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Lau Lan Ying v Top Hill Co And Another

Judgment Cited authorities 31 Cited in 1 Precedent Map Related
Vincent
Judgment Date04 February 2021
Neutral Citation[2021] HKCFI 290
Judgement NumberHCPI6/2020
Subject MatterPersonal Injuries Action
CourtCourt of First Instance (Hong Kong)
HCPI6/2020 LAU LAN YING v. TOP HILL CO AND ANOTHER

HCPI 6/2020

[2021] HKCFI 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 6 OF 2020

________________________

BETWEEN

LAU LAN YING Plaintiff
and
TOP HILL COMPANY 1st Defendant
YICK HING CONSTRUCTION COMPANY LIMITED
2nd Defendant
and
ASIA INSURANCE CO LTD Third Party

________________________

Before: Hon Marlene Ng J in Chambers

Date of Hearing: 8 December 2020

Date of Handing Down Decision: 4 February 2021

________________________

D E C I S I O N

________________________


I. INTRODUCTION

1. The 2nd defendant (“D2”) was the principal contractor of a construction site in respect of slope stabilisation works under a government slope maintenance project (ie Landslip Prevention and Mitigation Programme (Hong Kong Government’s Works Contract No GE2015/02), “Works”) at slope feature no 3NW-D/C106 in Ta Kwu Ling, Ping Che Road, New Territories (“Slope”). D2 subcontracted the Works to the 1st defendant (“D1”).

2. The plaintiff (“P”) claimed D1 employed her as a casual worker, and assigned her to carry out the Works on the Slope. P alleged that:

(a) when the Works were nearly finished most areas of the Slope were fenced off leaving a concrete pathway on the Slope (“Pathway”);
(b) her co-workers were instructed to dismantle the Pathway and to pave stairs thereat;
(c) sand/rocks were left all over the Slope as her co-workers dismantled the Pathway;
(d) she was instructed to clear some trash and working tools left on the Slope by her co-workers;
(e) after finishing clearing some such trash and working tools on 22 November 2017 she slipped and fell on some sand/rocks causing her to suffer bodily injuries (“Accident”).

3. On 13 September 2019, P commenced DCEC2203/2019 against D1 and D2 (collectively, “Ds”) by filing an Application to claim employees’ compensation (“EC”). On 22 May 2020, D2 filed an Answer to P’s Application.

4. On 2 January 2020, P commenced the present action against Ds for loss/damages she suffered as a result of the Accident, which P claimed were caused by negligence, breach of contract of employment, and breach of statutory duties on the part of Ds and their servants, agents and/or employees. On the same day, P filed her Statement of Claim and Statement of Damages. On 18 May 2020, D2 filed its Defence disputing liability.

5. On 3 June 2020, D2 filed a summons under Order 16 rule 2 of the Rules of the High Court (“RHC”) (“TPN Summons”) for leave to issue/serve a third party notice against Asia Insurance Co, Ltd (“TP”). On 3 June 2020, D2 filed the affirmation of its sole director Yuen Chung Yuen Edward (“Yuen”) in support. On 26 June 2020, TP filed the affidavit of its Assistant Vice President – Claims Kwong May Yin Erin (“Kwong”) and the affirmation of a consultant of TP’s loss adjuster Integrity Adjusters Limited (“Integrity”) Lau Chun Fai (“Lau”) in opposition. On 2 July 2020, Master Grace Chan granted leave for D2 to issue/serve a third party notice against TP.

6. On 7 July 2020, D2 commenced third party proceedings by filing its Third Party Notice (“TPN”) against TP for “an indemnity in respect of all [P’s] claim arising out of and in connection with the Accident and the costs of this action or contribution to the extent as may be found by the Court to be just and equitable in respect of [P’s] claim as well as [D2’s] own costs in defending this action, having regard to [TP’s] responsibility for such damages and/or costs on the ground that [TP is] the insurer of [D2’s] employee compensation insurance”. The grounds of D2’s claims against TP were as follows:

(a) D2 and D1 were respectively the principal contractor and sub-contractor of the Works at the Slope;
(b) P was allegedly D1’s employee assigned to work on the Works on the date of the Accident and allegedly suffered the Accident;
(c) D2 as principal contractor was responsible to pay compensation for work injuries suffered by its sub-contractor’s employees;
(d) at the time of the Accident, D1 did not have any EC insurance policy coverage, but D2 was covered by EC policy no AMK/ECC/ 15-0804491 with TP (“Policy”) effective from 15 June 2015 to 31 October 2018;
(e) on 27 November 2017 “[D2] notified [TP] the Accident and commenced the insurance claim of [P]”, and on 8 December 2017 TP acknowledged the notification;
(f) since then D2 complied with TP’s request to submit information as regards the Accident, including inter alia reports to the Labour Department, medical reports, sick leave certificates and receipts, but TP through Integrity notified D2 by letter dated 30 April 2019 that policy liability under the Policy was repudiated and TP would no longer process P’s insurance claim.

7. On 8 July 2020, TP by its solicitors filed acknowledgment of service to give notice of intention to defend the TPN. On the same day, TP filed a summons (“Stay Summons”) to stay the third party proceedings in the present action for arbitration pursuant to section 20(1) of the Arbitration Ordinance Cap 609 (“AO”) and Order 12 rule 8 of the RHC.

8. On 28 July 2020, this court granted directions for filing and serving/lodging affidavits and submissions for possible paper disposal of the Stay Summons. On 14 July 2020, TP filed Kwong’s 2nd affidavit in support. On 27 August 2020, D2 filed Yuen’s 2nd affirmation (“Yuen 2nd Aff”) in opposition. On 24 September 2020, TP lodged written submissions of its counsel Mr D Leung with 38 authorities. On 28 September 2020, D2 lodged written submissions of its counsel Mr M Leung with 11 authorities. On 8 October 2010, TP lodged D3’s reply submissions with another 14 authorities. Given the abundance of authorities cited by counsel, paper disposal was inappropriate. On 15 October 2020, this court directed the parties to attend oral hearing on 8 December 2020 with 1.5 hours reserved to hear oral submissions on the Stay Summons (“Hearing”).

9. Shortly before the Hearing, Mr D Leung submitted 2 further authorities, thus growing the total number of authorities cited by counsel to 65. But it transpired from oral submissions at the Hearing that the points of dispute on the Stay Summons were quite narrow.

II. POLICY AND REPUDIATION

10. Yuen believed D1 did not have insurance policy coverage to cover claims by its employees who were injured on duty, but Yuen accepted D2 as principal contractor was liable to cover P’s claims in the present action if she succeeded in proving inter alia she was employed by D1 to work on the Works at the Slope, D1/D2 were liable for her work injury, and the quantum of her loss/damages. Yuen said D2 purchased the Policy in discharge of its obligation under section 40 of the Employees’ Compensation Ordinance Cap 282 (“ECO”).

11. There was no dispute that:

(a) TP issued the Policy on 5 August 2015;
(b) the Insured under the Policy was D2 as principal contractor and all its sub-contractors and sub-sub-contractors (with exceptions not relevant here) engaged in the Works and collectively insured pursuant to section 40(1B) of the ECO;
(c) by the Policy TP agreed to indemnify D2 in respect of liability arising from bodily injury or death of all employees of D2, its sub-contractors and its sub-sub-contractors of the Works from 15 June 2015 to 14 December 2017 (extended to 31 October 2018) subject to the terms and conditions of the Policy;
(d) the Policy was valid and effective on the date of the Accident;
(e) clause W204 of the Policy[1] applied to employees of D2’s sub- contractors;
(f) D2 wrote to TP on 29 November 2017 enclosing Form 2 dated 27 November 2017 concerning the Accident as completed by D2;
(g) on 8 December 2017, TP by letter acknowledged receipt of Form 2, and asked D2 to keep it informed of developments and to provide the documents listed in the attachment thereto;
(h) correspondence ensued between D2 and TP in 2018-2019;
(i) by Integrity’s letter on 30 April 2019, TP repudiated policy liability under the Policy, and declined to further process the insurance claim in relation to P’s alleged work injury as a result of the Accident on the basis that D2 had breached Claims Settlement Condition (b)(i)[2] of the Policy for failing to provide information requested in Integrity’s letter dated 26 February 2018 despite 6 reminders and Integrity’s further letter dated 7 January 2019;
(j) the Policy contained an arbitration clause under General Condition (g) as follows (“Clause”):
“Arbitration. All differences arising out of this Policy shall be determined by arbitration in accordance with the prevailing Arbitration Ordinance. If the parties fail to agree upon the choice of the arbitrator, then the choice shall be referred to the chairman for the time being of the Hong Kong International Arbitration Centre. It is expressly stipulated that it shall be a condition precedent to any right of action or suit upon this Policy that an arbitration award shall be first obtained. If the Company shall disclaim liability to the Insured for any claim hereunder and such claim shall not within twelve (12) calendar months from the date of such disclaimer have been referred to arbitration under the provisions herein contained then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable
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1 firm's commentaries
  • New year, more views – arbitration highlights in the Year of the Ox
    • Hong Kong
    • JD Supra Hong Kong
    • 16 March 2021
    ...policy argument was explored in the context of employees' statutory compensation and insurance policies in Lau Lan Ying v. Top Hill Co. [2021] HKCFI 290. The plaintiff suffered an accident at work and brought proceedings against the subcontractor that employed her and the main contractor. T......

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