XCHRX WONG KA PANG JAMES v. WONG CHUN WANG

1998, No. HCPI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 644 OF 1998

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REASONS FOR DECISION

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1. This was an application to set aside a regularly entered judgment in default of notice of intention to defend heard by me before I dealt with the Check List Review. The Plaintiff who was injured in an accident at work on 1st August 1995, commenced proceedings in June 1998, serving his Statement of Claim on 3rd September 1998. Judgment was entered on 14th October 1998. That was served on the Defendant on 16th October. In 1996, the Plaintiff had commenced Employee's Compensation proceedings against the Defendant in the District Court. The Defendant had served a Re-Amended Answer in those proceedings, in which employment of the Plaintiff was admitted.

2. In April of 1997, the Legal Aid Department had written to the Defendant claiming damages for personal injuries for negligence and breach of duty, i.e. notifying the common law claim. The letter advised notification of insurers if there were any. At the beginning of September 1997 the Department wrote to the solicitors then acting for the Defendant in the E. C. O. proceedings, Messrs. Paul Kwong & Co., in connection with the common law claim for damages asking if they had instructions to accept service of proceedings. They replied that their instructions were limited to the E. C. O. proceedings but they would put to their client for his consideration any overall settlement proposed. There was further contact in June 1998 when Philip Kwong & Co. confirmed that they had no instructions to accept service and that the writ should be served direct upon their client. It is reasonable to conclude from these exchanges that the Defendant must have known of the imminence of additional proceedings arising out of the same incident.

3. Although a copy of the interlocutory judgment was served upon the Defendant in mid-October 1998 the application to set aside the judgment was not taken out until 7th January 1999. What happened between these dates is of some relevance to the merits of this application to set the judgment aside.

4. The Defendant's affirmation says that when he received the Writ and Statement of Claim at the beginning of September 1998 he thought they related to the E. C. O. claim. So he did nothing until he showed them to his solicitors on 15th October 1998. There is in fact a letter from his solicitors of that date to the Department acknowledging that they were in possession of the documents and referring to a telephone conversation at 3 p.m. that day when they learnt from Miss Wong that judgment in default had been obtained. The Department was requested to consider setting aside the default judgment. It appears that, not surprisingly, the Department declined to do so. The solicitors said that they would file their Notice to Act after the Defendant had put them in funds.

5. It then transpires that another firm of solicitors, those instructing Mr. Eric Yung on this application, filed Notice to Act dated 24th December 1998. However they had been instructed by the Defendant on the 23rd November in relation to these proceedings, according to the Affirmation of the solicitor concerned, and on or about 9th December 1998 had instructions to set aside the judgment. It is clear that no expeditious steps were taken, given that the judgment had been entered in mid-October 1998. Mr. Yung also told me, in the course of his submissions after I had emphasised the delay which the Defendant had permitted, that discussions and negotiations on quantum and/or settlement had continued during that intervening period. I am not quite sure how extensive or comprehensive these were since Messrs. Philip Kwong & Co. continued to act for the Defendant in the E. C O. proceedings whereas Messes. K. M. Lai & Li were on record for the Defendant in the High Court Personal Injury action. But in advancing that matter Mr. Yung must be referring to negotiations in this case. Therefore there have been such against the background of a judgment. The Plaintiff was entitled to expect a prompt action to seek to set aside the judgment if that was a serious intent. Conducting negotiations on the basis of an existing judgment on liability was bound to raise the inference at least that there was no defence to the Plaintiff's claim. The Defendant should not now be allowed to try and change the basis on which contact between the parties have hitherto proceeded. It has not been suggested that the Legal Aid Department acquiesced in the delay or was prepared to leave the time for such an application to set aside, open ended. In my view there is in any event prejudice to the Plaintiff if he was to be put back to the pre - 14th October 1998 position. For all these reasons it would be wrong to allow the Defendant's application.

6. That is not the end of the matter because the Defendant says it has a good defence to the Plaintiff's claim. Firstly he denies employing the Plaintiff. This is specifically set out in paragraph 3 of the Draft Defence. However the first sentence of the Re-Amended Answer in the E. C. O. proceedings against the Defendant clearly admits that the Defendant employed the Plaintiff. Secondly the solicitor representing the Defendant in the Magistrates Court proceedings, alleging that he terminated the contract of service of the Plaintiff without the Commissioner's consent before a certificate had been issued, conceded that the Plaintiff was injured in the course of employment, and stated that the Defendant had no intention of terminating the employment contract. Finally the Defendant was convicted as employer. There is no substance in the Defendant's current contention.

7. The Plaintiff's case is essentially based on an unsafe system of work. He was required to drive a lorry and load it using a manually driven fork lift or pallet truck. The tailboard of the lorry was not always on the same level as the loading platform and so he was provided with a steel plate to bridge the gap and act as a ramp. He was also provided with sometimes one, and on other occasions two pieces of timber. His belief was that they were to act as chocks for the pallet fork lift truck when it was in the back of the lorry.

8. The Defendant contends that the pieces of timber were to be used to raise the back of the lorry (i.e. under the rear wheels) so as to reduce the gap between the tailboard and the loading platform. The photographs supplied by the Defendant clearly show the risks inherent in the system of work. A loaded fork lift truck in manoeuvring to get onto the tailboard and thus into the lorry could easily dislodge the steel plate. Furthermore the weight of the goods and trolley going down a moveable small ramp, such as the steel plate constituted, could be difficult to manage and the Plaintiff could easily catch his foot on the edge of the plate. In one photograph the steel plate is shown with one edge clearly higher than the level of the steel tailboard. It was bound to tip, lift and/or swivel, as the weight of trolley and goods was manoeuvered on to it. Most damning is the admission by the Defendant in his affirmation(§20) and by his wife (§9 of her affirmation) that the Plaintiff was instructed to brake the fork lift trolley or simply let it go with its load so that it would then proceed under its own momentum. This is the clearest admission of a risk in the system, which was to be diminished in the Defendant's eyes, by an instruction to the Plaintiff that he should simply "let go" so that the combined weight of trolley and load did not pull him over or out of control. A further instruction alleged was that the Plaintiff was not to walk on the steel plate when pushing the fork lift truck, forward. How he was expected to do this and at the same time control the fork lift truck, I fail to see. It was the clearest indication that the steel plate was either not heavy enough, or not big enough, or not stable enough or inadequate in all three respects. There are significant differences between the Defendant's version of events and instruction and system as set out in the statements made by him and his wife for the E. C. O. proceedings, and those contained in their affirmations in these proceedings. They are self-evident and do not need to be itemised. There is clearly an effort to embellish the Defendant's case.

9. Mr. Yung argues that the Defence case has "real prospects of success" (See Premier Fashion Wears Ltd. - v - Li Hing Chung 1994.1. H.K.C., p.213 and The Saudi Eagle: Alpine Bulk Transport Co. - v - Saudi Eagle Shipping 1986.2. Lloyds Reports p.221.) I do not think there is any real prospect of success. Nor is there any realistic prospect of establishing contributory negligence on the part of the Plaintiff, a matter I invited Mr. Yung to argue because even though there was no realistic Defence to the claim I still had to consider the question of whether there was any realistic prospect of the Defendant establishing any contributory negligence. I am firmly of the view that there is none. The Plaintiff was doing his best to follow a system fraught with risk, with inadequate material and inadequate assistance, the risky nature of which was acknowledged by the Defendant in his instruction to let go of the trolley when it reach a certain stage.

10. This application is dismissed with costs. Since it occupied by far and away most of this morning's hearing, the Defendant will also pay 4/5th of today's costs and the whole of Counsel's fees of the Plaintiff; the remainder of the hearing, a matter of a few minutes, was taken up with the Check List Review for which the costs order will be costs in the cause.