Chan Lai-ha v. Park Lane Towers Ltd.

DCEC268/1996
DCEC617/1996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 268 OF 1996

(Heard in conjunction with DCEC 617 OF 1996)

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R U L I N G

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1. These two matters are applications for employee's compensation involving the same applicant and respondent.

2. In both matters, the applicant had been employed by the respondent as a kitchen hand in the Full Lam Moon Restaurant at North Point. In 268/96, the applicant says she sustained a back injury in the course of lifting crockery from the floor in order that it might be washed. This was on 14 May 1994. In 617/96 she claims compensation for a similar accident, this time on 18 August 1995.

3. In both matters, the respondents apply for an order striking out the application for want of prosecution and/or for abuse of process.

4. I have heard the argument on both matters at the same time and, as a matter of convenience, this judgment stands in both applications, although I must give each application my separate consideration and make separate orders in respect of each, having regard to the facts of the individual application.

5. I propose to start with the chronology, which has features common to both cases. With some additions, I gratefully take the chronology from the affidavit of the respondents' solicitor, Miss Carrie Wong, at pages 35 and 36 of bundle B(1). It is as follows:

1 December 1993, applicant started her employment with the respondents.

14 May 1994, first accident.

14 May 1994, form 2 relating to that accident.

14 May 1994 to 1 June 1996, applicant hospitalised.

15 May 1994 to 11 August 1995, applicant in receipt of periodical payments.

18 August 1995, second accident.

18 August 1995 to 16 September 1995, applicant hospitalised.

19 August 1995 to 13 August 1996, applicant paid periodical payments by the respondent.

10 May 1996, application filed by applicant for first accident.

13 May 1996, respondent ceased paying periodical payments to the applicant in respect of the first accident.

4 June 1996, Chinese letter from the Labour Department to the respondent, enclosing a sample form 2 in duplicate for the second accident.

12 June 1996, first callover hearing in Case No. 268 of 96 (first accident).

24 June 1996, letter from the Labour Department to the respondent.

17 July 1996, second callover in Case No. 268 of 96 with the attendance of an Amoy interpreter to assist the applicant.

27 July 1996, defence statement of the respondent in Case No. 268 of 96 intended to stand as its answer.

25 September 1996, letter from the respondent to the Labour Department.

17 October 1996, application filed by the applicant in respect of the second accident, Case No. 617 of 96.

31 October 1996, defence statement of the respondent in Case 617 of 96, second accident.

5 November 1996, notice to act filed by Stephenson Wong and Company on behalf of the respondent in respect of the second accident, 617 of 96.

7 November 1996, answer by respondent in Case No. 617 of 96.

20 November 1996, order made by Judge Kwan in relation to the second accident.

10 December 1996, list of earnings of the applicant provided by the respondent in respect of the second accident.

12 December 1996, list of documents filed by the respondent in respect of the second accident.

15 April 1997, notice of change of solicitors filed by Messrs Deacons to act on behalf of the respondent in respect of the second accident.

3 November 1997, form 7, giving a percentage of zero, in respect of 268 of 96.

3 November 1997, form 7 in Case 617 of 96, 7 per cent, which percentage was to stand in respect of both accidents.

5 June 1998 until 8 August 1998, applicant in hospital for an operation which took place on 8 June 1998.

17 October 2001, notice to act filed by Messrs Susanna Wong & Company on behalf of the applicant in respect of 268 of 96 and 617 of 96.

26 October 2001, notice of intention to proceed filed.

29 November 2001, respondent's summons to strike out the applications in respect of 268 of 96 and 617 of 96.

6. Having regard to that chronology, particularly the dates of the two accidents and the four-year hiatus from November 1997 until 17 October 2001, when the applicant went to her solicitors, it is not at all surprising that this application is now being made by the respondents. Nevertheless, the circumstances of each matter require careful attention, to which I will return in a moment.

7. Before I do so, I should refer to the legal principles which need to be applied whenever an application of this sort is made to the court:

"An action may be struck out where the court is satisfied that there has been inordinate and inexcusable delay on the part of the applicant and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action, or is such as is likely to cause or to have caused serious prejudice to the respondent either as between himself and the applicant or (which does not arise in this matter) between him and a third party."

See Birkett v James [1978] AC 297 per Lord Diplock 318F to G. The definition of "delay" has been explained by May LJ in Lev v Fagin Court of Appeal in England unreported transcript 15 March 1988 as follows:

"In my opinion, the relevant delay does not only mean the passage of time in which nothing is done on either side. I accept that those periods are usually more important and can usually be more precisely identified, but there can be delay even though things are happening, albeit in a desultory fashion."

In Benoit v London Borough of Hackney, unreported Court of Appeal transcript 11 February 1991, Stuart-Smith LJ dealt with a matter in this way:

"Where a plaintiff delays starting proceedings until the last possible moment allowed under the Limitation Act and then delays for a further period as permitted by the rules before serving the proceedings, it is incumbent upon that party to proceed with the case with all due diligence. It is not sufficient simply to look at the periods of time when nothing appears to be happening as between the plaintiff and the defendant. It is necessary for the court to consider various periods of delay and decide whether it is satisfied that there was inordinate and inexcusable delay and, in so doing, it is necessary to bear in mind that even in the periods when some action is being taken, it may be so desultory and inadequate, compared with what is required in the circumstances, that the court should say that it amounts to inordinate and inexcusable delay. It is clear therefore that an applicant can use up the whole of the limitation period before he issues his proceedings. That is his right. Nevertheless, if he chooses to do so, he is then required to press on with the matter with due diligence."

See Lord Diplock in Birkett v James supra, where he said as follows, at page 322G:

"A late start makes it more incumbent upon the plaintiff to proceed with all due speed, and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued."

On the same aspect, Lord Denning in Biss v Lambeth Southwark and Lewisham Health Authority [1978] 1 WLR 382 at 390H observed that:

"It is his duty to proceed with it with expedition after the issue of the writ. He must comply with all the rules of the court and do everything that is reasonable to bring the case on quickly for trial. Even a short delay after the writ may, in many circumstances, be regarded as inordinate and inexcusable, and give a basis for an application to dismiss for want of prosecution."

In the case of Trill v Sacher [1993] 1 WLR 1398, Neill LJ at 1398C observed that:

"Inordinate delay cannot be precisely defined. What is or is not inordinate delay must depend upon the facts of each particular case (Allen v Sir Alfred McAlpine Limited). It is clear, however, (a) that for delay to be inordinate, it must exceed, probably by a substantial margin, the time prescribed by the rules of court for the taking of steps in the action; and (b) the delay in issuing the writ cannot be classified as inordinate provided the writ is issued within the relevant period of limitation."

There is also then an additional requirement to delay being inordinate, which is that it should be inexcusable. It would appear that once the delay has been shown to be inordinate, it will prima facie be inexcusable. In Allen v Sir Alfred McAlpine and Sons Limited [1968] 2 QB 229, Salmon LJ at 268F to G held that:

"In order for an application to succeed, the default must show that this delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable. See also Trill v Sacher per Neill LJ 1398D. Delay which is inordinate is, prima facie, inexcusable. Once delay is shown to be inordinate, an evidential burden is placed on the plaintiff (or the applicant, as in this case) to offer a credible excuse for that delay."

8. Mr Charles Wong, who appears for the respondent, has quite rightly, in my judgment, not sought to argue that the delay here has not been inordinate. When one looks at the timetable, it is plain to the most dispassionate observer that the delay has clearly been inordinate, and I so find.

9. Moving from that, Mr Wong has sought to contend that, notwithstanding its inordinate length, this delay by the applicant can be excused. He has drawn attention to a number of matters; firstly, that as a lay person, the applicant was dependent on the Labour Department for assistance. That, of course, is right, and they seem to me to have given her sound advice and assistance. Her applications (both of them) were put in timeously, although close to the two-year limitation period, and they arranged for her to obtain periodical payments from the respondents and for the Ordinary Assessment Board to assess her permanent loss of earning capacity, which it did on 3 November 1997. So I do not really think where she had obtained competent assistance from the Labour Department, that she can really rely on this matter as a factor in her favour.

10. Secondly, she says that she did not have legal assistance, which of course is also true, but I cannot really understand why she did not make an earlier application for Legal Aid. In this regard, it is helpful to remember what the Court of Appeal had to say on this subject in Hymer v MTRC [2000] HKLRD 589:

"Delays caused by impecuniosity or lack of finance were not as such excusable. Even though the court might afford an impecunious plaintiff a certain indulgence whilst he was trying to raise funds or otherwise progress a case, there was likely to come a time when his action had to be struck out. However, delays incurred in the process of getting legal aid, such as where complications were encountered or processing took a particularly long time, might, in appropriate circumstances, constitute a valid excuse for delay. A diligent application for legal aid might well be regarded as part of the plaintiff's proper prosecution of the action preventing the time spent in that process from being inexcusable."

11. Next she raises her family circumstances: six children and a husband in bad health to care for. One is bound to have sympathy for this, but that sympathy needs to be judged against the background of the overall delay. The result is that this reason cannot now be allowed to hold sway. The delay is simply too long for that to be effective.

12. She also draws attention to her need to attend physiotherapy sessions over many months, and of course she had an operation in 1998 which kept her in hospital for a number of weeks and on sick leave for even longer. I have taken this into account, but this too cannot excuse total inaction for four years.

13. Mr Wong has also complained that the respondents are at fault. They made difficulties for her when she had tried to get documents, particularly the statement of Hung Mei-chun. See the respondent's solicitor's letter of December 1996, page 206, bundle B(2). I consider that those solicitors (not the respondent's present solicitors) should have been more co-operative and not stood on ceremony with an applicant in person just because the appropriate witness exchange orders had not been made.

14. That was unfortunate, but even applicants in person should realise that it is open to them to do something about this. She could have gone back to the Labour Department, who were assisting her at the time. That is the least that she could have done; and in saying this, I am conscious of the fact that she is, as she describes herself, an "ordinary citizen". I have no doubt that had she gone to the Labour Department, they would have advised her to apply for Legal Aid or to come to court and get an appropriate order made. I am afraid that, as a result, nothing turns on this complaint by Mr Wong.

15. Neither does the fact that in case 268/96, no formal answer was put in by the respondents. Before they were represented by solicitors, the respondents put in a letter dated 25 July 1996 (page 8, bundle A) to stand as their answer, and since then their solicitors have not applied to put in a formal pleading in its place. That letter clearly joined issue and the lack of a formal pleaded answer cannot now be used to excuse this delay.

16. I am therefore unable to find anything in either case 268 or 617 that can provide an excuse for the delay.

17. This then brings me to, where the battle lines are really drawn on, the question of prejudice caused to the respondents by this unexcused and inordinately long delay in both of these matters. Mr Ismail has submitted that there simply cannot be a fair trial on either matter after delays of this sort. This is all about faded memories, including that of the applicant herself. He has drawn attention to case 617/96 in relation to the applicant's statement to the court which appears starting at page 224 in bundle B(2), and her apparent confusion about the circumstances of her second injury, the involvement of her fellow worker, Miss Hung, and to whom she did or did not give her hospital admission certificate.

18. Mr Ismail asks, rhetorically, "How can she now be expected to give a cogent and reliable account of matters going back to 1994 and 1995 at a trial that will, with luck, take place at the earliest at the end of this year? The respondents should not be exposed to these sort of risks which have arisen out of the applicant's failure to get on with these applications with any sort of reasonable despatch."

19. He has also drawn attention to the difficulties faced by his medical expert, Dr Shroff, who has now disposed of his notes of the applicant's examination by him on 11 December 1995. He does, of course, have a detailed report, no doubt made from those notes, to refer to, which goes a long way to ameliorate any prejudice to the way that he can give evidence. Nevertheless, I have no doubt that he would have much preferred to have had the comfort of his original notes to also refer to in the witness-box.

20. This is what will happen when litigants delay. Dr Shroff has, perfectly reasonably after five or six years, destroyed his original notes. Mr Wong responds by drawing attention to the fact that these are not factually complicated cases. The only witness to this matter is likely to be the applicant herself, and possibly Miss Hung might have something to say. These were uncomplicated lifting injuries not requiring great feats of recollection. The real dispute may arise on the medical evidence, of which there is much contemporaneous material relating the medical findings at the time, and, of course, the applicant's treatment.

21. Mr Wong submits that Mr Ismail, by taking advantage of the time scale, has really overstated the prejudice which is more imagined or presumed than real. This is a medical case; it is not an eye-witness case. The medical issues are very well documented. That response by Mr Wong is a powerful way of putting the applicant's case.

22. Has prejudice of the required degree been made out? In this regard, Mr Ismail has referred to the case of Nissei Sangyo America Limited v Philip Lawrence Troy CA 35 of 1995, where the Court of Appeal dismissed a claim by "looking at the matter in the round" and, having regard to the history of the particular litigation (there had been much delay), considered that to allow the claim to continue would amount to an abuse of the court's process.

23. But I do not get much assistance from that case. The facts were far removed from this type of matter, and the decision was one clearly based on the particular facts of the case.

24. In these two applications, I must look and see whether, as a result of this cumulative delay, the respondents have now suffered serious evidential prejudice that is likely to render the trial unfair. That prejudice need not be great, but it must be more than minimal.

25. Whilst the quality of Mr Wong's submissions have given me pause for thought, I am convinced that both of these matters should be struck out. The applicant herself cannot now be expected to give anything approaching a reliable account of her alleged misfortunes at work in 1994 and in 1995. It should be remembered that her accounts of these incidents are not accepted by the respondents, and after eight years in one case and seven years in the other, I am not disposed to think that she will be able to enlighten the court very much on how she was injured.

26. Equally, Miss Hung for the respondent will not be able to assist very much after all of these years. The medical evidence, although heavily documented, will come from witnesses who can do no more than refer to what they wrote at the time, and the respondent's own expert, whilst having a full report of his examination six and a half years ago, is somewhat hampered by not having his original notes.

27. All of this has been brought about by the applicant having been guilty of long delay with no proper excuse for it. In my judgment, the required degree of prejudice has been made out, and so, viewed separately, both applications should stand dismissed, with costs and certificate for counsel.