CHENG WAI LEUNG v. MARTIN CONSTRUCTION CO LTD AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. I have before me a summons issued on behalf of the 4th defendant to strike out its name in the re-amended writ and amended statement of claim under 0.15 r.6(2)(a) or, alternatively, under 0.18, r.19(1)(b), (c) or (d) of the Rules of the Supreme Court. 0.15, r.6(2)(a) reads :-

"6.   (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-

 

And 0.18, r.19(1) reads as follows : -

"19.   (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

 

2. The 4th defendant does not rely upon 0.18, r.19(1)(a) which by virtue of 0.18, r.19(2) precludes the admission of evidence.

3. The case for the 4th defendant is that the plaintiff's claims are groundless and unfounded in that there is no factual basis on which to found them.

4. By the amended endorsement on the writ which was issued on the 12th December 1989, the plaintiff claims damages for personal injury by accident, namely, pneumoconiosis and deafness sustained by the plaintiff during his employment with the defendants between 1978 and 1989 which has been occasioned by the negligence and/or breaches of statutory duty and/or  breaches of the common duty of care of the defendants.

5. By the amended statement of claim, it is alleged that at all material times the plaintiff was employed as a rock caisson worker, and was employed by the 4th defendant in 1981/82, at a commercial building construction site in Hai Phong Road, in 1983 at the Pacific Place site formation and in 1986/87 at a construction site in Kornhill. It is also pleaded that the 4th defendant was an occupier within the meaning of the Occupiers Liability Ordinance, Cap. 314, of the construction sites to which the plaintiff was a visitor. It is further alleged that the 4th defendant was a contractor responsible for the construction sites within the meaning of the Construction Sites (Safety) Regulations, Cap.59. The plaintiff contends that whilst he was employed at the construction sites, he was constantly exposed to dust as a result of which he now suffers from pneumoconiosis.  He was also exposed to the noise of construction work which has resulted in his hearing being significantly impaired.

6. Mr McCormick submitted that the plaintiff's case against the 4th defendant is that the 4th defendant was his employer, or if this was not the case, that the 4th defendant was the contractor responsible for the sites in question.

7. In his evidence, the plaintiff states that during 1981/82 he was employed by a sub-contractor to carry out caisson work at a construction site of the 4th defendant at Hai Phong Road, Tsim Sha Tsui. At the time that he was on the site, he saw a notice board on which were Chinese characters which translated into English read "Hsin Chong Construction Co.".  The building that was constructed is known as the Silvercord Centre.

8. In 1983, the plaintiff claims that he was engaged by a sub-contractor to do caisson work at the Pacific Place site. Whilst working at this site, the plaintiff states that he saw a notice board of Hsin Chong Construction Co. similar to the one that he saw at the Hai Phong Road site.

9. During 1980 - 1982, the plaintiff alleges that he worked at a construction site at Tai Koo Shing after being engaged by a sub-contractor when he saw a notice board similar to the one that he saw at the Silvercord site with the same characters for Hsin Chong Construction Co. The plaintiff had alleged in the statement of claim that the site was at Kornhill, but he now states that this was a mistake.

10. Mr Nelson Wong, the 4th defendant's Senior Assistant Contracts Manager in his affirmation of the 4th January, states that the company did not carry out any work in Hai Phong Road in 1981 or 1982, but that from the end of June 1982 carried out super - structure work at the Silvercord Centre at the corner of Canton Road and Haiphong Road in Tsim Sha Tsui which was the only construction site on which the defendant worked in the proximity of Haiphong Road during 1981 or 1982. However, no caisson work was carried out and no caisson workers were employed. In respect of the plaintiff's claim relating to Pacific Place, Mr Wong states that the 4th defendant carried out no work on this site in 1983. As I have said the allegation in respect of Kornhill has been withdrawn, the plaintiff now contending that the site was at Tai Koo Shing in respect of which claim the plaintiff now seeks leave to amend the statement of claim. The evidence of Mr Wong has been confirmed by that of Mr James Lee, a director of the 4th defendant in his affirmation of the same date. Mr Wong disputes the plaintiff's evidence that the signboards that he referred to were those of the 4th defendnat.

11. Miss Fung, the 4th defendant's personnel manager, in her affirmation, also of the 4th January, states that she has ascertained from her records that with regard to the Silvercord Centre project, the plaintiff does not appear on the 4th defendant's monthly-paid staff payroll, but she has been unable to ascertain whether he was a daily-paid worker at that time because the 4th defendant only keeps such records for a period of seven years. The evidence of Miss Fung is not in dispute for the plaintiff does not claim that he was ever employed by the 4th defendant as a monthly worker.

12. Copies of Form 16 issued under Regulation 20 of the Building (Administration) Regulations were produced to establish that the 4th defendant was not the registered contractor at the sites during the periods when the plaintiff claimed that he was employed by the 4th defendant.

13. Mr Clayton, counsel for the 4th defendant, referred to the responsibilities of a contractor that are set out in Reg. 2(2) of the Construction Sites (Safety) Regulations which reads :-

Mr Clayton also referred to s.9(3) of the Buildings Ordinance, Cap. 123 which provides :-

                "9(3)     A registered contractor so appointed shall-

14. Mr McCormick referred to Reg.42 of the Construction Sites (Safety) Regulations which reads :-

"42.      Where any construction work involves the grinding, cleaning, Spraying, mixing, or working of any material which causes dust or fumes to be given off of a character and extent likely to be injurious to the health of workmen employed in the work, the contractor responsible for the work shall take such reasonable precautions as are necessary to prevent the inhalation of the dust or fumes by the workmen, either by providing adequate ventilation or by the provision and use of suitable respirators or other effective means."

15. Mr McCormick submitted that 0.15, r.6(2)(a) of the Rules of the Supreme Court does not apply to the present case and cited three authorities - Bainbridge & Anr. v. The Postmaster General & Anr. [1906]1 K.B. 178; Vacher & Sons, Limited v. London Society of Compositors [1913] A.C.107 and In re Barnato, Deceased [1949]1 Ch.258, as illustrations of parties who had been improperly or unnecessarily made a party. In the Vacher case, a trade union which had immunity from action in respect of a tortious act was struck out whilst in the other two cases, the Crown which had immunity in any event, was struck out as a party. I accept Mr McCormick's submission that 0.15, r.6(2)(a) is inapplicable for the 4th defendant cannot be said to be a party improperly or unnecessarily joined in the sense envisaged.

16. As evidence has been filed in support of the application under 0.18, r.19, the 4th defendant does not therefore rely upon 0.18, r.19(1)(a) that the plaintiff has not disclosed a reasonable cause of action for no evidence would, of course, have been admissible under that head. Mr Clayton in his submission places reliance upon Steamship Mutual Underwriting Association Ltd. & Anr. v. Trollope & Colls (City) Ltd. & Ors. 33 BLR 77. In that case, the 5th defendant was struck out under 0.18, r.19 since to issue a writ against a party when it is intended to serve a statement of claim which sought no relief against that defendant was found to be an abuse of the process of the court. It was held that the issue of a writ in those circumstances, which was groundless and unfounded in the sense that the plaintiff did not know of any fact to support it, was an abuse of the process of the court and would be struck out. In his judgment, May L.J. at 87 said :-

"In my opinion, to issue a writ against a party, even in connection wtih a building dispute where cross-claims may subsequently be made, when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court. I should make it quite clear that, when one uses the phrase 'an abuse of the process of the court', there is good authority that that is not necessarily perjorative; what is meant is 'an improper use of the process of the court'."

17. Later on pages 88 and 89, May L.J. had this to say :-

"In any event (I come back to the point which I have already made) it cannot in my judgment be right to issue a writ against, say, an architect, just because it may be possible to hang a claim upon that writ, or part of a claim upon it, if it should possibly transpire thereafter that there are arguable grounds for doing so. If there is no arguable case at the time the writ is issued, and one cannot reasonably be expected, then it is an improper use of the procedure just to issue a writ, with no present intention whatever of following it up, merely ex abundante cautela."

Mr, Clayton also cited Lawrance v. Lord Norreys & Ors. [1886-90] All E.R.858 where Lord Herschell at 863 said :-

"It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. I do not think its exercise would be justified merely because the story told in the pleadings was highly improbable, and one which it was difficult to believe could be proved. But the Court of Appeal did not proceed on that ground. They took into consideration all the circumstances of the case. We have, to begin with, a statement of claim which, if it discloses a concealed fraud within the meaning of the statute, does so in the barest fashion, with much that is most material left vague and undefined, when there ought to have been distinctness and precision. Moreover, this is not the first but the third edition of a statement of claim delivered with the object of recovering the Towneley estate; and when we review the history of the litigation there is much to lead to the belief that important allegations now made were an afterthought, the result of criticisms of the earlier form in which the charges of fraud were presented, and that the charges thus raised against persons long dead are wholly incapable of proof. These impressions might have been dissipated by the affidavits filed on behalf of the appellant; but they have not been so. On the contrary, I think they have been strengthened. Both in what it says and in what it does not say Colonel Jaques' affidavit confirms in my mind the impression that the case has not a solid basis capable of proof, but that the story told in the pleadings is a myth, which has grown with the progress of the litigation, and has no substantial foundation."

Lord Watson in the same case described the case as of a very unusual character and at 865 had this to say :-

18. The circumstances in that case were clearly exceptional and I do not consider that it provides any assistance to the 4th defendant.

19. My attention was also drawn to Ashmore v. British Coal Corporation.[1990]2 W.L.R.1437 where Stuart-Smith L.J. disagreed with the dictum of Stephenson L.J. in Bragg v. Oceanus Mutual Underwriting Association (Bermuda) Ltd. [1982]2 L1.Rep.132, in the following words at 1447 when he said :-

"          Stephenson L.J. said, at p.139 :

 

'Yet it is the duty of the judge and the Court of Appeal to shut out the defence if it is an abuse of the court's procedure to repeat it, in accordance with decisions of this court in Remmington v. Scoles [1897] 2 Ch.1, and of the House of Lords in Reichel v. Magrath (1889)14 App.Cas.665 and Hunter v. Chief Constable of the West Midlands Police [1982] A.C.529. Every repetition of a defence (or claim) may be said to mount a collateral attack on a previous judicial decision, and to invite those derogatory references to 'a side wind' or 'a back door' which are in favour with advocates whose clients are not open to a frontal attack. But in my judgment it is only those defences (or claims) that are sham and not honest and not bona fide which abuse the process of the court and call for the exercise of its inherent jurisdiction to prevent such abuse.'

 

            With all respect to Stephenson L.J., I do not agree that the claim can only be struck out as being an abuse of the process if it is a sham, not honest or bona fide. On the contrary, I prefer the views of the other members of the court that it is dangerous to try and define fully the circumstances which can be regarded as an abuse of the process, though these would undoubtedly include a sham or dishonest attempt to relitigate a matter. Each case must depend upon all the relevant circumstances. In the present case there was a large number of claims which raised similar issues against the same employers. The tribunal went to great length to devise arrangements which would enable the legal representatives of the parties to put forward their best cases so that as many issues of fact as possible could be raised and decided upon after the fullest inquiry and investigation. If the applicant or her advisers wished her case to be one of the sample cases, they could have applied at any time before the hearing for that to be done; she did not do so."

20. Mr McCormick referred to Turquand and Ors. v. Fearon [1879]40 L.T.543 where it was held that a pleading should not be struck out because a person makes an untrue statement or what is believed to be an untrue statement, but that the defendant should take issue upon it. To this proposition, Mr Clayton does not demur.

21. Mr McCormick also drew my attention to Wenlock v. Moloney and Ors. [1965] 1 W.L.R.1238 where the Court of Appeal held that the trial by the master of issues of fact on affidavit to ascertain whether the plaintiff had a case was a usurpation of the functions of the trial judge and was a wholly improper procedure. In his judgment at 1242 and 1243, Sellers L.J. had this to say :-

In the same case, Danckwerts L.J. said at 1243 :-

"          I agree. The practice under R.S.C. Ord. 25, r.4, and under the inherent jurisdiction of the court was well settled. Under the rule it had to appear on the face of the plaintiff's pleading that the action could not succeed or was objectionable for some other reason. No evidence could be filed. In the case of the inherent power of the court to prevent abuse of its procedure by frivolous or vexatious proceedings or proceedings which were shown to be an abuse of the process of the court, an affidavit could be filed to show why the action was objectionable. The commonest case was where a plaintiff was seeking to bring an action on a point which had already been decided or was obviously wholly imaginary. An example of that is Willis v. Earl Howe. But, as the procedure was of a summary nature, the party was not to be deprived of his right to have his case tried by a proper trial, unless the matter was clear."

Later in his judgment at 1244 Danckwerts L.J. said :-

"         The position under two former rules has been incorporated in the present R.S.C. Ord. 18, r.19. There is no doubt that the inherent power of the court remains. But this summary jurisdiction of the court was .never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power."

22. The mere fact that the plaintiff has made an assertion which forms part of the allegations in the statement of claim has been accepted by the 4th defendant as providing a reasonable cause of action, but the 4th defendant contends upon the evidence that there is no factual basis to substantiate the claims. The copies of Form 16 state who were the registered contractors at the sites at the relevant times, but it does not provide conclusive evidence that the 4th defendant is not a proper party, for the registered contractor will not necessarily be the company that carried out the work for it may have been sub-contracted. Further, although s.9(3) of the Buildings ordinance was cited to show that a registered contractor is required to provide continued supervision, it is not alleged that the 4th defendant was held out to exercise such supervision.

23. Although the 4th defendant has not based its application to strike out under 0.18, r.19(1)(a) that there is no reasonable cause of action for which no evidence is admissible, it is in reality made under that part, but with evidence filed so that reliance can be placed on the other parts of the rule. The plaintiff has made allegations in the pleading which the 4th defendant denies. There are discrepancies between the evidence of the plaintiff and Mr Wong with regard to the notice board as to whether the 4th defendant was carrying out caisson work at the sites in question during the periods alleged by the plaintiff and indeed, whether the plaintiff was ever employed at all by the 4th defendant. Whilst the evidence that the plaintiff was not employed by the 4th defendant may not be strong, it has, nevertheless, been put forward on the plaintiff's instructions. None of the matters to which I have referred can be resolved upon the affidavits, but must be determined by oral evidence and cross-examination at the trial.

24. It is conceded that the claim made by the plaintiff is not a sham or dishonest or that the plaintiff is making an untrue statement, but the 4th defendant in effect says that the plaintiff's memory of events is incorrect. Such contentions put the credibility of the plaintiff in issue which again, is a matter for determination by the trial judge.

25. There is upon the evidence a factual dispute which cannot be decided, as I have said, upon the affidavits. Although the plaintiff may have a weak case against the 4th defendant, it does not entitle the 4th defendant to strike out the plaintiff's action for the 4th defendant must put the allegations in issue and proceed to trial in the usual way.

26. I am quite satisfied that the 4th defendant's application in the circumstances is wholly misconceived.

27. Accordingly, the summons of the 4th defendant will be dismissed and there will be order nisi for costs to the plaintiff with the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations. I shall make an order in terms of the application to amend that was adjourned by the master pending the decision upon the application to strike out. Costs thrown away as a result of the amendment will be to the 4th defendant.