 and the Schedule save as to amend paragraph (a) thereunder to read:

“ i. The Statement of Claim and Revised Statement of Claim (if any) filed in District Court Personal Injuries Action No. 2491 of 2012 (“DCPI 2491/2012”);

  ii. Medical reports and documents concerning the Plaintiff’s earnings filed in DCPI 2491/2012, pursuant to PD18.1;

  iii. Medical Expert reports in DCPI 2491/2012;

  iv. Witness Statement of the Plaintiff in DCPI 2491/2012; and

  v. All papers relevant to the Plaintiff’s earnings in his application for assistance for the accident on 3^rd November 2009 from the Social Welfare Department”

ii) For the Second Summons: Order in terms of paragraphs 1 and 2 and the Schedule save as to delete paragraph (a) thereunder.

iii) For the Third Summons: Order in terms of paragraph 3.

51.  As for costs, I will give the following orders: -

i) Costs of and occasioned by the First Summons be to the defendant in any event to be taxed if not agreed.

ii) Costs of Chan Wai Hing in complying with the order of the Second Summons be paid by the defendant to be taxed if not agreed; and those costs be costs in the cause of assessment of damages.

iii) Costs of and occasioned by the Third Summons be to the defendant in any event to be taxed if not agreed.