Poon Chi Yan v Jsi Logistics (Hong Kong) Ltd

Judgment Date05 April 2017
Citation[2017] 2 HKLRD 922
Judgement NumberDCEC40/2014
CourtDistrict Court (Hong Kong)
Subject MatterEmployee"s Compensation Case
DCEC1769/2012 POON CHI YAN v. JSI LOGISTICS (HONG KONG) LTD

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
POON CHI YAN Applicant
and
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...

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