何文興 v. 保华建筑有限公司及另一人

DCEC 699/2021

[2022] HKDC 559

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 699 OF 2021

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DECISION

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A.      Introduction

1.  On 7 April 2021, the applicant filed a home-made Application in person for employees’ compensation against the 1^st and 2^nd respondents (jointly referred to as the “Respondents”) in relation to an alleged accident on 28 February 2019 when the applicant fainted in the course of employment.

2.  The Respondents vigorously contested liability.

3.  Shortly after the applicant was privately represented by Messrs B Mak & Co (“B Mak”) on 3 December 2021, the parties reached a full and final settlement of these proceedings by the Respondents’ payment of the gross sum of $60,000 (inclusive of interest, costs and disbursements) (“Settlement Sum”).  The terms of the settlement were embodied in a consent order dated 16 February 2022 (“Consent Order”) pursuant to O 42, r 5A of the Rules of the District Court.  In the Consent Order, the parties agreed that half of the Settlement Sum was to be paid out from the sanctioned payment and the remaining half be paid within 28 days of the Consent Order.

4.  By a summons dated 25 February 2022 (“Summons”), the applicant applied to set aside the Consent Order.  The Respondents opposed the Summons by the filing of an affirmation of Cheng Sau Yi, the Respondents’ handling solicitor (“Opposing Affirmation”).  This court directed paper disposal of the Summons.  Written submissions have been lodged pursuant to the court’s directions.

B.      The applicant’s reasons for wishing to set aside the Consent Order

5.  According to the affirmation of Mak Yiu Wah Bilan (“Mr Mak”) (the principal of B Mak) the applicant filed in support (“Supporting Affirmation”) of the Summons, Mr Mak stated that the applicant accepted the settlement terms in the Consent Order after B Mak advised the applicant that he would likely face an “uphill task” in both the issues of liability and quantum against the Respondents in these proceedings. B Mak’s unfavourable assessment of the merits was based on:-

(i)    First, that the applicant’s application on 6 October 2020 for legal aid was turned down for reason of lack of merits.

(ii)   Second, in the Certificate of Assessment issued by the Employees’ Compensation (Ordinary Assessment) Board (“Board”) in the prescribed Form 7 dated 27 July 2021 (“Form 7”), the Board did not set out any assessment in relation to either the periods of absence or the loss of earning capacity permanently caused by the injury.  The Form 7 only described the applicant’s injury as “medical condition”, and stated in a “Remark” that the “Board considers that there is insufficient medical evidence to suggest that this is a case of injury on duty…”.

6.  However, on 23 February 2022, after the Consent Order was entered into, the applicant informed Mr Mak that his treating doctor told him that there was still a blood clot inside his brain which would seriously affect his working ability.  Hence, the applicant refused to accept the terms of the settlement set out in the Consent Order.

7.  The applicant’s reply affirmation in Chinese to the Opposing Affirmation is simply a confirmation of the contents of the Supporting Affirmation in the applicant’s own words.

C.      Discussion

8.  Since a consent order is generally considered to be contractual in nature and is more than merely an order made by a court, it will only be set aside in exceptional circumstances: see Leung Kit Ping & Anor v Leung Sau Ching and Kwok Lai Ying, the executors of the estate of the deceased & Ors;[1] and also Hong Kong Civil Procedure 2022 at §42/5A/4.  The applicant is therefore required to satisfy this court that there are exceptional circumstances before the Consent Order can be set aside.

9.  After having considered the applicant’s evidence and the Respondents’ Opposing Affirmation, I am not satisfied that the applicant has shown any exceptional circumstances.  According to the Supporting Affirmation, the main reason for the applicant’s wishing to set aside the Consent Order was due to an alleged blood clot found in his brain.  However, there is no evidence in support of the allegation.

10.  I do not accept that the alleged finding by the applicant’s doctor of the presence of “the blood clot” was only discovered after the entry of the Consent Order.  As stated in the Opposing Affirmation (at §16), in the applicant’s Application in Chinese, the applicant had in fact alluded to a blood clot having allegedly been found on the right side of his brain in an MRI scan that he undertook on 22 June 2019.  A repeat scan in October 2019 still confirmed the presence of a blood clot.[2]  I therefore agree with Ms Cheng’s suggestion in the Opposing Affirmation that there was no change of circumstances that would justify the setting aside of the Consent Order.

11.  In the circumstances, I find there is no basis for this court to accept B Mak’s submissions that when the Consent Order was entered into, the applicant was under a mistaken belief that he had recovered from his alleged head injury.  There is simply no evidence to support the alleged mistaken belief.

D.      Conclusion and order

12.  For the reasons stated above, I’m not satisfied that the applicant has provided any good reasons, let alone exceptional circumstances, in support of the Summons.  The Summons is dismissed.

13.  I further grant a costs order nisi that the applicant do pay the Respondents’ costs of the Summons, which costs are summarily assessed with reference to the “Statement of Costs” annexed to the Respondents’ written submissions, at $25,000.  This nisi order shall become an absolute order if no application is made to vary it within 14 days of the handing down of this Decision.

14.  Lastly, I wish to thank the solicitors for their assistance.