HO SUK MAN v. SIT TIM MAU

HCPI 122/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 122 OF 2011

1.  An issue has been raised by Mr Daniel Chan for the defendant in the course of the proceedings for the assessment of damages in relation to the case pleaded by the plaintiff. Mr Chan argues that the plaintiff by her pleadings has limited the scope of the injuries that she claims were caused by the accident. Mr Alexsander Wong for the plaintiff disagrees.

2.  In this case the plaintiff suffered with a pre-existing medical condition of dysplasia of the left hip.  The plaintiff displayed symptoms of this condition after the accident for which liability has been admitted by the defendant.  The plaintiff was also diagnosed to have suffered a left hip labral tear which may have been caused by the hip dysplasia or the accident.  Mr Chan argues that the plaintiff has pleaded her case based on the doctor’s evidence only, who in the second supplementary joint medical report limited his opinion on whether the labral tear was caused by the accident.  He submits that the pleadings do not raise a case that the accident caused the left hip dysplasia to be symptomatic but only that the labral tear was caused by the accident.  He submits that no point is made in the pleadings or in the three joint medical reports that the left hip dysplasia symptoms were caused or triggered or aggravated by the accident.

3.  There are a number of reasons why this application by the defendant fails but before I explain why, let me state some fundamental principles that were recently emphasised by the Chief Justice in Kwok Chiu Wing[1]where he explains the rationale behind pleadings at paragraph 21:

“… The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKC 638, at 643G-H (para6(1)). It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

‘(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues.  Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained.  It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.’”

4.  The Chief Justice referred to similar comments made by Ribeiro PJ in Sinoearn International Ltd [2]who also stressed the importance and purpose of pleadings at paragraph 30:

“…A party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken….”

5.  Ribeiro PJ concluded at paragraph 34:

“Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.”

6.  It is important to stress in light of the underlying objectives of the Rules of the High Court that parties to the proceedings have a positive duty to ensure that the issues for resolution are fully and properly identified. [3] This duty is imposed on both the parties and their legal representatives and therefore it is incumbent on them to make sure that the nature and ambit of the issues in dispute are clearly defined. [4]

7.  The twice revised Statement of Damages addressed the issue of the plaintiff’s pre-existing condition in relation to the assessment of damages which by then became an issue between the parties.  It is without doubt in my view that the plaintiff was claiming damages for the symptoms she suffered from her left hip dysplasia and the left labral tear which she pleaded were caused by the accident.  Whether the plaintiff is entitled to the damages, and to what extent, if at all, is another issue which is the matter for resolution in these proceedings.

8.  The Statement of Damages is a lengthy document which sets out in detail the particulars of the plaintiff’s injuries and her treatment.  The case pleaded from paragraph 11 onwards is clearly in relation to “the plaintiff’s left hip condition” which is referred to as the “hip dysplasia with labrum tear”. It is pleaded that the plaintiff’s doctor is of the view that the plaintiff’s left hip condition was caused by the accident while the defendant’s doctor is of the opposite view.  The plaintiff’s case is reiterated in paragraph 13 setting out the bases for why the hip pain suffered by the plaintiff could be related to the accident and notes that “the plaintiff started to have hip symptoms after the injury.”  The left hip injury as described by the doctor and its impact on the plaintiff is set out in paragraphs 15 and 16.  In paragraph 20, it is stated that the doctor is of the opinion that the hip injury sustained by the plaintiff was causally related to the accident and the bases for this opinion are listed in detail.  The Statement of Damages sets out the heads of damages on the basis of a claim for the symptoms suffered by the plaintiff in relation to the left hip injury and the labral tear.

9.  The defendant is in no doubt as to the nature and ambit of the plaintiff’s case.  In the twice amended Answer by the defendant it is stated in paragraph 10 that the defendant avers that “the plaintiff’s left hip labrum tear and the residual left hip symptoms were not caused by the accident”.  This is repeated throughout the defendant’s answers to the plaintiff’s Statement of Damages.  In paragraph 20A, it is stated that “the defendant contends that the plaintiff’s left hip symptoms and disabilities were caused by her pre-existing conditions that were not caused by or related to the subject accident”.  Also in paragraphs 20A (b) and (d), it is stated that the plaintiff’s left hip symptoms and disabilities are the result of her increasing dysplasia which is developmental and not caused by the accident.  These comments were made with obvious reference to the case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 598 which is the leading authority on the approach to be taken when considering a pre-existing condition when assessing damages.

10.  Mr Chan’s reliance on the second supplementary joint medical report in argument before me is misconceived for two reasons.  First, it is not an issue about the evidence but about the pleaded case.  The case should plead the material facts on which a party relies in support of a claim or defence and should not plead the evidence.  Secondly, it is wrong to place emphasis on only one of three joint medical reports when considering them as a whole it is clear that the plaintiff’s doctor is of the opinion that the symptoms of the left hip dysplasia and the left labral tear were caused by the accident.

11.  The final point to be made in relation to this application is to refer to Mr Chan’s opening submission on quantum which consists of two paragraphs.  The first paragraph states that the defendant adopts his twice revised Answer as his case on quantum and the second paragraph, in telling terms, states that as pointed out in the plaintiff’s opening, “the major issue will be the causation and seriousness of the plaintiff’s symptoms and disabilities”.

12.  If any reliance is made by the defendant that the plaintiff’s pleaded case does not state that the left hip dysplasia symptoms suffered by the plaintiff were triggered or aggravated by the accident, let me disavow such an argument straight away.  The plaintiff’s pleaded case is that the accident caused the left hip dysplasia symptoms and the labral tear.  The words “triggered” or “aggravated” are merely other forms of expression to state that the accident was the cause of the symptoms and injuries that the plaintiff suffered.

13.  For the foregoing reasons, I do not agree with the submissions of Mr Chan and there is no basis to restrict the case of the plaintiff for want of pleadings.

[1] Kwok Chiu Wing v 21 Holdings Ltd and Anor, (unreported) FACV No 9 of 2012, 30 September 2013.

[2] Sinoearn International Ltd v Hyundai – CCECC Joint Venture, (unreported) FACV No 22 of 2012, 30 September 2013.

[3] Rules of the High Court, Order 1A, rule 1.

[4] See also Order 1A, rules 2 and 4 and also Order 1B.