XCHRX Yu Yau Choi v. Ming Sang (HK) Engineering Ltd.

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 833 OF 2000

__________________

R U L I N G

__________________

1. I have before me two summonses. The first in time is one dated 14 November last year taken out by the applicant, the workman, for an order for periodical payments against the respondents, this being a summons under section 10 of the Ordinance. The other summons is one taken out by the respondents for an order under section 16(4) of the Ordinance for the applicant to submit himself to a medical examination.

2. This all goes back to an injury sustained by the applicant on 29 June 1999 in the course of his employment. It was an injury to his lower back. I do not think one needs to be more technical than that at this stage and for present purposes. He then filed in the usual way notice of the accident, Form 2. The statutory form was then put in by the employer and that indicated that the applicant's earnings were $15,600 a month.

3. The history of it is that he was paid periodical payments in the total sum of a little over $32,000 calculated on a basis of, again in round figures, $4,000 a month, and those payments then expired on 3 January 2000. He has received nothing since.

4. In the course of last year, there were negotiations. At that stage, the applicant, who has been described to me as a relatively simple individual, was being advised by the Labour Department, who were at that stage processing the claim on his behalf. He did not go to solicitors until sometime later when he made this application which is dated 22 September 2000.

5. The insurers who were insuring the respondents dealt with him for a period of time and they attempted to settle the matter with him. Settlement would have involved him accepting a sum of money in full and final settlement of any claims under this Ordinance as well as any Common Law claim for personal injury, but he declined to accept the offer and so the matter has been brought to court against that background.

6. The respondents say that the applicant is a malingerer and they want him to be medically examined and that is the background and the reason for their summons to have him examined by a doctor.

7. The applicant in his application for periodical payments has put in a series of sick notes signed by Government doctors which expire on 14 February this year and in this regard, Mr Chan who appears for him relies on section 10(2) of the Ordinance which is in these terms:

"For the purposes of this section, a period of absence from duty certified to be necessary by a medical practitioner shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury."

8. And so he says that he is entitled to periodical payments going back from the date of the injury which incapacitated him in June 1999 until the expiry of the sick notes.

9. There are a number of issues here which fall to be determined, the most important of which in my view is the amount of the applicant's pay when he was injured. I have had a number of figures put forward. The high point of the applicant's case is this sum of $15,600 a month which appears in Form 2. That, in fact, was a form prepared not by the respondents in this case, but by his direct employers and so the respondents say it is not surprising therefore that that is the figure that appears in Form 2. The list of earnings which is produced on behalf of the respondents following the making of the application in September last year, shows a wholly different figure of $4,000 a month. There is also a somewhat lower figure based on the sum of $533 a day, which I was shown by Mr Chan, and that appears to be based on payments made to the applicant by the ganger who arranged for his employment and that comes to a monthly sum of $13,858.

10. Another matter which also calls for consideration by me is whether Mr Chan is right in his submission that the respondents are not entitled to insist on a medical examination on a true construction of section 16(1) which is in these terms:

"Where an employee has given notice of an accident he shall, if the employer before the expiry of seven days from the time at which notice has been given offers to have him examined free of charge by a medical practitioner named by the employer, submit himself for such an examination and..."

(And this is the relevant part of section 16(1) which Mr Chan relies upon):

"Any employer who is in receipt of a periodical payment under section 10 shall, if so required by the employer, submit himself for such an examination from time to time."

11. And so what Mr Chan says is that the employer does not have "carte blanche" in deciding when the employee should be medically examined. The right to a medical examination only arises if the employee is being paid periodical payments and when one looks at the whole scheme of section 16 in all its subsections, I take the view that Mr Chan is right in that submission.

12. So when one goes back to the start and looks at the claim for periodical payments under section 10, I have come to the view that where there are these medical certificates, it seems to me section 10(2) is ample justification for my making an order for periodical payments.

13. Miss Tong, on behalf of the respondents, submits that I should be very careful before going down that road where it is said that the applicant is a malingerer. If the court makes what could be a substantial award in excess of $200,000 and thereafter it appears that indeed the applicant has been malingering, then a real injustice would follow from the respondent's point of view, particularly as in this case it appears that the applicant would be in no position to repay any award for periodical payments, and so what she says is that I should not make an order and I should merely direct that he be medically examined so as to determine whether or not he is in fact a malingerer. When she makes that submission, she relies in particular on a surveillance report based on what appear to be the applicant's physical capacities to get around, to travel to Macau and to move about fairly normally, that surveillance having occurred in November of this year.

14. It seems to me that I must go on and be loyal to the provisions of section 10 and I take the view that where the applicant comes armed with these sick notes prepared by Government doctors, that he is entitled to an order. The only point is, what calculation do I make in relation to his earnings?

15. I consider that the correct figure to take is not the one put forward in Form 2, but I have come to the view that the more reliable amount is that which Mr Chan showed me based on a sum of $533 a day which would come to $13,858 a month.

16. Four-fifths of that is $11,086.40 and I shall make an order based on that sum from the date of the injury until the expiry of the sick notes, which is 14 February of this year, and credit must be given for the amounts already paid by way of periodical payments.

17. So that is the order that I am going to make on the applicant's summons and as he will be in receipt of periodical payments by virtue of the order that I have just made on the applicant's summons, and so he must also submit himself to a medical examination which I order on the respondent's summons in terms of the summons.

18. There will be an order of costs in the cause on both of these summonses with legal aid taxation in each case to the applicant's costs.