Hong Chun Tak v. Yip Kan Kee
District Court
Employees’ Compensation Case No 849 of 2017
Judge Katina Levy in Chambers
5, 28 March 2018

Employment law — employees’ compensation — joinder of alleged principal contractor as co-respondent — application made outside s.14(1) limitation period — whether reasonable excuse for delay under s.14(4) — whether application also subject to requirements under O.15 rr.4 and/or 6(5)(a) and (6) — whether intended claim against principal contractor bound to fail — Employees’ Compensation Ordinance (Cap.282) s.14(1), 14(4) — Rules of the District Court (Cap.336H, Sub.Leg.) O.15 rr.4, 6(5)(a), 6(6)

Civil procedure — parties — joinder — employees’ compensation proceedings — application for joinder out of time — approach — Employees’ Compensation Ordinance (Cap.282) s.14(1), 14(4) — Rules of the District Court (Cap.336H, Sub.Leg.) O.15 rr.4, 6(5)(a), 6(6)

X brought employees’ compensation proceedings against his employer, R, for personal injuries allegedly sustained on 23 September 2015 in the course of his employment. On 9 October 2017, X’s solicitors, S, obtained from the Labour Department (LD) the full name and address of the principal contractor, which R had disclosed in the Notice of Accident dated 18 November 2015 (Form 2). On 6 November 2017, X applied for leave to join the alleged principal contractor, CHK, as the second respondent under O.15 r.4 of the Rules of the District Court (Cap.336H, Sub.Leg,) (RDC) about 1½ months outside of the 24-month limitation period under s.14(1) of the Employees’ Compensation Ordinance (Cap.282) (ECO) (the Summons). X argued the delay was due to: (a) CHK’s failure to register its business; and (ii) R’s failure, on S’s three written requests in early 2017, to provide information about the principal contractor.

Held, granting the application, that:

  • X’s lack of explanation for the one-month delay between S obtaining CHK’s details and issuing the Summons was unsatisfactory. However, given that S then had to take instructions and obtain approval from the Legal Aid Department, the delay was reasonable. (See para.24.)
  • CHK’s failure to register its business was a reasonable excuse under s.14(4) of the ECO for the delay. X would have likely discovered CHK’s details during its business registration searches conducted on 30 June 2016 or at a later date on 28 February 2017 and claimed against CHK as the second respondent within time. (See paras.26–27, 39.)
  • R, as the subcontractor, had breached its statutory duty under s.24(4) to supply X with the name and address of the principal contractor when it ignored S’s repeated requests for the same in early 2017. This was also a legitimate and reasonable excuse under s.14(4) for X’s delay in joining CHK. (See paras.28–30, 39.)
  • Commencing a fresh action against CHK would not have been a better course. X was not required to satisfy a “joinder test” in accordance with O.15 r.6(5)(a) and (6) of the RDC, in addition to proving a reasonable excuse under s.14(4) of the ECO. Issuing fresh proceedings was not only inconsistent with the underlying objectives of Civil Justice Reform if a new party could be joined in the same proceedings, but also the spirit of the ECO regime of informality and simplicity so that such proceedings could be resolved speedily. Further, O.15 r.6(5)(a) and (6) of the RDC were concerned with the limitation period governed by the Limitation Ordinance (Cap.347) which did not apply to the ECO regime. The Summons also fulfilled the two requirements in O.15 r.4 of the RDC (Tsui Man Kit Michael v Hung Lap Ming (unrep., DCEC 1616/2012, [2014] HKEC 555) considered; Tsang Yu v Tai Sang Container Cold Storage & Wharf Ltd [2000] 1 HKLRD 780 distinguished). (See paras.47–49, 55–60.)
  • Finally, X’s proposed claim against CHK was not bound to fail. There was sufficient evidence that CHK might be liable to X as the principal contractor. (See paras.64–67.)

Application

This was an application to join the alleged principal contractor as the second respondent in employees’ compensation proceedings brought by the applicant against the respondent. The facts are set out in the judgment.

Jurisdictions: 

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