涂志強 v. 合生公司 (商號) AND ANOTHER

涂志強 v. 合生公司 (商號) AND ANOTHER

The Board was joined only as an intervener to protect the Fund and not as if it were the employer; because the 1st Respondent had not been served no judgment could be entered against it; on the facts the Applicant failed to prove employment or causation on the balance of probabilities and the court declined to exercise the s.2(2) discretion in his favour; consequently the action was dismissed.

Citation
涂志強 v. 合生公司 (商號) AND ANOTHER
Parties
Applicant: Applicant; 1st Respondent: 1st Respondent; 2nd Respondent: 2nd Respondent
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
27 May 2011
Case Number
DCEC40/2010
Procedural Posture
Employees Compensation Claim / Trial Judgment
Outcome
Action dismissed
Legal Topics
Employees Compensation Ordinance S.2(2) Discretion, Employees Compensation Assistance Ordinance Ss.16, 25, 25 a, Joinder and Intervention, Service of Process and Substituted Service, Liability and Causation, Costs
Source Language
EN
Employment Law Workers' Compensation Civil Procedure Administrative/statutory Bodies Employees Compensation Ordinance S.2(2) Discretion Employees Compensation Assistance Ordinance Ss.16,25,25 a Joinder and Intervention Service of Process and Substituted Service +2 more

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Parties

Applicant

Applicant

1st Respondent

1st Respondent

2nd Respondent

2nd Respondent

Procedural Posture

Employees Compensation Claim / Trial Judgment

Legal Issues

  1. 1 Whether judgment can be entered against the 1st Respondent when proceedings have not been served on it
  2. 2 Whether the Employees Compensation Assistance Fund Board (2nd Respondent) was joined as if it were the employer and thus directly liable
  3. 3 Whether the Applicant proved on the balance of probabilities that he was employed by the 1st Respondent at the time of the accident

Ratio Decidendi

The Board was joined only as an intervener to protect the Fund and not as if it were the employer; because the 1st Respondent had not been served no judgment could be entered against it; on the facts the Applicant failed to prove employment or causation on the balance of probabilities and the court declined to exercise the s.2(2) discretion in his favour; consequently the action was dismissed.

Court Disposition

Action dismissed

Orders

  • Action dismissed
  • No judgment to be entered against the 1st Respondent as proceedings have not been served on it