XCHRX SUNWAR BHIMRAJ SUNWAR v. LE CHEONG ENGINEERING CO.

HCPI 1492/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1492 OF 2000

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J U D G M E N T

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1. This is an appeal by the plaintiff from the order of Master C. B. Chan given on 4 October 2001 whereby the Master dismissed the plaintiff's application to disapply the three years limitation period and ordered the Writ to be struck out as being frivolous vexatious and an abuse of Court's process and the action be dismissed with costs.

Background

2. On 27 September 1997, the plaintiff (a Nepalese who was born in Hong Kong on 9 July 1979 but then returned to Nepal as a young child, was educated there up to Form 3, returning to Hong Kong in April 1997) was injured at a construction site in the course of his employment with the 1st defendant working at that site. The 2nd defendant was the principal contractor. At the time of the accident the plaintiff was just over 18 years old.

3. The injury suffered by the plaintiff was a fractured distal radius of his left hand. He was taken immediately from the construction site to the Accident and Emergency department of Yan Chai Hospital. For that injury he was granted three months sick leave and then returned to work with the 1st defendant in late January 1998 until May 1998 and again in June and July of 1999.

4. As a result of that accident to the plaintiff and within one month of its occurrence, the 1st and 2nd defendants respectively filled out an Employees' Compensation Salary Certification Form and a Form 2 to the Labour Department. On both those forms a brief description was given as to how the accident happened. The accident, being a minor one, no investigation was carried out by the Labour Department.

5. During the time the plaintiff returned to work with the 1st defendant, on 23 April 1998, the Employees' Compensation (Ordinary) Assessment Board issued a Certificate of Assessment assessing the plaintiff's injury to be 2% of loss of earnings capacity under the Employees' Compensation Ordinance. The plaintiff did not object to this assessment. Pursuant thereto, on 28 April 1998, a Certificate of Compensation Assessment was issued by the Commissioner of Labour certifying that employees' compensation in the sum of $46,680.86 was payable. As the plaintiff did not object to the amount of compensation assessed, that sum was paid to and accepted by the plaintiff. Accordingly, there was no proceedings for employees' compensation started in the District Court in respect of this accident to the plaintiff.

6. On 14 December 2000, which was 3 years 21/2 months after the accident, the present Writ of Summons was issued by the plaintiff claiming common law damages for the injury sustained by him in the accident. The Writ was served on the defendants on 17 April 2001. In the Statement of Claim which was dated 7 June 2001, it is pleaded by the plaintiff that the accident came about when, on 27 September 1997, the plaintiff was engaged in levelling the floor of an excavation hole which was about 11 feet deep when he was instructed by a backhoe operator to free the bucket of the backhoe which had become stuck on one of the horizontal beams of the excavation hole. After freeing the bucket, but while the plaintiff was still on the horizontal beam, the bucket swung towards him, trapped and crushed his left hand causing the plaintiff to fall some 7 feet to the bottom of the excavation hole. It is further pleaded that the accident was due to the negligence of the 1st and 2nd defendants, their servants and agents in failing to provide the plaintiff with a safe system of work and/or failing to sufficiently instruct the plaintiff on a safe way of freeing the excavation bucket.

7. After acknowledging service of the Writ, the defendants issued their summons for striking out on 20 June 2001. The plaintiff in turn issued his summons seeking an order to disapply the three years limitation period on 26 September 2001. Both summonses were heard by the Master on 3 October 2001 when she made the orders the subject matter of this appeal.

8. The background facts stated above are not in dispute between the parties.

The Evidence

9. Evidence was filed by both the plaintiff and the defendants by way of affirmations.

10. The plaintiff's evidence states that as he was educated in Nepal, he understood no Cantonese and very little English.

11. After the accident, the ganger informed the supervisor of the site and the plaintiff was taken to Yan Chai Hospital in a taxi by the supervisor.

12. The plaintiff explains that after he had returned to work for the 1st defendant in January 1998, he came to know from another Nepalese living in Hong Kong that he could apply for employees compensation from the Labour Department. He applied to the Labour Depatment in Tsuen Wan and was later awarded the amount of employees compensation of $46,680.86.

13. He went on to state that he was not told by anyone that he could claim damages above the employees compensation and he had believed that the employees compensation was all he could claim for. It was only in late November 2000 when he attended an employment agency being the Gofung International Agency in Tsim Sha Tsui to look for a better job that a lady working there named Ms Sita Rai saw the scar on his right wrist, asked how it happened and after he had told her of his accident, she informed him that he could bring a claim over and above the employees' compensation which he had received.

14. As a result, he went to the solicitors firm of Messrs Massie & Clement on 29 November 2000 and after the solicitors had advised him generally and in particular, making an application for legal aid for him, the solicitors then issued the Writ generally indorsed on 14 December 2000 upon the advice of the Legal Aid Department pending the processing of his application for legal aid. Ultimately legal aid was granted to him on 18 April 2001.

15. The evidence filed on behalf of the defendants came from Ng Chun Cheong, the sole proprietor of the 1st defendant. It states that the 1st defendant was served with the Writ by registered post on 17 April 2001 and he was surprised to learn that the plaintiff is now claiming common law damages for he had believed that this whole matter was at an end since when the plaintiff returned to work for him after the accident from January until May 1998 and again in June and July 1999, the plaintiff had never complained about his disabilities.

16. After he was served with the Writ, he has only a vague recollection of this matter. He recalls that shortly after the accident, he had submitted a Salary Certification form to the 2nd defendant and was required by the 2nd defendant to describe how the accident occurred. He himself did not witness the accident. He was informed by the plaintiff's supervisor, Mr Lau Ngok (who also did not witness the accident) that the accident occurred when the plaintiff was giving a signal to the backhoe operator while trying to hold still the excavator bucket. Without fully understanding what those words meant, he simply put down such words in the forms that they had to submit to the Labour Department describing how the accident happened.

17. He goes on to state that he was able to locate Lau Ngok when advised by the defendants' solicitors to do so but Lau cannot remember the source of his information due to the lapse of time. Neither can Lau Ngok remember the names of the site safety officer at the time nor the names of the other workers in the vicinity of the accident when it happened. All that Lau Ngok can remember is that the name of the backhoe operator to be one Tung Kin Keung but whom Lau Ngok has lost contact with now.

18. The records of the 1st defendant show that Tung Kin Keung was engaged by the 1st defendant on a casual basis and who had ceased working for the 1st defendant in late September 1998. As a result the defendants cannot locate any potential witness to this accident. Moreover, because no complaint of any kind was received from the plaintiff after he returned to work for the 1st defendant as to any fault on the part of the backhoe operator or anyone else in relation to this accident, the defendants were led to believe that this matter was at an end. Accordingly no investigations were made by the defendants and no statements taken from any of the other workers.

The Plaintiff's Application

19. Mr Clough appears for the plaintiff in this matter, and in putting forward his submission essentially raises two issues for the Court to decide.

20. Firstly he submits that the lack of knowledge of the plaintiff that he has a cause of action against the defendants over and above the employees compensation which he had received is such as to make time for the limitation period start to run in November 2000 when the plaintiff came to know that he had a cause of action under common law. This I shall refer to as the First Issue hereafter.

21. Secondly, and this is his fall back position, if the Court is not with him on the First Issue, then he says that in all the circumstances of this case, it is equitable for the court to disapply the limitation period since there was only a delay of 2½ months in issuing the Writ. In this respect he submits that the defendants cannot really be prejudiced in their defence of this case for if they are, then that is due to their failure to investigate the matter and keep proper records and not due to the plaintiff's delay. He further submits that if the plaintiff had issued the Writ 2½ months earlier, i.e. just within the three years from the time of the accident, the defendants would still be in the position they are now in. This will be referred to as the Second Issue.

22. Before I deal with each of the two issues raised in turn, it is accepted by both parties that this case being an appeal from the decision of a Master to a judge in chambers, and the decision of the Master is necessarily one of the exercise of her discretion, it therefore falls upon me to exercise my discretion anew on the hearing of the appeal albeit that although I am in no way bound by the decision of the Master, I will give it the weight it deserves. In this respect the words of Lord Atkin in Evans v. Bartlam [1937] AC 473 at 478 are on point :

"I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master's discretion. His own discretion is intended by the rules to determine the parties' rights: and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it."

The First Issue

23. This is said to be the primary issue by Mr Clough who submits that the limitation period in this case does not even begin to run until November 2000 when the plaintiff acquired knowledge that he had a cause of action against the defendants over and above the employees compensation which he had been paid.

24. This is met by the reply from the defendants that this point is a non starter for the plaintiff because by the earlier letters of the plaintiff's solicitors, the Summons issued by the plaintiff for this application and even the skeleton submission of the plaintiff's former counsel at the hearing before the Master, the plaintiff and/or his legal advisers have all accepted that the limitation period began to run from the date of the accident to the plaintiff and that they had to come to court to ask the court to disapply that section of the Limitation Ordinance.

25. However, quite apart from what has been raised in reply by the defendant, the plaintiff, in making this submission, is further met by the following legal difficulty.

26. Under the Limitation Ordinance, Cap. 347, the time limit for cases relating to personal injuries is provided for by section 27. Sub-section (4) of that section provides as follows :

"(4) Except where subsection (5) applies, the said period is 3 years from-

(a) the date on which the cause of action accrued; or

(b) the date (if later) of the plaintiff's knowledge."

27. The "knowledge" referred to is further provided for in sub-section (6) thereof as follows :

"(6) In this section, and in section 28, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts-

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant,

and knowledge that any acts or omission did or did not , as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

28. Moreover, imputed or constructive knowledge is provided for by sub-section (8) as follows :

"(8) For the purpose of this section and section 28 a person's knowledge includes knowledge which he might reasonably have been expected to acquire-

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice."

29. These subsections of section 27 of the Limitation Ordinance cited above have their equivalent in England, similarly worded, in section 2A of the 1975 Limitation Act. In the case of Thompson v. Brown (H.L.) [1981] 1 WLR 744, Lord Diplock had this to say at page 749 :

"Section 2A (6) provides a statutory answer to the question that divided this House in Smith v Central Asbestos Co. Ltd [1973] A.C. 518 under the Act of 1963. A plaintiff's ignorance in law that he had a cause of action against the defendant is not to prevent the limitation period from starting if he knows the other facts referred to in subsections (6) and (7) or has imputed knowledge of them under subsection (8)."

30. Applying that law to the present case, it is quite clear that the lack of knowledge relied upon by the plaintiff was that he did not know he had a cause of action against the defendant in respect of his common law claim as he was under the mistaken belief that having been paid the employees compensation, that was all the compensation he was entitled to. This is no more than his ignorance in law that he had a cause of action against the defendant and as such it does not prevent the limitation period from starting from the time the cause of action arose, namely, when the plaintiff had his accident on 27 September 1997. It is not a case where the plaintiff lacked knowledge of some facts upon which his claim is based and which prevented him from realising he had a claim against the defendants.

31. Accordingly, the time for the limitation period starting to run in the present case can only be from the date of the accident, at which time the plaintiff was fully aware of all the facts which formed the basis of his claim.

The Second Issue

32. Before dealing with the substantive merits of the Second Issue, it must be said at once that although ignorance of the law giving to the plaintiff a cause of action is fatal to the First Issue as I have held above, it is not per se fatal to the Second Issue since one of the factor that should be taken into consideration as provided by the wording of section 30(3)(e) is whether the plaintiff acted promptly and reasonably after he came to know that he has a cause of action.

33. The Second Issue turns on whether it would be equitable in all the circumstances of the case to disapply the limitation period as provided for by section 30 of the Limitation Ordinance. That section gives the Court complete and unfettered discretion in the matter (per Lord Diplock in Thompson v. Brown Construction (Ebbw Vale) Ltd [1981] 1 WLR 744 at 752). That discretion is to be exercised by balancing the prejudice that may be caused to a plaintiff by the limitation period if that were to apply as against the prejudice which may be caused to a defendant if the court were to disapply the limitation period. In carrying out such balancing exercise, the court decides whether it would be fair and just to allow an action commenced after the expiration of the limitation period to proceed or not.

34. Apart from taking into account all the circumstances of the case, section 30(3) provides for six particular matters specified thereunder to be considered by the court.

35. Firstly as to the length of and the reason for the delay, that has already been dealt with above.

36. Secondly, the extent to which the evidence likely to be adduced by either party is likely to be less cogent because of the delay, this aspect is covered by the affidavit evidence from the defendants that they have been irretrievably prejudiced because of faded memory of (Lau Ngok) as well as the lost contact with other possible witness to this accident.

37. Thirdly, as for the conduct of the defendants after the date of the accident, since there is no evidence that the plaintiff had made any requests for information from the defendant after the date of the accident, there can be no fault or blame on the defendants in this respect.

38. Fourthly, as for the duration of any disability of the plaintiff arising after the date of the accident, the evidence shows that the plaintiff was granted sick leave for three months until late December 1997. The plaintiff did resume work with the 1st defendant as from late January 1998 and worked there for the next five months and again worked with the 1st defendant in June and July 1999.

39. Fifthly, after the plaintiff came to know that he had a cause of action over and above the employees compensation assessed by the Labour Department, again the evidence shows that the plaintiff acted diligently going almost at once to seek advice from solicitors, Messrs Massie & Clement and who in turn acted very promptly in not only applying for legal aid for the plaintiff but also in issuing a Writ on the plaintiff's behalf long before legal aid was granted to the plaintiff.

40. Lastly, no steps were taken by the plaintiff to obtain medical or legal advice before he approached Messrs Massie & Clement no doubt because it was not until late November 2000 that the plaintiff realized that he had in law a cause of action against the defendants for this accident.

41. Apart from the above matters, I also take into consideration the fact that the plaintiff will in all likelihood not have any claim against his solicitors if the limitation period is not disapplied. In other words the plaintiff will be left with no alternative recourse. On the other hand I also take account the fact that the plaintiff was assessed and paid $46,680.86 by way of employees compensation and appeared to have accepted that assessment without any objection or complaint.

42. Taking into account all the above considerations, the one factor which stands out must be the prejudice that the defendants will be subjected to if the plaintiff's claim was allowed to proceed. Nor am I persuaded by the submission advanced by Mr Clough that even if the plaintiff had issued the Writ just within the three year period, the defendant would have been in exactly the same position as they find themselves now. Indeed that position and that argument had been considered by Lord Oliver of Aylmerton in the case of Donovan v. Gwentoys Ltd [1990] 1 WLR 472 where he said at page 479 :

"The argument in favour of the proposition that dilatoriness on the part of the plaintiff in issuing his writ is irrelevant until the period of limitation has expired rests upon the proposition that, since a defendant has no legal ground for complaint if the plaintiff issues his writ one day before the expiry of the period, it follows that he suffers no prejudice if the writ is not issued until two days later, save to the extent that, if the section is disapplied, he is deprived of his vested right to defeat the plaintiff's claim on that ground alone. In my opinion, this is a false point. A defendant is always likely to be prejudiced by the dilatoriness of a plaintiff in pursuing his claim. Witnesses' memories may fade, records may be lost or destroyed, opportunities for inspection and report may be lost. The fact that the law permits a plaintiff within prescribed limits to disadvantage a defendant in this way does not mean that the defendant is not prejudiced. It merely means that he is not in a position to complain of whatever prejudice he suffers. Once a plaintiff allows the permitted time to elapse, the defendant is no longer subjected to that disability, and in a situation in which the court is directed to consider all the circumstances of the case and to balance the prejudice to the parties, the fact that the claim has, as a result of the plaintiff's failure to use the time allowed to him, become a thoroughly stale claim, cannot, in my judgment, be irrelevant."

43. I find myself in total agreement with those words cited above. In all the circumstances of this case, I am not prepared to exercise my discretion to disapply the period of limitation.

44. It is never easy to have to decide to rule in such a way which would result in a plaintiff being unable to pursue a claim for damages resulting from injuries suffered by him particularly where he has no other recourse (as for instance against his solicitors for their negligence). However, the only comfort that I can have lies in the fact that the plaintiff has to date received $46,680.86 by way of employees compensation for those injuries suffered by him and at the time he received it appears from all the evidence that he was contented with the amount of that award.

45. Accordingly the order of the Master is confirmed in full and the appeal by the plaintiff is dismissed. There will be a costs order nisi that the plaintiff do pay the defendants their cost of this appeal.