TANG KWAI MING v. YEE SUN GARDEN LTD AND OTHERS

HCPI607/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 607 OF 2004

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D E C I S I O N

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1.  This is an appeal by the plaintiff in a personal injuries action against an order of a Master made on 17 December 2004 striking out the claim against the 3rd and 4th defendants in the action.

2.  The plaintiff used to be a gardener in the employ of the 3rd defendant.  On 9 July 2001 at about 7:30 p.m. while she was in the course of her employment, she was taken by transportation arranged by the 3rd defendant from her place of work at Cheung Tung Road at Tung Chung to the 3rd defendant’s base in Sham Shui Kok, Tung Chung.  The vehicle was driven by the 1st defendant and an accident happened which injured the plaintiff.  The 1st defendant was subsequently charged and convicted of careless driving and the plaintiff relied on the conviction as evidence of the 1st defendant’s negligence.

3.  There is no dispute that the 4th defendant was the principal contractor of the 3rd defendant.  In fact, the 4th defendant was a partnership of one Madam Fung and one Mr Lai and they were the shareholders of the 3rd defendant.

4.  The plaintiff pleaded in paragraph 2 of the Statement of Claim the following: 

“	The followings were implied terms of the contract of employment between the Plaintiff and the 3rd and 4th Defendants:
	(1)	The 3rd and 4th Defendants would take all necessary precautions to ensure the safety of the Plaintiff while she was engaged in carrying out her work;
	(2)	the 3rd and 4th Defendants would not expose the plaintiff to any risk of damages and/or injury which the Defendants knew or ought to have known;
	(3)	the 3rd and 4th Defendants would provide safe transportation to the Plaintiff to enable her to travel between her place of work and the Defendants’ space in Sham Shui Kok, Tung Chung.”

5.  The plaintiff further pleaded in paragraph 5 of the Statement of Claim as follows:

“	5.	This accident was caused by the breach of the implied terms of the contract of employment of the 3rd and 4th Defendants.
Particulars of the breach of implied
terms of the contract of employment
	(1)	Failing to provide the Plaintiff with safe transportation to enable her to travel between her place of work and the base;
	(2)	Exposing the Plaintiff to risks of damages and/or injury which the 3rd and 4th Defendants knew or ought to have known;
	(3)	Failing to procure the service of a competent driver for the purpose of providing transport to the Plaintiff.”

6.  The plaintiff’s solicitors confirmed in correspondence to the solicitors for the 3rd and 4th defendants that the plaintiff was suing the 3rd and 4th defendants together and not in the alternative.

7.  On 12 October 2004, the 3rd and 4th defendants issued a summons to strike out the plaintiff’s claim as against the 4th defendant and paragraph 5 of the Statement of Claim as against both the 3rd and 4th defendants.  The grounds of the application are under Order 18 rule 19 of the Rules of the High Court and the inherent jurisdiction of the court that the plaintiff’s claim or paragraph 5 of the Statement of Claim was frivolous or vexatious, and/or they might prejudice, embarrass or delay the fair trial of the action, and/or they were an abuse of the process of the court.

8.  On 17 December 2004, the Master ordered that paragraphs 2 and 5 of the Statement of Claim be struck out and the plaintiff’s claim as against the 3rd and 4th defendants be dismissed.  The Master further ordered the plaintiff to pay costs to the 3rd and 4th defendants.  The plaintiff appealed against that order.

9.  Paragraph 10-02 of Charlesworth & Percy on Negligence, 10th Edition states:

“10-02 General duty.  At common law, the duty of an employer to its employees is to take reasonable care for their safety.” 

And it further says in paragraph 10-04:

“10-04 Duty is personal and not delegable. Today, it is no longer necessary to put the duty under three heads.  It is the single personal duty, which is non-delegable, and the importance of this feature is that the employer must see that care is taken by all those persons engaged by him.  It is insufficient merely for him to take care himself.  Judicial definitions have included: “The duty of an employer towards his servant is to take reasonable care for the servant’s safety in all the circumstances of the case” and “the duty of taking reasonable care …… so as to carry on his operations as not to subject those employed by him to unnecessary risk.”  “The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle.”  It follows from the foregoing that the employer’s duty is stricter than the duty to take reasonable care for oneself, and it exists whether or not the employment is inherently dangerous.”

10.  Mr Cheung for the plaintiff also relies on paragraphs 10-27 and 10-34 by way of analogy.  They state:

“10-27 Employee gaining access to or working on another’s premises or plant. Despite initial doubts, it has been firmly established by the House of Lords that the general duty of an employer to his employee to take reasonable care for the safety does not come to an end merely because the workman has been sent to work at premises which are occupied by a third party and not by the employer.  The duty remains throughout the whole of the course of his employment.  What will vary in each case is the degree of care to be taken by the employer.  “The duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party; but what reasonable care demands in each case will no doubt vary.””

“10-34 Including a safe means of access.  An employer is under a duty to take reasonable care to provide a reasonably safe means of access from a highway to the place of work.  Where the place of work immediately adjoins the highway, his duty begins as soon as the workman leaves the highway and enters the place of work.  Where the work place does not adjoin the highway and can only be reached by crossing land occupied by a third party, the employer is under a duty to take reasonable care to see that the way is reasonably safe for his workman to use.”

11.  I should also mention that Mr Lai, as shareholder and director of the 3rd defendant, has made an affirmation on 8 October 2004.  He said in paragraph 8:

“For the workers of the 3rd Defendant to perform gardening work, they often had to go to a “meeting point” where they picked up and stored their tools.  After performing the gardening work, they would normally return to the meeting point to return the tools and to sign off.  If the place of work and the meeting point are within reach of the public transport, the 3rd defendant would not provide any transportation.  However, on the date of the subject accident, the place of work was at Cheung Tung Road, Tung Chung and there was no meeting point nearby.  In such circumstances, the 3rd Defendant would provide transportation to send the workers to Tung Chung Bus Terminus to get public transport.  The tools would be left in the vehicle.”

12.  Mr Leung, counsel for the 3rd and 4th defendants, who opposes the appeal, argues that the plaintiff has failed to plead any basis for the alleged implied terms to be implied.  Mr Leung says that the plaintiff should have made clear whether the terms were implied for business efficacy, or by reason of previous conduct of the parties, or by usage or custom. 

13.  However, the terms sought to be implied is not sought on the basis of necessity or how the parties would have reacted to a suggestion of the officious bystander to make a certain term express.  If so, then it may be necessary to plead the basis for the terms to be implied.  The plaintiff is however seeking to imply the terms by reason of the nature of the particular legal relationship of employment (see The Interpretation of Contracts (3rd ed) paras. 6.01 and 6.16).  Hence, what is already pleaded in paragraph 2 of the Statement of Claim is sufficient and it is not necessary to plead business efficacy or necessity for the performance of the contract as the basis for the implied terms.  I therefore do not agree with Mr Leung.

14.  As there is no dispute that the 3rd defendant has indeed provided transportation to the plaintiff, I therefore think that it is open for the plaintiff to argue that there is an implied term that such transportation as provided should be a safe mode of transportation.  Hence, the 3rd defendant was obliged to comply with the three implied terms as pleaded in paragraph 2 of the Statement of Claim. 

15.  I would therefore allow the appeal in relation to the plaintiff’s claim against the 3rd defendant as I find that such terms as sought to be implied are not unarguably bad.  If the implied terms can sustain, then obviously the plaintiff can argue that the 3rd defendant has breached those terms as pleaded in paragraph 5 of the Statement of Claim.

16.  I now turn to the case as against the 4th defendant.

17.  It is not just the evidence from the 3rd and 4th defendants which clearly show that the 3rd defendant was the plaintiff’s employer and not the 4th defendant.  The plaintiff in her witness statement made on 7 November 2003 also said that she was employed by the 3rd defendant. 

18.  The Form 2 which bears the chop of and signature on behalf of the 4th defendant also stated in legible handwriting that the plaintiff’s employer was the 3rd defendant.  There is thus no admissible evidence which would cast any doubt on the point that the 4th defendant was not in any employment relationship with the plaintiff.  I take the view that it is in these circumstances frivolous and vexatious to sue the 4th defendant together with the 3rd defendant as direct employers and not to sue them in the alternative.  I would therefore dismiss the appeal in relation to the claim against the 4th defendant.

19.  I now hear the parties on costs, both here and below.

(Discussion re costs)

20.  As both counsel agree, I should in the circumstances set aside the Master’s order on costs made on 17 December 2004 and order the plaintiff to pay costs to the 4th defendant both here and below, whilst the 3rd defendant should pay the plaintiff’s costs both here and below in relation to the different parts of the application and the appeal, with certificate for counsel.

21.  In the light of the conditional concession of Mr. Leung for the 3rd and 4th defendants that if I should allow the appeal, I should also allow the plaintiff’s application to amend the Statement of Claim, I would therefore allow the plaintiff’s amendment in relation to the 3rd defendant but not the 4th defendant.  I would also order that the plaintiff should pay the 3rd defendant the costs of and occasioned by the amendment in any event but to pay the costs of the summons to amend to the 4th defendant forthwith.