Fong Sau Lan v. Bureau Veritas Consumer Products Services (HK) Ltd

DCEC 957/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 957 OF 2006

______________________

IN THE MATTER OF AN APPLICATION BETWEEN:-

______________________

Coram : Deputy District Judge A. Yuen in Chambers

Date of hearing : 17^th July 2007

Date of Handing Down of Decision : 1^st August 2007

DECISION

1.The Respondent applies for leave to file an Amended Answer.  The proposed amendment included:-

(i)	a set off of the interim payment in the sum of HK$127,689.60 made by the Respondent to the Applicant, and
(ii)	a repayment of all or part of this interim payment together with interest in the event that the compensation awarded exceeds the amount of interim payment paid.

2.In a Statement of Facts, the Applicant stated that she had received periodical payments in the sum of HK$84,648 over a 24-month period from date of accident, i.e. September 2004 to early September 2006.

3.On the other hand, the Respondent stated that a total sum of HK$127,689.60 was paid to the Applicant during this said period of 24 months.

4.The Applicant objects the Respondent’s application on the following grounds:

(i)	That the alleged “interim payment” was in fact “periodical payments” paid pursuant to s.10 of the ECO, which is not deductable from any amount of compensation payable under ss. 6, 7, 8 or 9 of the ECO.  Therefore, the Court has no power to order for any set off or repayment of the alleged “interim payment”.
(ii)	Order 29, Rule 27 of RDC, which allows a Court to make adjustment on final judgment or order, including the power to order for the repayment by the Plaintiff of all or part of the “interim payment” paid, is not applicable to periodical payments paid pursuant to s.10 of the ECO.

5.The Applicant cited the following case in support of her objection:

In Poon Chi Kwong v Poon Wing Kee (Metal) (Work) & Another CACV 378/2003, H.H. Ma CJHC said:
“	An adjudication under s.10 of the ECO is not in any sense an interim order: it finally decides the right of an injured employee to payment (whether periodical or lump sum) in respect of a temporary incapacity ……. The order for payment under s.10 is final until it is reviewed under s.19, which review may or may not necessary take place.”
H.H. Ma also cited s.10 (4) of the ECO which provided that where permanent incapacity is established, any payments received under s.10 will not be deducted from the entitlement under s.9.
H.H. Lam J., in the same case, said:
“	The Court has power to adjust an interim payment when making a final judgment or order pursuant to O.29, R. 17 of RDC.  If necessary, the Court can order repayment by the Plaintiff.  There is no such power in respect of compensation ordered under s.10 of the ECO.”

6.The Respondent, on the other hand, cited several cases in support of its application:-

(i)	Tsang Kwong v Mayshing Construction Co. Ltd. DCEC 1026/2003
	In this case, the Court determined that the total award pursuant to ss.9 and 10 of the ECO to be HK$48,640.  It then went on to say:
	“	The Respondent had already advanced $156,400 to the Applicant.  This sum exceeded the amount I assessed.  Although there is no provision in the ECO to repay the amount in excess, however, under O.29 R. 17, on application, this Court can order repayment of all or part of interim payment.  Since the Respondent had in the original answer counterclaimed, I take it that the Respondent intended to ask for repayment at least in part of the interim payment.  In order to avoid duplicity of claim, I order the Applicant to repay the balance of money advanced by the Respondent.”

7.In this case, it is unclear as to the circumstances under which the “advanced” payment was paid.  However, it is apparent that the Court came to the view that this “advanced” sum exceeded the award the Court assessed under s.10, therefore, the Court ordered repayment of the balance pursuant to O.29 R. 17 of RDC.

8.In Lai Yuen Hing v Lo Chi Hung, trading as Kam Hung Construction Co. and Another  DCEC14 of 2000

Again, after determining the total amount of award under ss.9 and 10 of the ECO, the Court found that the sum paid to the Applicant during her sick leave was in excess of the total compensation awarded, the Court then ordered for a set off of the sum paid with the compensation awarded.

The Court said: “Although s.10(4) of the Ordinance provides that in the event of death or permanent incapacity following a period of temporary incapacity whether total or partial, no periodical or lump sum payments paid or payable under this section shall be deducted from any amount of compensation payable under section 6, 7, 8 or 9, this subsection only covers periodical or lump sum payment, paid or payable under s.10.  As I have ruled that only $17,472.00 should be paid or payable under s.10 in this case, the Applicant has in fact received compensation from the Respondents more than I have awarded here.  To give no credit for the amount of compensation that Applicant was received is to give the Applicant a windfall.  This cannot be right.”

9.In the present case, there is disputed as to:

(i)	the Applicant’s entitlement under s.10, and
(ii)	the actual amount the Applicant had received during her sick leave.

The Respondent’s case is that the Applicant had received a sum which exceeded her entitlement under s.10.

10.I agreed with the Applicant’s submission that periodical payments under s.10 of the ECO is not deductable from compensation awarded under ss. 6, 7, 8 or 9, nor can a Court order for repayment of any periodical payments under s.10 of ECO pursuant to O.29 R. 17 of RDC.  However, if any sum paid is beyond the scope of s.10 of the ECO, this Court should have power to order for set-off or repayment, depending on the final determination of award.

11.I will therefore grant leave to the Respondent to file and serve an Amended Answer within 7 days from date of this Order.

12.I will make an order nisi for:

(i)	Costs of and occasioned by the amendment be to the Applicant in any event; and
(ii)	Costs of this application be to the Respondent in any event, taxed if not agreed.

Representation:

Ms. Jenie Wong of Legal Aid Department for the Applicant.

Ms. M. Fung of Messrs. Clyde & Co. for the Respondent.