YEUNG MOON TONG v. OCEAN ASIA（HONG KONG）LTD AND ANOTHER

DCEC 1113/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE No. 1113 OF 2013

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REASONS FOR DECISION

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Introduction

1.  This is an application of the respondents for leave to withdraw the Notice of Sanctioned Payment filed herein on 17 September 2013 (“the 1^st Notice”) and the Notice of Further Sanctioned Payment filed herein on 29 October 2013 (“the 2^nd Notice”) and for an order that the two respective sums of HK$110,000 and HK$13,000 paid into court be paid out to the respondents’ solicitors forthwith by summons dated 22 November 2013.

2.  By a notice dated 22 November 2013 (“the Applicant’s Notice”), the applicant gave notice of his acceptance of the sanctioned payment set out in the 2^nd Notice. Order 22 r.10(2), Rules of the District Court provides that if there is subsisting an application to withdraw a sanctioned payment, as in this case, the sanctioned payment may not be accepted unless the court grants leave to accept it.

3.  At the conclusion of the hearing, the application was dismissed with written reasons to be handed down which I now do.

The Application

4.  There is no debate about the general principles applicable to this application. The court has a complete discretion, to be exercised judicially, whether to allow a payment into court to be paid out back to the defendant. The test to be applied is “whether there is a sufficient change of circumstances seems to money was paid in to make it just that the defendant should have an opportunity of withdrawing or reducing his payment”: Hong Kong Civil Procedure 2014 Vol.1 §22/1/19 at p.496.

5.  In the present case, the applicant alleges that he was injured in an accident on 3 September 2012 (“the Accident”) in his Application dated 18 June 2013.  

6.  The 2nd respondent lodged a Form 2 dated 27 September 2012 with the Labour Department reporting that the Accident took place on 3 September 2012 wherein the applicant was injured. It is noteworthy that the Accident was not witnessed by anyone other than the applicant himself.

7.  The applicant had his assessment by the Employees’ Compensation (Ordinary Assessment) Board on 23 May 2013. As a result, a Form 7 was issued for the applicant on 6 June 2013. In the Form 7, the injury of the applicant was stated to be “back injury resulting in lower back pain, weakness and stiffness”.  Loss of earning capacity was assessed at 2%.

8.  The applicant filed and served his Application and Notice to Insurer on 20 June 2013. The solicitors of the respondents filed their Notice to Act on 26 August 2013.

9.  It was only after the 1st Notice was filed that the applicant filed his List of Documents on 11 October 2013 (“1^st LOD”). The respondents say that the 1^st LOD did not contain any medical notes, records and/or the government medical report(s) on the applicant’s alleged injury.

10.  After the 2^nd Notice, on 11 November 2013, the applicant served on the respondents’ solicitors his Supplemental List of Document (“2^nd LOD”). By the said list, it discloses the medical report dated 6 October 2013 prepared by Dr Lee of the Accident & Emergency Department of Yan Chai Hospital and the medical report dated 18 July 2013 by Dr Tse of the Department of General Practice of Yan Chai Hospital. On 13 November 2013, the solicitors of the applicant as requested by the solicitors of the respondents faxed to the latter the documents included in the 2^nd LOD.

11.  It was then known to the respondents’ solicitors that according to Dr Lee’s report, the applicant was referred to Yan Chai Hospital by one Dr Christina Cheung for lower back pain and the applicant in fact had complained about back pain for one month. Further, according to Dr Tse’s report, the applicant first attended the General Practice Clinic of Yan Chai Hospital on 8 February 2013 complaining about low back pain and he also gave a history of sprain back injury on 2 September 2012 (and not 3 September 2012).

12.  In the supporting affidavit of the handling solicitor acting for the applicant, it is complained that Dr Tse’s report should have been disclosed in the 1st LOD. It is further alleged that the applicant had all along concealed the fact from the 1st respondent that he had suffered from back pain for a month prior to 4 September 2012 and he sprained his back on 2 September 2012. It is contended that the respondents would not have made the 1^st sanctioned payment on 17 September 2013 if they had known the facts concealed by the applicant.

13.  In his affidavit, it is further contended that Dr Lee’s report and Dr Tse’s report (collectively “the Two Reports”) showed that the applicant did not mention the Accident to the treating doctors. The solicitors of the respondents then came to the firm conclusion that the applicant did not meet with the Accident on 3 September 2012 and hence they find it necessary to make the present application.

14.  The respondents accept that they obtained from Asia Insurance Co. Ltd (“Asia Insurance”), the insurer of the respondents, copies of the applicant’s medical records of the Accident & Emergency Department of Yan Chai Hospital (collectively “the Records”) on 5 November 2013. Asia Insurance received the Records on 26 June 2013. There were in fact four separate records respectively dated 4 September 2012, 17 September 2012, 21 September 2012 and 26 September 2012.  Apparently Dr Lee prepared the one dated 4 September 2012.

15.  In his written skeleton submissions, Mr Wong, counsel for the respondents, submitted that there was a discovery of further evidence which showed the untruthfulness of the matters set out in the Application and the medical evidence disclosed recently in the Two Reports showed that the Accident might not have taken place as alleged or at all. Mr Wong submitted that the recent disclosure of the Two Reports has brought a change of circumstances after the filing of the Notices.

16.  Ms Hui appearing for the applicant quite rightly submitted that the respondents chose to make sanctioned payment without first demanding discovery by the applicant by way of a list of documents and now cannot be heard to complain about their ignorance of any matters contained in such documents.

17.  Mr Wong submitted that the respondents were justified to give the 1^st Notice even before the 1^st LOD on the ground that the Application was verified by a statement of truth signed by the applicant. He submitted that the respondents should therefore accept that the Accident did take place as alleged in the Application. Mr Wong emphasized that there was no independent witness of the Accident and the respondents could only believe the applicant.

18.  I cannot accept this submission. If the respondents were so naïve even with legal advice, they should simply bear the consequences. Given the lack of independent witness, all the more the respondents should carry out an investigation of the allegations of the applicant before taking any steps in these proceedings.

19.  There are three points made out of the Two Reports. First, Mr Wong submitted that in both reports, the date of the start of the applicant’s back injury was stated to be 2 September 2012, which was a Sunday. The applicant did not have to work on Sundays. This raises some concern since the date of the Accident was stated to be 3 September 2012 in the Application.  Mr Wong fairly accepted that it could well be a mere typographical mistake or a communication error. Yet, the respondents should be given a chance to raise queries with the applicant about this.   

20.  In the Record dated 21 September 2012, it was already stated that the chief complaint was back pain since 2 September. There is nothing new about the date stated in the Two Reports. In any event I cannot see how such a minor discrepancy can materially change the complexion of the case. This point has no merit at all.

21.  The second point is that the respondents found out that the applicant had not mentioned about any injury during consultation when the applicant was first attended by Dr Lee on 4 September 2012, according to Dr Lee’s report. Mr Wong submitted that in a vast majority of employees’ compensation cases, the lack of mention of injury in the first instance could be fatal to such applications. Hence, Mr Wong submitted that there is now a wholly different complexion on the case.

22.  The contemporaneous document of the first attendance by Dr Lee on 4September 2012 is the Record of the same date. Though not all the words in the Record are legible to me, it is quite apparent that there was no mention about an injury. I cannot accept that Dr Lee’s report conveyed a new message.

23.  Mr Wong warned this court not to assume that the insurer of the respondents were able to understand the full contents of the Record. He submitted that the respondents could not be reasonably assumed to know that the applicant did not mention about the injury during his consultation with Dr Lee until the disclosure of Dr Lee’s Report.

24.  This submission is objectionable. First, there is simply no evidence that Asia Insurance did not understand the full contents of the Records. There is no reason why I should start to doubt their understanding of the Records. In any event, this is irrelevant.

25.  The respondents and their legal advisors should have obtained the Records before filing the Notices and considered the same thoroughly. In case of any doubt, they should have carried out further investigation before taking action. Invoking the mechanism of sanctioned payments in civil proceedings is an important step and it normally calls for serious prior deliberation. It is hard to believe that the respondents have taken such a cavalier approach and they must take the consequences.

26.  In any event, I do not accept that the fact that Dr Lee said the applicant did not mention about the injury amounts to conclusive evidence of the fabrication of the Accident as so contended by the respondents. As agreed by Mr Wong, there could be plausible explanations even the applicant really did not make such a mention.

27.  Lastly, in the supporting affidavits, the respondents take a further point. They argue that the Two Reports for the first time suggest that the applicant has a pre-existing low back pain a month prior to the Accident. The respondents contend that but for this concealment and the 1^st sanctioned payment would not have been made.

28.  When invited to make submissions on this contention, Mr Wong submitted that he disagreed with those instructing him in that regard and accepted that there was no merit in such a contention. I need say no more.

Conclusion and Orders

29.  For the foregoing reasons, I have come to the conclusion that this application is singularly unmeritorious. I dismissed the application according with costs to the applicant, summarily assessed at HK$12,000.

30.  The respondents made a request that certain protection be afforded to them while they consider whether to appeal against my dismissal of their summons. With the agreement of the parties, I order that the applicant shall not accept the sanctioned payment until the expiry of 14 days from the date of the handing down of the reasons for my decision.