Employees Compensation Assistance Fund Board v. Wo Chun Wah

FAMV No. 82 of 2019

[2019] HKCFA 27

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 82 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 271 OF 2017)

________________________

BETWEEN

________________________

________________________

DETERMINATION

________________________

The Appeal Committee:

1.Leave is granted to the 3^rd Defendant on Questions 1 and 2 as set out in the Application for Leave to Appeal, namely:

“1. Whether, upon proper construction of the provisions of the Employees Compensation Assistance Ordinance, Cap. 365 (“ECAO”), and in particular s.20B(3) thereof, the court has jurisdiction to order costs against the Board in common law damages claims to which the Board joins in pursuant to s.25A of the ECAO (“Joinder Cases”), and if so, whether there is a “usual order” or “starting point” on costs to be made or ordered in Joinder Cases where the Board (i) disputes liability and quantum, and (ii) disputes quantum only (See Judgment §§14, 20, 32 and 34) (“Question l”).

2. Whether, in view of the fact that a plaintiff is entitled under s.20B(l) of the ECAO to an amount of relief payment which “shall be the amount of damages for which the employer is liable to pay to the eligible person”, the Board, as a statutory body constituted under ECAO, has power to settle with a plaintiff on the quantum of relief payment payable by the Board before such amount of damages for which the employer is liable is known, i.e. before trial or assessment of damages, and if so:

(a) Whether the trial judge was correct that should the quantum of damages assessed against the employer be higher than the agreed amount, the plaintiff cannot apply to the Board for relief payment in respect of the difference, and should the quantum of damages assessed against the employer be lower than the amount agreed between the plaintiff and the Board, the Board may have no authority to pay the plaintiff the higher amount that has been agreed (See §§40-41 of the Judgment and §25 of the judgment of trial judge dated 23 June 2017 (“the 1^st instance judgment”)).

(b) Whether the Board has power under the ECAO to pay the agreed relief payment to the plaintiff in the absence of an application under s.20A of the ECAO (Cf. ss.28(1) and 30 of the ECAO in relation to compensation claims).

(c) If not, what is the legal effect of such settlement between the plaintiff and the Board? (“Question 2”).

2.Leave is refused on Question 3 and also leave is refused on the “or otherwise” grounds set out in the Application.

3.The appeal will be heard on 26 November 2019.

Ms Audrey Eu SC and Mr Roger Phang, instructed by P. C. Woo & Co., for the 3^rd Defendant (Applicant)

Mr Raymond Leung SC and Mr Patrick Szeto, instructed by Kenneth Lam Solicitors, for the Plaintiff (Respondent)