TAI YUK CHEUNG v. HUNG SING CONSTRUCTION ENGINEERING CO. AND ANOTHER

HCPI 298/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 298 OF 2015

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D E C I S I O N

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1.  This is the plaintiff’s second application for specific discovery. I have already dismissed the plaintiff’s first application in a Decision dated 1 June 2016 (the “Previous Decision”). The background of the case has been set out in some details in the Previous Decision so I need not repeat here.

2.  Incidentally, the plaintiff made the application under “Order 24 Rule 7A of the Rules of the High Court, Cap. 4” which is wrong: it should be under Order 24 Rule 7.

3.  In this application, the plaintiff is seeking discovery of 3 “classes” of documents.

Documents on “instruction or training”

4.  The plaintiff firstly sought:

“(1) All documents to support the contention by the 1^st and 2^nd defendants that the plaintiff had been instructed or trained – to arrange himself the removal of the glass window panes himself – as detailed in witness statement of:

(a) Mr. Chu (for D1) – under paragraph 8

(b) Mr. To (for D2) – paragraph 5”

5.  Paragraph 8 of the witness statement of Chu Kau dated 5 January 2016 stated, as translated into English:

“At the time of the alleged accident, there were workers from other subcontractors…Under general circumstances, if anything placed in the construction site impeded the progress of work, a worker should inform the related contractor or principal contractor so that they would arrange people to remove it. If the thing can be easily removed, the worker may consider removing it by himself or seeking assistance from other workers to remove it for the work to progress. In fact, the situation is commonplace in construction sites. General experienced construction site workers must be clear about and understand the situation.”

6.  Paragraph 5of the witness statement of To Cheuk Hon dated 5 January 2016 stated, as translated into English:

“As far as I know, the glass pieces placed in the kitchen were for the installation of the aluminium windows in the unit…If any materials placed in the construction site blocked any work from progressing, under normal circumstances, a worker should inform the foreman of the block so that he would ask the related subcontractor or the principal contractor to arrange workers to handle it. He should not move other people’s materials by himself so that injury or damage to the materials could be prevented. However, some workers did not bother to do that, but moved the materials by themselves or moved…with help from other workers… At any rate, if any material…really blocked the progress of work, the site worker must make arrangements for it to be removed, but should not ignore the material.”

7.  In short, what both statements stated was no more than: when building materials impede work, the worker is expected to apply his common sense to ask someone responsible to move them etc.

8.  The plaintiff’s application cannot be more misconceived: nowhere in these paragraphs can one find any “contention by the 1^st and 2^nd defendants that the plaintiff had been instructed or trained – to arrange himself the removal of the glass window panes himself”, let alone any evidence that there are documents for such “instructions or trainings”.

9.  Suffice to say, in the Third Affidavit of Patrick Michael Burke (the plaintiff’s solicitor) filed on 12 May 2017, he raised no evidence to support any belief that there was such “instructions and trainings” and further that documents on such existed.

10.  One would have thought that if the plaintiff had received “instructions and trainings” and had come across any documents on the matter, he himself, and not Mr. Burke, should have made the affidavit.  In fact, Mr. Burke stated in his Third Affidavit (in paragraph 20) that “The plaintiff does not agree that there was such a system” of training.

11.  I am baffled as to the logic of Mr. Burke in seeking specific discovery of documents of training when the plaintiff stated that there was no system of training and the defendants never said that there was.

12.  In the Previous Decision, I have raised concern about the handling of this case by Mr. Burke and this is another example.  One concern is whether Mr. Burke has failed to read the witness statements properly, or whether he has failed to understand the basic concept of specific discovery that he needed to produce evidence to support the belief that “the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the documents…described in the application…” (Order 24, r.7(3) Hong Kong Civil Procedure 2018 edition P.631).

13.  Either scenario would be troubling given the experience of Mr. Burke, but if Mr. Burke has not misread the witness statements nor misconceived the legal concept of specific discovery, the alternative explanation might be that this was a deliberate attempt to waste time and costs, and to “bully” the other party into an oppressive time and costs wasting exercise at the same time.

14.  I understand that the solicitors for the 1^st and 2^nd defendants have, before the hearing, written to Mr. Burke confirming that there was no such document. Mr. Burke confirmed that he was no longer pursuing such, and the only matter concerned would be costs.

15.  Mr. Burke somehow sought to justify this application because “the defendants had neglected to respond to the written request for such documents” and sought costs.

16.  It was, of course, Mr. Burke who “neglected” to properly read (or, worst, intentionally misread) the witness statements in the first place. It should be to clear any reasonably competent lawyer that pursuing specific discovery of such documents was futile right from the beginning.  I see no reason why the defendants should be “bullied” into a time wasting exercise arguing the obvious.

Documents to record “inspection system”

17.  The plaintiff also sought:

“(2) All documents to record the 1^st and/or 2^nd defendants’ system for inspections of work places to ensure they are safe, as referred to by Mr. To (D2 Safety Officer) in paragraph 12 and 14 of his witness statement (which is believed to be the Inspection system set out under the Safe Working Cycle).”

18.  Paragraph 12of the witness statement of To Cheuk Hon dated 5 January 2016 stated, as translated into English:

“Every day before the commencement of work in the construction site, there was a morning safety meeting for the purpose of reminding workers of the need to pay attention to safety issues. The Safety Department also held safety meetings, from time to time, with the subcontractors for the purpose of reminding them of the need to pay attention to safety issues in the construction site.”

19.  Paragraph 14 stated, as translated into English:

“In my daily routine inspection in the construction site, if I found workers carrying out routine moving work, I would remind them of putting on labour gloves in order to prevent accident as much as possible. However, the workers could decide by themselves whether to put them on or not.”

20.  First of all, the drafting of the application was ambiguous: Mr. To was talking about 2 different procedures in paragraph 12: a daily morning safety meeting and a safety meeting between the Safety Department and the subcontractors from time to time, and a further procedure in paragraph 14: a daily routine site inspection.  Only the last procedure concerned with site inspection.  Is the plaintiff asking for documents recording all 3 procedures or just on “inspections of work places”?

21.  Secondly, I would also question the relevance: the plaintiff failed to specify a time period for such documents.  There are daily safety meetings and inspections so I cannot see how they can all be relevant to the case.

22.  Mr. Burke suggested that he would ask for documents covering 3 months prior to the accident and 3 months after.  He said he needed these documents to show that the defendants had fallen below the standard in safety.  I think this is the very definition of a “fishing exercise”.

23.  The only relevant purpose in seeking these “records” is to address this issue: were the defendants aware that there was any (alleged) unsafe storage of the glass panes at the relevant time?

24.  During the hearing, Ms. Yuen, the solicitor for 1^st and 2^nd defendants, submitted that she would not oppose to this application if it was properly redrafted by the court.

25.  However, besides the requirements of clarity and relevance, the court still needs to be satisfied that there is evidence to support the belief that such documents existed and in possession of the defendants etc..  Otherwise, the court should not entertain a time and costs wasting exercise.

26.  In his Third Affidavit, Mr. Burke stated, in paragraph 10, that:

“Being a Housing Authority project, I know…that there will be strict contractual terms for safety – and it appears to be standard practice for their contractors to have used the Housing Authority Safety plan.  I have discovered that this is now called the “Safety Working Cycle”…”

27.  During the hearing, Mr. Burke referred extensively to this “Safe Working Cycle Handbook” (the “Handbook”) including the chapters titled “Hazard Identification Activity”, “Safety Inspection” and “Final Check After Work”.  He also referred to the appendix of the Handbook which contains various forms and checklists.

28.  In short, Mr. Burke argued that this Handbook specified that various meetings or inspections should take place each day etc. and various forms, records and checklists etc. should be completed.  In Mr. Burke’s Third Affidavit, under paragraph 23 (2), after referring to various pages in the Handbook, he stated(my underlining):

“These showed…there must be written records with the minimum being the completion of the Check Lists.”

29.  This was therefore the basis of the evidence for Mr. Burke’s belief that such documents existed and were in the possession of the defendants.

30.  Of course, I have gone through this Handbook in the plaintiff’s last application and under paragraph 54 of the Previous Decision, I already stated:

“I failed to see how these materials support Mr. Burke’s argument that such documents existed…”

31.  I have not explained further then (since Mr. Burke, at the hearing of the last application, did not refer to the Handbook at all) but now, with this being Mr. Burke’s “second bite at the cherry”, I will elaborate.

32.  Mr. Burke maintained that the “Safe Working Cycle” in the Handbook“appears to be standard practice” and that the requirements stated there “would be what is required under Part 1 of Schedule 4 of the FIU (Safety Management) Regulation, Cap. 59 AF” and thus “there must be written records with the minimum being….the Check Lists” (paragraphs 10, 23 (1) and (2) of Mr. Burke’s Third Affidavit).

33.  However, if Mr. Burke had bothered to read the “Preface” of the Handbook, he would have read this (my underlining):

“…The construction industry….is required by the law to establish a safety management system….

…The safe working cycle is one of the tools that management can use to enable the organization to regulate its daily working process, provide a model for management to follow, and implement certain elements of the safety management system…

…The concept of safe working cycle…is a type of management tool that can be used to solve difficulties in different aspect of the management systems…

…the Occupational Safety and Health Council has specially prepared a series of material on the safe working cycle for the construction industry.  The Council hopes that the material will be able to help the organisations to implement the safety management system…”

34.  And further, under “An Introduction to the Safe Working Cycle Handbook”, it is stated (my underlining):

“This handbook aims to introduce the main concepts of the safe working cycle, and explain simply the procedures…Organisations can make suitable adjustments according to their own situations such as individual needs, organization size, activities, type of worker, nature of hazards and the degree of risks involved. The organization managerial staff can use this handbook as a reference and subsequently develop a safe working cycle suitable to their specific working environment.”

35.  Thus, it should be clear to anyone reading the Handbook that the “Safe Working Cycle” is meant to be “a concept”, “a model”, “a reference” and only “one of the tools” for individual organisations to tailor and adjust according to individual needs to establish their own safety management systems.  The Handbook is not meant to provide a “standard practice” or a set of “regulations” to be strictly abided to.

36.  Therefore, the fact that various forms and checklists are mentioned in the Handbook is not evidence that such documents should exist in the current case.  (And even if they exist, there is still the question of whether any of those forms and checklists are relevant to the claim.)

37.  There was nothing in Mr. To’s evidence that the defendants have produced any such forms and checklists.  It might be that the defendants implement the daily site inspection and various safety meetings but did not implement writing Safety Inspection Checklists etc.  There was no suggestion in the Handbook that such “adjustments” would be inappropriate.

38.  In the Previous Decision (under paragraph 97), I have questioned whether Mr. Burke had actually read the materials he exhibited in his Affidavit, including this 66-pages-long Handbook.

39.  The Previous Decision was dated 1 June 2016. Mr. Burke took out the current application almost one year later on 12 May 2017. It would appear that he still has not read the Handbook properly.

40.  As stated above, the only purpose for seeking such “records” was to establish whether the defendants were aware that there was any (alleged) unsafe storage of the glass panes at the relevant time.

41.  Given what Mr. To had stated in his witness statement, I would think that a much simpler and cheaper way forward is to raise interrogatories along the lines of whether, during any of the safety meetings or routine inspections at the relevant time of the accident, any safety concerns were raised or detected regarding storage of glass panes and whether any safety measures were implemented as a result.  This issue would then be adequately addressed.  There was no need to waste time and costs to peruse and produce voluminous materials, and to seek repeated specific discoveries.

42.  Of course, I would question whether this was an important issue in the first place.  As stated in paragraph 7 of the Previous Decision:

“One would imagine that the crux of the claim must centre around whether the glass panes were stored as alleged, whether this would create an unsafe working environment which caused the accident, and what reasonable precautions, if any, was taken by any liable parties under the circumstances.”

43.  Thus, once the plaintiff could establish that there was an unsafe working environment, the question of whether the defendants were aware of this or not might arguably be an academic question: the defendants either failed to detect an unsafe situation or they have detected such but still failed to prevent the current accident. In either scenario, the defendants would likely be found negligent.

44.  With the CJR, Mr. Burke must be aware that there should be a sense of time / costs proportionality in addressing such a “non-core” issue.  This should be something to bear in mind even if he was simply raising interrogatories.  Pursuing a second round of application of specific discovery basing on materials which he (again) failed to read through properly was a travesty of the spirit of the CJR.

Documents to record relevant matters in safety meetings

45.  Thirdly, the plaintiff also sought:

“(3) All documents to record “relevant matters” [to this action] discussed at;

(a) Morning safety meeting with workers

(b) Safety meetings of Contractors and sub-contractors and workers

As referred to in paragraph 12 of the statement of Mr. To, including the matters set out in items (1) and (2) of this schedule.”

46.  I have already produced paragraph 12 of Mr. To’s witness statement in paragraph 18 above.

47.  Suffice to say, my observations in paragraphs 25 to 44 above would apply to this request as well.  In short, there is no evidence that such documents existed: the Handbook does not provide a “standard practice” and Mr. To did not give evidence that such documents existed.  

48.  As pointed out by Ms. Yuen, I have already addressed this particular point in paragraphs 99 and 100 of the Previous Decision:

“I can think of scenarios when certain aspects of this application may be appropriate. For example, if the plaintiff’s case was that certain specific safety procedures concerning storage of certain materials (e.g. glass panels) on construction sites were breached (and that this had caused the accident) and that this was denied by the defendants. And if Mr. Burke had then produced an affirmation (perhaps from the plaintiff) giving evidence that, say, on a particular day, he had attended a safety meeting concerning such specific safety procedures, or that he had seen a risk assessment document listing such specific safety procedures…

…In such scenarios, it would be perfectly proper to seek specific discovery for the safety meeting minutes of that particular meeting, or the risk assessment document concerning that set of safety procedures.”

49.  There is no evidence before me that this is the scenario here. This is again Mr. Burke’s “second bite at the cherry”.

Order

50.  I would accordingly dismiss the plaintiff’s application.

51.  In the Pervious Decision, I have already expressed my concern with how Mr. Burke was handling the plaintiff’s case.  That should have served as a “fair warning”.  However, by taking out this second application on essentially the same matter, it is clear that Mr. Burke did not take heed at all. (Incidentally, Mr. Burke has again exhibited voluminous materials in his affidavit (“UK Pre-Action Protocol” and an entire Chapter from a textbook on construction site safety) which are largely irrelevant.)

52.  A further concern is that Legal Aid Department has notified the court that the aided person’s Legal Aid Certificate does not cover the current application.

53.  I therefore do not know under what capacity Mr. Burke is acting in this application.  I also do not know if the defendants have been made aware of this position before the application.  Further, even if the plaintiff is now personally instructing Mr. Burke for this application, I see no reason why the plaintiff should fund the costs.  I would think that the plaintiff should be able to rely on the professionalism of his lawyer, as a minimal, to properly read all the documents before embarking on a costly application.

54.  Like the first application, I am considering whether it is appropriate to give a wasted costs order.  I am inviting the parties to fix a hearing for 30 minutes on the issue of costs, and it would be an opportunity for Mr. Burke to address me on why a wasted cost order should not be considered, as well as the issue of his capacity of representation in this application.