WONG HON WAI v. THE SECRETARY OF JUSTICE

HCPI 664/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 664 OF 2009

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BETWEEN

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DECISION

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1.  On 16 October 2009, the Plaintiff commenced the present proceedings against the Defendant for damages for personal injuries and for other loss and damages. The Plaintiff claims that on 27 October 2005 whilst he was using the swimming pool (“Pool”) at the Tin Shui Wai Swimming Pool (“Complex”), he suffered injuries as a result of an accident (“Accident”) and became a quadriplegic. He further claims that the Accident was caused by the negligence and/or breach of statutory duty of the government through the Leisure and Cultural Services Department (“LCSD”) and/or other departments, which were responsible for the design, management, operation and staffing of inter alia the Pool.

2.  The Plaintiff’s application before me is for specific discovery of documents.  To properly understand such application, it is necessary to start with the background and procedural history of the present proceedings.

I.  ACCIDENT

3.  No pleadings have been filed to date, but it appears from the correspondence between the Plaintiff’s solicitors and the Department of Justice (“DOJ”) that are placed before me (“Correspondence”) and from the affidavit evidence filed for the present application (“Affidavits”) that the Plaintiff’s allegations as to the circumstances of the Accident are inter alia as follows:

(a) on 27 October 2005, he visited the Complex with some friends;

(b) his companions ran and jumped into the Pool but were not admonished by any lifeguard or swimming pool attendant;

(c) he hit his head on the bottom as he dived into the Pool (which had a depth of 1.1m) and suffered severe cervical spine injury;

(d) after a period of time he was rescued by his companion;

(e) after his companion started to take him to the side of the Pool, a lifeguard or swimming pool attendant came to assist.

4.  Since there is no Statement of Claim as yet, the Plaintiff’s allegations of negligence and/or breach of statutory duty can be elicited only from the Correspondence and Affidavits.  Such allegations, which the Plaintiff’s solicitors have emphasised are without prejudice to any averment that may be made in the Statement of Claim in due course, are summarised in the first schedule to this Decision (“1^st Schedule”).  The Plaintiff insists that without comprehensive discovery of the relevant documents by the Defendant it is not possible to properly instruct expert(s) on liability and/or properly plead any Statement of Claim, which therefore leads to the present application for specific discovery.  So it is by no means clear whether any, some or all of the allegations in the 1^st Schedule will eventually find their way into the Plaintiff’s pleaded claim against the Defendant.  This naturally adds a dimension of uncertainty to any attempt to identify the matters in issue for the purpose of the present application.

5.  However, Mr Law, senior government counsel appearing on behalf of the Defendant, fairly accepts that the issues on liability are likely to lie on whether there have been sufficient precautions against what he describes as improper or dangerous use of the Pool, which precautions may relate to signage and lifeguards at the Pool insofar as they are relevant to the nature and circumstances of the Accident.

6.  But Mr Law disagrees with the suggestion by Mr Millar, solicitor for the Plaintiff, that the shallowness of the Pool is a design defect that caused or contributed to the Accident.  He says there is (a) no inherent danger in having a pool with a depth of 1.1m and (b) no evidence has been placed before me to suggest the Pool was at the material time intended for diving.  The Plaintiff’s solicitors claim that the Pool is a leisure complex pool.  I note paragraph 2(甲)(一) of the “Report of the Working Group on the Review of Public Swimming Pool Design and Operational Safety” (檢討公眾游永池設計及運作安全工作小組報告) published by Leisure Services Division of the Regional Services Department (“RSD”) (區域市政總署康樂事務部) in February 1998 (“RSD Report”) states that “泳池的水深應按整體泳池供應的策略及特定用途來訂定。一般作康樂用途的泳池，應選作淺水的設計”, so there is some ambiguity as to whether the depth of the Pool will eventually be a true issue in the present proceedings.

II.  PROCEDURAL HISTORY

7.  I next turn to the procedural history of the present proceedings insofar as relevant to the present application for proper understanding of the timing of the application.

8.  Initially, the protective writ was not served.  The Plaintiff’s solicitors sought general adjournment of the 1^st Checklist Review (“CLR”) scheduled on 18 March 2010, but it was only postponed to 24 May 2010.

9.  On 16 April 2010, the Plaintiff’s solicitors suggested to DOJ that expert reports on liability would likely include (but not be limited to) reports from (a) an architect on the design (and in particular the depth) of the Pool and (b) a life saving society or lifeguard association on the standards applicable to lifeguards and the implementation or lack of implementation of such standards.

10.  Upon the request by the Plaintiff’s solicitors, the CLR was adjourned to 15 July 2010.  Still the Plaintiff did not serve the writ and his solicitors requested further adjournment of the CLR.  On 14 July 2010, I directed the Plaintiff to serve the writ on/before 3 September 2010, and on such basis I adjourned the CLR to 11 November 2010.  The Plaintiff served the writ pursuant to my directions, but on 2 November 2010 his solicitors requested further adjournment of the CLR for, say, 5 months pending his obtaining expert report(s) on liability to plead the Statement of Claim.  DOJ had no objection to adjournment of the CLR, but the parties were unable to reach full consensus on further conduct of the action.  The Plaintiff rejected DOJ’s suggestion of engaging the expert nominated by the Hong Kong Life Saving Society as single joint expert on liability and indicated an intention to instruct an overseas expert.  So at the CLR on 11 November 2010 I granted case management directions including those set out in paragraph 16 below.  The CLR is adjourned to 16 June 2011 by which time the Plaintiff should have filed/served his Statement of Claim.

III.  DOCUMENTS ALREADY DISCLOSED

11.  It appears from the Correspondence and Affidavits that the Plaintiff’s solicitors have previously requested the Defendant to disclose inter alia the documents set out in the second schedule to this Decision (“2^nd Schedule”), but I cannot be sure that such list is exhaustive given the selective nature of the Correspondence placed before me.  Pursuant to such requests, the Defendant has disclosed some documents.

12.  I do not have a full list of the documents already disclosed by the Defendant, but they include, for example, VCD/CCTV recording of the relevant area of the Pool at about the time of the Accident, the layout plan of the Pool, hotline enquiry report dated 9 November 2005, letter from the Plaintiff’s father and reply by LCSD dated 11 and 26 November 2005 respectively, record of viewing of CCTV recording by the Plaintiff’s family members on 2 December 2005, accident case report dated 28 October 2005, report from the pool-in-charge Mr Leung Kam-tai dated 28 October 2005, various statements by lifeguards and amenities assistants, various statements by the Plaintiff’s schoolmates, and photographs showing signage as to water depth and no diving.

13.  On 5 October 2010, DOJ gave copies of inter alia the following documents to the Plaintiff’s solicitors:

(a) the RSD Report;

(b) excerpts from “Review of Public Swimming Pools in Hong Kong 7^th – 17^th September 2000” (“MacGregor Report”) by Mr Peter Stuart Grant MacGregor (“Mr MacGregor”) of the Royal  Society for the Prevention of Accidents (“Society”);

(c) LCSD’s internal memo dated 31 October 2000 in respect of the Pool regarding follow-up actions in response to the review in the MacGregor Report (“LCSD Memo”).

14.  On 30 October 2010, DOJ provided further excerpts of the MacGregor Report, so ultimately DOJ has disclosed the entire MacGregor Report (being sections 1-5 and 7-11 and an extract from section 6 pertaining to the Pool (“Disclosed Section 6”)) except for site-specific risk assessment or safety review together with observations/recommendations for the remaining 15 public swimming pools (“Other Pools”) reviewed by Mr MacGregor (“Undisclosed Section 6”).  The Defendant declined the Plaintiff’s request for disclosure of Undisclosed Section 6.

IV.  SUMMONS

15.  At the CLR on 11 November 2010, I granted inter alia the following directions:

(a) the Plaintiff do take out inter partes application for specific discovery as specified in Part G of his PI Questionnaire dated 8 November 2010 and/or for specific discovery of any other documents that he considers to be relevant and necessary for this stage of the proceedings;

(b) there be extension of time until 31 May 2010 for the Plaintiff to file/serve his Statement of Claim, which shall be accompanied by its statement of truth;

(c) there be general extension of time until further order for the Defendant to file/serve his Defence.

16.  On 24 November 2010, pursuant to Order 24 rule 7 of the Rules of the High Court (“RHC”), the Plaintiff issued a summons for specific discovery of the following documents by affidavit within 7 days (“Summons”):

(a) section 6 of the MacGregor Report (“Document A”);

(b) the document to which the RSD Report is appendix 2 (“Document B”);

(c) all documents coming into existence between February 1998 and 27 October 2005 (or to now) as a result of the RSD Report insofar as they have specific or general relevance to the Pool (“Document C”);

(d) all documents coming into existence between 18 September 2000 and 27 October 2005 (or to now) as a result of the MacGregor Report insofar as they have specific or general relevance to the Pool (“Document D”);

(e) all documents coming into existence between September 2000 and October 2005 (or to now) as a result of change of signage at the Pool (“Document E”);

(f) all documents coming into existence between September 2000 and October 2005 (or now) as a result of briefings to lifeguards at the Pool (“Document F”).

17.  The Plaintiff has filed Mr Millar’s 1^st and 2^nd affidavits dated 23 November 2010 and 10 January 2011 respectively in support of the Summons.  The Defendant has filed the affirmations of Chan Yuen Man (“Ms Chan”, LCSD’s Assistant District Leisure Manager (Yuen Long)) and Chan Ming Cheong Horman (“Mr Chan”, LCSD’s Senior Leisure Manager (Aquatic Venues)) both dated 23 December 2010 in opposition.

18.  Mr Millar's written submissions have refined the requests for specific discovery of Documents C and D by the following reformulations:

(a) for Document C, (i) “documents as to “promotion of swimming safety” referred to in paragraph 10 of [Ms Chan’s affirmation] (and adopted by [Mr Chan’s] affirmation), whether specific to [the Pool] or of general application to swimming pools and therefore including [the Pool]”, and (ii) “the documents referred to (and by implication identified by [LCSD]) as to “follow-up actions” referred to on the fifth line of paragraph 11 of [Ms Chan’s] affirmation, and adopted in [Mr Chan’s] affirmation”;

(b) for Document D, “documents coming into existence as a result of the MacGregor Report having specific or general relevance to [the Pool], certainly in so far presently identified and known to the deponents and/or the DOJ”.

19.  In his submissions at the hearing before me on 9 February 2011 (“Hearing”), Mr Millar further reformulated the description of the class of documents in paragraph 18(b) above as follows: “documents coming into existence as a result of the MacGregor Report having specific or general relevance to [the Pool] but restricted to those presently identified and known to LCSD and/or DOJ as referred to in the affirmations of Ms Chan and Mr Chan”.

20.  Mr Millar further confirmed the Plaintiff would abandon his specific discovery request for Document C save and except for (a) the documents described in paragraph 18(a)(i) and (ii) above that have come into existence between February 1998 and 27 October 2005 (“Promotion Documents” and “Follow-up Documents” or collectively “New Document C”) and (b) the documents described in paragraph 19 above that have come into existence between 18 September 2000 and 27 October 2005 (“New Document D”).

21.  In the course of his submissions in reply at the Hearing, Mr Millar applied for leave to substitute the request for specific discovery of Document F to a request for “all documents including operational guidelines and briefings that came into existence between September 2000 and October 2005 as to guidance or briefing given to lifeguards at [the Complex/Pool] concerning their duties on enforcing rules and regulations on safety at [the Complex/Pool]” (“New Document F”) (“Reformulation Application”).  Mr Law opposes such application.

22.  I will deal with the Reformulation Application in greater detail below, but suffice to say here that I dismiss such application without prejudice to any future application by the Plaintiff for specific discovery of the aforesaid guidelines and notices.  Since Mr Millar confirmed the Plaintiff would not seek specific discovery of Document F irrespective of the outcome of the Reformulation Application, I now formally dismiss the Plaintiff’s application for specific discovery of Document F.

V.  LEGAL PRINCIPLES

23.  A party may apply for an order requiring any other party to make an affidavit stating whether any document or any class of document specified or described in the application is or has at any time been in his possession, custody or power, when he parted with it and what has become of it (see Order 24 rule 7 of the RHC).  But if the court is satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, it may dismiss or adjourn the application, and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs (see Order 24 rule 8 of the RHC).

(a) Court’s approach

24.  Hong Kong Civil Procedure 2011 Vol.1 para.24/7/1 at pp.549 states inter alia as follows:

“…… But 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. (3) The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure ……”

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

(b) Timing of the application

25.  The court has a wide discretion when to order discovery in the interest of justice.  There is jurisdiction to order specific discovery even before service of the statement of claim, but the making of such an order generally calls for definition of the issues.  Such order should not normally be made and the practice is to refuse discovery before close of pleadings save in exceptional circumstances because until at least a statement of claim has been delivered the court can seldom know what the matters in question in the action are. It is generally inexpedient and unnecessary to order discovery until the issues have been defined by the pleadings (see Hong Kong Civil Procedure 2011 Vol.1 paras.24/3/5 and 24/7/1 at pp.529 and 549).

(c) Relevancy

26.  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”.  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).

27.  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).

28.  There has been suggestion that the issues or questions must be those identified in the pleadings (see Sun Yuet Tai Limited v British American Tobacco Company (HK) Limited CACV 95/1999 (unreported, 4 June 1999) para.24), but in Thorpe v Chief Constable of Greater Manchester Police [1989] 2 All ER 828 it was held that matters can be “in question” even though not expressly raised on the pleadings. At p.833, 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.”

29.  But even if an issue is raised in the pleadings, it is not necessarily determinative as to whether it relates to a “matter in question”. Cheung JA in Paul’s Model Art Gmbh & Co v UT Limited & ors CACV139/2005 (unreported, 14 December 2005) 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 HCA 2433/2002, DHCJ Poon (as he then was) (unreported, 13 March 2003) paras.20-21 and Re the Estate of Ng Chan Wah HCAP 5/203 (unreported, 5 March 2003) per Chu J).

30.  Mr Law advocates the approach adopted by Colman J in O Company v M Company [1996] 2 Lloyd’s Rep 347, 350-351, which he submits illustrates how the Peruvian Guano principle should be applied:

“…… 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.”

31.  The approach in O Company was applied by Findlay J in A v B [1998] HKLRD (Yrbk) 542 and Fung J in Chan Kwok Hong v AXA China Region Isurance Company (Bermuda) Limited & anor HCA 2563/2007 (unreported, 19 May 2009). But DHCJ Horace Wong SC in Chan Hung v Yung Kwong Chung (unreported, 15 January 2009) acknowledged the observation by the editors of Hong Kong Civil Procedure 2009 that such approach represented “a marked departure from the very wide Peruvian Guano test that Hong Kong courts have accepted as the appropriate test to determine relevance”, and he 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.  DHCJ Horace Wong SC confessed he could not reconcile the difference between the test advocated by Colman J and the much wider formulation in Peruvian Guano. On appeal in CACV 34/2009 (unreported, 4 September 2009), the Court of Appeal did not disturb DHCJ Horace Wong SC’s discussion of the relevant legal principles.

32.  In EAA Securities Limited v Chan Lin Mui & anor DCCJ 4015/2003 (unreported, 31 July 2008) paras.21-27, I too preferred the Peruvian Guano test (see also Wu Ching Sau v New World First Bus Services Limited HCPI 767/209 (unreported, 9 September 2010)).  In coming to this view, I am comforted by Man Cheung International Traders Limited & anor v CLSA Limited formerly trading as Credit Lyonnais Securities (Asia) Limited CACV 97/2007 (unreported, 25 September 2007) para.37 in which the Court of Appeal allowed certain specific discovery on Peruvian Guano terms, ie “that such discovery may promote a relevant line(s) of inquiry and have the effect of buttressing the defendant’s case or of undermining that of the plaintiff”, and Paul’s Models Art GmbH & Co KG v UT Limited & ors HCA 1501/2000 (unreported, 18 January 2011) in which DHCJ Coleman SC said at para.52 as follows:

“One area of dispute at the hearing was whether or not the test of relevance in Hong Kong is still that in the Peruvian Guano case, [counsel for the 4^th and 5^th defendants] suggesting that the excesses of that type of discovery are to be deplored. But, whatever one might personally think of the application of that test to many cases, I accept …… submission [by counsel for the plaintiff] that the Peruvian Guano test is still the applicable test even after the Civil Justice Reforms of 2009 (when the possibility of removing that test was rejected).”

(d) Necessity – burden of proof

33.  According to Hong Kong Civil Procedure 2011 Vol.1 para.24/8/1 at p.553, 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 under Order 24 rule 8 of the RHC.

34.  However, Mr Law has drawn my attention to Deak & Co (Far East Ltd) in which the Court of Appeal, without any deep analysis, said at pp.80-81 that “in order to obtain an order for discovery under O 24 r 7, the party seeking it has to make out a prima facie case: …… that discovery thereof is necessary either for disposing fairly of the cause or matter or for saving costs”.  This was followed in Chan Kwok Hung at para.18 and Chan Hung at para.22.

35.  But neither Mr Millar nor Mr Law has cited Innovisions Ltd v Chan Sing Chuk & ors [1992] 1 HKC 348, 351 in which the Court of Appeal citing the following observation of Parker LJ in Dolling-Baker v Merrett [1990] 1 WLR 1205, 1209 with approval “…… under [Order 24 rule 8], it is for the party who is objecting to any such order to satisfy the court that discovery by list or affidavit is not necessary ……” (see also Alick Au Shui Yuen v Sir David Ford, Deputy to the Governor & ors HCMP2827/1990, Kaplan J (unreported, 27 November 1990) para.22 and The Estate of Wan Hung, deceased as represented by its administratrix Wan Tin Chung & anor v Kwan Yick Securities (International) Ltd HCA 1421/2006, DHCJ Muttrie (unreported, 18 April 2007) para.28).

36.  For the purpose of the Summons, I am prepared to assume (without deciding the point) that the burden is on the Defendant to show that the documents sought are not necessary either for disposing fairly of the cause or matter or for saving costs.

(e) Necessity – evidential materiality

37.  Although I do not embrace the approach by Colman J in O Company on the test of relevancy, Mr Law is correct in saying the learned judge’s observations are still pertinent for considering whether discovery of the documents sought is necessary either for fairly disposing of the cause or matter or for saving costs.  In this respect, I refer to paras.32-33 of the judgment of DHCJ Horace Wong SC in Chan Hung as follows:

“32. In any given case, there is likely to be a spectrum of evidential materiality within which documents may fall.  There may be documents which are central to the pleaded issues; but there may also be documents which fall at the other end of the spectrum in that though they may “fall within the letter of Lord Justice Brett’s formulation of relevance for discovery purposes”, they are documents which are unlikely to contain or yield information of such evidential materiality to the pleaded case (in the broad sense mentioned above) of the parties as to make their disclosure necessary for the fair disposal of the proceedings or to save costs.  The Court is entitled to take the view that although relevance in the Peruvian Guano sense has been established, it is not necessary for them to be disclosed.  The power to refuse unnecessary discovery of documents is expressly conferred by the rules of court.

33.  Indeed in the O Company v M Company case mentioned above, after dealing with the question of relevance, Colman J further held at p.352:

“… I would only add that if I had held that the applicable analysis of relevance derived from Compagnie Financiere du Pacifique v Peruvian Guano Co., sup., was wide enough to include as relevant those documents in respect of which I have refused to make an order for discovery, I should in each case have held that discovery was not necessary either for disposing fairly of the matters in issue or for saving costs under O.24. r.8. Documents of which discovery is necessary for the fair disposal of a matter in issue must at least have a demonstrable evidential materiality. For the reasons which I have given in relation to relevance I am not satisfied that all those documents covered by items 9,10 and 20 do so.”

Hence Colman J would have arrived at the same conclusion by applying O.24 r.8 if he had simply followed the “letter” of Brett L.J.’s formulation in the Peruvian Guano case on the question of relevance.”

(f) Necessity - width of discovery sought

38.  Where the applicant seeks to see a class of documents, “the class must not be defined or described so widely as to include documents which are not relevant to the issue (see Molnlycke AB v Proctor & Gamble Ltd (No. 3) [1990] RPC 498 approving Fuji Photo Film Co Ltd v Carr’s Paper Ltd [1989] RPC 713 and Re Estate of Ng Chun Wah).  In other words, the abovementioned prerequisites must be established in respect of the class described as a class and not as regards some in the class only (see Hong Kong Civil Procedure 2011 Vol.1 para.24/7/1 at p.549).  If the class of documents sought covers a large number of documents, and “disclosure is resisted on the grounds that it would be oppressive ……, the Court will weigh against any such potential oppression the possible injustice that would be caused if the material were not available at trial ……” (see Hong Kong Civil Procedure 2011 Vol.1 para.24/2/10 at p.526).

39.  In Culturecom Limited & ors v Chin Kwok Chung alias Tony Zie HCA 6800/1990 (unreported, 10 November 1995), the 3^rd defendant sought specific discovery of “all papers and documents” relating to 7 legal actions save and except for those papers and documents already discovered by the plaintiffs. It was held that:

“The first difficulty is that the very definition of the class of documents as “all papers and documents relating to” a particular legal action is far too wide to permit a person faced with an order in those terms ever to be sure that he has complied with it.  Secondly, it is not enough that a document relates in some way to proceedings. ……

…… it appears to be the 3^rd defendant’s case that in the papers relating to [a particular legal action], there may be some documents which, if the defendant saw them, might be considered to be relevant to the issues in those proceedings, but [counsel for the 3^rd defendant] was unable to name a particular specific issue and identify a document or a class of documents which could be shown to be directly related to that issue in such a way as to satisfy the requirements for specific discovery.

As a matter of common sense, it must be that many documents relating to the various proceedings referred to must be quite irrelevant to the issues to be tried between the plaintiffs and the 3^rd defendant, and on that ground alone, the 3^rd defendant’s application must fail.

It is not enough to show the possible relevance of some parts of a class of documents: it is necessary to identify the documents or show that the whole class must be relevant. ……  It is not sufficient to speculate as to whether documents might be helpful.  It is necessary to demonstrate that they satisfy the criteria.

……

…… It is not enough to say that a particular class of documents may be relevant: it is necessary to be much more specific and to identify the issue, the document and the manner in which it relates to the issue and is probative. ……

…… The application is a fishing expedition.  It is misconceived and it will be dismissed.”

40.  Further, in Molnlycke AB, Mummery J noted that an order for discovery was discretionary, and at p.505 held that the specific discovery sought was too wide for it embraced documents which did not relate to the matters in question between the parties in the action, and were not necessary for disposing fairly of the action or for saving costs.  He found it would have been oppressive to order discovery on the scale sought by the defendants of documents which were no more than marginally relevant background material to one of the issues in the action.  At p.503 he opined that the court would take into account considerations such as the value of the discovery to the person seeking it and the burden imposed on the party giving it with a view to restricting the volume of documents and the labour and expense involved to that which was necessary for fairly disposing of the issues in this case.

(g) Necessity – fishing request

41.  There is no doubt that discovery will not be ordered for the purpose of “fishing” or to enable a party to turn a non-issue into an issue (see HKFE Clearing Corp Ltd v Yicko Futures Ltd [2006] 2 HKC 233).  In Re the Estate of Ng Chan Wah, Chu J stated that “[it] is not sufficient for the plaintiffs to say that because there is on the pleading allegation of improper conduct against the defendants as executors, they are entitled to test the basis of the estate accounts generally or to check the accuracy of the items presented in the estate accounts, irrespective of whether they are in issue.  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”.

(h) Redaction of discovery documents

42.  “Parts of documents disclosed in discovery may be blanked out as irrelevant because the discovery is restricted to documents or entries in documents relating to a matter in question” (see Hong Kong Civil Procedure 2011 Vol.1 para.24/2/10 at p.526).  The making of an order for specific discovery “does not prevent the respondent …… from covering up irrelevant parts ……” (see Hong Kong Civil Procedure 2011 Vol.1 para.24/7/1 at p.549).

43.  In SMSE v KL [2009] 5 HKLRD 770, 784, Tang VP said as follows:

“ 40. It is accepted that only material documents could be ordered to be produced. The same applies to entries in documents. see per Kempster JA (as he then was) at p.404 in Guess?, Inc v Lee Seck Mon [1989] 1 HKLR 399.

41. The headnote to the report in GE Capital Corp v Bankers Trust Co [1995] 1 WLR 172, a decision of the English Court of Appeal shows:

“It was well established that a party was entitled to seal up or cover up parts of a disclosed document on the ground of irrelevance just as it could withhold an entire document on that ground, provided that the irrelevant part could be covered without destroying the sense of the rest or making it misleading …””

44.  With the above legal principles in mind, I turn to the specific documents being Documents A, B, E and F and New Documents C and D.

VI.  DOCUMENT A

45.  The Plaintiff seeks specific discovery of Document A, ie section 6 of the MacGregor Report titled “Site Specific Inspections”.  The Defendant has already disclosed Disclosed Section 6 which specifically concerns the Pool, but declines to make disclosure of Undisclosed Section 6 which relates to the Other Pools.

46.  The MacGregor Report is the result of sample review of 16 public swimming pools in Hong Kong carried out in September 2000.  Section 2 thereof titled “Purpose of Report” sets out the terms of reference as follows:

(a) identify hazards associated with the operation of the swimming pool facilities;

(b) assess the risk associated with such hazards;

(c) review in-house safety arrangements and documentation relating to the pool area (in particular normal operating procedures and emergency action plans including a review of lifeguard duties, training schedules, qualifications, incident reporting and the provision of information to users of the facilities);

(d) assess the pool area with recommendations for further improvement where necessary;

(e) visit 16 local swimming pools; and

(f) meet with representatives of the Hong Kong Life Saving Society.

47.  In section 5 of the MacGregor Report titled “Summary, Key Issues and Recommendations”, observations/recommendations were made inter alia as follows:

(a) “[it] was noted that the older Swimming Pools are creating less of a hazard than the new Leisure complex; it is recommended that an urgent review be undertaken of the suitability of play equipment in the leisure pools” (paragraph 5.1);

(b) “[in] view of the High Levels of poolside supervision the number of accidents is unacceptable” (paragraph 5.3);

(c) “[safety] signage is confusing and in some instances the colour is more to do with design effect than highlighting safety.  They do not conform to recommended (e.g. UK) protocols” (paragraph 5.3).

48.  Disclosed Section 6 that specifically pertains to the Pool states inter alia that “[signage] is the wrong colour – see previous item”.

49.  The LCSD Memo sets out feedback concerning the Pool which includes inter alia that “[the] colour of the signage will be amended when it has been finalised by the Department”.

(a)  Issue

50.  Clearly, LCSD is in possession of section 6 of the MacGregor Report.  The disputed issues are (a) whether the Plaintiff has established a prima facie case that Undisclosed Section 6 is relevant to the question(s) or matter(s) in issue, and (b) whether disclosure of Undisclosed Section 6 is necessary for disposing fairly of the cause or matter or for saving costs.

(b)  Plaintiff’s case

51.  According to letters from the Plaintiff’s solicitors to DOJ dated 13 October, 2 November, 4 November and 10 November 2010 and Mr Millar’s affidavits and submissions, Undisclosed Section 6 is relevant to the questions or matters in issue in the present proceedings because:

(a) the observation in section 5.1 of the Macgregor Report that “the older Swimming Pools are creating less of a hazard than the new Leisure complex” suggests that observations/ recommendations for “older” swimming pools in Undisclosed Section 6 will be relevant for comparison with those for the Pool being one of the “new” leisure complex pool;

(b) the non-disclosure of the “previous item” within Undisclosed Section 6 as to signage and colour makes it impossible to fully understand the observation in Disclosed Section 6 inter alia that “[signage] is the wrong colour – see previous item”.

52.  Further, the Plaintiff by his solicitors’ letter to DOJ dated 2 November 2010 and by Mr Millar’s 1^st affidavit claim that in disclosing the entire MacGregor Report except for Undisclosed Section 6 the Defendant must have accepted that the MacGregor Report is relevant, therefore it is not entitled to withhold Undisclosed Section 6 on the basis of irrelevancy.

(c)  Defendant’s case

53.  As explained in DOJ’s letters dated 5 and 30 October 2010 and in Mr Chan’s affirmation, the Defendant resists disclosure of Undisclosed Section 6 on the grounds that it is irrelevant and that the request exceeds the proportionate scope of necessary disclosure for this stage of the proceedings when the basis of the Plaintiff’s claim has not yet been pleaded.  Mr Law argues that disclosure of Undisclosed Section 6 is not required unless the Plaintiff can at a later stage in the proceedings by pleadings or otherwise demonstrate how the situation of the Other Pools is relevant to the particular ground(s) to his claim.

(d)  Discussion

54.  I first deal with the Plaintiff’s arguments in paragraph 51(b) above.  The starting premise is Disclosed Section 6 in which Mr MacGregor opines that the colour of the signage at the Pool is wrong.

55.  Mr Law reminds (and Mr Millar accepts) that the Defendant has disclosed section 11 (appendices) of the MacGregor Report (“Section 11”) which sets out the UK protocols and/or the  Society’s requirements concerning signage information and in particular the recommended colours for signage for different purposes and/or information (“Signage Protocols”), so the Plaintiff already has in his possession documentary information as to the proper colours for signage as recommended by Mr MacGregor and/or the  Society.  Mr Law argues that in such circumstances a mere reference in Disclosed Section 6 to “see previous item” cannot justify a duty to disclose the entire Undisclosed Section 6.  After all, the test remains that of relevance and necessity.

56.  In my view, in respect of Mr Millar’s arguments in paragraph 51(b) above, it is difficult to understand why disclosure of all observations and comments on site-specific risk assessment or safety review of all the Other Pools and not just the particular entry on signage colour in the “previous item” is required to make sense of Mr MacGregor’s observation in Disclosed Section 6 that the signage colour at the Pool is wrong.  Indeed, in his oral submissions before me, Mr Millar said that for the purpose referred to in paragraph 51(b) above, it is of no moment that the “previous item” is in respect of which particular public swimming pool so long as such “previous item” on signage colour is disclosed.

57.  I agree that since Mr MacGregor’s observation on signage colour at the Pool in Disclosed Section 6 is not free-standing, in order not to destroy the sense of such observation or to make it misleading, the relevant entry in the “previous item” in Undisclosed Section 6 insofar as it relates to signage colour (but not of other matters) should not be redacted and in fact should be disclosed (see SMSE at paragraph 43 above).  The Signage Protocols of themselves do not explain what Mr MacGregor considered to be “wrong” with the signage colour at the Pool, but the Defendant need not disclose the entire Undisclosed Section 6 to bring enlightenment to Mr Macgregor’s views as to the “wrong” colour of the signage at the Pool.

58.  I now turn to the Plaintiff’s arguments in paragraph 51(a) above, which relate to his application for disclosure of the entire section 6 of the MacGregor Report for drawing comparison between Mr Macgregor’s comments/recommendations for the “older” and the “new” public swimming pools to see how the latter is more hazardous.

59.  First of all, I am unable to discern from paragraph 5.1 of the MacGregor Report any indication that the less hazardous nature of the “older” public swimming pools “is likely to include depth of the pool” as suggested in Mr Millar’s written submissions.  Such submission does not sit well with the fact that Mr Macgregor’s observation that “the older Swimming Pools are creating less of a hazard than the new Leisure Complex” is immediately followed by his recommendation “…… that an urgent review be undertaken of the suitability of play equipment in the leisure pools” under the very same bullet point.  The Plaintiff’s allegations against the Defendant in the 1^st Schedule do not concern any play equipment.

60.  Secondly, as evident from appendices 2-3 of the RSD Report, the Pool and Other Pools are physically distinct in nature, size, shape and depth.  Also as seen from the terms of reference and contents of the MacGregor Report, including the contents of Disclosed Section 6, it is likely that Mr MacGregor’s site-specific assessment and review of the Other Pools cover wide-ranging matters.

61.  Mr Millar submits that without seeing Undisclosed Section 6, it is difficult to say whether they support or adversely affect any party’s case (if they would have such an effect), and asks me to infer that DOJ’s refusal to make disclosure of Undisclosed Section 6 “suggests that there is something therein that would adversely affect the defendant’s case or, conversely, would assist the case to be brought for [the Plaintiff]”, especially when Undisclosed Section 6 seemingly comprises 9 pages in total.

62.  But it is clear from the legal principles discussed above that a party is entitled to blank out or cover up irrelevant parts of documents when making discovery, so I am unable to infer anything sinister merely from the Defendant’s refusal to disclose Undisclosed Section 6 on the basis that such part of the MacGregor Report is irrelevant.  For the same reason, I am also unable to accede to Mr Millar’s arguments in paragraph 52 above.

63.  In Berkeley Administration Inc & ors v McClelland & ors [1990] FSR 381, the defendants only disclosed parts of documents in edited form and stated on oath that the covered up parts were not germane to any issue in suit.  In an application for disclosure of the whole of the documents, the English Court of Appeal declined to order the documents to be disclosed.  I respectfully agree with the observations of Mustill LJ (with whom Leggatt LJ agreed) at p.383 that “[plainly] the atmosphere in the case is such that the plaintiffs have grave skepticism about anything said on behalf of the defendants, but it is not a purpose of discovery to give the opposing party the opportunity to check up on whether discovery had been properly carried out.”  He added that “[this] seems to be a matter which is much better left for the trial judge to deal with if and when it is pursued.”

64.  I agree with Mr Law that the comparison exercise alluded to in paragraph 51(a) above serves to highlight the Plaintiff’s inability to make out a prima facie case of relevancy of the site-specific situation of the Other Pools as at September 2000 to the Accident in October 2005.

65.  Mr Law draws analogy with O Company which concerns a claim for loss and damage of cargo as a result of the sinking of the defendants’ vessel following explosions/fires.  Colman J was not persuaded that the likelihood of evidentially material information emerging from documents or classes of documents which were not shown to relate to parts of the vessel in or in connection with which the explosions/fires were initiated or the cargo was lost was sufficiently great to justify disclosure the same.  He further held that the mere possibility of such documents yielding information which could form the basis of inferences material to the issues which would be of relatively insignificant evidential weight did not justify discovery of the wide scope requested.

66.  I agree with Colman J that documents of which discovery is necessary for fair disposal of a matter in issue must at least have demonstrable evidential materiality.  On the materials placed before me and given the nature and circumstances of the Accident, I am unable to accept the arguments in paragraphs 51(a) and 61 above, which are tantamount to suggesting that the Plaintiff requires access to the observations/ recommendations on the Other Pools in Undisclosed Section 6 to carry out the comparison exercise between the “older” and “new” public swimming pools before he can ascertain whether there are any site-specific observations/recommendations on the Other Pools that may be relevant to the nature and circumstances of the Accident. In my view, this is plainly an attempt to “hunt around” for documents in the hope they will reveal information for the Plaintiff to pursue more enquiries.

67.  Thirdly, in considering whether disclosure of Undisclosed Section 6 is “necessary at that stage of the cause or matter” under Order 24 rule 8 of the RHC, it must be remembered there are no pleadings as yet at this stage and the true issues have not been formally crystallised.  Hence, the purpose of the present specific discovery application, as Mr Millar claims, is to enable the Plaintiff to instruct expert(s) on liability and plead his case.  In my view, it is quite unnecessary for the Plaintiff to look to the condition of the Other Pools as at September 2000 to do so.

68.  If the Plaintiff sees fit to plead a case about signage at the Pool in October 2005, the Defendant has already disclosed photographic reproductions of the colour and layout of signage at the Pool and/or other public swimming pools from pre-2000 to 2005, which signage can be viewed against the Signage Protocols set out in Section 11.  As Mr Millar has observed, the Signage Protocols note that in 1988 the Society’s Water Safety Committee approved a range of pictogram signs for water safety with different-coloured lettering and pictograms for different purposes, including a recommendation of “red background, white text” for prohibitory information such as “No Swimming” and “No Diving”.  I fail to see how site-specific observations/recommendations concerning the Other Pools in the MacGregor Report or (if referred to therein) signage colour at the Other Pools in September 2000 (apart from the entry for the “previous item”) will facilitate the Plaintiff (if he sees fit) in pleading any allegation of negligence or breach of statutory duty premised on any discrepancy between signage colour for prohibitory information at the Pool at the time of the Accident and the requirements under the Signage Protocols.  After all, there is no dispute that the photographic reproductions of signage at the Pool placed before me do not show any signage with “red background, white text”.

69.  Further, in Disclosed Section 6, Mr MacGregor has observed that “[lifeguards] witnessed users running and took no remedial action”.  Again, I am unable to see how the behaviour of other lifeguards on duty at the Other Pools in September 2000 (even if such matter were canvassed in Undisclosed Section 6) is relevant to the reactions of lifeguards on duty at the Pool at the time of the Accident in October 2005.  In my view, in the absence of pleadings particularly raising such issue, the likelihood of evidentially material information in this respect being elicited from Undisclosed Section 6 is remote.

70.  Still further, even if the depth or shallowness of the Pool is an issue between the parties, I note that Mr MacGregor has not criticised the shallowness of the Pool in Disclosed Section 6, so little purpose is served by the comparison exercise proposed by the Plaintiff in paragraph 51(a) above.  In any event, the appropriate expert(s) on liability should be able to give opinion on the alleged shallowness of the Pool as against any applicable standards which must be known to them.

71.  On the above analysis, I disallow the request for specific discovery of Document A save and except for the particular entry in Undisclosed Section 6 being the “previous item” as referred to in Disclosed Section 6 insofar as it relates to signage colour (but not of other matters).

VII.  DOCUMENT B

72.  The Plaintiff seeks specific discovery of the document to which the RSD Report is annex 2.  On 5 October 2010 (ie before issuance of the Summons), DOJ sent a black and white copy of the RSD Report to the Plaintiff’s solicitors. By their letter dated 1 December 2010 (ie after issuance of the Summons), DOJ explained to the Plaintiff’s solicitors that the RSD Report itself is annex 2 to a memorandum of the Provisional Regional Council (“Council”), and annex 1 to such memorandum is a summary (and indeed a part) of the RSD Report. Such memorandum, annex 1 thereto and a colour copy of the RSD Report were enclosed with the letter.  In such circumstances, I make no order in respect of the request for specific discovery of Document B.

VIII.  NEW DOCUMENTS C AND D

73.  The Plaintiff claims the Defendant has not made discovery of the following documents:

(a) documents that have come into existence between February 1998 and 27 October 2005 as to “promotion of swimming safety” referred to in paragraph 10 of Ms Chan’s affirmation and adopted in Mr Chan’s affirmation whether specific to the Pool or of general application to public swimming pools (including the Pool), ie the Promotion Documents, and paragraph 10 of Ms Chan’s affirmation states that the RSD Report is comprehensive and covers a wide range of observations, remarks and recommendations, and its working group, “for example, examined …… promotion of swimming safety”;

(b) documents coming into existence between February 1998 and 27 October 2005 which are referred to (and by implication identified by LCSD) as “follow-up actions” in paragraph 11 of Ms Chan’s affirmation and adopted in Mr Chan’s affirmation, ie the Follow-up Documents, and paragraph 11 of Ms Chan’s affirmation states that insofar as Yuen Long District Leisure Services Office (“YL Office”, which office was responsible for overseeing the administration and operation of the Complex) “is concerned, [she] verily believe that follow-up actions have been taken at the [Complex/Pool] as a result of the RSD Report ……”;

(c) documents coming into existence between 18 September 2000 and 27 October 2005 as a result of the MacGregor Report having specific or general relevance to the Pool but being restricted to those documents presently identified and known to LCSD and/or DOJ as referred to in the affirmations of Ms Chan and Mr Chan (ie the New Document D).

(a)  Defendant’s case

74.  In respect of New Document C, Ms Chan points out that the RSD Report was commissioned by the RSD on request of the former Council.  Both the RSD and Council were dissolved in 1999 and their functions were transferred to, amongst others, the LCSD, the Food and Environmental Hygiene Department and their respective directors.  The RSD Report is a comprehensive report that covers a wide range of observations, remarks and recommendations, including study and inspection of the design and safety of jumping blocks in main pools (pools designed for competition purpose) and training pools, steps in the pools, and play equipment such as water slides and water guns.  The Working Group has also, for example, examined the system of facilities inspection in pools, the methodology in calculating the maximum capacity of the pools, and “promotion of swimming safety”.

75.  Given the long history and wide scope of the RSD Report as well as the dissolution of the RSD and Council, Ms Chan and Mr Chan are not certain how many documents have come into being as a result of the RSD Report and are now still in the possession of LCSD or the government at large in respect of “promotion of swimming safety” over the relevant years.  Further, Ms Chan cannot be sure how all documents relating to the “promotion of swimming safety” in respect of the Complex/Pool and/or Other Pools that have come into being as a result of the RSD Report (in contra-distinction to only some documents with more concise description or classification) can be located.

76.  Mr Law further submits that for the Promotion Documents, since section 6 of the RSD Report which concerns “promotion of swimming safety” is irrelevant to the present action, any document coming into being as a result of that section is also irrelevant.  He argues that in respect of the Follow-up Documents, a request for documents relating to “follow-up actions” as a result of the RSD Report is no different from a request for Document C, and the Defendant objects to disclosure of such class of documents on the ground that it necessarily contains irrelevant documents.

77.  In respect of New Document D, Ms Chan and Mr Chan explain that the MacGregor Report is likewise a large-scale review of the safety of public swimming pools and covers, amongst others, issues like human resources, play equipment, age limitation for different sexes in changing room, documentation control and protective clothing in plant room etc. Insofar as LCSD’s headquarters and the YL Office are concerned, “[Ms Chan] verily believe that follow-up actions had been taken at [the Complex/Pool] as a result of the RSD Report”.  But Ms Chan and Mr Chan are not certain how many documents have come into being as a result of the MacGregor Report and are now still in the possession of LCSD or the government at large.  The LCSD Memo (which mentions a number of follow-up actions) found in the records of LCSD’s headquarters had been passed to the YL Office and eventually disclosed to the Plaintiff’s solicitors. But Ms Chan and Mr Chan cannot be sure how all documents relating to the Complex/Pool that have come into being as a result of the MacGregor Report (in contra-distinction to only some documents with more concise description or classification) can be located.

78.  Mr Law further argues that the disclosure of New Documents C and D are not necessary at this stage of the proceedings when the precise basis of the Plaintiff’s claim has not yet been pleaded.

(b)  Plaintiff’s case

79.  In respect of New Document C, Mr Millar claims that since section 6 of the RSD Report concerns “promotion of swimming safety”, the Defendant cannot argue that documents coming into existence pursuant thereto are other than relevant.  As regards the Follow-up Documents, Mr Millar complains that Ms Chan is silent on what follow-up actions have been actually undertaken or what documents have come into existence that concern the Pool either generally or specifically as to safety.

80.  In respect of New Document D, the Plaintiff’s solicitors in their letter to DOJ dated 29 December 2010 complained that Ms Chan has failed to state in her affirmation (when she should have done so) what attempts (if any) have been made by the LCSD or the government to identify what documents have come into existence as a result of the MacGregor Report whether (a) specific to the Pool, (b) generally, and/or (c) specific to public swimming pools concerning safety aspects and/or depth.

(c)  Discussion

81.  I agree with Mr Law that the scope of New Documents C and D are very wide and would certainly cover irrelevant materials.

82.  To properly consider the Promotion Documents, one needs to revisit what is covered by section 6 of the RSD Report on “promotion of swimming safety”, which provides as follows:

“6. 游泳安全的推廣

6.1 臨區局轄下泳池均有張貼宣傳游泳安全海報及每隔半小時播放游泳安全錄音帶，提醒泳客注意游泳安全﹔此外， 臨區局亦透過電視及電台， 呼籲市民在游泳時須遵守游泳安全守則。 雖然如此，工作小組察覺到近期在泳池發生的意外，遇溺者多是小童，這與家長疏於照顧小童不無關係。此外，有些市民忽略了閉氣潛泳可能帶來的危險，這亦是導致近期發生游泳意外的部份原因。工作小組認為現時一般市民對游泳安全的認識並不足夠。如要防止意外發生，除加強泳他的管理外，亦需大力推行游泳安全的教育。

6.2 為進一步推行有關游泳安全的教育，小組認為須增加在泳池播放游泳安全錄音帶的次數，並以廣東話、普通話及英語廣播，以迎合不同泳客的需要。此外，應在泳池當眼處張貼各類游泳安全告示及海報，俾能有效地向泳客傳送游泳安全的訊息。

6.3 至於透過電視及電台進行的游泳安全宣傳工作，工作小組認為效果良好，因此建議繼續進行。

6.4 為了更全面及更有效地推廣游泳安全教育至社會各階層，工作小組認為各有關團體及政府部門(如泳總、拯總及教育署等)的參與不可或缺。因此，工作小組建議應與上述團體及政府部門合作舉辦更多游泳安全活動，共同推行游泳安全的教育及宣傳工作。

6.5    此外，社區的參與亦有助推廣游泳安全。工作小組建議成立「游泳安全大使」計劃，邀請市民加入，共同推廣游泳安全。”

83.  It is plain from the above that in section 6 of the RSD Report the Working Party proposed to increase educational efforts to heighten public awareness of swimming safety following (a) drowning incidents involving children which incidents were not unconnected with insufficient parental care and attention, and (b) swimming incidents arising from swimmers ignoring the inherent dangers of snorkelling.  To this end, the Working Party also proposed to increase the frequency of poolside broadcasts on swimming safety in different languages, put up notices/posters on swimming safety at public swimming pools, continue with television/radio broadcasts on swimming safety, organise activities on swimming safety with relevant bodies and government departments, and invite public participation in an “ambassador for swimming safety” scheme to promote swimming safety.

84.  The aforesaid general initiatives on education and promotion of swimming safety cover a wide range of matters (other than the alleged risk of diving into a shallow-water swimming pool), and are targeted to reduce swimming incidents unrelated to the circumstances of the Accident.

85.  In my view, given the observations/recommendations on “promotion of swimming safety” in section 6 of the RSD Report, which are not focused merely on the alleged ills that may relate to the nature and circumstances of the Accident, a request for specific discovery of the Promotion Documents premised on the such wide-ranging matters created over a period of about 7½ years from the date of the RSD Report to the date of the Accident should not be allowed.  In light of the broad range of matters canvassed in section 6 of the RSD Report, I am persuaded many documents falling within the class of documents under Promotion Documents would fail to have any evidential materiality to the Plaintiff’s claim, and the Defendant is not permitted to seek discovery with a view to “hunt around” for anything that may be useful.  I refer to the principles in paragraphs 38-40 above which make clear that the class of documents sought must not be defined or described so widely as to include documents which are not relevant to the matters in issue.

86.  As regards the Follow-up Documents, Ms Chan in her affirmation admittedly refers to follow-up actions having been taken as a result of the RSD Report.  Mr Millar claims that DOJ’s position is tantamount to saying Ms Chan can state in her affirmation her belief that follow-up actions on the RSD Report have been taken without any basis or any stated basis for such belief.  He suggests that insofar as reliance is placed on documents for Ms Chan’s belief, that should be made clear in her affirmation and discovery made in respect of such documents whether it be now or at formal discovery.

87.  It should be remembered that Ms Chan’s affirmation was filed before the Plaintiff’s reformulation of his specific discovery request from Document C to New Document C.  Such affirmation was therefore made in response to the request for all documents coming into existence between February 1998 and 27 October 2005 (or to now) as a result of the RSD Report insofar as they have specific or general reference to the Pool.  I am unable to appreciate why Ms Chan has to depose in her affirmation in opposition all follow-up actions taken pursuant to the RSD Report and all documents created as a result of such follow-up actions when the Defendant contends that such information and documents are irrelevant and unnecessary and when such contention is yet to be determined by the court.

88.  In any event, the RSD Report does not just deal with “promotion of swimming safety” but a wide range of matters (see paragraph 74 above).  They include observations/recommendations on play equipment, water slides, areas offering shade, jumping blocks, staff structure for pool management, beach safety, inspection of pool equipment, roster for lifeguards, methodology for calculating pool capacity, etc.  There is no suggestion that any of these matters are related to the nature and circumstances of the Accident.  In my view, the broad request for specific discovery of documents on “follow-up actions” to the RSD Report for a period of 7½ years from the date of the RSD Report to the date of the Accident is both oppressive and unnecessary, and it also falls foul of the principles explained in paragraphs 38-40 above.

89.  As regards New Document D, Mr Millar has restricted the Plaintiff’s request to documents that have come into existence between the date of the MacGregor Report and the date of the Accident as a result of the MacGregor Report that are presently identified and known to LCSD and/or DOJ as referred to in the affirmations of Ms Chan and Mr Chan.  However, having carefully considered their affirmations, I cannot find any reference therein to documents identified and known to LCSD and/or DOJ as a result of the MacGregor Report. Apart from the LCSD Memo (which has been disclosed), Ms Chan and Mr Chan clearly state they are not certain how many documents have come into being as a result of the MacGregor Report and are now still in the possession of LCSD or the government at large and they cannot be sure how all documents relating to the Complex/Pool that have came into being as a result of the MacGregor Report can be located.  In short, they have not identified any document known to LCSD and/or DOJ other than the LCSD Memo.  The Plaintiff’s solicitors acknowledged this in their letter to DOJ dated 29 December 2010 when they complained that Ms Chan has failed to state in her affirmation what attempts (if any) have been made by the LCSD or the government to identify what documents have come into existence as a result of the MacGregor Report (see paragraph 80 above).

90.  In such circumstances, the request for specific discovery of New Document D fails for uncertainty.  Even if I am wrong and the affirmations of Ms Chan and Mr Chan do refer to documents that have come into existence as a result of the MacGregor Report in the 5 years between the date of such report and the date of the Accident, the scope of such class of documents is plainly too wide as it covers matters extraneous to the nature and circumstances of the Accident.  The observations/ recommendations in part 5 of the RSD Report cover may different topics, such as reorganisation/improvement of staff structure, establishment of user group, review of age limitation for different sexes in changing rooms, documentation control and accident reports for risk assessment, securing of pool mats, storage space for cleaning materials, access for wheelchair users, review of lifeguard safety equipment, policy review for allowing people who need artificial aids to be lifeguards, etc.  The LCSD Memo being feedback to the MacGregor Report covers matters ranging from signage colour and lifeguard briefing to artificial turf, water slides, stone pillars/pool design, CCTV system, plant room safety etc.  Mr Law asks rhetorically why the Defendant should be called upon to disclose documents that have come into existence following Mr MacGregor’s recommendations over plant room safety and other matters unrelated to injury by diving into a swimming pool.  In my view, many of the documents falling into this class would fail to have any evidential materiality to the matters in issue, and the request is in my view no more than a fishing exercise.

91.  Mr Millar submits that it is incumbent upon the Defendant to be realistic and apply common sense in making discovery.  In my view, it is the duty of the Plaintiff being the applicant for specific discovery to be concise. If the class is too wide (as in the application for specific discovery of New Documents C and D), it will be oppressive for the party ordered to make discovery to ascertain the exact number of documents created, and the deponent for the disclosing party will find himself in serious trouble for swearing a false affidavit even though he has tried his best to give an honest disclosure.  In the circumstances, I dismiss the Plaintiff’s requests for specific discovery of Documents C and D as well as New Documents C and D.

IX.  DOCUMENT E

92.  The LCSD Memo states that signage colour at the Pool would be amended when it was finalised by the department (which relates back to the observations concerning the Pool in section 6 of the MacGregor Report).  It is therefore implicit that as at the date of the LCSD Memo (ie 31 October 2000) the colour of the signage at the Pool was yet to be finalised.

93.  Mr Millar submits that without voluntary discovery of documents identifying the finalised signage colour at the Pool pursuant to the LCSD Memo or of documents evidencing further steps taken concerning the colour or otherwise in respect of signage at the Pool, the Plaintiff has to seek specific discovery of all documents coming into existence as a result of change of signage at the Pool (a) from September 2000 to October 2005 or to now (see the Summons) and (b) from 27 October 2005 to 14 October 2009 or to now (see Mr Millar’s 1^st affidavit).

94.  Ms Chan accepts that the LCSD Memo was issued as feedback to the MacGregor Report and believes that amendment of the signage colour was made as a result of recommendations in the Macgregor Report.  Section 11 alludes to the signage colours at swimming pools suggested by the Society for different types of information, which include red background and white text for signage containing prohibitory information and yellow background and black text for signage containing warning information.

95.  By their letter dated 8 November 2010 to the Plaintiff’s solicitors, DOJ advised that they were “collating more information pertaining to such amendment [of colour signage at the Pool] and will revert in due course”.  Subsequently, Ms Chan in her affirmation confirms she has personally inspected the correspondence between the Complex and Architectural Services Department about maintenance of the Pool for the period from 2000 to 2005, and with the assistance of her colleague she has located the following documents exhibited to her affirmation:

(a) photographs taken at the Pool before 2000 (ie before the dissolution of the RSD) depicting signage with white background, blue text and red/blue pictograms;

(b) several documents created in May to July 2001 evidencing procurement of signage with inter alia yellow background and black text, which procurement is likely to be follow-up action pursuant to the LCSD Memo;

(c) a few photographs taken at the Pool on 4 September 2002 and 3 April 2003 respectively showing signage with yellow background and black/red text/pictograms that were in use as early as in 2002 and 2003;

(d) a few photographs taken at the Pool in or about November 2005 showing signage of inter alia “no running”, “no diving” and “deepest water depth” with yellow background and black/red text/pictograms as well as ground tiles with a water depth mark for 1.1m.

96.  Ms Chan accepts that the documents in paragraph 95(b)-(c) above are within Document E and may be relevant to the issues in dispute in the Summons and/or in the present proceedings.  She further says that although the documents in paragraph 95(a) and (d) above have not come into being as a result of change of signage to fall within Document E, they are useful to the court in dealing with the Summons and the present proceedings generally.

97.  Photographic reproductions of various signage at different times have been made available in the Affidavits as follows:

(a) The signage shown in photographs in the 1998 RSD Report although not specific to the Pool appears to have the same colours (ie white background, blue text and red/blue pictograms) as shown in the reproductions of photographs taken prior to 2000 as exhibited to Ms Chan’s affirmation.

(b) There are no photographs of signage in the MacGregor Report of September 2000.

(c) The signage at the Pool shown in reproductions of photographs taken in 2002 and 2003 as exhibited to Ms Chan’s affirmation has yellow background and black/red text/pictograms.

(d) The signage at the Pool shown in reproductions of photographs taken around November 2005 as exhibited to Ms Chan’s affirmation has either (i) yellow background and black/red text/pictograms or (ii) white background, blue text and red/blue pictograms, but it appears that warning signs have the colours in (i) above.

(e) Wall-mounted signage at the Pool shown in reproductions of photographs taken during Mr Millar’s site inspection in October 2009 exhibited to his 2^nd affidavit has either (i) yellow background, black/red text and multi-colour pictograms or (ii) blue background, black text and red/white/blue pictograms, but it appears that warning signs have the colours in (i) above.

(a) Plaintiff’s case

98.  The Signage Protocols in Section 11 specify that diving should be prohibited in splash pools: “[pictorial] ‘No Diving’ signs should be displayed at change room exit points and adjacent to open pools.  A total ban should be in operation, in any case, where depths are less than 1.5 metres”.  Mr Millar submits that although there is no definition of a “splash pool” in the MacGregor Report, the aforesaid guidance is relevant because the Pool has a maximum depth of 1.1m, so there should have been unambiguous “No Diving” prohibitory signage with red background and white text at the Pool at the time of the Accident.  But, as seen in paragraphs 95 and 97 above and as acknowledged by Mr Law, the photographic reproductions of signage  placed before me do not show any with such colours at the Pool.  Mr Millar argues that in such circumstances, there should be specific discovery of the underlying documents showing what signage was applicable up to the time of the Accident.

99.  Mr Millar further submits that the layout and colour of signage at the Pool in November 2005 and October 2009 were different, which suggests that either Mr Macgregor’s observations as to signage colour at the Pool had not been acted upon prior to the Accident or if it had been acted upon there were further changes to signage colour subsequent to the Accident.  In any event, the signage at the Pool does not accord with the recommended colours in Section 11, so “documents going as to the colour, size and layout of signs and any changes thereto, is clearly relevant as one issue, clear from the correspondence, will be the nature and extent of warning signs”.

100.  Mr Millar says that the documents in paragraph 95(b) above merely evidence procurement of signs (with unidentified wording), and it is unclear whether all such procurement have been proceeded with and/or whether such signs even if procured in 2001 have been installed at the Pool at the time of the Accident.

(b) Defendant’s case

101.  Mr Law submits that the administration of the Complex have taken steps to follow up on Mr McGregor’s opinion, and the photographs and procurement documents exhibited to Ms Chan’s affirmation (see paragraph 95 above) further demonstrate the change of signage colour at the Pool subsequent to the MacGregor Report. But what concerns the Plaintiff in the present case is the condition of the Pool at the time of the Accident on 27 October 2005, and it is not useful to dwell on any problem (if any) of signage at the Pool as at September 2000 or whether such signage was replaced between September 2000 and the time of the Accident or whether there has been any change of signage after the Accident in October 2005.  Mr Law argues that the changes (if any) do not assist the Plaintiff in his claim in that it is irrelevant, and hence the disclosure sought is not necessary at this stage of the proceedings when the basis of the Plaintiff’s claim has not yet been pleaded.

(c) Discussion

102.  Mr Millar makes much play of the recommendation in Section 11 that there should be absolute prohibition of diving in splash pools.  Such recommendation is given in the context of the Signage Protocols for water slide safety which refers to a splashdown area where the water slide exit point discharges into the main pool area, and I am not persuaded that such recommendation is necessarily relevant to the nature and circumstances of the Accident since there is no suggestion before me that the Plaintiff dived into any water slide splashdown area of the Pool.

103.  But even if I am wrong, it is plain that the Plaintiff’s request for specific discovery of Document E is essentially an attempt to trace the signage development (especially in relation to the colour of such signage) from the McGregor Report to the Accident and thereafter until now.  In my view, the scope of this class of documents is too wide and lacks evidential materiality for this stage of the proceedings.

104.  The Plaintiff is already in possession of documentary evidence of the Signage Protocols on signage information in Section 11 and of signage at the Pool as at 2002/2003, 2005 and 2009 which are not on red background with white text.  At this stage of the proceedings when (as Mr Millar submits) the Plaintiff is concerned with commissioning expert opinion on liability and pleading his claim, even assuming that the nature and colour of signage giving prohibitory or warning information is relevant, I cannot see how tracing the history of signage changes at the Pool from 2000 to 2005 will assist him.  Mr Millar has not identified how (beyond the specific assessment of whether the signage at the Pool at the time of the Accident when viewed against applicable guidelines (if any)) finding out whether the Defendant has failed to act on Mr MacGregor’s observations on signage colour or has acted on such observations but made subsequent changes is relevant or necessary in the sense of being evidentially material to the issue as to whether the Defendant has discharged its duty of care (if any) to the Plaintiff as a user of the Pool.

105.  In considering the issue of liability, it also appears irrelevant and unnecessary to assess how the successor(s) to signage at the Pool after the Accident functioned.  As explained in Charlesworth & Percy on Negligence 12^th ed para.7-49 at p.479,

“[either] subsequent experience or hindsight may show that some additional precaution was necessary but this fact itself would not prove that the defendants were guilty of negligence at the relevant date of the accident. Whilst it is always easy to be wise after the event, there is nothing which is so perfect that it cannot be improved by knowledge, experience and understanding.”

106.  The Plaintiff’s solicitors further complain by way of their letter dated 2 December 2010 to DOJ that Ms Chan has failed to state the contents of and/or to exhibit to her affirmation the correspondence between the Complex and Architectural Services Department about maintenance of the Pool for the period from 2000 to 2005 that she personally inspected.  Mr Millar also argues that since Ms Chan has acknowledged that at least some of the documents within Document E are relevant, such class of documents should be disclosed.  These contentions fly against the principles set out in paragraphs 38-40 above, and are tantamount to a fishing exercise.  In all the circumstances, I reject the application for specific discovery of Document E.

X.  DOCUMENT F

107.  Although the MacGregor Report finds the training schedules and qualifications for lifeguards to be satisfactory, paragraph 5.4 thereof recommends they “should be trained to take a more proactive approach to poolside safety; several instances were noted when they failed to take action over a safety critical event”.  In Disclosed Section 6, Mr Macgregor makes a site-specific comment concerning the Pool that “[lifeguards] witnessed users running and took no remedial action”.  The LCSD Memo (which is a feedback to the MacGregor Report concerning the Pool) states that lifeguards have been briefed to take appropriate action to stop runners.

108.  Mr Millar notes there has been no discovery of the briefings referred to in the LCSD Memo or subsequent briefings to lifeguards.  He points out that the partial reproduction of the VCD recording immediately before and after the Accident made available to the Plaintiff’s solicitors shows that the Plaintiff’s companions ran and jumped into the Pool shortly before the Plaintiff dived into the Pool and suffered the Accident, but the lifeguards present did not react to such behaviour.  Mr Millar submits that the briefings to the lifeguards (particularly as to running/jumping/diving) and their nature, extent and frequency are clearly relevant to a likely issue in the action and are required to enable the Plaintiff’s claim to be properly pleaded.  Hence, the Plaintiff seeks specific discovery of Document F being all documents coming into existence between September 2000 and October 2005 (or now) as a result of briefings to lifeguards at the Pool.

109.  Ms Chan in her affirmation claims that briefings to lifeguards at the Pool were/are done verbally by Amenities Assistant (Pool) and they do not have a practice of creating documents (eg minutes) as a result of such briefings given pursuant to operation guidelines and/or notices issued by LCSD’s headquarters from time to time.

110.  Mr Millar accepts that at this stage the Plaintiff cannot go behind Ms Chan’s assertion made on affirmation, but argues in his written submissions that written guidelines relating to the oral briefings to lifeguards and documents evidencing the lifeguards’ adherence to such briefings are clearly relevant to a likely issue in this action and necessary to enable the Plaintiff to properly plead his claim.  He appears to be under the impression that the guidelines and/or notices issued by LCSD’s headquarters from time to time pursuant to which oral briefings are given to lifeguards are within the scope of Document F. He eventually acknowledged in his submissions in reply before me that these documents are not a result of briefings to lifeguards at the Pool, so he made the Reformulation Application to seek specific discovery of New Document F (ie all documents including operational guidelines and briefings that came into existence between September 2000 and October 2005 as to guidance or briefing given to lifeguards at the Complex/Pool concerning their duties on enforcing rules and regulations on safety at the Complex/Pool) in substitution of Document F.

111.  Mr Law resists the Reformulation Application on several grounds, all of which I find to be persuasive.  First, Document F and New Document F are significantly different classes of documents.  The latter results from oral briefings to lifeguards, but the former is the premise for such oral briefings are given. Secondly, the Reformulation Application first raised during the Mr Millar’s submissions in reply (ie after Mr Law addressed on the specific discovery request for Document F) is undeniably late. Mr Law says he is unable to take proper instructions and is therefore embarrassed by the late application.  However, Mr Law fairly concedes, even though he says the scope of New Document F still is too wide, the Plaintiff is at liberty (if he sees fit) to recast the request for the aforesaid guidelines and/or notices issued by LCSD’s headquarters from time to time in a concise fashion and to make fresh request for discovery of such class of documents if the Reformulation Application is dismissed.

112.  As another factor against the exercise of discretion in favour of the Reformulation Application, Mr Law submits (and I accept) that New Document F as presently formulated is too widely cast for it covers operational guidelines and briefings for a period of 5 years from September 2000 to October 2005 covering all matters relating to lifeguards at the Complex/Pool “concerning their duties on enforcing rules and regulations on safety”.  Such guidance and briefing may, for example, cover safety in using water slide and play equipment, use of safety equipment, carrying of personal safety equipment on duty, introduction of incentive/reward scheme for reducing pool incidents, etc (see section 5.4 of the MacGregor Report), none of which is relevant to the nature and circumstances of the Accident.

113.  Ms Chan in her affirmation accepts that upon advice by the Defendant’s legal representatives some of, but definitely not all of, the guidelines and/or notices issued by LCSD’s headquarters from time to time may have to be disclosed when the proceedings come to the stage of automatic discovery after the issues of the action are defined in pleadings.  Nevertheless, not until service of pleadings, she will not know which guideline or notice (which covers many different aspects of lifeguards’ practice at swimming pools) will be relevant to the claim, and a complete disclosure of all guidelines and/or notices that have been issued by LCSD to lifeguards is unnecessary or at least unnecessary at this stage of the proceedings.

114.  Mr Millar argues that insofar as Ms Chan concedes that documents fall to be disclosed at the stage of automatic discovery but not now, it will cause wastage of costs if deferred discovery leads to future amendment of the Statement of Claim which as of now is yet to be pleaded.

115.  I agree with Mr Law that it is for the Plaintiff to define the class of documents he requests and to establish the relevancy of such class of documents to the matters in issue, and it is not for the Defendant to second-guess what sort of documents are relevant at this pre-pleading stage of the proceedings.  The short answer to Mr Millar’s contention is that Ms Chan has not conceded that any guideline and/or notice issued by LCSD’s headquarters from time to time will necessarily be the subject of automatic discovery.  Her affirmation simply recognises that once the Plaintiff has properly pleaded his claim, the Defendant will be able to ascertain whether any of such guidelines and/or notices is relevant to the matters in issue, and if there are they may have to be disclosed under automatic discovery.  Since the present proceedings have yet to reach the stage of pleadings, it is important to clearly define the scope of the documents sought so that the deponent of the disclosing party will not be put into an invidious position when swearing the relevant affidavit under Order 24 rule 7 of the RHC and so that the disclosing party will not be burdened with disclosing irrelevant and/or unnecessary documents.  I therefore dismiss the Reformulation Application.

XI.  CONCLUSION

116.  The Plaintiff’s solicitors in the Correspondence and Mr Millar in his written submissions have sought disclosure of the legal advice mentioned in the affirmations of Ms Chan and Mr Chan.  The Plaintiff has not taken out any summons for such purpose and I have declined to deal with such matter. Out of abundance of caution, when I refer to legal advice being “mentioned” in the affirmations of Ms Chan and Mr Chan, I form no view as to whether such legal advice has been deployed and/or whether such “mention” is sufficient to justify the Plaintiff’s request for disclosure.

117.  There is no reason why costs should not follow event, so the Defendant should be entitled to costs of (a) the Plaintiff’s application for specific discovery of Documents C, D, E and F and New Documents C and D and (b) the Reformulation Application.

118.  The Plaintiff has achieved minor success in respect of the request for specific discovery of Document A, but has failed in respect of the bulk of the class of documents sought.  There is no reason why costs should not follow the respective events.

119.  In respect of the application for specific discovery of Document B, I am of the view that the appropriate order is no order as to costs.  The Defendant cannot be faulted for not disclosing the memorandum and annex 1 thereto at this stage of the proceedings.  I do not see the relevance of the memorandum that requires voluntary disclosure on the part of the Defendant at this stage of the proceedings.  Further, annex 1 is part of the RSOD Report that has already been disclosed before issuance of the Summons.  But at the same time, it is unsurprising that the notation of “annex 2” on the RSD Report arouses the curiosity of the Plaintiff’s solicitors. Given my directions of 11 November 2010 requiring the Plaintiff to issue the Summons for specific discovery (see paragraph 15 above), the inclusion of a request for Document B without any prior request is understandable. In my view, a fair order will be no order as to costs.

120.  Taking all of the above matters into consideration and bearing in mind that the Defendant is entitled to a substantial portion of the costs of the Summons and the Plaintiff is entitled to a smaller portion of such costs with an added element of no order as to costs in relation to Document B, I am of the view that after netting off the various entitlements, a fair order will be for the Plaintiff do pay to the Defendant two-thirds of the costs of Summons including all costs reserved to be summarily assessed with the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations, and I make a costs order nisi to such effect.

121.  Mr Law asks for certificate for counsel so that the Defendant will recover cost on the basis of him acting as notional counsel and his colleague as notional instructing solicitor.  This raises an interesting issue as to whether DOJ is entitled to seek costs in such manner, but in the end it is not a matter that I need to resolve.  I am not persuaded that the application is of such complexity as to warrant certificate for counsel.

122.  For summary assessment of the costs in paragraph 120 above, I grant further directions as follows :  

(a)   if no application is made to vary the costs order nisi within 14 days from today, the Defendant do within 21 days from today lodge and serve statement of costs (not exceeding two pages) pursuant to Practice Direction 14.3 and the Plaintiff do within 7 days thereafter lodge and serve one-page succinct summary of objections;

(b)   the Defendant do within 14 days from today fix a date with the Listing Clerk for summary assessment of costs to be heard before me in chambers (open to the public) on a date not before 42 days from today with half hour reserved.

1^st Schedule

1. designing, permitting or causing the Pool to be used with a depth or maximum depth of only 1.1m, which was clearly of an inadequate depth or inadequate maximum depth, so that a user jumping or diving into the Pool even at the deepest point must be at risk;

2. failing to indicate or properly bring to a potential user’s attention the fact that the Pool was a “leisure” pool and/or the shallowness of the depth of the Pool (which was too shallow for diving or even swimming);

3. failing to post clearly marked and visible indicators of depth and/or changes of depth of the Pool;

4. causing a slide to be fitted to the Pool with a depth of 1.1m and thereby encouraging users to enter the Pool by that slide and, by implication, by means other than using any steps provided;

5. failing to post any or any adequate or proper signs as to the risk of or warning against jumping or diving into the Pool;

6. causing or permitting users to jump or dive into the Pool;

7. failing to take any or any effective steps to prevent users from jumping or diving into the Pool;

8. failing to have or have any proper or effective regulations to prevent users from jumping or diving to the Pool;

9. having an inadequate number of lifeguards on duty at the time;

10. having inadequate or improperly trained lifeguards on duty at the time;

11. the lifeguards present failing to take steps to enforce that the Pool was used for “leisure” purpose;

12. the lifeguards present failing to monitor the situation and taking no or no effective steps to enforce any regulations there might be against jumping or diving into the Pool;

13. the lifeguards present failing to react to the Plaintiff’s 2 companions entering into the Pool by running across an area and jumping in before the Plaintiff dived into the Pool;

14. the lifeguards present failing to prevent or deter the Plaintiff from diving into the Pool or to direct him to enter the Pool by other means;

15. the lifeguards present failing to promptly react to the Accident and instead allow the Plaintiff’s companions to come to his aid in an inappropriate manner of assistance;

16. the lifeguards present failing to enter the Pool for a considerable time after the Plaintiff was injured;

17. upon the lifeguards present entering the water, doing so in an inappropriate manner thereby causing further disturbance to the water which was likely to impact adversely upon the Plaintiff’s injuries.

2^nd Schedule

1. CCTV recordings of the Pool area on the date of the Accident;

2. copies of all retained images from whichever CCTV camera from the Pool area in relation to the Accident;

3. copy of any accident / incident book entry on 27 October 2005;

4. copy of any accident / investigation report in respect of the Accident;

5. copies of all records relating to the occurrence of the Accident;

6. copy of any other statement or record of interview with Mr Leung Kam Tai other than his report prepared on 25 September 2009;

7. copies of all plans, drawings, sketches, memoranda, directions etc in respect of the design and construction of the Pool;

8. copies or reference to the (international) standards pursuant to which the Pool was designed and built;

9. copies of all documents evidencing formal risk awareness identification undertaken for the Pool;

10. copies of all documents concerning risk assessment and/or audit and/or safety reviews in respect of the Pool specifically or public swimming pools generally (including the Pool);

11. copies of all records relating to the hiring or employment of lifeguards and the nature and extent of their duties;

12. access to the accident / incident book held at the Pool since its opening to date;

13. copies of accident reports of all accidents / incidents that happened in the swimming pools at the Complex;

14. copy records of all in-water incidents at LCSD administered / supervised swimming pools in Hong Kong which have resulted in accidents to users;

15. copy records of all in-water incidents at LCSD administered / supervised swimming pools in Hong Kong which have resulted in accidents to users as a result of their diving or jumping into such pools;

16. copy records of all in-water incidents at LCSD administered / supervised swimming pools in Hong Kong which have resulted in accidents to users rendering them paraplegic or quadriplegic.