TAM CHUN PUI v. HIP HING ENGINEERING (MACAU) CO., LTD AND OTHERS

DCEC628/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 628 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 alleged accident on 27^th September 2005 arising out of and in the course of his employment with the 2^nd and/or 3^rd Respondent. The Applicant claims that at the material time the 2^nd and 3^rd Respondents were sub-contractors of the 1^st Respondent. The Applicant also appeals against the assessments in Form 9 dated 21^st June 2006.

2.  Although the 2^nd and 3^rd Respondents do not in their Answer admit the aforesaid employment relationship, the witness statements filed on behalf of the 2^nd and 3^rd Respondents acknowledge that at the material time the Applicant was the employee of the 3^rd Respondent.

3.  The Applicant claims that at about 1:30pm on/about 27^th September 2005 in the course of his employment with the 2^nd and/or 3^rd Respondent as a window wall installation worker he was instructed to install anti-heating plates in a construction site together with three other co-workers. When they were doing so, an anti-heating plate suddenly fell down and hit the Applicant’s left wrist as a result of which the Applicant sustained injuries.

4.  The 2^nd and 3^rd Respondents deny the aforesaid allegations and put the Applicant to strict proof thereof.

5.  The Applicant has filed his witness statement on 9^th November 2006. The only information in his witness statement about the alleged accident is as follows :

  “意外發生於2005年9月27日大約下午1時30分左右。當時，我被派到該地盤與其他工人一起負責安裝隔熱鋁板。當我和我的同事正在安裝一塊隔熱鋁板時，該塊鋁板突然塌下，撞到我的左手腕，我因此受了傷。”

It is plain that the above information goes no further that what the Applicant has averred in the Application. It does not give any detailed particulars of the alleged accident.

6.  In the circumstances, on 18^th November 2006, the solicitors for the 2^nd and 3^rd Respondents (“Rs’ Solicitors”) served interrogatories on the solicitors for the Applicant (“A’s Solicitors”). Questions nos. 2 to 6 of the interrogatories all related to the circumstances of the alleged accident (“Accident Interrogatories”). Question no.1 of the interrogatories asked for a description with details of the steps, but for the alleged Accident, that would have been taken by the workers including the Applicant for the installation of the subject heat insulation metal plate at the alleged accident location (“But For Interrogatory”). Rs’ Solicitors invited the Applicant to make voluntary reply, failing which they would make an application to the court.

7.  A’s Solicitors replied on the same day. They referred to section 5 of the Employees’ Compensation Ordinance and asserted that the interrogatories “are not relevant in these ECC proceedings”.

8.  Rs’ Solicitors disagreed and on 22^nd November 2006 wrote to A’s Solicitors saying that the interrogatories were necessary for them to consider and ascertain whether or not the alleged accident was indeed arising out of or in the course of employment. It was pointed out that the Applicant never pleaded or provided or stated the particulars of “the alleged accident elsewhere so far” and the interrogatories were administered as a last resort in order to clarify the Applicant’s allegations.

9.  A’s Solicitors maintained their stance in their letter of 22^nd November 2006. They claimed they could not see how the interrogatories were relevant. They also said they did not consider them necessary either for disposing of the cause or matter or for saving costs. Rs’ Solicitors maintained that :

“Our client was injured in your clients’ construction site while carrying out duties as instructed by your clients. We are unable to see how the procedure or steps to install the insulation plates are relevant in assisting your clients on disputing liability.”

10.  Rs’ Solicitors in their reply letter of 29^th November 2006 reiterated their stance and insisted that the 2^nd and 3^rd Respondents were entitled to fuller and further particulars regarding the details of the alleged accident and its causes to see if it really fell within the scope of the Employees’ Compensation Ordinance.

11.  Rs’ Solicitors therefore issued a summons dated 6^th December 2006, which came before me today, for leave to serve the aforesaid interrogatories on the Applicant and for an order that the Applicant do answer the same by affidavit.

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 whether there was the accident as alleged by the Applicant. The 2^nd and 3^rd Respondents have denied the same in their Answer and put the Applicant to strict proof thereof. There can be no dispute that the burden is on the Applicant to prove on the balance of probabilities that (a) there was such accident, (b) such accident arose out of and in the course of employment and (c) such accident caused the Applicant to suffer personal injuries. The fact that the 2^nd and 3^rd Respondents do not have any eyewitness to or, as the solicitor for the Applicant Mr Kwong submits, “positive evidence” on the alleged accident do not lessen the burden of proof. The 2^nd and 3^rd Respondents are also entitled to test the Applicant’s case by cross-examination of the Applicant as witness.

14.  Given the burden and standard of proof referred to above, there is no doubt in my mind that the circumstances of the alleged accident are plainly relevant and necessary for the resolution of the ultimate issues on liability in the present case. The 2^nd and 3^rd Respondents are entitled to know the pertinent circumstances of the alleged accident, so that they are in a position to form a reasonable view as to the veracity of the Applicant’s assertions concerning the alleged accident and to adequately prepare for cross-examination of the Applicant as witness.

15.  Mr Kwong submits that the Accident Interrogatories are more related to the common law claim where negligence or other fault may be in issue. However, a careful perusal of the Accident Interrogatories will show that they are not necessarily directed to the issue of fault but are concerned with the circumstances of the alleged accident. The latter enquiry is equally relevant to the issue of whether there was a genuine accident and if so, whether it arose out of and in the course of employment.

16.  Mr Kwong next submits that the Accident Interrogatories are fishing for there is no reason to disbelieve that the alleged accident took place as asserted by the Applicant. He prays in aid various discovered documents, including those from the Macau Labour Bureau, which support the Applicant’s contentions in relation to the alleged accident. None of these documents have been placed before me and I am unable to form any definitive view on them. But Mr Kwong does not dispute that the Applicant himself is best placed to describe the alleged accident. He also acknowledges that even on the Applicant’s case the documents he has alluded to at best raises a presumption in the Applicant’s favour and can be rebutted by evidence. Ultimately, the issue as to whether there was an accident as alleged by the Applicant is a matter for the trial judge on assessment of all the evidence before him.

17.  In my view, it is a sufficient basis to grant leave to issue interrogatories when they have some bearing on the question at issue and that they may form a step in resolving the question of liability. The information sought is clearly within the knowledge of the Applicant. I am firmly convinced the Accident Interrogatories should be allowed as being necessary for disposing fairly of the cause or matter and it will save costs. To have these matters ventilated only at the trial carries a real risk of surprise, delay and consequently increased costs.

18.  Mr Kwong opposes the But For Interrogatory on the basis that it does not relate to the circumstances of the Accident, but asks for a description of a hypothetical situation, namely, what steps the Applicant and his co-workers would have done in relation to installation of the insulation plates but for the alleged accident. Upon consideration, Ms Hui, solicitor for the 2^nd and 3^rd Respondents, decides not to pursue the But For Interrogatory.

19.  I have therefore at the hearing granted an order in terms of paragraphs 1 to 3 of the summons of the 2^nd and 3^rd Respondents dated 6^th December 2006 but limited to serving and answering the Accident Interrogatories and not the But For Interrogatory.

20.  In my view, the Applicant should not have resisted the application as relates to the Accident Interrogatories and indeed opportunity has been given to the Applicant to accede to the request for voluntary answer to the interrogatories prior to issuance of the summons. Mr Kwong points out that the Applicant has not been entirely successful and has been constrained to withdraw the But For Interrogatory. However, the ground for resisting the But For Interrogatory outlined in paragraph 18 above has not been raised previously in the correspondence between the parties. Further, the Applicant’s opposition to the Accident Interrogatories in any event necessitates today’s hearing and at the hearing the 2^nd and 3^rd Respondents have been substantially successful.

21.  I think it is appropriate for the Applicant to pay costs of the summons (including costs of the hearing on 14^th December 2006) to the 2^nd and 3^rd Respondents to be taxed if not agreed. However, for the avoidance of doubt, the costs of the Answer to the interrogatories should be costs in the cause. The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.