TO CHUN v. BOWKER ASIA LTD

HCPI 11/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 11 OF 2012

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REASONS FOR DECISION

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1.  This is the plaintiff’s application for an inspection of the scene of the plaintiff’s alleged accident on the staircase inside the defendant’s office building in the PRC.

2.  I have allowed the application after the hearing on 25 September 2013. The following are the reasons.

I.  Background

3.  The plaintiff’s case was that  he was walking down the said staircase on 16^th January 2009 and “he tripped on something jutting out on the tread of one of the steps of the staircase”.

4.  As a result of this fall, the plaintiff suffered a skull fracture with internal bleeding, underwent 4 major operations and still left with, amongst others, episodes of epileptic seizures.

5.  In the Employees compensation claim, the plaintiff submitted that the staircase had been renovated after his accident.  This was the position he held until, as he alleged, he heard from one of his former colleagues, Lo Wai Man (who was also one of the plaintiff’s witness in this claim) that no renovation was made.

6.  The position of the defendant all along was that the staircase was not renovated thus there is now no dispute.

7.  It is on this basis that the plaintiff wrote to the defendant on 12 December 2012 proposing a joint inspection of the staircase.  The defendant refused and, after several rounds of correspondence (during which the defendant had released various photographs and videos of the staircase which the plaintiff deemed inadequate), the plaintiff took out the current application on 10 April 2013.

8.  Mr Sakhrani, Counsel for the defendant, raised the following objections.

II.  Lateness of the application

9.  Mr Sakhrani submitted that the case was ready to be set down at this stage and such inspection might lead to another round of evidence which would delay the proceedings, quoting Gurung An Parsad v Great Wealthy Engineering Company Limited HCPI 687/2010.  He also said that the inspection in PRC would be attended by both sides’ Counsels and lawyers and the costs and delay would be disproportionate.

10.  Every case has to be decided on its facts.  In this case, the request for inspection arose when the plaintiff realized that he was mistaken about the staircase having been altered, thus a site inspection would be relevant to his case, since he alleged that he tripped over something jutting out on the tread of a step.

11.  The plaintiff did not specify when he came to this knowledge.In the Affidavit of Wong Wai Chun Wilson dated 10 April 2013, it was stated that he came to such knowledge after discussions with Mr Lo Wai Man and this took place after the plaintiff’s resignation from the defendant’s employment in about October 2011.

12.  I note that Writ was served on 6 July 2012, and Statement of Claim (and Statement of Damages) on 21 August 2012.  The plaintiff first wrote to the defendant requesting for inspection on 12 December 2012, which was about 1½ month before exchange of witness statement.

13.  As such, although one might say that the plaintiff might possibly have made the request earlier, his request was actually made around the discovery stage and not at a late stage of proceedings.

14.  It was the defendant’s refusal which dragged the matters on for some 5 months before the plaintiff took out the application, and the hearing could only be listed some 5 months later in late September.

15.  As such, I do not accept that the plaintiff can be blamed for the timing of the application and the hearing.

III.  Probative value

16.  Mr Sakhrani also questioned the probative value of the site inspection submitting that “the probative value of an examination after 4.5 years after the accident is nil because the state of the floor today has no bearing on its state in January 2009, there may be wear and tear”.

17.  I think that just because there “may” be wear and tear, one cannot assert that the probative value of an inspection is therefore “nil”.  The possibility of findings of wear and tear cannot be a reason to refuse an inspection.  We should not be “jumping the gun” to speculate what the plaintiff will or will not find on inspection or how he may prove his case based on whatever he may find.

IV.  The plaintiff’s case is supposition

18.  Mr Sakhrani has spent much time in pointing out various alleged inconsistencies of the plaintiff’s case: how the amendments of the statement of claim “shifted” his pleaded case, how he managed to recover memories of the accident, or why he originally thought that the staircase was altered etc.

19.  I am of the view that these only goes to the question of credibility of the plaintiff which will, no doubt, be examined at trial.  There is no need to conduct a “mini-trial” here to decide whether an inspection should be allowed or not.

V. This is a “Fishing Exercise”

20.  Mr Sakhrani also pointed out that the plaintiff is effectively pinning his case on Mr Lo’s story, and this case is “conditional” upon the findings at the site inspection.  Mr Sakhrani referred to the plaintiff’s answer to Further and Better Particulars which stated:

“Subject to the findings of a site visit to be conducted at the staircase…the plaintiff’s case is that when he was walking down the staircase, he tripped on something jutting out on the tread of one of steps of the staircase.”

21.  The defendant was concerned that the plaintiff would attempt to “lead the evidence” to support his claim.  In other words, if the plaintiff finds steps that jutted out by different degrees, he will point to the one that jutted out the most and claimed, “Yup, that’s the one that I tripped on!”

22.  During the hearing, I have also expressed some concern as to what the court would make of it if the plaintiff simply presented a set of “raw data” of steps of different degrees of protrusion, and whether the interpretation of such data to support a case of negligence in design etc should be in the realm of expert evidence.

23.  However, now that I have thought about it, all these concerns are premature.  The court needs not speculate what the plaintiff may find on site inspection, or how the plaintiff should prove his case based on these findings. If the plaintiff attempts to “lead the evidence” or “tailor it” to suit his claim, it is a matter for legal submissions at trial.  If the plaintiff thinks that expert evidence is needed, that will be a matter for another application.

VI.  Legal Principles

24.  The plaintiff was applying under Order 29 rule 2(1) and (2).  I need not recite the rules here but, suffice to say, there is no question that the staircase is the “subject-matter of the cause or matter” of this claim and that it is in the possession of the defendant.

25.  The plaintiff’s case, however inconsistency or incredible it might appear to the defendant, is that he “tripped over something jutting out on the tread of one of the steps” and that he believed that the culprit was “the metal strip installed at the edge of the tread of some of the steps of the staircase” which “jutted out slightly above the level of the surface of the tread” so it must be reasonable that he should be allowed access to the staircase to inspect it.

26.  Any speculation as to what evidence the plaintiff may or may not find and whether this may or may not assist his claim cannot be reasons to deny him the means to find such evidence in the first place.

27.  The inspection may cause “a further round of evidence” as suggested by the defendant.  However, in considering whether evidence should be allowed to be adduced in a “late” stage of the legal proceedings, the court must perform a balancing exercise between the assistance that such evidence would provide the court in determining the subject matter of the case, against the risk of delay, increased costs (and the question of proportionality of such) and prejudice to the parties etc.

28.  I have already addressed the issue of “lateness” of this application above.

29.  I do not think that the costs of the inspection, to be performed by the plaintiff accompanied by his counsel and lawyers, is disproportionate to the claim (amounting to some HK$12.7M as stated in the Revised Statement of Claim).

30.  As for the possible prejudice against the defendant, Mr Sakhrani submitted that the defendant was concerned with the plaintiff’s case being “suppositions upon suppositions” and that the inspection being a “fishing exercise”.  I have already addressed such concerns above.

31.  As such, despite the persuasive arguments of Mr Sakhrani, I am with Mr Tang in this application. I am firmly of the view that the “benefit” of assistance to the court by allowing an inspection of the staircase, with the possibility of introduction of further rounds of evidence, far outweighs the “risks” in this case, and therefore I have allowed the plaintiff’s application.

32.  I have also ordered that the costs of this application be to the plaintiff to be assessed and taxed by paper disposal (in the manner as ordered at the end of the hearing).

Representation: