YEUNG MO SHING v. CHUNG FAI ENGINEERING CO LTD AND ANOTHER

HCPI 301/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 301 OF 2002

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REASONS FOR DECISION

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1. This is an appeal against the decision of Master B Kwan made on 15 November 2002 dismissing the Plaintiff's application for an order (1) for leave to join W Hing Construction Company Limited as 2nd Defendant and (2) section 27 of the Limitation Ordinance be disapplied as against the 1st and 2nd Defendants and (3) for leave to amend the writ and Statement of Claim.

2. This matter arose out of an industrial accident occurring on 13 August 1998 at the then construction site of Yan Hing Industrial Building at Section J of Lot 39 Tseung Kwan O. W Hing Construction Company Limited (hereinafter called "W Hing") was the main contractor at the site, and Chung Fai Engineering Company Limited (herein after called "Chung Fai") was a subcontractor. According to the intended Amended Statement of Claim, Chung Fai was a subcontractor in respect of electrical works. However according to the affirmation of Mr Lok of Chung Fai and the accident report complied by the Labour Department, Chung Fai was a subcontractor for the mechanical ventilation air-condition installation work. It is probably not material for the present purpose to find out what exactly was the scope of the subcontract of Chung Fai. It is quite clear that the scope of the work would include certain electrical work. The accident occurred in the afternoon of 13 August 1998 shortly after 2 p.m. According to the Plaintiff's intended Amended Statement of Claim, at the time of the accident, the Plaintiff was required to perform electrical wiring work at the site with 2 fellow employees of Chung Fai. As their work places was obstructed by a mobile tubular scaffold it was necessary for them to move it away before they could perform their work. When the Plaintiff's 2 fellow employees were pushing or moving the mobile scaffold, it suddenly overturned whereby the Plaintiff was hit by the falling frame-work and/or the loose materials and objects on the mobile scaffold and sustained serious injuries. It is fair to point out that according to an accident report compiled by the Labour Department to which the Plaintiff had affirmed to be true in relation to how the accident occurred, the Plaintiff had not been struck by the frame work but was only struck by some falling objects from the platform of the frame work.

3. After the accident the Plaintiff was hospitalized for the periods from 13 August 1998 to 1 September 1998 and again between 1 August 2000 and 15 August 2000. At least for Employee Compensation purposes, he was given sick leave for the periods of 13 August 1998 to 19 July 1999, 26 July 1999 to 27 July 1999, 2 August 1999 to 16 August 1999. According to his affirmation, after the sick leave expired in August 1999 the Plaintiff worked as a part time electrical technician again although he still felt the pain in his left ankle and he required frequent physiotherapy. He received both physiotherapy and occupational therapy treatments until around April 2000. He worked for various employers including Chung Fai for short periods. In April 2000 he was recommended by the occupational therapists to try to resume work. He did so in June 2000.

4. Apparently the treatment he received would include the insertion of an implant to his left heel. According to paragraph 2 of his 3rd affirmation, when he almost finished his occupational therapy treatment in April 2000, he was told by the therapist that most people would get better recovery of their injury after the removal of the internal implant. The removal of the implant took place during his hospitalization in the United Christian Hospital between 1 August 2000 and 15 August 2000. After his discharge on 15 August 2000 he received physiotherapy treatment. He resumed work again as technician on 1 October 2000. He claimed that after he resumed work he still felt the pain at his left ankle but at the time he still believed that he would get well after the removal of the implant. He said that he tried to tolerate the pain. But he did not get well and he started to consider claiming against his previous employer in mid 2001.

5. The Plaintiff's explanation for his not issuing proceedings within 3 years from the date of the accident was that he was misled by either Mr Tam of the Labour Tribunal or one Miss Kwai, a representative of his own insurer that he had 6 years to lodge his claim. In so far as Mr Tam is concerned, the Labour Department wrote on 24 June 2002 to say that although one Mr Tam Tse Kin did interview the Plaintiff on 10 September 1998 Mr Tam did not explain any matters related to the procedure for claiming common law proceedings to the Plaintiff. In fact Mr Tam was the officer who compiled the accident report referred to by the Plaintiff in his affirmation. In so far as Miss Kwai is concerned, according to the Plaintiff, she was merely a representative of the insurance company who had once insured the Plaintiff. However the Plaintiff's policy with that insurance company had been cancelled before the accident.

6. According to the Plaintiff's solicitor's letter of 15 October 2002, in or about November 2001 the Plaintiff came to know about the service of the Duty Lawyers Free Legal Advice Service from T.V. advertisement. He then attended the Home Affairs Department in Wong Tai Sin to apply for such service. Later an appointment was made for him to meet the duty lawyer at Kwun Tong. The Plaintiff could not recall the date or the lawyer concerned. The Plaintiff affirmed to say that he was advised by the duty lawyer of the effect of limitation period on his claim. He then sought assistance from Social Welfare Department and Labour Department and was referred to the Legal Aid Department.

7. The Home Affairs Department as well as the Duty Lawyers Scheme Services had both denied that they had ever advertised the free legal advice service on T.V. However there could be no doubt that eventually the Plaintiff obtained legal aid and the writ of this action was issued on 16 April 2002, just over 8 months after the 3 years anniversary of the accident. At the time, the writ was just against Chung Fai. The endorsement of claim was amended on 18 April 2002 to make it clear that the Plaintiff was applying under section 30 of the Limitation Ordinance to dis-apply section 27 of the Limitation Ordinance to the Plaintiff's claim against Chung Fai. On 23 July 2002, the Plaintiff applied by summons to join W Hing as the 2nd Defendant and at the same time to amend the Statement of Claim to reflect the claim against the additional party. On 15 November 2002, Master B Kwan dismissed the Plaintiff's applications.

8. Section 27 of the Limitation Ordinance made provisions for the time limit for bringing action on personal injuries. For the present purposes, the relevant part is section 27(3), (6), (7) and (8). They are in the following terms:

"(3) Subject to section 30, an action to which this section applies shall not be brought after the expiration of the period specified in subsection (4) and (5).

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

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

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

(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 ahd knowledge of the following facts -

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

(b) that that 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 omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

(7) For the purposes of this section an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8) For the purposes of this section and section 28 a person's 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."

9. In the case of the claim against Chung Fai, it is implicit in the Plaintiff's writ and summons that the Plaintiff acknowledged that unless the court would exercise its power under section 30, the action would be barred by section 27(3) & (4). However there is a doubt as to whether the Plaintiff would concede that the claim against W Hing would be similarly barred.

10. In relation to the claim against W Hing, the Plaintiff in his first affirmation said that "I could not have recalled the name of the principal contractor of the site until copy of the said Accident Report was received from the Labour Department in middle of May 2002" and the Plaintiff would thus contend that since the Plaintiff did not have the knowledge of the identity of the 2nd Defendant, the 3 year period would not start to run until May 2002. If this argument is correct, then plainly no question of limitation would arise and there would be little reason for not allowing the Plaintiff to amend the writ to sue W Hing. However I am of the view that this argument is not sound. What the Plaintiff said in his affirmation was "I could not have recalled the name...". He did not say I did not know the name of the principal contractor until May 2002. Indeed in his statement to Mr Tam on 10 September 1998, he had stated that the contractor at the site was W Hing. I am of the view that if he became aware of the identity of the principal contractor at any time before the accident on 13 August 1998, then the 3 year under section 27(4) would begin to run from 13 August 1998. If he became aware of the identity of the principal contractor at any time after 13 August 1998, the 3 year would start running from the date of his knowing the identity. In this case, he must be aware of the identity of the principal contractor latest by 10 September 1998, and the overwhelming probabilities are that he would have acquired this knowledge at the time when he worked at the site and I thus take the view that he would have been aware of the identity of the principal contractor on or before the date of the accident. The fact that he had since forgotten about it is not relevant for the purpose of the running of the 3 years period under section 27(4), although it may be a factor to be taken into account for the purpose of the exercise of the Court's discretion under section 30.

11. Hence in the present case, I approach the matter on the basis that the claim by the Plaintiff against both Chung Fai and W Hing were caught by Section 27 of the Limitation Ordinance and it is a question of whether the Court should exercise its power under section 30 to dis-apply section 27 so that Chung Fai, and/or W Hing would not be allowed to rely on the 3 years limitation defence.

12. The relevant parts of section 30 of the Limitation Ordinance are in the following terms:

"30. Court's power to override time limits

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -

(a) the provision of section 27 or 28 prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to -

(a) the length of, and the reasons for, the delay on the part of the plaintiff,

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c) the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

13. As it is plain from the language of section 30, what the court must consider, in terms of section 30(1), is whether it would be equitable to allow the action to proceed against Chung Fai and W Hing, having regard to the degree to which the limitations in section 27, prejudice the Plaintiff, and the extent that the Chung Fai and W Hing would be prejudiced if there should be a direction that the limitation period set out in section 27 is not to apply to the Plaintiff's claim against them. In Hartley v Birmingham City District Council [1992] 2 All ER 213, it was held by the English Court of Appeal in the context of an application under section 33(1) of the Limitation Act 1980 (which was in identical terms to section 30 of the Limitation Ordinance) that it was wrong for the court to ask the question of whether the limitation period should be disapplied when the defendants had been presented with a cast-iron defence by way of a windfall because of a short delay on the part of the Plaintiff in issuing the writ. In the same case, Parker LJ further observed that (at page 224d):

"It appears to me to be apparent that in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied. Likewise the weaker the case of the plaintiff the less is he prejudiced by the operation of the provision and the less is the defendant prejudiced if it is disapplied."

14. Thus it is usually not necessary to consider the relative strength of the plaintiff's and the defendant's case. However it would be important to consider whether the plaintiff would have any claim against any alternative parties which is not affected by the application of the limitation period. Also it is always important to consider whether in the light of the lapse of time since the cause of action accrued and not just since the expiration of the 3 years limitation period, the Defendant's ability to properly defend the action is affected (see Donovan v Gwentoys Ltd [1990] 1 WLR 472). Of course, by the express words of section 30(3), the Court must also take into account the 6 factors therein specified.

15. In the present case, as against Chung Fai, the delay is about 8 months. This is not a very long period. The Plaintiff purported to give 2 reasons for the delay viz (a) he was misled by either one Mr Tam of the Labour Tribunal or Miss Kwai of his own insurer that the limitation period was 6 years, and (b) he did not quite realize the seriousness of his own injury, and until the later part of 2001 he always thought that he had a good recovery because he was so told by his doctor during the following-up appointments. He further said that although he felt pain at his left ankle, he found the pain being tolerable and this led him to delay in making the present claims although he always believed that the accident was due to the negligence of Chung Fai and W Hing. I must say that I do not find the reasons for the delay to be convincing. First, I do not think that it would be reasonable for him to rely on the words of just a representative of his own insurer and in all the circumstances of this case, I found it very unlikely that Mr Tam of the Labour Department would have told him that the limitation for his making a personal injury claim would be 6 years. In relation to the reason that his injuries was more serious than he thought, it is to be noted that the removal of the implant took place in August 2000 and thereafter he still complained of pain. I take the view that soon after August 2000 he should realize that his recovery was not as good as he thought and should have considered taking legal action. Indeed, he also admitted that by mid 2001 he started considering claiming against Chung Fai and if he had acted promptly the writ could well be issued within 3 years from the date of the accident. Furthermore the Plaintiff's account on the subsequent actions he took before the issue of the writ was not very clear. If it is suggested that some delay was caused by the free advice service and the legal aid application, it is certainly open to him to give the particulars as to when he received the advice and when he applied for legal aid. In the present case, although I must take notice that the Plaintiff was legally aided and that there must be some inevitable delay in the application for legal aid process, I was given no clue as to the exact time required for this inevitable delay process.

16. In the present case, the fact that the Plaintiff always believed that the accident was due to the negligence of Chung Fai, his employer and yet he did not take any action until after the 3 years period is a factor against the exercise the discretion in his favour. In this respect it is to be noted that it is not the Plaintiff's case that he did not know that he could have a claim against Chung Fai or W Hing. It was simply a case of his inactivity. Thus the factors set out in section 30(3)(e) & (f) are not in the Plaintiff's favour.

17. Likewise in the present case, the Plaintiff had not made any request to either Chung Fai or W Hing for any information. Furthermore, neither Chung Fai nor W Hing had done anything which would impede the Plaintiff's making any claim against them. Accordingly the factor set out in section 33(3) of the Ordinance would not be applicable at all.

18. The most important factor in the present case is whether Chung Fai's and W Hing's conduct of their defence would be prejudiced by the delay in the Plaintiff's delay in the issue of the writ. In this respect, while the wordings of section 33(3)(b) would dictate as a separate factor consideration factor the prejudice arising from the delay since the expiration of the 3 years period from the date of accrual of the cause of action, it is also necessary to consider the overall prejudice faced by the defendants in meeting a claim brought after the 3 years period. Thus although I am of the view that the evidence before me does not suggest that Chung Fai or W Hing would suffer much more prejudice arising from the period of delay since the expiration of the 3 years period, I have to consider their position as on date of the writ or the application for the amendment to the writ. In this respect, it may be necessary to consider the prejudice suffered by Chung Fai and W Hing separately.

19. In so far as Chung Fai is concerned, it was plainly aware of the accident. This is clear from the fact that Chung Fai had filed the accident report with the Labour Department on 29 August 1998. In the report, there was a brief description on how the accident occurred. There was an amendment to the report filed later but it would appear that the amendments only related to the number of days of work within a month. Chung Fai claimed that it has suffered from prejudice because of the loss of evidence. First although the Plaintiff had brought employee compensation claim against Chung Fai, the claim for employee compensation did not relate to the responsibility for the cause of the injuries. Thus although there was clear record on the extent of the Plaintiff's injuries, and Chung Fai must be aware of them, this would not assist Chung Fai's defence on the common law tortuous claim much. Secondly it would appear that at the time of the accident, there were at least 3 other persons at the scene who may assist on how the accident occurred. These people were Mr Lau Hing Sheung, Mr Wong Ka Fai and one Mr Chow Yue. Chung Fai's case was that Mr Lau was now unable to recall the circumstances of the accident owing to the lapse of time. In relation to Mr Wong Ka Fai, he could not be found owing to the lapse of time. As to Mr Chow Yue, he was never an employee of Chung Fai, and Chung Fai could not locate him.

20. On the part of the Plaintiff, it was contended that although Chung Fai had never been prosecuted by the Labour Department, Chung Fai should have made some investigation on the cause of the accident and should have preserved the evidence. There was employee compensation claim brought against Chung Fai. Furthermore it was contended that since both the Plaintiff and Lau Hing Sheung had made statements to the Labour Department and such statements were available from the report of the Labour Department officers, Chung Fai was not prejudiced. Furthermore even in the accident report filed by Chung Fai, there was a description of how the accident occurred.

21. The statements taken by the Labour Department from the Plaintiff and from Mr Lau were adduced as part of the evidence before me in this application. They were taken in Chinese but with a certified English translation. With no disrespect to the translators, there were some discrepancies in the translations which may well be material to the present case. I therefore look at the original statements in Chinese. From the Plaintiff's statement, it appeared that in the afternoon of 13 August 1998 at about 2 p.m. the Plaintiff was engaged in the work of "clearing the boxes" (清箱) together with 3 other co-workers. The Plaintiff statement further said:

"'we' found a iron tubular scaffold and 'we' would like to push it away to make more room for our work. When 2 amongst us were pulling that tubular scaffold, I found that it was going to overturn. I at once went near hoping to help to hold back the scaffold to the vertical position. However when I went close to the scaffold, it began to fall down. The miscellaneous items on the scaffold fell down. I wanted to escape but it was too late. I was hit by the miscellaneous objects, then I fainted...."

According to the statement of Mr Lau, he said:

"On the day of the accident, that is about 2 o'clock in the afternoon of 13 August 1998, at the first floor of the site I together with one other co-worker Wong Ka Fai were engaged in the work of "clearing boxes" (清箱). Because the "clearing boxes" (清箱) were at the ceiling, we need to use the mobile iron tubular scaffold. When we pushed that iron tubular scaffold to the required position, the wheel below the tubular scaffold hit some rock pieces on the ground, then the scaffold began to overturn. We attempted to stop it from overturning and at this moment, one of our Chung Fai's workers, Yeung Mo Shing saw this and came to assist. But after a few seconds, we could not prevent it from overturning. I at once ran away in another direction. After that the scaffold overturned and fell on the ground. The structure was shattered. I saw Mr Yeung lying on the ground....."

22. While it was reasonably clear, as from the accident report filed by Chung Fai that the Plaintiff was hit and injured when he assisted or tried to assist in preventing the scaffold form overturning, there was some discrepancies in the exact role of the Plaintiff and Mr Lau, and Mr Wong in the work of the clearing boxes. Counsel for the Plaintiff submitted that from the statements the Plaintiff was not involved in the clearing of any boxes at the ceiling level but Lau and Wong were. Since the Plaintiff was hit by miscellaneous objects falling from the scaffold, there would not be any question that these objects were left there or allowed to be there by Lau and/or Wong, and it could not be the Plaintiff who left the objects there. Chung Fai may well be liable for the negligence of Lau and Wong in leaving or allowing these objects to be left on the scaffold. However I take the view that since the Plaintiff also admitted in his statement that he was involved in the clearing boxes work together with 3 others co-workers, the possibility of the Plaintiff's being responsible for leaving or allowing objects to be left on the scaffold could not be ruled out. If indeed he was responsible for the objects being left on the scaffold which fell and hit him, there might well be the question of contributory negligence on his part which would also be relevant in a common law negligence claim. The scope of the investigation required in this case is thus not just limited to the exact moment of happening of the accident, but would extend to the wider scope of who had done what before the accident.

23. Of course from the particulars of negligence given in the intended re-amended statement of claim, I noted that the bulk of the allegations of negligence would appear to be based on the Plaintiff's claim that the scaffold was an obstruction to the work place of the Plaintiff, and in the is respect, there would appear to be a conflict between the Plaintiff's case and the statement of Mr Lau that in fact the moving of the scaffold was not to make more room for work but was part and parcel of the steps required for performing the work. However the Plaintiff's complaint of the presence of rock pieces on the ground making the work place unsafe would appear to be appropriate whether the moving of the scaffold was necessitated for making more room for work or as a step in the work itself.

24. However bearing in mind that the scope of the investigation in the present case is bound to involve the particular role of each of the co-workers in relation to the responsibility for leaving objects on the scaffold, the loss of memory on the details on the part of Lau and the unavailability of co-worker Wong Ka Fai and possibly also Chow Yue would definitely affect Chung Fai's defence to the claim. In the end, I am of the view that the Master had come to the right decision in dismissing the Plaintiff's application against Chung Fai.

25. As far as W Hing is concerned, the prejudice is even more serious. There was no evidence to suggest that W Hing was even informed of the accident. It was over 4 years since the date of the accrual of the cause of action when W Hing was first informed of the claim against it. By then the site was no longer a construction site and was a completed building. The main complaint against W Hing was that as the occupier and main contractor, it had failed to make the site safe. Although the evidence from the statement of the Plaintiff and also Mr Lau both suggested that there might be some rock pieces on the ground, W Hing was still entitled to carry out its own independent investigation on the exact condition of the site at the time of the accident. The delay would mean that W Hing was deprived of such opportunities. In the circumstances I am of the view that the Master was also right in dismissing the application to amend the writ to join the W Hing as 2nd Defendant to this action.

26. The appeal is dismissed with cost to the defendants. The Plaintiff being legally aided will have his cost to be taxed in accordance with the legal aid regulations.