TANG SAU KUEN TERENCE v. TAI WAI KIT

HCPI 366/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 366 OF 2003

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APPLICATION for DISCOVERY

REASONS for DECISION

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Background

1. The plaintiff claimed for damages suffered in a road traffic accident.  Judgment on liability was entered by consent on 3 June 2003. Directions were given in relation to Assessment of Damages at a Check List Review on 7 November 2003.  Due partly to the argument on outstanding discovery, the case has not been set down for Assessment of Damages.

2. Initially the court hoped that the parties would be able to resolve the dispute between themselves, but that was not to be.  Eventually at the Check List Review hearing on 29 May 2006, the court gave directions to the defendant’s solicitor to take out a Summons for the requisite discovery.

3. This claim relates to a 44 year old nursing officer who met with a road traffic accident on 17 March 2002.  It is common ground that she suffered whiplash, a fractured rib and Adjustment Disorder with mixed anxiety and depressed mood.  In the original Statement of Damages, a sum of over $8 million was claimed.  A substantial part of that, some $7,380,000 was for future loss of earnings.  It was contended that, but for the accident, the plaintiff would have been promoted to, inter alia, the post of “Director of Operations Manager” with an increase in salary from $58,000 per month to $75,000 per month.  The fact that the plaintiff had not made discovery by listing any documents in support of this huge claim for future loss of earnings was the major bone of contention between the parties.

The Affirmation in support of the Summons for Discovery

4. Discovery is a time consuming and expensive part of litigation. For those reasons the rules seek to limit it to cases where it is “necessary either for disposing fairly of the cause or matter or for saving costs”: O.24 r.8.

5. Although complicated and technical, the procedures set out in Order 24 are designed for the efficient resolution of disputes in an efficient, orderly and fair manner.  If the procedure set out in Order 24 is not adhered to the court will encounter unnecessary difficulties, and may not be able to decide on the matter properly.  In this application, the defendant did not comply with the procedure laid down by O.24 r.7.

6. O.24 r.7 makes it clear that the applicant must depose to the ground or grounds of belief that the respondent has the documents sought.  The rules also stipulate that the applicant must depose to the reason why the production is necessary for the fair disposal of the cause or matter.  Without that information, it is simply not possible for the court gauge or assess the situation properly, and the application itself will fall foul of the procedure provided by O.24 r.7.   

7. At the hearing of the Summons on 6 July 2006, the plaintiff asked the court to dismiss the application on the grounds that the defendant had failed to depose to grounds of belief and failed to state the “magic words” so as to engage the provisions of O.24 in the affirmation in support.  I considered that point.  I felt that although it would not have been wrong to dismiss the application, but dismissal on that technical ground without a full explanation from the court might have set back the date of the assessment of damages even further.  I was acutely aware that the assessment of damages of this claim should have taken place at least 2 years ago.

The problems encountered

8. As stated above, it was unfortunate that the defendant did not state in the supporting affirmation why the documents sought are in the plaintiff’s “possession, custody or power”.  These are three distinct and difficult concepts.  In the absence of knowing the defendant’s grounds of belief in respect of each item sought, the court had to attempt to find whether any of the grounds might exist.  Even while making oral submissions, Ms Lai had not informed the court, in relation to each of the items whether it was alleged to be either in the “possession” or “custody” or “power” of the plaintiff.

9. Aside from the problems referred to above, no Bundle was prepared for the hearing. During the hearing, documents were handed up piecemeal.  Photocopies had to be made sporadically during the hearing to enable everybody to have access to the same copy of the same document at the same time.

The relevant law

10. It is useful to restate here the relevant law. The English Court of Appeal has held that on an application under O.24 r.7 the burden of satisfying the court that production and inspection is necessary lies on the party applying : Dolling-Baker v Merrett [1990] 1 WLR 1205 at 1209.  In this instance, the burden of satisfying the court that disclosure is necessary lay with the defendant.

11. The principles applicable to O24 r7 were set out in the English Court of Appeal decision in Berkeley Administration v McClelland [1990] FSR 381.  They are, inter alia :

1.	There is no jurisdiction to make an order under RSC O24 r7 for the production of documents unless (a) there is sufficient evidence that the documents exist which the other party has not disclosed; (b) the document or documents relate to matters in issue in the action; (c) there is sufficient evidence that the document is in the possession, custody or power of the other party.
2.	When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure.
3.	The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

12. The position in Hong Kong is no different.  At paragraph 24/7/1 on page 450 of Hong Kong Civil Procedure 2006 it states that:

“

..(the application) must be supported by an affidavit stating that in the belief of the deponent the other party has or has had certain specific documents which relate to a matter in question. But this is not sufficient unless a prima facie case is made out for (a) possession, custody or power, and (b) relevance of the specified documents (Astra National Productions Ltd v Neo Art Productions Ltd [1928] WN 218; Wong Wai Chun v Au Yeung Fung Sim and Others [2001] 2 HKLRD G2 CFI; Re Estate of Ng Chan Wah unreported HCAP No.5 of 2003)”

13. An application for disclosure of a total of 21 documents were sought by Summons.  However, just prior to the hearing, the plaintiff gave written notice that she would agree to disclose items 1, 6, 7, 8, 13, 14, 16, 17, 18, 19, and 21 within 49 days.  Consequently I dealt only with the remaining items sought. The details are set out below.

14. Item 2 was an application for:

“	Supporting documents to show the plaintiff’s potential and eligibility for the post of Senior Nursing Officer and/or Director of Operations Manager”

Ms Lai for the defendant submitted that disclosure of the supporting document or documents in relation to this item was necessary as this item made up a substantial part of the $8.4 million claim.

15. Necessity was not made out. A careful reading of the letter from the plaintiff’s solicitors dated 28 February 2006 shows this, because in that letter the plaintiff conceded that the claim was based on the plaintiff’s personal belief that she had the necessary academic qualifications for promotion.  She claimed that she had been acting as Ward IC and believed that being posted as acting Ward IC could only be construed in the circumstances as an “indication” of her chances of promotion.  Since the plaintiff had conceded in that letter that her assertion that she was in line for promotion was based on no more than her possession of certain academic qualifications and the fact that she had been given a key acting position, further application for disclosure of supporting documents would serve no purpose.

16. At this juncture I should remind the parties of the burden of proof.  The claimant has the burden of proving both the fact and the amount of damages, so it follows from that general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it.  As Lord Goddard CJ remarked in Bonham-Carter v Hyde Park Hotel (1948) 64 TLR 177 at 178 :

“

Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court saying : “This is what I have lost, I ask you to give me these damages” They have to prove it.”

17. It should have been clear to the defendant upon receiving that letter that counsel for this plaintiff had simply drafted the hopes and prayers of the client in the manner described by Lord Goddard in the Bonham-Carter case.  There is simply insufficient evidence shown that documents exist which the plaintiff has not disclosed; or that the document or documents are in the “possession, custody or power” of the plaintiff.

18. Item 3

“

Documents showing attempt to search for jobs including but not limited to the post of nurse instructors and/or teaching assistants and tutors in the Nethersole School of University of Hong Kong Nursing, the Chinese University of Hong Kong and the Chinese Nursing, the Hong Kong Polytechnic University School of Nursing; ”

Ms Lai says the defendant seeks this information in relation to mitigation of damages.  But it is noted that the plaintiff’s solicitors had made it clear in their letter dated 28 February 2006 that the plaintiff had not made any allegation of any intention to seek a teaching post.  This matter has not been pleaded by the plaintiff nor alleged in any way by her.  In the circumstances the prerequisite of existence of such documents is not made out.

19. Item 4

“	Documents showing the hierarchy for promotion for nursing officer at Hospital Authority;”

This application is dismissed for the reasons given in relation to Item 2 above.

20. Item 5

“	Documents showing availability of post for the plaintiff at Institute of Advanced Nursing Studies by Hospital Authority;”

This application is dismissed for the reasons given in relation to Item 3 above.

21. Item 9

“	Documents showing whether the plaintiff could be promoted to the post of Director of Operations Manager but for the accident;”

This application is dismissed for the reasons given in relation to Item 2 above.  Not only is there insufficient evidence shown as to the existence of this document or documents, the available evidence indicates that no such documents exist.

22. Item 10

“	Transcript of the hearing for the Medical Board of the Hospital Authority for the plaintiff’s retirement on 21 October 2004;”

Even though it is common ground there was a hearing of the Medical Board, there is no evidence to show that such a transcript exists.  Moreover, the defendant has not deposed to any ground for believing such a transcript exists; nor why such a transcript (if one exists) is in the “possession, custody or power” of the plaintiff.

23. Item 11

“	Documents showing the job duties of the plaintiff undertaken in the ward including but not limited to those containing information if she was required to lift patients or carry out manual strenuous work in the ward or whether such can be avoided;”

Ms Lai submitted that the discovery given so far was merely information relating to the general duties of a nurse holding that position, but the defendant needed to know if such a post was available to the plaintiff prior to her retirement.  Ms Chan replied that a Job Description had been disclosed under Item 70 of the plaintiff’s 4^th Supplemental List of Documents.

24. It was submitted that it would be oppressive for the plaintiff to find out whether she might be excused certain duties if she had been given the job. I agree.

25. Item 12

“	Documents showing the plaintiff’s provident fund details and the amount of provident fund that the plaintiff received after retirement from the Hospital Authority;”

Now it is common ground that a document had been disclosed from the Hong Kong government showing the calculation of the plaintiff’s provident fund payments.  This was Item 44 in the plaintiff’s 1^st Supplemental List of Documents.  Despite having made this disclosure, Ms Lai for the defendant says she wants to understand how the government had calculated the 15%.  In my view it is sufficient for present purposes that the parties have knowledge of the figures relating to the provident fund.  It is not necessary for a party to understand the manner in which the government has made the calculations; it would not save costs or go to the fair disposal of the matter in question to order disclosure for that purpose.

26. Item 15

“	Objective Planning Sheets prepared by the plaintiff and her supervisor in assessment of her work in the ward of the Hospital Authority for a period of 2 years prior to the accident and after the accident up to her retirement;”

Ms Chan says that the plaintiff knows nothing about such documents. Ms Lai has given no ground of belief of the existence of such documents in her affirmation. In the absence of any evidence such documents exist, the prerequisite to O24 r7 has not been made out, and this application fails.

27. Item 20

“	Documents showing the calculation of the plaintiff’s loss of pension including the projected pension loss and the plaintiff’s retirement age and the projected increment;”

It was common ground that the plaintiff had disclosed information relating to her pension fund under item 82 of her 4^th Supplement List of Documents.  Ms Lai submitted that the defendant wanted to know how the calculations in that document were made.  In short, the defendant wanted the plaintiff to obtain a booklet from the government treasury showing how the sums pleaded in paragraphs 17 and 18 of the Revised Statement of Damages had been calculated by the government.

28. As stated under Item 12 above, it is sufficient for present purposes that the parties have knowledge of the figures relating to the pension fund.  It is not necessary for a party to understand the manner in which the government has made the calculations. For the same reasons, this application is dismissed.

Costs

29. I take into consideration that the defendant has failed in relation to all the contested items in this application.  The application was doomed to failure as (a) the affirmation in support did not state the ground or grounds of belief; and (b) did not distinguish between what documents were believed to be in the “possession” or “custody” or “power” of the plaintiff.  In the circumstances the defendant did not bring the application within the provisions or procedure of O24 r7.

30. I also take into consideration the manner in which the plaintiff’s claim has been pleaded.  For instance it took nearly 3 years for the plaintiff to concede that the alleged salary of a Director of Operations Manager at $75,000 was “per her (the plaintiff’s) understanding” only.  In effect, the plaintiff had nothing more than her “understanding” to allege the amount drafted in her Statement of Damages.  Making a claim for over $7 million for future loss of earnings on nothing more than a pious hope, unsupported by documentary evidence in any way has created unfair pressure on the defendant, and no doubt prompted this application for discovery.

31. In the circumstances I find that the fairest costs order to make is for “no order as to costs”.  This order is made nisi for 14 days from the date of handing down, and shall be made absolute unless written submissions are received within that time.