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Lau Yan Chor v Hang Lung (Administration) Ltd. And Weli Co. Ltd. (Third Party)

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date19 September 2000
Subject MatterPersonal Injuries Action
Judgement NumberHCPI355/1999
CourtHigh Court (Hong Kong)
HCPI000355/1999 XCHRX LAU YAN CHOR v. HANG LUNG (ADMINISTRATION) LTD. and WELI CO. LTD. (Third Party)

HCPI000355/1999

HCPI 355/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 355 OF 1999

________________

BETWEEN
LAU YAN CHOR Plaintiff
AND
HANG LUNG (ADMINISTRATION) LIMITED Defendant
and
WELI COMPANY LIMITED Third Party

________________

Coram: Hon Seagroatt J in Chambers

Date of Hearing: 8 September 2000

Date of Judgment: 19 September 2000

_______________

J U D G M E N T

_______________

1. This is an appeal by the Third Party (and 3rd Defendant) against the decision of Master Cannon on 16 June 2000 whereby the learned Master allowed the Plaintiff's application to join the Appellant as Third Defendant to his action. The Appellant is already Third Party in the action to the existing Defendants' Third Party Notice.

2. The Plaintiff suffered his accident in May 1996 when he was employed as a building attendant by the 1st Defendant at the Argyle Centre in Nathan Road, Mongkok. The 1st Defendant admits that it carries on the business of building management and that its subsidiary company, the 2nd Defendant was the manager of the Argyle Centre at the material time, hence the fact that 2nd Defendant appears in the action. There is no issue between them and the Plaintiffs' employment is admitted.

3. The Plaintiff as part of his duty had to go to the basement of the building where a kind of food hall or restaurant mall operated. It was about 6:30 in the morning. He had to switch off some lighting. The switch was positioned in a meter room near the food hall or mall and to gain access to it he had to pass through it. The food hall or mall was flooded to a depth of two or three inches. He used a trolley in order to keep his feet dry. Although I am not entirely clear in my mind from his Statement of Claim or written Statement precisely how this accident occurred, he alleges the trolley overturned on his way back from the meter room. He reported his accident to his night shift supervisor. He commenced proceedings against his employers in April 1999 just one month before the expiration of the limitation period. Although that is regrettably late in the day it does not affect this matter overall as will appear.

4. A Defence to his claim was served on the 8 July 1999. In paragraph 3 the Defendant (the employer) pleaded amongst other matters that the "food hall" was leased to Weli Company Limited, the Third Party, (and appellant) in this case. It also averred that it was no part of the Plaintiff's ambit of duty to use the food hall access point. This was, the Plaintiff contends, the first he knew of the Third Party as occupier of the basement, for the purposes of legal liability in respect of the matters which formed the basis of his claim.

5. Mr C Y Li, who appeared for the appellant, prepared a very useful chronology for the purpose of this hearing which highlights all the prompt steps taken by the parties which followed.

6. Faced with the reference in the Defence to Weli Company Limited, the Plaintiff sought, in mid-August, further and better particulars to enable the matter to be considered. Little was forthcoming in reply although the ownership of the food hall was disclosed. Since the address of the owner is the same as that of the 1st Defendant there is likely to be some link between them. Nonetheless the Plaintiff then promptly took out a summons for discovery against Weli Company Limited and obtained an order by consent within a month. In the same month (September) the Defendants applied to issue a Third Party Notice against Weli Company Limited. They were granted leave and Weli Company Limited duly came into the picture as Third Party.

7. In October 1999 the Plaintiff took the precaution of issuing a Writ against Chi Pan Company and Weli Company Limited.

8. In November 1999 the 1st Defendant served its Third Party Statement of Claim alleging breach of covenants in the lease and negligence on the part of Weli Company Limited. In December the Plaintiff took out his application to join Weli Company Limited as the Third Defendant.

9. Mr Li argues that the Plaintiff's claim against Weli is barred by the Limitation Ordinance, relying on section 27(4)(a). The Plaintiff relies on the alternative limb under section 27(4)(b) - the period of limitation runs from the date of the Plaintiff's knowledge, if such knowledge is later than the date on which the cause of action accrued.

10. Consideration must be given to sections 27(6) and 27(8) in order to assess the merits of Mr Li's argument. Under 27(6) the date of knowledge means the date on which the Plaintiff first had knowledge of a number of facts. They are, inter alia,:

a) that the injury was significant;

b) that it was attributable to the act or omission which is alleged to constitute negligence or...

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