CHONG CHI KEUNG v. HONG KONG DAZHAN TRADING (CHINA) LTD

DCEC 1475/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1475 OF 2012

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RULING
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1.  At the beginning of today’s hearing, which is scheduled as the 1^st day of a 2 day assessment of damages hearing, the court raised with the applicant’s counsel of the way the section 9 compensation was calculated in his Opening Submission. In particular, the court raised with the applicant’s counsel, of the question why, while the injuries of the applicant did not fall within the First Schedule of the Employees’ Compensation Ordinance, Cap 282 (“the ECO”), the formula in the Hong Kong Paper Mills case (Hong Kong Paper Mills Ltd v Chan Hin Wu [1981] HKLR 556) should not be applied. The court also raised the issue of why the applicant’s counsel considers that the sick leave period in this case should be extended to 33 months instead of the usual 24 months allowed under s.10 of the ECO.

2.  The applicant’s counsel informed the court that he was not aware of the Hong Kong Paper Mills formula and had never heard of this formula before.  After the court explained the formula to the applicant’s counsel (in the presence of the applicant in the local dialect), the applicant’s counsel asked for an adjournment in order to consider the case and his client’s position.

3.  After an initial adjournment of about 20 minutes, the applicant’s counsel, having consulted with his legal aid assigned solicitors, returned to the court and informed the court the reasons of why they considered the percentage of loss of earning capacity found by the Medial Assessment Board should be adopted in this case instead the Hong Kong Paper Mills formula.

4.  However, upon the court’s enquiry as to whether they intended to proceed with the case, disregard that no expert medical evidence is available to suggest whether the applicant would be able to return to his pre-accident employment or not; and if not, what other alterative employment he may able to take up, the applicant’s counsel applied for a further adjournment to consider his position.

5.  Upon taking his client’s instructions, the applicant applied to adjourn today’s hearing on the ground that they may need to seek the opinion of an independent orthopaedic expert to ascertain, amongst other things, the applicant’s working capacity in future as compared with his pre-accident employment situation, so as to find out if a claim under section 9 of the ECO can be made under the Hong Kong Paper Mills formula.

6.  The applicant initially asked the costs of today’s adjournment be made costs in the cause with legal aid taxation.  Later, his instructions were changed to asking the costs of today reserved with legal aid taxation.

7.  I regret to note that when the injuries of an applicant in a case obviously fall outside the injuries stated under the First Schedule of the ECO, the legal aid assigned solicitor or counsel did not see fit to ask the Legal Aid Department to appoint an independent medical expert to assess his injuries, in particular the loss of earning capacity and what sort of employment he is now able to undertake as to compare with his pre-accident employment.

8.  In my view, it is extremely undesirable to find out on the first day of the hearing on an assessment of damages that the parties cannot proceed due to the failure on the part of their legal advisers to prepare the case properly.  This is against both the spirit and letters of the rules under the Civil Justice Reform.

9.  In my judgment, it will be extremely unfair on the applicant if we were to proceed with his assessment of damages today, even though the respondent has not turned up (and unlikely will ever turn up as it had not taken out any employees’ compensation insurance).  Although the proposed independent medical expert’s opinion may or may not take the section 9 compensation beyond the $67,392 currently asked for by the applicant’s counsel in his opening submission ($11,700 x 72 months x 8%), in my opinion, if such expert evidence is available, it may enable the applicant to make the section 9 claim based on the Hong Kong Paper Mills formula, which will make a substantial difference to the amount of compensation in this case.

10.  In the circumstances, as reluctant as I am, in the interest of justice and fairness to the applicant, I have no alternative but to adjourn today’s assessment hearing in order to enable the applicant’s solicitors to obtain the proposed orthopaedic expert opinion to see if a section 9 claim can be made based on the Hong Kong Paper Mills formula.

11.  I shall therefore adjourn this matter for 3 months and a short direction hearing will be fixed before me to see if the matter will be ready for assessment by then.

12.  As to the costs caused and occasioned by today’s adjournment, I am prepared to have the costs reserved at this stage, pending the outcome in the obtaining of such medical expert opinion.

13.  However, I would like to add that, should it turn out that such expert medical opinion ought to have been obtained long before today’s hearing in order for a proper section 9 claim to be formulated, I have no hesitation to disallow the costs of the legal aided assigned solicitors and counsel for the unnecessary costs incurred as a result of their omissions to obtain such vital evidence before the hearing today.  Hence, I shall wait upon the availability of the medical expert evidence and the development of this case before I decide on the costs today.