Yarsar Hussain v. Leung Yung Shing and Others

DCEC 688/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 688 OF 2003

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IN THE MATTER OF AN APPLICATION BETWEEN

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Coram :  Her Honour Judge C.B. Chan in Court

Date of Hearing :  27^th September 2005

Date of Handing Down Judgment:  5^th January 2006

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J U D G M E N T

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1.Having disposed of DCEC310 of 2003, the only matter that remains to be dealt with in DCEC688 of 2003 is the issue of costs.   On the 9 April 2005, it was ordered by H.H. Judge M. Ng that the costs of this action would be argued immediately after the trial of DCEC 310 of 2003. 

2.In a letter dated 26 September 2005 written by the Applicant’s solicitors, they stated that DCEC688 of 2003 was issued against Leung Yung Shing as 1^st Respondent and Kwan Pui Kwan as 2^nd Respondent.  They are respectively the 3^rd and 4^th Respondents in DCEC310 of 2003 in respect of the same accident.

3.The reasons for doing so were:-

1.  The Applicant’s employer failed to file a Form 2 with the Labour Department in respect of the accident.   The Applicant stated that he had informed the Kwan Pui Kwan the 2^nd Respondent herein of the accident.  

2.  The Applicant had told his solicitors that his employer was Wui Shing Cargo Transportation Co. Limited (hereinafter referred to as “Wui Shing Incorp.”) as he had been recruited by the 2^nd Respondent to work for Wui Shing Incorp. in 2000 until end of November 2000 and when he again was recruited by the 2^nd Respondent to work at the same site in May 2001, he thought his employer was Wui Shing Incorp.   The Applicant had a letter dated 12^th August 2000 issued under the letterhead of Wui Shing Incorp. stamped by them and the letter also contained the name of Wui Shing System & Transportation Co., (hereinafter referred to as “Wui Shing Co.”) verifying employment of the Applicant by them.  This was the only evidence of the employer of the Applicant which was available at the time of issue of DCEC 310 2003.   Hence the Application for employee compensation was issued against Wui Shing Incorp. in DCEC310 of 2003. 

3.  On 20^th June 2003, the solicitors of Wui Shing Incorp., Messrs. Hastings wrote a letter to the Applicant’s solicitors stating that their client was not and is not the employer of the Applicant.   

4.  The Applicant’s solicitor then thought that the Applicant was employed by Wui Shing Co. and made a Business Registration search and found out that the 1^st and 2^nd Respondents were the partners of this company.   The Applicant also mentioned that it was Ah Pui who gave him instructions at work and the 2^nd Respondent was Kwan Pui Kwan.   

5.  With the limitation period expiring on the 25^th June 2003, the Applicant’s solicitors was of the view that they may not be able to join the 1^st and 2^nd Respondents herein in time before the expiry of the limitation period and decided to preserve the time limit by making a fresh Application for Employees Compensation against the 1^st and 2^nd Respondents on 25^th June 2003. 

4.The Applicant’s solicitors in their letter dated 26^th September, which was submitted to the Court, stated that if the Employer of the Applicant had filed Form 2, the Notice of Accident to the Labour Department, the Applicant would have known who the employer was and would not have been put in the position of having to issue a fresh action against the 1^st and 2^nd Respondents.

5.Upon knowledge being obtained that Seawell Transportation Development (HK) Limited was the principal contractor on the site, this company was added as 2^nd Respondent in DCEC310 of 2003 and as 3^rd Respondent in DCEC 688 of 2003.  

6.At the hearing in relation to costs of this Action, the Applicant’s Counsel submitted that Wui Shing Incorp. had misled the Applicant and stated that it had not ever been the employer of the Applicant in the letter of their solicitors to the Applicant’s solicitors dated 20 June 2003.   This caused the Applicant’s solicitors to think that the employer must be the firm namely Wui Shing Co. and to issue this action against the 1^st and 2^nd Respondents for the reasons stated by the Applicant’s solicitors in his letter referred to aforesaid.   Further the 1^st and 2^nd Respondents had withheld the vital information as to the name of the principal contractor on the site, which was the 3^rd Respondent.   They well knew this but did not disclose it.   The solicitors of Wui Shing Incorp. had again conveyed misleading information in saying that their client had ceased business as from the end of November 2003 in their letter to the Applicant’s solicitors dated 16 March 2004.   The 1^st and 2^nd Respondents who knew the facts had misled and withheld information from the Applicant.  

7.In this case, the Applicant’s solicitors found that there was uncertainty as regards who is liable.   As a prudent lawyer they joined all parties as the truth of a situation would only come out at the trial.    Further, because of the imminent expiry of the limitation period they thought it expedient to issue a fresh action against Leung Yung Shing and Kwan Pui Kwan as an application to join them as parties is likely to be heard after the expiry of the limitation period.  

8.Having considered aforesaid, I find that the action taken by the Applicant to issue a fresh Application against the 1^st and 2^nd Respondents in the circumstances aforesaid, is the action of a prudent lawyer and the major cause of this falls on the failure to fully disclose the facts on the part of the Respondents in this action.   I find that the 1^st and 2^nd Respondents herein should bear the costs of the Applicant of this Action against them from date of commencement of the Action.  As regards the costs of the 3^rd Respondent of this Action it came into this action on 18^th May 2004.  It was found by me in DCEC 310 of 2003 to be the employer of the Applicant.  It also was the employer of the 1^st and 2^nd Respondents herein.  It ought to have filed the Form 2 Notice of Accident.  The 3^rd Respondent herein should pay the costs of the Applicant’s Action against it from the 18^th May 2004.

9.I order that the 1^st, 2^nd and 3^rd Respondents of this Action do pay the Applicant’s costs of the Action against them respectively to be taxed if not agreed together with costs of the hearing related to costs on the 27^th September 2005 with Certificate for Counsel.  The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.  Each of the 1^st, 2^nd and 3^rd Respondents do pay their own costs.

Representation:

Mr. Ashok Sakhrani instructed by Messrs. Lo, Wong & Tsui assigned by D.L.A. for the Applicant.

Miss Annie Lai instructed by Messrs. Hastings & Co. for the 1^st and 2^nd Respondents.

Mr. Daniel K.K. Chan instructed by Messrs. Tsang, Chan & Wong for the 3^rd Respondent.