Case Commentary

Personal Injuries — Court of Appeal dismisses Employees Compensation Assistance Fund Board’s appeal on meaning of “damage sustained within the jurisdiction” under private international law

This is a case with important implications for accidents occurring outside Hong Kong in which Hong Kong residents are injured. 

Fong Chak Kwan v Ascentic Ltd

Reference: (CACV358/2020); [2021] HKCA 1138
Court:        Magistrates’ Court
Before:       Hon Cheung and Yuen JJA in Court
Date of Decision:   5 August 2021
Appearance:   Paul Harris SC leading Anson Wong Yu Yat, instructed by Kenneth Lam, Solicitors assigned by the Director of Legal Aid, and Mr Jason Kung (not assigned by Director of Legal Aid), instructed by Kenneth Lam, Solicitors, for the Plaintiff

This is a case with important implications for accidents occurring outside Hong Kong in which Hong Kong residents are injured.

The Plaintiff is a Hong Kong permanent resident who suffered serious personal injuries during the course of his employment in Mainland China. He sought the Court’s leave to serve a concurrent writ of summons on a company in the USA, one of his employers.

The Court of First Instance granted leave based on three gateways in Order 11, rule 1 of the Rules of the High Court, Cap. 4A, including Gateway (F) which requires that “the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction”. The Court found that the Plaintiff sustained damage within Hong Kong. In so finding, Marlene Ng J, the Judge in charge of the Personal Injuries List of the High Court, held that “damage” includes “indirect” damage suffered as a result of a tort.

Dismissing the appeal by the Employees Compensation Assistance Fund Board, the Court of Appeal ruled upheld the learned Judge’s interpretation of the word “damage” under the tort gateway.

“Damage sustained within the jurisdiction” is held to mean any significant damage, subject only to the doctrine of “forum conveniens”. The Court of Appeal rejected the narrower definition advocated by the Employees Compensation Assistance Fund Board.

Paul Harris SC

Paul was called to the Hong Kong Bar in 1993 and the Bar of England and Wales in 1976. He took silk in 2006. Paul is a public law and human rights specialist who also holds considerable experience in all other areas of civil litigation. He practises in Hong Kong and in London, where he is a member of Doughty Street Chambers.  

Anson Wong Yu Yat

Anson was called to the Bar in 2015 and serves as a Member of the Committee on Intellectual Property of the Hong Kong Bar Association. Anson has developed a broad civil practice with an emphasis on public law (such as Leung Kwok Hung v Secretary for Justice (2020) 23 HKCFAR 518 (CFA); [2020] 2 HKLRD 771 (CA); [2020] 1 HKLRD 1 (CFI), which challenged the constitutionality of the Emergency Regulations Ordinance and the “anti-mask” law), intellectual property litigations and competition law matters.

Recently, Anson acted as junior counsel in two applications before the Appeal Committee and successfully obtained leave to appeal to the Court of Final Appeal on both occasions: FAMV 152/2020 (heard on 12 November 2020, on insolvency matters) and FAMV 151/2020 (heard on 14 December 2020, on land law and equity).

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.