LAI KING WAI v. KWAI CHUEN CONTAINER SERVICE CO LTD

DCEC805/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 805 OF 2002

_____________________

J U D G M E N T

_____________________

1. This is the assessment of the compensation payable to the Applicant in respect of an accident on 13 September 2000. Interlocutory judgment has already been entered in favour of the Applicant on 21 October 2002.

2. This case arose out of a traffic accident in the border with the mainland near the Customs office at Huangang. The Applicant, whilst in the course of employment as a container truck driver with the Respondent, was knocked down by a motorcycle. As a result of the accident, the Applicant complains that there is pain over his right knee when he moves. The pain is so severe that he cannot support himself on his right leg alone, and he needs a stick to support himself while walking. The pain is worse when he climbs stairs. According to him, he cannot walk or stand continuously for more than 15 minutes. Further, he cannot squat because of the stiffness of the right knee.

The Expert Evidence

3. The medical evidence in the present case is very much neutral. Pain is a subjective complaint, and so the medical experts of both parties did have difficulty in assessing whether the Applicant's complaints were genuine. To me, there are more agreements between the medical experts than differences. Firstly, they both agree that it is difficult to explain the severity of the Applicant's complaints by reference to positive medical findings. However, if the Applicant did not have any pre-accident disability and he suffered a limp after the accident, then such disability was caused by the accident itself. From a medical point of view, it was possible for the Applicant to have suffered pain and stiffness in the right knee as a result of the accident.

4. Both doctors also agree that there were signs of degenerative changes in both knee joints before the accident. However, the Applicant might not have suffered any symptoms arising from such disability, and it was possible that the present complaints of the Applicant were caused solely by the accident itself.

5. With such agreements, the two doctors differ on their assessment of the genuineness of the Applicant's complaints. As the muscle wasting present in the Applicant's right lower limb was not significant, and the medical finding as to the range of movement of the Applicant's right knee depended very much on the co-operation of the Applicant, it is quite understandable that the two doctors give a different assessment as to the genuineness of the Applicant's complaints. Ultimately, it is for this court to decide whether to accept the Applicant's evidence, and the outcome of this case depends mainly on the credibility of the Applicant's evidence.

Assessment of the Applicant's Evidence

6. In assessing the Applicant's evidence, I must bear in mind that pain and stiffness are subjective complaints, and it is very easy for the Applicant to exaggerate his injury in this regard. But despite such warning, I find that there is a certain degree of truth in the Applicant's evidence.

7. Firstly, I am of the view that the result of the surveillance conducted by the Respondent's private investigators actually supports the Applicant's case. According to the surveillance conducted on 28 February 2003, the Applicant was seen to be walking with a slight limp with the assistance of a walking stick. Although he could walk for a considerable distance, the Applicant actually took rests in the intervals, a fact which is not challenged by the Respondent. He also needed the assistance of his companion in descending normal steps. For the second surveillance conducted on 5 March 2003, the Applicant was seen walking without a walking stick, but he walked with a limp, though a very slight one, and he needed to hold on to the railing in order to help him to walk up a small step near the entrance of his building. His pace was slow to normal. The Applicant had no reason to believe that he was under surveillance on these two occasions, and so the Applicant's disability as shown in the surveillance tape cannot be anything other than a genuine complaint.

8. However, the Applicant claimed that he could not walk without a walking stick in his witness statement dated 5 March 2003. As he was seen walking without a walking stick on the same day, the Respondent complains that he has exaggerated his injury. In his testimony, the Applicant explains that as he was only buying groceries in a nearby store and he had taken pain-relieving medicine in the morning, that was why he did not use the walking stick for the short journey on 5 March 2003. In the absence of any rebuttal evidence in this regard, I accept it to be an honest explanation. In any event, one cannot dispute that he walked with some difficulty, though in a small degree, during the second surveillance, and this certainly shows that the Applicant's complaint is genuine. As I have mentioned above, he had no reason to believe that he was under surveillance by that time. Hence, though the Applicant could walk for a short distance without a walking stick, the limp and the difficulty experienced by the Applicant in climbing steps are genuine.

9. The second reason why I accept the Applicant's evidence relates to the risk of failing in the driving test which he was required to take. The Applicant knew full well that he might lose his licence to drive heavy vehicles if he did not perform well in the test. Nevertheless, his performance was below standard, and so the Transport Department revoked his licence to drive heavy vehicles.

10. One must bear in mind that the income of a container truck driver was quite handsome. Although the monthly income might not be as high as $29,100, which was the Applicant's income of the month immediately preceding the date of the accident, the monthly income was still in the region of $20,000 to $22,000. If the Applicant deliberately under-performed in the test, it was a very risky decision to take. One cannot predict whether his evidence would be accepted by the court, and there was no guarantee that he would receive substantial compensation in these proceedings. Facing the risk of litigation and the real risk of not being able to drive heavy vehicles again, I do not believe that the Applicant had deliberately under-performed in the driving test. Such test result certainly supports that the Applicant's complaints are genuine.

11. If the Respondent's case were to be believed, the Applicant must have been a cunning and calculating person. He calculated that the amount of compensation would be substantial, and as a result he gave up his job as a container truck driver. However, the Applicant has already suffered loss of income of 3 1/4 years by not being able to work as a container truck driver. Facing the risk of litigation and all the trouble of attending or pursuing the litigation, including attending various medical examinations, I doubt very much whether the Applicant would have gambled in such manner. Hence, I do accept that the Applicant's complaints are genuine in the present case.

12. According to the Applicant's evidence, he had no problem with his right knee before the accident. Again, there is a certain degree of truth in such allegation, otherwise the Respondent, being the Applicant's employer at the relevant time, should have been able to call rebuttal evidence without much difficulty. There is also a suggestion that the Applicant has received medical treatment to his right knee before the accident. The doctor in Pok Oi Hospital seemed to suggest that the Applicant revealed such information to him during the first medical examination on 13 September 2000. However, there are different ways of interpreting the contents of the report of Pok Oi Hospital, and the relevant doctor has not been summoned to explain his record. In such circumstances, I do not accept it to be the case. In any event, if the Applicant had received medical treatment in Tuen Mun Hospital as alleged, there should be medical record kept by the relevant hospital, but none was found in the present case.

13. Mr Wong, counsel for the Respondent, also submits that the medical findings made by the occupational therapist during the driving test and by Dr Chan Yuet-sim of Pok Oi Hospital on 16 May 2002 seem to suggest that the Applicant had full movement of the right knee. However, Dr Chan also noted that the movement of the Applicant's right knee was limited by pain, and she has not been summoned to explain the apparent inconsistency in her report. For the findings made by the occupational therapist, the details of the test are unknown, and perhaps it only shows that the Applicant has tried his very best to perform well in the test. Indeed, if the Applicant was a calculating person, he could have deceived the examiners into believing that the movement of his right knee was limited, and yet this was not the case here. Hence, in the absence of further explanations by the relevant examiners, I do not find that such evidence would undermine the credibility of the Applicant's case.

14. Based on the aforesaid, I accept the Applicant to be an honest and truthful witness. Based on his testimony, causation is no longer an issue, as medical experts of both parties agree that if the Applicant had no symptom associated with the degenerative changes in his knee prior to the accident, the present complaints of the Applicant are all caused by the accident itself. Hence, the pre-existing degenerative condition of the Applicant has no bearing in the present case.

Compensation under Section 9

15. As I find that the Applicant's complaints are genuine, it is not too difficult to imagine that he has great difficulty in returning to work as a container truck driver. Such a job requires long working hours. Further, the design of the brake pedal in container trucks is different from that of private vehicles, and so the Applicant has difficulty in lifting up his leg and applying force to the pedal. I suppose these are the same reasons why the Transport Department has revoked the Applicant's licence to drive heavy vehicles. By not being able to return to his former employment with handsome income, I find that there are special circumstances in the present case to justify the application of section 9(1A) of the Employees' Compensation Ordinance.

16. The Applicant was aged 46 at the time of the accident. It is also not in issue that the monthly income of the Applicant for the month immediately preceding the date of the accident was $29,160. Hence, if there is permanent total incapacity, his compensation would be in the sum of $1,512,000 ($21,000 x 72 months).

17. It is common ground that the Hong Kong Paper Mill formula, as perfected in the case of Lui Kwong-yan v Shui Hing Decoration Works & Another [1993] 1 HKLR 168, should be adopted in assessing the compensation if section 9(1A) is to be applied. According to Dr Cheng, the Applicant's medical expert, the Applicant is able to take up office attendant, messenger or cashier as alternative employment as a result of his disability. As the Applicant has only received education up to about Primary 5 level, such a suggestion is a reasonable one. According to the table of average monthly earnings received by the Selective Placement Division of the Labour Department, the average monthly income of such kinds of jobs was in the region of $5,000 at the time of the accident, and I therefore adopt this figure as the wages that were capable of being earned by the Applicant undertaking other alternative employment at the date of the accident.

18. It has been suggested that the Applicant can work as a taxi-driver. However, after failing in two previous taxi-driver licence tests, and such job requires relatively long working hours, I do not accept it to be a suitable alternative employment for the purpose of calculating the compensation under section 9.

19. Based on the aforesaid, and adopting the Hong Kong Paper Mill formula, the compensation of permanent partial incapacity under section 9 can be assessed as follows:

$29,160 - $5,000	x $1,512,000 = $1,252,740.74
$29,160

Compensation under Section 10

20. I now turn to the claim for compensation of temporary incapacity under section 10. There are a number of issues to be dealt with here. Firstly, the Applicant was granted a period of 21 months of sick leave after the accident, and the Employees' Compensation (Ordinary Assessment) Board also confirmed the sick leave period in the Certificate of Review of Assessment. As the Respondent seeks to argue that the sick leave period should have been much shorter, the Respondent applies for leave for extension of time to appeal against the said Certificate under section 18(2) of the Employees' Compensation Ordinance.

21. By virtue of the said subsection, the appeal against a certificate of assessment made by the Employees' Compensation (Ordinary Assessment) Board needs to be made within 6 months from the date of the issue of the certificate. In the present case, the Certificate was issued on 4 September 2002, but no explanation has been given by the Respondent regarding the delay in the lodging of the appeal.

22. As to the proper approach for the exercise of discretion to extend the time for appeal, there are two different views. The first one is the more restrictive approach adopted by To DJ in the case of Yu Hao-jan v Wan Yuen Kong t/a Luen Hop Metal Company, unreported, DCEC No. 784/1998 (decision of Toh DJ on 4 March 1999). The learned judge held that the applicant must be able to show a reasonable excuse before the court would exercise its discretion to extend the time. On the other hand, Deputy Judge Lin in the case of Yung King v Ka Ming Hop Yick Engineering Co. & Others, unreported, DCEC No. 655/2000 (decision of Deputy Judge Lin on 10 September 2002) adopted a different approach. According to the learned deputy judge, it is not necessary for the applicant to show reasonable excuse. So long as the extension of time does not cause any prejudice to the other side which cannot be compensated by an appropriate award of costs, such leave should be granted.

23. I do not think that I can agree with the approach adopted by Deputy Judge Lin. The importance of adhering to the time limits prescribed in the Employees' Compensation Ordinance has been emphasised by Godfrey JA in the case of Chung Lung-shun v Adams Parking (International) Limited, unreported, Civil Appeal No. 160/1995:

"A scheme such as this can work properly only if time limits are imposed for the taking of such steps as may be necessary to see that its provisions are effective. The law frowns upon stale claims, and it is plainly important that this sort of legislation should prescribe time limits within which the employee must take the various steps necessary to prosecute his claim. In the case of the present scheme, such time limits are indeed prescribed."

If Deputy Judge Lin's approach is correct, the applicant needs not even supply the reason for the delay in applying for extension of time, this simply cannot be right.

24. In my judgment, in an application of this sort, the applicant is expected to justify the delay in the lodging of the appeal. The absence of such justification alone would normally be sufficient for the court to refuse the application. In the case that an unreasonable excuse is given, the court then has to consider such excuse and to balance it with the other factors of the case, such as the prejudice caused to the other party. I agree with the view expressed by Carlson DJ in the case of Kwok Yau-tai v Tung Wah Group of Hospitals, unreported, DCEC No. 44/2000 (decision of Carlson DJ on 11 April 2002), in which the learned judge said in paragraph 22:

"Every case is different but I apprehend that where there is already in place a section 18A application before the court, the question of an appeal out of time against a certificate of review is to be considered, if anything, more generously than under the strict requirements of section 14(4) application for extension of time."

In my judgment, it is very difficult for the court to lay down hard-and-fast rules relating to the exercise of such discretion.

25. However, I am prepared to depart from my observations mentioned above. The Applicant here has already lodged an appeal against the relevant Certificate of Assessment, as he was not satisfied with the loss of earning capacity assessed by the Board. As the Applicant has already put the Certificate in issue in the present case, I am prepared to allow the Respondent extension of time to challenge the same Certificate. As the court has to consider the Certificate in any event, it would be rather artificial for the court to examine one decision of the Board and to ignore the other. The importance of the finality of the Certificate will not be compromised by extending the time in the present case, and I therefore grant the Respondent's application and make an order in terms of the Respondent's summons dated today.

26. Even with such a ruling, I do not think that it can benefit the Respondent's case. Although the medical experts of both parties agree that a sick leave period of about 12 months was sufficient in the present case, section 10(2) of the Employees' Compensation Ordinance does not allow the court to revisit such issue.

27. Section 10(2) reads as follows:

"For the purposes of this section a period of absence from duty certified to be necessary by a medical practitioner, a registered dentist, an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury."

In Yu Cheung-yim v Lucky Friend Industrial Ltd, unreported, DCEC No. 160/1995 (decision of Longley DJ on 10 April 1996), the learned judge construed the said provision as follows:

"Whether or not the word 'deemed' when used in a Statute establishes a conclusive or rebuttal presumption depends upon the context. I am satisfied that the context of the Employees' Compensation Ordinance indicates that (in the absence of proof of fraud) the legislature intended it to be a conclusive presumption. The scheme of the Employees' Compensation Ordinance is to provide (except when circumstances do not allow) the scheme of readily ascertainable compensation which, in the case of periodic payments under Section 10, is payable on the same day as wages. This object would be largely frustrated if a sick leave certificate was only to constitute prima facie evidence of the necessity for such sick leave. Furthermore it accords with social justice that an injured workman should be able to take sick leave recommended by his doctor confident in the knowledge that he will be remunerated during that period and that his employer cannot subsequently seek to demonstrate that it was unnecessary."

28. As mentioned above, there is certainly good policy consideration behind such construction. The finality of the doctor's decision therefore has practical significance. Further, different doctors may have different views on the duration of the proper sick leave period, and in my judgment, the doctor who examined the patient at the particular time would be the best person to determine whether sick leave was required. There is also safeguard against abuses. If the sick leave certificates were obtained by fraud, the court is always free to reopen the issue. Hence, despite the views of the medical experts of both parties, I adopt the certified sick leave period of 21 months for the purpose of calculating the compensation of temporary incapacity under section 10.

29. Based on the aforesaid, the compensation under section 10 can be assessed as follows:

	4
$29,160 x 21 months x	5 = $489,888

30. It is common ground that the Applicant is entitled to claim a sum of $2,883 as medical expenses under section 10A.

Conclusion

31. To summarise, the quantum of the Applicant's claim is as follows:

Compensation under section 9	$1,252,740.74
Compensation under section 10	$489,888.00
Compensation under section 10A	$2,883.00
less advance payment	$430,658.10
	$1,314,853.64

32. The only matter left now is interest. There is no uniform approach to this issue. I have considered the view of the learned authors of Butterworths' Hong Kong Personal Injury Service, 2003 ed., paragraphs 855 to 900. According to them, interest should be awarded from the date of the accident. In the present case, I am more inclined to follow the approach of Deputy Judge Davis in Tse Hin v Ying Ming Construction Ltd., unreported, KECC No. 101/86 and that of H C Wong DJ in So Ka Chun v Ho Tai Sing, unreported, DCEC No. 592/2000, in awarding interest at half the judgment rate from the date of the accident. In my view, some of the losses, such as the loss of income associated with temporary incapacity and medical expenses, were only suffered by the Applicant after the accident. Such losses arose at later dates, and so it is not fair for the Applicant to get the full judgment rate from the date of the accident. I therefore only award the Applicant interest on the award at half the judgment rate, that is 4%, from the date of the accident to the date hereof, and thereafter at judgment rate.

33. Finally, I must express my gratitude to both counsel for their able submissions and the assistance that they have provided to this court.