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DCEC 1769/2012, DCEC 39/2014 & DCEC 40/2014
(Consolidated)
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
EMPLOYEES’ COMPENSATION CASE NOS 1769 OF 2012,
39 OF 2014 AND 40 OF 2014
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| IN THE MATTER OF THE APPLICATIONS BETWEEN |
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POON CHI YAN |
Applicant |
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and |
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JSI LOGISTICS (HONG KONG) LIMITED |
Respondent |
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| Before: His Honour Judge MK Liu in Chambers (Open to Public) |
| Date of Hearing: 5 April 2017 |
| Date of Decision: 5 April 2017 |
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DECISION
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1.There are 2 applications before me. Both applications are made by the applicant:-
(a) An application for leave to amend the application in DCEC 39/2014 (which was issued on 10 January 2014) in the way as shown below (“the proposed amendments”):-
“On 2 August 2012 at about 10:30 a.m. (on 3 occasions at about 9:07:49, 9:34:35; and 9:44:26), the Applicant, in the course of employment with the Respondent, was required to work at a technician at Tsuen Wan International Centre, 68 Wong Lung Street, Tsuen Wan, Hong Kong (“the Centre”).
At the material time, the Applicant was assigned to test instruments, which was not his original duty, in a room situated on the 18th Floor of the Centre. In the course of performing the assigned duty on occasions averred above, he was pushed against the desk when a colleague was trying to pass behind him, due to insufficient working space (collectively, “the accident”). As a result, he sprained his wrist while he was turning the switches on the desk.” (proposed amendments highlighted)
(b) An application for leave to adduce the 2nd supplemental witness statement of the applicant as evidence in the trial. The purpose of that witness statement is to give evidence on the collision occurred at about 9:07:49 a.m. and the collision occurred at about 9:34:35 a.m.
2.For ease of reference, the 3 collisions mentioned in the proposed amendments would be called the 1st collision (occurred at about 9:07:49 a.m.), the 2nd collision (occurred at about 9:34:35 a.m.), and the 3rd collision (occurred at about 9:44:26 a.m.). In the 2nd supplemental witness statement, the applicant said that he was injured in each and every collision.
3.The respondent opposes both applications. The respondent would only agree that the applicant would have leave to amend the application in DCEC 39/2014 by changing “10:30 a.m.” to “9:44:26 a.m.”.
4.The pre-trial review of these proceedings will take place on 26 June 2017. The trial will start on 11 September 2017 with 5 days reserved.
The applicant’s case
5.The affirmation in support of the applications (“Mr Leung’s Affirmation”) is an affirmation made by the applicant’s solicitor, Mr Leung Tat Kin Anthony. In that affirmation, Mr Leung tried to explain the delay in making these applications by saying:-
(a) There was a stay in these proceedings since about July 2015 due to a summons for expert evidence issued by the respondent. The expert evidence matter was only resolved in about June 2016.
(b) The applicant was admitted to a hospital in late July 2016 and was discharged in mid-August 2016. In compliance with a request made by the court, the applicant’s solicitors obtained a certificate on the applicant’s mental fitness from the hospital on 28 October 2016.
(c) The respondent filed a supplemental list of documents on 11 November 2016, in which the respondent disclosed some CCTV footage (“the CCTV Footage”). Had the respondent disclosed the CCTV Footage earlier, the applicant’s solicitors should and would had been able to focus on and deal with the issues in the present applications earlier.
(d) The respondent’s solicitors did not give any reason for the objection until 21 February 2017.
6.Mr Leung’s Affirmation is the only affirmation filed in support of the applications. The applicant himself does not make any affirmation in support of his applications.
7.Mr Leung submits that the proposed amendments are minor and of a “tidying up” nature. Further, the applicant’s 2nd supplemental witness statement is a short one, which is only used to provide more details to the trial judge. Mr Leung also submits that there is no inordinate delay in making these applications. If there is any delay, the respondent is also responsible for the delay.
The respondent’s case
8.The affirmation in opposition (“Ms Wong’s Affirmation”) is an affirmation made by the respondent’s solicitor, Ms Wong Lok Yan. Ms Wong made lengthy submissions in that affirmation. Ms Wong also mentioned the following in the affirmation:-
(a) In respect of the 3 collisions mentioned in the proposed amendments, the 1st collision was by 李烽 (“Lee”), and the 2nd collision was by 鄭家輝 (“Cheng”). If the proposed amendments are allowed, the respondent would need time to prepare a witness statement of Lee and a witness statement of Cheng, and this may lead to the postponement of the pre-trial review and the trial.
(b) Cheng has already left the respondent. Ms Wong has tried to contact Cheng through the home telephone number and the mobile telephone number on the personnel file of Cheng kept by the respondent, but all the attempts were unsuccessful. It is not yet known whether the residential address of Cheng in his personnel file remains valid. The respondent would need time to find Cheng. It is not known whether Cheng could be found eventually.
(c) All these would be prejudice to the respondent.
9.Ms Wong submits that the applications ought to be refused for the reasons that:-
(a) there is inordinate delay in making these applications which remains unexplained;
(b) the new material introduced by these applications are irrelevant, of no probative value and/or unnecessary for the just resolution of the dispute in accordance with the substantive rights of the parties; and
(c) if the applications are allowed, there is a real likelihood of prejudice to the respondent which cannot be compensated by costs.
1 accident or 3 accidents?
10.Employees’ compensation is in relation to “personal injury by accident arising out of and in the course of the employment”, see Employees’ Compensation Ordinance (“ECO”) s 5(1). At the moment, it is clear that in DCEC 39/2014, there is only 1 accident, ie the accident occurred on 2 August 2012 at about 10:30 a.m. (the respondent has indicated that it has no objection if the applicant intends to change this time to “9:44:26 a.m.”). The question is, if the proposed amendments are allowed, there would still be 1 accident in DCEC 39/2014, or there would be 3 accidents in that application.
11.In the context of the ECO, “accident” is “the act or event or occurrence of a mishap” causing the personal injury, see Sit Wing Yi Sibly v Berton Industrial Ltd [2011] 4 HKLRD 91, per Yuen JA at [41].
12.As to what constitutes an “event”, Lord Mustill in AXA Reinsurance (UK) Plc v Filed [1996] 1 WLR 1026, said at 1035:-
“In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way.”
Applied by the Court of Final Appeal in Pony HK World Ltd v Vand Petro-Chemicals (BVI) Co Ltd (2013) 16 HKCFAR 937.
13.In my judgment, reading the aforesaid authorities together, an “accident” in the context of the ECO is an act or an event or an occurrence of a mishap, which happens at a particular time, at a particular place, in a particular way.
14.The 3 collisions mentioned in the proposed amendments are 3 separate and distinct incidents happened at 3 separate and distinct times. The applicant said in the 2nd supplemental witness statement that he suffered injuries in each and every collision. It would defy common sense to say that the 3 collisions are one single accident. They must be 3 separate and distinct accidents.
ECO s 14
15.Having held that the 3 collisions are 3 accidents, I have to consider the impact of ECO s 14 on the proposed amendments.
16.ECO, s 14 provides:-
“(1) Except where otherwise provided by this Ordinance, proceedings for the recovery under this Ordinance of compensation for an injury shall not be maintainable unless notice of the accident has been given to the employer by or on behalf of the employee, in the manner hereinafter provided, as soon as practicable after the happening thereof and before the employee has voluntarily left the employment in which he was injured, and unless the application for compensation with respect to such accident (being an application to the Court by an employee under section 18A(2)) has been made within 24 months from the occurrence of the accident causing the injury or, in the case of death, within 24 months from the date of death or prior to a determination made by the Commissioner under section 6B(1)(a), whichever is the earlier
…………
(4) The Court may receive and determine any application for compensation in any case notwithstanding that the notice required by subsection (1) has not been given, or that the application has not been made in due time as required by that subsection, if it is satisfied that there was reasonable excuse for the failure so to give notice or to make an application, as the case may be.” (emphasis added)
17.At all times, the subject matter of DCEC 39/2014 is the 3rd collision. By the proposed amendments, the applicant would like to introduce the 1st collision and the 2nd collision into DCEC 39/2014. In relation to these 2 collisions, the 24-month limitation period provided in ECO s 14(1) have expired in early August 2014. In order to add these 2 collisions into DCEC 39/2014 now, the applicant has to show “reasonable excuse”.
18.The leading authority on “reasonable excuse” is the Court of Appeal’s decision in Tsang Loi Fat v Sun Fook Kong [2011] 4 HKLRD 344, in which Cheung JA said:-
“Reasonable excuse
10. When the Court rules on whether there is a reasonable excuse in relation to a failure by an applicant to make his application for employees’ compensation within the prescribed period, apart from considering the reason for the delay, it also has to consider the length of the delay, whether there is sufficient ground to support an award of employees’ compensation to the applicant; and whether prejudice would be caused to the interests of the respondent if an extension of time is granted by the Court. This Court is of the view that these factors are relevant to the reason for the delay. The longer the delay, the more the applicant has to prove that his claim has an extremely high chance of success. A long delay will cause more prejudice to the interests of the respondent than a short one.
Reason for the delay
11. In considering the reason for the delay, the Court has to take into account the following factors:
(a) The age, education level, intelligence and background of the applicant;
(b) Generally speaking, an applicant’s ignorance of the law is not a reasonable excuse for the delay. On the contrary, if the applicant is sufficiently learned and knows how to make a claim, but fails to do so within the prescribed period, this is a factor to support the contention that the applicant has failed to provide a reasonable explanation for the delay;
(c) The health condition of the applicant: whether he was fully aware of the extent of his injury before the expiry of the prescribed period for the claim; or whether his failure to make the claim before the expiry of the prescribed period is because of his illness; and
(d) Whether the applicant’s failure to make a claim before the expiry of the prescribed period was induced by the conduct of or words said by his employer, insurance company, or a third party.
12. The above-mentioned is not meant to be an exhaustive list. This Court only sets out some relatively common factors here; whether the Court would grant an extension of time depends on the facts of each case.”
19.In my judgment, the applicant has failed to show a reasonable excuse justifying leave being given under ECO s 14(4).
(a) The 1st collision and the 2nd collision are matters within the applicant’s personal knowledge. There is no explanation as to why he did not raise these matter at any time before the commencement of DCEC 39/2014.
(b) The is no explanation as to why the applicant did not raise these collisions in DCEC 39/2014 until January 2017. Mr Leung has referred me to the documents showing that the applicant’s mental condition might not be satisfactory from 2015 until mid-October 2016. However, there is no explanation as to why he did not raise these 2 collisions at any time before 2015 or shortly after mid-October 2016.
(c) Although these proceedings have been stayed for a period for the parties to sort out the matters relating to expert evidence, there is nothing preventing or stopping the applicant from giving notice of these 2 collisions to the respondent during the stay period.
(d) Mr Leung said that the respondent only disclosed the CCTV Footage recently. However, there is no evidence from the applicant showing any linkage between the CCTV Footage and the present applications made by the applicant. As to why the applicant did not make these applications before the respondent disclosing the CCTV Footage but only made the applications after the disclosure, there is not a single word from the applicant on this question.
(e) At all times in these proceedings, the applicant was and is legally represented. He should know what is required to be done in order to introduce the 1st collision and the 2nd collision in these proceedings. He did not do so before the expiration of the 24-month limitation period. He also did not provide any reasonable excuse by his own affidavit to seek indulgence from the court to do so after the expiration of the limitation period.
(f) By now, it is more than 2 years after the expiration of the limitation period. There is serious delay in making the 2 applications.
(g) The pre-trial review and the trial have been fixed and will take place shortly. If the applications are allowed, the respondent may need to prepare evidence within a short period of time to meet the new case advanced by the applicant, or the pre-trial review and the trial may need to be re-fixed. It would not be fair to the respondent to require it to prepare evidence within a short time, for the respondent is entitled to have proper time to find the appropriate witnesses and to prepare the evidence. It would also not be fair to the respondent if the pre-trial review and the trial are re-fixed, for the respondent is entitled to have a trial to resolve all the disputes herein as soon as possible. Either way, there would be prejudice to the respondent which cannot be compensated by costs.
(h) Further, on the basis of the materials produced by the applicant, I do not see how the 1st collision and the 2nd collision would substantially affect the applicant’s claims in these proceedings.
20.In the circumstances, by the operation of ECO s 14(1), any claim relying upon the 1st collision and the 2nd collision would not be maintainable.
21.Having reached this conclusion, the proposed amendments must be refused.
22.The purpose of the 2nd supplemental witness statement is to give evidence relating to the 1st collision and the 2nd collision. In the light of the conclusion above, the application for leave to adduce the 2nd supplemental witness statement as evidence in trial must also be dismissed.
The 2 affirmations
23.As said above, Mr Leung has made an affirmation and Ms Wong has also made an affirmation in relation to these applications. With respect to Mr Leung and Ms Wong, I am of the view that the making and the filing of these 2 affirmations are not proper practice and should not be done.
24.It is trite that a solicitor should not give factual evidence on controversial issues in affidavit or affirmation on behalf of his or her client. Further, an affidavit or affirmation should contain evidence and not submissions. The courts have repeatedly urged the practitioners to pay attention to and observe these requirements.
25.In UES International (HK) Ltd v Maritima Maruba S A (HCA 632/2011, 10 November 2013), Anthony Chan J said:-
“13. I regret to say that this is not the only inappropriate action taken by the plaintiff’s solicitor. On the material before the court, the plaintiff’s solicitor has made a total of 7 affidavits on behalf of the plaintiff, including the one which grounded the Injunction … and those in relation to the present Summonses. Some of the contents of the affidavits are highly controversial and some of which are submissions made to advance the case of the plaintiff. It cannot be the role of a professional advisor to give evidence on contentious matters in respect of which he may be subject to cross-examination.
14. Rubric 41/5/4 of HKCP states as follows:
“Solicitors, duty of – A solicitor who has innocently put on the file an affidavit which he discovers to be false, owes a duty to the court, if he continues to act as solicitor, to put the matter right at the earliest moment (Myers v Elman [1940] AC 282). He may be ordered to pay costs of proceedings where his managing clerk is guilty of misconduct in preparing affidavits (ibid.).
An affidavit should where possible be sworn by the person with the most direct knowledge of the matters deposed to. This will usually be the party rather than his solicitor.”
15. In my view, solicitors should only give evidence on behalf of their client as a matter of exception which can be justified. As an example, where documents were served by a solicitor, it would be proper for him to make an affidavit to verify that matter. However, even where the client is abroad and his affidavit cannot be perfected in time, a draft of the same can be exhibited to that of his solicitor. ……
16. This same fault has been committed by the defendant’s solicitor. She has made no less than 8 affirmations on behalf of the defendant. Again, some of the contents are highly controversial and the affirmations contain much submissions. This is a matter which is so widespread that this court has found it necessary to advise solicitors to adhere to the rule on a regular basis. However, such advice has simply fallen upon deaf ears.
17. From now on, solicitors may be required to explain to the court why it is proper for them to make an affidavit on behalf of their client. In the absence of a satisfactory explanation, the costs of the evidence may be disallowed by the court.” (emphasis added)
26.Recently, in Chan Shu Moon v Director of Buildings (DCMP 2408/2016, 13 February 2017), I said:-
“No Submissions in affidavit or affirmation
40. I also take this opportunity to remind practitioners that an affidavit or affirmation should contain evidence and not submissions. It is improper and incorrect to make legal submissions in an affidavit or affirmation. If a party ignores this requirement and puts submissions in an affidavit or affirmation, the costs of preparation of that affidavit or affirmation may be disallowed.”
27.Mr Leung in his affirmation said:-
“5. In this Affirmation, I will strive to explain why the Applicant has taken out the present application at this late stage. For this purpose, I have prepared the following chronology of events and also, to the extent necessary, I will include the supporting documents / correspondence, which are referrable to the subject events. However, I have not included all of them, out of a desire to save costs (and no doubt, a lot of these documents have been filed into Court and recorded in the contemporaneous records anyway).”
28.Mr Leung tries to offer an explanation for the delay in his affirmation. As to the factual issues relating to the delay, those issues may well be controversial factual matters. These factual explanations should be offered by the applicant himself and should never be given by a solicitor acting for the applicant. As to submissions relating to the delay, those submissions should be made in written and oral submissions and should not be given in an affirmation.
29.Ms Wong’s affirmation is a lengthy affirmation. The majority of the contents therein are submissions. Those submissions should not be made in an affirmation. There is some factual evidence in the affirmation – the parts concerning Lee and Cheng. These parts would be evidence on the prejudice to the respondent. The prejudice point would involve controversial factual issues. Evidence on the prejudice point should be given by a director or an officer of the respondent, and should never be given by a solicitor acting for the respondent.
30.Sufficient reminders have been given by the courts to the practitioners previously. During the hearing, I told Mr Leung and Ms Wong that I was considering to make the following wasted costs order:-
(a) that the costs of preparation, filing, and service of Mr Leung’s Affirmation be disallowed between the applicant’s solicitors and the applicant; and
(b) that the costs of preparation, filing and service of Ms Wong’s Affirmation be disallowed between the respondent’s solicitors and the respondent.
31.I have invited Mr Leung and Ms Wong to make submissions on why I should not make the aforesaid wasted costs order. Mr Leung offers an undertaking that his firm would not charge the applicant for the preparation, filing and service of Mr Leung’s Affirmation. Ms Wong also offers an undertaking that her firm would not charge the respondent for the preparation, filing and service of Ms Wong’s Affirmation. I accept these undertakings. In these circumstances, I would not make the aforesaid wasted costs order.
Disposition
32.I dismiss the 2 applications made by the applicant. Ms Wong seeks indemnity costs. Mr Leung submits that costs should be on the normal party and party basis. While costs should follow the event, I do not see any special feature justifying indemnity costs. I order that costs of these applications are to be paid by the applicant to the respondent in any event. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.
33.I grant leave to the applicant to amend the application in DCEC 39/2014 by replacing “10:30 a.m.” with “9:44:26 a.m.” Costs of and occasioned by the amendments are to be paid by the applicant to the respondent in any event. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.
34.I thank Mr Leung and Ms Wong for the assistance provided.
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( MK Liu )
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District Judge |
Mr Anthony Leung of Leung & Associates, assigned by the Director of Legal Aid, for the applicant.
Ms Wong Lok Yan of Clyde & Co, for the respondent.
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