Gurung Dunga Bahadur v. Kam Tai Construction Co Ltd and Another

DCEC 224/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 224 OF 2002

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In the matter of an Application between:-

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Coram :  H.H. Judge Chow

Date of hearing :  10^th September, 2009

Date of handing down Decision :  12^th October, 2009

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DECISION

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1.This is the Respondents’ application to dismiss the proceedings in this case.

Background

2.The Applicant instituted this Application on 19.3.2001 in respect of injuries he suffered due to an accident in which occurred on 17.4.2001, in the course of his employment.  At this date he was 42 years old.  On 28.4.2003, by consent, judgment on liability was entered for the Applicant against the Respondents, and the assessment of compensation was stayed pending the Applicant’s common law claim in respect of the same accident, with liberty to restore.  The common law claim was instituted in the High Court, under HCPI 304/2004.

3.On 27.11.2008, under HCPI 304/2004, Master Levy of the High Court assessed the damages due to the Applicant from the Respondents in the sum of $2,325,607.65.  But the Applicant had already received $268,180 by way of interim payments from his employer.  So this sum was deducted from the award, and judgment was entered for the sum of $2,057,427.76 ($2,325,607.65 - $268,180).  The summary of awards assessed by Master Levy is set out as follows:-

4.The issue I have to consider is whether the awards under the common law claim have already covered the awards to be made in the Application for employees’ compensation.  Under the Application, the Applicant claimed for compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance (“the Ordinance”).  Section 9 provides for compensation in case of permanent partial incapacity.  Section 10 provides for compensation in case of temporary incapacity, while section 10A provides for payment of medial expenses.

5.In the Application, the Applicant stated that his income for the month immediately prior to 17.4.2001 was $18,120, and during the 12 months prior to the accident his average monthly earnings was $18,000.  Master Levy found that the Applicant’s pre-trial earnings were $14,400 per month and his present earning capacity is $5,500 per month.

6.According to the certificate of assessment issued by the Employees’ Compensation (Ordinary Assessment) Board on 21.6.2004 the Applicant was assessed to suffer 27.5% loss of earning capacity caused by the injury (Form 7).  On review on 17.11.2004 his earning capacity was assessed at 16.5%.  Pursuant to section 9(1)(b) of the Ordinance his entitlement under section 9 of the Ordinance is $171,072 ($14,400 x 16.5% x 72).

7.Under section 10, compensation is payable in case of temporary incapacity.  The period of his absence from duty necessary as a result of the injury was from 17.4.2001 to 20.6.2002.  The compensation payable under section 10 of the Ordinance is $162,816 ($14,400 x 4/5 x 14⁴/₃₀).

8.In respect of the pre -trial loss of earnings, Master Levy made the following findings:-

“105.   …………….. for the period from the date of accident until December 2002, Mr. Gurung suffered a full loss of earnings at $14,400 per month for 20 months.

106.  Hence, the full loss would be $14,400 x 20 = $288,000.

107.  As from January 2003, Mr. Gurung should have only suffered partial loss of $8,900 ($14,400 - $5,500).  Hence, for the period between January 2003 and October 2008, it is a total of 70 months (5 years and 10 months).

108.  Thus, the total amount of partial loss would be $8,900 x 70 = $623,000.

109.   The total amount of loss of pre-assessment earnings would be $288,000 + $623,000 = $911,000.”

9.The total compensation payable under sections 9 and 10 of the Ordinance is $333,888 ($171,072 + $162,816).  This is fully covered by the pre-trial and future loss of earnings in the respective sums of $911,000, and $747,600, the total losses being $1,658,600.

Claim under section 10A

10.These are expenses relating to medical treatment.  Under the common law claim, this is covered by the claim “pre-assessment special damages”.  Master Levy made the following judgment:-

“E.3 Pre-assessment special damages

111.  In the Statement of Damages, a sum of $23,593.40 is claimed for actual expenses incurred.  There is no breakdown.

112.  Apart from a total sum of $1,452, which I am able to calculate from the two physiotherapy reports from TMH, I am unable to find any other documents in support of the medical expenses.

113.  As for traveling expenses, the bundle of taxi receipts Mr. Gurung produced during the hearing is far from clear.  He testified that some of the expenses were taking taxi to see his former lawyer, and some of them were for traveling to court.  If this is indeed the nature of the expenses, they should be his costs, and should not have been claimed as damages.

114.  In light of the unsatisfactory evidence, I am unable to make an award he has claimed in the Statement of Damages, but only to make an award based on the amount the Defendants agree.  I therefore award a sum of $8,200 under this head of claim.”

11.So Master Levy has already made an award for special damages, which cover medical expenses.

12.Master Levy has also made awards of interests on the different awards she assessed.  The common law awards have fully covered the compensations applied for by the Applicant pursuant to sections 9, 10 and 10A of the Ordinance.  There are no more issues left to be tried in the Application; it should not proceed any further.  Accordingly I dismiss the Application.

Costs

13.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Applicant do pay to the Respondents costs of the hearing of this application on 10^th September, 2009, to be taxed, if not agreed, with no certificate for Counsel.  Subject to that the Respondents do pay costs of this action (including the costs of and occasioned by the hearing on 25 March, 2009) to the Applicant, to be taxed, if not agreed.  The Applicant’s own costs (for the period he was granted legal aid) to be taxed in accordance with Legal Aid Regulations.

The Applicant:  present, unrepresented

The 1^st & 2^nd Respondents:  represented by Mr. Robin McLeish, instructed by M/S. Deacons, Solicitors