Yeung Kei Sing v. Hing Lung Construction Co. Ltd. and Another

DCEC427/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 427 OF 2000

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Decision

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1. This is an application by the respondents to set aside my Consent Order dated 22nd January 2002 pursuant to O. 2 r.2 of the Rules of District Court and inherent jurisdiction of the court.

2. The background of the case is this; the applicant claimed against the respondents for compensation under Sections 9, 10 & 10A of the Employees' compensation Ordinance in respect of an accident allegedly occurred on 17th May 1998 in the course of employment. Parties through their legal representatives had since 13th December 2001 engaged in a series of negotiations with a view to a settlement, and on 21st January 2002, they eventually came to a settlement. Parties had drawn up a drafted Consent Order containing their agreed terms and duly signed on it. Such drafted Consent Order was placed before me on 22nd January 2002 for approval. On the face of it, I found no irregularity and therefore approved it. After the Order was made, however, the respondents discovered that their terms did not contain a reference as to a sum of money amounting to HK$ 201,600 which was already paid to the applicant by the respondents as periodic payment. In other words, the respondents are now saying that they had consented to a settlement for too much.

3. The basis upon which the respondents rely in setting aside the Order is that during the course of negotiations, it did not occur to any parties that there was such a periodic payment already made out to the applicant, and that constituted a mutual misunderstanding or mistake between the parties which prevented there being an effective agreement.

4. At the outset of the hearing, I raised the question of jurisdiction with the parties for I was concerned whether the court had power to deal with such an application to set aside its own Order in the circumstances. Basically, the respondents argued that so long as the court was satisfied that there was mutual mistake between the parties when reaching the settlement, the court has power to rectify such irregularity by setting aside the settlement pursuant to O.2 r.2 and/or under its own inherent jurisdiction. The applicant, however, submitted that the Order in question was a final order and liberty to apply limited to for purpose of implementing its terms.

5. As far as Order 2 is concerned, I am of the view that such order does not apply to the present case, because by virtue of O.1,r 2, it is provided clearly that the Rules of the District Court shall not have effect in relation to proceedings for the recovery of employees' compensation under the Employees' Compensation Ordinance.

6. Regarding the respondents' present application, what they asked the court to do, in my view, is in effect to review its own order by setting it aside on the basis of mistake. Before the amendment in 1993, the court had the power to review its judgments and orders; such power was set out in Section 53 of the old version of the District Court Ordinance but was repealed in 1993. Section 53 provided that " ..............................., a judge, on such grounds as he may think sufficient and within one month from the date of any judgment or order given or made by him, may decide to review any such judgment or order and on such review may re-open and re-try the case, wholly or in part, and may take fresh evidence and may reverse, vary or confirm his previous judgment or order..................................The power may be exercised by a judge

of his own motion, on notice to all parties to the proceedings; or on the application of any party to the proceedings, on notice to the other party......" Quite clearly, the court now does not have the power to review its own judgment or order since the amendment in 1993 which took away such discretion.

7. For the reasons given, I conclude that I have no power or jurisdiction to deal with the present application by the respondents , that being the case, I need not go on to consider the merit of the application and therefore, the summons is dismissed accordingly.

8. Costs of this application be to the applicant with certificate for counsel, to be taxed if not agreed. I make the costs order nisi and such order shall become absolute at the expiration of 14 days from the date of handing down the decision. The applicant's own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Neal John Clough instructed by Messrs. Henry H.C. Wong & Co. assigned by D.L.A. for the Applicant.

Ms Wanda Tong of Messrs. Simmons & Simmons for the 1st & 2nd Respondents.

DCEC427/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 427 OF 2000

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R U L I N G

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1. This is an application by the applicant under section 10(5) of the Employees' Compensation Ordinance for an extension of the period of periodical payments, he having already been paid periodical payments by the respondents for a period of 24 months and he now wishes for a further extension of 12 months, as provided for under the subsection.

2. The background to the matter is this: on 17 May 1998, the applicant was employed by the respondents as a carpenter. In the course of that employment he was carrying a concrete block with a colleague. It was wet underfoot, he slipped and injured his lower back and as a result he has been unable to pursue his employment since then. He has in fact undergone spinal surgery and his position remains under review but it is hoped that in the near future the effects of this injury will have settled down sufficiently so that a final assessment can be made.

3. He had sustained a previous back injury at work in 1996 which resulted in him having to take 6 months off work, but the way the matter is put by Doctor Cheng who has reported on his condition in two extensive reports, is that the incident on 17 May has amounted to or caused a recurrence of the previous difficulties and so without this event happening, he would almost certainly have been symptom-free.

4. The respondents having duly paid periodical payments for the whole of the two year period have now stopped and the applicant now applies, with further medical certificates, to cover the whole of the period now asked for.

5. Under section 10(2), there is clearly a presumption there to the effect that where a period of absence from duty is certified to be necessary by a medical practitioner, that this shall be deemed to be a period of total temporary incapacity, irrespective of the outcome of the injury.

6. It seems to me, not withstanding some excellent and most persuasive submissions by Mr Leung on behalf of the respondents, that this is a proper case for the court to extend the period of periodical payments and I do so for a further period of 12 months.

7. And so I direct as a result of this ruling that the applicant be paid at the rate that he was previously being paid for a further period of 12 months.

8. Costs in the cause. There will also be an order for Legal Aid taxation.

Representation:

Ms Grace Ip, of Henry H C Wong & Co., for the Applicant

Mr C S Leung, of Messrs Masons, for both Respondents