CHEUNG CHING YEE v. DAILY JOY INVESTMENT LTD AND ANOTHER

DCEC 91/2017

[2022] HKDC 269

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 91 OF 2017

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ASSESSMENT OF COMPENSATION

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A.  Introduction

1.  On 22 January 2015, Mr Kwok Kam Sing (the Deceased), a driver employed by the 1^st Respondent, suddenly lost consciousness whilst driving the 1^st Respondent’s 24-seater minivan in the course of his employment. The Deceased lost control of the vehicle, which collided with another vehicle and a building entrance before it stopped (the Accident). The Deceased sustained personal injuries from the Accident, and later died on 3 December 2015.

2.  On 12 January 2017, this application was issued pursuant to the Employees’ Compensation Ordinance[1].

3.  The 1^st Respondent never filed an Answer. On 22 February 2019, interlocutory judgment on liability was entered against the 1^st Respondent with compensation to be assessed.

4.  On 13 April 2021, the Employees Compensation Assistance Fund Board (the Board) was joined as the 2^nd Respondent pursuant to s.25A(a) of the Employees Compensation Assistance Ordinance[2] to defend the issue of quantum as if it were the employer.

5.  On 15 December 2021, this assessment of compensation was set down for trial.

6.  When this assessment came before me on its first day of trial, the 1^st Respondent was absent. Having been satisfied with notice of this trial duly given to the 1^st Respondent by the Applicant’s solicitors, I duly proceeded with this trial in its absence.

7.  The Applicant, the widow, and the administratrix, of the Deceased, was represented at this trial by Mr Patrick Lim (Mr Lim), the counsel assigned by the Director of Legal Aid.

8.  And Ms Flora Lam of counsel (Ms Lam) appeared for the Board at this trial.

9.  The Applicant elected to give evidence, adopting her witness statement and supplemental witness statement. She called Ms Kwok On Ki i.e. her daughter with the Deceased (Ms Kwok), who also adopted her witness statement.

10.  The Board called no evidence and put the Applicant to strict proof of her case on quantum.

B.  Two main issues

11.  In her Re-Re-Amended Application, the Applicant seeks compensation pursuant to s.7, 8 & 10A.

12.  S.10A claim for medical expenses were agreed at $100 after closing submissions.

13.  Issues were taken at trial:

(1)  about the monthly earnings of the Deceased for the purpose of calculating compensation for permanent total incapacity under s.7; and

(2)  whether or not the Applicant made out her 2 claims for costs of care under s.8 (for employee requiring attention) on the applicable law and facts as proven.

C.  Background facts & opinions

14.  The following facts and opinions I find proven in this section are taken mainly from government medical reports and a joint expert report dated 19 August 2021 (JER) prepared by Dr Ng Wing Kit (Dr Ng) and Dr Yu Yuk Ling (Dr Yu), expert neurologists instructed by the Applicant and the Board respectively.

15.  In terms of medical history, including dates of treatment, of the Deceased, there are certain conflicts of such reports with the contents of the witness statement of the Applicant. I prefer the contents of the above reports in case of conflict.

16.  The Deceased was aged 61 at the time of the Accident.

17.  After the Accident, the Deceased was admitted to the Accident & Emergency Department of Queen Elizabeth Hospital (QEH). Examination found right scalp hematoma. Whole body CT scan showed small traumatic subarachnoid hemorrhage in frontal region. The clinical diagnosis was head injury with traumatic subarachnoid hemorrhage. He was admitted into surgical ward.

18.  After admission, CT brain, according to neurosurgeons of QEH, showed instead left anterior falx acute subdural hemorrhage extending into left frontal region with minimal mass effect and no skull fracture.

19.  The Deceased developed in QEH ward generalized tonic-clonic seizure and then tonic seizure. He was later complicated with CAPD peritonitis, mild fever, right hand swelling and pain, and mild hyponatremia. He developed two further episodes of generalized seizures. Repeated CT brain, however, showed resolving left anterior falx subdural hemorrhage.

20.  According to a medical report dated 14 October 2016 by Dr Poon Tak Lap of the Department of Neurosurgery of QEH, the Deceased had the following medical history:

(1)  Diabetes mellitus with nephropathy and retinopathy;

(2)  Hypertension;

(3)  Hyperlipidemia;

(4)  Alpha thalassemia trait;

(5)  End-stage renal failure on CAPD[3] since February 2014;

(6)  Adjustment disorder with suicidal ideation in December 2014 with no psychiatric follow-up;

(7)  Generalised tonic-clonic seizure on 14 January 2015 (CT scan of brain done showed cerebral lacunar infarcts and small vessel disease, whereby he was started on aspirin); and

(8)  Slip and fall with head injury one day prior to his admission to QEH (collectively Pre-existing Conditions).

21.  After the conditions of the Deceased stabilized, on 2 February 2015, he was transferred to renal ward of Princess Margaret Hospital (PMH) for further management. On 10 February 2015, he was discharged from PMH.

22.  But, on 18 February 2015, the Deceased was admitted to PMH again for unsteady gait and lower limb weakness. On the day before admission, he had a fall sustaining head injury. Serial CT brain scans showed increase in size of subdural effusion and increased mass effect on adjacent cerebral tissues.

23.  On 10 March 2015, the Deceased underwent burr hole drainage on the bilateral subdural hematoma and insertion of drains. Post-operation, his condition was complicated by seizures, hyponatremia and sepsis.

24.  On 16 June 2015, the Deceased was discharged from PMH to a nursing home (the Nursing Home). It was only on 13 July 2015 that magnetic resonance imaging showed reduction in size of the bilateral subdural collection. While he was residing at the Nursing Home, he was re-admitted on 7 occasions to medical and renal units of PMH because of sepsis, anemia and high blood pressure.

25.  On 3 December 2015, the Deceased was admitted to PMH presenting with fever due to pneumonia. He was in a dependent state and required artificial feeding through nasogastric tube, according to a medical report by Dr Ho Yan-sze of Department of Medicine & Geriatrics of PMH dated 24 January 2017.His conditions deteriorated and he developed septic shock and respiratory failure. He had cardiac arrest and died on the same day.

26.  Dr Ng and Dr Yu agreed in JER that loss of earning capacity of the Deceased was assessed at 100% if one makes no apportionment for his pre-existing conditions[4].

D.  Applicant’s case

27.  The Applicant gave evidence that she was a housewife financially dependent on the Deceased at the time of the Accident. They resided together with their daughter i.e. Ms Kwok.

28.  At the time of the Accident, the Deceased, said the Applicant, earned a basic salary of $9,000 by working as a minivan driver for the 1^st Respondent. On top of that, there was bonus and overtime allowance. At the time of the Accident, his average monthly earnings were around $20,000. Though he had some long-term health problems, they did not affect his earnings or working capacity. Save resting on his holidays, he would work uninterrupted in order to support his family.

29.  Between 16 (sic) June 2015 and 3 December 2015 while the Deceased was residing at the Nursing Home, despite subsidy given by the Social Welfare Department (SWD) for the same, the Applicant said she was required to pay, and did pay, a monthly companion fee[5] of $300 to the Nursing Home for the Deceased.

30.  The Applicant and Ms Kwok both testified that, between the Accident on 22 January 2015 and the death of the Deceased on 3 December 2015, the Deceased lost self-caring ability[6] and became dependent on their long-term care and attention to perform essential actions of life[7].

31.  Ms Kwok gave evidence that she was born in July 1979. In January 2015, she worked, she says, as a shipping clerk, earning $15,000 per month. After the Accident, she took leave from time to time to take care of the Deceased such that her employer felt discontented and she resigned in May 2015.

32.  From May to December 2015, said Ms Kwok, the conditions of the Deceased worsened over time. As she had to spare substantial period of time[8] to take care of Deceased’s essential actions of life[9], she could not take up full-time or part-time job but only perform casual work[10] earning $3,000 per month during such period of time.

E.  Credibility of the witnesses

33.  The Applicant’s case rests, I think, on her own credibility and that of Ms Kwok for, as shall be discussed below, she produced no documentary evidence to prove or support her case of monthly earnings of the Deceased at the time of the Accident and her s.8 claims in terms of alleged losses and their amounts.

E1.  The Applicant

34.  For reasons given below, I do not find the Applicant a reliable witness.

35.  First, the Applicant was prepared to make un-particularized bare assertion of the Deceased making as much as $20,000 monthly earnings at the time of the Accident without any solid basis save except the hearsay of her late husband.

(1)  Under cross-examination by Ms Lam, she confirmed knowing such figure of $20,000 only from the mouth of the Deceased.

(2)  At the same time, she told Ms Lam that she did not know how the Deceased was paid the said large amount of monthly earnings by the 1^st Respondent.

(3)  She claimed the Deceased paying her monthly household expenses of $10,000 in cash. But she answered under cross-examination of having no idea how the Deceased made use of the alleged remainder, except to claim in re-examination that he had to spend on travelling to work, meals and gambling.

(4)  Save that the Deceased told her having a monthly basic salary of $9,000, she also admitted having no clue how the alleged total monthly earnings of $20,000 (the rest, she agreed with Ms Lam, being commission) was arrived at. Thus, she never condescends on particulars, or calculations, of such alleged commission.

(5)  She said that the Deceased often worked 6 days (sometimes even 7 days) a week and often for variable or uncertain[11] hours (sometimes as much as 10 odd hours) a day. She gave no particulars of what hours are overtime and, again, how the Deceased’s alleged overtime allowance was calculated, if he was paid at all.

(6)  There was, she claimed, no bank or documentary record of such alleged total monthly earnings. Neither did she recall of the Deceased making tax return reporting the same.

(7)  At the end, she had no choice but to admit to Ms Lam having no idea[12] as to the finance of the Deceased.

36.  Secondly, she contradicted herself by verifying by way of statement of truth she signed in the Application, the Amended Application, the Re-Amended Application and the Re-Re-Amended Application the figure of “$9,000 (subject to further discovery)” (rather than, one would think, “$20,000, subject to discovery” had what she alleged been true)as the monthly earnings of the Deceased for the month immediately preceding the Accident.

37.  Thirdly, unlike Applicant’s evidence of monthly basic salary of $9,000 for the Deceased, which was admitted by the 1^st Respondent in Form 2 filed with the Labour Department, overtime allowance and bonus alleged by her was nowhere reported in the said form[13].

38.  It is true that, as submitted by Mr Lim, the 1^st Respondent, having no insurance, may have a motive not to report such alleged overtime allowance and bonus with the Labour Department. At the same time, the estate of the Deceased (and the Applicant) stands, one thinks, to benefit from larger amount of s.7 compensation if a larger amount of monthly earnings is adopted.

39.  Fourthly, in assessing Applicant’s evidence of alleged Deceased’s monthly earnings of $20,000, I agree with Ms Lam that Mr Lim could not, as he did in closing submissions, ask this Court to infer the same backwards from how much he allegedly spent each month on travel, meals, gambling and on household pay to the Applicant.

(1)  The first flaw of such reasoning is that such inference is to be drawn on the unproven assumption that the Deceased had a balanced budget each month. The Deceased could well have paid alleged $10,000 household pay to the Applicant partly from his savings and not all from his earnings.

(2)  The second problem is that the Applicant did not in the first place give a full and complete breakdown of all the expenses of the Deceased supported by available documentary proof for such an inference, if available, to be drawn.

40.  The fact that a male driver had an average monthly salary of $14,980 by working on average 24 days per month and 8 hours per day according to quarterly report of wages and payroll statistics for December 2014 compiled by the Census and Statistics Department (and relied upon by Mr Lim) does not, I am afraid, support or corroborate the Applicant’s testimony on this point.

41.  By their nature, the amount of overtime allowance and bonus, if any, that each individual could have earned in any particular month is, one thinks, inherently uncertain, depending on external and internal variables beyond one’s control.

(1)  The minivan, I accept from the Applicant as corroborated by Form 2, was a travel coach. As such, the travel business turnover of the 1^st Respondent or its customers in any particular month or season may well affect the amount of overtime work that is available for the Deceased and also the amount of his bonus.

(2)  Notwithstanding the Applicant’s assertion, one also seriously wonders whether or not the Pre-existing Conditions of the Deceased had adversely affected his ability and/or will to work overtime and/or to earn bonus.

42.  The Applicant said that the Deceased had worked for the 1^st Respondent for more than a month. As Ms Lam rightly submitted by reference to s.11(1)(a), the question of his monthly earnings for calculating s.7 claim likely depends, I agree, on how much overtime he had worked, and how much commission he had earned, in that particular month preceding the date of the Accident (if indeed he was paid the same as alleged). But the Applicant gave no specific evidence of the amounts of overtime allowance and commission the Deceased had allegedly earned in that month either.

43.  Closely related to Deceased’s monthly earnings at the time of the Accident are his bank account records before death. I regret to conclude that Applicant’s evidence of their retrieval was incredible (and their non-disclosure unsatisfactory).

(1)  She admitted in the box having applied for letter of administration of Deceased’s estate through her lawyers, who assisted her in obtaining bank records of the Deceased.

(2)  She once answered Ms Lam of her having asked her lawyers of such records and was told about the same but, surprisingly, she denied at once (and retracted her earlier answer of being told the same) when it was put to her that she had in her possession her late husband’s bank records before his death.

(3)  Cross-examined by Ms Lam, she admitted that the Deceased had account(s) with bank(s) with ATM card. She once said she had not seen the Deceased using passbook but later contradicted herself by saying she found one passbook from his belongings after death. Asked if she had delivered the said passbook to her lawyers, the Applicant told Ms Lam she did “not recall”[14].

(4)  She once answered of the Deceased having a bank balance of $30,000 odd in her capacity of his administratrix. She later changed to say she had no idea of such balance when she was asked how she came to know about it. She claimed instead that the Deceased had told her of the said sum before his death at the Nursing Home.

(5)  In the ordinary course of event, before letter of administration is issued, the intended administratrix of a deceased must, I think, affirm an affirmation verifying the Schedule of Assets and Liabilities of the deceased to be exhibited to such affirmation, with the said schedule setting out, among others, bank account details of the deceased and its residual balance.

(6)  It occurs to me incredible that the Applicant, having obtained grant of letter of administration to the estate of the Deceased with her lawyers, had no access to his bank account records nor knowledge of his bank balance by herself or through her lawyers as alleged.

(7)  I think it likely that the Applicant had, in the past, access to bank account records of the Deceased before his death but, for reasons best known to her and her legal team, these had not been properly disclosed in these proceedings.

44.  Regarding the Applicant’s evidence of paying monthly “companion fee” of $300 to the Nursing Home, apart from it being another bare assertion, she also contradicted herself by saying that it was for purpose of securing someone to accompany the Deceased to wait at public hospital in the event of any consultation when Ms Lam asked her if the said sum was paid per month or per visit.

E2.  Ms Kwok

45.  The Applicant and Ms Kwok gave identical evidence that the Deceased was dependent on their long-term care and attention to perform essential actions of life between 22 January 2015 and 3 December 2015. That, I am afraid, was plainly contradicted by the following contents of JER which I prefer.

(1)  At page 6 of JER, both experts pointed out that, upon his transfer to PMH on 2 February 2015, the Deceased’s limb power was good and symmetrical and, upon his discharge from PMH on 10 February 2015, he could walk with the aid of a stick and was assessed to be able to perform peritoneal dialysis by himself.

(2)  At page 7 of JER, the two experts referred to post-operative complications met by the Deceased like seizures, hyponatremia and sepsis and, for the first time in JER, said that he “became dependent and bedbound”.

(3)  At page 11 of JER, dealing with clinical course from 22 January 2015 to 10 February 2015, while Dr Ng concluded that Deceased’s head injury in the Accident “stabilized”, Dr Yu opined that it “improved on conservative treatment”. Examination, Dr Yu observed, did “not show any limb weakness or other neurological deficits”. Dr Yu stressed at page 12 of JER that he had “normal limb function and could walk with the aid of a stick” before 10 February 2015.

(4)  At page 12 of JER, Dr Ng referred to operation performed on the Deceased on 10 March 2015 and opined, “after his operation, he developed medical complications during his hospital stay and became bedbound and dependent”.

(5)  At page 14 of JER, Dr Yu observed that, at his discharge to the Nursing Home on 16 June 2015, the Deceased “was bedbound and dependent on his carers for his activities of daily living”.

(6)  At page 15 of JER, Dr Ng commented that the Deceased “did not recover from his surgery and became dependent in terms of self-care and daily activities”.

(7)  At page 17 of JER, Dr Yu opined that the Deceased “had epileptic seizures and leg weakness, was bedbound and dependent on others for his activities of daily living”.

46.  It is, I think, apparent from the above contents of JER that the Deceased became bedbound and dependent on others for his daily activities only after he failed to recover from his surgery performed on 10 March 2015 and developed various complications. The 2 witnesses had, I think, both exaggerated in this respect.

47.  And Ms Kwok’s evidence that she allegedly suffered loss of earnings by taking up only casual job from May 2015 in order to take care of Deceased’s essential actions of life is, I agree with Ms Lam, incredible and, I think, likely exaggerated.

(1)  Under cross-examination, Ms Kwok admitted to Ms Lam that she went to the Nursing Home 4 days odd per week and stayed for 1 odd hour per each visit. This duration of time can hardly, I think, be said “substantial period of time^[15]” as she claimed in her witness statement.

(2)  Ms Kwok could, I agree with Ms Lam, have spared the above duration of time after office hours and needed not resign from her office job of shipping clerk as alleged, unless, perhaps, the timing of visit allowed by the Nursing Home clashes with her working hours (but Ms Kwok made no complaint of that).

(3)  The so-called attention and care that Ms Kwok had allegedly offered for Deceased’s essential actions of life during his stay at the Nursing Home was, she clarified in the box, “massage”, “chatting” and “no other special”.

(4)  I do not underestimate the psychological support one offers to one’s relative by “chatting” with the latter in hospital or nursing home. But one finds it exaggerated when it was described as care and attention for one’s “essential actions of life”.

(5)  Ms Kwok’s claim in re-examination that none else in the Nursing Home would offer “massage” to the Deceased as allegedly advised by doctors to relieve his pain and to assist him to resume hand movement is, I would observe, in stark contrast with Applicant’s evidence under cross-examination below.

(6)  The Applicant also clarified to say she allegedly offered care in form of, among others, “massage” to the Deceased at the Nursing Home for his essential actions of life. She, however, never went as far to suggest that none else in the Nursing Home would offer the same.

(7)  The Applicant admitted to Ms Lam that there were attendants stationed at the Nursing Home whose duties include that of taking care of the Deceased. When she was at the Nursing Home, she however said in the box, she would not call for help from them, whose service was not 24-hour around the clock. That was as far as the Applicant’s evidence went in terms of their care.

48.  The above matters cast, I think, serious doubt on truthfulness of Ms Kwok’s bare assertions of her alleged job of shipping clerk and alleged resignation. As Ms Lam emphasized, no document was produced to prove them, nor was serious effort made at all, on Ms Kwok’s own evidence, to locate these documents.

49.  Mr Lim made reference to Ms Kwok’s working age at the time of the Accident and average monthly salaries of $14,815 for a female shipping clerk in the same government statistics above and submitted that it is inherently probable that she indeed worked as a shipping clerk earning $15,000 per month as alleged.

50.  I cannot agree. Unemployment exists in Hong Kong even for adults in their working age. And there could well be many reasons for one’s temporary unemployment.

51.  All in all, I cannot find Ms Kwok a reliable witness either.

F.  Findings of facts, if any

F1.  S.7 claim

52.  Given my assessment of Applicant’s credibility, I do not accept her evidence of alleged $20,000 monthly earnings of the Deceased at the time of the Accident.

53.  I am not satisfied that the Applicant has proven on balance that the Deceased earned $20,000 monthly earnings on average at the time of the Accident.

54.  For avoidance of doubt, I do not find it proven on balance either that the Deceased earned at that time $14,980 per month on average as the government statistics may suggest.

55.  I am only prepared to accept Applicant’s evidence that the Deceased earned a basic monthly salary of $9,000 at the time of the Accident. This amount was admitted by the 1^st Respondent in Form 2 filed with the Labour Department.

56.  I find it proven on balance that the monthly earnings of the Deceased as prescribed by s.11 for calculating s.7 compensation are $9,000 per month.

F2.  S.8 claims

57.  I find on balance from JER that the Deceased became bedbound and dependent on the attention of others for his essential actions of life only after he failed to recover from his surgery performed on 10 March 2015 and developed various complications.

58.  However, I do not accept Applicant’s evidence of payment of alleged “companion fee” to the Nursing Home as she alleged.

59.  Hence, the Applicant fails to make out her s.8 claim for alleged “companion fee” paid to the Nursing Home.

60.  For my views on the credibility of Ms Kwok, I do not accept her evidence of alleged job resignation in order to take care of Deceased’s essential actions of life and her alleged consequential loss of earnings by taking up alleged casual jobs only.

61.  The Applicant also fails to make out her s.8 claim for alleged loss of earnings suffered by Ms Kwok.

G.  Quantum of S.7 claim

62.  At monthly earnings of $9,000 and with the Deceased over 56 at the time of the Accident, it is agreed that, pursuant to s.7(1)(c), the amount of s.7 compensation for permanent total incapacity shall be 48 months’ earnings i.e. $9,000 x 48 months = $432,000.

H.  S.8 claims fail

63.  As I do not accept the crucial evidence of alleged loss given by the 2 witnesses called by the Applicant on her s.8 claim, she fails to prove all her s.8 claims on the facts.

64.  For the above reason, I find it unnecessary to address other submissions Ms Lam advanced by reference to the applicable principles of law on s.8 claim[16].

I.  Summary

65.  The total compensation payable to the Applicant is therefore $432,000 (s.7 claim) + $100 (s.10A claim) = $432,100.

J.  Disposition

66.  I order that the 1^st Respondent do pay the Applicant compensation in the total sum of $432,100 together with interest on the same at half judgment rate from 22 January 2015 to the date of assessment, and thereafter at judgment rate until full payment.

K.  Costs

67.  It is agreed that there shall be no order as to costs as between the Applicant and the 2^nd Respondent and I so order.

68.  Prima facie, the 1^st Respondent fails on this assessment of compensation after trial.

69.  Costs normally follow the event. I therefore order that the 1^st Respondent do pay the Applicant costs of assessment of compensation, including all reserved costs and the costs of this trial together with certificate of counsel, to be taxed if not agreed. Applicant’s own costs shall be taxed in accordance with Legal Aid Regulations.

70.  I further agree with Ms Lam that the 1^st Respondent had benefited from its own wrong (of not taking out proper insurance in the first place) with the Board being forced to use public fund to defend quantum of Applicant’s claim on behalf of the 1^st Respondent. It is therefore, I think, just to order that the 1^st Respondent do pay the 2^nd Respondent the own costs of the 2^nd Respondent on assessment of compensation since its joinder on 13 April 2021, including all reserved costs and the costs of this trial together with certificate of counsel, to be taxed if not agreed, and I so order.

71.  Finally, I thank Mr Lim and Ms Lam for their submissions.