POON KWOK WING ERNEST v. AIRPORT AUTHORITY

HCPI 305/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 305 OF 2004

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JUDGMENT

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1. This is an appeal by the plaintiff against the order of Master Kwan given on 20 January 2006 when the Master :

(a) dismissed the plaintiff’s application by Summons dated 29 December 2005 for specific discovery; and

(b) refused to grant leave to the plaintiff, alternatively, dismissed the plaintiff’s application for leave to adduce expert evidence on liability.

BACKGROUND

2. The plaintiff was employed by the defendant as a kerb supervisor at the Chek Lap Kok Airport at the material time of the accident.

3. On 9 April 2001, the plaintiff, while travelling on an escalator at his place of employment, had an accident when he fell from the escalator.

4. It is the plaintiff’s case that the escalator on which he was travelling suddenly stopped thus causing him to lose his balance and fall thereby sustaining injuries to his person.

5. In the pleaded particulars of negligence, the plaintiff also relies on improper repair and/or maintenance of the escalator by the defendant, but no particulars of what improper repair or maintenance has been specified.

6. To this claim by the plaintiff, the defence of the defendant pleads that some unknown person had activated the emergency stop button of the escalator causing it to stop suddenly and there was nothing the defendant could do about the escalator being stopped in that way.  The defendant therefore denies negligence.

7. The defendant also relies on having appointed CNIM Hong Kong Ltd, being the manufacturer of the escalator, as an independent contractor to handle the maintenance, inspection and repair of escalators at the airport including the one on which the accident happened.

APPLICATION FOR SPECIFIC DISCOVERY

8. Totally the plaintiff is seeking discovery of 13 classes of documents as stated in the Schedule to the Summons dated 29 December 2005.

Classes 1 and 2

9. This request discovery of all documents contained in the  file bearing reference nos. “IR No. : LOD/IR/01-04-008” and “IR No. : RN#01004478” in connection with the plaintiff’s accident.

10. The request is made on the assumption by the plaintiff that because those two reference numbers appear from documents already disclosed, there must be a file with other relevant documents which have not been disclosed.

11. That is not good enough to show the existence of documents which are discoverable.

12. This request is refused.

Class 3

13. Requests all letters, faxes, emails, memorandums, incident reports, statements, photographs, sketch plans, and drafts relating to the plaintiff’s accident from 12 named persons or entities.

14. There is however no evidence that any of those 12 individuals or entities brought into existence any of the documents now sought.

15. This is a clear fishing expedition and will not be allowed.

Class 4

16. Requests “Preliminary Incident Investigation Report” and all documents arising therefrom kept by the Airport Safety Department of the defendant in connection with the plaintiff’s accident

17. The defendant has already disclosed the occurrence report prepared by CNIM Hong Kong Ltd following the accident and submitted to EMSD pursuant to the Lifts and Escalators (Safety) Ordinance.

18. There is nothing to suggest any other investigation reports exist apart from what has been already disclosed.

19. The request is refused.

Classes 5 to 12

20. The request here are for repair, maintenance, service and survey reports, half yearly inspection reports, log book for walkways or escalators, comments/suggestions of EMSD after its inspection on 12 April 2001, operations manuals of the escalator, guidelines given in respect of stoppage and all reports, memorandums, statements, emails, letters, faxes, or documents by the loss adjusters, McLARENS in connection with the investigation conducted by it.

21. Firstly, relevance has not been established by the plaintiff for the documents requested.  There is no allegation of any particular fault with the escalator in the pleading which would be recorded in the documents sought.

22. The defendant has already disclosed the occurrence report prepared by CNIM Hong Kong Ltd.  The escalator was inspected by EMSD on 12 April 2001.  There is nothing to suggest that any further reports were prepared following the inspection, or that EMSD had supplied to the defendant any report prepared by them.

23. I accept the defendant’s submission that this is yet a further fishing expedition in the hope of finding some cause for the stoppage in an attempt to put blame on the defendant.

24. As for the documents from the loss adjusters, they did not investigate the cause of the stoppage.  Moreover, documents brought into existence by them are likely to be privileged.

25. The requests relating to these classes are also refused.

Class 13

26. This request asks for the circuit diagrams of the escalator.

27. Relevance is not made out and can only be another fishing expedition.

28. The request is refused.

29. Quite apart from the reasons given above for refusing those specific classes of documents requested, looking at the entirety of the request for specific discovery as a whole, I am firmly of the view that the requests taken in its totality is oppressive to the defendant in that the defendant, if the requests are acceded to, will be under a most onerous duty to seek out a great number of documents of a very wide ranging extent.  A task which must be oppressive by any standards.

30. Those requests should therefore also be refused on this further ground.

APPLICATION FOR EXPERT EVIDENCE

31. It is common ground that as early as (31 August) (16 September) 2004, Master Kwan had already ordered that “no expert evidence as to liability shall be adduced in written or oral form” when giving directions at a Check List Review hearing in this matter.

32. It would appear that the plaintiff did not appeal against that order, but by Summons dated 29 December 2005 heard before the same Master, sought to obtain leave to adduce expert evidence on liability.  That application was dismissed by the Master resulting in this appeal.

33. The expert evidence which the plaintiff now wishes to adduce is evidence from Dr Albert T. P. So, a lift and escalator engineer.  I am told by counsel for the plaintiff that the expert evidence which the plaintiff hopes to adduce from Dr So relates mainly to the cause of the sudden stoppage of the escalator when this accident to the plaintiff happened.

34. This is objected to by the defendant on two grounds.  Firstly, the defendant submits that once the order that there be no expert evidence on liability was made in August/September 2004, and not appealed against by the plaintiff, that order is binding and the Master has no residual power to permit the plaintiff to go behind the order made when the plaintiff applied for leave to do so by Summons dated 29 December 2005.

35. Secondly, it is submitted that the plaintiff has failed to establish any need for expert evidence on liability since the cause of the sudden stoppage of the escalator on the day of the accident to the plaintiff are matters of a factual nature for a judge to determine and no special expertise is required for it.

36. The plaintiff relies heavily on the case of Kam Wai Ming v. MTR Corporation Ltd and CNIM Hong Kong Ltd (DCPI408/2002) where HH Judge Carlson dealt with a similar occurrence when the plaintiff in that case fell from an escalator while travelling down it at the Tsuen Wan MTR Station when it suddenly stopped.  In that case Judge Carlson gave judgment to the defendant after a full trial.

37. It is said by counsel for the plaintiff in the present case that the plaintiff in Kam Wai Ming’s case lost the claim because no expert evidence was adduced by the plaintiff.

38. Having read the judgment in Kam Wai Ming’s case in full, I cannot accept that statement by counsel for the plaintiff.

39. In Kam Wai Ming’s case, the judge after going through all the evidence, was unable to make a finding as to the cause of the sudden stoppage.  However, he did find that the escalator together with its operation, servicing and maintenance fully complied with the standards set in the Lifts and Escalators (Safety) Ordinance, Cap. 327, as well as the Code of Practice produced by the Electrical and Mechanical Services Department (EMSD) which oversees all lifts and escalators in Hong Kong.

40. Judge Carlson further found that the escalator in question in Kam’s case would slide for 1.31 feet once the braking system was engaged before it came to a halt, which also complied with the parameters set by the EMSD, such that the stoppage was not so abrupt as to throw users on it off balance.

41. However, the crucial finding in Kam’s case which led the judge to dismissing the plaintiff’s claim was that the plaintiff in that case had failed to hold onto the handrail as he should have immediately before the stoppage of the escalator.  In this respect, the judge found that :

“… the proximate cause for the plaintiff’s injuries, the causa sine qua non, was that the Plaintiff did not have hold of the handrail.  The causa causans, the unexpected stop, provided the setting against which the accident occurred…”

42. It should also be noted that in Kam’s case, the judge declined to accept the submission by the plaintiff that the sudden stoppage of the escalator per se could invoke the maxim of res ipsa loquitur.

43. Coming back to the present case, I am of the view that the dispute between the parties is purely factual, in particular the cause of the stoppage of the escalator at the time of the accident.  That can hardly be a matter for an expert, particularly when he was not at the time present at the scene of the accident. 

44. I therefore cannot see how expert evidence can avail the plaintiff.

45. At best the expert will be trying to reconstruct what happened in attempting to give an opinion as to the cause of the stoppage of the escalator in question.  The law is quite clear that only in exceptional circumstances will a party be allowed to adduce expert opinion evidence in trying to reconstruct what happened in an accident, and this case does not come within such exceptions.

46. No doubt, that must have been the view taken by the Master when she made the initial order that there be no expert evidence on liability and also when she dismissed the subsequent application for expert evidence.

47. It should also be noted that the defendant has not sought to adduce any expert evidence in this matter.

48. A further matter which I have noted is that although the particulars of negligence in the plaintiff’s pleadings refers to repairs and maintenance of the escalator in question, the plaintiff’s claim is brought only against the defendant and not against CNIM Hong Kong Ltd.

49. For all the above reasons, I am not disposed to grant leave to the plaintiff to adduce expert evidence in this case.

DECISION

50. For the reasons given above, the plaintiff’s appeal from the order of the Master is dismissed with costs (being a costs order nisi).