Tam Kam Fai v. Michael J Design Ltd and Others
Read the full judgment text of HCPI 347/2005 on BabelCite. This High Court CFI judgment was delivered on 27 September 2006.
1. By my Judgment handed down on 31 July 2006, I:-
Cited by 5 cases
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HCPI 347/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 347 OF 2005 ____________ BETWEEN
____________ Before: Mr Recorder Kwok, SC in Chambers Dates of Hearing: 27 September 2006 Date of Decision: 27 September 2006 Date of Reasons for Decision: 28 September 2006 _______________________ REASONS FOR DECISION _______________________ 1.By my Judgment handed down on 31 July 2006, I:-
2.By paragraph 57, I made an order nisi under Order 42 rule 5B(6) of the Rules of the High Court, Cap. 4, that:-
3.On 10 August 2006, the plaintiff issued a summons to vary my costs order nisi as follows:-
4.After hearing counsel for the plaintiff, counsel for the 2nd defendant and counsel for the 3rd defendant, I made an order absolute in terms of paragraph 57 of my Judgment after deleting the words “on the scale and in the amount as if the proceedings had been brought in the District Court, with certificate for counsel”. I said reasons for my decision would be handed down. This I now do. 5.Neither the 2nd defendant nor the 3rd defendant opposed paragraph 1 of the plaintiff’s summons and I acceded to this part of the plaintiff’s application. 6.The 2nd defendant did not oppose the application for a Bullock Order but opposed the application for a Sanderson Order. The 3rd defendant opposed the application for a Bullock or Sanderson Order. 7.Counsel were agreed on the applicable principles but disagreed on their application to this case. The test is whether the plaintiff’s decision to sue the 2nd defendant was reasonable. 8.Mr Lawrence Yip, counsel for the plaintiff in this application, submitted that the contractual relationships between the parties were not in dispute. The plaintiff was an employee of the 3rd defendant who was the 2nd defendant’s sub-contractor. He told me that 3 letters before action all dated 13 October 2003 had been posted to all 3 defendants but no reply was received from any of them. He said the 2nd and 3rd defendants had blamed each other and that the 3rd defendant filed a notice of contribution and indemnity against the 2nd defendant on 16 August 2005. 9.The plaintiff sued the 2nd defendant under the Occupiers Liability Ordinance, Cap. 314, and in negligence. 10.The effect of paragraph 26 of my judgment is that the Statement of Claim disclosed no reasonable cause of action against the 2nd defendant under the Occupiers Liability Ordinance. In my judgment, it was not reasonable for the plaintiff to have sued the 2nd defendant under the Ordinance. 11.I turn now to negligence. The plaintiff must have reasonable grounds for asserting a duty of care against the 2nd defendant before their joinder of the 2nd defendant as a defendant could be said to be reasonable. There was no claim by the plaintiff against the 2nd defendant on the ground that the 2nd defendant used an incompetent sub-contractor, the 3rd defendant. There was no assertion in the Statement of Claim that the 3rd defendant was an incompetent sub-contractor or not an ostensibly competent sub-contractor. Ostensible competence of the 3rd defendant was not in issue at the trial. The effect of paragraph 28 of my judgment is that there is no legal basis to support the plaintiff’s claim in negligence against the 2nd defendant. In my judgment, it was not reasonable for the plaintiff to have sued the 2nd defendant in negligence. 12.According to the plaintiff, none of the defendants responded to the plaintiff’s letter before action. Thus, it cannot be said that it was the 3rd defendant who was responsible for the 2nd defendant being brought before the court. 13.The issue of a contribution notice by the 3rd defendant after the commencement of this action against all 3 defendants could not have been a factor in the plaintiff’s decision to sue the 2nd defendant as a defendant. Mr Yip contended that the contribution notice retrospectively supported the plaintiff’s decision. A subsequent event cannot “support” an unreasonable decision and turn it into a reasonable one. I should add that I have also considered, although it was not argued by Mr Yip, whether the contribution notice supported the plaintiff’s decision to continue to prosecute his claim against the 2nd defendant. The contribution notice does not give any particulars of negligence or breach of common duty of care or breach of statutory duty on the part of the 2nd defendant. I was persuaded that the contribution notice was a prudent step for the 3rd defendant to take, given the plaintiff’s claim against all 3 defendants. I was not persuaded that it helped the plaintiff and made it reasonable for the plaintiff to continue his claim against the 2nd defendant. 14.For the reasons which I am given, I declined to exercise my discretion to make a Bullock or Sanderson Order.
Mr Lawrence Yip, instructed by Messrs Lee, Mok & Wong, for the Plaintiff The 1st Defendant, in person (absent) Mr Anthony Houghton, instructed by Messrs Wong Yuen Chi & Co., for the 2nd Defendant Mr Daniel K K Chan, instructed by Messrs Cheng, Yeung & Co., for the 3rd Defendant |
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