Ho Shuk Man v. Sunflower Travel Service Ltd

DCEC 618/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 618 OF 2009

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IN THE MATTER OF AN APPLICATION BETWEEN:-

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Coram :  H.H. Judge Chow

Date of hearing :  23^rd December, 2009

Date of handing down Decision :  12^th February, 2010

DECISION

1.By this inter-parte summons, the Applicant asks this court to make the following order:-

“The Respondent do pay interim periodical payment to the Applicant for a further period of not more than 12 months after 5^th July 2009 upon production of proper medical evidence to the Respondent in support of the continuing temporary incapacity suffered at the rate of HK$7,321.00 per month or such other rate the court shall think fit commencing from 5^th July 2009.”

This summons was taken out under Rules 10 and 17 of the Rules of the District Court (“RDC”) and section 10 of the Employees’ Compensation Ordinance (“the Ordinance”).

2.In the course of her employment with The Respondent, the Applicant suffered an injury to her right shoulder on 5.7.2007.  Sick leave was granted up to 17.11.2009.  The Respondent only paid her periodical payment up to 30.6.2009.  In support of the application, the Applicant produced the most recent 3 medical certificates, showing sick leave from 19.5.2009 to 28.7.2009, from 28.7.2009 to 22.9.2009 and from 22.9.2009 to 17.11.2009.

3.Judgment on liability was entered in favour of the Applicant on 22.9.2009, leaving the quantum of compensation to be assessed.

4.Section 10(5) of the Ordinance provides:-

“An employee who has received periodical payments under this section for a period of 24 months from the date of the commencement of the temporary incapacity or for such further period being not more than 12 months as the Court may allow in any particular case shall no longer be entitled to periodical payments under this section but shall be deemed to have suffered permanent incapacity and the provisions of section 7 or section 9, as the case may be, shall apply to the employee.”

(Underlines provided)

There is no such thing as “interim periodical payment” under section 10(5) of the Ordinance.

5.Rule 10, O. 29 of RDC stipulates:-

“(1)        The plaintiff may ……… apply to the Court for an order requiring that the defendant to make an interim payment.

(2)      ……………

(3)      An application under this rule shall be supported by an affidavit which shall-

(a)     verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application.

(4)     ………

(5)     Notwithstanding the make or refusal of an order for an interim payment, a second or subsequent application may be made upon cause shown.”

(Underlines provided)

6.Under r.10, O. 29, the affidavit must verify the amount of the damages, debt or other sum to which the application relates.  The Applicant has not done so.  Hence the requirement of r. 10, O. 29 has not been complied with.  Further there is no such thing as “interim periodic payment” under this rule.  The order to be made under this rule is an order for ‘an interim payment” to be made by the Defendant.  Rule 9 defines “interim payment” to mean “a payment on account of any damages, debt or other sum (excluding costs) which he may be held liable to pay to or for the benefit of the plaintiff”.  But here the Applicant is asking for payments upon production of medical evidence to Respondent in support of the continuing temporary incapacity at the rate of HK$7,321 per month or at other rate the court shall think fit, commencing from 5.7.2009.  As long as the Applicant as the Applicant produces proper medical evidence in support of the temporary incapacity, the respondent has to pay this monthly rate of $7,321 to the Applicant.  Accordingly there will be interim payments, and not just an interim payment, to be made by the Respondent.  R. 10 only allows an application for an order requiring the Respondent to make an interim payment, and not interim payments.  Thus r. 10 is not applicable to this application.

7.The application under section 10(5) of the Ordinance should be heard in open court in a trial of the case, and not by way of chamber application; hearings for relief under section 10 should be regarded as final hearings and not as interlocutory ones: see  Poon Chi Kwong v Poon Wing Kee (Metal Work) & anor (CACV 378 of 2003).

8.Due to the matters aforesaid, I dismiss this application.

Costs

9.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Applicant do pay costs of this application to the Respondent, to be taxed, if not agreed.

The Applicant :   represented by Mr. Tony W.H. Luk of M/S. Ko & Chow, Solicitors

The Respondent :  represented by Mr. Lam Chi Weng of M/S. Cheng, Yeung & Co., Solicitors