TAM KWOK MAN v. THE KOWLOON MOTOR BUS CO. (1933) LTD.

HCPI 755/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 755 OF 2001

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J U D G M E N T

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1. This is a preliminary issue which comes before me in proceedings which arise out of an accident on 12 September 1996. The issue is whether the court should disapply the provisions of section 27 of the Limitation Ordinance, Cap. 347 (the ordinance), and permit the plaintiff to proceed with this action.

2. The plaintiff, who is now nearly 50 years old, was at the time a bus station regulator employed by the defendant at their depot at Sui Wo Court, Shatin, and had been so employed since 1989. His duties, as I understand them, were to record the arrival and departure of buses at the depot in a kiosk from which he had a view of the bus parking area, and in which he worked at a desk. On the day in question he was on the night shift from 3 p.m. to 2 a.m. He claims that, at about 6.50 p.m. that day, he was sitting on an office chair in the kiosk when a wheel of the chair broke off, causing him to fall to the floor, injuring his back. One of the bus drivers was apparently present at the time, but went off to have his meal, and the plaintiff cannot now remember who he was, except that he thought his name was Lai. After a few minutes, the plaintiff says he called the Deputy District Controller, Mr Chan Kwok Sum, to report his accident, and the latter arrived on the scene, and called an ambulance which took the plaintiff to hospital. Although he was advised to stay there overnight, after treatment he was allowed to go home. He continued to receive treatment as an outpatient, as well as physiotherapy and hydrotherapy, and was given sick leave until 31 October 1998, when he returned to work. Throughout this time he was receiving sick pay in accordance with the Employees' Compensation Ordinance. There was one further period of sick leave from December 1998 to March 1999.

3. On 31 March 1999 the plaintiff attended at the Labour Department in connection with his claim for compensation and signed a letter saying that he wished to claim "negligence compensation" in relation to his accident, and was willing to have it dealt with by the Legal Aid Department. He applied for legal aid in May 1999, apparently for both employees' compensation and common law damages, although whether he appreciated this I will look at shortly. However, very soon after that he signed a form withdrawing his application for legal aid, giving as the reason that "Kowloon Motor Bus Limited normally will give me compensation. Therefore I am not worried." Indeed, shortly thereafter he received the balance of his ECC compensation in the sum of $24,593.67 in respect of his permanent incapacity.

4. From the form, it appears that this withdrawal relates only to the ECC claim, not the common law claim. That this was the view of the Legal Aid Department is clear from the fact that on 21 June 1999 they sent him an offer of legal aid to claim damages for injuries sustained in the accident. He took no action on this, and it was followed by a letter from Legal Aid on 12 July 1999. As he did nothing about this either, legal aid was refused on 18 August 1999 as the offer had lapsed.

5. In December 1999 the plaintiff was dismissed by the defendant, apparently for poor attendance, but after an appeal, was reinstated. He continued to work for the defendant until he again received notice of dismissal in August 2000. This time his appeal was unsuccessful and the dismissal was confirmed in September 2000. Finding himself in financial difficulties, the plaintiff applied for public assistance in November 2000, and on attending at the Shatin office of the Social Welfare Department says he was told he could claim damages for his injuries, and further informed that the limitation period for so doing was 6 years. In January 2001 he applied for legal aid again and this was granted, and this time accepted by the plaintiff, in August 2001. These proceedings were commenced in September 2001, 5 years after the accident.

6. The plaintiff now applies under section 30 of the ordinance, the relevant part of which reads as follows:

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

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

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

(2) ...........................

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

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

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

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

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

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

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

7. Of these, clearly (d) is inapplicable, and possibly (c), although the conduct of the defendant in other ways may affect this application. I will look at the circumstances here, on the evidence before me, in respect of the other matters in turn, and then at the whole circumstances of the action.

8. The delay by the plaintiff, it is conceded by Mr Clough on his behalf, is substantial, the action being commenced 5 years after the accident and two years after expiry of the period of limitation. The reasons given by the plaintiff are principally that he was more concerned with retaining his employment than with seeking damages, and he had been told by colleagues that it might jeopardize that employment if he started an action against his employer. I am satisfied that he knew that he could claim damages over and above the compensation received by way of the ECC provisions, although the precise nature and amount of such damages may well not have been clear. There is after all no evidence that he received any legal advice, such as he did receive being from the Labour Department, who were mainly concerned with settling the ECC claim, and the Legal Aid Department, where he was interviewed in respect of his application for legal aid, but not necessarily advised as to what he was claiming, and how much he might expect. It is apparent to me from the documents that Legal Aid opened two files: one for ECC and one for the common law claim. It is also apparent that it was only the ECC application that the plaintiff withdrew. Whether the plaintiff knew that is not so certain. However, the fact that he was called for further interview after that withdrawal, and an offer of legal aid made, even though the proceedings for which it was offered was set out in English only in an otherwise bilingual form, must have made it clear to him that he had a claim for further compensation and could have had legal aid for proceedings. Indeed, his evidence that he was told that he might lose his job if he sued the company shows that he knew he had a claim, and chose not to pursue it.

9. The plaintiff is not a highly educated man. His concern throughout, and that of his wife, was that he should retain his employment, and it is understandable that this would be at the forefront of his mind, rather than a claim for damages, in respect of which he most likely had no advice as to the strength of his claim nor likely damages he might recover. In the absence of these being made clear to him, I am satisfied that the delay here, and the reasons for it, are not inexplicable in the plaintiff's circumstances.

10. The next matter to consider is the effect the delay will have, or has had, on the evidence. The defendant contends that, their records now having been destroyed, they are not in a position to try to contact any other employee who was in the area at the time, including the Mr Lai who the plaintiff says was present. This of course works both ways, as his evidence might well have supported the plaintiff's account of the incident. The defendant did have one witness, Mr Chan Kwok Sum, who arrived shortly afterwards and submitted a report. He says in his statement that he does not have much memory of the incident, but he does remember seeing the broken chair, and described in court the size of the wheel. Of course the chair itself has long since been disposed of. As to the accident itself, therefore, the plaintiff himself is the only one who can say what happened although Mr Chan can give evidence of what he saw immediately afterwards.

11. In respect of this, I think I am entitled to consider what the defendant might have done, and failed to, in order to protect their position. A report was made immediately to the company and went to their insurance department. From this it was clear that there had been an accident, that it concerned equipment which had apparently failed, and that the plaintiff had suffered an injury to his back, which any claims settlor would have known could potentially lead to a substantial claim. Yet there seems to have been no investigation at all of the matter. There was no attempt to contact and interview witnesses, or even, it seems, ask if there were any, or to preserve the chair as evidence, at least to see how the accident happened, or to see whether it was one of the defendant's at all. Ms Lai Yin King, the senior manager of the defendant's insurance department admitted in evidence that she realised there was a potential claim, and conceded that she should have asked for the chair to be investigated and whether witnesses were there. But nothing further was done. I find it difficult to see what prejudice there is for a defendant, who has made no attempt, at the time it was apparent that a claim may be made, to protect their position by making proper enquiries, when they find later that such evidence is no longer available. As a matter of common sense, a broken chair will be disposed of very swiftly by others who see no need to retain it, and would have been available if they had moved quickly. The defendant's insurance department still has the file opened at the time in respect of the accident, and have no-one to blame but themselves that there is so little in it.

12. As to the medical evidence, the plaintiff has been receiving treatment almost continuously since the accident, and certainly for the first two or three years. There is no shortage of sources from which reports can be obtained, and have already been obtained. There is no evidence that, had a claim been made within the limitation period, any report obtained by the defendant would have been less informative or of less assistance to their case as one obtained now.

13. As to paragraphs (e) and (f) of section 30(3), it cannot be denied that the plaintiff failed to act promptly, knowing as he did that some claim might be made. However, as I have found above, I am unable to say that he acted unreasonably in the circumstances as he saw them. He was also in a position to have had legal advice from the Legal Aid Department, but it is not certain what advice, if any, was given, and I accept that, whatever he was told, he was left with a large degree of uncertainty as to what his rights were, and how long he had to claim them.

14. I have considered the matters referred to in section 30 in some detail, as I am obliged to, but that is never an end to it, more a beginning, as I have to look at all the circumstances of this case, and decide what is equitable bearing in mind the relative prejudice either party will suffer by my decision. The principal of limitation periods are to protect a defendant from having to face a stale claim, particularly one of which they were hitherto unaware, and to prevent them being prejudiced by such delay. So what prejudice has the defendant suffered here? There is little in respect of the evidence of the accident which is not attributable to their own failure to preserve it, and none can be shown in respect of medical evidence. On the other hand, the plaintiff has sustained an injury which he will have to live with for the rest of his life, and which may well prevent him from working again. He has received less than $25,000.00 in compensation for something which may be worth over ten times that sum, and he was clearly unaware of the full extent of his rights.

15. The court has an unfettered discretion and has to look at the whole circumstances of the case. While the authorities to which my attention has been drawn are of some use in seeing how that discretion has been exercised by other courts, in the end it is a matter for me to decide whether, taking the case as a whole, it is equitable that the plaintiff should be allowed to proceed. In the circumstances here, I am satisfied that it is, and I accordingly order that the provisions of section 27 of the Limitation Ordinance shall not apply to the delay in commencing proceedings beyond the period permitted by that ordinance.

16. It is not in dispute that, should I order as I have, the costs should be costs in the cause of the action, and I so order.