SHABBIR AHMED v. CHUN HIN INTERNATIONAL LTD AND OTHERS

DCEC 1713/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE No. 1713 OF 2012

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DECISION

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1. This is an application of the applicant by way of his summons dated 24 April 2013 (“the Summons”) for an interim payment in the sum of HK$59,016.60 pursuant to Order 29 rule 10, Rules of the District Court, Cap. 336H (“RDC”). At the outset of this hearing, Mr Chan, appearing for the applicant, informs this court that the applicant now accepts a lesser sum in the amount of HK$23,000.

2. This is the second time the applicant applies for an interim payment. Prior to the Summons, there is a consent order dated 4^th February 2013 whereby the 2^nd and 3^rd respondents were ordered to pay the applicant an interim payment in the sum of HK$125,048. There is no dispute that the second and third respondents paid the said sum to the applicant on 22 February 2013 pursuant to the consent order already. Ms Ng, appearing for the 2^nd and 3^rd respondents, informs this court that they actually made further periodic payments including payment for medical expenses in the total sum of HK$33,3365.21 (“the Further Payment”) since the payment of the interim payment. Mr Chan confirms receipt of the Further Payment.

3. I shall first state the essential factual background of this application. On 8 June 2013, the applicant was the employee of the 1^st respondent. The 1^st respondent was a subcontractor of the 2^nd respondent and the 3rd respondent was the main contractor.  On that day, the applicant was 36 years old and met with a traffic accident in the course of his employment with the 1^st respondent.  As a result the applicant got a lacerated right eyebrow and fractured left foot. Sick leave, insofar as those in relation to which documentary proof has been provided, was granted for the period from 8 June 2012 to 26 June 2013.

4. For unknown reasons, the application against the first respondent was discontinued on 7 March 2013. The 2^nd and 3^rd respondents admitted liability and a consent order dated 12 March 2013 was made and contained their admission of liability, leaving compensation to be assessed.

5. The general principles are well established. There must be an affidavit in support stating (a) the amount of the damages to which the application relates and the grounds of the application: Order 29 rule 10(3)(a) of the RDC and (b) an explanation as to why the applicant needs an interim payment and details should be given of any special needs and hardship: HK Civil Procedure 2013 Vol.1 §29/10/7 at p.675.

6. The 2^nd and 3^rd respondents oppose the applicant’s summons. The main challenge is that there is no indication of the amount of damages that might be granted to the applicant. It is submitted that the court is unable to consider such evidence under Order 29 Rule 11 of the RDC.

7. It is also contended that the applicant fails to show the details of his financial hardship particularly given the fact that he was already given the sum of HK$125,048 and the Further Payment.

8. I note that there is a dispute of the monthly average salary of the applicant. The applicant says he made HK$20,300 whilst the 2^nd and 3^rd respondents say that the applicant only made HK$14,374.36. I note that in the Application the application says he earned an average monthly income of $17,000. In any event, I am not in a position to resolve this dispute on this occasion.

9. This application is supported by two affirmations of the applicant. They are far from satisfactory. In the first place, in neither of them, the applicant verifies the amount of the compensation to which this application relates, as required by the relevant provision.

10. Moreover, the applicant does not produce any documentary evidence of his financial condition.  He merely asserts that he has no bank accounts and he now solely relies on loans from his friends and relatives. No details of such alleged loans is given. The applicant alleges that he has to support his wife and he could not resume any employment due to his injuries. The applicant, however, does not say how he has spent the sum of HK$125,048 and the Further Payment in the past few months. I note that he is not legally aided.  

11. In the circumstances, on the evidence, I am not satisfied that this application is justified and that I should exercise my discretion to allow such an interim payment. Accordingly, I dismiss this application with costs to the 2^nd and 3^rd respondents, summarily assessed at $3,000 (totally 2 hours inclusive of this hearing allowed).