CHIU KWAI YUK for herself and on behalf of members of the family of LEE CHI WAI, deceased v. LEE TAK WAH t/a HATCO EXHIBITION PRODUCTION CO AND OTHERS

DCEC 2838/2017

[2020] HKDC 1028

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2838 OF 2017

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DECISION

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A.     Introduction

1.  These employees’ compensation proceedings involved the fatal accident of Mr Lee Chi Wai, the Deceased (Deceased), met during work on 9 January 2016 when he suddenly collapsed and died.  The cause of death, according to the Autopsy Report dated 29 March 2016, was “acute myocardial infarction; and coronary thrombosis”.

2.  On 13 December 2017, Mr Lee Dung Shing[1] (the Deceased’s father) issued this Employees’ Compensation Application (EC Application) for himself and on behalf of members of the family of the Deceased against the 1^st and 2^nd Respondents respectively as the employer and the principal contractor.

3.  The 1^st Respondent and the 2^nd Respondent have been acting in person throughout the proceedings.  In opposition to the EC Application, the Respondents, in their home-made answers, alleged that the Deceased’s fatal accident was not caused by the nature of the work, and that the Deceased died of natural cause.

4.  On 20 March 2020, the Employees Compensation Assistance Fund Board (Fund Board), pursuant to O 15 r 6 of the Rules of the District Court and s 25A(b) of the Employees Compensation Assistance Ordinance (ECAO), issued a joinder application by summons.  In the summons (at §3), the Fund Board also applied to be allowed to adduce the evidence of a cardiologist expert, Dr Victor Goh (Dr Goh), whose report has since been prepared.

5.  Owing to the General Adjournment Period and the death of the Deceased’s father that necessitated the making of an order of substitution (see F/N 1), the joinder summons could only be heard on 14 August 2020.

6.  The Applicant opposed the joinder summons and the Respondents had no objection.  As the hearing of the summons had already been delayed for the reason stated above, this court, in order to expedite the matter, ordered paper disposal of the summons.

7.  The parties have filed affirmations as this court directed, and written submissions by Ms Wu Yaqing of Messrs Cheng, Yeung & Co (CY), the solicitors for the Fund Board, and by Ms Julia Lau, the Legal-Aid assigned counsel for the Applicant, have been lodged.

B.     Chronology

8.  To properly understand the contentions in this joinder application, it is necessary to highlight a few orders and the related correspondence exchanged between Messrs Hastings & Co (Hastings), the solicitors for the Applicant, and CY as follows.

B.1     Giving of the Notice of Proceedings

9.  On 14 December 2017, Hastings, in compliance with the notification requirement pursuant to s 25B(1)(a), ECAO, served on the Fund Board a “Notice of Proceedings” in the specified form together with a copy of the EC Application.  In the covering letter, Hastings informed the Fund Board that the 1^st Respondent had been convicted of the offence of not obtaining valid insurance.

B.2     Cardiologist expert directions

10.  On 10 September 2018, CY were served with the order of 14 August 2018, in which the court gave cardiologist expert directions.

11.  On 28 November 2018, CY were informed of the unless order dated 23 November 2018 (Unless Order) by which the Respondents were ordered to report to the court by 21 December 2018 as to their stance in relation to the appointment of the cardiologist expert. At the same time, the court granted leave to the Applicant to appoint Dr David Hu (Dr Hu) as his expert.

12.  On 17 December 2018, CY were served with the Unless Order.

B.3     Correspondence exchanges about the appointment of cardiologist expert

13.  On 13 December 2018, CY inquired from Hastings as to the cardiologist the Applicant intended to engage and whether the Respondents had confirmed their choice of cardiology expert.

14.  On 14 January 2019, Hastings replied that the parties were still discussing the choice of cardiology expert.

15.  On 18 February 2019, CY made similar inquiries about the status of the engagement of the cardiology expert.

16.  On 7 March 2019, Hastings replied that the Applicant would engage Dr Hu whilst the Respondents had not yet confirmed their choice of expert but believed that the court would give directions soon.

B.4     Extending time to the Respondents and debarring order

17.  On 19 September 2019, Hastings, in reply to CY’s inquiry on 27 August 2019 about the issue of the cardiologist expert, served on CY an order of 3 May 2019 by which a time extension was granted to the Respondents to appoint their own expert.

18.  On 11 October 2019, HHJ Kent Yee, consequent on the failure of the Respondents to appoint their cardiologist expert, granted an order (Debarring Order), debarring the Respondents from adducing any medical expert evidence and granting leave to the Applicant to adduce the evidence of a single cardiologist expert, Dr Hu, on liability.

19.  CY were informed of and later served with the Debarring Order respectively on 1 November and 12 November 2019.

B.5     Dr Hu’s Report

20.  On 29 November 2019[2], Dr Hu’s Report was available.

21.  On 14 January 2020, Hastings sent a copy of Dr Hu’s Report to CY upon the latter’s inquiry on 10 January 2020.

C.     The opposition

22.  In opposition to the joinder summons, the Applicant filed the affirmation of Wong Tommy Ki Man of Hastings (Wong’s Affirmation).  In Wong’s Affirmation, Mr Wong tabulated a detailed chronology of the correspondence exchanged between Hastings and the Fund Board.

23.  Since the Respondents had no valid employees’ compensation insurance, there is no dispute that the Fund Board has an interest in these proceedings.  The main thrust of the Applicant’s objection to the joinder application is the alleged delay by the Fund Board in the issue of the summons.

24.  In Wong’s Affirmation, Mr Wong stated that since Hastings had complied with the notification requirement (see Part B.1 above), the Fund Board should have “detected their potential exposure as early as 2017” (Wong’s Affirmation at §9).

25.  Despite the updates by Hastings of the progress of the EC Application on an on-going basis, Mr Wong stated that the Fund Board, without any justification, only issued the joinder summons at a very late stage of the proceedings when the case was ready to be set down for trial.

26.  The unjustifiable delay, Ms Lau argued, is evidenced by the inaction of the Fund Board when it had full knowledge of the expert directions given by the court, the Unless Order and the Debarring Order.  With knowledge of these orders, Ms Lau contended that the Fund Board would have been fully aware that the Respondents would be unable to comply with the court’s orders for the selection and appointment of a cardiologist expert.  The Fund Board’s unjustified delay is underscored by the fact that the joinder application was only issued after the Fund Board had been served with Dr Hu’s Report in which Dr Hu gave an opinion in the Applicant’s favour.  This led Ms Lau to suggest that the joinder application was mainly motivated by the favourable opinion contained in Dr Hu’s Report.

27.  Worse still, Ms Lau suggested, the Fund Board, on the pretext of assisting the court in having a better understanding of the causation of the Deceased’s death, had unilaterally obtained an expert report from Dr Goh on 31 August 2020[3].  Ms Lau submitted that such pretext was conduct tantamount to an attempt by the Fund Board to introduce expert evidence through the back door.

28.  Ms Lau therefore submitted that the Fund Board’s explanation that its long period of inaction was for reasons of prudence should not be accepted.  The Fund Board’s application to join in the proceedings and to adduce the expert report of Dr Goh, Ms Lau suggested, was in total disrespect of the Unless Order and the Debarring Order and the Civil Justice Reforms.

29.  Ms Lau further highlighted the need for an expeditious disposal of these proceedings.  One of the family members, the Deceased’s father (one of the eligible persons for compensation) had already passed away in March 2020 (see F/N 1).  The mother who substituted the Deceased’s father is also of advanced age.  Ms Lau submitted that should the Fund Board be allowed to join in and be granted leave to adduce the expert report of Dr Goh on the issue of liability, the proceedings would be delayed by the extra time the Applicant would need to obtain directions from court allowing Dr Hu to prepare a supplemental report.

D.     The Fund Board’s decision to intervene

30.  In the 2^nd Affirmation of Wu Yaqing of CY filed by CY on behalf of the Fund Board, Ms Wu stated that there was no delay in the issuing of the joinder application.  Ms Wu criticized Hastings for having failed to serve the court’s orders promptly and to provide the documents and materials Dr Hu relied on in the preparation of his report.

31.  Ms Wu stated that since Hastings had obtained the said documents and materials from the Coroner’s Court in around October 2018, Hastings’ withholding of these crucial documents had substantially delayed the proper investigation by the Fund Board and the filing of the joinder application.

32.  After CY were provided with Dr Hu’s Report, it would have been reasonable, Ms Wu submitted, for the Fund Board to wait for the necessary documents CY requested Hastings to provide on 30 January 2020.  It was not until 11 February 2020 that the Fund Board had been provided with these documents and materials to enable the Fund Board to make an informed decision to join in the proceedings.

33.  The reason why the Fund Board had not made the application earlier, Ms Wu suggested, was also partly due to the failure of Hastings in providing the Fund Board the 1^st and the Supplemental Lists of Documents of the Applicant respectively filed on 25 May 2018 and 26 March 2019.  Without sufficient information, the Fund Board’s decision to join in the proceedings only after it had sight of those documents, Ms Wu submitted, is reasonable.

34.  Ms Wu disagreed with Ms Lau’s submissions that the Fund Board’s application for the adducing of the expert evidence of Dr Goh is an application through the back door and disrespectful to the Unless Order.  It was suggested that since the main dispute in this EC Application is causation, the issue of the expert is of vital importance. Presently, the only expert evidence in support of the Applicant’s case is Dr Hu’s Report. However, Dr Goh’s Report the Fund Board is applying to be allowed to be adduced, Ms Wu suggested, casts doubt on the reliability of Dr Hu’s opinion.

35.  Ms Wu submitted that Dr Hu’s opinion that the Deceased’s cardiac arrest was caused by the stress of the Deceased’s long working hours and the erratic work pattern was not supported by any direct evidence. On the other hand, Dr Goh opined that in the Autopsy Report, it was found that two major coronary vessels on the left side of the Deceased’s heart were blocked.  Dr Goh stated that it was an indication that the Deceased already had suffered atherosclerosis caused by his smoking.  On the basis of this evidence, Dr Goh reached a different conclusion to that of Dr Hu’s by opining that the cause of death - myocardial infarction from a ruptured coronary plaque - showed that there was no link between the Deceased’s employment and his death.

36.  Ms Wu therefore submitted that by allowing the joinder application and the Fund Board to adduce the expert evidence of Dr Goh, the court will be assisted in determining impartially the issue of causation.

E.     Discussion

37.  Section 25A(b), ECAO, upon which this joinder summons was based, allows the Fund Board to apply to the court to be joined as a party to the proceedings “[w]here no policy of insurance is known to be in force at the time of the accident to which the proceedings relate and the employer is present at the proceedings”.

38.  There is no dispute that the criteria for joinder set out in s 25A(b), ECAO, are satisfied.

39.  The role of the Fund Board, as expounded in the Court of Final Appeal’s judgment in Wo Chun Wah v Chau Kwei Yin & Ors [2019] HKCFA 48 at §45 cited by Ms Wu is not in dispute:-

“In participating in the proceedings, the Board’s function is neither to contest the employee’s claim in place of the employer nor to help save public funds, but is to ensure that employees in need can obtain such damages as they are entitled to. The Board has a duty to screen out unmeritorious or inappropriate claims to ensure (inter alia) that this assistance mechanism will not be abused, its recipients will not exaggerate their claims, and public funds will not be used for improper purposes. Therefore, unless it is necessary to contest false claims or suspected fraudulent claims, the Board should not adopt an antagonistic attitude in the proceedings. It should act as a filter and adopt an impartial attitude in the proceedings so as to assist the court in coming to a correct ruling.” (Ms Wu’s emphasis).

40.  I will examine the joinder application in the context of the unique function of the Fund Board.

41.  In this EC Application, the crucial issue for trial is whether the cause of the Deceased’s death - “acute myocardial infarction and coronary thrombosis” - was a natural cause or caused by or contributed to by the work the Deceased carried out at the time of his death. Expert evidence on liability is undisputedly vital in the determination of liability.

42.  From the orders and the attendant correspondence exchanged discussed in Part B above, there is no dispute that the Applicant has complied with the requirement of giving notice of the proceedings within 30 days.  I accept that the Fund Board, in view of the need to safeguard public funds, should only intervene when circumstances require it. In this case, upon a proper analysis of the chronology, I’m inclined to the view that the Fund Board should have acted sooner.

43.  In my view, by the time the Fund Board was informed of the Unless Order on 28 November 2018, it should have been put on notice of the risks that the unrepresented Respondents would not be able to comply with the expert directions in the appointment of their own cardiologist expert.  By that stage, the Fund Board should have taken on a more proactive role.

44.  By 1 November 2019, when the Fund Board was notified by Hastings of the Debarring Order, it would have been abundantly clear to the Fund Board that without intervention, the Applicant, as has been allowed by the Debarring Order, would proceed to the preparation of a single expert report of Dr Hu.  Thus, the right time for the Fund Board’s intervention on the issue of liability experts, in my view, was crystalized by that junction.  It was necessary and convenient at that stage, in order to perform its function of assisting“the court in coming to a correct ruling”, to make the application for joining for the purpose of adducing expert evidence so that either a single joint expert report or a joint report by Dr Hu and Dr Goh could be prepared.

45.  By allowing this critical opportunity to pass and waiting until the availability of Dr Hu’s Report, the Fund Board has allowed the unsatisfactory situation to arise only one expert being available, namely, Dr Hu.

46.  While I accept the criticisms Ms Wu made against Hastings in relation to the failure of prompt reporting of the progress and the late provision of the essential documents discussed in Part D above, I do not accept Ms Wu’s submissions that the Fund Board could not make an informed decision until it was provided with all the documents relied on by Dr Hu.  The avoiding of the less satisfactory course of only appointing a single expert, in my view, was not dependent on CY having sight of the documents Dr Hu relied on.

47.  It might not have been the intention of the Fund Board to adduce expert evidence through the back door as Ms Lau complained of.  The Fund Board’s decision to make the joinder application after the favourable opinion given by Dr Hu, when viewed objectively, has unfortunately created the impression of such a motive.

48.  In the circumstances, I consider that the Fund Board has indeed delayed in the issue of the joinder summons.

49.  Mere delay however is not determinative of the exercise of this court’s discretion.  I ought to exercise my discretion in favour of the joinder if the Fund Board can satisfy this court that it is just in the circumstances if (i) Dr Goh’s Report can assist the trial judge in reaching a proper decision, and (ii) there is no delay caused to the setting down of the EC Application for trial.

50.  First, Dr Goh’s Report.  I agree with Ms Wu’s submissions. When determining the issue on liability in this case, the trial judge needs to critically examine the connection between the Deceased’s work and the cause of his death.  The availability of the opinion of another expert would assist the trial judge in conducting a more impartial and comprehensive examination of the evidence on causation.  Given the divergent opinions currently held by Dr Goh and Dr Hu, and the fact that both of these two doctors are cardiologist specialists with vast experiences, I believe that Dr Goh’s evidence, if allowed to be adduced, will likely assist the trial judge to conduct a more balanced and impartial examination of the issue of liability.

51.  Secondly, any disruption to the setting down for trial.  While Ms Wu is correct in stating that currently there is no milestone date, I also believe that it is, given the background of this case, necessary to move these proceedings forward and not to cause any further delay when allowing the joinder application. I consider that it is desirable to set the case down for trial now rather than waiting until the forthcoming directions hearing on 27 November 2020.  After having looked at the status of the trial diary, I have found a suitable time slot for my estimated 3-day trial and the Pre-Trial Review (PTR) hearing.

52.  Once the PTR and the trial dates are fixed, I believe that allowing the Fund Board to join in and adduce Dr Goh’s Report will not cause any delay if the timetable for further steps to be taken can be tightly managed.

53.  Since I am of the view that Dr Goh’s Report is relevant and allowing the Fund Board’s application will unlikely cause any further delay, I believe that it is just in the circumstances to grant the Fund Board’s application.

F.     Orders and directions

54.  I grant the following orders and directions:-

(1)  Order in terms of §§1 and 2 of the joinder summons;

(2)  The Fund Board do file Dr Goh’s Report within 7 days of the handing down of this Decision.  The trial of this EC Application will be heard on 17 to 19 August 2021 at 9:30 am at Court 5 (with 3 days reserved).  The PTR will be heard on 11 June 2021 at 2:30 pm at Court 5 (with 1 hour reserved);

(3)  The Applicant and the Fund Board shall, not later than 3 days before the directions hearing on 27 November 2020, file a joint written application proposing case management timetable on matters such as the meeting of experts, and the preparation of a supplemental joint expert report, if any.  The timetable should be fixed in such a way so as not to disrupt the trial dates in (2) above;

(4)  There shall be a costs order nisi that the costs of the summons, including costs reserved, be costs in the cause.  Unless an application for variation of this nisi order is made within 7 days of the handing down of this Decision, this nisi order shall stand absolute; and

(5)  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

55.  Lastly, I thank both Ms Lau and Ms Wu for their assistance in this matter.