CHENG KUI HEI t/a WILLIS CHENG & CO v. SHER WAHAB

HCSA46/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO.46 OF 2003

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL
CLAIM NO. 5116 OF 2001)

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J U D G M E N T

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1. This is an appeal against the decision of the Small Claims Tribunal made on 26 April 2001 dismissing the appellant's claim against the defendant. The claim arose out of a traffic accident which occurred on 10 August 1998 at about 9:40 a.m. on Tune Mun Highway in which the driver of the vehicle with registration No.DL1485, who was the appellant's employee, was injured when the vehicle with registration No.SP334, driven by the defendant, ran into the rear of his vehicle.

2. On 19 March 1999, the defendant was convicted of careless driving. Subsequently, the appellant paid employee compensation to his driver in the sum of HK$19,880. He also incurred a sum of HK$45 as COT search fee. The appellant lodged the claim with the Small Claims Tribunal against the defendant for the total expenses of HK$19,925 incurred by him as aforesaid.

3. The matter was heard before the learned adjudicator in the Small Claims Tribunal on 26 April 2001. The defendant was absent. The claimant gave evidence before the adjudicator and adduced documentary evidence to support the claim. However, the adjudicator dismissed the claim as he was not satisfied that under the common law principles of negligence, the defendant was liable to the appellant.

4. Dissatisfied, the appellant applied for leave to appeal out of time. On 4 September 2003, I gave leave to appeal.

5. The appellant's complaint is that he was entitled under section 25(1)(b) of the Employees' Compensation Ordinance to bring the claim to recover the expenses incurred against the defendant. The adjudicator failed to take that into account when dismissing the claim solely on the basis that under the common law principle of negligence, the defendant was not liable.

6. In paragraph 9 of the adjudicator's Reasons for Decision, he pointed out that during the hearing before him, the appellant had failed to explicitly state that the claim was based on section 25 of the Employees' Compensation Ordinance.

7. I have looked at the claim form. No reference has been made to section 25 of the Employees' Compensation Ordinance. What has been pleaded is that the claimant had met his liability to the injured person in accordance with the Employees' Compensation legislation and sought a recovery of his loss. The adjudicator is under a duty to investigate and, on the facts before him, he should have drawn his attention to section 25 of the Employees' Compensation Ordinance. Failure to do so is a ground for appeal because he had erred in law in failing to consider the legal basis upon which the claim was brought. The appeal must therefore be allowed.

8. The next question is then whether I should remit the case back to the Small Claims Tribunal before the same adjudicator for him to consider the claim in light of section 25 of the Employees' Compensation Ordinance, or should I proceed to enter judgment in favour of the claimant.

9. On the undisputed evidence before me and indeed before the Small Claims Tribunal, the requirements under section 25 have clearly been met. Had the adjudicator proceeded under section 25, I have no doubt that he would have arrived at the conclusion that the claim ought to be allowed.

10. I would therefore proceed to enter judgment in favour of the claimant in the sum of HK$19,925 with interest on the sum of HK$19,880 at the judgment rate from the date of filing of the claim with the Small Claims Tribunal up to payment. Costs of the appeal will be to the appellant, to be taxed if not agreed.