TSE TSZ CHONG v. LAW SZE MAN

DCEC 619/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 619 OF 2014

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DECISION

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1.  This is an application for leave to appeal against my decision made on 15 September 2014 (“the Decision”) which relates to the applicant’s application for interim payment. I exercised the discretion to allow the applicant an interim payment in a sum of $20,000 instead of $80,000 sought by her.

2.  The principles and my considerations in the application were stated in the Decision.  The background of the case was set out at paragraphs 8 to 11 and the reasons have been stated in the Decision at paragraphs 17 to 24.  I do not repeat them here. 

Principles for leave to appeal

3.  It is clear that leave should be granted only if the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard: see s 63A(2) of the District Court Ordinance.

4.  Where an intended appeal against the exercise of a discretion, the applicant has to show that he has an arguable case with reasonable chances of success that the relevant decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, and not merely the appellate court would prefer a solution which the judge has not chosen: see RK v YS, unrep, HCMP 1969/2012 (CA; 1.11.2012) at §6.

Grounds of appeal

5.  The applicant’s intended grounds of appealas shown in the Notice of Appeal can be essentially be summarized as follows:-

(i) the court had erred in applying the principles and test in the application of the interim payment;

(ii) the court had failed to give sufficient weight to all the medical certificates which aggregated to 439 days in assessing the amount of interim payment;

(iii) the court had erred in law and principles by failing to estimate the amount of compensation; and

(iv) the court had erred in finding the applicant has not been suffering financial hardship.

The test in the application of the interim payment

6.  As regards to the reasons to order an interim payment against the respondent, it is stated under §24 of the Decision that “I have reservation if the applicant will obtain a substantial amount of damages at the hearing for the assessment of compensation.” Mr Chung for the applicant submitted that it is only a requirement under O.29 r.11(1)(c).  Since the respondent has admitted liability and interlocutory judgment was entered thereupon, the present situation shall fall within O.29 r.11(1)(a) and/or (b).  

7.  I do not agree.

8.  It is trite law that the court must be satisfied on the balance of probabilities that if the claim were to go to trial then, on the material before the judge at the time of the application for interim payment, the plaintiff or the applicant would succeed in his claim and obtain a substantial amount of damages: see Hong Kong Civil Procedure 2014 at §29/11/1. 

9.  There are two limbs to be satisfied, namely (i) the applicant would succeed in his claim; and (ii) to obtain a substantial amount of damages.

10.  In the present case, the respondent has admitted liability.  That leaves the applicant to satisfy on balance that she would obtain a substantial amount of damages.

11.  The same test was applied by the Court of Appeal in Top One International (China) Property Group Company Ltd & Ors v Top One Property Group Ltd & Ors, CACV 269/11 (unrep, 20.7.2012).  In this case, interlocutory judgment for damages had been entered against two defendants.  The court had ordered them to make an interim payment to the 2^nd plaintiff.  They appealed against the decision.  The appeal was dismissed with costs to the 2^nd plaintiff.  It was held that :-

“15. Before making an order for interim payment, the court must be satisfied, on a balance of probabilities, that the plaintiff will succeed in obtaining judgment on liability and, in addition, that he will obtain an award of substantial damages….

…

18. To suggest that the court has to approach the task of estimating the damages that are likely to be awarded, by making findings on the evidence “on a balance of probabilities”, is to confuse the role of the court on an application for interim payment and the court of the court conducting the assessment of damages. On an application for interim payment, the court must adopt a fairly broad approach, with minimum expense to the parties, and make an estimate, on the evidence that has been adduced, of the likely award of damages and award a reasonable proportion of that estimate. Of course, the court will decline to award any interim payment if it is not satisfied that the plaintiff is likely to obtain an award of substantial damages.” (my emphasis)

12.  Mr Chung further submitted that, in any event, the applicant has good prospects in seeking compensation of more than $180,000. The compensation therefore is substantial, in the sense of not being insignificant.

13.  The amount of $180,000 is substantial in itself but the question is whether the applicant is likely to obtain an award of substantial damages.  In my view, the applicant failed to prove on balance that she would obtain a substantial amount from the available evidence in the hearing on 15 September 2014.  I shall deal with this in more detail in the paragraphs below.

Weight to be given to the 439 days of sick leave

14.  The applicant hit her head on the glass door and sustained injury with tenderness on her forehead.  The respondent strongly contests the appropriate length of 439 days of sick leave that the applicant is entitled.  The respondent submitted that the applicant’s complaints are all subjective with no support of any objective medical findings.

15.  Indeed, the fact of lacking of objective medical findings in support of the post-concussion syndrome has been confirmed by Mr Chung for the applicant.

16.  The applicant’s latest medical report dated 10 July 2014, which was prepared by the Neurosurgery Department (“ND”), read as follows:-

“On admission, the patient was fully conscious with no focal neurological deficit. A CT brain scan on the 20 March 2013 showed no evidence of intracranial hemorrhage or skull fracture. The patient was managed as having post-concussion syndrome with symptomatic medication prescribed and was discharged on the same day.

The patient continued to have intermittent headache and nausea after the injury and could not return to work. A repeat CT scan on 27 May 2013 also showed no focal abnormality. The patient was last seen on the 24 April 2014 at the time she complained of having persistent headache, dizziness and insomnia. Physical examination showed no focal neurological deficit. The patient was informed of the diagnosis of post-concussion syndrome and was referred to the medical assessment board. A follow-up consultation was arranged for the 23 October 2014 with analgesics and anxiolytic-hypnotic medication prescribed.” (my emphasis)

17.  In Gurung Kamala v Hong Wei Ltd, DCPI1660/2010, (unreported, 26.3.2012), DDJ Harold Leong (as he then was) held that:

“78. However, when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (e.g. pain and tenderness) are truthful or not.  A doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness.

…

80. Thus, the “medical history” of a patient is essentially subjective and may be treated, under the proper circumstances, as no more than hearsay evidence as what the patient has informed the doctor at the time of consultation.

81. The court may often be in a better position to assess the truthfulness of any subjective medical history in that it can, amongst others, review all available evidence and hear the opposing Counsels “testing” the evidence.” (my emphasis)

18.  In my view, the court cannot be bound by the mere issuance of sick leave certificates.  Of the 439 days of sick leave, 429 days were granted by the ND[1]. Since the extent of the injury and the length of the sick leave remain the key issues during the assessment of compensation,   I find the amount of $80,000 (which is equivalent to 214 days of paid sick leave) sought by the applicant would exceed a reasonable proportion of the damages which are likely to be recovered by the applicant. It will pose a risk of overpayment to the applicant.  

19.  It is also the respondent’s contention that the applicant is malingering. She has exaggerated her conditions with a view to inflate her claim for damages.

20.  From the pattern of the sick leave certificate, the applicant re-attended the hospital on each occasion when her sick leave certificate was running out.  In this connection, there is at least some suspicion that this consultation is less for seeking an emergency consultation but more for seeking an extension of sick leave: see Gurung Kamala (supra) at §91.

21.  Furthermore, the applicant has not been assessed by the Employees’ Compensation (Ordinary Assessment) Board (“Board”) or by any expert.  Up to this stage, it is still uncertain if she would be assessed by the Board to have suffered any loss of earning capacity and whether the sick leave would be certified as necessary.  Even if a Certificate is issued in the applicant’s favour, the respondent can still challenge the assessment on the period of sick leave granted by appeal to the District Court pursuant to s.18 of the Employees’ Compensation Ordinance, Cap 282 (“ECO”). Under s.18, the court has a wide discretion to consider all evidence and to depart from or confirm the assessment by the Board. 

22.  There is also the uncertainty as to the effect of the deeming provision in s.10(2) of the ECO.  It reads as follows:

“For the purposes of this section a period of absence from duty certified to be necessary by a 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 irrespective of the outcome of the injury.” (my emphasis)

23.  When considering whether s.10(2) raises a rebuttable presumption, I echo the observations of Lok J in Limbu Laxmi Prasad v Dragages (HK) Joint Venture, DCEC 1227/2006 (Unreported, 24.10.2007) which held that:-

“There is some uncertainty as to the effect of the deeming provision in s.10(2). On the one hand, we have cases which suggest that, in the absence of fraud, the deeming provision is conclusive about the period of sick leave for the purpose of calculating the compensation under s.10. On the other hand, we have another line of cases which suggest that the deeming provision is rebuttable. A good summary of these two lines of cases can be found in the judgment of Deputy Judge Anthony Chow in Siu Fu Yau v. Wong Po Lee Limited & ors., unreported, DCEC No. 654 of 2003 (decision on 5 October 2006). Unless the interpretation of s. 10(2) is clarified by the higher courts, such uncertainty in the law will still continue to exist.”

24.  Mr Chung agreed that it is controversial whether s.10(2) consists of a rebuttable presumption.  However, he argued that the compensation on s.10 to be awarded should be more than $160,000 ($14,000 x 4/5 x 439/30) if the sick leave certificates of 439 days are accepted. 

25.  His submission must be correct but it is subject to (i) the interpretation of the presumption of s.10(2) is irrebuttable; and (ii) whether the trial judge accepts the period of absence from duty is necessary as a result of the injury in the assessment of compensation. 

26.  Having regards to the lack of objective medical findings, I find it to be premature in the interlocutory stage to put full reliance on the 439 days of sick leave without the Board’s confirmation and expert’s opinion.

Failing to estimate the amount of compensation

27.  In deciding the amount of interim payment to order, I have reminded myself to estimate  the damages that are likely to be awarded by judiciously weighing the evidence presented before me and giving it such weight that it deserves (see §17 of the Decision). Then I have adopted a broad-brush approach in coming to a conclusion that $20,000 is appropriate. My estimation was made on the basis as stated in paragraphs of 18 to 23 of the Decision.  Having said so, I have never lost sight of the diagnosis of post-concussion syndrome on the applicant which is the issue of the case.  I also note that the medical expenses incurred amounted to $6,500. I find a conservative sum of $20,000 is a reasonable proportion of the estimate.

28.  With respect, it is misconceived for Mr Chung to argue that no such estimation had been given in the Decision. In fact, it is not necessary for the court on an application for interim payment to approach the task of estimating the damages that are likely to be awarded by making findings on the evidence: see Top One (supra) at §18. This is a matter for the future court to explore if the symptoms she complained of are reliable and genuine in conducting the assessment of damages. I need say no more about them.

Financial hardship

29.  According to the applicant’s affirmation dated 7 July 2014, she alleged that she had to borrow monies from her relatives to defray her medical expenses.  She had owed them $10,000. Mr Chung submitted that the intermittent deposits in her bank account in 2014 were the financial assistance from her daughters and relatives.

30.   As noted from the applicant’s bank passport, it shows that monies in a total sum of $26,000 with remarks of “QDM DEP” were deposited constantly into her account. It exceeded the borrowed sum of $10,000 as alleged by the applicant.  On balance, I do not accept that the deposits, with the unexplained remarks of “QDM DEP”, were from her relatives. That leaves the court with doubts if the applicant has been suffering financial hardship as she has alleged in her affirmation.

Conclusion

31.  I am not satisfied that the intended appeal by the applicant has a reasonable prospect of success.  This is the court’s discretion under O.29, r.11.  I am not convinced that the appellate court would lightly interfere with the exercise of the discretion in the circumstances of this case.

32.  I therefore refuse the application for leave to appeal.  Costs of this application be to the respondent, to be taxed if not agreed, with certificate for counsel.  The applicant’s own costs to be taxed in accordance with legal aid regulations.