HEUNG KWUN HUNG v. SO WAI TIM AND ANOTHER

DCPI 759/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 759 OF 2010

--------------------

BETWEEN	HEUNG KWUN HUNG	Plaintiff
	and
	SO WAI TIM	1st Defendant
	HONG KONG & CHINA TRANSPORTATION CONSULTANTS LIMITED	2nd Defendant (Discontinued)

---------------------

Coram : Deputy District Judge Grace Chan in Chambers (open to public)

Date of hearing : 3 October 2011

Date of handing down decision : 7 October 2011

---------------------

DECISION

---------------------

 

Introduction

1.  This is an appeal by the 1^st Defendant against the decision of Master J. Chow made on 20^th July 2011 in respect of the 1^st Defendant’s application for an order for specific discovery under Order 24 rule 7 of the Rules of District Court (“RDC”) before defence is filed.

2.  This action concerns a traffic accident which took place on 1^st June 2007. But the discovery sought is in relation to a traffic accident happened on 15^th July 2007.

3.  The learned Master refused to order specific discovery in respect of documents listed as items (a) to (d) and (g) specified in the Schedule annexed hereto. She, however, allowed specific discovery in respect of items (e) and (f) in the Schedule, which are documents relate mainly to the question of quantum. No appeal has been made on items (e) and (f).

4.  During the hearing before me, Mr. Sakhrani for the 1^st Defendant confirms that the 1^st Defendant now abandons its application for items (c) and (d) in the Schedule. He would trim down his request in respect of item (g), in that he would now ask for an affirmation of the Plaintiff to confirm whether there exist any pre-action demand letters, and letters evidencing without prejudice negotiations and/or agreement (“amended item (g)”). This appeal thus concerns only:

(1) item (a), being statements made by the Plaintiff  to the police;

(2) item (b), being the statements made by the other witnesses to the police including the statements made by the investigating police officers of the Schedule; and

(3) amended item (g), being the affirmation of the Plaintiff described in this paragraph.

Background

5.  This is a personal injuries action involving a rear-end traffic accident. The Plaintiff was driving his car around midnight of 1st June 2007. When he was left-turning from Nathan Road southbound into Pitt Street, he saw three pedestrians about to cross the road ahead of him. He stopped immediately to give way. The 1^st Defendant could not stop his public light bus in time and hit into the rear of the Plaintiff’s car (“the Subject Accident”). As a result, the Plaintiff sustained neck injury.

6.  The 1^st Defendant was charged with, and on his own plead, convicted of careless driving in relation to the Subject Accident.

7.  During later exchange of correspondences between the parties and from the documents disclosed by the Plaintiff to the 1^st Defendant, it was revealed that within a period of 6 months between 12^th January 2007 and 15^th July 2007, the Plaintiff  met altogether 3 traffic accidents as follows:-

(a)  On 12^th January 2007 (“the Prior Accident”);

(b)  On 1^st June 2007, i.e. the Subject Accident;

(c)   On 15^th July 2007 (“the Subsequent Accident”).

8.  The Plaintiff has, on the 1^st Defendant’s request, already disclosed some documents relating to the Prior Accident. The police statement(s) made by the Plaintiff revealed that the Prior Accident happened in a similar manner as the Subject Accident, i.e. when the Plaintiff was driving from a main road into a side road, the Plaintiff had to stop to give way to some pedestrians crossing the road ahead of him. At that juncture, the Plaintiff was hit by the vehicle from behind.

9.  From the medical notes of Dr. Wong Shu Kai disclosed by the Plaintiff to the 1^st Defendant, the 1^st Defendant came to know, for the first time, that the Plaintiff met the Subsequent Accident 1.5 months after the Subject Accident. The 1^st Defendant also came to know that the Subsequent Accident occurred during the sick leave period of the Subject Accident. Dr. Wong’s medical notes also revealed that the injuries suffered by the Plaintiff in the Subject and Subsequent Accidents are alike, being neck injury.

Legal principles

10.  Being an appeal, I deal with the matter as a rehearing of the application which led to the Order of the learned Master under appeal. And I am not bound by the decision of the learned Master in any respects.

11.  It is trite law that a party may apply for an order requiring any other party to make an affidavit stating whether any document or any class of document specified or described in the application is or has at any time been in his possession, custody or power, when he parted with it and what has become of it (see Order 24 rule 7 of the RDC).

12.  But if the court is satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, it may dismiss or adjourn the application, and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs (see Order 24 rule 8 of the RDC).

13.  There is no jurisdiction to make an order under Order 24 rule 7 for the production of documents unless (a) there is sufficient evidence that 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.  When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure (See Hong Kong Civil Procedures 2011 Vol. 1 para. 24/7/1 at pp. 548).

14.  Further, if specific discovery is sought before close of pleadings, the applying party must show exceptional circumstances. In Wong Hon Wai v The Secretary of Justice, unrep., HCPI 664 of 2009, Master Marlene Ng has provided a very clear and comprehensive analysis on the legal principles for specific discovery before a statement of claim is filed and served [the same principles should apply to specific discovery before defence is filed and served]. The learned Master states in para. 25 as follows:-

“There is jurisdiction to order specific discovery even before service of the statement of claim, but the making of such an order generally calls for definition of the issues. Such order should not normally be made and the practice is to refuse discovery before close of pleadings save in exceptional circumstances because until at least a statement of claim has been delivered the court can seldom know what the matters in question in the action are. It is generally inexpedient and unnecessary to order discovery until the issues have been defined by the pleadings (see Hong Kong Civil Procedure 2011 Vol.1 paras. 24/3/5 and 24/7/1 at pp.529 and 549).” (emphasis added)

15.  It is also stated in Hong Kong Civil Procedure 2011 Vol.1 para. 24/7/1 at p. 549 the following:-

“Specific discovery before defence may be ordered where it is nearly certain that a defence of a particular nature will be raised and the discovery sought would enable the defendant to plead with particularity rather than by an initial bare denial.” (emphasis added)

16.  In view of the legal principles set out in the preceding paragraphs, the 1^st Defendant must show to me, in so far as this appeal is concerned, that the documents requested for are (1) within the Plaintiff’s power to disclose; are (2) relevant to matters in issue; and (3) there are “exceptional circumstances” in this case and 1^st Defendant has a nearly certain defence so that I should order discovery at this stage (instead of waiting until close of pleadings when automatic discovery will take place ) to enable the him to plead his defence with particularity.

The 1^st Defendant’s argument

17.  Quite unlike the argument put forward by the 1^st Defendant before the learned Master, which focused on fraud and malingering on the part of the Plaintiff, Mr. Sahkraini for the 1^st Defendant puts forward an argument of “similar facts evidence”.

18.  His argument runs like this: I do not have to consider if the 1^st Defendant would run a defence of fraud or not, for the 1^st Defendant will run a nearly certain defence of negligence and contributory negligence on the part of the Plaintiff (“the Negligence Defence”) (this is without prejudice to the possible defence of fraud). And on this Negligence Defence alone, the 1^st Defendant is entitled to items (a) and (b) because such documents, if disclosed, will enable the 1^st Defendant to plead the Negligence Defence with particularity, e.g. whether the Plaintiff demonstrated an unsafe habit of stopping his car suddenly and without warning. The 1^st Defendant also needs the amended item (g) to decide if a plead of giving credit in respect of the damages received by the Plaintiff  in the Subsequent Accident should be made in the defence.

19.  Mr. Sahkrani refers me to Yu Kai Ming v Wing Lee Scaffolding Works Company Limited, unrep., HCPI 1107/2002, citing Lord Bingham in O’Brien v Chief Constable of South Wales Police [2005] UKHL26, and R v Ross 121 Can Crim Case 284 in support to his argument that evidence of similar facts previous as well as similar facts subsequent should be adduced.

20.  He further adds that the learned Master has found “exceptional circumstances” on the documents relating to quantum. The same rational should have been extended to the documents on liability.

The Plaintiff’s argument

21.  It is submitted by Ms. Yang for the Plaintiff that the purpose of the 1^st Defendant’s application is to see if it can make out a defence of fraud. But there is not any satisfactory evidence of fraud here. She argues that the relatively short period of driving experience of the Plaintiff (he had only ½ year of driving experience at the time of the Prior Accident) would make it factually implausible for the Plaintiff to engineer the said 3 traffic accidents for the purpose of exaggerated claims.

22.  She further submits that the 1^st Defendant has not demonstrated “exceptional circumstances” or a nearly certain defence in order to trigger off an order for discovery before defence is filed. The whole exercise is a fishing expedition of the 1^st Defendant. She relies on Bank of India v Godindram Narindas Sadhwani, unrep., HCA 4939 of 1983 and HKFE Clearing Corp Ltd v Yicko Futures Ltd [2006] 2 HKC 23 to support her argument.

23.  She also refers to Wong Hon Wai (supra) quoting Re the Estate of Ng Chan Wah, HCAP 5/2003 in which Chu J (as she then was) pronounced that:

“… It is not the purpose of discovery to give the plaintiff [or in the present case, the defendant] an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the defendant’s part or will provide information for them to pursue more enquiries.”

24.  As to whether the documents sought are within the Plaintiff’s power to disclose, Ms. Yang concedes that the police statement of the Plaintiff (item (a)) is within the Plaintiff’s possession and power to disclose. But the Plaintiff does not have power to disclose the police statements of the other witnesses (item (b)), as the police is unwilling to disclose the same to the Plaintiff unless a written consent from the respective statement maker(s) is provided. 

Specific Discovery

25.  I turn now to deal with each item of discovery.

Item (a) statements made by the Plaintiff to the police &

Item (b) statements made by the other witnesses to the police including the statements made by the investigating police officers

26.  Since both items of documents are of similar nature, I shall deal with them altogether.

27.  I am of the view that both items of documents are within the Plaintiff’s power to disclose. No explanation is required on why item (a) is within the Plaintiff’s power to disclose, as this is the Plaintiff’s own police statement.

28.  I do not agree with Ms. Yang for the Plaintiff that item (b) is not within the Plaintiff’s power to disclose. Since the case of Lily Tse Lai Yin & Ors v The Incorporated Owners of Albert House and Ors, HCPI 828/1997, the law has become clear that remedying a civil wrong falls within the ambit of Section 58 (1) (d) of Personal Data (Privacy) Ordinance, Cap. 486. Thus the Plaintiff should be able to make a data access request to the police for item (b) and obtain the documents. In this sense, item (b) must be within the Plaintiff’s power to disclose.

29.  The crust of Mr. Sakhrani’s submission relates similar facts evidence to the Negligence Defence, but not to fraud (at least not at this stage). What Mr. Sakhrani is essentially saying is this: the 1^st Defendant requires the information of how the Subsequent Accident happened in order to plead, with particularity, negligence and contributory negligence of the Plaintiff in the Subject Accident.

30.  Although Mr. Sakhrani has submitted to me a very tempting argument, I have to say that I am not persuaded by him. I think the argument of similar facts evidence does not sit well with the Negligence Defence.

31.  In my view, similar facts evidence goes to show one’s intention or knowledge of a risk rather than pure negligence. If the 1^st Defendant’s argument at this stage before me is to relate similar facts evidence to the Negligence Defence only, I then cannot see how the police statements relating to the Subsequent Accident are relevant and necessary at this stage for the purpose of pleading the Negligence Defence. They would be relevant if the 1^st Defendant wants to make some allegation on the intention and knowledge of the Plaintiff of a particular risk in any or all of these traffic accidents. But this is not (or at least not yet) the argument of the 1^st Defendant before me in this appeal.

32.  That being the case, I must say, with respect, that the argument of the 1^st Defendant on the similar facts evidence is a red herring. It is, in a true sense, a fishing expedition to see if an allegation of intentional act(s) (as opposed to negligent act(s)) and/or fraud on the part of the Plaintiff can be made out.

33.  If I was wrong on the above analysis, I take the view that the particulars of the Plaintiff’s negligence/contributory negligence are already well within the own knowledge of the 1^st Defendant. In paragraph 28 of the Affidavit of Chan Miu Lan Anita filed on 4^th April 2011, the 1^st Defendant has clearly set out his case and alleged negligence of some degree, if not all, on the part of the Plaintiff :

“… the Plaintiff suddenly cut from the 2^nd lane into the 1^st Defendant’s 1^st lane of Nathan Road and then immediately turned left into Pitt Street when the Plaintiff stopped the P’s [Plaintiff’s] car abruptly without prior warning and knew that the 1^st Defendant would be unable to stop the D’s [Defendant’s] PLB in time.” (emphasis added)

34.  The 1^st Defendant does not require, at least not at this stage, to know how the Subsequent Accident took place in order to plead the Negligence Defence with particularity.

35.  I therefore refuse to order discovery of items (a) and (b).

Amended Item (g) affirmation of the Plaintiff to confirm whether there exist any pre-action demand letters, and letters evidencing without prejudice negotiations and/or agreement

36.  The submission made on behalf of the 1^st Defendant does not focus too much on this amended item (g).

37.  In any event, I do not think that this item of document is necessary for the 1^st Defendant to plead its defence on quantum with particularity at this stage. The 1^st Defendant can simply plead giving credit to damages, if any, received by the Plaintiff arising out of the Subsequent Accident. I cannot see how such drafting would make the 1^st Defendant in breach of the underlying principles of the Civil Justice Reform and/or Order 18 of the RDC.

38.  Besides, the Plaintiff’s solicitors have already by way of the affidavit of Lee Ka Chun Peter (as the handling solicitor of this action) deposed that the Plaintiff has not made any claim in respect of the Subsequent Accident. It does not seem to me that the 1^st Defendant is challenging the truthfulness of this affidavit.

39.  In any event, the same can be dealt with by way of interrogatories after close of pleadings. 

40.  The discovery of amended item (g) is thus refused pursuant to Order 24 rule 8 of the RDC.

Costs

41.  In the hearing, I have asked parties to make initial submission on costs. Mr. Sahkrani says that costs should follow the event. Ms. Yang does not seem to object to this. Both agree that there should be summary assessment of costs by me.

Conclusion

42.  Due the matters aforesaid, I shall dismiss the appeal against the Order made by Master J. Chow dated 20^th July 2011.

43.  I shall make a costs nisito the effect that the Plaintiff do have costs of the appeal.

44.  If no application is made to vary the costs order nisi within 14 days from today, the said costs order nisi will be made absolute. The following directions will then apply:-

(a) the Plaintiff do within 7 days from the date of the costs order absolute lodge and serve statement of costs;

(b) the 1^st Defendant do within 7 days thereafter lodge and serve summary of objections;

(c) In lieu of agreement on the amount of costs between parties, the Plaintiff do within 21 days from the date of the costs order absolute fix a date with the Listing Clerk for summary assessment of costs to be heard before me in chambers (open to the public) with 30 minutes reserved.

(Grace Chan) Deputy District Judge

Ms. Elizabeth Yang, instructed by Messrs. Au Yeung, Cheng, Ho & Tin, solicitors for the Plaintiff

Mr. Ashok K. Sakhrani, instructed by Messrs. Y. T. Chan & Co., solicitors for the 1^st Defendant

---

Schedeule

In respect of the traffic accident on 15^th July 2007 in which the Plaintiff was injured:-

(a) The statements made by the Plaintiff to the Police.

(b) The statements made by the other witnesses to the Police including the statements made by the investigating police officer.

(c) The sketch plan of the scene of the accident.

(d) The photographs of the scene of the accident,

(e) All the sick leave certificates issued to the Plaintiff.

(f)  The medical reports and medical notes in relation to the consultation for medical treatments for neck and back pain or discomfort from 15 July 2007 up to date.

(g) The documents setting out the particulars of the claim or quantification of damages in relation to the claim for damages including but not limited to the pre-action demand letters, without prejudice negotiation of settlement and court documents.

 

DCPI 759/10

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION DCPI 759 of 2010

________________________________

BETWEEN
	HEUNG KWUN HUNG	Plaintiff
And
	SO WAI TIM	1st Defendant
	HONG KONG & CHINA TRANSPORTATION CONSULTANTS LIMITED	2nd Defendant
	(Discontinued)
__________________________________

 

Coram: Before Master J Chow (Open to Public)

Date of Hearing: 13^th June 2011

Date of Handing Down Decision: 20^th July 2011

 

___________________

DECISION

___________________

 

 

Introduction

1.  The 1^st Defendant applies for specific discovery that the Plaintiff do file an affidavit stating whether the documents specified in the schedule[1] to the summons or have at any time been, in his possession, custody or power, and if not been in his possession, custody or power when he parted with them and what has become of them (“the Schedule”).  The Plaintiff resisted the summons.

2.  The 1^st Defendant’s application was premised on Order 24 rule 7 of the Rules of District Court,

“Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and, if not then in his possession, custody or power, when he parted with it and what has become of it.”

         Order 24 rule 8, gave power to the Court if,

“On the hearing of an application for an order under rule 3 or rule 7, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.”

Background

3.  The personal injury claim arose from a traffic accident occurred around midnight on 1^st June 2007. Both the Plaintiff and the 1^st Defendant were driving, respectively, a private car bearing registration number KZ 730 (“the Private Car”) and a public light bus bearing registration number LB 1256 (‘the PLB”) along the 1^st lane, southbound of Nathan Road. The Plaintiff was followed by the 1^st Defendant. On reaching the junction of Nathan Road and Pitt Street, the Plaintiff turned left and then stopped to give way to three pedestrians who were about to walk across Pitt Street. The 1^st Defendant was unable to stop in time, the nearside front of the PLB collided with the rear of the Private Car (“the Subject Accident”).  The Plaintiff sustained neck and back injuries.

4.  The Plaintiff’s solicitors filed a Statement of Claim and Statement of Damages on 28^th Feb 2011; the 1^st Defendant’s solicitors filed an acknowledgement of service on 4^th March 2011.  The 1^st Defendant took out a summons for the present application on 4^th April 2011 before filing the Defence.  

The 1^st Defendant’s Application

5.  Ms Chan, solicitors for the 1^st Defendant, submitted she was in need of the documents in the Schedule to formulate the 1^st Defendant’s defence, which has been crystallized as: (i) fraud and (ii) malingering acts on the part of the Plaintiff.   

6.  To understand why the 1^st Defendant framed the issues with fraud and/or allegation of malingering acts in this personal injuries claim, Ms. Chan has taken me through the background of the Plaintiff’s conduct in two other similar traffic accidents occurred in the same year.

Accident happened on 12^th Jan 2007(“the 1^st Accident”):

(i)  The Plaintiff was injured in a rear end traffic accident. He was driving a motorcycle making a turn at the junction of Yum Chau Street and Fuk Wing Street. While he stopped to give way to pedestrians crossing the road ahead of him, the following vehicle could not stop in time and collided with the Plaintiff’s motorcycle.

(ii)    The Plaintiff commenced a personal injury claim, DCPI 946 of 2008 to claim damages against the driver of the following vehicle. The claim was eventually settled. 

(iii)    In that, the Plaintiff’s pleaded case DCPI 946 of 2008 and the present action were not in line with each other, more particularly, monthly income and resumption of previous job.

  Accident happened on 1^st June 2007 (The Subject Accident)

(i)   The facts were similar facts with DCPI 946 of 2008.

  Accident happened on 15^th July 2007(“the 3^rd Accident”)

(i)   The 1^st Defendant became aware of the 3^rd Accident in a medical report prepared by Dr. Wong Shu Kai dated 16^th December 2010[2], other particulars of this accident were not disclosed.

7.  Ms Chan submitted the Plaintiff’s acts were suspicious. The facts of the 1^st and the Subject Accident were similar. She alleged the Plaintiff was bringing false claims for damages against the 1^st Defendant. She was eager to obtain information on the 3^rd Accident, which happened few months after the Subject Accident.

8.  Ms Chan further submitted, the Schedule identified those usual documents that the Plaintiff must have obtained in a traffic accident, she believed the documents existed and the Plaintiff should have access to them. Discovery before defence is also a costs saving exercise when future amendment can be prevented.

The Plaintiff’s Objection

Timing of the Application

9.  Ms Yang, counsel for the Plaintiff, submitted it was procedurally wrong to allow discovery for the Defendant before defence, it is more particularly so when the Defendant has made clear that information obtained was vital for them to plead their defence.

10.  An authority on point is Wong Hon Wai v. The Secretary of Justice (HCPI 664 of 2009, unreported, 24^th June 2011), Master Marlene Ng decided “such order should not normally be made and the practice is to refuse discovery before close of pleadings save in exceptional circumstances”[3]. Ms Yang said, the 1^st Defendant’s application fall outside the ambit of the category of exceptional circumstances.

Fishing Request

11.  It follows the 1^st Defendant is attempting a fishing request as discussed in Wong Hon Wai.

“This is no doubt that discovery will not be ordered for the purpose of “fishing” or to enable a party to turn a non issue into an issue (See HKFE Clearing Corp Ltd. v.Yicko Futures Ltd [2006] 2 HKC 233). In Re the Estate of Ng Chan Wah, Chu J stated that “[it] is not sufficient for the plaintiffs to say that because there is on the pleading allegation of improper conduct against the defendants as executors, they are entitled to test the basis of the estate accounts generally or to check the accuracy of the items presented in the estate accounts, irrespective of whether they are in issue. It is not the purpose of discovery to give the plaintiffs an opportunity to hunt around documents in the hope that they will reveal some improprieties on the defendants’ part or will provide information for them to pursue more enquires.”

12.  The HKFE Clearing Corp Ltd. case, Yuen JA enunciated the same principle,

“What a company is seeking is discovery of materials to see if it might be able to turn a non-issue into an issue. That is not permitted under the principles of discovery, and especially not when the purpose is to see if an allegation of fraud can be made. It is well established that a party should not be allowed to plead a vague case and unparticularised case of fraud in the hope of making it good after discovery.”

 The Class of Documents: Police Documents, Sick Leave Certificates & All Documents relating to claim arising from the 3^rd Accident.

13.  Ms Yang said the documents referred to in the Schedule bear no relevance in formulating the 1^st Defendant’s defence.

Analysis

14.  The issues to be decided are (i) whether the 1^st Defendant’s reasons justifies an exceptional circumstance to grant discovery before filing defence; (ii) if so, whether the documents in the Schedule are of relevance.

15.  When the 1^st Defendant sets out a prima facie case, the burden shifts to the Plaintiff to prove why discovery either by list or by affidavit is unnecessary.

16.  The Plaintiff’s case did not disclose relevant medical evidence: in the Plaintiff’s Statement of Damages, he pleaded he had obtained sick leave from June to August 2007. In other words, the 3^rd Accident occurred during the sick leave period of the Subject Accident.  In fact, sick leave was further granted until 7^th October 2007. But surprisingly, he did not plead the extension of the sick leave period therein.

17.  The Plaintiff failed to disclose his past illness and/or the alleged injuries sustained in the Subject Accident and the 3^rd Accident to

(i) the physiotherapist of Prince of Wales Hospital on 28^th June 2007 with regard to the Subject Accident that he has medical history from the 1^st Accident. The medical notes revealed “NIL” under this head.

(ii) Dr. Fu Wai Kee, the orthopaedic expert of the 1^st Accident. Nothing was mentioned in his expert report dated 31^st May 2011 with regard to both the Subject Accident and the 3^rd Accident. Dr. Fu was driven to the conclusion that the upper limb weakness, numbness and soft tissue injury was a result of the 1^st Accident and concluded the Plaintiff has reached maximum medical improvement.

18.  The previous personal injuries claim about his loss of earnings was inconsistent with present action.  On the one hand, in DCPI 946 of 2008 he has resumed work as a clerk of 銀振工程公司 from June 2007 at $8,900 per month; for the same overlapping period, he claimed loss of 3 months’ earnings in the present action from 5^th June 2007 to 6^th September 2007 at $8,000 per month for the same period. 

19.  Having encountered the 3^rd Accident, surprisingly, the Plaintiff did not plead the Subject and 3^rd Accident in his Revised Statement of Damages in DCPI 946 of 2008.

20.  Albeit the Plaintiff’s driving manner and the occurrence of three accidents may justify some scrutiny, it is nevertheless too far-fetch and premature to conclude the Plaintiff is a malingerer. 

21.  I am satisfied that the 1^st Defendant is able to put up a prima facie case, the 1^st Defendant is entitled to discovery of documents to formulate his defence to the extent of damages claimed by the Plaintiff. This falls into an exceptional circumstance.

What documents are of relevance?

22.  The scope should be limited to the documents indicating the Plaintiff’s injuries in the 3^rd Accident.  

(i) Documents relating to the 3^rd Accident (paras (a) to (d) of the Schedule)

23.  Those documents concerned the occurrence of the 3^rd Accident. I agree with Ms Yang that they are not relevant for the 1^st Defendant to formulate the defence.  As I have said, at this stage, the 1^st Defendant has pitched his case too high to allege fraud on the part of the Plaintiff by comparing the occurrence of the three accidents.  The 1^st and 2^nd Defendants could have relied on the facts of the 1^st Accident and the Subject Accident.

24.  I refuse to grant leave for discovery under this head.

(ii)Sick leave certificates & medical reports/notes (paras (e) & (f) of the Schedule)

25.  The sick leave period of both the Subject Accident and the 3^rd Accident overlapped. I agree they are relevant and necessary for the 1^st Defendant to quantify the damages claimed.  

26.  The Plaintiff seek medical treatments from different institutions in the three accidents, the 1^st Defendant should be given an opportunity to peruse the diagnosis of the Plaintiff.

27.  I grant leave for discovery under this head.

(iii) Documents setting out claims arising from the 3^rd Accident (para (g) of the Schedule)

28.  With regard to the documents of other claims, I find the scope is excessively wide and unparticularised.  I agree with Ms Yang, on this part, would benefit the 1^st Defendant to plead his defence with a hope that something might turn up to substantiate his assertions.

29.  I refuse to grant leave for discovery under this head.

Conclusion

30.  I allow discovery as those stated in para 1 of the Summons for those documents specified in para (e) and para (f) of the Schedule only.

31.  For reason that the discovery is allowed in part, I invite parties to make costs submissions at the forthcoming Checklist Review Hearing, which is now fixed on 30^th September 2011 at 2:30 pm in Court 46. I will determine costs by way of summary assessment. Both parties are directed to file their written submissions together with statements on costs at least 7 days prior to the Checklist Review Hearing.

32.  Filing of the questionnaires by both parties be dispensed with and I shall rely on the questionnaires filed for the hearing on 13^th June 2011.

(J Chow) District Court Master

Representation:

Ms Elizabeth Yang, instructed by Messrs. Au Yeung Cheng Ho & Tin for the Plaintiff

Ms Anita Chan of Messrs. YT Chan & Co. for the 1^st Defendant