Yip Kam Chun v. Wellgain International Industrial Ltd

DCEC 1069/2017

[2021] HKDC 64

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1069 OF 2017

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

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

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

Dates of Hearing: 5 and 11 January 2021

Date of Decision: 11 January 2021

Date of Reasons for Decision: 19 January 2021

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

REASONS FOR DECISION

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

A. Introduction

1.At the Pre-trial Review hearing (PTR) in these proceedings (EC Claim) on 5 January 2021, Mr Alfred Cheng, counsel for the employer, Wellgain International Industrial Ltd (Wellgain), made an application in his written submissions for the vacation of the trial of the EC Claim (EC Trial), and the refixing of it to be heard together with the trial of the corresponding common law personal injuries action (PI Action), which action number was HCPI 1153/2018 in the High Court, and the number of which became DCPI 2197/2020 after its transfer to the District Court.  The EC Trial was due to commence on 19 January 2021 (with the second date of the trial fixed on 26 January 2021), and the trial of the PI Action will commence on 27 July 2021 (with 3 days reserved until 29 July 2021).

2.Since the unrepresented applicant, Mr Yip, opposed the application, I directed Wellgain to file a formal application by summons.  Pursuant to my direction, Wellgain filed the summons (Vacation Summons) on the day of the PTR.  I acceded to Mr Yip’s request for time to prepare opposing arguments, and adjourned the hearing of the substantive arguments of the Vacation Summons to 11 January 2021.

3.At the adjourned hearing on 11 January 2021, I dismissed the Vacation Summons, and ordered Wellgain to pay Mr Yip’s costs, which I gross-sum assessed at $1,000.  These are the reasons for my decision.

B. A brief background

4.Mr Yip alleged that in the course of employment with Wellgain on 1 December 2015, he fell to the floor when the back of the swivel chair on which he was sitting collapsed, and allegedly suffered personal injuries.  Mr Yip engaged private solicitors, Messrs Jimmie K S Wong & Partners (Former Solicitors), to institute on 16 May 2017 the EC Claim pursuant to the Employees’ Compensation Ordinance[1] and the PI Action at the High Court on 31 October 2018.  On 29 June 2020, the PI Action in the High Court was ordered to be transferred to the District Court.

5.The solicitors for both parties however failed to proceed with the EC Claim with expedition.  They failed to comply with their agreed timetable set out in the order dated 27 December 2018 (JWA Order) by failing to submit a joint written application within 56 days after the filing of the joint orthopaedic expert report (dated 30 May 2019).

6.After the joint orthopaedic expert report was filed on 6 June 2019, neither party complied with the agreed timetable stated in the JWA Order by filing a joint written application for case management directions.  The EC Claim had been inactive for more than a year by the time the Former Solicitors filed on 18 August 2020 a “Notice of Intention to Proceed”.  Still no joint written application was filed.  On 29 September 2020 Wellgain filed a summons (Stay Summons) to stay the EC Claim pending the determination of the PI Action.

7.On 2 November 2020, Mr Yip filed a “Notice to Act in Person” in both the EC Claim and the PI Action.  Hence at the Checklist Review hearing of the PI Action and the hearing of the Stay Summons before this court on 16 November 2020, Mr Yip became a litigant in person.  At the hearing, I refused to accede to the Stay Summons.  As the two sets of proceedings were obviously ready for trial, I fixed the respective trial dates for both proceedings (see §1 above).

C. Wellgain’s arguments

8.Mr Cheng submitted the following four reasons in support of the Vacation Summons.

9.First, the issues in both proceedings are identical.  It was submitted that since the issues on liability and quantum in both proceedings are in dispute, there would be no saving of costs and time by holding the trial of these two proceedings separately.

10.Secondly, the 2 days this court has allotted for the EC Trial were unlikely to be sufficient as substantial cross-examination of Mr Yip was anticipated at the trial.  It would not have been desirable for the EC Trial to be adjourned part-heard.

11.Thirdly, since the trial of the PI Action was only about 6 months away, no substantial delay would be caused to the EC Claim by allowing the EC Trial to take place at the same time as the trial of the PI Action.  Mr Cheng urged this court not to follow the line of authority stating that employees’ compensation trials should generally take place first in cases involving an argument on contributory negligence (CN) : Yu Kwok Wa v China Telecom Global Ltd[2], referring to Maxwell v Keliston Marine (Far East) Ltd[3] and Rukhsar Begum v Native English Center Ltd[4]. In spite of the existence of the issue of CN in the PI Action, Mr Cheng suggested that it would only involve a subsidiary argument.

12.Fourth and the last, there is no evidence that Mr Yip was in any financial plight.  A delay of 6 months for the EC Trial to be heard together with the trial of the PI Action should have minimum financial impact on Mr Yip.

D. The opposition

13.Mr Yip’s contentions can be summarized as follows.

14.First, any further delay of the EC Trial would be out of step with the statutory objective of the employees’ compensation regime of giving injured employees quick financial relief as propounded in the Court of Final Appeal decision of LKK Trans Ltd v Wong Hoi Chung[5] referred to in Yu Kwok Wa[6].  In this EC Claim, Mr Yip suggested, there was an even greater urgency as Wellgain did not pay him any interim/advanced payments or periodical payments during the period of sick leave.

15.Secondly, since Wellgain has pleaded CN in the PI Action, the EC Claim should, according to the guidelines laid down in Maxwell[7], proceed first.

16.Thirdly, the court has given due consideration to the suitable length of the EC Trial when fixing the trial for 2 days. There was no justification to ask for its postponement on this ground. At the hearing, Mr Yip added that he would only cross-examine one of Wellgain’s three witnesses.  This would further reduce the length of the forthcoming EC Trial.

E. Discussion

17.I accepted Mr Yip’s grounds of opposition.  Notwithstanding Mr Cheng’s forceful arguments, I respectfully disagree with them.

18.First and the foremost, employees’ compensation claims are statutorily intended to provide quick financial relief to employees: see LKK Trans Ltd. Unsatisfactorily, this EC Claim, as I have stated in Section B above, failed to proceed in a manner in accordance with the statutory objective.  I do not accept Mr Cheng’s faulting Mr Yip for the delay by alleging that the delay was caused by Mr Yip of having sat on the EC Claim for 14 months.  As I mentioned above, the non-compliance with the agreed timetable for the filing of a joint written application was not only by the Former Solicitors, but it was also by Wellgain’s Solicitors. If this court were to postpone the EC Trial for another 6 months, I believe that it would be contrary to the spirit of expedition particularly given that the EC Trial was already imminently due to take place in 10 days. Wellgain has prepared the draft trial bundle, and issued three subpoenas against all its three witnesses to attend the EC Trial, and has instructed counsel.  All the trial preparations appear to have been completed.  There was no compelling reason to further delay the EC Trial.

19.Secondly, the causes of action of these two sets of proceedings are, overlapping of factual issues notwithstanding, entirely different.  It is not in dispute that when Mr Yip allegedly fell off from his chair, he was in the course of his employment with Wellgain.  Thus, the only issue on liability in the EC Claim is whether the alleged incident happened and if so, whether it was a “contrived” accident, meaning that it was not an accident within s 5.

20.In the PI Action, the causes of action are based on the alleged breaches of statutory duties under the Occupiers Liability Ordinance and the Occupational Safety and Health Ordinance; an alleged breach of contractual duty under the employment contract as well of an alleged breach of the common law duty of care.  In its Defence, Wellgain denied the alleged breaches and additionally raised a plea of CN.  Hence, at the trial for the PI Action, the parties would need to deal with factual evidence in accordance with these pleaded issues, and make submissions in relation to them.  Since the raising of CN is a specific plea, it was therefore a stand-alone issue that would require separate determination.  Hence, I was unable to accept Mr Cheng’s suggestion that the issue of CN was only a subsidiary one.

21.Regarding quantum, the assessment in the EC Claim would be much more straightforward than that of the PI Action.  The EC Claim only involves three statutory heads of compensation: s 9 (for permanent partial incapacity); s 10 (for temporary incapacity); and s 10A (medical expenses).  The assessment of compensation in the EC Claim would unlikely involve much case law.

22.On the other hand, according to the Revised Statement of Damages filed in the PI Action, the common law damages Mr Yip claims consist of damages for PSLA (pain, suffering and loss of amenities), pre-trial loss of earnings, loss of earning capacity as well as special damages.  At the trial of the PI Action, the parties would need to rely on the decided comparable cases albeit that the evidence on quantum might be overlapping with the EC Trial.

23.Thus viewed, I consider Mr Cheng’s submission of commonality of issues was over-simplistic.  Generally speaking, when liability is disputed in both an employees’ compensation claim and the parallel common law action, it is undesirable to consolidate the proceedings (whether by consolidating two claims or actions as one single action or by having them tried together at the same time, or one after another).  Since liability and quantum are strenuously disputed in both of the present proceedings, the situation is therefore entirely dissimilar to the circumstances in Rukhsar Begum (supra), in which the only matter outstanding was quantum and the employer was absent from those proceedings all along.  Since default interlocutory judgments were entered in both sets of proceedings in Rukhsar Begum, this court considered that it would save costs by having both claims heard together.

24.I also consider that allowing the EC Trial to proceed first would still save costs.  If the EC Claim were dismissed, the PI Action would fall away and a trial would no longer be necessary.  Time and costs would still be saved even if a judgment was entered in favour of Mr Yip after trial.  By the operation of the doctrine of issue estoppel, all disputed factual issues common to both proceedings would have been determined.  In such a case, the length of the trial of the PI Action would likely be substantially shortened.

25.Thirdly, despite the unsuccessful prosecution by the Labour Department against Wellgain for an offence of failing to pay the s 10 periodical payments, it is imperative that the EC Trial should proceed so that Wellgain’s liability to pay compensation, if any, can be determined as soon as possible.  Mr Cheng’s suggestion that Mr Yip was not under any financial plight, or that any financial plight was self-induced, was wholly unfair as it was only a bare assertion.  In spite of the fact that the question of whether Mr Yip has any post-accident earnings will be a matter of great contention at the EC Trial and the trial of the PI Action, it remains that Mr Cheng has not put forth any evidence in support of his allegation.

26.Fourthly, I cannot agree with Mr Cheng’s suggestion that the EC Trial would likely exceed 2 days.  On the materials presented to this court, I was confident that 2 days was sufficient.  In any event, Mr Cheng’s concern for any risk of over-run has been overtaken by Mr Yip’s agreement at the hearing that he would only need to cross-examine one of Wellgain’s witnesses, and had consented to the admission of the witness statements of the remaining two witnesses without calling them to testify.  This recent concession coupled with this court allotting an additional ½ day for the forthcoming EC Trial have, in my view, substantially undermined Mr Cheng’s ground of the risk of the EC Trial going part-heard.

27.Fifth and the last, the Vacation Summons was not only issued very late (at the PTR), but was issued after the dismissal of Wellgain’s Stay Summons.  Under O 4 r 9 of the Rules of the District Court, a stay of proceedings is one of the forms of consolidation of proceedings.  This Vacation Summons, being in the form of consolidation of proceedings pursuant to O 4 r 9, is therefore of the same nature. I therefore believe that the Vacation Summons was an attempt by Wellgain to have a second bite of the cherry after its unsuccessful application in its Stay Summons.

28.The alleged accident happened about 5 years ago.  There is an urgency for the matter to be disposed of without any further delay.  Having taken into account the matters stated above, this court ordered the dismissal of the Vacation Summons.

The applicant appeared in person

Mr Alfred Cheng, instructed by Hastings & Co, for the respondent