LO SIU WA v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD AND ANOTHER

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FACV No. 12 of 2017

[2018] HKCFA 3

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO.12 OF 2017 (CIVIL)

(ON APPEAL FROM CACV NOS. 39 & 40 OF 2016)

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J U D G M E N T

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Mr Justice Ribeiro PJ:

1.  I agree with the judgment of Lord Hoffmann NPJ.

Mr Justice Tang PJ:

2.  I agree with the judgment of Lord Hoffmann NPJ.

Mr Justice Fok PJ:

3.  I agree with the judgment of Lord Hoffmann NPJ.

Mr Justice Bokhary NPJ:

4.  For the reasons which he gives, I would dispose of this appeal as Lord Hoffmann NPJ proposes.  On its wording and in the circumstances, this insurance policy covers the injured employee.  So, by statute, the insurers are obliged to pay him even if they are, as against the insured employers, entitled to repudiate and have a right of recourse.  The insolvency of those employers renders any such right valueless.  That is unfortunate.  But it does not make it uncommercial or otherwise inappropriate to construe this insurance policy to cover the injured employee.  An insurance policy is to be construed as a whole, purposively, in its factual and legal context and commercially.  That is the construction which this insurance policy now receives.

Lord Hoffmann NPJ:

The Issue

5.  On 19 March 2007 Mr Lo Siu Wa (“Mr Lo”), a carpenter employed by Nuovo Design Limited (“Nuovo”) suffered injury in an industrial accident.  As required by law, Nuovo had taken out an insurance policy (“the Policy”) in respect of its liability to pay compensation to employees. The question in this appeal is whether, upon its true construction, the Policy covered Mr Lo.

The Statutory Background

6.  Section 40 (1) of the Employees’ Compensation Ordinance Cap 282 (as amended) (“the Ordinance”) provides, so far as material:

“… no employer shall employ any employee in any employment unless there is in force in relation to such employee a policy of insurance issued by an insurer…in respect of the liability of the employer”.

7.  Section 43 of the Ordinance provides that –

“(1) …where in relation to an employee there is in force a policy of insurance issued for the purposes of this Part and the employer of the employee becomes liable to pay any sum under this Ordinance or independently of this Ordinance in respect of an injury to the employee arising out of and in the course of his employment, such sum shall forthwith become due and payable by the insurer, notwithstanding anything to the contrary in the policy of insurance.

…

(4) Where under this part an amount is paid by the insurer which would, but for this section, not be payable under the policy of insurance, the employer is liable to pay that amount to the insurer.”

8.  The effect of this provision is that, provided a policy “in relation to an employee” is “in force” at the time of his injury, the insurer is liable to pay whatever compensation is due to the employee under the Ordinance or otherwise, notwithstanding that as a matter of contract with the employer the insurer would have been entitled to repudiate liability for misrepresentation or breach of a term of the policy or whatever: see King Tak-on v Lau Chun-yip [1987] HKLR 126.  If the insurer would have been entitled to repudiate, section 43(4) gives it a right of recourse against the insured.  But the risk of the insolvency of the insured is shifted from the employee to the insurer.

9.  Section 43 therefore makes it important to distinguish between the cover provided by the policy and the representations or promises which induced the insurer to provide it.  Ordinarily it might not matter whether the casualty falls outside the risk covered by the policy or whether the insurer is entitled to repudiate liability.   But section 43 makes this a crucial distinction.

The Policy

10.  Nuovo’s principal business appears to have been interior design. That was how it was described in the application for insurance.  It employed two Creative Directors and a Designer.  In 2004, it took out the Policy with the Respondent AXA China Region Insurance Company (Bermuda) Limited (“AXA”).  It consisted of a package of various forms of cover suitable for an office-based business and was sold under the name “Office Pak”. Section 1 was Office Contents, Section 2 Interruption of Business, Section 3 Money, Section 4 Public Liability and Section 5, with which this appeal is concerned, Employees’ Compensation.  The Policy was renewed from year to year, the last renewal being for the period from 23 November 2006 to 22 November 2007.

11.  Clause 3 of the General Conditions said:

“The due observance and fulfilment of the Terms and Conditions of this Policy insofar as they relate to anything to be done or not to be done by the insured and the truth of the statements and answers in the Application shall be conditions precedent to any liability of the Company to make any payment under this Policy.”

12.  The Policy contained a Schedule which clause 1 of the General Conditions declared to form “an integral part of the Policy.” The premium for Employees Compensation cover in Section 5 was calculated by reference to the salaries or “compensation” of the employees and the Schedule contained, under the heading “Employees’ Compensation”, a list of six posts in the company (“Creative Director”, “Designer” and so on) and the estimated earnings of the persons occupying each post. There were two Designers and the Schedule accordingly stated that there were seven employees.

13.  The Special Conditions applicable to Section 5 provided for the insured having to provide information about the actual (in addition to estimated) earnings of the employees so that appropriate adjustment of the premium could, if necessary, be made.  Records were to be kept of the identity and earnings of each employee.  In more general terms, there was a requirement that the insured –

“…immediately notify [Axa] in writing of any material change in the risk insured hereunder made by the Insured or any other person during the Period of Insurance including but not limited to:

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iii) any material change in the nature of the Business or in the number of the Insured’s Employees.”

14.  The “Scope of Cover” provided by Section 5 defined the risk covered as follows:

“If any Employee in the insured’s immediate employ shall sustain bodily injury or death by Accident or Disease occurring during the Period of Insurance within the Geographical Area and arising out of and in the course of his employment by the Insured in the Business…”

15.  The “Business” was defined as “the usual work and activities carried on by the insured pertaining to his business as specified in the Schedule and no others.”  Section 5 contains several references to the Ordinance which makes it clear that the cover it provided was taken out pursuant to Nuovo’s obligation under section 40(1) of the Ordinance.

The Facts

16.  It appears from the statutory declaration of Colin Yue, the Creative Director of Nuovo, that the company did more than produce designs.  It also undertook “design and build” contracts in which it executed its designs under the supervision of its Project Manager.  For plumbing, electrical and plastering work it engaged sub-contractors.  The company itself engaged painters and carpenters whom it provided with materials and some of their tools and paid fortnightly at a daily rate.  The company regarded these workers as self-employed.  Accordingly, it did not declare any such workers for listing in the Schedule and gave no notice to AXA that it had taken on more employees.

17.  One such worker was Mr Lo, a carpenter who on 19 March 2007 sustained an injury while using the company’s circular saw.  He made a claim against the company and it is now accepted that he was an employee for the purposes of the Ordinance.  He sued the company for compensation under the Ordinance and for damages at common law.  The company failed to pay the sums awarded and on 16 February 2011 it was wound up on the grounds of insolvency.

The Litigation

18.  Mr Lo made a claim against AXA under section 43 of the Ordinance.  AXA refused to pay on the ground that he was not covered by the Policy.  It did not apply “in relation to” him.  He therefore turned to the Employees Compensation Assistance Fund (“the Fund”), to which, under section 16 of the Employees Compensation Assistance Ordinance Cap 365, an employee with an unpaid claim for compensation may apply for payment.  The Employees Compensation Assistance Fund Board (“the Board”) which administers the Fund took the view that AXA was liable and Mr Lo brought proceedings against both AXA and the Fund.  These were consolidated and when the proceedings came before Deputy High Court Judge Burrell in the High Court, Mr Lo had been paid and the only issue was which of the two defendants was liable.

19.  The judge took the view that the Policy did not cover Mr Lo and accordingly the Fund was liable.  His decision was upheld by the Court of Appeal (Yuen and Kwan JJA, Cheung JA dissenting).  The Board appeals to this Court.

Construction of the Policy

20.  The scope of the cover under Section 5 of the Policy seems to me perfectly clear.  It covers “any Employee”.  There are only two qualifications.  The first is that he must be “immediately employed”.  I take it to be in contrast with “mediately” or “indirectly” employed, for example, by another employee or a sub-contractor.  Mr Lo satisfied that requirement.  His employment was by Nuovo itself.

21.  The other requirement was that the business in which he had to be employed had to be, according to the definition, “the usual work and activities carried on by the insured pertaining to his business as specified in the Schedule and no others.”   The Schedule described the business as “Interior Design” or “Office (Interior Design)”.  The reference to “Office” was probably to identify the business as suitable for an “Office Pak” policy, in which, for example, the Contents section was limited to the contents of an office.  But other parts of the Policy, such as the reference to overseas activities, show that the company’s activities were not thought to be confined to an office.

22.  As for “Interior Design”, it was the case that the company’s principal business was producing interior designs.  But it also carried on the ancillary activity of having its own designs executed.  It is clear from Mr Yue’s declaration that such a service was part of the company’s “usual work and activities”.  But the construction work was not a separate business.  No one would have said that Nuovo was a construction company.  It did not carry out construction work to anyone else’s designs.  Of course, one could give a more elaborate description of the business, listing all its activities, but that does not appear to be customary.  In Law Lai Ha v Zurich Insurance Co. [2011] 2 HKLRD 450 the business of a company manufacturing and selling machinery was described as “Trading”.  At that level of generality, it seems to me entirely accurate to describe Nuovo’s business as Interior Design.

23.  In Susic v Sunset Pty Ltd (1998) 145 FLR 363, an Australian case on similar legislation, the business was described in the policy as “Garden and Park Furniture”.  The employer manufactured and sold such items as park benches and planter tubs, mainly made from concrete.  It also made tombstones (“monumental masonry”) and this was the work upon which the employee was engaged when he was injured.  The Supreme Court of the Australian Capital Territory (Miles CJ) said:

“In my view, while the description [of the business] is not comprehensive, it describes [the employer’s] business in general terms. It cannot be said that [the employer] was not engaged in the manufacture of garden and park furniture or that such activity was such an insignificant part of [its] activity that the description does not fit the nature of its business. The plaintiff’s injury was not sustained when he himself was engaged in the actual manufacture of park or garden furniture, but…[t]he question is whether the policy is to apply to [the employer’s] liability to the plaintiff where that liability results from injury to the plaintiff arising out of, or in the course of employment in that business described in the schedule. There was only one business and it is the business so described.”

24.  Likewise, it seems to me, Nuovo had only one business and that was the business correctly, if economically, described as Interior Design.  I do not think one should be too finicky or pedantic about the interpretation of a brief description of the business of the insured. Otherwise an employer might be found to have committed the criminal offence of failing to insure (section 40(2) of the Ordinance) because he did not provide a sufficiently detailed description of his business.

25.  Ordinarily, whatever the description of the business, the insurer will obtain a detailed description of its activities from the particulars of the occupations and salaries of the employees such as appear in the Schedule in this case. What seems to me to have happened was not that anyone considered that Nuovo’s construction work involved carrying on a different business but that it did not regard the people engaged in that work (apart from its Project Manager) as employees. That view is admitted to have been wrong.  It means that Nuovo’s representations about the number and remuneration of its employees were inaccurate and that it was in breach of its obligation to give AXA correct information for the purpose of assessing the risk or notify AXA of any change in the number of its employees.  As against Nuovo, these matters may have entitled AXA to repudiate liability under the policy and given it a right of recourse under section 43(4).  But section 43(1) of the Ordinance prevents it from doing so as against Mr Lo.

The judgments below

26.  It remains for me to consider why three out of the four judges who have so far heard this case came to a different conclusion.

27.  Deputy Judge Burrell said that if Mr Lo was covered by the policy –

“every casual labourer doing plumbing, electricity work, air conditioning, carpentry etc in all Nuovo’s projects are covered. This must be wrong.”

28.  On the contrary, it seems to me that, so far as such persons were also employees of Nuovo, it must be right. Of course, some of them would not be employees: the evidence was that “the work of plastering, installation of electric appliances and air-conditioning were sub-contracted to other companies” (Declaration of Lee Chun Fai, Nuovo’s Project Manager).  Their employees would not be direct employees of Nuovo and therefore not covered.

29.  The judge went on to say that, in context, “immediate employ” can only mean those clerical jobs listed in the Schedule, I do not see why this should be so.  It would have been easy for the “Scope of Cover” clause to have been limited in this way, but it says “any Employee”.  Furthermore, the obligation to notify AXA of changes in the number of employees indicates that the parties did not contemplate that cover would be confined to those on the list.

30.  The judge also mentioned the language of Section 1 (Office Contents) which provided that the company’s office (the contents of which were insured) should be used “solely as an office…without any manufacturing work”.  I cannot see how this throws any light on what work an employee within the cover of Section 5 could do outside the office.

31.  Finally, the judge relied upon the decision of Sakhrani J in Law Lai Ha v Zurich Insurance Co. [2011] 2 HKLRD 450, which I have already mentioned.   The employer manufactured and sold machinery and had a factory on the Mainland and an office in Hong Kong.  The employee was engaged as production manager and worked at the factory.  However, in the course of his employment he was sent to Kenya to supervise the installation of a plant manufactured by the company.  There he contracted a disease from which he died.

32.  The policy in Law Lai Ha’s case stated, as in this case, that it covered “any employee”.  The judge referred to the schedule, which specified only two employees, at the office in Hong Kong.  On this basis the judge concluded, without any further analysis or reasoning, that the cover was confined to those two employees.  In my opinion he was wrong.

33.  In the Court of Appeal, Yuen JA said that the words “any Employee” could not “be read in a vacuum”.  That no doubt is true, but there was no context to require any qualification of the words used.  She treated the condition that the insured should give notice of a change in the number of employees as justifying a construction limiting the cover to those in the Schedule.  It seems to me, however, that it points in the opposite direction. If the parties did not contemplate that employees other than those listed in the Schedule might come within the scope of the cover, it is hard to see why the insurer needed to know about them. Mr Anthony Ismail, for AXA, suggested that the insurer might, after due consideration, agree to add them to the Schedule.  But that, on his construction of the Policy, would have involved an amendment.  It would not have affected the risk on the Policy as it stood.

34.  Kwan JA stressed the fact that the Policy contained elaborate provisions about the insurer being informed about the precise numbers and salaries of employees and said that these did not suggest “that the insurer would have attached no or little significance to the particulars supplied as regards the employees”.  That is undeniable, but the reason why the insurer was anxious to receive full particulars of all employees engaged by the company, whether mentioned in the Schedule or newly engaged, was that they would all be covered by the Policy.  If they were not, the insurer would have no interest in who else was employed.  Failure to provide such information would have been a breach of the insured’s obligations under the Policy and entitled AXA, as against Nuovo, to repudiate it.  But it did not give AXA a defence to the claim by the employee under section 43(1).

35.  For these reasons and those of Cheung JA in the Court of Appeal, with which I substantially agree, I consider that it was AXA and not the Fund which was liable to Mr Lo.  I would allow the appeal.

36.  The orders for costs in the Courts below must be set aside, with the exception of the Sanderson order in favour of the plaintiff at first instance.  There will be substituted orders nisi (i) that AXA pay the costs of the Board in this Court and the Courts below; and (ii) that there be no order made in respect of the plaintiff's costs in this Court and in the Court of Appeal.  His participation at those stages of the proceedings was unnecessary.  The parties are at liberty, if so advised, to lodge written submissions as to costs within 14 days of the date of handing down of this judgment, in default of which, the orders nisi will stand as orders absolute without further direction.