Abdul Ghafar v. Yuen Ming Transportation and Another
Read the full judgment text of HCPI 829/2016 on BabelCite. This High Court CFI judgment was delivered on 16 April 2018.
1. This is the plaintiff’s application to join Chan Chung Yuen (“Chan”) as the 2 nd defendant.
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HCPI 829/2016 [2018] HKCFI 762 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 829 OF 2016 _________________________
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_______________ D E C I S I O N _______________ 1.This is the plaintiff’s application to join Chan Chung Yuen (“Chan”) as the 2nd defendant. BACKGROUND 2.The plaintiff was a general construction labourer who was allegedly injured in the cargo compartment of a truck when a heavy metal trolley broke loose inside the compartment. The truck was transporting materials for recycling. The 1st defendant, Yuen Ming Transportation, (“Yuen Ming”) is a limited and family‑run company which had previously been employing the plaintiff. Chan was the son in the family and he was sitting in the front cabin of the truck driven by Chan’s mother, Madam Tse Lai Fong (“Madam Tse”). 3.The plaintiff suffered from a fractured hip as well as injuries to his left shoulder, chest and ankle. The joint orthopaedic experts have no dispute that such injuries were consistent with mechanism of the accident. The joint psychiatric experts also agreed that the plaintiff suffered from “Adjustment disorder with Mixed Anxiety and Depressed Mood”. 4.It is not in dispute that the plaintiff has previously worked for Yuen Ming. The plaintiff initiated the claim against Yuen Ming only, alleging that he believed by he was employed by Yuen Ming at the time of the accident. 5.In the Defence filed on 9 September 2016, Yuen Ming “averred that the plaintiff was not its employee at all material times in relation to this claim…” 6.Madam Tse took the same position as the witness for Yuen Ming in her witness statement dated 6 March 2017, stating that Yuen Ming has previously employed the plaintiff but has not employed him since 2008. 7.Yuen Ming served another round of witness statements on the plaintiff on 20 July 2017: a supplemental witness statement from Madam Tse and a witness statement from Chan. 8.In Madam Tse’s supplemental witness statement, she stated that Chan started his own recycling work in 2013 which was not part of the business of Yuen Ming, and that she understood that the plaintiff joined Chan’s recycling work and she was also involved in helping to pay the plaintiff for such work. Thus Yuen Ming was not the employer of the plaintiff. 9.In Chan’s witness statement, he stated that he “co-operated” with the plaintiff in the recycling business and they shared the payment at the end of the day. He also denied that he was the employer of the plaintiff. 10.The plaintiff’s solicitors took out the current joinder application on 20 September 2017 (the “Summons”), exactly 2 months after the serving of the above witness statements. ISSUES 11.The issues for this joinder application are as follows:
Whether Chan should be joined 12.Order 15 rule 6(2) provided that: “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…” 13.It is obvious that the identity of the employer, if there was one, is the crux of this claim. Therefore, this “necessity” test is easily satisfied. Time limitation 14.This joinder application was made some 14 months after the expiration of 3 years from the date of the accident. 15.The plaintiff’s argument was that the time should only run from the date of the plaintiff’s knowledge (as stipulated under Section 27(4)(b) of the Limitation Ordinance). The plaintiff only gained the knowledge that there was a possibility that his employer might not Yuen Ming but Chan on 20 July 2017 (when the two witness statements were served). There was no other way until then that the plaintiff would have been made aware of this possibility because Yuen Ming’s position all along was simple denial. 16.Mr. Jonathan Lai, counsel for Chan, argued that the plaintiff had actual knowledge because it was his case that Chan (whom the plaintiff called “my boss”) contacted him about this job, Chan instructed him to sit in the cargo compartment of the truck, and that he was aware that he suffered significant injuries as a result of the accident. 17.As such, he must have “a broad knowledge of the essence of the casually relevant act or omission to which the injury is attributable” (Lam Siu Ping v Secretary for Justice HCPI 345/2010) even on the date of the accident as to the matters stated under Section 27(6) of the Limitation Ordinance: ‑
18.Mr. Lai argued that it was always the plaintiff’s pleaded case that Chan was negligent but Yuen Ming was vicariously liable. The argument that the plaintiff’s date of knowledge starting from 20 July 2017 was only relevant “if the plaintiff was referring to the cause of action that involves a breach of employer’s duty owed to an employee” but the plaintiff must have knowledge that, at the very least, a co‑worker (if he thought that Chan was merely a co-worker) was negligent. 19.Mr. Lai’s argument would have been helpful to his case if the action was initiated against a “wrong” co-worker when it was clear that the plaintiff should have known that Chan was the negligent co‑worker. 20.However, it is clear from the Statement of Claim that the plaintiff’s cause of action was against his employer. Paragraph 3 of the Statement of Claim clearly pleaded the standard of care of an employer to an employee and not the standard of care expected between co‑workers. 21.Thus, although the plaintiff was aware that Chan was negligent, his claim was against the employer, whoever he/she/it was, and the knowledge of the identity of another possible employer only emerged on 20 July 2017. Therefore, joining Chan as a co‑defendant would require a proper amendment of the Statement of Claim in that Chan would be alternatively sued as an employer, but not as an individual co-worker (which would mean adding a new cause of action pleading additionally the standard of care expected between co-workers). 22.Alternatively, Mr. Lai argued that the plaintiff should have constructive knowledge because the plaintiff was previously employed by Yuen Ming as “a construction worker and general labourer” in the business of construction projects, relocation and transportation, so it should be clear to the plaintiff that recycling was not part of Yuen Ming’s business etc. (see paragraph 20 of his skeleton submission). 23.I agree with Mr. Victor Gidwani, counsel for the plaintiff, that it would be too far-fetched to expect the plaintiff to be alerted to the internal structure and organisation of a family company when he was, as he claimed, merely employed as an occasional casual worker. 24.There was no dispute that he was employed by Yuen Ming previously and has been paid by cheques bearing the name of Yuen Ming. Although he has not received such cheques (but was paid in cash) after the elder Mr. Chan passed away in 2008, he was still involved with the rest of the family: receiving occasional instructions for work from Chan and receiving payments from Madam Tse etc. 25.Under the circumstances, I would question why a casual worker might somehow deduce that, just because the nature of the work has changed somewhat, that Yuen Ming was no longer his employer. Unless he was told specifically or there was new evidence (like receiving a cheque issued by a different employer), I would expect that any reasonable worker might simply think that the company was expanding its business into a new area. 26.Of course, it was Chan’s evidence that the plaintiff was working in “co-operation” and “sharing the fees” with him and not as an employee. In view of such dispute in facts, it must be just that Chan be joined so that all dispute can be dealt with and, should Chan be found by the court to be the “real” employer, the plaintiff should not be deprived of the means of seeking compensation from him. 27.As such, I hold that the the date of the plaintiff’s knowledge (as stipulated under Section 27(4)(b) of the Limitation Ordinance) is 20 July 2017 and therefore the current application, taken out 2 months later, is not time barred. Prejudice 28.The issue of prejudice would only arise as part of the consideration of “all the circumstances of the case” for the court to exercise its discretion to override the time limitation under Section 30(3) of the Limitation Ordinance. 29.Since I find that the application is not time barred, there is no need to consider prejudice. 30.However, even if my analysis of the date of knowledge was wrong and the application was time barred, I would still exercise the court’s discretion to override the time limitation given the circumstances of the whole case: the delay was at most about 14 months. Even if Mr. Chan found it difficult to locate the 3 co‑workers, as his main defence must be that he and the plaintiff were some sort of “business partners” (and not employer/employee), I would think that the co-workers would unlikely be witnesses to such a business agreement. In any case, the prejudice against the plaintiff of not being able to claim against a potential employer far outweighs any prejudice against Chan. ORDER 31.Accordingly, I would grant order in terms of paragraphs 1 to 10 of the Summons. 32.As for costs:
Mr. Victor Gidwani, instructed by Or & Partners assigned by Director of Legal Aid, for the plaintiff Ms. Percy Yue, instructed by Rowland Chow & Co., for the 1st defendant Mr. Johnathan Tai, instructed by Simon C W Yung & Co., for the 2nd defendant |
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