THAPA HARI BAHADUR v. PARAMOUNT ENGINEERING & MANPOWER SERVICE LTD AND ANOTHER

CACV 98/2022

[2022] HKCA 1516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 98 OF 2022

(ON APPEAL FROM HCPI NO 408 OF 2016)

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D E C I S I O N

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Hon Au JA (giving the Decision of the Court):

A. INTRODUCTION

1.  This is the defendants’ application[1] for security for costs against the plaintiff in the sum of $227,675 in this appeal (“this application”).

2.  The appeal is brought[2] by the plaintiff against the judgment of Au-Yeung J (“the Judge”)  dated 31 January 2022 (“the Judgment”).  By way of the Judgment, the Judge dismissed the plaintiff’s claim against the defendants for injuries suffered in 2013.

3.  Pursuant to the Registrar of Civil Appeal’s directions dated 11 May 2022 and 6 July 2022, if the plaintiff wished to oppose this application, he should file and serve an affirmation and written submission by 15 July 2022.  He was further informed in the latter set of directions that if he failed to do so, he would be deemed to have abandoned his right to rely on affidavit evidence and written submission in this application.  The plaintiff did not file any affidavit or written submission by 15 July 2022 or at all.

4.  We are of the view that it is appropriate for this application to be dealt with on paper and proceed to do so.  This is our decision.

B.  BACKGROUND AND THE JUDGMENT

5.  The relevant background facts have been summarized by the Judge at [1] - [17] of the Judgment.  We only need to highlight the following for present purpose.

6.  At the material time, the 2^nd defendant was the principal contractor of a construction site of MTR at Kam Tin (“the Site”).  The 1^st defendant was the direct employer of the plaintiff.  The plaintiff worked as a compressed air worker in a compression chamber in the Site.  His duty included changing cutters or cutter tools of the head of a Tunnel Boring Machine (“TBM”).

7.  In the space between the back of TBM cutter heads and the manlock, there was a working chamber (“Working Chamber”).  When replacing or repairing cutter heads at the Working Chamber, compressed air was applied at the Working Chamber so as to increase the air pressure therein to prevent collapse of rock from the tunnel surface.  Behind the Working Chamber was the decompression chamber (“Decompression Chamber”)  for workers to stay inside to allow their bodies sufficient time to adjust to reduced oxygen and changes in air pressure.

8.  In his claim, the plaintiff alleged two accidents (respectively the “1^st and 2^nd Accidents”)  which respectively occurred on 20 June 2013 and 1 September 2013.  On the day of the 1^st Accident, there was a sudden increase in air pressure in the Working Chamber, which caused pain and discomfort to the plaintiff and his co-workers.  The plaintiff immediately underwent decompression and was sent to a doctor for examination on 20 and 21 June 2013.  He was diagnosed with mild ear and frontal sinus congestion and was prescribed with painkillers.

9.  On 31 August 2013, that is the day before the 2^nd Accident, the plaintiff said he told an engineer that he did not want to work on the following day as he did not feel well and was on medication.  However, the engineer said he was required to work despite his complaint.  In Court, the plaintiff testified that the engineer even threatened to terminate his employment if he did not work.

10.  On the day of the 2^nd Accident, it is his case that he was asked to fill in a questionnaire to confirm that he was fit to work in the Working Chamber (“Questionnaire”)[3]. He refused to sign but the lock operator who sent the plaintiff to work filled in the Questionnaire for him and forced him to sign on it, which he did.

11.  He lost consciousness whilst working.  He was immediately taken to the Decompression Chamber and underwent decompression. After decompression, he was sent to a hospital by ambulance.  He remained unconscious for six hours and was provisionally diagnosed with vasovagal syncope.  He was discharged on 5 September 2013.

12.  He claimed that after the 2^nd Accident, he suffered from a number of physical and psychiatric conditions.  He was treated by doctors across 17 types of general and specialist disciplines in the ensuing eight years.

13.  The defendants conceded that there was a breach of duty in respect of the 1^st Accident, but they contended that the plaintiff suffered no financial loss.  The defendants disputed liability for the 2^nd Accident and quantum.  They contended that there was a safe system of work and the workers had been given adequate training and reminders to, among other things, monitor their body condition during work.  All compressed air workers were required to complete the Questionnaire daily before and after work, to declare their body condition and confirm their fitness for work.  The plaintiff voluntarily filled in the Questionnaire on the day of the 2^nd Accident but he chose not to disclose his alleged condition in the Questionnaire.

14.  The plaintiff was legally aided in the early stage of the proceedings.  He acted in person in the trial after legal aid had been withdrawn.  There was no complicated issue of law and the key issue at trial was whether the plaintiff’s case was credible.

C.  THE JUDGMENT

15.  In relation to the 1^st Accident, the experts who produced the joint report of occupation medicine (“JROM”)  concluded that the plaintiff suffered from barotrauma after the 1^st Accident, which caused him no permanent disability.

16.  In relation to the 2^nd Accident, the Judge accepted the unchallenged evidence of the Safety Officer of the 2^nd defendant that no one would have forced the plaintiff to work inside the Working Chamber because there were other stand-by workers who would have been happy to work there for the higher pay.  His testimony on the alleged threat to terminate his employment was not recorded in any of his witness statement and was contradicted by his first witness statement where he stated that Mr Chu the engineer did not threaten to sack him if he did not work.  He could not provide a satisfactory explanation for the above.

17.  The Judge further noted that in his witness statements, the plaintiff claimed to have no understanding of the content of the Questionnaire because he did not understand English but in his testimony he said he understood that the Questionnaire was his health declaration form.

18.  The Judge found that the plaintiff voluntarily filled in the Questionnaire on the day of the 2^nd Accident, which confirmed his fitness to work.  The defendants were found not liable for the 2^nd Accident.

19.  The Judge went on to consider the alleged injuries suffered by the plaintiff in the 2^nd Accident, which included headache, pain in various body parts, general pain, hearing impairment and multiple joint pain.  The experts in JROM observed that his alleged symptoms were not typical of decompression sickness or arterial gas embolism and that there was a theoretical possibility that the source of his pain was psychological in nature.  They suggested that the alleged multiple joint pain might amount to 2% impairment of the whole person but they preferred the impairment to be assessed by psychiatrists.

20.  For evidence on psychiatric injuries, the plaintiff relied on the expert report by a Dr Li while the defendants relied on that by a Dr Wong.  Dr Li’s report was excluded from evidence as the defendants were not given a chance to cross-examine Dr Li.  In any event, the Judge preferred Dr Wong’s report to Dr Li’s, for the reasons given at [103] of the Judgment.

21.  Dr Wong concluded that the plaintiff suffered no permanent mental impairment from the 1^st Accident.  The plaintiff should have been given three months’ sick leave on psychiatric grounds after the 2^nd Accident.  After reviewing the surveillance video clips and the JROM, Dr Wong concluded that the plaintiff was feigning his symptoms.

22.  The Judge also observed that the plaintiff feigned his symptoms during trial.  She held that he pretended to be dependent on hearing aid and elbow crutches when he did not in fact have to rely on them. She further held that, contrary to the plaintiff’s assertion, his absence from the third day of trial was not related to any medical condition.

23.  The Judge also held that the plaintiff used his alleged memory problem as an excuse for his inability to explain the inconsistencies and contradictions shown by documentary evidence and surveillance video.

24.  The Judge found that the plaintiff’s complaints of multiple pain could not be explained by physical pathology or psychiatric ground and that the 2^nd Accident at most only caused him loss of consciousness and adjustment disorder with mixed depressed mood and anxiety.  He had achieved maximal medical improvement on psychiatric ground three months after he received psychiatric treatment (ie, around late August 2014).  There was no permanent impairment of functioning.

25.  The Judge held that the damages from the 1^st Accident was $10,000 only (purely for PSLA).  The defendants were not liable for the 2^nd Accident but even if they were, their liability would be limited to $270,500 only.  Because the employees’ compensation payment and interim payment received by the plaintiff already exceeded the possible damages he could recover, the Judge dismissed his claim.

26.  The Judge made an order that the plaintiff should bear the costs of the defendants on indemnity basis with certificates for two counsel.  Upon the application by the defendants, the Judge also ordered[4] the plaintiff to pay enhanced interest for the defendants’ costs.

D.  THIS APPLICATION

D1.  The appeal

27.  In his Amended Notice of Appeal dated 3 March 2022, the plaintiff stated as follows:

“The learned Judge was wrong in fact and in law in holding that [set out the issue of law which the appellant says as wrongly decided in the court below]. The learned Judge ought to have held that [set out the conclusion of the appellant argues that the court below to have reached.].

The learned Judge wrongly exercised his discretion in that [set out the basis why you say it was wrong.]  Having regard to the following circumstances [set them out.]  The learned Judge ought to have [set out the decision which you say he should have reached.]”

D2.  This security for costs application

28.  The relevant principles governing applications for security for costs of an appeal in relation to an impecunious appellant are well established.  They have been summarized by Ma CJHC (as he then was)  in Chung Kau v Hong Kong Housing Authority[5]at [14] - [15].  Relevant for the present purpose, they are these:

(1)  It is a matter of discretion for the court of appeal to decide whether there are special circumstances to make it just to order security of costs of an appeal.  In the consideration, the court can take into account various relevant factors.

(2)  Although the fact that an appellant is impecunious (such as where the appellant has been adjudged bankrupt)  does not lead automatically to an order for security for costs, as a matter of practice, it would then be generally up to the party resisting the application for security to demonstrate countervailing factors which would militate against such an order being made.  A common countervailing factor is the merits of an appeal.

(3)  On a consideration of the merits of an appeal, while a detailed examination is not required, the court should form some sort of preliminary view.  An appeal which is very strong would often be a very good reason not to order security, while a hopeless one may by itself justify an order for security.  However, if the appeal could go either way, then generally the court will look to the existence of any other factors to tilt the balance, in the absence of which security will be ordered.

29.  Further, where an appellant contends that security should not be awarded because it would prevent him pursuing his appeal, he has to satisfy the court not only that he is unable to furnish security of the costs from his own resources but also that he is unable to raise the money elsewhere.  The onus of proof is on him on this issue.  In assessing whether he could raise money elsewhere, the court adopts the same rigorous approach as in the application for summary judgment case of York Motors v Edwards [1982] 1 WLR 444 at 449 and 450: see Laerdal Medical Limited v Hong Kong Haocheng International Trade Limited [2017] HKCA 605, per Kwan VP at [26].

30.  As mentioned above, the plaintiff has not filed any written submissions and evidence to oppose this application.  Nevertheless, we will now turn to consider this application bearing the above principles in mind.

31.  In support of their application for security for costs, the defendants rely on the following as evidence of the plaintiff’s impecuniosity:

(1)  The fact that he resides in a public housing unit not owned by him, which suggests that his income is low and the assets he owns are limited;

(2)  The fact that he does not own any property in Hong Kong, which shows the limited amount of assets he possessed;

(3)  The fact that he passed the means test to qualify for legal aid; and

(4)  It was the plaintiff’s case before the Judge[6] that he ceased working after the 2^nd Accident and that he was a recipient of comprehensive social security assistance (CSSA).

32.  We agree that the evidence above clearly shows that the plaintiff is impecunious for the present purpose.

33.  As to the merits of the appeal, the success of plaintiff’s appeal will depend principally on his successful challenge of the Judge’s various factual findings made in the Judgment after trial.

34.  In this respect, it is well established that this court will not lightly interfere with a finding of fact and that a factual finding will be reversed only when it can be shown to be palpably wrong, or one which plainly falls outside the range of findings that are reasonably open to the first instance judge on the basis of the evidence before him.  It is for the appellant to identify what has gone wrong in the fact-finding process by the trial judge ([7] of Kwong Kin Yin v Shun Lee Copper & Decoration Ltd & Ors (unreported, CACV 187/2011, 19 January 2017)).

35.  As shown at [27] above, the plaintiff’s grounds of appeal as stated in the ANOA are apparently copied from another document, without the essential particulars of what he would say to be the Judge’s errors or mistakes in the Judgment (see the words in the square brackets as quoted above).  In other words, there is simply nothing in these purported grounds to pinpoint any palpable errors in the Judgment with any particulars.  In the premises, for the present consideration, the plaintiff’s appeal does not appear to us to have any arguable merits, let alone strong merits.

36.  There is also no evidence to suggest that the plaintiff will have difficulty in raising the funds for the security, or that the order of security for costs will unjustly stifle his appeal.

37.  In the premises, there is no countervailing factor against the making of an order for security for costs.

38.  We therefore hold that security for costs should be ordered against the plaintiff in this appeal.

39.  We would now turn to consider the quantum of such security.

40.  The principles concerning the assessment of the quantum of security for costs are not controversial.  They can be summarized as follows:

(1)  First, the court normally takes a broad brush approach and does not conduct a taxation of the respondent’ costs in fixing the quantum of security.  Instead, the exercise on which it is engaged is to arrive at an appropriate estimation of the likely amount of costs which would be ordered to be paid by the appellant to the respondent on a party and party taxation: see Great Bill Ltd v JFK Holding Company Ltd and Another (unreported, CACV 53/2012, 13 September 2012), per Fok JA (as he then was)  at paragraph 20.

(2)  Second, one of the factors to bear in mind when fixing the amount is the underlying objectives in Order 1A, rule 1 of the Rules of the High Court (Cap 4A), in particular rule 1(c)  and (d)  which highlight proportionality in conduct of proceedings and fairness between the parties: see Rich Fine (HK)  Investment Ltd and Another v Leung Yiu Chuen [2018] HKCA 965, per Lam VP (as he then was)  at [8] - [12].

(3)  Third, to facilitate the court’s decision on the appropriate amount of security, the applicant’s legal representatives must provide a realistic estimate of the time and costs likely to be incurred in each stage of the proceedings which must bear some logical correlation to the complexity of the case and the issues involved.  Otherwise, the court is deprived of the assistance that it rightly expects: see Re Days International Ltd (unreported, HCCW 299/2011, 26 January 2015)  per Anthony Chan J at [26].

41.  The defendants seek the sum of $227,675 as security for costs, which covers both the costs for the security for costs application and the costs of the appeal proper[7]. The breakdown of the likely costs and disbursement for defending the appeal has been provided in exhibit “NSS-3” to the affirmation of Ng Shan Shan filed on 12 April 2022.

42.  Adopting a broad brush approach, and given that the appeal does not involve any complicated issues of law or fact, we consider that the estimated costs in relation to the works on communications and professional work stated under Item C and D (a total of $102,175)  is unreasonably high and should be reduced to $70,000, and counsel’s fee under Item E1 ($24,000 for preparing and attending hearing for this security for costs application)  should also be reduced to $15,000 as there is no hearing held.

43.  Taking into account these deductions, the appropriate quantum for security for costs should be in the sum of $186,500 ($1,500 + $70,000 + $15,000 + $100,000).

D.  DISPOSITION

44.  For the above reasons, we would allow the defendants’ security for costs application and make the following orders:

(1)  Unless the plaintiff pays into court the sum of $186,500 within 28 days from the date of this decision as security for costs of this appeal, the appeal shall be dismissed without further order.  Upon such dismissal, the plaintiff shall pay the defendants the costs of this appeal, such costs are to be taxed if not agreed.

(2)  The appeal shall be stayed until the payment of the security as ordered under (1)  above.

45.  As to the costs of this application, there is no reason why costs should not follow the event.  We further make an order nisi that costs of this application be to the defendants, to be taxed if not agreed.