WAN CHOI HA v. THE MENTAL HEALTH ASSOCIATION OF HONG KONG - LUNG HANG CENTRE AND ANOTHER

CACV 186/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 186 OF 1998

(ON APPEAL FROM HCPI 304 OF 1998)

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J U D G M E N T

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Rogers, J.A. :

Introduction

1. This is an appeal from a decision of Seagroatt, J. given on the 8th July this year whereby he refused to allow amendments to a Defence.

2. The Action concerns an accident which occurred in 1991. The Plaintiff was employed at a day-time establishment which catered for mentally retarded patients. On the day of the accident, one of the patients became uncontrollable. On the Plaintiff's version of the incident, she tried to subdue him, that was necessary because the patient had burst into a classroom where the Plaintiff was in charge and had caused a disturbance there and then had run out and clearly further disturbances were likely to take place. In the course of that, the Plaintiff was injured by the patient when the patient kicked her.

3. The Writ of Summons was not issued until 1994, almost exactly three years after the date of the accident. The Statement of Claim followed as did the Defence. Apart from lists of documents which followed quite quickly, the matter then appears to have dragged until the end of last year when the Plaintiff served a Notice of Intention to proceed and after a checklist hearing in February this year, there was a pre-trial review. The defence which had been raised up until that stage was a denial of negligence by the Defendants who were the operators of the establishment and a denial of the substratum of facts in particular the propensity of the particular patient to violence.

4. At the pre-trial review, the Defendants intimated to the Judge that they may wish to amend their Defence. There were available at the pre-trial review, a witness statement on behalf of the Plaintiff and three witness statements on behalf of the Defendants. The statement of the Superintendent of the Centre is irrelevant as far as today's proceedings are concerned, whereas the other two statements are made by colleagues of the Plaintiff who were present on the occasion. The Judge required any amendments to be applied for promptly and that was done. It was as a result of that application that this matter arises.

5. The amendments which are sought are two. The first is an amendment to raise the defence of volenti non fit injuria. It is put upon this basis that :-

"The Plaintiff knew or ought to have known that any attempt to subdue a trainee exhibiting violence and aggression without the assistance of other instructors involved a risk of injury and the Plaintiff in attempting to subdue [the patient] who was such a trainee exhibiting violence and aggression without the assistance of other instructors impliedly consented and agreed to running that risk."

6. The other amendment is that the matters complained of were caused wholly or in part by the Plaintiff's negligence. Again similar allegations are made under the particulars that, for example, the Plaintiff was responsible for forcefully pulling the patient out of the classroom while he was resisting thus causing the struggle and attempting to subdue the patient alone without waiting for the 3 or 4 other instructors present in the vicinity to come to her assistance and so forth.

7. In his judgment, the Judge below first pointed out the lateness of the amendments and, in particular, in relation to the fact that there had been a checklist hearing at which it had been indicated that no further amendment to the pleadings was required. He then pointed out that the original Defence was, as I have indicated, a simple denial of negligence but when that was drafted, the Defendants had available to them all their records and indeed they had the means of interviewing the employees, of checking the records and of knowing in 1994 exactly what their defence was likely to be. He then said :-

"It seems quite clear to me there must be prejudice to a plaintiff after this lapse of time in having to meet an allegation for the very first time, particularly where the allegations are not, in themselves, clear enough as to particulars. Memories do fade. Witnesses do become difficult to trace. It is clear one of the witnesses mentioned by the defendant in a statement is no longer available and it seems to make nonsense, to my mind, of the organisation and preparation of cases, that defendants should be allowed to make amendments of this nature at this extremely late stage. They had plenty of opportunity to do so earlier."

8. Mr. Sakhrani, who has appeared on behalf of the Defendants, has said all he could in favour of his client's case. In particular he relies upon the rule that in the ordinary course of litigation an amendment to pleadings ought to be allowed for the purpose of determining the issue between the parties if no injustice was caused to a party by the amendment and he says that in this case the primary person to answer that allegation which is now sought to be made in the amendment to Defence is the Plaintiff herself and the Defendants have produced 2 witnesses who will be available for cross-examination at the trial.

9. That, in my view, is not sufficient. It is now 7 years or more since the date of the accident, it is difficult enough for witnesses to remember what happened in the heat of the moment, whether it be in a car accident or any other accident, even shortly after the events, but to do so, 7 years later poses considerable difficulties. Furthermore, the Plaintiff's case on the Defendants' Defence did not turn, until the proposed amendments, upon the necessity of the Plaintiff having to require the attendance of other persons who might have been in the vicinity at the date of the accident. It was therefore not necessary until recently for the Plaintiff to trace and interview other witnesses. Although the Plaintiff herself has not filed evidence to show difficulty of tracing other witnesses, the Defendants' solicitor, Mr. Ng, filed an affirmation in support of this application in which it is said :-

"Owing to the lapse of time while the Plaintiff had remained inaction for almost three years i.e. from 9th November 1994 to 12th November 1997, the Defendants have encountered great difficulties in locating information and witnesses."

10. If that difficulty is one which faces the Defendants who have access to all the records and other information relating to their employees, or previous employees, that difficulty must be even greater with regard to the Plaintiff.

11. In my view, the Judge was correct in his approach in saying that the memories fade and witnesses become difficult to trace. The prejudice that would be suffered by the Plaintiff if this amendment were allowed would, in my view, not be compensated by a simple order as to costs. Because of the lateness of this proposed amendment, I consider that the Plaintiff would be prejudiced in the conduct of the case. I see no basis therefore on which the Judge's Order could be reviewed.

12. However, I would go slightly further than that. Mr. Sakhrani on behalf of the Defendants said the Defendants' evidence is complete and is contained in the witness statements to which I have referred. There are two. Neither are those, in my view, could in any way support the allegation of volenti non fit injuria. One of the witnesses said that when the patient entered the classroom he appeared to be trying to find somewhere to hide.

"I can now only recall that the Plaintiff attempted to pull him out of the classroom whilst he resisted, and the Plaintiff fell on the ground in the course of so doing. The Plaintiff rebounded from the ground immediately and kept struggling with [the patient]. There are altogether about 4 to 5 instructors [including the Plaintiff] to subdue the patient at the material time."

13. The other witness whose statement has been served, who was in the vicinity at the time, appears not to have actually seen what happened on the occasion. He says that :-

"The Plaintiff fell on the ground whilst in the course of struggling with [the patient]. However, I did not know the cause of her fall or whether the patient had kicked the Plaintiff."

The witness does say that two instructors and he names them were also present as well.

14. In the light of that, not only would the allegations in paragraph 6 of the proposed Amended Defence be untenable, but many of the allegations in paragraph 7 were as well and I consider that the Judge below was amply justified in saying that, for example, the particulars in (ii), (iii), (vi), (vii) and (viii) would need amplification and I would add that they not only need amplification but they would need evidence which on the basis of the witness statements which have been produced is at present not available.

15. For those reasons, I would dismiss this appeal.

Mortimer V-P:

16. I also agree that this appeal must be dismissed for the reasons given by Rogers JA. I would only add that nothing has been advanced which persuades me in any way that the judge exercised his discretion in this matter wrongly. He found on the clearest indication that making these allegations of contributory negligence against the plaintiff 7 years after the accident in respect of matters which depend entirely upon oral evidence was prejudicial to the plaintiff and to a fair trial. I agree. This appeal must be dismissed.

17. There will be an order for costs to follow the event. Those costs will be taxed in accordance with Legal Aid Regulations.