CHUNG YUEN YEE v. SAM WOO BORE PILE FOUNDATION LTD AND OTHERS

CACV 145/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 145 OF 2010

(ON APPEAL FROM HCPI No. 1053 OF 2006)

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BETWEEN

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REASONS FOR DECISION

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

1.  This is the application by the 1^st, 3^rd and 4^th defendants for leave to appeal to the Court of Final Appeal against our judgment dated 22 July 2011 on the ground that questions of great general or public importance are involved. Six questions are identified in the Notice of Motion. We will deal with Question 1 and Questions 2 to 6 as a group in turn.

2.  (1)Whether a worker should be relieved or exempted from any liability by way of contributory negligence in all circumstances whenever the Court finds there is a lack of safe system of work provided by his employer, whether general employer or employer pro hac vice?

3.  In our view this is clearly a fact sensitive issue and the question cannot be considered without reference to the facts of an individual case.

4.  (2)Whether a company which has been arranged to merely pay the salary and MPF contribution to a worker should be regarded as a general employer of that worker and thus assume the same liability as the company who has entered into an employment contract with the worker and/or has the direct control of the worker over his works and duties?

(3) Whether a company which has merely conveyed the direction to a worker to do a task should be regarded as an employer pro hac vice?

(4) Whether, in fact and/or in law, there can be more than one general employer of a worker for the same task of work?

(5) Whether a company which merely lent a driver to drive a vehicle should be liable for controlling and/or providing the items on board the vehicle?

(6) Whether it was against the public interest and/or public policy to find other companies, namely the companies in Questions 2, 3, 4 and/or 5 above, to be liable to the damages suffered by a worker as a result of an accident happened during the course of employment of the worker :

(a) given that the law only requires the worker’s employer but not other companies to secure a valid and effective labour insurance for the worker and those companies in Questions 2, 3, 4 and/or 5 above may not take out such an insurance in the light of the fact that they are not the employer of the worker;

(b) given that the worker’s interest may not be fully protected and damages may not be fully recovered if his employer with a labour insurance was only liable to a smaller percentage of liability and in such circumstances, the insurance company will only be responsible for that smaller percentage of damages leaving the remaining portion of damages to be shared by other defendants (without an insurance coverage) which may not be able to satisfy the damages for example by reason of insolvency;

(c) given that if the other defendants are unable to satisfy their respective contributions to the damages for example by reason of insolvency, the worker’s employer being jointly and severally liable will be required to satisfy the whole damages when the insurance company will only bear the particular portion of the shares of the worker’s employer as found by the court. In such circumstances, the worker’s employer alone will have to bear the rest of the damages and its position will be prejudiced.

5.  Whether someone is a general employer or employer pro hac vice is again a fact sensitive topic depending on the facts of an individual case.  The 1^st, 3^rd and 4^th defendants had not argued before us or in the Court below that as a matter of law there cannot be more than one general employer.

6.  Questions 2, 3 and 5 further proceeded on the basis that the facts identified in these questions are the only facts relied upon by the Court in finding against the 1^st, 3^rd and 4^th defendants.  They have ignored other facts.

7.  As to Question 6, the 1^st, 3^rd and 4^th defendants had also not argued before us or in the Court below the relevance of labour insurance coverage to the issue of their respective liability.  While between the employers themselves the Court may order contribution, between the employers and employees, the former are jointly and severally liable.

8.  For these reasons we do not consider that issues of great general or public importance have been engaged nor do we see any basis for invoking the ‘or otherwise’ ground.  Accordingly the application was dismissed with costs.