Chen Xiumei v. Li Siu Wo and Another

CACV 26/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 26 OF 2007

(ON APPEAL FROM DCEC 645 OF 2005)

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BETWEEN

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Before : Hon Tang VP, Cheung JA and Waung J in Court

Date of Hearing : 9 April 2008

Date of Decision: 9 April 2008

Date of Reasons for Decision : 14 April 2008

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REASON FOR DECISION

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1.These are employees compensation proceedings arising out of a fatal accident.  The employer is the 1^st respondent.  He was not insured.

2.The 2^nd respondent, The Employees Compensation Assistance Fund Board, applied to be joined under section 25A of the Employees Compensation Assistance Ordinance, Cap. 365 (“the Ordinance”).  By order dated 30 December 2005, the 2^nd respondent was joined as such.

3.We allowed the applicant’s appeal on 6 November 2007 and our reasons were handed down on 15 November 2007.

4.In the order dated 6 November 2007, we ordered that:

“2.     Judgment of Deputy District Judge E. Yip dated 5 January, 2007 be set aside, and that in lieu thereof Judgment be entered in favour of the Applicant against the 1^st and 2^nd Respondents in the sum of HK$303,000.00.”

5.By a Notice of Motion dated 20 March 2008, the 2^nd respondent sought an order that our judgment be amended such that the order for payment was directed against the 1^st respondent only.

6.The 2^nd respondent’s liability under the Ordinance is regulated by section 16.  Basically the person seeking payment must show that he is unable to recover from the employer, and he is not to be regarded as being unable to recover an employer unless the person has taken such proceedings to recover the payment of the amount –

“(3)(b)  as are reasonable in the circumstances, having regard to the likely cost of such proceedings, the resources available to the person and the amount likely to be recovered from, wherever applicable, the employer, the principal contractor and the insurer.”

7.The applicant is the widow of the deceased and resides out of Hong Kong.  She has been granted legal aid in these proceedings.  It is not known whether she would be able to obtain legal aid in recovery proceedings against the 1^st respondent.  Be that as it may, she will only be able to recover against the 2^nd respondent if she complies with section 16 of the Ordinance.  Such recovery, however, may include, any unsatisfied costs order which she might have obtained against the 1^st respondent.  Section 23(1)(b).

8.Since the 2^nd respondent’s liability to pay under the Ordinance has not been determined, no order should be made against the 2^nd respondent for payment.  We have amended the order accordingly.

9.With encouragement from the court, the 2^nd respondent has rightly agreed that there should be no order as to costs of the motion.  We ordered accordingly.

Mr. Norman Nip, instructed by Messrs Gallant Y. T. Ho & Co., for the 2nd Respondent

Messrs Elaine Tam & Co., assigned by Director of Legal Aid, for the Applicant (Attendance excused)

1st Respondent, absent