Sadiq, Muhammad v. City Gas Piping Engineering Co and Another
Read the full judgment text of DCEC 173/2006 on BabelCite. This District Court judgment.
1. The Applicant claims for employees’ compensation in respect of personal injuries by accident on 9 th March 2005 at a construction site near the riding school in Pokfulam. The Applicant says that he was using an electric drilling machine to demolish a concrete wall when he fell and sustained injury to the middle finger of his left hand. He claims that the accident arose out of and in the course of employment with the 1 st Respondent, who was the sub-contractor of the 2 nd Respondent.
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DCEC173/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES’ COMPENSATION CASE NO. 173 OF 2006 ------------------------ BETWEEN
------------------------ Coram: H H Judge Marlene Ng in Chambers (open to the public) Date of Hearing: 26th September 2006 Date of Ruling: 26th September 2006 Date of Handing Down Reasons for Ruling: 28th September 2006 ----------------------------------------------------- REASONS FOR RULING ON COSTS ----------------------------------------------------- Introduction 1.The Applicant claims for employees’ compensation in respect of personal injuries by accident on 9th March 2005 at a construction site near the riding school in Pokfulam. The Applicant says that he was using an electric drilling machine to demolish a concrete wall when he fell and sustained injury to the middle finger of his left hand. He claims that the accident arose out of and in the course of employment with the 1st Respondent, who was the sub-contractor of the 2nd Respondent. 2.The Applicant also appeals under section 18 of the Employees’ Compensation Ordinance Cap.282 (“Ordinance”) against the certificate of review of assessment dated 23rd December 2005. 3.Messrs Burke, Fung & Li (“BFL”) issued the Application on behalf of the Applicant on 8th February 2006. Messrs W K To & Co (“WKT”) acted on behalf of the 1st and 2nd Respondents and filed an Answer on 29th March 2006 denying the Applicant’s claim. The 1st and 2nd Respondents specifically denied there were any accident and further denied the Applicant’s description of the accident. However, it appears from the letter from WKT to BFL dated 26th June 2006 that the 1st and 2nd Respondents no longer disputed their contractor relationship. 4.BFL wrote to the 1st Respondent on 27th February 2006 to advise that the Applicant had suffered injury to his left middle finger as a result of the accident and that the Applicant had filed an application for appeal against the certificate of review of assessment. Six medical reports from the Princess Margaret and Queen Mary Hospitals were enclosed. Call over hearing on 21st April 2006 5.At the call over hearing on 21st April 2006 before me, I made inter alia the following directions :
6.Indeed, at the call over hearing, I queried whether an orthopaedic or neurological expert would be appropriate. Mr Burke, solicitor for the Applicant, informed me that the Applicant complained of pain at the tip of his injured finger which in his experience was likely to be caused by damage to the nerves to the tip of his finger. On such basis the Applicant asked for leave to file neurological expert report. Ms Chan, then solicitor for the 1st and 2nd Respondents, also sought leave to file and serve expert neurological report and agreed to above directions. Correspondence between the parties 7.The 1st and 2nd Respondents did not nominate any neurological expert or arrange for joint examination of the parties’ respective neurologists within 14 days. On 6th May 2006 BFL issued a reminder letter to WKT but there was no response. 8.BFL advised WKT by letter dated 22nd May 2006 that they assumed from the lack of response that the 1st and 2nd Respondents would not instruct any expert neurologist and that an appointment with Dr Brian Choa had been confirmed for 26th May 2006. 9.WKT’s reply letter on 23rd May 2006 queried whether the Applicant’s injuries should in fact be orthopaedic in nature and asked for confirmation as to precise nature of the Applicant’s injuries before appointing an expert for the 1st and 2nd Respondents. 10.As advised in BFL’s letter to WKT, Dr Brian Choa conducted single examination of the Applicant on 26th May 2006. 11.BFL’s reply letter of 29th May 2006 reiterated what Mr Burke informed this court at the call-over hearing, namely, that the Applicant complained of pain in the tip of the injured finger and that this was likely to be caused by damage to the nerves in the tip of the finger, so for such reason BFL considered that an examination by a neurologist was necessary and proper. 12.The matter was left in abeyance until almost a month later. On 26th June 2006, WKT advised BFL by letter they had made a tentative appointment with Dr Edmund Woo as the 1st and 2nd Respondents’ neurological expert to medically examine the Applicant on 25th August 2006 and asked whether the Applicant would be available. 13.As was apparent from the submissions by Ms Ho, solicitor for the 1st and 2nd Respondents at the present hearing, the examination by Dr Edmund Woo was intended to be a single examination. 14.BFL suggested in their reply letter dated 28th June 2006 that in failing to comply with my directions for joint examination, the 1st and 2nd Respondents had lost the right to arrange for expert neurological examination. 15.On 19th July 2006 WKT wrote to BFL and referred to my directions of 21st April 2006. WKT asked whether the Applicant and Dr Brian Choa would be able to attend the proposed examination on 25th August 2006. 16.BFL replied on 20th July 2006 to say that following the 1st and 2nd Respondents’ failure to nominate a neurological expert for joint examination, the Applicant had obtained Dr Brian Choa’s report dated 29th May 2006 (which was served with the letter). They asked whether the 1st and 2nd Respondents had any queries regarding the report which could be put to Dr Brian Choa to respond. 17.On 2nd August 2006, BFL wrote again to WKT to reiterate (a) my directions of 21st April 2006 and (b) the 1st and 2nd Respondents’ default in nominating an expert within 14 days. BFL went on to note that despite their invitation no questions were put forward for Dr Brian Choa to respond, so they assumed Dr Brian Choa’s report was agreed. 18.WKT replied on 12th August 2006 setting out the 1st and 2nd Respondents’ stance, which formed the bedrock of Ms Ho’s submissions for the present hearing. For convenience, the matters raised in WKT’s letter and Ms Ho’s submissions can be summarised as follows :
19.WKT in their letter of 12th August 2006 relied on section 16 of the Ordinance to say it was improper for the Applicant to refuse to attend the medical examination by Dr Edmund Woo as arranged by the 1st and 2nd Respondents. WKT also denied the 1st and 2nd Respondents had lost the right to arrange for expert neurological examination by failing to comply with my directions of 21st April 2006 (which was denied) since the court had not debarred them from adducing expert evidence or arranging expert neurological examination. 20.On 14th August 2006, BFL responded to WKT’s letter of 12th August 2006 by maintaining the Applicant’s stance and asking whether the 1st and 2nd Respondents were willing to pay the costs of and occasioned by a joint medical examination and report by Dr Brian Choa and Dr Edmund Woo in any event. 21.On 24th August 2006, WKT wrote to BFL to ask inter alia whether the Applicant would alternatively attend medical examination by Dr Edmund Woo on 3rd October 2006. 22.On 29th August 2006, BFL replied to deny that the Applicant refused to be examined by a neurologist appointed by the 1st and 2nd Respondents. BFL repeated that despite the 1st and 2nd Respondents’ default in compliance with my directions, BFL would advise the Applicant to agree to a further examination provided that the 1st and 2nd Respondents agreed to pay all costs of the same in any event. BFL took issue over the applicability of section 16 of the Ordinance since the proposed examination by Dr Edmund Woo was intended to be an examination by a medical expert for the purpose of litigation and was subject of court directions for such purpose. BFL invited the 1st and 2nd Respondents to apply to the court for further directions should they be unwilling to pay for the extra costs for a further joint examination/report by Dr Brian Choa and Dr Edmund Woo. 23.WKT replied on 31st August 2006 to say that Dr Brian Choa was not required to participate in the proposed single medical examination by Dr Edmund Woo. The 1st and 2nd Respondents were willing to bear the Applicant’s travelling expenses for the medical examination, so there would be no extra costs or any prejudice to the Applicant. WKT contended it was unjustified for the Applicant to refuse the single examination by Dr Edmund Woo. It was only if the court were not satisfied with the reports by Dr Brian Choa and Dr Edmund Woo that a joint report would become necessary and the issue of extra costs could be dealt with then. WKT also denied that Dr Brian Choa’s report was agreed. Present hearing 24.The above dispute on neurological examination as well as other issues of which I was not concerned with at the present hearing were brought to the court’s attention through BFL’s letter to the court dated 5th September 2006. WKT was invited to confirm whether such dispute and other issues outlined by BFL were being contested. Subsequently, from BFL’s and WKT’s correspondence, it was plain that such dispute and other issues needed to be resolved, but the dispute concerning the neurological examination was more pressing since the proposed medical examination was due to be held on 3rd October 2006. So on 22nd September 2006 I directed that the parties do attend a hearing on 26th September 2006 to deal with the issue of neurological examination/report. 25.At the present hearing, Ms Ho confirmed it was the 1st and 2nd Respondents’ primary stance that a single examination by Dr Edmund Woo would be sufficient. Ms Ho alternatively proposed a joint examination by Dr Brian Choa and Dr Edmund Woo after the Applicant has completed the treatment recommended by Dr Brian Choa in his report. 26.Such alternative stance first appeared in Ms Ho’s written submissions handed up to the court at the present hearing and was the result of very recent developments. 27.BFL wrote to WKT on 13th September 2006 and referred to Dr Brian Choa’s recommendation (in his report and in his supplemental letter dated 11th September 2006) for the Applicant to undergo further treatment by a neurologist or pain expert. BFL indicated the Applicant’s intention to proceed with such treatment in order to maximise recovery of his employment potential. 28.On 20th September 2006, WKT queried whether the proposed pain expert was engaged as expert for the present proceedings or as treating doctor. 29.I was informed by the parties at the present hearing that (a) BFL had confirmed to WKT the proposed pain expert was intended to be a treating doctor and (b) the Applicant had received interim payment from the 1st and 2nd Respondents for proceeding with the treatment proposed by Dr Brian Choa. 30.Mr Burke informed me that the Applicant had no objection to the 1st and 2nd Respondents’ alternative stance. Ms Ho confirmed that in such circumstances, the 1st and 2nd Respondents would not insist on their primary stance. According to Dr Brian Choa, the treatment might have to be continued for six months. Both parties agreed it would be inappropriate to give directions for joint examination and report by the expert neurologists more than half a year away and it would be more sensible to provide for progress reports on the intended treatment with liberty to apply for directions in relation to expert neurological examination/report in due course. 31.I therefore made the following directions at the present hearing :
32.I did not give any directions as to the discovery of the medical notes and report(s) of the proposed treating doctor that may come into existence in due course. This is a matter that should be left to the good sense of the parties in complying with the obligation for on-going discovery. 33.Mr Burke and Ms Ho agreed it was unnecessary for me to deal with the question of the costs of the intended joint examination/report by Dr Brian Choa and Dr Edmund Woo. Since the proposed medical examination on 3rd October 2006 would not take place but would be deferred until after completion of the recommended treatment, both parties sensibly agreed that such costs should be in the cause. 34.Thus, the remaining issue is where the costs of the present hearing should lie. At the hearing, I made the following costs order :
I informed the parties I would hand down my reasons for the ruling on costs and this I now do. Costs of the present hearing 35.I am afraid I am not with Ms Ho on her submissions. The stark fact (and it was conceded by Ms Ho) is that the present hearing was an application by the 1st and 2nd Respondents for enlargement of time to comply with my directions on 21st April 2006. First, they failed to comply with my directions to nominate a neurologist expert for joint examination within 14 days. Secondly, when they first nominated Mr Edmund Woo on 26th June 2006, the proposed date of the medical examination let alone the finalisation of his report for filing and service was long after the 90-day deadline that fell on 20th July 2006. Where a party applies to court for indulgence or enlargement of time, he normally has to bear the costs of the application. 36.But Ms Ho contended on the basis of her submissions outlined in paragraph 18 above that the unfortunate state of affairs was brought about through the Applicant’s fault. 37.In respect of Ms Ho’s arguments in paragraph 18(a) above, they do not sit well with what happened at the call-over hearing on 21st April 2006. At such hearing Ms Chan on behalf of the 1st and 2nd Respondents sought leave to file and serve a neurological expert report and agreed to have such expert report prepared on a joint basis with the joint examination arranged within 14 days. Had there been a need to clarify the nature of the Applicant’s injuries before a decision could have been made on whether to appoint a neurologist, in light of the court-ordered timetable, such enquiries should have been made well before the 14-day deadline for arranging joint examination. No such query was raised prior to the 14-day deadline or even shortly thereafter despite BFL’s reminder of 6th May 2006. 38.Further, on query by the court, Mr Burke had at the call over hearing on 21st April 2006 explained why a neurologist would be appropriate and his view was reiterated in BFL’s letter of 29th May 2006. Despite such clarification and my directions of 21st April 2006 imposing a 14-day deadline, the 1st and 2nd Respondents took no action to nominate a neurologist expert until 26th June 2006. 39.It was incumbent on the 1st and 2nd Respondents who had defaulted compliance of my directions to apply to the court either before or after the deadline for enlargement of time on good grounds given. This was not done. 40.The parties were granted leave to file and serve expert neurological reports, but ultimately they could choose whether to adduce expert medical evidence or not. It is not for this court or a party to compel the other litigant to nominate an expert or to adduce such expert evidence. Once the 1st and 2nd Respondents chose not to avail themselves of the opportunity given by my directions to arrange for a joint medical examination and in light of the absence of any request by letter or application to the court for enlargement of time, I cannot see how the Applicant can be faulted for proceeding with arranging a single examination by Dr Brian Choa to comply with my directions for the filing and service of expert neurological reports within 90 days. 41.For the same reasons, I am also not with Ms Ho in respect of her arguments in paragraph 18(b) above. I also see no reason why the Applicant who has every interest to progress his claim as quickly as possible should defer preparation of his own expert evidence to accommodate a defaulting opposite party who chose not to nominate any expert for joint examination as required under court directions or seek enlargement of time to do so. The normal approach (and I see nothing to suggest it should be departed from in the present case) is for the defaulting party to seek indulgence from the court. 42.It was next suggested that the Applicant adopted an obstructive approach in refusing to be medically examined by Dr Edmund Woo and Ms Ho prayed in aid section 16 of the Ordinance. It is unnecessary for determining the issue of costs of the present hearing to consider whether section 16 of the Ordinance is applicable although I see much force in Mr Burke’s argument that the proposed medical examination by Dr Edmund Woo is an examination by a medical expert for the purpose of litigation pursuant to Order 38 of the Rules of the District Court rather than a statutory examination under section 16 of the Ordinance. 43.Even if there had been some early refusal by the Applicant to be examined by Dr Edmund Woo (on which I form no conclusive view), the Applicant through BFL made clear in correspondence in mid-August 2006 that he was willing to submit to joint examination by Dr Brian Choa and Dr Woo. Mr Burke also made clear at the present hearing that the Applicant would submit to a single medical examination if so ordered by the court. 44.Ms Ho submitted that the 1st and 2nd Respondents were not debarred from adducing expert evidence or arranging expert neurological examination. Whilst I agree that there is no express order to such effect, the 1st and 2nd Respondents should not forget they were out of time in respect of my directions and had to apply for indulgence to file and serve expert neurological report out of time. 45.Mr Burke submitted that by their alternative stance the 1st and 2nd Respondents had conceded that it was inappropriate to have a single examination by Dr Edmund Woo. I do not agree. The alternative stance was based on the recent indication by the Applicant that he would undergo the treatment proposed by Dr Brian Choa. In light of both parties’ agreement on the way forward, the court did not form any view on whether a single or joint expert examination would have been appropriate but for the intervention of the proposed treatment. 46.But this still does not remove the reality that the 1st and 2nd Respondents were late and they have to seek indulgence from the court. I also note that despite the intervention of the proposed treatment, the 1st and 2nd Respondents’ primary stance up to the present hearing was that (a) the Applicant could be medically examined by Dr Edmund Woo alone at this stage and (b) a joint report could have been be obviated if the views of both Dr Brian Choa and Dr Edmund Woo’s views were similar. Since this was the 1st and 2nd Respondents’ primary stance, they were in essence seeking indulgence of the court for enlargement of time. In those circumstances, it is only appropriate that they should bear the costs of the present hearing. 47.For the avoidance of doubt, the above views on the filing and service of expert neurological reports and on joint medical examinations are confined to the facts of the present case.
Representation: Mr Patrick Burke of Messrs Burke, Fung & Li for the Applicant. Ms Joyce Ho of Messrs W K To & Co for the 1st and 2nd Respondents. |