SHENG KUNG HUI DIOCESAN WELFARE COUNCIL v. TANG KONG YIU

DCCJ 3546/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3546 OF 2005

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ASSESSMENT OF DAMAGES

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1.  In the present proceedings, the plaintiff is seeking indemnity or contribution from the defendant for the employees’ compensation paid to its employee Madam Chow Siu-chun under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap.282, awarded under a judgment in March 2004.

2.  The plaintiff’s present claim is made under section 25(1)(b) of the Employees' Compensation Ordinance, (hereinafter referred to as “the Ordinance”), and section 3 of the Civil Liability (Contribution) Ordinance, Cap.377.

Background

3.  The plaintiff is a welfare organization in Hong Kong providing home care services. Madam Chow Siu-chun (hereinafter referred to as “Madam Chow”), was employed by the plaintiff as a home helper in 1999.   The defendant was the driver of a vehicle bearing registration no. HB 9537.   The plaintiff’s insurer, China Taiping Insurance (Hong Kong) Company Limited, took over the conduct of the two employees’ compensation proceedings and the present proceedings under the subrogation clauses of the plaintiff’s insurance policy. 

4.  On 27 July 1999, Madam Chow was travelling in the plaintiff’s vehicle, registration no. HE 4697, in the course of her employment, providing home care services.  When the plaintiff’s vehicle stopped at the traffic junction near No.15 Yuk Yat Street in Kowloon, the defendant drove and rammed his vehicle HB 9537 into the rear of the plaintiff’s vehicle.  As a result of the collision, Madam Chow sustained injuries to her left shoulder and left upper limb. 

5.  Madam Chow took out an employees’ compensation application under sections 9, 10 and 10A of the Ordinance for compensation against the plaintiff in DCEC530 of 2001.

6.  On 10 March 2000, Madam Chow sustained injuries to the right wrist and lower back at a slip-and-fall accident in the course of her employment with the plaintiff. She commenced a second application under sections 9, 10 and 10A of the Ordinance in DCEC929 of 2001 against the plaintiff. 

7.  On 1 and 2 March 2004, the two employees’ compensation applications were heard together by my brother H.H. Judge Carlson.  The learned judge upon hearing the evidence of Madam Chow’s injury and the medical expert’s medical reports and on the plaintiff’s admission of liability, made an assessment of Madam Chow’s injuries and awarded compensation to her on 4 March 2004.

8.  He assessed 21% permanent loss of earning capacity on Madam Chow’s first accident and 8% loss of earning capacity in the second accident under section 9 of the Ordinance.  He consequently awarded Madam Chow $168,058.80 on the first accident and $67,875.84 on the second accident with interests.

9.  The learned judge further ordered compensations to Madam Chow under sections 10 and 10A of the Ordinance as agreed by the parties prior to the hearing of the following sums: (1) $320,881.88 under section 10; and (2) 28,263 under section 10A of the ordinance.  Costs were also awarded to the applicant, Madam Chow.

10.  Subsequent to the judgment, Madam Chow’s legal representatives and the plaintiff’s insurers’ legal representatives reached an agreement on Madam Chow’s costs on a party-and-party basis under DCEC530 of 2001, including the law costs draftsman’s costs at a total sum of $108,983.15 with disbursements at $2,117.  While the plaintiff’s own costs and disbursements under DCEC530 of 2001 were $277,147. In total, the plaintiff’s insurers paid compensation with costs and disbursements in DCEC530 of 2001 in the sum of $924,073.86. 

11.  Although counsel for the plaintiff invited the court at the hearing of the two employees’ compensation actions in March 2004 to apportion Madam Chow’s compensation under sections 10 and 10A for the first and second accident in order to ascertain the precise amount for contribution or indemnity against the defendant, the learned judge declined the invitation at the time.

12.  The plaintiff commenced the present proceedings against the defendant for contribution/indemnity on 25 July 2005.   In the course of these proceedings, the plaintiff discovered that the defendant had been imprisoned in Dongguan since 2001 for smuggling.  Eventually, the plaintiff’s solicitors obtained an order for service out of jurisdiction and served the writ and statement of claim on the defendant through the Dongguan courts to the postal address of the Dongguan prison in 2006. 

13.  The defendant acknowledged service of the writ of summons on 10 June 2006 from the Dongguan prison.  However, as the defendant failed to file a defence in these proceedings, default judgment was entered against him on 7 December 2007 for the section 9 compensation assessed by Judge Carlson with damages to be assessed.  Hence, the hearing of the assessment of damages took place yesterday and today.

14.  According to the plaintiff, it lost contact with the defendant (or the plaintiff’s solicitor lost contact with the defendant) after he was discharged from prison in 2009.  Upon failure to serve the defendant at his former Hong Kong address and the Dongguan prison address, substituted service had to be applied for, it was obtained, on 13 June 2012.  Substituted service by an advertisement placed at Wen Wei Pao was made to notify the defendant of the hearing of assessment.

15.  The defendant is absent at yesterday and today’s hearing of the assessment of damages.  Since compensation under section 9 of the Ordinance had been apportioned by the learned judge in his judgment of 3 March 2004, the judgment entered against the defendant in default of 7 December 2009 had dealt with the section 9 compensation in DCEC530 of 2001, i.e. the first accident.

16.  The assessment today is on the award under sections 10 and 10A of the Ordinance assessed by the learned judge on 3 March 2004, namely the global sum of $320,881 awarded under section 10 and the $28,263 awarded under section 10A and costs and disbursements incurred by the plaintiff. 

The apportionment

Section 10 sick leave payment

17.  Miss Lok, the legal representative of the plaintiff, submitted three methods of apportionment under section 10 for the award of $320,881.88.

18.  Method 1 is to attribute the sick leave completely on the first accident.  The reason being the medical evidence and reports indicated Madam Chow had not fully recovered from her left shoulder and wrist injuries when she returned to work and sustained right wrist and back injuries in the second accident on 10 March 2000.  She had continued to seek medical treatments of her left shoulder and wrist injuries after the second accident.  This method was supported by Dr Arthur Chiang’s medical reports of 3 January 2002 and 16 November 2003.  Miss Lok had prepared a table of the total sick leave days with the description of the cause of the illness and duplications that should be deducted at annex 1. 

19.  Method 2 suggested by Miss Lok is to apportion the award in the same proportion as the percentage awarded for the first and the second accident, namely 21% and 8% assessed by Judge Carlson. 

20.  The third method of apportionment of section 10 is to look at the description or cause of complaint or illness on each sick leave certificate; after deducting the sick leave awarded after the first accident before the second accident from the total sick leave allowed by the court of 1,069 days reached after deducting the duplications of days on the sick leave certificates.  In the case of descriptions relating to injuries sustained in both the first and second accidents or a general description of orthopaedics nature, they would be split equally.  Miss Lok had prepared a table under this method in annex 2. 

Section 10A  medical expenses payments

21.  Miss Lok suggested two methods of calculations for section 10A.  Method 1 is to allot the medical expenses paid after the second accident in the same proportion as the loss of earning capacity of 21% and 8%, i.e. applying the 21% on the first accident.

22.  The second method is to check all medical expenses receipts issued after the second accident for the description of cause of illness or complaint.  For those receipts that referred to both the first and second accident injuries, i.e. left shoulder and wrist and right wrist and low back, the expenses would be split equally.  The same method is employed for those with general descriptions such as “orthopaedics problems”.

Findings

23.  On section 10, I find method 1 to be most appropriate. After perusing all the sick leave certificates produced and set out by Miss Lok in annex 1, it is clear that Madam Chow’s shoulder injuries did not heal completely when she returned to work before the second accident occurred on 10 March 2000.  This is supported by Dr Chiang’s medical report at paragraph 12 on page 98 of bundle 2 where Dr Chiang said:

“The prolonged left shoulder symptoms and management appeared to be contributing mainly from the first accident.”

He wrote the report on Madam Chow’s condition after the two accidents.  It was his opinion that the shoulder supraspinatus tendonitis could still develop the change seen in the second MRI taken in February 2002. 

24.  On the basis of the medical evidence and the Medical Assessment Board’s Form 7 on the first accident dated 25 April 2003 assessing Madam Chow’s sick leave period, I would allow the 1,069 days, being 147 days before the second accident and 922 days after the second accident, to be the sick leave that Madam Chow suffered because of the first accident injuries, i.e. adopting method 1.  Therefore, the total sum of $320,881.88 is assessed for the first accident.

25.  As to the section 10A medical expenses award under the Ordinance, I consider method 2 to be more appropriate.  The details are set out in the plaintiff’s table recording all the medical expenses paid at pages 178 to 184 in bundle 1 and as analysed in Miss Lok’s annex 3 table.  It consists of $17,392.50 apportioned and attributable to the first accident.  Therefore, the total sum under method 1 of section 10 and method 2 of section 10A comes to:  $320,881.88 + $17,392.50 = $338,274.38.

Costs and disbursements

26.  The disbursements of the injured worker, Madam Chow, under Action DCEC530 of 2001 had been agreed prior to the hearing on 1 March 2004 at $2,117.  Her costs paid on a party-and-party basis by the plaintiff’s insurer was $108,983.15. 

27.  The plaintiff is also seeking for the recovery of its own costs on solicitors-and-client basis at $169,397.  It is also seeking disbursements including 50% of Dr Chiang’s expert report fees at $14,250, 50% of surveillance fees split between the two accidents at $9,500 and 50% of counsel’s fees at $60,000 and the law costs draftsman’s fee at $24,000.

28.  Upon perusal of all the supporting fee notes, invoices and vouchers, I accept the apportionment of disbursements is reasonable. 

Summary

29.  

30.  I allow interests on the aforesaid sum at half judgment rate from the writ to the date of judgment and thereafter at judgment rate.

31.  Costs of these proceedings to the plaintiff in any event, to be taxed if not agreed.