Cheung, Joseph Wai Leuk v. Chan Kwok Ping and Others

HCPI 264/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 264 OF 2012

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BETWEEN

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Before : Master Leong in Chambers (open to public)

Date of Hearing : 3 September 2014

Date of Handing Down Decision : 22 September 2014

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D E C I S I O N

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1.This is an application by the plaintiff to join the 4^th defendant.

I.  Background

2.The plaintiff has taken out a summons on 17 April 2014.

3.I have already dealt with the paragraphs 3 to 6 of the summons in a previous decision.

4.Paragraph 1 of the summons is an application for leave to amend the Writ and the Statement of Claim, and, as my previous decision and this current decision would affect how the Writ and the Statement of Claim should be amended, all parties agreed that this particular application should be adjourned.

5.This leaves paragraph 2 of the summons which I shall deal with now.

II.  Matters in dispute

6.The plaintiff is seeking to join Mr Ip Chun as the 4^th defendant under Order 15 rule 6 of Hong Kong Civil Procedure 2014.

7.Mr Ng, counsel for the intended 4^th defendant, objected along two lines of argument, one on time limitation and the other on the merit of the claim.

8.For argument on time limitation, Mr Ng raised that the alleged injury happened during a “Wing Chun” class on 5 April 2009 and: -

“As a general rule, after the expiry of any relevant period of limitation under the Limitation Ordinance (Cap. 347), no person will be allowed to be added or substituted as a party either as a plaintiff…or as defendant” (see para 15/6/3 of the Hong Kong Civil Procedure 2014)

9.However, the exceptions to the time limitation period applicable in personal injury cases under Section 27(4)(b) of the Limitation Ordinance (Cap 347) also apply as exceptions to this “general rule”.

10.Mr Burke, solicitor for the plaintiff, explained that although the alleged injury happened in 2009, the plaintiff has no knowledge of the identity of Mr Ip as the organizer of the “Wing Chun” class until recently.

11.On 24 December 2013 and 12 February 2014, Mr Burke has written to the Leisure and Cultural Services Department (which managed the premises) seeking the “booking data” and he received a copy of the booking form on 13 February 2014.  This appeared to show, amongst others, that Mr Ip was the applicant “in person” renting the premises.

12.The plaintiff’s case was that Mr Ip was therefore the “organiser” of the class and this knowledge only came about on 13 February 2014.  Under Sections 27(4)(b) and 27(6)(c) of the said Ordinance, time should only run from this date.

13.At this stage, it might be tempting, as Mr Ng did, to slip in a second argument based on the merit of the claim.  Mr Ng submitted that the plaintiff’s claim “wound bound to fail” against Mr Ip being vicariously liable or acting as the principal of the 1^st defendant (who allegedly committed the assault).

14.I appreciate that there may be gaps in evidence at present between being an applicant “in person” renting the premises, to being an organiser of the class, and further to being vicariously liable etc to the actions of one of the attending teachers.  However, the relevant “test” required as stated under Section 27(6)(c) only refers to “the date which the Plaintiff first has knowledge of…the identity of the defendant”.

15.There is no additional requirement that the court needs conduct a “mini-trial” by way of affidavit evidence in determining whether the plaintiff has sufficient knowledge or evidence to “prove his claim” against the intended defendant (or at least to show the court that his claim will not “bound to fail”) before this exception under Section 27 can apply.

16.Therefore, we should resist extrapolating this “test”.

17.Thus, the only objection that can reasonably be raised by Mr Ng, as far as I can see, is under Section 27(8): -

“…a person’s knowledge includes knowledge which he might reasonably have been expected to acquire –

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

18.The time that the plaintiff “might reasonably have been expected to acquire” the knowledge of the identity of the potential defendant is a finding of facts on a case by case manner.

19.Mr Ng argued that the plaintiff’s List of Documents has disclosed photographs showing Mr Ip in the contemporaneous advertisement posters for the “Wing Chun” class.  The poster appeared to read, as I translate: “Master Ip Chun personally teaches Wing Chun”.  As such, Mr Ng argued that the identity of Mr Ip should be apparent to the plaintiff even at the time of the alleged incident, and if the booking form was of such value to identify the organiser, then reasonable steps should have been taken much earlier to obtain these.

20.Mr Burke submitted that the plaintiff had been acting in person before mid 2013 and the booking form which he claimed identified Mr Ip as the organiser had not been disclosed in any of the defendants’ List of Documents or otherwise.  Further, just because Mr Ip was identified in the poster as a teacher of Wing Chun in the class did not mean that he was involved as the organiser of the class.

21.Having considered the above, I am of the view that although Mr Ip could have been identified as a teacher of Wing Chun in the contemporaneous posters, his connection with the organising of the class was only revealed with ongoing investigation.  I can understand that investigations into such an organization may be wide in scope and not straightforward and this can take time, with many investigations meeting dead-ends.  It may also be an on-going process depending what evidence is or is not revealed by other parties.

22.As such, I find that the knowledge of the identity of Mr Ip as being involved in the organising of the classes is not something that the plaintiffmight reasonably have been expected to acquire until 13 February 2014 so the time limitation period should not run until this date.

23.I will therefore give the following orders: -

(i) Order in terms of paragraph 2 of the summons.

(ii) There be an order nisi for costs of and occasioned by paragraph 2 of the summons be to the plaintiff to be summarily assessed if not agreed: -

(a) If no application is made to vary the costs order within 28 days of this order, the plaintiff shall submit and serve a summary statement of costs within 7 days thereafter; and

(b) The 4^th defendant shall submit and serve a summary list of objections within 7 days thereafter for summary assessment of costs.

Mr Burke, of Burke & Co, for the plaintiff

Mr Lawrence Ng, instructed by Rowdget W Young & Co, for the 1^st to 3^rd defendants and the intended 4^th defendant