WU CHING SAU v. NEW WORLD FIRST BUSSERVICES LTD

HCPI 767/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 767 OF 2009

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DECISION

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I. BACKGROUND

1.  At all material times, the Plaintiff was a bus captain employed by the Defendant who drove a double-decker public bus (“Bus”) on route 8P.  On 9 December 2009, the Plaintiff commenced the present proceedings against the Defendant to claim damages for personal injuries and other loss and damages in respect of the accident referred to in paragraph 2 below.  The Plaintiff claims the Accident was caused by the negligence and/or breach of implied terms of contract of employment and/or breach of employer’s duty of care and/or breach of statutory duties on the part of the Defendant, their servant(s) or agent(s) (“D’s Alleged Fault”).

II.  ACCIDENT

2.  In paragraph 5 of the Statement of Claim (“SOC”), the Plaintiff claims that on 13 December 2006 whilst driving the Bus along route 8P a passenger informed him smoke was coming out from the engine at the rear of the Bus, so he stopped the Bus at a lay-by and arranged for all passengers to alight.  He inspected the upper and lower decks of the Bus to check for fire and to ensure all passengers had alighted.  There was thick smoke and smell of burning inside the Bus.  As a result, he felt dizzy, had difficulty in breathing, and experienced nausea and weakness in both legs.  The Plaintiff called the police.  Whilst waiting for the fire services and ambulance crew, he attempted to fetch a fire extinguisher located near the driver’s seat to put out the smoke at the back of the Bus.  In the course of doing so, he lost strength in his left leg, slipped and fell, hit his left knee against the edge of the boarding platform and sprained his back (“Accident”).

III.  PLEADINGS

3.  Particulars of D’s Alleged Fault as pleaded in paragraph 6 of the SOC and as particularised in the further and better particulars (“FBP”) filed on 25 May 2010 (“P’s FBP”) include inter alia the following:

(a)    failing to keep the Bus in good repair and maintenance;

(b)   failing to have (i) any or any proper, safe and suitable means of inspection that should be adopted by a reasonably prudent employer in the position of the Defendant and (ii) regular maintenance of the Bus as and when circumstances called for the need to conduct maintenance so as to prevent accidents from happening within the reasonable contemplation of the Defendant;

(c)   failing to ensure the proper functioning and safe working order of the Bus;

(d)   failing to maintain and/or implement any or any proper system of proper and safe means of thorough checking of the Bus that should be adopted by a reasonably prudent employer in the position of the Defendant to enable it to identify any possible risks of danger to persons staying on the Bus;

(e)    causing the Plaintiff to work on the Bus which was unsafe and/or a danger and/or a trap, namely, the dragging of the nearside front brake (“Brake”) of the Bus (“Dragging”) when it was in motion;

(f)     failing to take any or any proper and adequate precautionary measures for the safety of the Plaintiff when working on the Bus, ie failing to implement an effective system of maintenance to prevent the Dragging of the Brake when the Bus was in motion;

(g)   exposing the Plaintiff to risk of injury at work whilst working on the Bus as a result of D’s Alleged Fault which the Defendant knew or ought to have known in the circumstances.

4.  On 22 January 2010, the Defendant filed its Defence.  The Defendant pleads that save for paragraph 5(a) of the SOC which is admitted, paragraphs 3-5 of the SOC are not admitted and the Plaintiff is put to strict proof thereof. Further, paragraph 6 of the SOC is denied and the Defendant avers that it has (a) kept the Bus in good repair and maintenance, (b) arranged for the Bus to undergo regular inspection and maintenance, (c) ensured the good functioning and safe working order of the Bus, and (d) maintained/implemented a proper system of thorough checking of the Bus.

IV.  PLAINTIFF’S SUMMONSES

5.  On 25 May 2010, the Plaintiff issued a summons requiring the Defendant to supply “[the FBP] of the Defendant’s case set out in their solicitors’ letter to the Plaintiff’s solicitors dated 4^th May 2010 as contained in the letter from the Plaintiff’s solicitors previously sent to the Defendant’s solicitors on 23^rd March 2010” (“FBP Summons”).  The FBP sought are as follows (“Requested FBP”):

(a)    state precisely the facts and circumstances upon which it is alleged that the generation of smoke was due to the Dragging of the Brake;

(b)   state precisely all facts and circumstances leading to the Dragging of the Brake;

(c)   state with full details and/or with the assistance of a sketch or photo(s) the extent and manner of the Dragging of the Brake;

(d)   state when and how the Defendant was informed of and/or became aware of the Dragging of the Brake; and

(e)    state with full particulars as to the identity of the person(s) who discovered the Dragging of the Brake.

6.  On 25 May 2010, the Plaintiff issued a further summons (“Discovery Summons”) for specific discovery, inspection and copies of the following requested documents (“Requested Documents”):

(a)    the materials of the Brake which was worn out due to the Dragging of the Brake on the day of the Accident;

(b)   the documents showing the extent to which the Brake was worn out; and

(c)   the relevant photographs showing the extent to which the Brake was worn out.

V.  UNDISPUTED CHRONOLOGY OF EVENTS

7.  According to the Engineering and Operation Management System Work Order Report for Work Order C2006060993 dated 7 June 2006 (“ Old Work Order”), the relevant defect of the Bus is “改善/接裝工程/Engineering modification work/換一對頭比力碟” and the relevant service is “換一對頭比力碟” (see also (a) “維修工作內容及時間記錄” which records “完成工作” on 7 June 2006 as “換一對頭比力碟” and (b) the Brake Test Result of 7 June 2006 which records that the Bus has passed the brake test).

8.  The ambulance journey record of the Fire Services Department dated 17 December 2006 (“Ambulance Record”) records that the Plaintiff suffered from “SOTS after inhalation smoked from burning vehicle of his driving bus until he have to put off fire”.  The medical report of Dr To Tinh Bau dated 28 June 2008 (“Medical Report”) records that after the Plaintiff was sent to the hospital after the Accident, he complained of dizziness and throat itchiness after trying to put out a fire.  On examination, the following conditions were found, namely, smoke inhalation, dizziness, and unremarkable chest x-ray.

9.  The Incident Report dated 18 December 2006 (“Incident Report”) signed by the Plaintiff records the following particulars of the Accident: “據 [the Plaintiff] 稱：當日……駕駛 [the Bus]，有一名乘客向 [the Plaintiff] 報稱車尾位置冒煙。  [The Plaintiff] 便立刻將 [the Bus] 拉往一旁停車，安排乘客落車及巡車後，蹲下取滅火筒時，雙腳發軟跌倒，引致雙膝撞落地臺，但未有覺痛，及後救護車到場替 [the Plaintiff] 檢查，發現血壓不正常，於是送院檢查 ……”

10.  The Maintenance History Report printed on 21 November 2008 (“History Report”) gives the following particulars of Work Order CFD06121796 of 13 December 2006 (“New Work Order”): “引擎/引擎/大煙/司機稱不適報警/已用滅火筒/左頭轆微拖/拖回廠” and “迫力/車輪迫力/迫力分泵//拖(迫力用)更換”.

11.  According to the Engineering and Operation Management System Work Order Report for the New Work Order dated 13 December 2006, the breakdown of the Bus was due to “mechanical defect” and the particulars of complaint were “引擎/引擎/大煙/司機稱不適報警/左頭轆微拖/拖回廠”. “維修工作內容及時間記錄” attached thereto notes “完成工作” on 13 December 2006 as “左頭呔 [illegible] 翻拉磅”.

12.  By a letter to the Defendant’s solicitors Messrs T S Tong & Co (“TST”) dated 23 April 2009, the Plaintiff’s solicitors Messrs W K To & Co (“WKT”) referred to the History Report which recorded “引擎/大煙” and raised enquiries as to which part of the engine was overheated resulting in smoke generation and whether there was any leakage of oil of the engine at the material time together with copies of relevant documents relating thereto.

13.  On 4 May 2009, TST replied that “the smoke was generated due to [the Dragging] of the [Brake] of the [Bus].  The [Accident] was not related to the engine at all. There was no oil leakage related to the [Accident]” (“D’s Alleged Case”).

14.  On 7 October 2009, TST sent copy History Report to WKT.  On 5 November 2009, TST sent “修理及保養記錄” of the Bus and the New Work Order to WKT.  Further, in response to WKT’s request for disclosure of documents relating to the repair and maintenance of the Brake, TST informed WKT by letter dated 13 November 2009 that the Defendant only had “修理及保養記錄” of the Bus, History Report and New Work Order. The Old Work Order was provided under cover of such letter.

15.  After the commencement of the present proceedings on 9 December 2009, WKT by letter to TST dated 13 January 2010 demanded the Defendant to provide the Requested Documents and by letter to TST dated 28 January 2010 explained that as a result of D’s Alleged Case it was necessary for them to investigate in greater detail the effect of the Dragging and the nature of the smoke so caused and emitted, so the Requested Documents “are relevant to the issue in question and it is within the power, custody or possession of [the Defendant] to produce the same”.  But on 6 March 2010 TST replied saying “[there] is no evidence to suggest that the materials of the [Brake] of the [Bus] contributed to the [Dragging]” and declining the request for documents as a fishing exercise.  On 15 March 2010, WKT reiterated their position and pointed out that since (a) the Defendant alleged the Accident was not related to the engine and (b) the Plaintiff claimed he slipped and fell because of nausea and discomfort as a result of smoke inhalation, the Requested Documents were relevant to the issue in question and within the power, custody or possession of the Defendant for production of the same. On 17 March 2010, TST replied by reiterating their position and reminding that under the Civil Justice Reform (“CJR”) parties should refrain from making unnecessary interlocutory applications.

16.  By WKT’s letters to TST dated 23 March and 9 April 2010, the Plaintiff sought the Requested FBP. On 13 April 2010, TST replied by pointing out the Defendant had not pleaded that smoke was generated by the Dragging of the Brake, so the Plaintiff was not entitled to ask for FBP of the Dragging, which request was in any event a matter of evidence.  WKT in their letter dated 27 April 2010 to TST reiterated their position and added that it was reasonably necessary for the Plaintiff to investigate in greater detail (a) the cause and effect of the Dragging of the Brake and (b) the nature of the smoke so caused and emitted “whether by way of specific discovery of documents and/or request for [FBP] of pleadings and/or interrogatories and/or notice to admit facts and/or notice to produce documents.  [TST’s] technical objection only creates procedural hurdles and will result in further applications.  [The Plaintiff] will surely get the necessary order against [the Defendant] one way or the other.  In view of the spirit of the [CJR], the parties should take a pragmatic approach to deal with the matter sensibly and should refrain from making any unnecessary applications”.

17.  On 3 May 2010, TST reiterated that the Defendant had not pleaded the smoke was generated by the Dragging of the Brake, so the Plaintiff was not entitled to ask for specific discovery of documents and/or request for FBP of pleadings and/or to issue notice to produce documents and/or to administer interrogatories and/or to issue notice to admit facts, and the Plaintiff’s requests were contrary to the spirit of procedural economy and reasonable proportionality under the CJR.

VI.  AFFIRMATION EVIDENCE

18.  On 25 May and 14 July 2010, the Plaintiff filed 2 affirmations in support of his summonses.  On 30 June 2010 the Defendant filed the affirmation of its assistant insurance manager Chau Yat Shing (“Mr Chau”) in opposition.

(a)  Plaintiff’s case

19.  The Plaintiff claims that since:

(a)    even before the commencement of the present proceedings, in TST’s letter to WKT dated 4 May 2009, the Defendant has set up a positive case by claiming D’s Alleged Case;

(b)   the Plaintiff has made contemporaneous complaint of smoke inhalation shortly after the Accident (see the Ambulance Record and the Medical Report); and

(c)   D’s Alleged Case has been replaced in the Defence by (i) non-admission of paragraphs 5(b)-(g) of the SOC concerning the presence of smoke inside the Bus and (ii) plea of putting the Plaintiff to strict proof,

the Requested FBP and the Requested Documents are relevant to the issue of liability in respect of the Plaintiff’s claim in the present proceedings which remains in dispute.

20.  The Plaintiff has been advised by WKT that “the Defence in this case involves a “pregnant” negative in light of [D’s Alleged Case] and henceforth the [Requested FBP] ought to be given by the Defendant”.  Further, the court in considering the issue of liability at trial will have regard to (a) whether the Defendant has implemented an effective system of maintenance of the Bus to prevent the Dragging of the Brake when the Bus was in motion and taken reasonable steps to prevent accidents, and (b) the causation of the Accident.  So even though the Dragging of the Brake has not been specifically pleaded in the SOC, the Requested Documents are clearly crucial and materially relevant to the determination of the Plaintiff’s claim.

21.  The Plaintiff claims that common sense suggests that (a) the occurrence of brake dragging, which is an unusual event, will to a certain extent cause depreciation and damage to the brake and (b) brake dragging causing smoke generation is a sufficiently serious matter to be reported and investigated, so it is highly unlikely for the Defendant not to be in possession of any documents for investigation relating to the Dragging of the Brake.  The Plaintiff verily believes the Defendant is likely to have or have had the Requested Documents in its possession, custody or power but despite requests and demands it still fails to disclose the same.  Although WKT’s letter to TST dated 13 January 2010 adopted the phrase “worn out”, it is merely a convenient expression for referring to the above matters.  The Plaintiff contends that the Defendant is hiding or concealing highly relevant information to his prejudice.

(b)  Defendant’s case

22.  Mr Chau says that prior to the commencement of the present proceedings he has (a) told TST that smoke was generated by the Dragging of the Brake and (b) provided TST with the History Report and New Work Order.  He claims it is likely that the Dragging of the Brake produced some smoke temporarily, but smoke ceased to be generated once the Bus stopped.  Further, there is no mention of any smoke inside the Bus or of inhalation of smoke by the Plaintiff in the Incident Report.

23.  The Defendant claims that in any event the materials of the Brake are not an issue in the Plaintiff’s claim because the Plaintiff has not pleaded that the materials of the Brake or the worn out Brake contributed to the Dragging.  So even if the Brake were worn out, the extent to which it was worn out is not an issue in the Plaintiff’s claim. Anyway, there is no evidence that the Brake was worn out, or if it were worn out, it was due to the Dragging of the Brake on the day of the Accident.  In the circumstances, the probative value of the Requested Documents (even if they existed) is so slight as not to justify the inconvenience of giving discovery, hence such documents are not necessary for determining the issue to which they are said to relate.

VII. DISCUSSION – FBP SUMMONS

(a)  Nature and purpose of FBP

24.  Order 18 rule 12 of the Rules of the High Court (“RHC”) provide as follows:

“ (1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded ……

(3) The Court may order a party to serve on any other party particulars of any …… defence or other matter stated in his pleading …… or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. ……

(3B) No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

(4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that party to serve on any other party –

(a) where he alleged knowledge, particulars of the facts on which he relies, and

(b)     where he alleges notice, particulars of the notice.”

25.  There is no dispute that the function of particulars is as follows: (a) to inform the other side of the nature of the case that he has to meet as distinguished from the mode in which the case is to be proved, (b) to prevent the other side from being taken by surprise at the trial, (c) to enable the other side to know with what evidence he ought to be prepared and to prepare for trial, (d) to limit the generality of the pleadings, the claim and the evidence, (e) to limit and define the issues to be tried, and as to which discovery is required, and (f) to tie the hands of the party so that he cannot without leave go into any matters not included (see Hong Kong Civil Procedure 2010 Vol.1 para.18/12/1 at pp.371-372).

26.  In a nutshell, the purpose of FBP is to permit the parties to understand the case they have to meet at trial so as to remove the element of surprise. But it must not be forgotten that the cause of action/defence arises not from the FBP but from the material facts as pleaded in the pleadings. Whilst particulars (a) limit the generality of the pleadings so as to more sharply define the issues in dispute or to limit the issues of fact to be investigated at the trial and/or (b) explain and amplify the pleadings by giving details of the material allegations, they do not modify, add to or circumscribe the cause of action/defence or the material allegations in the pleadings.  This will become pertinent when I refer to the effect of P’s FBP below.

(b)  Plaintiff’s arguments

27.  However, Mr Tai, solicitor for the Plaintiff, argues that the non-admission pleaded in paragraph 6 of the Defence is pregnant with an affirmative allegation, ie D’s Alleged Case which is the very cause of defence on which the FBP Summons is purportedly premised.  Alternatively, even if D’s Alleged Case has not been pleaded by way of a pregnant negative in the Defence, Mr Tai submits this is a mere technical objection that can be overcome by amending the SOC to expressly include a plea that “there was generation of smoke due to the [Dragging of the Brake] at the material time”, and the Defendant will then be required to expressly plead thereto.

28.  In the course of the hearing before me, Mr Tai rightly abandons the alternative argument in the above paragraph.  Despite such alternative argument, no application for amendment of the SOC has been placed before me. In the absence of such application, without knowing whether leave will be granted to amend the SOC and/or (if such leave were granted) without knowing how the Defendant may plead to any amended SOC, any application for the Requested FBP on such ground is premature.  After all, Order 18 rule 12(3) of the RHC provides that a defendant may be ordered to provide FBP in respect of any defence or other matter “stated in his pleadings” and not what may be stated in his pleadings.

(c)  Paragraph 5 of the SOC

29.  Paragraph 5 of the SOC pleads positively the material facts of the Accident (see paragraph 2 above) without any averment as to the Dragging of the Brake.  In paragraph 6 of the Defence, the Defendant pleads that save for admitting paragraph 5(a) of the SOC, “the rest of paragraph 5 of the [SOC] is not admitted and the Plaintiff is put to strict proof”.  Mr Tai’s written submissions confirm that the FBP Summons is based on the non-admission in paragraph 6 of the Defence in answer to the material facts pleaded in paragraph 5 of the SOC.

30.  Where the allegations in the statement of claim are positive allegations, a traverse by non-admission is not an assertion of fact but may amount to no more than requiring the plaintiff to prove his allegations if he can and refusing to give the plaintiff any help by admitting it.  I have referred the parties to Pinson v Lloyds and National Provincial Foreign Bank, Limited [1941] 2 KB 72 where Stable LJ said at pp.83-84 as follows:

“…… Where the traverse is a mere denial or putting in issue of some positive or affirmative allegation in the statement of claim, the rule that a defendant cannot be ordered to give particulars really rests on the commonsense basis that there is nothing which the defendant can particularise, in which case, to say the least of it, there would be no point in ordering him to do something which ex hypothesi is impossible. ……”

31.  In my view, with only positive pleas of the material facts as to how the Accident happened in paragraph 5 of the SOC (see paragraph 2 above) but without any express plea of smoke being generated by the Dragging of the Brake, the non-admission in paragraph 6 of the Defence in answer thereto is plainly a simple traverse and not a double negative let alone a pregnant negative that embodies an affirmative averment that smoke was generated by the Dragging of the Brake (ie D’s Alleged Case as raised in TST’s letter to WKT dated 4 May 2009).

32.  Mr Tai is unable to cite any authority to support his contention that such traverse by non-admission is pregnant with an affirmative proposition which (a) is extraneous to the express averments in SOC and/or the Defence and (b) does not address the material facts as pleaded in paragraph 5 of the SOC.

33.  To properly understand the nature of such traverse by non-admission, it is necessary to return to the basics of pleadings. Lord Goddard LJ in Pinson at p.80 stated that “…… the fundamental rule of pleading is that both a statement of claim and a defence must set out the material facts on which the party pleading intends to rely.  Pleading the general issue by way of defence is no longer allowed and for the very good reason that such a plea gave no indication either to the opposite party or to the Court what the real issues were that had to be determined. ……”  But “[the] defendant should never traverse matter which the plaintiff might have, but has not, raised against him (see Rassam v. Budge [1893] 1 Q.B. 571).  Moreover, it is no part of his duty, when drafting his defence, to anticipate what the plaintiff may hereafter allege in his reply” (see Hong Kong Civil Procedure 2010 Vol.1 para.18/13/5 at p.387).  In the circumstances, I am unable to read any affirmative proposition concerning the Dragging of the Brake (which has not been mentioned in paragraph 5 of the SOC) into the non-admission pleaded in paragraph 6 of the Defence.

34.  MacLulich v MacLulich [1920] P 439 and Pinson show that any affirmative proposition within a pregnant negative traverse necessarily relates to material allegation(s) in the statement of claim and not elsewhere beyond the parties’ pleadings.

35.  In MacLulich, a wife sought restitution of conjugal rights by alleging in the petition that the husband withdrew from cohabitation with her and had kept and continued to keep away from her without any just cause whatsoever, and had refused and still refused to render her conjugal rights. The husband by his answer denied he had without any just cause withdrawn from cohabitation or he refused or still refused without reasonable excuse to render to the wife conjugal rights.  It was held that the husband’s plea involved an affirmative case cloaked in the double negative that he had “just cause” or “reasonable cause” as raised in the wife’s petition, so she was entitled to particulars of any charges or facts on which the husband relied as justifying his conduct.

36.  In Pinson, the plaintiff pleaded that the defendants, in breach of contract not to effect purchases or sales for her without her instructions, had done so without having been authorised by her to do so.  The defendants in their defence denied they “effected purchases or sales without having been authorized by the plaintiff to do so”.  They admitted that on their pleading they intended at the trial to set up an affirmative case and prove the existence of express authority from the plaintiff.  It was held by the majority (Goddard and Slade LJJ) that the defendants must give particulars of the affirmative case set up insofar as it met allegations in the statement of claim.

37.  The fallacy of Mr Tai’s contention is further exposed when one brings such argument to its logical conclusion.  First, such contention if acceded to allows an unpleaded case/issue to be slipped in when it has not been pleaded by either the plaintiff or the defendant.  This approach leads to uncertainty and confusion, and must necessarily be viewed with disfavour after the CJR. Secondly, if such contention is the accepted approach, a traverse pleaded in the defence cannot be regarded as a simple traverse unless the defendant expressly disavows reliance on all other defence assertions relating to the subject matter of the claim that have been raised previously but are now abandoned and unpleaded.  In my view, pleadings should not be so burdened. Thirdly, if a defendant has raised various different assertions in relation to the subject matter of the claim prior to service of his defence, question therefore arises over which of such different or even contradictory defence assertions is covered by such traverse.  This defeats the purpose of pleadings which is to “…… fairly and precisely inform the other side of the pleading party so that proper preparation is made possible, and time and effort are not expended unnecessarily on other issues ……” (see Wing Hang Bank Ltd v Crystal Jet International & ors [2005] 2 HKC 638, 643).

38.  But even assuming that paragraph 5 of the SOC contains a plea that “there was generation of smoke due to the [Dragging] at the material time” (ie Mr Tai’s contention which I disagree), I am not persuaded that the non-admission of such averment amounts to any double negative.  There is conceptual difficulty in reading into such non-admission of the allegation that “there was generation of smoke due to the [Dragging] at the material time” a positive proposition being D’s Alleged Case (see paragraph 13 above), which is precisely the same plea.

39.  But if I am wrong and the non-admission in paragraph 6 of the Defence is a double negative, it does not necessarily follow it must be a pregnant negative such that particulars thereof have to be given.  Stable J explained in Pinson at p.84 as follows:

“Such traverse – that is, one involving a double negative – may fall under one of three heads: (i.) it may be a mere traverse involving no affirmative allegation; (ii.) it may be a negative pregnant which contains within the double negative an affirmative allegation; or (iii.) it may leave the matter in doubt what its true nature is.  In my judgment, in the first case, the defendant at the trial of the action can do no more than put the plaintiff to the proof of the negative alleged.  He can seek to shake or destroy by cross-examination any evidence which the plaintiff may bring on the point, but once the plaintiff has established a prima facie case, the defendant on such a pleading cannot set up an affirmative case in answer because that, ex hypothesi, would be to set up a case which he has not pleaded, and that is what the rules expressly preclude him from doing.  If it falls under the second head, the double negative extends beyond a mere traverse and amounts as in the present case to this : “If you establish a prima facie case that I sold or purchased shares for you and that in so doing I acted without authority, then I intend to call evidence to establish that on each or some of the occasions there was an express authority to act as I did or an implied authority to be derived from certain facts.”  That, in my judgment is to set up an affirmative case of which particulars ought to be given and that, none the less, though the affirmative case is concealed, albeit imperfectly, in a negative shell. The third head may be excluded in the present case ……”

40.  As Goff J suggested in Howard v Borneman & ors [1972] 1 WLR 863, 868, the clue for distinguishing the 3 different categories of traverse referred to above can be found in Chapple v Electrical Trades Union & ors [1961] 1 WLR 1290, 1293, per Pennycuick VC:

“…… a traverse is not to be regarded as pregnant with an affirmative merely on the ground that every traverse of a negative allegation implies an affirmative; and I think that, in order to be so regarded, the traverse must import some affirmative allegation beyond that which is in any event to be implied from the mere denial of the negative allegation.”

41.  In Tin Shui Wai Development Ltd v Attorney General [1991] 1 HKC 509, 511-512, Godfrey J restated the principles as follows:

“It is, for present purposes, essential to notice that what we have here is a negative allegation made by the plaintiff and traversed by the defendant. Such a traverse necessarily involves a double negative; but, although in ordinary parlance, a double negative must involve an affirmative proposition, for pleading purposes the denial of a negative allegation does not necessarily involve the making of an affirmative proposition. Whether it does so or not depends on whether it is, on the one hand, a mere traverse; or, on the other hand, a traverse which, though negative in form, is in fact pregnant with an affirmative. The denial of a negative allegation may operate as a bare traverse and no more, whereby the defendant simply puts the plaintiff to the proof of the negative alleged. In such a case, if it is not possible to read into the mere denial of the negative allegation any affirmative allegation beyond that which is necessarily implied from such a traverse, particulars will not be ordered; but then once the plaintiff establishes a prima facie case, the defendant will be precluded from setting up an affirmative case in answer, for that would be to allow him to set up a case which he has not pleaded. Alternatively, if it is clear to the court, either from the nature of the case or from what is stated by counsel or otherwise, that the defendant intends to set up an affirmative case, which, if established, would defeat the plaintiff's prima facie case, particulars of such an affirmative case will be ordered; for otherwise there will be doubt as to what are the issues to be determined between the parties. Where the denial of a negative allegation leaves it in doubt as to what the true nature of the denial is, the pleading will be regarded as embarrassing and evasive and it will be ordered to be struck out, or amended, or particulars may be ordered of any affirmative case relied on. ……”

42.  This explains why sometimes the court has come to the conclusion that the traverse is pregnant with a positive allegation and in others that it is not.  The question here is, even assuming that the traverse in paragraph 6 of the Defence is a double negative (which I disagree), whether it conceals a positive allegation such that particulars must be given (as in MacLulich and Pinson) or whether it is not possible to read into such traverse an allegation beyond which is necessarily implied from such a traverse and which the plaintiff must establish in order to succeed so that particulars will be refused (as in Weinberger v Inglis [1918] 1 Ch 133, Duke’s Court Estates Ltd v Associated British Engineering, Limited [1948] Ch 458, Chapple, Howard and Tin Shui Wai Development Ltd) (see Hong Kong Civil Procedure 2010 Vol.1 para.18/12/44 at pp.379-380).

43.  Here, I am unable to say that the traverse in paragraph 6 of the Defence must import some affirmative allegation beyond what in any event is implied for mere non-admission of the material allegations in paragraph 5 of the SOC.  The fact that the Defendant has at the pre-action stage raised D’s Alleged Case is neither here nor there.  In my view, it must be clear to the Plaintiff from the outset that proof of the circumstances and causation of the Accident and of D’s Alleged Fault turns inter alia on whether there was any smoke inside the Bus, what caused the smoke to generate, whether the Plaintiff inhaled any smoke, and whether the Defendant has failed in its duty to take reasonable care in respect of foreseeable risk of injury to the Plaintiff as its employee or to comply with its statutory duties.  The onus of proof falls on the Plaintiff, and I do not see the Defendant setting up any affirmative case.

44.  Astbury J in Weinberger said as follows:

“As a general rule the Court never orders a defendant to give particulars of facts and matters which the plaintiff has to prove in order to succeed, and this is specially the case where a defendant has confined himself to putting the plaintiff to the proof of allegations in statement of claim, the onus of establishing which lies upon him”. (p.137)

“A traverse by a defendant, even of a negative pleaded by a plaintiff which he must establish in order to succeed, is not, in my judgment, a matter “stated” in the defence within the meaning of this tile.  The rules under the Judicature Acts abolishing the general issue were intended to limit and define the issues to be tried, but not to force a defendant on a traverse to undertake the burden of proving anything himself, and still less to relieve a plaintiff from any onus of proof resting solely upon him.” (p.140)

45.  In Howard, the defence specifically denied a series of negative propositions in the statement of claim. Goff J accepted it was an over-simplification to assert that, the onus of proof being on the plaintiff, no particulars could or ought to have been ordered and that was an end of the matter.  But he placed weight on the fact that the onus of proving the negative lied on the plaintiff, and held that the defence did in terms do no more than put the plaintiff to proof of his allegations.  The learned judge also referred to Duke’s Court Estates Ltd where Harman J whilst not deciding the case on onus alone did say at p.462 that the question of onus was very relevant.

46.  Turning to the present proceedings, as explained above, the onus of proving the circumstances and causation of the Accident falls on the Plaintiff, which is plainly a relevant consideration in deciding whether to refuse the Requested FBP sought or not.  If refused, this may have consequences that may cause difficulties for the Defendant at trial in the sense that should the Plaintiff succeed in establishing a prima facie case in respect of the material allegations as to the circumstances and causation of the Accident as pleaded in the SOC it may well be that with the Defence in its present state the Defendant will be precluded from producing evidence in support of D’s Alleged Case or some other positive case.  But for the present purpose, I say nothing further on this subject except to respectfully adopt Harman J’s observations in Duke’s Court Estates Ltd at pp.464-465 that “…… [to] order these particulars would in fact go far towards making the defendants …… – disclose their hand and provide the plaintiffs with material for proving their case, the onus on the plaintiffs being, in an action of this sort, to prove their case without any assistance, which in other cases perhaps they might get” (see Chapple at p.1294 and Howard at p.869).

47.  By reason of the above matters, I decline to order the Defendant to supply the Requested FBP.

(d)  Paragraph 6 of the SOC

48.  Mr Tai’s written submissions do not rely on paragraph 6 of the SOC (which pleads D’s Alleged Fault) and paragraph 7 of the Defence (which denies paragraph 6 of the SOC).  However, at the hearing before me, Mr Tai orally applied to rely on such pleadings as further basis for the FBP Summons.  Notwithstanding Mr But’s objection that he was taken by surprise and was not prepared to deal with such new line of argument, I granted leave for Mr Tai to expand his submissions in support of the FBP Summons to cover paragraph 6 of the SOC and paragraph 7 of the Defence. I am not convinced Mr But was unable to deal with these pleaded contentions which were already in issue at the hearing before me.  But, as seen below, such indulgence by the court has not altered the outcome of the application.

49.  Mr Tai argues that the non-admission in paragraph 6 of the Defence when read together with the denial in paragraph 7 of the Defence amounts to a pregnant negative which positively imports D’s Alleged Case in response to the Plaintiff’s material allegations in paragraphs 5-6 of the SOC, including the averment as to the Dragging of the Brake pleaded in P’s FBP as follows:

(a)     in respect of paragraph 6(1)(e) of the SOC which pleads that the Defendant has caused “the Plaintiff to work on the Bus which was unsafe and/or a danger and/or a trap”, P’s FBP gives “the [Dragging] of the [Brake] of the Bus when it was in motion” as particulars of “a trap”, “a danger” and “unsafe” condition;

(b)    in respect of paragraph 6(1)(f) of the SOC which pleads that the Defendant’s failure to take any or any proper and adequate precautionary measures for the safety of the Plaintiff when working on the Bus, P’s FBP gives the Defendant’s failure “to implement an effective system of maintenance to prevent the Dragging of the Brake when the Bus was in motion” as particulars of such fault.

There is no dispute that the positive case on inspection, repair and maintenance of the Bus expressly pleaded in paragraph 7 of the Defence (see paragraph 4 above) is irrelevant for present purpose.

50.  First, although particulars have become incorporated into the pleading in respect of which they are delivered, they should not be traversed or answered by any other plea. In Pinson at p.75, Scott LJ said that “[it] is a well-recognized canon of pleading that the defendant need not, and, indeed, ought not to, plead to “particulars,” whether contained in or delivered with the statement of claim.  The reason for that canon is plain.  All the material facts constituting the cause of action ought already to have been plainly stated in the pleading itself, as required by Order XIX., r. 4, the plainest and most fundamental of all the rules of pleading ……”  Hence, the denial in paragraph 7 of the Defence cannot be read as a traverse of the positive allegation of “the [Dragging] of the [Brake] of the Bus when it was in motion” in P’s FBP.

51.  Secondly, even if the denial in paragraph 7 of the Defence amounts to a traverse of such positive allegation in P’s FBP, I cannot see how it can be regarded as being pregnant with an affirmative proposition being D’s Alleged Case, which is the same as the allegation in P’s FBP with an additional assertion that smoke generation was due to such alleged fact.  Such additional assertion is extraneous to the parties’ pleadings (including P’s FBP), which do not expressly aver that smoke was generated by the Dragging of the Brake. Rather, paragraph 5 of the SOC pleaded that a passenger told the Plaintiff that smoke was coming out of the engine at the rear of the Bus (see paragraph 2 above).

52.  Further, the onus of proving the positive assertion in P’s FBP in respect of the Dragging of the Brake when the Bus was in motion lies on the Plaintiff.  So it is not a question of what defendant’s case the Plaintiff has to meet because he has to make his own case in the face of the Defendant’s denial.  In my view, the averments in the SOC and P’s FBP and the traverse in question do not enable the court to treat the Defendant as having admitted P’s FBP that there was Dragging of the Brake when the Bus was in motion.  It is true that (a) Mr Chau has told TST that smoke was generated due to the Dragging of the Brake because he believed it is likely that the such Dragging of the Brake produced some smoke temporarily which ceased when the Bus stopped, and (b) the Defendant has asserted D’s Alleged Case in TST’s correspondence, but I am unable to discern any admission of D’s Alleged Case in the Defence.

53.  It may be argued that where allegations in the statement of claim are negative allegations, every such traverse in the defence necessarily involves a double negative or implies in some sense an affirmative.  Still, it does not necessarily follow from such traverse in answer to D’s Alleged Fault as pleaded in paragraph 6 of the SOC, which essentially comprises of negative allegations, “that a positive or affirmative statement is contained in it.  It may or may not be so” (see Pinson at p.84 per Stable J) and “…… not every double negative or implied affirmative requires particulars to be given” (see Duke’s Court Estates, Ltd at p.462).  Relying on the principles discussed above, I am of the view that the onus of proving D’s Alleged Fault is on the Plaintiff, and I find it impossible to read into the non-admission in paragraph 6 of the Defence when considered together with the denial in paragraph 7 of the Defence any affirmative allegation beyond that which is necessarily implied from such traverse, ie the Defendant has merely put the Plaintiff to prove of his allegations.

54.  Thirdly, one cannot ignore the effect of Order 18 rule 13 of the RHC which provides as follows:

“ (2) Subject to paragraph (5), a traverse may be made either by a denial or a statement of non-admission and either expressly or by necessary implication.

(3) Every allegation of fact made in a statement of claim …… which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence ……; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them.

(5) Where an all egation made in a statement of claim …… is traversed by a denial, the party who denies the allegation shall in his defence …… -

(a) state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant, state his own version.

(6) A party who –

(a) fails to deal with an allegation; but

(b) has set out in his defence …… the nature of his case in relation to the issue to which that allegation is relevant,

is to be taken to require the allegation to be proved.”

55.  The law now recognises a positive duty on a defendant to plead the essence of his case so that the plaintiff should not be caught by surprise.  The combined effect of Order 18 rule 13(5) and (6) of the RHC is that where a defendant denies part of the plaintiff’s claim (eg denial of paragraph 6 of the SOC as pleaded in paragraph 7 of the Defence in the present proceedings), he must set out his positive case in the Defence (eg the Defendant should have expressly pleaded D’s Alleged Case if it intends to rely on such line of defence in the present proceedings).  If he fails to do so, he will be taken to have merely required the plaintiff to prove his allegations, and he will not be entitled to call evidence of fact contrary to the plaintiff’s contention.  In such circumstances, I cannot see how the traverse by denial in paragraph 7 of the Defence is pregnant with an affirmative allegation of D’s Alleged Case.

(e)  Summary

56.  It follows from the above that the Requested FBP should not be ordered. Ultimately, whether particulars will be ordered is one of discretion, but no particulars can or will be ordered unless they are necessary either for disposing fairly of the cause or matter or for saving costs (see Order 18 rule 12(3B) of the RHC).  Since I have found that the positive allegation of D’s Alleged Case does not form part of the Defence, the Requested FBP pertaining to D’s Alleged Case is neither necessary for fairly disposing of the cause or matter or for saving costs.  The burden is on the Plaintiff to satisfy the court, but he has failed to do so.  To allow otherwise will unnecessarily increase costs on matters which are not relevant to the defence.

57.  Mr Tai argues that in the spirit of the CJR and the underlying objectives in Order 1A rule 1 of the RHC the Defendant should be ordered to provide the Requested FBP.  Such submission blurs the distinction between the underlying objectives in Order 1A rule 1 of the RHC and the specific requirements in Order 18 rule 12(3), which distinction is emphasised by the Court of Appeal in Re Wing Fai Construction Co Ltd [2010] 3 HKC 593, 597 as follows:

“11. It is quite clear that O 1A, r 1(b) is not a Rule that requires a specific act to be done as such, it is one of the ‘underlying objectives’ of the Rules namely to ensure that a case is dealt with as expeditiously as is reasonably practicable. It should be otiose to point out that there is a marked difference between a Rule which requires a particular act to be done and a Rule which sets out an underlying objective or guiding principle. ……”

To succeed on the FBP Summons, the Plaintiff has to bring himself within the requirements of Order 18 rule 12(3) of the RHC, and this he has failed to do.  The CJR and the underlying objectives do not offer any panacea solution for any defective interlocutory application.

VIII. DISCUSSION – DISCOVERY SUMMONS

58.  Under Order 24 rule 7 of the RHC, a party may apply for an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is or has at any time been in his possession, custody or power, when he parted with it and what has become of it.  By Order 24 rule 8 of the RHC, such order is not to be made unless the court is satisfied that it is necessary for disposing fairly of the cause or matter or for saving costs.

59.  Hong Kong Civil Procedure 2010 Vol.1 para.24/7/1 at pp.538-539 states inter alia as follows:

“…… this is not sufficient unless a prima facie case is made out of (a) possession, custody, or power, and (b) relevance of the specified documents …… This prima facie case may be based merely on the probability arising from the surrounding circumstances or in part on specific facts deposed to. See too Berkeley Administration v. McClelland[1990] F.S.R. 381 where at 382 the court restated the principles as follows: (1) There is no jurisdiction to make an order under RSC, O.24 r.7, for the production of documents unless (a) there is sufficient evidence that documents exist which the other party has not disclosed; (b) the document or documents relate to matters in issue in the action; (c) there is sufficient evidence that the document is in the possession, custody or power of the other party. (2) When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure. ……”

(see also Lee Nui Foon v Ocean Park Corp (No 1) [1995] 2 HKC 390).

60.  It is for the party seeking specific discovery to demonstrate a prima facie case for inter alia the relevance of the documents sought to the “matters in question” (see also Wong Wai Chun v Au Yeung Fung Sim & ors HCA5038/2000, Recorder G Ma, SC (as he then was) (unreported, 27 April 2001)).  But if the party seeking discovery establishes a prima facie case, it is for the party objecting to the order for discovery to satisfy the court that the discovery is not necessary either for disposing fairly of the cause or matter or for saving costs (see Hong Kong Civil Procedure 2010 Vol.1 para.24/8/1 at p.544).

61.  The well-known test for determining “relevance” is set out in The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QB 55, 63 as follows:

“…… It seems to me that every document relates to the matters in question in the action, which not only would be evidence on 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.  I have put in the words “either directly or indirectly” because, as it seems to me, a document can properly be said to contain information which may enable a party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of enquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, ……, that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control ……”

(see also Lee Nui Foon at p.392 and Full Range Electronics Co Ltd v General-Tech Industrial Ltd & anor [1997] 1 HKC 541, 544).

62.  On the aforesaid test of “relevance”, the real question is whether the documents sought to be discovered are relevant to the issues between the parties to the litigation or, putting it in another way, to the “questions in the action” (see Matthews and Malek, Disclosure, 3^rd ed (2007) para.5.09 at p.127).

63.  Sun Yuet Tai Limited v British American Tobacco Company (HK) Limited CACV95/1999 (unreported, 4^th June 1999) at para.24 seemed to suggest that the issues or questions must be those identified in the pleadings.  However, in Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665, it has been suggested that matters can be “in question” even though not expressly raised on the pleadings. At p.672, Neill LJ said as follows:

“…… It is clearly established, however, that “the matters in question” cover wider ground than the issues as disclosed in the pleadings.  Thus a party is obliged to disclose any document which it is reasonable to suppose contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary or which may fairly lead to a train of inquiry which may have either of these two consequences.  It follows that discovery is not necessarily limited to documents which would be admissible in evidence.”

But even if an issue is raised in the pleadings, it is not determinative as to whether it relates to a “matter in question”. Cheung JA in Paul’s Model Art Gmbh & Co v U T Limited & ors CACV139/2005 (unreported, 14 December 2005) at para.25 said as follows: “…… Discovery is not required of documents which relate to irrelevant allegations in pleadings which even if substantiated could not affect the result of the action: Allington Investments Corp & Others v First Pacific Bancshares Holdings Ltd & Another [1995] 2 HKC 139” (see also Deacons v White & Case HCA2433/2002, Deputy High Court Judge Poon (as he then was) (unreported, 13^th March 2003) paras.20-21 and Re the Estate of Ng Chan Wah HCAP5/203 (unreported, 5 March 2003), per Chu J).

64.  Mr But advocates the more restrictive approach adopted by Colman J in O Company v M Company [1996] 2 Lloyd’s Rep 347, 350-351 as follows:

“…… The “case” of the plaintiffs or the defendants respectively can be defined only by looking at the pleadings.  It must be defined by reference to the plaintiffs’ pleaded claim in its general sense, as distinct from its detailed exposition and by the defendants’ pleaded defence in the sense of its general refutation of the plaintiffs’ claim.  What matters for discovery purposes is the claim and defence to it in the broadest sense and not to the detailed particulars of either claim or defence.  A document in a defendant’s possession, custody or power which provides information as to a ground not hitherto pleaded in a cargo claim upon which it can be said that they failed to exercise due care of the cargo is just as relevant for discovery purposes as one which contains information as to a ground of want of due care which has already been pleaded. ……

…… The principle was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the plaintiff or defendant and which were required for purely speculative investigation ……  On the contrary, the document or class of documents must be shown by the applicant to offer a real probability of evidential materiality in the sense that it must be a document or class of documents which in the ordinary way can be expected to yield information of substantial evidential materiality to the pleaded claim and the defence to it in the broad sense which I have explained. If the document or class cannot be demonstrated to be clearly connected to issues which have already been raised on the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings, if sufficient information were available, the application should be dismissed.” (my emphasis)

65.  O Company was applied by Findlay J in A v B [1998] HKLRD (Yrbk) 542, but Deputy High Court Judge Horace Wong SC in Chan Hung v Yung Kwong Chung (unreported, 15 January 2009) doubted whether it was open to the Court of First Instance to follow the gloss Colman J put on the Peruvian Guano approach in O Company in view of the Court of Appeal’s adoption of the Peruvian Guano test in Deak & Co (Far East Ltd) v NM Rothschild & Sons Ltd & ors [1981] HKC 78. In paras.21-27 of my earlier judgment in EAA Securities Limited v Chan Lin Mui & anor DCCJ4015/2003 (unreported, 31 July 2008) paras.21-27, I have discussed O Company in light of other Western Australian cases that were premised on procedural rules similar to Order 24 rule 7 of the RHC, and I too have preferred the Peruvian Guano test.

66.  In light of the above discussion, although the pleadings and particulars will usually determine relevance to a matter in question, the obligation to provide discovery in respect of a matter in question does not necessarily mean a matter on which issue has joined in the pleadings, but the documents must be matters as to which an inference can properly be drawn that they are the subject of controversy between the parties. But there is no doubt that discovery will not be ordered for the purpose of “fishing” (see Wharf Properties Ltd & anor v Eric Cumine Associates, Architects, Engineers & Surveyors (a firm) & ors HCA13431/1985 and HCCL48/1985, Mortimer J (unreported, 25^th April 1987) and HKFE Clearing Corp Ltd v Yicko Futures Ltd [2006] 2 HKC 233).

67.  It is plain from the analysis and conclusion above as to the FBP Summons that the Defendant has not pleaded in the Defence any affirmative proposition being D’s Alleged Case by virtue of the non-admission and/or denial of the material facts in paragraphs 5 and/or 6 of the SOC.  Hence, the Plaintiff cannot seek the Requested Documents on the ground that they may shed light on D’s Alleged Case which the Defendant in truth has not relied on in paragraphs 6-7 of the Defence.

68.  It is true that in the SOC and P’s FBP the Plaintiff has pleaded the presence of smoke inside the Bus and the Dragging of the Brake when the Bus was in motion, but there is no express averment that such smoke was generated by the Dragging of the Brake when the Bus was in motion or that the Brake was worn out or that the materials of the Brake in any way contributed to the Accident.

69.  Mr Tai submits that since the Defendant has admitted in TST’s letter dated 4 May 2009 that smoke was generated by the Dragging of the Brake and as a matter of common sense dragging will cause depreciation and damage to the Brake, the severity of the damage to the Brake as shown by the extent to which the Brake was worn out and/or the condition of the materials of the worn-out Brake will give the parties and the court some idea of the density of the smoke generated, which in turn will either support or weaken the Plaintiff’s case that he fell down because of smoke inhalation at the time of the Accident or they will “reveal the seriousness of the cause of the [Accident]”.

70.  In my view, such argument is speculative.  Apart from Mr Tai’s assertion, no basis has been shown for suggesting that any Dragging of the Brake will cause depreciation or damage to the Brake and/or it will cause wearing of the Brake and/or its materials.  There is also no basis for suggesting any viable correlation between the severity of any damage to the Brake and the extent that the Brake and/or its materials were worn out on one hand and the nature, density and volume of smoke generated.  Since I should consider the state of the pleadings and affirmation evidence that are before me, I am not persuaded that the Requested Documents are necessary for fairly disposing of the “matters in question”. In my view, the problems highlighted above cannot be sufficiently answered by a reference to “common sense”.

71.  Notwithstanding the width of the Peruvian Guano approach, I respectfully agree with the observations of Chu J in Re the Estate of Ng Chan Wah at para.16 that “[it] is not the purpose of discovery to give the plaintiffs an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the defendants’ part or will provide information for them to pursue more enquiries”.  Likewise, discovery will not be ordered to enable a party to frame a new case. Yuen JA in HKFE Clearing Corp Ltd said at p.237 as follows:

“What the Company is seeking is discovery of materials to see if it might be able to turn a non-issue into an issue. That is not permitted under the principles of discovery, and especially not when the purpose is to see if an allegation of fraud can be made. It is well-established that a party should not be allowed to plead a vague case and unparticularised case of fraud in the hope of making it good after discovery ……”

72.  Mr Tai again prays in aid the CJR and the underlying objectives in Order 1A rule 1 of the RHC. I repeat my observations in paragraph 57 above.  For the above reasons, I decline to order specific discovery of the Requested Documents.

73.  However, at the hearing before me, Mr Tai applied to amend the Discovery Summons to further and/or alternatively seek specific discovery against the Defendant of all documents relating to the investigation of the Dragging of the Brake of the Bus including but not limited to its investigation report and photographs taken pursuant to such investigation (“Further Requested Document”). Mr But opposed such application. I have heard arguments from both parties on such application for leave to amend and also on the merits of the application itself.

74.  There is no dispute that (a) the Dragging of the Brake when the Bus was in motion has been raised as an allegation of fact in P’s FBP and (b) subsequent to the Accident the Defendant has carried out maintenance and repair of the Bus.  In light of the plea in P’s FBP and D’s Alleged Case as set out in TST’s letter dated 4 May 2009, which are apparent in the pleadings and affirmations before me, I am persuaded Mr But is not so surprised that he is unable to deal with the matter.  In the circumstances, I grant leave to the Plaintiff to amend the Discovery Summons to include the further and/or alternative application for the Further Requested Document set out in the above paragraph.

75.  Mr But has sensibly declined to argue that the Further Requested Document is irrelevant to any matter in question.  However, he submits that such document or category of documents is unnecessary for fairly disposing of the cause or matter or for saving costs. I disagree.  The Plaintiff as an employed driver is unlikely to have knowledge of any investigation into the Dragging of the Brake, which must be very much a matter within the control of the Defendant who operates the public bus service.  Specific discovery of the Further Requested Document will create a level playing field for the fair disposal of the cause or matter between the parties.  I am also persuaded that pursuant to D’s Alleged Case as set out in TST’s letter of 4 May 2009, Mr Chau’s affirmation confirming that he told TST about the Dragging of the Brake, and the repair and maintenance of the Bus carried out by the Defendant after the Accident, the Plaintiff has made out a prima facie case that the Defendant has or has had possession, custody or power of the Further Requested Document.

76.  In the circumstances, I grant an order for specific discovery in respect of the Further Requested Document.  Of course, the making of such order does not prevent the Defendant from deposing in the affidavit that its authorised representative will make pursuant to such order that it in fact has no such document(s) if that is the case.

77.  I therefore grant the following order:

(a)    leave be granted to the Plaintiff to amend the Discovery Summons by adding in the Schedule to such summons the following “(4) All documents relating to the investigation of the dragging of the nearside front brake of the Bus including but not limited to the Defendant’s investigation report and photographs taken pursuant to such investigation”;

(b)    the Plaintiff do within 7 days from today file and serve Amended Summons in respect of the Discovery Summons;

(c)    order in terms of paragraphs 1 and 2 of the amended Discovery Summons in respect of item 4 of the Schedule thereto;

(d)    paragraphs 1 and 2 of the amended Discovery Summons in respect of items 1-3 of the Schedule be dismissed.

IX.  Costs

78.  The FBP Summons is dismissed. There is no reason why costs should not follow event.  I therefore make a costs order nisi that the Plaintiff do pay to the Defendant costs of the FBP Summons (including all costs reserved if any) to be taxed if not agreed.

79.  In respect of the application for leave to amend the Discovery Summons to add the Further Requested Document, I grant a costs order nisi that costs of and occasioned by such application for amendment be paid by the Plaintiff to the Defendant to be taxed if not agreed.

80.  In respect of the Discovery Summons, the application for specific discovery in respect of items 1-3 of the Schedule therein is dismissed.  Even though I have granted specific discovery in respect of item 4 of the Schedule to the amended Discovery Summons, the Plaintiff’s oral application for specific discovery of the Further Requested Document was made at a late stage of the hearing after I had raised the subject with Mr Tai and Mr But.  Indeed, their oral submissions in relation to the Further Requested Document took minimal time. Further, such application has not been preceded by any letter of request from WKT to TST to seek discovery of the Further Requested Document that allows time to the Defendant to properly consider the request before the hearing.  In all, I am persuaded that the Defendant and not the Plaintiff should be entitled to costs of the amended Discovery Summons.  I therefore grant a costs order nisi that the Plaintiff do pay to the Defendant costs of the amended Discovery Summons (including all costs reserved if any) to be taxed if not agreed.

81.  I have debated whether the above cost orders nisi should be summarily assessed instead of being taxed if not agreed.  However, upon further reflection, bearing in mind that legal aid common fund taxation will be required in any event, it is more appropriate for the above costs orders nisi to be taxed in the usual manner.  I further direct that, in respect of the above cost orders nisi, the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.