WAAN CHUEN MING v. LO KIN NAM t/a KAR KIN ENGINEERING & SUPPLIER CO AND OTHERS

cacv 101/2005 AND cacv 112/2005

CACV 101/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 101 of 2005

(on appeal from HCPI NO. 588 of 2003 AND

HCPI NO. 591 of 2003 (CONSOLIDATED))

(Consolidated by the Order of Master B Kwan dated 7^th June 2004)

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CACV 112/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 112 of 2005

(on appeal from HCPI NO. 588 of 2003 AND

HCPI NO. 591 of 2003 (CONSOLIDATED))

(Consolidated by the Order of Master B Kwan dated 7^th June 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Deputy Judge Carlson given on 23 February 2005.  The matter before the judge was an appeal from an order of the master extending the validity of the plaintiff’s writ in HCPI 591 of 2003.  The judge dismissed that appeal.  At the conclusion of the hearing of this appeal, this court reserved its judgment which we now give.

Background

2.  The plaintiff was injured in an accident at work in 2000.  He was, apparently, undertaking maintenance work at the second defendant’s factory.  He was injured when attempts were being made to reinstate a calendaring unit into a splintering machine.  His injuries were severe.  According to the statement of claim, he was in hospital for 7 to 8 months.

3.  In July 2001 the plaintiff was granted legal aid.  In the following year he filed a claim under the Employees’ Compensation Ordinance.  In January 2003 an order for discovery was made in those proceedings in answer to which the second defendant filed a list of documents.  A few days before the three-year limitation period expired, the plaintiff issued separate writs against the first and second defendants.  The question which had not been resolved by that stage was as to which of those parties was the direct employer of the plaintiff.  As the judge below observed, in April 2003 the discovery which the second defendant had filed included some invoices which carried a possible suggestion, “but by no means conclusive” that the first defendant had been the direct employer.

4.  In October 2003 the plaintiff was advised by counsel that both actions should be consolidated and the writ against the second defendant should be served.  The matter then came before the master on a Check List Review hearing in February 2004, but since the plaintiff was then seeking to consolidate the actions, the master considered that there was not sufficient time to entertain that application and directed the plaintiff to file a separate summons for consolidation.  That summons which was eventually issued in April 2004, some two months after the Check List Review, with a return date one day after the expiration of the writ.  The writ was then served on the second defendant’s solicitors on 14 June, one-week after its expiry, and the point was subsequently taken that the service of the writ was out of time.

5.  There was a preliminary hearing in the employees’ compensation application on 14 January 2005 as a result of which H H Judge Lok held that the plaintiff’s direct employer was the first defendant and not the second defendant.

This appeal

6.  On this appeal Miss Lee, who appeared on behalf of the third defendant, who are the second defendant’s insurers and have been joined as a party to the action, took the point that although the judge, and for that matter the master who delivered a reasoned judgment, had expressed the law as to extension of time of validity of a writ correctly, he had failed to take into account the crucial factors that the plaintiff had to show, namely, good reason for the renewal of the writ and a satisfactory explanation for his failure to apply for renewal before the expiry of the validity.  It was said that only when those matters were decided could the court then go on to consider the question of the balance of hardship.

7.  In my view the judge, and for that matter the master, did apply the correct test.  They considered that the matter was finely balanced.  In my view they were entitled to take into account the comparatively short period during which the writ had expired before the attempted service and the factor that the second defendant and its insurers were well aware of the existence of the writ and indeed the contents of the amended statement of claim since at least February 2004.  They were left in no doubt that the plaintiff was pursuing a claim against them.

8.  One factor which was particularly significant was the matter of discovery by the second defendant of relevant documents in the employees’ compensation proceedings.  The plaintiff only succeeded in having full discovery of documents relevant to the issue of whether the plaintiff was employed by the second defendant after proceedings had been taken to enforce further orders for discovery in late October 2004.  As late as October 2004 the plaintiff was still applying for an “unless” order to enforce complete discovery against the second defendant.

9.  Given the fraught nature of the plaintiff’s case as to whether the plaintiff was the employee of the second defendant it is not surprising that the plaintiff’s advisers were cautious in their approach as to whether to continue proceedings against the second defendant, particularly as the plaintiff was legally aided.

10.  Furthermore although, as Miss Lee has pointed out, the plaintiff’s claim against the second defendant was not only based upon negligence but also under the Occupiers Liability Ordinance, I would observe at this stage simply that that latter claim would not appear to be, by any means, straight forward.  I would say no more at this stage than that.

11.  Since this is an appeal in respect of the exercise of the discretion by the judge I would not interfere with the judge’s exercise of discretion unless it were clear that the judge had erred either in law or in fact.  I am not so satisfied.

12.  I would mention however that if it came to a question of this court having to balance the hardship, having considered the judgment of the master in this matter, it seems to me that it is by no means certain that if the validity of the writ in this matter were not extended, the plaintiff would be in a position to pursue its legal advisers for negligence.  I say that because the ability of a plaintiff, who has been found to be statute-barred, to recover against the legal advisers has sometimes been taken into account in matters of this nature.  The finding by H H Judge Lok in the employees’ compensation proceedings would make it difficult for the plaintiff to succeed against the legal advisers in the absence of the second defendant.

13.  Furthermore, although the second defendant would be deprived of its right to claim that the plaintiff’s claim is statute barred, it would be in circumstances where it had been defending the employees’ compensation claim for some considerable time.  It had also been served with copies of the writ and statement of claim well before the expiry of the validity of the writ albeit the formal steps of service of the writ had not been taken.  The consolidation application, itself, made it abundantly clear that the plaintiff was still pursuing a claim against the second defendant.  It is not suggested that if application to extend the validity of the writ had been made before its expiry that an extension would not have been granted.

14.  I would conclude this matter by reiterating what was discussed during the course of argument, that it can only be a matter of proper office practice that legal advisers should keep a diary with entries of deadline dates.

Hon Le Pichon JA:

15.  I agree.

Hon Rogers VP:

16.  The appeal will therefore be dismissed with an order nisi of costs in favour of the plaintiff.