Hui Wai Hei v. Hui Hey Tak and Another
Read the full judgment text of DCEC 661/2000 on BabelCite. This District Court judgment.
1. The Applicant suffered injuries as a result of a traffic accident on 3 rd May 1998 (the “ Accident ”). On 28 th July 2000, he issued employees’ compensation proceedings against the 1 st Respondent, whom he alleges to be his direct employer. The 1 st Respondent acts in person and is the Applicant’s elder brother.
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DCEC661/2000 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES' COMPENSATION CASE NO. 661 OF 2000 ______________________ BETWEEN
______________________ Before : Her Honour District Judge Marlene Ng in Chambers (Open to the Public) Date of Hearing : 19th January, 2006 Date of Handing Down Decision : 20th January, 2006 ______________________ DECISION ______________________ Background 1.The Applicant suffered injuries as a result of a traffic accident on 3rd May 1998 (the “Accident”). On 28th July 2000, he issued employees’ compensation proceedings against the 1st Respondent, whom he alleges to be his direct employer. The 1st Respondent acts in person and is the Applicant’s elder brother. 2.The 1st Respondent does not dispute the employer-employee relationship and he accepts that the Accident was work-related. Indeed, the 1st Respondent confirms in Form 2 that the Accident occurred in the course of work and he has paid periodical payments to the Applicant from 3rd May 1998 to 31st December 2003. 3.The 2nd Respondent, an insurance company, has applied to be joined as a respondent to the present proceedings. The 2nd Respondent disputes liability and claims that the Applicant’s injuries did not arise out of or in the course of his employment. The 2nd Respondent takes the view that the alleged employer-employee relationship between the Applicant and the 1st Respondent is suspect. 4.On 1st November 2000, H H Judge Carlson ordered that the Application be adjourned to a date to be fixed for the Applicant to show cause as to why the Application shall be entertained on having been issued more than two years after the date of the Accident (the “Leave Application”). Multiple and voluminous affirmations were filed in support and in opposition of the application by the Applicant and the 2nd Respondent. Eventually on 8th February 2005 (ie more than 4 years later), H H Judge C B Chan granted leave to the Applicant to issue the present employees’ compensation claim out of time. 5.The 2nd Respondent appealed against such order. On 27th April 2005, H H Judge C B Chan ordered that execution of her order of 8th February 2005 be stayed until the determination or other disposal of the 2nd Respondent’s appeal or further order of the court. The appeal was dismissed on 14th June 2005 at the request of the 2nd Respondent. 6.Consequently, the present proceedings were revived in July 2005. The 2nd Respondent filed its Answer on 19th August 2005. The parties filed their respective lists of documents in August/September 2005. On 9th September 2005, I ordered inter alia that witness statements and orthopaedic expert reports be filed and served within 56 days and 90 days respectively. 7.The Applicant filed his own witness statement and that of Szeto Mei Wah (the 1st Respondent’s wife) on 5th December 2005 and his orthopaedic expert reports on the same day. The 1st Respondent has indicated he will not retain any medical expert. I also ordered on 9th September 2005 that the 1st Respondent’s statement dated 25th September 2003 do stand as his witness statement. To date, the 2nd Respondent has not filed or served any witness statement or orthopaedic expert report. 8.Ms Tsui, solicitor for the 2nd Respondent, informs me that the 2nd Respondent does not intend to file any witness statement. The 2nd Respondent may, if considered appropriate, subpoena a relevant witness on the issue of liability. Ms Tsui further informs me that the 2nd Respondent’s orthopaedic expert has examined the Applicant in early January 2006. It is expected that the expert report will be ready before the end of January 2006. 9.In respect of the Applicant’s injuries, the Employees’ Compensation (Ordinary Assessment) Board (the “Board”) has issued a Form 7 on 12th January 2003. The assessment of loss of earning capacity by the Board was 80%. With the court’s leave, the Applicant has lodged an appeal against the assessments in Form 7 out of time. Dr Au Ka Kau, the Applicant’s orthopaedic expert, gave 2 expert reports dated 8th December 2000 and 24th December 2003 respectively. 10.On 16th December 2005 (ie after the expiry of the deadline imposed in my order for the filing and service of witness statements and orthopaedic expert reports), the 2nd Respondent’s solicitors wrote to the Applicant’s solicitors proposing a split trial on liability and quantum. The Applicant’s solicitors rejected such proposal. The summons 11.By a summons dated 7th January 2006, the 2nd Respondent applies for the following orders :
12.The 1st Respondent is absent at the hearing. Ms Tsui informs me that the above summons and her supporting affirmation have been served on the 1st Respondent by post on 9th January 2006. She undertakes to file an affirmation of service to such effect. On such premise, I allowed the hearing to proceed. 2nd Respondent’s case 13.Ms Tsui has filed an affirmation in support of the application. She argues that the circumstances of the alleged Accident raise a number of issues as to whether or not the Applicant was in the course of his employment with the 1st Respondent at the material time. She refers to the earlier affirmations and exhibits filed by the Applicant for the Leave Application. 14.Ms Tsui points out that the Applicant claims that at the material time he was in the course of delivering some shipping documents in relation to Grand Harvest Shipping Company (“Grand Harvest”) to Sheung Shui Parking Lot (the “Lot”) where the 1st Respondent kept a metal documents box (the “Metal Box”) for retrieval by container truck drivers (the “Drivers”). However, according to the police statement of Mr Mak Chi Wai, the passenger of the jeep driven by the Applicant at the material time, he and the Applicant had a late night supper at Tsuen Wan just before the alleged Accident and he was “going home”. Moreover, the police did not find any shipping documents at the scene. 15.Grand Harvest gave specific discovery upon the 2nd Respondent’s application for disclosure of the delivery orders, correspondence, invoices and payment records of and incidental to work order(s) given to the 1st Respondent for deliveries to be undertaken by him on 3rd May 1998. Ms Tsui says that Grand Harvest was unable to locate any such documents and could only locate 3 sets of container control sheets with corresponding cargo receipt and manifest dated about 3rd May 1998. Ms Tsui submits that the Applicant’s allegation is therefore uncorroborated. 16.Ms Tsui argues there is a clear line of demarcation between (a) the Issue or the question of liability which relates to whether the Applicant was in the course of work at the material time, and (b) the issue of quantum which will be based on medical evidence. She submits that an early resolution of the Issue or the question of liability will eliminate the need to prepare the medical and lay evidence for assessing compensation. It is suggested that if the 2nd Respondent succeeds on the Issue or on the question of liability under a split trial, the entire action will be disposed of. Even if the 2nd Respondent fails on those matters, Ms Tsui says it will still “save a lot of the parties’ and the court’s time and costs in trial on both law and facts regarding the issue of liability”. Applicant’s case 17.Mr But of the Applicant’s solicitors has filed an affirmation in opposition of the application. The Applicant claims that his personal injuries were sustained in the course of his employment as a contractor/controller with the 1st Respondent on 3rd May 1998. It is the Applicant’s case that he was at the material time driving a jeep to deliver cargo delivery documents including cargo receipts and export manifests to the Drivers. He lost control, the jeep turned over and he sustained serious injuries to his right upper limb. 18.Mr But refers to the Applicant’s witness statement, which adopts the Applicant’s 5 affirmations filed for the Leave Application. For the convenience of the court, Mr But summarises the Applicant’s position on his employment status in his own affirmation. He first describes the scope of work of a coordinator/controller of the 1st Respondent. 19.According to the Applicant, the clients would call the coordinator/controller of the 1st Respondent to instruct him to get shipping orders from their offices, the shipping forwarders or the shipping companies. Then the coordinator/controller would type the cargo receipt and import/export manifest, liaise with the container terminal for an appointment to load the containers, inform the Drivers when they were to collect the loaded containers and (if necessary) make arrangements for them to pick up empty containers. The aforesaid documents (the “Documents”) would be given to the Drivers, who would sometimes collect them at the 1st Respondent’s office, but more often it was the coordinator/controller who hand delivered them to the Drivers. 20.Since there were long queues at the container terminal, which was open for business for 24 hours, and perishable goods had to be sent to the PRC in the morning, the Drivers had to queue up at about 4:00 am to 5:00 am, so the Documents had to be delivered to the Drivers the day before or in the early hours. Due to heavy workload, it was usual for the coordinator/controller to hand deliver the Documents to the Drivers in the early hours. If there were inadvertent errors in the Documents, the coordinator/controller would have to collect the Documents from the Drivers at the container terminal, make amendments to the Documents at the office and hand deliver the amended Documents to the Drivers. 21.The coordinator/controller had no fixed working hours, which depended on the time of arrival of the loaded containers and the appointed time for collecting the loaded/empty containers at the container terminal. In meeting deadlines imposed by the shipping companies, the clients often left cargo deliveries quite late since the container terminal was open for 24 hours. So the coordinator/controller would have to work even in the early hours. 22.If the Drivers had to collect empty containers from outside depots, the usual practice was for the coordinator/controller to deliver the Documents by hand to the Lot where he would put the Documents into the Metal Box. But if the Drivers had to queue up at the outside depots to pick up the containers, the coordinator/controller would have to hand deliver the Documents (usually in the early hours) to the Drivers at the outside depots. 23.The coordinator/controller also had to keep in touch with the Drivers to see whether they could return to Hong Kong before the cross border checkpoint was closed at 10:00 pm. If they could not do so, the Documents would have to be hand delivered to the Lot. Once the Drivers crossed the cross border checkpoint into Hong Kong, they would telephone the coordinator/controller to take further instructions, eg to pick up the Documents from the Metal Box, to return empty containers to the container terminal or the outside depot, to deliver loaded containers to the container terminal or to collect empty containers for delivery to the PRC. 24.The Drivers were reluctant to come to the 1st Respondent’s office to pick up the Documents since they considered it a waste of time and fuel. They had to cope with a tight schedule (since their income depended on the number and destinations of the container delivery trips), so it was usual for the coordinator/controller to hand deliver the Documents to them. 25.The Applicant claims he did the above work, which required him to travel frequently between the 1st Respondent’s office and the container terminal, the Lot and the offices of the clients, the shipping forwarders and shipping companies. He says he was the overall in-charge of the 1st Respondent’s operations. The 1st Respondent funded him in obtaining a driving licence and provided him with a light goods vehicle. 26.In respect of the Accident, the Applicant had planned to take a day off on 3rd May 1998, the day before his overseas holidays. He tried his best to clear his work on 2nd May 1998 but could not finish due to the workload. He had to finish checking various receipts and other paperwork before going away on his holidays since the accounts clerk required those materials in order to reimburse miscellaneous expenses to the Drivers in/about the middle of the month. The 1st Respondent knew the Applicant was working late at the office because they had a telephone conversation as confirmed by the 1st Respondent’s wife in her witness statement. 27.The Applicant claims that Grand Harvest requested an empty container to be delivered to a PRC factory at 8:00 am on 3rd May 1998. At about 10:00 pm on 2nd May 1998 when the Applicant was still doing paperwork at the 1st Respondent’s office, a Driver informed the Applicant he was unable to return to Hong Kong before the closing of the border. So the Applicant instructed him to return to Hong Kong at 7:00 am the following day to collect the Documents, which the Applicant would hand deliver to the Metal Box. 28.The Applicant’s friend, Mr Mak, came to the 1st Respondent’s office and waited for him whilst he finished his work. They then went to have a late night supper. The Applicant planned to hand deliver the Documents to the Lot before driving Mr Mak home in Yuen Long (which was close to Sheung Shui). After they finished their late night supper in the early hours, the Applicant decided to drive by way of Tuen Mun Highway, Yuen Long Highway and Sheung Shui Man Kam Road to the Lot in order to avoid toll fees. He placed the Documents in the jeep before driving off. As a result of the Accident, many items including the Applicant’s personal belongings were thrown out of the jeep and scattered on the road. The Applicant believed the Documents were so thrown out and lost. 29.Mr But argues that if the court should find that the Applicant’s injuries arose out of and in the course of his employment with the 1st Respondent, then any costs expended in proving compensation will not be wasted. He submits it is not just or convenient to the Applicant to have 2 trials. 30.Mr But further says that to resolve the liability issue, the Applicant, the 1st Respondent and the 1st Respondent’s wife will have to give evidence. Since the 2nd Respondent disputes the Applicant’s pre-accident earnings, the Applicant and the 1st Respondent will have to give evidence on the issue of quantum. It is again not just or convenient for such witnesses to give evidence twice over. 31.It is further suggested that as the Issue involved disputed facts, it is not suitable to be dealt with as a preliminary issue under Order 14A of the Rules of the District Court. The law 32.There is no dispute over the legal principles. Under Order 33 rule 4 of the Rules of the District Court, the court has a discretion to order separate trials on different issues or separate trials on liability and quantum. In exercising its discretion, the court has regard to the following two principles (which are sometimes conflicting) :
At the end of the day, the question whether the general rule may be departed from is a consideration of whether it is “just and convenient” to do so. I refer to Wincheer Investments Ltd v Lobley Co Ltd HCA8145/1992, Findlay J (unreported, 23rd February 1995) ([1995] HKLY 1032) where the learned judge said :
Analysis 33.As rightly pointed out by Mr But, the hotly contested factual issues plainly show that Order 14A of the Rules of the District Court is inapplicable. I need only refer to the following summary of the legal principles by Chu J in Charter National International v Kwok Tak Sun and anor HCA3628/2002 (unreported, 28th October 2005) as follows :
34.But I note that Order 33 rule 4(2) of the Rules of the District Court allows that “one or more questions or issues may be ordered to be tried before the others” in appropriate cases. I am prepared to consider the 2nd Respondent’s application under this rule. 35.However, I must say I am not attracted to the proposition of determining the Issue separately from the overall question of liability. I note that the factual affidavit evidence from both parties (as seen from above) focused on the Issue. Although the 2nd Respondent in its Answer adopted a defence by way of general denial and non-admission, it is unclear what are the other substantive issues of liability that justify a separation of the Issue. Ms Tsui informs me that if I allow the Issue to be tried first, the remaining issues on liability will have to be dealt together with the issue of quantum. This in fact underlines the undesirability of segregating the issues of liability. I agree with Mr But that since the issue of liability involves disputes of fact that require assessment of the credibility of the witnesses, it is not just or convenient to deal with the Issue as a preliminary issue. I see no particular advantage in adopting such approach. 36.Despite the voluminous affirmations filed in relation to the Leave Application, the liability issue is starkly simple and not unusual in employee compensation proceedings, namely :
Of themselves, these 2 issues, which require an assessment of the witnesses’ evidence and taking into account the relevant documents and the submissions of the advocates, do not necessarily justify a split trial. When the materials that relate specifically to the Leave Application are pared off, the factual matters in the Applicant’s affirmations, which now stand as his witness statement, and in the affirmations filed by the 2nd Respondent’s solicitors for the Leave Application, which reflect to some degree the case of the 2nd Respondent, do not turn on a large compass. They essentially revolve around Applicant’s job, his scope of work and what he was doing on 2nd and 3rd May 1998. 37.In this respect, the observations of Stephenson LJ in Coenen v Payne and anor [1974] 1 All ER 1109, an authority referred to in Hong Kong Civil Procedure 2006 Vol.1 para.33/4/11 at pp.576-577, are pertinent. Although this is a personal injury case, the observations below are also applicable here :
38.Mr But also draws my attention to the following passage from Findlay J’s judgment in the Wincheer Investments Limited case (supra) :
39.Whilst it must be true that a finding in favour of the 2nd Respondent that the Accident was not work-related or that the Applicant was not an employee of the 1st Respondent will obviate the need to consider the issue of compensation, I am not persuaded there will be the substantial savings suggested. I am also not with Ms Tsui when she says that even if the 2nd Respondent fails on the issue of liability, there will be substantial savings in time and costs. Such scenario necessitates an assessment of compensation and logically 2 trial hearings will be more time and cost consuming than 1 trial that deals with both liability and quantum issues. 40.Apart from the issue of expert medical evidence which I will come to in a moment, a contested issue on quantum is the Applicant’s earnings. Ms Tsui has indicated that the 2nd Respondent will not call any lay witness on this issue, so its main line of attack will be cross-examination of the Applicant and the 1st Respondent. On such basis, there is no justification for a split trial that may possibly require the Applicant and the 1st Respondent to give evidence twice. 41.As regards the Applicant’s injuries and disabilities, the medical evidence before me show they have stabilised long ago, such that medical assessment by the Board was done in 2003 and Dr Au Ka Kau was able to render his expert reports in 2000 and 2003. This removes any concern that the element of compensation may be uncertain because no firm prognosis is possible or because the injuries have not reached maximum medical improvement. Having read the government medical reports and Dr Au Ka Kau’s reports (the 2nd Respondent not having filed or served its orthopaedic expert report in compliance with my order), it cannot be said that the compensation issue and/or the appeal against the assessments by the Board raise detailed or complicated issues. Indeed, on the evidence before me, the medical evidence is straightforward and I cannot see how it will add substantial length or complexity to the trial. 42.If one considers the costs of expert medical evidence, I bear in mind that both the Applicant and the 2nd Respondent have already incurred the costs of retaining medical experts to prepare expert reports. The Applicant has incurred those costs when Dr Au prepared his reports in 2000 and 2003. Ms Tsui informs me that the 2nd Respondent’s orthopaedic expert report will be ready in a week’s time. There will be no substantial savings even if a split trial is ordered. 43.More importantly, I bear in mind that the Accident happened in May 1998 and the case has not been set down for trial as yet for more than 7.5 years after the Accident. Since the credibility of witnesses is in issue, it is not conducive to a just and efficient disposal of the present proceedings if there is any further delay to a final resolution. 44.I also take into account that ever since the 2nd Respondent’s appeal against the decision of H H Judge C B Chan was dismissed, all parties have taken steps to progress the matter to full trial on both liability and quantum. I have made an order for the filing and service of witness statements and expert medical reports. The Applicant has filed/served witness statements on both liability and quantum issues and his orthopaedic expert reports. Indeed, had the 2nd Respondent complied with my order dated 9th September 2005, the present proceedings would have been ready, subject to the few issues referred to below, for setting down for full trial on liability and quantum by the end of December 2005. I see no particular advantage in arresting the case from full resolution with a split trial direction. 45.I am not persuaded that the present case is appropriate for taking it out of the general rule for a split trial first on the Issue or on liability. Although the case of Wong Hin Pui v Mok Ying Kit and anor HCPI763/1997, Seagroatt J (unreported, 29th March 1993) is a personal injury case, it is still worthy of consideration for employees’ compensation cases. There, the defendant asked the learned judge to consider a split trial. Seagroatt J said at para.16 that :
46.Balancing the interests of both parties and upon considering all the circumstances as well as the submissions of Mr But and Ms Tsui, I do not find it just or convenient to further delay the full trial of this matter. 47.In light of the substantial time lapse since the commencement of proceedings in the present case, let alone since the date of the accident, it is appropriate for me to take this opportunity to remind practitioners generally that employees’ compensation cases should be dealt with simply and expeditiously for the benefit of the employee applicants, and indeed also for the benefit of any other involved parties. I can do better than to refer to the judgment of H H Judge To in Lam Kin Man v Kowloon-Canton Railway Corporation DCEC412/1997 (unreported, 29th October 1998) as follows :
Conclusion 48.The 2nd Respondent’s summons dated 7th January 2006 is dismissed. I grant a costs order nisi that the 2nd Respondent do pay the costs of the application to the Applicant and to the 1st Respondent to be taxed if not agreed. The Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations. 49.At the hearing I have invited the parties to address on the appropriate directions that should follow. With the consent of both Mr But and Ms Tsui, I grant leave to the 2nd Respondent to file and serve its orthopaedic expert report on or before 14th February 2006. 50.Upon further review of the court file after the hearing, it appears there are a few outstanding matters, which should be more appropriately dealt with at a case management hearing before setting down the case for trial. I direct that the Applicant do arrange with my clerk (and on written notice to the 1st and 2nd Respondents) to fix a case management hearing in chambers (open to the public) with 15 minutes reserved before me on a date after 14th February 2006. I set out below some of the issues I require the parties to address at the case management hearing. 51.I note that there are as yet no expert directions for adducing medical expert evidence. It appears that both the Applicant and the 2nd Respondent have retained orthopaedic experts. There is a question as to the status of the occupational therapy report by Ms Shelly Chow being exhibit “HWH-26” of the 3rd affirmation of the Applicant dated 14th July 2004, which now stands as part of the Applicant’s witness statement. The parties should also be ready to address the court on whether the orthopaedic experts are required to give oral evidence at the trial. 52.At the hearing on 22nd July 2005, I enquired with the 2nd Respondent’s solicitors the basis for suggesting that this court (when exercising employees’ compensation jurisdiction) can also deal with the 2nd Respondent’s Notice of Contribution and Indemnity filed on 7th March 2005. This should also be resolved before the case is set down for trial.
Mr But Man Tai of Messrs T S Tong & Co for the Applicant. The 1st Respondent in person and absent. Ms Tsui Yau Har of Messrs Henry H C Wong & Co for the 2nd Respondent. | ||||||||||||||||||||||||||||||||||||||||||||||||