Shing Ho Wa By Lam Wai Fong, His Mother and Next Friend v. Really Super Ltd and Another

HCPI 1329/2016

[2021] HKCFI 2139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1329 OF 2016

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Before: Hon K Yeung J in Chambers

Date of Hearing: 14 July 2021

Date of Decision: 14 July 2021

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DECISION

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1.This is the application by the Employees Compensation Assistance Fund Board (the “Board”) by Summons of 22 June 2021 (the “Summons”) for an order to be joined and added as the 3^rd defendant herein.

2.For background of the matter and the parties’ respective cases, I respectfully refer to the Decision of Bharwaney J of 16 July 2019 when his Lordship ordered a split trial in the action[1].

3.The application is supported by the affirmation of Rebecca Chan, a solicitor of P C Woo & Co, solicitors acting for the Board.

4.The main ground of the application is set out by Ms Chan at §12 of her affirmation.  She states that as D1 and/or D2’s employer’s liabilities towards the plaintiff are not and/or may not be covered by a policy of insurance issued for the purpose of the Employees’ Compensation Ordinance Cap 282, the Board faces a potential statutory application for payment of any damages adjudicated to be payable by D1 and/or D2.

5.The Board’s concern is borne out by the observations of Bharwaney J in the said Decision at §§26 and 27, that:

“ 26. Even if the plaintiff establishes liability against both the 1^st and 2^nd defendants, there is a real possibility that the plaintiff may not be able to obtain full satisfaction of any such judgment. I was informed by the legal representatives of the 1^st defendant that it was not covered by insurance and that it ‘would have a real difficulty’ satisfying any judgment entered against it and, further, that the 1^st defendant would not expend any moneys to engage experts on quantum and would not apply for leave to adduce expert evidence. The 2^nd defendant is a company set up for the specific purpose of film production which purpose was spent many years ago. I was informed by its legal representatives that ‘it will not be able to meet any damages awarded against it’, if its’ employees’ compensation insurers maintain their disclaimer of liability.

27. All that remains to be seen, but the prospect of an empty judgment was a factor which prompted me to ask the plaintiff to take instructions on whether the plaintiff would consider applying to join the employees’ compensation insurers to the proceedings.  If the uninsured 1^st defendant is adjudged liable as employer, the plaintiff can apply for a relief payment from the Employees’ Compensation Assistance Fund Board (‘ECAFB’).  However, as can be seen from my judgments in Ng Tat Kuen v. Tam Che Fu & Ors, HCPI 896/2013, 3 May 2019 and Kong Hoi Lam v. Cheung Yuk Kwan & Ors, HCPI 801/2012, 19 October 2015, such relief payments are unlikely to be adequate to meet the plaintiff’s needs. Apparently, the stance taken by the 2^nd defendant’s employees’ compensation insurers is that, even if the plaintiff was employed by the 2^nd defendant at the relevant time, which is disputed, the 2^nd defendant’s liability to the plaintiff is not covered by the policy and the policy is not a policy issued for the purposes of Part IV of the Employees’ Compensation Ordinance, Cap. 282, (‘ECO’) for the reasons that the plaintiff was not listed in the schedule to the policy and that the accident occurred outside the geographical area.  Having regard to the recent decision of the Court of Final Appeal in Lo Siu Wa v. Employees’ Compensation Assistance Fund Board & Anor, FACV 12/2017, 31 January 2018, to section 30B of ECO, and to Law Lai Ha & Anor v Zurich Insurance Company, HCA 2082/2005, 23 February 2011, at §73, if the plaintiff is adjudged to have been employed by the 2^nd defendant at the material time, it is arguable, in my view, that the 2^nd defendant’s employees’ compensation policy was a policy issued for the purposes of Part IV of the said ordinance.”

6.Section 25A(b) of the Employees Compensation Assistance Ordinance Cap 365 provides that:

“ If proceedings have been initiated to claim compensation or damages …, the Board may apply to the court to be joined as a party to the proceedings as follows—

(b)  where no policy of insurance is known to be in force at the time of the accident to which the proceedings relate and the employer is present at the proceedings, the Board may apply to the court to join in the proceedings as a party in accordance with Order 15, rule 6 of the Rules of the High Court (Cap. 4 sub. leg. A) or Order 15, rule 6 of the Rules of the District Court (Cap. 336 sub. leg. H), as the case may require.”

7.The conditions for the Board to apply to be joined have been satisfied.

8.The trial is set down to take place on 1 September 2022.  This application is made in good time.  No delay will be caused.

9.The intention of the Board is not to take over the defence.  If it is joined, it may only file a defence putting the plaintiff to proof of its case.

10.The plaintiff has through his solicitors indicated to P C Woo & Co that he has no objection to the Board’s application, subject to the following, that:

(a)  the Board’s participation shall only be restricted to the trial on liability; and

(b)  the Plaintiff will ask for leave to file and serve his Reply within 28 days from the service of the Board’s Defence (if any).

11.The neutral stance of the plaintiff and D2 is also confirmed by Ms Koon and Mr Levy who respectively appear for them this morning.

12.The Board is prepared to accept the above conditions, save that it reserves the right to apply to join in to contest the issue of quantum, if necessary, after completion of the trial on liability.

13.In the circumstances of the present case, I am satisfied that the Board should be joined.  I grant the Board leave to be joined, in terms of §1 of the Summons with the deletion of the words “and quantum”.  I also grant the consequential directions sought, in terms of §§2 to 6 of the Summons.  I will grant further a new paragraph, to the effect that if the Board files any Defence, the plaintiff shall have 28 days from the date of the service of that Defence to file a Reply.

14.I make the costs order in terms of §7 and 8 of the Summons.

15.I grant parties liberty to apply.

Ms Jay Koon, of Szwina Pang, Edward Li & Co, for the Plaintiff

The 1^st Defendant was not represented and did not appear

Mr Jeremy Levy, of Robertsons, for the 2^nd defendant

Ms Susanna Leong, instructed by P C Woo & Co, for the Intervener