GILL AJMER SINGH v. WAH HING SCAFFOLDING ENGINEERING LTD AND ANOTHER

cacv 226/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 226 OF 2013

(ON APPEAL FROM DCEC NO. 348 OF 2010)

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REASONS FOR DECISION

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Hon Barma JA (giving the Reasons for Decision of the Court):

1. This is an application by the 1st and 2nd respondents, who are also the respondents in this appeal, (“the Respondents”) seeking security for their costs of this appeal from the appellant, who was the applicant in the court below (“the Applicant”). By his Notice of Appeal filed on 31 October 2013, the Applicant has appealed against the judgment of Deputy District Judge R Lai dated 2 October 2013 dismissing his claim for employee’s compensation against the Respondents.

2. At the conclusion of the hearing, I made an order that the Applicant should provide security for the Respondents’ costs of the appeal in the amount of HK$140,000 within 42 days, failing which the appeal would be dismissed without further order, with costs to the Respondents.  I also ordered that the costs of this hearing should be the Respondents’ costs in the cause of the appeal.  I indicated that I would hand down the reasons for my decision in due course, and now do so.

3. The Applicant was employed by the 1st Respondent as a general worker at a construction site at the University of Hong Kong.  The 2nd Respondent was the main contractor at the site, and the 1st Respondent was a sub-contractor carrying out scaffolding works.  The Applicant claimed that he was injured in the course of his work on 20 August 2008, when he was hit in the left eye by an unknown object (possibly a bamboo pole) while helping to dismantle scaffolding which had been erected at the site.  The Applicant was sent to Queen Mary Hospital for treatment.  He was found to have suffered an acute retinal detachment, which has left him with long term visual impairment.

4. At the trial, the main issues were: (a) whether or not the Applicant had in fact suffered an accident at work as he alleged; and (b) if so, whether the injury was caused by the accident.  The judge found against the Applicant on both of these issues.

5. So far as the first issue was concerned, the judge considered the Applicant’s own evidence and that of a friend to whom he had related what had happened, and also considered the records of the various doctors who had treated the Applicant over a period of time.  The judge placed considerable weight on the contents of the medical records – in particular on the fact that in the records for the first two and a half months from first treatment, there was no mention of any accident at work or trauma as the possible cause of the injury – and was not persuaded that the Applicant had proved, on the balance of probabilities, that he had in fact been involved in an accident at work as he claimed.

6. As for the second issue, the judge considered the joint report of the two ophthalmologic expert witnesses (one for each party), in which both experts expressed the view that the nature of the injury to the Applicant suggested that it was not related to the alleged accident, but was probably due to a pre-existing condition on the part of the Applicant.  The experts were both of the view that the retinal detachment in this case was probably non-traumatic in origin.

7. At the hearing before me, the Respondents were represented, as they were at the trial, by Mr Osmond Lam.  The Applicant, who had been legally aided in the court below, but is no longer in receipt of legal aid, appeared in person.

8. Mr Lam submitted that this was a case in which security should be provided for the Respondent’s costs of the appeal, as the Applicant was impecunious and would therefore be unlikely to be in a position to meet any order for costs that might be made in the Respondents’ favour at the end of the day.  While he accepted that this was not necessarily a conclusive consideration, he submitted that once this was established, it would be for the Applicant to show that there were countervailing factors which militate against the making of an order for security.  Mr Lam went on to submit that there were no such countervailing factors present here.  On the contrary, he suggested that the appeal was one with little merit, having regard to the state of the evidence in the court below, on which the judge’s findings were based.

9. This court’s jurisdiction to order security for the costs of an appeal arises under RHC Order 59 rule 10(5), which provides that “the Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just”.  The impecuniosity of an appellant, and the consequent likely difficulty in a successful respondent being able to recover his costs of an appeal, has long been regarded as one such special circumstance:  see Hong Kong Civil Procedure 2014, paragraph 59/10/26.  It is, of course, necessary to consider any other relevant factors, such as any suggestion that the appellant’s impecuniosity is due to the respondent’s actions of which complaint is made, or the fact that the prospects of success of appeal appear, without going into a detailed consideration of the merits, to be very strong.

10. So far as the Applicant’s financial position is concerned, he was legally aided at the trial, and has so far failed to pay the costs of the Respondents in respect of the trial, or to respond to requests by the Respondents seeking agreement as to the amount of such costs.  He is no longer in receipt of legal aid for the purposes of the appeal, and is now acting in person.  His income at the time of the injury, as found by the judge, was modest – some HK$10,600 per month, and he was, on his own case, unemployed or unemployable for some time after the accident.  All of these matters suggest that the Respondents are likely to have difficulty in recovering any costs that may be awarded to them in this appeal, and the Applicant did not put forward any evidence to indicate that this would not be the case, and did not suggest otherwise at the hearing before me. Indeed, the Applicant has asserted his own impecuniosity in his evidence in support of unsuccessful judicial review proceedings (HCAL 171/2012) in which he sought declarations abolishing the common law rules against maintenance and champerty.  I am therefore satisfied that the Respondent has established that the Applicant will not be in a position to pay their costs in the event that his appeal fails.

11. Further, there do not appear to be any countervailing factors that would militate against the grant of security.  Mr Lam has submitted that the appeal is without merit.  At this stage, it is necessary and appropriate to form only a tentative and broad view of the merits of the appeal.  That said, it does not seem to me that the prospects of the appeal succeeding can be said to be strong, particularly as it will be necessary for the Applicant to overturn the judge’s findings of fact both in relation to whether the alleged accident happened, and as to whether his injuries were a result of the alleged accident or were due to a pre-existing condition, in the face of the evidence which I have described above.  It certainly cannot be said that the appeal has such good prospects of success that the Respondents should be denied security for their costs.

12. The Applicant drew my attention to further medical reports which he had obtained from a doctor in Hong Kong and one in India, which he said supported the conclusion that the injury was in fact due to some kind of trauma or accident. He also complained that his legal representatives in the court below had not sought to challenge the evidence of the joint ophthalmologic experts.

13. To the extent that the further medical reports were not before the judge, it will be necessary for an application to be made for leave to adduce them as additional evidence in this appeal, if security is provided and the appeal continues. Bearing in mind that, for the most part, the further reports were already in existence before the trial, and also the nature of their contents, it is far from certain that such further evidence would be permitted to be adduced on appeal.

14. As for the complaints against his former lawyers, these are not matters that assist the Applicant in the context of this appeal.  Whether or not the Applicant seeks separately to pursue them against his former lawyers is a matter for him.

15. I was therefore satisfied that it would be right to make an order for security in this case.  The Respondents sought security in the amount of HK$230,000 (although in their evidence in support of this application, it was said that the likely costs will be greater, being in the region of HK$256,000).  However, having regard to the nature of the appeal and the issues that are likely to arise, I considered that the appropriate amount of security should be rather lower, in the order of HK$140,000.  Having regard to the Applicant’s circumstances, I was prepared to allow him a longer time than usual to provide such security.

16. I therefore ordered that the Applicant should provide security for the Respondents’ costs of this appeal in the amount of HK$140,000 either by payment into court or by providing a suitable bank guarantee within 42 days from the date of this judgment, that pending the provision of such security, all further proceedings in the appeal be stayed, and in the event that security is not provided within the time limited for doing so, the appeal shall stand dismissed with costs without further order.

17. As for the costs of this application, I made an order that such costs should be the Respondents’ costs in the cause of the appeal, to be taxed on the party and party basis if not agreed.