Lo Siu Wa v. Employees Compensation Assistance Fund Board and Another

CACV 39/2016 and CACV 40/2016

CACV 39/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 39 OF 2016

(ON APPEAL FROM HCA NO. 393 OF 2014)

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BETWEEN

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AND

CACV 40/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 40 OF 2016

(ON APPEAL FROM HCA NO. 799 OF 2014)

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BETWEEN

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(Heard together)

Before:  Hon Cheung, Yuen and Kwan JJA in Court

Date of 1^st Defendant’s Written Submissions :  17 March 2017

Date of Plaintiff’s Written Submissions :  29 March 2017

Date of 2^nd Defendant’s Written Submissions : 30 March 2017

Date of 1^st Defendant’s Written Submissions in reply :  13 April 2017

Date of Decision :  6 July 2017

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.The Employees Compensation Assistance Fund Board (‘ECAFB’) applies for leave to appeal against our judgment of 12 January 2017, which, by a majority, dismissed the ECAFB’s appeal against the decision of Deputy High Court Judge Burrell.

2.The application for leave is based on both the great, general and public importance ground and the ‘or otherwise’ ground.  In respect of the former, ECAFB frames the relevant questions as follows :

1) Whether the statutory objectives of Part IV of the Employees’ Compensation Ordinance (Cap. 282) (‘ECO’) to guarantee the payment of compensation to an employee who becomes legally entitled to it and to ensure that injured employees shall not be left with a barren award by reason of the employer’s default should be applied to the interpretation of an insurance policy issued for the purpose of Part IV ECO such that the policy (or policies of similar wordings and structure) should be construed as having the effect that no employee of an insured employer under such policy shall be excluded unless specifically and expressly excluded;

2) Whether an insurance policy issued under Part IV ECO shall be presumed to be one issued in relation to all employees of the insured employer (including those that the employer was not aware of, or did not recognise, at the time of the issuance of the policy) unless any particular employee or employees have been expressly or specifically excluded;

3) Whether on a proper interpretation of the policy (and policies of similar wordings and structure) in the statutory context of Part IV ECO, the scope of cover provided in the operative part of the policy is to be construed as being limited or restricted by the particulars of employees set out in the schedule of the policy;

4) Whether the case of Law Lai Ha v Zurich Insurance Co. [2011] 2 HKLRD 450 is correctly decided;

5) Inasmuch as the approach of Yuen JA is different from that of Kwan JA at [10] (of Yuen JA’s judgment), whether the matters referred to by Kwan JA at [30, 36, 40] of her judgment are proper matters to be taken into account.

3.In our view the great, general and public importance ground is engaged in view of the implication of the judgment in the area of employees’ compensation, particularly in respect of the requirement of compulsory insurance to be effected by employers.  We would grant leave to appeal.  ECAFB has to apply to the Court of Final Appeal in respect of the conditions relating to the granting of leave.

4.ECAFB also submits that in light of the special circumstances of this case, the ‘or otherwise’ ground is engaged.  Having granted leave on the first ground, it is not necessary for us to consider this ground.

5.ECAFB also seeks leave to adduce evidence in respect of 20 other cases where insurers had denied liability on the basis of the decision in Law Lai Ha and the decision below together with the court documents, insurance policies and correspondence in those cases.  We will allow the evidence to be admitted for the purpose of the leave application.

Costs

6.Costs of the application for leave to appeal and 50% of the costs relating to the application to adduce evidence be in the cause of the appeal.  The reason for the latter order is that it is not necessary for ECAFB to reproduce the same evidence in both sets of proceedings.

7.We will grant certificate for two counsel.

Written Submissions by Ms Julia Lau, instructed by Liu, Chan & Lam, assigned by Director of Legal Aid, for the plaintiff

Written Submissions by Mr Horace Wong SC and Mr Clark Wang, instructed by Gallant, for the 1^st defendant

Written Submissions by Mr Anthony Ismail, instructed by Clyde & Co., for the 2^nd defendant