LAI YUEN HING v. LO CHI HUNG TRADING AS KAM HUNG CONSTRUCTION CO. AND ANOTHER

DCEC14/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO.14 OF 2000

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JUDGMENT

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1. This is an application for employees' compensation taken out by the applicant against the 1st and 2nd respondents pursuant to the Employees' Compensation Ordinance (Cap.282) ("the Ordinance"). It arose out of an accident that took place on 10 January, 1998. At the time of the accident, the applicant was employed by the 1st respondent as a labourer on a construction site in North Point. The construction site was known as the Olympia Theatre Redevelopment Site and located at Nos.234-255 King's Road, North Point, Hong Kong. It is common ground that the 2nd respondent was the principal contractor of the site and the 1st respondent was its sub-contractor.

The Accident

2. On 10 January, 1998, the applicant was assigned to extract nails from plywood boards on the 5th floor of the building under construction. When she was doing the job there, 2 to 3 wooden bars suddenly fell from the 6th floor, and one of the fallen wooden bars which was 3 feet long and 2 inches wide hit the applicant on her head. At that time she was wearing a safety helmet. However, because the helmet came loose, she was injured and had a brief loss of consciousness. As a result, she was admitted to the emergency department of Pamela Youde Nethersole Eastern Hospital for treatment. On examination, she was only found to have a 1 cm scalp haematoma over the frontal region. She was discharged home after a few hours' observation.

3. At the hearing before me, the respondents do not dispute the occurrence of the accident, and the matter was confined to the question of quantum of compensation. In the present case, the applicant gave evidence and called one medical expert, Dr. Judy Chan, while the respondents called one lay witness, Mr. Ng Yu Fung, and one medical expert, Dr. Edmund Woo.

The applicant's case

4. The applicant was born in the mainland on 17 September, 1957. She was 40 years old at the time of the accident. She did not receive any education and only came to live in Hong Kong on 5 September, 1995. At the time of the accident, the applicant worked for the 1st respondent at the construction site in question at a daily wage of $650.00 to $700.00. She claimed to have worked for about 20 days per month or 5 to 6 days per week. In the Form 2 filed by the 2nd respondent, the applicant was stated to have earned $18,200.00 per month on average. On the basis of a daily wage of $700.00, this would mean that she worked for 26 days per month. This is not too different from the applicant's evidence in this respect. I am prepared to adopt $18,200.00 as the applicant's monthly earnings at the time of the accident.

5. Since the accident, she has complained of distending discomfort over her right frontal scalp, particularly when she bends down or lies on her right side. She claims that the pain may sometime spread out to reach the back of the neck, the right shoulder and even the right anterior chest wall, and the headache may be associated with dizziness, nausea and vomiting. She also claims to have suffered an impairment of memory and have had spells of forgetfulness. However, in the course of her giving evidence, I observed that she was able to give evidence in a coherent and intelligent fashion, and she did not give the impression of forgetfulness or impaired memory.

6. After the accident, she was given sick leave on and off for 14 days between 10 January, 1998 and 7 February, 1998. Although she complained of headache and dizziness, she was able to resume work at the construction site after the accident. She claimed that she continued to work until late April, 1998, but she said that she quit her job because her husband was admitted to hospital. However, in December, 1998, she had a row with her husband about his smoking problem, and thereafter she took up a cleaning job with Win Faith Construction Company ("Win Faith"). She worked for Win Faith from 1 January, 1999 to 15 May, 1999, at a daily wage of $380.00.

7. On 28 April, 1999, the applicant was assessed by the Employees' Compensation (Ordinary Assessment) Board. On 12 May, 1999, the Ordinary Assessment Board issued a certificate of assessment and certified that no loss of earning capacity was permanently caused by the injury. Then on 17 May, 1999, the applicant attended Pamela Youde Nethersole Eastern Hospital again and obtained a sick leave for 3 days for post-traumatic headache. Thereafter, apart from 2 short intervals, her sick leave continued until 14 April, 2000.

8. From 26 October, 2000 to 6 April, 2001, the applicant worked for Yu's Tin Sing Enterprises Company Limited as a cleaner. In early 2001, she also took up a cleaning job with a company called Cheung Kee. From July, 2001 to January, 2002, the applicant went to work also as a cleaner for another company called Shing Shun Cleaning Company. No sick leave has since 6 April, 2001 been obtained by the applicant. On the other hand, she claims that, in the course of her employment mentioned above, she suffered from recurrent headache, dizziness and intermittent vomiting which required her to rest from time to time and take painkillers frequently.

9. On 26 July, 2001, the Ordinary Assessment Board reviewed the original assessment made on 28 April, 1999 and, according to the certificate of review of assessment issued on 9 August, 2001, the loss of earning capacity was varied from 0% to 15%. In this application, the applicant claims compensation under ss. 9, 10 and 10A of the Ordinance.

The respondents' case

10. The respondents called Mr. Ng Yu Fung to give evidence. Mr. Ng was an employee of the 1st respondent. He introduced the applicant to work for the 1st respondent. He said that the applicant rested for about 7 to 8 days after the accident and returned to work for about 7 to 8 months. She left the construction site when the construction work was almost completed. He was able to remember it because the applicant did go to the Labour Department with other workers to complain about overdue wages owed by the 1st respondent in September, 1998. After she resumed work, he did not notice any difference in her performance, and her working hours were the same as other labourers. He had also not heard of any complaint about her performance after the accident. On the other hand, he accepted that he only visited the construction site every 2 to 3 days. Mr. Ng also gave evidence that the monthly earnings of the applicant should be between $13,000.00 to $14,000.00 instead of $18,200.00 as she worked for about 20 days per month and her daily wage was about $650.00 to $700.00.

11. The court has also seen a private investigator's videotape of the applicant walking and working. The videotape was taken between 24 February, 2001 and 27 February, 2001. As far as the footage screened in court is concerned, she does not appear to have any difficulty in walking or in working for long periods.

Section 9

12. The applicant claims compensation under section 9 of the Ordinance. In doing so, the applicant relies not only on the certificate of review of assessment dated 9 August, 2001, but she also asks me to adopt the formula set out in Hong Kong Paper Mills Ltd. v. Chan Hin Wu [1981] HKLR 556 and modified in Lui Kwong Yan v. Shui Hing Decoration Works [1993] 1 HKLR 168. Counsel for the applicant submits that the most gainful post-accident employment that the applicant had obtained was the one with Win Faith and her then monthly salary was about $6,080.00. Counsel submits that according to the modified formula laid down in Hong Kong Paper Mills Ltd. v. Chan Hin Wu, the compensation payable to the applicant under s. 9 should thus be: ($18,200.00 - $6,080.00)/$18,200.00 x ($18,200.00 x 72) = $872,640.00. However, this seems to ignore the fact that, even according to the applicant's own evidence, she returned to work for the 1st respondent after the accident until late April, 1998. During that period, there is no suggestion that she earned any less than what she did before the accident.

13. In determining compensation payable under s.9, the main issue must be whether any permanent partial incapacity results from the injury. Before I deal with that, there is a procedural matter I need to consider first. During the trial, leave was granted to the respondents to appeal against the certificate of review of assessment dated 9 August, 2001 out of time. In Yung King v. Ka Ming Hop Yick Engineering Co. & others DCEC No.655 of 2000 (unrep. 10 September, 2002), I said that save in special cases or exceptional circumstances, an extension of time under s.18 of the Ordinance should ordinarily be granted if it would cause the other party no prejudice for which he could not be compensated by an award of costs. However, while the notice of application includes an appeal against the original assessment of 12 May, 1999, no application has so far been made to include an appeal against the review of assessment. In Ng Ming Cheong v Mass Transit Railway Corp. [1997] 3 HKC 413, it was held by the Court of Appeal that the assessments of the Ordinary Assessment Board and the Special Assessment Board were to be final unless appealed within a limited period of time under s 18 of the Ordinance.

14. I believe that the omission to lodge an appeal against the review of assessment formally is nothing more than an oversight as the notice of application has already included the appeal against the original assessment. Had there been an application before me for leave to amend the notice of application to include an appeal against the review of assessment, I would have had no hesitation in granting such a leave. In my view, nothing turns on this, and I shall treat the appeal mentioned in the notice of application as an appeal against the review of assessment.

15. I now turn to the question whether it is established that permanent partial incapacity results from the injury. In Ystradowen Colliery Company, Limited v. Griffiths [1909] 2 KB 533, it was held that where a workman received personal injury from an accident arising out of and in the course of his employment and disease ensued which incapacitated him for work, the incapacity might be the result of the injury within the meaning of the Workmen's Compensation Act, 1906, even though it was not the natural result of the injury. The question to be determined on a claim for compensation is whether the incapacity was in fact the result of the injury. In that case, Cozens-Hardy MR said:

"I also think that in considering questions of this kind it is quite legitimate and proper to consider whether an accident has not accelerated an existing tendency to disease in the body, or, as some people have said, has given life to certain latent causes of mischief in the body............... The question is whether the man's present condition is the result of the accident in this sense, that it is occasioned by his debilitated condition immediately after the accident and occasioned by the accident which he has met with."

16. I have also borne in mind what the Court of Appeal said in Lee Kin Kai v. Ocean Tramping Co. Ltd. [1991] 2 HKLR 232 to the effect that causation is essentially a matter for the judge not for the doctors. While a judge will be assisted by the medical evidence he is not dictated to by it. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury, even if it was not the sole cause. When considering causation a judge is not only entitled but is bound to use his common sense to approach the question in the same way as would a juror. Therefore the judge is not only entitled but is sensible to start with the facts. When considering the evidence he is not confined to those matters which the doctors may individually have picked out in their consulting rooms.

17. I have to say at the outset that I am not impressed by the applicant's evidence. It does not appear that the applicant's injury was very serious when she was admitted to the emergency department of Pamela Youde Nethersole Eastern Hospital. She was discharged home after a few hours' observation. She resumed her pre-accident job shortly after the accident. According to her, she then continued to work for the 1st respondent until late April, 1998 when she quit her job in order to take care of her husband. In this respect, I do not believe her evidence and I prefer the evidence of Mr. Ng Yu Fung who remembered that the applicant did go to the Labour Department with other workers to complain about overdue wages owed by the 1st respondent in September, 1998. I find as a fact that the applicant continued to work at the construction site for 7 to 8 months after the accident.

18. Not only had the applicant continued to work for a long period of time shortly after the accident, but there was also a marked absence of medical treatment between February, 1998 and May, 1999. She sought to explain in her evidence to me that what happened was that she received medical treatment in the mainland every 2 to 3 months. This evidence is not supported by any documentary evidence. I do not find this explanation credible at all and I reject it.

19. Right after the Ordinary Assessment Board certified no loss of earning capacity caused by the injury on 12 May, 1999, she then attended Pamela Youde Nethersole Eastern Hospital on 17 May, 1999 complaining of headache. Thereafter she attended Pamela Youde Nethersole Eastern Hospital at fairly regular intervals resulting in her sick leave period being extended until 14 April, 2000. It struck me as rather odd that she had become so ill after she was assessed by the Ordinary Assessment Board to have suffered no loss of earning capacity on 12 May, 1999. I shall now turn to the medical evidence in this case.

20. The applicant called Dr. Judy Chan to give evidence. Dr. Chan is a psychiatrist in Queen Mary Hospital. She was called to give expert evidence on behalf of the applicant. However, I have some reservation in receiving her expert evidence as she is also the treating doctor of the applicant and the impartiality of her evidence may be called in question. In the absence of special circumstances, it is in my view not desirable to call a treating doctor or surgeon to give expert evidence on behalf of a party in that it may not always be easy for him to adopt a very detached attitude in assisting the court with his expertise. By making this general observation, I intend no discourtesy to Dr. Chan, and I have no doubt that she gave evidence before me very honestly and professionally. Since the respondent took no issue in this respect and did not challenge Dr. Chan's expertise when she was called, I am prepared to accept Dr. Chan's evidence as an expert.

21. According to her report dated 20 November, 2001, the applicant was referred to the Western Psychiatric Centre by the neurosurgeons in February, 2000 due to frequent vomiting, dizziness and vertigo. The dizziness was aggravated by lying on right side and bending down body. The CT scan of her brain which was performed on 20 February 2001 was normal. Initial psychiatric assessment on 12 March 2001 revealed that she had suffered from depressed mood for 2 years. She had difficulty in sleep and poor appetite with loss of weight. She had poor concentration and suicidal idea. She was reported to have dizziness at times and persistent right facial numbness. Her mental state was improved by antidepressant. In the opinion of Dr. Chan, the applicant was diagnosed to have post-concussion syndrome and her degree of permanent disability was estimated to be about 15%. However, she expressed no view on her loss of earning capacity.

22. The respondents called Dr. Edmund Woo to give expert evidence on their behalf. Dr. Woo prepared 2 medical reports dated 14 February, 2001 and 2 March, 2002. According to Dr. Woo, the applicant had sustained no more than a mild head injury on 10 January, 1998. Her examination showed normal cognitive functions. There were no focal motor or sensory deficits. The neurological examination was normal. The x-ray of her skull was also normal. So were the CT brain scans. Between February, 1998 and May, 1999, there was no record of any medical treatment. On 17 May, 1999, she attended the emergency room of Pamela Youde Nethersole Eastern Hospital again complaining of headache. She was assessed repeatedly at the neurosurgical outpatient clinic of Pamela Youde Nethersole Eastern Hospital between May 1999 and April 2000, at intervals of between 3 to 8 weeks. She continued to complain of a varying combination of headache and dizziness during those visits, but the neurological examination never revealed any abnormal signs. Dr. Woo further explains to me that in the case of the post-concussional syndrome, the symptoms should appear more acutely within the first few weeks and thereafter gradually settle down. The applicant was able to return to work within 2 weeks after the accident and continued to work for a few months. Her ability to return to work early is a good prognostic sign and militates against any significant residual handicap. While she might have symptoms of the post-concussional syndrome after the first 12 months of the accident, it was most unlikely that these symptoms were severe.

23. Dr. Woo is of the view that the applicant has made a good recovery from her injury. In his opinion, a periodical sick leave for, say, 1 to 2 days a month when symptoms are exacerbated would be acceptable, but a continuous sick leave for a year would be most inappropriate. He explains to me that sick leave is often given on cursory examination, and the government doctor in charge who often works under pressure would, quite understandably, simply take the words of the patient. Further the patient is not seen by the same doctor all the time. This, says Dr. Woo, explains the excessive sick leave period granted to the applicant.

24. Dr. Woo is also of the view that the surveillance videotape provides strong evidence that she was fully capable of manual labour, and she has no or minimal residual disability. It also indicates that the residual symptoms of headache and dizziness could not be more than mild and intermittent in nature. In his view, the 15% loss of earning capacity as assessed by the Ordinary Assessment Board on review on 26 July 2001 was clearly inappropriate, and, given her mild head injury, her loss of earning capacity should not exceed 1%.

25. In relation to the medical evidence, I have to say that I prefer Dr. Woo's evidence to Dr. Chan's. I consider that the opinion he gave at the trial is well-founded and accords with the evidence I have heard in this case. While I am not dictated by what Dr. Woo said, I find his evidence very helpful in assisting me in resolving the issue whether permanent partial incapacity results from the injury. In relation to the evidence of the applicant, I find many aspects of her evidence incredible and unsatisfactory and they do not hold up to scrutiny. While I cannot rule out that she might have experienced some minor headache or nausea once in a while, the accident could not account for her continual complaints of discomfort up to now and her sick leave between May 1999 and April, 2000. I doubt very much that her continual complaints of discomfort since May, 1999 were genuine. In any event, they must have been exaggerated by the applicant. The original assessment of no loss of earning capacity and also her husband's unfortunate death some 2 years ago are perhaps the more likely explanations for her complaints of discomfort and her depressed mode since May, 1999 and not the accident. Even if her complaints of discomfort since May, 1999 were genuine, they were, in my view, not the result of the accident which she met with on 10 January, 1998.

26. In my judgment, save for a very minor extent, no permanent partial incapacity results from the injury in this case, and her loss of earning capacity is assessed at 1%, taking into account the possibility that she may have very minor headache or nausea once in a while. As a result, I allow the respondents' appeal against the certificate of review of assessment dated 9 August, 2001 and substitute 1% as her loss of earning capacity for the 15% loss of earning capacity arrived at by the Ordinary Assessment Board. In the light of what I have said, I do not need to deal with the interesting argument raised by counsel for the applicant concerning the application of the modified formula laid down in Hong Kong Paper Mills Ltd. v. Chan Hin Wu. I therefore assess section 9 compensation at $13,104.00: ($18,200.00 x 72) x 1%.

Section 10

27. It is common ground that the applicant has already received $108,700.00 from the respondents for the sick leave period between May 1999 and January, 2000. The applicant is now applying for payment under s.10 of the Ordinance for the 14 days' sick leave period right after the accident and the sick leave period between February, 2000 and 14 April, 2000. The amount claimed under this section is $25,967.50: ($18,200.00 x 14/31 x 4/5) + ([$18,200.00 - $6,080.00] x 2 x 4/5).

28. In relation to the sick leave period, I also accept Dr. Woo's evidence that a periodical sick leave for, say, 1 to 2 days a month when symptoms are exacerbated is acceptable, but a continuous sick leave for a year is not inappropriate. However, s.10(2) of the Ordinance reads: 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.

29. This raises the question whether the sick leave certificate gives rise to an irrebutable presumption under s.10(2), namely, once a sick leave certificate is issued by a medical practitioner, an applicant is entitled to periodical payment under s.10. While I accept the mischief sought to be cured by the introduction of the provisions under s 10 is to alleviate the problem which would be caused when an employee suffered a period of temporary incapacity followed by a period of permanent partial incapacity which would result in his not receiving adequate compensation for the period when he was temporarily incapacitated (see Choy Wai Chung v. Chun Wo Construction and Engineering Co. Ltd. [2000] 4 HKC 653), it is, in my view, not fair for the respondents to make periodical payments for the applicant's sick leave period if her temporary incapacity in question has nothing to do with the accident.

30. In construing s.10(2), I have to look at the wording of the section carefully and compare it with other sections of the Ordinance. S.4(a) of the Ordinance which reads: "an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment. If the deeming provision in s.10(2) was intended by the legislature to be rebutable, those words like "in the absence of evidence to the contrary" or "unless the contrary is proved" would have been inserted. Absent words to the similar effect, I find that, on its true construction, the deeming provision in s.10(2) is not rebutable.

31. However, that is not the end of the matter. I still have to look at the effect of the deeming provision. What s.10(2) means is merely that a period of sick leave certified by a medical doctor shall be deemed to be a period of total temporary incapacity. Whether an applicant is entitled to periodical payments for temporary incapacity depends on s.10(1) and not s.10(2). S.10(1) reads:

"Where temporary incapacity whether total or partial results from the injury, the compensation shall be the periodical payments hereinafter mentioned, or a lump sum calculated accordingly, having regard to the probable duration, and probable changes in the degree, of the incapacity. Such periodical payments shall be, or shall be at the rate proportionate to, a monthly payment of four-fifths of the difference between the monthly earnings which the employee was earning at the time of the accident and the monthly earnings which he is earning, or is capable of earning, in some suitable employment or business during the period of the temporary incapacity after the accident."

32. The periodical payments are only payable under s.10(1) if the applicant is able to establish temporary incapacity whether total or partial results from the injury. S.10(2) only does away with the need to prove temporary incapacity if a period of sick leave is certified by a medical doctor to be necessary. Once I have found that her complaints of discomfort since May, 1999, even though it were genuine, were not the result of the accident which she met with on 10 January, 1998, she is not entitled to claim periodical payments since May, 1999 under s.10 except for a very limited extent. In my judgment, the only periodical payments to which she is entitled are the 14 days' sick leave after the accident and also 2 days' sick leave per month for the period from 17 May, 1999 up to 14 April, 2000, namely, 22 days, to take account of the possibility that she might have had very minor headache or nausea once in a while. I therefore assess section 10 compensation at $17,472.00: $18,200.00 x 4/5 x 36/30.

Section 10A

33. The applicant claims a sum of $188.00 under this head. The medical expenses claimed here consist of the hospital fee incurred on 31 May, 1999 and the medical consultation charge incurred 9 June, 1999. As I allow a total of 22 days for sick leave period between 17 May, 1999 and 14 April, 2000, I am prepared to allow the medical expenses incurred for these 2 days within that period. I therefore assess section 10A compensation at $188.00.

Conclusion

34. The total amount of the award therefore is $30,764.00: $13,104.00 + $17,472.00 + $188.00. However, the applicant has already received $108,700.00 from the respondents for the sick leave period between May 1999 and January, 2000. Although s.10(4) of the Ordinance provides that in the event of death or permanent incapacity following a period of temporary incapacity whether total or partial, no periodical or lump sum payments paid or payable under this section shall be deducted from any amount of compensation payable under section 6, 7, 8 or 9, this subsection only covers periodical or lump sum payments paid or payable under s.10. As I have ruled that only $17,472.00 should be paid or payable under s.10 in this case, the applicant has in fact received compensation from the respondents more than I have awarded here (inclusive of interest). To give no credit for the amount of compensation that the applicant has received is to give the applicant a windfall. This cannot be right. In the circumstances, I conclude that credit should be given for the sum of $108,700.00. Accordingly I make no award in favour of the applicant and dismiss this application. I also make an order nisi that the applicant do pay the respondents the costs of the application to be taxed on a party and party basis with a certificate for counsel.