CHEUNG WAN LUN v. HOP HING CONSTRUCTION & ENGINEERING (H.K.) CO AND ANOTHER

CHEUNG WAN LUN v. HOP HING CONSTRUCTION & ENGINEERING (H.K.) CO AND ANOTHER

The court adopted $16,415 as monthly earnings under s.11(2) based on comparable worker records, found a 4% loss of earning capacity on medical evidence, held that s.10(2) creates an irrebuttable presumption of total temporary incapacity absent distinct pleading and proof of fraud, found no pleaded or proved fraud, therefore allowed periodical payments for the 36 months certified, awarded s.9, s.10 and s.10A sums, set off advance payment and ordered interest and costs.

Citation
CHEUNG WAN LUN v. HOP HING CONSTRUCTION & ENGINEERING (H.K.) CO AND ANOTHER
Parties
Applicant: Cheung Wan Lun; 1st Respondent: Hop Hing Construction & Engineering (H.K.) Company; 2nd Respondent: Hip Hing Construction Company Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 April 2011
Case Number
DCEC560/2009
Procedural Posture
Employees Compensation (district Court) / Judgment (28 April 2011)
Outcome
Application allowed in part. Compensation awarded to Applicant in aggregate after set‑off.
Legal Topics
Employees Compensation Ordinance, Calculation of Monthly Earnings Under S.11(2), Permanent Partial Incapacity S.9, Temporary Incapacity S.10 and S.10(2) Deeming Provision, Periodical Payments S.10(5), Medical Expenses S.10 a, Allegation and Pleading of Fraud
Source Language
EN
Employment Personal Injury Workers' Compensation Employees Compensation Ordinance Calculation of Monthly Earnings Under S.11(2) Permanent Partial Incapacity S.9 Temporary Incapacity S.10 and S.10(2) Deeming Provision Periodical Payments S.10(5) +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 14 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Cheung Wan Lun

Applicant

Hop Hing Construction & Engineering (H.K.) Company

1st Respondent

Hip Hing Construction Company Limited

2nd Respondent

Procedural Posture

Employees Compensation (district Court) / Judgment (28 April 2011)

Legal Issues

  1. 1 Proper basis for assessing monthly earnings of short‑term employee under s.11(2) ECO
  2. 2 Percentage loss of earning capacity attributable to the accident
  3. 3 Whether s.10(2) deeming provision is rebuttable or conclusive and whether fraud was established

Ratio Decidendi

The court adopted $16,415 as monthly earnings under s.11(2) based on comparable worker records, found a 4% loss of earning capacity on medical evidence, held that s.10(2) creates an irrebuttable presumption of total temporary incapacity absent distinct pleading and proof of fraud, found no pleaded or proved fraud, therefore allowed periodical payments for the 36 months certified, awarded s.9, s.10 and s.10A sums, set off advance payment and ordered interest and costs.

Court Disposition

Application allowed in part. Compensation awarded to Applicant in aggregate after set‑off.

Orders

  • Respondents to pay Applicant HKD 208,464.80 together with interest at half‑judgment rate from 7 June 2007 until judgment and thereafter at judgment rate until payment in full
  • Respondents to pay the costs of the application to the Applicant (with certificate for counsel), to be taxed if not agreed; costs order nisi to become absolute in absence of application to vary within 14 days