Mohammad Mutloob v. Wise Security Ltd and Others
Read the full judgment text of HCPI 410/2005 on BabelCite. This High Court CFI judgment was delivered on 11 August 2006.
1. By this action the plaintiff, a former securities guard, is suing his employer in damages he having fallen and injured himself whilst on patrol at a construction site. The matter before me is his application to join as a 2 nd defendant the main contractor on the site, whom he wants to join as occupier of the site under the Occupiers Liability Ordinance (the OLO). Leave is necessary because more than three years has elapsed since the accident, and he is thus time-barred; see section 27 of th
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HCPI 410/2005
IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 410 OF 2005 ____________ BETWEEN
____________ Before: Deputy High Court Judge Gill in Court Date of Hearing: 31 July 2006 Date of Judgment: 11 August 2006 _______________ J U D G M E N T _______________ 1.By this action the plaintiff, a former securities guard, is suing his employer in damages he having fallen and injured himself whilst on patrol at a construction site. The matter before me is his application to join as a 2nd defendant the main contractor on the site, whom he wants to join as occupier of the site under the Occupiers Liability Ordinance (the OLO). Leave is necessary because more than three years has elapsed since the accident, and he is thus time-barred; see section 27 of the Limitation Ordinance (the LO). He also asks for consequential amendments to the pleadings. As is apparent from the heading, the intended defendant is already a third party in the action. 2.There are no witness statements yet filed. The following chronology emerges from the pleadings and correspondence exhibited to affidavits in support of and in opposition to these applications. Chronology 2002 19 February The plaintiff began work as a security guard for the defendant. early June The plaintiff was instructed by a superior to patrol the construction site in question, being a part of the Ma On Shan railway then under construction. It is claimed and not challenged that the name of the principal contractor was displayed prominently on signs at the entrances to the site. 19 June Whilst on patrol the plaintiff stumbled on uneven ground, fell and was hurt. 2003 14 October The plaintiff’s solicitors wrote to his employer giving notice of a pending claim. 2004 28 October - 30 December During this period there was correspondence between the solicitors of employer and employee during the course of which the employee’s solicitors were informed of the name of the principal contractor. It was urged upon them that the principal contractor should be joined in the pending action. 2005 27 April The plaintiff’s writ and statement of claim were filed against the employer alone, suing it as “occupier of the site, within the meaning of [the OLO] and under the implied terms of care in the contract of employment”. 8 June The defendant issued a third party notice against the principal contractor, seeking indemnity, which thus became the third party to the action. 30 July The defendant filed its defence. 2006 3 January The third party filed its defence. 22 February The statement of claim was amended, to remove reference to the defendant being the occupier under the OLO. In its place is the suit against the defendant as an independent contractor having a “measure of degree or control over the contraction site”. The claim for lack of care that was owed the plaintiff as his employer remained unchanged. 3 May The Registrar conducted a checklist review and gave directions for trial, with leave following compliance to set the action down for trial. 19 May This application was filed with a supporting affidavit sworn by the plaintiff’s solicitor, a Mr Pickavant, on 29 April 2006. In it he stated at paragraph 6:
and at 12:
The prospective changes to the pleadings include in the main a claim against the third party as occupier of the site under the OLO. 21 May and 23 June Solicitors representing the defendant and third party respectively filed affidavits in opposition. The correspondence of late 2004 was exhibited. It was pointed out that the application to join was 11 months out of time, and 16 days after the checklist review, at which Mr Pickavant in attendance made no mention of the proposed application. Yet by then he had already sworn his affidavit in support; that was dated the previous month. 3.What emerged from the documents was that there was no explanation or reason given as to why the third party had not been joined as a defendant prior to expiry of the limitation period. There was no lack of knowledge of the existence of a principal contractor pleaded or deposed to, or who it was. There was only an unexplained omission. The Contest 4.Before me Mr Parry represented the plaintiff and Mr Kerr for the third party responded in opposition. Miss Wong appeared for the defendant in a “watching brief” capacity. Statutory Provisions and Rules of Court 5.Mr Parry told me that he was relying on the terms of O. 15 r. 6 RHC and section 35 of the LO. He specifically was not relying on section 30 of the LO. 6.Pertinent provisions of O. 15 r. 6, headed Misjoinder and nonjoinder of parties, read as follows:
As is pointed out by the editors of the White Book at 15/6/1, this rule must be read closely with and be subject to the applicable provisions of section 35 of the LO, and the provisions of sub-paragraphs (5) and (6) deal with the power of the court to add a party, notwithstanding the expiry of the limitation period under the LO. 7.Thus, I now turn to section 35 of the LO. Section 35, headed New claims in pending actions: rules of court, states in part:
Discussion 8.Mr Parry submitted that following the paths that weave through O. 15 r. 6 and section 35 of the LO the court has the power to grant the application, and in exercise of its discretion should do so, to ensure that all matters in dispute in the action may be determined and adjudicated upon. 9.Mr Kerr responded that the plaintiff has failed to satisfy all the necessary criteria which would give the court the power to rule on the application; in particular, to override the hurdle presented by section 35(7)(b). He submitted that the plaintiff has not shown, and could not show, that he cannot maintain the claim presently made against the defendant unless the third party is joined as a co-defendant. This is because the prospective claim against the third party, were it to be joined, will be as occupier under the OLO, whilst the claim against the defendant as now amended is, inter alia, for breach of its duties owed as employer to its employee. That is of course a separate claim, which can still be maintained. 10.Mr Parry did not challenge that proposition or otherwise answer it; perhaps because there is no answer. 11.The joinder of the third party as a co-defendant being not necessary for the determination of the original action, I am satisfied I have no jurisdiction to join it, under section 35 of the LO. 12.So that is the end of the matter. 13.Mr Kerr went on to argue that were I to have found I had jurisdiction in the exercise of my discretion I should in any event decline the application. In fact he advanced that proposition on the basis that I consider the application in the light of section 30 of the LO, which section is headed Court’s power to override time limits. The section gives the court a discretion to do just that having regard to all the circumstances of the case and six named situations in particular. 14.But Mr Parry was at pains to state, and then to restate, that the plaintiff was not looking to rely on section 30 of the LO; so be it. 15.That is not to say I would not have had a discretion in applying section 35, had all the conditions set out in O. 15 r. 6 and section 35 of the LO been satisfied; see the White Book 15/6/1, page 216 at line 29. 16.Assuming for the moment that the plaintiff were to have surmounted all the hurdles, including sub-section (7)(b), to give me jurisdiction, I would have to consider how to exercise that discretion. There is nothing before me in the evidence to justify the granting of an indulgence to the plaintiff. The time frames set out in the LO are there to be complied with. There must be a good reason put forward as to why they may be overridden. And there is no reason put forward at all. It is not said why the claim was not advanced timeously against the third party. Its existence was by all accounts known at all material times. Its potential liability to the plaintiff could not have been overlooked; it is not suggested that it was overlooked. And to propose that its being joined as a defendant could not be prejudicial because it is already a party is not only beside the point it is simply not true, given the contingent and limited exposure to liability it faces as a third party. 17.In the circumstances, were it to have been within my power to exercise a discretion I would have been obliged to do so by declining the application. The Result 18.The application as it relates to joinder is dismissed. Consequentially the application to amend the pleadings is also dismissed. I do note however that one or two amendments sought were to tidy up the statement of claim. The plaintiff may wish to reapply to that end; hopefully by consent summons. 19.Costs are nisi; they follow the event. The third party’s and defendant’s costs are to be met by the plaintiff in any event. His own costs are taxed under Legal Aid Regulations.
Mr L Parry, instructed by Messrs John Pickavant & Co., for the Plaintiff Miss S Wong, of Messrs W H Chik & Co., for the Defendant (watching brief) Mr J Kerr, instructed by Messrs Winnie Leung & Co., for the Third Party |