SHAHZAD AJMAL v. CHAKWAL AUTO TRADERS (HK) LTD AND ANOTHER

SHAHZAD AJMAL v. CHAKWAL AUTO TRADERS (HK) LTD AND ANOTHER

The applicant failed to prove on the balance of probabilities that he was employed by the 1st respondent on 10 April 2015 and failed to prove the accident occurred in the course of such employment; the court preferred the evidence of Shahid and found material inconsistencies and omissions in the applicant's evidence and documentary record (Notification, medical records). Accordingly the application for employees' compensation was dismissed; because the applicant was not lawfully employable the court would not award s.10 temporary incapacity payments even if liability were established; costs were ordered against the applicant.

Citation
[2019] HKDC 876
Parties
Applicant: Shahzad Ajmal; 1st Respondent: Chakwal Auto Traders (HK) Limited; 2nd Respondent: Employees Compensation Assistance Fund Board
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
5 July 2019
Case Number
DCEC2556/2015
Procedural Posture
Employees Compensation / Judgment
Outcome
Application dismissed
Legal Topics
Employees Compensation Ordinance, Illegal Employment, Discretion Under S.2(2), Assessment of Earnings, Causation and Onus of Proof
Source Language
EN
Employment Law Personal Injury Statutory Compensation Employees Compensation Ordinance Illegal Employment Discretion Under S.2(2) Assessment of Earnings Causation and Onus of Proof

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Parties

Shahzad Ajmal

Applicant

Chakwal Auto Traders (HK) Limited

1st Respondent

Employees Compensation Assistance Fund Board

2nd Respondent

Procedural Posture

Employees Compensation / Judgment

Legal Issues

  1. 1 Was the applicant employed by the 1st respondent on 10 April 2015?
  2. 2 Did the applicant sustain the accident at the premises on 10 April 2015 arising out of and in the course of employment?
  3. 3 Should the court exercise its discretion under s.2(2) to treat the employment as valid if proven?

Ratio Decidendi

The applicant failed to prove on the balance of probabilities that he was employed by the 1st respondent on 10 April 2015 and failed to prove the accident occurred in the course of such employment; the court preferred the evidence of Shahid and found material inconsistencies and omissions in the applicant's evidence and documentary record (Notification, medical records). Accordingly the application for employees' compensation was dismissed; because the applicant was not lawfully employable the court would not award s.10 temporary incapacity payments even if liability were established; costs were ordered against the applicant.

Court Disposition

Application dismissed

Orders

  • Applicant shall pay the 1st Respondent the costs of this application, including all reserved costs, to be taxed if not agreed
  • Applicant shall pay the 2nd Respondent the costs of this application as from 18 Apr 2017, including all reserved costs and the costs of this trial with certificate for counsel, to be taxed if not agreed