Kwan Hin Choi Keu v. Tim Kee Transportation Ltd.

DCEC000843/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 843 OF 2000

Coram: H H Judge Carlson in Chambers

Date of Judgment: 13 February 2001

_________________

R U L I N G

_________________

1. The applicant in this matter is a lorry driver by occupation. On 23 May 1998, he was driving a lorry which was owned by Chan Kam Cheung Transportation. This is an application by him to bring an application for compensation, notwithstanding the expiry of the two year limitation period and it is important to look at some of the history of this matter.

2. It is now accepted by the applicant and asserted by the respondents, that at the material time the applicant was employed by Tim Kee Transportation Limited. The respondent and Chan Kam Cheung Transportation have common directors and shareholders and the person in overall charge of both companies is Mr Chan Kam-cheung. Both of these companies operate separate lorries and their lorries bear the respective names of the two companies.

3. Following the accident, the matter had to be reported to the police in the usual way. The police investigated the matter and in the course of their investigations, they required to see the insurance and the other registration documents relating to the vehicle that the applicant was driving, a vehicle, as I say, that was owned and operated by Chan Kam Cheung Transportation Limited.

4. What then happened is that the applicant, thinking erroneously as has now transpired, that he was employed by Chan Kam Cheung Transportation, applied for Legal Aid which he did in April 2000 in order to bring an application for employees' compensation against that company. He was granted Legal Aid to do so on 11 May 2000 and the application was then brought against the company on 19 May 2000.

5. There was then an answer filed in the usual way by Chan Kam Cheung Transportation as respondents and the point they took in their answer was that they were not the applicant's employers and that the applicant's employer was Tim Kee Transportation Limited, the respondent in these proceedings. As a result, the applicant had to change tack completely and he then brought these proceedings, which he did on 26 September 2000, that is to say some four months out of time. So, whilst clearly out of time, the delay is not an especially serious one.

6. In making this application, it is submitted by Mr Au on behalf of the applicant, that "reasonable excuse" exists and that I should therefore exercise my discretion in his favour and allow him to bring the application, notwithstanding the expiry of the two year limitation period.

7. What is said on behalf of the applicant is that the situation was plainly not clear to him. He is not in any sense a man of high education. He is a lorry driver. He understood that his "boss" was Mr Chan Kam-cheung. That is all that he was interested in. He did not appreciate the legal niceties as to precisely which limited company employed him. He thought that whenever he drove lorries operated by Chan Kam Cheung Transportation Limited, that they were his employers and whenever he drove lorries for Tim Kee Transportation Limited, he thought that he was employed by that particular company. There were no prominent office premises that made the matter clear.

8. Following the accident, when he asked for the insurance documents and the registration documents, the employer then produced documents belonging to Chan Kam Cheung Transportation Limited and that fact, he says, settled in his own mind that at the time when the accident occurred, he was employed by Chan Kam Cheung Transportation Limited and no one disabused him of that. So he therefore proceeded on that basis and initiated the first application, within the limitation period, against Chan Kam Cheung Transportation.

9. As against that, Ms Lai submits that had he or his solicitors cared to investigate the matter perhaps more diligently, they would have and should have appreciated that the employer was Tim Kee Transportation Limited and, in particular, Ms Lai draws to my attention the fact that the wage slips which were given to the applicant were wage slips made out in the name of Tim Kee Transportation Limited and that, at least, should have alerted him. As against that, it is said on behalf of the applicant that that matter was not absolutely clear to him.

10. The next point which Ms Lai takes is that had they been cautious enough to ask for the Form 2 from the Labour Department, they would have seen that the employer is given as Tim Kee Transportation Limited.

11. In reply to that, Mr Au says that the Legal Aid Department was not sent that Form until after the expiry of the limitation period, so it would have been too late, and I am now invited to take a broad, and I suppose Mr Au would say, a liberal approach to this. His client is not a man who is of great education. The position was rather fluid because there was clearly this common employer, Mr Chan Kam-cheung, who, rather unusually in this case, and I think this is a real point, the applicant drove lorries which were clearly marked differently and belonged to two companies under the common ownership of Mr Chan and I think there is force in that point. That may well have given the applicant a wholly erroneous impression as to who his actual employer was and whilst things went perfectly well and normally, he was prepared to accept that position - he drove lorries. Mr Chan, so far as he was concerned, owned those lorries, and he was paid a salary and that was all that concerned him.

12. The other matter is that the delay here is not particularly serious and Ms Lai also accepts that her clients have not suffered any real prejudice. They have always been aware that this claim was afoot and they have been able to react to it and, therefore, looked at in the round, it seems to me that the applicant in this case has made out a reasonable excuse for all the reasons that I have drawn attention to.

13. And so, I am going to give him leave to bring this application, notwithstanding the expiry of the limitation period and that is the order of the court.

Costs

14. In this situation, I take the view that the right order is that the applicant should pay the respondent's costs in any event. Mr Au has submitted that if I do not award costs to the applicant, the worst order so far as he is concerned should be one of no order as to costs, leaving both parties to bear their own costs, but I take the view that the respondents have quite reasonably opposed the application. At the end of the day, I have found in favour of the applicant. In the circumstances of my findings, it seems to me that the applicant should pay the respondent's costs, so that is the order. Respondent's costs in any event. Legal Aid taxation of the applicant's costs.

15. I am going to give directions now:

16. Respondent to file answer within 21 days and a list of earnings within 21 days.

- Application adjourned sine die with liberty to restore.

- Costs in the cause with Legal Aid taxation of applicant's costs.

- Leave to applicant to withdraw application No. 452/00.

- Costs to the respondents with Legal Aid taxation of the applicant's costs.

17. So, there are three orders. The first order is on the main summons, the second order is the directions and the third order relates to 452.

Representation:

Present: Mr T Au, of Messrs Robin Bridge & John Liu, assigned by the Legal Aid Department, for the Applicant

Miss P Lai, of Messrs Tong & Tsoi, for the Respondent