JIANG ZHONG v. YEUNG CHUN LEUNG formerly t/a DREAM HOME WORKSHOP AND OTHERS

DCPI 2047/2011 & DCEC 1267/2010

(Heard Together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2047 OF 2011

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1267 OF 2010

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(HEARD TOGETHER)

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DECISION

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THE APPLICATION

1.  This is an application made by the Employees Compensation Assistance Fund Board[1] (“Fund Board”) for leave to appeal against certain part of the costs orders made by this Court on 11 April 2016 in DCEC 1267 of 2010 (“EC Action”) and DCPI 2047 of 2011 (“PI Action”). 

2.  Specifically, the Fund Board sought leave to appeal against the following costs order:-

(1) in the EC Action, the costs of Jiang[2] be paid by Yeung[3] and the Fund Board jointly and severally, and that the Fund Board’s own costs including the costs to be paid by the Fund Board to Jiang be paid by Yeung;

(2) in the PI Action, the costs of Jiang be paid by Up Cheer[4], Yeung and the Fund Board jointly and severally, and that the Fund Board’s own costs including the costs to be paid by the Fund Board to Jiang be paid by Up Cheer and Yeung jointly and severally.

3.  There was no complaint about the order that Yeung (in both actions) and Up Cheer (in the PI Action) shall be ultimately responsible for paying the Fund Board’s costs, including the costs that the Fund Board are to be paid to Jiang.  The challenge was on the order against the Fund Board to bear Jiang’s costs jointly and severally with Yeung and Up Cheer (as the case may be) notwithstanding that such costs are recoverable from Yeung and/or Up Cheer.

4.  The background of these two proceedings was set out in the Judgment handed down on 5 February 2016 and the Reason for the Decision on Costs handed down on 18 April 2016. 

PROPOSED GROUNDS OF APPEAL

5.  The Fund Board has submitted a 10-page draft Notice of Appeal in the PI Action and a 6-page draft Notice of Appeal in the EC Action.  In sum, the Fund Board’s proposed grounds of appeal were two:-

(1) Jurisdictional Ground – it was contended that this Court was wrong in relying on Kwan Kam Pui v Fung Man & Ors [2014] 6 HKC 361 and was wrong to hold that the provisions in Employees Compensation Assistance Ordinance (“ECAO”) did not impact on the Court’s discretion to award costs against the Fund Board in a common law claim.  The Fund Board contended that the Court has no jurisdiction to order costs against the Fund Board in the PI Action. 

(2) Discretion Ground – it was contended that even if this Court has the jurisdiction to award costs against the Fund Board, the discretion was wrongly exercised, or that this Court had failed to exercise the discretion judicially.  The Fund Board mainly relied on the affirmations in support of its joinder application and contended that this Court has wrongly came to the view that the Fund Board did not join in the proceedings for the defence of Cheng only.

6.  The Fund Board relied on both grounds in the PI Action, and only the Discretion Ground in the EC Action.

LEGAL PRINCIPLES ON GRANTING LEAVE TO APPEAL

7.  The legal principles on granting leave to appeal are well established and are not disputed by the parties.

8.  Under section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless this Court is satisfied that the appeal has a reasonable prospect of success; or there is some other reason in the interests of justice why the appeal should be heard.

9.  The test of “reasonable prospect of success” will be met if an applicant can show that there is more than just an arguable case, it is an appeal that has merits and ought to be heard.  The test of reasonable prospect of success involves the notion of reasonableness and therefore is more than ‘fanciful’, but does not have to be ‘probable’. (See: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515, per Chu J (as she then was); Ma Bik Yung v Ko Chuen [2009] 3 HKC 359, per Leong JA; KNM v HTF, unreported, HCMP 288/2011, 7 September 2011, per Fok JA (as he then was), Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd [2011] 5 HKC 474 per Fok JA (as he then was))

10.  The threshold for granting leave to appeal against an exercise of discretion is higher, and was described by Mr Wong SC (appearing with Mr Phang), counsel for the Fund Board, as “not easy to meet”.

11.  The award of costs is a matter of discretion for the trial judge.  An appellant court will not interfere with the exercise of discretion unless it was shown that the decision was plainly wrong, the judge has erred in law or in principle, or has taken into account matters which he should not have taken into account, or has not taken into account matters which he should have taken into account. (See: Lakhan v Wu Wing Tat & Anor [1987] 3 HKC 54, 58-59, citing Alltrans Express v CVA Holdings [1984] 1 WLR 394; RK v YS, unreported, HCMP 1969/2012, 1 November 2012, CA)  It is not sufficient to merely show that the appellant court would prefer a solution which the judge had not chosen. (Hong Kong Civil Procedure 2016 Vol 1 §59/2A/4)

JURISDICTIONAL GROUND

12.  The proposed ground of appeal on jurisdiction only relates to the PI Action.  This is the first occasion when the Fund Board raised this jurisdictional challenge in the present proceedings.  This point has never been raised at trial or at the hearing on costs.

13.  The Fund Board’s major criticism was that this Court should not follow the comments of Mr Justice Bharwaney in Kwan Kam Pui, which was obiter dicta, and that Kwan Kam Pui was wrongly decided.  The Fund Board submitted that the effect of section 20B(3) of ECAO is that the Court does not have jurisdiction to order costs against the Fund Board in the PI Action. 

14.  Section 20B(3) of ECAO defines the meaning of “relief payment” that an eligible person may apply to the Fund Board under section 20A for compensation in a claim for common law damages.  Interest and costs were excluded from the definition of “relief payment”.

15.  Mr Wong SC for the Fund Board argued that taking into account the history of ECAO, the amendments thereto in 2002, the specific provisions in section 20B(3) of ECAO as well as the legislative intent to encourage the Fund Board to intervene in proceedings, the ECAO ought to be interpreted as having the effect of insulating the Fund Board from any adverse costs order in an employee’s claim for common law damages.  The Court thus, he contended, has no jurisdiction to order costs against the Fund Board in a common law claim when the Fund Board chose to join in as a party under section 25A of ECAO.  This, however, does not affect the Fund Board’s right to have costs awarded in favour of it if the Fund Board intervenes or be sued under sections 25 and 25A of ECAO.

Reasonable prospect of success

16.  Mr Wong SC accepted that his arguments on this proposed ground was a rehash of the arguments made at the hearing before Mr Justice Bharwaney in Kwan Kam Pui[5]. In Kwan Kam Pui, Mr Justice Bharwaney has enunciated his rejection of these arguments with detailed reasons[6].

17.  In Kwan Kam Pui, the Learned Judge has considered, inter alia, the history of ECAO, the circumstances leading to the amendments in 2002, the proper construction of sections 20A and 20B in regard to relief payment, the proper construction of section 25A which specifies that the Fund Board was to join in as a party in accordance with Order 15 rule 6 of the Rules of High Court or District Court, as well as the different role of the Fund Board when considering an application for relief payment (which was quasi-judicial) and when joining in as a party (which was adversarial).  The Learned Judge came to the view that the reference to intervention being governed by Order 15 rule 6 reinforces the conclusion that section 25A does not seek to curtail the power of the Court in the conduct of the proceedings and the discretion to award costs.  In the context of considering section 29 of ECAO[7], the Learned Judge commented that it would be an incongruous state of affairs if the Fund Board could take advantage of a section in the ECAO and could obtain costs in its favour by making a written without prejudice save as to costs settlement offer, but was not liable to pay any costs if the plaintiff succeeded in obtaining a judgment sum higher than the written offer.

18.  The Learned Judge came to the conclusion that the statutory provisions in ECAO did not fetter the Court’s wide discretion in the award of costs, including the award of costs against the Fund Board when it chose to join in as a party in a common law claim.

19.  Mr Chan, counsel for Jiang, argued that the Fund Board’s construction of ECAO was not proper nor reasonable and could not be the intention of the Legislature.  In the context of Order 15 rule 6, Mr Chan referred to Wong Chun Leong Tony v Ada Ltd [1991] 1 HKC 86 in which the Court of Appeal has held that it could not be right for the Court when ordering a party to be joined under Order 15 rule 6 of the then Rules of Supreme Court, to order preemptively at the same time that the newly joined party would be precluded from asking costs in any proceedings in the action. 

20.  The same jurisdictional arguments were made by the Fund Board (not represented by Mr Wong SC) before Madam Justice Bebe Chu in Chak King Por v Wong Chun Fai [2016] 2 HKLRD 1076.  Madam Justice Bebe Chu considered the arguments independently, came to the same conclusion reached by Mr Justice Bharwaney, and held that the ECAO does not immune the Fund Board from any adverse costs order. The Fund Board has confirmed (through Mr Wong SC) that there was no appeal against Madam Justice Bebe Chu’s decision in Chak King Por.

21.  Although the decision of Chak King Por was handed down one day after this Court’s decision on costs, it was not disputed that the legal propositions held therein are binding on this Court.

22.  In Hussain Kamran v Khan Amar and Anor, unreported, HCPI 953/2012, 13 November 2014, Master Chow of the Court of First Instance agreed with Mr Justice Bharwaney on the point of jurisdiction but she refused to exercise her discretion in ordering costs against the Fund Board.  The plaintiff appealed against Master Chow’s exercise of discretion on costs.  The Fund Board did not take out any respondent notice to raise a challenge on the jurisdictional issue.  The Court of Appeal[8] allowed the plaintiff’s appeal against Master Chow’s exercise of discretion, and awarded costs against the Fund Board.

23.  In the present application, Mr Wong SC submitted that Kwan Kam Pui was wrongly decided, and explained that the Fund Board has not lodged an appeal in that case as the result was in favour of the Fund Board.

24.  The Fund Board also contended that this Court has failed to give any or sufficient regard that Mr Justice Bharwaney’s comments in Kwan Kam Pui were obiter, and was not binding on this Court.  It is clear from the judgment in Kwan Kam Pui that the comments were obiter.  This Court has not lost sight of this fact when making the costs order.  These comments from the High Court Judge, albeit obiter, was highly persuasive.  In any event, after the decision of Chak King Por, the proposition was binding on this Court.

25.  I have carefully considered the Fund Board’s arguments on the Jurisdictional Ground, not only from the perspective of stare decisis principle, but also independently free from any stare decisis consideration. I agree with Mr Justice Bharwaney in Kwan KamPui (albeit obiter)that the ECAO does not fetter the Court’s jurisdiction and discretion to award costs against the Fund Board in a common law claim, and his reasons for it.  In particular, it is of note that section 20B(3) which excludes the recovery of costs from the Fund Board was in regard to an application for a relief payment under section 20A.  Intervention by the Fund Board as a party was governed by section 25A in which it was expressly provided to be governed by Order 15 rule 6 of Rules of High Court or District Court.  There was no express provision in section 25A to the effect that the Court’s power to award costs against the Fund Board was curtailed.

26.  I am not satisfied that a reasonable prospect of success was shown on this proposed ground of appeal.

“Other reason in the interest of justice”

27.  Mr Wong SC then invited this Court to grant leave on the “other reason in the interest of justice” limb for the public importance of this issue and the potential impact that this jurisdictional issue may have on all parties to the proceedings in which the Fund Board has intervened.

28.  It was submitted that the arguments made in Kwan Kam Pui have rarely been tested and reviewed by the Court.  Apart from Char King Por and the present case, the other cases cited or mentioned the case of Kwan Kam Pui were not of direct relevance to the jurisdictional challenge as these cases are either on employees’ compensation claims or did not engage the jurisdictional point.  These cases are Mohammed Shakeel v Wong Kin Yu and Ors, unreported, DCPI 2441/2011, 5 November 2015; Wong Kai Fun v Sun On Logistics Limited and Anor, unreported, DCEC 5/2013, 20 May 2015; Chan Ngan Fat v李敬恆and Anor, unreported, DCEC 1382/2013, 7 October 2015; Lai Wing Shun v Shun Shing Decoration Company Limited and Anor, unreported, DCEC 1918/2014, 22 February 2016; Chi Yuk Pui v Grace Mind Corp Ltd  [2015] 3 HKLRD 271; Kong Hoi Lam v Cheung Yuk Kwan and Ors [2016] 3 HKC 38.

29.  Mr Chan, counsel for Jiang, submitted that if this Court is minded to grant leave to appeal on the “other reason in the interest of justice” limb, conditions should be imposed to protect Jiang from the exposure on costs.  Under section 63A(1)(b) of the District Court Ordinance, the Court can impose necessary conditions on the granting of leave to appeal to secure the just, expeditious and economical disposal of the appeal.   It was noted that the total damages awarded to Jiang in both actions are HK$359,727.  Jiang was still trying to enforce and recover the judgment award from Yeung and Up Cheer.  Mr Chan was concerned that the costs that may incur on appeal will quickly eat up the entire amount of compensation.  Although Jiang was on legal aid, his compensation was subject to a first charge in favour of the Director of Legal Aid.

30.  While the jurisdictional issue is a matter that affects all parties to the proceedings in which the Fund Board has intervened and is a matter having a wide effect, the same arguments have been tested before the Court on more than one occasion and were all rejected.  The Fund Board decided not to take this issue on appeal in the other cases, including Hussain Kamran and Char King Por, although there might be other reasons for such decision and this Court will not speculate. It was decided in the present application that the test of reasonable prospect of success was not met in this proposed ground of appeal.  In the circumstances, I am not satisfied that leave to appeal should be granted under this limb. 

DISCRETION GROUND

31.  In exercising the discretion to award costs against the Fund Board, this Court has considered the role of the Fund Board in the proceedings[9] and came to the conclusion that the Fund Board joined in these proceedings to protect its interest and its potential liability at large.  Viewed within the context of this case, the Fund Board was not only exposed to the liability that Cheng might have.  As Yeung had not taken out any insurance policy in regard to the employment of Jiang, in the event that Yeung failed in these actions, the Fund Board could not wholly disassociate itself from it.

32.  This was evident from the Fund Board’s application to join in the proceedings.  The Fund Board, with legal advice, had applied for and obtained an order to join in as a party generally, enabling it to defend Cheng and Yeung. The Fund Board’s summons for joinder which was drafted by its legal representatives, asked to join in as a party generally.  The order for joinder granted accordingly was a general order to enable the Fund Board to safeguard its interest in the proceedings at large, covering the positions of both Cheng and Yeung.

33.  If the Fund Board’s only intention was to defend Cheng in this proceedings, the Fund Board should have reflected this intention in the terms of the order it sought in the joinder summons.  Quite the contrary, the Fund Board sought a general order to join in but not a specific and restricted order to defend only Cheng.  The conduct of the Fund Board prior to trial, including the pleadings, did not support the contention now made by the Fund Board that they only came in to defend the potential liability faced by Cheng.  

34.  This Court has also given considerations to the Fund Board’s conduct at trial and allowed the Fund Board to recover its costs (including those to be paid to Jiang) from Yeung and/or Up Cheer (as the case may be).

35.  The exercise of discretion shall be premised on the evaluation and consideration of all the matters before the Court but not the fragmented approach as the Fund Board has adopted in its attack on the exercise of discretion and its reliance solely on the affirmations in support of the joinder application, without viewing the entire conduct in context.

36.  The Fund Board’s application for leave to appeal under the Discretion Ground in both the EC Action and PI Action is dismissed.

CONCLUSION

37.  The Fund Board’s applications for leave to appeal in both actions are dismissed with costs order nisi that the costs of this application with certificate for counsel be paid by the Fund Board to Jiang.  Jiang’s own costs be taxed in accordance with the Legal Aid Regulations.  This costs order nisi shall become absolute unless there is an application to vary the same within 14 days from this decision.

38.  I thank counsel for both sides for their assistance in this application.

DCPI 2047/2011

DCPI 2047/2011 & DCEC 1267/2010

(Heard Together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2047 OF 2011

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1267 OF 2010

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(HEARD TOGETHER)

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REASONS FOR DECISION

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INTRODUCTION

1.  At the hearing, I varied the costs orders nisi made in the judgment handed down on 5 February 2016 (“Judgment”).  I now give the reasons. In this decision, I adopt the abbreviations used in the Judgment.

2.  By the Judgment, I ruled in favour of Jiang against Yeung in the EC Action and against both Up Cheer and Yeung in the PI action.  The claims against Cheng (in both actions) and against Up Cheer (in the EC Action) were dismissed. 

3.  I also made orders nisi that the costs of Jiang and the Fund Board in the PI Action be paid by Up Cheer and Yeung, Jiang’s costs in the EC Action be paid by Yeung, the Fund Board’s costs in the EC Action be paid by Jiang and Yeung and there is no order as to Up Cheer’s costs in the EC Action.

4.  The costs orders nisi were made on the basis of the well-established principle of costs generally follow the event, except in respect of Up Cheer’s costs in the EC Action, which I have explained in the Judgment.

5.  Jiang applied to vary the costs orders nisi to:-

(1)  “the costs of the Applicant (Jiang) in the EC Action be paid jointly and severally by the 1^st Respondent (Yeung) and the 5^th Respondent (the Fund Board) and that the costs of the Fund Board in the EC Action (including the costs to be paid by the Fund Board in the EC Action , if any) be paid by Yeung.” and

(2)  “the costs of the Plaintiff (Jiang) in the PI Action be paid by the 1^st Defendant (Up Cheer), the 2^nd Defendant (Yeung) and the 4^th Defendant (the Fund Board) (including the costs to be paid by the Fund Board to Jiang in the PI Action, if any) be paid by Up Cheer and Yeung jointly and severally.”

6.  There are two aspects in Jiang’s applications for variation.  Jiang was asking that:-

(1)  the Fund Board be jointly and severally liable with Yeung in the EC Action, and with Yeung and Up Cheer in the PI Action to pay Jiang’s costs, coupled with the Fund Board’s right to recover the costs so paid to Jiang from Yeung and Up Cheer respectively (as the case may be); and

(2)  the costs of the Fund Board in the EC Action be paid by Yeung solely.

7.  I was informed by Jiang that Yeung and Up Cheer have not made any payment as ordered in the Judgment.  Shortly after the Judgment, Up Cheer has taken out a second mortgage over the House to secure the indebtedness of a company named Speed Sourcing Group (Far East) Limited.  According to the annual return of Speed Sourcing made up to 4 March 2015, its total amount of indebtedness registered with the Companies Registry was HK$103,255,070.

THE LEGAL PRINCIPLES

Relevant Statutory Provisions on Costs

8.  The court has a wide and unfettered discretion on the decision of costs.  Section 53(1) of the District Court Ordinance provides that:-

“The costs of and incidental to all proceedings in the Court … are in the discretion of the Court, and the Court has the full power to determine by whom and to what extent the costs are to be paid.”

9.  The powers and discretion of the court as to costs under section 53 shall be exercised subject to and in accordance with Order 62 of the Rules of District Court (See Order 62 rule 2).  The discretion shall be exercised judicially.

10.  The relevant factors in Order 62 rule 5 that this court shall take into account are:-

“(aa) the underlying objectives set out in Order 1A, rule 1;

…

(e) the conduct of all the parties;

(f)  whether a party has succeeded on part of his case, even if he has not been wholly successful”

11.  The conduct of the parties include:-

“(a)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b)  the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c)  whether a claimant who has succeeded in his claim, in whole or in party, exaggerated his claim; and

(d)  conduct before, as well as during, the proceedings.”

  (Order 62 rule 5(2))

The Fund Board

12.  It is relevant to note the special features and legal principles in respect of the Fund Board’s involvement in the proceedings. Section 25A of the Employees Compensation Assistance Ordinance (“ECAO”) Cap. 365 provides three different scenarios in which the Fund Board may apply to be joined in the proceedings commenced to claim employee compensation and damages at employment related injury.

13.  Section 25A(a) covers the situation where there is no policy of insurance, and where the employer is not present within the meaning of one of the following:-

“(i)    the employer cannot be identified or, if identified, cannot be found;

(ii)   the employer is insolvent;

(iii)  the employer is dead or has been dissolved, wound up or struck off from register;

(iv)  the employer, for any reason, cannot be served with the notice of proceedings; or

(v)   at any time when the employer fails to attend the hearing, leaving the claim uncontested.”

14.  Section 25A(b) covers the situation where there is no policy of insurance and the employer is present at the proceedings. Section 25A(c) deals with the situation where the insurer concerned is insolvent.

15.  If the Fund Board applies to join in a set of proceedings under section 25A(a), the statutory provisions expressly require the Fund Board to “take over the defence as if it were the employer in the proceedings”, which “mean something over and above what a normal intervener would do … similar (but not entirely identical) to the situation where an insurer takes over from the insured the defence of a claim made against the insured” (Tu Zhiqiang v Hap Sang Co (a firm) [2012] 1 HKLRD 1075 at paragraph 39)

16.  The Fund Board, if joins in under section 25A(b) and (c), is not required to “take over the defence as if it were the employer”.  The Fund Board, under these subsections, would join in as an intervener.  “A normal intervener … does not ‘take over’ anybody’s defence.  He just joins in to contest the claim in whatever way that suits his interest.”  (Tu Zhiqiang, supra, paragraph 39)

17.  Another feature of ECAO is the provisions of section 16 and section 20A.  Under section 16, a person who is unable to recover from the employer payment of an amount of the employee compensation can seek payment of that amount from the Fund Board.  There are certain requirements to fulfil before the employee can seek payment from the Fund Board under this section.  In gist, it requires that the employee shall have taken proceedings to recover the compensation from the employer, the principal contractor and the insurer (where applicable), in the manner as are reasonable in the circumstances and having regard to the likely cost of such proceedings, the resource available and the amount likely to be recovered from such proceedings.

18.  Section 20A is similar to section 16 but it deals with the relief payment for an amount of damages payable pursuant to a judgment or an order.

19.  Section 20B(3) provides that in determining the amount of a relief payment, interest and costs arising from proceedings in respect of any damages or compensation claim are excluded. 

20.  If the Fund Board joined in an action, took an adversarial role in defending the position of an employer and failed, it would face an adverse cost order.  The usual order is to award costs against the Fund Board and the unsuccessful employer on a joint and several basis.

21.  There is nothing in the statutory provisions governing the Fund Board that impacted on the court’s discretion to award costs.  (Kwan Kam Pui v Fung Man & ors [2014] 6 HKC 361)

22.  In light of the statutory power of subrogation, a costs order against the Fund Board in this situation will unlikely cause any unfairness or prejudice.  (Wong Kai Fun v Sun On Logistics Limited and another, DCEC 5/2013, unreported, 20 May 2015)

23.  For completeness, I also refer to other cases cited by Mr Chan to support his contention that the Fund Board and the unsuccessful employer shall be jointly and severally liable to pay the successful employee’s costs.  These cases are Wong Kai Fun v Sun On Logistics Limited & Employees Compensation Assistance Board, supra, the dicta in Chi Yuk Pui v Grace Mind Corp Ltd [2015] 3 HKLRD 271, Chan Ngan Fat v Lee King Heng & Employees Compensation Assistance Fund Board DCEC 1382/2013, unreported, 7 October 2015, Hussain Kamran v Khan, Amar formerly trading as Three Star Recycling Co (a firm) & Employees Compensation Assistant Fund Board HCPI 953/2012, unreported, 13 November 2014 and Lai Wing Shun (by his next friend) v Shun Shing Decoration Company Limited & Employees Compensation Assistance Fund Board, DCEC 1918/2014, unreported, 22 February 2016.

24.  The factual matrix of these decisions however differs from the present case.  In the cases Wong Kai Fun, Chi Yuk Pui, Hussain Kamran, and Lai Wing Shun, the defendant employer did not appear at trial or did not file a notice of intention to defend.  The Fund Board applied to join in these proceedings, stepped into the shoes of these absent employers and defended their cases.  In the case of Chan Ngan Fat, the defendant employer has not purchased insurance.  Although the defendant employer has appeared in the proceedings, the Fund Board joined in, took the same position of the defendant employer in disputing the liability and quantum.  In each of these cases, the Fund Board took an active role in defending the defendant employer who has lost in the action.  It follows that the Fund Board should also be ordered to pay the costs of the successful employee in those cases.

WHETHER THE FUND BOARD SHALL BE ORDERED TO PAY THE COSTS OF JIANG

25.  In the present case, there were two alleged employers, Yeung and Cheng.  Jiang successfully proved his case against Yeung, but failed against Cheng.  Yeung has entered appearance in both actions and was legally represented.  Cheng did not appear in the proceedings despite service and substituted service of the proceedings.

26.  On considering the starting position: costs follow the events, the immediate question is the role of the Fund Board in the present proceedings. Whether the Fund Board joined in only to contest the case of Cheng (which was successful) but not the case of Yeung (which was unsuccessful), or the Fund Board joined in to protect its interest at large, covering the potential liability in the cases of both Cheng and Yeung.  It is noted that Jiang was an illegal worker and there was no policy of insurance in force.  Even though Yeung was represented in the hearing, the Fund Board would still have the possible risk of being required to make relief payment if Yeung failed.

27.  The Fund Board’s applications to join in both sets of proceedings were made under section 25A(b) which covers the situation where the employer was present.  The word “present” in section 25A(b) does not cover situation where an employer has been named in the proceedings as a respondent but has not yet been successfully served.  (Tu Zhiqiang, supra, paragraph 35)  When the Fund Board made the joinder applications, it has Yeung in its mind as Cheng was absent. 

28.  The affidavits in support of the joinder applications referred to both Yeung and Cheng.  It also specifically stated that given the fact that there was no insurance policy in force and Cheng has not entered appearance, if judgment was entered against Cheng, the Fund Board would face potential application from Jiang for payment under section 16 of ECAO.  While it may appear from the affidavits that the applications were made to enable the Fund Board to defend Cheng’s case, the applications and the orders granted were not limited to the defence of Cheng’s case. It was a general order allowing the Fund Board to join in the proceedings to safeguard its interests.

29.  The pleadings filed by the Fund Board in both actions were not confined to defending Cheng’s liability.  The Fund Board did take a position of non-admission in respect of the case against Yeung.  By the non-admission, the Fund Board has required Jiang to a strict proof of his case against both Yeung and Cheng.  As mentioned above, insofar as Yeung’s case was concerned, there was no insurance policy in force, the Fund Board was facing the risk of having to make the relief payment under sections 16 and 20A of the ECAO.  The Fund Board acted to protect its interest in the pleadings.  In the event that Yeung failed, the Fund Board could not wholly disassociate itself from it.

30.  In regard to the conduct at trial, Mr Lim has fairly and wisely confined his case at trial to defending the claim against Cheng and has successfully demonstrated that Cheng was not the employer of Jiang. 

31.  As rightly pointed out by Mr Chan, in the exercise of discretion on the decision of costs, the court shall have regard to the conduct before and during the proceedings.  The court could not only look at the conduct at trial, but should also consider the conduct before the trial, the basis on which the joinder applications was made and the pleadings filed by the Fund Board.

32.  Taking into account the entire circumstances, it can fairly be said that at least before the trial, the Fund Board has not limited its case to only defending the claims against Cheng.

33.  I exercised my discretion and varied the costs order to the effect that the Fund Board shall be jointly and severally liable for Jiang’s costs in both actions and the Fund Board has the right to recover the same from Yeung and Up Cheer (as the case may be).

THE FUND BOARD’S COSTS IN THE EC ACTION

34.  One of the factors to consider in the exercise of discretion on the decision of costs where there are more than one defendant is whether it is reasonable and proper for the plaintiff to join both defendants in the action.  (Besterman v British Motor Cab Company Limited [1914] 3 KB 181) 

35.  It is also recognized that the plaintiffs could reasonably have felt doubts and uncertainties as to what would transpire at the hearing and commenced and maintained the proceedings against both defendants.  (Leung Li Ha and another v Hon Sau Ling and another [1993] 1 HKLRD 86)

36.  Bullock order and Sanderson order are options to be considered in situations where there are both successful and unsuccessful defendants. In King v Zurich Insurance Company Limited [2002] EWCA Civ 598, Lord Justice Keene has stated that:-

“The judge had to deal here with a not uncommon situation where a claimant was unsure which of the defendants would be held liable for his injury and where – in the event – he succeeded against one but failed against the other. In the days before the Civil Justice Rules came into effect this situation would often be met by a Bullock order (See Bullock v The London General Omnibus Company [1907] 1 KB 264) ordering the plaintiff to pay the successful defendant’s costs but ordering the unsuccessful defendant to pay those costs over the plaintiff. In cases where a plaintiff was legally aided the order would often be a Sanderson order (see Sanderson v Blyth Theatre Company [1903] 1 KB 533) whereby the unsuccessful defendant was ordered to pay the costs of the successful defendant directly. These decisions reflected the approach of the courts, namely that where a plaintiff had behaved reasonably in suing both defendants he should not normally end up paying cost to either party even though he succeeded only against one of the defendants.”

37.  In Michael Irvine v Commissioner of Police for Metropolis and others, [2005] EWCA Civ 129 at paragraph 22, the English Court of Appeal considered that the jurisdiction to make a Bullock or a Sanderson order is useful and is:-

“designed to avoid the injustice that when a claimant does not know which of the two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognized that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant’s costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed.”

38.  The Court of Appeal in Chong Ngan Seng v China Harbour Engineering Company Limited, CACV 54/2012, unreported, 25 September 2013 has cited the following passage in the Hong Kong Civil Procedure paragraph 62/1/6:-

“A trial judge was entitled, without infringing the requirement that costs should generally follow the event to make a Sanderson order rather than a Bullock order where the judgment was given against a co-defendant who was insolvent; because a Sanderson order would spread the hardship caused by the co-defendant’s insolvency and consequent inability to meet the costs more fairly between the plaintiff and the other defendant, both of whom were innocent parties, than would a Bullock order. The choice between a Bullock order and a Sanderson order in such circumstances was a matter for the judge’s discretion.”

39.  Mr Chan submitted that on the determination of costs, the court is not limited to choose between a Bullock order and a Sanderson order.  I agree.  The court has a wide discretion and shall decide the appropriate costs order having regard to the facts and features in each case.

40.  With these principles in mind, I accept that it was reasonable and proper for Jiang to commence the EC Action against both Cheng and Yeung.  Given the state of evidence before trial, Jiang could have reasonable doubt on the true identity of his employer, in particular when the authenticity of the alleged Contract between Hon Hing and Up Cheer was in doubt. 

41.  Ms Kwok, representing Up Cheer and Yeung, has no objection to a variation of the costs order to the effect that the Fund Board’s costs in the EC Action be paid by Yeung solely.

CONCLUSION

42.  The costs order nisi in both actions were varied to be in terms of paragraph 1 of Jiang’s Summonses.  I also ordered that the execution on the costs orders against the Fund Board be stayed for three months from the date of the order, during that period Jiang shall proceed with diligence to recover costs against Yeung and Up Cheer.

DCPI 2047/2011

DCEC 1267/2010

DCPI 2047/2011
DCEC 1267/2010
(Heard Together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2047 OF 2011

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1267 OF 2010

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JUDGMENT

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INTRODUCTION

1. Jiang Zhong (“Jiang”) is a Mainland national.  In 2008, he visited Hong Kong on a two-way permit.  It was a condition of his stay that he was not permitted to undertake any employment in Hong Kong.  Despite the prohibition, he was employed as a construction worker and had worked in a house at the Giverny, Lot no. 1184 in DD 217, Sai Kung, New Territories, Hong Kong (“the House”) on the demolition of a swimming pool at the backyard of the House (“Swimming Pool”).  The House was owned by Up Cheer Limited (“Up Cheer”). 

2. On 24 October 2008, while Jiang was working in the House, he was injured in an accident (“the Accident”).

3. Jiang commenced a personal injuries action (“PI Action”) against Up Cheer, Yeung Chun Leung who was then trading as Dream Home Workshop (“Yeung”) and Cheng Kwok Wei trading as Hon Hing Engineering Company (“Cheng”) for negligence, breach of common law duty of care and breach of statutory duties.

4. Jiang also took out an employees’ compensation application (“EC Action”) against Up Cheer, Yeung, Cheng and Kwok Man Lung (“Kwok”).  The claim against Kwok was discontinued.  At the end of the trial, Jiang confirmed through counsel that he did not press his case against Up Cheer in the EC Action.

5. The employment undertaken by Jiang was a breach of his condition of stay and was therefore illegal.  There was no insurance coverage on the injuries sustained during his employment.  The Employees Compensation Assistance Fund Board (“Fund Board”) applied and was granted leave to join in both the PI Action and the EC Action as intervener. 

6. The PI Action and the EC Action were heard together.

7. Cheng, who was sued in both actions, did not appear despite service and subsequent substituted service of the proceedings by way of newspaper advertisements.

8. In the EC Action, this court shall decide whether or not discretion shall be exercised in favour of Jiang under section 2 of the Employees’ Compensation Ordinance, Cap. 282 (“ECO”). There was also a heated dispute among the parties on the identity of Jiang’s employer, which is an issue relevant to both the EC Action and the PI Action.  The liability of Up Cheer under the Occupiers’ Liability Ordinance, Cap. 314 is also contested. 

BACKGROUND FACTS

9. Wendy Chan is the sole shareholder and director of Up Cheer, the owner of the House.  She lived in the House together with her family.

10. Yeung is the brother-in-law of Wendy Chan.  He was the owner of Dream Home Workshop carrying on the business of indoor decoration and construction work.

11. Kwok, who was also called “Fei Lung”, was Yeung’s employee and worked as the foreman in the site of the Swimming Pool.  According to Yeung, he subcontracted to Kwok the debris clearing works on the demolition of the Swimming Pool.

12. Cheng was the owner of Hon Hing Engineering Company carrying on the business of electrical and decoration engineering work.  Cheng has not appeared in these proceedings.

13. After Wendy Chan bought the House, she wanted to demolish the Swimming Pool and engaged contractors to do the works.  Wendy Chan said in court that the demolition works were undertaken by two independent contractors, Yeung who undertook the coring and concrete waste disposal works; and Cheng who undertook the bursting work.  There was a conflict of evidence on the engagement of Cheng, which I will deal with below.

14. Jiang first worked in the House on 18 September 2008.  On that date, he went to a working site inside an industrial building with one of his friends, Ah Ming.  They met a man called Ah Chiu who asked them to wait in the site for the arrangement of works.  About an hour later, a man called Ah Loi came to pick up Ah Ming and Jiang.  The two of them were arranged to get in a car driven by Ah Loi.  On the way, Ah Loi asked Jiang and Ah Ming to move to another car driven by Yeung.  Yeung drove them to the House, followed by Ah Loi’s car.  When Jiang and Ah Ming arrived at the House, they started to work there. 

15. Jiang worked in the other unrelated sites between 19 and 22 September 2008.  On 23 September 2008, Jiang was asked to work in the House again.  Since then, he worked almost every day in the House until the date of the Accident, save for a few days when he worked in the other sites or was on holiday.

16. Jiang said in court that he saw Yeung, Kwok and a Mr Chan (“Mr Chan”) almost every day when he worked in the House.  Kwok was the site foreman.  Kwok, Yeung and Mr Chan had given working instructions to Jiang and other workers at the Swimming Pool.  The workers were not divided into different groups.  At the end of every working day, Kwok informed Jiang if he was required to work at the House on the following day.

17. Jiang did not know and has not heard of any person known as Cheng Kwok Wei or a contractor known as Hon Hing Engineering Company when he was working in the House.

18. He had been instructed to do different tasks in the House including coring holes, bursting stones and walls, cleaning mud and debris and handling waste materials of heavy weight.  To carry out his work, he had to use heavy equipment such as electric drill and hammering tools.

19. Jiang and other workers were provided with lunch and afternoon tea in the House.  Mr Chan helped workers to obtain the mouth protective mask, working eye glasses and working gloves.  The drilling, coring and other machines used at the Swimming Pool by Jiang were provided by Kwok, Yeung and Mr Chan.  Jiang was not provided with safety shoes.

20. Jiang received wages twice.  The first time from Ah Chiu in the sum of HK$1,000.  The second time from Ah Loi in the sum of HK$2,000.  

21. The Accident happened in the afternoon of 24 October 2008.  Jiang was assigned to carry out the coring holes procedure on a concrete wall of the Swimming Pool.  While he was using a coring machine to core holes, a concrete slab of the other side of the wall suddenly collapsed.  The detached concrete slab fell on Jiang’s right foot and crushed his foot.  At the time of the Accident, Yeung and Wendy Chan were not in the House.

22. Immediately after the Accident, Jiang was sent to the hospital.  There was no dispute that Jiang sustained injury while he was working in the House. The dispute was who should be responsible for it.

WITNESSES

23. Jiang testified in court for his own case.  Wendy Chan and Yeung testified for Up Cheer and Yeung respectively.

THE ILLEGAL EMPLOYMENT

24. The illegal employment of Jiang raised a primary issue in the EC Action as to whether Jiang is entitled to compensation under the Employees’ Compensation Ordinance, Cap 282 (“ECO”).

25. Section 2(2) of the ECO provides that:-

“If, in any proceedings for the recovery of compensation under this Ordinance, it appears to the Court that the contract of service … under which the injured person was working, at the time when the accident causing injury happened, was illegal, the Court may, if having regard to all the circumstances of the case it thinks proper so to do, deal with the matter as if the injured person had at the time aforesaid been a person working under a valid contract of service …”

26. Section 2(2) of the ECO confers a discretion on the court to treat a person employed under an illegal contract as if he was employed under a valid contract of service.

27. In exercising the discretion, the court shall examine all the relevant circumstances. As held by the Court of Appeal in Yu Nongxian v Ng Ka Wing [2007] 4 HKC 551, followed by Chen Xiu Mei v Li Siu Wo [2007] 5 HKC 516, there is strong public policy reason to exercise the discretion in favour of the injured person in such situation.  It is not conducive to stop illegal employment if the employers are allowed to escape from liability for compensation to illegal employees for injuries sustained during employment.

28. The employment of Jiang was illegal because it was a breach of Jiang’s condition of stay in Hong Kong.  But for the fact that Jiang was not lawfully employable due to his visitor status, there was no special feature in the employment between Jiang and his employer.  The works that Jiang was employed to do were lawful.  The employer of Jiang ought to have known that Jiang, who could not produce his Hong Kong identity card, is not a Hong Kong resident.  The mere fact that Cheng, who was said to be an employer of Jiang, was not traceable should not be a reason for exercising the discretion against Jiang.

29. I am satisfied that the discretion under section 2(2) of the ECO should be exercised in favour of Jiang.  The claims in the EC Action would be dealt with as if Jiang had at the time of the Accident been a person working under a valid contract of service.

IDENTITY OF JIANG’S EMPLOYER(S)

30. The forefront issue on liability in both actions is to identify Jiang’s employer(s).

31. There was dispute as to whether Cheng and/or Yeung was Jiang’s employer. Jiang’s primary case was that both Cheng (through a person named Ah Loi) and Yeung were his immediate employers.  Alternatively, Jiang contended that Cheng (through Ah Loi) was Jiang’s immediate employer and Yeung was the principal contractor.  The Fund Board contended that Yeung was Jiang’s employer.  Up Cheer and Yeung denied that Yeung was Jiang’s employer.

32. There was no written employment contract.  Jiang was first asked by Ah Loi to work.  Later, at the end of each working day, Kwok informed Jiang as to whether he should go back to work in the House on the following day.  There was no evidence as to whether Ah Loi enlisted Jiang to work for his own or on behalf of others.  Jiang said that he has never seen Ah Loi working in the site.

Ah Loi

33. There was no evidence on the full name of Ah Loi.  In her witness statement, Wendy Chan said that to her knowledge Ah Loi was the person in charge of or the representative of Hon Hing Engineering Company, she did not know the full name of Ah Loi.  She, together with Yeung, have described Ah Loi and Cheng in their respective witness statements as if they are two separate individuals.

34. At court, they changed their evidence and said that Ah Loi and Cheng is the same person. 

35. Wendy Chan explained in court that she got the full name of Ah Loi from a one page contract (“the Contract”) on which Cheng has signed his name.  If that was true, Wendy Chan ought to have described Ah Loi and Cheng as the same person in her witness statement.  The Contract was annexed to her witness statement. This evidenced that Wendy Chan has full knowledge of the Contract when she prepared the witness statement.  I do not accept this explanation of Wendy Chan.  I am not satisfied that Ah Loi is Cheng, or works for Cheng. 

Was Cheng a contractor engaged by Up Cheer?

36. In court, Wendy Chan testified that she was introduced to Cheng by one of her previous renovation contractors.  She met Cheng once and agreed to engage Cheng to undertake the bursting works.  She produced the Contract to support the contractual arrangement with Cheng or Hon Hing Engineering Company.  She said that the Contract was drafted by Hon Hing Engineering Company and was brought to her office.  It was signed by a staff of Wendy Chan, but she did not remember who that staff was.

37. Jiang and the Fund Board suggested that the Contract was fabricated.

38. The Contract was dated 30 September 2008 and was written on the letterhead of Hon Hing Engineering Company.  There were two signatures on it. One of them was signed as Cheng Kwok Wei, apparently on behalf of Hon Hing Engineering Company.  The other signature was signed in such a style that one could not discern from it the identity of the person who signed it or on whose behalf the signature was made.

39. The body of the document stated that “現漢興工程 (鄭國偉) 承接溱喬33號屋之花園水池石屎清拆工程, 金額定為港幣十萬元正。金額內包括工人之勞保, 均由漢興工程承擔。”  Basically, it means that Hon Hing Engineering Company (Cheng Kwok Wei) undertook the works to demolish the concrete of the Swimming Pool in the House for a fixed sum of HK$100,000 inclusive of the employees’ insurance.

40. According to Wendy Chan, the Contract was the agreement between Cheng and Up Cheer (or Wendy Chan) for the demolition works and it was drafted by Cheng. Cheng and Wendy Chan did not know each other before.  It made no commercial sense that the Contract only stated the undertaking of works by Hon Hing Engineering Company, but made no mention at all of who engaged him and who would pay him the fee.

41. The works in the House started at least on 18 September 2008, the date when Jiang first worked there.  The Contract was, however, dated 30 September 2008.

42. Under the Contract, Cheng was to undertake the works to demolish the concrete of the Swimming Pool (水池石屎清拆工程). If it was the agreement (as Wendy Chan and Yeung now suggested) that Cheng was only responsible for the bursting works after Yeung completed the coring works, it defies common commercial sense that Cheng did not specify in the Contract that the scope of his work was limited to bursting works.

43. The evidence of Wendy Chan in court on the engagement of Cheng and the making of the Contract contradicted with the statements she made shortly after the Accident when she was interviewed by the Labour Department and the police respectively. 

44. In these interviews, Wendy Chan has not referred to any written contract with Hon Hing Engineering Company or Cheng. In the statement signed by Wendy Chan during her interview with the Labour Department on 30 October 2008, Wendy Chan said that in respect of the demolition works, she had only made oral agreements with Yeung and Ah Loi but not with any other person or company.  She also confirmed that there was no written agreement with Yeung and Ah Loi.  If Wendy Chan (through her staff) has actually signed the Contract with Cheng, there was no reason for her not to say so in the interview with the Labour Department shortly after the Accident.

45. On whether Ah Loi or Cheng was an independent contractor, Yeung’s evidence in court contradicted his previous statements made after the Accident. In court, Yeung said that Ah Loi was another contractor responsible for the bursting works.  He had met Ah Loi before the demolition works in order to coordinate the works between them.  These were contrary to the statements he made with the police and the Labour Department after the Accident which I highlighted below:-

(1)  In Yeung’s statement made on the date of the Accident when he was interviewed by the police, Yeung claimed that he was only responsible for drilling holes.  There was another contractor Kwok who was responsible for clearing debris.  There was no mention of the involvement of Ah Loi or Cheng as a contractor for the demolition works.  When he was asked whether Jiang might have been employed by Kwok, Yeung said that he believed not.  He did not make any suggestion that Jiang might have been employed by Ah Loi or Cheng.

(2)  On 26 October 2008, Yeung was interviewed by the police again and had made a statement under caution for suspected employment of illegal worker.  In this interview, Yeung said he had seen Ah Loi in the House but he did not know this person.  He did not know whether Ah Loi was a contractor.  He claimed for the first time that there was another contractor responsible for the bursting works but he did not say who this other contractor was, and he did not say that this contractor was or related to Ah Loi.

(3)  When Yeung was interviewed by the Labour Department on 3 November 2008, he claimed that he thought Jiang was Ah Loi’s employee.  He again claimed that he did not know Ah Loi and did not know his full name or telephone number. 

46. The statement made by Kwok when he was interviewed by the police on the date of the Accident was telling.  Kwok has clearly told the police that apart from himself, there was one other contractor Yeung, and nobody else.  Kwok was the foreman of Yeung and coordinated the work in the Swimming Pool.  If there was indeed another contractor dealing with the bursting works, Kwok must know and would certainly be expected to inform the police when he was interviewed.

47. Up Cheer and Yeung have not called Kwok to testify. Both Jiang and the Fund Board invited the court to draw adverse inference against Up Cheer and Yeung from their failure to call Kwok to give evidence in this case.

48. In Wisniewski v Central Manchester Health Authority [1998] PIQR 324, at 340, Lord Brooke LJ has set out the following principles:-

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

This was followed and applied by Recorder H Wong SC in Lai Cheong Ming v Cheng Chung Yu Eric trading as Hui Fung Metal Work Factory HCPI 504 of 2009, unreported, 7 January 2013 at paragraph 25.

49. In Lai Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at 443, the Court of Appeal quoted and applied the following passage of Newton and Norris JJ in O’Donnell v Reichard [1975] VR 916 at 929, which was cited in Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] 6 EG 146 at 148-149:-

“It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference then they may properly take it into account against the party in question for two purposes, namely:

   (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; ...”

50. In Prest v Petrodel Resources Ltd [2013] UKSC 34 at paragraph 44, Lord Sumption has stated that:-

“There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party’s failure to rebut it. For my part I would adopt, with a modification which I shall come to[101], the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v IRC, ex parte TC Coombs & Co [1991] 2 AC 283, 300:

‘In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.

Cf Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340.’ ”

51. The identity of Jiang’s employer and the question of whether or not Cheng or Ah Loi was another independent contractor engaged by Up Cheer or Wendy Chan were undoubtedly central issues of this case.  In view of Kwok’s unequivocal statement to the Labour Department, it is obvious that his evidence as to the existence of a third contractor (Cheng or Ah Loi) is crucial.  Kwok was Yeung’s employee and there was no suggestion that Kwok could not be located. Yeung explained that he has never thought of calling Kwok to give evidence.  I do not consider this an acceptable explanation.

52. The inference that this court could and would therefore draw from the failure to call Kwok to give evidence is that Kwok, if called would have given unfavourable evidence against Up Cheer and Yeung.

53. Cheng did not appear in the proceedings, thus there is no evidence from Cheng at all.  The evidence of Jiang in this regard was that he did not know Cheng.

54. Having considered all the evidence, I do not accept that there was sufficient evidence to prove that Cheng, whether by himself or through Ah Loi, was engaged as an independent contractor to undertake the bursting works at the House.  It follows that Cheng could not be the employer of Jiang.

Was Yeung the employer of Jiang ?

55. Up Cheer and Yeung contended that Yeung was not Jiang’s employer.  They challenged Jiang’s evidence by referring to (1) the statement given by Jiang to the police on 25 October 2008, the date after the Accident, in which Jiang said that he was employed by a person called Ah Loi (“有一個叫做阿來嘅男人請我做工”); and (2) the Notification of Accident (“Notification”) completed and filed by Jiang dated 20 January 2009 in which Jiang put the name “Mr Chan” on the box for the name of his employer.

56. Jiang explained that he was in the hospital when he made the police statement.  He had not yet undergone the surgery at that time and he was very painful.  He had to take medications during the interview to relieve the pain. He also said that the medications and the pain made him dizzy and he was not fully conscious.  He just wanted to finish the statement so that he could sleep.  He supported his contention by referring to the record in the statement that on the date before, the doctor has opined that the mental condition of Jiang was not suitable to give evidence or statement.  There was no permission given by the doctor to the police when they approached Jiang to give the statement on 25 October 2008.

57. Jiang explained that he was confused when he filled in the Notification. He received no assistance in the completion of the Notification.  He thought he has to fill in a name there, so he just put a name in instead of leaving it blank.

58. As fairly accepted by Mr Poon, Counsel for Up Cheer and Yeung, the contents in the Notification are not conclusive on employer’s liability although they are one of the facts that this court will consider.  The same applies to the statement made by Jiang to the police.

59. In evaluating the evidence, I also take into account the following:-

(1)  The background of Jiang.

(2)  There was no dispute that Jiang was an employee working in the House at the time of the Accident.

(3)  The circumstances in which he was employed.

(4)  The condition of Jiang when he made the statement with the police.

(5)  The lack of contention from any party that Mr Chan was Jiang’s employer.

(6)  The lack of sufficient evidence to prove that Ah Loi was the employer of Jiang.

(7)  The clear evidence that Kwok was not the employer of Jiang.

(8)  Apart from Kwok, Yeung was the only other contractor who undertook the demolition works in the House.

(9)  The mere fact that no charge was laid by the police against Yeung would not be a reason restraining this court from finding, if otherwise proved on balance of probabilities, that Yeung was the employer of Jiang.  The evidence available to the police at that time and the evidence available to this court might be different.  The standard of proof required in a criminal prosecution and the standard required in a civil case are different.  There might also be other reasons unknown to this court for not laying the charge against Yeung. This court shall not speculate one way or the other.

60. Having considered all the evidence, I find that Yeung was the employer of Jiang at the time of the Accident.

Duty of care owed by Yeung as the employer

61. An employer owes a duty of care to the employees to provide sufficient training, proper instructions and supervision and a safe system of work.  The nature of work is a factor that has to be considered in deciding whether a careful organization and supervision is required in the interests of employees’ safety or it can be left to the employee on the spot to do it reasonably safely. (See: Charlesworth & Percy on Negligence, 13^th ed, para 11-68; Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371).

62. The duty of employer is personal to him. He cannot be relieved from this responsibility by simply saying that the employees could equally have foreseen the risks associated with the unsafe system of work, and could have designed for themselves a safe system of work.  (Gurung Krishna Jang v Precious Swing Limited, unreported, HCPI 486 of 2009, 16 November 2010).

63. In Winter v Cardiff Rural District Council [1950] All ER 819, Lord Oaksey has held that:-

“In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. It is not easy to define these spheres, but where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foremen or workmen on the spot.”

(applied in Cheung Suk Wai v Attorney General [1966] 4 HKC 288 and Fong Yuet Ha v Success Employment Services Limited, unreported, CACV 100/2012, 28 December 2012)

64. The demolition works are hazardous in its nature.  It is common sense that the fall of concrete slab would cause personal injury and in serious case, can be fatal.  It is lucky that we are not dealing with a fatal case.  The coordination on the timing and sequence of the coring and bursting works, and the coordination between different tasks undertaken by the workers are crucial.  Sufficient training and supervision should be provided to employees. These are the duties of the employer.

65. It was Jiang’s testimony in court that he was using the machine to drill holes in one side of the wall of the Swimming Pool when the wall adjacent to it suddenly became detached and collapsed.  He was standing upright and on his left was a male worker operating another drilling machine.  During the process of coring holes, Jiang’s left foot was stepping on the narrow base slab while his right foot was on one end of a wooden plank, which was placed over a ladder scaffold behind him.  Jiang said that immediately before the Accident, he noticed that the male worker was using the bursting machine to demolish the wall that subsequently fell.  Jiang’s testimony in court on the happening of the Accident was largely the same as his report to the officer of the Labour Department who compiled the accident report (“Accident Report”).

66. The Labour Department officer stated in the Accident Report that his investigation revealed two different versions of Jiang’s work on the date of the Accident.  One of the versions was told by Jiang.  The other version was told by Yeung and Kwok who said that Jiang was responsible for breaking the concrete of the rear concrete wall.  They said that they had seen Jiang once using an electric concrete breaker in his hands to break the concrete of the rear concrete wall on the date of the Accident.  Kwok also reported to have confirmed that he saw no other workers except Jiang responsible for breaking the rear concrete wall on the date of the Accident.

67. It was Yeung’s own evidence that he was not at the scene when the Accident happened.  His evidence on how the Accident had happened or might have happened and what he told the Labour Department officer about his observation on the date of the Accident were of little value.

68. This court did not have the benefit of hearing Kwok’s evidence.  We have evidence that there were other workers (Ms Ma and Mrs Tsang) clearing debris on the site.  They were on the other side of the work area at the time of the Accident.  The wooden plank that got displaced during the collapse of the large reinforced concrete slab had slightly hit the heads of Ms Ma and Mrs Tsang and they sustained bruise injury of their heads.  We have also seen photos taken on the date of Accident showing a number of baskets of debris at the bottom of the Swimming Pool.  I agree with Mr Lim, counsel for the Fund Board, that it is unlikely that Jiang was the only worker who produced the amount of debris shown on the photo.

69. Further, no bursting machine was found on the photo.  If Jiang was using a bursting machine at the time of the Accident, the machine ought to have been shown on the photo.

70. It is clear that Yeung, as the employer, has not provided a safe system of works.  There was no training, no proper supervision and no proper coordination on the undertaking of different steps of the demolition.  There was no provision of sufficient protective equipment to the workers as well. Take for instance, Jiang was not provided with any protective shoes.  If he has been provided with one, the extent of his foot injury might have been much alleviated.

71. I find that Yeung was in breach of his duty of care as an employer and the breach caused the injury sustained by Jiang at the time of the Accident.

UP CHEER

72. Under common law and the Occupiers Liability Ordinance, an owner of a premises, as occupier, owes a duty to his visitors to take reasonable care to see that the visitors will be reasonably safe in using the premises for the purposes for which he is permitted to be there.  The duty is not an absolute duty.  The standard of care depends on all the circumstances of the case, including, for example, whether the visitor is injured by the negligence of an independent contractor employed by the occupier, the nature of work entrusted to the independent contractor and the terms of the contract.  (Section 3(2) of the Occupiers Liability Ordinance; Wan Tsz Lok v Hung Fai Electrical Engineering Limited, unreported, HCPI 1117 of 2004, 17 November 2008.)

73. The legal principles relevant to the occupiers’ liability where an independent contractor was engaged to do the works in the premises can be summarized as follows:-

(1)  An occupier is a person who has sufficient degree of control over the premises.  Exclusive occupation is not required.  (Wheat v E. Lacon & Co Ltd (1966) AC 552, per Lord Denning)

(2)  There can be two or more occupiers at the premises at the same time.

(3)  Where there are more than one occupier in a premises, each of them is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control.  (Wheat v E Lacon & Co Ltd, supra)

(4)  In the case of a construction site, an owner who employs an independent contractor to execute works on the construction site usually is still regarded as having sufficient control of the site as to put him under a duty towards all those who might lawfully be on the site.  (Wheat v E. Lacon & Co Ltd, supra, Wan Tsz Nok, supra)

(5)  In general, a person is not liable for the torts committed by his independent contractor, unless it was attributable to the negligence or other personal faults of the employer, or the circumstances are such that the law imposes a strict or absolute duty upon the employer which duty is not non-delegable.  These non-delegable is often not merely a duty to take care, but a duty to provide that care is taken, so there will be a breach if care is not taken.

(6)  An occupier does not avoid liability simply by engaging an independent contractor.  An occupier cannot turn round and say that it is the independent contractor’s responsibility and he has no responsibility at all. (Ting Kam Yuen, the administrator of the estate of Ho Lam, Deceased v The Hong Kong Buddhist Association, unreported, HCPI 1203 of 1996, 10 April 1999; Yeung Kam Fuk v Len Shing Constructions Co Ltd [1986] HKC 160)

(7)  A person who engages an independent contractor may be liable for his own negligence, for example in failing to take reasonable care to select a competent contractor.  Having engaged an independent contractor does not exclude the possibility of an occupier committing the tort of negligence himself (Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2010) 14 HKCFAR 14; Bottomley v Todmorden Cricket Club [2004] PIQR P275)

(8)  An occupier may be absolved from responsibility if it falls within the exception in Section 3(4)(b) of the Occupiers Liability Ordinance where damage is caused to a visitor by a danger due to the faulty execution of work of construction, maintenance or repair by an independent contractor employed by the occupier if the requirements under the subsection are fulfilled.

(9)  Section 3(4)(b) requires that in all the circumstances the occupier (i) had acted reasonably in entrusting the work to an independent contractor and (ii) had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.  It may be reasonable to delegate work of construction to an independent contractor.  However, that is not sufficient to bring the occupier within the exception.  The requirements in the subsection must be fulfilled.  (Cheng Oi Wah (Administratrix of the estate of Lam Lun Shui, deceased) v Cheng Yuk Koon, [1984] HKC 286, quoting AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028)

(10)   The words “without more” in section 3(4)(b) of the Occupiers Liability Ordinance connote the meaning that even if the employer has acted reasonably in entrusting the work to an independent contractor and had taken such step (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and the work was properly executed, he will still be answerable for the tort committed by his contractor or his contractor’s employees under some special or more aggravating circumstances, which include the employer’s conduct or the circumstances in relation to the nature of the work to be done by the independent contractor.  (Wan Tsz Nok, supra)

(11)   The burden of proving that the employer had so acted reasonably was on the employer.  Once the employer has discharged his burden, it is up to the injured person to show that the case falls outside the ‘without more’ circumstances, such that the employer is liable for the tort committed by the contractor despite he had taken reasonable care in the employment of the contractor. (Wan Tsz Nok, supra)

(12)   The four steps test suggested by the learned authors of Clerk & Lindsell on Torts, and adopted by Mr Justice Hunter in Yeung Kam Fuk v Len Shing Construction Co Ltd, supra are (i) has the occupier acted reasonably in entrusting the work to an independent contractor; (ii) has the occupier used reasonable care in selecting the contractor; (iii) has the occupier taken reasonable steps (if any are possible) to supervise the carrying out of the work; (iv) has the occupier used reasonable care to check (if possible) that the work has been done properly.  (Yeung Kam Fuk, supra; Wan Tsz Nok, supra)

74. I shall adopt the above principles and tests.

75. Up Cheer is the owner of the House, including the Swimming Pool.  The Swimming Pool is at the backyard of the House where Wendy Chan (the sole shareholder and director of Up Cheer) and her family members were living at the time when the Swimming Pool was in the course of being demolished.  The contractors and the workers have to enter the main gate where the management officers would check the people in and out.  There are also evidence of interactions between the workers and the people in the House.  Take for instance, the Filipino maids in the House have arranged afternoon tea for the workers, including Jiang.  Jiang could see who was in the House.  Although Up Cheer through Wendy Chan might not have active participation in the actual conduct of the works at the Swimming Pool, obviously Up Cheer (through Wendy Chan) has control over the access to the Swimming Pool.

76. Wendy Chan said that she did not go to the site at the time of the Accident.  She also claimed that she did not have control over the access to the Swimming Pool when the demolition were contracted out to independent contractors.

77. Wendy Chan might have chosen not to go to the site during the demolition. That is not the same as not having access and could not go there.  There is no evidence that Wendy Chan, her family members or any one authorized by Up Cheer to live in the House were prohibited from going to the Swimming Pool.  I do not accept Wendy Chan’s evidence that she or Up Cheer has no control over the Swimming Pool when the construction was in progress.  I am satisfied that Up Cheer was an occupier of the site.

78. Moving to the four steps test.  First, has Up Cheer acted reasonably in entrusting work to an independent contractor?  I am of the view that it is reasonable for Up Cheer to entrust an independent contractor to carry out the demolition.

79. Second, has Up Cheer used reasonable care in selecting the contractor? I have already decided that the only contractor engaged by Up Cheer directly was Yeung.  Yeung admitted that he has no experience in the demolition works.  He was not a registered general contractor to carry out demolition works.  He only learnt how to use the coring machines from the shopkeeper when he first bought the machines for this project, which was the very first project he undertook to carry out coring works.  He trained his workers, Ng and Wong to use the coring machines after he has practiced the use of the machine for 3 hours.  There was no evidence of any safety measures set up in the site.  Up Cheer has clearly not taken any reasonable care in selecting Yeung as the contractor, who only learnt how to do the job when he got it.

80. Third, has Up Cheer taken reasonable steps (if possible) to supervise the carrying out of the work?  Wendy Chan repeatedly said in her evidence that she did not concern herself with the works or its progress.  She has done nothing to supervise the carrying out of the work.  Wendy Chan said she has no means nor knowledge to supervise the progress and safety of the works.  She might not have the knowledge to do so.  However she has the means to supervise, for example, she could have asked for professional advice, she could have enquired with Yeung before she engaged him so as to satisfy herself that the demolition work would be properly and safely done.  However, she has done nothing.

81. Fourth, has Up Cheer used reasonable care to check (if possible) that the work has been done properly?  On the evidence of Wendy Chan, she has not done anything to check the work.  The answer must be no.

82. Up Cheer has not taken such steps as it reasonably ought in order to satisfy itself that the contractor was competent and that the work had been properly done. Even if it is reasonable for Up Cheer to entrust the works to an independent contractor, Up Cheer cannot escape the liability.

83. The next defence raised by Up Cheer was that Jiang was the employee of an independent contractor and therefore should not be considered as a ‘visitor’ vis-à-vis Up Cheer.  The case of Ma Kam Yeung v Fu Hay Kin [1998] 2 HKLRD 615 was cited in support.  The plaintiff in the Ma case was a carpenter employed by an independent contractor to carry out renovation works at the 1^st defendant’s house.  The plaintiff was injured by a cutting saw while he was working in the house.  Deputy Judge Gill held that the injury was not sustained as a result of the condition of the house or equipment provided by the owner, but because of the activity conducted.  The owner is an average householder who has no special knowledge or capacity to ensure the safety of the employee of an independent contractor and should not be held liable.

84. The Ma case was decided before the Court of Final Appeal decision in Luen Hing Fat, supra.  The decisions of Ting Kam Yuen and YeungKam Fuk referred to above were not cited to the court in that case. 

85. The decision in the Ma case was at odds with the House of Lords decision in Ferguson v Welsh [1987] 1 WLR 1553 (which was not cited in the Ma case).  In Ferguson, a district council engaged a principal contractor, Mr Spence, to carry out the demolition work. The contract expressly prohibited sub-contracting without the consent of the district council.  Nonetheless, the principal contractor has sub-contracted the work to Welsh brothers without seeking the council’s consent.  The employee of the sub-contractor, Mr Ferguson, was injured while working in the site.  The House of Lord held that the employee was a visitor vis-à-vis the district council. At page 1559C to F, Lord Keith held that :-

“So the first matter for consideration is whether in relation to the council, Mr Ferguson was their visitor. … by putting Mr Spence [the principal contractor] into occupation of the building for purposes of demolition the council had clothed him with apparent or ostensible authority to invite other persons onto the premises, including sub-contractors and their employees. Such persons would know nothing of the limitation on Mr Spence’s actual authority, and were not reasonably to be treated as trespassers in a question with the council. In my opinion, there is evidence capable of establishing that Mr Spence had ostensible authority from the council to invite the Welsh brothers [the sub-contractor] and their employees onto to site. Mr Spence was placed in control of the site for demolition purposes, and to one who had no knowledge of the council’s policy of prohibiting sub-contracts this would indicate that he was entitled to invite whomsoever he pleased onto the site for the purpose of carrying out demolition.”

86. On this issue, Lord Goff held at page 1563B as follows:-

“Whether he is so [a lawful visitor] or not must, in my opinion, depend upon the question whether the occupier who authorized him to enter had authority, actual (express or implied) or ostensible, from the other occupier to allow the third party onto the land. If he had, then the third party will be, vis-à-vis that other occupier, a lawful visitor; if he had not, then the third party will be, vis-à-vis that other occupier, a trespasser. No doubt, in the ordinary circumstances of life, the occupier who allows the third party to come onto the land will frequently have implied or ostensible authority so to do on behalf of the other occupier – as will, I think, usually be the case when the first occupier is a builder, in occupation of a building site with the authority of the building owner, who authorises a servant or independent to come onto the site.” (emphasis added)

87. I do not consider the Ma case has laid down a general proposition that the employee of an independent contractor engaged by an average household owner of a property must be a stranger to the owner. The correct approach in my view is, as held in the Ferguson case, whether there was actual or ostensible authority from the owner to allow the employee to come onto the land.

88. Jiang stood in a stronger position than Mr Ferguson.  In the present case, there was no prohibition from sub-contracting and Jiang was not an employee or invitee of a sub-contractor in any event.  Yeung must have the authority, actual or apparent, from Up Cheer to allow workers to come onto the site to carry out the demolition.  Jiang was not a stranger or trespasser in relation to Up Cheer. Jiang was a lawful visitor vis-à-vis Up Cheer. 

89. In Ferguson, Lord Keith construed the equivalent of section 3(4)(b) of the Occupiers’ Liability Ordinance as follows:-

“The enactment is designed to afford some protection from liability to an occupier who has engaged an independent contractor who has executed the work in a faulty manner. It is to be observed that it does specifically refer to demolition, but a broad and purposive interpretation may properly lead to the conclusion that demolition is embraced by the word ‘construction’. Further the pluperfect tense employed in the last words of the paragraph, ‘the work had been properly done’, might suggest that there is in contemplation only the situation where the work has been completed, but has been done in such a way that there exists a danger related to the state of the premises. That would, however, in my opinion, be an unduly strict construction, and there is no good reason for narrowing the protection afforded so as not to cover liability from dangers created by a negligent act or omission by the contractor in the course of his work on the premises. It cannot have been intended not to cover, for example, dangers to visitors from falling masonry or other objects brought about by the negligence of the contractor. It may be therefore inferred that an occupier might, in certain circumstances, be liable for something done or omitted to be done on his premises by an independent contractor if he did not take reasonable steps to satisfy himself that the contractor was competent and that the work was being properly done.”

90. The House of Lord in the Ferguson clearly recognized that an occupier shall take reasonable care to select a competent contractor and be satisfied that the work was being properly done. Lord Keith said at 1560G-H:-

“It may therefore be inferred that an occupier might, in certain circumstances, be liable for something done or omitted to be done on his premises by an independent contractor if he did not take reasonable steps to satisfy himself that the contractor was competent and that the work was being properly done.

  It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor’s activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe.”

91. The above passage was quoted and followed by the English court of appeal in Bottomley v Todmorden Cricket Club [2004] PIQR P18, where it was held that the owner of the premises was liable for the injuries suffered by a volunteer who assisted the stunt team engaged by the owner in carrying out a pyrotechnic display at the owner’s premises at its fund raising event.  Broke LJ said:-

“The injury suffered by Mr Bottomley were foreseeable if there was no proper safety plan: there was the requisite proximity between the club and Mr Bottomley, who was lawfully on the premises that evening, and it is fair, just and reasonable to impose liability on the club because it did not do what it ought to have done before it allowed this dangerous event to take place on its land.”

92. The injury suffered by Jiang was caused by the collapse of the adjacent wall.  The Accident could be avoided if there was a safe system of work, or proper supervision.

93. Up Cheer was under a duty to take reasonable care to select a competent contractor.  As I have held, Up Cheer has failed to do so, it shall therefore be liable.

94. Yeung as the principal contractor who has control over the site was an occupier. Yeung is also liable to Jiang under the Occupiers’ Liability Ordinance.

95. In summary, Yeung is liable as employer in the EC Action, and both Up Cheer and Yeung are liable in the PI Action.

Contributory Negligence

96. By reason of my finding on how the Accident had happened, I am satisfied that there is no issue of contributory negligence.

QUANTUM

97. At the time of the Accident, Jiang was 40 years old and he worked illegally in Hong Kong as construction site worker for about 1 month.

98. He sustained right shoulder, right arm and right foot injury and was admitted to hospital for treatment after the Accident.  Open reduction and internal fixation of fracture dislocation was performed on his foot on 3 November 2008.  Post-operation was uneventful and he was discharged from hospital on 7 November 2008.

99. He was then imprisoned for 1 week for his breach of condition of stay and thereafter was transferred back to the Mainland.  He did not work since then.  He was admitted to hospital in the Mainland, and has received herbal treatment and physiotherapy for 1 month.  He did not receive any herbal treatment since October 2010.  He could walk unaided in 2010.

100. Medical experts, Dr Fu and Dr Yen, confirmed in the joint medical report dated 21 February 2012 that the fracture of the 2^nd to 4^th metatarsal base of right foot with Lisfranc dislocation were the result of the Accident.  There is no evidence of pre-existing pathology.  Jiang’s right shoulder and forearm injury was diagnosed to be superficial laceration, and was also considered as resulted from the Accident.  The back pain and right knee pain was opined to be unrelated to the Accident.  The doctors further opined that he should have a surgery for the removal of wires implanted in his right foot, and undergo 3 months intensive physiotherapy thereafter.

101. As to Jiang’s working capacity, both doctors were of the view that Jiang cannot resume work as constructive site worker, but he can do other works that do not require much walking and climbing.

102. There are a few general issues that I shall deal with before I come to the quantum of damages.

Appeal on the Assessment by the Assessment Board

103. I will first deal with Jiang’s appeal against the assessment of the Employees’ Compensation (Ordinary Assessment) Board (“Assessment Board”) over Jiang’s total impairment and loss of earning capacity.

104. On 20 July 2011, the Assessment Board assessed Jiang’s total impairment and loss of working capacity to be 3.5%.  This was then revised to 3% on 3 August 2011.  Jiang appealed against this assessment pursuant to section 18 of the ECO.

105. In the joint medical report, Dr Fu assessed Jiang’s impairment and loss of earning capacity to be 6%, whereas Dr Yen assessed that both the total impairment and loss of earning capacity after removal of the implants are 1%.

106. The ground for Jiang’s appeal was that Dr Fu’s assessment should be adopted.  In the joint medical report, Dr Fu did not give any specific reason for his assessment.  There was also no evidence given to show the assessment of 3% by the Assessment Board was not correct.  I dismiss the Appeal.

Whether Jiang was unreasonable in failing to mitigate the loss

107. The next general issue is on the question of mitigation of loss.  Counsel for Up Cheer and Yeung, Mr Poon, submitted that Jiang failed to mitigate his loss by (1) not doing the surgery for the removal of the implants which was advised by both medical experts; and (2) he made no attempts to seek alternative jobs and the loss as a result was self-induced by Jiang.

108. Mr Poon relied on the following passage of Lord Justice Jenkins in McAuley v London Transport Executive [1957] 2 Lloyd’s Rep 500 at page 505:-

“if [a plaintiff] received advice to the effect that an operation will have a 90% chance of success and is strongly recommended to undergo the operation and does not do so, then the result must be, I think, that he has acted unreasonably, and that the damages ought to be assessed if he had, in fact, undergone the operation and secured the degree of recovery to be expected from it.”

109. Mr Poon argued that at least by late 2011 when Jiang was examined by both Dr Fu and Dr Yen, he should have received advice by both medical experts that he should take the surgery to remove the implants.  Mr Poon submitted that the lack of money to do the surgery is not a justifiable reason because Jiang would be able to recover the costs subsequently from the defendants.

110. In response, Mr Chan, counsel for Jiang, submitted that the common law requirements of mitigation has no place in the ECO.  He relied on Hong Kong Paper Mill Ltd v Chan Hin-wu [1981] HKLR 556:-

“Whether or not McAuley v London Transport Executive lays down a principle which ought to be of general application in Hong Kong, in my judgment it clearly has no application to a claim for workmen's compensation. There is a great difference between a claim for damages in negligence at Common Law and a claim for compensation under the Workmen's Compensation Ordinance. Workmen's compensation must be assessed solely under the statutory provisions and, unless the Ordinance provides for a reduction of the basis compensation specified, no reduction may be made.”

111. I agree with Mr Chan.  The Court of Appeal’s decision in the Hong Kong Paper Mill case is clear.  The employees’ compensation shall be assessed with reference to the statutory provisions in the ECO only.  The common law concept of mitigation of loss does not find a place in a claim under the ECO.

112. Would Jiang’s claim in the PI Action be affected because he has not undergone the surgery to the remove the implants?  The approach on this issue should be on the reasonableness of the conduct of Jiang.  It is fact sensitive.

113. As Lord Justice Jenkins said in the McAuley case:-

“The question must be one of fact, as I see it, in each particular case: Was the advice, and were the prospects of success of the proposed operation or treatment, clearly put to the plaintiff, so that he, as a reasonable man, would appreciate that he was being advised that this treatment or operation would put him right.”

114. In Marcroft v Scruttons Ltd [19540 1 Lloyds’ Rep 395, Lord Justice Singleton said:-

“A man who is in an anxiety state may have difficulty in making up his mind, but on a question as to the treatment which he should have his mind is, or ought to be, made up for him by his own medical advisers. That is one of the purposes of having medical advisers. The patient would not know what he ought to do; the patient takes medical advice, and the patient ought to be guided by his medical advisers.”

115. Viscount Simon LC has taken the following approach in Richardson v Redpath Brown & Co Ltd [1944] AC 62 at page 72:-

“… the question whether a workman is unreasonable in refusing to undergo a surgical operation is not to be determined by considering whether the best medical opinion would think such an operation advisable or safe, but by judging whether it is proved that the workman, having regard to all the circumstances (including medical advice offered to him against the operation) was unreasonable in so refusing.”

116. In Sze Sing v Hip Hing Construction Co Ltd, unreported, HCPI 1108 of 1997, 8 December 1998, Nguyen J considered the medical advices given to the plaintiff in that case and held that the proposed operation or treatment and the prospect of success were never clearly put to the plaintiff in that case. The question is whether having regard to all the circumstances, the plaintiff was unreasonable in refusing to undergo the operation.

117. In the present case, we only have evidence of the joint medical report in which both doctors stated their views that Jiang should take the surgery to remove the implants.  This is not sufficient.  There is no evidence on whether the doctors have given this advice to Jiang in person and whether they have explained to Jiang the importance of the surgery as well as the advantages and disadvantages (if any) of taking the surgery.

118. Jiang explained that he has no financial resources to do the surgery. He is not entitled to free medical care offered by the government hospitals in Hong Kong.  On Jiang’s evidence, his medical advisers in the Mainland had not advised him on the surgery to remove the implants.

119. In light of the evidence before the court, I do not consider that Jiang has acted unreasonably in not undergoing the surgery.

The Earnings of Jiang for the purpose of calculating the compensation

120. The third general issue relevant to both the PI Action and the EC Action is the monthly earnings to be adopted for calculating the compensation.

121. Jiang was not legally employable in Hong Kong and could not have earned any wages in Hong Kong legally.  The wages that Jiang has earned in Hong Kong should not be used to calculate the compensation.

122. In Tsang Siu Hong v Kong Hoi For trading as Wing Hing Auto Engineering Service, unreported, HCPI 173 of 2001, 10 March 2003, Deputy High Court Judge Wright said that:-

“45. In my judgment this plaintiff’s situation is addressed by compensation being calculated in accordance with what he would have earned in his lawful Mainland employment during the equivalent period for that, in truth, is his real loss.

46.  … The fundamental purpose of compensation is to put a claimant in the position he would have been in had the incident giving rise to the claim not occurred. The plaintiff had no legitimate expectation of continued remuneration at the elevated, Hong Kong level but, on the evidence, he was in regular employment on the Mainland which has been disrupted as a consequence of the injuries he sustained at the hands of the defendants.”

123. The monthly earnings to be adopted for computation of compensation shall be the wages that Jiang could have lawfully earned as a construction site worker in the Mainland.  Jiang has not produced any cogent evidence on the wages he received while working as a construction worker in the Mainland.

124. Counsel of all parties agreed to adopt, in this case, the statistic of average wages published by the PRC government (“the Statistic”).  According to the Statistic, the average wages of a construction worker in Guangxi (which is the hometown of Jiang) in 2008 was RMB22,300 per annum.  The average monthly wages was RMB1,859 or HK$2,231.  

QUANTUM AWARDED IN THE EC ACTION

Section 9 Compensation

125. Jiang was 40 years old at the time of the Accident.  Pursuant to section 7 (1)(b) of ECO, the amount of section 9 compensation shall be a lump sum equal to 72 months’ pay multiplied by the loss of earning capacity.

126. The compensation awarded under section 9 is HK$2,231 x 72 months x 3% =HK$4,819.

Section 10 Compensation

127. Mr Poon referred to the following passage of HH Judge Leung in Abu Bakkr Shiddik v MM & Co Auto Parts, Dismantling and General (a firm), unreported, DCEC 903 of 2009, 12 January 2011, and submitted that Jiang should not be entitled to section 10 compensation because he was a visitor on 2-way permit and was not legally employable in Hong Kong:-

“Section 10(1) makes clear that compensation is awarded on the basis that the employee would at least have been capable of earning in some suitable employment or business but for the temporary incapacity after the accident. If the person is not lawfully employable, he could not be said to be capable of earning income from any suitable employment or business during the period of temporary incapacity. That was the situation of Shiddik when he was detained first by the police and then by the Immigration Department after the accident.”

128. The applicant in Abu Bakkr Shiddik is a Bangladeshi national who entered Hong Kong illegally.  He took up employment in Hong Kong and was injured in the course of the employment. He was then arrested and detained. Upon his arrest, he lodged a claim that he was a subject of torture in his hometown, and he claimed protection under the Convention Against Torture and other Cruel and Degrading Treatment or Punishment (“CAT”).  He was then released on recognizance pending the verification of his CAT claim.  During this period, he was not allowed to take up employment in Hong Kong.  He has been subsequently arrested, detained and imprisoned on various occasions for conviction of theft and other criminal activities.

129. A careful reading of the judgment of Abu Bakkr Shiddik clearly indicated that the reason for the refusal to award section 10 compensation to the applicant was not because he entered Hong Kong illegally. It was because during the period of the applicant’s temporary incapacity, he was staying in Hong Kong on recognizance pending the adjudication of his CAT claim, during which time he was not allowed to take employment.  The relevant paragraphs in the judgment are as follows:-

“ 65. I have no basis to believe that Shiddik was permitted to take employment while he remained in Hong Kong on the recognizance during the period of temporary incapacity. As it is not shown that Shiddik was capable of being lawfully employed during the period of temporary incapacity, the premise for awarding section 10 compensation is lacking.

66.  For the above reasons, I decline to make an award under section 10 of the ECO.”

130. The situation of Jiang was different.  After the Accident, Jiang was admitted in the hospital for about 2 weeks, he was then imprisoned for 1 week. Thereafter, he went back to the Mainland.  He was not prohibited from taking employment after his return to the Mainland.  In other words, he was capable of making an earning during the period of temporary incapacity, he shall be entitled to section 10 award.

131. I use the notional earning of a construction worker in Guangxi, the place where Jiang could take employment.  I consider Dr Fu’s opinion that a sick leave of 6 months is reasonable.

132. The compensation under section 10 shall be HK$2,231 x 4/5 x 6 = HK$10,709.

Section 10A compensation

133. It was common ground that Jiang was not entitled to compensation for medical expenses under section 10A of ECO as it was clearly provided in section 10A(1A) that medical treatment given outside Hong Kong was not included in the compensation given under that section.  The medical expense incurred by Jiang in the Mainland is therefore not recoverable under section 10A of the ECO. 

QUANTUM AWARDED IN THE PI ACTION

PSLA

134. The following cases quoted to me are relevant to the present case on the award of PSLA:-

(1)  Cheng Muk Ping v Chan’s Machine Engineering Co Ltd, unreported, DCPI 932 of 2007, 20 October 2008.  The plaintiff in this case sustained a lisfranc fracture on his right foot second metatarsal.  He received an operation of open reduction and internal fixation and his foot was put in a cast for 6 weeks.  He had difficulty in walking up and down staircases and the loss of earning capacity was assessed to be from 8% to 10%.  The PSLA awarded to the plaintiff was HK$180,000.

(2)  Leung Chung Ngar Christopher v Yeung Man Wai, unreported, HCPI 63 of 1999, 20 December 2000.  The plaintiff’s left foot was went over by the defendant’s car, causing fractures of the metatarsal neck of the 3^rd and 4^th toe, and dislocation of the 5^th metatarsophalangeal joint of the left foot.  The PSLA awarded was HK$200,000.

(3)  Kwok Kwan Lam v Lai Po Sing, unreported, DCPI 1232 of 2012, 7 March 2014.  The plaintiff’s left foot was run over by a forklift and he suffered left foot metatarsal fracture.  The plaintiff was given a relatively long sick period and has residual disability. HK$280,000 was awarded as the PSLA.

135. In light of the extent of Jiang’s injuries, I award a sum of $250,000 for Jiang’s PSLA.

Pre-trial loss of earning

136. The loss of earning during the 6 months period of sick leave (less about ¾ month while he was hospitalized and imprisoned) is HK$2,231 x 5.25 =HK$11,713. Jiang is a Mainland national and thus was not entitled to MPF.

137. Both Dr Fu and Dr Yen considered that Jiang could take up jobs other than construction site workers.  After the period of sick leave (that is from 24 April 2009) Jiang should be able to resume lighter works.  Jiang’s loss was a partial loss of the difference between the average wages that could be earned as a construction worker in Guangxi (which was RMB 22,300 per annum according to the Statistic) and the average wages that could be earned as a worker in general and other service (which was RMB19,818 per annum according to the Statistic). The difference was RMB2,482 or HK$2,979 per annum.

138. Mr Lim submitted that the partial loss was wiped out by supervening event.  Jiang’s inability to return to work as construction worker was because of his back pain. (Jobling v Associated Dairies [1982] AC 794)

139. Mr Lim relied on the CT scan report of Jiang dated 19 December 2013 which showed that Jiang suffered from protrusion of the L3/4 and L4/5 lumbar disc.  This report was made after the joint medical report, and was therefore not seen and considered by the medical experts.  Mr Lim suggested that the CT scan report showed degenerative changes which was probably caused by Jiang’s working as a construction worker since 2003.  The degenerative changes to the lumbar spine gave rise to back pain and this is a supervening event which rendered Jiang unfit to work as a construction worker.  He therefore submitted that even if there was no Accident happened to Jiang, he would be unable to work as a construction worker.

140. It is unfortunate that this court does not have the benefit of medical opinion on the report of the CT scan.  In the absence of medical opinion, I do not consider it safe to conclude that the protrusion of lumbar disc was degenerative changes resulted from his working as a construction worker since 2003 and further that it was the degenerative changes that caused his inability to work as construction worker after the Accident.

141. I allow the pre-trial loss of earning after the period of sick leave in the sum of HK$2,979 x 6 years = HK$17,874.

142. The total pre-trial loss of earning is therefore HK$11,713 + HK$17,874 = HK$29,587.

Post trial loss of earning

143. Jiang was aged 46 at the date of the trial, adopting a discount of 2.5%, the multiplier is 11.46. The post trial loss of earning is the annual wages of HK$2,979 x 11.46 = HK$34,140.

Loss of earning capacity

144. The Privy Council in Chan Wai Tong v Li Ping Sum [1985] HKLR 176 at 183B defined loss of earning capacity as a claim to cover the risk that, at some future date during the plaintiff’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.  The plaintiff must show that the risk is “substantial” or “real” but not “speculative” and fanciful (Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132).

145. I agree with Mr Poon’s submission that in light of the medical evidence, the reduction in Jiang’s working efficiency is minimal.  There is also no evidence that Jiang would suffer disadvantage in the labour market if he changes to other occupation.

146. I disallow this claim.

Past Medical Expenses

147. Jiang accepted that the amount of HK$6,000 proposed by Up Cheer and Yeung is a reasonable amount of past medical expenses incurred by him.  I allow this claim.

Future Medical Expenses

148. As to the future medical expenses, it is common ground that Jiang should undergo the surgery to remove the implants, and the costs estimated by the medical experts are HK$30,000.  I accept that Jiang will incur other medical expenses for his recuperation and rehabilitation.  I consider the sum of HK$10,000 claimed by Jiang reasonable.  The total award for future medical expenses is HK$40,000.

SUMMARY ON DAMAGES AWARDED

149. The damages awarded in the EC Action are:-

Section 9 compensation	$ 4,819
Section 10 compensation	$10,709
Total:	$15,528

150. The damages awarded in the PI Action are: -

Pain, suffering and loss of amenities	$250,000
Pre-trial loss of earning	$29,587
Post-trial loss of earning	$34,140
Past medical expenses	$6,000
Future medical expenses	$40,000
Total:	$359,727

151. Jiang shall give credit to the amount of employees’ compensation awarded.  There shall not be double recovery. The total amount of compensation that Jiang shall receive in both the PI Action and the EC Action shall not exceed HK$359,727.

Interest

152. I also allow an interest on the amount of awarded PSLA at 2% from the date of the writ to the date of judgment; and on the amount of the awarded pre-trial loss of earnings and special damages at half judgment rate from the date of the Accident to the date of judgment.

COSTS

153. I make an order nisi that (1) the costs of Jiang and the Fund Board in the PI Action be paid by Up Cheer and Yeung; (2) the costs of Jiang in the EC Action be paid by Yeung; (3) the costs of the Fund Board in the EC Action be paid by Jiang and Yeung.  All the above costs are to be taxed if not agreed, with certificate for counsel.  

154. As to Up Cheer’s costs in the EC Action, I take into account that the costs it incurred in the EC Action should be substantially overlapped with its costs in the PI Action, as well as the conduct of Up Cheer, in particular the inconsistency in Up Cheer’s evidence on the identity of Jiang’s employer, I make an order nisi that there be no order as to Up Cheer’s costs in the EC Action.

155. The above cost orders nisi shall become absolute if no application to vary the same is made within 28 days from the date of this judgment. Jiang’s own costs be taxed pursuant to the Legal Aid Regulations.

156. I thank counsel’s helpful assistance.