Shah Mehboob v Wing Fung Construction (H.k.) Ltd. And Another

CourtDistrict Court (Hong Kong)
Judgement NumberDCEC294/2002
Subject MatterEmployee"s Compensation Case
DCEC000294/2002 SHAH MEHBOOB v. WING FUNG CONSTRUCTION (H.K.) LTD. AND ANOTHER

DCEC000294/2002

DCEC 294/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’COMPENSATION CASE NO. 294 OF 2002

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BETWEEN
SHAH MEHBOOB Applicant
AND
WING FUNG CONSTRUCTION (H.K.)LIMITED 1st Respondent
CHINA STATE ENGINEERING CORPORATION 2nd Respondent

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Coram: H.H. Judge Muttrie in Chambers

Date of Hearing: 10 December 2002

Date of Ruling: 18 December 2002

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Ruling

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The applicant was employed by the 1st respondent, which was a sub-contractor to the 2nd respondent, the principal contractor on site. He met with an accident at work on 24 September 2001. He filed his Application under section 18A of the Employees' Compensation Ordinance, Cap 282, on 11 April 2002, but without sending any letter before action to the respondents. Call-over was fixed for 21 June 2002 but by consent the hearing was vacated and directions given. Pursuant to those directions the respondents filed their Answer denying liability and their List of Earnings on 4 July 2002.

2. The Commissioner for Labour issued a Certificate of Assessment (Form 5) dated 30 July 2002 which shows that the applicant was absent from work as a result of his injuries from 24 September to 13 October 2001 and from 26 October 2001 to 30 April 2002, and that he now has a permanent loss of earning capacity of 1.5%.

3. The applicant claims that his average pre-accident earnings were $10,137 per month. The list of earnings filed by the respondents shows the same figure. By my calculations, therefore, if liability were proved the applicant's claim under section 10 of the Ordinance should be 4/5 x $10,137 x (8/31 + 19/31 + 6) = $55,712.95. He was aged 24 and his claim under section 9 should be 96 x $10,137 x 1.5% = $14,597.28. So his total claim would be $70,310.23.

4. On 30 October 2002 the parties filed a consent summons whereby the respondents agreed to pay total compensation of $63,833.00 and the applicant to give credit for advance payments of $44,440.00. However the parties could not agree costs. Now each side says that it should have the costs of the proceedings.

5. It is argued for the applicant that all claims under the Ordinance must be determined by the court under section 18A, save for...

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