Can the claimant inspect and take photographs of the accident scene which is under control of a third party?
Introduction
In personal injuries actions, the condition of the accident location is
often a key issue in deciding the liability of the defendant. Existence of
serious hazards in the accident location may suggest a breach of the employer’s
duty to provide a safe working place or a breach of the occupiers liabilities to
ensure the safety of the visitors in accordance with the Occupiers Liability
Ordinance (Cap. 314).
However, in certain cases, the accident location
may situate in property held by a third party (not being a defendant in the
personal injuries action). If the third party does not allow the victim to enter
the accident location while the defendant deny the existence of such hazards in
the accident location, how can the victim obtain evidence to prove the existence
of such hazards? A recent case Lo
Kwok Kit Sam v Leung Kwok Hung [2023] 2 HKLRD 119, which discussed the Plaintiff’s
application for an order that a third party allow the Plaintiff to enter the
accident location for the purpose of inspecting and taking photographs of the
room where the accident happened, may shed some light for such situation.
Background
The Plaintiff’s case was that while he was
working for the 1st Defendant, he was injured when he lost his
balance while stepping on a pipe inside a room (the “Accident Room”),
located in the basement of the West Kowloon Terminus (“WKT”).
In the personal injury proceedings
initiated by the Plaintiff (“P”) against the Defendants (“Ds”), Ds
argued, among other things, that there were no pipes in the Accident Room and put
P to strict proof. Ds filed a witness statement of N, who visited the scene
shortly after the incident, referring to the Accident Room as the “環境控制系統機房” (the “機房”),
and stated that there were no pipes fixed to the floor of that room.
Seeking clarification on the existence of
the pipe in the Accident Room, P contacted MTR Corp Ltd (“MTR”). In
2021, MTR provided two photos showing a close-up of a structure resembling a
pipe and a pipe layout plan of a room, which they claimed to be the location of
the accident. However, P’s request for an on-site inspection was denied by MTR.
P subsequently filed an application to the District Court, seeking an order
that permission be granted to P to enter the WKT to inspect and take photographs
of the room where the accident occurred, as per section 47B of the District
Court Ordinance (Cap. 336) and Order 29, rule 7A of the Rules of the District
Court (Cap. 336H). In 2022, MTR provided P with additional photos of a plant
room (“2022 photos”), which was referred to as the accident location in
the Employees’ Compensation Form 2 (the Plant Room). P asserted that these
photos did not depict the actual room where the accident took place.
Factors in
considering such an application
The Court first set out the following
considerations which the Court would take into account in considering an
application for an order to inspect and take photographs of a property:
1.
How important is the information/inspection to the issues;
2.
Has P taken appropriate steps to obtain the information within the
proceedings before seeking discovery from MTR;
3.
Whether such inspection, if granted, will allow P to embark on a fishing
expedition to corroborate his claim;
4.
If inspection is necessary and proportionate, whether such inspection
would undermine or infringe any public policy;
5.
Assuming that the court should ultimately decide to grant an order for
inspection in the present case —
a.
What should be the proper scope of the order; and
b.
What, if any, restriction(s) regarding the inspection should be imposed
on the plaintiff.
Importance
of the inspection to the issue
The primary issue at hand in these
proceedings revolved around determining the presence or absence of a pipe in
the Accident Room. It was crucial to conduct an inspection in order to dispose
fairly of the issue before the trial, as well as to save costs and time.
The photos and layout plan provided by MTR
in 2021 were insufficient in providing a clear understanding of the surrounding
conditions where the accident took place. Although the 2022 photos offered a
broader view of the Plant Room, it should be noted that the identification of
this location was based on the information provided by N, the only witness who
visited the “機房”. There remained a possibility that the “Accident
Room”, the “機房”, and/or the “Plant Room” referred to by
each party could be completely different rooms. Rather than relying solely on
assessing the credibility of each witness, a more direct and practical approach
would be for P to inspect both the “Plant Room” and the “Accident Room” that he
claimed he could still locate.
MTR also argued that P had possession of
Form 2, which contained the code for the Plant Room, as early as he issued the
Letter before Action in October 2019. However, P never raised any inquiries
regarding the location of the Accident Room until after the exchange of witness
statements by both parties. MTR asserted that the Court should reject P’s late
application.
The Court rejected the above argument for
several reasons. Firstly, the completion of Form 2 was carried out by the 2nd
Defendant, not P. Secondly, the description of the Accident Room’s location was
provided in a form of code that would be difficult for a layman to decipher. Thirdly,
P was put to strict proof of the pipe’s existence, and it was only until after the
exchange of witness statements that N’s denial of any pipes in the Accident
Room came to light. Therefore, it is entirely reasonable for P to begin raising
inquiries about the precise location of the accident after gaining insights
into Ds’ case.
Has P taken appropriate steps to obtain the information
The Court held that P had taken every possible
step to obtain the information from MTR prior to making this application. P’s
reasonable request for photos of the Plant Room in its entirety, which would
facilitate easy identification, was rejected by MTR.
Additionally, P possessed a clear memory
of the layout of the Accident Room, and the doubts raised by P regarding whether
the Plant Room was indeed the Accident Room were reasonable. P’s objective was
solely to confirm whether the Plant Room corresponded to the Accident Room and
not to engage in fishing for corroborative evidence.
Public policy consideration
Concerning the
issue of public policy consideration, the Court held that granting an order for
access and inspection, with a clearly defined scope, would not undermine or violate
any public policies.
Given the
circumstances, an order was made to allow P to access, inspect, and take
photographs of both the Plant Room and the specific room identified by P as the
location of the accident. This decision was made to ensure a fair and thorough
examination of the relevant areas.
Takeaway
This Court elaborated
in details the factors it would take into account when considering an
application for an order to access, inspect and take photographs of property. It
provides recourse for a plaintiff in a personal injuries action to obtain
information about the accident location in a property held by a third party.
However, before making such an
application, the plaintiff has to consider if the application can satisfy the
test laid down in Lo Kwok Kit Sam and if he has taken appropriate
steps to obtain the information before seeking discovery from the third party.
It no doubt involves legal and factual issues to be considered. If you intend
to make such an application or receive a request from other parties to inspect
and take photograph of an accident location, it is advised that you should
consult a personal injuries lawyer for professional advice.
For enquiries,
please feel free to contact us at: |
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Place, Central, Hong Kong |
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Important: The law and procedure on
this subject are very specialised and
complicated. This article is just a very general outline for reference and
cannot be relied upon as legal advice in any individual case. If any advice
or assistance is needed, please contact our solicitors. |
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Published by ONC Lawyers © 2023 |
