CHUNG YUEN YEE v. SAM WOO BORE PILE FOUNDATION LTD AND ANOTHER

cacv 86/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 86 of 2006

(on appeal from DCEC NO. 822 of 2005)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an appeal from Deputy District Judge Yip given on 26 January 2006 whereby he refused to order the production of a certificate of insurance that had been sought under the provisions of section 44A of the Employees’ Compensation Ordinance, Cap. 282 (“the Ordinance”).  At the conclusion of the hearing this appeal was dismissed but no further order was made save that the costs of the appeal and below were made costs in the application by the applicant against the first respondent.

2.  The applicant has applied for compensation under the Ordinance for the death of her husband.  In the application the first and second respondents are named as the employers.  In the answer the first respondent denies being the employer, whereas the second respondent admits being the employer of the deceased.  For the purposes of these proceedings it suffices to say that there are grounds upon which the applicant can contest the first respondent’s denial of being the employer, particularly given the broad definition of employer in section 3 of the Ordinance.  However, at this stage, this court is not in a position to decide the matter.

3.  By the summons, brought under section 44A of the Ordinance, the applicant sought an order for inspection of the insurance policy held by the first respondent.  When the matter came to be heard, the judge immediately raised the point that it had not been established that the first respondent was indeed the employer of the deceased.  After a considerable discussion between the solicitor representing the applicant and the court, the summons was dismissed.

4.  It appeared to this court that it was not correct to dismiss the application on the ground that it had not been established at that stage that the first respondent was the employer.  The scheme of the Ordinance is that there should be a speedy resolution of cases, applications have to be made in a timeous manner and, furthermore, it is open to an applicant to bring proceedings against the insurer so as to be able to secure payment directly in respect of any claim.  In those circumstances, the intent of section 44A was that an applicant should be able to serve proceedings on the insurer notwithstanding liability might be disputed.

5.  However, in this case not only does the first respondent deny that it was the employer but in an affirmation filed on 25 January 2006, Lau Chun Kwok, who is a director of the first respondent, affirmed that whilst the first respondent had relied upon insurance policies taken out by main contractors in respect of other works, which had no bearing on the present dispute, the first respondent had not otherwise taken out any insurance policy.  In those circumstances, it appeared to this court that it would be futile to order for production of an insurance policy simply because the first respondent had already affirmed that it had no such insurance policy, indeed that was confirmed by Ms Ng, who appeared in this court on behalf of the first respondent.

6.  In view of the course that this matter has taken and in view of the fact that it is still an open question as to whether the first respondent was indeed the employer of the deceased, in which case the first respondent should have had an insurance policy, it appeared to this court that the correct order in respect of costs was that that the costs of this appeal and the hearing before the judge should be made costs in the application between the applicant and the first respondent.

Hon Yeung JA:

7.  I agree.