Subba Alvin also known as Gurung Yadap Chandra v. Houng Kee (Asia) Limited and others HCPI 154/2010
In this recent decision, the Judge dismissed the Plaintiff’s application in seeking leave to raise a new case on quantum and to adduce reports from pain specialists at the stage when the case was about to set down for trial.
This case involves a work accident where the Plaintiff was hit on the head by a wooden board. In addition to the head and neck injuries pleaded in the statement of damages, the Plaintiff sought to argue that the accident also caused him a further back injury, which was not included in the pleadings.
In the normal course of events, the court would usually grant leave to such application to ensure fairness and justness between the parties, provided that there was no prejudice to the other party which could not be compensated by costs. However, once a case has reached the stage of setting down, it becomes more difficult for the court to accede to applications for raising a new case and for the service of additional evidence.
Pursuant to the guidelines set out in case law, the court, when exercising its discretion as to whether or not to grant leave for such application, should take into account factors including the right of a party to rely on admissible, relevant and probative factual evidence, the potential disruption to the trial, the prejudice caused to the other party, and the explanation offered by the applicant for such application. These factors have to be considered and weighed against the underlying objectives of the Civil Justice Reform (CJR) to ensure cost effectiveness and economy, expedition, proportionality, fairness between the parties and the proper use of the court’s resources.
The Judge in this case further commented that the court must also make a rough and ready assessment of the merits of the new case being advanced. If the new case appears unlikely to succeed, then that factor must also weigh in the balancing exercise between the proper adjudication of the cases of the merits on the one hand and the timely progress of the cases and the adherence to the procedural timetables on the other hand.
With regard to the pain specialists’ reports, it was argued that pain management treatment is a specialised and recognised area of medical treatment and accordingly, it is necessary to obtain a report from such a specialist in order to have a proper assessment of the pain suffered by the Plaintiff. The Judge however rejected the argument as he was of the opinion that pain is subjective, and that it is a matter for the court to assess the evidence of the injured person and come to a finding whether or not he is indeed suffering pain, and if so, the nature and the extent of the pain.
This decision once again reflects that the court is no longer tolerant of late applications, especially after the implementation of the civil justice reform. Unless there are convincing reasons for the late application, and that the new case being advanced is likely to succeed, it is increasingly difficult for a party to adduce new evidence at a late stage in proceedings.