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DCPI 267/2007
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO. 267 OF 2007
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BETWEEN
| JACKSON IVAN O’NEIL AMROL, a minor, claiming by his mother and next friend MELISSA LIPPENCOTT AMROL |
Plaintiff |
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and |
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MARISOL RIVERA |
Defendant |
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Coram: Deputy District Judge J. Ko in Court
Date of Hearing : 16-18 & 21 January 2008
Date of Handing Down Judgment : 19 March 2008
Judgment
1. This case is about a collision between a boy called “Jack” and a dog called “Coco” that happened on 1st May 2006 in the open area of Discovery Bay Plaza.
2. Jack was 4 years old at the time of the incident. He suffered a fracture of the right temporal bone and a traumatic perforation in his right ear as a result. Jack, through his mother and next friend, commenced this action against the Defendant for damages for personal injuries and other loss and damage.
3. The Defendant is the owner of Coco. Coco was about 2 years old and weighed about 25 kg at the time of the incident. Both liability and quantum are disputed.
Preliminary matters
4. Before I embark on a discussion on liability and quantum, I need to deal with two matters that arose in the course of the trial.
(a) Admissibility of Ms. Skellham’s witness statement
5. First, the Plaintiff applied to admit the witness statement of Ms. Skellham as evidence without calling her.
6. Ms. Skellham is a witness for the Plaintiff. Her statement was served on the Defendant in last September. Ms. Skellham has since returned to the United States. Jack’s mother said she had intended to call Ms. Skellham to testify at trial but was only informed recently that the witness could not return to Hong Kong because her husband was away and she needed to look after the children. So, the Plaintiff served a hearsay notice on the Defendant two days before the trial was due to commence intending to adduce Ms. Skellham’s statement as hearsay evidence.
7. The Defendant objected to the admission of Ms. Shellham’s statement. Both counsel invited me to defer argument to accommodate the busy schedule of the other witnesses. After hearing submission at the conclusion of the proceeding, I excluded Ms. Skellham’s statement on the ground that it was hearsay. I said I would give my reason for the ruling in this judgment.
8. The starting point of the consideration lies in section 47 of the Evidence Ordinance. That section provides that evidence in civil proceedings shall not be excluded on the ground that it is hearsay unless:
(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and
(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.
9. Section 49 then sets out the considerations relevant to weighing of hearsay evidence. Although that section primarily deals with the weight to be given to hearsay evidence, it does have an indirect bearing on the assessment as to whether the exclusion of a piece of hearsay evidence would be prejudicial to the interests of justice: per Lam J in Cheung Wei Man Vivien v. Centaline Property Agency Ltd., HCA 286/2000, para.12.
10. The Defendant has objected to Ms. Skellham’s statement. So, I need to consider whether I am satisfied that its exclusion is not prejudicial to the interests of justice.
11. Ms. Skellham states in her statement that she witnessed the collision. There are other witnesses from both sides (namely, Ms. Menzies for the Plaintiff, and Ms. Samija and Mr. Burden for the Defendant) who can testify in this regard. The exclusion of this aspect of the statement will not, in my view, prejudice the interests of justice.
12. There is, however, more to Ms. Skellham’s statement. It is stated that Ms. Skellham approached the Defendant after the collision and:
“At that time, [the Defendant] told me that she would take responsibility of the accident. However, I believe that she was just trying to impress on me that she was concerned about Jack’s injury. [The Defendant] in fact claimed to me that “my dog ran into kids all the time”. Perhaps, this is the reason why she looked rather nonchalant to the incident which was quite terrifying to me.”
13. The Defendant strenuously denies having made the alleged admission. Counsel for the Defendant objects to the statement principally on the ground that the Defendant will be deprived of an opportunity to test such evidence by means of cross-examination if the statement were to be received as hearsay evidence.
14. Ms. Skellham’s statement is dated 22nd August 2007, some 15 months after the incident. It does not appear that Ms. Skellham has made a more contemporaneous statement. The only reason put forward by the Plaintiff for not producing Ms. Skellham as a witness is Ms. Skellham’s own family reason. The Plaintiff is not otherwise suggesting that it is not reasonable or practical to call her. The Plaintiff does not offer to take Ms. Shellham’s evidence by video-link or apply for an adjournment to enable her to attend.
15. In my view, there are very pertinent and legitimate questions which the Defendant is entitled to ask Ms. Skellham. The Plaintiff’s counsel does not dispute that. He, however, suggests that I can first examine the Defendant’s denial and then go on to consider Ms. Skellham evidence if I have decided to reject the denial. I do not think that is desirable. Both Ms. Skellham and the Defendant are referring to the same conversation. It is not practicable to assess the Defendant’s denial without reference to Ms. Skellham’s evidence. The Defendant will be prejudiced if she were deprived of an opportunity to cross-examine Ms. Skellham.
16. Given its controversial character, I am satisfied that the exclusion of Ms. Skellham’s statement is not prejudicial to the interests of justice. I therefore excluded Ms. Shellham’s statement.
17. In any event, I would have given no weight to Ms. Shellham’s statement for the reasons stated above even if I had ruled it in. So it really makes no difference at the end of the day.
(b) Admissibility of a video recording filmed in December 2007
18. Secondly, there was the Defendant’s application to adduce a video recording in the form of a DVD.
19. On the third day of the trial, the Defendant sought to adduce a video recording through her last witness Mr. Burden. The Plaintiff objected to such evidence on the ground that the DVD had not been disclosed before. The Plaintiff’s counsel submitted it was a classic case of ambush. After hearing submission, I excluded the DVD. Again, I said I would explain my ruling in this judgment.
20. Mr. Burden went to Discovery Bay in December 2007 to film Jack. According to him, the recording shows how well Jack was at that time. The Defendant’s counsel said a decision had been made in a conference with the Defendant that the recording would only be produced if the Plaintiff adduced evidence on any residual effect suffered by Jack.
21. In my view, the conduct of the defence in relation to the DVD is unacceptable.
22. It is clear from the Revised Statement of Damages that the Plaintiff is claiming damages for loss of earning capacity and future medical expenses. The claim for future medical expenses was only abandoned on the first day of the trial. It should also be apparent from the witness statement of Jack’s mother that she will testify as to some residual effect Jack is suffering. So the Defendant knew all along that Jack’s present condition and whether the collision has had any residual effect on Jack would be live issues at the trial.
23. The defence is suggesting that it was a conscious decision on the part of the defence to withhold such evidence. The only discernable reason for such a tactical move was a desire to trap Jack’s mother in what the Defendant perceived to be lies.
24. In a similar case Cheung Wei Man Vivien v Centaline Property Agency Ltd., HCA 286/2000, the plaintiffs there had chosen to withhold some taped recordings and to administer interrogatories regarding matters which were evidenced by those tapes with a view to discredit the defendant by answers inconsistent with the tapes.
25. Lam J has this to say about such conduct at paragraph 28 of his judgment:
“The Plaintiffs had attempted to explain the late discovery as a tactical move to expose what they perceived to be the lies of the Defendants. It was a deliberate decision and regrettably a solicitor was said to be involved. In my judgment, this is not an acceptable excuse. Concealment of documents would not assist the court in making a fair assessment of a witness. A party is entitled to conduct litigation on the basis that his opponent gives proper discovery as required by the rules. All litigants and those advising them should familiarize themselves with the duty relating to discovery. Any forensic manoeuvre that smacks of ambush has no place in modern litigation and this court will not hesitate in voicing a strong disapproval for such conduct. A witness should have the chance to consider the relevant documents before he reduces his evidence into witness statement. The duty of discovery requires full discovery being given and withholding materials with a view to gain some forensic advantage in terms of trapping the opponents is an abuse of process. This court must take a firm stance to discourage such improper conduct of litigation.”
26. In my view, what was said by Lam J in Cheung Wei Man Vivien applies equally to this case. It matters not that the Defendant only came into possession of the DVD after Jack’s mother had already reduced her evidence into a witness statement.
27. Jack’s recovery is a continuing...
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