MOHAMMED SAYEED v. LEIGHTON ROAD HOTEL MANAGEMENT SERVICES LTD

DCEC 573/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 573 OF 2012

------------------------

------------------------

DECISION

------------------------

1.  This is an application by the applicant for interim payment under order 29 rules 10 of the District Court Rules.

2.  The applicant asked for the sum of HK $30,000 in the hearing on 15 March 2013 despite that in the summons filed on 18 January 2013, he asked for $76,539.06.

3.  Under order 29 rule 11(1)(a) of the rules of the District Court, if, on the hearing of an application under rule 10 in an action  for damages, the court is satisfied that the defendant/respondent has admitted liability for the plaintiff’s damages , the court may, if it thinks fit, order the respondent to make an interim payment of such amount  as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the court are likely  to be recovered by the plaintiff.

4.  The respondent admitted liability herein.

5.  Paragraph 29/11/1 of the Hong Kong Civil Procedure states that the object of an interim payment is generally to alleviate hardship during the period between commencement of the action and trial.

6.  In Form 7, the period of absence from duty necessary as a result of the injury is from 9 May 2011 to 16 May 2011(8 days) and the loss of earning capacity caused by the injury is 0.5 %.  Accordingly, in Form 5, the periodical payment is calculated as $ 2,857.06 ($13,392.46/30 x 8 x 4/5), and the compensation for permanent incapacity is $ 6,428.38.

7.  From 5 was issued on 13 March 2012.  The applicant objected to the assessment on 15 March 2012, and submitted a sick leave certificate since 15 March 2012.  He was granted sick leave on and off, roughly up to 28 March 2013.

8.  The respondent submitted that in the medical report by Dr Wong Mei Kam dated 27 June 2012, the applicant was considered fit to resume duty on 17 May 2011, and he did attend duty until 15 March 2012, for a period of around 10 months.  Only after receiving the assessment in Form 7, he sought medical care again.

9.  In the medical report by Dr Wong Tak Chuen dated 28 September 2012, it is stated that the applicant complained of persistent pain and hypersensitivity of the injured site.  The working diagnosis and management included one complex regional pain syndrome.  In one of the medical certificates, the certificate dated 18 July 2012, it is stated that the applicant was suffering from depression and is recommended for sick leave from 18 July 2012 to 31 July 2012.

10.  The respondent had paid a total sum of $ 33,026.85.  The last payment was made in around May 2012.

11.  The applicant deposed that he had no money and had to borrow money from friends.  He said that he needed money for his medical expenses.

12.  Taking into account the above, I am satisfied that the applicant did suffer some hardship.  He has no income for around 10 months.  S10(2) of the Employees’ Compensation Ordinance , Cap 282 provides that for the purposes of this section a period of absence from duty certified to be necessary by a registered medial practitioner……, an Ordinary Assessment Board…. shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.

13.  I do not regard the Form 7 as final and binding in this case.  The applicant applied for review of the assessment.  The facts of this case are different from the case Ng Ming Cheong v Mass Transit Railway Corporation, CACV 131/1997; in that case no appeal was lodged.

14.  Furthermore, in case of any doubt as to the entitlement of periodical payment of the employee, under S16 of the Employees’ Compensation Ordinance, the employer may require the employee to undergo a medical examination.  Under S16(4), if the employee fails to undergo the medical examination, his right to compensation shall be suspended.

15.  Taking in account the conflicting views in Form 7 and the subsequent medical certificates, with no detailed or updated medical report as assistance, I incline to give more weight to the subsequent medical certificates.  According to the medical report by Dr Hui Hon Man, the Resident of the Department of Psychiatry of Pamela Youde Nethersole Eastern  Hositpal, the applicant was diagnosed to have mild depressive episode.  By letters dated 8 March 2013 and 12 March 2013, the Labour Department also expressed the view the further sick leaves were likely related to the accident.

16.  In the circumstances, I grant the application of the applicant. The respondent do pay interim payment in the sum of HK $30,000 to the applicant to be paid within 14 days, together with interest at judgment rate from the due date to the date of payment.

17.  I order the respondent to pay the costs of this application, including the reserved costs, to the applicant, on a party and party basis, to be taxed if not agreed.