WAI MING KUI, by WAI FONG FONG, his next friend v. EXPRESS SECURITY LTD

DCEC 2254/2018

[2019] HKDC 703

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2254 OF 2018

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DECISION

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1.  This is an application taken out by the applicant under Order 15, rules 7 & 15 of the Rules of the District Court (“RDC”), for an order that the next friend of the applicant to be appointed to represent the estate of the applicant Wai Ming Kui (韋明區), who had died on 18 March 2019.

BACKGROUND

2.  The applicant was a senior security guard employed by the respondent. On 16 December 2016, he met with an accident while at work.  He suffered severe head injuries in the accident where he was later declared as a mentally incapacitated person (“MIP”).  There seems to be no dispute that he had sustained the injuries while in the course of his employment with the respondent and the injuries arose out of his employment. 

3.  As a result of his injuries and subsequent being declared as a MIP, his youngest daughter Wai Fong Fong (“Wai”) was appointed by the Guardianship Board as his next friend and guardian on 6 November 2017. 

4.  The applicant commenced the present proceedings by Wai on 28 September 2018.

5.  On 26 November 2018, the respondent’s solicitors filed a notice to act on behalf of the respondent.

6.  On 4 January 2019, Wai has become the next friend of the applicant in the present proceedings.     

7.  On 14 January 2019 the respondent made a sanctioned payment in the sum of HK$1.7 million in full and final settlement of the present proceedings.

8.  Wai was advised by her lawyers that the above sum is a reasonable amount for the purpose of settlement.  She was prepared to accept the above sanctioned payment and had instructed her solicitors to issue a notice of acceptance on 4 February 2019 and to apply to the court, on behalf of the applicant, to approve the settlement.  An inter-parte summons was issued on 15 March 2019 by the applicant’s solicitors for that purpose.

9.  Sadly, the applicant passed away on 18 March 2019, just 3 days after the summons for the approval of the settlement was issued.  He was 67 years old.

DISCUSSION

10.  According to Order 15, rule 7 of the RDC, the cause of action survives and these proceedings shall not abate by reason of the death of the applicant. This is not disputed by the parties.

11.  However, as the applicant died intestate and therefore has no personal representative, Wai in her capacity as “next friend” applied by summons under Order 15, rules 7 & 15 of the RDC to be appointed to represent the estate of the applicant, since deceased, for the purpose of these proceedings.

12.  The only dispute between the parties is whether Wai as “next friend” should be appointed to represent the estate of the applicant for the purpose of the present proceedings (as proposed by the applicant); or, alternatively, whether Wai should be made a party to this action and the proceedings be carried on as if Wai had been substituted for the applicant, since deceased (as proposed by the respondent). 

13.  There is no real difference between the proposed changes to the title of the applicant’s name between the parties, namely, that the applicant’s name in the title to the subsequent proceedings should be amended to “WAI FONG FONG, appointed by Order dated [ ] to represent the estate of WAI MING KUI (韋明區), since deceased”, as per the applicant’ summons.  The only word missing in the respondent proposed title is the word “since”, which, in my view, does not affect the substance of the proposed changes.

14.  Since there is a disagreement between the parties which resulted in a short hearing before me, the applicant wants the costs of the application to be paid by the respondent to be taxed on a common fund basis and the respondent says that the applicant should pay for the costs of the application.   

15.  Mr Yeung for the applicant submits that both Order 15, rules 7 & 15 of the RDC apply in this case.  In particular, he submits that rule 15(1) applies here as the next friend was not a party and she has no personal interest in the matter, therefore she has to be appointed to represent the estate of the deceased.  For the proposed changes to the title, he says that he has merely followed the wording suggested in §15/15/7 of the White Book (Hong Kong Civil Procedure 2019 at p 400). 

16.  He states that when a person dies during the course of a proceedings, the family members can either apply to the court for a grant and then to become the personal representative and then continue the proceedings; or, in order to save costs and time, they can simply apply to the court for an order appointing the person to “carry on” the proceedings, which is what he says he is trying to do under the summons.    

17.  Ms Siu for the respondent does not have any objection for a “carry on” order to be made under Order 15, rule 7 but disputes that rule 15 applies. Her submission is that rule 15 does not apply as there has already been an existing proceedings.  Her reason why rule 15 does not apply is that: (i) Wai is not a party to the proceedings, she was merely a next friend; and (ii) her role as next friend ceased upon the death of the applicant, which means she is no longer a party to the proceedings.  She therefore submits that in order for Wai to be able to properly represent the estate and for the liability of the respondent to be discharged, Wai needs to be made a party to this action first and then to substitute her father’s name who appears as the applicant in this case at present.   

18.  I agree with the respondent’s submission that her role as next friend ceased upon the death of the applicant.  Hence, from that point onwards, she was no longer the next friend nor was she a party to the proceedings.  The only party in the proceedings before the death of the applicant was the applicant himself of whom Wai was acting as his next friend due to his mental incapacity.  

19.  In my view, in order for her to continue to represent the estate of the applicant, Wai would need an order from the court to make her to become a party to the action and the proceedings be carried on as if Wai had been substituted for the applicant. Further, in order for the respondent (and its insurer) to ensure proper discharge of its liability under the settlement, she needs to become a party to this action and to substitute the father’s name who appears as the applicant in the present proceedings.

CONCLUSION

20.  For the aforestated reasons, I will make an order that:-

(i) Wai Fong Fong be made a party to this action and the proceedings be carried on as if Wai Fong Fong had been substituted for Wai Ming Kui (韋明區), since deceased;

(ii) The applicant’s name in the title of these proceedings be amended to “Wai Fong Fong, appointed by Order dated 24 May 2019 to represent the estate of Wai Ming Kui (韋明區), since deceased.”

21.  The costs of this application be to the respondent, such costs to be taxed if not agreed.