LIU HING SANG v. MIRAMAR TRAVEL LTD

DCEC486/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 486 OF 2010

________________________

BETWEEN

________________________

________________________

D E C I S I O N

________________________

1.  The application before me is for leave to use certain documents disclosed in these proceedings in a related Court of First Instance action.

2.  In this case Mr Liu (the Applicant) issued proceedings for employees’ compensation against his employer Miramar Travel Limited (the Respondent).  Mr Liu was a tour guide and was seriously injured in a taxi accident during the course of his employment.  By consent, judgment on liability was entered with compensation to be assessed.  On 23 February 2011, a sanctioned payment was accepted by Mr Liu in this action, bringing it to an end.

3.  Mr Liu had in the meantime also issued proceedings in the Court of First Instance, in HCPI 665/2009, against the estate of the deceased taxi driver and the driver’s insurer.

4.  The Summons herein dated 29 April 2011 seeks leave to disclose and use all information and documents disclosed in these proceedings in the related PI action.  In her oral submissions, Ms Kitty Tsang, appearing for Mr Liu, clarified that the application is in fact limited to one particular document, namely the Affirmation of Madam Yau of Miramar, made on 5 January 2011, which sets out the Mr Liu’s pre-accident earnings.  The underlying purpose of the application is thus limited to proof of his pre-accident earnings through this document.

5.  The implied undertaking not to use documents disclosed on discovery for any collateral or ulterior purpose may, in exceptional circumstances and on the application of the party obtaining discovery, be relaxed or modified by the Court: see the commentary at para. 24/14A/1 of Hong Kong Civil Procedure 2011.

6.  In this case, proof of pre-accident earnings was self-evidently an issue.  I am told that it is, or is likely to be, also an issue in the personal injuries proceedings.

7.  In the normal course, proof of pre-accident earnings would be obtained by issuing a subpoena against Madam Yau or some other representative of Miramar, or through some other form of third party disclosure order.  It seems to me that the information which is sought is not particularly controversial – and I am told that it would save costs and time to make the present application to me now, rather than to seek third party disclosure in the Court of First Instance proceedings.  Moreover, I understand that Mr Liu was encouraged by Master Ng in the Court of First Instance to seek leave to be released from his implied undertaking on disclosure by making this application in the District Court as a first matter.  There would be no prejudice to Madam Yau or to Miramar caused by the release from the undertaking.  This was specifically accepted by Mr H L Cheng, appearing on behalf of Miramar, and it was entirely proper of him to make that concession.

8.  In proceedings of this kind, where claims arising out of the same accident have had to be brought in two separate courts, in one for employees’ compensation, and in another for damages for personal injuries – and where the amounts in issue are not vast – one has particularly to bear in mind the underlying objectives of Civil Procedure Reform calling for efficiency and for the saving of costs where this is appropriate.

9.  I am satisfied that I have the power to make an order in the terms which are sought and, in all the circumstances of this particular case, I am satisfied that I should exercise my discretion to grant an exceptional release from the implied undertaking on discovery.

10.  The order that I will therefore make is that leave be granted to Mr Liu, to disclose for use in his related personal injuries claim in HCPI 665/2009, and for no other purpose, the affirmation of Madam Yau Shuk-ling made on 5 January 2011, in which the affirmant set out proof of Mr Liu’s pre-accident earnings for his then employer, Miramar.

11.  For the avoidance of doubt, this order relates only to the use of Madam Yau’s affirmation as a document.  My order does not, and cannot, affect the formal admissibility (or otherwise) of the contents of that affirmation.

(Discussion re costs)

12.  I make an order for costs in favour of Mr Liu and direct that the costs of and incidental to this application should be borne by Miramar.

13.  Also for the avoidance of doubt, this costs order relates only to the application before me.  I do not make any order pertaining to any costs that may in future be occasioned by Madam Yau or Miramar in having to give oral evidence, or produce documents, in HCPI 665/2009 – that will be a matter for the Court of First Instance.