LIMBU LAXMI PRASAD v. DRAGAGES (HK) JOINT VENTURE DCEC 1227/2006

S’s words:-

The following case is not any interesting case at all.
What attracts me is that His Honour Judge Lok refuses to join in the debate to the deeming provision of Section 10(2) of the Employees’ Compensation Ordinance.
We have two line of cases for this issue and that forms the views of the judges in District Court.
At the same time, in fact, legal practitioners do form two views as well.
It is expected that those concentrating their works for applicants are in favour of the view of irrebuttable presumption. On the contrary, those legal representatives acting for insurers do suggest the otherwise.
The debate may go on until a date that such an issue is put to the Court of Appeal (and further probably the Court of Final Appeal) for consideration.

Personally, I support the view that the presumption is irrebuttable.
But when we read the article of Hong Kong Lawyer in the issue of October 2007, the author therein may support the otherwise.

--- quote from judgment ---

Date of handing down of Judgment : 24 October 2007

Based on the aforesaid findings, the Applicant has suffered no occupational disease or permanent injury as a result of the accident, and so he is not entitled to claim any compensation for permanent partial incapacity under s. 9 of the ECO. His appeal against the assessment of loss of earning capacity made by the Board in the Certificate also fails.

The Applicant has managed to obtain various sick leave certificates from Dr. Alfred Lo covering the period from November 2004 to September 2005, and the next issue I have to consider is therefore whether the Applicant, by relying on these certificates, is able to claim any compensation for temporary incapacity under s. 10 of the ECO.

There is some uncertainty as to the effect of the deeming provision in s. 10(2). On the one hand, we have cases which suggest that, in the absence of fraud, the deeming provision is conclusive about the period of sick leave for the purpose of calculating the compensation under s. 10. On the other hand, we have another line of cases which suggest that the deeming provision is rebuttable. A good summary of these two lines of cases can be found in the judgment of Deputy Judge Anthony Chow in Siu Fu Yau v. Wong Po Lee Limited & 0rs., unreported, DCEC No. 654 of 2003 (decision on 5 October 2006). Unless the interpretation of s. 10(2) is clarified by the higher courts, such uncertainty in the law will still continue to exist. But fortunately for our present case, it is not necessary for me to resolve this particular issue, and so I do not intend to add further confusion in this area of the law by giving additional view. It is clear that even for the cases which suggest that the deeming provision is irrebuttable, it is subject to an important provisio that there is no fraud involved. As I find that there was malingering on the part of the Applicant and that his complaint is not genuine, the court is entitled to disregard the sick leave certificates issued by Dr. Lo for the purpose of assessing the compensation for temporary incapacity under s. 10.

As the Applicant is not entitled to claim for any compensation under the ECO, his claim is dismissed. I also dismiss the Applicant’s appeal against the assessment made in the Certificate. On the other hand, the Respondent’s appeal is successful and I disallow the sick leave period stated in the Certificate from 27 October 2004 to 8 September 2005. Further, I make an order nisi that the costs of this action be to the Respondent with certificate for counsel, which would be made absolute 14 days after the date of the handing down of this judgment.

ATHANASIOS KONDYLIS v. KIM'S YACHT COMPANY LIMITED DCEC 918/2005

S’s word:-

It is so rare that we can find an employees’ compensation claim involving the issue of security for costs. The following case demonstrates an example.

I believe that we do have very much employees compensation claim involving such an issue due to the following reasons:-

1. most injured employees are not ordinarily residents overseas;
2. even though residents overseas, not all such employees do have the means to pay for security for costs;
3. in many employees’ compensation claims, the insurers/respondents do not agree the injured was not an employee.

But, in this case, the Applicant did have taken a very constructive approach for the issue of security for costs. Even before the hearing, the Applicant did have proposed to give a very substantial amount of security for costs and such amount was finally accepted by the Court.

Therefore, the Respondent could only get part of the costs for the application for security for costs but at the same time had to bear the balance and in more important the costs for the hearing.

So, the Applicant was still the winner of the application.

It thus also explains that why constructive offers should always be in our mind to protect the issue of costs.

--- quote from judgment ---

Date of delivering and handing down decision : 24 October 2007

This is the Respondent’s application for security for costs pursuant to O.23, r.1 of the Rules of the District Court, Cap.336. The ground is that the Applicant is ordinarily resident overseas.

There is no dispute that the Applicant is ordinarily resident overseas for the purpose of O.23. The Applicant’s address reported is in Guangdong, the Mainland.

The Applicant also does not argue that he has substantial assets within the jurisdiction which may be of sufficiently permanent nature and available for enforcement of any adverse costs order.

The Applicant opposes the application on the following grounds:

(1) The Applicant has a genuine and strong prospect of success in this case. Effectively the risk of an adverse costs order is low.
(2) There was intentional delay on the part of the Respondent in taking out the application for security.
(3) In any event, the amount of security requested is excessive.

In the circumstances, this remains an appropriate case to order security. The question will then be that of the appropriate amount.

In my view, the amount of HK$150,000 proposed by the Applicant is fair and realistic. I am minded to order security in such amount. I shall finalise the order after hearing parties on costs of this application since this forms part of the security requested.

[Parties submit on costs. The court’s attention is drawn to the fact that the Applicant offered security in the amount of HK$150,000 by his solicitors’ letter dated 30 August 2007, such offer being open for acceptance in 7 days. The Respondent rejected the offer.]

(1) All proceedings be stayed until the Applicant provides security for costs up to the end of trial in the amount of HK$150,000 by payment into court within 21 days from the date of this order.
(2) Costs of this application up to and including 6 September 2007 be to the Respondent, to be taxed, if not agreed.
(3) Costs of this application since 7 September 2007, including the costs of today’s hearing, be to the Applicant, to be taxed, if not agreed.

LEE SHIU KWONG, acting on behalf of himself and the members of the family of the deceased, Lee Ping Yiu v. WAN TAK SHING & others DCEC926/2006

S’s words:-
When I read the Chinese judgment of the following case today, I feel a little bit surprised of ... (not correctness of the judgment or the amount of compensation).
Finally, I am not sure whether Sanderson order (I will check whether my spelling is correct) has been considered.
My humble view is that this is not a case authority that we need to read through.

--- quote from judgment ---

主審法官：區域法院暫委法官勞潔儀法庭聆訊
宣佈判決日期：2007年7月3日

“今日本席先作出裁決，判案理由書遲些書面派發，本席裁定在此案中第一及第四答辯人需共同及個別繳付予申請人：

同居女士付薇女士可得$1,050,000的75 per cent，等如787,500元。

死者兄李炳輝及妹李潔瑩各得$1,050,000的2.5 per cent，即26,250元。

在此案中第二及第三答辯人不負責任地容許自己的姓名被用為建基棚業公司及建基建築工程公司的商業登記持牌人，因而導致申請人向他作出訴訟，而他在此案中除了曾出席法庭外，並沒有存檔任何文件抗辯，今天也選擇不出席法庭，本席認為就第二、第三答辯人的訟費不作命令為妥切、適宜的。

至於第四答辯人嘅情況，雖然本席非常理解他的苦況，但根據《僱員補償條例》第24節，他要對本案負責，本席認為也應跟常規命令他支付申請人的訟費，包括大律師費用。”

HUI SING PAN v. ROSE KNITTING (ASIA) LIMITED DCEC 178/2002

S’s words:-
Whether the year-end payment is to be counted for the assessment is always the issue that we have to decide. Not only the Employment Ordinance alone but the actual agreement of the parties have to be considered.
Besides, in the present case, the label of such year-end payment just like “double pay” on a pro rata basis in this case do have supported the reliance of Section 11AA(1) that such payment is not payable only at the discretion of the employer.
Thus, if an employer does not want an employee to suggest any bonus or payment to be regarded as of gratuitous nature, the words like discretionary bonus or an express term saying the same is of a gratuitous or discretionary nature is required.
It is highly probable that not only Labour Tribunal but also the Employees’ Compensation jurisdiction of the District Court and the common law claims would come to the same conclusion.

--- quote from the judgment ---

Date of handing down judgment: 9 July 2007

The Applicant contended that the year-end payment (i.e., the 13th month’s salary) should be taken into account in computing his pre-accident monthly income for the purpose of the present assessment. The Respondent objected, contending that such payment was and could only be gratuitous in nature.

Both parties referred to Part IIA of the Employment Ordinance, Cap.57 which governs the liability of an employer to make the year-end payment. Section 11B(1) reads as follows:

“Subject to any agreement to the contrary and to subsection (2) [which is not relevant to the present case], this Part shall apply to an employee employed under a continuous contract if an end of year payment is payable by the employer to that employee by virtue of a term or condition (whether written or oral, express or implied) of the contract of employment.”

If the end of year of payment is contractually payable as aforesaid, the presumption under section 11AA(1) applies. It reads as follows:

“It shall be presumed that an annual payment or annual bonus is not of a gratuitous nature and is not payable only at the discretion of the employer unless there is a written term or condition in the contract of employment to the contrary.”

Parties’ argument therefore focused on whether it was agreed (expressly or impliedly) that there would be the end of year payment.

Upon his dismissal, the pro rata year-end payment was documented in the Respondent’s letter to the Applicant dated 21 June 2000. It contained the “layoff payment breakdown” including this amount labelled as “double pay pro-rata”.

Obviously the letter was drafted in a meticulous manner with a view to bearing the intended legal effect for the benefit of the Respondent. I can hardly accept that in the same document, the Respondent for some reason would be so care free to label the payment as pro rata year-end payment if it was never intended as such. Further, if this sum were only meant to be gratuitous, the Respondent would not have had to compute the amount as the “double pay” on a pro rata basis.

I find that the Respondent always understood its contractual obligation to make the end of year payment to the Applicant. The presumption under section 11AA of Cap.57 applies so that the Applicant would have been entitled to such payment had the employment not terminated.