Read the full judgment text of HCA 003232/2001 on BabelCite. This High Court CFI judgment was delivered on 20 September 2002 before Geoffrey Ma.
Insurance – Employees' Compensation Ordinance (Cap. 282) – Part IV compulsory insurance – insurer's liability to employee under sections 42, 43 and 44 – plaintiff injured in fall from working platform at construction site on 10 March 1992 – defendant insurer (formerly Provincial Insurance Plc) had issued employees' compensation policy in favour of principal contractor Foo Yan covering only its immediate employees – plaintiff obtained default judgment against Foo Yan in HCPI 167 of 1994 with damages assessed at $1,499,840 (the Judgment Sum) – Judgment Sum and prior Employees' Compensation Award of $208,901 remained unsatisfied and Foo Yan's proprietor was made bankrupt – plaintiff sued insurer directly under section 43 of the ECO – whether the default judgment in the 1994 Action was in respect of Foo Yan's liability as employer for injury arising out of and in the course of employment, or only as principal contractor, so as to engage insurer's liability under section 43(1) – whether sufficient notice of the 1994 Action had been given to the insurer under section 43(2)(b) – interpretation of poorly drafted Statement of Claim in the 1994 Action – rule that in default of Acknowledgment of Service the court looks only to the pleaded facts – construction of pleadings as analogous to contracts, allowing the court to modify language to give the document coherent meaning – paragraph 1 expressly pleaded that plaintiff was employed by both defendants as a painter and was not nullified by later paragraphs pleading principal contractor/sub-contractor relationship – Wong Po-wah v. Pacific Insurance Company Limited; Pang Wai Chung v. Tai Ping Insurance Company Limited; Leung Chack v. Asia Insurance Company Limited; Cribb v. Freyberger; Young v. Thomas; Smith v. Buchan – Issue 1 decided in plaintiff's favour: the 1994 judgment was in respect of employer liability arising out of and in the course of employment – Issue 2 follows from Issue 1: notice dated 28 December 1994 was sufficient – judgment for plaintiff in HK$1,499,840 with interest plus HK$106,115 taxed costs of 1994 Action – costs of the action to the plaintiff – appeal to Court of Appeal dismissed (CACV 421/2002).
Legal issues: Nature of the judgment against Foo Yan under section 43 ECO · Sufficiency of notice to insurer under section 43(2)(b) ECO
Outcome: Judgment for the plaintiff against the defendant.
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