LI KWAI FONG AH PAI v. BACHY SOLETANCHE GROUP (A FIRM) AND ANOTHER

CACV000030/1989

IN THE COURT OF APPEAL	1989, No. 30
	(Civil)

BETWEEN

	LI KWAI FONG AH PAT (ALIAS LI KWAI FONG)	Plaintiff (Appellant)
	AND
	BACHY SOLETANCHE GROUP (a firm)	1st Defendant (1st Respondent)
	NISHIMATSU CONSTRUCTION CO. LTD.	2nd Defendant
		(2nd Respondent)

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

Coram: Fuad, V.-P., Penlington, J.A. & Liu, J.

Date of Hearing: 10 January 1990

Date of Judgment: 10 January 1990

Date of Handing Down Reasons: 22 February 1990

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

JUDGMENT

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

 

Penlington, J.A. delivered the judgment of the Court:

1. This is an appeal from a judgment of Deputy Judge Evans dated 7th November 1988 in which he dismissed a claim which the appellant had brought against the two respondents for damages for personal injuries suffered by him on 28th August 1982.

2. On the first occasion that the matter came before this Court, which was then differently constituted, Hunter, J.A. drew attention to several difficulties that then arose. One was that the appellant, who had gone to a great deal of trouble in supplying a bundle of documents,had not asked for a copy of the record of proceedings. As the judge's decision turned on a finding of fact it was impossible for the Court to consider the appeal as matters then stood. Hunter, J.A. also pointed to there being a possible issue of estoppel because the defence was that the injury alleged to have been suffered by the appellant in fact never happened at all. This was a somewhat startling defence because compensation of $137,365.40 under the Employees' Compensation Ordinance had been paid to the appellant to an order of Leong, D.J. on 20th May 1983.

3. The second point was that leave was given to re-amend the defence at the trial whereby it was for the first time alleged that the plaintiff had not suffered the accident complained of at all. Hunter, J.A. was concerned that this radical amendment should have been allowed at such a very late stage.

4. The third point was that there was a dispute between the parties as to the lighting conditions at the site when the alleged injury was suffered. It was alleged by the appellant that there was no mains electricity supply at the time but that only a diesel generator and the lighting was poor. This was denied. Again Hunter, J.A. thought that evidence could have been caused to be produced from the China Light and Power Company as to when mains power was installed at the site.

5. At the hearing of the action the appellant had been legally aided. When the matter came before this Court, however, that had ceased to be the position and legal aid had been refused. For the reasons raised by Hunter, J.A. the Court was concerned about this and expressed the hope that the Director of Legal Aid re-consider his decision to refuse legal aid to the appellant. An order was also made that a copy of the record before Deputy Judge Evans should be obtained. This has now been done but the Director of Legal Aid found no cause for changing his decision and the appellant is still unrepresented. This has certainly made our task no easier. We were informed that opinion has been taken from counsel who appeared for the appellant at the trial and he is of the view, as is the Director of Legal Aid, that the appeal has no reasonable prospect of success. We could not take that any further.

6. As regards the points raised by Hunter, J.A., the position now is as follows.

7. So far as the question of estoppel is concerned it is strongly argued before us by Mr. Michael Poll for the respondents that payment under the Employees' Compensation Ordinance is not in any way an estoppel to a denial of liability. He stresses that payment under that Ordinance should be made promptly and that if such payment was to be then raised against an employer in subsequent proceedings for negligence, payments would much more often be refused and one of the main purposes of the Ordinance, the speedy payment of sums due to injured workers, would be defeated. He says that as the respondents now denied that any accident took place at all it may be that they would have an action to recover the amount paid to the appellant but that in fact they do not intend to do so. One of the reasons for that being the lapse of time which has occurred. We agree that the mere payment of an amount alleged to be due under the Employees Compensation Ordinance would not necessarily operate as a bar to a subsequent denial of liability on the basis that the accident did not occur at all.

8. Moreover, we are bound by pleadings not to consider the possibility of estoppel. An estoppel must be specifically pleaded before it can be entertained. It was not. No application is made before us for leave to re-open the issue which must therefore be taken as unarguable. Not only was estoppel never raised at the trial, instead counsel for the appellant consented to an amendment for introducing the very issue on which the said estoppel point might have been advanced.

9. So far as the second point is concerned, the very late amendment of the defence, a perusal of the record, which we now have, shows that counsel for the appellant agreed to that amendment. We find that difficult to understand for the reasons given by Hunter, J.A., i.e. as it was a radical amendment and it came at the last possible moment. However, consent having been given by the appellant's counsel at the time we are satisfied that we cannot go beyond that and this point also is not available to him.

10. So far as the third point is concerned, we are now informed that records of whether or not mains electricity was supplied to the site at the time of the alleged accident are not in fact available. This may be unfortunate but we are satisfied such is the position. Accordingly this aspect also cannot be carried any further.

11. The appellant is not represented but has done his best and, we may say, by no means incompetent best, to present his appeal before us but he faces the grave difficulty that this was essential a finding of fact by the trial judge. He has considered all the evidence that was before him, including considerable documentary evidence, and he has come to the conclusion that the appellant did not discharge the burden on him of showing that on a balance of probabilities the accident occurred to him on the day in question and that it caused him the injuries about which he complains. We have also considered that evidence carefully and we are satisfied that there was ample before him which justified the trial judge in coming to the conclusion that he did. This was essentially a matter of fact for him to assess on the evidence before him and clearly we could not interfere with that decision unless satisfied that he had taken what was clearly a wrong view of the evidence or had ignored part of that evidence. Neither is the case here. We were, therefore, satisfied that this appeal could not succeed and must be dismissed.

12. Mr. Poll asked for the costs of the appeal to which normally his clients would be entitled. However, costs being always within the discretion of the Court, and having considered all the circumstances of this matter, we made no order as to the costs of this appeal.

	(R.G. Penlington)
	Justice of Appeal

Representation:

Appellant - in person

Mr. Michael Poll (Johnson, Stokes & Master) for Respondents

CACV000030A/1989

IN THE COURT OF APPEAL	No 30 of 1989
	(Civil)

BETWEEN

	LI KWAI FONG AH PAT (alias LI KWAI FONG)	Appellant/ Plaintiff
	AND
	BACHY SOLETANCHE GROUP (A firm)	1st Respondent/ 1st Defendant
	NISHIMATSU CONSTRUCTION CO LTD.	2nd Respondent/ 2nd Respondent

______________

Coram: Hon. Fuad, V. -P., Hunter, JA & Mortimer, J

Date of hearing: 24 May 1989

Date of delivery: 24 May 1989

 

___________

R U L I N G

___________

 

Hunter, J.A.:

1. On 7th November 1938 Deputy Judge Evans dismissed a claim which the appellant plaintiff brought against the two respondent defendants for damages for personal injury. The injury he alleged was suffered by him on 28th August 1982 at a site defined as MTR 402 Worksite Area H.

2. The plaintiff was legal aided at the time of the hearing. But he tells us that Legal Aid declined to assist him in this appeal. He therefore appears before us in person. That brings me to the first of our difficulties. The appellant has pone to considerable trouble to supply us with bundles of documents no doubt similar to those that were produced to the trial judge. But he was unaware of the relevance of the record of the proceedings as taken by the trial judge. Therefore he did not ask for a copy of the record and has not supplied the Court with a copy. Since amongst other things the judge's decision turned on findings of fact in the light of evidence that was led before him, it is impossible for this Court to start to consider the points which the appellant wishes to urge by way of appeal without a sight of that record.

3. The problems do not end there. Upon reading the judgment, and upon reading at least some of the documentation, three points have been observed by the Court upon which we would have invited argument from the respondents in any event, having regard to the fact that the appellant is in person.

4. The first point is a possible issue of estoppel. It could be put as estoppel by record or issue estoppel. The point arises in this way. Following the alleged accident, the appellant made a claim for employees compensation. The form of that claim does not seem to be before us (or if it is, I personally have failed to find it). But it must have asserted an injury at work, I apprehend upon the date in question. Likewise the respondents' defence to that claim is not before us. But there is included in the document s a certificate of award which certifies:

"the determination of compensation in the above-mentioned case, which was heard before His Honour Judge Leong District Judge, on the 20th day of May, 1985 was as follows:-

By consent: -

1. Judgment for Applicant against both Respondents on liability.

2. Compensation be assessed and awarded in the sum of K$130,365.40".

5. It seems to us that it must be arguable that a judgment in those terms raises at estoppel against these defendants, which may prevent them from denying that this appellant suffered an injury on the material date in the course of his employment. The potential existence of an eatoppel was considered by the trial judge on p 7 of his judgment and rejected. The correctness of that conclusion is a matter which this Court feels must be looked at on the hearing of this appeal. Plainly that cannot he considered today because there has been no Notice of Appeal covering the point, and the respondents understandably are not ready to deal with it.

6. The second point which it seems to us would have in any event to he investigated at the hearing of an appeal, is the circumstances in which the trial judge, apparently upon the first morning of the trial, gave leave to re-amend the defence. The form of the re-amendment is not before us, because unhappily the defendants solicitors have failed in their obligation to file a copy of the re-amended defence. It is already long overdue. The effect of the amendment, so we were told, is to change the admission in paragraph 2 of the amended defence, which goes back to September 1986, that the plaintiff had been involved in an accident at the site on 28th August, and to substitute a denial of any accident at all. Apart from the question of estoppel, this raises serious questions in the context of the exercise of discretion. We are told that no prior Notice of the Amendment was given. It could not have come later. It transformed what was going to be a trial solely on the issue of negligence and contribution negligence, into a trial as to whether the accident had happened at all. It was radical change of front from these defendants.

7. It must be arguable that coming at the time it did, and involving as it did a withdrawal of an admission, that no court could properly have given leave without the fullest explanation as to how the admission first came to be made, and the reason why it was sought to be withdrawn at the last moment. We have been told by counsel that the reason was that the principal wit ness for the defendant, whose evidence was accepted by the trial judge, was first interviewed very very shortly before this hearing. Plainly this is a matter which will have to be investigated from the record. But speaking for myself I am somewhat surprised that there is no reference in the judgment, when the Judge is weighing credibility, to the fact that the story that he was hearing from that witness had first been elicited a few days before the hearing, and some six years after the event.

8. The third matter which it seems to us from the papers requires investigation, is these defendants discovery or rather the lack of it. By the amended Statement of Claim of October 1986 complaint was specifically made about the illumination on the site on the material date. The complaint was fully particularised in paragraph 6. It was said that there was

"only one light projector on on a 4-foot stand powered by  a diesel generator on the site. Power supply from the electrical mains was not available on the site until about January 1983".

Evidence to that effect seems to have been given by the appellant to the trial judge Evidence to a quite different effect was given by the defendant 's witness. This was one of the matters upon which the trial judge particularly relied as a touchstone of credibility. He expressed surprise that no evidence was called from the Hong Kong Electric Company. But he said:

"I can draw no adverse inference against the defendants for any failure to call evidence for it is afterall the plaintiff who alleges that there was no mains electricity".

9. It seems to me that that may not be the right or only question. This was a site that was used, to feed other MTR sites, and apparently through which considerable quantities of materials passed. From passing experience of building sites I should he surprised if detailed records were not kept, in either the equivalent of some site dairy or stock book, of the materials which came in and left the site. I say this having regard particularly to their obvious value. I should likewise be surprised if records were not kept of communications with the Electric Company relating to the supply of power, bills, internal records and so on. In this context another subsidiary question of fact was whether or not there was a pile of material called bentonite on the site. If my inference about records is right, they should also tell us what deliveries of bentonite were made into and out of this site. Perusal of the defendants list of documents reveals the discovery, as far as I can see, of not one single site document. The impact of that failure is something which may well have to be investigated upon the hearing of this appeal.

10. In these circumstances it seems to the Court that in the interests of justice and of both parties that the matter cannot proceed this morning, and that it must be adjourned at least for the appellant to be speak and obtain copies of the record. The adjournment will also give the defendants the opportunity of considering the three points that I have referred to, and I have given this ruling to assist them in that respect. The adjournment may provide further opportunity. We do not know the basis of Legal Aid's refusal to support this appeal. But upon reading the judgment it would be understandable if they regarded the case as a simple one of credibility. It may be that when they read this ruling they might conclude that it would be proper to support this appellant having regard to these three points. I need hardly say that if they were to come to that conclusion this Court at the hearing would be immensely assisted.

11. The only order that the Court can make is that the case is adjourned to a future date to be fixed. We think it appropriate simply to reserve the costs of today.

Representation:

Li Kwai Fong, Appellant/Plaintiff in person

M Poll (M/s Johnson Stokes & Master) for Respondents/Defendants