CHU WAI LING v. HOYIN CONSTRUCTION LTD AND ANOTHER

LA/ECC/15521/2003/2004(DK6)

DCEC834/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 834 OF 2004

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DECISION

1. This is an application by way of summons taken out by the Applicant under section 10 (5) of the Employees’ Compensation Ordinance (“the Ordinance”) for his periodical payments to be extended beyond 24 months.  Alternatively, he asked for an order that the Respondents do pay him interim payment at such amount and for such period under Order 29 Rules 10 and 11 of the Rules of the District Court.

2. Order 29 Rule 11 of the Rules of the District Court provides:-

“	(1)	If, on the hearing of an application under Rule 10 in an action for damages, the Court is satisfied:-
		(a)	that the defendant against whom the order is sought (in this paragraph referred to as the “respondent”) has admitted liability for the plaintiff’s damages; or
		(b)	that the plaintiff has obtained judgment against the respondent for damages to be assessed.
		(c)	that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages again the respondent ……
		the Court may, ……, order the respondent to make an interim payment of such amount as it thinks just, ……”

3. The Applicant submitted that under Order 29 Rule 11 the only requirement for the Applicant to prove in respect of liability in these proceedings is that the accident occurred in the course of and arising out of his employment.  He referred to Form 2, which stated that the accident happened while the Applicant was at work, and the Respondent’s Answer filed on 6^th October, 2004 was just a bare denial.  Hence there would be no defence to liability.  This submission is incorrect.  Under Rule 11, the test is not whether there is a defence to liability.  The test is what is set out in Rule 11.  The requirement under Rule 11 (1) (a) is that the Defendant has admitted liability for the Plaintiff’s damages.  In this case the Respondents have not admitted liability.  Therefore Rule 11 (1) (a) is not applicable.  The Applicant has not obtained judgment for damages to be assessed.  Therefore the Applicant can only rely on Rule 11 (1) (c) to support its application in the summons, but the Applicant made no reference to it in its written submission.

The Accident

4. The accident happened at about 4 p.m. on 31^st July, 2002 when the Applicant suddenly slipped and fell whilst walking down a flight of stairs at a construction site at Lion Rock Road.  He was admitted to a hospital on the same day.  The medical examinations conducted on him show that he suffered injuries.  Subsequently he was given sick leaves.  He was given sick leave pay up to 31^st July, 2004.  Thereafter the Respondent did not make any further payment.

5. Under the Employees’ Compensation Ordinance, the Applicant is entitled to claim:-

(a)	Compensation in the case of permanent partial incapacity (section 9);
(b)	Compensation in case of temporary incapacity i.e. sick leave pay (section 10);
(c)	Payment of medical expenses (section 10A).

Compensation under Section 9

6. The Applicant has not yet been assessed by the Labour Department, because, according to his submission, he is still attending follow-up treatment at the Psychiatric Department of Princess Margaret Hospital.  He submitted that his pre-accident wages records support an average monthly earnings of $15,187.50.  After the accident, he can only work as a general worker earning $7,500 a month. 

7. The Applicant cited the case of Lau Man Keung v Yiu Wing Construction Co Ltd (CACV 2232 of 2001), in which the Medical Board assessed the Applicant to have suffered 1% loss of earning capacity (LEC); one medical expert assessed 5%, whilst another medical expert assessed 2%.  Without giving any explanation, the trial judge adopted 1% LEC.  On appeal, the Court of Appeal stated:-

“There is a diversity of opinions on the applicant’s loss of earning capacity between the experts themselves and between them and the Board.  The percentages range from 1% to 5%.  In the absence of further investigation into how these assessments were reached, we are not in a position to say which is appropriate.  In these circumstances, we conclude that the formula in Hong Kong Paper Mill as modified later by the Court of Appeal in Lui Kwong Yan v Shui Hing Decoration Works & Anor [1993] HKLR 168 should be adopted to ascertain the amount of compensation payable under section 9 (1) (b).  This formula is considered in Hong Kong Paper Mills as representing correctly the intention of the legislature in section 9 (1) (b) of the Ordinance.”

8. By adopting the Hong Kong Paper Mills formula, the Applicant in this case assessed the award to be:-

($15,187 - $7,500)
	x 100%	=	50.62%
15,187.50
$15,187.50 x 96	x 50.62%	=	$738,039.60

9. In the present case Dr. Lam Kwong Chin assessed the Applicant’s LEC to be 1%.  Dr. Wong Chung Kwong assessed his current LEC due to psychiatric disorder to be 0%.  Dr. Chung See Yuen assessed his LEC to be 5%.  This case is clearly distinguishable from the case of Lau Man Keung.  In Lau Man Keung, the case was fully tried.  In the present case, the application is made on an interlocutory basis.  The whole case will be tried at a later stage.  The issue relating to LEC will be fully tried, and an appropriate finding will be made.  It is unknown at this stage whether the trial judge will make an award on LEC without giving reason, so that the formula in Hong Kong Paper Mills will apply.  At the present stage there is no basis for that formula to apply. 

Compensation under Section 10

10. Under section 10, the Applicant assessed his sick leave compensation to be $393,862.50 ($15,187.50 x 972.50 ÷ 30 x 4 ÷ 5).

11. The Applicant’s psychiatric expert Dr. Chung See Yuen said in his report dated 3^rd December, 2004 that the sick leave given to the Applicant was reasonable and it is likely that the Applicant would take sick leave for another 6 months.  The Applicant submitted that there is no evidence suggesting that the medical certificates issued by the government doctors were made without due consideration, and cited the following passage from case of Lau Man Keung:-

“Section 10 of the Ordinance provides that a period of absence from duty certified to be necessary by a medical practitioner or an Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.  The judge, based on the evidence of Dr Au concluded that the evidence of the medical certificates and the Assessment Board’s confirmation of the leave of absence had been rebutted.  We do not agree that the evidence of Dr Au was sufficient to rebut the evidence of the medical certificates.  The fact that Dr Au found that the applicant was able to take up light work and a video showed he could climb stairs and ride a bicycle does not mean the sick leave was not necessary.  The sick leave was certified as necessary by a number of doctors and confirmed by the Board and no suggestion has been made that these medical certificates were issued without due consideration by the doctors.  We conclude that section 10 compensation should be based on 24 months sick leave….”

12. The above passage cited from the judgment of the Court of Appeal in Lau Man Keung has not laid down any general principle of law.  It is merely a judgment on whether the requirements of section 10 of the Ordinance were satisfied.  In the present case, the Court cannot merely consider the report of Dr. Chung See Yuen.  There are also opinions on the duration of sick leave expressed by other medical experts.  In his medical report dated 16^th March, 2004, Lam Kwong Chin stated that a sick leave of 3 to 6 months should be adequate unless there is evidence of more serious involvement.  Further sick leaves would not enhance his recovery, but they might further de-motivate and de-condition him from returning to work.  In his report dated 31^st December, 2004, Dr. Wong Chung Kwong said that in his current mental state, the Applicant should be able to resume his pre-accident work, if he so wishes, and that probably he had regained such working capacity by late 2003.  Giving him full benefit of the debt, he was to be given sick leave for Major Depressive Disorder up to mid-2004.

13. The relevant part of the provision under section 10 is rebuttable.  The burden is on the Applicant to show that on the balance of probability the evidence of Dr. Chung See Yuen, in so far as the Applicant’s sick leave is concerned, is to be preferred.  In the absence of a trial on the evidence of the medical evidence, this is not possible.  There is no reason for this Court simply to ignore the evidence from other medical experts in his respect.  The disputes in this respect can only be resolved after a trial.  For the same reason the Applicant has failed to convince this Court why the periodical payments payable under section 10 (5) of the Ordinance should be extended beyond a period of 24 months from the date of the commencement of the Applicant’s temporary incapacity.

Compensation under Section 10A

15.&nbspA sum of $4,520 is claimed.  This is a relatively small amount of money.

16.&nbspThis Court cannot decide at this stage that, if the action proceeded to trial, the Applicant would obtain judgment for substantial damages against the Respondents.  Therefore the Applicant’s application is dismissed.

Costs

17.&nbspI make an order nisi for costs, to be made absolute in 14 days’ time, that the Applicant is to pay costs of this application to the Respondent, to be taxed, if not agreed, with certificate for Counsel, and that the Applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.