WONG SIK YU v. FEDERAL EXPRESS CORPORATION

DCEC 368/2016

[2018] HKDC 161

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 368 OF 2016

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DECISION

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1.  By a summons dated 13 July 2017 (“the summons”), the applicant applies for leave to amend the application herein (“the EC application”). In the EC application, it is pleaded that the applicant suffered personal injury by accident arising out of and in the course of employment, and the accident occurred in or about March 2015. The applicant seeks leave to amend the time of the accident by putting in “or April” immediately after “about March”. The summons is opposed by the respondent.

The applicant’s submissions

2.  The applicant has filed an affirmation in support of the summons, in which the applicant said:-

(a)   Immediately after the accident, he continued to work and did not recognize the seriousness of his low back pain injury.  When he felt more painful, he went to see Dr Man Lung Kwong on 7 May 2015.  He also attended clinic and hospital for medical treatments and was given sick leave by Dr Oh Aik Soon for the period from 29 May 2015 to 31 May 2015.

(b)   The applicant was unable to remember the exact date of the accident. However, he could remember that the accident occurred at a time before his birthday, which was 14 April 2015.

(c)   He went to see Dr Oh for the first time on 18 May 2015.  At that time, he told Dr Oh that his low back pain persisted for more than 1 month.

(d)   The applicant was not sure whether the accident occurred in March or early April 2015.  Having sought legal advice on the matter, he takes out the application as set out in §1 above.

3.  Mr Leon Tang, counsel for the applicant, submits that the purpose of the proposed amendments is to correct errors as to the time of the accident in the EC application or to provide a more accurate description of the time of the accident.  These proposed amendments would not cause any prejudice to the respondent which cannot be compensated by costs.

The respondent’s submissions

4.  Miss Karen Wai, solicitor for the respondent, submits that the medical evidence does not support the applicant’s case as pleaded in the EC application, ie he suffered personal injuries in an accident occurred in March 2015. Further, in the Joint Written Applications filed by the parties on 15 September 2016, 30 December 2016 and 21 April 2017, the applicant has repeatedly confirmed that he did not wish to make any amendment to the EC application. Further, in the applicant’s witness statement, the applicant also said that the accident occurred in March 2015.

5.  Miss Wai submits that the applicant only decided to amend the date of accident when he has fully considered the respondent’s case and realized the objective evidence available is unfavourable to him.  Miss Wai submits that in these circumstances, granting leave to him to amend this material fact after he has had the opportunity to fully consider the respondent’s case is highly prejudicial to the respondent and such prejudice cannot be compensated by costs.

My view

6.  The application in an employees’ compensation proceedings is regarded as a pleading[1].

7.  The principles concerning amendments to pleadings are trite.  A succinct summary can be found in Natamon Protpakon v Citibank NA, in which Cheung JA said[2]:-

“25. It is well established that, generally speaking, all such amendments ought to be made ‘for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings’ (per Jenkins L.J. in G. L. Baker Ltd v. Medway Building and Supplies Ltd [1958] 1 WLR 1216 at 1231); see also paragraph 20/8/6 of Hong Kong Civil Procedure 2008. Leave is readily granted to amend before the trial unless it can be demonstrated that the new claim based on the proposed amendment is bound to fail (see Hancock Shipping Co. Ltd v. Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025). While the Court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation (see e.g. Kings Quality Homes Ltd v. A. J. Paints Ltd [1997] 3 All ER 267).”

8.  Further, in Cropper v Smith[3], Bowen LJ said:-

“It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace … It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right”

9.  With these principles in mind, in my judgment, the application for leave to amend the EC application ought to be allowed.

10.  Having considered the evidence adduced in this case, in my view, the applicant has not said that the accident definitely occurred at a time within March 2015 and not at any other time.  In fact, in the EC application, the applicant’s case is that the accident occurred in or about March 2015.  All the applicant wants now is to amend the EC application to make it clear that the accident might occur at a time in April 2015.  I am of the view that the respondent has raised no valid objection to this amendment application.  

11.  Allowing the amendment application does not mean that the applicant’s case would be accepted at the end.  Whether the applicant would be believed is a matter for trial.  At trial, the respondent would have an opportunity to cross examine the applicant, and the respondent would have an opportunity to make submissions.  The respondent can certainly put forward all the points as summarized in [4] and [5] above to persuade the trial judge not to accept the applicant’s evidence.  In my view, there would be no prejudice to the respondent which cannot be compensated by costs if the amendment application is allowed.

Disposition

12.  For the reasons above, I make the following order:-

(a)   Leave to the applicant to amend the EC application in the manner as per the Amended EC application annexed to the summons and file and serve the Amended EC application within 7 days; and

(b)   Leave to the respondent to make consequential amendments to the EC answer and file and serve the Amended EC answer within 28 days.

13.  Having heard submissions on costs, I am of the view that the approach in Lessy SAR v Pacific Star Development Ltd[4] should be followed.  Accordingly, I order that:-

(a)   costs of and occasioned by the amendments be to the respondent in any event, to be taxed if not agreed;

(b)   save and except the above, costs of the summons, including costs of this hearing with a certificate for counsel, be to the applicant in any event, to be taxed if not agreed.

14.  I thank Mr Tang and Miss Wai for the assistance provided to the court.