HO WAI SANG v. FOK KAI & ANOTHER

FAMV No. 43 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2002 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 3883 OF 2001)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. This applicant seeks leave to appeal to the Court of Final Appeal against a decision of the Court of Appeal affirming a decision of Suffiad J dismissing his claim against these respondents for damages for personal injuries and consequential loss. In bringing that claim, the applicant alleged that on 28 November 1996 he had been in the 1st respondent's employ as a welder at a construction site where the 2nd respondent was the principal contractor. He further alleged that on that day, as a result of the respondents' negligence and breach of statutory duty, he was injured when a metal pipe fell onto the safety helmet which he was wearing, knocking him forward so that his forehead struck a metal frame which he had been welding.

2. It is undoubtedly the fact that on 28 November 1996 he admitted himself into hospital where he was found to have tenderness about the cervical spine and reduced movement of the neck. His claim was dismissed because the trial judge found as a fact that he had not been at work on that day.

3. In seeking leave to appeal to the Court of Final Appeal, the applicant invokes s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. There is involved, his counsel Mr Albert Yau submits, a question of law which, by reason of its great general or public importance, ought to be submitted to the Court of Final Appeal for decision. The question put forward is one of estoppel. As formulated in the applicant's skeleton argument, it reads as follows: "whether compromise leading to the abortion of legal proceedings, whether pending or in contemplation, will preclude any of the issues to which the said proceedings relate from being re-litigated in the subsequent proceedings in Hong Kong, particular regard being had to the effect of compromise of Employees' Compensation proceedings upon subsequent claim for damages for tortious acts or breaches of duties at Common Law".

4. Shortly stated, the facts are simply these. A claim for employees' compensation brought by the applicant against the respondents had been settled. By a Tomlin Order dated 5 August 1999 the employees' compensation proceedings were stayed and, with no admission of liability, $516,829 inclusive of interest was paid in full and final settlement of the employees' compensation claim, with credit to be given for a sum of $130,000 which had already been paid.

5. The applicant had argued before the Court of Appeal, as he now wishes to argue before the Court of Final Appeal, that the settlement of the employees' compensation claim estops the respondents from denying that he was at work on 28 November 1996. That contention is made in the context of the respondents having admitted in para. 6 of their answer in the employees' compensation proceedings that the applicant had been at work on 28 November 1996. In a judgment with which Le Pichon and Yuen JJA agreed, Rogers VP rejected the estoppel argument, saying this (in para. 13):

"The settlement of the employees' compensation proceedings was clearly without any admission as to liability. It was for that reason that Mr Yau placed his argument on the basis of the admission in paragraph 6 of the answer. That, alone, however cannot be sufficient to raise an issue estoppel. Nothing was decided in the employees' compensation proceedings. Even if the settlement were to be regarded as an admission that the plaintiff was entitled to payment that would be payment of employees' compensation which ... would arise upon proof of injury at work no matter when and how it occurred".

6. In addition, the trial judge found that the respondents' admission in para. 6 of their answer in the employees' compensation proceedings that the applicant had been at work on 28 November 1996 was procured by deception such as would disapply any issue estoppel which might otherwise arise. In any event, negligence and breach of statutory duty were for the applicant to prove, and the trial judge did not find either proved.

7. As it seems to us, the applicant is doomed to fail on the facts without reaching any question of law calling for the Court of Final Appeal's decision. Accordingly leave to appeal is refused.

[No order as to costs]