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Lo Pui Fan And Another v Hongkong United Dockyards Ltd

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date29 July 2013
Year2013
Judgement NumberHCPI171/2011
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI171/2011 LO PUI FAN AND ANOTHER v. HONGKONG UNITED DOCKYARDS LTD

HCPI 171/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 171 OF 2011

____________

BETWEEN
LO PUI FAN and MAK WAI LING, Plaintiffs
the Administratrices of the estate of
HUNG TAK MING RAYMOND, deceased

and
HONGKONG UNITED DOCKYARDS LIMITED Defendant

and
KEPPEL FELS LIMITED Third Party
____________
Before: Hon L Chan J in Chambers
Date of Hearing: 30 April 2013
Date of Decision: 29 July 2013

_____________

D E C I S I O N

_____________

1. This is an application by the third party to stay the 3rd party proceedings for arbitration.

Background

2. The plaintiffs are the administratrices of the estate of Hung Tak Ming Raymond, deceased. Mr Hung was a grit-blasting and painting worker employed by the defendant. He was on duty on 13 March 2008. He was fatally injured when fell from an elevated dock arm which suddenly detached from the floating dock on which it was installed.

3. The plaintiffs by their statement of claim filed on 5 December 2011 sued the defendant for damages under the Law AmendmentAnd Reform (Consolidation) Ordinance, Cap. 23 and the Fatal Accidents Ordinance, Cap. 22. The grounds of claim are negligence, breach of statutory duties in relation to the provision of a safe working place and working system, breach of occupier’s common duty of care and breach of implied terms of the employment contract or any one or more of them.

4. The defendant filed a defence on 9 January 2012 and denied liability. It also issued a third party notice on the same day which was amended on 11 January 2012.

5. The third party designed and built the floating dock for the defendant pursuant to a contract dated 15 July 1993. The defendant alleged in the third party notice that the floating dock was built by the third party according to a defective design and with inferior materials.

6. The defendant therefore claimed in the third party notice a full indemnity against the plaintiff’s claim. Alternatively, it seeks contribution to the plaintiff’s claim by the third party under the Civil Liability (Contribution) Ordinance, Cap. 377 and/or the common law and also to the employees’ compensation that the defendant had paid the plaintiffs under the said Ordinance and/or the Employees’ Compensation Ordinance, Cap. 282.

Nature of the defendant’s claims against the third party

7. Mr Kwok, counsel for the defendant made it plain that the defendant is not seeking any contractual remedy from the third party but is relying on the two ordinances. He also submitted that the defendant’s claim for indemnity is not a contractual claim but is overlapping with the claims under the two ordinances. These claims are based on the third party’s alleged negligence and breach of duty of care owed to the defendant.

The third party’s submissions for stay

8. The defendant issued a summons on 12 September 2012 for directions for the third party proceedings. The third party, however, issued a summons on 14 September 2012 for an order to stay the third party proceedings for arbitration in London in accordance with clause 14 of the contract between the defendant and the third party dated 15 July 1993.

9. Clause 14 of the contract provided:

CLAUSE 14 - ARBITRATION”

14.1 Any dispute arising under or by virtue of this Contract or any differences of opinion between the parties hereto concerning their rights and obligations under this Contract shall be resolved by arbitration. Such arbitration proceedings shall take place in London unless the parties hereto agree otherwise. All arbitration proceedings shall be conducted and governed in accordance with English Law. Either party may demand arbitration of any such dispute or difference of opinion by giving written notice to the other party.

14.2 … The Arbitration shall be before a single arbitrator who shall, in default of agreement, be appointed by the Institute of Maritime Arbitrators. The provisions of the Laws of England shall apply to any such arbitration, …

…

14.4 The award of the Arbitrator as to any question so submitted shall be final, binding and conclusive upon the parties hereto and their respective successors and assigns, and each agrees to abide by such decision.

…

14.6 Judgment on award by the Arbitration Board may be entered in any court of competent jurisdiction.

14.7 Each party submits to the non exclusive jurisdiction of the English courts and agrees that all notices whether required in an arbitration or otherwise shall be deemed duly served if sent to the address of the relevant party in Clause 18 hereof.”

10. Mr Hughes, counsel for the third party, submitted that clause 14.1 of the contract is an all-encompassing and valid arbitration agreement. It provides that any dispute arising under or by virtue of the contract or any differences of opinion between the parties concerning their rights and obligations under the contract shall be resolved by arbitration. He submitted that there is no doubt that the issue in the amended third party notice falls squarely under the arbitration agreement which covers every eventuality. The law does not require the arbitration agreement to specify each and every dispute that it covers. The wording is sufficiently broad to cover the statutory claims.

11. Mr Hughes relied on the English case of Wealands v CLC Contractors Ltd [1999] CLC 1821. The facts in that case are quite similar to those in this case. The plaintiff there sued the defendant for damages for the death of her husband who was employed by the defendant as a shot blaster. The husband suffered fatal injuries when the scaffold on which he was working collapsed. The plaintiff alleged that the scaffold was defective. The defendant denied it but pleaded in the alternative that it was built negligently by the sub-contractor.

12. The defendant issued third party notice against the sub-contractor seeking an indemnity or contribution on several grounds under the sub-contract including contractual indemnity clauses, breach of the sub-contract and breach of tortious duties. One of the claims was under the Civil Liability (Contribution) Act 1978 (“the Contribution Act”). Clause 18 of the sub-contract was an arbitration clause which provided:

“(1) If any dispute arises between the Contractor and the Sub-Contractor in connection with or arising out of this Sub-Contract or the carrying out of the Sub-Contract Works … it shall, … be referred to the arbitration and final decision of a person agreed between the parties, or failing such agreement, appointed … by the President … of the Institution of Civil Engineers and any such reference to arbitration may be conducted in accordance with the Institution of Civil Engineers’ Arbitration Procedure 1983 …”

The third party obtained an order from Tuckey J to stay the third party proceedings in favour of arbitration and the defendant appealed.

13. The defendant argued in the English Court of Appeal that the arbitration clause did not cover the defendant’s...

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