TSOI CHUNG KAK v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD

TSOI CHUNG KAK v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD

On the balance of probabilities the plaintiff and his solicitors had made repeated reasonable attempts over four years to identify and locate the employer and had exhausted reasonable avenues; accordingly the court granted leave under s.25 to issue proceedings against the Fund Board as if it were the employer, rejecting the defendant's contention that proceedings should be issued against the registered mobile subscriber without strong positive evidence of employer status.

Citation
TSOI CHUNG KAK v. EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD
Parties
Plaintiff: Mr. Tsoi; Defendant: Employees Compensation Assistance Fund Board
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 April 2009
Case Number
DCMP744/2007
Procedural Posture
Application Under S.25 Employees Compensation Assistance Ordinance (cap.365) / Originating Summons for Leave to Issue Proceedings Against the Fund Board; Judgment on Application (leave Granted)
Outcome
Leave granted to Plaintiff to issue proceedings against the Defendant as if it were the employer.
Legal Topics
Employees Compensation Assistance Ordinance S.25, Identification and Location of Employer, Leave to Sue Fund Board as Employer, Legal Aid and Public Funds
Source Language
EN
Employment Law Workers' Compensation Civil Procedure Employees Compensation Assistance Ordinance S.25 Identification and Location of Employer Leave to Sue Fund Board as Employer Legal Aid and Public Funds

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Parties

Mr. Tsoi

Plaintiff

Employees Compensation Assistance Fund Board

Defendant

Procedural Posture

Application Under S.25 Employees Compensation Assistance Ordinance (cap.365) / Originating Summons for Leave to Issue Proceedings Against the Fund Board; Judgment on Application (leave Granted)

Legal Issues

  1. 1 Whether the plaintiff exhausted all reasonable attempts to identify and locate the employer
  2. 2 Whether section 25 permits issuing proceedings against the Fund Board as if it were the employer where the employer cannot be identified or found
  3. 3 Whether the plaintiff must first establish liability against the employer or insolvency before invoking s.25

Ratio Decidendi

On the balance of probabilities the plaintiff and his solicitors had made repeated reasonable attempts over four years to identify and locate the employer and had exhausted reasonable avenues; accordingly the court granted leave under s.25 to issue proceedings against the Fund Board as if it were the employer, rejecting the defendant's contention that proceedings should be issued against the registered mobile subscriber without strong positive evidence of employer status.

Court Disposition

Leave granted to Plaintiff to issue proceedings against the Defendant as if it were the employer.

Orders

  • Leave granted to the Plaintiff to issue proceedings against the Defendant under s.25 of the Employees Compensation Assistance Ordinance
  • Costs to be in the cause and to be taxed if not agreed