Professional Documents
Culture Documents
HCPI 664/2009
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_________________________
F
G
BETWEEN
WONG HON WAI
and
THE SECRETARY OF JUSTICE (for and on
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Plaintiff
Defendant
J
K
Coram :
Date of Hearing
: 9 February 2011
H
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J
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24 February 2011
______________
DECISION
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1.
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proceedings against the Defendant for damages for personal injuries and
for other loss and damages. The Plaintiff claims that on 27 October 2005
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whilst he was using the swimming pool (Pool) at the Tin Shui Wai
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A
B
C
B
C
D
2.
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present proceedings.
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I. ACCIDENT
3.
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the affidavit evidence filed for the present application (Affidavits) that
the Plaintiffs allegations as to the circumstances of the Accident are
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(a)
(b)
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(c)
his companions ran and jumped into the Pool but were not
admonished by any lifeguard or swimming pool attendant;
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spine injury;
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S
(d)
(e)
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4.
A
B
C
B
C
D
st
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G
H
st
the 1 Schedule will eventually find their way into the Plaintiffs pleaded
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uncertainty to any attempt to identify the matters in issue for the purpose
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5.
behalf of the Defendant, fairly accepts that the issues on liability are
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N
M
N
6.
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solicitor for the Plaintiff, that the shallowness of the Pool is a design
defect that caused or contributed to the Accident. He says there is (a) no
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evidence has been placed before me to suggest the Pool was at the
material time intended for diving. The Plaintiffs solicitors claim that
the Pool is a leisure complex pool. I note paragraph 2( )( ) of the
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A
B
C
B
C
D
,
so there is some ambiguity as to whether the depth of the Pool will
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8.
that expert reports on liability would likely include (but not be limited
to) reports from (a) an architect on the design (and in particular the
depth) of the Pool and (b) a life saving society or lifeguard association
on the standards applicable to lifeguards and the implementation or lack
of implementation of such standards.
10.
adjourned to 15 July 2010. Still the Plaintiff did not serve the writ and
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A
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D
2010 his solicitors requested further adjournment of the CLR for, say, 5
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but the parties were unable to reach full consensus on further conduct of
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11.
inter alia the documents set out in the second schedule to this Decision
(2nd Schedule), but I cannot be sure that such list is exhaustive given
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12.
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A
B
C
letter from the Plaintiffs father and reply by LCSD dated 11 and 26
November 2005 respectively, record of viewing of CCTV recording by
the Plaintiffs family members on 2 December 2005, accident case report
dated 28 October 2005, report from the pool-in-charge Mr Leung Kam-
B
C
D
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(a)
(b)
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14.
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P
O
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section 6 pertaining to the Pool (Disclosed Section 6)) except for siteQ
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specific
risk
assessment
or
safety
review
together
with
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Section 6).
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A
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IV. SUMMONS
15.
following directions:
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(a)
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C
D
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(b)
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16.
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Rules of the High Court (RHC), the Plaintiff issued a summons for
specific discovery of the following documents by affidavit within 7 days
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(Summons):
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(a)
(b)
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(Document B);
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(c)
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B
C
D
(f)
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The Plaintiff has filed Mr Millars 1st and 2nd affidavits dated
17.
Summons. The Defendant has filed the affirmations of Chan Yuen Man
(Ms Chan, LCSDs Assistant District Leisure Manager (Yuen Long))
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and Chan Ming Cheong Horman (Mr Chan, LCSDs Senior Leisure
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18.
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N
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(b)
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B
C
D
19.
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20.
specific discovery request for Document C save and except for (a) the
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documents described in paragraph 18(a)(i) and (ii) above that have come
into existence between February 1998 and 27 October 2005 (Promotion
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21.
Millar applied for leave to substitute the request for specific discovery of
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22.
detail below, but suffice to say here that I dismiss such application
without prejudice to any future application by the Plaintiff for specific
discovery of the aforesaid guidelines and notices.
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C
D
Since Mr Millar
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Document F.
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V. LEGAL PRINCIPLES
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23.
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what has become of it (see Order 24 rule 7 of the RHC). But if the court
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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 RHC).
(a) Courts approach
24.
O
P
Q
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S
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U
B
C
E
F
G
H
(see also Lee Nui Foon v Ocean Park Corp (No 1) [1995] 2 HKC 390).
B
C
D
E
F
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25.
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M
N
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pleadings (see Hong Kong Civil Procedure 2011 Vol.1 paras.24/3/5 and
Q
(c) Relevancy
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26.
a prima facie case for inter alia the relevance of the documents sought to
the matters in question.
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A
B
C
F
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M
N
(see also Lee Nui Foon at p.392 and Full Range Electronics Co Ltd v
General-Tech Industrial Ltd & anor [1997] 1 HKC 541, 544).
27.
D
E
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M
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between the parties to the litigation or, putting it in another way, to the
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be those identified in the pleadings (see Sun Yuet Tai Limited v British
O
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A
B
E
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G
29.
B
C
D
E
F
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N
O
P
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B
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E
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E
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31.
K
v B [1998] HKLRD (Yrbk) 542 and Fung J in Chan Kwok Hong v AXA
China Region Isurance Company (Bermuda) Limited & anor HCA
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M
N
from the very wide Peruvian Guano test that Hong Kong courts have
accepted as the appropriate test to determine relevance, and he doubted
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whether it was open to the Court of First Instance to follow the gloss
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(Far East Ltd) v NM Rothschild & Sons Ltd & ors [1981] HKC 78.
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S
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A
B
September 2009), the Court of Appeal did not disturb DHCJ Horace
Wong SCs discussion of the relevant legal principles.
B
C
32.
Peruvian Guano test (see also Wu Ching Sau v New World First Bus
Services Limited HCPI 767/209 (unreported, 9 September 2010)). In
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and Pauls Models Art GmbH & Co KG v UT Limited & ors HCA
1501/2000 (unreported, 18 January 2011) in which DHCJ Coleman SC
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One area of dispute at the hearing was whether or not the test
of relevance in Hong Kong is still that in the Peruvian Guano
case, [counsel for the 4th and 5th defendants] suggesting that the
excesses of that type of discovery are to be deplored. But,
whatever one might personally think of the application of that
test to many cases, I accept submission [by counsel for
the plaintiff] that the Peruvian Guano test is still the applicable
test even after the Civil Justice Reforms of 2009 (when the
possibility of removing that test was rejected).
N
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facie case, it is for the party objecting to the order for discovery to
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satisfy the court that the discovery is not necessary either for disposing
fairly of the cause or matter or for saving costs under Order 24 rule 8 of
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A
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the RHC.
34.
(Far East Ltd) in which the Court of Appeal, without any deep analysis,
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24 r 7, the party seeking it has to make out a prima facie case: that
discovery thereof is necessary either for disposing fairly of the cause or
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matter or for saving costs. This was followed in Chan Kwok Hung at
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35.
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v Chan Sing Chuk & ors [1992] 1 HKC 348, 351 in which the Court of
Appeal citing the following observation of Parker LJ in Dolling-Baker v
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rule 8], it is for the party who is objecting to any such order to satisfy the
court that discovery by list or affidavit is not necessary (see also
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Alick Au Shui Yuen v Sir David Ford, Deputy to the Governor & ors
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(without deciding the point) that the burden is on the Defendant to show
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that the documents sought are not necessary either for disposing fairly of
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37.
B
C
D
E
F
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M
N
O
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A
B
C
B
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D
Gamble Ltd (No. 3) [1990] RPC 498 approving Fuji Photo Film Co Ltd
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v Carrs Paper Ltd [1989] RPC 713 and Re Estate of Ng Chun Wah). In
other words, the abovementioned prerequisites must be established in
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respect of the class described as a class and not as regards some in the
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class only (see Hong Kong Civil Procedure 2011 Vol.1 para.24/7/1 at
p.549). If the class of documents sought covers a large number of
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were not available at trial (see Hong Kong Civil Procedure 2011
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39.
M
N
M
N
relating to 7 legal actions save and except for those papers and
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O
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B
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E
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40.
for discovery was discretionary, and at p.505 held that the specific
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D
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discovery sought was too wide for it embraced documents which did not
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relate to the matters in question between the parties in the action, and
were not necessary for disposing fairly of the action or for saving costs.
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M
N
O
action. At p.503 he opined that the court would take into account
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P
Q
the volume of documents and the labour and expense involved to that
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which was necessary for fairly disposing of the issues in this case.
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S
41.
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A
B
C
B
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D
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
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opportunity to hunt around the documents in the hope that they will
reveal some improprieties on the defendants part or will provide
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order for specific discovery does not prevent the respondent from
covering up irrelevant parts (see Hong Kong Civil Procedure 2011
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43.
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follows:
40.
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41.
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B
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B
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D
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44.
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VI. DOCUMENT A
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45.
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46.
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N
O
(b)
(c)
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of the facilities);
(d)
(e)
(f)
Society.
C
D
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47.
G
[it] was noted that the older Swimming Pools are creating
less of a hazard than the new Leisure complex; it is
recommended that an urgent review be undertaken of the
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(paragraph 5.1);
(b)
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(c)
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48.
Q
states inter alia that [signage] is the wrong colour see previous item.
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49.
S
which includes inter alia that [the] colour of the signage will be
amended when it has been finalised by the Department.
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A
B
C
(a) Issue
50.
MacGregor Report. The disputed issues are (a) whether the Plaintiff has
established a prima facie case that Undisclosed Section 6 is relevant to
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C
D
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recommendations
M
for
older
swimming
pools
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in
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pool;
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(b)
the
non-disclosure
of
the
previous
item
within
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52.
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A
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B
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D
53.
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(d) Discussion
54.
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N
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above.
MacGregor opines that the colour of the signage at the Pool is wrong.
55.
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N
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(Section 11) which sets out the UK protocols and/or the Societys
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A
B
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B
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D
56.
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review of all the Other Pools and not just the particular entry on signage
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Millar said that for the purpose referred to in paragraph 51(b) above, it is
of no moment that the previous item is in respect of which particular
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is disclosed.
57.
M
N
M
N
O
P
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58.
A
B
C
above, which relate to his application for disclosure of the entire section
6 of the MacGregor Report for drawing comparison between Mr
Macgregors comments/recommendations for the older and the new
public swimming pools to see how the latter is more hazardous.
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59.
MacGregor Report any indication that the less hazardous nature of the
B
C
D
E
F
G
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Swimming Pools are creating less of a hazard than the new Leisure
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M
N
The Plaintiffs
allegations against the Defendant in the 1st Schedule do not concern any
play equipment.
60.
Report, the Pool and Other Pools are physically distinct in nature, size,
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M
N
shape and depth. Also as seen from the terms of reference and contents
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61.
partys case (if they would have such an effect), and asks me to infer that
DOJs refusal to make disclosure of Undisclosed Section 6 suggests that
there is something therein that would adversely affect the defendants
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A
B
C
case or, conversely, would assist the case to be brought for [the
Plaintiff], especially when Undisclosed Section 6 seemingly comprises
9 pages in total.
B
C
D
62.
E
F
E
F
basis that such part of the MacGregor Report is irrelevant. For the same
reason, I am also unable to accede to Mr Millars arguments in paragraph
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52 above.
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63.
edited form and stated on oath that the covered up parts were not
germane to any issue in suit. In an application for disclosure of the
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N
atmosphere in the case is such that the plaintiffs have grave skepticism
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whether discovery had been properly carried out. He added that [this]
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seems to be a matter which is much better left for the trial judge to deal
with if and when it is pursued.
64.
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S
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A
B
C
claim for loss and damage of cargo as a result of the sinking of the
defendants vessel following explosions/fires.
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F
B
C
D
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F
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scope requested.
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66.
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Section 6 to carry out the comparison exercise between the older and
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new public swimming pools before he can ascertain whether there are
any site-specific observations/recommendations on the Other Pools that
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67.
C
D
yet at this stage and the true issues have not been formally crystallised.
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and plead his case. In my view, it is quite unnecessary for the Plaintiff to
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68.
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N
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therein) signage colour at the Other Pools in September 2000 (apart from
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the entry for the previous item) will facilitate the Plaintiff (if he sees
fit) in pleading any allegation of negligence or breach of statutory duty
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information at the Pool at the time of the Accident and the requirements
under the Signage Protocols. After all, there is no dispute that the
photographic reproductions of signage at the Pool placed before me do
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A
B
C
B
C
D
on duty at the Other Pools in September 2000 (even if such matter were
canvassed in Undisclosed Section 6) is relevant to the reactions of
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70.
an issue between the parties, I note that Mr MacGregor has not criticised
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72.
A
B
C
issuance of the Summons), DOJ sent a black and white copy of the RSD
Report to the Plaintiffs solicitors. By their letter dated 1 December 2010
(ie after issuance of the Summons), DOJ explained to the Plaintiffs
B
C
D
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73.
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swimming safety;
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(b)
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office
was
responsible
for
overseeing
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D
the
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(c)
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Document D).
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74.
M
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Council. Both the RSD and Council were dissolved in 1999 and their
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functions were transferred to, amongst others, the LCSD, the Food and
Environmental Hygiene Department and their respective directors. The
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(pools designed for competition purpose) and training pools, steps in the
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pools, and play equipment such as water slides and water guns. The
Working Group has also, for example, examined the system of facilities
inspection in pools, the methodology in calculating the maximum
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A
B
C
Given the long history and wide scope of the RSD Report as
well as the dissolution of the RSD and Council, Ms Chan and Mr Chan
B
C
D
are not certain how many documents have come into being as a result of
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the RSD Report and are now still in the possession of LCSD or the
government at large in respect of promotion of swimming safety over
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the relevant years. Further, Ms Chan cannot be sure how all documents
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76.
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N
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safety of public swimming pools and covers, amongst others, issues like
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A
B
C
concerned, [Ms Chan] verily believe that follow-up actions had been
taken at [the Complex/Pool] as a result of the RSD Report. But Ms
Chan and Mr Chan are not certain how many documents have come into
being as a result of the MacGregor Report and are now still in the
B
C
D
E
F
be sure how all documents relating to the Complex/Pool that have come
into being as a result of the MacGregor Report (in contra-distinction to
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can be located.
78.
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N
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safety.
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80.
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A
B
C
has failed to state in her affirmation (when she should have done so)
what attempts (if any) have been made by the LCSD or the government
to identify what documents have come into existence as a result of the
MacGregor Report whether (a) specific to the Pool, (b) generally, and/or
B
C
D
depth.
(c) Discussion
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81.
and D are very wide and would certainly cover irrelevant materials.
82.
G
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6.
6.1
M
N
O
6.2
P
Q
R
6.3
6.4
S
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U
6.5
(
)
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N
O
P
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83.
C
D
E
F
this end, the Working Party also proposed to increase the frequency of
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84.
the alleged risk of diving into a shallow-water swimming pool), and are
targeted to reduce swimming incidents unrelated to the circumstances of
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the Accident.
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85.
are not focused merely on the alleged ills that may relate to the nature
and circumstances of the Accident, a request for specific discovery of the
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created over a period of about 7 years from the date of the RSD Report
to the date of the Accident should not be allowed. In light of the broad
range of matters canvassed in section 6 of the RSD Report, I am
S
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A
B
C
B
C
D
I refer to the principles in paragraphs 38-40 above which make clear that
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issue.
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86.
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follow-up actions on the RSD Report have been taken without any basis
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or any stated basis for such belief. He suggests that insofar as reliance is
placed on documents for Ms Chans belief, that should be made clear in
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87.
O
P
O
P
made in response to the request for all documents coming into existence
Q
R
Q
R
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A
B
B
C
88.
In any event, the RSD Report does not just deal with
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F
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H
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M
N
the date of the MacGregor Report and the date of the Accident as a result
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O
P
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Memo (which has been disclosed), Ms Chan and Mr Chan clearly state
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they are not certain how many documents have come into being as a
result of the MacGregor Report and are now still in the possession of
LCSD or the government at large and they cannot be sure how all
S
T
U
A
B
C
B
C
D
has failed to state in her affirmation what attempts (if any) have been
made by the LCSD or the government to identify what documents have
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F
80 above).
90.
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between the date of such report and the date of the Accident, the scope of
such class of documents is plainly too wide as it covers matters
extraneous to the nature and circumstances of the Accident.
M
N
K
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The
M
N
O
P
review for allowing people who need artificial aids to be lifeguards, etc.
The LCSD Memo being feedback to the MacGregor Report covers
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turf, water slides, stone pillars/pool design, CCTV system, plant room
safety etc. Mr Law asks rhetorically why the Defendant should be called
upon to disclose documents that have come into existence following Mr
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U
A
B
C
B
C
D
91.
view, it is the duty of the Plaintiff being the applicant for specific
discovery to be concise. If the class is too wide (as in the application for
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H
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IX. DOCUMENT E
92.
N
O
P
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93.
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A
B
C
B
C
D
2000 to October 2005 or to now (see the Summons) and (b) from 27
E
F
G
H
E
F
G
H
Macgregor Report.
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information, which include red background and white text for signage
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M
N
K
L
M
N
pertaining to such amendment [of colour signage at the Pool] and will
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the Pool for the period from 2000 to 2005, and with the assistance of her
colleague she has located the following documents exhibited to her
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affirmation:
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(a)
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(b)
C
D
E
F
(d)
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96.
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says that although the documents in paragraph 95(a) and (d) above have
not come into being as a result of change of signage to fall within
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Document E, they are useful to the court in dealing with the Summons
O
97.
Q
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Q
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(b)
(c)
B
C
D
text/pictograms.
(d)
E
F
G
H
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K
L
N
O
P
N
O
S
T
U
Q
R
S
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A
B
C
with red background and white text at the Pool at the time of the
Accident.
B
C
D
signage at the Pool in November 2005 and October 2009 were different,
E
F
G
H
colour at the Pool had not been acted upon prior to the Accident or if it
had been acted upon there were further changes to signage colour
I
J
subsequent to the Accident. In any event, the signage at the Pool does
K
L
K
L
100.
O
P
O
P
and/or whether such signs even if procured in 2001 have been installed
Q
Q
R
101.
S
T
U
A
B
C
B
C
D
E
F
signage after the Accident in October 2005. Mr Law argues that the
G
H
changes (if any) do not assist the Plaintiff in his claim in that it is
irrelevant, and hence the disclosure sought is not necessary at this stage
G
H
of the proceedings when the basis of the Plaintiffs claim has not yet
I
been pleaded.
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(c) Discussion
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102.
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Protocols for water slide safety which refers to a splashdown area where
the water slide exit point discharges into the main pool area, and I am not
M
N
O
P
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signage) from the McGregor Report to the Accident and thereafter until
now. In my view, the scope of this class of documents is too wide and
lacks evidential materiality for this stage of the proceedings.
S
T
U
104.
C
D
E
F
G
H
Millar has not identified how (beyond the specific assessment of whether
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the signage at the Pool at the time of the Accident when viewed against
applicable guidelines (if any)) finding out whether the Defendant has
I
J
K
L
whether the Defendant has discharged its duty of care (if any) to the
M
105.
O
P
O
P
R
S
T
U
Q
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S
T
106.
A
B
C
letter dated 2 December 2010 to DOJ that Ms Chan has failed to state the
contents of and/or to exhibit to her affirmation the correspondence
between the Complex and Architectural Services Department about
maintenance of the Pool for the period from 2000 to 2005 that she
B
C
D
These
E
F
contentions fly against the principles set out in paragraphs 38-40 above,
G
H
I
H
I
J
107.
K
K
L
M
N
O
P
108.
S
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U
A
B
C
jumped into the Pool shortly before the Plaintiff dived into the Pool and
suffered the Accident, but the lifeguards present did not react to such
behaviour.
B
C
D
frequency are clearly relevant to a likely issue in the action and are
E
F
E
F
coming into existence between September 2000 and October 2005 (or
G
109.
I
J
I
J
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M
N
O
P
under the impression that the guidelines and/or notices issued by LCSDs
headquarters from time to time pursuant to which oral briefings are given
Q
R
S
T
U
A
B
C
B
C
D
111.
G
H
premise for such oral briefings are given. Secondly, the Reformulation
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New Document F still is too wide, the Plaintiff is at liberty (if he sees fit)
M
N
to recast the request for the aforesaid guidelines and/or notices issued by
LCSDs headquarters from time to time in a concise fashion and to make
M
N
112.
Q
R
Q
R
S
T
U
A
B
C
example, cover safety in using water slide and play equipment, use of
safety equipment, carrying of personal safety equipment on duty,
introduction of incentive/reward scheme for reducing pool incidents, etc
(see section 5.4 of the MacGregor Report), none of which is relevant to
B
C
D
113.
Defendants legal representatives some of, but definitely not all of, the
G
H
G
H
I
J
K
L
114.
O
P
pleaded.
Q
R
115.
class of documents to the matters in issue, and it is not for the Defendant
to second-guess what sort of documents are relevant at this pre-pleading
stage of the proceedings. The short answer to Mr Millars contention is
S
T
U
A
B
C
that Ms Chan has not conceded that any guideline and/or notice issued
by LCSDs headquarters from time to time will necessarily be the
subject of automatic discovery. Her affirmation simply recognises that
once the Plaintiff has properly pleaded his claim, the Defendant will be
B
C
D
relevant to the matters in issue, and if there are they may have to be
disclosed under automatic discovery. Since the present proceedings have
E
F
G
H
relevant affidavit under Order 24 rule 7 of the RHC and so that the
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Application.
K
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M
N
XI. CONCLUSION
116.
L
M
N
Plaintiff has not taken out any summons for such purpose and I have
declined to deal with such matter. Out of abundance of caution, when I
O
P
and Mr Chan, I form no view as to whether such legal advice has been
deployed and/or whether such mention is sufficient to justify the
Q
R
117.
T
U
A
B
B
C
118.
the bulk of the class of documents sought. There is no reason why costs
should not follow the respective events.
119.
I
J
E
F
G
H
I
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Further, annex 1 is part of the RSOD Report that has already been
disclosed before issuance of the Summons. But at the same time, it is
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the costs of the Summons and the Plaintiff is entitled to a smaller portion
S
T
S
T
entitlements, a fair order will be for the Plaintiff do pay to the Defendant
U
A
B
C
B
C
D
121.
E
F
E
F
manner, but in the end it is not a matter that I need to resolve. I am not
persuaded that the application is of such complexity as to warrant
G
H
122.
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M
N
(b) the Defendant do within 14 days from today fix a date with
the Listing Clerk for summary assessment of costs to be
O
P
(Marlene Ng)
C
D
E
Representation:
- 55 -
1st Schedule
B
1.
C
2.
E
F
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
L
13.
M
N
14.
15.
O
P
16.
17.
Q
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S
T
U
A
B
C
D
E
F
G
H
I
J
K
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N
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U
- 56 -
2nd Schedule
B
C
1.
2.
3.
4.
5.
6.
7.
8.
G
9.
10.
11.
12.
13.
14.
L
M
N
O
P
Q
R
S
T
U
15.
16.
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
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T
U