Wan Chee Leung v. Lam Ki Mau and Another

HCPI 95/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 95 OF 2006

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BETWEEN

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Before: Hon Fung J in Chambers

Date of Hearing:  2 February 2010

Date of Decision:  8 February 2010

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D E C I S I O N

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1.The Defendant is applying to file a Re-Re-Amended Defence. The Plaintiff is objecting on the grounds of res judicata.

Background

2.The Plaintiff was a construction worker. The Defendant was a construction company.

3.On 18 June 2003, the Plaintiff was injured at the site when falling 2 storeys from the building. He claimed to have lost balance on the scaffold upon being startled by sparks let off by the welding machine when cutting protruding steel bars off the external wall.

4.The Plaintiff (Applicant) filed proceedings under the Employees’ Compensation Ordinance (Cap. 282) (“ECO”) against the Defendant (Respondent) in DCEC 415/2004. He originally pleaded a fall when doing cleaning work, later amended to a fall when cutting protruding steel bars. He claimed to be permanently disabled by reason of psychiatric condition resulting from Frontal Lobe Syndrome (“FLS”).

5.The Plaintiff did not give evidence in the EC proceedings, but relied on his statement describing the accident contained in a declaration made to an officer of the Labour Department.

6.The Defendant denied employment in the EC proceedings, alleging the Plaintiff had resigned 4 days before the accident.

7.Judge Chow held against the Defendant in the EC proceedings. His Honour rejected the evidence of the defence witness, and relied on the prescribed Form 2 filed by the Defendant to the Labour Department stating the Plaintiff had fallen from 2/F when clearing the site. The judge made an award based on 100% permanent disability.

8.The Defendant appealed against the award (CACV 40/2007) and the Court of Appeal dismissed the appeal in a judgment dated 20 December 2007.

9.The Defendant now seeks to argue in the PI proceedings the mode of the accident and the Plaintiff’s medical condition and work capability based on current medical evidence.

10.Upon the framing of issues, Mr Kwok, for the Defendant, accepted that:

(1)  The Plaintiff was an employee of the Defendant;

(2)  The Plaintiff had fallen from height in the course of employment;

(3)  The Defendant was under 100% disability at the time of the EC award.

11.Mr Kwok, however, sought to raise in the draft Re-Re-Amended Defence that:

(1)  The Plaintiff was not clearing the site at the time of the accident;

(2)  Alternatively, that the Plaintiff was not cutting off protruding steel bars at the time of the accident;

(3)  The Plaintiff does not have FLS;

(4)  He is malingering on his psychiatric condition;

(5)  He is not suffering from 100% disability.

12.Mr Chan, for the Plaintiff, contended that the draft pleadings relating to liability are res judicata by reason of the EC and the appeal judgments.

13.As to quantum, Mr Chan was content to let the re-re-amendment in and leave the plea of res judicata with the trial judge.

Defendant’s submissions

14.Mr Kwok submitted that:

(1)  The learned judge did not make any finding that the Plaintiff was cutting off protruding steel bars with a welding machine at the time of the accident and no res judicata and/or issue estoppel will arise;

(2)  Insofar as the judge did find that the Plaintiff had a fall when clearing the site, the Defendant should be allowed to reopen the finding based on new evidence under the exception of special circumstances allowing relitigation (see Arnold & ors v National Westminster Bank PLC [1991] 2 AC 93).

15.Mr Kwok referred to Arnold V NatWest (supra) that where further material became available which was relevant to the correct determination of a point involved in earlier proceedings but could not, by reasonable diligence, have been brought forward in those proceedings, it gave rise to an exception to issue estoppel.

Plaintiff’s reply

16.Mr Chan submitted that:

(1)  The judge had made the express finding that the Plaintiff had a fall when clearing the site;

(2)  The Court of Appeal had found that the judge did find that “clearing the site” included “cutting off protruding steel bars”.

Discussion

17.On “cutting off protruding steel bars”, Mr Chan conceded that the judge did not make an express finding as such, but the Court of Appeal held that the judge did find “clearing the site” included “cutting off protruding steel bars” (see para. 82).

18.Before the Court of Appeal, Mr Kwok argued that the judge had not made adequate and proper findings of fact to justify his decision. The Plaintiff’s pleaded case was injury whilst cutting off protruding steel bars, but the judge relied on Form 2 and made the finding of injury when clearing the site (paras. 55 to 56).

19.The learned judge had referred to the Plaintiff’s declaration in his judgment. He noted that the declaration was made in November 2003, and medical records showed that the Plaintiff’s condition gradually stabilized in July 2003, and a mentally disordered patient could not have made such a detailed declaration. The Plaintiff had served a hearsay notice to rely on the declaration, and if the Defendant had any doubt over the declaration, they should have called the officer who took it (see para. 8).

20.In the end, the judge found the information contained in Form 2 correct and accurate, and found the Plaintiff was an employee of the defendant on the date of the accident, and he was injured in the course of work, hence, the Defendant had to make compensation (paras. 23 & 23).

21.In that context, the Court of Appeal held that “clearing the site” included “cutting off protruding steel bars”.

22.Mr Kwok submitted that under s. 5 of ECO, the necessary requirement for liability to pay compensation was personal injury by accident arising out of and in the course of the employment caused to an employee. Even if reading the EC and appeal judgments together, the judge did make a finding that the Plaintiff had an accident when cutting protruding steel bars, the mode of the accident is not a necessary finding for the award of compensation.

23.Mr Kwok referred to Keen Lloyd Energy Ltd v Bank of China (Hong Kong) Ltd HCA 1299/2004 & 1029/2006 (11 January 2008 per Poon J) that:

“12.  However, even when the court has expressly determined the same issue in the earlier proceeding, an issue estoppel will not necessarily result.  Only determinations which are necessary to the decision, and fundamental to it, will found an issue estoppel.  Other determinations, however positive, cannot : Spencer Bower, Turner and Handley on The Doctrine of Res Judicata, para. 201 at p.103.  The inquiry is : is the determination such that without it the judgment cannot stand?  See Spencer Bower, para. 202 at p. 105.”

24.Mr Kwok submitted that no res judicata will arise in respect of the finding of “cutting off protruding steel bars”.

25.With respect, the Defendant’s appeal was dismissed and the EC award was affirmed on the basis that “clearing the site” included “cutting off protruding steel bars”. Hence, cutting off protruding steel bars was a necessary finding of fact in the EC proceedings as a whole.

26.That said, apart from the finding of “cutting off protruding steel bars”, I do not find any determination on the truth and accuracy of the declaration of the Plaintiff by either the judge or the Court of Appeal. Hence, issues as to negligence in the operation of cutting off protruding steel bars is still at large. As such, the Defendant is at liberty to plead and argue them at the trial.

27.On the broader attempt to reopen “clearing the site”, Mr Kwok pointed out that the Plaintiff did not give evidence at the EC trial and relied on his declaration only. His case must have been assessed on the basis that he was under some mental disability excusing him from giving evidence and being subject to cross-examination. At present, medical evidence strongly suggests malingering, which will affect the Plaintiff’s credibility on the mode of the accident.

28.At the EC proceedings, the medical evidence was that Dr Singer, the Plaintiff’s psychiatric expert, opined psychiatric problem due to FLS, while Dr WT Law, the Defendant’s psychiatric expert, opined no FLS. And Dr Edmond Woo, the Plaintiff’s neurological expert at ECC opined that absence of primitive reflexes or paratonia in segmental examination militated against FLS.

29.In the present proceedings, Dr Woo has become the Defendant’s neurological expert, and Dr Brian Choa, the Plaintiff’s present neurological expert, agreed with Dr Woo as to malingering. Now even Dr Singer conceded that there is an element of exaggeration.

30.Mr Kwok submitted that it is just and equitable to allow the Defendant to reopen the finding on “clearing the site”.

31.As I see it, Judge Chow did not find for the Plaintiff simply because he had found him to be credible. The learned judge rejected the defence witness that the Plaintiff had resigned because:

(1)  The defence witness was inconsistent in his testimony;

(2)  The wage record showed that the Plaintiff had resigned but resumed duty shortly before the accident;

(3)  Form 2 filed by the Defendant to the Labour Department reported that the Plaintiff had a fall when clearing the site.

32.Hence, I do not see the present medical evidence constitute such exceptional circumstances allowing relitigation on “clearing the site” (or by the same token “cutting off protruding steel bars”).

33.In the light of my decision, Mr Kwok may have to recast the draft re-amendment. I shall ask counsel to agree on the revised draft, and to submit the draft order (on consequential amendment, if necessary), reserving any disagreed points for my ruling.

Mediation

34.Notwithstanding the result of this episode, given the present state of issues and medical evidence, earnest and objective advice on the risk of litigation should be well received.

35.Hence, I order the parties to file mediation certificates, and the lay clients to attend briefing by the Mediation Information Office. Failure to attend shall be reported to the Court by the MIO.

Costs

36.I make an order nisi that the Plaintiff is to pay ¾ of the costs of the hearing to the Defendant. I ask both sides to submit their respective skeleton bills for reference.

Mr Daniel K K Chan, instructed by Messrs T S Tong & Co., assigned by the Director of Legal Aid for the Plaintiff

Mr Tim Kwok, instructed by Messrs Day & Chan, for the Defendant