Appeal – leave to appeal out of time – claim against third parties to contribute to damages suffered by injured plaintiff – whether extension of time to be granted
P was a general worker engaged in renovation works to a building at Nos 5–11 Un Chau St in respect of which D2 was the principal contractor and P’s employer, D1, was the subcontractor responsible for the renovations to the external walls. As for the third parties (“TPs”), they were the registered owners of the 11th floor and roof of No. 9A Un Chau St. Almost the whole of their roof was covered by a structure made of asbestos tiles laid on top of a steel framework. While P was walking on the top of that structure in order to deliver a bucket of cement from the place where cement was being mixed to workers at the external wall on the other side of the building, he fell through the top of the structure onto the floor of the structure about 2.5 m below, suffering injuries to his left foot and ankle and his lower back. His claim against Ds was settled in the sum of HK$960,000 inclusive of interest. Then Ds’ claim against TPs came before a Recorder for determination. That claim was dismissed because the Recorder took the view that the defaults of TPs was not factually causative of P’s injuries. One day out of time, Ds filed a notice of appeal against the Recorder’s order.
Held, granting Ds leave to appeal out of time and allowing the appeal so as to order that TPs pay Ds 25 percent of the judgment for HK$960,000 inclusive of interest entered for P against Ds by consent, that:
- The reason for the delay was that after obtaining counsel’s advice, Ds’ solicitors were only able to obtain confirmation of Ds’ instructions to appeal one day after the time for appealing had expired. The delay was only of one day, and was excusable in the overall circumstances. More importantly, the appeal must succeed if brought so that it would be unjust not to extend time for bringing it. Lastly, there was no prejudice to TPs in granting the extension.
- According to TPs’ breaches admitted under the deeming provision in O. 16 r. 5 of the Rules of the High Court (Cap. 4A, Sub. Leg.), they had, in breach of their duty of care at common law and imposed by s.3 of the Occupiers Liability Ordinance (Cap. 314) exposed P to a risk of injury of which they knew or ought to have known. Their conduct must have been causative of P’s injuries. There was a factual dispute as to whether there was an alternative route which P could have taken, which dispute the Recorder did not resolve. And even if there was an alternative route, that did not absolve TPs. Having regard to the fact that Ds had a non-delegable duty of care to P, they were more blameworthy than TPs, so that an apportionment of 75 percent liability to them and 25 percent liability to TPs was just and equitable.