Wan Chee Leung v. Lam Ki Mau and Another t/a Tomson Construction Engineering Co

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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Before: Hon Fung J in Chambers

Date of Hearing: 13 July 2010

Date of Decision: 13 July 2010

Date of Reasons for Decision: 13 July 2010

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REASONS   FOR   DECISION

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1.On 8 February 2010, I gave a decision on what the Defendant was estopped from pleading in the Defence by reason of the decisions of the judge and the Court of Appeal in the related Employee’s Compensation Case of DCEC 415/2004, and directed the Defendant to revise its draft Re-Re-Amended Defence accordingly. The Plaintiff took out this summons upon disagreement on the revised draft.

2.The effect of  my previous decision is that the Defendant was estopped from challenging that:

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

(2)  The Plaintiff was falling from height;

(3)  The Plaintiff was cutting off steel bars as part of clearing the site at the time of the accident;

but it is still at large as to:

(4)  Whether the Defendant was negligent in connection with the Plaintiff’s task in cutting off steel bars;

(5)  Whether the Plaintiff has been suffering from Frontal Lobe Syndrome (“FLS”).

3.Upon framing of issues, it was agreed that:

(1)  Subject to the fact that the Defendant was estopped from challenging the Plaintiff was cutting off steel bars in the course of his employment when he had a fall, the Defendant was at liberty to contest whether it had knowledge and/or specifically instructed the Plaintiff to do so;

(2)   Subject to the fact that the Defendant was estopped from challenging the Plaintiff was under 100% disability and/or having total loss of income up to the date of the EC award,  the Defendant was at liberty to contest that the Plaintiff is malingering and is not suffering from FLS.

4.On such basis, Mr Tam, for the Plaintiff, and Mr Kwok, for the Defendant, has been able to agree on the revised draft.

Costs

5.As the Defendant has to make more concessions on its draft amendment, I ordered the Defendant to pay summarily assessed costs of $10,000 on the summons and the hearing.  There is no order as to costs on the rest of the PTR by reason of the little time taken.

Mr Danny Tam Chi-wai, of 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