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Can the claimant inspect and take photographs of the accident scene which is under control of a third party?

2023-05-31

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.

 


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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.

Published by ONC Lawyers © 2023


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