THAPA HARI BAHADUR v. PARAMOUNT ENGINEERING & MANPOWER SERVICE LTD AND ANOTHER

DCEC 2306/2013

[2023] HKDC 259

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2306 OF 2013

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REASONS FOR DECISION

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A. Introduction

1.  Pursuant to O 18, r 19 of the Rules of the District Court, the 1^st and the 2^nd Respondents issued a summons on 23 November 2022 to dismiss the Employees’ Compensation Application (“EC Application”).

2.  At the hearing of the said summons on 17 January 2023, the Applicant appeared in person, and the Respondents were represented by counsel, Mr Simon Wong.  At the end of the hearing, I granted an order to dismiss the EC Application on the ground of abuse of process with costs to the Respondents.

3.  These are my reasons for the decision.

B.   The Dismissal of the related common law action

4.  In the EC Application issued on 24 December 2013 by his former solicitors (which was later assigned by the Director of Legal Aid), the Applicant, a compressed air worker employed by the 1^st Respondent, allegedly sustained injuries in two accidents at work on 20 June 2013 (“1^st Accident”)  and 1 September 2013 (“2^nd Accident”)  respectively.   The 2^nd Respondent was the principal contractor. Liability was contested.

5.  On 18 April 2016, he commenced a related common law claim in the High Court under HCPI 408/2016 (“PI Action”). The parties in both proceedings are identical.

6.  On 23 February 2021, this court ordered the staying of these proceedings pending the outcome of the PI Action. At the time when the proceedings were stayed, the Applicant’s Legal Aid Certificate had already been discharged and the Applicant has since been acting in person.  The medical assessment review by the Labour Department had been completed. In the review certificate by Form 9 (“Form 9”)  dated 6 December 2017, the Employees’ Compensation (Ordinary Assessment)  Board certified that the Applicant’s loss of earning capacity permanently caused by the injury was 16.75%; and the period of absence from duty necessary as a result of the injury was from 1 September 2013 to 31 August 2016 (intermittently). Both parties had filed an appeal against the review assessment.

7.  By the judgment (“Judgment”)  of Au-Yeung J dated 31 January 2022, the PI Action was dismissed after trial.

8.  The Applicant’s appeal against the Judgment under CACV 98/2022 was dismissed on 12 November 2022.

C.   No further compensation can be recovered in the EC Application

9.  After Mr Wong did a computation of compensation with reference to the findings made in the Judgment, he arrived at the amount of $96,800, which amount Mr Wong submitted would be the maximum sum the Applicant would likely obtain in these proceedings. According to Mr Wong, the amount in respect of ss 9, 10 and 10A of the Employees’ Compensation Ordinance was calculated as follows:

C.1  Section 9 (compensation for permanent partial incapacity): Nil

10.  According to the findings made by Au-Yeung J, the Applicant was found not to have suffered from any permanent impairment of functioning.  Mr Wong therefore submitted that the Applicant would have no prospect of success in obtaining any compensation for the loss of earning capacity permanently caused by the 1^st and the 2^nd Accidents.

C.2  Section 10 (compensation for temporary incapacity): $76,800

11.  The Applicant was found by the trial judge to have dishonestly and egregiously exaggerated his symptoms.  She further found that the multiple pain which led to the Applicant having been granted prolonged sick leave was not caused by the Accidents.  It was adjudged that the reasonable sick leave period for the Applicant’s mild psychiatric illness should have been not more than 3 months.  Based on this ruling, Mr Wong submitted that the s 10 compensation should be assessed on the basis of 3 months. By applying the agreed pre-accident income of $32,000, Mr Wong calculated the amount of compensation at $76,800 ($32,000 x 3 x 4/5).

C.3  Section 10A (payment of medical expenses): $20,000

12.  Based on the award in the Judgment of $20,000 for special damages, which mostly comprised medical expenses, Mr Wong submitted that the amount under this head would unlikely exceed $20,000.

C.4  Total compensation likely to be obtained

13.  In view of the calculations Mr Wong had done above, it was submitted that the Respondents’ appeal against Form 9 would likely be allowed.

14.  Since it is not in dispute that the Respondents have already paid advance payment in the sum of $101,200, and further interim payment of $200,000, Mr Wong therefore submitted that even if the Applicant were able to prove liability in respect of both Accidents, he has no prospect of being awarded any further compensation.

D.   Conclusion

15.  By the operation of the doctrine of issue estoppel, the parties will be bound by the findings made in the Judgment. In other words, the Applicant is now debarred from disputing the various findings made by the trial judge in the PI Action. Mr Wong was correct to rely on the trial judge’s findings to calculate the amount of compensation the Applicant would likely obtain in these proceedings.  I therefore accept the above calculations.

16.  At the hearing, the Applicant only repeatedly stated that he disagreed with the Judgment, but failed to advance any valid arguments against the Respondents’ submissions.

17.  In the circumstances, I agreed with Mr Wong’s submissions that it would be a waste of costs and scarce judicial resources to have allowed these proceedings to continue, and made the above order of dismissal accordingly.