Attorney General v. Ho Kin-shing

Case No.DCCJ 1044/1977

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ001044/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

Action No. 1044 of 1977

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Between
	Attorney General	Plaintiff
	and
	HO Kin-shing	Defendant

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Coram: Judge Collier

Date of Judgment: 13th June, 1977.

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JUDGMENT

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1. In this case the Attorney General sues for the sum of $2,377.17 being the amount of Workmen's Compensation paid to a labourer of the Urban Services Department for injuries inflicted upon him by the defendant while the said labourer was acting in the course of his employment.

2. The Deputy Registrar referred the matter to me having received the plaintiff's application for judgment by default, no defence having been filed, because he took the view that, prima facie, the action should have been started in the Small Claims Tribunal, the amount claimed being less than $3,000. On the face of it, I agreed with him but instructed him to invite Counsel for the Attorney General to argue to the contrary.

3. Had the claim been couched in terms that made it immediately clear at the outset that what was being claimed was damages in respect of the amount of Workmen's Compensation that the Plaintiff had had to pay to his workman, it may well be that I would have given judgment immediately. However paragraph 3 of the Particulars of Claim commences "Compensation payable under sections 9 & 10 of the Workmen's Compensation Ordinance is calculated as followed:". That suggests that the amount is payable but does not say that it has been paid. At the end of the calculation there appears:

"Total amount of compensation approved and given $2,377. 17."

4. The next paragraph says "the Director of Urban Services Department (sic) was required to pay to Lee Shan under the Workmen's Compensation Ordinance $2,377.17 and this sum was approved by the Commissioner for Labour".

5. Reading the Particulars of Claim as a whole, it is apparent that the claim was indeed for damages under the Workmen's Compensation Ordinance. Had this been made clear in paragraph 2 of the Particulars of Claim and that the claim was brought by virtue of section 25(1)(b) of the Workmen's Compensation Ordinance then Mr. Fuller, Crown Counsel, may well have been spared the task of having to argue the point set out supra. I hasten to add that he did not draft the Particulars of Claim.

6. Mr. Fuller based his case on sections 18 & 25 of the Workmen's Compensation Ordinance.

7. Those sections read:

	"18(1) If an employer on whom notice of the accident has been served under section 14 does not within 21 days after the receipt of the notice agree in writing with the workman as to the amount of compensation to be paid, the workman may, in the prescribed form and manner, make an application for enforcing his claim to compensation to the court.
	(2) All claims for compensation under this Ordinance, unless determined by agreement, and any matter arising out of proceedings thereunder shall be determined by the Court whatever may be the amount involved, and the Court may, for that purpose, call upon any person to give evidence, if the Court is of opinion that such person is, by virtue of his expert knowledge, able to assist the Court.
	25(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the workman in respect thereof -

	(a)	the workman may both claim compensation under this Ordinance and take proceedings against the third party in the Court to recover damages:
		Provided that where any such proceedings are instituted the Court shall, in awarding damages, have regard to the amount which, by virtue of the provisions of paragraph (b), has or is likely to become payable to the employer by the third party; and
	(b)	the employer by whom compensation is payable, and any person who may be called on to pay an indemnity under section 24 relating to liability in case of a workman employed by a contractor, shall have a right of action against the third party for the recovery of the compensation or indemnity he is obliged to pay as the result of the accident, and may exercise such right either by joining in an action begun by the workman against the third party or by instituting separate proceedings:
		Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the Court would have been awarded to the workman but for the provisions of this Ordinance.

	(2) A workman shall, before instituting proceedings for damages under subsection (1), in writing notify the employer of his intention to do so and shall likewise notify the employer if he decides to abandon such proceedings or to relinquish or settle his claim for damages, and shall in connexion with any such notification furnish such particulars as the employer may require, and no proceedings in the Court to recover damages against a third party may be instituted by a workman until he has so notified the employer of his intention to institute such proceedings and unless he has lodged a claim for compensation.
	(3) Notwithstanding anything to the contrary contained in any enactment, where written notice of intention to institute proceedings under the provisions of subsection (1) (b) has been given by an employer to a third party within 12 months of the receipt by the employer of due notice of the accident concerned, no such proceedings shall lapse, or be barred, under any enactment relating to the limitation of actions, until after the expiration of a period of 3 months from the date upon which a claim to compensation in respect of such injury has been settled under section 17 or finally determined by a court.
	(4) Where notice is given to the employer under subsection (2) and the provisions of section 24 apply, the employer shall give notice thereof to any person who may be called on to pay an indemnity under that section."

8. His argument is that section 25(1)(b) gives the right to an employer to bring proceedings for damages against a third party in respect of compensation he has paid to his workman either as the result of an application in the District Court or as the result of an agreement between himself and his workman and that this he may do in proceedings separate from any application under the Workmen's Compensation Ordinance.

9. He then argues that section 18(2) provides that all proceedings concerning workmen's compensation shall be brought in the District Court by virtue of the words "and any matter arising out of proceedings there-under" (i.e. under the Workmen's Compensation Ordinance). He then goes on to argue that that section (18(2) is sufficient to bring this action within the words in the First Schedule to the Small Claims Tribunal Ordinance 1975: "it is not expressly provided by that or any other enactment that the demand shall be recoverable only in some other court."

(For ease of reference that paragraph reads in full:-

"Any claim for the recovery of any penalty, expenses, contribution or other amount which is recoverable by virtue of any enactment and for the recovery of any amount which is declared by any enactment to be recoverable as a civil debt if -

	(a)	it is not expressly provided by that or any other enactment that the demand shall be recoverable only in some other court; and
	(b)	the amount claimed does not exceed $3,000.")

10. It seems to me that this argument is well-founded and must succeed. Section 18 (2)) is clearly mandatory and the provision that all applications for Workmen's Compensation and proceedings arising therefrom shall be brought in the District Court is sufficient to oust jurisdiction from all other Courts and Tribunals. I have not had the advantage of hearing contrary argument, but, nonetheless, I am convinced that Mr. Fuller's case upon the matter of jurisdiction is correct and I accordingly give judgment for the sum claimed and endorsed costs.

	(W.S. Collier)
	Judge of the District Court
	13th June, 1977.

Representation:

Mr. G.F. Fuller, counsel for the Plaintiff.

Defendant absent.