Leung Chak Tung v. East Joint Ltd. and Another

HCA006405/1989

1989 No.A6405

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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AND

1991 No.A126

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Coram: Hon Rhind, J. in Court

Dates of hearing: 20, 21, 23, 24, 28 and 29 December 1993

Date of delivery of judgment: 28 January 1994

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J U D G M E N T

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1. The Plaintiff is a carpenter who, on 15th April 1987, was injured at his place of work on the Ground Floor of China Building where he was one of a team of workmen engaged in fitting out a shop known as Max Mara.

2. The circumstances of the accident could not be simpler. He was on a folding-ladder, putting up wooden shelves, when he had the misfortune to touch a bare electric wire, the shock from which caused him to fall to the ground with the result that he suffered an undisplaced fracture of the right scaphoid bone. That has left him with a weakened right hand, impairing his working capacity as a carpenter.

3. At the time of the accident, he was aged forty-seven.

4. There is now no dispute that, at the time of the accident, the Plaintiff was the employee of Mr Pun Kwok Pan, another carpenter, who trades under the name of Kwok Pan Decoration Company, the Third Defendant, but there is an issue regarding the time when the Plaintiff came to know or ought reasonably have come to know that the Third Defendant was his employer, since, from the time of acquiring such knowledge, the normal three year period for bringing personal injuries claims under s.27(4) of the Limitation Ordinance begins to run.

5. It was not until 7th January 1991, i.e., some nine months or so after the third anniversary of the accident, that the Plaintiff issued his writ against the Third Defendant.

6. Preliminary issues for decision by the court now are whether the Plaintiff knew, or ought reasonably have known earlier than three years before 7th January 1991 that the Third Defendant was his employer at the time of the accident, and, if I find against the Plaintiff on that, whether it would, nonetheless, be just and equitable, in all the circumstances, as permitted by s.30 of the Limitation Ordinance, to disapply the time-bar, so that the Plaintiff can continue his action against the Third Defendant.

7. At the time of the accident, so everyone now knows, the Third Defendant was a sub-contractor to do carpentry work at the Max Mara shop premises for East Joint Limited ("East Joint"), the Main Contractor, which, for its customers, does a wide range of decoration work including plumbing, painting, metal-work, electrical work and wood-work.

8. East Joint's sub-contractor for the electrical work on the Max Mara job was Kalin Engineering Company ("Kalin"), the Second Defendant.

9. Well within the three year period counting from the date of the accident, the Plaintiff issued a writ for personal injury damages against both East Joint and Kalin : those proceedings have since been consolidated with his action against the Third Defendant.

10. It is common ground that the Plaintiff and the Third Defendant have worked together in the carpentry trade since about 1982.

11. On the Third Defendant's version, he and the Plaintiff have invariably stood in the same relationship to each other when they worked together, namely, the Third Defendant was always the employer, and the Plaintiff his employee.

12. According to the Plaintiff, the position was nowhere nearly so clear-cut as the Third Defendant contends. Sometimes, so the Plaintiff concedes, the Third Defendant was his employer, but, at other times, according to the Plaintiff's version, each was just an ordinary carpenter, working together under a common employer for the same daily wage, whilst, at yet other times, they were both working together for the same employer doing carpentry work, but with the Third Defendant holding the position of foreman, (colloquially known as a "snake-head"), empowered to recruit a gang of carpenters, buy materials for the job on the employer's behalf, supervise the work, and distribute the wages at the end of the day. As such a "snake-head", the Third Defendant would earn a few tens of dollars more per day than the ordinary carpenters in the gang such as the Plaintiff.

13. The peculiar circumstances in which the accident came to be reported to the Commissioner of Labour in purported compliance with s.15 of the Employees' Compensation Ordinance are highly relevant as to how it came about that the Plaintiff did not issue his writ against the Third Defendant earlier than January 1991. Those peculiar circumstances bear on whether, at the time of the accident, or in the nine months or so immediately following it, the Plaintiff knew himself to be the Third Defendant's employee.

14. Section 15 of the Employees' Compensation Ordinance requires an employer, on pain of prosecution, to report an accident befalling one of his employees to the Labour Department.

15. Penal sanctions also await any employer who has failed to comply with the provisions of Part V of the Employees' Compensation Ordinance, which requires compulsory insurance for employees.

16. The obligation to report and the obligation to insure converge in a statutory form, Form 2, which requires the employer to report an accident to any of his employees to the Labour Department, and to state whether he has insured his liabilities under the Employees' Compensation Ordinance, supplying at the same time the name and address of his insurance company.

17. An employer who has failed to take out compulsory insurance faces a dilemma should one of his employees be injured in the course of his employment. If such an employer does the right thing, and reports the accident on Form 2, he will inevitably incriminate himself if he answers "No" to the question, "Was the employer insured against liabilities under the Employees' Compensation Ordinance?" Should he simply omit to return Form 2 to the Commissioner of Labour, he thereby also contravenes the Employees' Compensation Ordinance.

18. The Third Defendant found himself confronted by this unhappy dilemma on the occasion of the Plaintiff's accident.

19. It was not that the Third Defendant had totally failed to insure his employees for Employees' Compensation purposes : he did have a current policy, but only for two employees, whereas, at the time of the accident, he was employing four carpenters, inclusive of the Plaintiff.

20. What happened next, in my judgment, fully explains how it came about that the Plaintiff failed to meet the primary limitation period of three years from the date of the accident, and puts the Third Defendant virtually beyond the pale of any equitable relief.

21. On the Third Defendant's own case, as brought out in cross-examination, it was he who raised the idea with the Plaintiff of Form 2 being submitted to the Commissioner of Labour on the false basis of East Joint having been the Plaintiff's employer at the time of the accident, and showing East Joint's insurers as the insurers for Employees' Compensation purposes. According to the Third Defendant, the Plaintiff knew full well he was really the Third Defendant's employee, but, all the same, agreed to go along with this stratagem, so the Third Defendant says.

22. On 19th July 1988, the Plaintiff and East Joint entered into a written agreement for Employees' Compensation, approved by the Commissioner for Labour on 15th September 1988, whereby East Joint, as purported employer, agreed to pay the Plaintiff, as its purported employee, $63,810 in respect of periodical payments and a permanent 5% incapacity. East Joint, however, defaulted over payment, and the Plaintiff had to get Legal Aid to sue them on the agreement.

23. The Legal Aid Certificate to sue on the agreement for Employees' Compensation was dated 16th January 1989, and proceedings were commenced against East Joint, by the Legal Aid Department, in the District Court, pursuant to that certificate, on 20th March 1989. On 2nd May 1989, which was the day before the Plaintiff's claim against East Joint was due to be heard in the District Court, the solicitor acting for East Joint settled it by paying the Plaintiff the full amount of Employees' Compensation specified in the written agreement of 19th July 1988.

24. Meanwhile, on 6th April 1989, the Plaintiff was granted a Legal Aid Certificate to sue East Joint and Kalin for common law damages arising from the accident. On behalf of the Plaintiff, the Director of Legal Aid duly issued a writ for common law damages against East Joint and Kalin on 2nd November 1989, which was well within the primary three year limitation period of an accident occurring on 15th April 1987.

25. 15th April 1990, the third anniversary of the date of the accident, duly came and went, without any writ issuing against the Third Defendant by the Plaintiff.

26. Assuming that everything the Third Defendant told the court was true, and that the Plaintiff well know on the day of the accident that the Third Defendant was, and always had been, his employer since they had first started working together in or about 1982, I would still regard it as just to disapply the time bar in the Plaintiff's favour, since the Third Defendant's conduct in getting the Plaintiff to agree to his proposal that East Joint should be put forward as the employer arose, in a practical sense, solely by reason of the Third Defendant's failure to fulfil his statutory duties as an employer in respect of compulsory insurance for his employees.

27. The Third Defendant would have the court accept that the Plaintiff, in effect, bargained away his rights against the Third Defendant by agreeing to have East Joint substituted as employer. Any agreement or arrangement between the Third Defendant and the Plaintiff along the lines explained by the Third Defendant in his evidence is one to which no court, as a matter of principle, would attach any weight. In the situation described by the Third Defendant, the Plaintiff, as an employee, was not left with any valid choice. If the Plaintiff had declined to go along with the Third Defendant's proposal to make out that East Joint was the employer, the Plaintiff would be left with the uninviting prospect of trying to get his Employees' Compensation from the Third Defendant, an employer whose conduct must have invalidated his Employees' Compensation insurance cover.

28. Moreover, even though the Third Defendant was obviously only in a small way of business at the time of the accident, there was still an element of inequality of bargaining power between the Plaintiff and the Third Defendant, particularly on the Third Defendant's version of their relationship. The Third Defendant was a regular source of work to the Plaintiff, so, someone whom it would, presumably, have been better for the Plaintiff not to offend by insisting on a course which would expose the Third Defendant as an employer in criminal breach of the compulsory insurance provisions of the Employees' Compensation Ordinance.

29. Had the Third Defendant, even on his best case, not initiated the scheme which substituted East Joint as the employer in Form 2, it is almost inconceivable that the Plaintiff, as a workman in Hong Kong to whom the services of the Labour Department and the Legal Aid Department were available, would have missed the primary three year deadline of 14th April 1990 for issuing a writ against the Third Defendant.

30. The Plaintiff is obviously not the sort of man who, knowingly, lets his rights go by default. He was sufficiently enterprising to get a written agreement for Employees' Compensation from East Joint on 19th July 1988, and followed that up by setting in motion an application for Legal Aid which resulted in his getting a Legal Aid Certificate on 16th January 1989 to sue East Joint for its default under the agreement.

31. Were it not for the Third Defendant's course of conduct which resulted in Form 2 going forward with the employer wrongly identified, I have no doubt that the Third Defendant would have been joined in by the Legal Aid Department as a party in the Plaintiff's common law action at the same time as East Joint and Kalin.

32. I will now consider credibility.

33. The Third Defendant's credibility suffered a blow from the very fact that he would employ four carpenters when he only had compulsory insurance for two of them. That is the conduct of a less than scrupulous employer. Moreover, his attempt by his evidence to try to give the impression that there was nothing untoward in the Plaintiff being put by the Third Defendant in the position where he had to claim against East Joint for his Employees' Compensation on the basis of being some sort of indirect employee of theirs, rather than against the Third Defendant, his actual employer, struck me as disingenuous.

34. On the other hand, I came, also, to the conclusion that the Plaintiff was, at times, a less than reliable witness. I found it difficult to accept his evidence that, even before the accident, the Third Defendant had told the Plaintiff that he was only a "snake-head" for East Joint on the Max Mara job. There was no reason for the Third Defendant to misrepresent his position to the Plaintiff before the accident. I have considerable doubt, too, whether the Third Defendant explicitly told the Plaintiff even after the accident that he was a "snake-head". Para.5 of the Plaintiff's affirmation, (Bundle, p.155), seeks to give the impression that, after admission to hospital, the Plaintiff, in an interview with someone from the Labour Department, said that the Third Defendant had told the Plaintiff he was only a "snake-head" on the Max Mara job, but then, under cross-examination, the Plaintiff contradicted that by admitting that no one from the Labour Department visited him in hospital, and it was far from clear whether he had been interviewed at all, at any stage, by anyone from the Labour Department.

35. However, on the question of the relationship in which the Plaintiff and the Third Defendant had stood to each other at various times when working together over a period of several years culminating in the Max Mara job in March/April 1987, I am satisfied that the Plaintiff told the truth. My reason for accepting that the Plaintiff told the truth on this is that his evidence was corroborated in essential particulars by one of the Third Defendant's own witnesses, Mr Yeung Sheung Wing, ("Mr Yeung").

36. Under cross-examination, Mr Yeung, who had worked as a carpenter with the Third Defendant from about 1984 up to 1987, admitted that, over that period, the Third Defendant did not invariably work as an employer of carpenters, but was sometimes a "snake-head", and, at other times, a mere employee, the same as Mr Yeung or the Plaintiff.

37. Unlike the Plaintiff, Mr Yeung is still a friend of the Third Defendant, and obviously well disposed towards him. When I came to weigh all the evidence at the end of the case, I was satisfied that what Mr Yeung told the court about the Third Defendant filling the differing roles of carpentry employer, "snake-head", and mere employee, from time to time, was true.

38. Not only did the Plaintiff's evidence enjoy the considerable benefit of support from the Third Defendant's witness, Mr Yeung, on the various roles the Third Defendant played on carpentry jobs, but, also, the Plaintiff could pray in aid inherent probability to support his contention that the Third Defendant worked in various capacities, rather than always as an employer. If it were true that the Plaintiff had only ever known the Third Defendant as an employer, it would have made no sense for the Plaintiff to refrain from imparting that information to the Legal Aid Department at the outset when he first consulted them. That would have been in late 1988.

39. On the other hand, if sometimes the Third Defendant was only a "snake-head", while at other times an employer, it is easy to understand how the Plaintiff could have been confused as to what was the Third Defendant's role on the Max Mara job. Based on external appearances, a carpenter working under the Third Defendant on the Max Mara job would have no means of telling whether the Third Defendant was a "snake-head" for East Joint or the employer, since, in either case, the Third Defendant's behaviour would have been the same - recruiting workers, buying materials, supervising the work, and distributing the daily wages.

40. The submissions for the Third Defendant sought to make much of the circumstance that, some time in 1984, the Third Defendant had completed a "Return of Employees Remuneration" form on the Plaintiff's behalf, stating that he had been the Plaintiff's employer for the fiscal year 1983/4, during which time he had paid the Plaintiff $36,000 as wages. Why the Plaintiff wanted that form was to satisfy the Joint Committee on Student Finance he came within their financial criteria for a grant to his son who had won a place at Hong Kong University. Of course, the content of that form, when viewed in isolation, does tend to corroborate the Third Defendant's contention that the Plaintiff was his permanent employee, but, when viewed against the totality of the evidence in the case, and taking account of inherent probability, is insufficient to tip the balance of the scales against the Plaintiff. At the time the Third Defendant gave the Plaintiff that certificate, they were, besides working together, friends. To give the Plaintiff that certificate cost the Third Defendant nothing, but conferred considerable financial advantage on the Plaintiff at the government's expense. People at the level in society of the Plaintiff and the Third Defendant are not necessarily inclined to regard diddling the government in such circumstances as reprehensible conduct, so long as they do not get caught. In an ideal world, people would not be like that, but, in the real world, they frequently are. For an example of how people do take risks and break the law for financial advantage, if they think they can get away with it, one need look no further than the present case where the Third Defendant insured only two employees for Employees' Compensation purposes while employing four, thus illegally saving on a higher premium payment. Far from operating like some form of estoppel to prevent the Plaintiff denying in the face of the return form that he was the Third Defendant's employee, at least for the fiscal year 1983/4, I think that, when weighed against the evidence in the case as a whole, that certificate deserves to be regarded somewhat askance, and in my view, it does not make it more likely than not that even for the fiscal year 1983/4, whenever they worked together, the Defendant was invariably the Plaintiff's employer, let alone in 1987.

41. On the balance of probabilities, I am satisfied that what in fact happened in the present case was that the Plaintiff did not know whether the Third Defendant was his employer or a "snake-head" for East Joint up to the time of the accident, but that, after the accident, the Plaintiff was misled by the words and conduct of the Third Defendant and East Joint into believing East Joint had been the Plaintiff's employer.

42. As I see the position, there would have been no reason for the Plaintiff to disbelieve the Third Defendant when the latter told him his claim for Employees' Compensation was against East Joint. That induced the Plaintiff to go on believing that East Joint was his employer up until at least the 7th August 1990 when specific discovery in the action against East Joint and Kalin made the Legal Aid Department aware, for the first time, that the Third Defendant had been the Plaintiff's employer at the time of the accident, this being knowledge which the Legal Aid Department imparted to the Plaintiff.

43. Already I have indicated that I did not find the Third Defendant to be worthy of belief. The other witness he called, Mr Lui Yu Lap, who had worked with the Third Defendant as a carpenter, did not make a favourable impression on me either. At the end of the day, I did not believe him that, at material times, the Third Defendant had always functioned as an employer, never as a "snake-head" or employee.

44. On the facts, I find that, for the purposes of s.27 of the Limitation Ordinance, the Plaintiff did not acquire the knowledge that the identity of his employer at the time of the accident was the Third Defendant until after he was told by the Legal Aid Department what they had ascertained on 7th August 1990 by specific discovery from East Joint about the Third Defendant having been East Joint's sub-contractor at the material time.

45. I do not think the Plaintiff might reasonably have been expected to acquire such knowledge any earlier on the basis of what he himself had observed or ascertained. Nor could he reasonably have been expected to ascertain it any earlier with the help of the expert legal advice he sought from the Legal Aid Department.

46. At the best of times, it had been difficult, on the view I take, for the Plaintiff to know whether the Third Defendant was an employer or a snake-head whenever they worked together on a job, and, on the Max Mara project, the Third Defendant and East Joint conducted themselves in such a way after the accident in relation to the Plaintiff's Employees' Compensation claim that it was wholly reasonable for the Plaintiff and the Legal Aid Department to suppose that East Joint, not the Third Defendant, must be the Plaintiff's employer.

47. If I am wrong over my conclusion as to when the Plaintiff first got to know that the Third Defendant had been his employer at the time of the accident, I then have to go on to consider whether, by virtue of s.30 of the Limitation Ordinance, it would be equitable to disapply the time-limit, having regard to the prejudice which may be occasioned to the Plaintiff if the time-limit is applied and to the Third Defendant if it is not applied. The court, therefore, has to do a balancing exercise of the relative prejudice to the Plaintiff and the Third Defendant in relation to whether the time-limit should be overridden.

48. Under s.30(3) of the Limitation Ordinance, the court has to consider all the circumstances of the case, and, in particular, the six factors set out in that sub-section. How the court has to carry out this balancing exercise, considering all the circumstances of the case, and in particular the six factors referred to in s.30(3), is made clear by Halford v. Brookes [1991] 1 W.L.R.428.

49. As far as the onus of proof goes, it is clear that it rests with the Plaintiff to show that, in the particular circumstances of the present case, it would be equitable to disapply the time limit. Having said that, it still has to be borne in mind, that the court's discretion under s.30 is wholly unfettered : Thompson v. Brown Construction [1981] 2 All E.R.296.

50. Needless to say, the very fact of losing the benefit of a limitation defence does in itself occasion some prejudice to any defendant who would otherwise enjoy such protection, and that type of general prejudice is a relevant factor for the court to take into account in a defendant's favour when the court performs its weighing exercise : see Thomson v. Brown Construction (Ebbw Vale) Lid ante; and Nash v. Eli Lilly & Co [1993] 1 W.L.R. 783.

51. For the Third Defendant, it was argued that the Plaintiff would, in practice, suffer no disadvantage from not being allowed to proceed against the Third Defendant, since the Plaintiff would be able to make full recovery from East Joint, the Main Contractor which he could hold liable for breaches of the Construction Sites (Safety) Regulations, and/or Kalin, the electrical sub- contractor, against whom the Plaintiff must have a prima facie case for an accident caused by touching a bare electric wire. It was further urged on behalf of the Third Defendant that he had no control over the acts or omissions of East Joint and Kalin, the real culprits in his eyes, so that, in effect, it was fairer for the Plaintiff to confine his claim to them, rather than joining in the Third Defendant out of time in relation to breach of safety measures which were really the responsibility of East Joint and/or Kalin.

52. At this point in the litigation, the Third Defendant, as the Plaintiff's employer, can, prima facie, by virtue of his obligation to provide a safe system of work, be regarded as one of the parties primarily liable for the Plaintiff's injuries. Likewise, East Joint has primary liability, at the prima facie level, on the basis of being in occupation of the site as Main Contractor, and so does Kalin, as the sub-contractor for the electrical work. Not being allowed to proceed against the Third Defendant could work to the Plaintiff's prejudice since, on liability, it is conceivable he might not succeed against East Joint and Kalin (in particular against East Joint which has already disputed liability on the basis the Plaintiff was employed by the Third Defendant as independent contractor), and probably his best chance of success on liability is against the Third Defendant because of the wide duty of care on the part of an employer to provide a safe system of work. On the belt-and-braces principle, it is reasonable for the Plaintiff to require each of them to be joined in, since the more Defendants against whom he can get judgment, the better his chances of his getting his money. The court has no means of knowing at this stage which of the Defendants and/or their insurers will be good for any damages the Plaintiff recovers.

53. How East Joint, Kalin and the Third Defendant would be likely to fare against each other by way of contribution or indemnity would be extremely difficult to determine at this stage, and is not, in my view, a factor which needs taking into account for the purposes of deciding whether the time-bar in the Third Defendant's favour should be overridden.

54. Sometimes a factor tending towards the court's not overriding the time-bar is that a Plaintiff need not suffer, even though he is not allowed to join in a tortfeasor directly responsible for his accident, because of the circumstance he has an equally good case against his solicitor who has negligently brought about the situation that the action has become statute-barred. I do not think such a situation has arisen in the present case, since I do not regard the Legal Aid Department as being at fault for not ascertaining earlier than August 1990, through specific discovery, that the Third Defendant was the Plaintiff's employer. The delay between then and issuing a writ against the Third Defendant in early January 1991 was sufficiently explained, and, in any event, has not caused the Third Defendant any prejudice, as far as I can see.

55. An argument put forward on the Third Defendant's behalf that the action should not be allowed to proceed against him because he would not be able to recover from his insurer, who would almost certainly repudiate liability under the policy, cut no ice whatsoever with me. The Third Defendant is the author of his own misfortunes in relation to his problem over his entitlement to indemnity against his insurer, and the court should not be seen to encourage such behaviour by treating it as a circumstance in the Third Defendant's favour when it comes to determining the balance of prejudice under s.30.

56. A point made for the Third Defendant that he would be prejudiced in relation to recovering costs even if he were to win against the Plaintiff, bearing in mind that the Plaintiff is legally aided, was, I think based on a wrongful premise, my understanding being that, assuming the court made an order for costs in his favour, he could recover them from the Director of Legal Aid.

57. I will now look at each of the particular factors to which the court is to have regard under s.30(3).

(a) Length and Reasons for the Delay

58. As indicated by Donovan v. Gwentoys Ltd [1990] 1 WLR 472, the period of delay to which the court must have regard is that starting from the date of the accident, namely 15th April 1987 and finishing with the filing of the writ against the Third Defendant on 7th January 1991, so that, in effect the delay was of the order of 3 years and 9 months.

59. The reason for that delay, as I have already made clear, lies in the misleading content of Form 2 which Third Defendant caused to be filed, throwing the Plaintiff and the Legal Aid Department off the Third Defendant's scent as the Plaintiff's true employer.

60. The length of the delay is of no consequence in my view since the circumstances of the accident are so straightforward. They have been known to the Third Defendant from the outset since he was present in the building when the accident befell his employee, and he knows as much as anyone about the circumstances of the accident. It is not as if the Third Defendant was suddenly confronted with a stale claim when the writ was served on him. He did not need to carry out any investigation years after the accident, because, as he put it himself, there was nothing to investigate, the circumstances of the accident being so simple.

61. Moreover, it is clear that the Third Defendant has followed the progress of the legal action instituted by the Plaintiff, having, for example, learnt from East Joint in 1989 there would be no more subcontracts for his firm until the action brought by the Plaintiff against East Joint was disposed of. As the Third Defendant knew all along that he was the Third Defendant's employer, he must have realized it was on the cards that he, too, might, at some stage, be made a party to the suit. Such knowledge must have helped concentrate his mind about the accident, and caused him to ponder his own position if sued.

(b) Cogency of Evidence

62. In my view the effect of delay on the cogency of the evidence in this case is likely to be nil. There is no suggestion that the memory of any witness will have diminished. Nor are there any lost witnesses or documents.

(c) Conduct of the Defendant after Cause of Action Arose

63. The conduct of the Third Defendant, acting in collusion with East Joint, was the effective cause of the delay, for reasons I have already explained.

(d) Duration of Disability of Plaintiff

64. This does not a rise.

(e) Extent to which Plaintiff Acted Reasonably and Promptly

65. On the view I have taken of the facts, the Plaintiff did not know, and could not reasonably have been expected to know that, at the time of the accident, the Third Defendant was his employer until that state of affairs was brought to light by specific discovery in August 1990 of the sub-contract between East Joint and the Third Defendant. At all stages, in my view, the Plaintiff and the Director of Legal Aid when acting for him, acted with reasonable promptitude on the basis of the information available to them.

66. I reject the notion advanced on behalf of the Third Defendant that the Plaintiff elected to abandon his claim against the Third Defendant. Election only comes into play where there is knowledge : the Third Defendant by acting in the way he did over Form 2 wrongfully deflected the Plaintiff, and the Legal Aid Department acting for him, from ascertaining the truth about who had been employing him.

(f) Steps by the Plaintiff to Obtain Medical. Legal or other Expert Advice

67. The Plaintiff acted reasonably over this, seeking the assistance of the Legal Aid Department within a reasonable time after encountering difficulty over collection of Employees' Compensation from East Joint whom he believed to be his employer.

68. The balance of prejudice clearly lies in the Plaintiff's favour, in my view. The Third Defendant has made a bare assertion of how he will be prejudiced if the time-bar is lifted, but has not particularised how. By contrast, the Plaintiff has shown how he might be prejudiced if prevented from suing his employer who owes him a wide duty of care, and who could be a useful additional party against whom to enforce a judgment for damages.

69. On the basis of the balance of prejudice, and bearing in mind the conduct of the parties and all the circumstance, I rule that the time-bar should be disapplied in the Plaintiff's favour against the Third Defendant.

70. Thus, either on the basis under s.27 of the Limitation Ordinance of when the Plaintiff acquired knowledge or ought reasonably have acquired knowledge that the Third Defendant was his employer at the time of the accident, or on the alternative basis of the balance of prejudice under s.30 of the same Ordinance, I rule in the Plaintiff's favour that his action against the Third Defendant is not time-barred.

71. This judgment is delivered pursuant to O.42, r.5B. I make an Order Nisi that costs are to follow the event.

Representation:

Mr Michael Ozorio, assigned by D.L.A., for the Plaintiff

Mr Rimsky Yuen, inst'd by M/s Lau, Wong & Chan, for the Defendant in H.C.A. 126/91