TSUI SHUN LI v. EVER REGAL INTERNATIONAL LTD

DCEC298/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 298 OF 2009

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D E C I S I O N

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1.  This is the Applicant’s application to ask for leave to adduce a medical report of Dr Cheung on or before 15 September 2009.  On 15 July 2009, Judge Chan made an order that the Applicant be medically examined by joint experts of both parties on 6 November 2009.  The Applicant does not seek to upset that order.  He just asks for medical exam of himself by his own expert besides the joint medical examination by experts of both parties.

2.  On the same day Judge Chan made that order, the Respondent made a sanctioned offer or payment into court.  The present application is made so that the Applicant could have the medical evidence relating to his injuries, and on such evidence, he could assess the damages suffered by himself so that he could consider whether to accept the sanctioned payment made by the Respondent or not.  If not, according to his legal representative, he would be seriously prejudiced because he could not do the assessment and he would have difficulty to consider whether to accept the sanctioned payment or not.  If he makes the decision to accept the sanctioned payment after the joint medical examination in November and he may be penalised in cost.

3.  The Applicant accused the Respondent of not having genuinely made the sanctioned payment.  That cannot be founded.  The payment was made into court.  I cannot see what difference it would have made if it was not genuinely made.  The fact is that it was paid into court.  It is just for the Applicant to decide whether to accept it or not.

4.  The Applicant asked me to grant an extension of time to accept the payment into court under Order 3, rule 5(1) of the Rules of the District Court.  It does not get off the ground.  The Applicant has not signified or decided that he would accept the sanctioned payment.  So it is not a fact that he decided to accept the payment.  Since such fact does not exist, the application for granting an extension for that fact does not arise.  In fact, what he is asking me is to extend the time for him to consider whether to accept the sanctioned payment or not.  He has not made a decision whether to accept the payment or not.  It is only after due consideration then he would make the decision.  So it is not the situation that he would accept the sanctioned payment.  He may accept it.  He may not accept it.  So there is no act of accepting the sanctioned payment.  Order 3, rule 5(1) simply does not apply.

5.  In conclusion, A’s application is wholly unnecessary.  Judge Chan made an order.  That order has not been set aside.  It is still a valid order and has to be complied with.  That order would produce the evidence relating to the injuries of the Applicant for the purpose of this trial.  So that order would make the Applicant’s application unnecessary because it is a duplication to obtain medical evidence.  Unless Judge Chan’s order is set aside, I shall not make that order.

6.  The Applicant complained that the Respondent had all the medical evidence available and so the Respondent could assess the injuries sustained by the Applicant prior to the commencement of the institution of these proceedings.  But the Applicant does not have such evidence.  The Applicant should be aware that the Respondent may make sanctioned offer or payment at any time after institution of the proceedings, and according to the Applicant, he was forced into the present situation with a lot of difficulties to decide whether to accept the sanctioned payment.  I do not understand why the Applicant should not have prepared the medical evidence relating to his injuries prior to the institution of these proceedings.  If he does not have it, he can only blame himself when the Respondent makes the sanctioned payment, and according to the Applicant, he is forced into a difficult situation.  I cannot see how the Respondent can be blamed if it follows the rule to protect itself.

7.  I have read the affirmation, etc.  There are a lot of accusations.  I cannot see why the Respondent should be blamed even if it calculated on when and how to make the sanctioned payment.  It is entitled to protect its own interests.  So far as it has not traversed the rules; it should not be blamed. 

8.  I make a decision that the Applicant’s application be dismissed.

(Discussion re costs)

9.  Costs of this entire application be to the Respondent, to be taxed if not agreed, and this covers all the costs reserved for the past hearings.  So regarding those reserved costs, I make an order that the Applicant is to pay those costs to the Respondent, to be taxed if not agreed.  The Applicant’s costs be taxed in accordance with Legal Aid Regulations.