YEUNG KAI TUNG v. THE HONG KONG JOCKEY CLUB

DCEC 1483/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1483 OF 2007

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D E C I S I O N

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1.  This is the Applicant’s application for an order under Order 24 rule 7 of the Rules of the District Court that the Respondent do within 14 days from today, make and file an affidavit stating whether the documents referred to and specified or indicated in the schedule are or have at any time been in the Respondent’s position, custody or power, and if the same having at any time been, but not now, in its possession, custody or power, stating when it parted therewith and what has become thereof.

2.  According to the application, the Applicant’s claim is for compensation in respect of his injuries sustained as a result of an accident which occurred on 20 January 2006 arising out of and in the course of his employment with the Respondent. 

3.  According to the witness statement of the Applicant dated 30 April  2008, on the day in question and in the vicinity of the swimming pool the horse in question rushed to and fro madly and was totally out of control.  The situation lasted for about 15 minutes, during which the Applicant used force to pull the said horse and then he felt pain on the right side of his body.  He felt pain and numbness on the right side of his body and he twisted the last finger of his right hand and twisted his right leg. 

4.  According to the supporting affirmation made by Lam Wai-Sum, Iris, the assistant solicitor in the employ of Messrs T S Tong & Co., the accident was described as follows: in the afternoon of 20 January 2006, work orders were given to the Applicant to take Horse No.G164 to the swimming pool for swimming.  The Applicant acted in accordance with his instructions.  However, in the course of doing so, the horse reacted vigorously.  The Applicant sustained multiple injuries when he tried to calm down the said horse.

5.  She continued to say in her affidavit, “As instructed, the said horse had a history of bad temper and was of aggressive disposition with propensity to cause injury to human being.  It is the Applicant’s understanding that the said horse it was put down after the accident.”  “(Paragraph 7) I verily believe that the documents of which the Applicant is seeking specific discovery are relevant to the issue of liability in these proceedings.  In the event records show that the said horse did have a history of aggressive behaviour, there is a high probability the Court will find that the accident did occur as alleged.” 

6.  The documents covered by the schedule attached to the summons are: (1) health record and/or medical notes of Horse No.G164, (“the said horse”); (2) autopsy report of the said horse; and (3) CCTV record of the accident scene on the day of the accident.

7.  The Applicant withdrew this application relating to No.2 and 3, so what I have to deal with is No.1, namely health record and/or medical notes of Horse No.G164.

8.  Page 477 of the Hong Kong Civil Procedure 2009,  Volume 1, states at page 477:

“The second (and more important) qualification is that under the present rule an application may be made for an affidavit as to specific documents or classes of documents.  This must be supported by an affidavit stating that in the brief of the deponent the other party has or has had certain specific documents which relate to a matter in question.  But this is not sufficient unless a prima facie case is made out for (a) possession, custody or power, and (b) relevance of the specified documents (Astra National Production Ltd v Neo Art Productions Ltd [1928] W. N. 218; Wong Wai Chun v Au Yeung Fung Sim & Others [2001] 2 HKLRD G2, CFI; Re Estate of Ng Chan Wah, unreported, HCAP No.5 of 2003, March 5, 2003 [2003] H.K.E.C.317).”

So the burden is on the Applicant to show that this application for the medical notes can succeed because these notes are relevant to the issue in this case; the issue of course is the issue of liability.

9.  Now, according to paragraph 5 of the affidavit of Lam Wai-sum, she said, “As instructed, the said horse had a history of bad temper and was of aggressive disposition with propensity to cause injury to human being.”   Now, I have read carefully the three affirmations of the Applicant, only the affirmation of the Applicant dated 31 August 2008 is related to the temper of the horse.  It says in Chinese: “本人楊啟棠曾經於2006年至2007年內曾策騎G164馬匹晨操，以我多年經驗，要策騎及控制G164馬匹需要有一定經驗，G164馬匹比一般馬匹不一樣，有時會不受控制及脾氣暴躁，及有長期腳患。”   Nowhere in the affirmation of the Applicant says the said horse had a history of bad temper.  Paragraph 5 only refers to the bad temper of G164 from time to time.  It is not sure which period is covered by this phrase “from time to time”.  The paragraph does not refer to the propensity of the horse to cause injury to human beings. 

10.  In this case the alleged accident happened in this way.  The Applicant tried to pull the horse, obviously in order to control the horse and in the course of doing so, he was injured.  There was no evidence that the horse was attempting to attack or cause injury to the Applicant.  The Applicant was only injured because the horse rushed madly to and fro and the Applicant tried to control it, but obviously unsuccessful.

11.  Now it seems to me that the affidavit of Ms Lam went too far to say that the horse had an aggressive disposition with propensity to cause injury to human beings.  That is not the case here. 

12.  According to paragraph 7 of Ms Lam, the said horse did have a history in the event -- she says, “In the event records show that the said horse did have a history of aggressive behaviour, there is a high probability the Court will find that the accident did occur as alleged.”  Now, this will only show that the medical notes are relevant when the record shows that the horse did have a history of aggressive behaviour.  That is, at the time the medical notes have been discovered and inspected and then when it shows that the horse did have a history of aggressive behaviour, then these medical notes will be of relevancy.  But according to the Supreme Court, the Hong Kong Civil Procedure 2009, the documents in question asked for by the Applicant must show relevance to the issue of this case.  The relevance is the present relevance of these documents and not that these documents may be relevant at a certain stage in the future when the contents are known and become relevant.  The Applicant must show that they are relevant now.  There is no evidence to show that they are relevant now. 

13.  Secondly, Ms Lam referred to in paragraph 7 in the event record shows that the said horse did have a history of aggressive behaviour, then the Court may find that the accident did occur as alleged.  Now, there is no allegation of aggressiveness alleged by the Applicant in regard to the horse.  Obviously when Ms Lam referred to aggressive behaviour, she must be referring to aggressive disposition with propensity to cause injury to human beings.  Now, in this case the horse is not aggressive; it is only not under the control of the Applicant, namely, in other words, the Applicant was not able to control the horse.  It is not that the horse was trying to be aggressive towards the Applicant.  So if these records/medical notes show that the horse did have a history of aggressive behaviour, they are still not relevant to this case because they are not one of the grounds based upon which the Applicant makes his claim.  The Applicant did not say that the horse was aggressive towards him.

14.  Now according to the application, his injuries were caused because the horse was running madly and the Applicant was not able to control him by pulling the rope behind him.  There is no express statement made by the Applicant that the horse was aggressive towards him.  So the documents asked for cannot be relevant to this case.  Assuming that these records did show that this horse has the alleged aggressive behaviour, still I do not think that such piece of evidence is relevant to the court for the court’s consideration because if the court accepts that the horse did run wildly and was out of control and as a result of which, the Applicant was injured, then it is unnecessary to consider whether the horse has the aggressive propensity or not.

15.  If the Applicant was unable to convince the court to find that the accident did take place as described in his witness statement and/or in the application, then it is no help to consider the aggressive propensity of the horse as mentioned in the medical notes (if any) as alleged by the Applicant.  So the Applicant fails to show how the documents covered by Item No.1 under the schedule are relevant to establishing liability on the part of the Respondent concerned.  Therefore I dismiss this application.

(Discussion re costs)

16.  I dismiss the entire application.   Regarding Item Nos.2 and 3 under the schedule of this application, the Applicant asks for costs to be borne by the Respondent or no additional costs regarding these two items.  The Respondent asks for costs to be paid by the Applicant regarding these two items.

17.   Regarding Item 2, there is no evidence that an autopsy report of the horse came into existence at any time; so it is premature for the Applicant to apply for an order relating to this item. 

18.  Regarding Item No.3, I have read carefully the witness statements of the Applicant, there is no mention by him about the exact location the said accident happened, and so the Respondent had difficulty of identifying the CCTV record (if any) because of the absence of the exact location of the alleged accident.  So again the application for this item is premature.

19.  So the Applicant has to bear costs regarding these two items.  So the order I make regarding costs is that the Applicant do pay costs of this summons application to the Respondent, to be taxed, if not agreed.  The Applicant’s own costs be taxed under Legal Aid Regulations.