Fong Chak Kwan v Ascentic Ltd And Others

HCPI 242/2016

[2020] HKCFI 679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 242 OF 2016

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JUDGMENT

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I. BACKGROUND

1. The plaintiff (“P”), a Hong Kong permanent resident, claimed he was employed by the 1^st defendant (“D1”) and/or the 2^nd defendant (“D2”) as a site service specialist pursuant to an “Employment Contract” signed by P, D1 and D2 on various dates in February 2014 (“Employment Contract”). Relevant clauses of the Employment Contract are set out in the schedule to this Judgment (“Schedule”). For convenience, I adopt the abbreviations in the Schedule. D1 by its Amended Defence filed on 9 June 2017 (“Amended Defence”) admitted P was employed by D2 as a site service specialist, but denied P was ever an employee of D1 at any material time.

2. P worked at a sewage treatment factory (“Factory”) in Ningbo City, Mainland China (“Ningbo”).[1] P claimed that on 10 October 2014:

(a)	D1 and/or D2, their servants and/or agents assigned him to perform check on the civil works of a primary sedimentation tank at the Factory and to inspect the excavator to be installed on the site;
(b)	after inspection of the excavator he walked onto a metal plank covering a trench of a DSR aeration tank with depth of more than 4m (“Accident Area”);
(c)	the plank collapsed thereby causing him to fall into the trench (“Accident”);
(d)	he suffered serious injuries to his left shoulder, left leg and head (which caused defect in eye vision) as a result of the Accident.

3. On 7 March 2016, P commenced the present action against D1 and D2 (collectively, “Ds”) for damages for personal injury, loss and damage that P sustained in the Accident allegedly caused by D1 and/or D2 and their servants and/or agents (with interest and costs) on the basis of (a) negligence, (b) breach of occupiers’ liability, (c) breach of implied terms of the employment contract, and (d) breach of statutory duty[2]. On the same day, P filed his Statement of Claim (“SoC”) and Statement of Damages (“SoD”).

4. According to the joint expert neurology report dated 23 March 2016 (“Jt Neuro Report”), Dr Brian Choa (P’s expert) and Dr Yu Yuk Ling (D1’s expert) opined that P sustained a mild to moderate brain injury and a mild post-concussion syndrome as a result of the Accident. In the joint orthopaedic expert report dated 12 April 2016 (“Jt Ortho Report”), Dr Kong Kam Fu James (P’s expert) and Dr Cheng Hung Fai David (D1’s expert) were of the view that the Accident was the sole cause of P’s various orthopaedic injuries,[3] and there was no relevant pre-existing pathology of P’s injured parts.

5. By its Defence filed on 12 October 2016 and its Amended Defence filed on 9 June 2017, D1 disputed liability and averred inter alia that (a) D2 and not D1 was P’s employer, (b) in respect of the Factory, D1 was not an occupier, a contractor responsible for the construction site or a proprietor of the industrial undertaking, (c) D1 never assigned P to work at the Factory, (d) D1 did not owe P any statutory duty and/or any duty under any employment contract, and (e) D1 was not negligent and the Accident was wholly/substantially caused by P’s own contributory negligence.

6. By his Reply filed on 25 October 2016 and his Amended Reply filed on 3 August 2017, P averred both Ds were parties to the Employment Contract and his de facto employers, and denied he was contributorily negligent.[4]

7. On 29 June and 26 September 2016, P filed (a) 2 ex parte summonses for leave to serve a concurrent writ of summons on D2 out of jurisdiction (“P’s Summonses”), and (b) his 1^st and 2^nd affirmations in support of P’s Summonses (“P 1^st and 2^nd Affs”). On 12 October 2016, P filed the affirmation of his solicitor Kenneth Lam (“Lam”) (“Lam 1^st Aff”) to seek leave to withdraw Ps’ Summonses with no order as to costs on the basis that such summonses were unnecessary for P’s ex parte application for leave to issue a concurrent writ of summons and to serve it out of jurisdiction. By an order dated 17 October 2016 (“Yu Order”), Master Roy Yu (i) granted leave for P to withdraw P’s Summonses with no order as to costs, to issue a concurrent writ of summons, and to serve it on D2 “at its USA address at 500 Spring Ridge Drive, Reading, PA19610, United States [“US Address”] or elsewhere in USA”, and (ii) directed D2 to acknowledge service within 28 days from such service.

8. On 7 November 2016, P issued the Concurrent Writ of Summons (“CWoS”). On 16 June 2017, P filed Lam’s 2^nd affirmation (“Lam 2^nd Aff”) to the effect that the Chief Secretary for Administration by letter dated 2 May 2017 confirmed the CWoS and other documents had been served on D2 on 1 March 2017 by an agent of the central authority of the United States. D2 did not file any acknowledgment of service and/or appear in the present action. On 4 July 2017, interlocutory judgment was entered in P’s favour against D2 for damages to be assessed and costs to be taxed (“D2 Judgment”).

9. On 14 August 2017, P filed the Revised Statement of Damages (“RSOD”). On 11 October 2017, D1 filed its Answer thereto (“Answer”).

10. On 9 January 2018, P filed (a) an ex parte summons inter alia for leave to serve the D2 Judgment on D2 at the US Address or elsewhere in the United States, and (b) P’s 3^rd affirmation in support of such summons (“P 3^rd Aff”). On 16 January 2018, Master Roy Yu granted an order in terms of (a) above.

11. On 31 January 2018, P filed his 4^th affirmation to support his ex parte application for leave to serve various orders made by Master Roy Yu between 11 January and 18 December 2017 (“1^st Documents”) on D2 out of jurisdiction (“P 4^th Aff”). On 9 February 2018, Master Roy Yu granted an order in terms.

12. P and D1 eventually agreed to settle P’s claim against D1 in the present action (“Settlement”). On 18 May 2018, Master Roy Yu granted an order by consent as between P and D1 inter alia as follows:

(a)	on an entirely without admission of liability basis and without prejudice to P’s right to proceed with his claim against D2, D1 shall pay P an ex-gratia payment of $325,000 (inclusive of interest but net of any advance payments already received by P as a result of the Accident) (“Settlement Sum”) in full and final settlement of all his claims against D1 in the present action;
(b)	on an entirely without admission of liability basis, D1 do pay P through the Director of Legal Aid an ex-gratia payment of $250,000 (inclusive of interest) (“D1’s Costs”) in full and final settlement of all costs and disbursements between P and D1 in the present action;
(c)	D1 do pay the mediator’s fee of $15,000 (“Mediator Fee”);
(d)	upon payment of the Settlement Sum, D1’s Costs and Mediator Fee, P shall release/discharge D1 and its insurer (if any) from all liabilities, actions, claims, proceedings, losses, damages, costs and expenses in respect of all P’s claims in the present action, and P shall not bring any further claim (statutory or common law) or any legal action/ proceedings against D1 and its insurer (if any) either in Hong Kong or elsewhere in respect of the Accident and the loss, damage and injuries P might have sustained (if any) in consequence thereof.

13. By letter dated 11 June 2018, the Chief Secretary for Administration confirmed to P’s solicitors that on 3 May 2018 the 1^st Documents and the D2 Judgment had been served on D2 by an agent of the central authority of the United States.

14. On 20 July 2018, P filed his 5^th affirmation in support of his ex parte application for leave to serve various orders made by Master Roy Yu between 5 March and 12 June 2018 and P’s summons filed 10 July 2018 (“2^nd Documents”) on D2 out of jurisdiction (“P 5^th Aff”). It was unclear from the hearing bundle what was the outcome of this ex parte application.

15. On 23 July 2018, the Employees Compensation Fund Board (“Board”) filed a summons for leave to intervene in the present action (“Board Summons”), and the affirmation in support (“Li 1^st Aff”) by its solicitor Li Ding (“Li”).

16. On 26 July 2018, Master Roy Yu (a) granted leave for the Board to join the present action as the 3^rd defendant (“D3”) pursuant to section 25A(a) of the Employees Compensation Assistance Ordinance Cap 365, (b) granted consequential case management directions, and (c) directed D3 to take out applications to set aside the Yu Order and the D2 Judgment (if so advised by counsel) within 56 days thereof. On 7 August 2018, P filed the Amended Writ of Summons (“AWoS”) by adding the Board as D3.

17. On 1 November 2018, D3 filed a summons for the following reliefs (“Summons”):

(a)	the Yu Order that granted leave for P to issue/serve the CWoS be set aside or discharged as the case may be;
(b)	the CWoS issued by P in the present action and the service thereof on D2 pursuant to the Yu Order be set aside;
(c)	a declaration that in the circumstances of the case the court had no jurisdiction over D2 in respect of the subject-matter of P’s claim;
(d)	the D2 Judgment against D2 be set aside;
(e)	alternatively, without prejudice to (a)-(c) above and D3’s position that this court had no jurisdiction, should this court regard itself