PAK SAI MING v. J.V. FITNESS LTD

DCEC 494/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 494 OF 2014

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REASONS FOR RULING

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Introduction

1. This is about two summonses.  One was taken out by the respondent[1] for leave to file additional evidence after hearing but before judgment.  The other was taken out by the applicant[2] to strike out the respondent’s summons.

2. On 30 March 2016, after hearing submissions from both sides, I dismissed the respondent’s application with costs to the Applicant.  As regards the Applicant’s application, his counsel Mr Clough agreed that it was but the other side of the same coin of the respondent’s application and therefore I made no order as to costs.  I reserved the reasons for my ruling.  I now give the reasons as follows.

Factual background

3. The case is about the claim by the applicant against the respondent for employee’s compensation.  Shortly stated, the respondent operates a chain of fitness centres in Hong Kong and the applicant was employed by the respondent as Fitness Manager at its fitness centre in Central.  On 25 May 2013, whilst at work the applicant had an accident of slip and fall on a flight of staircase and sustained injuries as a result. 

4. The applicant was assessed by the Employee’s Compensation (Ordinary Assessment) Board (“the Assessment Board”) as having suffered a 5% loss of earning capacity[3]. The Assessment Board also certified the applicant’s sick leaves for a total of 627 days[4]. Apart from the said certified sick leave periods, the applicant also claims other sick leaves granted by medical practitioners which he says qualified as temporary incapacity.

5. The judgment on liability has already been entered by consent[5]. The case came before this court for assessment of compensation pursuant to ss 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap 282 as well as determination of the respondent’s appeal under s 18 against the Certificate of Assessment.[6]

6. The assessment was heard between 23 and 26 November 2015.  The applicant gave evidence and was cross-examined at length by Mr Wong, counsel for the respondent.  One of the areas upon which he was cross-examined was his travel movements during sick leave.  The defence case that was put to him was that:-

(i)  if he was fit enough to travel, he would also be fit enough to resume work as Fitness Manager, the duty of which post was allegedly mainly managerial rather than physical; and

(ii)  some of the applicant’s trips related to Wifi Egg (the business of his girl friend) and that he was assisting in that business during his sick leave period.

7. The applicant gave evidence that he had been on pleasure trips with his girl friend and family on 4 to 5 occasions after the accident.  He denied that any of the said trips were business in nature.  Mr Wong had asked the applicant about his passport.  However, the applicant said that his old passport which was used for the trips had already expired and that the new passport he had with him was issued in 2015.  In the event, the applicant was not asked to produce his old passport in court.

The additional evidence

8. The additional evidence which the respondent now seeks to adduce is the applicant’s immigration movement record covering the period between 25 May 2013 and 26 May 2015[7]. According to the respondent, the movement record (bearing the date of 12 November 2015) was first disclosed by the applicant on 23 February 2016 in his witness statement of the parallel common law claim.  The record shows that the applicant had during his sick leave travelled on 12 occasions covering a total of 48 days.  This is to contrast with the applicant’s evidence in court that he had travelled with his girl friend and family on 4 or 5 occasions after the accident.

9. The respondent alleges that the applicant had failed his duty of continuing disclosure by failing to disclose the movement record before the hearing of the assessment, in spite of the fact that the respondent had requested for the same since 21 July 2015 but to not avail.  References were made to Vernon v Bosley (No 2)[8] and Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors[9].

10. The respondent also relies on Secretary of State for Trade and Industry v Paulin[10] wherethe English Court of Appeal said,

“The principle applicable to an application to admit fresh evidence after hearing but before judgment is handed down is no more restrictive than would be applied by the Court of Appeal on appeal from a judge.”

It is submitted that in an application like the present one, it is relevant for the court to consider whether the evidence was available at the original trial, whether if admitted it would probably have an important influence on the result of the case and whether it was apparently credible.

11. Mr Wong contends that the aforesaid criteria are met in the present case.  It is submitted that the respondent could not have the movement record earlier because the applicant had not been operative; that the movement record would be relevant to the issues at the trial in that:-

(i)  if the applicant was fit enough to travel, he would also be fit enough to work;

(ii)  the frequency of the travels shows that they were business in nature, indicating that the applicant was helping his girl friend in her business; and

(iii)   the record has a bearing on the applicant’s credibility as it shows that he had not been truthful in his evidence.

Lastly, it is submitted that there could not be any question about the credibility of the movement record which was obtained from the Immigration Department.

12. It is also Mr Wong’s contention that the findings of this court about the appropriateness of the applicant’s length of sick leave would invoke the operation of the doctrine of “issue estoppel”, so that the respondent would be bound by those findings in the common law personal injury claim.  Reliance is placed on Mohammad Amjad v John M Pickavant & Co[11]. This provides another reason for the court to exercise its discretion in favour of the respondent to allow the admission of the additional evidence.

13. I note that it is Mr Wong’s position that, if the court were to accede to the respondent’s application to adduce additional evidence, then the applicant should not be allowed to give further evidence to explain his movement record, as the applicant had already had full chance to explain his travel history during cross-examination and that the case has already been closed.

Consideration

14. Like Poon J (as he then was) in Keen Lloyd Energy Limited (formerly known as Keen Lloyd Investments Ltd and further formerly known as Keen Lloyd Ltd) v Bank of China (Hong Kong) Ltd (formerly known as Sin Hua Bank Ltd, Hong Kong Branch)[12], for the purpose of this application, I do not think that I need to decide or come to a definite view as to whether Paulin’s case should be followed in Hong Kong.  This is because in my view, the applicant movement record on its own could not have impacted on the outcome of the assessment of damages.  My reasons are as follows:-

(a)  as conceded by Mr Wong during his submission, the relevant part of the cross-examination of the applicant is not “water-tight”.  His evidence was not that he had only 4 or 5 trips during his sick leave period or that his physical condition did not allow him to travel more.  The applicant’s evidence does not preclude the possibility that he had in fact travelled on more than 4 to 5 occasions during his sick leave;

(b)  it is difficult to see how one can equate the ability to travel with the ability to work as a Fitness Manager; and

(c)  the movement record does not show the purpose of the travels and it is difficult to see how one can infer that they were business trips simply from their frequency.

On the other hand, it would be unfair to the applicant if his movement record were admitted being at the same time allowing him an opportunity to explain its contents.  In my view, the admission of the movement record as its own would tend to distort the evidence rather than facilitating this court in resolving the factual disputes.

15. As regards Mr Wong’s submission on “issue estoppel”, as pointed out by Master Marlene Ng in Pickavant’s case, the doctrine is always case-sensitive.  It is not confined to the final legal conclusion in the judgment but concluded all matters which were necessary to decide and which were actually decided as the groundwork of the decision itself.  As pointed out by My Clough, in the assessment of damages under Cap 282, the applicant has the benefit of the deeming provision about temporary incapacity as contained in s10(1) of the Ordinance.  However, the same provision is not available to the applicant in the parallel common law claim so that when it comes to the trial of the latter, the applicant will have to prove the appropriateness of the sick leave by adducing evidence.  As such, I do not think that the finding of this court on the appropriateness of the applicant’s sick leave period would bind the parties in the common law proceedings.

16. Furthermore, even assuming Paulin’s case is applicable, I do not think that it is appropriate for this court to exercise its discretion in favour of the respondent in the present case.  As stated in the applicant’s affirmation filed in opposition to the respondent’s application, the respondent had requested for his movement record as early as on 21 July 2015, without stating the reasons for their request.  Despite the initial refusal of the applicant’s solicitors to accede to the request, the respondent had never sought a specific discovery.  No satisfactory explanation has been given by the respondent as to why they had failed to do so.  If there had been a specific discovery, the respondent would probably have the movement record by the time the assessment was heard in late November 2015.

17. Lastly, I agree with Mr Clough that the present application of the respondent, if acceded to, would recreate procedural unfairness to the applicant.  The following chronology, which is taken from the applicant’s affirmation, is relevant:-

(a)    The case was first set down in running list on 20 May 2015 and was listed to commence on 6 August 2015 with two days reserved.

(b)  On 29 June 2015, the applicant disclosed his employment with Wifi Egg which was to commence on 1 July 2015. 

(c)  In the respondent’s opening filed on 5 August 2015, the case that was put forward by them was simply that (1) the applicant was capable of resuming full employment during his sick leave period, whether with the respondent or other parties; and (2) even if, which is denied, the applicant was not capable of resuming full employment with the respondent during his sick leave period, the applicant was capable of resuming the managerial and administrative aspects of his duties with the respondent.  Absent from the opening was any allegations that the applicant had assisted in the Wifi Egg business during his sick leave or that any of his trips had been business in nature.  This was so, even though the respondent had already got an Investigation Report (dated 9 April 2015) by a private detective who had seen the applicant going to the office Wifi Egg on different occasions.

(d)    On 6 August 2015, nothing was raised by the respondent about the applicant’s alleged involvement with Wife Egg and the alleged business trips.  As such, the applicant had not been forewarned about the allegations.   The case was adjourned by consent simply for the parties to make further discovery in relation to a settlement deal made between the applicant and the respondent in the Labour Tribunal^[13] and also for the parties to have further negotiation concerning the applicant’s claims against the respondent. 

(e)  On 16 November 2015, the first day of the resumed hearing, that the respondent made two applications: the first one was for them to file of further statements concerning certain alleged malpractices of the applicant during his employment; and the second one was for proposed interrogatories relating to the applicant’s movement records.  The applicant had not been prepared to meet the allegations raised in those applications.  The respondent’s two applications could not be acceded to without causing further delay in the matter.  Bearing in mind the objectives of the Civil Justice Reform, this court dismissed the two applications on the grounds of irrelevance and lateness.

In my view, the present application would be tantamount to a “backdoor” way for the respondent to introduce evidence relating to the application for interrogatories which this court has already refused.

Conclusion

18. Based on the above, I refuse the respondent’s present application.

Costs

19. I have already made an order that the applicant should have his costs forthwith in relation to the respondent’s application, with counsel certificate, to be taxed if not agreed.

20. As rightly conceded by Mr Clough, the applicant’s summons for striking out is not strictly necessary.  I made no order as to costs as regards that application.