Gurung Hari Prasad v. Hang Yue Engineering Ltd

DCEC957/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 957 OF 2009

________________________

BETWEEN

________________________

Before: Deputy District Judge Jonathan Wong in Chambers

Date of Hearing: 31 December 2010

Date of Decision: 31 December 2010

________________________

D E C I S I O N

________________________

1.By summons dated 15 December 2010, the applicant in these proceedings purports to apply to re-amend his Application. I say that it is a purported application because I am told, and I note from the court file, that insofar as the Application was previously amended in red, no leave was in fact given by the court for that amendment. But this is a procedural point. I think if I were to grant leave to re‑amend, it could be dealt with sensibly by the parties.

2.Substantively, this application to re-amend consists of the inclusion of two claims respectively under section 36B and section 36I of the Employees’ Compensation Ordinance, Cap.282.  Both these sections are under Part IIIA of the ordinance, and they relate to prosthesis and surgical appliances.  I am told by Mr. Lau, who appears for the applicant today, that this amendment for a claim for prosthesis is in relation to the teeth injury allegedly suffered by the applicant during the course of his employment.

3.I have some difficulty in accepting that this is a well‑thought-out application, the reason being that on 29 September 2010, Her Honour Judge Mimmie Chan made an order by consent, and in relation to that order, paragraph 4 makes provision for the adducing of a joint dental expert report.  I have been informed by the parties today that although the applicant has been examined by the relevant expert, the joint dental expert report in fact has not been filed.

4.I have also perused the witness statement filed by the applicant.  In relation to the injury that he suffered to his teeth, I note that shortly after he suffered the accident, he was taken by the supervisor to have his teeth treated.  And I am told today by Ms. Sin - and I do not believe Mr. Lau is in a position to dispute that - insofar as the cost of that treatment is concerned, it was  paid by the employer.  So to that extent, the claim as now pursued must be in relation to future treatment or future maintenance to the crown that has been fixed to the damaged teeth.

5.The problem with this application is that there is no evidence before me (and it is not mentioned in the witness statement of the applicant) that any future treatment is required and, presumably, the parties would be in a much better position to assess that possibility once the joint dental expert report has been filed.

6.Quite apart from the evidential defect, it seems to me that the applicant has some difficulty in bringing himself to be entitled to make a claim under sections 36B and 36I.  I am told by Mr. Lau that the applicant has not gone through any of the requirements under section 36D or section 36E of the ordinance.

7.Further, the parties have on previous occasions by consent told the court that no further interlocutory applications would be made.  I of course accept that in all of those orders, there was a provision that there be liberty to apply but, the applicant has to justify any departure from those orders with good reasons.  Having heard Mr. Lau today, I am not satisfied that the applicant has given the court any good and satisfactory explanation, and so taking all that into consideration, I dismiss the application.

(Discussion re costs)

8.I assess costs summarily at $5,000 to the respondent.  So the order that I will make is that the applicant’s application dated 15 December 2010 is dismissed with costs, summarily assessed at $5,000 payable to the respondent forthwith.

Mr. Lau Kam-lun, instructed by M.C.A. Lai & Co., for the Applicant

Ms. A. Sin, instructed by Messrs Lam, Lee & Lai, for the Respondent