ASJID HUSSAIN v. OPUS ENGINEERING LTD AND ANOTHER

DCEC 1552/2017

[2018] HKDC 626

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1552 OF 2017

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DECISION

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INTRODUCTION

1.  By summons dated 8 December 2017, the applicant applies for interim payment against the respondents in the sum of HK$189,440 pursuant to Order 29 rules 10 and 11 of the Rules of the District Court (“RDC”, Cap 336H).

2.  At the hearing, Mr Pickavant, solicitors for the applicant, confirmed that the application is only based on Order 29 rule 11(1)(c) RDC[1].

BACKGROUND

3.  The applicant alleges that an accident at work happened to him on 15 November 2016 as a result of which he sustained a lower back injury.  There is no dispute that the applicant was at the material time a general labourer employed by the 1^st respondent working at a road works site along Tai Po Road.

4.  It is also not disputed that the 1^st respondent was at the time a sub-contractor of the 2^nd respondent in relation to the relevant works.

5.  The respondents dispute that the applicant had met with the alleged accident.

APPLICABLE LEGAL PRINCIPLES

6.  It is trite that for an applicant to succeed in an application for interim payment, the court must be satisfied on the balance of probabilities that, if the claim were to go to trial then, on the materials before the judge at the time of the application, the applicant would succeed in his 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: see White Book 2018 §29/11/1 and the cases cited therein.  The standard of proof has been described as “high” in Guo Jing Jing v Artmaster Investment Limited (unreported, HCA 1008/2009, 11 December 2009) at §88.  It is insufficient for the court to be satisfied that the plaintiff is likely to succeed.

7.  The threshold has sometimes been equated with that in a summary judgment application as to whether the respondent has shown an arguable defence.  One can easily see the conceptual difficulty of concluding that the applicant would succeed at trial for the purpose of an interim payment application and yet at the same time deciding that the defendant has an arguable defence so as to justify unconditional leave to defend in a summary judgment application: see BB&R Limited v Chinaplus Wines Limited (unreported, HCA 1889/2012, 4 November 2014) at §§39-40; Hollywood palace Company Limited v Trans-Global Hong Kong Investment Limited [2011] 1 HKLRD 833 at §§17-18[2]; White Book 2018 §29/11/4.

ANALYSIS

8.  Since the case will go to trial, I shall refrain from expressing a detailed view on the substantive merits or the credibility of the witnesses.  I will only carry out a provisional assessment sufficient to deal with the present application.

Did the alleged accident happen?

9.  In the applicant’s affirmation in support of the interim payment application[3], he described the alleged accident as follows:

“On 15^th November 2016, I started work at 8 a.m. with the same co-workers as stated above. I was instructed by Mr. Othem [which the applicant meant Mr. Ho Ying Tim] to undertake work involving, inter alia, manual lifting of heavy metal plates for road works. The metal plates were used to prevent loose mud from spreading out inside the trench. Whilst in the process of manually lifting a heavy metal plate, I suffered from an onset of lower back pain and fell down.” (underline added)

10.  The applicant then went on to say that “Hai Jie” and “Opeo” witnessed the alleged accident.  Those are references to Madam Li Xia Xia (“Li”, my transliteration of 李霞吓) and Mr Yip Man Bill (“Yip”, my transliteration of 葉文彪) respectively.

11.  The respondents countered by preparing affirmations in opposition from 5 deponents.  Their evidence may be summarised as follows:-

(1)   The supposed eye-witnesses Li and Yip said that the alleged accident did not happen.  In fact, after lunch on the day in question, the applicant complained of foot pain (instead of an injury to the back) and he then took a taxi to the hospital;

(2)   On that day, there was no work procedure that required manual lifting of any metal plates;

(3)   A piece of metal plate measures 3m in height, 2m in width and weighs around 390kg.  It is physically impossible for anyone to lift it.

12.  In the applicant’s affirmation in reply, he detailed the general work nature as to how the metal plates may be carried by machinery near to or inside the designated trench and how manual labour might be required to fix it with greater precision (which might involve some manual lifting).  The applicant also explained that some metal plates are relatively lighter so they are not impossible to lift by manual handling.  I should say that these allegations concern the general nature of the applicant’s work, but there was no further clarification or explanation as to how the alleged accident in fact took place.  In other words, the only description of the alleged accident remains as set out in the affirmation in support.

13.  About 6 weeks after the filing of the reply affirmation, the parties prepared their witness statements.  The applicant’s witness statement described the alleged accident as follows (with a sketch as an attachment for illustration):

“14. On 15 November 2016, a new trench was dug by an excavator…Metal plates of different sizes and weights were provided to be fixed on the walls of the trench to prevent loose mud from spreading out inside the trench… [the machine involved in the lifting process] was not a proper crane and the plates were not precisely dropped in an exact spot…I would then manipulate by a side to side rocking motion the plates into the exact position. At no time did I lift and carry large plates. My job was to manipulate the plates into the position.

…

17. On the day in question at about 2:15 to 2:45 p.m., I had already manipulated, using the rocking motion, one 2-meter high plate into an upright position. Unfortunately, the 2-meter plate fell to the right hand side. At that time Opeo was standing outside the trench and saw me manhandling the 2 meters plate into position and saw it immediately fall into its right hand side. He told me in Cantonese to fix it back. I put my right hand underneath the 2 meters plate and my left hand on the opposite side. As I lifted the plate in a twisting motion I felt a sharp pain in my back. The other end of the plate was still on the ground…The sheer weight of the metal plate caused me to lose my balance and step back. As I stepped back, my foot slipped from the soft mud inside the trench and I fell down on my left buttock inside the trench. There is now shown and produced to me marked “AH-3” a sketch showing my position at the time of accident.”

14.  It is obvious that this is a much more elaborate and comprehensive description of the alleged accident.  Some may even say that this is not entirely consistent with the way the alleged accident was portrayed in the applicant’s affirmation in support.

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.

16.  If the applicant’s witness statement is inadmissible for present purposes (so I shall ignore its contents), the only description of the alleged accident will be that contained in the applicant’s affirmation in support.  In this scenario the respondents have in my view raised an arguable defence (which justifies unconditional leave to defend if it were a summary judgment application) as to whether the alleged accident happened at all, with the supposed eye-witnesses giving an entirely different account of events and a complaint of an injury to a different part of the applicant’s body.  There is also an issue of inherent improbability because the metal plate would appear to be incapable of being manually lifted (see the underlined words in paragraph 9 above).  In this regard, Mr Pickavant’s criticism that the respondents failed to respond to the applicant’s true factual case (ie the one contained in the applicant’s witness statement) is unjustified, because ex hypothesi that was never a factual case put forward by the applicant for the purpose of this application.

17.  Even if I should consider the applicant’s witness statement to be admissible evidence for the present application, it is unclear to me that the account of events therein is unambiguously consistent with that in the applicant’s affirmation in support. Furthermore and in any event, the respondents’ contentions, that there was no work procedure which required manual lifting of metal plates on the day and that the applicant only contemporaneously complained of foot pain at the work site, are sufficient to raise an arguable defence (which justifies unconditional leave to defend if it were a summary judgment application).  I am unable to accept Mr Pickavant’s submission that the issue of credibility is “peripheral”[4], because it does not only touch upon a collateral issue but goes to the heart of the matter – whether the alleged accident happened in the first place.

18.  From the evidence before me, it is plain that there is a serious factual dispute as to whether the applicant in fact met with the alleged accident at work.  In my judgment, this dispute goes to the core of this action and it cannot be resolved by the court on paper.  I am unable to say, based on the evidence before me, that on a balance of probabilities the applicant “would” succeed on the issue of liability.  It is the same thing to say that I cannot conclude that the respondents have no arguable defence or that there are sufficient doubts about the genuineness of the defence.  The factual dispute can only be resolved after hearing oral evidence at trial so that the evidence from the various witnesses may be tested by cross-examination.

The voluntary interim payments and the salary receipts

19.  Mr Pickavant further relies on the fact that the 1^st respondent has voluntarily (ie without a court order) been making interim payments to the applicant after the alleged accident from 17 November 2016 to 7 April 2017[5] (a total of 142 days), but such payment stopped in April 2017 after the applicant reported the matter to the Labour Department.  It is said that the 1^st respondent requested the applicant to “close the file” before the interim payments would continue which the applicant refused.  The salary receipts recorded that the payments were for an injury related to work (工傷).  Mr Pickavant submitted that these were effectively admissions on the part of the 1^st respondent that the alleged accident had happened at work.

20.  Mr Ho Ying Tim of the 1^st respondent (“Ho”) explained in his affirmation that the payments were normal sick leave allowance, an entitlement under the Employment Ordinance of up to 120 days, upon the applicant producing sick leave certificates.  As to the description in the salary receipts of the injury as “work-related”, Ho said that he enquired with one Ms Chan Yuk Mei (“Chan”) who prepared those receipts and was informed that they were “typo mistakes”, and she did not pay particular attention to the wordings used because in both scenarios (ie for both normal sick leave allowance and interim payment for work-related injuries) the amount payable would be 4/5 of the applicant’s monthly earnings.

21.  It is strange that the respondents have not sought to prepare an affirmation from Chan for the purpose of resisting this application (although she subsequently prepared a witness statement). The respondents also fail to explain or justify payment of 142 days of normal sick leave allowance to the applicant when he was only entitled to 120 days under the Employment Ordinance.  I accept that these are points that are in favour of the applicant’s case, and no doubt areas which the applicant would wish to explore in cross-examination at trial.

22.  For present purposes the real question is whether this elevates the applicant’s case to the requisite threshold, ie that he “would” obtain judgment or that the respondents have no arguable defence.  I have given serious consideration to this issue, and notwithstanding Mr Pickavant’s submissions, I am not convinced the respondents’ defence has been rendered unarguable.  I am unable to summarily dismiss the respondents’ explanation of this matter as incredible.  It is a matter best left for cross-examination. 

23.  In any event, I have concluded above that the respondents have raised an arguable defence to the primary issue as to whether the alleged accident in fact happened.  I do not consider the issue on the voluntary interim payments and the salary receipts sufficient to “turn the tide” when all the evidence is considered as a whole.

Expert opinion

24.  I have also considered the contents of the joint expert report by Dr Wong Chin Hong (for the applicant) and Dr Lam Kwong Chin (for the respondents), although neither party placed emphasis on the same in their skeleton arguments or oral submissions.

25.  It is sufficient for present purposes to record that Dr Lam took the view that the applicant might have exaggerated his conditions, while Dr Wong agreed that there are “some possible over-expression of symptoms and signs”.  This reinforces my view that the factual dispute of whether the alleged accident had in fact taken place is not as clear-cut as the applicant submits.

Hardship

26.  The purpose of an interim payment is to alleviate hardship during the period between commencement of the action and trial: White Book 2018 §29/11/1.

27.  The applicant’s affirmations do not contain any suggestion that he would suffer any special hardship if interim payment is not ordered.  Rather, the applicant’s own evidence is that he applied for social security assistance from the Social Welfare Department in around March 2017 to support himself and his family.  Further, it is the common view of the experts of both sides that the applicant should be able to resume work involving lighter manual work.

28.  I am not satisfied that the Applicant would suffer from any special or undue hardship if this application is dismissed.

CONCLUSION AND ORDER

29.  For these reasons, I am not satisfied that the applicant has, on the materials before me, shown that he “would” obtain judgment against the respondents.  It seems to me that the respondents have raised an arguable defence.  In other words, the threshold in Order 29 rule 11(1)(c) RDC is not met.  I therefore dismiss the summons.  See similar results reached in Mohammad Irfan v JHK Security Limited (unreported, DCEC 1259/2013, 24 February 2014) and Wong Mau Ching v Yau Lee Construction Company Limited (unreported, DCEC 502/2014, 18 June 2014).

30.  I see no reason to depart form the usual rule that costs should follow the event.  I therefore make an order nisi that costs of the application be to the respondents in any event to be taxed if not agreed, and the applicant’s own costs be taxed in accordance with Legal Aid Regulations.