Tamang Bijay Bishal v. Ming Tai Construction Engineering Co Ltd and Another

DCEC 1929/2019

[2021] HKDC 664

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1929 OF 2019

---------------------

IN THE MATTER OF AN APPLICATION BETWEEN

---------------------

Before: Her Honour Judge Levy in Chambers (paper disposal)

Date of Call-Over Hearing: 12 April 2021

Date of 1^st and 2^nd Respondents’ Written Submissions: 26 April 2021

Date of Applicant’s Written Submissions: 4 May 2021

Date of Decision: 2 June 2021

--------------------

DECISION

--------------------

A. The Summons

1.These employees’ compensation proceedings pursuant to the Employees’ Compensation Ordinance^[1] were settled by a “Notice of Acceptance of Sanctioned Payment” dated 30 November 2020.  The monies paid into court were later paid out to the Applicant through his solicitors, Messrs How & Co (“HowCo”) on 22 December 2020.

2.On 23 February 2021, the solicitors for the 1^st and 2^nd Respondents, Messrs Cheng, Yeung & Co (“CYCo”) issued a summons pursuant to s 16 of the District Court Ordinance and Inherent Jurisdiction for an order that the Applicant do pay the Respondents’ fees (“Fees”) in the sum of $5,000.  The Fees are made of cancellation fees of $3,000 the Respondents had paid to the medical expert, Dr Lam, and the interpreter’s fees of $2,000.  The summons was supported by an affirmation of Wu Yaqing of CYCo.

3.On 3 March 2021, the Applicant filed the 4^th Affirmation of Tamang Bijay Bishal in opposition to the summons.

4.I directed the disposal of the summons on paper.  CYCo and counsel for the Applicant, Mr Kelvin Leung, have each lodged their written submissions.

B. The circumstances leading to the disputes

5.It is apparent that the summons’ reference to s 16 of the District Court Ordinance stated in the margin note is an error, and it should have been s 16 (of the Employees’ Compensation Ordinance).  From the correspondence exchanged between the parties’ solicitors, the following are the facts giving rise to the incurring of the Fees.

6.Pursuant to s 16, the Respondents, with the agreement of the Applicant, arranged a free medical examination by Dr Lam (“S 16 Examination”) on 24 July 2020.  A Nepalese interpreter was also arranged for the medical examination^[2].

7.The Applicant failed to attend the S 16 Examination at the appointed time of 3 pm.  The Applicant stated that he had coughing symptoms the day before the S 16 Examination and was concerned that he might have contracted Covid.  On the date of the S 16 Examination, he felt unwell.  He went to see a doctor, and was diagnosed with an upper respiratory tract infection.  When HowCo received the medical certificate from the Applicant, they emailed it to CYCo at 11:46 pm.  on the same day, and asked the latter to arrange another s 16(1A) medical examination.

8.After the Respondents were invoiced the cancellation fees of Dr Lam of $3,000 and the interpreter of $2,000, they demanded that the Applicant pay the Fees.  The Applicant refused to pay on the basis that the S 16 Examination was arranged without charge to the Applicant, and that the Respondents had failed to provide any legal basis for their demand.

C. Discussion

9.The S 16 Examination was arranged pursuant to s 16(1A), which provides:-

“An employer may require an employee who is in receipt of a periodical payment under section 10 to undergo a medical examination from time to time, without expense to the employee, and the employee shall undergo the examination.”

10.Accordingly, an injured employee shall be obligated to undergo such medical examination provided he is (i) paid the s 10 periodical payment; and (ii) not required to pay any expenses in connection with the medical examination.

11.The Respondents advanced two grounds in support of their application for the Fees by relying on (1) O 62 r 7 of the Rules of the District Court^[3] (“Ground 1”);  and (2) s 16(3) (“Ground 2”).

12.Order 62, r 7:-

“Costs arising from misconduct or neglect (O. 62, r. 7)

(1) Where in any cause or matter any thing is done or omission is made improperly or unnecessarily by or on behalf of a party, the Court may direct that any costs to that party in respect of it shall not be allowed to him and that any costs occasioned by it to other parties shall be paid by him to them.

(2) Without prejudice to the generality of paragraph (1), the Court shall for the purpose of that paragraph have regard in particular to the following matters, that is to say—

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

(a) the omission to do any thing the doing of which would have been calculated to save costs;

(b) the doing of any thing calculated to occasion, or in a manner or at a time calculated to occasion, unnecessary costs;

(c) any unnecessary delay in the proceedings.”

13.Section 16(3):-

“(3) If the employee is, in the opinion of any registered medical practitioner, registered Chinese medicine practitioner or registered dentist, unable or not in a fit state to attend on the registered medical practitioner, registered Chinese medicine practitioner or registered dentist named by the employer-

(a) that fact shall be notified to the employer; and

(b) The medical practitioner, Chinese medicine practitioner or dentist so named shall-

(i) fix a reasonable time and place for a medical examination of the employee; and

(ii) notify the employee accordingly.”

14.The Respondents submitted that since the cancelled S 16 Examination was caused by the Applicant’s neglect of his duty under s 16(3) in giving timely and reasonable notice to the Respondents of his unfit state to attend the S 16 Examination, the Applicant should bear the Fees.  In view of the fact that the Applicant, according to his averment in the affirmation, already had coughing symptoms for 2 days before the S 16 Examination, the Respondents submitted that the Applicant had had ample time to inform his solicitors of his unfit state.  Such conduct, CYCo submitted, amounted to unreasonable misconduct within the meaning of O 62, r 7(1).

15.I find the Respondents’ reliance on both O 62, r 7(1) and s 16(3) difficult to reconcile.  Order 62, r 7(1) empowers a court to regulate a party’s conduct in civil proceedings by a direction of costs against a party’s misconduct.  By contrast, s 16(3) has nothing to do with a party’s conduct in civil proceedings.  I believe its purpose is to address the harsh consequences provided in s 16(4)^[4] of suspension or extinguishment (as the case may be) of compensation in the event of an employee’s failure to undergo a s 16 medical examination.

16.In the circumstances, I reject the Respondents’ arguments for Ground 1 and do not accept that the Applicant’s failure to attend the S 16 Examination is misconduct or neglect within O 62, r 7.  I agree with Mr Leung’s submissions that O 62, r 7 simply does not apply to the present situation.

17.The Respondents’ arguments for Ground 2, in my view, are also devoid of merit.  The S 16 Examination was pursuant to s 16(1A), which is expressly to be “without expense to the employee”.  The provisions are silent as to whether the expenses incurred as a result of cancellation of a medical examination will be covered by s 16(1A). The Respondents do not have any authority to support their entitlement to the Fees which arose from the cancellation.  The only basis they put forward for their claim for the Fees is the allegation of the Applicant’s belated notification of his unfitness to undergo the S 16 Examination.

18.It is trite that a s 16 medical examination is for the benefit of the employer (to check against an employee’s sick leave abuse).  Hence, it is conducted “without expense” to the employee.  The law however is silent as to whether the extent of the employer’s expense obligations would include any expenses arising from unforeseen circumstances such as the present situation when the Applicant fell sick.

19.Having regard to the intention of the s 16 provisions, I am of the view that an employer should logically bear any reasonable expenses arising from the arrangement and cancellation of a medical examination under the s 16 provisions.

20.In this case, not only were the Respondents unable to put forward any legal basis to justify their claim for the Fees, they had also failed to inform the Applicant beforehand that he would need to pay the Fees in the event of a cancellation.  They only made such demand after they were invoiced. Further, I consider that the Respondents acted unreasonably in only issuing the summons after the entire proceedings were disposed of.

21.For these reasons, I am not satisfied that there is any basis for the Applicant to pay the Fees, and I dismiss the summons.

D. Order

22.I grant the following orders:-

(1) The Respondents’ summons is dismissed;

(2) There be a costs order nisi that the Respondents do pay the Applicant’s costs on an indemnity basis with certificate for counsel, to be summarily assessed in lieu of taxation.  The Applicant shall within 14 days of the absolute order, lodge with the court and serve on the Respondents a statement of costs for summary assessment, and the Respondents shall within 14 days thereafter lodge and serve their list of objections; and

(3) The nisi order shall become an order absolute if no application is made within 14 days to vary it.

Mr Kelvin Leung, instructed by How & Co, for the applicant

Ms Wu Yaqing, of Cheng, Yeung & Co, for the 1^st and 2^nd respondents at the hearing on 12 April 2021