MADAM CHENG WAI MAN AND ANOTHER v. MADAM CHAN YING AND ANOTHER

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JUDGMENT

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Fuad, V.-P.:

1. This is an interlocutory appeal from a decision of Barnes, J. dated 28th July 1989 whereby he allowed an appeal by the plaintiff in this action from an order in the 2nd defendant's favour which had been made by Master O'Donnell earlier that month, on 10th July.

2. A man named Wong Muk Kan, while employed by the 2nd defendant which is a stevedore company, was helping to load a cargo of cotton bales onto a vessel moored in Hong Kong waters on 20th November 1985. The vessel was the "Happy Star" and a gang was loading the cotton bales from a lighter owned by the 1st defendant. When Mr. Wong was working in one of the holds of the "Happy Star" an accident occurred and he was struck by part of the load. He sustained serious injuries from which he died on the following day.

3. The deceased died intestate and his widow as the administratrix of his estate brought an action against the two defendants on behalf of the deceased's estate and for the benefit of his dependents under the relevant Ordinances: respectively the Law Amendment and Reform (Consolidation) Ordinance and the Fatal Accidents Ordinance. The writ was issued on 5th July 1988 and it was endorsed with a Statement of Claim averring negligence, breach of statutory duty and breach of common duty of care against both defendants, and breach by the 2nd defendant of the deceased's contract of employment.

4. The 2nd defendant filed its defence on 20th September 1988. This was amended on 4th October 1988 and re-amended on 30th March 1989.

5. On 13th April 1989, the plaintiff made a request in writing to the 2nd defendant for certain particulars of the defence to be given. These were not supplied, and on 24th May 1989 the plaintiff issued a summons returnable on 30th May seeking an order that the 2nd defendant supply the Further and Better Particulars.

6. The summons was not heard on that day and the matter eventually came before the Master on 10th July. Meanwhile on 3rd July the 2nd defendant had sent the Director of Legal Aid, who was acting for the plaintiff, a 12-page document entitled "Further and Better Particulars of the Re-amended Defence of the 2nd defendant" and with it there was a letter suggesting that the date of the hearing of the summons before the Master be vacated and that a further request for particulars be made if the particulars supplied were regarded as unsatisfactory. This suggestion was not accepted and the hearing went on, as we have seen, on 10th July.

7. At the hearing, counsel appearing for the 2nd defendant took what was called "a preliminary point" which was that the need for the order sought by the summons had been superseded by events because the particulars sought had already been supplied on 3rd July 1989. He argued that it the plaintiff felt that the replies were deficient she should make a new request which would then be considered.

8. It was also contended that as a matter of practice the Court needed a new summons to determine the issue whether or not the 2nd defendant's particulars were deficient; the most the Master could do on that occasion, it was argued, was to grant an order in terms of the summons; the particulars would then be served and the plaintiff would come back with her request. Why it was asked, should the gun be jumped when the 2nd defendant had voluntarily supplied the particulars? The Master was not in a position to test the deficiency.

9. The Master in giving his decision said that since the 2nd defendant had supplied Further and Better Particulars on 3rd July he agreed that the summons was superfluous at that stage because the plaintiff had not responded with another request for Further and Better Particulars of the particulars already supplied nor was there a fresh summons in those terms. In these circumstances, the Master held, the original summons had been superseded by events. He was not inclined to make an order on the summons and he made an order for costs in favour of the 2nd defendant.

10. Both in the Notice of Appeal attacking the decision of the Judge in Chambers and in Mr. Bharwaney's very helpful skeleton arguments this procedural point is stressed as the main one in the appeal. However, after a number of interventions by members of this Court, counsel did not press this ground very strongly although he did not abandon the point. The learned judge rejected the contention which had succeeded before the Master and I think he was clearly right in doing so.

11. Mr. Bharwaney submits that if there was any inadequacy in the particulars which had been given originally in the pleading, and which were supplemented what was furnished on 3rd July, by 19th July, by virtue of the contents of a letter addressed to the Director of Legal Aid by the 2nd defendant's solicitors, any inadequacies, deficiencies or confusion had been put right and it was not a reasonable exercise of the judge's discretion, or it was wrong in principle, for him to make the order appealed against.

12. I have listened carefully to Mr. Bharwaney's submissions. It is quite clear that the judge had a discretion to make the order he made if he considered that the 2nd defendant's pleading omitted to give any particulars which should have been given, or if the particulars given were insufficient or inadequate. In my judgment, it is not possible to fault his reasoning and to disturb the exercise of his discretion. I would dismiss the appeal.

Hunter, J. A.:

13. I agree. Unhappily, it seems to me, in the light of what we were told in argument, to be incontrovertible that the deceased died when a load of cotton bales broke apart in mid-air and fell upon him when he was working in a hold. In those circumstances it seems to me that only three arguable issues can arise at this trial on liability: first: was the method of unloading employed a safe method or not? Secondly: if it was a safe method was it properly carried out and if it was not properly carried out, whose fault was that? And thirdly: with a very big question mark, contributory negligence. I am not quite sure how this man could have done his job in the hold while his eyes were set to the sky to avoid falling bales which is the plea of contributory negligence made against him.

14. Unhappily, in my belief, all the troubles in the pleadings in this case stem from the fact that this defendant, no doubt for good tactical reasons, had declined to make any admission about the simple cause of death. If he had done so he would have a firm basis upon which to raise the pleas he wants to raise of inevitable accident and negligence against the co-defendant. It started with a partial admission and when particulars were sought, that partial admission was sought to be withdrawn and another partial admission substituted; all the particulars, the explanations of the particulars, are given on various layered alternative bases, all to keep open some, I would think, imaginary escape route. It led to the use of ambiguous euphemisms like "the accident" and "the matters complained of" in the pleading which have given rise to all the trouble. The irony of the matter really is that it is the party who has taken that course who now complains about the time and money which has been wasted by the appeals and by the judge's order. In my judgment, they really brought the whole thing on themselves.

15. Like my Lord, it seems to me the Master was quite wrong. If a party wishes to proceed when faced with particulars delivered at the last moment, and invites the Court to say that those particulars are wholly or partly insufficient, the Court has to deal with that matter. It cannot simply say: "You go away and start again" which was the effect of the submission made to the Master.

16. Secondly, the particulars given, in my judgment, were anything but clear; nor were they clarified by the letter of 19th July which in itself is very unsatisfactory procedure. The effect of the judge's order is that there is going to be one document which the trial judge will see incorporating all these particulars and that is what the trial judge is entitled to have.

17. In my judgment, the judge exercised his discretion perfectly properly and there is no possible basis of challenging it on appeal.