MOHAMMAD MUTLOOB v. WISE SECURITY LTD AND OTHERS

HCPI 410/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 410 OF 2005

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J U D G M E N T

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1.  By this action the plaintiff, a former securities guard, is suing his employer in damages he having fallen and injured himself whilst on patrol at a construction site.  The matter before me is his application to join as a 2^nd defendant the main contractor on the site, whom he wants to join as occupier of the site under the Occupiers Liability Ordinance (the OLO).  Leave is necessary because more than three years has elapsed since the accident, and he is thus time-barred; see section 27 of the Limitation Ordinance (the LO).  He also asks for consequential amendments to the pleadings.  As is apparent from the heading, the intended defendant is already a third party in the action.

2.  There are no witness statements yet filed.  The following chronology emerges from the pleadings and correspondence exhibited to affidavits in support of and in opposition to these applications.

Chronology

2002

19 February

                   The plaintiff began work as a security guard for the defendant.

early June

                   The plaintiff was instructed by a superior to patrol the construction site in question, being a part of the Ma On Shan railway then under construction.  It is claimed and not challenged that the name of the principal contractor was displayed prominently on signs at the entrances to the site.

19 June

                   Whilst on patrol the plaintiff stumbled on uneven ground, fell and was hurt.

2003

14 October

                   The plaintiff’s solicitors wrote to his employer giving notice of a pending claim.

2004

28 October - 30 December

                   During this period there was correspondence between the solicitors of employer and employee during the course of which the employee’s solicitors were informed of the name of the principal contractor.  It was urged upon them that the principal contractor should be joined in the pending action.

2005

27 April

                   The plaintiff’s writ and statement of claim were filed against the employer alone, suing it as “occupier of the site, within the meaning of [the OLO] and under the implied terms of care in the contract of employment”.

8 June

                   The defendant issued a third party notice against the principal contractor, seeking indemnity, which thus became the third party to the action.

30 July

                   The defendant filed its defence. 

2006

3 January

                   The third party filed its defence.

22 February

                   The statement of claim was amended, to remove reference to the defendant being the occupier under the OLO.  In its place is the suit against the defendant as an independent contractor having a “measure of degree or control over the contraction site”.  The claim for lack of care that was owed the plaintiff as his employer remained unchanged.

3 May

                   The Registrar conducted a checklist review and gave directions for trial, with leave following compliance to set the action down for trial.

19 May

                   This application was filed with a supporting affidavit sworn by the plaintiff’s solicitor, a Mr Pickavant, on 29 April 2006.  In it he stated at paragraph 6:

“6.   As a result of counsel’s advice I am now aware that there are claims available to Plaintiff against Principle Contractor for which are not available against his immediate employer the Defendant herein.  For this reason we seek the re-amendment.”

and at 12:

“12.  The Third Party/Intended 2^nd Defendant will suffer no prejudice as a result of this application as they are already involved in the action by virtue of the Third Party Proceedings.”

                   The prospective changes to the pleadings include in the main a claim against the third party as occupier of the site under the OLO.

21 May and 23 June

                   Solicitors representing the defendant and third party respectively filed affidavits in opposition.  The correspondence of late 2004 was exhibited.  It was pointed out that the application to join was 11 months out of time, and 16 days after the checklist review, at which Mr Pickavant in attendance made no mention of the proposed application.  Yet by then he had already sworn his affidavit in support; that was dated the previous month. 

3.  What emerged from the documents was that there was no explanation or reason given as to why the third party had not been joined as a defendant prior to expiry of the limitation period.  There was no lack of knowledge of the existence of a principal contractor pleaded or deposed to, or who it was.  There was only an unexplained omission.

The Contest

4.  Before me Mr Parry represented the plaintiff and Mr Kerr for the third party responded in opposition.  Miss Wong appeared for the defendant in a “watching brief” capacity.

Statutory Provisions and Rules of Court

5.  Mr Parry told me that he was relying on the terms of O. 15 r. 6 RHC and section 35 of the LO.  He specifically was not relying on section 30 of the LO. 

6.  Pertinent provisions of O. 15 r. 6, headed Misjoinder and nonjoinder of parties, read as follows:

“6.— (1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

          (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,

…

          (3) An application by any person for an order under paragraph (2) adding  him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

…

           (5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either —

(a)  the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted,

            …

          In this paragraph 'any relevant period of limitation' means a time limit under the Limitation Ordinance (Cap. 347).

           (6) The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5)(a) if, and only if, the Court is satisfied that —

          …

(e)  the new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable.”

As is pointed out by the editors of the White Book at 15/6/1, this rule must be read closely with and be subject to the applicable provisions of section 35 of the LO, and the provisions of sub-paragraphs (5) and (6) deal with the power of the court to add a party, notwithstanding the expiry of the limitation period under the LO.

7.  Thus, I now turn to section 35 of the LO.  Section 35, headed New claims in pending actions: rules of court, states in part:

“(1)   For the purposes of this Ordinance, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced:

         …

(b) … on the same date as the original action.

  (2)   In this section a new claim means … any claim involving:

          …

(b) the addition or substitution of a new party,

          …

(3)   Except as provided by section 30 or by rules of court, the court shall not allow a new claim within subsection (1)(b), … to be made in the course of any action after the expiry of any time limit under this Ordinance which would affect a new action to enforce that claim.

…

(5)   Rules of court may provide for allowing a new claim to which subsection (3) applies to be made as there mentioned, but only if the conditions specified in subsection (6) are satisfied, and subject to any further restrictions the rules may impose.

(6)   The conditions referred to in subsection (5) are:

          …

(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.

 (7)  The addition or substitution of a new party shall not be regarded for the purposes of subsection (6)(b) as necessary for the determination of the original action unless …

…

(b) any claim already made in the original action cannot be maintained … against an existing party unless the new party is joined … as … defendant in that action.”

Discussion

8.  Mr Parry submitted that following the paths that weave through O. 15 r. 6 and section 35 of the LO the court has the power to grant the application, and in exercise of its discretion should do so, to ensure that all matters in dispute in the action may be determined and adjudicated upon. 

9.  Mr Kerr responded that the plaintiff has failed to satisfy all the necessary criteria which would give the court the power to rule on the application; in particular, to override the hurdle presented by section 35(7)(b).  He submitted that the plaintiff has not shown, and could not show, that he cannot maintain the claim presently made against the defendant unless the third party is joined as a co-defendant.  This is because the prospective claim against the third party, were it to be joined, will be as occupier under the OLO, whilst the claim against the defendant as now amended is, inter alia, for breach of its duties owed as employer to its employee.  That is of course a separate claim, which can still be maintained. 

10.  Mr Parry did not challenge that proposition or otherwise answer it; perhaps because there is no answer. 

11.  The joinder of the third party as a co-defendant being not necessary for the determination of the original action, I am satisfied I have no jurisdiction to join it, under section 35 of the LO.

12.  So that is the end of the matter.

13.  Mr Kerr went on to argue that were I to have found I had jurisdiction in the exercise of my discretion I should in any event decline the application.  In fact he advanced that proposition on the basis that I consider the application in the light of section 30 of the LO, which section is headed Court’s power to override time limits. The section gives the court a discretion to do just that having regard to all the circumstances of the case and six named situations in particular. 

14.  But Mr Parry was at pains to state, and then to restate, that the plaintiff was not looking to rely on section 30 of the LO; so be it.

15.  That is not to say I would not have had a discretion in applying section 35, had all the conditions set out in O. 15 r. 6 and section 35 of the LO been satisfied; see the White Book 15/6/1, page 216 at line 29.

16.  Assuming for the moment that the plaintiff were to have surmounted all the hurdles, including sub-section (7)(b), to give me jurisdiction, I would have to consider how to exercise that discretion.  There is nothing before me in the evidence to justify the granting of an indulgence to the plaintiff.  The time frames set out in the LO are there to be complied with.  There must be a good reason put forward as to why they may be overridden.  And there is no reason put forward at all.  It is not said why the claim was not advanced timeously against the third party.  Its existence was by all accounts known at all material times.  Its potential liability to the plaintiff could not have been overlooked; it is not suggested that it was overlooked.  And to propose that its being joined as a defendant could not be prejudicial because it is already a party is not only beside the point it is simply not true, given the contingent and limited exposure to liability it faces as a third party. 

17.  In the circumstances, were it to have been within my power to exercise a discretion I would have been obliged to do so by declining the application.

The Result

18.  The application as it relates to joinder is dismissed.  Consequentially the application to amend the pleadings is also dismissed.  I do note however that one or two amendments sought were to tidy up the statement of claim.  The plaintiff may wish to reapply to that end; hopefully by consent summons.

19.  Costs are nisi; they follow the event.  The third party’s and defendant’s costs are to be met by the plaintiff in any event.  His own costs are taxed under Legal Aid Regulations.