KAMALJIT KAUR v. FAIRWOOD FAST FOOD LTD

DCEC 916/2023

[2024] HKDC 1052

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 916 OF 2023

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JUDGMENT

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Introduction

1.  Before me is the Applicant’s summons filed on 8 June 2023 for interim payments in the total sum of HK$64,404.76, covering the sick leave period from 12 December 2022 to 31 May 2023 as stated in the Affirmation of Kamaljit-Kaur affirmed on 6 June 2023, against the Respondent pursuant to O 29 r 10 of the Rules of the District Court (“RDC”) and section 10 of the Employees’ Compensation Ordinance, Cap 282 (“Ordinance”) (“Summons”).

2.  Mr Richard Clement of Massie & Clement made submissions on behalf of the Applicant.  Mr Ashok Sakhrani made submissions on behalf of the Respondent, as instructed by Munros.

Applicant’s Claim

3.  The Applicant served her EC Application on 25 April 2023 (“Application”). The Respondent filed its Answer to the EC Application on 5 September 2023 (“Answer”).

4.  At all material times, the Applicant was employed by the Respondent within the meaning of the Ordinance.  The Applicant was employed as a dish washer at the time of the accident.  On 12 December 2022, the Applicant was in the course of employment with the Respondent and was assigned to work at a restaurant at 1^st Floor (Portion), King’s House, No 971 King’s Road, Quarry Bay, Hong Kong.

5.  The Applicant alleges she suffered an injury by accident arising out of and in the course of employment.

6.  It is alleged by the Applicant that at about 4:15 pm, the Applicant was carrying a metal container which contains hot boiling water with her both hands and walking towards the dish washing area in the kitchen.  As she was a few steps away where the intended hot boiling water is to be used, she slipped and fell backwards landing on her back and hit her left elbow on the ground.  As a result she sustained injury to her left elbow and back.

7.  The Applicant was taken by ambulance to the Accident and Emergency Department “A&E” of Pamela Youde Nethersole Eastern Hospital on 12 December 2022.  After medical examination she was transferred to the orthopaedic department for further management and observation.  She was discharged home on 14 December 2022 with sick leave.

8.  Due to persistent back pain she continued to attend the A&E Department of Pamela Youde Nethersole Eastern Hospital for treatment and was referred for physiotherapy treatment.  On 8 March 2023, the Applicant was seen by the orthopaedic department of Pamela Youde Nethersole Eastern Hospital.

9.  The Applicant claims under the Ordinance for the following relief:

(a)  Compensation under Sections 9, 10, 10(5) and 10A of the Ordinance;

(b)  Interest; and

(c)  Costs.

10.  In the Respondent’s Answer, the Respondent admits that the Applicant was a dish washer employed by the Respondent and the parties were in an employer-employee relationship.  However, the accident causing the injury is denied.  It is denied that the Applicant is entitled to any reliefs under the Ordinance.

Applicant’s Summons

11.  Under O 29 r 11(c) of the RDC, if on the hearing of an application under r 10 in an action for damages, the Court is satisfied (c) that, if the action proceeded to trial, the applicant would obtain judgment for substantial damages against the respondent or, where there are 2 or more respondents, against any of them, the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the applicant after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely.

12.  The object of an interim payment is generally to alleviate hardship during the period between commencement of the action and trial (Yeung Sek Sung v Cheung For Ming [1991] 1 HKLR 1; 厦門新景地集團有限公司 v Eton Properties Ltd [2022] HKCFI 2650, [29]).

13.  If the applicant seeks to satisfy the court that the applicant would obtain judgment for substantial damages against the respondent, the court must be satisfied that if the claim were to go to trial then, on the material before the court at the time of the application for interim payment, the applicant would succeed in his/her claim, and would obtain a substantial amount of damages (Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd [1987] 1 WLR 480; [1987] 2 All ER 181 (CA); Gibbons v Wall, The Times, 24 February 1988 (CA); GNC Group v Revenue and Customs Commissioners [2012] 3 All ER 111; Silver Universe Investments Ltd v China Times Securities Ltd (CAMP 187/2020, [2021] HKCA 105).

14.  §29/11/1 of Hong Kong Civil Procedure 2024 provides the requirements for an interim payment application to succeed.  The court must be satisfied on the balance of probabilities; the court need not be satisfied beyond reasonable doubt.  It is insufficient, however, for the court to be satisfied that the plaintiff is likely to succeed (British & Commonwealth Holdings Plc v Quadrex Holdings Inc [1989] QB 842; [1989] 3 All ER 492 (CA); Andrews v Schooling [1991] 1 WLR 783; [1991] 3 All ER 723 (CA)); Shenzhen Envirotec Electronics Co Ltd v Cellplus (HK) Ltd [2005] 4 HKLRD 217; Guo Jing Jing v Art Master Investment Ltd (HCA 1008/2009, [2009] HKEC 2009); Asjid Hussain v Opus Engineering Ltd [2018] HKDC 626).

15.  The court must be satisfied that the respondent has no arguable defence or that there are sufficient doubts regarding the genuineness of the defence, that the court would not grant the respondent unconditional leave to defend in a summary judgment application under O 14 (Commonwealth Holdings Plc v Quadrex Holdings Inc [1989] 3 All ER 492; Hollywood Palace Co Ltd v Trans-Global Hong Kong Investment Ltd [2011] 1 HKLRD 833).

16.  The test is essentially the same as that for granting conditional leave to defend, namely whether the defence and/or counterclaim raised can be said to be shadowy (Asparouh Ianev Dimitrov v Dominic Tak Ming Lau (HCA 1079/2015, [2017] HKEC 2291), [7], citing Hollywood Palace Co Ltd v Trans-Global Hong Kong Investment Ltd [2011] 1 HKLRD 833).

17.  Section 10(1) of the Ordinance provides for compensation in case of temporary incapacity:

“Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident.”

18.  For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, a registered Chinese medicine practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury: section 10(2) of the Ordinance.

19.  I have carefully reviewed the evidence in support of the Summons and in opposition.  The Applicant has filed the Affirmation, Supplemental Affirmation, and 2^nd Supplemental Affirmation of Kamaljit-Kaur Paul filed on 6 June 2023, 20 July 2023, and 10 August 2023 respectively.  The Respondent has filed the Affirmation and Supplemental Affirmation of Jian Cai Yi on 1 August 2023 and 13 September 2023 respectively.

20.  I also note that as part of the proceedings, the Witness Statement of Kamaljit-Kaur was filed on behalf of the Applicant and the Witness Statement and Supplemental Witness Statement of Jian Cai Yi was filed on behalf of the Respondent.  The parties have also conducted discovery.

21.  The Respondent filed the Applicant’s List of Earnings prior to the accident on 5 September 2023.

22.  According to §3 of the Affirmation of Kamaljit-Kaur, she earned a monthly salary of HK$14,142.94 before the accident.

23.  Exhibited at KK-2 of the Affirmation of Kamaljit-Kaur are sick leave certificates for the period of 13 December 2022 to 28 June 2023.

24.  Pursuant to Article 10(1) of the Ordinance, the Applicant submits she is entitled to receive 4/5^ths of her monthly salary being the periodical / sick leave payment.

Witness Statements Filed

25.  A preliminary point is whether I can refer to the Witness Statement and Supplemental Witness Statement of Jian Cai Yi in this interlocutory application.  These were filed for the trial.  I conclude below that I am not entitled to and they are inadmissible for the purpose of the interim payment application.

26.  I was referred by the Respondent to Asjid Hussain v Opus Engineering Limited and anor, unreported judgment of Vincent Lung DDJ dated 31 May 2018, DCEC 1552/2017, which was an application for interim payment under O 29 rr 10 and 11 of RDC in which Vincent Lung DDJ expressed the view as follows (at §15):

“15. I should first deal with a preliminary point on admissibility. It is well established that a witness statement is not proper evidence before the court until the maker of the statement verifies on oath during examination-in-chief at trial: Order 38 rule 2A(6) RDC, White Book 2018 §38/2A/11. I therefore have reservations whether the contents of the applicant’s witness statement are admissible for the purpose of this interim payment application – obviously no witness came to give oral evidence before me. It is however unnecessary for me to come to a definite view, because either way it will not assist the applicant in this application.” (my underlining)

27.  Although no definite view was expressed in Asjid Hussain, I do not think I am entitled to refer to the witness statements to decide this interim payment application.  The witness statement of a witness are not by itself evidence but its status is merely that of intended evidence which the witness may be asked to give.  In some cases, even when the witness has provided witness statements with a view to them standing as evidence in chief, the court has ordered the witness to give evidence by way of examination in chief: Yicko GA Network Securities Ltd v Oriental Patron Asia Limited, unreported judgment dated 8 October 2002 per Carlson DHCJ, HCA 9848/2000; Hanwa Kozai v Hang Yu Limited [1995] 1 HKC 841 per Keith J; Amy So v Leslie Au [1995] 2 HKC 113 per Godfrey JA at §16.

28.  Unless the witness verifies on oath at trial that he/she wishes to adopt the witness statements as evidence in chief, it is not admitted as evidence. Witness statements which have been exchanged under O 38 r 2A are not put in evidence by the fact of exchange, but remain confidential until the witness makes the statement public by verifying it on oath at trial.

29.  In Blue v Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm), Leggatt J considered whether a witness statement should be disclosed to the public when it had been referred to at a pre-trial hearing.  The application was made ahead of the trial itself.

30.  Leggatt J reviewed the role of witness statements (at §13 and 14):

“The role of witness statements

13. Historically in civil cases (as it still is today in criminal proceedings) the giving of evidence by witnesses at a trial was an entirely oral process. First, counsel for the party calling the witness would ask questions to elicit evidence from the witness “in chief.” Then counsel for the opposing party would cross-examine the witness. Traditionally, the parties to the litigation and their counsel would have no notice of what witnesses of fact called by opposing parties were going to say in evidence until they said it. That began to change after provision for written witness statements was first introduced in certain parts of the High Court, including the Commercial Court, in 1986. Under the modern Civil Procedure Rules parties are required to serve witness statements in advance of a trial. A witness statement is defined in the rules as “a written statement signed by a person which contains the evidence which that person would be allowed to give orally” (see CPR 32.4). The purpose of requiring such statements to be served is twofold. First, it enables parties to prepare for trial with notice of the evidence which the other side may adduce. This avoids unfair surprise and enables rebuttal evidence to be obtained where necessary and cross-examination to be better prepared. It also allows each party to make a fuller assessment of the strength of the other party’s case, which may facilitate settlement. The second purpose of witness statements is to make the trial process more efficient by saving the time that would otherwise be taken up by oral evidence given in chief. Instead of such oral evidence, the witness is simply asked to identify their statement and confirm their belief that its contents are true.

14. It is, however, important to notice that, it is only when a witness is called to give oral evidence in court that their statement becomes evidence in the case (see CPR 32.5). Until then, its status is merely that of a statement of the evidence which the witness may be asked to give. Thus, it quite often happens that a party serves a witness statement from a person who is not in the event called to give oral evidence at the trial. In that event the person’s statement may be admissible as hearsay evidence and may then be admitted in written form; or the statement may not be put in evidence at all – in which case it never becomes part of the material on which the case is decided.” (my underlining)

31.  CPR 32.5[1] is similar to O 38 r 2A(6) – (9) of the RDC:

“(6) Subject to paragraph (9), where the party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial.

(7) Subject to paragraph (9), where the party serving the statement does call such a witness at the trial —

(a) the Court may, on such terms as it thinks fit, direct that the statement served, or any part of it, shall stand as the evidence in chief of the witness or part of such evidence;

(b) the witness may with the leave of the Court —

(i) amplify his witness statement; and

(ii) give evidence in relation to new matters which have arisen since the witness statement was served on the other party;

(c) whether or not the statement served or any part of it is referred to during the evidence in chief of the witness, any party may put the statement or any part of it in cross-examination of that witness.

(7A) The Court may grant leave under paragraph (7)(b) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

(8) Nothing in this rule shall make admissible evidence which is otherwise inadmissible.

(9) Where any statement served is one to which the Evidence Ordinance (Cap 8) applies, paragraphs (6) and (7) shall take effect subject to the provisions of that Ordinance and Parts III and IV of this Order.  The service of a witness statement under this rule shall not, unless expressly so stated by the party serving the same, be treated as a notice under that Ordinance; and where a statement or any part thereof would be admissible in evidence by virtue only of that Ordinance, the appropriate notice under Part III or IV of this Order shall be served with the statement notwithstanding any provision of those Parts as to the time for serving such a notice.”

32.  This is also confirmed by Hong Kong Civil Procedure 2024 at §38/2A/13:

“Witness called or not called at trial — Notwithstanding the pre-trial exchange of the other statements of the witnesses between the parties, whether pursuant to the direction under para (2), or by consent, the trial itself remains an oral, public trial. The written statement of a witness is not in itself evidence of the case.

… …

Generally, where the party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial (r 2A(6)).

… …

Witness statements which have been exchanged under O 38 r 2A are not put in evidence by the fact of exchange, but remain confidential until the witness makes the statement public by verifying it on oath in the witness box, or the party who served the statement waives the privilege. In opening, counsel should not refer to such statement, nor should a witness called by an opposing party be cross-examined by reference to a statement of another witness who might or might not be called by that opposing party or someone other than the party on whose behalf the cross-examination is being conducted.” (my underlining)

33.  Accordingly, I will decide this application without recourse to the unsworn witness statements filed in these proceedings.

34.  In any event, I do not think the Respondent’s witness statements (at §§4 and 5 of the Witness Statement of Jian Cai Yi and at §3 of the Supplemental Witness Statement of Jian Cai Yi) are only challenging causation and not as to whether an accident had occurred.  Ms Jian states that the refrigerator door was not closed and if there was a sound, she should have heard it (§3 of the Supplemental Witness Statement of Jian Cai Yi), and she did not hear anything fall to the ground and there was no water tray besides the Applicant (§6 of the Witness Statement of Jian Cai Yi).  As to Ms Jian finding the Applicant sitting on the floor and told her that she was injured after the fall, I do not think that this is an admission that the accident occurred (for the purposes of this application) but only goes to show that the Applicant made that statement to Ms Jian at the time (§4 of the Witness Statement of Jian Cai Yi).

Discussion

35.  The first point of contention is whether liability is disputed by the Respondent.  I am of the view that it is.

36.  Mr Massie submits that the employment of the Applicant is not an issue. According to Mr Massie, what is in dispute is causation.  However, section 5(1) of the Ordinance is a no fault scheme.  Whether the Applicant had an accident is not disputed.

37.  At §4(c) of the Application, the Applicant provides details of the date and place of accident, nature of work on which the Applicant was then engaged and nature of accident and cause of injury:

“On 12 December 2022 the Applicant was in the course of employment with the Respondent and was assigned to work at a restaurant at 1^st Floor (Portion), King’s House, No 971 King’s Road, Quarry Bay, Hong Kong.

At about 4:15 pm the Applicant was carrying a metal container which contains hot boiling water with her both hands and walking towards the dish washing area in the kitchen.  As she was few steps away where the intended hot boiling water is to be used, she slipped and fell backwards landing on her back and hit her left elbow on the ground.  As a result, she sustained injury to her left elbow and back.”

38.  In reply, §4(c) of the Answer provides as follows:

“Sub-paragraph (c) is strenuously denied. In particular, the Respondent takes issue with the cause of the alleged accident and the circumstances in which the alleged accident took place.”

39.  From the Respondent’s Answer, it is clear that the Respondent is disputing liability as it has denied 4(c) of the Application and not just causation.  The Respondent has referred to the “alleged accident” and disputes the circumstances in which the alleged accident took place.

40.  The Applicant distinguishes Asjid Hussain in that whether or not an accident had occurred was in issue in that case.  The Applicant submits that the Respondent has an issue with the causation of the alleged accident and the circumstances in which the alleged accident took place.  According to the Applicant, there is a bare denial in the pleadings about the accident but it must be supported by evidence.

41.  At §7 of the Affirmation of Jian Cai Yi, who is one of the two sous chefs of the restaurant, she states that she was taken by surprise to see the Applicant sitting on the floor at one of the dishwashing stations.  According to Jian, the Applicant said she had fallen and that she felt pain in her lower back as a result of the fall.  At §3 of the Supplemental Affirmation of Jian Cai Yi, she states that “[b]ut I heard nothing.”  The Applicant submits this only goes to causation - whether the accident was caused by the carrying of water.

42.  The Applicant in this case was taken by ambulance and there was a diagnosis of a slip and fall.  The Applicant submits that the Witness Statement and Supplemental Witness Statement of Jian Cai Yi contains a direct admission of an accident (§4 of the Witness Statement of Jian Cai Yi) and the Respondent is only challenging causation (§5 of the Witness Statement of Jian Cai Yi).  In the Supplemental Witness Statement of Jian Cai Yi, she refers to “on the day of the accident” (§3 of the Supplemental Witness Statement of Jian Cai Yi).

43.  I have already dealt with the admissibility of the Respondent’s witness statements above and have ruled they are inadmissible for the purpose of deciding this interim payment application.

44.  The Applicant submits that the Respondent is not raising a question of fact as to whether the accident occurred but raising an issue of causation. However, the Ordinance is a no fault scheme which compensates for sick leave as a result of personal injury by accident.

45.  Section 5(1) of the Ordinance provides for the matters that need to be proved:

“Subject to subsections (2) and (3), if in any employment, personal injury by accident arising out of and in the course of the employment is caused to an employee, his employer shall be liable to pay compensation in accordance with this Ordinance.”

46.  In this case, the Applicant submits there was a (i) personal injury from the A&E reports and sick leave certificate, which were consistent with what the Applicant says.  The injury was the result of the Applicant landing on the floor; and (ii) an accident – the slip and fall. The Respondent’s witness had found her sitting on the floor and it was not contested that an ambulance had took her to the A&E section of the hospital.  That the personal injury by accident arose from the Applicant’s employment is an admitted fact.

47.  At §4 of the Applicant’s skeleton submissions filed on 27 May 2024 (last line), the Applicant states there was a referral from orthopedics to surgery for anaemia for workup - tests to detect for signs of anaemia.

48.  The Respondent’s skeleton submissions filed on 28 May 2024 (at §15) submits that it is well established that anaemia can give rise to weakness and dizziness / light-headedness.  This could account for any fall at that time or alternatively a fainting spell.  There was also a CT scan on her brain.  This raises the question of whether the Applicant had a personal injury caused to the Applicant by accident arising out of and in the course of the employment.

49.  Section 5(4)(a) of the Ordinance provides as follows:

“(4) For the purposes of this Ordinance —

(a) an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;”

50.  The Applicant submits that an accident that arises during the course of employment has arisen out of that employment is a rebuttable presumption that needs to be rebutted by evidence.  Any finding of anaemia as the cause of the fall needs to be proved by medical evidence by the Respondent.  The Respondent had the right to medically examine the Applicant under section 16 of the Ordinance but chose not to.  In this case, there was no evidence to the contrary.

51.  In Wong Yuet Yung v Wah Fung Hong Gas Engineering Co Ltd, unreported judgment of the Court of Appeal dated 19 February 2008, CACV 33/2007, Rogers VP (at §9) referred to the decision in R v National Insurance (Industrial Injuries) Commissioner ex parte Richardson [1958] 1 WLR 851 in which Lord Goddard CJ pointed out that the words of the section, (the same as the present section) were “in the absence of evidence to the contrary” and not “in the absence of proof to the contrary” or “unless the contrary is proved.”  Lord Goddard construed the section to mean no more than that if there was evidence that the accident did not arise out of the employment then no presumption arose at all.

52.  Rogers VP in Wong Yuet Yung further observed that medical evidence was called by both parties to rebut the presumption (at §10):

“10. As was pointed out by Mr Sakhrani, who appeared on behalf of the respondent, there clearly was evidence to the contrary. Although Dr Chin, who had given evidence on behalf of the applicant, had suggested that the stroke might have been related to stress caused by the presence of water, Dr Yu, whose evidence the judge accepted in preference to Dr Chin’s evidence, refuted that that would have been the case.”

53.  In this case, the Applicant submits there was no evidence to the contrary regarding the anaemia and the court cannot take judicial notice that this caused dizziness.  The Respondent had not adduced any expert evidence, unlike the parties in Wong Yuet Yung.  There is no suggestion that the fall was caused by anaemia.  Furthermore, this was not pleaded by the Respondent and it was also not pleaded that the Applicant was not working during the course of employment and going out on a frolic on her own.

54.  Mr Sakhrani referred me to R v National Insurance (Industrial Injuries) Commissioner ex parte Richardson for the proposition that the presumption does not arise if there is evidence to the contrary that the accident did not arise out of and in the course of an employee’s employment. In that case, the applicant was an omnibus conductor, was in uniform on the platform of his bus when he was injured in an assault by one of a gang of youths.

55.  The Commissioner held that the accident did not arise out of his employment, although the injury was sustained in the course of his employment, because, on the evidence before him, it was not shown that the applicant was specially singled out by any reason of any particular circumstance connected with his employment.  The commissioner held that it was an attack made on the applicant as a person in the street, as these youths had been attacking other people.  Accordingly there was evidence to the contrary.  The Commissioner’s decision was upheld by Lord Goddard, CJ, Slade and Devlin JJ on the Queen’s Bench Division.  Lord Goddard observed as follows (at 690G):

“That has been held by commissioners quite correctly, in my opinion, to mean no more than that, if there is evidence before the commissioner that the accident does not arise out of or in the course of the employment, then there is no presumption at all and it is left to the parties to prove the case in the ordinary way.

… …

The error of law which is alleged is that the commissioner misdirected himself with regard to the onus of proof and held that there was an onus on the applicant instead of there being an onus on the insurance officer.  That does not seem to me, with all respect to counsel for the applicant’s argument, to be right.  It is not a question of the onus of proof.  The question is: Was there evidence to the contrary?  If there was, it is left to the applicant to make out his case.”

56.  Mr Sakhrani also referred me to Wong Yuet Yung in which the Court of Appeal dismissed the applicant’s claim because he held that the applicant had failed to prove that an accident had occurred in the terms of the Ordinance, namely that there had been personal injury caused to the applicant by accident arising out of and in the course of employment.

57.  The Respondent submits there is prima facie evidence that the Applicant was suffering from anaemia (referral letter from Pamela Youde Nethersole Eastern Hospital Orthopaedics to Department of Surgery dated 14 December 2022, with the reason for referral being anaemia for workup).  On admission, a blood test showed low hemoglobin (Hb) (similar to baseline) and this could account for the fall.  It is further submitted that the Applicant has confused the burden of proof; not only does the Applicant need to prove an accident but it arose out of or in the course of the Applicant’s employment.  This is not on the Respondent.  The burden of proof is on the Applicant to demonstrate that (i) there was an accident (slip and fall); and (ii) injury, arising out of or in the course of the Applicant’s employment.

58.  In my view, there is evidence in this case that the accident does not arise out of or in the course of the Applicant’s employment, and the presumption in section 5(4)(a) of the Ordinance that an accident arising in the course of an employee’s employment shall have arisen out of that employment does not apply.  It is not a question of onus of proof or “in the absence of proof to the contrary” or “unless the contrary is proved” but was there evidence to the contrary, given the referral letter dated 14 December 2022.

59.  Even if I am wrong regarding the above, there are disputed facts in this application which cannot be determined without a trial.  According to the Affirmation and Supplemental Affirmation of Kamaljit-Kaur:

(a)  After she fell, the Applicant was helped to stand up by a Chinese lady in the kitchen (Jian Cai Yi) and the manager helped her to sit on the chair and called the ambulance (§7 of the Supplemental Affirmation of Kamaljit-Kaur).

(b)  As a result of the accident, she sustained injury to her left elbow and back (§4 of the Affirmation of Kamaljit-Kaur; §6 of the Supplemental Affirmation of Kamaljit-Kaur).

(c)  She agrees that Jian Cai Yi might not have heard the Applicant fall down.  The Applicant gives evidence that Jian Cai Yi was in the refrigerator at the time and it would not be possible to hear anything outside (§3 of the 2^nd Supplemental Affirmation of Kamaljit-Kaur).

(d)  When she fell, the Applicant lost grip of the metal container and it fell on the floor and water was splashed on the floor and metal container onto my right side (§4 of the 2^nd Supplemental Affirmation of Kamaljit-Kaur).

(e)  Her pants and polo short were wet after the fall (§5 of the 2^nd Supplemental Affirmation of Kamaljit-Kaur).

60.  The Respondent disputes whether an accident occurred.  According to the Affirmation and Supplemental Affirmation of Jian Cai Yi:

(a)  The accident could not have occurred as alleged by the Applicant as there was no noise or sound outside (§9 of the Affirmation of Jian Cai Yi; §3 of the Supplemental Affirmation of Jian Cai Yi).

(b)  Jian Cai Yi was only in the refrigerator for seconds and did not hear the sound of a large steel container falling to the ground.  When she was in the refrigerator, the door was open (§§3 and 4 of the Supplemental Affirmation of Jian Cai Yi).

(c)  There was no steel container on the ground (§8 of the Affirmation of Jian Cai Yi).

(d)  The Applicant’s polo shirt was not wet (§8 of the Affirmation of Jian Cai Yi).

61.  At the hearing, I watched the CCTV footage of the Applicant reporting the matter to her superiors by walking to her manager’s office.  The Applicant submits that there are two tones of colour on the Applicant’s polo shirt and the darker colour on the left is evidence that she was covered in water. However, when the CCTV footage was forwarded by three seconds, there is only one tone of colour on the Applicant’s polo shirt.  The Respondent submits that the tone depends on the silhouette of the lighting in the room.  There are two tones depending on where the lighting falls, which is different for each part of the video.

62.  Accordingly, I cannot ascertain from the CCTV alone whether the Applicant’s polo shirt was wet.

63.  I note there is a discharge slip of 14 December 2022 exhibited at “KK-1” of the Affirmation of Kamaljit-Kaur with the diagnosis being contusion (left upper arm and left knee) and accident, with a description of the procedure being X-ray of lumbosacral spine; skeletal x-ray of thigh, knee and lower leg; skeletal x-ray of shoulder and upper arm, X-ray of ribs, sternum and clavicle, CT scan of brain.

64.  The Respondent submits that this is inconsistent from the Applicant’s evidence that she sustained injury to her left elbow and back (§4 of the Affirmation of Kamaljit-Kaur; §6 of the Supplemental Affirmation of Kamaljit-Kaur), as opposed to having X-rays on her thigh, knee, lower leg, ribs, and a CT scan of brain.  There was also no complaint at the hospital regarding injuries caused by hot boiling water, such as a scar injury.

65.  At the trial, the court has to decide upon the disputed facts as outlined above, after hearing the evidence of the factual witnesses.

66.  In assessing whether the Applicant’s version of events is to be believed, the court will have to consider the whole circumstances, including the medical report of the injuries.

67.  The standard of proof for an interim payment application is high: Asjid Hussain per Vincent Lung DDJ at §6.  As observed by Au J in Guo Jing Jing v Artmaster Investment Limited unreported judgment dated 11 December 2009, HCA 1008 of 2009 at §88:

“The test for granting interim payment is a high one and is well settled:

(1) The court must be satisfied that the plaintiff “would” obtain judgment for substantial damages against the defendant, not “would likely to”, and the standard of proof is a high one, on the balance of probabilities: Shenzhen Envirotex Electronics Co Ltd v Cellplus (HK) Ltd [2005] 4 HKLRD 217 at para 19.

(2)  The court must be satisfied that the defendant has no arguable defence, such as one that would warrant the grant of unconditional leave in an O 14 application: Commonwealth Holdings Plc v Quadrex Holdings Inc [1989] 3 All ER 492 at 519b.”

68.  Based on the materials before me, I am not satisfied that the Applicant would succeed in her claim and obtain substantial damages, and that the Respondent has no arguable defence or that there are sufficient doubts regarding the genuineness of the defence.  The Respondent has acted consistently in raising doubts as to whether the accident took place during work: see copy of Form 2 filed by the Respondent dated 13 February 2023.  The Respondent did not accept liability for the claim and that it occurred during the course of employment.

69.  There are competing versions of the event.  I cannot resolve this dispute on paper, which can only be resolved after hearing witness evidence. The Applicant’s case depends on her own credibility.  The court at trial will need to consider and test the evidence of the Applicant and the Respondent. The trial judge will have the opportunity to observe the witnesses under cross-examination.

70.  Finally, the Respondent submitted there is no evidence of hardship in the affirmations of the Applicant.  However, the Applicant is not required to satisfy the court either of her need for an interim payment or that she would suffer prejudice if she is denied the sum asked for: §29/11/7 of Hong Kong Civil Procedure 2024.

Conclusion

71.  For the reasons provided above, I am not satisfied that the Applicant has on the materials before me, shown that if the action proceeded to trial, she would obtain judgment for substantial damages against the Respondent.  The Respondent has raised an arguable defence as to whether the accident occurred.

Disposition

72.  The Summons is dismissed.

73.  Costs should follow the event.  I make a costs order nisi that the Applicant do pay the Respondent the costs of the Summons with certificate for counsel.  I am minded to order summary assessment.  The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

74.  For the purpose of the summary assessment of costs, I direct that the Respondent do serve its statement of costs on the Applicant within 3 days hereof, the Applicant do lodge and serve its list of objections to the Respondent’s statement of costs within 5 days thereafter, and assessment of costs shall be conducted on paper without a further hearing.

75.  I thank counsel for their helpful submissions rendered to the court.

[1] Use at trial of witness statements which have been served:

CPR 32.5

(1)   If – (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence. (Part 33 contains provisions about hearsay evidence)

(2)   Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief unless the court orders otherwise.

(3)   A witness giving oral evidence at trial may with the permission of the court – (a) amplify his witness statement; and (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

(4)   The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

(5)   If a party who has served a witness statement does not – (a) call the witness to give evidence at trial; or (b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence.