PANG KWOK LAM v. SCHNEIDER ELECTRIC ASIA PACIFIC LTD

HCPI 90/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 90 OF 2010

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BETWEEN

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DECISION

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1.  The Plaintiff was employed by the Defendant to work as a storeman at its warehouse in Kwai Chung (“Warehouse”).

I. PLAINTIFF’S CLAIM

2.  The Plaintiff claims that on 8 March 2007 whilst working under the Defendant’s instructions at the Warehouse he unloaded a carton of electronic/electric equipment (“Goods”) that weighed about 22 kg (“Carton”) when he was suddenly knocked down by a trolley/cart which was pushed or pulled by the Defendant’s servant and/or agent, ie a female employee/worker called “Ah Ching”.  He fell backwards to the ground and was hit by the Carton (“Accident”), and as a result he suffered personal injuries.

3.  The Plaintiff further claims that the Accident was caused by breach of implied terms of his contract of employment with the Defendant and/or negligence and breach of statutory duty on the part of the Defendant, its servants and/or agents (for which the Defendant is vicariously liable).

4.  On 2 March 2010, the Plaintiff commenced the present proceedings to claim against the Defendant for damages for personal injuries and/or other loss and damages as a result of the Accident.

II. DEFENDANT’S DEFENCE

5.  On 23 June 2010, the Defendant filed its Defence denying liability. The Defendant does not admit the circumstances of the Accident as alleged by the Plaintiff, and claims that even if it owed any duty of care to the Plaintiff (which is denied), it had discharged such duty by taking all reasonable steps.

6.  Further or alternatively, the Defendant avers that the full name of “Ah Ching” is Wong Suk Ching who was an employee of Beyond Logistics Co (“BLC”) being the Defendant’s independent contractor that provided pick and pack service at the Warehouse, so even if the Accident happened as alleged by the Plaintiff (which the Defendant denies), it was caused wholly by the negligence on the part of BLC, its servants, representatives and/or employees and/or by Wong Suk Ching for whom BLC is vicariously liable.  The Defendant further claims it had satisfied itself that BLC was competent to perform the pick and pack service and had properly performed such service.

7.  Still further or alternatively, if the Accident happened as alleged by the Plaintiff (which is denied), the Defendant avers that the Accident was caused wholly or contributed to by the negligence of the Plaintiff.

8.  According to the Answers to Requests for Further and Better Particulars (“FBP”) of the Defence filed on 20 August 2010 and dated 7 September 2010 respectively (“1^st and 2^nd FBP Answers”), the Defendant avers that:

(a) under its agreement in writing with BLC for pick and pack service (which agreement had been lost without copy), BLC was required to arrange for labour to perform pick and pack as well as quality inspection services at the Warehouse;

(b) BLC assigned “Ah Ching” to work at the Warehouse to perform such pick and pack and quality inspection services;

(c) “Ah Ching” is in fact Wong Suk Ching who was commonly referred to as “Ah Ching” by the Defendant’s staff (including Mr Sunny Hui (“Hui”) and Mr Chris Chan (“Chan”)) when she worked at the Warehouse, and Hui saw her at the place of the Accident (“Scene”) shortly after the Accident occurred;

(d) the Defendant had satisfied itself that BLC was competent to carry out pick and pack service and had properly performed such service by having its staff (including Chan) supervise such service from time to time.

9.  By their letter dated 14 September 2010 to the Defendant’s solicitors Messrs Leung & Lau (“LL”), the Plaintiff’s solicitors Messrs Ricky Li & Co (“RLC”) complained inter alia that the 1^st and 2^nd FBP Answers failed to exhaustively identify the Defendant’s staff (other than Hui and Chan) who commonly referred to Wong Suk Ching as “Ah Ching” and the Defendant’s staff (other than Chan) who supervised BLC’s service.  By a further letter dated 28 September 2010 to LL, RLC claimed the 1^st and 2^nd FBP Answers were evasive and urged the Defendant to respond to the further requests.  But to date the Plaintiff has not issued any summons to compel the Defendant to furnish answers to such further requests.

III. SUMMONS

10.  On 30 July 2010, the Plaintiff issued a summons (“Summons”) seeking the following reliefs:

(a) leave to join Law Yuen Ming (“Law”) formerly trading as BLC as a further defendant on the basis that the relevant limitation period has not expired or alternatively that section 27 of the Limitation Ordinance Cap. 347 (“Ordinance”) be disapplied pursuant to section 30 thereof;

(b) leave to amend the Writ of Summons (to describe the Defendant and BLC respectively as the 1^st and 2^nd Defendants) as per the draft annexed to the Summons with consequential directions for service thereof;

(c) leave to amend the Statement of Claim and the Defence generally with consequential directions for service of such amended pleadings.

11.  The Plaintiff has filed the affirmation of his solicitor Pang Wing Hong dated 4 August 2010 and his own affirmation dated 9 November 2010 in support of the Summons. BLC has filed the affirmation of Law’s husband Ng Suen Chiu (“Ng”) dated 11 October 2010 in opposition.

12.  On 20 September 2010, upon the Defendant supporting the Summons and electing not to file any affirmation thereto, I excused the Defendant from attending the substantive hearing of the Summons on 15 December 2010.

IV. BACKGROUND – EMPLOYEES’ COMPENSATION PROCEEDINGS

13.  By a Notice of Accident dated 20 March 2007 signed by the Plaintiff and submitted to the Labour Department (“Notice of Accident”), the Plaintiff describes the Accident as “搬運貨物時，失去平衡向後跌倒而被貨物壓傷”.

14.  In the Form 2 dated 30 March 2007 submitted to the Labour Department (“Form 2”), the Defendant states inter alia that the Plaintiff suffered injury on duty (ie “執貨時，壓傷及扭傷腰部和腳”) on 8 March 2007.

15.  On 23 January 2009, RLC on behalf of the Plaintiff commenced DCEC81/2009 (“EC Action”) against the Defendant (who was represented by LL) to claim employees’ compensation in respect of the Accident.  The Application avers that “[on] the 8^th March 2007 at [the Warehouse], the Applicant [ie the Plaintiff herein] was in the course of employment and under the instruction of the Respondent [ie the Defendant herein], when he was involved in an accident.  As a result of the accident, the Applicant [ie the Plaintiff herein] sustained injury to his low back and right leg”.

16.  By an Answer filed on 26 March 2009, the Defendant admitted that the Plaintiff “was an employee of the [Defendant] on 8^th March 2007”, but did not admit the circumstances of the alleged accident.

17.  By a Consent Order dated 27 July 2009, the Plaintiff entered interlocutory judgment against the Defendant in the EC Action leaving compensation to be assessed.  On/about 30 December 2009, the Defendant made a sanctioned payment, which the Plaintiff accepted on 25 January 2010 in settlement of the whole of his claim in the EC Action.

V. BACKGROUND – COMMON LAW PROCEEDINGS

18.  On 28 December 2009, RLC on behalf of the Plaintiff issued a pre-action letter to the Defendant (with copy to the Defendant’s insurer) in respect of the Plaintiff’s claim for common law damages as a result of the Accident (“Pre-action Letter”).  In such letter, RLC states inter alia that whilst the Plaintiff was unloading the Carton at the Warehouse on 8 March 2007 he was knocked down by a trolley or fork-lift truck, fell to the ground and suffered personal injuries.

19.  On 11 January 2010, the Defendant forwarded the Pre-action Letter to the insurer.  On 16 January 2010, LL urged RLC to withhold legal action pending investigation of the Plaintiff’s claim.  On 2 February 2010, LL asked RLC why the Plaintiff would be knocked down by a trolley or a fork-lift truck as alleged.  Inter partes discussion/correspondence eventually resulted in the nomination of single joint psychiatric and urology experts and in arrangements for them to medically exmaine the Plaintiff.

20.  On 5 March 2010, RLC served the Writ of Summons on LL.  On 7 April 2010, the Plaintiff filed his pleadings and medical reports.  On 23 June 2010, after obtaining an extension of time, the Defendant filed its Defence which avers inter alia that “Ah Ching” is Wong Suk Ching and an employee and/or agent of the Defendant’s independent contractor BLC.  On 28 June 2010, RLC considered that BLC should be joined as a further defendant in the present proceedings and asked LL for information about BLC.

21.  According to the business registration search record dated 29 June 2010 (“BR Record”), BLC previously carried on transportation business at an address in Tsuen Wan, and Law was its former sole proprietor.  The BR Record further shows that BLC commenced and ceased business on 28 August 2003 and 31 July 2009 respectively.

22.  On 6 July 2010, LL gave RLC the Chinese name of BLC, but RLC complained this was insufficient and asked whether BLC was the sub-contractor referred to in the Defence.  On 24 July 2010, LL gave BLC’s correspondence address in Tsuen Wan as known to the Defendant to RLC.

23.  On 8 July 2010, RLC wrote to inform Law formerly trading as BLC about the Accident and the pleadings herein, and asked for information/ documents as to (a) whether BLC was the Defendant’s sub-contractor for pick and pack service at the Warehouse on 8 March 2007 and (b) whether “Ah Ching” is Wong Suk Ching and Law’s/BLC’s employee/servant working at the Warehouse on 8 March 2007 under the Defendant’s instructions.

24.  On 15 July 2010, Messrs ONC Lawyers (“ONCL”) on behalf of Law/BLC requested for time to take instructions, and RLC agreed to withhold further action for 14 days.  On 29 July 2010, ONCL gave a substantive reply as follows:

(a) BCL never received any notice of the Accident, and only knew about it upon receipt of RLC’s letter dated 8 July 2010 (see the above paragraph) on 12 July 2010;

(b) since the Accident occurred in March 2007, BLC had ceased business since 31 July 2009 and most of BLC’s documents had been lost, BLC had great difficulty in investigating further about the Accident and the Plaintiff’s alleged claim;

(c) since about April 2005 BLC and the Defendant had an agreement for the supply of labour for pick and pack service at the Warehouse as evidenced by BLC’s quotation to the Defendant dated 26 January 2005 (“BLC Quotation”), which quotation was accepted/signed by the Defendant and which provides for HK$30.00/manhour per worker, but BLC could no longer locate such signed acceptance;

(d) BLC only supplied casual workers (whose salaries were paid in cash and recorded in BLC’s petty cash voucher) to the Defendant;

(e) BLC could only locate a standard form employment agreement which would be signed by its casual workers (“Employment Agreement”) and which provides that “本人……為[BLC]臨時合約員工，期間由__年__月__日至__年__月__日，工資以日薪/時薪每天計算及發放。雙方於上述期間內如有需要終止/取消聘約及此協議，可於一天前口頭通知對方即可，無需任何賠償或補償”, but BLC could no longer find any such signed agreements;

(f) 黃淑貞 (transliteration of Wong Suk Ching) was employed by the Defendant as a casual worker and assigned to perform pick and pack service at the Warehouse;

(g) BLC’s invoice dated 31 March 2007 to the Defendant (“BLC Invoice”) states inter alia that 8 casual workers were supplied to the Defendant to perform pick and pack service, and BLC’s petty cash voucher dated 12 March 2007 (“BLC Voucher”) shows that 黃淑貞 (transliteration of Wong Suk Ching) was one of BLC’s casual workers assigned to work at the Warehouse from 5 to 9 March 2007;

(h) BLC did not know whether “Ah Ching” was one of the 8 casual workers supplied to the Defendant and could not confirm whether “Ah Ching” is Wong Suk Ching who was allegedly involved in the Accident since the BLC Voucher reveals that 2 out of the 8 workers BLC supplied to the Defendant on 8 March 2007 (ie黃淑貞 (transliteration of Wong Suk Ching) and 馮素貞 (transliteration of Fung So Ching)) have the character 貞 (transliteration of Ching) in their names.

ONCL confirmed they had made enquiries with the Defendant, and further urged the Plaintiff to withhold action pending further investigation.

25.  On 29 July 2009, ONCL wrote to the Defendant claiming that BLC had great difficulty in investigating the alleged Accident and the Plaintiff’s claim, and asking inter alia for copies of the Form 2, any accident investigation report prepared by and any witness statements taken by the Defendant, its loss adjuster and/or the Labour Department, and any colour photographs of the Scene.

26.  On 30 July 2010, RLC informed ONCL they would apply to join BLC as a party to the present proceedings in order to protect the Plaintiff’s position. Indeed, the Summons was issued on the same day.

27.  On 12 August 2010, ONCL asked RLC for (a) documentary evidence in support of the alleged circumstances of the Accident such as statements, notice of accident, accident investigation report and colour photographs of the Scene, (b) confirmation as to whether the Labour Department had investigated the alleged Accident, (c) copies of any witness statements and accident report, and (d) pleadings filed in the present proceedings.

28.  On the same day, ONCL chased the Defendant and LL for a reply to their letter of 29 July 2010 (see paragraph 25 above).  On 20 August 2010, ONCL again chased LL for a reply and for further confirmation that (a) the Plaintiff only claimed “Ah Ching” was involved in the alleged Accident for the first time in the Statement of Claim, (b) such allegation could not be found elsewhere in the pleadings, witness statements (if any) and documents relevant to the EC Action and/or the present proceedings, and (c) prior to the service of the Defence the Defendant and LL never received enquiries from the Plaintiff about the identity of the person who allegedly pushed/pulled the trolley/cart that hit the Plaintiff, the full name of “Ah Ching”, the identity of the employer of “Ah Ching” and how the Defendant could identify “Ah Ching” as Wong Suk Ching with supporting documents if any.

29.  On 24 August 2010, RLC asked ONCL for the addresses of both 黃淑貞 (transliteration of Wong Suk Ching) and 馮素貞 (transliteration of Fung So Ching).  On 3 September 2010, LL sent to ONCL a copy of the Form 2, and reiterated that the Defendant believed “Ah Ching” as mentioned in the Statement of Claim is Wong Suk Ching.

VI. UNDISPUTED FACTS : MEDICAL REPORTS

30.  The two medical reports by the accident and emergency department (“AED”) of Princess Margaret Hospital (“PMH”) dated 4 February and 2 October 2009 respectively state that when the Plaintiff attended PMH’s AED on 8 March 2007, “[he] reported an injury at work on the same day” and “complained of injuries of head, right elbow, chest and back”.

31.  The two medical reports by PMH’s department of orthopaedics and traumatology dated 31 January and 27 November 2009 respectively state that the Plaintiff claimed to have sustained “an injury whilst on duty on 8.3.2007.  He sustained back injury after a fall.  He complained of back pain with left sciatica”.

32.  The two occupational therapist reports from PMH dated 24 February and 27 October 2009 (collectively, “OT Reports”) respectively state that the Plaintiff “suffered from fall injury while carrying heavy object on 8^th March 2007”.

33.  The medical report by Tsing Yi Cheung Hong General Out Patient Clinic dated 5 February 2009 notes that the Plaintiff gave “past history of injury on duty in March 2007 resulting in back pain”.

34.  The joint orthopaedic expert report of Dr Johnson Lam (for the Plaintiff) and Dr Danny Tsoi (for the Defendant) dated 9 September 2009 (“Orthopaedic Report”) notes as follows:

“According to [the Plaintiff], he was a warehouse attendant at the time of the [Accident] on 8 March 2007. He said he was lifting a piece of goods over 22 kg, and was hit by something. He fell backward, and landed on his head and back. He said his chest was hit by the good during the fall. ……”

35.  The single joint urological expert report of Dr George Koo dated 7 May 2010 notes that the Plaintiff was examined on 13 April 2010 and that he gave an account of his involvement in an “industrial accident” on 8 March 2007 when he was hit by a moving trolley and fell backwards.  The Plaintiff further gave history of feeling dazed and short of breath, and of being helped up by his mates and taken by ambulance to PMH.

36.  The single joint psychiatric expert report of Dr Peter Ho dated 18 May 2010 notes that the Plaintiff was examined on 15 April 2010 and that he gave an account of being knocked down by a trolley whilst packing some goods and of falling to the ground with the goods he was carrying at the time (which weighed about 22kg) pressing on his chest. The Plaintiff further recalled that the Accident occurred suddenly, and that he lost consciousness briefly and was frightened.

VII. ISSUES

37.  The relevant issues are as follows:

(a) whether the Plaintiff’s claim against BLC has been time-barred under the primary limitation period in section 27(4)(a);

(b) whether such claim has been time-barred under the secondary limitation period in section 27(4)(b);

(c) if the primary or secondary limitation period has not yet expired, whether BLC should be joined as a further defendant in the present proceedings under Order 15 rule 6(2)(b) of the Rules of the High Court (“RHC”);

(d) if the primary and secondary limitation periods have expired, whether section 27 should be disapplied pursuant to section 30.

38.  In respect of (b) in the above paragraph, it is common ground that the date when the Plaintiff first had actual knowledge of the matters set out in section 27(6) was within the three-year period prior to the issue of the Summons.  But there is a sub-issue as to whether the Plaintiff might reasonably have been expected to acquire knowledge of the matters set out in section 27(6) from facts observable or ascertainable by him (if necessary with expert help) within or earlier than the three-year period prior to the issue of the Summons in accordance with section 27(8).

39.  In respect of (c) in paragraph 37 above, Law/BLC raises the following sub-issues:

(a) whether the Plaintiff’s claim against Law/BLC is bound to fail in that there is no viable and/or believable factual basis for such claim;

(b) whether the Plaintiff’s claim against Law/BLC is inherently defective on the basis that the “worker in question” worked under the direction, supervision and/or control of the Defendant and Law/BLC did not retain any such direction, supervision and/or control.

40.  Unless otherwise stated, references to “sections” in this decision are references to sections in the Ordinance.  Both Mr Lau, counsel for the Plaintiff, and Mr Ho, counsel for Law/BLC, have no quarrel with the legal principles set out in my decision in Cheung Yin Heung v Hang Lung Real Estate Agency Ltd [2010] 3 HKLRD 67.  In the circumstances, I rely on but shall not repeat those legal principles in this decision.

41.  Counsel also agree that discussions concerning paragraphs 37(b) and 38 above are premised on the assumption that the Plaintiff has a viable claim against Law/BLC (“Assumption”), which is without prejudice to the Defendant’s arguments as set out in paragraph 39 above.  Before I turn to such arguments, it is convenient to dispose of the following three matters shortly.

42.  First, Mr Ho in his supplemental written submissions suggests that the Plaintiff’s cause of action against Law/BLC as pleaded in the draft Amended Indorsement of Claim annexed to the Summons is time-barred in the absence of any averment of “constructive knowledge” under section 27(8), so the Plaintiff is not entitled to argue in favour of any “constructive knowledge” for the purpose of the Summons without a properly pleaded case. 

43.  I reject the suggestion that any “constructive knowledge” has to be specifically pleaded in the draft Amended Indorsement of Claim.  Normally, it is for a defendant to specifically raise any limitation defence, so a plaintiff does not have to anticipate such defence by pleading facts which are not yet material. In any event, the issue of “constructive knowledge” will be decided under the Summons (see paragraphs 37(b) and 38 above), so if I grant leave for Law/BLC to be joined as a further defendant, there is no need for the Plaintiff to plead any “constructive knowledge” in any (to be amended) originating process or pleading.  After all, upon the determination of the limitation issue, such fact will no longer be material.

44.  Secondly, Mr Ho in his supplemental written submissions argues that since the margin note in the Summons refers to Order 15 rule 6(5) of RHC the Plaintiff’s application to join Law/BLC as a further defendant is necessarily premised on the expiry of the relevant limitation period.  But such argument ignores the primary relief expressly sought in the 1^st paragraph of the Summons for joinder of Law/BLC as a further defendant in the present proceedings “on the basis that the relevant limitation period has not expired”.  Further, the court’s power to join a new party within the limitation period is governed by Order 15 rule 6(2)(b) of the RHC, and such power is exercisable by the court “either on its own motion or by application”.  In the end, Mr Ho confirms he will not take such procedural point.

45.  Thirdly, Mr Ho submits that the Plaintiff’s proposed amendments to the pleadings are defective since they fail to set out a viable claim against Law/BLC.  However, both counsel agree that the nub of the present application is whether Law/BLC should be joined as a further defendant, and if I were to grant leave to join Law/BLC as a further defendant in the present proceedings, they further agree that leave should be granted to amend the Writ of Summons as per the draft Amended Writ of Summons annexed to the Summons, but any application to amend the Statement of Claim and/or the Defence should be adjourned until the Plaintiff is able to produce a draft of the proposed Amended Statement of Claim for consideration by the other parties.

VIII. PRIMARY LIMITATION PERIOD

46.  There is no dispute that the primary limitation period under section 27(4)(a) expired on 7 March 2010, ie three years from the date on which the cause of action accrued (which is the date of the Accident).

IX. SECONDARY LIMITATION PERIOD

47.  The secondary limitation period under section 27(4)(b) allows a period of three years from the date of the plaintiff’s knowledge (if later than the date of accrual of cause of action) of the matters specified in section 27(6), ie (a) that his injury was significant, (b) that it was attributable to an act or omission alleged to constitute negligence, (c) of the identity of the defendant, and (d) where the act or omission was of someone other than the defendant, the identity of that person and the factual basis upon which the defendant is vicariously liable.  Such knowledge can be actual knowledge or constructive/imputed knowledge under section 27(8).

(a) Actual knowledge

48.  As explained in paragraph 38 above, it is common ground that the Plaintiff did not acquire the requisite actual knowledge until a point in time within the three-year period immediately preceding the issue of the Summons (ie after 30 July 2007).

(b) Constructive knowledge

49.  According to section 27(8), a plaintiff’s knowledge includes knowledge he may reasonably be expected to acquire from (a) facts observable or ascertainable by him or (b) facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek, but he shall not be fixed 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.  In ascertaining whether the plaintiff knows with sufficient confidence to justify embarking on the preliminaries to the making of a claim (such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence), or on the issue of a writ of summons, each case must turn on its own facts.

50.  The burden is on Law/BLC to show constructive knowledge on the part of the Plaintiff by a date earlier than the three-year period prior to the issue of the Summons, ie by a date on or earlier than 30 July 2007.  The relevant test is an objective one that requires the court to consider the objective situation in which the Plaintiff finds himself in, including the effects of his injury but excluding the personal characteristics individual to him, and then go on to consider when a person in such circumstances with comparable level of injury/disability might reasonably be expected to investigate (if necessary with expert help) and acquire knowledge of the matters set out in section 27(6) including, say, the identity of the “defendant” (ie Law/BLC), the identity of the relevant tortfeasor (ie “Ah Ching”), and the factual basis upon which the “defendant” (ie Law/BLC) is vicariously liable.

51.  The Plaintiff claims that since 3 April 2006 he was employed by the Defendant as a storeman, and his duties included loading and unloading the Goods from shelves at different locations within the Warehouse to pick and pack such products for delivery or adaptation.  Apart from manual handling of the Goods, he also used fork-lift truck or trolley to unload or deliver the Goods to different units at the Warehouse.

52.  In his affirmation, the Plaintiff claims that on 8 March 2007 whilst lifting the Carton at the Warehouse he was suddenly knocked down from behind by a moving object “which seemed to [him] to be a trolley/cart or forklift truck”. He lost his balance and fell backwards to the ground with the Carton falling on his chest.  He was dizzy and in pain as he lied on the ground, and about 30 seconds later a few workers came to help him up to sit on a nearby chair.  He was subsequently taken by ambulance to PMH’s AED.

53.  According to the Plaintiff’s affirmation, at the time of the Accident he did not know what or who hit him that caused him to fall.  It was only until about November 2009 that he heard some colleagues said he was knocked down by a trolley or fork-lift truck.  He “continuously made enquiries with other colleagues who might have known the cause of [his] fall and the identity of the worker who hit or knocked [him] down”.  In/about February 2010, he was finally able to locate his ex-colleagues Mr Hung Ka Man (“Hung”) and Mr Leung Chi Hung (“Leung”) who told him that they saw a female worker called “Ah Ching” hurriedly pushing a trolley away from the Scene immediately after he was knocked down.

54.  The Plaintiff further claims that throughout the EC Action and in the present proceedings up to the service of the Defence on 23 June 2010, neither the Defendant nor LL mentioned about BLC or any servant/agent of any independent contractor who worked at the Warehouse.  The Defendant alleged for the first time in the Defence that “Ah Ching” whose full name is Wong Suk Ching was at all material times an employee and/or servant of BLC (ie the Defendant’s independent contractor that provided pick and pack service at the Warehouse).

55.  Mr Ho casts doubt on the Plaintiff’s above explanations.  He argues that the lack of evidence on specific investigative steps taken by the Plaintiff between March 2007 and November 2009 undermines the Plaintiff’s assertion that he has made enquires as to “how he was being hit from behind”.  Mr Ho also questions why the Plaintiff made enquiries with colleagues and not with his employer especially when the former enquiries led nowhere.  Mr Ho says it is even more bizarre that the Plaintiff would suddenly hear from ex-colleagues in November 2009 that he was hit or knocked down by a trolley or fork-lift truck.

56.  Mr Ho further submits that even on the Plaintiff’s own case, he should have made enquiries with his employer and colleagues shortly after the Accident on how the Accident happened, and the Defendant in turn would have made enquires with BLC, so that in the normal course of events, the Plaintiff would reasonably have been expected to find out from the Defendant about BLC’s involvement probably within a month after the Accident.  Mr Ho argues that the Plaintiff’s cause of action against Law/BLC has been time-barred.

57.  In my view, the underlying premise to such argument appears to be this: had the Plaintiff made enquiries with the Defendant much earlier he would have been able to ascertain the identity of the relevant tortfeasor who committed the alleged negligent act or omission (ie “Ah Ching”), the identity of the “defendant” (ie Law/BLC) and/or the factual basis upon which the “defendant” is vicariously liable (ie “Ah Ching” being Wong Suk Ching and an employee and/or servant of the Defendant’s independent contractor BLC that provided pick and pack service at the Warehouse).

58.  But the Plaintiff was only required to act reasonably in using information he had and in obtaining information he could get to establish knowledge of the above matters.  It is therefore necessary to address a more fundamental issue first, ie whether the identity of Law/BLC and/or whether the factual basis upon which she is said to be vicariously liable are knowledge that the Plaintiff “might reasonably be expected to acquire” from facts observable or ascertainable by him.  To answer this question, one has to consider the position at the material time and not from hindsight.

59.  As H H Judge Mimmie Chan observed in Chan Ngan Fa v Cui You Jun DCPI832/2007 (unreported, 2 March 2009),

“…… the court only expects a person to take reasonable action to acquire knowledge from facts reasonably ascertainable by him. It is reasonable to expect that the action to be taken by a person intending to commence litigation would be proportionate. …… defendants or prospective defendants cannot be expected to readily assist a prospective plaintiff in pursuing his/her claim, and to volunteer information or evidence.”

60.  Applying such principle to the present facts, Mr Ho’s submissions cannot stand if there were no observable or ascertainable facts that would reasonably suggest to the Plaintiff the probable existence of another party apart from the Defendant so as to trigger curiosity to make enquiries.

61.  The Plaintiff in his affirmation claims that the Warehouse was an international distribution centre occupying more than 150,000 sq ft of space and providing logistics service for the export of the Goods within the Asia Pacific operation division of the Defendant’s group of companies with the support of around 100 employees. In the 1^st FBP Answer, the Defendant avers that at all material times it had over 50 workers working at the Warehouse.  I am unable to identify any circumstance in respect of the operations at the Warehouse or the occurrence of the Accident (and none has been suggested by Mr Ho) in the affirmation evidence that would raise (a) any suspicion that the relevant tortfeasor involved in the Accident might not have been an employee of the Defendant, (b) any suspicion of the existence of pro hac vice employees at the Warehouse at the time of the Accident, and (c) any reasonably firmly held belief that would justify embarking on the preliminaries to the making of a claim against Law/BLC or would warrant taking steps to identify the factual basis upon which she was said to be vicariously liable.

62.  In such circumstances, I am firmly of the view there was no need for the Plaintiff to make enquiries with the Defendant on or before 30 July 2007 as to whether any third party was involved in respect of the Accident.  In coming to this view, I also draw assistance from the reasons given by Seagroatt J for his decision in Lau Yan Chor v Hang Lung (Administration) Ltd HCPI 355/1999 (unreported, 19 September 2000) as discussed at pp.91-92 of Cheung Yin Heung.

63.  In any event, even if the Plaintiff could have ascertained the identity of “Ah Ching” as the person involved in the Accident on or before 30 July 2007 (ie within 4½ months after the Accident), still he would not have been in a position to frame a case against Law/BLC, and it would not have triggered the Plaintiff’s curiosity to investigate whether a third party would have been vicariously liable and/or to ascertain the factual basis for such vicarious liability.

64.  Still further, even if the circumstances were to raise such index of suspicion that would render it reasonable for the Plaintiff to begin investigating further into the matter shortly after the Accident (which I disagree), it does not mean that the Plaintiff would have been fixed with knowledge of the involvement of Law/BLC at such point in time or, say, within a month of the Accident as suggested by Mr Ho. In my view, there is no reasonable probability that (a) the Defendant would have identified “Ah Ching” as Wong Suk Ching, (b) the Plaintiff would have found out Wong Suk Ching was the relevant tortfeasor or (c) the Plaintiff would have acquired knowledge of the factual basis upon which Law/BLC is allegedly vicariously liable for the alleged act or omission of “Ah Ching” or Wong Suk Ching on or before 30 July 2007.

65.  After all, although the Pre-action Letter dated 28 December 2009 refers to the Plaintiff being knocked down by a trolley or fork-lift truck, and the Statement of Claim served on 9 April 2010 refers to “Ah Ching”, the Defendant and/or LL did not disclose the identity of “Ah Ching” as Wong Suk Ching and/or the identity of BLC as her general employer until service of the Defence on 23 June 2010.  In the circumstances, I am not persuaded there is any sound basis for Mr Ho’s suggestion that earlier enquiries by the Plaintiff would have elicited prompt clarification of the identities of “Ah Ching” and BLC, say, within a month of the Accident.

66.  Taking all of the above matters into consideration, I am of the view that the Plaintiff upon taking reasonable steps to acquire information would only have known of the Defendant as the party who might have been vicariously liable and could not reasonably have been expected to acquire knowledge of Law’s/BLC’s involvement on or prior to 30 July 2007.  On the basis of the Assumption and since the Plaintiff’s actual and/or constructive knowledge has been acquired within the three-year period prior to the issue of the Summons (ie after 30 July 2007), his claim against Law/BLC is within time.

X. JOINDER OF PARTY

67.  If the Plaintiff’s claim against BLC is not time-barred, the next question is whether leave should be granted to join Law/BLC as a further defendant in the present proceedings under Order 15 rule 6(2)(b) of the RHC which provides inter alia as follows:

“(2) Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

……

(b) order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

68.  According to Hong Kong Civil Procedure 2011 Vol.1 para.15/6/1 at p.285, “[this] rule should be construed so as to bring all parties to disputes relating to one subject matter before the court at the same time so that the disputes may be determined without the delay, inconvenience and expense of separate actions and trials ……  Under it the court has power to secure the determination of all disputes, relating to the same subject matter, without delay and the expense of separate actions ……”  The effect of Order 15 rule 6(2)(b)(ii) of the RHC is to widen the discretion of court as conferred by Order 15 rule 6(2)(b)(i).  The latter allows the adding of a necessary party and the former permits the adding of any person described therein if the question or issue is one which in the opinion of the court will be just and convenient to determine as between the applicant and a party to the proceedings as well as between the parties to proceedings themselves.

69.  To properly exercise such discretion, the court will have to determine to what extent Law/BLC (ie the party proposed to be joined as a party to the proceedings) will assist the court in determining the issues in dispute and to what extent it is just and convenient to determine the issues between the Plaintiff and Law/BLC as well as between the existing parties to the present proceedings.  In doing so, the court will have regard and give effect to the underlying objectives upon assessment of all the circumstances.

70.  At first, Mr Ho submits that the test to be applied is whether the Plaintiff’s proposed claim against Law/BLC has any real prospect of success. Later, he argues the test should be whether such claim is triable and/or believable.  Mr Ho is unable to cite any direct authority to support either proposition, but draws analogy from King’s Quality Homes Ltd v AJ Paints Ltd [1997] 3 All ER 267.

71.  King’s Quality Homes Ltd held that a judge, in determining whether to grant an application for leave to substitute a new party, was entitled to have regard to the merits of the case if they were readily apparent to him. In that case, no remotely sustainable case of negligent misrepresentation was made out in the statement of claim, so the application was refused.  At p.273, Staughton LJ readily recognised that the court would not decide questions of right on applications for amendment under Order 20 rule 5 of the Rules of the Supreme Court and went on to say as follows:

“…… I would have thought that a judge who on such an application would substitute a new party is entitled to have some regard to the merits of the case if they are readily visible to him. Of course he should not conduct a prolonged investigation into the merits, and if he is asked to so do he should not do it. If he can form a rough and ready view of the merits, I do not see why he should not pay regard to it.”

In my view, this is a far cry from providing any positive support for the contention that before any joinder of a new defendant is permitted the plaintiff’s claim must have real prospects of success or must be triable and/or believable.

72.  In my view, given the objectives of Order 15 rule 6(2)(b) of the RHC outlined above, the court’s power to join parties is a generous one, and the court’s attitude is permissive although it must still ensure that the joinder is necessary and/or just having regard to the statutory criteria.  According to Hong Kong Civil Procedure 2011 Vol.1 para.15/6/1 at pp.285-286, “[the] power given by the rule is, however, widely exercised …… though the addition of new parties may cause new expense and necessitate new evidence ……  But, generally speaking, the court will make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute ……  The court will not, however, decide questions of right on applications under the rule ……”

73.  I am persuaded that the relevant approach to be adopted is whether there is a bona fide claim and a proper question to be tried as between the Plaintiff and Law/BLC that is necessary or just and convenient for resolution between them as well as between the Plaintiff and the Defendant in the present proceedings.

74.  On such basis, I turn to the Defendant’s arguments for suggesting that Law/BLC should not be joined as a further defendant in the present proceedings, namely, that the Plaintiff’s claim against Law/BLC (a) is bound to fail because there is no viable and believable factual basis for such claim, and (b) is inherently defective because the “worker in question” worked under the direction, supervision and/or control of the Defendant and not Law/BLC who did not retain any such direction, supervision and/or control.

(a) Plaintiff’s claim against BLC bound to fail?

75.  Mr Ho argues that the evidence so far produced by the Plaintiff on how the Accident happened is so incredible, tenuous and/or contradictory that it cannot constitute any viable or believable factual basis for any alleged cause of action against Law/BLC.  It is said that since the Plaintiff’s claim against Law/BLC is bound to fail, it becomes pointless to allow Law/BLC to be joined as a further defendant to the present proceedings.

76.  Mr Ho submits that the Plaintiff’s case against Law/BLC is unbelievable because he gave different accounts of how the Accident happened (which are highly discrepant) at different times as follows:

(a) In the Notice of Accident dated 20 March 2007 (see paragraph 13 above), the Plaintiff states that he lost balance and fell backwards whilst transporting goods with no mention of being knocked down by a trolley/cart pushed or pulled by someone else.

(b) The OT Reports dated 24 February and 27 October 2009 respectively (see paragraph 32 above) only mention a fall injury whilst carrying heavy objects but nothing about being knocked down by anything or anyone.

(c) The Orthopaedic Report (see paragraph 34 above) shows that it was only when the orthopaedic experts jointly examined the Plaintiff on 3 September 2009 that it was mentioned for the first time the Plaintiff was hit by something (but without stating what it was) when he was lifting some goods.

(d) It was not until the Pre-action Letter dated 28 December 2009 (see paragraph 18 above) that RLC alleged the Plaintiff was knocked down by a trolley or fork-lift truck whilst unloading the Carton at the Warehouse.

(e) In the Statement of Claim filed on 7 April 2010, the Plaintiff pleads that he was knocked down by a trolley/cart which was pushed or pulled by the Defendant’s servant and/or agent being a female employee/worker called “Ah Ching” (see paragraph 2 above) without any alternative allegation of being hit by a fork-lift truck.

(f) The Plaintiff’s affirmation filed in reply to Ng’s affirmation in opposition claims that at the time of the Accident he was lifting the Carton when he was suddenly knocked down from behind by a moving object, which “seemed to him” to be a trolley/cart or fork-lift truck, so he lost his balance and fell backwards to the ground with the Carton falling onto his chest. But later in the same affirmation he said he “did not know” what object hit or knocked him down and/or he was not “able to ascertain the identity of the worker who hit or knocked [him] down” (see paragraphs 52-53 above).

77.  Mr Ho argues that putting the Plaintiff’s case to the highest, he only “suggests” that he was hit by a trolley pushed/pulled by “Ah Ching”, but it does not logically follow from the bare hearsay assertion that “Ah Ching” was seen hurriedly pushing a trolley away from the Scene immediately after the Accident that it must be “Ah Ching” who hit him.  Mr Ho therefore contends that the essential causal connection in the Plaintiff’s case against Law/BLC is remote and indeed missing.  Mr Ho submits that even if the Plaintiff’s claim against Law/BLC is put on trial now, he would not have been able to prove on the present state of the evidence it is more likely than not that he was hit by a trolley pushed by “Ah Ching” at the material time, so it is plain and obvious that the Plaintiff’s case against Law/BLC is bound to fail and there is no point in joining Law/BLC as a further defendant to the present proceedings.

78.  Mr Ho also criticises the evolution of the Plaintiff’s assertions as to how the Accident happened.  Apart from the various versions set out in paragraph 76 above, the Plaintiff says in his affirmation that it was not until about November 2009 that he heard some ex-colleagues said he was knocked down by a trolley or fork-lift truck.  The Plaintiff claims this explained why he could not have told the treatment medical personnel and/or the orthopaedic experts what hit him, and this proved he did not make up his case.  He further claims to have “continuously made enquiries with other colleagues who might have known the cause of [his] fall and the identity of the worker who hit or knocked [him] down”, but it was not until about February 2010 when he was able to locate his ex-colleagues Hung and Leung who told him they saw a female worker called “Ah Ching” hurriedly pushing a trolley away from the Scene immediately after he was knocked down (see paragraph 53 above).  Mr Ho asks me to view the Plaintiff’s various accounts with a high degree of skepticism, but falls short of saying they are wholly unbelievable or not triable.

79.  In my view, the Plaintiff has all along been consistent in saying that at the time of the Accident he was carrying heavy objects and that he lost balance and fell backwards.  The issue is what caused him to fall. Did he slip and fall or was he knocked down by a trolley/cart pushed/pulled by someone?  In my view, ultimately it is a matter of factual evidence for investigation or consideration in the course of the litigation, and it is not so plain and obvious or so readily visible that the scales are already tipped in favour of Law/BLC at this stage.

80.  After all, as Mr Lau points out, the treatment medical personnel were concerned with therapeutic and not forensic matters, and the fact the Plaintiff fell backwards to the ground with the heavy objects falling on him might well have been sufficient medical history for diagnostic and treatment purposes, but the medical experts were forensically able to elicit more history from the Plaintiff of being hit by something (see the Orthopaedic Report in paragraph 34 above) and by a moving trolley (see the single joint urology and psychiatric expert reports in paragraphs 35-36 above).  As regards the account given to the Labour Department and in the Application in the EC Action, the only issue there is whether the Plaintiff suffered any injury on duty, but there was no serious challenge by the Defendant on such issue that required expansion on the particulars of how the Accident occurred.

81.  In my view, whether the Plaintiff’s explanation as to how he discovered he was hit from behind by a trolley/cart will be accepted by the court or not is a matter of credibility of witnesses and assessment of the weight of the evidence which cannot be properly determined at this stage.  The court cannot come to any conclusive finding of fact on affidavit. Mr Lau frankly accepts that circumstantial evidence is relied on to show the person pushing/pulling the trolley/cart that hit the Plaintiff is “Ah Ching”.  However, according to the Plaintiff, both Hung and Leung confirm “Ah Ching” was pushing a trolley at the material time, and they placed her in temporal and spatial proximity with the occurrence of the Accident.  In such circumstances, I agree with Mr Lau that ultimately it is for the court to decide whether it is appropriate to draw the factual inference that the Plaintiff was knocked down by the trolley/cart pushed by “Ah Ching”.  I bear in mind the Plaintiff has all along consistently claimed that he fell backwards to the ground, and it is therefore unsurprising on his case that he did not see and is therefore personally unable to say who or what hit him.  The viability of his assertion that “Ah Ching” is the relevant tortfeasor should not turn on the fortuity of having eyewitness(es) or the misfortune of not having any eyewitness who can give direct evidence in respect of the circumstances of the Accident.  In my view, it is sufficient if the Plaintiff is able to put forward a reasonable basis from which appropriate factual inference may be drawn so that there is a proper question to be tried.

82.  I am not persuaded it is plain and obvious that the Plaintiff’s claim against Law/BLC is not viable at all.

(b) Who is vicariously liable?

83.  The Defendant contends that the Plaintiff’s case against Law/BLC is fundamentally flawed.  It is suggested that even assuming the Plaintiff was actually hit by the trolley pushed/pulled by “Ah Ching” (being Wong Suk Ching and BLC’s general employee), it does not necessarily follow that Law/BLC is vicariously liable for any act or omission on the part of “Ah Ching” or Wong Suk Ching.

84.  In his affirmation, Ng claims that Law was the nominal sole proprietor of BLC which carried on business of inter alia supplying labour for pick and pack service, but Ng (and not Law) was the one who was involved in the daily operations of BLC’s business carried on from their matrimonial home.

85.  Ng explains that since about April 2005 BLC entered into an agreement with the Defendant to supply labour for pick and pack service at the Warehouse, and pursuant to such agreement BLC supplied causal workers to the Defendant at the rate of HK$30.00/manhour or HK$40.00/manhour “without more”.  Such casual workers so supplied by BLC were required to sign simple employment agreements with BLC in the form of the Employment Agreement.  Ng claims that the casual workers assigned to work at the Warehouse worked under the Defendant’s direction, control and/or supervision in respect of the work they did, and BLC did not retain any direction, control and/or supervision.  BLC would not and did not (a) provide such casual workers with any tool, plant or equipment and/or (b) send any supervisor to oversee their work at the Warehouse.  The pick and pack service was a simple manual packaging task, and the casual workers could handle such task entirely on their own.  In any event, the Defendant would be responsible for instructing them on how to perform such task at the workplace and fixing their daily working hours as it wished.  The arrangement between the Defendant and BLC was merely one of supply of labour by BLC to the Defendant, so no vicarious liability attaches to Law/BLC.

86.  Mr Ho also refers to the Defence and the 1^st and 2^nd FBP Answers which provide that at all material times the Defendant had been exercising control, direction and/or supervision over its workers at the Warehouse as follows:

(a) Before the alleged Accident, the Defendant had provided “adequate and proper training, instruction and guidance to its workers (including the Plaintiff) on working procedures and safety”, and had “arranged for its staff with a supervisory role to conduct general and regular inspection over the [Warehouse] and supervision over its workers (including the Plaintiff) to ensure that its training, instruction and guidance regarding working procedures and safety were followed and provide assistance wherever necessary”.

(b) The Defendant “instructed its workers to keep the passageways of the [Warehouse] in a clean and tidy condition, and the workers thereat to be cautious of the surroundings when operating pallet trucks or forklift trucks. Moreover, it arranged for its staff with supervisory role to conduct general and regular inspection over the [Warehouse] to make sure that a safe place of work was provided and maintained”.

(c) Oral instructions, guidance and training on working procedures and safety were given by its staff with a supervisory role (including Mr Kung Shing Chi) to its workers (including the Plaintiff) from time to time and whenever necessary. The exact date of the latest instructions, guidance and training could not be recalled, but full particulars would be given in witness statements to be served.

It is suggested that in such circumstances, the available evidence (including those produced by the Plaintiff) clearly points towards the fact that the Defendant had control not only over what “Ah Ching” was to do but also over how she was to do it at the material time.

87.  To properly deal such arguments, it is necessary to revisit the legal principles on vicarious liability in a situation where employer A lends his employee to employer B for a job and the employee causes damage in the course of doing that job.  Question may arise as to whether the person vicariously liable for the damage is the general employer or the temporary employer or both. “This is in each case a question of fact; and the facts of one case cannot govern another.  They are only useful so far as similarity of facts are a help and guide to decision …… no universal and conclusive test can be laid down ……  It is to be borne in mind that the general employer has a heavy burden of proof to discharge if he is to avoid liability and this probably means that he will be liable unless he proves affirmatively that the temporary employer has acquired the right to control the method of working.  It will not suffice for him to prove merely that he does not have that right himself” (see Clerk & Lindsell on Torts 12^th ed para.6-23 at pp.367-368).

88.  The leading authority is Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd & McFarlane [1946] 2 All ER 345.  The House of Lords made clear that decision as to whether vicarious liability fell on the general or temporary employer depended on the particular facts and many factors might bear in the result, and in assessing the facts, certain considerations that would or might be relevant would include the following:

(a) the burden of showing that responsibility did not remain with the general employer was on him and such burden was a heavy one;

(b) there should be consideration as to who engaged, paid and had power to dismiss the negligent employee;

(c) the court had to consider who had the immediate direction and control of the manner of execution of the relevant work, but if there existed such authority, its exercise or non-exercise on the occasion of the doing of the act in question was irrelevant;

(d) responsibility should lie with the employer in whose act some degree of fault, though remote, might be found.

(see Viasystems (Tyneside) Ltd v Thermal Transfer (Northern Ltd) & ors [2005] 4 All ER 1181, 1184-1185).

89.  Denham v Midland  Employers Mutual Assurance Ltd [1995] 2 QB 437 emphasised that the inquiry on this issue should concentrate on the relevant negligent act and ask whose responsibility it was to prevent it and who was entitled or theoretically obliged to give orders as to how the work should or should not be done.  As Denning LJ put it at p.443, the temporary employer could be vicariously liable if “[the] labourer becomes so much a part of the organisation to which he is seconded that the temporary employer is responsible for him and to him”.

90.  Mr Ho refers to Kwok Wai v Win Base Services Ltd & ors [1999] 2 HKLRD 591, 598 in which Seagroatt J said as follows:

“Cases which have come before the Court fall into two groups. The first is where damage has been caused by an employee in the general employment of one employer, who is working under the directions of a second employer. The second is where the employee of such general employer working under the directions of a second employer suffers damage. Clearly this case falls within the first category. There the general employer may be able to escape vicarious liability, [see Nelhams v Sandells Maintenance Ltd & Another(1996) PIQR52].

In Morris v Breaveglen (t/a Anzac Construction Co) [1993] ICR 766 (which had been judicially considered in Nelhams v Sandells Maintenance Ltd & Another (1996) 5 PIQR 52) Lord Justice Beldam propounded as a test the following:

When the question is which of two possible employers is to be vicariously responsible for the acts or omissions of an employee, it has been found useful as a test to decide which of them was responsible for controlling the actions of the employee which caused the injury; so, in particular, where a skilled man is hired out with plant, which it is his duty to operate, a distinction has been drawn between his actions in carrying out tasks under the direction and control of the “employer” to whom he has been hired and his actions simply in operating the plant. In the former case the particular employer to whom he has been hired, having directed him to carry out a particular task which gives rise to a risk to some third party, bears responsibility if in carrying it out the employee causes injury. But if injury is caused to a third party from the operation of the plant itself a matter left entirely to the skill and judgment of the plant operator and which the particular employer to whom he is hired has no right to dictate to him, then the general employer will be responsible for the actions of its employee.

That decision was made after reviewing a number of authorities including Wilsons & Clyde Coal Co v English [1938] AC 57, Mersey Docks and Harbour Board v Coggins andGriffith(Liverpool) [1947] AC 1, the classic case on the general employers vicarious liability for the negligence of its employee in the operation of equipment, and Denham v Midland Employers MutualAssurance [1955] 2 QB 437.”

91.  In Morris, the injured person was an employee of a firm of building contractors which entered into a sub-contract with the main contractors to supply all necessary labour and carry out labour only groundwork as instructed, and suffered injuries whilst carrying out work under that contract.  It was held that the fact he worked under the main contractors’ directions did not impliedly release the general employer’s personal duty to take reasonable care that he would not be exposed to unnecessary risk of injury, so his general employer remained liable to him even though they delegated their task to the main contractors’ site foreman.

92.  In Nelhams, the plaintiff was a painter employed by the 1^st defendant who was engaged by the 2^nd defendant to do decoration work and who was in turn sub-contracted to the main contractors.  The project was running out of time and the 1^st and 2^nd defendants agreed that employees of the 1^st defendant would work overtime at the direction and under the supervision of the 2^nd defendant.  After the main contractors had left the site, the plaintiff was instructed by an employee of the 2^nd defendant to do painting work and suffered an accident.  After considering several factors, including the attitude of the main contractors and the fact that the plaintiff was “clearly a mature man and responsible employee” such that the general employer would think it unlikely that the employer pro hac vice would operate in an unsafe manner, it was held that the employer pro hac vice had to completely indemnify the general employer.

93.  Given the important distinction between employers being vicariously liable for act done by their employee (as in Mersey Docks and Harbour Board) and employers being liable for injury done to the employee himself (as in Morris, Nelhams and Kwok Wai), I am not persuaded that the latter cases are of assistance in the present context where “the worker in question” being “Ah Ching” or Wong Suk Ching was the alleged direct tortfeasor rather than the injured person.

94.  Recent developments of the law in this area in England has opened the possibility that in cases where the courts are simply unable to decide which of employer A or employer B should be held vicariously liable, they may impose dual vicarious liability even though it has been suggested that the concept of dual vicarious liability ought not to be over-used (see Clerk & Lindsell on Torts 12^th ed para.6-25 at p.368).

95.  In Viasystems (Tyneside) Ltd, the question that arose was whether a fitter’s mate supplied on a labour-only basis by employer A to employer B would render A or B vicariously liable in respect of any tort committed by the mate.  On the basis that both employers had sufficient control of the mate to prevent negligence, May LJ focused the court’s attention on the question of control and thought it appropriate to hold them both vicariously liable for flooding caused by the mate’s negligence, but he did not envisage a finding of dual vicarious liability in many factual situations.  By contrast Rix LJ adopted a broader approach, and even though the degree of control was still relevant and important, he considered the critical test to be whether the employee “is so much a part of the work, business or organisation of both employers that is just to make both employers answer for his negligence.  However, finding that the mate was equally integrated into both A and B’s organisations, he, too, felt it appropriate to impose dual vicarious liability ……  Furthermore, since vicarious liability does not require fault to be shown on the part of an employer, it was said to follow that where it is appropriate to impose vicarious liability, it will typically be shared equally between two employers” (see Clerk & Lindsell on Torts 20^th ed para.6-25 at p.368).

96.  The English Court of Appeal declined to invoke the dual vicarious liability principle in Hawley v Luminar Leisure Ltd [2006] PIQR P17 to hold that a borrowed doorman of a nightclub was the employee of two employers on the ground that there had been effective and substantial transfer of control from employer A to employer B.  Employer B was entitled and therefore obliged to control the doorman’s activities so as to prevent the act complained of, and employer A had no immediate or effective control over the activities of the doorman.  Further, the doorman had been seconded to employer B’s nightclub for so long that he had become embedded in employer B’s organisation and was no longer recognisable as an employee of employer A.  As between employer B as deemed employer and employer A as general employer, employer A’s negligence could be found to have had a negligible cumulative effect.

97.  In Biffa Waste Services Ltd & anor v Maschinenfabrik Ernst Hese GmbH & ors [2009] QB 725, Stanley Burnton LJ in giving the judgment of the court held that (a) exceptional facts were required for a contractor to be vicariously liable for the negligence of his sub-contractor, (b) only where the agreement between them was to be taken as conferring on the contractor the power to control the manner of execution of the work could vicarious liability be transferred from sub-contractor to contractor, and (c) the right to supervise did not, without more, carry with it the entitlement to instruct how to do the work, particularly where the employee was skilled.

98.  In that case, the 1^st defendant (which had the contract to build a new waste disposal plant and was in overall charge of the site) had been supervising skilled welders/grinders who used their own equipment under their own foreman.  The 2^nd defendant (an overseas company with no local presence which won the contract to design and construct a ball mill on the site and which sub-contracted the construction to a third party sub-contractor) had not been exercising control over them which an employer would have exercised.  The work of the welders/grinders for the 2^nd defendant was temporary, and they had not become part of the 2^nd defendant’s business or undertaking. Instead, the third party had sent more personnel than contracted for to do the job, so the 2^nd defendant was held not vicariously liable for the welders’ negligence just on the basis that they had temporarily become its employees.

99.  Mr Ho fairly accepts that the issue of who should be vicariously liable is a question of fact. Hallett LJ in giving the judgment of the court in Hawley said at p.220 as follows:

“Thus, the decision as to whether or not an employee remains an employee of the general employer for the purposes of vicarious liability or whether he is deemed to be the temporary employee of the hirer of his services very much turns on the facts of the individual case. The burden of showing that responsibility has moved to a temporary employer rests on the general employer and is a heavy one. The inquiry should focus on the negligent act and the court should ask itself whose duty it was to prevent that act. ……”

100.  There is no dispute that at the material time Law/BLC was the general employer of Wong Suk Ching and that she worked at the Warehouse on the day of the Accident.  Information forthcoming from the Defendant’s Hui and Chan suggests that Wong Suk Ching was commonly referred to as “Ah Ching”, and Hui saw her hurriedly pushing a trolley at the Scene shortly after the Accident occurred.  In my view, there may arguably be a prima facie inference that Law/BLC was the general employer of the alleged direct tortfeasor.

101.  On such basis, Law/BLC (rather than the Plaintiff and/or the Defendant) carries the heavy burden of showing that responsibility for the alleged negligent act of “Ah Ching” or Wong Yuk Ching (ie pushing/pulling the trolley to knock down the Plaintiff) had moved from her to the Defendant.  It will be necessary to consider whose responsibility it was to prevent such alleged negligent act and who was theoretically obliged to give orders on how such work should be done, and whether “Ah Ching” or Wong Yuk Ching had become so integrated into the Defendant’s work, business or organisation that the Defendant became responsible for her. In my view, all these matters are plainly fact-sensitive. But Ng in his affirmation merely asserts that the direction, control and/or supervision over the casual workers had passed from Law/BLC to the Defendant without condescending into the factual particulars of the specific tasks and/or assigned works carried out by them at the Warehouse and the specific direction, control and/or supervision that were pertinent to the negligent act in question. Further, the particulars given in the 1^st and 2^nd FBP Answers in paragraph 86 above are in respect of the Defendant’s averment in the Defence that if it owed any duty of care to the Plaintiff it had discharged such duty by taking all reasonable steps, and not in respect of any denial of vicarious liability for any act and/or omission of any general employee of Law/BLC.  In my view, it is not so plain and obvious or so apparently visible that the issue of potential vicarious liability can be arrested at this stage as suggested by Mr Ho.

(c) Summary

102.  I am satisfied that the Plaintiff’s claim against Law/BLC is bona fide and raises a proper question to be tried.  I am further satisfied that she is a party whose presence is necessary to ensure that all matters in dispute are effectually and completely determined.  It is evident from the existing pleadings that whether the Accident was caused by any tortious act of “Ah Ching” being Wong Suk Ching, and if so, whether the Defendant or Law/BLC or both are vicariously liable for such act are already live issues between the Plaintiff and the Defendant.  The Plaintiff’s claim against Law/BLC which is premised on Law/BLC being vicarious liable for tortious conduct by her general employee Wong Suk Ching plainly raises a question or issue relating to or connected with the reliefs claimed in the present proceedings between the Plaintiff and the Defendant.  In my view, it will be just and convenient to determine this issue between the Plaintiff and Law/BLC as well as between the existing parties.  The issues of delay and additional costs occasioned by the joinder are not sufficient reasons to militate against the exercise of my discretion in the Plaintiff’s favour, which discretion, I note, can be exercised on own motion or on application.  I therefore order that Law formerly trading as BLC be added as a further defendant in the present proceedings.

XI. DISCRETIONARY EXTENSION

103.  If I am wrong and the Plaintiff’s claim against Law/BLC is time-barred, I proceed to consider whether I should exercise my discretion to allow such claim to proceed under section 30.  Section 30 provides that if it appears to the court that it would be equitable to allow the action to proceed having regard to the degree to which (a) the provisions of section 27 prejudice the plaintiff 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.

(a) Court’s approach

104.  As explained at p.94 in Cheung Yin Heung, the discretion to disapply the limitation period is entirely unfettered.  The onus is on the plaintiff to show that in the particular circumstances of the case it would be equitable to allow the claim to proceed having regard to the respective prejudice likely to be suffered by each party, but the defendant has to prove the prejudice he says he will suffer.  The court then performs a balancing exercise by looking at (a) the balance of prejudice as to each party, (b) the six specific but non-exhaustive factors contained in section 30(3), and (c) all the circumstances of the case (see also Ng Ngan Chiu v Paramount Printing Co Ltd [1998] 2 HKLRD 557).

105.  Before A v Hoare [2008] 2 All ER 1, the leading English case on the correct approach under section 33 of the Limitation Act 1980 (“Act”) (ie the English equivalent of section 30) was KR & ors v Bryn Alyn Community (Holdings) Ltd (in liquidation) & anor [2004] 2 All ER 716.  At pp.741-743, Auld J set out the relevant starting points which he considered to be “well-established and/or uncontroversial”:

“…… (i) In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim …… (ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it …… (iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant. (iv) Where a judge is minded to grant a long ‘extension’ he should take meticulous care in giving reasons for doing so …… (v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in s 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues, taking them all into account …… (vi) Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery …… (vii) Where a judge determines the s 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence …… (viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant’s case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period.”

106.  At p.740, Auld LJ went further to stress that the court’s discretion was fettered only to the extent that section 33 of the Act provided a non-exhaustive list of circumstances to which it should have regard.  The overall question was whether it would be “equitable” to disapply the limitation provision having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case including the six specific factors. Stripping away legal niceties, the question was whether, given the delays, the judge could fairly try the claim, and all would depend on the circumstances.

107.  In Donovan v Gwentoys Ltd [1990] 1 WLR 472, it was held that prejudice which occurred before the expiry of the limitation period was a relevant matter for the court to consider in deciding whether to override any limitation period.

108.  Lord Hoffmann in Horton v Sadler [2006] PIQR P30, a case cited by Mr Lau, said at p.514 that “since [Thompson v Brown [1981] 1 WLR 744] the practice of the courts has been regularly to exercise the discretion in favour of the plaintiff in all cases in which the defendant cannot show that he has been prejudiced by the delay …… the plea of limitation which the statute confers upon the defendant is, in the absence of forensic prejudice, described as a windfall of which he can properly be deprived”. Such observations were approved by Tang VP in Chuck Wai Man v Asia Television Ltd CACV29/2008 (unreported, 9 September 2008). Indeed, in A v Hoare [2008] 2 All ER 1, Baroness Hale at p.21 said she fully supported a more generous approach to the exercise of discretion, and Lord Carswell at pp.26-27 said there needed to be a more liberal approach to the exercise of the discretion.

109.  In Cain v Francis; McKay v Hamlani & anor [2009] 2 All ER 579 (as in Horton),loss of the limitation defence was the only prejudice the defendant would suffer since no forensic prejudice was relied on at all.  The court was of the view that the limitation defence would have been a complete windfall and fairness required the action to be allowed to continue. This type of case must be contrasted with the case where forensic prejudice was suffered by a defendant who had not for many years been notified of a claim in any detail to enable him to investigate it.

110.  Smith LJ at p.599 in Cain reiterated that in the exercise of discretion, the basic question to be asked was whether it was fair and just in all the circumstances to expect the defendant to meet the plaintiff’s claim on the merits notwithstanding the delay.  The judge had to ascertain to what extent the defendant suffered any forensic disadvantage in his investigation of the claim and/or the assembly of evidence.  The reason for the delay was also important.  The delay could be for so excusable a reason that looking at the matter in the round fairness and justice required the action to proceed or there could be no good reason for the delay or for its length that caused procedural disadvantage and unfairness to the defendant.  “[It] will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he has had to investigate the claim and collect evidence ……”

111.  At pp.600-601, Sir Andrew Morritt C said the purpose of section 33 of the Act was to enable the court to review the position in light of the facts and circumstances of each individual case in order to determine whether the action should proceed to trial:

“[80] …… Has that delay caused prejudice to the defendant in its defence? If so, does it outweigh the prejudice to the claimant of being denied a trial at all? In addition the court will need to consider all the circumstances of the case and in particular to the other aspects of the case enumerated in sub-s (3).

[81] In that context it does not appear to me that the loss of a limitation defence is regarded as a head of prejudice to the defendant at all; it is merely the obverse of the disapplication of s 11 which is assumed. It is this consideration which, in my view, accounts for and justifies the marked reluctance of the courts, as demonstrated by the judgments to which Smith LJ has referred in detail, to have regard to the loss of a limitation defence.”

112.  The Court of Appeal in Ng Ngan Chiu also held that the prejudice resulting from loss of the limitation defence would almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision so the loss of the limitation defence as such would be of little importance.  What was of paramount importance was the effect of the delay on the defendant’s ability to defend (see also Hartley v Birmingham City District Council [1992] 2 All ER 212, 214).  What was also important to bear in mind was that the primary purpose of the limitation period was to protect a defendant from the injustice of having to face a stale claim, ie a claim which he never expected to have to deal with (see Ng Ngan Chiu at p.563).

113.  B v Nugent Care Society; GR v Wirral MBC [2010] PIQR P3 emphasised that the discretion was wide and unfettered, repeated what had been said in Bryn Alyn Community (Holdings) Ltd as the relevant starting points, and confirmed they continued to be valid post-Hoare.  The English Court of Appeal gave further guidance on three particular points:

(a) For (ii), although the exercise of the discretion was an exceptional indulgence to the claimant because otherwise his claim would have been time-barred, the discretion was wide and unfettered (para.20 at p.55).

(b) For (vi), there were likely to be many cases in which a judge would consider it not feasible to decide the issues simply by reference to the pleadings, the written witness statements and the extent/content of discovery and conclude it would be desirable to have oral evidence because the strength of the claimant’s evidence seemed to be relevant to the way in which the discretion should be exercised. In particular, in relation to the cogency of the claimant’s case, oral evidence might be extremely valuable in throwing light both on the prejudice suffered by the defendant and the extent to which the claimant was reasonably inhibited in commencing proceedings (para.21 at p.55).

(c) In considering the exercise of discretion to disapply the limitation provision, the judge must consider all the circumstances including any prejudice to the defendant and what evidence would or might have been available to the defendant if a trial had taken place earlier or he had learned of the claim earlier (para.25 at p.57).

114.  I referred both counsel to McDonnell v Walker [2010] PIQR P5. Waller LJ (with whom Rimer LJ and Sir Paul Kennedy agreed) after referring to A v Hoare and Bryn Alyn Community (Holdings) Ltd emphasised two points at p.112: “(i) depending on the issues and the nature of the evidence going to them the longer the delay the more likely and the greater, the prejudice to the defendant; and (ii) a judge should not reach a decision by reference to one circumstance or without regard to all the issues – he should conduct a balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account”.

115.  Waller LJ went on to say at pp.118-119 as follows:

“35. If delay has caused forensic prejudice to the defendant, then one must consider the cause of the delay. If the delay was excusable and on balance it is still possible to have a fair trial then it may be just and fair to allow the action to proceed. On the other hand if the delay has caused unfairness to the defendant in his ability to investigate it and there is no excuse for the delay, the action should not be allowed to proceed. I would add, where there has been inexcusable and lengthy delay in a claimant notifying a defendant as to his case on liability or as in this case quantum and there has been negligence in issuing the proceedings or in serving them on time, that is a situation in which it almost speaks for itself that a defendant has suffered forensic disadvantage and a claimant is unlikely to suffer prejudice.

36. The delay which is relevant is the whole period since the accident occurred. Each period of delay needs separate consideration as to whether it is excusable. ……”

116.  In Whiston v London SHA [2010] PIQR P12, Dyson LJ was of the view that if a fair trial was still possible, it “strongly suggests that it would be “equitable” to allow the action to proceed”, but it was not decisive since it would be necessary to have regard to all the circumstances of the case including the six specific factors.

(b) Parties’ respective case

117.  Ng in his affirmation says that Law/BLC has never been notified of the Accident, and it was only on 12 July 2010 when Ng received RLC’s letter of 8 July 2010 addressed to BLC (see paragraph 23 above) that Law/BLC was for the first time aware of the Accident. Since (a) the alleged Accident occurred more than 3½ years ago, (b) Law/BLC has never been notified of the alleged Accident before 12 July 2010 and (c) BLC has ceased business since 31 July 2009 with many documents were lost, Ng says Law/BLC has great difficulties in properly investigating into the Plaintiff’s claim.

118.  ONCL gave a substantive reply to RLC on 29 July 2009 (see paragraph 24 above), and made enquiries with the Defendant by letters dated 29 July and 12 August 2010 (see paragraphs 25 and 27 above).  According to the BLC Invoice (see paragraph 24(g) above), BLC supplied 8 workers to the Defendant to work at the Warehouse on 8 March 2007. According to the BLC Voucher (see paragraph 24(h) above), 黃淑貞(transliteration of Wong Suk Ching) appeared to be one of such 8 workers, but Ng claims one cannot tell from such document whether the alleged direct tortfeasor “Ah Ching” was one of them.  Further, there was no reply from the Defendant, so after ONCL liased with LL on 12 August, 20 August and 3 September 2010 (see paragraphs 27-29 above), Ng contacted 黃淑貞 (transliteration of Wong Suk Ching) by telephone. She “denied even hitting the Plaintiff by trolley or cart at all when she worked at [the Defendant’s] workplace”.

119.  Mr Ho submits that if the Plaintiff’s claim against BLC were time-barred but the Plaintiff is allowed to join Law/BLC as a further defendant to the present proceedings, Law/BLC will be seriously prejudiced by the delay, and her right to a fair opportunity to defend herself will be compromised.

120.  On the other hand, Mr Lau argues that the Plaintiff’s claim against Law/BLC should be allowed to proceed, and leave should be granted to join Law/BLC pursuant to the discretionary power under section 30.  He submits that to rigorously apply the three-year limit would effectively end the Plaintiff’s claim, which potentially will be a far greater detriment to her than any prejudice to the Defendant.

(b) Six specific factors

121.  For the purpose of convenience, I discuss the six specific factors in section 30(3) in turn even though I accept they cannot be analysed in isolation from one another.

122.  Length of delay and reasons by the plaintiff.  As noted in Cheung Yin Heung at p.96, the test is a subjective one and the delay under section 30(3)(a) refers to delay since expiry of the limitation period.  Mr Lau refers to Chuck Wai Man where the Court of Appeal disapplied the limitation period under section 27.  Reyes J said at para.19 that “…… the key factor which tips the balance decisively in favour of disapplying the s.27 limitation is the fact that only 18 days have passed between the expiry of the 3 year limit and the issuing of the writ”.  The learned judge said given that “relatively very short period”, it was unlikely that the defendant’s position could have been adversely affected in any significant way by the late filing of the writ.

123.  Here, the post-expiry delay was about 4½ months from 7 March to 30 July 2010. On any view, it is not a particularly long period of delay, and I find such delay acceptable given the Defendant’s failure to mention BLC until service of the Defence on 23 June 2010 (which in any event is outside the limitation period) and further given the time required for RLC to make enquires as a result of such revelation in the Defence.  Indeed, ONCL by their letter dated 15 July 2010 requested RLC to withhold action until their substantive reply on 29 July 2010 (see paragraph 24 above) whereupon the Plaintiff issued the Summons on the following day.

124.  Effect of any delay on the cogency of the evidence.  Here, the evidential burden is on the “defendant” to show that the evidence to be adduced by him is likely to be less cogent because of the delay.  Again, delay under section 30(3)(b) is delay since the expiry of the limitation period.  The key question is whether the “defendant” would be in a worse position for dealing with the factual issues than he would have been if the claim were issued within time.  It is more convenient to deal with the issues of pre- and post-expiry delay in the discussion below, but suffice to say here there is insufficient information before me that by reason of the post-expiry delay of about 4½ months the evidence to be adduced by Law/BLC is likely to be less cogent than if the action against her has been brought within time.  There is no evidence to suggest that during that period of about 4½ months (a) previously available witnesses were lost, (b) available witnesses had increased difficulty in remembering the event and/or the details, or (c) relevant documents were lost.

125.  Conduct of the defendant after the cause of action arose.  There is no complaint that Law/BLC provided any misinformation or failed to respond to request for information.

126.  Duration of any disability of the plaintiff arising after accrual of the cause of action.  The Plaintiff has not made any allegation of disability within the meaning of Order 80 of the RHC.

127.  Conduct of the plaintiff.  This refers to whether the Plaintiff acted promptly and reasonably once he knew the identity of Law/BLC and further knew whether or not her act or omission or vicarious liability was attributable to the inquiry.  As explained above, the Plaintiff issued the Summons on 30 July 2010 shortly after becoming aware of the involvement of Law/BLC upon service of the Defence on 23 June 2010 (see paragraphs 5-7 above), raising enquiries with the Defendant, LL, Law/BLC and ONCL in June/July 2010 (see paragraphs 20-24 above), acceding to ONCL’s request made on 15 July 2010 to withhold legal action pending their substantive reply (see paragraph 24 above) and receiving such substantive reply from ONCL on 29 July 2010 (see paragraph 24 above), which I find to be reasonable and prompt action on the part of the Plaintiff and/or his legal advisors.

128.  Diligence of the plaintiff in obtaining medical, legal or other expert advice.  There is irrelevant since neither party suggests that the Plaintiff should obtain medical, legal or other advice in order to take reasonable steps to bring a claim or make a complaint.

(c) Equity, prejudice and all the circumstances of the case

129.  As explained above, although section 30(3)(a)-(b) require the court to look at post-expiry delay the need to look at all the circumstances of the case allows the court to consider what prejudice has occurred within the limitation period.  The court has to consider the matter broadly in determining whether or not it will be possible for the defendant to investigate allegations and to ask whether there is a reasonable prospect of a fair trial.

130.  Mr Lau submits that the primary consideration is whether Law/BLC will be prejudiced in her defence because her evidence will be less cogent owing to the passage of time, but Law/BLC suffers no prejudice in this regard because she is not bereft of witness evidence.  According to Ng, he has been able to contact Wong Suk Ching who categorically denies having caused the Accident, and therefore she can be subpoenaed or asked to give evidence at trial.  Mr Lau adds that the Plaintiff’s ex-colleagues Hung and Leung saw “Ah Ching” at the Scene in the immediate aftermath of the Accident and they can give evidence and be cross-examined accordingly.  Presumably the Defendant will also call witnesses to shed light on the circumstances and events culminating in the Accident.  Mr Lau argues that the ultimate question is whether “Ah Ching” or Wong Suk Ching did or did not injure the Plaintiff, and there is no evidence that Wong Suk Ching’s memory has dimmed with the passing of time.

131.  I agree with Mr Lau’s observations.  Further, if Law/BLC suggests it is unclear whether 黃淑貞 (transliteration of Wong Suk Ching) and 馮素貞 (transliteration of Fung So Ching) is “Ah Ching”, there is no evidence before me of any attempt by Ng/Law to contact Fung So Ching nor is there any suggestion that Fung So Ching as a target for investigation or as potential witness has been lost or is now being unhelpful or her memory has dimmed due to any delay.  Still further, Ng’s affirmation shows that at all material times he was in charge of the daily operations of BLC and he is able to give evidence on the arrangements between Law/BLC and the Defendant for deploying casual workers to perform pick and pack service at the Warehouse as well as on the scope of duties of BLC’s casual workers and the supervision, direction and/or control over them.

132.  As regards the issue of any loss of documentary evidence, I note that Law/BLC concedes that 黃淑貞 (transliteration of Wong Suk Ching) and 馮素貞 (transliteration of Fung So Ching) were both assigned to work and did work at the Warehouse on the day of the Accident.  Further, as regards the written agreement between the Defendant and Law/BLC, the BLC Quotation and the terms of agreement between the Defendant and Law/BLC are still available.  Although the Defendant’s signed acceptance of the BLC Quotation and the specific Employment Agreements signed by Wong Suk Ching and Fung So Ching are no longer available, there is nothing before me to show how long these documents would have been retained if at all, and how their “loss” was caused by the Plaintiff’s delay.  In any event, Ng confirms that the signed Employment Agreements are based on a standard form (which is still available), so the terms of employment as well as the remuneration of the casual workers assigned to work at the Warehouse are still known.  More importantly, in light of the defence argument outlined by Ng (ie 黃淑貞 (transliteration of Wong Suk Ching) “denied even hitting the Plaintiff by trolley or cart at all when she worked at [the Defendant’s] workplace”), I am unable to see how any “loss” of the aforesaid documents renders such defence contention less cogent.

133.  As both counsel agree, the Plaintiff has a reasonably arguable claim on quantum.  Mr Lau submits that if the time bar is not disapplied, the Plaintiff will be deprived of making such claim against Law/BLC.  Mr Ho suggests it is unfair and prejudicial to let the Plaintiff hang such litigation (which by nature is stressful) over Law/BLC and force her to incur substantial time, costs and resources to defend such claim.

134.  As explained in Cheung Yin Heung at p.99, it is not appropriate to take into account the factor of prejudice due to the action hanging over the head of Law/BLC for so many years because she simply had no knowledge that any action was contemplated against her (see Dobbie v Medway Health Autrhority [1994] 4 All ER 450, 462 and Butterworths Personal Injury Litigation Service Vol.1, Division VI, para.788 at pp.111-112).  Indeed, Law/BLC claims she was unaware of the Accident until she received RLC’s letter dated 8 July 2010 on 12 July 2010.  For the period after that, it turns largely on the question of whether the Plaintiff’s claim against Law/BLC is a bona fide one that deserves to be investigated at trial.  If it is, the Sword of Damocles hanging over her will hardly be able to sufficiently weigh and tip the scales in her favour.

135.  This conveniently brings me to Mr Ho’s submissions that the Plaintiff’s claim against Law/BLC is “unmeritorious” litigation and “a mere claim” based on tenuous and shady indirect hearsay “evidence” as explained above.  Mr Ho refers to Beer v London Borough of Waltham Forest, December 16, 1987 (unreported) for the proposition that this is a relevant factor in the exercise of discretion under section 30.  In that case, Hodgson J held that the apparent strength of the plaintiff’s case was a factor which could legitimately be taken into account in deciding whether to exercise the discretion under section 33 of the Act, a very strong case being a factor pointing in the directions of allowing the action to be brought (see McGee, Limitation Periods 6^th ed para.8/054 at p.187).

136.  In considering the court’s approach on the issue of strength of the plaintiff’s claim in the exercise of the section 30 discretion, I have referred to the following cases in Cheung Yin Heung at pp.100-101: Dale v British Coal Corp [1992] PIQR 373, 380 per Stuart-Smith LJ, Yip Wing Hong v Maeda Corp HCPI518/2000, Master Ho (unreported, 11 May 2001), Yeung Mo Shing v Chung Fai Engineering Co Ltd HCPI 301/2002, Recorder E Chan SC (unreported, 26 February 2003), Li Chung Hung v Secretary for Justice [2006] 1 HKLRD 60, 73 per Deputy Judge Carlson, and McGhie v British Telecommunications Plc [2005] EWCA Civ 48, para.35 per May LJ.

137.  In my view, it suffices to refer to the judgment of Stuart-Smith LJ in Dale which he reiterated in Forbes v Wandswoth Health Authority [1996] 4 All ER 881, 894-895 as follows:

“The first concerns the relevance of the plaintiff’s prospects of success in the action and the evidence necessary to be adduced to establish those prospects. Although not one of the matters specifically dealt with in paragraphs (a) to (f) of section 33(3), it is one of the circumstances of the case which the court should take into account in considering the balance of hardship. Plainly it is more prejudicial to a plaintiff to be deprived of a cause of action when it is almost bound to succeed …… than one that looks highly speculative. Equally, although it is always prejudicial to a defendant to be deprived of a defence under the Limitation Act, it may be less inequitable or unfair where the plaintiff has a strong case and more unfair where he has a weak one. But where as here the limitation issue is tried and determined before the merits of the claim, the court cannot and should not attempt to determine the merits on affidavit evidence. All that can be done and should be done is for the judge to take an overall view of the prospects of success; a judge who is experienced in this type of litigation should have no difficulty in doing so.” (pp.380-381)

“ The onus is on the plaintiff to satisfy the court that the primary limitation period should not apply. He must show that there is evidence which, if accepted, will establish the necessary ingredients of his cause of action. In many cases his own evidence on affidavit may suffice. If it is accepted, then he should succeed. It is not normally appropriate for the defendants to try and counter the evidence at that stage. The matter cannot be tried on affidavit, and as I have said the best the judge can do is to take a view of the prospects. ……” (at p.382)

138.  In my view, the court can only take a broad view of the matter at this stage, and it is inappropriate to go into the details of the evidence and the credibility of witnesses.  The EC Action and the consent order dated 27 July 2009 therein (see paragraph 17 above) as well as the treatment medical reports concerning the Plaintiff’s condition in the immediate aftermath after the Accident (see paragraphs 30-31 above) lend support to the Plaintiff’s case that the Accident did occur.  As to the blameworthiness of Law/BLC, I note that the Plaintiff’s ex-colleagues Hung and Leung placed “Ah Ching” at the Scene immediately after the Accident in the act of hurriedly pushing away a trolley.  Further, as Mr Lau suggests, presumably the Defendant will call witnesses to shed light on the circumstances and events culminating in the Accident, and on the extent of the direction, control and/or supervision over the casual workers assigned by Law/BLC to work at the Warehouse in support of its defence allegation that BLC is vicariously liable for the activities of “Ah Ching” or Wong Suk Ching.

139.  There is no need for me to express any view on Mr Lau’s submission that if Wong Suk Ching caused the Accident by pushing the trolley and knocking down the Plaintiff, the Plaintiff’s case against Law/BLC would be stronger than that against the Defendant on the basis that the general employee of Law/BLC would have been the direct tortfeasor in causing the Plaintiff’s fall.  In my view, whilst the Plaintiff does not have an overwhelming or cast-iron case against Law/BLC, it cannot be said to have a weak case.  It is a genuine claim that deserves investigation in the course of litigation, and that is sufficient.

(d) Summary

140.  On the information before the court, it must be reasonably arguable to draw inference to the effect that the Plaintiff was knocked down by the trolley pushed or pulled by “Ah Ching” who according to the Defendant is Wong Yuk Ching. Mr Ho is unable to point to, in the words of Deputy Judge Carlson in Li Chi Hung, a fairly obvious “loser” which would tip the scales in the favour of Law/BLC.  I am not persuaded that the strength of the Plaintiff’s case is a factor that weighs heavily in favour of Law/BLC. On the state of the affidavit evidence before me, I find the contentions of either party evenly balanced, and I approach the issue of delay and evidential prejudice on such basis.

141.  In all, witness recollection will be no weaker now than it would have been if the claim against Law/BLC had been brought in time.  Fading memory has little significance when Wong Suk Ching and Ng can both speak to matters as outlined in Ng’s affirmation.  Whilst some specific documentation has been lost (although not necessarily as a result of any delay), the BLC Quotation, BLC Invoice, BLC Voucher and standard-form Employment Agreement are still available.  With the availability of Ng and Wong Suk Ching as witnesses and the surviving documents, and having assessed all the circumstances and the six specific factors (including the fact that the Plaintiff has a reasonably substantial claim for damages), I am persuaded that a fair trial is still possible.  It therefore seems to me that in the exercise of discretion to do equity it is fair and just in all the circumstances for Law/BLC to meet the Plaintiff’s claim on the merits notwithstanding any delay.  She is not so prejudiced by any pre- and/or post-expiry delay (which has arisen for an excusable reason) that her right to a fair opportunity to defend herself has been compromised.  In all the circumstances and balancing the prejudice to either party, I am of the view that I should disapply section 27.

XII. CONCLUSION

142.  I therefore order that:

(a) Law formerly trading as BLC be added as the second defendant in the present proceedings;

(b) leave be granted to the Plaintiff to amend the Writ of Summons in the manner marked in red as per the draft annexed to the Summons;

(c) the Plaintiff shall file and serve the Amended Writ of Summons within 7 days from today;

(d) Law formerly trading as BLC being the 2^nd Defendant shall file acknowledgment of service within 14 days thereafter.

143.  In respect of paragraphs 5-7 of the reliefs sought in the Summons, I direct that the Plaintiff do within 14 days from today take out an inter partes summons (“Amendment Summons”) for leave to amend the Statement of Claim with draft Amended Statement of Claim annexed thereto and for consequential directions, and such summons shall be made returnable and paragraphs 5-7 of the reliefs sought in the Summons shall be restored for hearing at the same time before the PI Master for three-minute hearing.

144.  At the hearing, I have reserved the issue of the restoration of the present proceedings for further Checklist Review (“CLR”) hearing.  However, it is inappropriate to fix the date for the adjourned CLR hearing pending the outstanding amendments to the pleadings.  In the circumstances, I direct RLC to forthwith notify LL in writing of the terms of this order, including the costs order nisi below, and reserve for the PI Master hearing the Amendment Summons to fix the date for the adjourned CLR hearing.  All parties are jointly and severally required to remind the PI Master of such directions at the hearing of the Amendment Summons.

145.  At the hearing, I made the following orders on costs:

(a) costs of and occasioned by the inclusion of (i) all items of documents in Bundle C (correspondence bundle) of the hearing bundle (save and except for pages 495-496, 669-670, 713-714 and 716-717) and (ii) items 4, 6-8, 12 and 15 in Bundle A (bundle of pleadings, orders, summons and affirmations) of the hearing bundle to which ONCL has raised objection be paid by the Plaintiff to Law/BLC to be summarily assessed if not agreed;

(b) the issue of costs of and occasioned by any duplication of documents in Bundle B of the hearing bundle be reserved for consideration and, where appropriate, determination at the hearing of the summary assessment of the aforesaid costs order, and, where appropriate, the relevant party(ies) shall submit his/their statement(s) of costs at such hearing.

146.  In respect of the joinder application, I see no reason why costs should not follow event, and both counsel agree there should be certificate for counsel.  I therefore grant a costs order nisi that (a) save and except for the aforesaid costs orders made at the hearing, Law/BLC do pay the Plaintiff’s costs of the joinder application (including all costs reserved if any) to be summarily assessed with certificate for counsel and (b) costs of and occasioned by the application for amendment of the Writ of Summons be costs in the cause, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

147.  As regards summary assessment of costs, Mr Lau confirms that RLC waives the right to any further sum of money in respect of the costs of joinder application pursuant to Order 62 rule 9C(1)(b) of the RHC.  I hereby grant the following directions:

(a) if no application is made to vary the costs order nisi in the above paragraph within 14 days from today, the Plaintiff do within 21 days from today lodge and serve statement of costs pursuant to Practice Direction 14.3, and Law/BLC do within 7 days thereafter lodge and serve succinct summary of objections in bullet point format of not more than half page in respect of the Plaintiff’s statement of costs (“Objection Summary”);

(b) if application is made to vary the costs order nisi in the above paragraph within 14 days from today, the Plaintiff and Law/BLC do within 21 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3, and within 7 days thereafter respectively lodge and serve his/her Objection Summary to the other party’s statement of costs;

(c) Law/BLC do within 21 days from today lodge and serve statement of costs pursuant to practice Direction 14.3 in respect of the costs order in paragraph 145(a) above, and the Plaintiff do within 7 days thereafter lodge and serve Objection Summary thereto;

(d) the Plaintiff do within 14 days from today fix a date with the Listing Clerk for the hearing of the summary assessments of costs to be heard before me in chambers (open to the public) on a date not before 42 days from today with half hour reserved;

(e) any application for variation of the costs order nisi shall be heard at the same time as the hearing for summary assessments of costs.

148.  Last but not least, I thank counsel for their assistance and submissions.