Cheung Kwai Leung v. Heng Tat Construction Co. Ltd.

DCEC000367/2001

DCEC367/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 367 OF 2001

Coram: H H Judge C B Chan

Date of Judgment: 17 September 2002

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D E C I S I O N

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1.This is an application for Judgment of the sum paid into court upon acceptance of payment in. The application is opposed by the Respondent as they dispute liability . At the last hearing both parties gave their submissions related to the applicant's application under section 18(a) of the Employees' Compensation Ordinance. I adjourned the hearing to another date to be fixed for my decision to be delivered orally. However, I gave leave to both parties' solicitors to file further authorities that they may wish to refer to before my delivery of this decision.

2.Both parties' solicitors took advantage of that so that my decision today relies on the submissions of both solicitors at the hearing on 12 September 2002, and also relies on the authority submitted at the hearing by the respondent's solicitor, Ms Liu Sin-kwan, and the further authorities of the parties submitted thereafter.

3.It seems the parties are content for me to give my decision without further submission on the authorities subsequently provided.

4.The applicant's solicitor, Ms Alison Liu, in her application relies on the wording of Rule 20(1) of the Employees' Compensation Rules. The wording of that rule states:

"A respondent from whom compensation is claimed may pay into court a sum which is considered by him to be sufficient to cover his liability."

5.Ms Alison Liu, solicitor for the applicant, submitted that payment into court is made in situations where the respondent does not dispute liability in view of the wording of Rule 20(1). She also submitted that acceptance for payment in has to be by means of a determination of the court under section 18(a) of the ordinance. She submits that the word "determination" inevitably implies judgment of the court, hence her application for judgment on her acceptance of the amount paid in is based on her reading of the aforesaid sections of the Ordinance.

6.Ms Liu Sin-kwan, the respondent's solicitor, referred to the case of Li Kwok-shing v Lau Ka-fu & Another DCEC 654 of 2000. In that case the issue that was decided by Judge Li of the District Court was that Order 22 of the Rules of the District Court, Cap. 336, could not be invoked in Employees' Compensation cases as Rule 20 of the Employees' Compensation Rules, Cap. 282 makes provision for payment into court in Employees' Compensation cases.

7.In paragraph 7 of his judgment, Judge Li noted that:

"Rule 20 permits a respondent to make payment into court but does not provide for acceptance of payment, nor stay or termination of the proceedings upon acceptance of payment in."

8.The learned judge agreed with Miss Remedios, counsel for the respondent, that the method by which payment into court in ECC proceedings can be "accepted" by the parties is by submitting a consent summons for the District Court to approve that "compensation" which is then "awarded" by the court.

9.The learned judge further stated in paragraph 11 of his judgment that as the money paid into court is not accepted:

"...theoretically a respondent may object to awarding the total of monies already paid into court as compensation. In other words, payment into court is not admission of liability. Even if payment into court should be taken as admission of liability, it is not an admission as to quantum. A respondent, in any event, is entitled to insist on trial as to quantum."

10.After adjournment of the hearing, Ms Liu Sin-kwan submitted a further authority, Ng Ming-cho v Pui Hing Construction Company Limited & Others DCC Action. No. 496 of 1996. This is a judgment of Judge To of the District Court, as he then was. In his judgment Judge To considered the wording of Rule 20(1) of the Employees' Compensation Rules which provides that:

"A respondent from whom compensation is claimed may pay into court a sum which is considered by him to be sufficient to cover his liability."

11.He came to the decision that:

"Apart from the phrase 'to cover his liability', it is silent as to the effect of the payment in except as regards costs."

12.Judge To came to the conclusion that he did not consider these words "to cover his liability" as wide enough to displace the concept of payment in without admission of liability which has been associated with the practice of payment in for such a long time. He further stated that:

"In practice the majority of claims for compensation are settled presumably because of compulsory insurance. Very often these claims are settled without admission of liability. This is to ensure a speedy and cost-saving disposal of the compensation claims but without prejudicing the parties' position in relation to the common law claims that sometimes follow. To hold otherwise would require the parties to embark on a course of unnecessary and costly litigation on the issue of liability even though the parties have no dispute on quantum and are content to pay and to receive the compensation. Had it been the intention that payment into court includes an admission of liability, it would have been more expressly provided in the rule. In the circumstances I consider payment into court under Rule 20 has the same effect as a payment under Order 22. That payment does not imply an admission of liability."

13.Judge To further stated that:

"The whole purpose of the payment in is to dispose of the action without having to decide on the merits. I cannot see why the question of liability could not be put aside as a result of payment in."

14.I agree with the view of Judge To as referred to above. I wish to add that it is a general principle that an "admission" has to be clear and unambiguous before judgment can be entered on the basis of such an admission by the opposing party. I am of the view that Rule 20(1) is not worded in such clear terms that payment in would imply an admission of liability. The wording of Rule 20(1) is not stated in such terms that it is upon admission of liability that payment in should be made by a respondent.

15.Subsequent to the adjournment, Ms Alison Liu, solicitor for the applicant, submitted Willis' Workmen's Compensation Acts 1925-1943, 37th Edition, pages 811 to 889. At page 811 can be seen a reference to Rule 19 of the 1926 act and this is subheaded "Submission to award or payment into court by respondent". Rule 19(1) states:

"A respondent who admits liability may at any time before the date fixed for proceeding with the arbitration..."

16.This continues with provision to file with the Registrar a notice that he submits to pay a weekly sum or to pay a lump sum which he considers to be sufficient to cover his liability.

17.It is clear that the wording of this sub-rule states a situation for "submission to payment" upon admission of liability. This highlights even more clearly that Rule 20(1) of the Employees' Compensation Rules of our ordinance in Cap. 282 is not so worded.

18.I am of the view that Rule 20(1) cannot be read in the way as submitted by the applicant's solicitor that payment into court necessarily implies an admission of liability.

19.Further, section 18A of the ordinance, Cap. 282, states:

"(1) Except where otherwise provided under this Ordinance, all claims for compensation, except to the extent that such claims are determined -

(a) by agreement under section 8; or (Replaced 1 of 1995 s. 10)

(aa) (Repealed 1 of 1995 s. 10)

(ab) by a Certificate of Compensation Assessment for Fatal Case or Review Certificate of Compensation Assessment for Fatal Case; or (Added 52 of 2000 s. 12)

(ac) by a Certificate for Funeral and Medical Attendance Expenses or Review Certificate for Funeral and Medical Attendance Expenses; or (Added 52 of 2000 s. 12)

(b) by certificate under section 16A; or (Replaced 1 of 1995 s. 10)

(c) by agreement under section 16CA; or (Added 1 of 1995 s. 10)

(d) (Repealed 36 of 1996 s.16)

and any matter arising out of proceedings in respect of such claims shall be determined by the District 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 the opinion that such person is, by virtue of his expert knowledge, able to assist the Court."

It can be seen from the above section that the word 'determined' would include determination by agreement as in sub-rule (1)(a)."

20.Ms Alison Liu referred to a judgment of Hunter J submitted after the adjournment in Wo Po-wah by his next friend Lau Pui-lan v Pacific Insurance Company Limited 1988 Civil Appeal No. 41, a Court of Appeal case. At page 12 of the judgment wherein Hunter J, as he then was, stated that section 18(a) notices three forms of determinations.

21.With reference to determination by the court Hunter J stated that such determination must be against the employer. Ms Liu specifically wanted to refer to this passage, particularly the comments of Hunter J stating that determination by the court must be against the employer. However, this must be read in the context of the judgment. The context of the judgment show that Hunter J meant that such determination by the court must be against the employer rather than against the insurance company. The meaning of those words by Hunter J cannot mean otherwise for under section 18(a) the court could make determination against the applicant and not necessarily against the employer.

22.It is clear when the court has to decide on a case the determination can go either way. It can go for the applicant or for the respondent. Hence, in relation to the references of the meaning of the word "determine" or "determination" it seems that the word "determine" in the broader sense means "to bring to an end" as stated in Curzon's Dictionary of Law, 1982 Edition, which reference was supplied by Ms Alison Liu after the adjournment.

23.In view of the fact that the word "determined" in section 18A sub-rule (1)(a) refers to "determined" "by agreement under section 8", the same word "determined" can therefore mean "determined" either by agreement or by judgment or by settlement. And it would seem to me the word "determined" in section 18A(1) of the Employees' Compensation Ordinance, Cap. 282, carries the meaning of the word in the broader sense, namely, "to bring to an end".

24.I therefore am of the view that judgment cannot be entered in respect of this application on the acceptance of payment in. I agree with Judge Li in his judgment in the case of Li Kwok-shing aforesaid at paragraph 10 of the judgment that:

"If an applicant wishes to accept monies paid into court in full and final settlement, a consent summons may be taken out for approval by the court."

25.I therefore dismiss the application with costs of this application to the respondent to be taxed if not agreed. The applicant's own costs be taxed in accordance with Legal Aid Regulations.

Representation:

Present: Ms Alison Liu of Messrs Hobson & Ma, assigned by the Legal Aid Department, for the Applicant

Ms Liu Sin-kwan of Messrs Cheng, Yeung & Co., for the Defendant