CHEN YUSHENG v. WO MING ENGINEERING LTD AND ANOTHER

HCPI 1420/2016

[2020] HKCFI 1000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1420 OF 2016

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DECISION

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I.  BACKGROUND

1.  The plaintiff (“P”) was employed by the 1^st defendant (“D1”). D1 was a subcontractor of the 2^nd defendant (“D2”) who was the principal contractor at the construction site located at the eastbound bridge deck at Island Eastern Corridor at Fortress Hill, Hong Kong (“Site”). P claimed he was employed as a drill operator, but D1 and D2 (collectively, “Ds”) claimed he was employed as a casual worker.

2.  P claimed that on 17 April 2015 he suffered a work injury in the course of employment at the Site (“Accident”), and thereby suffered personal injury, loss and damages. P claimed the Accident was caused by the negligence, breach of employment and/or breach of statutory duties on the part of D1 and/or D2.

3.  P was legally aided. On 18 July 2015, P by his assigned solicitors (“1^st Firm”) commenced DCEC1546/2015 (“EC Action”) against Ds for employees’ compensation in respect of the Accident. Paragraph 3(3) of the Application in the EC Action (“Application”) described the circumstances of the Accident in the same terms as paragraphs 3-4 of the Statement of Claim (“SoC”) in the present action set out in paragraph 5 below.

4.  In a pre-action letter dated 31 July 2015 by the 1^st Firm on behalf of P to D2, the circumstances of the Accident were also described in the same terms.

5.  On 18 November 2015, P by the 1^st Firm commenced the present action in the District Court as DCPI2531/2015. In paragraphs 4-5 of the English SoC (verified by P upon translation by a solicitor of the 1^st Firm) filed on the same date, P pleaded the circumstances of the Accident as follows:

“4. At or about 11:00am on 17 April 2015, [P] was instructed by [D1] to work at the Site. [P] was, in the course of his employment, instructed by [D1] to install steel railings on the bridge deck together with 3 other co-workers.

5. The bottom of each steel railing was attached to a piece of approximately 250 kg square-shaped metal plate (‘Metal Plate’) which in turn served as an anchor to stabilize the position of the steel railings (‘the Steel Railings’) on the bridge deck. To install the Steel Railings, [P] and the 3 co-workers had to load the Metal Plate into a pit (‘the Pit’) on the bridge deck. To do so, [P] and the 3 other co-workers, each held the Metal Plate by its corner with a crowbar, and transferred the Metal into the Pit. When [P] and the 3 co-workers knelt down to adjust the sides of the Metal Plate to fit into the Pit, the 3 co-workers suddenly unloaded the Metal Plate without first notifying [P]. As a result, [P] was suddenly pulled forward by the force of the falling Metal Plate, sprained his back and suffered personal injuries (‘the Accident’).” (my emphasis)

6.  On 24 September 2019, P filed a summons (“Summons”) for the following reliefs with consequential directions: (a) to re-amend the writ of summons (“WoS”) by correcting the reference to the 1^st and 3^rd defendants in the endorsement of claim (“EoS”) to the 1^st and 2^nd defendants, and (b) to amend paragraph 5 of the SoC to replace the words “knelt down” with the word “squatted” in the pleas as to the circumstances of the Accident. According to the Summons, P was prepared to pay costs of and occasioned by the application to Ds to be taxed if not agreed.

7.  The proposed re-amendment to the WoS/EoS in (a) above was uncontroversial, and Ds had no objection to the same. The real debate concerned the proposed amendment to the SoC in (b) above.

8.  On 24 September and 4 December 2019, P filed his 1^st and 2^nd affirmations in support (“P 1^st and 2^nd Affs”). On 6 November 2019 and 15 May 2020, Ds filed the 1^st and 2^nd affirmations of their solicitor Cheng Sau Yi (“Ms Cheng”) in opposition (“Cheng 1^st and 2^nd Affs”).

II.  PROCEDURAL HISTORY

9.  On 26 January 2016, Ds filed their Defence to dispute liability on inter alia the following basis: (a) Ds put P to proof as to the occurrence and circumstances of the Accident and averred inter alia that (i) P and the co-workers were instructed to adopt a standing position at the material time, (ii) the workers should slowly slide the Metal Plate (which was not to be lifted up entirely) into the Pit, (iii) P and the co-workers completed the assigned task of moving 5 Metal Plates into the Pit uneventfully, (iv) a crane lorry was available for lifting heavy objects if considered necessary and (v) the task in question was a simple and non-complicated task, and (b) Ds further or alternatively averred that, if, which was denied, P had met with an accident which happened in the manner as pleaded, the same was caused by and/or contributed to by P’s own negligence, including P kneeling down to complete the task in question.

10.  On 26 May 2016, P filed his Chinese witness statement (“P 1^st WS”), which stated inter alia that:

“12. 在安置該節攔河期間, 老闆娘著我與另外3名同事每人站在金屬鐵片的4角 (被稱‘金屬鐵片’), 每人手持鐵筆合力把金屬鐵片抬起, 就好入坑及鄰近已安裝好的欄河位置把金屬鐵片放入坑內 ……。當各人蹲在坑前就位時, 其餘3名同事在沒有任何提示或預告下突然把金屬鐵片放入坑內, 結果該金屬鐵片落坑的衝力把我整個人拉前, 我因此挫傷了腰部。” (my emphasis)

11.  On 15 June 2016, Ds filed the witness statements of Pang Ching (“Pang”) (“Pang 1^st WS”) and Leung Ho Kwong (“HKLeung”) (“HKLeung 1^st WS”), which commonly stated inter alia as follows:

“據知, 該意外發生於2015年4月17日上午約11時, 原告人正於該地盤與另外3名工人安裝欄杆立柱。每支立柱底部均連著一塊鐵片, 以固定立柱位置。安裝立柱時, 工人們須把立柱放置於橋面的坑位。原告人與另外3名工人各方用撬棍提起鐵片的一角, 把立柱移到橋面的坑位。原告人於事後聲稱他跪下跟工人們一起調整鐵片位置時扭傷背部。” (paragraph 22 of Pang 1^st WS and paragraph 9 of the HKLeung 1^st WS)

“據知, 原告人是被指示保持站立姿勢去完成這個工序, 而不是跪下。而且應該把鐵片慢慢移到橋面的坑位, 而不是把立柱舉起。” (paragraph 23 of the Pang 1^st WS)

12.  On 27 November 2016, P filed his Revised Statement of Damages (“RSoD”) claiming damages in excess of $4,000,000. On 16 December 2016, Ds filed their Answer thereto. By the order of Master Rita So dated 8 December 2016, the whole proceedings in DCPI2531/2015 were transferred to the Court of First Instance.

13.  Pursuant to the order of Master Roy Yu dated 22 February 2017, leave was granted for P to serve his supplemental witness statement dated 10 January 2017, and for Ds to serve supplemental witness statement(s) in response. On 12 April 2017, Ds filed Pang’s and HKLeung’s supplemental witness statements.

14.  On 8 June 2017, Master Roy Yu granted leave for P to set the present action down for trial in the fixture list. The present action was scheduled to be tried on 17 July 2018 with 4 days reserved.

15.  On 16 November 2017, the Director of legal Aid (“DLA”) filed Notice of Re-assignment of Solicitor, and assigned another firm of solicitors (“2^nd Firm”) to represent P in the present action.

16.  At the pre-trial review (“PTR”) hearing on 18 April 2018, Au-Yeung J granted leave for Ds to amend their Defence, and for P to amend the WoS and RSoD. On 26 April 2018, Ds filed their Amended Defence, which amendments were not material to the issues raised by the Summons. On 9 May 2018, P filed his Reply to the Amended Defence (“Reply”) in which P pleaded inter alia as follows:

“4. Paragraph 7(a) of the Amended Defence is specifically denied. [P] further avers that even if there were instructions for him to adopt a standing position, which is denied, it was not practical for him and his co-workers to adopt a standing position throughout the whole process in loading the Metal as they had to adjust the Metal according to the Pit on the bridge deck.

5. Paragraph 7(b) is specifically denied. [P] further avers that the Metal must be lifted up at some point such that it could be perfectly aligned with the Pit.”

17.  On 26 April 2018, P filed his Amended WoS and Amended RSoD. On 23 May 2018, Ds filed their revised answer thereto.

18.  On 29 May 2018, the DLA filed Notice of Discharge of Legal Aid in respect of P in the present action. By the order dated 8 June 2018, Chow J directed that unless P raised objection within 5 days thereof, the trial scheduled to be held on 17-20 July 2018 be vacated, and fresh dates for the pre-trial review hearing and the trial be re-fixed within 21 days of the determination of P’s legal aid appeal against the discharge of his legal aid certificate. On 4 October 2018, the DLA filed Memorandum of Notification of an Application for Legal Aid by P in the present action. On 16 November 2018, Au-Yeung J directed the legal aid stay to be lifted, and granted liberty by either party to restore the present action for checklist review (“CLR”) hearing. On 10 December 2018, the DLA filed Memorandum of Notification that a Party had been Refused Legal Aid in respect of P’s application for Legal Aid.

19.  On 18 February 2019, I granted an order by consent that the CLR hearing be adjourned to be heard on 21 June 2019. On 30 May 2019, the DLA filed legal aid certificate in respect of P. On 21 June 2019, I granted inter alia the following orders together with other case management directions concerning intended supplemental orthopaedic expert report: (a) leave for P to serve P’s 2^nd supplemental witness statement as per the draft annexed to P’s summons filed on 19 June 2019, and (b) leave for Ds to serve their supplemental or other witness statement(s) in reply.

20.  Pursuant to such order, P served his 2^nd supplemental witness statement dated 28 June 2019 (“P 3^rd WS”), and Ds served the following witness statements in reply:

(a)  HKLeung’s 2^nd supplemental witness statement dated 27 August 2019 (“HKLeung 3^rd WS”), which stated inter alia as follows:

“5. ……

(d) 人手安裝立柱工序屬地盤的簡單工序, 一般只需3名工人, 1名工人要利用撬棍提起鐵片, 另外兩名工人手扶立柱柱身, 把立柱逐漸慢慢移到橋面的坑位。撬棍長約1.6米, ……。進行該工序過程中, 工人會保持站立姿勢去完成這個工序, 而非蹲下把立柱舉起, 更遑論跪下這個明顯嚴重錯誤的姿勢。

……

(f) 為了讓法庭更了解有關工序的詳情, 本人已著4 名工人移動一立柱作示範, 並將有關過程拍下。…… 從該片段 …… 可見, 於進行人手安裝立柱工序的整個過程中, 4名工人均一直保持站立的姿勢, 沒有跪下或蹲下。……” (my emphasis)

(b)  the witness statement of Leung Chi Ming (“CMLeung”) dated 21 August 2019 (“CMLeung WS”), which stated inter alia as follows:

“8. ……

(b)  施工前, 本人提到, 安裝立柱工序有兩種方法, 分別為人手安裝和使用吊機安裝。本人當時向原告人和其他工人說明, 人手安裝立柱工序乃舊式方法, 兩名工人要利用撬棍提起鐵片, 另外兩名工人手扶立柱柱身, 把立柱逐漸慢慢移到橋面的坑位, 整個工序過程中, 工人會保持站立姿勢去完成這個工序, 而非蹲下把立柱舉起。本人從沒有提及跪下這個明顯嚴重錯誤的姿勢。” (my emphasis)

III.  P’s AFFIRMATION EVIDENCE

21.  P was represented by the 1^st Firm when the SoC was prepared in 2015. P said he never told anyone and never instructed the 1^st Firm that he knelt (跪) or knelt down (跪下) during the Accident. P demonstrated to the 1^st Firm he was in a standing position but bending his knees and waist, which posture did not involve his knees touching the ground. But when P signed the SoC, the 1^st Firm did not tell him the plea of “跪” or “跪下” therein. As explained in paragraph 23 below, it was only in/about May 2018 that the 2^nd Firm (who was then preparing the Reply) told him about such plea in the SoC.

22.  P claimed the averment in the SoC that he knelt down was a genuine mistake/error, which it should read as “squatted” as in the P 1^st WS (ie “…… 蹲在坑前就位時 ……”), because both the P 1^st WS in the present action and P’s witness statement dated 15 May 2016 in the EC Action (“EC Statement”) were made shortly after the SoC clearly stated P and his co-workers squatted (蹲) before the Pit. P claimed that had he given instructions to the 1^st Firm to the effect that he was kneeling down (跪下) at the time of the Accident, the P 1^st WS and the EC Statement would not have recorded he “squatted”. P said the P 1^st WS and the EC Statement (which were in Chinese) were the first court documents that he could readily read/understand in contra-distinction to the English SoC and the Application for which he relied on translation by the 1^st Firm. When the SoC and the Application were read over or translated to him, no one mentioned he knelt (跪) or knelt down (跪下). P said all along his instructions was that he “squatted”, and the SoC had an error/mistake as a result of incorrect translation.

23.  P explained that in/about December 2017 the 1^st Firm was replaced by the 2^nd Firm, but he still had no idea of the error/mistake as it was not brought to his attention. He was first informed of such error in/about May 2018 when the 2^nd Firm was preparing the Reply. P instructed a Mr Tsang of the 2^nd Firm to rectify the error, and was subsequently told it had been taken care of, so P assumed the error/mistake had been rectified.

24.  But shortly after the Reply was filed, P’s legal aid certificate was discharged. It was not until 9 May 2019 that Master Lui allowed his legal aid appeal, and on 19 May 2019 that his legal aid certificate was issued and his present solicitors were assigned to act for him in the present action. Time was required for his present solicitors to retrieve relevant papers from the DLA and the 2^nd Firm and to review the papers, and for the DLA to assign counsel to act for him. It was only then that P realised the error/mistake in the SoC had not been rectified.

25.  On 26 July and 26 August 2019, P’s present solicitors wrote to inform Ds’ solicitors of P’s intention to amend the SoC to rectify the error/mistake. On 27 August 2019, Ds’ solicitors replied that Ds would oppose such application. On 28 August 2019, P’s solicitors replied to say the application involved an error/mistake in translation of the SoC, and P was willing to bear costs of and occasioned by rectification of such error/mistake. On 30 August 2019, Ds’ solicitors reiterated Ds’ objection on the basis that the proposed amendment was a drastic change of P’s pleaded case, and P would suffer prejudice if such amendment was allowed.

26.  But P contended Ds would suffer no prejudice as (a) the present action had yet to be set down again for trial, (b) the proposed amendment was a minor error/mistake, and (c) the HKLeung 3^rd WS and the CMLeung WS showed that even before the Summons Ds had taken steps to prepare their case to meet both scenarios, ie squatted (蹲) or knelt down (跪下).

IV.  Ds’ AFFIRMATION EVIDENCE

27.  Ms Cheng noted the SoC was filed 4 years ago in November 2015, and complained against P’s delay in introducing the proposed amendment. Ms Cheng suggested P should have realised upon review of Ds’ alternative case as pleaded in their Defence and/or Amended Defence (see paragraph 9 above) that he must have averred in his pleadings that he knelt down during the Accident, so he should have taken immediate steps to remedy his pleaded case. But on the contrary P’s PI Questionnaires dated 1 April and 2 November 2016, 23 February and 29 May 2017 and 19 June 2019 signed by the 1^st Firm and P’s present solicitors confirmed that P he did not intend to amend his pleadings, and P’s PTR Notice filed on 13 April 2018 confirmed there were no outstanding issues in relation to liability or quantum except for his application for leave to amend his RSoD and to file the Reply. Further, this court on 21 June 2019 directed the parties to jointly write to the court by 6 September 2019 to inter alia propose directions for setting down for trial. In such circumstance, Ms Cheng said the delay was substantial, and against the spirit and underlying objectives of the Civil Justice Reform (“CJR”). She noted that (a) but for the discharge of P’s legal aid certificate the trial would have already gone ahead, and (b) but for the Summons the present action would have been ready to be set down for trial with a likely trial date in late 2021. Ms Cheng said P’s earlier application in June 2019 to introduce further witness evidence had already caused delay, and further delay would be undesirable and unfair to Ds.

28.  Ms Cheng stated that (a) on 20 May 2015 (ie shortly after the Accident) P being the injured person gave a statement to D2, and in such statement he described how his injury occurred, ie “共4人工作, 並用人手用鐵筆(撬)落打炮位置, 吼位約: 1米 x 1米位置凹位, 我當時用力“撬住” 鐵板座住約 1米x 1米, 因環境令我受傷” (“20/5/15 Statement”), and (b) on 4 August 2015 P gave a signed declaration to the Labour Department, and in such declaration he stated “做打炮工作時, 突被老板娘召去與另3名工人利用鐵筆(每人各持1枝)撬起一塊約250 kg L3金屬鐵放在200幾深之位置上。3人在沒有訊號/提示下突把金屬鐵放下, 因高低不平因而被挫傷” (“4/8/15 Statement”). Ms Cheng agreed that in neither statement/declaration did P mention what posture he adopted at the time of the Accident.

29.  Ms Cheng claimed P’s pleaded case that he knelt down to use crowbar to adjust the sides of the Metal Plate to fit into the Pit during the Accident was “inherently improbable or unlikely” and/or “against common sense” given that the Metal Plate allegedly weighed 250 kg. Ds’ instructions were that P and his co-workers were told to adopt a standing position for the purpose of transferring any Metal Plate by crowbar (about 1.16m long) to the Pit. Ms Cheng went on to say as follows:

“12. It is trite that a plaintiff bears the burden of proving his pleaded case in the Statement of Claim which the defendant does not admit, and if the plaintiff fails to prove so, his claim will be dismissed. In light of the inherent improbability or unlikelihood of the pleaded Kneeling-down Version and the inconsistencies of such version with [P’s] signed statements referred to [in paragraph 28 above], in the Defence / Amended Defence, [Ds] make no admission to the [Accident] alleged by [P] and put [P] to strict proof of the same. [Ds] aver in the alternative case that the alleged accident was caused by [P’s] negligence by kneeling down to complete the task in question. In formulating the defence case, [Ds] have given much weight to the fact that the Kneeling-down Version was pleaded.

13. It is [Ds’] litigation tactic to put [P] to strict proof of the pleaded case (ie the Kneeling-down version). It is because if [P] cannot discharge his burden of proof in showing that he did adopt a kneeling-down position at the material time and suffer injuries as pleaded in the SoC, his claim in this action should be dismissed. [Ds’] subsequent litigation and settlement strategies are premised on the aforesaid.” (my emphasis)

30.  Ms Cheng claimed the proposed amendment “is not to rectify a genuine mistake/error, but amounts to a significant change of [P’s] pleaded case”, ie from alleging he was squatting instead of kneeling down when the Accident happened. Ms Cheng went on to say as follows:

“15. While it was inherently improbable or unlikely for [P] and his co-workers to kneel down when adjusting the slides of the [Metal] weighing 250kg with a crowbar as per the pleaded case in the SoC, it was inherently probable for [P] and his co-workers to squat when carrying out the said task as per the Proposed Amendment especially when it is not particularised whether the posture was partial squat, half squat or deep squat, despite it being improper or unsafe to adopt a squatting posture for carrying out the task.

16. [P] does not demonstrate any meritorious case in his pleaded Kneeling-down Version. The Proposed Amendment raised at such a very late stage points to the significance of such an amendment to the merits of [P’s] pleaded case. If the Proposed Amendment was allowed, [P] would stand a much higher chance of success in proving his pleaded case at trial.” (my emphasis)

31.  Ms Cheng claimed the proposed amendment, if allowed, would cause injustice and prejudice to Ds that could not be compensated by costs:

“23. Since the very outset in November 2015, [Ds] have been relying on the pleaded Kneeling-down Version in the SoC to prepare their defence case and adopted the correspondence (sic) litigation strategy. [Ds] assessed that P would run an uphill battle in proving the pleaded Kneeling-down Version. This assessment formed the basis on which [Ds] conducted their defence of this case in the past 4 years. Had [P] made the proposed Amendment much earlier (eg before this case was set down for trial in 2017) which would materially change his pleaded case and this enhance his chance of success in proving his case, [Ds] would have certainly adopted a different litigation strategy or considered settlement at a much earlier stage without proceeding this case to the trial.

24. In the event that the Proposed Amendment was granted at such a very late stage, [Ds] would be deprived of the opportunity to respond effectively and it would be unfair to [Ds] to have to deal with [P’s] new position at such a late stage. This would also severely prejudice [Ds].

25. Substantial costs have been incurred in this case which was commenced around 4 years ago. In the past 4 years, [Ds] had put forward various settlement proposals after taking into account the inherent improbability or unlikelihood of the pleaded Kneeling-down version. [Ds] had litigation and settlement strategies which were responsive to [P’s] pleaded Kneeling-down version and they were alive to the issue of costs. The costs which could have been saved, if the Proposed Amendment had been made much earlier and might have thus brought forth an early settlement, are now unmeasurable and cannot be compensated by appropriate orders as to costs.” (my emphasis)

32.  Ms Cheng further claimed that if there was any mistake or omission on the part of the 1^st/2^nd Firms, P should seek remedies from the former legal representatives. If the Proposed Amendments were allowed largely or partly because of alleged mistakes/omissions on the part of the 1^st/2^nd Firms, it would be unfair to Ds who should not be answerable for such mistakes/omissions.

V.  P’s AFFIRMATION EVIDENCE IN REPLY

33.  P noted Ds argued they relied on the inherent improbability of P’s pleaded case to devise their litigation strategy, but it appeared the Cheng 1^st Aff was silent as to the P 1^st WS and the EC Statement that were filed shortly after the SoC, which made clear (a) P was squatting at the time of the Accident, and (b) the present application was merely to correct an error/mistake. P also noted the Cheng 1^st Aff was silent on whether Ds’ solicitors took instructions from Ds regarding the accurate version of the Accident set out in the P 1^st WS and the EC Statement, but P believed Ds’ solicitors must have done so and must have realised the plea in the SoC of kneeling down was an error/mistake. In short, Ds were merely hoping the error/mistake would not be rectified and thereby gain a tactical advantage. But the Cheng 1^st Aff confessed Ds merely put P to proof as to the circumstances of the Accident and had no positive defence, so they pursued their litigation tactic based on a single error/mistake in the SoC to deny the just resolution of the dispute between the parties. Indeed, the importance of the proposed amendment was highlighted by the fact that Ds by the Cheng 1^st Aff conceded it would be inherently probable for P and his co-workers to squat, and if the proposed amendment was allowed, P would stand a much higher chance of success in proving his case.

34.  Next, P next complained that he never signed the alleged 20/5/15 Statement, which was different from the document disclosed in the CLR bundle that was not signed by “Injured Person/Witness” and “Investigator”, that had no initials to the amendments on pages 2 and 3, that had different contents in page 3, and that had a different date of 22 May 2015. In any event, P claimed the 20/5/15 and 4/8/15 Statements at most showed there was no mention of the posture he adopted at the time of the Accident, so they were quite irrelevant to the present application.

35.  Still further, P claimed Ds would suffer no prejudice because the HKLeung 3^rd WS and the CMLeung WS clearly showed Ds were prepared to address the 2 scenarios of squatting (蹲) and kneeling down (跪下) even before the Summons was filed. Further, it seemed from the Cheng 1^st Aff that Ds recognised if the proposed amendment was allowed, it would increase P’s chance of success such that Ds would have considered different litigation strategy or considered settlement without proceeding to trial, which was tantamount to saying that but for the error/mistake in P’s pleadings (which Ds must have known to be an error/mistake given the contents the P 1^st WS and the EC Statement) he would have been treated more favourably, but as he made such error/ mistake he would be punished for such technical error by depriving him opportunity to seek just resolution of the real issues in question. P reiterated he made the application in good faith to rectify an error/mistake in the SoC, and it would be a denial of justice if he were forced to pursue his presently pleaded case when there was clearly a single error/mistake.

36.  It was said that ultimately all amendments ought to be made for the purpose of determining the real question in controversy between the parties or of correcting any defect or error, and the object of the court would be to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their case.

VI.  LEGAL PRINCIPLES

37.  The relevant legal principles have been set out in my judgments in DBS Bank (Hong Kong) Limited v Sit Pan Jit,[1] Chan Kon Fung v Gallop Pioneer Limited & anor,[2] Incorporated Owners of Western Court v Conrad Salat Czakat Rumjahn appointed by the Court to represent the Estate of Usuf Rumjahn, deceased,[3] and Chan Ying Wai v Secretary for Justice for and on behalf of Commissioner of Correctional Services,[4] which I shall rely but will not repeat here.

38.  The broad principles on amendment of pleadings are that (a) generally speaking, all amendments ought to be made as may be necessary for determining the real question in controversy between the parties, or to correct any defect or error in any proceedings, and the court is not to punish a party for his error/mistake unless the applicant has been acting mala fide or the mistake he has made causes injustice to the other party,[5] (b) leave to amend is readily granted before trial unless it can be shown that the new claim based on the proposed amendment is bound to fail, and if the proposed amendment is bound to fail, no leave to amend will be granted,[6]and (c) absent real prejudice a late application for amendment must be decided upon the general principle that a court of law seeks to adjudicate on the real issues and disputes between the parties, and (if possible), technical/procedural rules should not stand in the way of allowing the parties’ real claims/defences be properly raised before the court for adjudication.[7]

39.  But the CJR invites further considerations to temper the aforesaid broad principles:[8]

(a)  the court will not allow a pleading to be amended unless it is of the opinion the amendment is necessary for disposing fairly of the cause or matter or for saving costs, and the onus lies on the applicant to so satisfy the court;

(b)  an amendment will not be allowed if it causes injustice to the other party that cannot be compensated by costs, and there is a clear difference between allowing amendments to clarify issues in dispute and those that provide a distinct defence/claim to be raised for the first time, but much depends on the nature of the proposed amendment and the pleadings in the particular case;

(c)  where prejudice is claimed, the burden is on the party opposing the amendment to show prejudice, and there is no injustice to such party if he can be compensated by appropriate orders as to costs;

(d)  the above broad principles are to be viewed through the prism of any delay (especially when it is unexplained or unjustified) in the case of a late application, which brings into focus (i) the underlying objectives un Order 1A rule 1 of the Rules of the High Court (“RHC”), and (ii) the necessary recognition that the later an application is made the more likely it is to cause prejudice to the other party.

40.  In The Court of Appeal in Bruce James Stinson v Gu Ming Gao citing Topwell Corp Ltd v Kwan Kam Kee[9] summarised the principles as follows:

“35. The principles in Ketteman v Hansel Properties Ltd [1987] AC 189 at 212F to H remain good law. Amendments should in general be allowed if they are necessary to enable real questions and controversy between the parties to be decided, provided they will not prejudice the other party and if any prejudice can be compensation by an order as to costs The court now also takes into account the underlying objectives in Order 1A of the [RHC], and would balance all relevant factors to decide how its discretion should be exercised, if the application is made in circumstances offending the underlying objectives ……”

41.  On the question of lateness, I need only repeat what I have said in Chan Ying Wai as follows:

“44. …… Whether to allow a late application for amendment at the brink of a trial requires the court to carry out a balancing exercise, and the court must exercise its case management discretion in a fair manner having regard to all the circumstances and the explanation given for the lateness of the application. The court bears in mind that the primary aim of case management powers is to secure the just resolution in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC), but neither does the court forget the need to deal with cases expeditiously, cost-effectively and proportionately to achieve justice and fairness for the parties before the court and also for other litigants who have demands on the court’s resources.”

VII.  DISCUSSION

42.  Mr Wong, counsel for P, submitted that the proposed amendment was to correct a genuine error/mistake in the SoC. Ms Cheng disagreed it was for rectification of any clerical error. She reminded that the SoC and the Application were respectively verified by P’s statement of truth, and that the description of the Accident in the pre-action letter was in the same terms. I am unable to see how these contentions of themselves preclude the possibility of there being an error/mistake in the pleadings. If the very existence of a statement of truth, which had to accompany every pleading, amounted to an absolute answer, there would never be any corrective amendment of pleadings to rectify errors/ mistakes. This could not be right, and in my view, much would depend on the circumstances of each case.

43.  In this case, I note the very same description of the Accident saying P knelt or knelt down at the time of the Accident was found in the Application, the pre-action letter and the SoC, all of which were prepared quite close in time by the 1^st Firm. It was plain the genesis of such description of the Accident in the pre-action letter and in the SoC was the averments pleaded in the Application as they were practically in the same terms. These 3 documents were all in the English language, and P relied on translation by the 1^st Firm for understanding the contents of the Application and the SoC before signing the same and their statements of truth.

44.  P claimed the error/mistake in the description of the posture he adopted at the time of the Accident came about as a result of incorrect translation by the 1^st Firm, so he was unaware of the error/mistake in the pleadings, especially when he demonstrated his posture to the 1^st Firm as part of his instructions. I see nothing inherently mala fide or unreliable in such explanation, which was in fact bolstered by the EC Statement and the P 1^st WS, both of which were filed shortly thereafter and which (according to P) correctly stated he was “squatting” at the material time. These statements were factual evidence from P, and were likewise verified by his statements of truth. In my view, the simple fact that the Application and the SoC on one hand and the P 1^st WS and the EC Statement on the other hand referred to 2 different postures P adopted during the Accident, but were all verified by P’s statements of truth suggested there must have been error/mistake over the posture P adopted during the Accident. P explained that the “squatting” posture mentioned in the EC Statement and the P 1^st WS was the correct one, and he was able to see for that himself as those statements were in Chinese. But he could not see the error/mistake in the Application and the SoC for himself as they were in English and he had to rely on translation by the 1^st Firm. In my view, there was sufficient basis for the purpose of the Summons to show that the reference to the “kneeling” posture in the SoC was an error/ mistake as between P and his solicitors for the purpose of the Summons. After all, at this stage Ds had not adduced evidence to suggest any mala fide or deliberate delay on the part of P. But that said, I hasten to add that if the proposed amendment were allowed, it would not preclude Ds from testing P’s explanation and challenging his credibility in this respect at trial.

45.  Ds’ complaint was that P’s proposed amendment to the SoC would be a significant and material change of P’s pleaded case. But as Mr Wong rightly pointed out, there was (a) no new cause of action, (b) no change of P’s pleas as to the activity that (on P’s case) caused the Accident, ie manual transport of the Metal Plate to the Pit by 4 workers using crowbars, and the only change related to the posture adopted by P in such activity, and (c) no new evidence would be adduced to support the proposed amendment to the SoC. Indeed, the proposed amendment was to bring P’s pleadings in line with his factual witness evidence based on statements served years ago. In fact, Ds recognised as much because the Cheng 1^st/2^nd Affs conceded that adopting a kneeling down position for such activity was inherently improbable, unlikely or against common sense, and adopting a squatting position was comparatively more probable. This bolstered P’s contention that the proposed amendment was essentially a clarification of what was P’s true case and to correct an error/mistake in the SoC. In my view, it appeared unlikely that having put forward the case of “squatting” in the EC Statement and the P 1^st WS (which was accepted to be more probable), P’s actual case (which Ds suggested that P was constrained to maintain by reason of his pleadings) was instead one of “kneeling down” (which was accepted to be improbable or unlikely).

46.  Ds next complained there was substantial and unreasonable delay by P in seeking the proposed amendment. Ms Cheng referred to Law Kwok Fai Paul & ors v Wellmei (HK) Plastics & Electronics Industrial Ltd & anor[10] in which the Court of Appeal considered it was proper for the first instance judge to require an explanation for the delay and state of affairs. In that case, the plaintiffs sought declaratory and injunctive reliefs as well as general (but not special) damages, and confirmed in a timetabling questionnaire that no amendment to their pleadings was required. The plaintiffs explored compromise with the defendants on the basis of the existing reliefs sought, and later issued summary judgment application for declaratory and injunctive reliefs. Further negotiations ensued which led to a consent order for final judgment on the declaratory and injunctive reliefs with costs of the application/judgment to be assessed if not agreed. The plaintiffs made sanctioned offer on costs, which was eventually accepted by the defendants. Later the plaintiffs indicated intention to proceed with assessment of damages as stated in the statement of claim, and still later applied to amend the statement of claim to add a claim for special damages. In my view, given such history, the plaintiffs’ proposal to add a fresh claim for special damages after the consent order cried out for an account for the delay, which circumstances were a far cry from the present context. I agree with the observations by Yuen JA as she then was as follows:

“25. In my view, the issue whether an explanation on oath is necessary before a judge could properly exercise his discretion in favour of the applicant is not only to be determined by the length of time between the filing of the statement of claim and the application of amendment, but also by the events which have given rise to the proposed amendment, and the actions taken by the parties during that time.”

47.  It was suggested that a review of the Defence, the Pang 1^st WS and the HKLeung 1^st WS would have revealed to P that he in fact relied on a pleaded case that he was kneeling down at the time of the Accident. I am not convinced this would have been so obvious from such documents. In the Defence and/or Amended Defence, Ds put P to proof of the occurrence and circumstances of the Accident, and in their further or alternative case, it was suggested that P was contributorily negligent for various reasons, one of which was the averment that he was kneeling down at the time. But that might well have sprung from the Pang and HKLeung 1^st WSs that alleged “原告人於事後聲稱他跪下跟工人們一起調整鐵片位置時扭傷背部”, which could be perceived as Ds’ allegations (not accepted by P) that this was what P said after the Accident rather than a reflection of P’s own pleaded case (which P said he was unaware by reason of the error/mistake in the SoC as explained above), so it might not give cogent cause for P to revisit the SoC, especially when he was unaware that he stated he “squatted” in the P 1^st WS.

48.  Ms Cheng next criticised P (who was all along legally represented except for a gap between May 2018 and May 2019) for asserting throughout the years (whether by way of his PI questionnaires or PTR Notice) until mid-2019 that no amendment of the SoC would be required, and she went on to say that even when P was acting in person he was well able to deal with his legal aid appeal and the CLR in the present proceedings, and that P’s present solicitors did not allude to any intention to amend pleadings even for the purpose of the CLR hearing in June 2019.

49.  I agree that years had elapsed between the filing of the SoC and the filing of the Summons. But that had to be balanced against P’s explanation that he was unaware of the error/mistake until his discovery of the same in May 2018, but he lost legal representation and legal aid support shortly thereafter and it was only a year later that he regained legal representation. But even if the explanation for the time taken to seek the proposed amendment fell short of what was desirable, in my view P should still be allowed to correct the error/mistake in his pleadings. The original trial has been adjourned, and there was no suggestion the discharge and subsequent restoration of legal aid certificate came about because of P’s fault or deliberate delay. The present action had yet to be set down for trial again. In any event, time was required after the CLR hearing on 21 June 2019 to obtain further orthopaedic expert report, and the present case could not have been set down there and then. No party could be blamed for the unfortunate delay caused by the adjournment of the Summons due to public health considerations. I am not persuaded on an overall consideration the time taken would stand in the way of allowing P to amend the SoC to correct or rectify the error/mistake therein.

50.  Moreover, as Ms Cheng accepted in her submissions, Ds had not been able to locate any eyewitness to Accident, and consequently had no positive defence case to put forward as regards the occurrence and circumstances of the Accident. If the proposed amendment were allowed, Ds had no need to search for evidential response thereto, and little prejudice would arise in this regard. Indeed, the contents of the HKLeung 3^rd WS and the CMLeung WS (see paragraph 20 above) showed that Ds were prepared to meet/address P’s case whether on the “squatting” or “kneeling down” scenario even before the Summons was filed. Further, both Mr Wong and Ms Cheng confirmed to this court that other than the matter of the Summons, the present action was again ready to be set down for trial.

51.  Ms Cheng referred to the underlying objectives of ensuring cost-effectiveness, expedition, proportionality and fairness between parties, but one must not forget that the court in giving effect to the underlying objectives of the RHC, “the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure just resolution of disputes in accordance with the substantive rights of the parties” (my emphasis) (see Order 1A rule 2(2) of the RHC).

52.  This nicely brings the me to Ds’ allegations of prejudice. As succinctly summarised by Mr Wong, Ds’ alleged prejudice was that the proposed amendment would adversely affect their litigation and settlement strategies such that Ds would lose litigation/cost advantages.

53.  As to the adverse effect on Ds’ litigation strategy, it could be summarised as follows: (a) the present plea of “kneeling down” in the SoC was inherently improbable or unlikely and lacked common sense, (b) if P were bound by his pleadings even through his witness evidence stated that he was squatting rather than kneeling down, it was highly likely that P would not be able to prove his pleaded case (presumably either because it was inherently improbable, unlikely and/or lacked common sense or because it would not be supported by P’s factual evidence), but (c) if P were allowed to amend the SoC in line with P’s 1^st WS, such contention was inherently more probable, so P would stand a much higher chance of success of proving his pleaded case as amended at trial.

54.  In my view, the CJR is intended to rid civil litigation of such insistence on adversarial and tactical litigation advantage that ignores the core purpose of case management, which “primary aim” is to secure “just resolution of disputes in accordance with the substantive rights of the parties”. Whilst Ds might be disappointed by any permission for P to amend the SoC, what the court must strive to achieve would be to avoid injustice and not disappointment. In Gale v Superdrug Stores Plc, Lord Millett in dealing with an application to withdraw an admission of liability said as follows:[11]

“…… In my judgment leave should normally be granted if the application is made in good faith, raises a triable issue with a reasonable prospect of success, and will not prejudice the plaintiff in a manner which cannot be adequately compensated. ……

Of course, the unexpected nature of the defence must have been a disappointment to the plaintiff; but I cannot think that this should count for anything. The sounder the defence sought to be raised by the amendment, the greater the disappointment to the plaintiff if it is allowed and the greater the injustice to the defendant if it is not. What the court must strive is to avoid injustice, not disappointment.”

In my view, such observations were also apt in the present context. In any event, Ds had no eyewitness who observed the posture P adopted at the time of the Accident, and I am unable to see (and Ms Cheng had not condescended) as to what different litigation strategy (in contra-distinction to settlement strategy) would have been adopted by Ds.

55.  As regards costs implications on Ds, Ds’ contentions can be summarised as follows: (a) the analysis in paragraph 53 above suggested that P would stand a poor chance of proving his case on existing pleadings especially when the P 1^st WS (and presumably P’s factual evidence at trial) referred to a “squatting” posture, so Ds adopted a litigation strategy of letting P’s case proceed and be dismissed at trial, which perceived litigation upper hand was reflected in their settlement strategies, but (b) if permission were granted for him to amend the SoC as sought, P would stand a better chance to succeed at trial, and (c) had Ds known that P would amend the SoC to bring it in line with the P 1^st WS and enhance his success at trial, Ds would have adopted different settlement strategy by considering earlier settlement without proceeding to trial.

56.  First, whether P was squatting or kneeling down at the time of the Accident (but Ds knew years ago from the P 1^st WS that P’s factual evidence was that he adopted a “squatting” posture), it was in any event different from Ds’ case that P was instructed to adopt a standing position. There was no assurance that the present claim would be settled earlier had the Summons been brought earlier. Secondly, if the alleged prejudice were cost-related, then the legal principles suggested that such prejudice could be compensated by costs. If at the end of day P failed in his claim even on the amended plea of “squatting”, no doubt Ds would seek costs of the action. But even if at the end of the day P succeeded on his claim on such amended plea, it would be open to Ds to claim for costs thrown away by P’s reliance on the earlier plea of “kneeling down” (if Ds were able to demonstrate there was any such loss). Both parties would be able to take into account this aspect in their future settlement strategies.

57.  Ms Cheng also alluded to the possibility of P suing the 1^st/2^nd Firms, so P should not be permitted amend the SoC vis-à-vis Ds who were blameless. Whilst I agree that on the basis of P’s contentions he might arguably contend there was cause for complaint/action against the 1^st/2^nd Firms if he failed to secure amendment of the SoC as sought, such cause of complaint/action would be a matter between P and his former legal representatives. I cannot see how Ds could pray in aid such matter as a reason for refusing the proposed amendment as between P and Ds, which issue must be decided on the above principles and analysis.

58.  For all the above reasons, P’s application for amendment of the SoC should be allowed.

VIII.  CONCLUSION

59.  In the circumstances, I grant an order in terms of paragraphs 1-4 of the Summons. As for costs, I grant a costs order nisi as follows: (a) Ds shall pay P costs of the hearing on 22 May 2020, (b) save as provided in (a) above, costs of and occasioned by the Summons (including all costs reserved) be paid by P to Ds, (c) the costs in (a)-(b) above shall be paid in any event to be taxed if not agreed, and (d) P’s own costs be taxed in accordance with Legal Aid Regulations.

60.  I further direct that the parties shall jointly write to court within 14 days from the date of this decision with proposed directions for setting the present action down for trial. The plaintiff should ensure that such joint letter application is accompanied by updated documents for the previous CLR bundle so that this court is placed in a proper position to deal with such paper application.