Gill Ajmer Singh v. Wah Hing Scaffolding Engineering Ltd and Another

HCPI 582/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 582 OF 2011

BETWEEN

______________

D E C I S I O N
______________

1.This is the defendants’ application to strike out the statement of claim for abuse of process.

Background

2.This case concerned alleged industrial accident on 20 August 2008 causing an eye injury.  In the related employees’ compensation action (DCEC 248/2010), Deputy District Judge R. Lai said in the judgment: -

“I find that the applicant has failed to prove on balance of probabilities that an accident as alleged had occurred on 20 August 2008.”

“If I were wrong in holding that the alleged accident did not occur on 20 August 2008, I will find that the alleged accident, if occurred, did not cause the accident.”

3.Paragraphs 6 to 8 of the Statement of Claim in the current case stated that the plaintiff is claiming damages “caused by negligence and breach of statutory duty of the 1^st and 2^nd Defendants….and the breach of contract of employment by the 1^st Defendant” in the same accident.

4.The defendants submitted that the allegations raised in the current claim has already been raised and decided in earlier proceedings. Re-litigating the same allegations is an abuse of process (Lord Maugham LC in New Brunswick Ry Co v British & French Trust Corp [1939] AV 1 (HL) and Sze Lai Man v The Wing On Department Stores (Hong Kong) Limited HCPI 262/1996).

5.The plaintiff’s argued that he disagreed with some of the factual findings in the judgment concerning, eg his communication skills in English and certain evidence (Form 2 filed by the defendants and the opinion of the joint experts).

6.The correct way to raise such disputes lies in appealing against the judgment, not initiating a new action at High Court.

7.In fact, such an appeal has been initiated, but the Court has subsequently granted a Security for Costs order.  The plaintiff did not appeal against this order. He failed to pay the security for costs and the appeal was dismissed.

8.The plaintiff also argued that he has “new medical evidence” to “prove” that his work was the reason for his current condition.

9.During the hearing, the plaintiff identified that this “new medical evidence” was a supplemental medical report dated 7 July 2013 by Dr Alfred Leung.

10.I have taken some time to go through this.

11.My reading of this report was that Dr Leung was careful to qualify himself by stating that he did not know the cause of the plaintiff’s eye disease because he was not the attending eye specialist to see the plaintiff first after the accident, but if the accident described by the plaintiff was found to be true, it was possible that the accident could cause a progression of the plaintiff’s pre-existing eye disease.

12.In my view, such an opinion, even if accepted by the court, is very far from satisfying the “causation test” in negligence.  In other words, this “new evidence” cannot “prove” that his work or the accident was the cause for his current condition, notwithstanding that Deputy District Judge R Lai has already found that the accident did not occurred as alleged.

13.In any case, this supplemental expert report appeared to pre-date the employees’ compensation trial by about one week and, for whatever reason, the plaintiff, and those advising him, must have taken the decision not to apply to court to adduce it.

14.The plaintiff also raised criticisms on the conduct of the joint experts during the examination.  When asked why he did not raise this to his then solicitors, he explained that he did but the solicitors failed to take action.

15.I find it incredible that the plaintiff is now alleging that he has met incompetent treating doctors (who failed to record his complaints properly), has met incompetent experts (who failed to examine him properly) and has also instructed incompetent solicitors (who failed to take action after being aware of the incompetent experts), and yet he has evidently allowed the employee’s compensation trial to proceed.

16.The plaintiff also asked that the court should grant leave for new experts to be instructed.  He said he was sure that the new experts would support his claim.

17.Given my findings above, there is no reason to support the plaintiff’s application.

18.As such, this claim is an abuse of process.

Order

19.I would therefore give the following orders: -

(a) The plaintiff’s Statement of Claim be struck out and the plaintiff’s claim against the 1^st and 2^nd defendants be dismissed accordingly; and

(b) The plaintiff shall pay the costs of the 1^st and 2^nd defendants in this action including this application to be taxed if not agreed.

The plaintiff appeared in person

Ms S Kong, of Cheng Yeung & Co, for the 1^st and 2^nd defendants