Hung Cheung So v. Wai Ming Construction Co. Ltd and Another

DCEC000450/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 450 OF 2000

Coram: H H Judge Carlson in Chambers

Date of Judgment: 23 February 2001

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R U L I N G

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1. This is an application to extend periodical payments. What had happened was that the applicant was paid periodical payments for a period of 2 years from the date of the accident at the rate which appears in Form 2. That produced a monthly sum of $10,800 a month. Since then the respondents have paid nothing, and they say that the figure that was provided in Form 2 was wrong and they point to the fact that the applicant, for the period immediately preceding the accident, was working for a very small number of days; on some occasions, for some months, seven days a month, on other months, as little as 2 days and in the period immediately before the accident, in April he worked for 17 days. Mr Ko, on behalf of the applicant, says that that is completely wrong because he worked at two building sites and was therefore able to work a full month.

2. Mr Wong's response to that is that in fact the applicant was not a direct employee of either of these respondents and there was a rather complicated - when I say "complicated", there was an unusual subcontracting arrangement and so the matter is not as clear as that. What Mr Wong fears is that if I award periodical payments at the rate which the applicant requires me to make, that may well amount to an overpayment which they will not be able to recover because the applicant, as is so often the case in these sort of cases, is a man of modest means.

3. It is a difficult situation because here I have got conflicting evidence without having the benefit of cross- examination and so I have got to take a rather broad view of this. It seems to me I ought to be conservative whilst recognising that I of course must not do the applicant injustice. His remedy really is to bring the matter on for trial as soon as possible, when this can be looked at with far greater care which will then hopefully produce an absolutely correct result.

4. Doing my best, I think I ought to extend these periodical payments at the rate of $7,140. That is really based on 17 days worked in April before the accident. I think that is a fair way of looking at it for present purposes and so the order will be four-fifths of $7,140 a month. That can start from 19 June last year, so there will be a lump sum coming to him, calculated at that amount to bring it up to date, and thereafter four-fifths of $7,140 until this expires, as it must, by virtue of the ordinance on 18 June of this year, but hopefully we can have a trial at about that time when the matter can be finally determined.

5. I am minded to say, Mr Ko, costs in the cause with legal aid taxation. What do you want to say about that?

MR KO: I think it's fair, costs in the cause.

COURT: All right, costs in the cause, legal aid taxation on the applicant's costs. Did I reserve any costs previously whilst you were squabbling over this?

MR KO: Yes, the costs were reserved on the last hearing.

COURT: To include costs reserved on the -- what was the date of the last hearing?

MR KO: Two weeks from now. Today is the 23rd.

COURT: Yes.

MR KO: The 9th.

COURT: 9th, thank you. 9 February.

Representation:

Present: Mr R Ko, of Henry H C Wong & Co., assigned by the Legal Aid Department, for the Applicant

Mr Arthur Wong, of Messrs Cheung, Tong & Rosa, for R1 and R2