LI KWAI FONG AH PAT v. BACHY SOLETANCHE GROUP (a firm) AND ANOTHER

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JUDGMENT

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Penlington, J.A. delivered the judgment of the Court:

1. This is an appeal from a judgment of Deputy Judge Evans dated 7th November 1988 in which he dismissed a claim which the appellant had brought against the two respondents for damages for personal injuries suffered by him on 28th August 1982.

2. On the first occasion that the matter came before this Court, which was then differently constituted, Hunter, J.A. drew attention to several difficulties that then arose. One was that the appellant, who had gone to a great deal of trouble in supplying a bundle of documents,had not asked for a copy of the record of proceedings. As the judge's decision turned on a finding of fact it was impossible for the Court to consider the appeal as matters then stood. Hunter, J.A. also pointed to there being a possible issue of estoppel because the defence was that the injury alleged to have been suffered by the appellant in fact never happened at all. This was a somewhat startling defence because compensation of $137,365.40 under the Employees' Compensation Ordinance had been paid to the appellant to an order of Leong, D.J. on 20th May 1983.

3. The second point was that leave was given to re-amend the defence at the trial whereby it was for the first time alleged that the plaintiff had not suffered the accident complained of at all. Hunter, J.A. was concerned that this radical amendment should have been allowed at such a very late stage.

4. The third point was that there was a dispute between the parties as to the lighting conditions at the site when the alleged injury was suffered. It was alleged by the appellant that there was no mains electricity supply at the time but that only a diesel generator and the lighting was poor. This was denied. Again Hunter, J.A. thought that evidence could have been caused to be produced from the China Light and Power Company as to when mains power was installed at the site.

5. At the hearing of the action the appellant had been legally aided. When the matter came before this Court, however, that had ceased to be the position and legal aid had been refused. For the reasons raised by Hunter, J.A. the Court was concerned about this and expressed the hope that the Director of Legal Aid re-consider his decision to refuse legal aid to the appellant. An order was also made that a copy of the record before Deputy Judge Evans should be obtained. This has now been done but the Director of Legal Aid found no cause for changing his decision and the appellant is still unrepresented. This has certainly made our task no easier. We were informed that opinion has been taken from counsel who appeared for the appellant at the trial and he is of the view, as is the Director of Legal Aid, that the appeal has no reasonable prospect of success. We could not take that any further.

6. As regards the points raised by Hunter, J.A., the position now is as follows.

7. So far as the question of estoppel is concerned it is strongly argued before us by Mr. Michael Poll for the respondents that payment under the Employees' Compensation Ordinance is not in any way an estoppel to a denial of liability. He stresses that payment under that Ordinance should be made promptly and that if such payment was to be then raised against an employer in subsequent proceedings for negligence, payments would much more often be refused and one of the main purposes of the Ordinance, the speedy payment of sums due to injured workers, would be defeated. He says that as the respondents now denied that any accident took place at all it may be that they would have an action to recover the amount paid to the appellant but that in fact they do not intend to do so. One of the reasons for that being the lapse of time which has occurred. We agree that the mere payment of an amount alleged to be due under the Employees Compensation Ordinance would not necessarily operate as a bar to a subsequent denial of liability on the basis that the accident did not occur at all.

8. Moreover, we are bound by pleadings not to consider the possibility of estoppel. An estoppel must be specifically pleaded before it can be entertained. It was not. No application is made before us for leave to re-open the issue which must therefore be taken as unarguable. Not only was estoppel never raised at the trial, instead counsel for the appellant consented to an amendment for introducing the very issue on which the said estoppel point might have been advanced.

9. So far as the second point is concerned, the very late amendment of the defence, a perusal of the record, which we now have, shows that counsel for the appellant agreed to that amendment. We find that difficult to understand for the reasons given by Hunter, J.A., i.e. as it was a radical amendment and it came at the last possible moment. However, consent having been given by the appellant's counsel at the time we are satisfied that we cannot go beyond that and this point also is not available to him.

10. So far as the third point is concerned, we are now informed that records of whether or not mains electricity was supplied to the site at the time of the alleged accident are not in fact available. This may be unfortunate but we are satisfied such is the position. Accordingly this aspect also cannot be carried any further.

11. The appellant is not represented but has done his best and, we may say, by no means incompetent best, to present his appeal before us but he faces the grave difficulty that this was essential a finding of fact by the trial judge. He has considered all the evidence that was before him, including considerable documentary evidence, and he has come to the conclusion that the appellant did not discharge the burden on him of showing that on a balance of probabilities the accident occurred to him on the day in question and that it caused him the injuries about which he complains. We have also considered that evidence carefully and we are satisfied that there was ample before him which justified the trial judge in coming to the conclusion that he did. This was essentially a matter of fact for him to assess on the evidence before him and clearly we could not interfere with that decision unless satisfied that he had taken what was clearly a wrong view of the evidence or had ignored part of that evidence. Neither is the case here. We were, therefore, satisfied that this appeal could not succeed and must be dismissed.

12. Mr. Poll asked for the costs of the appeal to which normally his clients would be entitled. However, costs being always within the discretion of the Court, and having considered all the circumstances of this matter, we made no order as to the costs of this appeal.