WONG SUN CHEONG v. CHAN LAI FONG t/a KAI MING FOOD SHOP

DCEC 1666/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1666 OF 2013

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REASONS FOR DECISION

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1.  This is an application for interim payment in an employees’ compensation case made pursuant to Order 29, rule 11 (1) of the Rules of the District Court (“RDC”).

2.  At the hearing on 23 July 2015, I had allowed a sum of HK$150,000 as interim payment to the applicant.  I said I would provide my reasons for the decision in due course.  Here are the reasons.

BACKGROUND

The Accident

3.  On 3 November 2011, the applicant sustained serious personal injuries as a result of a traffic accident while he was in the course of his employment with the respondent.  There is no dispute that the applicant was employed by the respondent as a part-time delivery worker at her food shop at the time.  There is also no dispute that the accident happened while the applicant was delivering lunch boxes from the shop to a school nearby in Tokwawan.  He was hit by a light goods vehicle while crossing Sung On Street which was driven by a person who is now the defendant in a common law action in the High Court.  The plaintiff suffered serious head injuries as a result of the accident (“the Accident”).

4.  Hence, there is no question that the Accident arose out of and in the course of employment of the applicant with the respondent in this case.

5.  On 28 November 2013, the respondent admitted liability by filing the Notice of Admission of Liability, leaving compensation to be assessed.

The Injuries

6.  The head injuries sustained by the applicant are severe.

7.  When he was first admitted to the accident and emergency department of Queen Elizabeth Hospital (“QEH”), it was found that the applicant had suffered from traumatic subarachnoid haemorrhage, subdural haemorrhage, cerebral contusions and skull fractures.  Emergency craniotomy, clot evacuation and external ventricular drainage were performed on the date of his admission.  Further emergency craniotomy and clot evacuation were performed on the following day.  Cranioplasty was performed on 17 May 2012.  He was considered to have attained maximum medical improvement and was fitted for evaluation by the Medical Assessment Board.  It was considered by the treating doctors that the applicant would suffer from residual mobility, cognitive and epilepsy problems. When he was last seen by the doctors at the outpatient clinic in August 2013, he was found to have poor memory, comprehensive dysphasia and urge incontinence.

8.  The plaintiff was hospitalized at QEH for 19 days and was transferred to the Kowloon Hospital on 21 November 2011 for rehabilitation.  He was discharged to an elderly residential home on 3 January 2012.

9.  The applicant subsequently underwent a lengthy rehabilitation programme where he received physiotherapy, occupational therapy and speech therapy treatments. 

10.  Disabilities resulting from the head injuries included (i) brief loss of consciousness and limitation in performance of daily activities; (ii) dysphasia; (iii) gait disorder; (iv) bladder impairment; (v) cognitive impairment; and (vi) visual impairment.

11.  To date, the applicant still has to attend regular follow-up consultation at the department of neurosurgery at QEH.  The sick leave granted to the applicant by the doctors at the public hospitals totalled 638 days from 3 November 2011 to 14 July 2014.

The joint medical expert report

12.  According to the joint neurological expert report prepared by Dr Brain Choa and Dr Yu Yuk Ling dated 29 June 2015 for the purpose of the related common law proceedings (“the Joint Report”), the applicant is still suffering from:-

(1) mild to moderate deficits in cognitive and language functions;

(2) weakness in his lower limbs and balance impairments;

(3) mood swings and anger fits;

(4) headache and dizziness;

(5) epilepsy which is successfully controlled by drugs;

(6) occasional incontinence of urine and faeces; and

(7) dependency on his next friend for dressings, baths and toilet activities but can feed himself.

13.  The Joint Report was filed in the present proceedings pursuant to the Order of HH Judge Ko dated 2 July 2015.

14.  The experts assessed the percentage of permanent impairment of the whole person (“PIWP”) at 20% for the neurocognitive impairments, 15% for the dysphasis, 10% for station and gait impairment and 10% for the incontinence.  The combined PIWP is therefore at 35%.

15.  What is significant to note is that the experts are in agreement that the applicant will not be employable in any capacity.  With his cognitive dysfunction, dysphasis, incontinence and impaired balance, the permanent loss of earning capacity (“LEC”) is assessed at 100%.

16.  Both experts also agree that the applicant is a patient within the meaning of the Mental Health Ordinance and would require a next friend to conduct his affairs.  He is considered to be not fully independent even within his own home.

17.  I note that an appeal has been lodged by the applicant against the Form 9 assessment made by the Medical Assessment Board of the LEC at 29%.

The Appointment of next friend

18.  Madam Lee, the cohabitee of the applicant, has been appointed to act as next friend of the applicant pursuant to the Order made by HH Judge CM Leung on 4 November 2014.

19.  Before that, there had been some delay caused by Madam Lee in applying to act as next friend and then later to apply for legal aid. 

Proposed settlement under Order 80

20.  It is to be noted that an application to ask the Court to approve a settlement / compromise made under Order 80, rule 10 & 11 of the RDC was rejected by Deputy Judge Ludwig Ng on 8 June 2015.

DISCUSSION

Interim payment in employees’ compensation cases

21.  The laws under Order 29, rule 11 (1) of the RDC are trite and it is not necessary for me to repeat them here.

22.  Given the fact that the respondent has admitted liability in this case, there is no question that the Court is entitled to exercise its discretion to allow interim payment as the respondent is not a person who falls within the categories specified under Order 29, rule 11 (2).

23.  In allowing the interim payment of HK$150,000 to the applicant, I have borne in mind the general object of an interim payment is to alleviate the hardship during the period between commencement of the action and the trial: see Yeung Sek Sung v Cheung For Ming [1991] HKLR 1.  I consider that this is particularly apt in an employees’ compensation case where the legislation means to provide an expeditious, no-fault and no-frill compensation to workers who have sustained injury during the course of their employment.  I further consider it is important that parties in employees’ compensation cases should resolve their claims in a prompt and speedy manner.  When they fail to do so for whatever reasons – whether they are due to delays caused by the parties themselves or circumstances beyond their control, the Court should treat the application for interim payment sympathetically provided they meet the criteria set out under the rule.

24.  In this case, the Accident happened in November 2011.  It is now almost 4 years since the Accident and yet the only payment which the applicant had received from the respondent was the sum of HK$14,308 made by way of advanced payment.  While the delays cannot be said to have been caused by the respondent in this case, I think a pragmatic approach should be taken when it comes to consider whether interim payment should be allowed.  This is to ensure that the aim of the legislation should not be frustrated by unnecessary delays or wrangling amongst lawyers.  This is particular so when no date has been fixed for the trial or the assessment hearing as in this case.

Financial hardship of the applicant

25.  In my judgment, there is no doubt that the applicant is suffering from financial hardship resulting from the injuries sustained by him in the Accident. 

26.  The applicant was 64 years old at the time of the Accident.  He was said to be enjoying good health with no major illness prior to the Accident.  Besides working for the respondent as a part-time delivery worker (earning the minimum wage at HK$28 per hour and at no less than 5 hours a day at the time), it has been alleged by his next friend and cohabitee Madam Lee that the applicant concurrently was employed by a soybean product shop by the name of “Kwai Kee” (「貴記」) earning a daily wage of $100.  Also, he was employed by a noodle shop by the name of “Ding Ho Noodles” (「頂好粉麵」) as a delivery worker at an hourly wage of HK$35 for 1 hour a day.  Thus, the total daily wage of the applicant at the time of the Accident was said to be at or around HK$275.  As he only took leave occasionally, the applicant’s pre-accident monthly income was estimated to be at or around $7,700 per month ($270 x 28).  He also received a sum of around HK$2,000 each month from the government under the Comprehensive Social Security Assistance (“CSSA”) scheme.

27.  Since the Accident, the applicant was unable to resume any gainful employment due to his injuries.  While he did not have to pay for the charges at the government hospitals due to the fact that he was a recipient under the CSSA scheme, Madam Lee had to pay for the 2 month charges at the nursery home where he stayed after the discharge from the hospital.  It cost her HK$5,800 per month.  Madam Lee also had to borrow HK$40,000 from her brother in order to meet the expenses for the applicant’s daily needs and household expenses.  Besides travelling expenses, cost of diapers, food and utilities, Madam Lee also had to pay rent of HK$1,000 per month for the applicant even after taking into account of the rent subsidy from the Social Welfare Department.

28.  In total, Madam Lee had allegedly incurred a sum of more than HK$340,000 since the Accident for the benefit of the applicant.

29.  I note the above has not been challenged by the respondent by way of evidence.  Indeed, it is difficult to see how the respondent can challenge such evidence which are based on rather conservative estimate on the applicant’s meagre income and modest expenses.  Instead of filing any evidence, the respondent has through her solicitors sent a letter to the Court 2 days before the hearing purportedly to provide “information” for the Court’s consideration.  Mr. Kwai, the solicitor who represented the respondent at the hearing, has sensibly decided not to apply to adjourn the case in order to allow the respondent to file evidence to challenge the applicant’s case.  Thus, the only evidence left for the Court to consider are those filed by the applicant’s next friend.  I have no difficulty in accepting her evidence.

Estimated compensation vs interim payment awarded

30.  Even according to the respondent’s calculations contained in the solicitors’ letter dated 21 July 2015, an acceptable level of interim payment in the case was estimated at HK$120,000.

31.  Without taking into account of the section 8 compensation (which is for the care and attention of an employee who suffers permanent incapacity and of which there is a dispute between the parties as to whether the applicant is entitled to such claim or not), I consider that the applicant is likely to recover substantial amount of compensation under sections 9 & 10 of the Employees’ Compensation Ordinance.  It will likely well exceed the sum asked for by way of interim payment by the applicant. Thus, I consider that the sum of HK$150,000 presently asked for by the applicant by way of interim payment is reasonable and proportionate to the amount of compensation likely to be recovered by him at the assessment.

CONCLUSION

32.  For the above reasons, I had allowed the application for interim payment in the sum of HK$150,000 with an order nisi that the costs of the application be to the applicant, such costs to be taxed if not agreed.  In the absence of any application by the parties within 14 days to vary the same, the order nisi will become absolute.