LAM TAM LUEN v. ASIA TELEVISION LTD

cacv 202/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 202 of 2006

(on appeal from HCPI NOs. 1394 AND 1395 of 2003)

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HCPI 1394/2003

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1394 OF 2003

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BETWEEN

AND

HCPI 1395/2003

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1395 OF 2003

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from a ruling and order of Mr Justice Suffiad given on 10 May 2006.  The judge heard an application that the amendments to the statements of claim in both actions made on 12 January 2006, the seventh day of the trial, be disallowed.  At the conclusion of the hearing of this appeal, the appeal was dismissed with costs.  This court reserved the question of the basis of taxation of the costs.

Background

2.  In view of the fact the trial of these actions is part heard, this judgment will kept to a minimum.  These actions are brought by a widow, one action in her own right and the other as administratrix of the estate of her late husband who was killed by an assailant.  Reference will be made to the pleadings in the action by the widow in her personal capacity as nothing turns on any difference between the 2 actions.  The cause of action is framed both in contract and in tort.  It suffices to quote the following paragraphs from the statement of claim in the first action namely:

“3. In or about April 1999:

(a) A crew of the Defendant (hereinafter referred to as “the ATV crew”) conducted an interview of another Chinese herbalist by the name of Tang Kin Kwong (hereinafter referred to as “Tang”) who had claimed to be able to cure cancer with tree roots at Tang’s clinic shop which was situated a few doors away from the Deceased’s Clinic.

(b) Immediately after the said interview of Tang, the ATV crew came to the Deceased’s Clinic requesting an interview of the Deceased and seeking his comment about Tang’s claim.

(c) The Deceased declined to be interviewed and declined to make any comment on Tang’s said claim and emphasized to the ATV crew that he “did not want any trouble”, meaning that he did not intend to make any or any adverse comment on Tang’s claim.

(d) In the premises, the Deceased had represented to the ATV crew that he was concerned about any adverse consequences in making any or any adverse comment on Tang’s claim.

(e) The ATV crew despite the Deceased’s refusal to be interviewed did not leave the Clinic; the ATV crew continued to ask the Deceased to be interviewed.

(f) One of members of the ATV crew offered and repeatedly assured the Deceased that his image would not appear in the programme during the broadcast and that the Deceased would not be harmed in any way (“the Assurance”).

(g) The Assurance was made by the said member of the ATV crew for and on behalf of the Defendant and in the course of his employment with the Defendant.

(h) In reliance upon and under the belief in the Assurance, the Deceased agreed to be interviewed by the ATV crew and commented that Tang’s claim was not believable.”

3.  In paragraph 5 it was alleged that:

“Further or alternatively, by giving the Assurance to the Deceased through its servant/agent, the Defendant owed a duty of care to the Defendant to take reasonable steps to keep his identity in confidence when broadcasting the interview of the deceased.”

4.  In contrast paragraph 9 of the statement of claim was as follows:

“The aforesaid attack perpetrated by Tang on the Deceased and the Plaintiff was caused by the breach of the agreement and/or negligence of the Defendant through its servant and/or agent in failing to keep the Deceased’s identity confidential during the broadcast of the interview of the Deceased, knowing that failing which the Deceased as well as the family would be exposed to risk of violence, hostility and physical harm from Tang.

PARTICULARS OF NEGLIGENCE

(i) Wrongfully showing the face and broadcasting the comment made by the Deceased in the programme.

(ii) Revealing the name of the Deceased in the programme.

(iii) Failing to cover, conceal, disguise the image and voice of the Deceased.

(iv) Failing to heed the Deceased’s warning that the broadcast of the programme without concealing his identity would jeopardize his family’s safety.

(v) Alternatively, failing to heed any risk of vengeance upon the Deceased, the Plaintiff and their family.

(vi) Failing to give any or any sufficient consideration to the safety of the Deceased, the Plaintiff and their family.”

5.  Shortly prior to the adjournment of the trial the plaintiff applied to amend the statement of claim by inserting under the particulars of negligence the following paragraph 9 (vii):

“Having regard to the condition of Tang as exhibited in the programme, the Defendant should have taken effective steps to avoid any harm or risk of harm to anyone appearing in the programme, in particular, Tang and the Deceased.”

6.  The defendant objected to this amendment because it was said that it raised a new cause of action.  It objected to it on 12 January.  It was said that the amendment raised the new cause of action in negligence which had not been pleaded before and that in doing so the plaintiff was seeking to introduce a new cause of action beyond the limitation period.  The judge overruled that objection.  He then went on to say that he could not see any prejudice or injustice to the defendant if the amendments were allowed which could not be compensated for in costs.

7.  Despite the provision by the plaintiff of further and better particulars this application was then taken out before the judge by summons dated 24 March 2006.  The judge then considered the matter fully and he said amongst other things:

“27. Therefore there can be no doubt that the plaintiff had pleaded and relied on negligence as well as breach of contract in his original claim.

28. The act or omission complained of by the plaintiff was the failure of the defendant to cover up the identity of the deceased when the defendant aired the interview with the deceased commenting on Tang’s practice and claim of being able to cure cancer with tree roots on its programme “To See Better Today”.

29. That still remains to be the act or omission complained of by the plaintiff even with the proposed amendments.  Therefore nothing has changed in so far as the act of negligence goes.

30. The effect of the proposed amendment merely serve to allow the plaintiff to say why, based on the contents of the interview of Tang by the defendant, the defendant ought to have the knowledge that if it failed to keep the deceased identity confidential during the broadcast of the interview with the deceased, the deceased and his family would be exposed to risk of violence, hostility and physical harm from Tang, a matter which had already been pleaded in paragraph 9 of the Statement of Claim.

31. I therefore do not accept the submission of the defendant that the effect of the proposed amendments is to add (or substitute) a new cause of action which had hitherto not been relied on by the plaintiff.”

8.  The judge then also considered the question as to whether there would be prejudice caused by the late amendment and having considered the matter he again said that there could be little or no prejudice to the defendant which could not be cured by consequential orders allowing for further evidence from the defendant, both expert and factual, should that such be necessary.

9.  As regards the main point argued on the appeal, that this was a new cause of action, I consider that the judge was clearly right.  The plea of negligence in paragraph 9 of the statement of claim was clearly broad.  When paragraph (v) of the particulars of negligence is compared with paragraph (iv) it can be seen that the plaintiff was not confining herself simply to reliance on the warning which the deceased was said to have given; still less was she confining herself to reliance upon the Assurance.  The plea of negligence and the particulars, especially at (v) and (vi) were broad and in the alternative to (iv).

10.  At the conclusion of the hearing of this appeal Mr Lee SC applied for an order for costs to be awarded on an indemnity basis.  The application was made on the broad principle that it would be an “appropriate” order to be made having regard to the fact that the defendant has raised the arguments on two occasions in the court below and has pursued an appeal at an interlocutory stage whilst the action is in progress.  In the present circumstances I consider that on balance costs should be taxed on a party and party basis.  In so saying, it should also be said that this court deprecates the bringing of appeals on matters which are essentially case management matters.  In this case the position is even worse because the appeal was proceeded with whilst the trial was in progress in circumstances where it was unnecessary to do so.

Hon Barma J:

11.  I agree.