XCHRX TSANG YU v. TAI SANG CONTAINER COLD STORAGE AND WHARF LTD.

HCPI 1048/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1048 OF 1997

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R U L I N G

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1. This is an application by the Defendant to strike out the Plaintiff's claim under O.18, r.19 of the Rules of the High Court and pursuant to the inherent jurisdiction of the Court on the grounds that the Plaintiff's claim is frivolous, vexatious and an abuse of the process of the Court. The Defendant's summons was issued on 1st March 1999. The basis relied upon by the Defendant for its application to strike out are as follows :-

(a) that the Defendant's claim is statute-barred; and

(b) that the present action is an attempt to relitigate the same issues which had previously been raised in HCA6982/91 and is, therefore, an abuse of process of the court.

Background

2. In September 1988, the Plaintiff, a security guard employed by Mint Security Limited, was assigned to work at a basement carpark in a building known as Tai Sang Container and Godown Centre, situated at Nos.2-10, Cheung Fai Road, Tsing Yi Island, New Territories. On 24th September 1988 in the course of his employment at the basement carpark, the Plaintiff alleges that he was struck and knocked down by a forklift vehicle thereby suffering personal injuries as a result.

3. On 13th September 1991, the Plaintiff had commenced an action, being HCA6982/91 ("the earlier proceedings"), in which three Defendants were named. The 1st Defendant, Chan Chi Tong, being the driver of the forklift vehicle; the 2nd Defendant, Tai Sang Container and Godown Centre as owner or occupier of the basement carpark; and the 3rd Defendant, Texxan Warehouse Co. Ltd., being the employer of the 1st Defendant for whose purpose he was driving the forklift vehicle at the time of the accident and therefore vicariously liable for the 1st Defendant's negligence.

4. On 3rd February 1993, interlocutory judgment by default was entered against the 1st and 3rd Defendants in the earlier proceedings. This interlocutory judgment, however, availed the Plaintiff not as by then the 3rd Defendant had been wound up.

5. In so far as the 2nd Defendant in the earlier proceedings was concerned, the name of the 2nd Defendant "Tai Sang Container and Godown Centre" was in fact the name of the building at which the accident happened. It appears that the writ was served at the building known as Tai Sang Container and Godown Centre, but it is not clear who in fact accepted service of that writ. Efforts had been taken by those representing the Plaintiff in the earlier proceedings, as early as 1992, in an attempt to discover the true identity of the landlord/owner/occupier of the carpark in which the accident occurred. It was not until 9th December 1994 that the Plaintiff's then legal representatives were able to obtain a business registration certificate giving the name of "Tai Sang Container Cold Storage and Wharf Limited" (the present Defendant in the present case) as being the owner or landlord or occupier of that carpark. It was only then that it was realized that the 2nd Defendant in the earlier proceedings was wrongly named in the writ.

6. On 20th March 1997, a summons was taken out by the Plaintiff in the earlier proceedings seeking to amend the name of the 2nd Defendant in the writ therein to "Tai Sang Container Cold Storage and Wharf Limited". This application was opposed and was refused by the Master. The Plaintiff then appealed from that order of the Master but subsequently withdrew the appeal by way of a consent order dated 22nd July 1997. Less than three months later, on 14th October 1997, the present writ in the present action was issued.

The Limitation Point

7. The Defendant, in simplistic fashion, relies upon the fact that the cause of action having arisen in 1988 and therefore over nine years before the writ herein was issued, the claim is statue-barred.

8. The Plaintiff on the other hand submits that given the background to this matter, it is open to the Plaintiff to argue that this Court ought to override the limitation period pursuant to s.30 of the Limitation Ordinance, Cap.347. In particular, says the Plaintiff, as he was unable to discover the true identity of the Defendant until December 1994. Moreover, that the writ in the present action was issued within three years of his discovering the true identity of the Defendant.

9. The law in this respect is succinctly and admirably stated by Donaldson LJ in Ronex Properties Ltd. v. John Laing Construction Ltd. and Others [1983] QB 398 at page 404, where he said :

"... It is trite law that the English Limitation Acts bar the remedy and not the right; and, furthermore, that they do not even have this effect unless and until pleaded. Even when pleaded, they are subject to various exceptions, such as acknowledgement of a debt or concealed fraud, which can be raised by way of reply. ..."

And also at page 405 :

"... Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed."

10. Although it is accepted that a defendant can strike out a claim in a very clear case upon the grounds that it is frivolous, vexatious and an abuse of the process of the court, this is certainly not such a clear case as to merit striking out on that ground. The circumstances here are such that it is open to the Plaintiff to invoke the Court's discretion to override the limitation period. Counsel for the Plaintiff has drawn my attention to some of the correspondences showing the extent to which the Plaintiff's legal representatives in the earlier proceedings had gone in their attempt to discover the true identity of the owner/occupier of the basement carpark. It was even suggested by counsel that the Defendant's identity was, prior to December 1994, deliberately hidden from them. However, those matters should not be gone into in this application since it depends on the proper and relevant facts being before the Court. The proper time for the Court to go into those matters would be either at the trial when evidence is adduced in relation to the limitation defence or if a preliminary issue of that limitation defence is to be determined before the trial itself. It is sufficient for present purposes to recognize that there are circumstances which may justify the Court in exercising its discretion to override the limitation period.

Relitigation Point

11. The Defendant further takes the point that because the Plaintiff had in the earlier proceedings applied to amend the name of the 2nd Defendant therein to that of the Defendant in the present proceedings and that application was refused by the Master, the Plaintiff, having withdrawn its appeal against that order of the Master, should not be allowed to relitigate that same issue now by issuing the writ in the present proceedings.

12. The Plaintiff on the other hand counters this argument by submitting that a party can only be estopped from relitigating an issue which has been determined between the same parties in previous proceedings. Since the Defendant in the present case was never made a defendant in the earlier proceedings, that requirement has not been met and therefore no estoppel arises.

13. In my view, this point is wholly misconceived by the Defendant. Firstly, no issue of fact has been determined between the Plaintiff and the present Defendant in the earlier proceedings. Secondly, in so far as the Plaintiff's application in the earlier proceedings to amend the name of the 2nd Defendant therein was concerned, the Master refused to exercise his discretion to allow such an amendment. That refusal to exercise discretion to allow an amendment to the name of a party, or even to add a new party to previous proceedings cannot per se be a bar to a plaintiff commencing a new action provided the plaintiff can overcome whatever procedural difficulties there may be in his way in doing so. Thirdly, an important consideration for the Master to consider in the application to amend the name of the 2nd Defendant in the earlier proceedings must necessarily have been that if such amendment was allowed, the amendment would be deemed to date back to the commencement of the writ in the earlier proceedings. Thereby, the 2nd Defendant as amended would have been deprived of the opportunity of relying upon the defence of limitation; a defence which he can now rely on in the present action.

14. In the circumstances, I am not persuaded that because of the Master's refusal to allow the amendment sought in the earlier proceedings, or even the withdrawal of the appeal from that order by the Plaintiff, should debar the Plaintiff from issuing the present proceedings against the Defendant.

15. Accordingly, the Defendant's summons dated 1st March 1999 is dismissed.

Costs

16. I shall make a costs order nisi that the costs of the application be to the Plaintiff in any event. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.