CHEUNG MEI KEI v. HOSPITAL AUTHORITY

HCPI 884/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 884 OF 2007

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J U D G M E N T

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Introduction

1. This is an application for further and better particulars of the Defence.  The parties had agreed to dispose of this application by way of paper disposal in lieu of an oral hearing.  I have considered the written submissions of both parties.

2. Miss Cheung was employed by the Hospital Authority (“HA”) and worked as a health care assistant in Princess Margaret Hospital.  One day when she was distributing meals placed in a metal trolley, she sustained injuries, which are now the subject matter of the claim.  Negligence is alleged against HA.  In the Defence, HA denies negligence, and alleges contributory negligence.

The Application

3. Miss Cheung has requested HA to provide a number of particulars in relation to its defence.  It has provided some of the particulars but refused to answer a number of requests on the ground that they either relate to evidence or that the particulars sought are not in accordance with the rules of pleading.

4. I now deal with these remaining disputed requests below.

Request (5) (under paragraph 6(h) of the Defence)

5. In this paragraph, the Defendant denies any negligence by pleading that Miss Cheung “was reminded to voice out any difficulties and to avoid heavy lifting or heavy manual handling operation that she could not cope with from time to time”.  Miss Cheung has requested HA to provide particulars in respect of when, how, and in what manner she was reminded, and particulars as to when or to whom of HA could voice out her difficulties.

6. I disagree with the Defendant’s submissions that such particulars can be given later in the witness statement.  This is not in accordance with the principle of pleading.  In this paragraph HA has pleaded positively the existence of some sort of system or channel through which Miss Cheung was able to inform her employer of the problems she encountered in connection with heavy duties.  It would be within the HA’s position to plead with particularity as to the circumstances under which Miss Cheung has been informed of such channel.  Without these particulars, Miss Cheung would not be able to properly prepare for her case.

7. In the circumstances, I order the Defendant to answer this request.

Request (8) (under paragraph 9(c) of the Defence)

8. In paragraph 9, HA has alleged contributory negligence, and in the subparagraph, it alleges that Miss Cheung has failed “to inform her supervisor of any discomfort or inability to carry out the said job duty”.

9. Miss Cheung now asks HA to provide particulars in relation to 4 requests. One is to identify the name and position of her supervisor.  Second is to state where her supervisor could be located.   HA has answered 2 of the requests, and refused to answer the remaining two requests regarding when and how Miss Cheung could inform her supervisor of any discomfort or her inability to carry out the said job duty; and the time, place and the parties to such information.

10. In considering this request, it is important to consider what “the said job duty” actually means in the subparagraph. In my view, it must mean, in the context of the Defence, the duty that led to the accident in question.  By this plea, HA’s case is simply this: Miss Cheung had failed to inform her supervisor of any discomfort or inability to carry out the duty assigned on the date of accident.  It is a pure denial, and the particulars sought are not justified. I disallow this request.

Request (10) (under paragraph 9(e) of the Defence)

11. This paragraph relates to the plea of contributory negligence.  In this subparagraph HA alleges that Miss Cheung has failed to inform her supervisor or her co-worker, Mr. Yeung, “that she was not able to carry out the said duty on her own”.  Similarly, HA has provided particulars regarding the name and position of Miss Cheung’s supervisor and also as to where her supervisor could be located.  Miss Cheung further seeks particulars regarding when and how she could inform her supervisor or colleague of her inability to carry out the said job duty on her own, and the time and place of the parties to such information.  As I have stated above, this subparagraph is a pure denial.  Hence, no further particulars should be given.

Order

12. The Defendant do supply to the Plaintiff, within 14 days from the date of the order, particulars in Request (5) above.  As Miss Cheung has failed in some and succeeded on some of the requests, I further make a costs order nisi that there shall be no order to costs (including costs reserved) in relation to the three disputed requests above.  The Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.