Mohammad Irfan v. Jhk Security Ltd and Another

DCEC 1259/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1259 OF 2013

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DECISION

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1.This is my decision on the summons taken out by the applicant on 29 October 2013 applying for interim payment against the 1^st respondent.

Background

2.The applicant alleges that an accident at work happened to him on 19 January 2013 while he was working for the 1^st respondent at the Hotel LKF (“the Hotel”) as a security guard.

3.The 1^st respondent disputes that the applicant had met with the accident on the date of the alleged accident.

4.It is trite law that for an applicant to succeed in an application for interim payment, the court must be satisfied that, if the claim were to go to trial then, on the material before the judge at the time of the application for interim payment, the plaintiff or applicant would succeed in his claim, and would obtain a substantial amount of damages: see para 29/11/1 Hong Kong Civil Procedure 2014 at p 679.

5.In deciding whether the applicant would succeed in the trial, the court must be satisfied on the balance of probabilities; the court need not be satisfied beyond reasonable doubt: see para 29/11/1 of Hong Kong Civil Procedure 2014 at p 679.

Discussion

6.On the material before me, it is clear that there is a serious dispute on facts between the applicant and the 1^st respondent in this case.

7.On one hand, the applicant says that he had informed the security officer/supervisor at the Hotel one Mr Gurung of the accident immediately after it happened.

8.He however continued to work at the Hotel upon the request of Mr Gurung and his boss, who is the director of the 1^st respondent, one Mr Singh.  The applicant says that this explained why he did not go to the hospital for treatment until the evening of 20 January 2013 and continued to work in the few days after the alleged accident.

9.On the other hand, the 1^st respondent says that the accident did not happen, as the applicant had completed the shift on 19 January 2013 without any reported incident or injury.  He further attended overtime night shift from 10:30 pm on 19 January 2013 till 2:30 am on 20 January 2013.  And on 20 January 2013, the applicant commenced his day shift at 7:30 am until he finished working at 7:30 pm on that day.

10.In was only when the applicant failed to report for duty on 21 January 2013 that Mr Singh allegedly made phone calls to the applicant enquiring the reason for his absence.  However, Mr Singh allegedly could not reach the applicant.  The applicant also failed to report for duty on 22 January 2013.  23 January 2013 was his scheduled rest day.

11.On 24 January 2013 when the applicant returned to work at the Hotel, he allegedly informed Mr Gurung that he failed to report for duty on 21 and 22 January 2013 due to a sprained ankle.  According to the 1^st respondent, the applicant was able to complete his duty on 24 January 2013 without any difficulty.

12.On 25 January 2013 when the applicant failed to report for duty again, Mr Singh made further enquiry on the telephone enquiring the reason for his absence but was not successful.

13.The 1^st respondent claims that the applicant had never reported to Mr Gurung of any accident which happened during his course of his employment on 19 or 20 January 2013.  When the applicant resumed duty on 24 January 2013, the applicant also allegedly did not inform Mr Gurung that he had sustained any injury during the course of his employment.

14.Enquires made by the 1^st respondent with 2 colleagues of the applicant also allegedly confirmed that the applicant carried out his work as usual and without difficulty on 19 and 20 January 2013.  Further, that the applicant was allegedly able to work normally without any limping gait.

15.The applicant however says that Mr Singh was aware of the accident as he had sent a number of text messages to the applicant on various dates, including the fact that he was aware that the applicant was being hospitalised at the time.  However, those text messages did not contain any “admissions” that the 1^st respondent was aware of any alleged accident happened to him while at work. 

16.In my view, it is apparent that there are a number of serious factual disputes which cannot be decided by the court on affidavit evidence only in this case.  On the material before the court at the moment, it is not possible to say whether, on a balance of probabilities, the applicant is likely to succeed or not on the issue of liability.  Similarly, the court cannot say, based on the material before me, that the 1^st respondent has no arguable defence or that there are sufficient doubts regarding the genuineness of the defence.

17.I cannot see how the court will be able to resolve those factual disputes without hearing the oral evidence to be given by the different witnesses and by allowing the parties the opportunity to cross-examine the other side’s witness or witnesses at trial.  All these are matters for the trial judge and cannot be determined a judge hearing an interim payment application.

Conclusion

18.In the circumstances, I am not satisfied that the applicant has, on the material before me, established that he is likely to succeed in his claim in the present case and that the 1^st respondent does not have any arguable defence.  Hence, the applicant’s summons for interim payment is hereby dismissed.

19.I would now like to hear the parties on the issue of costs and further directions as to management of the case.

[Discussion on costs and management directions]

20.Having heard the parties’ submissions, I order that the costs of the application be to the 1^st respondent, such costs to be taxed if not agreed.

21.I make no further management directions for the case as the parties agreed that the order made by Deputy Judge A Yim on 26 November 2013 have sufficiently taken care of them to ensure the reasonable progress of the case. 

Mr KH Mak of MCA Lai & Co, for the applicant

Mr Ringo Kwong of Winnie Leung & Co, for the 1^st respondent