KHAN SABZ ALI v. KO KIM DEVELOPMENT LTD AND ANOTHER

DCEC 1350/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1350 OF 2012

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DECISION

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Background

1.  On 17 September 2012 the applicant’s summons dated 1 August 2012 (“the applicant’s summons”) for an interim payment pursuant to RDC O.29, rr.10-11 in this Employees’ Compensation Case (DCEC No 1350 of 2012) came before this court.  The applicant’s summons is supported by the applicant’s affirmation (and exhibits) filed in these proceedings on 1 August 2012.  Also filed in support of the applicant’s summons on 13 September 2012 was the applicant’s solicitors’ written submissions and list of authorities.

2.  The applicant’s claims are set out in his Application dated 31 July 2012.  The main thrust of the applicant’s claims appears (for now) to be for compensation pursuant to section 10 of the Employees’ Compensation Ordinance (Cap 282) (“the ECO”); what might be termed compensation for alleged personal injury by accident arising out of and in the course of employment and giving rise to “temporary incapacity”.

3.  At the hearing of the applicant’s summons the issue of this court’s jurisdiction to grant an order for an interim payment pursuant to RDC O.29, rr.10-11 arose.  It did so on this court asking the applicant’s solicitor (Ms Courbet) whether the provision for interim payments applied to employees’ compensation cases given that: (i) Ms Courbet was unable there and then to refer this court to a decided case on point (although, Ms Courbet suggested that such case law did exist and that she had, indeed, come across it in the past and, furthermore, had witnessed interim payments being granted in employees’ compensation cases); (ii) RDC O.29, r.10(1), on the face of it, is prefaced on the action being a “writ” action; and (iii) Mr Jeffrey Chan (for the 1^st respondent) and Ms Ho (for the 2^nd respondent) were not so sure that the issue of jurisdiction (to grant interim payments in employees’ compensation cases) was as clear cut as Ms Courbet seemed to indicate.

4.  Given that the hearing on 17 September 2012 was listed for fifteen minutes (although fuller argument was entertained) and was not necessarily the final disposal hearing of the applicant’s summons, this court ordered directions for the exchange of the respondents’ affidavit/ affirmation evidence in response and of the parties’ written submissions and list of authorities, for a restored hearing on 28 September 2012.

5.  By a consent summons for an “order in terms” the parties agreed to vacate the restored hearing.

Issue                                 

6.  Notwithstanding this resolution of the applicant’s summons, the issue raised is, on the face of it, an interesting one.

7.  The issue posed is simply put. Does the power of the court to grant an interim payment pursuant to RDC O.29, rr.10-11 apply to employees’ compensation cases? 

8.  On reflection, and acknowledging that the applicant’s summons has been dealt with by agreement between the parties, the short answer is in the affirmative.  RDC O.29, rr.10-11 should be (where appropriate) applicable to employees’ compensation cases.  This Decision is not intended to usurp the parties’ resolution of the applicant’s summons, but is intended to clarify this court’s understanding on the matter.  In no sense should this be regarded as relevant to the court’s discretion whether or not to grant an interim payment.  The issue posed here is one of jurisdiction; not discretion.

Reasons

9.  Without wishing to set out complete chapter and verse on the issue, the reasons for this court’s answer in the affirmative are as follows.

The ECO

10.  The ECO is not a complete self-contained code for employees’ compensation cases to the exclusion of all else.  This is not to belittle the ECO; far from it.  Employees’ compensation cases are a vital part of the District Court’s work; witness the number of “DCEC” citations.  Many of those cases involve claims for personal injury suffered by employees as a result of accidents arising out of and in the course of employment.  Such compensation claims often precede claims for common law personal injury damages. 

11.  However, properly understood, the ECO is part of the machinery of the District Court and the ECO jurisdiction is not exclusive of the District Court Ordinance but (where appropriate) works in tandem with it. 

Section 10 of the ECO

12.  Section 10 of the ECO is the statutory basis for an employee’s claim to compensation by way of periodical payments for temporary incapacity.  It might be a tad surprising if this took away an applicant’s claim to an interim payment when no express mention of that is made. 

13.  The nature of periodical payments under section 10 of the ECO is dealt with in the commentary to the ECO in the Hong Kong Civil Procedure 2012, volume 3, Q1/10/1.

14.  Further, interim payments under RDC O.29, r.10-11 and periodical payments under section 10 of the ECO provide useful redress to employees in employees’ compensation cases (but not double recovery).

The RDC

15.  Moreover, as alluded to in Ms Courbet’s submissions, RDC O.1, r.2(1) states that, save as specified therein, the rules shallhave effect in relation to all proceedings in the District Court.  RDC O.1, r.2A states that the RDC shall not have effect in relation to a number of proceedings, including:

“(c) proceedings - ….

(ii) in respect of which rules are made under section 50 of the Employees’ Compensation Ordinance (Cap 282)”.

16.  As yet, this court has not been referred to any rules made under section 50 of the ECO relating to the application of interim payments in employees’ compensation cases.

17.  It is also settled law that unless the provisions of the District Court Ordinance (Cap 336) or the RDC are inconsistent with the ECO or the Employees’ Compensation Rules, the powers of the District Court and the RDC are applicable to employees’ compensation cases; section 21 of the ECO.  Also see the commentary to the Hong Kong Civil Procedure 2012, volume 3, Q1/21/1-2.

18.  Further, if substance is to trump form then (within reason) it should not matter that RDC O.29, r.10(1) refers to “writ” actions.

Convention and practice by consent

19.  There is also the important point that in practice judges in employees’ compensation cases have approved of consent orders for the grant of interim payments (as opposed to “periodical payments” pursuant to section 10 of the ECO); this does not appear to be an uncommon practice.  If something is being approved of “by consent” then it would normally be on the underlying juridical basis that the court has the jurisdiction to allow it in the first place (albeit by consent).  The apparent absence of much case law on the grant of interim payments in employees’ compensation cases might also suggest that, in practice, the point is not contentious.  If authority is needed, the commentary to the ECO in the Hong Kong Civil Procedure 2012, volume 3, at Q1/21/3A, seeks to offer some.

Conclusion

20.  Interim payments pursuant to RDC O.29, rr.10-11 can be granted in employees’ compensation cases.  Given the provisions of section 10 of the ECO there may be less need (in some cases) for interim payments in employees’ compensation cases, but that should be no bar to such interim payments.