XCHRX LAU YAN CHOR v. HANG LUNG (ADMINISTRATION) LTD. and WELI CO. LTD. (Third Party)

HCPI 355/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 355 OF 1999

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J U D G M E N T

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1. This is an appeal by the Third Party (and 3rd Defendant) against the decision of Master Cannon on 16 June 2000 whereby the learned Master allowed the Plaintiff's application to join the Appellant as Third Defendant to his action. The Appellant is already Third Party in the action to the existing Defendants' Third Party Notice.

2. The Plaintiff suffered his accident in May 1996 when he was employed as a building attendant by the 1st Defendant at the Argyle Centre in Nathan Road, Mongkok. The 1st Defendant admits that it carries on the business of building management and that its subsidiary company, the 2nd Defendant was the manager of the Argyle Centre at the material time, hence the fact that 2nd Defendant appears in the action. There is no issue between them and the Plaintiffs' employment is admitted.

3. The Plaintiff as part of his duty had to go to the basement of the building where a kind of food hall or restaurant mall operated. It was about 6:30 in the morning. He had to switch off some lighting. The switch was positioned in a meter room near the food hall or mall and to gain access to it he had to pass through it. The food hall or mall was flooded to a depth of two or three inches. He used a trolley in order to keep his feet dry. Although I am not entirely clear in my mind from his Statement of Claim or written Statement precisely how this accident occurred, he alleges the trolley overturned on his way back from the meter room. He reported his accident to his night shift supervisor. He commenced proceedings against his employers in April 1999 just one month before the expiration of the limitation period. Although that is regrettably late in the day it does not affect this matter overall as will appear.

4. A Defence to his claim was served on the 8 July 1999. In paragraph 3 the Defendant (the employer) pleaded amongst other matters that the "food hall" was leased to Weli Company Limited, the Third Party, (and appellant) in this case. It also averred that it was no part of the Plaintiff's ambit of duty to use the food hall access point. This was, the Plaintiff contends, the first he knew of the Third Party as occupier of the basement, for the purposes of legal liability in respect of the matters which formed the basis of his claim.

5. Mr C Y Li, who appeared for the appellant, prepared a very useful chronology for the purpose of this hearing which highlights all the prompt steps taken by the parties which followed.

6. Faced with the reference in the Defence to Weli Company Limited, the Plaintiff sought, in mid-August, further and better particulars to enable the matter to be considered. Little was forthcoming in reply although the ownership of the food hall was disclosed. Since the address of the owner is the same as that of the 1st Defendant there is likely to be some link between them. Nonetheless the Plaintiff then promptly took out a summons for discovery against Weli Company Limited and obtained an order by consent within a month. In the same month (September) the Defendants applied to issue a Third Party Notice against Weli Company Limited. They were granted leave and Weli Company Limited duly came into the picture as Third Party.

7. In October 1999 the Plaintiff took the precaution of issuing a Writ against Chi Pan Company and Weli Company Limited.

8. In November 1999 the 1st Defendant served its Third Party Statement of Claim alleging breach of covenants in the lease and negligence on the part of Weli Company Limited. In December the Plaintiff took out his application to join Weli Company Limited as the Third Defendant.

9. Mr Li argues that the Plaintiff's claim against Weli is barred by the Limitation Ordinance, relying on section 27(4)(a). The Plaintiff relies on the alternative limb under section 27(4)(b) - the period of limitation runs from the date of the Plaintiff's knowledge, if such knowledge is later than the date on which the cause of action accrued.

10. Consideration must be given to sections 27(6) and 27(8) in order to assess the merits of Mr Li's argument. Under 27(6) the date of knowledge means the date on which the Plaintiff first had knowledge of a number of facts. They are, inter alia,:

a) that the injury was significant;

b) that it was attributable to the act or omission which is alleged to constitute negligence or breach of duty,

c) the identity of the Defendant.

11. Under 27(8), knowledge includes knowledge which he might reasonably have been expected to acquire

a) from facts observable or ascertainable by him; or

b) from facts ascertainable by him with the help of ... appropriate expert advice which it is reasonable for him to seek.

12. Mr Li relies upon a number of circumstances and inferences which he argues should properly be drawn from them. One is that the Plaintiff's secondary level of education and employment experience over approximately twenty months, within that building, should have alerted him to the fact that the Café de Coral was the occupier of the food hall and thus answerable to him in damages for his accident. He contends, by way of an extension of that argument, that the Plaintiff's impression that his employer, as having the management of the building, was the occupier of the food hall area is not credible. I regret that I cannot accept that argument on any basis.

13. There are in fact three restaurant-style businesses having common use of the so-called food hall area, but it now transpires that they are all under the control of "Café de Coral", the lease to all the premises being held by one concern, Weli Company Limited. I see no reason why the Plaintiff should be saddled with any such knowledge. His employer was responsible for the security, management and other related matters of the Argyle Centre. There is no reason why he should be put on inquiry to ascertain what was the basis, licence or lease, of the occupation by Café de Coral of any part of the basement. It is relevant to recall that this accident happened at about 6:30 am in a flooded basement when he was acting in the course of his employment. His automatic, logical and in my view entirely reasonable reaction was to pursue his remedy against his employers, as employers and occupiers of the premises. It may well be that there are more than two or three occupiers of the premises but he commenced his action against the prime or principal occupiers. It would not be logical for him to consider that Weli Company Limited (even if he knew its identity) might be responsible for the flooding of the basement or the circumstances in which he sustained this accident whilst trying to carry out his duty. I take this view as the appropriate one, however long he had been employed in that capacity as attendant. It is also clear to me that until he saw the Third Party Statement of Claim he would be in no position to frame a case against Weli Company Limited. Accordingly, and sensibly, he has adopted the Defendants' allegations against Weli Company Limited in his re-Amended Statement of Claim.

14. Mr Li also attacks what he terms the reticence of the Plaintiff about legal advice he has obtained referring to legal representation for him in 1998 during the Employees' Compensation proceedings. I do not regard that as a valid point. The relevant considerations for that claim would not require an examination or even consideration of the potential fortfeasors or other occupiers of the premises.

15. Mr Li also attributed some significance to the existence of the trolley in the area of the food hall as a factor which should have alerted the Plaintiff to the existence of Weli Company Limited - or some other concern - as occupier of the premises and therefore prima facie answerable for any accident suffered by him. The significance of the trolley is in the context of a safe system of work and in that regard the Plaintiff's remedy lies against his employer. I cannot see how the mere presence of such a trolley could saddle the Plaintiff with any of the constructive knowledge argued for by Mr Li, or indeed have any real significance in the context advanced.

16. Although Mr Li also makes some criticism of the Plaintiff's conduct - in relation to delay - following the service of the Defence, he did not put it forward as a strong point and I am satisfied that the Plaintiff acted both promptly and sensibly following the disclosure. In fact the Plaintiff has to be satisfied that it is proper to seek to join Weli Company Limited as a Defendant in these circumstances and is dependent in his judgment on the case which his employers seek to make against the Third Party. He cannot afford not to join the Third Party as a Defendant once a clear case has been alleged against it. The prospect would have to be faced, at least in theory, of his case failing against his employers and his having no remedy against the Third Party if he had not joined it as a Defendant. Having joined it as a Third Defendant, if he succeeds against his employers, but fails against Weli Company Limited, at least he has the safeguard of the employers having to bear the costs of the action in relation to the third Defendant, because they 'pushed' him in that direction.

17. I have been referred to a number of decisions including Davies v. Read Stock & Co. Ltd and Anor Court of Appeal (Civil Division) 26 July 1984 and Walford and Others v. Richards [1976] 1 Lloyds Law Reports 526 upon which Mr Kwok for the Respondent Plaintiff relies for the commonsense application of the statute to the circumstances of each case. Mr Li made reference in addition to Wong Kan Lee v. Shimizu Corporation [1997] 1 HKC 61; Cheng Shiu Hong Herbert v. Attorney General, [1996] 3 HKC 333; Jam Oi-kan v. Tacksen Shui Hing Godown Co. Ltd and Another [1986] HKLR p. 288; Donovan v. Gwentoys Ltd (HL) 1990 1 WLR 472; and Ng Ngan Chiu v. Paramount Printing Co. Ltd [1998] 3 HKC p.730.

18. Those cases consider various aspects of the Limitation Statutes in the context of the facts of the particular cases. The principles are well set out and consistently applied. From a consideration of them one derives a clear picture of how varied are the circumstances of each case.

19. I have no doubt that the learned Master's decision in allowing the Plaintiff's application to join Weli Company Limited was a correct one. I ought to add - though it is hardly necessary - that Weli Company Limited as Third Party to the Defendant's Notice and Statement of Claim is having to meet a claim for indemnity or contribution based on the terms of the agreement and on precisely the same alleged facts as constitute the Plaintiff's claim against it.

20. The appeal is dismissed with costs to the Respondent to be taxed if not agreed.