Case Detail

DCPI 1041/2018

[2022] HKDC 420

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1041 OF 2018

---------------------------

BETWEEN
	LUI CHO YIN	Plaintiff
	and
	雷健邦	1^st Defendant
	HONG KONG FACILITY SOLUTIONS	2^nd Defendant
	COMPANY LIMITED
	DAH FUNG HONG (HOLDINGS)	3^rd Defendant
	COMPANY LIMITED trading as
	DAH FUNG SERVICE

---------------------------

Before:

Deputy District Judge Liza Jane Cruden in Chambers

Date of Plaintiff’s written submission:	27 January & 17 February 2022
Date of 2^nd Defendant’s written submission:	2 March 2022
Date of Plaintiff’s written reply submission:	16 March 2022
Date of Decision:	19 May 2022

----------------------

DECISION

----------------------

Introduction

1. On 30 December 2021, I handed down a Decision (“Decision”) allowing the 2^nd defendant’s appeal from the Decision of Master Matthew Leung dated 19 March 2021.

2. At §§142-143 of the Decision, I ordered that the Master’s Decision be set aside, that the plaintiff’s statement of claim (“SoC”) as against the 2^nd defendant be struck out for it discloses no reasonable cause of action, that the plaintiff’s action against the 2^nd defendant be dismissed, and that the 2^nd defendant be awarded its costs.

3. On 27 January 2022, the plaintiff filed a summons seeking leave to appeal against the Decision (“Summons”). The Summons states:-

“2. The Grounds of intended appeal will be as follows:- The learned judge erred in applying Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 in her Decision, which is distinguishable on facts from those of the present Action”

4. On 11 February 2022, I directed that the plaintiff’s leave application be determined on paper without an oral hearing. I also gave directions for the parties to lodge and serve written submissions. The plaintiff lodged and served “full submissions” dated 16 February 2022 (“P’s Submissions”). The 2^nd defendant lodged submissions in opposition to the leave application dated 2 March 2022 (“D2’s Submissions”). It also prepared a paginated bundle (“D2B/page”). The plaintiff then lodged “Submissions In Reply of the Plaintiff” dated 14 March 2022 (“P’s Reply Submissions”). The hearing date of 15 June 2022 was vacated.

Leave to appeal legal principles

5. Section 63A of the District Court Ordinance (Cap 336) (the “DCO”) provides that:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—
(a) the appeal has a reasonable prospect of success; or
(b) there is some other reason in the interests of justice why the appeal should be heard.”

6. The plaintiff relies upon Wing Tat Haberdashery Company Limited v Elegance Development Industrial Co. Limited (unrep, HCMP 357/2011, 8 July 2011, Hon Hartmann and Fok JJA), where the Court of Appeal held that [§6]:-

“[…] A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’”

Overview of the plaintiff’s intended appeal

7. The plaintiff’s claim is for common law damages for personal injury suffered following an accident where he fell off a ladder while carrying out air-conditioner maintenance work as the 1^st defendant’s employee on 16 May 2015. It is the plaintiff’s case that the 3^rd defendant was the principal contractor, the 2^nd defendant was the subcontractor, and the 1^st defendant was the sub-sub-contractor of the relevant works.

8. The plaintiff’s pleaded case on liability against the 2^nd defendant is based on negligence alone. The 2^nd defendant denies that it owed any duty to the plaintiff, and sought to strike out his statement of claim and have the action against it dismissed both on the basis of (i) lack of a reasonable cause of action, and (ii) time bar. In respect of the former ground, the Decision identified that “[the] real issue is whether, on the pleaded facts, the plaintiff can establish any relevant duty of care owed directly by [D2] to [P].” (§26 of the Decision).

9. Central to the Decision were the holdings at §42 that:-

“…. nowhere in the SoC has the plaintiff identifiedthe facts upon which a duty on the part of the 2^nd defendant owed to the plaintiff can arise. What the plaintiff has pleaded against the 2^nd defendant is that: (i) the 1^st defendant was the 2^nd defendant’s sub-contractor; and (ii) the ladder the plaintiff fell from was provided by the 2^nd defendant. The authorities make it clear that neither (i) nor (ii), individually or combined, establishes a relevant duty of care on the part of the 2^nd defendant. Something more is required. The facts pleaded by the plaintiff fail to establish a relevant duty of care. Therefore I hold that the SoC discloses no reasonable cause of action against the 2^nd defendant.” (emphasis added)

10. “The authorities” refer, firstly, to the judgment of the CFA in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 which laid down authoritative guidance on when a duty of care is owed by a person to an employee of his independent contractor (§21 of the Decision). As cited at §21(4) of the Decision:-

“(4) A person will owe a duty of care to the employee of his independent contractor if: (1) he lends the independent contractor equipment; (2) as he knew or ought reasonably to have known would happen, the independent contractor uses that equipment to do the work by a method which is unsafe; and (3) the employee is injured as a result (§§2, 47)” (emphasis added)

11. The “other authorities” refer to the English and Hong Kong cases listed under §28 of the Decision[1]. These support the well-established principle that a principal contractor does not per se owe a duty to take care of his independent contractor’s employees. Something more is needed. In order for such a duty to arise, the principal contractor must be shown to possess knowledge of the relevant danger and/or defects.

12. P’s Submissions do not suggest that any of the foregoing principles are wrong as a matter of law. Specifically in response to both Luen Hing Fat and the other authorities, the plaintiff argues that I erred in the way I applied these cases, or that they are “irrelevant”, or that they are “distinguishable on the facts”.

13. The plaintiff further prays in aid two additional authorities[2], neither of which was cited before me, said to support his case that the 2^nd defendant owed a direct duty of care to him on the facts.

14. Finally, the plaintiff relies on the Master’s finding that “§1&5 of the [statement of claim] duly provided for the role of [D2] to the Work shows that [P’s] case against [D2] is a clear one concerning failure to provide proper equipment, training, manpower and supervision” in support of his argument that “this is not a plain and obvious case for striking out.”.

15. The 2^nd defendant submits that none of the plaintiff’s arguments have any merit. The plaintiff has failed to show that “there was an error in law, or misapprehension of material facts, or the judge had failed to take into account relevant matters, or had taken into account irrelevant matters, or the decision was plainly wrong”: Tan Shaun Zhi Ming v Euromoney Institutional Investor (Jersey) Ltd (unrep, CACV351/2018, 15.5.2019) [2019] HKCA 523per Yuen JA at §16, which is the applicable test when the plaintiff is seeking to appeal against an exercise of discretion by a judge in a striking out application. The 2^nd defendant submits the plaintiff’s leave application should accordingly be dismissed with costs.

Luen Hing Fat and “other authorities”

16. The Summons states the ground of appeal is that I erred in application of Luen Hing Fat on the facts, which is distinguishable. P’s Submissions refer to additional grounds. Under the first ground of intended appeal, the plaintiff contends:-

16.1.  Luen Hing Fat was distinguishable from the present case since the equipment provided by the principal contractor there was “not intrinsically dangerous or faulty”, whereas the ladder supplied by the 2^nd defendant to the plaintiff of the 1^st defendant was “clearly pleaded to be not safe and proper”;
16.2.  In Luen Hing Fat, the lending of “unsuitable” equipment was held (at §16) to impose a duty of care “by reason of having had a hand in the creation of the danger which flowed from the use of unsuitable equipment and then failing to take any steps to put a stop to or even warn against such use before it resulted in an accident”;
16.3.  The plaintiff further contends that in the SoC, the plaintiff has pleaded that (i) the ladder provided by the 2^nd defendant was “not safe and proper for the work”; (ii) the 2^nd defendant has failed to provide the relevant training, manpower, supervision and instruction.

17. In my view the plaintiff’s above contentions suffer from the fundamental flaw that the plaintiff has failed to plead the necessary facts that would give rise to a duty of care in the first place. What he has pleaded falls clearly short of what is required for a duty to arise. In particular:-

17.1.  It is wrong for the plaintiff to rely on the matters pleaded in §5 of the SoC to argue the existence of a duty of care owed by the 2^nd defendant to the plaintiff. What is pleaded at §5 are “particulars of negligence”. These relate to the question of breach, not the prior question of duty of care owed by the 2^nd defendant. In the absence of the existence of any duty of care owed by the 2^nd defendant to the plaintiff in the first place, there is simply no question of breach by the 2^nd defendant arising. It was held at §37 of the Decision, “[if] the plaintiff has not pleaded the relevant duty owed by [D2] to [P] a necessary averment is missing. Pleading breach would not save the pleading of negligence.” The plaintiff does not suggest that holding was wrong. The 2^nd defendant submits hence, any reliance by the plaintiff on the matters pleaded at §5 of the SoC fails in limine. The P’s Reply Submissions argue that one should not separate pleadings of duty and breach, as the provision of unsafe equipment is sufficient to establish a duty of care, “in other words the so-called pleadings of breach are in effect pleadings of duty-cum-breach.”. The plaintiff continues that the 2^nd defendant’s interpretation wrongly focuses on the form such as the title of “particulars of negligence”, instead of the substance of the pleaded case. I reject that argument. The issue was not determined on the basis of headings or the paragraph numbers in the SoC. Rather, the substance, reading the actual averments and words used to plead the case against the 2^nd defendant. The plaintiff must plead each of the elements of the cause of action relied upon. They are necessary averments.
17.2.  The P’s Reply Submissions state that “despite that the plaintiff did not expressly plead the Ladder was too short and unsteady for the Work” a reasonable reader can understand the pleading in §4 of the SoC as such. Further, that it is undisputed that the ladder that was not safe for the Work was provided by the 2^nd defendant. However, the SoC does not plead that “the ladder was not safe for the Work”. The plaintiff seeks to rely on the pleading at §5(f) of the SoC, “Failing to provide a safe and proper working platform for the plaintiff to carry out his work at height” because it “supports that the plaintiff was referring to the unsafeness of the Ladder”. The plaintiff argues that reading §4 and §5(f) of the SoC together means that the plaintiff’s case is that the ladder was an unsafe and improper working platform provided by the 2^nd defendant. I am not satisfied that §4 and §5(f) of the SoC can be read as a pleading that the 2^nd defendant owed the plaintiff a duty of care as required, on any basis. The plaintiff has not suggested that any part or parts of the SoC, whether read alone or together, plead any knowledge on the part of the 2^nd defendant that the working platform or ladder was improper or unsafe.
17.3.  Even if the plaintiff could rely on the §5 particulars of breach to find also a pleading that the 2^nd defendant owed a duty to the plaintiff :-
(a)  While it is pleaded, that the ladder was “provided by” the 2^nd defendant, nowhere does the rest of §4 or §5 allege that the specific ladder was “unsuitable”, “unsafe”, “improper”, or “dangerous”, let alone explain why that was so;
(b)  Similarly, while an allegation of breach by “[failing] to provide a safe and proper working platform” is pleaded at §5(f) of the SoC, it does not allege that the specific ladder was “unsuitable”, “unsafe”, “improper”, or “dangerous”. Alleging a failure to provide a safe and proper working platform is quite different from alleging the provision of something that is unsafe and improper, which averment is missing;
(c)  In any event, the plaintiff has ignored the essential element of the 2^nd defendant’s state of knowledge in order for a duty of care owed to the plaintiff to arise in the first place. Significantly, nothing is pleaded to the effect that the 2^nd defendant “knew or ought reasonably to have known” that the plaintiff would use the ladder “to do the work by a method which is unsafe” (see above on Luen Hing Fat). Absent such knowledge, the 2^nd defendant would not owe a duty to the plaintiff by having merely provided the ladder. Bokhary PJ in Luen Hing Fat held at §46:-
“46.Moreover the Factory Operator’s position is adversely affected by something besides its employee Mr Ip’s omission. It had taken a positive part, thus assuming a positive role, in the creation of the danger, doing so by lending the Factory Operator equipment which it knew or ought reasonably to have known would be used to do the work by an unsafe method. Such participation, too, goes to it being fair, just and reasonable to hold that the Factory Operator owed the Worker a duty of care. Indeed, such participation lies at the heart of the Worker’s case against the Factory Operator in negligence, and justifies the result reached by the majority in the Court of Appeal.” (emphasis added)
(d)  As to the plaintiff’s reliance on the alleged failure to provide the relevant training, manpower, supervision and instruction (at §5(c), §5(d) and §5(h) of the SoC, the Ps Submissions have no foundation as there is no pleaded basis to explain why, despite not having the said knowledge, the 2^nd defendant would even owe such duty to the plaintiff when the 2^nd defendant has subcontracted the work to an independent contractor, the 1^st defendant. At §3 of the SoC the plaintiff has pleaded the 1^st defendant employer’s duties, inter alia, to provide training, manpower, supervision and instruction implied under the contract of employment.

18. Dealing with the plaintiff’s points regarding the “other authorities”:-

18.1.  Those other authorities relied upon by the 2^nd defendant were cited in support of the general legal proposition that “something more is needed” in order to affix a principal contractor with a duty to take care of his independent contractor’s employees;
18.2.  Similar to Luen Hing Fat, the emphasis is on whether the principal contractor possessed the relevant knowledge;
18.3.  The plaintiff has not suggested that these principles are wrong as general propositions of law, nor has it been satisfactorily explained why these principles of law would be “irrelevant” or inapplicable to the present dispute;
18.4.  In these circumstances, it is beside the point, for the plaintiff to “distinguish” the facts of these authorities from the present case. These legal principles governing the existence of a duty of care owed by a person to the employee of his independent contractor are not “irrelevant” to the issue.

19. As noted at §29 of the Decision, the plaintiff has failed to plead, inter alia, that (i) the ladder was defective; or (ii) the 2^nd defendant provided the ladder knowing that it would be used in an unsafe way; or (iii) the 2^nd defendant knew that the 1^st defendant used a defective system of work; or (iv) the 2^nd defendant had any control over the 1^st defendant’s system of work. The 2^nd defendant submits that the finding that no duty of care arose from the pleaded facts was thus plainly correct. In my view the plaintiff has not shown why that may be wrong. Therefore I am not satisfied that the first ground of the proposed appeal has a reasonable prospect of success.

McGarvey and Toner

20. P’s Submissions second ground of intended appeal is based on McGarvey v Eve NCI Ltd and Toner v George Morrison Builders.

21. Apart from the fact that these cases were not cited previously and the plaintiff is not saying the judge was wrong in failing to consider them, the 2^nd defendant submits that (i) McGarvey in fact supports it’s position that the plaintiff’s claim ought to be struck out; and (ii)Toner has no relevance whatsoever to the present case.

22. In McGarvey the claimant was injured after falling from a ladder while doing work for his employer which was sub-contracted by the appellant (§2). He was assigned by his employer to report to the appellant’s foreman (§3), who provided him with the ladder and told him to use it to do the work (§4). The ladder turned out to be inappropriate and dangerous for being too long (§6).

23. The trial judge found the appellant negligent on the grounds that “a wholly inappropriate ladder was given to [the claimant], and he was told, in effect, to get on with it” (§8), and that the ladder was “too long. It could not be used for this purpose. It was something [the appellant’s foreman] should have known, and [the claimant] had, clearly, been left in his presence to take instructions from him, and he told him to use that ladder” (§12).

24. The English Court of Appeal in McGarvey agreed, holding that the appellant’s foreman assumed responsibility for the claimant’s safety when he instructed him to use the ladder that could not have been used safely at all for the work which he knew the claimant was to do alone (§15). Here there is no pleading that any employee of the 2^nd defendant instructed or had anything to do with the plaintiff.

25. However, based on the aforesaid, the plaintiff argues:-

25.1.  First, the plaintiff has pleaded, at §4 of the SoC, that immediately before the accident, he “had to stand on the top rung of the ladder” hence suggesting that “the ladder was obviously too short for the Work”;
25.2.  Second, the plaintiff relies on res ipsaloquitur, pleaded at §9 of the SoC;
25.3.  It follows that the ladder provided by the 2^nd defendant “was not a safe and proper working platform”, pleaded in §§4 and 5(f) of the SoC.

26. The 2^nd defendant submits that none of these arguments has any merit:-

26.1.  To begin with, it is plainly a quantum leap for the plaintiff to contend that the ladder “was obviously too short for the Work”, which is not pleaded, from the pleaded fact that he “had to stand on the top rung”;
26.2.  This is clear from what the plaintiff has admitted in his Witness Statement:-
(a)  “… the Ladder was the most suitable ladder I could find at the Place of Accident” [D2B/42-43/§22];
(b)  “Before I climbed the Ladder, I had checked whether the Ladder was intact and had made sure that the Ladder was placed flat on the ground and would not shake” [D2B/43/§23].
26.3.  Secondly, the plaintiff’s reliance on res ipsa loquitur is plainly bad. It is well-settled that the doctrine is an evidential rule going only to the questions of breach of duty and causation. It is not applicable to the prior question of duty of care, which is a question of law. This is supported by Yu Yu Kai v Chan Chi Keung (2009) 12 HKCFAR 705, which Ribeiro PJ explained at §§41-44, including:-
“43. Whether one uses the label “res ipsa loquitur” or one speaks (as Hobhouse LJ would have preferred) of establishing a prima facie case, one is concerned with a rule regarding the proper approach to the evidence. It is an approach whereby, in cases where the plaintiff is unable to say exactly how his injury was caused but, consonant with his duty of care, one may expect the defendant to know, one asks whether the evidence has raised a prima facie case against the defendant and if it has, whether the defendant has, at the end of the day, dispelled that prima facie case by providing a plausible explanation for the plaintiff’s injury which is consistent with the absence of negligence on his part.”
26.4.  Accordingly, there is simply no basis for the plaintiff to submit that the ladder provided by the 2^nd defendant was “unsafe”, “improper” or was an “unsuitable and unsafe tool (however it is used)”, when none of these has been pleaded by the plaintiff within the four corners of his SoC. I accept the 2^nd defendant’s submissions that McGarvey does not support the plaintiff’s case. It is consistent with Luen Hing Fat. There was an assumption of responsibility by the appellant’s foreman for the safety of the independent sub-contractor’s employee, the claimant.

27. In Toner, the question for the Scottish Court was whether the defendant had breached the specific statutory duty, under the Provision and Use of Work Equipment Regulations 1998, to provide safe work equipment when he had left a ladder in a place where it could be used by the claimant. That decision turned on the specific meaning of “control” under Regulation 4 of those Regulations, and is wholly unrelated with the duty of care under common law. Contrary to the plaintiff’s assertion that this is a “relevant” authority, it has no relevance at all.

28. The P’s Reply Submissions contends that “the main difference in the parties approach to the application of two lines of case law can be summarised in the question: whether it is the plaintiff’s pleaded case that the 2^nd defendant provided him with an unsafe and improper ladder”. If yes, McGarvey applies. If no, Luen Hing Fat applies, and the 2^nd defendant did not owe a duty of care to the plaintiff by reason of their principal-and-independent contractor relationship. The plaintiff continues that “One should be careful not to mix up the two lines of cases”. First, in my view there are not 2 separate lines of authority. In any event this court is bound by Luen Hing Fat. The Ps Reply Submissions contend that “Luen Hing Fat Coating(including knowledge of unsafe method of work) and the other authorities” cited in the Decision do not apply to this case as they are not concerned with provision of unsafe equipment by principal contractor to independent contractor. The plaintiff seeks to set up 2 different lines of authority. Whereas there is no conflict. In McGarvey the appellant’s foreman should have known the ladder was too long, the claimant had been left in his presence to take instructions from him and he told the claimant to use that ladder. The decision is consistent with the principles set out in Luen Hing Fat. Notwithstanding use of an independent contractor the position was adversely affected by something besides a pure omission to provide equipment. As in Luen Hing Fat, the appellant in McGarvey had taken a positive part, thus assuming a positive role, in the creation of the danger, doing so by lending the ladder which he knew or ought reasonably to have known was too long and instructing the claimant to use it. Such participation would go to it being fair, just and reasonable to hold the appellant owed the claimant a duty of care.

29. In my view the two additional authorities do not assist the plaintiff. I am not satisfied that the second ground of appeal based on the above matters has a reasonable prospect of success. They do not provide any bases for granting leave to appeal to the Court of Appeal.

Reliance on the Master’s Decision

30. Finally, the plaintiff refers to the Master’s decision at §52 for the “finding” that the 2^nd defendant’s role was pleaded at §1 and §5 of the SoC. As noted at §42 of the Decision, I had taken into account the plaintiff’s pleaded case that the 2^nd defendant was the sub-contractor, which sub-contracted the work to the 1^st defendant.

31. However, the mere fact that the 2^nd defendant had subcontracted the work to the 1^st defendant does not, ipso facto, create a duty of care owed by the 2^nd defendant to the plaintiff. This is clear from both Luen Hing Fat and the “other authorities” discussed above.

32. I do not accept P’s Submissions to the effect that the pleading of the 2^nd defendant’s role alone “shows that [P’s] case against [D2] is a clear one concerning failure to provide proper equipment, training, manpower and supervision.” This submission does not satisfy the test for granting the plaintiff’s leave to appeal application.

Order

33. For the above reasons I hold that the plaintiff has failed to show that his proposed appeal has any reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard as required by section 63A DCO.

34. Therefore, I order that the plaintiff’s Summons dated and filed on 27 January 2022 be dismissed with costs to the 2^nd defendant with a certificate for Counsel. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

( Liza Jane Cruden )
Deputy District Judge

Ms Josephine Tjia, instructed by V Hau & Chow, assigned by the Director of Legal Aid, for the plaintiff

The 1^st defendant acting in person, being absent

Mr Benny Lo and Mr Clark Yan, instructed by Vivian Chan Law Office, for the 2^nd defendant

The 3^rd defendant acting in person, being absent

[1] Ferguson v Welsh [1987] 1 WLR 1553; Willmott Dixon Construction Ltd v Robert West Consulting Ltd [2016] EWHC 3291 (TCC); Gauchan Som Prasad v Hin Wah Construction Co Ltd (unrep., DCPI 2398/2009, 26.7.2011); Rai Gehendra Raj v Yick Hing Construction Co Ltd (unrep., HCPI 48/2012,31.8.2017).

[2] McFarvey v Eve NCI Ltd [2002] EWCA Civ 374; Toner v George Morrison Builders 2011 RepLR 18.

DCPI 1041/2018

[2021] HKDC 299

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1041 OF 2018

____________

BETWEEN

	LUI CHO YIN	Plaintiff
and
	雷健邦	1st Defendant
	HONG KONG FACILITY SOLUTIONS COMPANY LIMITED	2nd Defendant
	DAH FUNG HONG (HOLDINGS) COMPANY LIMITED trading as DAH FUNG SERVICE	3rd Defendant

____________

Before: Master Matthew Leung in Chambers (Open to Public)

Date of Hearing: 3 March 2021

Date of Decision: 19 March 2021

____________

DECISION

____________

1. This is the 2^nd Defendant’s application by Summons dated 13 March 2020 (“the Summons”) for an order that the Plaintiff’s Statement of Claim against the 2^nd Defendant be struck out on the grounds that it disclosed no reasonable cause of action, scandalous, frivolous or vexatious, or it is an abuse of process of the Court.

2. The 2^nd Defendant’s main contention is that the Plaintiff’s claim against the 2^nd Defendant has been time-barred.

Background of the proceedings

3. The Plaintiff commenced the Action against the 1^st Defendant (then the only Defendant) on 15 May 2018. The Plaintiff joined the 2^nd and 3^rd Defendant as parties by amending the Writ of Summons on 15 April 2019 pursuant to Order 20 rule 1 of the Rules of the District Court.

4. As pleaded in the Statement of Claim, the Plaintiff was an air-conditioner maintenance worker under the employment of the 1^st Defendant. The 1^st Defendant was the sub-contractor of the 2^nd Defendant for the air-conditioner modus and air ducts work at the customer service centre of an insurance company in Wing On Centre (“the Work Place”). The 3^rd Defendant was the principal contractor of the air-condition system cleaning work.

5. On 16 May 2015, when the Plaintiff was asked to work in pair with 德叔to replace parts of an air-conditioner installed in the Work Place, he climbed onto a ladder (“the Ladder”) with a cutter intending to cut off the ventilation ducts. Suddenly the Ladder shook, and the Plaintiff first held onto a hanging box connecting to the ventilation ducts, and hung up in the air. Eventually the Plaintiff fell down and fainted (“the Accident”). He was sent to hospital for treatment and was diagnosed with left distal radius and traumatic closed fracture of left wrist.

6. In the Defence of the 2^nd Defendant filed on 26 August 2019, the 2^nd Defendant pleaded inter alia that:

a) So far as the 2^nd Defendant was aware, the Plaintiff was the nephew of the 1^st Defendant and would assist the 1^st Defendant on a casual basis to perform some odd jobs. The Plaintiff did not attend any work site of the 2^nd Defendant on a regular basis.
b) The 2^nd Defendant had no knowledge as to whether the Plaintiff was at the Work Place on 16 May 2015.
c) The 2^nd Defendant had never engaged or directed the 1^st Defendant to conduct any work at the Work Place on 16 May 2015.
d) The Plaintiff commenced the proceedings against the 2^nd Defendant outside the time allowed under Section 27 of the Limitation Ordinance.

7. In paragraph 8 of the Reply to the Defence, the Plaintiff pleaded that he had actual knowledge that the 1^st Defendant was the sub-contractor to the 2^nd Defendant on 11 February 2019, and hence, the limitation period of 3 years began to run from 11 February 2019 only.

The facts of the case

8. The Plaintiff began to work with the 1^st Defendant in around 2012. During his approximately 3 years of employment with the 1^st Defendant, the Plaintiff knew that the 1^st Defendant subcontracted various works from the 2^nd Defendant. If the works were subcontracted from the 2^nd Defendant, the 1^st Defendant would sometimes inform the Plaintiff of the same and would ask the Plaintiff to attend the 2^nd Defendant’s warehouse to collect equipment for use. The Plaintiff received work instructions from the 1^st Defendant direct and would not be involved in any negotiation with the 1^st Defendant’s contractors.

9. On the date of the Accident, the 1^st Defendant did not tell the Plaintiff from whom the sub-contract was made, nor did he ask the Plaintiff to collect any equipment from the 2^nd Defendant. The Plaintiff recognized that some of the workers of the 2^nd Defendant were working at the Work Place, and some of the equipment at the Work Place, including the Ladder, bore the logo of the 2^nd Defendant.

10. The Plaintiff filed a Notification of Accident with the Labour Department on 21 January 2016 (“the 1^st Notification”) in which he named the 1^st Defendant as the employer but Section C of the Notification concerning the main contractor was left blank[1].

11. In about late August or early September 2016, the Plaintiff first knew that he had the right to instruct solicitors to assist him to claim against the 1^st Defendant in relation to the accident. He then instructed Messrs Day & Chan (“Day & Chan”) for the matter. Day & Chan issued a letter to the Labour Department dated 9 September 2016 asking for copies of the relevant documents, including Form 2, witness statements and photographs.

12. On 21 December 2016, the Plaintiff had a meeting with Day & Chan, during which, the Plaintiff was advised to file another Notification of Accident to the Labour Department to name all the relevant parties. Accordingly, another Notification of Accident was filed with the Labour Department on 21 December 2016 (“the 2^nd Notification”) in which the 2^nd Defendant was named as the “main contractor” under Section C thereof[2]. Notwithstanding that, Day & Chan would carry out investigation to confirm whether the 1^st Defendant subcontracted the work from the 2^nd Defendant at the material time.

13. The 1^st Defendant filed the Form 2 on 14 February 2017 (“the Original Form 2”) in which the 2^nd Defendant was listed as the main contractor under Section C thereof[3]. However, the 1^st Defendant subsequently filed the Amended Form 2 on 22 February 2017 (“the Amended Form 2”) crossing out the name of the 2^nd Defendant[4].

14. Later, the Plaintiff was informed that the business of Day & Chan would be closed and the case would be transferred to Messrs John Wong & Co.

15. The Plaintiff subsequently changed to engage the present solicitors firm, i.e. Messrs V Hau & Chow (“VHC”) for the matter. On 26 July 2018, the Plaintiff had a first meeting with VHC. In a meeting on 7 August 2018, the Plaintiff was shown copies of the Original Form 2 and the Amended Form 2. The Plaintiff claimed that that was the first time when the Plaintiff was shown the two documents. However, the copies of the Form 2 were redacted such that the particulars of the person filling the forms were concealed.

16. By letter dated 17 August 2018, VHC wrote to the 2^nd Defendant asking inter alia whether at the material time the 2^nd Defendant were the principal contractor for the Plaintiff’s work[5]. On 24 September 2018, Messrs Vivian Chan Law Office (“Vivian Chan”), solicitors for the 2^nd Defendant, provided VHC with a copy of the EC policy, but stated inter alia that they had no information on whether the Plaintiff was employed by the 1^st Defendant[6].

17. In view of the fact that some information stated in Form 2 had been redacted, VHC wrote to the Labour Department on 14 November 2018 asking for the unedited versions[7]. By a letter dated 20 November 2018, the unedited versions were provided by the Labour Department to VHC[8].

18. On 21 December 2018, the Plaintiff was advised by VHC that from the EC insurance policy it could be inferred that the 2^nd Defendant might be the principal contractor. Since the directions hearing for the employees’ compensation case would be forthcoming (i.e. on 4 January 2019), VHC advised the Plaintiff to make application to join the 2^nd Defendant in the EC Case. For the PI action, since the Plaintiff could amend the Writ once without leave pursuant to Order 20 rule 1 of the Rules of the District Court, no application to join the 2^nd Defendant was recommended at that stage until the exact relationship between the 1^st and 2^nd Defendants was confirmed.

19. By a letter dated 11 February 2019[9], Vivian Chan confirmed inter alia that the 2^nd Defendant had subcontracted the removal and reinstallation of the air conditioner modus and air ducts at the Work Place to the 1^st Defendant at the material time. They also confirmed that the 3^rd Defendant was the principal contractor.

20. In relation to the related EC case which commenced on 13 April 2017, the Plaintiff applied to join the 2^nd Defendant on 24 December 2018. The application was dismissed by the Order made by Her Honour Judge Levy dated 24 September 2019[10]. The learned Judge held that there was no reasonable excuse for the Plaintiff to have a delay of 19 months to pursue the matter against the 2^nd Defendant.

Legal principles

21. Section 27(4) of the Limitation Ordinance (“the Ordinance”) provides two limitation periods for the institution of a personal injury claim. Sub-section (4) of that section provides as follows: -

“(4) Except where subsection (5) applied, the said period is 3 years from—
(a) the date on which the cause of action accrued; or
(b) the date (if later) of the plaintiff's knowledge.”

22. Sub-section (6) of the Ordinance states as follows: -

“(6) In this section, and in section 28, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant,
and knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is relevant.”

23. As to what constitutes "knowledge" in the context of the Ordinance, Ms Tjia, counsel for the Plaintiff, drew my attention to the principles as set out in Nash v Elli Lilly & Co [1993] 1 WLR 782 which were summarized in §F1/29/5, Hong Kong Civil Procedure 2021.

24. In fact, in Lam Siu Ping v Secretary for Justice, HCPI 345/2010 (unreported, 19 October 2011), Master M Ng (as she then was) has summarized the approach as follows:-

“[58] Knowledge means to hold a reasonably firm belief or to know with sufficient confidence to warrant the taking of preliminary steps for making a claim, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence (see Cheung Yin Heung at pp.86-88). But the plaintiff need not be certain, and he may even have the requisite knowledge before he has absolute certainty in relation to the facts. "[It] is the knowledge of possibilities that matters; a claimant needs only enough knowledge for it to be reasonable to expect him to set about investigation. He can have knowledge even though there is no helpful evidence yet available to him" (see Ministry of Defence v AB & ors [2010] EWCA Civ 1317 (22 November 2010) at para.85). However, suspicion, particularly if it is vague and unsupported, will not be enough"
…..
[60] Lord Hoffmann said in Broadley v Guy Clapham & ors [1994] 4 All ER 439, 448 that the court "…… should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based".

25. As to the test on actual knowledge, the learned Master said that:

“[61] Sections 27(4)(b) and 27(6) refer to actual knowledge on the part of a plaintiff of the specified matters as to the damage and other relevant facts to make it reasonable for him to investigate whether or not there is a claim against a particular potential defendant (see paragraph 57 above). The test for actual knowledge is subjective, and the burden is on the plaintiff to show the date of actual knowledge was within three years preceding the issue of the writ of summons, but if the defendant wants to rely on a date prior to such period the burden is on him to prove that the plaintiff had or ought to have had knowledge by that date (see Cheung Yin Heung at p.83).”

26. For constructive knowledge, the following paragraphs are relevant:

“[62] Section 27(8) brings in the concept of “constructive” or “imputed” knowledge by providing that a plaintiff’s knowledge includes knowledge that 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 he shall not be fixed 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.
[63] In respect of an injury on duty with allegations of default on the part of the employer, even though the employee plaintiff may not have sufficient actual knowledge, he may know sufficient to make it reasonable for him (by himself or with advice) to acquire further knowledge of the link between his injury and his working conditions. The burden is on the defendant to show constructive knowledge on the part of the plaintiff by a date earlier than the three-year period prior to the issue of the writ of summons (ie on or before 9 July 2007 for the 1st Accident Claim in the present action), and the relevant test is an objective one that requires the court to consider the objective situation in which the plaintiff finds himself in, including the effects of his injury but excluding the personal characteristics individual to him (see Cheung Yin Heung at pp.84-86 and London Strategic Health Authority v Whiston [2010] 3 All ER 452, 468).
[64] The effect of section 27(8) is that the plaintiff cannot simply close his mind and wilfully or even unintentionally ignore the commonsense reality of his position. He must act reasonably in using information he had or could ascertain to establish knowledge of the significance of his injury, the attribution to the act or omission by the defendant, and the identity of the defendant. The plaintiff is required to be both mentally active in comprehending the facts of his accident and injury, and also physically active in obtaining expert and other advice and opinion (see Nelson-Jones, Burton and Roy, Personal Injury Limitation Law 2nd ed p.59).”

Discussions

27. There is no dispute that at the time when the Plaintiff joined the 2^nd Defendant as a party by amending the Writ of Summons on 15 April 2019, the primary limitation period had lapsed.

28. The Plaintiff argues that the date of actual knowledge of the 2^nd Defendant’s involvement should be 11 February 2019, or alternatively, as a fall-back position, the Plaintiff only knew the 2^nd Defendant’s role by the time of the 2^nd Notification on 21 December 2016.

29. The 2^nd Defendant’s arguments can be summarized as follows:

a) As at the date of the 2^nd Notification (21 December 2016), the Plaintiff must have had knowledge about the 2^nd Defendant being the “principal contractor” since, firstly, the name of the 2^nd Defendant was put on the 2^nd Notification, and secondly, the Plaintiff was aware of the presence of the workers of the 2^nd Defendant and the presence of the 2^nd Defendant’s logo on the Ladder at the material time.
b) The 2^nd Defendant then went further to invite the Court to infer that the state of mind of the Plaintiff as at the 2^nd Notification and the date of accident was identical, and therefore, the Plaintiff should have sufficient knowledge at the time of the Accident.

The state of mind of the Plaintiff at the time of the Accident

30. Mr Tsui, counsel for the 2^nd Defendant, submits that there was no evidence to suggest that the information about the 2^nd Defendant being the main contractor as stated in the 2^nd Notification was a result of any investigation carried out by the Plaintiff subsequent to the Accident. Mr Tsui argues that the Plaintiff did have knowledge about the role of the 2^nd Defendant at the time of the Accident.

31. In this regard, the onus is on the 2^nd Defendant to prove that the Plaintiff had or ought to have had knowledge by that date. In my view, Mr Tsui’s argument ignored the important fact that the Plaintiff submitted the 1^st Notification on 21 January 2016 without mentioning the 2^nd Defendant at all. I accept the submissions of Ms Tjia, counsel for the Plaintiff, that should the Plaintiff actually have known that the 2^nd Defendant sub-contracted the work to the 1^st Defendant on the date of the Accident, it would be extremely unreasonable for the Plaintiff not to sue the 2^nd Defendant at the time of the Writ of Summons first issued on 15 May 2018. By the same token, should the Plaintiff have known that the 2^nd Defendant was the sub-contractor or the principal contractor, one would expect that the Plaintiff would have named the 2^nd Defendant in the 1^st Notification. Accordingly, I do not accept that the 1^st Notification made by the Plaintiff was a self-serving piece of evidence. It would not be reasonable to draw any inference that the state of mind of the Plaintiff as at the time of the Accident must be identical to that at the time of the 2^nd Notification. Hence, I do not accept the 2^nd Defendant’s submission that based on the state of mind of the Plaintiff as at the time of the 2^nd Notification, the Plaintiff must have knowledge at the time of the Accident that the injury should be attributable to the 2^nd Defendant’s omission as alleged.

The state of mind of the Plaintiff as at the time of the 2^nd Notification

32. Mr Tsui argues that the Plaintiff should have sufficient knowledge at the time of the 2^nd Notification on the ground that:

a) The Plaintiff knew that the 2^nd Defendant was one of the subcontractors of the 1^st Defendant;
b) At the time of the Accident, workers of the 2^nd Defendant did appear at the Work Place and the Ladder bore the 2^nd Defendant’s logo; and
c) The Plaintiff named the 2^nd Defendant as the principal contractor on the 2^nd Notification.

33. In my view, the alleged knowledge of the Plaintiff at the time of the 2^nd Notification is not sufficient for the present purpose. As mentioned in the case of Lam Siu Ping, knowledge means to hold a reasonably firm belief or to know with sufficient confidence to warrant the taking of preliminary steps for making a claim, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence. Further, as decided in the case of Nash v Eli Lilly & Co., a firm belief is required, but in respect of which the plaintiff thought it necessary to obtain reassurance or confirmation from experts, medical, legal or others, that would not be regarded as knowledge until the result of his inquiries was known to him, subject to whether the plaintiff was acting in reasonable time without delay.

34. On the facts of the case, the Plaintiff had, on 21 December 2016, instructed Day & Chan to carry out investigation to ascertain the relationship between the 1^st and 2^nd Defendant. As I see it, the purpose of the investigation was not only to obtain reassurance or confirmation, but more importantly, to obtain sufficient evidence to determine whether the 1^st Defendant was a subcontractor of the 2^nd Defendant. I do not consider that the Plaintiff had the relevant knowledge for the purpose of section 27 of the Limitation Ordinance at any time before the said meeting.

35. Mr Tsui invites me to follow the reasoning of the Judgment of Her Honour Judge Levy in the related EC Case (DCEC 832/2017) decided on 24 September 2019[11]. In particular, para.31 of the Judgment stated that since the 1^st Notification only contained very little information limited to the name of the Employer and his contact mobile number, the learned Judge accepted that the Plaintiff had very little information about the principal contractor at that stage. In para. 32, the learned Judge however considered that the Plaintiff should have sufficient evidence at the time of the 2^nd Notification to issue the EC Application against the 2^nd Defendant. I consider that the Judgment was decided on the basis of Section 14(1) of the Employees’ Compensation Ordinance which prescribed a time limit of 24 months for the commencement of the EC application unless the Court is satisfied that there was reasonable excuse for the failure to make such an application. The legal framework of the present application is different. The issue of whether the Plaintiff should have sufficient actual or constructive knowledge is fact sensitive and I am not prepared to accept the 2^nd Defendant’s submissions in this regard.

Constructive knowledge

36. The next question is whether, prior to 21 December 2016, the Plaintiff might reasonably have been expected to acquire knowledge from the facts observable or ascertainable by him or from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek. In this regard, my considerations are as follows:

a) While there is no doubt that the Plaintiff knew the existence of the 2^nd Defendant, if the Plaintiff did not know all the essential facts necessary to constitute the claim under s.27(6) of the Ordinance, limitation period did not begin to run.
b) If the Plaintiff did not know that the work he was performing for the 1^st Defendant was part of the sub-contracted work from the 2^nd Defendant, the Plaintiff might not be able to know that the injury could be regarded as attributable to the 2^nd Defendant in whole or in part.
c) While the Plaintiff knew that the 1^st Defendant subcontracted various works from the 2^nd Defendant, the 1^st Defendant did not ask the Plaintiff to attend the 2^nd Defendant’s warehouse to collect equipment for use at the Work Place on the date of the Accident. It would be reasonable for the Plaintiff not to make further inquiry as to whether the 2^nd Defendant had sub-contracted the work to the 1^st Defendant at the material time.
d) The Plaintiff admitted that some workers of the 2^nd Defendant were present at the time of the accident and the Ladder bore the logo of the 2^nd Defendant. In my judgment, those evidence is not sufficient to make it reasonable for the Plaintiff to acquire further knowledge of the link between his injury and the role of the 2^nd Defendant.

37. An employee usually does not have a direct employment relationship with a principal contractor. Hence, it is not uncommon that an employee does not know whether a principal contractor is involved or if there is, the principal contractor's identity. The Court would only expect a person to take reasonable action to acquire knowledge from facts reasonably ascertainable by him. It is reasonable to expect that the action to be taken by a person intending to commence litigation would be proportionate: see Chan Ngan Fa v Cui You Jun, DCPI 832/2007 (unreported, 2 March 2009). In the present case, I am of the view that the Plaintiff could not reasonably have been expected to acquire the knowledge of the 2^nd Defendant being the contractor at the time of the Accident, and at any time before the 2^nd Notification.

38. Further, even if the Plaintiff knew enough for it to be reasonable to begin investigating further at an earlier stage (which I disagree), it does not mean that the Plaintiff could be fixed with knowledge of the 2^nd Defendant at such point in time. Given that the Form 2 had been amended by the 1^st Defendant, there is no reasonable probability that the 1^st Defendant could have informed the Plaintiff of the position of the 2^nd Defendant with certainty.

Date on which the Plaintiff first had knowledge

39. As mentioned before, the Court would only expect a person to take reasonable action to acquire knowledge from facts reasonably ascertainable by him. The intended defendant would not be expected to assist a plaintiff to pursue his claim. On the evidence adduced in this case, the Plaintiff and/or his solicitors received two versions of the Form 2, and time had been spent to ask the Labour Department to disclose the unedited versions of the Form 2. VHC had also written various letters to the 2^nd Defendant and their solicitors to clarify the relationship. Against this background, I am satisfied that the Plaintiff only acquired the knowledge within the meaning of Section 27(4) of the Ordinance on 11 February 2019, i.e. the date on which Vivian Chan confirmed that the 2^nd Defendant subcontracted the work to the 1^st Defendant at the material time.

40. Even if I am wrong on that, I consider that the Plaintiff only acquired the knowledge on 21 December 2016, i.e. the date of the 2^nd Notification.

41. Based on the foregoing, in my judgment, the Plaintiff’s amendment of the Writ of Summons to join the 2^nd Defendant on 15 April 2019 was made within the 3-year limitation period.

Discretion under Section 30 of the Ordinance

42. If I am wrong on the effect of Section 27 of the Ordinance, then a balancing exercise has to be made under Section 30 of the Ordinance to decide whether it would be equitable for the Court to allow the Plaintiff’s claim against the 2^nd Defendant to proceed.

43. As summarized in Mok Lai Fong v Ng Po Sui [2011] 3 HKLRD 67, the court would perform a balancing exercise by looking at (a) the balance of prejudice to each party; (b) the six specific but non-exhaustive factors contained in s.30(3) of the Ordinance; and (c) all the circumstances of the case to see whether it would be "equitable" to disapply the limitation period. Ultimately, the crucial question was whether, on the facts and circumstances of each case, it was fair and just to expect the defendant to meet the plaintiff's claim on the merits notwithstanding the delay.

44. The primary limitation period expired on 16 May 2018 while the amendment to join the 2^nd Defendant as a party was made on 15 April 2019. The length of the delay of 11 months is in my view not particularly substantial. Once the Plaintiff has instructed VHC to carry out investigation on the relationship between the 1^st and 2^nd Defendant, I consider that the Plaintiff and VHC had acted promptly and reasonably.

45. Mr Tsui submits that the 2^nd Defendant’s ability to conduct the defence has been prejudiced by the Plaintiff’s delay. In particular, the 2^nd Defendant no longer retained any contemporaneous records relating to the Work and the complaint of the injury[12].

46. In the 1^st Affirmation of Lee Ying Siu filed on behalf of the 2^nd Defendant, it was affirmed that the 2^nd Defendant would have a practice of keeping written records of the workers on site for one year. As a result of the passage of time, the 2^nd Defendant did not have any contemporaneous internal records showing that the Plaintiff had attended the Work Place[13]. Other than the alleged loss of contemporaneous records, the 2^nd Defendant did not mention any other prejudice to their conduct of the defence.

47. As I see it, if the 2^nd Defendant’s practice was to keep the records for one year only, the record would have been destroyed in any case, even if the action was commenced one year after the accident notwithstanding that it was within the 3-year limitation period. I consider that the so-called prejudice, if any, would be caused by the 2^nd Defendant’s own record keeping practice rather than the expiry of the limitation period.

48. As a matter of fact, the 2^nd Defendant filed a Defence on 26 August 2019, list of documents on 21 October 2019, and witness statements on 20 January 2020. Given that the 2^nd Defendant would be able to file the Defence and other court documents in compliance with the Checklist Review directions, I fail to see how the 2^nd Defendant’s ability to conduct the defence has been prejudiced by the Plaintiff’s alleged delay.

49. As pointed out by Ms Tjia, the real issue in this Action is whether the 1^st, 2^nd or 3^rd Defendants had provided a safe and proper working platform for the Plaintiff to carry out his work at height: see para. 5 of the Statement of Claim. In the Witness Statement of Lee Ying Siu filed on behalf of the 2^nd Defendant, Mr Lee’s evidence was that it was not the practice of the 2^nd Defendant to provide any tools or equipment to its subcontractors. The Ladder bearing the 2^nd Defendant’s logo was not intended to be used by other people[14]. Again, I fail to see how the 2^nd Defendant’s ability to conduct the defence has been prejudiced by the Plaintiff’s alleged delay.

50. The Summons was taken out by the 2^nd Defendant on 13 March 2020 while the amendment to include the 2^nd Defendant in this Action was made on 15 April 2019. The 2^nd Defendant took steps to file the Defence and other documents without taking any striking out application until 13 March 2020. If the 2^nd Defendant has really suffered any prejudice in defending the Action, one would expect that the Summons should have been taken out at a much earlier time.

51. On the other hand, the Plaintiff will certainly suffer prejudice if it transpires at the end of the day that the Accident was attributable in whole or in part to the act or omission of the 2^nd Defendant with regard to the Ladder.

52. Mr Tsui argues that the only factual allegations against the 2^nd Defendant in the Statement of Claim was that the Ladder was provided by the 2^nd Defendant. There was no pleading as to the relationship between the Plaintiff, the 1^st and 2^nd Defendant, no pleading as to the role of the 2^nd Defendant to the Work. I do not accept the argument. I agree with Ms Tjia’s submission that para. 1 of the Statement of Claim set out the Plaintiff’s case on the relationship between the parties, including the 1^st and 2^nd Defendants, and para. 5 provided the particulars of negligence of the 1^st, 2^nd and 3^rd Defendants. The 2^nd Defendant’s allegation was not supported by the pleadings. The 2^nd Defendant’s application to strike out on the basis that there was no reasonable cause of action against the 2^nd Defendant should not be allowed.

53. In all the circumstances, I am of the view that I should exercise discretion under Section 30 of the Ordinance to disapply the time limit under Section 27.

Conclusion

54. The following order is hereby made:

1) The 2^nd Defendant’s Summons dated 13 March 2020 (“the Summons”) is dismissed.
2) There be a costs order nisi that the costs of the Summons and the costs of the hearing on 3 March 2021 be borne by the 2^nd Defendant to the Plaintiff in any event to be taxed if not agreed with Certificate for Counsel.
3) The Checklist Review hearing be adjourned to 6 May 2021 at 9:30 a.m. at Court No. 17 for further case management directions and/or leave to set down.
4) The parties do file and serve up-to-date P.I. questionnaires at least 14 days prior to the adjourned hearing, and any consent summons seeking agreed directions at least 7 days prior to the adjourned hearing.
5) Subject to paragraph (2) above, the costs of the Checklist Review be costs in the cause.
6) The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

	(Matthew Leung)
	Master of the District Court

Ms Josephine Tjia, instructed by V. Hau & Chow, assigned by the Director of Legal Aid, for the Plaintiff

Mr Brian Tsui, instructed by Vivian Chan Law Office, for the 2^nd Defendant

[1] [B341]

[2] [B4]

[3] [B7]

[4] [B230]

[5] [B237]

[6] [B240]

[7] [B244]

[8] [B247]

[9] [B255]

[10] [B171]

[11] [B171]

[12] Para. 47 of the Skeleton Submissions of the 2^nd Defendant

[13] Para. 32-33, 1^st Affirmation of Lee Ying Siu [A207]

[14] Para. 19 of the Witness Statement of Lee Ying Siu [A139]

LUI CHO YIN v. 雷健邦 AND OTHERS

Related cases with same parties

Files (3)