Read the full judgment text of DCPI 2740/2009 on BabelCite. This District Court judgment was delivered on 31 March 2011 before Deputy District Judge R. Yu.
Civil procedure – limitation – personal injuries action – application for leave to join intended second defendant out of time – Limitation Ordinance s.27 and s.30 – whether plaintiff had actual knowledge of identity of intended second defendant – whether plaintiff had constructive notice of identity – whether court should disapply limitation period – test for actual knowledge is subjective – test for constructive knowledge is objective – sub-contractor cleaning worker injured when loading garbage into truck operated by separate contractor for FEH Department – plaintiff employed by defendant, contractor for Housing Department – whether plaintiff's identity of the truck operator was reasonably ascertainable – separate contractor teams did not interact – plaintiff's age and education level relevant – delay of 8 months from expiry of limitation period – balancing exercise under s.30 – prejudice to intended second defendant from unavailability of driver and insurer's declination of coverage not made out – driver left employment 10 months after accident and could not be located – insurer's declination relied on motor vehicle exclusion clause unrelated to delay – no police or labour department investigation conducted – court took overall view of merits without determining them – application to join intended second defendant as defendant granted – application for late filing of additional affirmation refused – costs orders made.
Legal issues: Whether the Plaintiff had actual knowledge of the identity of the Intended D2 within the limitation period · Whether the Plaintiff had constructive notice of the identity of the Intended D2 within the limitation period · Whether the court should disapply section 27 of the Limitation Ordinance pursuant to section 30
Outcome: Application granted; Intended D2 ordered to be joined as 2nd Defendant. Plaintiff's application for late filing of additional affirmation refused.
Cites 2 cases