Leung Ka Wai v. Kawin Interior Contracting Co., Ltd

DCEC 2238/2019

[2020] HKDC 437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2238 OF 2019

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Before:  Her Honour Judge Levy in Chambers (Open to the Public)

Date of Hearing:  27 May 2020

Date of Decision:  27 May 2020

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D E C I S I O N

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1.This is my ruling in relation to the respondent’s summons filed on 8 May applying for a split trial. 

2.Before I give my reasons for the decision, perhaps it is necessary just to briefly state the nature of this case, and also the stage this case has progressed to.

3.In this case, the applicant, through the Legal Aid-assigned solicitor, made a claim against the respondent for employees’ compensation in respect of an accident on 12 October 2017, alleging that while he was working as an employee of the respondent, he sustained injury.  The accident site that he described was stated to be a place called ‘Concord Square’ at Tsuen Wan.  In the application, the applicant has also appealed against the assessment of by way of Form 7 issued by the Medical Assessment Board.

4.The respondent filed an answer.  In the answer, the ground of the opposition was that the applicant was not the respondent’s employee but that the applicant was a partner of a partnership firm called ‘TNK Company’, which firm entered into a contract with the respondent for the construction of doors at Concord Square. In the list of earnings, the respondent filed, the respondent, instead of providing the usual earnings of the applicant, repeated the same averment. 

5.After discovery was completed, the respondent issued the present summons.  The director of the respondent, Mr Chong, has filed an affirmation in support of the application. 

6.In opposition, the applicant’s Legal-Aid assigned solicitor, Ms Leung, filed an affirmation.  The reason why the affirmation could not be affirmed by the applicant himself, according to the affirmation of Ms Leung, was that the applicant was in hospital and I am told today that he is still in hospital.

7.A reply affirmation was also subsequently filed in response to the opposing affirmation.

8.Before I state the grounds of opposition, perhaps I should briefly state the guiding legal principles, which are not in dispute.

9.I am grateful for the parties’ citation of the authorities.  However, in my view, the authorities are relevant only to the particular facts of each case. In my view, they are all fact sensitive. Strictly speaking, it is therefore not necessary for me to refer to those authorities. The legal principles set out in the authorities are summarised in the relevant extract of the Hong Kong White Book, which Ms Leung has provided to this court.  The legal principles which are not disputed can be found in paragraph 33/4/9 at page 840 of the Hong Kong Civil Procedure 2020, Volume 1. 

10.The general rule is that all the issues in a case are to be tried at the same time. To depart from this general rule, for this case, of course, the respondent will need to demonstrate that it is just and convenient for such an order to be made. 

11.The respondent relies on four grounds in support of the application.   The first and the most important ground the respondent relies on is merits.  It is the respondent’s submission that the respondent has good prospects of success. Secondly, the respondent also says that costs can be saved on quantum, and thirdly, should both liability and quantum be tried at the same time, there will be delay and duplication of costs.  And, lastly, the respondent also says that no prejudice would be caused to the applicant.

12.The applicant objects to this application and Ms Leung submits that in this application the court should not embark on a mini-trial. It was submitted that there is further evidence that can be disclosed supporting the applicant’s assertion that he was the employee at the time of the accident.

13.Ms Leung also contended that, so far as the costs of the joint medical examination is concerned, if quantum is to be considered at the same time, they are, relatively speaking, not of a large amount. Lastly, the applicant also contended that there will be unfair delay caused to the applicant should a split trial be ordered because there will effectively be two trials which the applicant has to face. 

14.I must say that initially I was not inclined to accede to the application to order a split trial. However, after having carefully considered the matter and particularly the fact that some of the relevant factors in my view that may have assisted the court in the weighing up exercise were not forthcoming during the course of submissions this morning when I asked Ms Leung to assist this court, I started to take a different view. Unfortunately, because the applicant is in hospital, Ms Leung is not able to provide the necessary assistance to this court. Since there is no application to adjourn this application, my consideration of all the relevant factors would have to be confined to what is now available before me today.

15.After having considered all the available evidence, I am inclined to allow the respondent’s application for a split trial and I so order.  My reasons are as follows.

16.First, I accept on the evidence that the respondent has demonstrated good prospects of success on its grounds of opposition by producing relevant documents in support of its defence, showing that there are indeed purchase contracts and contracts for the work in Concord Square between the respondent and the partnership firm of the applicant, TNK.

17.On the other hand, the applicant, through his solicitor, Ms Leung, was not able to produce any documentary evidence or otherwise to support his allegation that, some time during the course of that contractual relationship, he somehow became the employee of the respondent.  Without any evidence to support his case, what he was claiming, in my view, at this stage, is no more than just a bare assertion.

18.Two, I also believe that costs on quantum can be saved. EC proceedings are most of the time fairly straightforward, which are different to, for example, personal injury cases. In a personal injury case, for example, when a plaintiff has severe injuries, the issue of quantum alone would likely involve a large amount of evidence.  EC proceedings however do not.   

19.For this case, I think there are features that drive me to the view that there is, as Mr Wong has submitted, clear demarcation between liability and quantum. 

20.As I stated in the beginning, the applicant has already made an application to appeal against the assessment stated in Form 7 issued by the Medical Assessment Board in its application.  His solicitors have also intimated to the respondent’s solicitors that the applicant would engage orthopaedic medical expert for the purpose of his appeal.  Therefore, if quantum is to be allowed to be tried at the same time as liability, the respondent would likely not only incur more legal costs but also the costs of engaging its own medical orthopaedic expert. 

21.It is no good answer, in my view, for Ms Leung to say that costs can be saved if the respondent can agree to the engagement of a single joint expert.  The respondent is entitled to make a decision as to whether the respondent’s rights can be best served by engaging its own expert.  Therefore, I do not accept that this is a relevant consideration.

22.What has caused me some concern is that, as Ms Leung has informed the court this morning the applicant is currently in hospital.  It seems that the applicant’s hospitalisation may have been due also to the injury.  If that is the case, I would envisage that the applicant may not be likely to be able to attend a medical examination in the near future.

23.Currently, I have no information as to the medical condition of the applicant or as to when the applicant would likely be discharged.  Without such information, I can only consider this application on the basis that the applicant may unlikely be fit to attend medical examination in the near future. Therefore, there would likely be further delay.  In such case, a delay will not be caused by an order for a split trial but rather the applicant’s own condition.  I say so on the basis of what Ms Leung has just informed me this morning. 

24.For these reasons, I do not accept Ms Leung’s suggestion that, if a split trial is ordered, the applicant will suffer further delay.  This is certainly not the case, in view of the facts of this case.  In particularly, I think, so far as trial is concerned, since the respondent has clearly indicated in its list of earnings that in fact they had nothing to furnish in terms of earnings, a trial on liability and a trial on quantum can be totally separate.   

25.I grant the respondent’s application to order a split trial.

26.This is my order:

(1)  There be a split trial on liability and quantum;

(2)  The applicant do pay the respondent’s costs of the summons (without certificate for counsel) to be taxed if not agreed; and

(3)  The applicant's own costs be taxed in accordance with

the Legal Aid Regulations.

Ms Leung Hoi-yan, of Ernest Li & Co, assigned by the Director of Legal Aid, for the applicant

Mr Joshua S K Wong, instructed by Edward Ko & Company, for the respondent