WONG WANG SUM v. LEE KAM ENGINEERING CO (A FIRM) AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Transferred from HCA No.2384 of 1991)

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JUDGMENT

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Nature of the application

1. In this application, the Defendants seek to strike out part of the Amended Statement of Claim of the Plaintiff on the ground that the matters pleaded therein had already been determined by the District Court in Employee's Compensation Case No.29 of 1990 and that it is an abuse of the process of the Court that the Plaintiff should litigate the issues again in these proceedings.

Amended Statement of Claim

2. The Plaintiff is claiming damages against his employer and the occupier of the premises in which he carried out his work for negligence. The Plaintiff's case is that he was struck by an iron rod protruding from the wall and had suffered serious injuries. Paragraph 8(2) of the Amended Statement of Claim pleaded that :-

"As a result of the said accident, the Plaintiff suffers eye injury and also post-traumatic stress disorder and depression. The Plaintiff is now afraid of working at construction site and is generally having a fear about walls and corners."

In paragraph 2 of the Particulars of Special Damage, it is pleaded that :-

"However, because of his fear of construction site and walls, he was constantly under stress and he had to resign from this job in May 1989. Since then he has been unemployed. If not for the accident, the Plaintiff would be earning about $15,000 per month today."

Employees' Compensation

3. The Plaintiff had previously claimed against the same Defendants for compensation under the Employees' Compensation Ordinance ("the Ordinance"). The issues that were before HH Judge Pang were :

1st Issue

4. In respect of the first issue, the learned Judge at p.6 of the judgment held that :-

"Having examined carefully the evidence before me I found that such evidence does not support the applicant's contention that he is suffering from post-traumatic stress disorder."

2nd Issue

5. In respect of the second issue, Dr Singer, a doctor called by the Plaintiff said that the Plaintiff was suffering from depression. While Dr Green, the expert called by the Defendants said that the Plaintiff was suffering from phobic state immediately after the accident. The learned Judge stated that :-

"It is interesting to note that although the doctors' opinions were at variance in their diagnosis of the Applicant's condition, their prognosis were, however, quite similar. Both doctors take the optimistic view that the depression or phobic state would not have any long term incapacitating effect on the Applicant:"

3rd Issue

6. In respect of the third issue, the learned Judge stated that :-

"On the evidence before me I can find no permanent disability, whether total or partial resulting from the accident on 21st April 1988 and the Applicant's claim for compensation under s.9 of the Ordinance must therefore fail."

Estoppel

7. The authorities in this area is well established. In Stephenson v. Garnett [1898] 1 QB 677 A-L, Smith LJ held that :-

"It would be an abuse of the process of the Court to allow a suitor to litigate over again the same question which has been already decided against him. Though the Court ought to be slow to strike out a Statement of Claim or Defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shown that the identical question sought to be raised has been already decided by a competent Court."

8. In Carl Zeiss Stiftung v. Rayner & Keeler Ltd [1970] 1 Ch.506, Buckley J held that :-

"To make good a claim of estoppel per rem judicatam, the party asserting the estoppel must establish :

9. At p.537, Buckley J held that :-

"More subtle considerations may, however, arise where the case is not one of cause of action estoppel but of 'issue estoppel', as in the present case. If the circumstances are such that one party is barred by issue estoppel from raising an issue which he nevertheless seeks to raise two courses are open to his opponent : he can plead the estoppel and leave the matter to be dealt with at the trial or, as in the present case, he can attempt to have the offending plea struck out of the pleadings. If he adopted the latter course the Court has, in my judgment, as I have indicated a discretion whether to strike out the plea or not."

10. In Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd and Another [1975] A.C.581, the Privy Council, following Henderson v. Henderson [1843] 3 HARE 100 held that :

"But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which would and therefore should have been litigated in earlier proceedings."

11. In Arnold v. Nat West Bank Plc [1991] 2 AC 93, Lord Keith of Kinkel commented on the distinction between cause of action estoppel and issue estoppel. At p.104, he stated that :-

Present application is based on issue estoppel

12. In the present case, the estoppel is not one of cause of action estoppel but of issue estoppel. The cause of action in the present case is damages for negligence whereas the cause of action in the Employees' Compensation proceedings is based on the statutory provisions. The issues in the Employees' Compensation proceedings were whether the Plaintiff was permanently impaired in his earning capacity and of his whole person by reason of a post-traumatic stress disorder and depression. These are the same issues to be litigated in the present case.

Plaintiff's Arguments

Section 26 of the Ordinance

13. Mr Ambrose Ho, Counsel for the Plaintiff, argued that s.26 of the Employees' Compensation Ordinance precludes the Court from striking out the Plaintiff's plea. Section 26(1) is as follows: -

"(1) Where any injury is caused to an employee by the negligence, breach of statutory duty or other wrongful act or omission of the employer, or of any person for whose act or default the employer is responsible, nothing in this Ordinance shall limit or in any wise affect any civil liability of the employer independently of this Ordinance."

Mr Ho referred to the history of the Ordinance. When the Ordinance was first enacted (then known as Workmen's Compensation Ordinance, No.28 of 1953) the worker has to elect whether to proceed by way of common law action or proceedings under the Ordinance : s.25 of the 1953 Ordinance. This was modelled on the English Workmen's Compensation Act 1925.

14. The Ordinance was amended in 1969. One of the amendments was to enable the worker to claim compensation from his employer under the Ordinance and also to take proceedings against him to recover damages at common law or under any other enactment : Hansard Legislative Council Debate on the Workmen's Compensation (Amendment) Bill pages 112 and 118 on Clause 20 of the Bill.

15. Mr Ho submitted that it is clearly envisaged by the amendment, and now s.26, that proceedings under the Ordinance as well as proceedings at common law are to go side by side. Not only does the provision allows the two sets of proceedings to proceed at the same time, it is framed in the widest possible terms. He submitted that the words in s.26, namely "..... Nothing in this Ordinance shall limit or in any wise affect any civil liability of the employer independent of this Ordinance ..." means that the provision not only applies to commencement of proceedings under the Ordinance but also to any determination of such proceedings. He submitted that s.26 is intended not only to prevent any challenge by the Defendants on the basis of the doctrine of res judicata in its widest application as defined in Yat Tung but also covers any situation which might otherwise fall within the principles of issue estoppel.

16. I must rule against Mr Ho's argument. The intention of s.26 is merely to enable the worker to seek common law damages independent of the Ordinance. In other words, it merely deals with the remedies that are available to the worker. It clearly does not intend to preclude the operation of the principles of res judicata or issue estoppel. Given the widest possible interpretation on s.26, I just cannot see how it could be used to assist the Plaintiff where identical questions had been raised in an earlier proceeding.

Special circumstances

17. Secondly, Mr Ho argued that personal injury litigation is exceptional in its nature. It is invariably the case that the victim of the accident will have his injuries, both physical and psychological, continually assessed and diagnosed by medical experts until the trial. An updated assessment will always assist the Court in its determination of how to provide for any prospective loss and future contingencies. He argued that until the trial of the action, any assessment of a person's injuries can only be provisional; the Plaintiff cannot be denied the opportunity of adducing at the trial any evidence of continued or updated assessment by medical experts. Any development in the conditions of the Plaintiff between the Employees' Compensation proceedings and the trial should be taken into account by the experts in either confirming their initial assessment or diagnosis or reversing their initial views. Because of such special nature in personal injury litigation, he submitted that the exception to the general principles of issue estoppel applies. The principle is that all estoppels should be applied to work justice and not injustice and by reason of the special nature of the personal injury litigations, justice does require the Plaintiff to be allowed to adduce evidence on his earning capacity at the trial notwithstanding the findings in the Employees' Compensation proceedings.

18. In Arnold Lord Keith recognised that there may be special circumstances where the cause of action estoppel and the issue estoppel do not operate. Arnold is a case where the court found that there were special circumstances in which the issue estoppel would not apply. In that case there were subsequent judicial decisions which show that the decision of the judge on the construction of a document was wrong. The Plaintiff brought another action on the same subject matter. The House of Lord affirmed that the estoppel did not apply.

Same principle in personal injury case

19. In the present case, the fact that this is a personal injury case does not by itself constitute special circumstances.

20. In Talbot v. Berkshire County Council [1993]3 WLR 702, Stuart-Smith LJ held at p.714 that :-

" In my judgment, there is no reason why the rule in Henderson's case should not apply in personal injury actions. Indeed there is every reason why it should. It is a salutary rule. It avoids unnecessary proceedings involving expense to the parties and waste of court time which could be available to others; it prevents stale claims being brought long after the event, which is the bane of this type of litigation; it enables the Defendant to know the extent of his potential liability in respect of any one event; this is important for insurance companies who have to make provision for claims and it may also affect their conduct of negotiations, their defence and any question of appeal."

No special circumstances

21. In respect of Mr Ho's argument that the Plaintiff's injuries requires constant updating in order to enable the Court to reach a determination on the matter, it is noted that the present case is not where there is some new development in medicine which was not previously drawn to the attention of the learned Judge in the Employees' Compensation proceedings or that there were some aspects of the injury which could not be ascertained during the earlier hearing. The only additional medical evidence is in a report by Dr Connell which commented on the judgment of the learned Judge and offered why, in his view, the Judge came to the wrong conclusion on the matter. There are no special circumstances which preclude the operation of the principle.

Pleading struck out

22. I am conscious of the need for caution in striking out pleadings but it is clear in the present case that insofar as the Plaintiff's case on loss of earnings and loss of earning capacity is based on the post-traumatic stress disorder and depression, it had been raised and determined in the Employees' Compensation proceedings. The matter ought not to be litigated again and insofar as the claim is based on the same subject matter, it ought to be struck out. The Defendants are hence successful in their application.

Order

23. I will invite the parties to submit a draft order for my approval. I will also give leave to the Plaintiff to re-amend the Statement of Claim so that his claim for damages is confined solely to his injuries to the eye. As the Defendants are successful in their application, I shall order costs nisi in favour of the Defendants in respect of the application.