DELIVERY HERO FOOD HONG KONG LTD formerly known as ROCKET FOOD LTD v. MOHAMMAD WASEEM

DCEC 2308/2020

[2023] HKDC 9

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2308 OF 2020

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DECISION

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1.  The applicant employer, by summons dated 11 November 2022, applied to vary the costs order nisi made in the Judgment on 31 October 2022. The said summons was amended at the hearing with the leave of the court to correct certain typographical errors and the applicant now seeks to vary the said costs order nisi to the followings:-

(1)  The respondent employee do pay the applicant’s costs of the assessment, to be taxed if not agreed;

(2)  The respondent’s own costs up to 5 September 2022 to be taxed in accordance with the Legal Aid Regulations.

2.  The applicant filed an affirmation in support setting out the followings:-

(1)  The Form 9 was issued on 24 June 2021. It gave 3% loss of earning capacity and endorsed sick leave from 5 June 2019 to 8 April 2021.

(2)  Both parties appealed the Form 9 on loss of earning capacity and sick leave period.

(3)  In the Judgment 3% loss of earning capacity was awarded with sick leave granted from 5 June 2019 to 31 January 2021.

(4)  The respondent commenced working as an Uber driver in January 2021. He did not disclose this in his Answer filed on 1 June 2021. In the Answer, he averred he was granted sick leave for the period from 5 June 2019 to 8 April 2021.

(5)  By an Order of HH Judge Levy made on 13 May 2021 (the “13 May 2021 Order”), the respondent was required to make discovery of his post-accident employment details after 8 April 2021.

(6)  The respondent’s then solicitors filed a List of Documents on 15 June 2021 but made no discovery on any post-accident employment information.

(7)  The respondent had failed to comply with the 13 May 2021 Order to make discovery of his post-accident employment details after 8 April 2021. The parties jointly applied to court and an Order was made by HH Judge Andrew Li on 30 August 2021 (the “30 August 2021 Order”) to require the respondent to make such discovery.

(8)  The respondent failed to comply with the 30 August 2021 Order to make discovery, a further Order was made by consent on 18 November 2021 for the respondent to pay costs to the applicant for the failure to comply with his discovery obligations under the previous Orders.

(9)  In a letter from the respondent’s then solicitors to the applicant’s firm on 28 September 2021, the respondent disclosed that he had been working as an Uber driver since late March 2021. No income details were given. This was the first time the respondent disclosed his post-accident employment status. It was not correct as the respondent had actually commenced working as an Uber driver from January 2021.

(10)  During the joint medical expert examination on 30 September 2021, the respondent told the experts that he had been working as an Uber driver since March 2021. The joint expert report was prepared on 29 October 2021.

(11)  The respondent filed a witness statement on 21 December 2021 disclosing his post-accident employment details as an Uber driver since January 2021.

(12)  The respondent was granted legal aid on 8 April 2021. His legal aid was discharged on 5 September 2022.

3.  At the hearing, Mr Sakhrani, counsel for the applicant, made the following submissions:-

(1)  The respondent failed in his appeal against the findings of the Review Board in that he contended for 5% loss of earning capacity and sick leave up to 8 April 2021;

(2)  The respondent abused the sick leave system and was guilty of improper conduct in these proceedings.

4.  In reply, the respondent denied the allegations. After the hearing, the respondent, attempted to file into court further submissions dated 30 December 2022. The Court of Appeal had firmly stated in To Pui Kui v. Ng Kwok Pui and Others, CACV 281/2012, 21 August 2014, that after the close of a hearing, unless the leave of court had been given, no further submissions should be advanced whether by counsel, solicitors or litigants in person. The said submissions was filed without leave of the court which will not be considered by this court and will be returned unread.

The Law

5.  The court has wide discretion as to costs. Costs should generally follow the event unless “when it appears to the Court that in the circumstances of the case, some other order should be made as to the whole or any part of the costs” (O 62 r 3(2) of RDC, Cap 336).

6.  O 62 r 5 of RDC states:-

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—

(aa) the underlying objectives set out in Order 1A, rule 1;

……

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

……

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes—

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

DISCUSSION

Appeal against the findings of the Review Board

7.  The correct test to apply for an appeal of this nature is that stated in Chan Kit v Sam Wo Industrial Manufactory [1989] 1 HKC 115 at 118D to E, per Hunter JA:-

“… the court’s jurisdiction appears to be appellate. But one has then to remember that these boards are acting on their own knowledge. They hear no evidence. They keep no record. They give no reasons so that they provide no material which explains the basis of their approach. They only produce a result. Although the procedure by way of appeal may be properly so described in order to bring about a reversal of their decision if the court is so minded, it is plain that a court approaching this matter has really got to start afresh.”

8.  The applicant relied on Wong Wai Man v Concord Express (Hong Kong) Limited, unrep, DCEC 658/2019, where the applicant employee appealed against the Review Board’s assessment but failed and the court held that the respondent’s employer should only bear 30% of the applicant’s costs. The facts in Wong Wai Man were quite different in that the respondent employer had never appeared in the proceedings and had not attended the trial. Hence, the only party who appealed against the Review Board’s certificate was the applicant employee which necessitated the calling of medical expert evidence. As the Learned Judge held therein that the main area which the applicant had to persuade the court at the trial was on s 18 appeal without which the trial on assessment would have become much more straight-forward.

9.  In the present case, both parties had appealed the findings of the Review Board. I had to consider the matters afresh. The applicant contended for an assessment of 1% for loss of earning capacity and that the sick leave period should not go beyond March 2020, alternatively May 2020 or September 2020 the latest. The parties had engaged their respective medical experts and a joint report was produced. As reflected in the final determination of the court that the respondent suffered 3% loss of earning capacity and that the sick leave was granted from 5 June 2019 to 31 January 2021, the respondent did much better than those offered/contended for by the applicant. I am not inclined to deprive the respondent of any costs in this regard.

IMPROPER CONDUCT

10.  The applicant submitted that the respondent was guilty of improper conduct in that:-

(1)  he did not disclose that he had started working as an Uber driver since January 2021 in his Answer filed on 1 June 2021 which was signed with a Statement of Truth. In paragraph 6 of the Answer, he simply averred he was granted sick leave for the period from 5 June 2019 to 8^th April 2021;

(2)  he failed to disclose to the Review Board that he had started working as an Uber driver since January 2021 and that he had allowed the Review Board to be misled;

(3)  he falsely told the medical experts during the joint examination on 30 September 2021 that he had been working as an Uber driver since March 2021.

11.  In the course of the trial, Mr Sakhrani, counsel for the applicant, had not raised the above issues and had not cross-examined the respondent on them at the trial. They are all factual allegations and that the respondent has not been given an opportunity to answer such allegations to which he may have an explanation. In the circumstances, it is not proper or fair for the court to consider and determine such matters at this stage which had not been raised in the trial.

12.  Mr Sakhrani further submitted that the respondent failed to disclose the fact of his return to work in January 2021 in breach of the discovery order made by HH Judge Levy on 13 May 2021 (“the 13 May 2021 Order”). Firstly, it should be pointed out that both the 13 May 2021 Order and the subsequent order given by HH Judge Li on 30 August 2021 required the respondent to make discovery of his employment details after 8 April 2021. Secondly, for his failure to provide employment details after 8 April 2021 the respondent had been penalized by the adverse costs order against him made on 18 November 2021 for being unable to comply with the said orders. I am not minded to penalize the respondent twice for the same non-compliance.

13.  The applicant also referred to the letter issued by the respondent’s former solicitors which stated that the respondent had been working as an Uber driver since late March 2021. In his submission, Mr Sakhrani conceded that it might be due to a misunderstanding between the respondent and his then solicitor or the respondent giving false instructions. Similarly, the respondent had not been cross-examined about this at the trial and the court is not in a position to make any finding one way or the other.

14.  On the question of abuse, Mr Sakhrani submitted that whilst working, on 11 February 2021 the respondent requested further sick leave and got it for 2 months and that he was abusing the sick leave system. The respondent stated in his evidence that he could work as an Uber driver in January 2021 because the car was automatic and that there was no need for him to use his left foot; but he was not able to perform the work as a motorcycle delivery worker which would require him to carry foods weighing more than 5 kg. In this regard, I concluded that having considered all the relevant evidence, the respondent’s proper sick leave should end by the end of January 2021. I preferred the more objective evidence, in particular, the physio/occupation therapists’ comments, to the respondent’s own subjective feeling of not being able to resume his pre-accident work as a motorcycle delivery worker. It is not because I considered him dishonest.

15.  In any event, there is no dispute that the respondent had fully disclosed his post-accident employment details when he filed his witness statement on 21 December 2021. By 21 December 2021, the applicant was in a position to properly consider the evidence and, if necessary, to make any sanctioned payment to protect their position on costs if they so wished. In this connection, counsel for the applicant urged the court to consider that the award only marginally beat the applicant’s sanction payment. I made it quite clear to Mr Sakhrani that the court would not be in a position to consider such submission unless there was evidence of the actual amount of the sanctioned payment before the court. In the event that no such evidence was produced, I do not find it appropriate to consider this submission.

16.  I am told that the respondent was granted legal aid on 8 April 2021 and his legal aid was discharged on 5 September 2022.

17.  In conclusion, I do not find it appropriate to depart from the usual order of costs following the event in the present case and I refuse to vary the costs order nisi except to the extent that the respondent’s own costs up to 5 September 2022 be taxed in accordance with the Legal Aid Regulations.

ORDER

18.  I make the following orders:-

(1)  The applicant do pay the respondent’s costs of the assessment, including this application, to be taxed if not agreed;

(2)  The respondent’s own costs up to 5 September 2022 to be taxed in accordance with the Legal Aid Regulations.