DAMAI SHYAM PARSAD v. PACIFIC CROWN SECURITY SERVICES LTD AND OTHERS

DCEC 2603/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2603 OF 2014

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DECISION ON COSTS

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INTRODUCTION

1.  The 1^st to 3^rd respondents (“the respondents”), by way of summons, apply to vary the costs order nisi granted in the judgment of this employees’ compensation application (“the Application”) which was handed down on 10 February 2017 (“the Judgment”).

THE JUDGMENT

2.  In the Judgment, the applicant alleged an accident had occurred on 31 July 2013 when he was working as a rigger in the course of employment with the respondents.  He claimed he had sustained serious injury when 4 gas cylinders (each of them weighed 80 kgs) had fallen onto his body.  The applicant’s evidence was incredible and was rejected.  I dismissed the Application and awarded costs on a nisi basis to the respondents with certificate for counsel, to be taxed if not agreed.

THE RESPONDENTS’ SUMMONS FILED ON 24 FEBRUARY 2017

3.  The respondents apply for an order to vary the costs order nisi in the Judgment to the extent that the costs of the Application be paid by the applicant to the respondents, to be taxed on an indemnity basis, with certificate for counsel.

4.  Mr Mcdaid, solicitor for the respondents, submitted an indemnity costs order is justified because the applicant’s evidence was rejected.  The court found the alleged accident on 31 July 2013 did not occur.  The respondents’ solicitors have duly raised the weakness of evidence of the Application to the applicant, including but not limiting to highlighting the inconsistencies in evidence prior to trial, the applicant should not have proceeded with the Application.

5.  Mr So, solicitor for the applicant opposed to the respondents’ summons.  He submitted the respondents’ case could not meet the requirement for an indemnity costs order.  The costs order in the Judgment should be undisturbed.

6.  Mr So complained the respondents had ambushed the applicant in applying for writ of subpoena to one of their witness, Thomas Chan, on the 1^st day of trial of this action.  For this reason, the applicant was incapable to be duly advised the strength of his Application in terms of evidence.

LEGAL PRINCIPLES

7.  Order 62 rule 28(3) of the Rules of District Court, Cap 336H conferred the court with the power to award costs be taxed on indemnity basis and yet it remains a discretion.

8.  The legal principles on the occasion where costs on indemnity be awarded are well settled.  In Kwan Chui Kwok Ying & Anor v Tai Wai Chun & Ors, HCMP 2996 of 1990, 30 May 2006, DHCJ To (as he then was) summarized in paragraphs 24 – 26 of the judgment,

“Applicable legal principles on indemnity costs

24.  A successful party may have his costs taxed on a party and party basis, common fund basis or indemnity basis. The principles governing award of indemnity costs is well settled. It is also a matter of discretion. Since the decision of Godfrey J (as he then was) in Overseas Trust Bank Ltd and Coopers & Lybrand (a firm) and Others and Peat, Marwick, Mitchell & Co (a firm) and Another [1991] 1 HKLR 177, it has been settled that a taxation of the successful party’s costs on an indemnity basis could be properly ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner, or prosecuted in circumstances as to constitute an affront to the court. But the power to order indemnity costs may only be exercised when the court feels a proper sense of indignation at the unsuccessful party’s conduct. In Sung Foo Kee Ltd v Pak Lik Co (a firm) [1996] 3 HKC 570, Godfrey JA (as he then was) further extended the court’s power to order taxation on an indemnity basis against litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake. He also suggested that judges should not be slow to make such order in appropriate cases. In Choy Yee Chun v Bond Star Development Limited, CACV 225/1996, the Court of Appeal further extended this power to cases where the conduct of a party is of a more venal kind or where the conduct of the litigation has in some sense been wicked.

25.  The focal point is the conduct of the unsuccessful party. The court must not be slow in ordering indemnity costs but it may only do so if it feels a proper sense of indignation at the unsuccessful party’s conduct. The burden of proof rests on the successful party who seeks such an exceptional costs order.

26.  If the unsuccessful party institutes legal action or persists in defending one knowing that he has no reasonable ground to do so, it is some evidence of scandalous, vexatious, malicious and oppressive conduct.  Here, the burden is on the successful party to prove that the unsuccessful party knows he has no reasonable cause of action or defence.”

9.  In turn, Mr Mcdaid relied on Lee Sau Fat v F H Security Services Company Limited, HH Judge Anthea Pang (as she then was), DCPI 1471 of 2008 (heard together with DCEC 120 of 2007), 21 December 2010.  In this decision, the learned judge awarded the successful party an indemnity costs order.  The facts in Lee Sau Fat are similar. The application was dismissed for reason that the accident did not happen as alleged.  The learned judge found in paragraphs 7 and 9:-

“7.  Clearly, all the above pointed to the fact that the 3^rd accident did not happen at all and Madam Lee should know very well what the truth was. However, she came to court to test her luck and hope that she would succeed in making out her claims. When giving evidence, Madam Lee did not only exaggerate matters, she indeed fabricated new injuries which she had never mentioned in any of her previous statements.

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9.  It is clear from the above that Madam Lee’s claims were unmeritorious and misconceived at the outset.  It was oppressive for Madam Lee to have instituted these two sets of proceedings against her employer FH when no accident had happened as alleged.”

DISCUSSION

Thomas Chan’s evidence

10.  Mr So complained the respondents’ conduct was unreasonable and had taken the applicant by surprise. At all times, the respondents had only adduced witness statement of Khadka Bed Bahadur, a director of the 1^st respondent, whom has been called as the defence witness.  On the 1^st day of trial, the respondents applied for a writ of subpoena to be served on Thomas Chan, an employee of the 2^nd respondent. Thomas Chan attended trial on the 2^nd day and had given evidence on the 3^rd day.  By this gesture, the applicant is being deprived of an opportunity to be properly advised on the evidence of the Application.  Albeit the respondents are the successful parties, the usual costs order awarded in the Judgement shall remain undisturbed.

11.  I do not accept the situation was what Mr So has submitted. The applicant was duly represented by counsel at trial.  The respondents made an application for issuing the writ of subpoena to call Thomas Chan as their witness on the 1^st day of trial, be it an ex parte application, the counsel for the respondents did it in open court.  The counsel for the applicant raised no objection to the respondents’ application.  Upon clarification by the counsel for the respondents that trial dates would not be derailed, leave was granted to issue the writ of subpoena.  When Thomas Chan arrived in court on the 2^nd day of trial, the counsel for the applicant agreed Thomas Chan to be called as a defence witness.  After having heard the evidence of Thomas Chan, the counsel for the applicant made no application to stand down trial to further advise the applicant on evidence, she proceeded to cross examine Thomas Chan.

12.  The applicant was duly represented by counsel during trial, the applicant’s stance, as conveyed to court by his counsel, for calling Thomas Chan at trial was no opposed in the outset.  I disagree with Mr So that the applicant can now rely on the conduct of the respondents in this application.

THE FINDINGS IN THE JUDGMENT

13.  The gist of the factual findings in the Judgment are mainly, (i) the alleged accident on 31 July 2013 did not occur; (ii) the applicant had worked as usual on 1 August 2013; (iii) the applicant was being notified of the termination of employment contract by the 1^st respondent in early evening of 1 August 2013; (iv) the applicant went to Pok Oi Hospital at late evening on 1 August 2013 for treatment and (v) the applicant went to the office of the 1^st respondent in Tuen Mun to submit sick leave certificate and had claimed he was injured at work on 31 July 2013.  The medical evidence of the applicant did not support his case.  The factual findings themselves reflected not only the evidence of the applicant was incredible, in a way similar to Lee Sau Fat, the applicant had commenced the Application because of bad faith, or as a personal vendetta, or in an improper or oppressive manner against the respondents because his employment was terminated by the 1^st respondent.

CONCLUSION

14.  Having considered the parties’ submissions and relevant legal authorities, I conclude the application in respondents’ summons is justified.  I therefore exercise discretion that the costs order nisi be varied.

15.  I make the following order:

(i) The costs order nisi awarded in the Judgment dated 10 February 2017 be varied as “the costs of the Application to be paid by the applicant to the respondents on an indemnity basis, with certificate for counsel, to be taxed if not agreed”.

(ii) The costs of the respondents’ summons filed on 24 February 2017 be paid by the applicant to the respondents on a party to party basis, to be taxed if not agreed.

(iii) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

DCEC 2603/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2603 OF 2014

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JUDGMENT

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Introduction

1.  This is the trial of the application for employees’ compensation.  The compensation is agreed at $466,249.34.  The issue at trial is solely on liability.

2.  The application was premised on an accident occurred on 31 July 2013 while the applicant (“Damai”) was in the employment with the 1^st – 3^rd respondents.  Damai said there were three full gas cylinders weighing 80 kgs each and one empty gas cylinder weighing 50 kgs fell and crushed on him, causing “serious personal injuries” to his back, lower limb and left thigh (“the Alleged Accident”).

3.  The 1^st – 3^rd respondents say the Alleged Accident did not occur as alleged.  The issue of this application is whether the Alleged Accident occurred as Damai has alleged.

Background

4.  At all material times, Damai was employed by the 1^st respondent (“Pacific Crown”) as a rigger under a written contract of employment dated 10 June 2013.  He was deployed to work on the Hong Kong – Zhuhai – Macau bridge project (“the Project”) of whom the 3^rd respondent (“JV”) is and was the main contractor. JV obtained manpower from the 2^nd respondent (“Bauer”) to carry out the Project. Pacific Crown played a role in the Project by supplying manpower to Bauer.

5.  Pier 78 consisted of a work platform resting on temporary support down to the sea bed with a crane barge on one side and a silo barge on the other.  The transport between the onshore work site for the project at Tung Chung and the offshore sites, including Pier 78, was provided by shuttle boat.  At the time of the Alleged Accident, construction work at Pier 78 had been completed and the workers were engaged in completing the transfer of equipment and construction materials to a similar offshore work site designated as Pier 49.

6.  Damai’s normal working hours were 7 am to 7 pm, 6 days a week, at $850 per day. He alleged he met with the Alleged Accident within a short period from 3:45 pm to 7:00 pm on 31July 2013 while working on a floating work platform for the Project designated at Pier 78 in the course of employment with Pacific Crown. Damai was working in a team of 50, of whom 12 to 13 were fellow Pacific Crown employees.  There are both handwritten and computerized records by both Bauer and JV in recording the attendance of the all workers, including Damai.

7.  The next day after the Alleged Accident, at around 1:30 pm on 1 August 2013, Pacific Crown received an email from Thomas Chan Chi Leung (“Thomas Chan”), Bauer’s deputy project manager, requiring Pacific Crown to withdraw Damai and three other employees deployed by Pacific Crown due to performance shortcomings and replace them with other workers.  In order to avoid possible unpleasantness on site, the returned employees were notified by the end of their shift at 7:00 pm on 1 August 2013.  Damai was paid $6,193 being outstanding salaries, including wages in lieu of 7 days’ notice by Pacific Crown by way of cheque dated 20 August 2013.  The cheque was deposited into Damai’s account on the same day.

8.  There was no report of Damai’s Alleged Accident made by any person to either respondents on the day of 31 July 2013.

The dispute

9.  Damai claimed he had notified Tamang Topraj (“Tamang”), the safety supervisor on site of the Alleged Accident on 31 July 2013.  He denied he was informed of being replaced on 1 August 2013.  Pacific Crown said Damai had informed them of the Alleged Accident on 2 August 2013, when Damai attended its office in Tuen Mun and submitted his sick leave certificate issued by Pok Oi Hospital (“POH”).

Damai’s medical treatment

10.  After the Alleged Accident, Damai went to seek medical treatment in POH in the late evening of 1 August 2013.  He registered his attendance at 23:35, which is 32 hours after the Alleged Accident had occurred.  In the report of POH dated 7 August 2014, it was recorded Damai complained of injury four days ago when “his left lower limb stepped into a hole and gas cylinder(s) fell to his left thigh”.  The diagnosis was “tenderness over lower lumbar spine and left thigh”.  X rays of lumbosacral spine, pelvis, left femur and chest confirmed no fracture. Damai was given five days’ sick leave.  It was recorded in a later consultation, Damai claimed his injury occurred on 31 July 2013.

11.  In a medical report by Yuen Long Jockey Club Health Centre dated 10 August 2014, physical examination showed only mild tenderness at lower lumbar level and no tenderness over the left thigh.

Evidence

12.  Damai testified and had called two witnesses, Rana Keshar Bahadur (“Rana”) and Tamang.  Pacific Crown, Bauer and JV called two witnesses, Thomas Chan and Khadka Bed Bahadur (“Khadka”).

Analysis

Evidence of Damai and his witnesses

13.  The respondents’ witnesses could not assist in saying how the Alleged Accident had occurred, Thomas Chan was the onsite supervisor who testified the routine / daily operation of the works at Pier 78; Khadha was the director of Pacific Crown and was only able to testify on the background of the works and deployment of workers.  Both of them did not witness nor have personal knowledge of the Alleged Accident. Having said so, Damai has the burden to prove the Alleged Accident had happened. Rana was his colleague and Tamang was Damai’s safety supervisor on the day of accident.  Both of them testified the occurrence of the Alleged Accident. The entire trial mainly turns on the credibility of Damai and his witnesses.

14.  The evidence of Damai at trial was significantly different from his witness statement.  In his witness statement, he stated Gurung Bal Bahadur (“Gurung”) and Damai Sher Bahadur (“Sher”), his colleagues, were responsible for unloading four full gas cylinders and putting them in an upright position against a container on the crane barge at Pier 78.  After they unloaded the four gas cylinders, they placed them against the container in an upright position and had fastened them with an industrial belt.  Both Gurung and Sher were required to attend some urgent welding job at another side of the crane barge.  Sher unfastened the industrial belt and asked Damai and Rana to work together with the crane operator to transfer one of the full gas cylinders to the working platform at Pier 78.  Both of them jointly placed it in a metal cage pending transfer to the working platform.  An empty gas cylilnder weighing about 50kgs was then lifted by Damai and Rana, unloaded and placed in a flat position next to the remaining three gas cylinders (weighing about 80kgs each). Damai began to give hand signals to the crane operator to lift the metal cage in which the full gas cylinder had been placed, at which time he was standing about one metre away from other three full gas cylinders.  While it was going on, Rana picked up the empty gas cylinder and out it in an upright position.  Due to its weight, Rana was unable to handle the empty cylinder and it bumped into the three full gas cylinders, causing all of them to collapse and fell over Damai.  As a result of this sudden collapse, Damai was hit and crushed on his back by all four cylinders resulting serious injuries to his back.

15.  During cross examination, Damai’s evidence was not consistent on the happening of the Alleged Accident.  He testified the transfer of gas cylinders was done upon instructions of his team supervisor, Thapa Subiraj. Sher, Gurung, Rana and himself were specifically instructed to do so.  In his witness statement, he said such transfer was only done by Rana and himself.  The position of the gas cylinders immediate before the Alleged Accident was not the same.  Damai testified the empty gas cylinder was placed 0.5 metre away from the remaining gas cylinders standing against each other.  Finally, when being asked to draw a sketch of the positions, the empty gas cylinder was lying away from and at a right angle to the side of the container, posing an obvious tripping risk.

16.  Damai’s contemporary medical evidence went contrary to what he had depose in this witness statement.  When Damai went to POH at late hours on 1 August 2013, he told the triage nurse his lower limb stepped into a concrete hole four days previously.  He then told the attending doctor that his left lower limb stepped into a hole and a gas cylinder fell onto his left thigh.  Be it a discrepancy between the exact record of the triage nurse, Damai had made it clear that the injury was sustained four days ago, not on 31 July 2013.  It was only in a later consultation, Damai attempted to clarify the injury was sustained on the day of the Alleged Accident.

17.  Secondly, Damai’s witness statement made to the Labour Department on 5 December 2013 was very different from his evidence.  In that he said he was working with a friend uploading a gas cylinder when it suddenly fell and hit on his feet.  The discrepancy was remedied only when he made a supplemental statement to the Labour Department on 11 February 2014, around six months after the Alleged Accident.

18.  Apart from the above, Damai’s injury was disproportionate to what he has described.  Should all four cylinders collapsed on Damai’s back (their aggregate weight exceeded 290kg), it would have caused him very serious injuries, if not paraplegic would be some degree more serious than the diagnosis of the doctors of POH on 1 August 2013.  In the POH report, Damai was diagnosed to have suffer from (i) tenderness over the lower lumbar spine and left thigh, no fractures; and (ii) mild tenderness at lower lumbar level and no tenderness over the left thigh.  I accept the submission of Mr Mcleish, counsel for Pacific Crown, Bauer and J.V., the medical findings were utterly inconsistent with Damai’s account of the Alleged Accident.

19.  Mr Mcleish further raised during cross examination, Damai had previously brought an employees’ compensation application and common law personal injuries claim for an injury at work on 28 April 2005 (DCEC 1335 of 2006 and HCPI 220 of 2008).  In that accident, Damai was thrown from a moving vehicle onto the ground, his head and left side of his body was injured.  Damai pleaded in the statement of damages and the witness statements in HCPI 220 of 2008, he was seriously injured and was unable to resume heavy manual labour.  Apparently, notwithstanding the pleadings / evidence in HCPI 220 of 2008, Damai resumed heavy manual labour as a rigger with Pacific Crown. Damai deposed in his witness statement in this application that he had always enjoyed good health and a variety of sporting activities.  Particularly, he has met no work accident before the Alleged Accident.  

20.  When being questioned with the contents of the pleadings and witness statements of HCPI 220 of 2008, Damai admitted the inconsistencies. He barely clarified what he meant was he had not met work accident save and except the present one.  Apart from that, he had no further explanation.  

21.  Solely on Damai’s evidence, I find them incredible and unacceptable. His evidence shall be rejected. 

22.  Rana, Damai’s witness who has witnessed the Alleged Accident testified in a manner which did not assist Damai’s case.  Rana was employed by Pacific Crown as a welder and was a colleague of Damai.  On 30 June 2014, Rana gave a statement to Kevin Tong, staff of the loss adjustor, in that he said he had no idea of how the Alleged Accident had happened, he witnessed no incident on 31 July 2013. Neither did Damai tell him what had happened.  In his witness statement dated 1 August 2015, which is one year apart, Rana attempted to say differently that he witnessed the Alleged Accident.  He explained there was misunderstanding / difficulty in understanding English when taking the 1^st statement.  The explanation is on shaky ground.  I find the contemporaneous record, the 1^st statement, is more believable.

23.  Furthermore, Rana’s evidence during cross examination was not on firm ground.  Rana testified with the assistance of Nepalese interpreter.  He was unsure of what has happened on 31 July 2013.  He maintained the language barrier was the cause of giving an incorrect statement with Kevin Tong. Surprisingly, he agreed the contents of the 1^st statement was true.  I find Rana was unsure of what has happened on 31 July 2013.  It would not be a minor accident if four gas cylinders has collapsed on Damai.  Logically, if it had really happened, it is expected an eye witness would be firm on its occurrence.  I find Rana’s evidence is incredible and I therefore reject them.

24.  Damai’s 2^nd witness, Tamang.  He was employed by Pacific Crown as a safety supervisor.  He stated in his witness statement Damai had informed him of the Alleged Accident that he was being hit and trapped to his left lower limb by gas cylinders and has sustained minor pain in his back and left thigh.  After that, Tamang asked Damai to take a rest in the changing room on the silo barge.  During cross examination, Tamang admitted he did not find it necessary to report the minor accident to Kim Lam, the safety manager of Bauer, of the Alleged Accident.  He agreed to Mr Mcleish’s case, by putting to him that it is not necessary for him to report to any supervisors if the injury sustained by the worker is minor.  Only when such injury inhibits the worker to continue his work or when a sick leave certificate is granted, a report of injury at work will be reported.  

25.  The evidence of Tamang could not assist Damai’s case. The reason being, Tamang did not witness the Alleged Accident. Should the so-called accident had happened, it is far from serious injury as alleged by Damai.  Tamang testified the injury was minor one, as opposed to what Damai has claimed in the Alleged Accident.  

Respondents’ evidence

26.  There was no eye witness of the Alleged Accident for the respondents.  Khadka and Thomas Chan was respectively the director and deputy project manager of Pacific Crown.  The relevant part of their evidence was the aftermath of the Alleged Accident.  Thomas Chan confirmed he was not aware of any report of injury at work made to him by Kim Lam on 31 July 2013.  He said, as a matter of practice, an injured worker of the Project might be replaced after a week or so when he was still on sick leave. The absence of one worker have no material impact on the progress of the project. Khadka testified Crown Pacific could not terminate any worker when an accident report was made.  He was well aware that it was an offence under the law.  

27.  Albeit with no eye witness of the Alleged Accident, Pacific Crown, Bauer and J.V. tendered evidence proving Damai had worked full shifts on 31 July 2013 and 1 August 2013.  I accept this is a strong evidence to contradict the Alleged Accident had not occurred. Firstly, the work records were done by way of a face recognition machine at Bauer’s onshore work site. In addition, when the workers were assigned offshore sites tasks, their attendance on the day of work would be recorded by a tablet computer. The worker will swipe their worker registration cards (operates like Octopus) on the tablet computer. A signal would follow indicating their presence. I accept there are some inaccuracies on shifts of workers where the Bauer record did not tally with the JV record.  Thomas Chan explained this was so at times when the worker registration card could not be recognized by the tablet computer.  Be it with some inaccuracies, it was the evidence of both Damai and Thomas Chan that Bauer attendance cards for Damai for July and August 2013 were completed by the supervisors of the teams of workers on site.  The original cards were retained by Bauer for its records and copies were provided to Pacific Crown to enable to pay the workers’ wages.  The evidence corroborated with JV’s computerized record that Damai worked two full shifts on 31 July 2013 and 1 August 2013.  It was Damai’s evidence that he had signed the attendance record daily and had with him his workers’ registration card.  I have no hesitation to accept Damai worked two full shifts on both 31 July 2013 and 1 August 2013.

28.  What follows the above findings is how Damai was being replaced by Pacific Crown on 1 August 2013.  Pacific Crown received Chan’s email in the afternoon of 1 August 2013 regarding the workers to be replaced.  The message was conveyed by Prem Bishwakarma, the site coordinator of Pacific Crown, to Damai first by SMS and then followed up by phone.  I accept the evidence and it must be the fact that Damai went to POH on late hours on 1 August 2013 after being informed of his replacement.  He then went to the Tuen Mun office of Pacific Crown to claim he had suffered from injury at work by submitting a sick leave certificate given by the attending doctor of POH on the same day.  The sequence of events became logical and probable.  

29.  Damai had difficulty in explaining why he had attended POH at the evening of 1 August 2013, one day after the Alleged Accident.  He explained he had chosen not to seek medical treatment immediately after the Alleged Accident (only with painkillers) because he was waiting for his friend’s company, Tamang Bishnu, who can also be his interpreter with the medical officers. Damai waited for Tamang Bishnu but he did not come.  Damai registered with the A&E department of POH at 2235 hours finally.

30.  On balance, I accept the respondents’ evidence.  Both Khadka and Thomas Chan are credible witnesses and I accept their evidence as finding of fact.

Conclusion

31.  I have no hesitation to conclude Damai fails to prove the occurrence of the Alleged Accident on a balance of probabilities. I dismiss the application for employees’ compensation against the Pacific Crown, Bauer and JV.  I make a costs order nisi that the costs of this application be paid by Damai (the applicant) to Pacific Crown, Bauer and J.V. (the 1^st – 3^rd respondents), with certificate for counsel, to be taxed if not agreed.  Damai’s (the applicant’s) own costs be taxed in accordance with the Legal Aid Regulations.