SRI, LESTARI v. FUNG SIU KIT RICKY

DCEC 525/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 525 OF 2010

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IN THE MATTER OF AN APPLICATION BETWEEN:

DECISION

Application

1.  This is an application by the Applicant for interim payment.

Preliminary

2.  At the outset of the hearing, I and the parties spent some time discussing and clarifying the nature of the application before this Court.  Then, for some time thereafter, the hearing was conducted as trial for final hearing under section 10 of the Employee Compensation Ordinance (Cap. 282) (the “ECO”) in open court.  However, as the matter progressed, it became clear that it should be an interlocutory application under order 29 of the Rules of the District Court (the “RDC”) in relation to section 10 of ECO only.  I then converted the hearings into chamber hearings.

3.  For the avoidance of doubt, I sum up the procedural matters in the followings:-

(a) Leave is given to the Applicant to delete the reference of section 9 of the ECO from the margin note of the summons.

(b) The amended summons should be filed on or before 13 January 2011.

(c) Service of the amended summons is dispensed with.

Background

4.  On 18 May 2010, the Applicant commenced the present proceedings.  At the material times, she was a domestic helper employed by the Respondent.  She said that, on 21 January 2010, while cleaning windows of the kitchen, she fell from a 8-feet wooden stool onto the ground.  Her left arm, left hip and left knee were injured.  She claimed compensation under sections 9, 10, 10A, including also s. 10(5) of the ECO.

5.  The Respondent opposed the claim.  He agreed that the Applicant was employed by him as a domestic helper but, notice of the termination was given to her on 19 January 2010.  All other allegations, including that the happening of the injury and/or, even if it did happen, the fact that the same happened in the course of the employment, were not admitted.

6.  Parties have been preparing their case in the usual way.  In the meantime, on 15 October 2010, the Applicant took out the present application. Usual directions for filing of evidence were given on 4 November 2010.  They were complied with.  Parties appeared before me on 6 January 2011 to argue the matter substantively.  Miss Chung acted for the Applicant, and Mr. Eric Curlewis represented the Respondent.  After hearing from them, I reserved my decision to be handed down.  I now do so.

Decision

7.  Upon consideration of the evidence authorities and submissions before me, I have decided to refuse the application:-

(a)  The Respondent has not admitted liability. The Applicant has also not obtained interlocutory judgment with damages to be assessed. The Court may order an interim payment if he is satisfied that, if the action proceeded to trial, the Applicant would obtain judgment for substantial damages against the Respondent (o. 29 r. 11(1)(c) of the RDC).  In determining such question, the standard of proof in civil case is to be applied. The test prescribed is whether the court is satisfied that the Applicant will succeed in her claim against the Respondent (paragraph 29/11/1 HKCP 2011, at p. 659).

(b)  Miss Chung diligently led me through her client’s evidence, including the medical reports and sick leave certificates.  She also commented on the weakness of the Respondent’s case.  She told me that the only issue was: whether the Applicant was injured at work?

(c)   While not disputing on the issue identified, Mr. Curlewis did argue on merits of the parties’ case.

(d)  After thought, I am afraid that the affidavit and evidence before me relating to the issue identified cannot be resolved without the assistance of live evidence and cross-examination to be held at trial, as in both cases of Oasir Mehmood v. Hung Lai Kwan trading under the name or style of Raymond Company (DCEC 234/2003, 3 September 2003, DC, unreported [2003] HKCU 1118) and Chu Wai Ling v. Hoyin Construction Co., Ltd. & Another (DCEC 834/2004, 5 August 2005, DC, unreported, [2005] HKCU 144).  Among others, there are simply quite some areas that need to be explored:-

(i)  Apart from the Applicant, there is no eye witness of the happening of the accident.

(ii)  She did not go to any nearby clinic or hospital immediately.  While staying in the flat of the Respondent at Ma On Shan, she went to see a friend who took her to a private doctor at To Kwa Wan.

(iii)  She was diagnosed as left arm, hip and knee injuries.  7 days’ sick leave was recommended.  Was any test or examination, like X-ray, taken?

(iv)  The Respondent’s wife demanded the Applicant to return home that night. She declined and thereafter did not return to the Respondent’s premises anymore.  Why?

(v)  The Respondent continued to attend the private doctor at an interval of 7 days, for a further 17 times until 19 May 2010.  On each of these occasions, 7 days’ sick leave was recommended again and again.  However, there was no neurological deficit.  X-rays did not show any fracture.  On what basis were these sick leave granted?

(vi)  While still attending the private doctor, on 15 February 2010, the Applicant attended the A&E Department of Yan Choi hospital:-

“3. On examination the following condition were found:

Conscious state : alert General state : good

Blood pressure : 108/58 mmHg Pulse : 102/min

Temperature : 36.5°C Respiration rate : 20/min

Other physical findings in detail

· She could walk free handed.

· Physical examination revealed nowound nor swelling over left shoulder. There was mild subacromial tenderness over left shoulder. Active range of movement was full.

· On examination of left knee, there was no wound nor swelling over left knee. No effusion was noted. The active range of movement was full.

Investigation

· X-ray left shoulder and left knee showed no fracture.

4. Dologesic, Triact and Pepcidine were prescribed.

5.    She was treated and discharged.  She was referred to Orthopaedic Department of Yan Chai Hospital for further management.”

(report dated 12 April 2010)

It appears that she was not suffering seriously.  What exactly was her condition?

(vii)    Further, on 1 March 2010, she also attended the A&E Department of Queen Elizabeth Hospital.

“……

She gave a history of slipped and fell on one month ago.

The major complaint was left shoulder, left knee and left hip pain after the fall.

The general condition was Good.

Medical examination revealed the followings:

- tenderness over left shoulder, left knee, left hip

X-ray of left shoulder and left knee were unremarkable. X-ray of left hip was not taken due to pregnancy test positive.

The clinical diagnosis was joint pain.

She was give analgesics and discharged.

……”

(Report dated 15 April 2010)

Again, what was her condition? When did she get the pregnancy?  Is there any implication to the present proceedings?

(viii)  The chain of sick leave certificates broke from 30 May 2010 to 22 July 2010.  The Applicant explained that she went to Indonesia due to her mother’s illness.  What was her position over these some 2 months?

Costs

8.  I see no reason to depart from the usual rule that costs follow the event.  There will be an order nisi that the Applicant shall pay costs of the application, including costs of hearing on 4 November 2010 and 6 January 2011, to be taxed, if not agreed.  Finally, the Applicant’s own costs are taxed in accordance with the Legal Aid Regulations.