TING SIU WING v. CHAN KWOK BUN Formerly t/a PERFECT CLEAN MOBILE CARE

CACV 221/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 221 OF 2011

(ON APPEAL FROM DCPI NO. 1706 OF 2009)

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REASONS FOR JUDGMENT

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Hon Tang VP (giving the reasons for judgment of the Court):

1.  The Plaintiff was 19 when he was employed by the Defendant (from December 2003 to November 2004) in the Defendant's car washing business at Palm Springs, near Yuen Long. His duty included washing and waxing of cars.

2.  On 17 August 2009, the Plaintiff commenced proceedings against the Defendant by an Indorsement of Claim which reads:

"1. The Plaintiff's claim against the Defendant is for damages for personal injuries sustained by him as a result of an incapacity happened in or about February 2004 arising out of and in the course of his employment with the Defendant, which was caused by the negligence and/or breach of contract of employment and/or breach of statutory duty and/or breach of common duty of care on the part of the Defendant, their servants and agents.

2. The Plaintiff also claims interest pursuant to Section 49 of the District Court Ordinance, Cap. 336 and costs."

3.  No notice of intention to defend having been given, on 25 March 2010 interlocutory judgment was entered against the Defendant.  The Defendant applied to set aside the judgment by summons dated 21 February 2011 after he was granted legal aid.  The summons was dismissed by Master J Chow on 11 May 2011, and District Judge Chow dismissed the Defendant's appeal on 12 July 2011.  We have allowed the Defendant's appeal on 25 May 2012.  These are our reasons.

4.  Mr Tommy Lo, who appeared on behalf of the Defendant, submitted that the Defendant was entitled to have the judgment set aside as of right because the judgment was irregular.  He relied on Order 6 rule 2 which requires the endorsement of claim to contain

"(a) … a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;"

5.  Mr Lo referred us, in particular, to the Hong Kong Civil Procedure 2012 Vol. 1 at 6/2/2:

"… Where the claim arises out of a contract, the indorsement should state the date of the contract (and whether oral or written), between whom made, and the nature of the claim or the relief or remedy arising thereunder; if it arises out of a tort, the date and place of the occurrence, and the nature of the tort alleged. …"

6.  Mr Lo pointed out that, in respect of the claim for breach of contract of employment, it was not pleaded whether the contract of employment was oral or in writing, nor was the date of any such contract of employment given.  In relation to the claim for negligence, he pointed out that although the date of occurrence was said to be "in or about February 2004", it did not specify that the tortious act was continuous in nature or spell out the place of occurrence.

7.  Mr Lo also relied on Galli v Mongruel [1865] LR 1 CP 46 where a writ of summons which was served on a foreigner resident out of the jurisdiction endorsed with a notice allowing 7 days for payment of the sum claimed without further costs, instead of 14 days as required, the court refused leave to the plaintiff to proceed under section 19 of the Common Law Procedure Act 1852 on the basis that the writ served out of the jurisdiction was not in the correct form.  With respect to Mr Lo, I do not think that the case helps at all.  The question remains whether the Indorsement of Claim was defective.

8.  Although we find the clause "as a result of an incapacity happened" in the Indorsement of Claim confusing, we have no doubt that it is not defective.  Order 6 rule 2 requires "a concise statement". How much detail is required may vary from case to case.  What is important is that a defendant should know what is the claim against him.  Here, I have no doubt that the Defendant was not left in any doubt about the nature of the Plaintiff's claim.

9.  The second point taken by Mr Lo is that the learned judge erred when he concluded that the Defendant has no real prospect of success if the matter goes to trial. 

10.  It was the Plaintiff's case that he sustained injury whilst working for the Defendant from February to October 2004 as an apprentice because he was required to perform his duty "with frequent half squat and kneeling". The Plaintiff's version is recorded in Dr Ko's report as follows:

"5.7  Occupational history

At the time of the injury, he had been working as a garage apprentice at a mobile cleaning services company for about one year.  His working hours was 10am-8pm and no overtime pay with irregular overtime requirement.  He was required to work 6 days per week.  His duty mainly required car washing and waxing work with frequent squatting, kneeling and half squatting required.  He was required outdoor work mainly but climbing was necessary.  He was also frequently required to lifting weight up to 30-40lbs. He has no other previous working experience.

……

6.1   Mr. Ting complains of continuous bilateral knee pain with right side more than the left side and is aggravated under the following conditions:

- walking on staircase about 10 steps, up and down equally bad

- level ground walking ≧ 15 minutes, he needs to stop and sitting

- cold weather increases his pain

- lifting weight for 4-5 lbs increases his pain

He cannot squat because of severe pain in both knees.  There is some clicks and crepitations since May 2007."

11.  On the basis of the Plaintiff's case Dr Ko concluded:

"Based on the above information, Dr. Ko opines that it is obvious that from the literature and also clinical experience, the cause for patellofemoral arthritis in Mr. Ting's condition is highly likely to be multi-factorial including intrinsic and extrinsic factors.  Considering his age, general health status, body built, physique, past health, pre-morbid, activities and sports, etc, he does not have any high risk factor for developing patellofemoral arthritis.  The extrinsic factors: his job as a garage apprentice in a automobile cleaning service company requiring frequent squatting, kneeling, lifting of heavy weights with the possible intrinsic factors of weak quadriceps muscles, his chance of developing patellofemoral excessive wear and tear is very high which results in his symptoms typical of patellofemoral arthritis."

12.  However, the Defendant's case is that the Plaintiff was never required to lift heavy weight, nor was he required to work overtime or excessively in his employment.  According to the Defendant, he had 3 full time staff when he commenced business on 3 December 2003: himself, a Mr Ng (who has supplied an affirmation in support) and the Plaintiff who was an apprentice, who had to work under the instruction and supervision of Mr Ng.  There were part time staff on Saturdays and Sundays.  He produced evidence on the number of car washed in various months, as well as the monthly turnover from December 2003 to November 2004 which ranged from $11,688 to $28,075 within an average of $20,749.75. According to the Defendant:

"… There was only one day in which there were more than 10 cars to be washed or waxed (21 January 2004) but the work was shared by 4 people, Ng, the Plaintiff, myself and the part-time worker.  That day was an exception because of Chinese New Year."

13.  How was the Defendant said to be liable to the Plaintiff?  According to a letter written on the Plaintiff's behalf dated 19 January 2010 it was said that the Defendant was liable because:

" (a) you exposed our client to a long term poor system of work which was inherently dangerous and unsafe;

(b)  you caused or required our client to carry out repetitive car washing and/or waxing duties which involved frequent bending of knees for long hours when you knew or ought reasonably to have known that it posed a foreseeable danger to our client's health;

(c)  you failed to assign our client with suitable light duties or shorter working hours at our client's requests;

(d)  you failed to provide adequate safety training on the job to our client;

(e)  you failed to provide any or any proper or sufficient assistance or manpower to assist our client to carry out his duties;

(f)  you failed to have any or any proper regard as to whether the nature of work assigned to our client commensurate with his medical condition;

A brief description of our client's injuries is as follows:-

Osteoarthritis of both knees, associated with back and leg pain"

14.  The learned judge arrived at the conclusion that the Defendant has no real prospect of success on the basis of medical evidence obtained on behalf of the Plaintiff, in particular, the medical report compiled by Dr Peter Ko dated 31 January 2011 in respect of which the learned judge said:

"7.  … I have come to the conclusion that the opinions set out there are reasonable and accepted by me.  Anyway, there is no opinion adduced by the defendant to the contrary."

15.  Unfortunately, it appeared that much effort was spent by counsel on the correctness or otherwise of Dr Ko's conclusion despite the absence of any supporting expert evidence instead of focusing the learned judge's attention on the factual dispute between the parties over the actual nature of the Plaintiff's work as well as the absence of any evidence on whether the system of work was dangerous or unsafe in the circumstances of this case.

16.  Had the learned judge's attention been properly directed, I believe he would have concluded that the Defendant has a real prospect of success.

17.  Mr Damian Wong, on behalf of the Plaintiff, has in his Respondent's Submission raised the point that even if the Defendant has real prospect of success, we should nevertheless not exercise our discretion in the Defendant's favour. 

18.  The writ was issued on 17 August 2009 but not served until 12 January 2010.  According to the Defendant he was confused by the letter of 19 January 2010, which he had received subsequent to the service of the writ, which concluded with these words:

"We would advise our client to enter into negotiations for settlement at this stage by all suitable means whether by way of without prejudice negotiation and/or other mode(s) of ADR.

A copy of this letter is attached for you to send to your insurers.  Finally, we expect a constructive reply to this letter within one month by yourselves or your insurers, failing which we shall forthwith commence proceedings."

19.  The Defendant immediately applied for legal aid.  He did not know about the procedural requirement of filing an acknowledgment of service.  He was refused legal aid on 10 March 2010 on the ground of insufficient information.  Mr Wong told us that there was a hearing on 5 March 2010 after the legal aid stay had expired on 26 February 2010 but which the Defendant did not attend. 

20.  According to the Defendant he was late for the Checklist Review (CLR) hearing on 4 March 2010 and was told that the next hearing was on 20 May 2010. When he attended the court on 20 May 2010, he was told that default judgment had been entered against him on 25 March 2010. 

21.  The Defendant then attended the CLR hearing on 20 May 2010, then again on 7 September 2010 and 7 December 2010, we are told that on each occasion, he informed the court that he intended to set aside the default judgment and he was reminded by the court that he should apply as soon as possible.  But he did not do so until February 2011 after he had obtained legal aid on the 3^rd application.  So there was a delay of at least 11 months.  The Defendant had been asked by the Legal Aid Department to provide financial statements in order to satisfy the means test for legal aid, but he took a long time to provide the financial statements which was the reason for the delay in obtaining legal aid. 

22.  This is a case where the Plaintiff has obtained interlocutory judgment with damages to be assessed.  So the proceedings are not at an end.  The effect of setting aside of the judgment is that liability would become a live issue. On the available material, we are of the view that the Defendant has real prospect of success on liability.  Moreover, since the cause of action arose in 2004 it is possible that it has become time barred.  If we do not set aside the judgment, a possible consequence is that the Plaintiff would have succeeded on a claim which had it been contested, he would have failed.  The Plaintiff is on legal aid, so is the Defendant.  We do not know whether the Defendant is in a position to satisfy any judgment, the fact that he is on legal aid suggests that he may not be able to do so.  He worked full-time at his car washing business until he transferred it to a friend in November 2004. It was closed down in early 2005.  According to him, because business was poor.  At that time he was a part-time insurance agent and water filter sales agent.  It maybe that he would be able to satisfy the judgment in part, and that if he is gainfully employed he may be able to pay by installments.  On the other hand, there is a risk that he may be adjudicated bankrupt which may affect his livelihood.

23.  Balancing all these factors, in all the circumstances of the case, we believe this is a case where the judgment should be set aside.

Costs

24.  Since the judgment is regular, the Defendant must pay the Plaintiff's costs before the learned Master.  So far as the costs of this appeal is concerned, the costs must follow the event.  However, in relation to the costs before the learned Deputy Judge, Mr Lo submitted that he should be given such costs.  Mr Wong submitted that he should not.  The usual order is that costs should follow the event, therefore, the costs before the learned judge should be borne by the Plaintiff as well.

25.  There shall be legal aid taxation for the Plaintiff as well as the Defendant.