MA MAN CHUN and MA MAN KAM, the Administratrices of the Estate of FOCK KAM CHAU, Deceased v. FU KA ENGINEERING & CONSTRUCTION LTD AND OTHERS

HCPI 272/2020

[2024] HKCFI 1147

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 272 OF 2020

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DECISION

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Introduction

1.  This personal injuries action arises out of a fatal industrial accident which took place on 10 July 2017.

2.  Three workers died when they worked in an underground hand-dug tunnel in the Hung Hom area. There was a sudden influx of a large amount of foul water and hydrogen sulphide into the underground excavation area where the workers were.

3.  One of them was the deceased in this action, Mr Fock Kam Chau. He was later found unconscious submersed in water. His cause of death was certified to be drowning with the adverse effect of hydrogen sulphide. Mr Fock was survived by his wife and his son, who was about three years old at the time of the accident.

4.  In December 2023, the PI master set the case down for trial on the issue of liability in the running list with three days reserved, to be heard together with another action concerning another deceased worker. The issue of quantum was directed to be tried separately in view of the different circumstances of the two deceased workers.

5.  That other action has since been settled.

6.  Separately, I have been told by Mr Ashok Sakhrani, appearing with Ms Percy Yue for the defendants, that the third worker’s family commenced an action in the District Court but that action was discontinued with no order as to costs in May 2021.

7.  Today is the first day of the three-day trial set down by the master. I directed that the trial should not formally commence as I had preliminary matters to discuss with counsel. The hearing proceeded in chambers this morning.

30 box files of trial bundles

8.  As in other cases put in the running list, bundles and opening submissions were lodged very close in time to the trial. In this case, 30 box files were lodged as trial bundles last Friday. The plaintiffs lodged their opening submissions also last Friday. Yesterday, Monday, the defendants lodged their opening submissions.

9.  Out of the 30 box files, there are about 17 to 18 box files which contain statements given by about 70 individuals in the course of the investigation conducted by the Labour Department over the accident.

10.  I understand that these statements formed the evidence in a trial at the magistrates’ court in which the defendants were prosecuted for a number of offences arising out of the accident.

11.  That criminal trial lasted for 15 days. 30 prosecution witnesses were called, including a number of expert witnesses. The magistrate delivered his verdict in June 2020.

12.  In addition, there are four box files containing transcripts of the trial and the verdict.

13.  In this civil trial, the plaintiffs have elected not to call any live factual witness. The defendants intend to call only one witness who is the project manager of the 2^nd defendant. His witness statement is fairly brief.

14.  Both parties, as I understand it, intend to rely on parts of the evidence adduced in the criminal trial. It is also agreed in the course of today’s hearing that the main issue in this civil trial is the issue of reasonable foreseeability of the influx of foul water into the excavation area.

The case is not ready for trial

15.  Having reviewed the materials before me within the short space of time available, I consider that it is necessary to adjourn the trial in view of the present state of the evidence. The case was plainly not ready to be set down for trial, let alone to be set down in the running list.

16.  A number of case management directions are plainly required in order to identify, sort out and put together the evidence which the parties wish to rely on. This applies to both factual and expert evidence.

17.  Until that is done properly, this case is not ready to proceed to trial. And I reach this conclusion for the following reasons.

18.  The defendants were acquitted of all the charges in the criminal trial, and by that I mean all the charges which overlap with the material issues in this civil trial. Hence, section 62 of the Evidence Ordinance does not apply.

19.  What the parties have so far done here is to lift the entire set of written evidence and transcripts of the criminal trial and include the whole set here wholesale in the trial bundles. But this is not a case where every piece of the evidence in the criminal trial is relevant here.

20.  For the proper conduct of this civil trial, it is necessary for the parties to identify and select in advance of the trial the material and relevant parts of the criminal evidence to be used here. To the extent that the facts are agreed, the proper thing to do, I would think, is to put together a list of agreed facts. To the extent that the facts are not agreed, it will be conducive to the trial judge’s evaluation of evidence that some form of table, for instance in the form of a Scott schedule, be compiled.

21.  In the schedule, the parties’ pleas should be set out. Against each plea, the evidence for and against that assertion should be referenced. Furthermore, the magistrate’s finding, if any, should be reproduced against that plea.

22.  It is accepted by both parties today that the magistrate’s findings are not binding on the civil court. Even though the evidence given in the criminal trial were given on oath, nonetheless in this civil trial, I would think that as a matter of principle, they are hearsay evidence.

23.  The question for me, if I proceed with the trial, is how to treat such evidence which were adduced in the criminal trial and which are now relied upon by the parties.

24.  If a Scott schedule in the form that I have just outlined had been prepared before today, it would have been very clear to me the precise scope of the factual disputes between the parties. Then I would have been in a much better position to see how such factual disputes should be resolved. But that exercise was not done. As the trial judge, if I am to proceed with the trial, in theory I would be required to go through the 18 boxes of materials and the four boxes of transcripts in order to understand the evidence adduced in the criminal trial.

25.  As far as the expert evidence is concerned, in the usual course of things, in a civil trial, expert directions would be given. The precise issues on which expert’s opinions are required would be identified. The experts would prepare their respective reports. That would be followed by a without prejudice meeting. A joint expert report would then be compiled. And, in that report, it would be laid out clearly what opinions are agreed and what opinions are not agreed. Based on such information, a master or a judge can then decide whether there is any need to call upon the experts to attend the trial to be cross-examined.

26.  Again, this was not done here.

27.  I am told that the main experts in the criminal trial and in this civil trial would be Professor Endicott, who was the prosecution’s expert in the criminal trial, and Dr James Lau, who was the expert for the defendants.

28.  In December last year, master gave the following directions:

“Subject to the directions of the Trial Judge, the following reports and documents and the opinions expressed or made therein be admissible at the trial without calling the makers …”

29.  That was followed by a list of 12 expert reports used in the criminal trial. At this stage, I have absolutely no idea precisely what issues those experts in the criminal trial had opined on, what was agreed and what was not agreed between them in the criminal trial.

30.  Therefore, there is no way for me to know whether I can resolve the differences between the parties’ experts without cross-examination. The expert evidence is of course a material part of the evidence in this civil trial. It clearly has a material impact on the resolution of the issue of reasonable foreseeability. The expert evidence is simply not ready for use by the trial judge. This is another reason why the case was not ready to be set down for trial.

31.  All the above issues, both factual and expert, ought to have been highlighted sufficiently to, and thrashed out before, the master so that she could make the proper case management directions to manage the evidence which would be presented at the trial, and the manner in which such evidence should be presented to the trial judge.

32.  I have been told this morning that at the checklist review hearing in December, master took the view that because there is only one factual witness in this civil trial and that witness has only one very brief witness statement, and everything else is on paper, hence it was appropriate to put this case into the running list and that would also facilitate an early trial date. That is where I think the matter has taken a wrong turn.

33.  This ruling ignores the fact that voluminous evidence was adduced at the criminal trial. It is simply not right to put everything before the trial judge. Effectively, it is asking the trial judge to sit through the criminal trial from start to finish, but on paper. The evidence, both factual and expert, needs sorting out before the trial. That has not been done and therefore, the case is not ready to proceed to trial.

34.  Lastly, another reason for adjourning the trial is about the pleadings. Mr Patrick Lim, appearing with Ms Karen Choi for the plaintiffs, accepts in the course of today’s hearing that the statement of claim needs to be amended. That must be right. Mr Lim’s opening submissions plainly go beyond the scope of the plaintiffs’ pleadings.

35.  This cover, importantly, the cause of the water inflow, the source of such water inflow, and the incidents which would arguably make it reasonably foreseeable that there was a risk of such water inflow.

36.  A draft amended statement of claim cannot be readily produced today or within the next two days. So time needs to be given to the plaintiffs to put together that application, if they so wish. This is another reason why the trial needs to be adjourned.

Orders

37.  For the above reasons, I make the following orders.

(1)  Unless by 4pm on 14 May 2024, the plaintiffs do take out an application for leave to amend the statement of claim to reflect their case as disclosed in their opening submissions (to be annexed with a draft amended statement of claim and accompanied by an affidavit setting out a list of available evidence to support the proposed amendments), the plaintiffs be debarred from taking out any application to amend their pleadings.

(2)  The above application be returnable before the PI judge.

(3)  Parties do jointly write to the PI judge to fix a directions hearing in consultation with counsel’s diaries within 14 days after (a) the above deadline (if no application is taken out) or (b) the disposal of the above application.

(4)  The trial scheduled to commence on 16 April 2024 be adjourned and the trial dates of 17 and 18 April 2024 be vacated.

Going forward

38.  Lastly, I also wish to record that in today’s hearing, I have asked parties to consider whether the master’s direction that the issue of liability and the issue of quantum be tried separately should be set aside. That would be para 4 of her order made on 14 December 2023.

39.  I am given to understand that the original reason for a split trial was that this action was supposed to be tried together with the other action when the circumstances of the two deceased workers are different. But now that the other action has been settled, I ask parties to consider whether going forward, this action should be tried with both the issues of liability and quantum to be considered together in one single trial.

40.  Mr Lim agrees but Mr Sakhrani disagrees. I understand that his reason is that the quantum issue is not straightforward. I am not going to make any order to set aside the master’s split trial direction but I would be inclined to think that the quantum issue is not a complicated one and there appears to be no justification for the split trial direction to stand.

41.  So those would be my reasons for vacating the trial. Based on those reasons, I will hear arguments on costs.

(Submissions re costs)

42.  These are my orders on costs:

(1)  As regards (a) costs of today’s hearing and (b) costs thrown away by the adjournment of the trial, half of the costs be paid by the plaintiffs to the defendants and half of the costs be costs in the cause.

(2)  The plaintiffs’ own costs be taxed in accordance with the Legal Aid Regulations.

(3)  There be a certificate for one counsel only.

Brief reasons for the costs orders

43.  One of the reasons that I adjourn the trial is to give time to the plaintiffs to consider applying to amend their pleadings. Where the adjournment is attributable to this reason, the defendants should have costs. I would make the apportionment of 50%.

44.  As to the other 50%, the reason why I adjourn the trial is because the case is simply not ready to proceed to trial. On this, I think both parties need to bear the responsibility. Both parties are under a duty to assist the court in case management. While there is some force in Mr Sakhrani’s submission that it is the plaintiffs’ case and therefore it is for them to put everything in order, but, ultimately, I think the fairer order for this other half of the costs should be costs in the cause.