JERRY CHEN v. WHIRLPOOL (HONG KONG) LIMITED FACV 23/2006

S’s words:-

The Final Court of Appeal was asked to decide an appeal of the Applicant that in my personal view was without merit at all. The Applicant was surprisingly supported with legal aid in this appeal to Court of Final Appeal. Why I make such a comment? Let us look at the decision of Court of Appeal refusing leave be given to the Appellant for leave to appeal:-

“1) We are not satisfied that this case involves matters of great general or public importance. First our decision is based on the unique facts of the case. The relevant legal principles are well established. Second while we accept many Hong Kong employers are asking their employees to work in the Mainland, we are not satisfied that the specific arrangement in this case is also a widespread practice which called for a determination by the Court of Final Appeal.

2) We are also not satisfied that this case comes within the ‘or otherwise limb’. It has not been shown that the situation is exceptional.”

I feel doubt whether we do require any law that extends the duty of an employer to such.

Why legal aid was granted? Would it be the situation that the Applicant had used all/most of the compensation he did receive in his Employees’ Compensation Claim in the litigations in High Court and Court of Appeal?

Anyway, the public fund is now required to pay for the costs of the Respondent. What a pity!

--- quote from judgment ---

Date of Judgment : 26 October 2007

The appellant was seriously injured in a traffic accident in Beijing on 13 October 1998. It happened when the car in which he was travelling as a passenger was negligently driven onto its incorrect side of the road and collided with an oncoming motor vehicle. He was in the employ of the respondent, designated as commercial director. The respondent is a Hong Kong company in the Whirlpool group. This group is centred in the United States, but is also present and active in many other parts of the world. As the appellant’s contract of employment with the respondent expressly provided, he was “based in Shanghai … with responsibilities to” a Mainland company headquartered in Shanghai. This company is named Whirlpool Narcissus (Shanghai) Co. Ltd (“WNS”). It served as the corporate vehicle for a joint venture in the Mainland between the Whirlpool group and a Mainland company named Shanghai Narcissus Electric Appliances Co. Ltd.

Employers’ duty of care/contractual liability

Whatever else employers’ common law duty of care and contractual liability despite delegation of performance involves in a case like the present, the appellant cannot succeed under either of these two bases of liability or both of them combined unless he can persuade us to reverse the concurrent findings of the courts below that Mr Zheng was a reasonably competent driver. After giving the matter anxious consideration, I have come to the conclusion that there are no circumstances that would justify us in the exceptional course of disturbing those concurrent findings. It is true that there is no evidence as to when Mr Zheng joined WNS, how long he had driven executives on his behalf or how often he did so. But the main thrust of the appellant’s case in the courts below in regard to the sort of driver required was that a professional one was required. That was the focus below, most significantly at the trial. Otherwise there might have been more evidence about Mr Zheng’s activities as a driver.

Vicarious liability

The two problems which the appellant faces on the foregoing argument as to vicarious liability are these. First of all, it cannot be said that there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial. Secondly, entertaining that point would certainly involve entertaining a point which was not taken in the courts below but which, if accepted, would constitute a major development in the law.

For those reasons, I do not think that the appellant can in the circumstances succeed on vicarious liability. I say nothing on how the law of vicarious liability may develop in future.

The appellant has recovered employees’ compensation. Hopefully he will find some solace in that. I can find no basis on which to enable him to recover more. In the result, I would dismiss the appeal with costs and make an order for legal aid taxation of the appellant’s own costs. It is common ground that costs should be dealt with that way if, as it has turned out, the appeal is dismissed.