XCHRX CHAN CHEUK CHUEN v. POK OI HOSPITAL

HCPI 992/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.992 OF 1999

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J U D G M E N T

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1. This is an appeal by the plaintiff against a decision of Registrar Chan ordering the dismissal of the plaintiff's claim on the grounds of issue estoppel.

Background

2. The present case is a personal injuries claim brought by the plaintiff against the defendant, his former employer, alleging breach of statutory duty and/or breach of employer's duty and/or negligence from which the plaintiff now suffers from bronchiectasis and/or chronic bronchitis as a result of his work when he was employed by the defendant as a cleaner at the defendant's school.

3. Quite apart from the present case, the plaintiff had also brought a claim against the same defendant in the District Court being ECC Case No. 653 of 1998 ("the ECC Case"), under the Employees' Compensation Ordinance ("the Ordinance"), alleging that he had suffered an occupational disease. The ECC claim was heard by Deputy Judge Yuen who, in a written judgment given on 20 July 2000, dismissed the claim.

4. By Summons dated 26 October 2000 in the present action, the defendant applied to strike out the plaintiff's Statement of Claim and to dismiss the action under Order 18, rule 19 on the ground of issue estoppel. That application was heard by Registrar Chan on 19 February 2001 who ordered the Statement of Claim be struck out and the action against the defendant be dismissed. The plaintiff now appeals against that decision of the Registrar.

The defendant's application to strike out

5. The Summons taken out by the defendant to strike out the Statement of Claim herein was made on the basis of issue estoppel. It is alleged by the defendant that the plaintiff is estopped from alleging in the present action that:

1. he suffered from bronchiectasis; and

2. such disease was caused by his work for the defendant.

It is further alleged by the defendant that the issue estoppel arise as a result of findings made by Deputy Judge Yuen in the ECC Case which is a final decision of the same issues (as in the present case) between the same parties made by a court of competent jurisdiction.

6. The plaintiff does not dispute that the judgment of Deputy Judge Yuen in the ECC Case was a final decision by a court of competent jurisdiction and that those proceedings were between the same parties as in the present case. The dispute between the parties now is whether there has been a finding of fact by Deputy Judge Yuen in the ECC Case such as would give rise to an issue estoppel in the present case.

7. Alternatively, for the purpose of this appeal (though not before the Registrar at the hearing of the Summons) the plaintiff has applied for leave to amend the Statement of Claim to plead in the alternative that if the bronchiectasis and/or chronic bronchitis was not caused by his work for the defendant, it was aggravated by it such that the plaintiff is still entitled to bring his claim on that basis.

The ECC Case and findings therein

8. The ECC Case was brought under Part III of the Ordinance which part is under the heading of "Compensation for Occupational Disease". 'Occupational disease' is defined in the Ordinance to mean any of the diseases specified in the second column of the Second Schedule and any recurrence or sequelae thereof. Specifically, the ECC Case was pleaded and brought on the following footing, namely :

1. Poisoning by mercury or a compound of mercury pursuant to Item C5 of the Second Schedule of the Ordinance; and

2. Occupational asthma involving the use of, or handling of or exposure to Formaldehyde pursuant to Item (e) of D5 of the same schedule.

It was along the narrow compass of these two items contained in the Second Schedule of the Ordinance that the claim in the ECC Case was based.

9. At the hearing of the ECC Case, the plaintiff (being the applicant in the ECC Case) adduced expert medical evidence from a Dr Yu to the effect that Dr Yu, after examining the plaintiff, came to the conclusion that the plaintiff suffered from bronchiectasis and chronic bronchitis. Dr Yu was also of the view that these two illnesses are related to the plaintiff's work and it is possible that for a long period the plaintiff had inhaled smoke gas evaporated from different chemicals which led to these illnesses.

10. The defendant (being the Respondent in the ECC Case) also adduced medical evidence from a Dr Lai, a specialist in respiratory illness. His evidence was to the effect that, after examining the plaintiff and arranging for the plaintiff to undergo a scan, he reached the conclusion that the plaintiff's cough was caused by chronic sinusitis. Furthermore, the scan showed that the plaintiff did not suffer from bronchiectasis. Dr Lai also explained that Dr Yu may have been misled by a report from Tuen Mun Hospital at the time Dr Yu examined the plaintiff that at that time the plaintiff may have been suffering from pseudo-bronchiectasis. Dr Lai therefore concluded that the plaintiff's respiratory problem was not caused by his work and the plaintiff could continue to work as a school worker.

11. That part of the judgment of Deputy Judge Yuen relied upon by the defendant to say that the learned deputy judge had made findings of fact on which the issue estoppel is based are as follows :

"After having heard all the relevant evidence, I find that the following points are obvious:-

The Applicant was not intoxicated as a result of having come into contact with mercury or mercury compound. Also, there is no evidence to suggest that the Applicant has suffered from occupational asthma as a result of having come into contact with formaldehyde. As regards the conclusion of Dr. Yu that the Applicant has suffered from bronchiectasis and chronic bronchitis, these two illnesses are not occupational diseases prescribed by the Ordinance.

It is true that the Applicant started coughing since 1995 and there were many occasions in which he coughed blood and had to take sick leave and be hospitalised. Regarding the evidence of the doctors, I accept the evidence of Dr. Lai for the Respondent. That is to say the Applicant's cough was caused by the Applicant's chronic sinusitis which in turn caused post-nasal drip. I also accept the evidence of Dr. Lai that the respiratory problem of the Applicant was not caused by his work. But I am of the view that the possibility that his condition deteriorated due to the working environment could not be excluded. But this is only an inference drawn on the basis of common sense."

Deputy Judge Yuen then went on in a later part of his judgment to say :

"Now I find the Applicant has not suffered from any illness as prescribed by the Ordinance."

12. Following that finding, Deputy Judge Yuen went on to consider whether the applicant's illness could be said to have resulted from an accident thereby coming within the ambit of Part II of the Ordinance. The Deputy Judge came to the conclusion that it could not whereupon he went on to state in his judgment :

"Therefore I am of the view that even if the Applicant has suffered from an illness, no matter whether it is bronchiectasis, chronic bronchitis or chronic sinusitis, which is related to his work, it cannot be said to be caused by an accident."

and further down in his judgment :

"The conclusion is that the Applicant has not sustained any occupational disease as prescribed by the Ordinance and he has not suffered any injury arising out of an accident at work."

Conditions for issue estoppel

13. In the case of Arnold v. Nat West Bank plc [1991] 2 AC 93, Lord Keith of Kinkel, in commenting on the distinction between cause of action estoppel and issue estoppel said (at page 104) :

"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue."

14. I am in full agreement with the passage cited that those are the conditions upon which issue estoppel may arise.

Decision

15. Applying the aforesaid criteria, it is clear that the present dispute between the parties come down to whether Deputy Judge Yuen had made sufficient findings which are necessary ingredients of the ECC Case such that the plaintiff in the present case is estopped from re-litigating those issues afresh in these proceedings.

16. I think not for the following reasons.

17. Firstly, there was no clear finding by Deputy Judge Yuen that the applicant's illness was not bronchiectasis. Even in the passage relied on by the defendant in making this application to strike out, there, Deputy Judge Yuen merely referred to 'the applicant's cough' and also to 'the respiratory problem of the applicant'. The defendant was clearly in error when it submitted that Deputy Judge Yuen had found that the applicant's illness was chronic sinusitis and not bronchiectasis. That was not even the evidence of Dr Lai. (Dr Lai's evidence was that the cough of the applicant was caused by the applicant's chronic sinusitis, not that it was chronic sinusitis).

18. Secondly, where Deputy Judge Yuen stated that he accepted the evidence of Dr Lai, that acceptance was immediately qualified by the deputy judge to be in relation to the cause of the illness and not the nature of the illness itself.

19. Thirdly, if Deputy Judge Yuen had specifically found that the applicant's illness was chronic sinusitis, it would be surprising, to say the least, to find the later passage in his judgment (cited above) where he says "no matter whether it is bronchiectasis, chronic bronchitis or chronic sinusitis"

20. In so far as the 'causation point' is concerned, again, I do not find a specific finding by the deputy judge in his judgment. Although he appeared to have accepted the evidence of Dr Lai that the respiratory problem of the applicant was caused by his chronic sinusitis and not caused by his work, the deputy judge went on to say in the same breath that he was of the view that the possibility that the condition of the applicant deteriorated due to the working environment could not be excluded. Therefore, it seems to me that the deputy judge had left that issue very much open and had not made any specific findings on it.

21. Having read the judgment of Deputy Judge Yuen in the ECC Case several times over, I have reached the conclusion that the only really specific findings which the deputy judge came to in that judgment was that the illness of the applicant was not one which is prescribed by the Second Schedule of the Ordinance, namely, occupational asthma and that that illness does not fall within the term of 'accident' such that it can be brought within the ambit of Part II of the Ordinance.

22. Indeed, those are the only findings which the deputy judge needed to make which are the necessary ingredients of the ECC Case. Therefore, even if I am wrong in the above conclusions which I have come to, and that the deputy judge had made those findings submitted by the defendant, such findings would not be part of the 'necessary ingredients' of the ECC Case. It follows therefrom that issue estoppel cannot arise in the present proceedings.

23. However, a further indication that I have come to the right conclusions as to the findings of the deputy judge is to be found in the closing words of his judgment where he states :

"There is one point which I have to say here. The failure of the applicant in this case will not preclude him form continuing with his High Court action against the Respondent for other damages under the common law."

24. For the reasons given above, the appeal is allowed and the order of the Registrar striking out the Statement of Claim and dismissing the action is set aside.

25. In the light of the above decision, it probably becomes of academic interest only as to whether the plaintiff still wish to amend his Statement of Claim. However, since that application is before me I shall grant leave to the plaintiff to amend the Statement of Claim in the manner as per the draft attached to the Notice of Appeal. I shall further direct that the Amended Statement of Claim be filed and served within seven days should the plaintiff wish to take advantage of such leave, and leave be given to the defendant to file and serve an Amended Defence within 14 days thereafter. A Reply, if necessary, a further 14 days thereafter.

Costs

26. There will be a costs order nisi that the defendant do pay the plaintiff the costs of the appeal as well as the costs of the application to strike out and the hearing before the Registrar in any event.