SINGH, HARJIT v. VSL HONG KONG LTD AND OTHERS

HCPI 153/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 153 OF 2012

_________________________

BETWEEN

_________________________

_______________

R U L I N G

_______________

1.  This is a claim for damages arising from personal injury.  Liability has been admitted by the defendants and the remaining issue is the assessment of the damages.  The parties have exchanged their witness statements and medical evidence.  The Revised Statement of Damages and the Answer thereto have been filed by the parties.   The case is ready for setting down.  By an order of Master Leong given on 20 March 2013, the assessment is to be set down before a Master on or before 19 April 2013 by the plaintiff, which he has failed to do.

2.  By a summons filed on 27 May 2013, the plaintiff applies for leave to amend his Revised Statement of Damages as per the final version of the draft as submitted by his solicitors, Messrs Or & Partners, in their letter dated 17 June 2013.  The proposed amendment covers the following areas (which I borrow from the written submission of the defendants) –

(a) The pre-accident average monthly salary is changed from $9,736.68 to $13,793.

(b) The notional earnings after the accident is changed from $13,968 to $16,797.

(c) The current salary of the plaintiff is increased from $7,300 to $8,100.

(d) The multiplier is increased from 12 to 16.56.

(e) The claim for PSLA is increased from $540,000 to $600,000.

3.  The plaintiff also seeks leave to adduce his supplemental witness statement covering these matters, and the witness statement of 2 new witnesses on the notional earning that he is claiming.  The defendants object to the application.  Parties have filed their respective written submission and supporting affirmation and I have directed the application be disposed of on paper, and this is my ruling.

4.  I believe it cannot be argued that this is a late application.  I first refer to the judgment of Master Ng (as she then was) given in Liu Chen v Chan Poon Wing and another HCPI 779/2006, when she comments on the principle for consideration of late application –

“55. Whether the court should allow a late application for amendment of pleadings, for further discovery or for further witness evidence is a balancing exercise, and the court must exercise its discretion in a fair manner having regard to all the circumstances and the explanation given. Whilst each case must be determined in the context of its own factual and legal matrix, the considerations of the court are largely three-fold:

a. the merits of the proposed application, namely, whether the application if granted will assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” (see Order 1A rule 2(2) of the RHC);

b. the presence or absence of any real prejudice to the other party;

c. any conscious flouting of the rules of court, practice directions and/or case management directions/timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant.”

5.  I would at the same time refer to a more recent judgment by Mr Justice Bharwaney given in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 when His Lordship reminds practitioners the guideline on how to deal with late application for adducing factual witness and amendment to pleadings:

“ 5. Whilst parties are generally free to call factual witnesses of their choice and leave is invariably given at the checklist review hearing to the parties to serve or exchange witness statements, the court’s discretion, whether or not to accede to a party’s late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the court’s management powers and in the light of the objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

  6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application.  These matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties. [my emphasis]”

6.  Hence in relation to late application for adducing supplemental factual evidence and amendment to pleadings, the starting point is for the applicant to show the application would assist the court in coming to a just resolution of the dispute.  And the court would also have regards to other relevant matters including prejudice to the other parties and the underlying objectives of the civil justice reform before exercising the discretion to grant leave.

7.  As I understood, the main objection of the defendants is on the application to amend the pre-accident average earning of the plaintiff and the notional earning of the plaintiff.  I would start with the reason given by the plaintiff for the application and the reason for taking out this application at this late stage.

8.  By an affirmation of the plaintiff filed herein on 8 June 2013, he explains that when he present his earning to his solicitors, he thought the proper method for calculating his average earning for April 2008 to March 2009 is to divide his total earning by 12 (i.e. $117,310/12 = $9,776).  He is now advised by counsel that his earning for the months of June, July, August and December of 2008 are not characteristic of his usual earnings and should not be taken into account in assessing his average pre-accident monthly earning.  And after taking away these months, he relies his earning in the remaining 7 months, when he has earned a total earning of $96,552.24.  Dividing that by 7, the plaintiff claim his average pre-accident earning should be $13,793.17 per month.

9.  The plaintiff explains in his supplemental witness statement that for the months to be excluded, he was on holiday or that he could not work or there is no work available.  Hence in assessing his average monthly earning, these months’ earnings should be excluded.

10.  And as stated by the plaintiff in his 2^nd Affirmation filed herein on 17 June 2013, his historic earning is within the knowledge of the 1^st defendant, as he has been employed by the 1^st defendant for more than 3 years. And from tax return of period before April 2008, his earning is more than $9,590.  The new issue is only on the formula to determine the average earning, which would be a matter of legal argument anyway.  He submits that there is no prejudice to the defendants.

11.  Ms Yip, solicitor for the defendants, argues that the amendment to the pre-accident earnings is a major amendment.  The plaintiff has the relevant information at the commencement of proceedings and he should not have signed the statement of truth if he thought that the calculation is incorrect.

12.  Ms Yip has filed a detail written submission setting out the reason why those months should not be excluded.  I do not intend to go into the details.  At the case management stage, I am not to rule if it is correct to exclude these months.  The matter is whether the proposed issue is arguable and would be relevant for a just resolution of the dispute.  If so, it should be left to the Master who would hear the assessment to decide if it is correct.

13.  I accept the evidence is not new to the parties and there is no surprise to the defendants. The plaintiff’s supplemental witness statement is to explain, among other things, the months when the plaintiff was on leave, or cannot work, and hence has a lower income.  It would be a matter of determination if his evidence is to be accepted and whether those months’ earnings should not be taken into account in assessing the average pre-accident earning of the plaintiff.  The new formula of calculation the average earning would be an issue properly before the Master to fairly and justly dispose of the assessment.  And I cannot say that the formula now proposed is not arguable.

14.  On the notional earning, the plaintiff used to claim that had he not been injured in the accident, he would earn a daily wage of $700, and work 26 days a month.  The plaintiff now seeks to adduce the witness statement of Mr Jagsir Singh, a co-worker at the material time.  And based on the evidence of his earning, the plaintiff now claims that he would have earned $792 a day had he not met with the accident.  Accordingly, there is an amendment to the Revised Statement of Damages.

15.  Ms Yip submits that the plaintiff should have taken out the application much earlier.  For the delay in taking out the application, the plaintiff said it is due to the fact that he only obtains his movement record from the Immigration Department in March 2013, and his solicitors and counsel need time to peruse the same.  This does not fully explain why he has not sought to obtain his movement record earlier, and why he has not take out the application before applying to set down this case for assessment.

16.  The plaintiff also explains that he has been asking Mr Jagsir Singh and Mr Singh Rupinder to be his witness back in December 2011.  They have refused because they were afraid of losing their jobs.  They only agree to be his witness in February 2013, when they have left the employment of the 1^st defendant.

17.  I accept the explanation that the witnesses have refused to give evidence before February 2013.  But when the plaintiff secured the 2 additional witnesses in February 2013, he should then apply for leave to adduce their witness statements.  There is a period of delay unanswered.

18.  While accepting that there is delay, I have to say that the delay is not significant.  His solicitors should have taken out the application latest at the hearing before Master Leong in March 2013.  They only took out the application by summons in May 2013.  There is a delay of 2 to 3 months.  The case has not been set down and there is no disruption to trial.

19.  Ms Yip also argues that the defendants suffered prejudice.  The defendants have assessed their possible liability based on the Statement of Damages and Revised Statement of Damages and have attempted mediation based on those figures.

20.  But in attempting settlement, I believe the consideration of the defendants must be based on the evidence, and their legal advice.  On the defendants’ case, the average earning of the plaintiff is lower than the one he had claimed.  While the plaintiff now claims a high average earning and notional earning, I do not agree that the defendant suffered any prejudice from the amendment.

21.  Further, in respect of the new evidence adduced, in particular the new witness, there is no suggestion that the defendants cannot locate witness to rebut the evidence of the plaintiff and/or his witness, if necessary.  And in any event, the 1^st defendant should have full record of the wages paid to similar workers as the plaintiff, and his witnesses.  I am not with Ms Yip on prejudice.  There is no suggestion that the defendants suffer any prejudice in not being able to answer these new evidence.

22.  I do believe there is any objection to revising the multiplier claimed from 12 to 16.56 taking into account the latest court decision (e.g. Chan Pak Ting v. Chan Chi Kuen & Anr HCPI235/2011).  Ms Yip indeed said it is not necessary and could be a matter of submission.  I agree but if I am to allow the amendment, it should be amended at the same time.

23.  The increase of current salary should be reported to the Master at the assessment.  I believe there is no objection to this amendment, which is to the advantage of the defendants.

24.  As for the increased claim for PSLA, the appropriate sum is again a matter of ruling at the assessment.  It would be for the plaintiff to prove the claim with case law at the assessment.

25.  Balancing all the above, I conclude that the discretion should be exercised in allowing the application.   I give order in terms of paragraphs 1 to 4 of the Summons provided that the Re-revised Statement of Damages should be as per the draft submitted with the letter of Messrs Or & Partners dated 17 June 2013.

26.  The Assessment Bundle has to be revised and the length of assessment has to be re-visited.  I would therefore set a Checklist Review Hearing on 29 August 2013 at 3:30 p.m. to ensure that the case is ready and I would then extend the time for setting down.

27.  The plaintiff seeks to have the costs be in the cause.  I cannot agree.  As to costs, I saw no room for reasonably arguing that the plaintiff should not bear the costs of and occasioned by its application to amend the Revised Statement of Damages, including costs throw away by the amendment and the draft abandoned.  As the applying party, it was the burden of the plaintiff to satisfy the court why discretion ought to be exercised in its favour at this stage.  It was never the burden of the defendants to show why the application should not be allowed. Even for the costs on application for further witness statement, the same consideration applies.

28.  Further, this is a late application.  The applicant should normally be expected to face an adverse order.  And more, the court would not encourage late application and in appropriate circumstances, costs on indemnity basis could be imposed (see Li Xiao Yun & Anor v China Gas Holdings Ltd, CACV 39/2013).

29.  I give an order nisi that the defendants do have the costs of and occasioned by this application and the abandoned drafts in any event to be taxed, if not agreed;  the plaintiff’s own costs be taxed according to Legal Aid Regulations.