TAM OI KAU v. TACKSEN SHUI HING GODOWN CO LTD AND ANOTHER

HEADNOTE

Personal injuries action - Primary limitation period of three years - Date of plaintiff first having knowledge of identity of Crown as a defendant - When limitation period began to run - Whether equitable to override limitation period - Factors to be included in exercise of Court's discretion - Prejudice to plaintiff - Prejudice to defendant - Plaintiff legally aided - Assigned solicitor dilatory - Blameworthiness of Legal Aid Department as organ of Crown for not taking case away from dilator assigned solicitor at earlier stage - Plaintiff not having cast-iron case for professional negligence against legal advisers - Limitation Ordinance (Cap. 347), S. 27, 28 and 30. Alternatives of adding new defendants and new causes of action to existing action or commencing fresh action - Same principle of what is equitable applying under either procedure - Limitation Ordinance, S. 35 and R. S. C. 015 r 6(5).

            The plaintiff's husband, who was a demolition worker, was killed in an accident at his place of work when crushed by a wall at a demolition site on 15th August 1980. On 27th May 1981, the plaintiff was assigned a solicitor under a Legal Aid Certificate which was limited to "claiming damages from employer for failing to ensure safe system of work". The writ was issued on 20th July 1983 against the deceased's employer, claiming damages for negligence under L. A. R. C. O. (Cap. 23) and F. A. O. (Cap. 22). The deceased's employer turned out to be a man of straw who was insured against injury to his workmen with a company in liquidation which looked as if it would be unable to meet claims.

            As the Legal Aid Department were dissatisfied with the rate of progress being made by the assigned solicitor on the plaintiff's claim, the matter was taken away from the original solicitor and re-assigned to a new solicitor, but not until 9th November 1984.

            Through her new solicitors, the plaintiff learnt for the first time on 5th December 1984 that on the day of the accident, the site where the fatality occurred was owned or occupied by the Crown. The fact of the Crown's ownership or occupation was not something that the plaintiff could reasonably have been expected to observe or ascertain earlier.

            The plaintiff's Legal Aid Certificate was now extended to the institution of proceedings against the Attorney-General.

            A writ was issued against the Attorney-General on 28th December 1984, claiming damages in respect of the death for negligence, as well as for breach of statutory duty under the Occupiers' Liability Ordinance (Cap. 314) and the Buildings Ordinance (Cap. 123).

            By his Defence, the Attorney-General pleaded, inter alia, that by virtue of Sections 27 & 28 of the Limitation Ordinance (Cap. 347), which lays down a primary limitation period of three years for personal injuries claims, the action is statute-barred.

            On the plaintiff's summons to determine whether the time-bar applies, Held:-

1984 No. 8735

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. The present application is to determine whether the plaintiff's action is time-barred under the Limitation Ordinance (Cap. 347), and if so, whether the time-bar can be overriden.

2. The plaintiff is the widow of Mo Yong Hing who died on the 15th August 1980. On the day of his death, he was employed by Yim Sang as a demolition worker. Yim Sang had a contract to demolish some structures at 37A, South Bay Road, Hong Kong. While carrying out his work at that site,  a wall fell on the plaintiff's late husband, causing him injuries from which he died later the same day.

3. For the purpose of pursuing any claims arising from her late husband's death, the plaintiff made an application to the Legal Aid Department. I have no idea of the precise date when she first consulted the Legal Aid Department, but, obviously, she acted with reasonable expedition for, as early as the 27th May 1981, the Legal Aid Department assigned a solicitor to her. Instead of specifying that legal aid was being granted for the purpose of pursuing all claims arising from the death, the Legal Aid Certificate assigning the solicitor stated that "Legal aid has been granted for the purpose of claiming damages from employer for failing to ensure safe system of work".

4. The solicitor assigned to the plaintiff appears to have interpreted the Legal Aid Certificate somewhat literally, since the writ issued in due course by that solicitor named only Yim Sang as a defendant and limited the claim to damages under the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) and the Fatal Accident Ordinance (Cap. 22) for negligence by failing to ensure a safe system of work. Significantly, neither the owner nor the occupier of the site was joined in the action as a defendant, and there were no claims under the Occupiers' Liability Ordinance (Cap. 314), nor under the Buildings Ordinance (Cap. 123) for breach of statutory duty.

5. Needless to say, the plaintiff sued in a representative capacity. Her solicitor was reasonably quick in obtaining Letters of Administration. They issued on the 16th September 1981. Regrettably, after that, the solicitor handled the plaintiff's action in a most dilatory manner.  Despite constant prodding from the Legal Aid Department the solicitor did virtually nothing until the 20th July 1983 when a writ, being No. 9200 of 1983, was at last issued. That was less than a month before the normal limitation period of three years for personal injury claims was due to expire.

6. That writ was served on Yim Sang on the 21st July 1983. After that, the solicitor allowed the matter, to go to sleep again. By November 1984, the Legal Aid Department had finally lost patience with the solicitor it had assigned to the plaintiff. On the 9th November 1984, the Legal Aid Department took the case away from the original solicitor, and re-assigned to the plaintiff's present solicitor. This was a step which the Legal Aid Department should have taken, at, least two years earlier in my opinion.  The Legal Aid Department were, frankly, far too tender in their dealings with the original solicitor.

7. Ever since being assigned to this case, the plaintiff's present solicitors have obviously attended to it energetically. On taking over this case, the plaintiff's present solicitors became aware that Yim Sang is a man of straw. That might not have mattered as he was insured against accidents to his workmen but, unfortunately, his insurers - China Underwriters Life and General Insurance Co. Ltd. - are in liquidation with poor prospects for creditors ever getting more than a minute fraction of their claims.

8. The plaintiff's present solicitors directed their attention to the question of who were the owners and/or occupiers of the site where the wall collapsed on the deceased. On the 5th December 1984, the plaintiff's present solicitors became aware for the first time that the Crown was the owner and/or occupier of that wall. It transpired in the course of the hearing before me that the information about the Crown being the owner and/or occupier of the wall had been difficult for the plaintiff's present solicitors to come by. The Crown's occupation and/or ownership of this wall was far from obvious. Land searches had failed to reveal the ownership and/or occupation of the wall to the plaintiff's present solicitors; they had discovered the fact from Yim Sang' s solicitors who, in their turn, had experienced difficulty in ascertaining this fact.

9. Once the plaintiff's present solicitors learnt that the wall was in the ownership and/or occupation of the Crown, they immediately communicated this fact to the plaintiff. Although I have no direct evidence on this, I have no doubt as a matter of commonsense that the first time the plaintiff herself knew that the wall had been in the ownership and/or occupation of the Crown was when this was communicated  to her by her present solicitors on or after the 5th of December 1984. It would be unrealistic to suppose that some one in such a humble station in life as the widow of a workman would get to know about the ownership and/or occupation of a wall unless her own solicitor told her.

10. The plaintiff's present solicitors also learnt that Yim Sang had been employed by the Tacksen Shui Hing Godown Company Limited to carry out the demolition work on the site. It was not, however, until the actual hearing of the present application before me that the plaintiff's solicitors learnt that Tacksen Shui Hing Godown Company Limited had at one stage been the lessee of the site where the wall collapsed.

11. After learning on the 5th of December 1984 that the Crown had been the owner and/or occupier of the collapsed wall at the material time, the plaintiff's present solicitor and the Legal Aid Department proceeded with commendable speed by extending the Legal Aid Certificate to "the institution of proceedings against Tacksen Shui Hing Godown Ltd. and the Attorney General".

12. A letter dated 11th December 1984 from the plaintiff's present solicitor warned the Attorney-General for the first time that the Croon would be sued as owner of the wall in respect of the death. Writ No. 8735 of 1984 was duly issued on the 28th December 1984 against Tacksen Shui Hing Godown Company Limited as 1st Defendant and the Attorney-General as 2nd Defendant. By that writ, the plaintiff, on behalf of her late husband's estate and his dependants, claims not only in respect of negligence but also for breach of statutory duty under the Occupiers' Liability Ordinance and the Buildings Ordinance.

13. That writ was duly served on both defendants. There having been no acknowledgment of service on behalf of Tacksen Shui Hing Godown Company Limited, the plaintiff has obtained interlocutory judgment by default against that company. However, it already looks as if any judgment for damages awarded against that company is going to be empty. Apart from having a registered office, nothing is known about the company. It does not even feature in the telephone directory. More likely than not, it has ceased to do business.

14. The Crown has filed a defence, denying liability. Moreover, the Crown contends that by virtue of Sections 27 and 28 of the Limitation Ordinance, which lay down a primary limitation period of three years for personal injuries claims, the action is statute-barred. I now set out sections 27 and 28 of the Limitation Ordinance:

15. Consideration can now be given to the question whether the limitation period has expired yet. There can be no doubt that three years have passed since the cause of action accrued. The crucial question is whether three years have passed from the date of the plaintiff's knowledge. More particularly, in view of section 27(6)(c), have three years passed since the date on which the plaintiff first had knowledge of the identity of the Crown as the owner and/or occupier of the wall? In this context, section 27(8) comes into play. Applying a straight forward reading of those subsections to the plaintiff's circumstances, I am satisfied that she did not know the identity of the Crown for the purposes of section 27 and section 28 of the Limitation Ordinance until the 5th December 1984.  Nor could she reasonably have been expected to acquire such knowledge before then from facts observable or ascertainable by her. Hence, she was well within time when she issued and served the writ to which the Attorney General was a defendant. In my opinion, the plaintiff could only be brought within the time-bars of section 27 and section 28 by reading words into those sections which simply are not there, but I can see no justification for such an approach to interpretation.

16. Mr. Mitchell's submission on behalf of the plaintiff was double-barrelled. Even if the Court did not find in the plaintiff's favour under section 27 and section 28, Mr. Mitchell contended that, nonetheless, the Court should exercise its discretion under section 30 of the Limitation Ordinance and override sections 27 and 28. I now set out so much of section 30 as is relevant.

17. I have no doubt that the plaintiff's circumstances bring her within the principle of Thompson v. Brown [1981] 1W. L. R. 745 which is to the effect that the Court's discretion to make or refuse an order under, section 30, if it considers it, equitable to do so, is unfettered. As explained by Kempster, J .A. in Lee Yuet Ling, etc. v. Kwan Kwing Kwei, etc. (Civil Appeal No. 56 of 1985), the plaintiff must satisfy the Court that it would be equitable to allow the action to proceed, and in reaching its decision the Court has to perform a balancing exercise. Section 30(3) sets out a number of factors which have to be taken into account when performing that balancing exercise.

18. There can be no doubt that the Crown will suffer some prejudice if the plaintiff is allowed to go ahead with this action.  How any defendant who is deprived of a time-bar defence suffers some prejudice is explained by Lord Diplock in Thompson v. Brown at p. 750. However, in the instant case, the Crown does not seek to contend that it will suffer any special prejudice; only the general prejudice which any defendant inevitably suffers.

19. According to the Crown, the plaintiff need not suffer any prejudice if the action against the Crown is barred. The Crown contends that the plaintiff would have a cast-iron claim against her former solicitor and/or the Legal Aid Department for failing to sue the Crown within time. I must confess that I am far less sanguine than Crown Counsel about the plaintiff's prospects in a negligence action against either her former solicitor and/or the Legal Aid Department. Her former solicitor might successfully shelter behind the somewhat circumscribed terms of reference in the original Legal Aid Certificate. That former solicitor would say, in effect, that he had done everything required of him by the Legal Aid Department, namely to sue the deceased's employer for failing to provide a safe system of work. There is no reference in that Legal Aid Certificate to suing the Crown. Whether the plaintiff would have any cause of action against the Legal Aid Department in negligence is an open question. There could be all sorts of pitfalls in the way of suing the Legal Aid Department. For a start, there is the problem of getting legal aid to sue the Legal Aid Department. And even if legal aid is obtained for this purpose, there is the moot problem of the duty of care owed by the Legal Aid Department to its clients.

20. Far from the plaintiff's claim being cast-iron against her former solicitor and/or the Legal Aid Department, it is fraught with difficulties, and she could easily finish up succeeding against neither of them, despite her having had a good claim against the Crown apart from the time-bar point.

21. Grave prejudice will befall the plaintiff if a time-bar is allowed to stand in the way of her suing the Crown. According to the Crown, it is not the time-bar which is the cause of the prejudice but rather the cause lies in the negligence of her former solicitors and/or the Director of Legal Aid. According to Crown Counsel, the plaintiff's problems are "self-inflicted", by which I take him to mean inflicted either by her former solicitor or the Legal Aid Department. It is difficult to see what the plaintiff could have done more to help herself. I regard Crown Counsel's argument on this point as fallacious. There are always multiple causes for any event. If Crown Counsel's argument were correct, there would never be any scope for relaxing a time-bar where the limitation period had expired due to the negligence of a plaintiff's solicitor. Yet the Law Peports are full of cases where the Courts have disapplied a time-bar in precisely those circumstances. Thompson v. Brown itself is such a case.

22. Crown Counsel has, in my respectful opinion, failed to comprehend a passage on which he relied from Walkley v. Precision Forgings Limited [1979] 1 W. L. R. 606 at p. 609. That case concerns the situation where a plaintiff has commenced his action within the limitation period, but then, for some reason, allows the case to lapse, and then seeks to commence a fresh action outside the limitation period. The Court sets its face against allowing a time-bar to be overridden in those circumstances. In that context, Lord Wilberforce made the observation, "He brought his first action within the normal limitation period, and if he has suffered any prejudice, it is by his own inaction and not by the operation of the Act". Purporting to follow the line of reasoning in that case, Crown Counsel before me seeks to say that if the plaintiff has suffered any prejudice it is by the inaction of her former solicitor and/or the Director of Legal Aid and not by the operation of the Limitation Ordinance. That argument only holds water, however in the context of a plaintiff who brought his action within the normal limitation period. Crown Counsel has not been the first to attempt this particular line of argument. A similar argument was mounted by the defence in Simpson v. Norwest Holst Southern Ltd. [1980] 2 All ER 471 but with the same lack of success (see the observations of Lawton L. J. at page 478 c to d).

23. In the instant case, the plaintiff has not brought an action against the Crown within the normal limitation period and in my view Walkley v. Precision Forgings Limited simply has no application to the circumstances before me.

24. That Walkley v. Precision Forgings Limited presents no procedural obstacle to someone like the plaintiff seeking redress out of time against a defendant in the Crowns position is made manifest by the provisions of Section 35 of the Limitation Ordinance and Order 15 rule 6(5). (See The Supreme Court Practice, 1985, pages 178 and 1580.) Both singly and cumulatively, those provisions allow new defendants and new causes to be added in a personal injuries action after the primary limitation period has expired. Through the doctrine of relation back, the action against the new defendant is deemed to have been commenced on the same date as the original action. (See Ketteman v. Hansel Properties Ltd. [1985] All E 352.)

25. Procedurally, someone in the plaintiff's position has a choice. She can issue fresh proceedings against the defendant, as she has done here, or she can apply to have the defendant joined in the existing proceedings, being H .C .A. 9200/83. Exactly the same considerations apply under each procedure when considering the issue of whether it would be equitable to disapply the time-bar. Whichever procedure she chooses, the merits alone will dictate the result. Long gone are the days when a party might lose an application by choosing the wrong procedure. Procedure these days is a servant, not a master. Modern judges are in the happy position of having to look up to a just result alone as the master.

26. I will now touch briefly upon each of the particular factors referred to in section 30(3).

27. Regarding (a), the length of the delay involved is some 16 months, and I do not think I need add anything further on the reasons for the delay.

28. Under (b), I would expect the effect of a 16 months delay on the cogency of the evidence in a case like the present one to be minimal.

29. Next, (c). The conduct of the Attorney General after the cause of action arose cannot be faulted. However, the Attorney General is only the nominal defendant. The real defendant is the Crown. One of the organs of the Crown is the Legal Aid Department. I have already voiced my opinion that the Legal Aid Department was too indulgent towards the plaintiff's former solicitors who should have been taken off the case at a far earlier stage. Had that been done, it is hardly conceivable that the plaintiff would now be reduced to having to seek the exercise of the Court's discretion in her favour under section 30. The conduct of the Crown through the Legal Aid Department is one of the factors I feel should be taken into account to dispose me to exercise my discretion in the plaintiff's favour.

30. As there is no question of disability, sub-para. (d) does not arise.

31. No fault can be laid at the plaintiff's door for not acting promptly and reasonably as required by sub-para. (3).

32. Again, the plaintiff cannot be faulted under sub-para. (f).

33. Having performed my balancing exercise and having considered what in the circumstances of this application as a whole would be equitable, I find the scale tips overwhelmingly in the plaintiff's favour. I would, accordingly ,disapply the time-bars in sections 27 and 28 if I were wrong in my earlier finding that the limitation period has not run against the plaintiff yet.

34. There is also an application to consolidate High Court Action No. 8735 of 1984 with High Court Action No. 9200 of 1983. As there is no resistance to this application, I make the order for consolidation as prayed.

35. Directions are sought for the consolidated action. I give the usual directions. If any party wants those directions to be particularized, or seeks any special direction, I grant liberty to apply for further directions either to a Master or to a Judge of the High Court.

36. At the close of the submissions, I indicated that I would give my decision and reasons in writing, in due course, in accordance with order 42 rule 5B(2). This judgment is being delivered pursuant to that rule. As the matter could be of some general public interest, formal delivery of the judgment will take place in open court.

37. I make an Order Nisi in the plaintiff's favour for costs.