KHAN MIRAWAS v. CHAN KAM MOON t/a SEI LUEN TRANSPORTATION CO

DCEC130/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 130 OF 2006

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REASONS FOR DECISION

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Introduction

1.  This is an application for employees’ compensation by the Applicant for personal injuries as a result of an accident on 6^th February 2004 arising out of and in the course of his employment with the Respondent. The Applicant also appeals against the assessment of loss of earning capacity in the Form 9 dated 30^th May 2006.

2.  It is not disputed that the Applicant was a general worker/delivery worker employed by the Respondent at the material time.

3.  The Applicant claims that the accident occurred at the premises of Maxims Fast Food Restaurant in Chai Wan when he slipped and fell whilst making delivery of goods to the premises. The Applicant fractured the base of the 5^th metatarsal bone of the right foot and suffered torn anterior talo-fibular ligament of the right ankle.

4.  According to the witness statement of the Respondent’s witness 梁兆偉 (“Mr Leung”), who has been the Applicant’s co-worker for a number of years at the Respondent’s company, at about 10-11am on a day in/about June/July 2004, Mr Leung saw the Applicant sitting in the driver’s seat of a white light goods vehicle at Kowloon City Road, Tokwawan (“2004 Meeting”). The Respondent was alone and the light goods vehicle was full of paper cartons. Mr Leung chatted with the Applicant for about a minute. The Applicant asked him for street directions. When Mr Leung asked the Applicant about his injuries and the reason why he was there, the Applicant did not answer him. After chatting, the Applicant drove away.

5.  In the Applicant’s initial witness statement dealing with his present condition, he states that if he were driving a van and using the accelerator, when he pushed the accelerator forward, it hurt as the pain was always there. When he eased off the accelerator pedal, ie reducing the speed of the vehicle, then he experienced more pain. The intensity of the pain increased in his ankle. If the Applicant drove a light goods vehicle/hiace van for a number of hours, then he had a lot of pain in his right ankle/foot.

6.  The Applicant further states he cannot go back to work in his pre-accident job which requires a lot of walking and lifting of heavy items/boxes of goods etc. He opines that he can work as a security guard or do other light jobs that do not require constant walking or lifting.

7.  According to the expert report of the Applicant’s orthopaedic expert Dr Patrick Wong dated 23^rd June 2006, the Applicant has not returned to work so far although his sick leave expired in December 2005.

Application for leave to serve interrogatories

8.  The Respondent applies by way of summons dated 9^th September 2006 for leave to serve interrogatories on the Applicant within 7 days and for the Applicant to answer the same by affirmation/affidavit within 28 days. The summons was returnable before me on 14^th September 2006.

9.  The proposed interrogatories all concern the alleged 2004 Meeting. Just prior to the hearing before me on 14^th September 1996, the Applicant served the supplemental witness statement of the Applicant and a further witness statement of Mr Asif Khan both dated 13^th September 2006 on the Respondent’s solicitors. Copies were provided to the court at the hearing.

10.  In the Applicant’s supplemental witness statement, he has the following to say in relation to driving a hiace vehicle :

“37.   I did drive my brother’s van a hiace van on a number of occasions. The van is registered in my brother’s name, i.e. Khan Shuhab. I used it sometimes when I wanted to go to the market to buy goods and sometimes I used it when I wanted to visit some relations for my wife and children would accompany me

38. I do not recall being in the van and speaking with Leung Siu Wai, a delivery worker of the Respondent.

39. I normally used to go to a market in To Ka Wan as I used to live in that area for numerous years, prior to being allocated a government flat and I am aware the vegetables and meat there is cheaper than other markets. Sometimes I used to buy a live chicken and slaughter the chicken in accordance with Muslim custom in the market. I also used to buy vegetables there.

40. I did not receive any reward for driving my brother’s vehicle.”

11.  In light of the above, Mr Claypole, solicitor for the Respondent, informs the court that the Respondent only requests leave to serve the following two interrogatories :

(a) In about June/July 2004 did the Applicant drive a white light goods vehicle in the vicinity of Kowloon City Road, Tokwawan, Hong Kong? (“1st Interrogatory”)

(b) If the answer to (a) is in the affirmative, what was the registration number of the light goods vehicle? (“2^nd Interrogatory”)

12.  The applicable legal principles are set out in paragraphs 18 to 20 of my judgment in Ascoba Company Limited v Safeco Express Services (HK) Limited DCCJ6161/2003 (unreported, 3^rd August 2005). I do not propose to repeat them here. I have reminded myself the overriding principle is that the interrogatories in question must be necessary either for disposing fairly of the cause or matter or for saving costs. Fishing, oppressive, prolix or imprecise interrogatories should not be allowed. Ultimately, the matter is for the court’s discretion to determine what order is “just”. In the exercise of such discretion the court has to take into account all the circumstances of the case.

13.  Plainly, one of the issues in the present case is :

(a) whether the Applicant is capable of undertaking (i) lighter manual jobs with gradual return to his pre-accident work (as suggested by the Respondent’s orthopaedic expert Dr Lam Kwong Chin) or (ii) work as a driver (as suggested by Dr Lam Kwong Chin in his supplemental expert report); or

(b) whether he is only fit to perform sedentary light to moderate manual work (as suggested by Dr Patrick Wong).

14.  There is also the related issue of whether the Applicant was capable of or actually did any work during sick leave. All of the above issues are pertinent to the question of quantum of employees’ compensation if liability is established. Given there is a possibility that the Applicant may urge the court to adopt the Hong Kong Paper Mills formula in relation to such quantum, Mr Claypole suggests that the issue of post-accident work/earnings takes on greater significance.

15.  After hearing the parties’ submissions and careful consideration, I conclude that the 1^st and 2^nd Interrogatories are relevant and appropriate. Interrogatories can go to support the applicant’s case or to impeach the opponent’s case. Here, the 1^st and 2^nd Interrogatories are focused on a particular issue and the answers thereto may enable the Respondent pursue further enquiries into case. If the answer to the 1^st Interrogatory is in the negative so that it becomes unnecessary to answer the 2^nd Interrogatory, the Applicant’s position will become clear and the subject of post-accident work (if any) will have to be left for cross-examination at the trial. But if the answer to the 1^st Interrogatory is in the affirmative leading to an answer to the 2^nd Interrogatory, such answers may lead the Respondent to further enquires as to whether the Applicant was engaged in any “work” at the material time (ie during sick leave). Mr Claypole argues this will be particularly cogent if the colour and registration number of the white light goods vehicle being the subject of the 1^st Interrogatory are different from those of the hiace van of the Applicant’s brother.

16.  Mr Carey, solicitor for the Applicant, suggests that the 1^st and 2^nd Interrogatories deal with matters that can be elicited during cross-examination of the Applicant without causing prejudice to the requesting party, ie the Respondent. However, the essential purpose of interrogatories is to seek discovery of relevant facts and I respectfully adopt the view of Mortimer JA in Hui Sui Hop v Ng Chiu Construction Co. & anor CACV108/1994 (unreported, 16^th November 1994) that “it is part of the developing procedure of the civil court where the parties are increasing expected to conduct their litigation “cards on the table”.” To say that the matters in the 1^st and 2^nd Interrogatories should be relegated for canvassing in cross-examination when they are relevant and may lead to further enquiries goes against the creed for modern civil litigation. Further, the Respondent’s interest may be prejudiced if, depending on the answer given by the Applicant under cross-examination, he is deprived of the opportunity to pursue enquiries. It may also lead to additional costs if the trial has to be interrupted for such enquiries to be pursued.

17.  Mr Claypole criticises the Applicant’s initial and supplemental witness statements for being not forthcoming. He points out that even in his supplemental witness statement, the Applicant (who must by then be well aware of the Respondent’s present application) still has not given information as to the colour and registration of his brother’s hiace van. Mr Claypole argues that if the Applicant only drove the hiace van to visit relatives with his family (which is irrelevant to the alleged 2004 Meeting since Mr Leung saw the Applicant by himself) or go to the Tokwawan market to buy food, query is raised as to why he would ask Mr Leung for street directions.

18.  Whilst Mr Claypole’s above concerns may well be legitimate areas for cross-examination at the trial, it is not for this court at this stage to question witness’ credibility. But the Applicant’s witness statements are not very clear in relation to his driving of light goods vehicle in the post-accident period.  In the Applicant’s initial witness statement, when he refers to driving a van or a light goods vehicle or a hiace vehicle, he qualifies such act with the word “if”. Thus it is uncertain whether he actually drove such vehicles in the post-accident period or not. But the specific descriptions of discomfort associated with driving such vehicles tend to suggest the Applicant had actual experience in driving such vehicles and in the case of a light goods vehicle/hiace van “for a number of hours” at a time. The Applicant’s supplemental witness statement only refers to driving a hiace van for visiting relatives or going to the market. In my view, it is proper for the Respondent to administer interrogatories on the specific issue of the alleged 2004 Meeting, which will help the case forward and are necessary for the fair disposal of these proceedings.

19.  Having considered all the circumstances, I have therefore granted an order in terms of the first paragraph of the Respondent’s summons in respect of the 1^st and 2^nd Interrogatories.

Costs

20.  The Respondent’s summons asks for costs of the application to be in the cause. Mr Claypole submits that given the Applicant’s opposition of the application, it is reasonable for the Respondent to seek costs. Mr Carey suggests that costs should be in the cause.

21.  The background to the application starts with the Friday listing hearing before me on 28^th July 2006. At that hearing I gave directions inter alia for the parties to file and serve witness statements as to fact within 42 days before the date hereof and for adjourning the listing hearing for the Application to 8^th September 2006.  Unfortunately, it was not realised at the hearing that 8^th September 2006 was the very deadline for filing and serving witness statements.

22.  The Applicant’s witness statement was filed on 9^th August 2003. The Respondent’s and Mr Leung’s witness statements were only finalised on 7^th September 2006 and filed on the following day, ie the day of the adjourned listing hearing. In the circumstances, the parties had little time to consider the witness statements upon exchange and I did not have the opportunity to consider the witness statements filed by the Respondent at all. Even so, I must hasten to add that the Respondent complied with my directions and filed the witness statements within time.

23.  At the hearing on 8^th September 2006, the parties sensibly agreed to attempt resolution of the Respondent’s request for further discovery without court directions. Mr Carey raised the need for supplemental witness statements to deal with the matter of wages in answer to various assertions by the Respondent in his witness statement. Mr Claypole flagged the Respondent’s intention to seek leave to administer interrogatories given the absence of any reference to the alleged 2004 Meeting in the Applicant’s witness statement. It was on this basis that question of leave to serve interrogatories was adjourned to enable the Respondent to issue the relevant summons and for such summons to be argued before me on 14^th September 2006.

24.  After the hearing on 8^th September 2006, the Applicant has in less than a week’s time prepared his supplemental witness statement and a further witness statement of Mr Asif Khan. They were served on the Respondent’s solicitors in the evening of 13^th September 2006, the very evening before the hearing on 14^th September 2006.

25.  Mr Claypole argues that the Respondent could not have applied for leave to serve interrogatories any earlier because the Respondent has not yet received the Applicant’s witness statement. Had the alleged 2004 Meeting been dealt with in the Applicant’s witness statement, there would have been no basis for the Respondent to make the application. In short, any such application before exchange of witness statements would have been premature.

26.  On the other hand, Mr Carey submits that the Applicant was ready, willing and able to exchange witness statements at an early stage and the matter was delayed only because the Respondent had not finalised the witness statements. The Respondent’s intention to seek interrogatories was only made and the draft interrogatories were only handed to the court at the hearing on 8^th September 2006, giving Mr Carey very little time to properly consider the matter, so an adjournment was inevitable. Mr Carey points out that since the hearing 8^th September 2006, the Applicant has responded with alacrity by way of his supplemental witness statement.

27.  Having considered both parties’ submissions, I ordered that costs of the Respondent’s summons and costs of the hearing of 8^th September 2006 (which were reserved) be costs in the cause.

28.  I consider that both parties have acted with promptitude. Although Mr Carey criticises the Respondent for delaying exchange of witness statements, no blame can legitimately be laid at the Respondent’s door. Under my order of 8^th September 2006, the Respondent has 42 days to do so and there was compliance of the order.

29.  I also consider that the Respondent acted with proper restraint in deferring any application for leave to serve interrogatories until after exchange of witness statements. To make the application before exchange may invite criticism from the Applicant as well as from the court that it is premature. Had the alleged 2004 Meeting been canvassed in the Applicant’s initial witness statement, such early application only adds to costs unnecessarily. Mr Carey suggests that the Respondent could have alerted the Applicant in respect of his intention to administer interrogatories in relation to the alleged 2004 Meeting so that the Applicant might have been able to deal with this in his initial witness statement. However, it is no business of the Respondent to speculate, predict or dictate what his opponent should say in his witness statement.

30.  I also note that the Respondent only abandoned the other interrogatories in the draft attached to his summons upon sight of the Applicant’s supplemental witness statement which was received very shortly before the hearing. But such lateness does not equate to any delay. On the contrary, the Applicant’s supplemental witness statement has been swiftly prepared after the Respondent’s indication of his intention to serve interrogatories. But given the fact the Applicant’s supplemental witness statement was finalised and served in the evening of 13^th September 2006, the hearing on 14^th September 2006 could not have been avoided in any event.

31.  In my view, both parties have acted reasonably. In respect of the 1^st and 2^nd Interrogatories, although I have granted leave to serve such interrogatories, it is a matter of exercise of discretion and in the particular context of the present case I do not consider it inappropriate for the Applicant to urge the court to bear in mind certain considerations in the exercise of discretion. Taking into account all the circumstances including the background to this matter, the most appropriate order is costs in the course.

32.  At the hearing I also granted the following directions :

(a) leave to the Applicant to file and serve the Applicant’s supplemental witness statement and the witness statement of Mr Asif Khan both dated 13^th September 2006 within 7 days;

(b) leave to the Respondent to file and serve supplemental or further witness statement(s) in reply  within 21 days;

(c) leave to the Respondent to file and serve the supplemental report of Dr Lam Kwong Chin dated 12^th September 2006 within 7 days;

(d) the listing hearing of the Application be adjourned to 3:00pm on Friday, 17^th November 2006 before the EC judge in chambers (open to the public).

33.  At the hearing on 14^th September 2006, Mr Claypole says he has just been served with further discovery from the Applicant and he needs time to consider the same. Given that the Respondent will file and serve supplemental/further witness statement(s) in reply, there may well be further issues that require discovery. Both parties sensibly agree that the issue of further or specific discovery be deferred until the adjourned hearing on 17^th November 2006 and in the meantime they will attempt resolution of these matters via the legal representatives.

34.  Costs in relation to the further directions on the conduct of the Application set out in paragraph 32 above should be in the cause. In light of the conclusion in paragraph 27 above, the result is that costs of the hearing on 14^th September 2006 be in the cause.

35.  Mr Carey did not seek legal aid taxation of the Applicant’s own costs at the hearing before me. However, since the Applicant is legally aided, I see no reason why there should not be legal aid taxation. I therefore order that the Applicant’s own costs in respect of (a) the Respondent’s summons for leave to serve interrogatories and (b) the hearings on 8^th and 14^th September 2006 be taxed in accordance with Legal Aid Regulations.