XCHRX THIAN SUI CHING v. AU YEUNG KWAI CHUEN AND OTHERS

HCPI 1245/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.1245 OF 1998

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R U L I N G

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1. The Plaintiff brings this claim against the 1st, 2nd and 3rd Defendants claiming damages for personal injuries sustained by the Plaintiff while working on a construction site on 10th December 1995. The 1st and 2nd Defendants are sued as sub-contractors and the 3rd Defendant as the principal contractor of the site. The Plaintiff's claim is brought upon negligence, breach of occupier's liability and breach of statutory duty against these Defendants. The Writ was issued on 8th December 1998.

2. The 2nd and 3rd Defendants were insured under an Employees' Compensation insurance policy by HIH Casualty and General Insurance (Asia) Limited ("the Insurers") which covered, inter alia, the liability of the 2nd and 3rd Defendants to the Plaintiff in respect of this accident.

3. One of the defence raised by all three Defendants is that if they are liable to the Plaintiff for that accident, their liability has been fully satisfied by a Deed of Release, Discharge and Indemnity ("the Deed") executed by the Plaintiff on 26th November 1997.

4. In his Reply, the Plaintiff admits to having signed the Deed on 26th November 1997 but avers :-

(a) The only parties to the Deed was the Plaintiff on the one part, the 3rd Defendant and the Insurers on the other part wherefore the 1st and 2nd Defendants, not being parties to the Deed, cannot rely upon the Deed as a defence to the Plaintiff's claim.

(b) That the Plaintiff was induced to sign the Deed under the undue influence of the 3rd Defendant and the Insurers.

(c) That the 3rd Defendant and the Insurers, being under a fiduciary duty towards the Plaintiff, were in breach of that fiduciary duty.

(d) Alternatively, the Plaintiff was induced to sign the Deed by the misrepresentation of the 3rd Defendant and the Insurers.

(e) Alternatively, the Plaintiff was induced to sign the Deed and entered into the alleged settlement agreement by reason of the economic duress on the part of the 3rd Defendant and the Insurers.

(f) Alternatively, the Plaintiff was induced to sign the Deed by the unconscionable conduct and/or inequality of bargaining power between the Plaintiff on the one part and the 3rd Defendant and the Insurers on the other part.

(g) Non est factum and estoppel have also been pleaded.

5. Leave was given to the Defendants to file a Rejoinder. By the Rejoinder, the Defendants put in issue all the matters raised by the Plaintiff in the Reply. It is therefore clear from what has been pleaded in the Defence, Reply and Rejoinder that the validity of the Deed is very much in issue in this matter.

The Present Application

6. The Plaintiff now applies by summons to join the Insurers as a party to this action on the basis that its "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" (O.15, R.6(2), Rules of the High Court).

7. In support of this application, I have also been referred to the Court of Appeal's decision in Pang Wai Chung v. The Tai Ping Insurance Company Limited (Civil Appeal No.114 of 1998) which dealt with the interpretation to be given to ss.43(1), 44(1), (2) and (3) of the Employees' Compensation Ordinance ("the Ordinance").

The Defendant's Objection

8. Mr Chik who represents the 1st, 2nd and 3rd Defendants as well as the Insurers as the Intended 4th Defendant, the Summons having been served on the Insurers by the Plaintiff, objects to this application basically on two grounds :-

(a) that the limitation period has clearly expired; and

(b) it is not necessary, for the determination of this matter, to join the Insurers.

Decision

9. The first objection by the Defendants/Intended Defendant cannot be sustained in the light of the Court of Appeal's decision in Pang Wai Chung's case. It was there decided by the Court of Appeal that the right to claim against an insurer is a statutory right of action given under s.43(1) and s.44(1) of the Ordinance and arises only upon quantification. As such, the limitation period has clearly not expired in the present case. However, s.44(2) and (3) give a plaintiff a procedural right to commence proceedings against the insurer either when he has commenced proceedings against the person insured (s.44(2)) or when there are reasonable grounds to be satisfied that any one of the three events specified in s.44(3) has occurred, then he may take proceedings against the insurer without having taken proceedings against the person insured (s.44(3)).

10. In the present case, since the Plaintiff has already commenced proceedings against the 1st, 2nd and 3rd Defendants, i.e. the insured, he has complied with the requirements of s.44(2).

11. More difficult, however, is the second objection raised by Mr Chik. Initially, I had some difficulty accepting that it was necessary for the Insurers to be added as a party to these proceedings. However, having reflected on the matter and given it more thought, I am satisfied that where the validity of the Deed is in issue, the fact that the Insurers is a party to that Deed makes it such that "his 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".

12. Accordingly, I shall make the following orders :

(a) Leave be granted to the Plaintiff to join HIH Casualty and General Insurance (Asia) Limited as the 4th Defendant herein.

(b) The Plaintiff have leave to amend the Writ of Summons and the Statement of Claim herein in the manner as per the copy annexed to the Plaintiff's summons dated 17th September 1999.

(c) The previous acknowledgement of service of the Writ by the 1st, 2nd and 3rd Defendants do stand.

(d) Service of the Amended Writ of Summons and Amended Statement of Claim upon the 1st, 2nd and 3rd Defendants be dispensed with.

(e) The Amended Writ of Summons and the Amended Statement of Claim be filed in Court within seven days.

13. I shall hear the parties now on the further directions they seek and on costs.