DCEC 701/2015








YU KIN SAN trading as YU’S TRADING CO 1st Respondent
WONG CHUN YU RONALD trading as TORO CREATION CO. 2nd Respondent


Before: HH Judge Levy in Chambers

Date of Hearing: 9 May 2016
Date of Decision: 9 May 2016




1. In this Employees’ Compensation Application, the applicant is claiming against the respondents for compensation under ss 9, 10and 10A of the Employees’ Compensation Ordinance.

2. In the Amended Application, the applicant avers that his monthly earnings before the accident were in the amount of $19,500. Theamount of compensation the applicant claims, according to para 4(8), is stated to be assessed.

3. Before the respondents’ summons, the parties had on 15 January 2016 submitted a Joint Written Application seeking leave to setdown this Application for trial in the running list with an estimated length of two days. No setting down directions have been givenbecause this court raised some requisitions on 26 January 2016. These requisitions are still outstanding. Thus, at this juncture,the case has not yet been set down for trial. I think it is important to put this matter in context as the parties’ earlier jointapplication for setting down would mean that at that time discovery had been completed and all the evidence had also been filed,including the certificate of the Board’s assessment of the applicant’s injury in relation to his loss of earning capacity aswell as the duration of sick leave.

4. Against this background, the respondents on 20 April issued this summons, asking the applicant to quantify his claim, failing whichthe respondents asked the court to dismiss the applicant’s claim with costs.

5. According to the margin note of the summons, the respondents’ application is made pursuant to rule 18 of the Employees’ CompensationRules as well as Order 18 rule 12 of the Rules of the District Court.

6. At the hearing today, the respondents are represented by counsel, Mr Lam, and the applicant is represented by Mr Ho.

7. At the outset of his submissions, Mr Lam informed the court that the respondents’ summons should only be based on Order 18 rule12, Rules of the District Court because he now realises that rule 18 of the Employees’ Compensation Rules is not applicable tothe respondents’ application.

8. It is submitted that the respondents’ application is based on Order 18 rule 12 because under these rules, the respondents areentitled to have the information so as to enable them to adequately prepare their case for trial. The applicant is obliged underOrder 18 rule 12 to provide the quantification of the compensation so that the respondents know where they stand.

9. In support, Mr Lam in his written submissions has relied on a passage from the Hong Kong Civil Procedure, para 18/12/10 in relation to damages, which is set out in his written submissions as follows:

“Where the plaintiff claims that he has suffered damage, that is, injury, of a kind which is not the necessary and immediate consequenceof the wrongful act, it is his duty to plead full particulars to show the nature and extent of the damages, the amount which he claimsto be recoverable, irrespective of whether they are general or special damages, so as fairly to inform the defendant of the casehe has to meet and to assist him in computing a payment into court, and the mere statement or prayer that he claims ‘damages’would not support a claim for such damages.”

10. It is Mr Lam’s submissions that as a result of the refusal or the failure on the part of the applicant to quantify the total amountof the compensation notwithstanding the fact that the applicant should have sufficient information to do so, the respondents havebeen prejudiced because the respondents are not able to compute an amount for the purpose of making a payment into court.

11. Mr Ho in resisting the application submitted that the application had been wrongly made because Mr Lam has mistaken or confused aclaim with the employees’ compensation with a common-law claim which claim is concerned with damages. Hence, the rules as statedin Order 18 rule 12 will apply there. However, in the present claim, we are concerned with statutory claims under ss 9, 10 and 10Aof the Employees’ Compensation Ordinance. Thus, it is contended that Order 18 rule 12 has no application.

12. Mr Ho is correct. Although the applicant’s claim is made by way of the Application, the Application is deemed as a pleading byPractice Direction 18.2, which is to regulate the practice for employees’ compensation claims and is very different to a generalcivil claim or a common-law action. In the first place, so far as the mode of application of the employees’ compensation claimis concerned, the Application needs to be made in a prescribed form prescribed by the Employees’ Compensation Rules.

13. Further, as Mr Ho has rightly pointed out, all the heads of claim in the application are also statutorily-based. There is no scope,as opposed to a common law claim, for the applicant to go beyond what has been prescribed by the Employees’ Compensation Rulesby pleading for specific or general damages.

14. Order 18 rule 12, in requiring the pleader to provide sufficient particulars in order to enable the other party either to meet theclaimant’s case or for the purpose, as Mr Lam submits, of making a payment into court, is concerned with facts and particularsof a claim such as in a PI action, which type of claim is specifically required by a Practice Direction to include with the claima statement of damages, which statement is regarded as a part of the pleadings. This is not the case here with the employees’compensation application.

15. In order to understand the disputes on quantum, I have also asked the parties to respectively set out their calculations for theclaims under ss 9, 10 and 10A. Given the fact that the applicant has set out his monthly earnings in the Application, the discoveryis completed and the applicant’s witness statements that set out the applicant’s case have also been filed, I believe that thequantum can easily be calculated.

16. Once the monthly earnings are ascertainable, the duration of the sick leave is known and is clearly not in dispute, the only itemthey need to work out is the loss of earning capacity. In the present case, both parties have appealed against the Board’s assessmentand appointed a single joint expert for the purpose of appeal. Thus, since a joint single expert has been appointed, the partieswould accept what is stated in the single joint expert report. As to whether the court will accept the single joint expert’s reportwill be a matter for the court at the trial.

17. In the single joint expert report, the expert has opined that the loss of earning capacity is to be 8 per cent. Thus, the loss ofearning capacity should be ascertainable as well.

18. Mr Ho has indicated that at trial, the applicant may make submissions to ask the court to award s 9 compensation by reference toPaper Mill. A reference to the Paper Mill formula is not a pleading. It is not a fact that is required to be pleaded. It is a legal submission. If the respondents are concernedas to whether the other side would rely on Paper Mill, this can be easily done either by writing to the other side to say, “Look, this is the position. Everything is ascertainable. Are you going to rely on Paper Mill formula?” or by serving of interrogatories as the respondents have earlier done.

19. That being the case, I do not see there is any difficulty at all for the respondents to know the amount of compensation. In my view,although the employees’ compensation is created by statute, however, the spirit of the Civil Justice Reform should be applied withequal force.

20. The respondents should have paid heed to the spirit of the CJR by asking the applicant to state whether the applicant would agreeto their calculations for compensation under ss 9, 10 and 10A by using the evidence and facts that are already available. If theyare concerned as to whether the other side would rely on the Paper Mill, this can easily be ascertained just by a letter to the applicant’s solicitors, which costs-saving way they have chosen not toadopt. Instead they have resorted to the issuing of a wholly misconceived application. For those reasons, I dismiss the summons.

21. The costs to the applicant are summarily assessed at $9,982.

(Katina Levy)
District Judge

Mr Ho Tak Ming, of Peter K H Wong & Co, assigned by the Director of Legal Aid, for the applicant

Mr Lam Heung Wing Simon, instructed by Yu Hung & Co, for the 1st and 2nd respondents