GURDIAL SINGH v. YAT FAI CONSTRUCTION AND ENGINEERING CO LTD AND OTHERS

DCEC518/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 518 OF 2007

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D E C I S I O N

1.  This is the resumed hearing of the Respondents’ application to strike out the Application on the ground that the amount paid by the Respondents to the Applicant has already exceeded the maximum amount that can be obtained by the Applicant in the present Application. 

2.  The striking out application was first dealt with by me on 6 June 2008. After dealing with the application to withdraw the Respondents’ payment into court, I adjourned this application and gave direction for the filing of affirmations by the parties.  After that hearing, legal aid certificate of the Applicant was discharged in August 2008.  This is the resumed hearing of the Respondents’ application to strike out the Application.

3.  In the present case, there is no dispute between the parties about the Applicant’s age and his monthly earnings at the time of the alleged accident.  The percentage of loss of earning capacity had been assessed as 0.5% in the Form 7.  In the absence of any appeal by the Applicant, this assessment would be binding on the parties.  The period of sick leave certified in the Form 7 would also be binding on the parties, and in the present context the number of sick leave was 82 days.

4.  According to the receipts of medical expenses supplied by the Applicant, the Respondents work out the medical expenses in the sum of $9,480.  In respect of the details of the Respondents’ calculation of the Applicant’s claim, one can refer to paragraph 20 of the Affidavit of Wong Ho-cheong Henry filed on 5 June 2008.

5.  As there is no dispute about the basic facts relevant in the calculation of the Applicant’s claim and the Applicant has not filed any affirmation in reply to oppose the Respondents’ calculation of quantum, at this stage I accept the Respondents’ submission that the Applicant’s claim in the present case cannot possibly exceed the amount already received by him in respect of the present accident.

6.  In such circumstances, there is no chance that the Applicant can get any more compensation from the Respondents, and I therefore dismiss the Application.

7.  At the hearing, Mr Wong, solicitor for the Respondents, also asks the Court for an order to the effect that the Applicant do repay the amount of the overpayment.  However, this would be a claim for money had and received.  As it is a general civil claim, it would not be within the jurisdiction of the District Court in dealing with the matter of an application under the Employees' Compensation Ordinance. If the Respondents want to pursue the claim for overpayment, they have to issue a separate writ for a civil claim either in the District Court or some other appropriate forum.  If the case falls within the jurisdiction of the Small Claims Tribunal, the claim would even have to be commenced in that Tribunal.

8.  In any event, this Court does not have any jurisdiction to deal with the Respondents’ claim for overpayment.  In such case, I cannot make the order as sought by Mr Wong.