WONG MAU CHING v. YAU LEE CONSTRUCTION COMPANY LTD AND ANOTHER

bjbj DCEC 502/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEES COMPENSATION CASE NO 502 OF 2014 -------------------- BETWEEN WONG MAU CHING Applicant and YAU LEE CONSTRUCTION COMPANY LIMITED 1st Respondent YAU LEE - HSIN CHONG JOINT VENTURE 2nd Respondent -------------------- Before: Deputy District Judge Mak in Chambers Date of Hearing: 16 June 2014 Date of Decision: 18 June 2014 ------------------ DECISION ------------------ Introduction By her summons dated 10 April 2014, the applicant applied for interim payment in the sum of $168,154.66 pursuant to Order 29 rule 10 of the Rules of District Court. The summons was drafted in such a way that it was against one of the two respondents. At the hearing, Mr Lam who appeared for the applicant clarified that the application was indeed against both respondents. Background The applicant was employed by the 1st respondent as a construction site worker. On or about 17 February 2013, the applicant was assigned to go to the 16th floor of a building at the former Kai Tai Airport site. She needed to take a manually-operated elevator firstly to the 19th floor of the building. When she walked out of the elevator on the 19th floor, the lift operator fell down whereby her head and safety helmet hit the right foot of the applicant ("the 1st accident"). As a result, the applicant sustained injury to her right ankle. It is alleged that the supervisor of the applicant refused to take her to the ground floor by the elevator. She was forced to walk down to the ground floor. When she reached around 10th floor, she slipped and fell with her left arm hitting the steps of the staircase ("the 2nd accident"). As a result, her left elbow was injured. The 1st respondent denied that the safety helmet of Madam Wong Siu Wa ("Madam Wong", the elevator operator) did cause any injury to the applicant. The 1st respondent further denied that the 2nd accident had occurred at all. The 1st respondent further alleges that at or about 10.45 a.m. on 17 February 2013, the applicant suddenly pushed the metal door of the rest room on the 2nd floor forcibly and shouted at Madam Wong. A quarrel between them ensued, in the course of which the applicant threw objects inside the rest room. Mr Chueng Chi Wa and Mr Tam Chun Lam, the supervisors of the 1st respondent, were summoned to the rest room. The applicant did not inform them that she was injured on her right ankle and/or left elbow. Legal principle Order 29 rule 11 of the Rules of District Court provides:- "(1) If, on the hearing of an application under rule 10 in an action for damages, the Court is satisfied:- that the defendant against whom the order is sought (in this paragraph referred to as "the respondent") has admitted liability for the plaintiff's damages, or that the plaintiff has obtained judgment against the respondent for damages to be assessed; or (c) that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them, the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just ..." To make an order under this rule, the court must be satisfied on the balance of probabilities: see Hong Kong Civil Procedure 2014 at 29/11/1. Discussion Liability is disputed in this case. The allegation of the applicant is strenuously disputed by the respondents. Apart from the fact that Madam Wong did fall on the elevator whereby her safety helmet rolled to a spot near the foot of the applicant, every allegation of the applicant was denied by the respondents. Inevitably, the court has to decide upon the dispute in facts at the trial after hearing the evidence of all factual witnesses. The applicant will be cross-examined by the respondents at the trial. As pointed out by Miss Cho, who appeared for the respondents, issues will be taken on the 1st Notification of Accident to the Labour Department dated 15 March 2013 in which she made no mention of the 2nd accident. Issue will also be taken on Medical Report issued by Tuen Mun Hospital dated 27 November 2013 in which it was stated that the mode of injury could not be determined. Mr Lam submitted that the respondents' case is that the applicant had a quarrel with Madam Wong in the rest room on the day of the alleged accidents. As such, even taking the respondents' case to the highest, it does not disprove the occurrence of the 2nd accident. He submitted, therefore, the applicant was still injured in the course of employment. With respect, I do not think the matter is as simple as Mr Lam has put it. In assessing whether the applicant's version of events is to be believed, the tribunal of facts will of course look at the whole circumstances, including (without limitation), if it was probable for the applicant to enter into a heated quarrel with Madam Wong after the occurrence of 2 accidents which had caused injuries to her right ankle and left elbow. The question is, at this interlocutory stage, can the applicant satisfy this court that on balance of probabilities, she would be able to obtain judgment for the sum she is seeking by her summons under s 10 the Employees' Compensation Ordinance? It seems to me that the applicant's case stands or falls on her own credibility. The court as the tribunal of facts must consider the evidence of the applicant vis-a-vis the evidence of the respondents. The trial judge will have the opportunity to observe the applicant in the witness box, particularly under cross-examination. Likewise, the trial judge will also do the same to the witnesses of the respondents. Without doubt, the applicant will have a lot to explain at the trial. In saying this, I am not expressing any view on the credibility issue. Having said that, however, I still need to consider whether or not I am satisfied on the balance of probabilities that the applicant would obtain judgment at the end of the day. In view of the circumstances of this case, I must say that I am unable to answer the question in the affirmative. I would add that Mr Lam's submission that the applicant is encountering financial difficulties has no bearing to the application. Conclusion and order For the above reasons, I am bound to dismiss the applicant's application. Costs Costs will follow the event. I order that the applicant shall pay the respondents costs of this application, to be taxed if not agreed. The applicant's own costs shall be taxed in accordance with Legal Aid Regulations. 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