ZHU DEFANG AND ANOTHER v. WING HING CONSTRUCTION COMPANY LTD AND ANOTHER

ZHU DEFANG AND ANOTHER v. WING HING CONSTRUCTION COMPANY LTD AND ANOTHER

The court found uncontested evidence that the deceased was operating a road cutter and suddenly collapsed, which constituted an 'accident' in the course of employment; therefore the s5(4) presumption applied and the circumstances justified departing from the usual costs rule, granting leave to discontinue with no order as to costs and making an order nisi as to costs of the argument hearing in favour of the Applicant.

Citation
ZHU DEFANG AND ANOTHER v. WING HING CONSTRUCTION COMPANY LTD AND ANOTHER
Parties
Applicant: Applicant; 1st Respondent (employer/self Contractor): 1st Respondent; 2nd Respondent: 2nd Respondent
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 August 2013
Case Number
DCEC1160/2012
Procedural Posture
Employees' Compensation Claim (death) / Application for Leave to Discontinue
Outcome
Leave to discontinue granted; no order as to costs for the proceedings (up to the time of argument hearing); respondents to pay costs of and incidental to the argument hearing to the Applicant (to be taxed if not agreed); order nisi to be made absolute in 14 days; Applicant's own costs taxed under Legal Aid...
Legal Topics
Employees' Compensation Ordinance, Causation, Accident in Course of Employment, Costs on Discontinuance
Source Language
EN
Employment Law Personal Injury Civil Procedure Costs Employees' Compensation Ordinance Causation Accident in Course of Employment Costs on Discontinuance

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Parties

Applicant

Applicant

1st Respondent

1st Respondent (employer/self Contractor)

2nd Respondent

2nd Respondent

Procedural Posture

Employees' Compensation Claim (death) / Application for Leave to Discontinue

Legal Issues

  1. 1 Whether the deceased's collapse constituted an accident arising out of and in the course of employment
  2. 2 Whether the presumption under section 5(4) ECO applies
  3. 3 Whether leave to discontinue should be granted with no order as to costs or whether the general rule ordering costs against a discontinuing plaintiff should apply

Ratio Decidendi

The court found uncontested evidence that the deceased was operating a road cutter and suddenly collapsed, which constituted an 'accident' in the course of employment; therefore the s5(4) presumption applied and the circumstances justified departing from the usual costs rule, granting leave to discontinue with no order as to costs and making an order nisi as to costs of the argument hearing in favour of the Applicant.

Court Disposition

Leave to discontinue granted; no order as to costs for the proceedings (up to the time of argument hearing); respondents to pay costs of and incidental to the argument hearing to the Applicant (to be taxed if not agreed); order nisi to be made absolute in 14 days; Applicant's own costs taxed under Legal Aid...

Orders

  • Leave to discontinue granted.
  • No order as to costs for these proceedings, including the summons application up to the time of the argument hearing.