XCHRX SZE LAI MAN v. THE WING ON DEPARTMENT STORES (HONG KONG) LTD.

HCPI 464/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 464 OF 1996

____________

_______________

J U D G M E N T

_______________

Introduction

1. In this application, the defendant seeks to strike out the writ and the amended statement of claim and to dismiss the action on the ground that the issues raised by the plaintiff having been adjudicated upon and determined by the District Court in the Employees' Compensation Case No. 343 of 1994, this action or its continuance is frivolous, vexatious or an abuse of process of the court. Alternatively, the defendant asks for a permanently stay of the proceedings.

2. The plaintiff was at all material times a sales assistant of the defendant. She alleges that on a certain date in May 93, she suffered injury on her back and neck while moving some heavy carton boxes in a storeroom of the defendant's department store. On another date in late May or early June 1993, she suffered further injury on her back and neck while carrying out similar duties. The alleged accidents gave rise to the proceedings in the Employees' Compensation Case and the present proceedings. In both sets of proceedings, whether the accidents did occur as alleged was a very much contested issue.

3. The Employees' Compensation Case was heard by HH Judge Yung. The trial took 9 days. Both parties were represented. The plaintiff was on legal aid. On 5 February 2001, the learned judge dismissed the claim. After carefully analysing the plaintiff's evidence before him, the learned judge concluded that the plaintiff had failed to prove on a balance of probabilities that there was an accident in May 93 or at any later time as alleged.

Parties' submissions

4. Mr Mok, counsel for the defendant, submits that it would be an abuse of process if the plaintiff were allowed to re-open the issues concerning the accidents in the present proceedings. In this connection, counsel relies on Wong Wang Sum v Lee Kam Engineering Co (a firm) & Anor [1996] 3 HKC 627. There the plaintiff suffered injuries when he was struck by an iron rod protruding from the wall during work. He claimed against his employer and the occupier of the premises in which he carried out the work for negligence. In his amended statement of claim, he alleged that he had suffered, among other things, post-traumatic stress disorder and depression. In his previous claim for employees' compensation arisen out the same incident, the district judge hearing the claim found that the plaintiff was not suffering from post-traumatic disorder or depression. On the defendant's application, Cheung J struck out part of the amended statement of claim relating to loss of earnings and loss of earning capacity insofar as the same was based on post-traumatic disorder and depression.

5. In response to the defendant' application, the plaintiff firstly complains about the conduct of her lawyers in handling her employees compensation claim. She then explains part of her case in detail and how she was forced to tell certain lies. Finally, she complains that although she was telling the truth her evidence was not accepted.

Applicable principles

6. The principles addressed by Cheung J in Wong Wang Sum are also applicable here. They may be summarised as follows:

(1) It would be an abuse of the process of the court to allow a suitor to litigate over again the same question which has been already decided against him. Though the court ought to be slow to strike out a statement of claim, and to dismiss an action as frivolous and vexatious, it ought to do so when it has been shown that the identical question sought to be raised has been already decided by a competent court: Stephenson v Garnett [1898] 1 QB 677A-L, per Smith LJ.

(2) To make good a claim of estoppel per rem judicatam, the party asserting the estoppel must establish:

(a) that there has already been a judicial decision by a competent court or tribunal;

(b) of a final character;

(c) of the same question as that ought to be put in issue in respect of which the estoppel is claimed;

(d) between the same parties or their privies between whom the question is sought to be put in issues: Carl Zeiss Stifung v Rayner & Keeler Ltd (No 3) [1970] Ch 506, per Buckley LJ.

(3) Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue: Arnold v Nat West Bank plc [1991] 2 AC 93, per Lord Keith of Kinkel at 104.

(4) Section 26 of the Employees Compensation Ordinance provides that nothing in the Ordinance shall limit or in any way affect any civil liability of the employer independent of the Ordinance. But its intention is merely to enable the worker to seek common law damages independent of the Ordinance. It merely deals with the remedies that are available to the worker. It clearly does not intend to preclude the operation of the principles of res judicata or issue estoppel. It follows that section 26 does not assist a plaintiff where identical questions had been raised in earlier proceedings.

(5) There may be special circumstances where the principle of res judicata does not apply. However, the nature of the proceedings, namely personal injury litigation, did not by itself constitute special circumstances in which issue estoppel would not apply: Talbot v Berkshire County Council [1993] 3 WLR 702. "Indeed there is every reason why it should. It is a salutary rule. It avoids the unnecessary proceedings involving expense to the parties and waste of court time which could be available to others; it prevents stale claims being brought long after the event, which is the bane of this type of litigation; it enables the defendant to know the extent of his potential liability in respect of any one event; this is important for insurance companies who have to make provision for claims and it may also affect their conduct of negotiations, their defence and any question of appeal": per Stuart Smith LJ at 714.

Conclusion

7. In the present proceedings, the occurrence of the accidents is a necessary ingredient and indeed the very basis of the plaintiff's cause of action. It is also the case for her claim for employees' compensation. The causes of action are different but the issues concerning this important ingredient in both proceedings are just the same. They had already been adjudicated and determined upon by a competent court. It is indeed an abuse of process of the court to allow the plaintiff to re-litigate these issues here.

8. What remain are the plaintiff's submissions. In my view, the conduct of the plaintiff's lawyers has no bearing at all. Further, it is obvious that those matters concerning the merits of her case and her credibility had already been canvassed in the District Court. Indeed, the learned judge had dealt with them in some length in his judgment and explained why he did not believe the plaintiff. I do not propose to repeat the relevant parts of his judgment here. In the end, I do not find any special circumstances in the present case where the principles of issue estoppel do not apply.

9. Accordingly, I will allow the defendant's application, strike out the writ and the amended statement of claim and dismiss the action.

(Submissions on costs.)

Costs

10. The defendant do pay the plaintiff costs of this action, including the costs of this application, the costs of the hearings on 22 and 24 May 2000 and 16 June 2000 and the costs of and occasioned by and wasted by the adjournment on 20 May 2000, to be taxed if not agreed.