WONG PEX MUI AND OTHERS v. EVERGREEN FORWARDING & CONTAINER SERVICE LTD AND OTHERS

WONG PEX MUI AND OTHERS v. EVERGREEN FORWARDING & CONTAINER SERVICE LTD AND OTHERS

The Court held the Statement of Claim against the Third Party properly pleaded breaches of statutory duty by the 3rd defendant as a user/person in charge (including liability via an agent), and that the prior magistrates' conviction of the 2nd defendant under one regulation did not bar the 2nd defendant from pursuing third party claims because the Regulations can, arguably, impose liability on more than one party; accordingly striking out was inappropriate and the Third Party pleadings were reinstated.

Citation
WONG PEX MUI AND OTHERS v. EVERGREEN FORWARDING & CONTAINER SERVICE LTD AND OTHERS
Parties
1st Plaintiff: WONG PEK MUI (widow and joint Administratrix of the estate of KWOK KUN SHING, deceased); 2nd Plaintiff: KWOK KWAI PING (son and joint Administrator of the estate of KWOK KUN SHING, deceased); 1st Defendant: EVERGREEN FORWARDING & CONTAINER SERVICE LIMITED; 2nd Defendant/appellant: NORTH POINT WHARVES LIMITED; 3rd Defendant / Third Party/respondent: ROBERTSON, WILSON & CO. LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 May 1982
Case Number
HCA712/1981
Procedural Posture
Personal Injury / Wrongful Death (tort) With Third Party Claim / Appeal From Decision to Strike Out Third Party Proceedings; Judgment in Chambers Reinstating Third Party Claim
Outcome
Appeal allowed; Third Party Notice and Statement of Claim against the Third Party reinstated
Legal Topics
Third Party Proceedings, Vicarious Liability, Abuse of Process, Statutory Interpretation, Regulatory Compliance for Lifting Appliances
Source Language
EN
Tort Negligence Statutory Duty Contract Civil Procedure Third Party Proceedings Vicarious Liability Abuse of Process +2 more

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Parties

WONG PEK MUI (widow and joint Administratrix of the estate of KWOK KUN SHING, deceased)

1st Plaintiff

KWOK KWAI PING (son and joint Administrator of the estate of KWOK KUN SHING, deceased)

2nd Plaintiff

EVERGREEN FORWARDING & CONTAINER SERVICE LIMITED

1st Defendant

NORTH POINT WHARVES LIMITED

2nd Defendant/appellant

ROBERTSON, WILSON & CO. LIMITED

3rd Defendant / Third Party/respondent

Procedural Posture

Personal Injury / Wrongful Death (tort) With Third Party Claim / Appeal From Decision to Strike Out Third Party Proceedings; Judgment in Chambers Reinstating Third Party Claim

Legal Issues

  1. 1 Whether the 3rd defendant could be liable as a user/person in charge or only as a hirer/lessee of the cargo hoist
  2. 2 Whether the Statement of Claim against the Third Party was limited to a hirer/lessee cause of action
  3. 3 Whether the Third Party proceedings constituted an abuse of process in light of the 2nd defendant's prior magistrates' conviction under Regulation 18(1)(ea)

Ratio Decidendi

The Court held the Statement of Claim against the Third Party properly pleaded breaches of statutory duty by the 3rd defendant as a user/person in charge (including liability via an agent), and that the prior magistrates' conviction of the 2nd defendant under one regulation did not bar the 2nd defendant from pursuing third party claims because the Regulations can, arguably, impose liability on more than one party; accordingly striking out was inappropriate and the Third Party pleadings were reinstated.

Court Disposition

Appeal allowed; Third Party Notice and Statement of Claim against the Third Party reinstated

Orders

  • Third Party Notice and Statement of Claim against the Third Party reinstated
  • Costs before the Master and in this appeal to be costs of the 2nd defendant as plaintiff in the Third Party proceedings against the 3rd defendant