13 December 2007

RE LI SAU YING HCMP002384/2007

S’s words:-

First of all, the Debtor suggested that the staff of the Unrepresented Litigants Resource Centre told her the wrong number of days to commence an appeal procedure against bankruptcy order. I believe that in our profession there are lot of people who do not know the differnce of the usual 28 days from the 21 days as prescribed by Section 98(2) of the Bankruptcy Ordinance. Thus, it is also not surprised that the Centre might wrongly inform the Debtor the same.

Fortunately, it should be expected that such a difference will be resolved after the passing of the Bankruptcy (Amendment ) Ordinance in future. In any event, it is still the existing bankruptcy law that an appeal should be made within 21 days and further, if extension of time is required, an application before the bankruptcy judge is required (but not to make the application to the Court of Appeal).

It thus explains that up to this moment, bankruptcy law is still not an easy subject at all with something different from the usual civil rules.

--- quote from judgment ---

Date of reasons for decision: 11 December 2007

On 31 October 2007, Deputy Judge L. Chan made a bankruptcy order against Li Sau Ying.

Appeals from orders given in bankruptcy proceedings are governed by s.98(2) of the Bankruptcy Ordinance Cap. 6. This section provides that every order of the court shall be subject to appeal to the Court of Appeal, and the appeal should be commenced within 21 days from the time when the decision appealed against is pronounced or made. In the context of this case, the appeal should have been commenced within 21 days of 31 October 2007, i.e. by 21 November 2007.

Miss Li says on affirmation that she had been informed by the staff of the Unrepresented Litigants Resource Centre that the appeal period was 28 days, and therefore after preparing her Notice of Appeal on 22 November 2007, she sought to file it on 27 November 2007. Of course by then the appeal was out of time.

I pause to note that this was not the first case where litigants (even those with legal representation) had missed the deadline for appealing an order in bankruptcy proceedings because of the shorter time limit in s.98(2), as in ordinary civil proceedings the time limit is 28 days from the sealing of the order (see e.g. re Li Tat-kong [2003] 2 HKC 72, Prudential Assurance Co. Ltd v Edward Ho [2003] 3 HKLRD L4, re Lau Kwok Fai, Bernard HCMP2224/2005). Happily this anomaly has now been addressed by way of the Bankruptcy (Amendment) Ordinance, which however does not apply to the present case.

Coming back to this case, on 27 November 2007 Miss Li had to make an application to extend time for appealing. This was done by way of a summons which was filed in Miscellaneous Proceedings. The summons was fixed to be heard by a single judge of the Court of Appeal.

The Petitioner opposed Miss Li’s application. In Mr Wong’s written submissions on behalf of the Petitioner he argued that the application for extension of time to appeal was governed by r.204 of the Bankruptcy Rules which provides:

“ The court may, under special circumstances and for good cause shown, extend or abridge the time appointed by these rules or fixed by any order of the court for doing any act or taking any proceeding”.

In written submissions, the Official Receiver submitted that Bankruptcy Rule 204 did not apply to appeals because the time limit for appeals was fixed by s.98(2) of the Bankruptcy Ordinance, not by the Bankruptcy Rules. Mr Wong rightly conceded this at the hearing.

The Official Receiver pointed out in his written submissions that applications to appeal an order made in bankruptcy proceedings are governed by s.100(4) of the Bankruptcy Ordinance, which provides:

“ Where by this Ordinance or by general rules the time for doing any act or thing is limited, the court may extend the time either before or after the expiration thereof upon such terms, if any, as the court may think fit to impose”.

This however led to another problem – under s.2 of the Bankruptcy Ordinance,

“ ‘court’ means the Court of First Instance sitting in its bankruptcy jurisdiction”.

Mr Wong also referred to paras.59/4/12 and 59/4/14 of Hong Kong Civil Procedure 2008. However the Official Receiver argued (rightly in my view) that Order 1 rule 2(2) of the High Court Rules specifically provided that the High Court Rules did not have effect to bankruptcy provisions, and s.99 of the Bankruptcy Ordinance applied High Court Rules only where they were not inconsistent with the provisions of the Bankruptcy Ordinance. As s.100(4) clearly stipulated that it was for the Court of First Instance sitting in its bankruptcy jurisdiction to consider applications thereunder, that would override any High Court Rules permitting the Court of Appeal to deal with applications for extension of time in ordinary civil actions.

In the circumstances, on Miss Li giving an undertaking that she will within 7 days make an application to the Court of First Instance sitting in its bankruptcy jurisdiction to extend time for appealing, I made no order on her application in these proceedings.

TSE PARC KI a minor by her father and next friend, TSE WAH YUEN JOSEPH v. ATLANTIC TEAM LTD t/a LE BEAUMONT LANGUAGE CENTRE DCPI001981/2006

S’s words:-
The Minor was injured when she was having a Spanish program. The liability on the part of the school is obvious. Without legal representatives’ assistance, the Defendant chose to defend the issue of liability that caused a referral to the police for an investigation of employing an unemployable.

I believe the Defendant is/was not insured (or properly insured) at the material time, or otherwise, the insurer would take over the conduct of the proceedings and the tragdey abovementioned would not occur.

For the issue of quantum, the amount of PSLA awarded in the sum of HK$40,000.00 is another good amount that in future we can adopt to rely on for minor injuries. Certainly, it is expected the father of the Minor (as a father) would not regard the injuries as minor.

Who is the father of the Minor? That is another matter I believe the Honourable Court has not taken into account.

--- quote from judgment ---

Date of Handing down Judgment : 11th December 2007

Parc-ki was 2 and 1/2 years old when she was enrolled in a 12-lesson Spanish program offered by the Defendant at its language centre in Admiralty.

How did the accident happen?
Parc-ki’s parents were not present when the accident happened. According to Parc-ki’s mother, she was told what had happened when she returned to the Defendant’s language centre after the accident. Tony and Emily (who were both staff at the Defendant’s language centre) told her that Parc-ki had wanted to use the toilet during the lesson and left the classroom. As Parc-ki was trying to put on her shoes at the doorway, Sonia slammed the classroom door. Parc-ki’s right middle finger was caught by the door and was crushed.

The Defendant put forward a very different version of events in its Amended Defence. The Defendant says that the Spanish program had already finished when the accident happened. Parc-ki had left the classroom and was no longer under the care of Sonia. As Parc-ki’s parents were late to receive Parc-ki, she had to put on the shoes herself. When she lifted up one leg to put on her shoe, she lost balance and stretched her hands backward towards the doorway. Shortly before that, Sonia had just given a gentle push to close the classroom door. Parc-ki’s right middle finger was therefore caught by the closing door and was crushed.

Two different versions of events have been put forward by the parties. I find the Defendant’s version unreliable for the above reasons. On the other hand, the Plaintiff’s version is not based on direct evidence but on hearsay evidence. Be that as it may, there is nothing for me to cast doubt on the testimony of Parc-ki’s mother as to what she was told. It is only reasonable for the Defendant’s staff to report to her when she attended the Defendant’s language centre after the accident. Tony and Emily were clearly on duty at the time. Indeed, Tony admits having spoken to Parc-ki’s mother after the accident although he now claims to have forgotten what was said to her. The Defendant has also put much emphasis on the impossibility of Sonia “slamming” the door. In my view, it matters not whether the door was slammed shut or closed gently. This is a figure of speech and a matter of perception. There is really no dispute that Parc-ki’s finger was indeed caught by the door that was closed by Sonia. What matters is whether Sonia had done what was required of her as Parc-ki’s teacher in the circumstances of this case to ensure the safety of Parc-ki. This will be discussed further below.

In the premises, I find the Plaintiff’s version of what happened more believable.

Whether the Defendant is liable for the personal injuries suffered by Parc-ki?
There is a positive duty on schoolteachers to protect their students’ well-being. The duty of a schoolteacher has been said to be to take such care of his pupils as a reasonably careful father would take of the children of the family. It is a schoolteacher’s duty to take all reasonable and proper steps, bearing in mind the known propensities of children, to prevent any of his pupils from suffering injury, whether from inanimate objects, from the actions of their fellow pupils, or from a combination of both. What things are likely to injure pupils is a question of degree, depending on the nature of the thing and the age of the pupils. A schoolteacher is also under a duty to exercise supervision over pupils whilst they are on the school premises. The amount of supervision required depends on the age of the pupils and what they are doing at the material time, but no teacher could reasonably be expected to keep a close watch on each child every minute of the day, unless there is some reason to be alerted or put on inquiry. Given the level of responsibility, the standard of care is high, although not expressed as any more than should be reasonably expected in the circumstances. See Charlesworth & Percy on Negligence, 11th edition (2006), §§8-179 to 8-193.

The Defendant operated the language centre and Sonia was assigned by the Defendant to run that program. In my view, the positive duty put on schoolteachers to protect their students’ well-being applies equally to Sonia. On the day in question, Sonia closed the door knowing full well that Parc-ki was still trying to put on her shoes at the doorway. Sonia was negligent in failing to ensure that Parc-ki had put on her shoes or was otherwise well clear of the doorway before closing the door. Whether the door was slammed shut or closed gently is beside the point. The Defendant as the provider of the Spanish program relied on Sonia to run the program in order to earn the course fees. In my view, the tortious act of Sonia was so closely connected with her employment with the Defendant that it would be fair and just to hold the Defendant vicariously liable.

In the premises, I find the Defendant liable for the personal injuries suffered by Parc-ki.

What is the amount of compensation payable to Plaintiff?
After the accident, Parc-ki was taken to the Accident and Emergency Department of Queen Mary Hospital. Physical examination by Dr. Lo Wing-kee showed avulsed nail and bleeding from the nail bed in the right middle finger. X-ray showed a chip fracture in the distal phalanx.

According to Parc-ki’s mother, it took 8 months for Parc-ki to get over from being conscious of the injury. Thankfully, there is nothing to suggest that Parc-ki has suffered any permanent disability.

The Plaintiff’s counsel fairly concedes the claim for “future loss of earnings / loss of opportunity” and the claim for “loss of earning capacity / handicap in the labour market”. In any event, I do not think such an award is justified given the fact that Parc-ki has not suffered any disability that would affect her future earning capacity.

As to the claim for damages for PSLA, the Plaintiff’s counsel (who did not settle the Revised Statement of Damages) relies on Singh Jagdeep v. VSC Engineering Products Company Limited, DCPI 391/2005 and Yu Pau Yau v. Co-Ray Design & Construction Limited, DCPI 864/2006 and now suggests a figure of $50,000 to $100,000.

In Jagdeep, the plaintiff’s left hand was hit by a broken disc from an electric disc cutter machine. He suffered abrasion over the left dorsal part of his hand. Fingers’ movement and sensation were otherwise normal and there was no fracture. Sick leave was granted for a total of 16 days. The learned judge found that the plaintiff had suffered a ½ cm abrasion with minimal pain and suffering and awarded $30,000 for PSLA in June 2005. I find Parc-ki’s injury slightly more serious than that suffered by the plaintiff in Jagdeep.

Taking everything into consideration, I consider that an award of $40,000 for PSLA is justified.

As the facts of this case reveal that the Defendant might have committed a criminal offence in employing Sonia who was not legally employable in Hong Kong at the time, the case is referred to the Department of Justice through the Registrar for investigation.