RAI SHIVA KRISHNA v. WUI LOONG SCAFFOLDING WORKS CO LTD

CACV 67/2018

[2018] HKCA 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2018

(ON APPEAL FROM HCPI NO. 556 OF 2015)

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D E C I S I O N

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Hon Cheung JA (giving the decision of the Court) :

1.  The plaintiff claimed damages against the defendant employer for injuries he sustained on his right shoulder in an industrial accident. Liability was conceded. Master Leong in his decision of 9 March 2018 assessed the plaintiff’s damages as follows :

	HK$
Pain Suffering and Loss of Amenities	360,000.00
Pre Trial Loss of Earnings	179,208.31
Loss of Earnings Capacity	95,171.70
Future Loss of Earnings	0
Special Damages	13,345.00
	647,725.01

2.  Taking into account the plaintiff’s entitlement to employees’ compensation of $700,000 which exceeds the personal injury damages, the Master made no award to the plaintiff. 

3.  The plaintiff appeals against the decision.  The defendant now applies for security for costs of the appeal against the plaintiff in the sum of $200,000.  We will deal with this application on paper.

4.  The Court of Appeal may in special circumstances order an appellant to provide security for costs of his appeal.  An example is where the appellant is impecunious and will unlikely be able to pay for the other party’s costs of the appeal in the event he fails in the appeal.  The reason why security is to be ordered in such a situation is to ensure that the successful party would not be unable to recover its costs despite being successful.

5.  But even where an appellant is shown to be impecunious, the Court still has a discretion not to order security where the appellant is able to show that he has a high prospect of success in the appeal.

6.  The defendant relies on the following evidence to show that the plaintiff is impecunious :

1) The plaintiff was legally aided at the trial and recently had been refused legal aid on 19 June 2018;

2) There is no record of any landed property ownership of the plaintiff; and

3) The plaintiff’s lack of response to the letter by defendant solicitors to the plaintiff dated 25 July 2018 seeking $200,000 as security for costs of an appeal.

7.  The plaintiff claims that he earned an average monthly salary of $14,710.88 from April to September 2018. He has a credit balance of $5,755.26 in bank.  His monthly rent contribution is $2,000 and he could borrow $20,000 from his friends as security for his appeal.

8.  It is clear from the evidence that the plaintiff is in a poor financial state and would unlikely be able to pay for the costs of the defendant in the event that his appeal fails.  On the face of it, the plaintiff should be required to furnish security for his appeal.

9.  The plaintiff relies on various grounds of appeal.  Apart from the allegation that the Master was biased and unfair the other grounds are generally complaints concerning finding of facts and credibility including (1) the Master was wrong to find he had invented and changed his story; (2) the Master did not consider the issue of painkiller overdose; (3) the Master failed to take into account or consider secondary degeneration; (4) his pain is real and he cannot return to pre‑injury work; (5) that he should be entitled to future loss of earnings.

10.  The law is clear that in respect of findings of fact by a trial judge, the appellate Court will only interfere and overturn the findings if they are shown to be plainly wrong.  In respect of the grounds that are related to findings of fact (including the assessment of the conflicting expert evidence), the plaintiff could at best at this stage only show that he has a reasonably arguable case on appeal but short of showing that he has a high prospect of success.  Our concern is about the complaint of apparent bias by the Master.  The plaintiff said that during the hearing, he was being cross‑examined for nearly one and a half days and half of which was taken up by the Master himself.  The Master’s questions went beyond seeking clarifications and the Master had assumed the role of defence counsel.  The plaintiff relied on the notes of proceedings taken by his former solicitor.  We had reviewed the notes of proceedings and, on the face of it, they showed that the Master did take an active role in questioning the plaintiff.  But again at this stage we can only say that this is only a reasonably arguable ground, particularly bearing in mind that this case really depends on the assessment of the medical evidence by the experts.   We do, however, take this opportunity to urge judges to be circumspect in their involvement with the trial process so as to avoid any suggestion of apparent bias. 

11.  In our view the merits of the appeal are not such that we should not order security for the costs of the appeal.  As for amount of the security, our view is that this is not a complicated case and $150,000 will be a sufficient amount.

12.  Accordingly we will make the following orders :

1) The plaintiff is to pay $150,000 into Court as security for costs of his appeal within 90 days;

2) The appeal is stayed pending payment in;

3) In default of payment, the appeal will be dismissed without further order with costs to the defendant; and

4) Costs of this application which we summarily assess at $30,000 are to be paid by the plaintiff to the defendant.