CHANLAP SIN ALEXANDER v. GOLD LION PRODUCTIONS CO (A FIRM)

IN THE DISTRICT COURT OF HONG KONG

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-Headnote-

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Employees Compensation - injuries sustained in a road accident - whether accident arising out of and in the course of ...employment - the approach laid down by Sir John Donaldson M.R. in Nancollas v Insurance Officer (1985) 1 All E.R. followed. A broad approach adopted in weighing all factors material to the claim and then considering the aggregate of such factors in the final evaluation.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

EMPLOYEE'S COMPENSATION CASE NO.300 OF 1990

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REASONS FOR DECISION

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1. The Applicant applies for employee's compensation pursuant to s. 9, 10 & 10A of the Employees' Compensation Ordinance, Cap. 282. The Respondent in their opposition to this application dispute that the accident arose out of and in the course of the employment of the Applicant with the Respondent. The Respondent further dispute that the Applicant was employed in the position of an Assistant Director. They allege he was employed in the position of a Stage Supervisor or Log Keeper. The Respondent also dispute the amount of the monthly earnings of the Applicant at the time of the accident for the month immediately preceding the accident stated in the Application as $10,000.

The Facts

2. A traffic accident involving a car driven by the Applicant and a Kowloon Motor Bus happened on the 25.8.1988 at about 12:30 hours along westbound Sai Sha Road. In the car were Chau Kwok Keung, who was employed by the Respondent at the time as Executive Producer of the film "Ambush", and Cheung Po Lei, employed by the Respondent at the time as Assistant Producer in the same film, and the Applicant who was the driver. Mr. Chau Kwok Keung gave a statement to the Police on the 29.8.1988 stating that he, the Applicant and Cheung Po Lei were travelling in the private car at the time of the accident in the course of employment.

3. As a result of the accident, the applicant suffered serious injuries and post traumatic amnesia. He was unable to recall the circumstances resulting in the accident. Proof of the circumstances leading to the accident came from the evidence of Mr. Chau.

ASSESSMENT OF WITNESSES

4. This is a difficult task for I am conscious of the fact that there could be reasons for witnesses, Mr. Chau Kwok Keung, the Respondent witnesses Miss Cheung Man-ting and Mr. Lee Wing-chiu to distort the truth, in the case of Mr. Chau to help his friend and in the case of the Mr. Lee and Miss Cheung, to protect their respective positions. Mr. Chau is not directly involved in this claim and would not gain from the success of this claim. However he is a friend of the Applicant. Mr. Lee and Miss Cheung both admit that the Respondent Company had not effected Employee' Compensation Insurance to cover the Applicant in respect of this claim. Any compensation awarded would have to be paid out of their pockets. They stand to lose financially from any award of Employees' Compensation made by this Court to the Applicant.

5. I come to assessment of witnesses from the contents of their evidence, from their demeanour and from their attitude displayed that is observable from both contents and demeanour.

6. The Applicant Mr. Chan Lap Sin gave evidence to state that as a result of the accident his memory had been affected and his memory related to events 6 months before the accident and 6 months after the accident is mostly lost. The medical report of Dr. Kan Yiu-ting would confirm that the Applicant has suffered a loss of memory. The Applicant impressed me as a young man of honesty. He had forgotten the crucial events prior to the accident but he was able to state clearly what he remembered. I have no doubt from listening to the contents of his evidence and observing his demeanour that he is an honest witness. I found the Applicant's evidence on what he was able to testify to, to be honest.

7. Mr. Chau Kwok Keung who gave evidence for the Applicant was able in his evidence to take a detached approach in that he was able to state under cross-examination facts which he knew were not favourable to the Applicant. That gave me confidence that he was able to detach himself from the outcome of the application. It is true his memory of events is not always clear. However events happened over 6 years ago and he was not immediately concerned in that he did not come to lose or to gain from these events personally. As he said he had been involved in a lot of films since filming "Ambush" so that he may not be so clear as regards details of that film. I accept his evidence in relation to events leading up to the accident.

8. Mr. Lee Ying-chiu the Director of the film and partner of the Respondent gave evidence for the Respondent. He was not a good witness because he found it difficult to concentrate on the questions asked him in cross-examination. He seemed to me to have been very careful not to give ground to the claim. It seemed from his replies to questions under cross-examination that all his attention was focused on this so that at times he did not hear what was asked and gave an answer according to what he was thinking about. It may be because he was tense and stressed. I formed the impression he could not detach himself from his personal interest when giving evidence and therefore would be prone to exaggeration of the truth. I was not able to rely on his evidence as true.

9. Miss Cheung Man-ting was the Producer of the film "Ambush" and partner of the Respondent. She was the second of the Respondent witness. I found her evidence was designed not to give ground to the claim. I found it rather strange that she could recall with great detail the words used in the telephone conversations that occurred over 6 years ago with Mr. Chau, with Mr Lau and with the Applicant as well as the sequence of such telephone conversations. I formed the view her evidence of the conversation she had with the Applicant and Mr. Chau Kwok Keung and Mr. Lau consisted of exaggerations of the truth. When cross-examined on her Company's practice of the payment of staff salary by instalments I formed the view from the contents of her answers and her approach to the questions gave me the impression they were designed and intended to minimise liability on quantum were the Respondent found liable. I found from the contents of her evidence there was manipulation of the truth. I therefore could not safely rely on her evidence.

10. Mr. Lau Wai-cheung gave evidence for the Respondents on the contents of the telephone conversations that took place between Miss Cheung and the Applicant, Miss Cheung and Mr. Chau, Miss Cheung and himself and the sequence of such telephone conversations. Mr. Lau took the same perspective throughout his evidence as that of Mr. Lee and Miss Cheung. His perspective of events experienced was not as if he experienced it in his own way but he gave evidence taking the same viewpoint and assessment of events as that of Mr. Lee Ying Chiu and Miss Cheung Man Ting which I found to be unreal as we all experience events differently and from different perspectives. I found that he seemed to recall details with great clarity despite over 6 years had elapsed. Such details related to matters of which he had no direct concern. The detail of the sequence of the telephone conversations on the morning of the accident, detail of who was there in the office and when, his reply to Mr. Chau at his suggestion to go to look for location, all seemed designed to fit into the evidence of Miss Cheung Man-ting and Mr. Lee Ying Chiu. I found these factors point to me that he could not be relied as they cause me to doubt his veracity. I do not rely on his evidence.

11. Madam Tam Lai-ying was the principal tenant of the Respondent Company's office premises at the time of the accident. She gave evidence without prompting of events that happened over 6 years ago with clarity. However, her evidence related to what happened subsequent to the telephone conversations which allegedly took place between Miss Cheung and the Applicant and Mr. Chau as recounted by Miss Cheung. Madam Tam's evidence cannot support the evidence of Miss Cheung related to those telephone conversations she gave evidence about. I do not rely on her evidence and also her evidence. Further I find it could not support the evidence related to the telephone conversations referred to.

The Facts as Found by Me

12. The facts as found by me from hearing all the evidence of the parties are as follows:-

13. I find that the Applicant was employed as an Assistant Director and Log Keeper of the film "Ambush" by the Respondent. I so find because immediately after the accident Mr. Tin Kai Man who was appointed to replace the Applicant was appointed also to the position of Assistant Director. Mr. Tin, whom Mr. Lee stated was capable and experienced in comparison to the Applicant was given a salary of $20,000 for the film to be paid by 3 instalments. Mr. Chau had stated that when the original Assistant Director appointed to the post failed to turn up at the start of filming, Mr. Lee appointed the Applicant to take up the post. I find his evidence to be more credible than Mr. Lee's who stated that when Mr. Chau approached him about appointing the Applicant to double up as Assistant Director, he turned down the suggestion because he was of the view that the Applicant capability was not tested and his experience not adequate. However despite his view of the Applicant, the Applicant whose salary was purported to have been $12,000 for the post of a Log Keeper was paid by 2 instalments when according to Mr. Chau, the usual practice was to pay crew members by 3 instalments, the 1st at the start of the film, the 2nd in the middle of filming and the 3rd at conclusion of filming to ensure that the crew member would finish the film. It seems to me that the evidence that the Applicant was paid by only 2 instalments was designed to give the appearance that his total salary for the film was only $12,000. I find that the Record entitled 'Contact Phone Number of the Working Staff and Actors of the Respondent Firm at page 4 and 5 of the Respondent's bundle of documents was only a record of contact phone numbers. It was not a record of employment details. The date when it was completed was not stated. It could have been completed before the appointment of the Applicant to the additional post of Assistant Director. This document can therefore not be used to establish the position of the Applicant in the Respondent firm. The Applicant himself stated that he was employed as an Assistant Director cum Producer. For these reasons I find that the Applicant was employed in the posts of Assistant Director and Log Keeper and was paid 3 instalments of $5900 or $18000 as Miss Cheung and Mr. Chau both stated that the usual practice is for the last instalment to be larger than the first 2. The salary of $18000 would seem appropriate taking into account the salary given to Mr. Tin Kai Man in the sum of $20,000 for the two posts of Assistant Director cum Log Keeper and Mr. Tin was stated to be more experienced than the Applicant as an Assistant Director. The Applicant himself stated that the salary of an Assistant Director is usually between 75% - 85% of that of a Producer. Mr. Chau's salary was $20,000 for the film. As the Applicant also doubled up as Log Keeper, it is not unreasonable that the salary of the Applicant would be $18,000 for the entire film. Mr. Chau was of the view that taking into account his own pay, the pay of Mr. Tin Kai Man who came into the film 10 odd days after filming had commenced at $20,000, the pay of the Applicant as Assistant Director cum Log Keeper would be at least $18,000. I find therefore that the salary of the Applicant was $18,000 for the film.

14. On the day of the accident, after completion of filming in the morning of the 25 August 1988 at 6:30 am, before the Applicant had gone back to the office, Mr. Chau Kwok Keung informed Mr. Lau Wai Cheung in the office that he and his assistant Miss Cheung Po Lei would go to look for location in the car of Dr. Fung to be driven by the Applicant in Shap Sz Heung. The Applicant returned to the office about 15-20 minutes later and he was informed of that fact that they were going to Shap Sz Heung to view location. The Applicant arrived later into the office from the location of shooting that morning because he had to take the Japanese actor to his hotel. Mr. Chau telephoned Miss Cheung that he would use Dr. Fung's car later to take the Japanese actor to the Airport and also requested to use the car to go to Shap Sz Heung to look for location to save money for the Respondent, rather than use a hired car. Miss Cheung said that as they had worked overnight they should go home to sleep. Mr. Chau assured her that they were all right particularly the Applicant would be all right to drive the car. After assurances, Miss Cheung no longer objected to the use of Dr. Fung's car for the purposes requested. No objection was given and Mr. Chau took it as tacit approval. Mr. Chau stated that he did not consult with nor inform Mr. Lee the Director before deciding to look for location. He stated that it was usual to consult with the requirements of the Director before looking for location. He stated that there was a requirement to shoot the film in the location of a construction site, by which he meant a barren piece of land carved out of a hill which where construction had been in progress to build a road and he found such a site in Shap Sz Heung. He stated that it was a long time ago and he had forgotten the story of the film. He said because he knew that he needed to shoot the location of a construction site as described by him, that's why he went to look for such a location after they finished work that morning and the Director had already gone home to have a rest and it was the duty of his production Department to look for location. Mr. Chau accepted that the Director had said after shooting that morning that the crew could have a rest before filming in the next location because they had had several nights' shooting. He stated that it was also the responsibility of the production department to look for suitable locations first and thereafter take the Director to it. In considering whether the purpose of the drive to Shap Sz Heung that morning was for the purpose of looking for a location I have to consider all the aforesaid as well as the fact that the 3rd person who went on the trip apart from the Applicant and Mr. Chau was Cheung Po Lei who was Mr. Chau's girlfriend at the time. Furthermore, I consider Mr. Lee's evidence that there was no need for a location as described by Mr. Chau. Mr. Chau stated that in the course of filming, requirements for locations could be changed as even the story line could be slightly altered so that if originally, there was requirement for a location of a barren piece of ground, this location may be changed if the requirements for it in the story change. There is a piece of evidence when Mr. Lee was cross-examined by Miss Lee Counsel for the Applicant that is a significant taking into account Mr. Lee's evidence that there is no need for shooting a construction site. I underline the word which I find significant. It goes as follows:

"Q. Was there a need to shoot at a construction site on a hill which had been removed for building of a road?

A. The film did not need that scene. It needed a wood land. It was a scene about an actor Ko Hung how back in China was pursued and beaten by the red guards in a piece of wasteland."

What Mr. Lee meant by wasteland was not pursued but the normal meaning of wasteland is a piece of barren ground. If that is a fact as the evidence points to, though it seems to have come out inadvertently from Mr. Lee, then Mr. Chau was aware of the requirement by the Director of a location which is a piece of wasteland. By not consulting Mr. Lee as to his requirements for the location prior to going out to look for location that morning, Mr. Chau acted on his initiative without endorsement from Mr. Lee the Director of the film. In the circumstance of this particular situation of his employment, Mr. Chau knew that Mr. Lee would like to be consulted. However, despite taking into all the aforesaid facts into account, I am of the view that Mr. Chau's purpose of taking the car out that morning to drive to Shap Sz Heung was for the purpose of looking for a location as described. The fact that he may not have needed to take the trip that morning rather than later, does not derogate from the fact that his purpose was to look for a location which was required for the film. The parties then left to pick up the Japanese actor to take him to the airport. Whether Miss Cheung then telephone Mr. Lee Ying Chiu to enquire whether he had asked Mr. Chau to go to look for location is not relevant to the issue before me in view of my finding that I accept Mr. Chau's version of the evidence of the telephone conversation that took place between Mr. Chau and Miss Cheung that morning. Even if Miss Cheung did make such a telephone conversation and Mr. Lee responded to the telephone conversation in the manner stated by him in evidence, neither Mr. Chau nor the Applicant received any subsequent telephone calls before they left the office to take the Japanese actor to the airport. It is clear that Miss Cheung did not then page Mr. Lau as she stated in her evidence, because Mr. Lau gave evidence under cross examination that no one paged him that morning. It was not put in cross examination of Mr. Chau nor the Applicant that they were paged that morning after they left on the trip by Miss Cheung, and therefore there is no evidence from Mr. Chau on this. I do not accept the evidence of Miss Cheung that she paged the Applicant, Mr. Lau, Mr. Chau and Miss Cheung Po Lei that morning after they had gone out in the car in view of the aforesaid.

15. I accept the fact that although it was not the duty of the Applicant as Log Keeper and Assistant Director to drive the car, yet he had been asked to drive the car to take the Japanese actors to the hotel and to return the car to its owner prior to the accident. I find that Miss Cheung was well aware of the fact that Mr. Chau did not have a driver's licence so that when she left it to Mr. Chau to return the car, she knew that Mr. Chau gave instructions to the Applicant with her knowledge to return the car to its owner. She was also aware of the fact that Mr. Chau asked the Applicant to take the Japanese actors to their hotel after film shooting. In fact, whenever it was necessary for the car to be driven by any one, the task of driving it in relation to these matters of returning the car and transporting Japanese actors to their hotel was done by the Applicant. This was with the full knowledge and consent of the producer Miss Cheung who was one of the partners of the Respondent the boss of the Applicant. The Applicant himself remembered bringing the Japanese actors to their hotel a few times and I find the Applicant to be an honest witness.

16. In my view, Mr. Chau's primary purpose for the trip to Shap Sz Heung was to look for a location as described because there was a need for such a location, but there may not have been an urgent need. Nonetheless the trip was to effect business on behalf of the Respondent. Mr. Chau gave instructions to the Applicant to drive the car to Shap Sz Heung for the purpose of looking for location whatever his secondary purpose was there is no evidence from the Applicant's side which suggest that the Applicant was informed of it. I do not accept the version of evidence of Miss Cheung nor Mr. Lau as regards the telephone conversations alleged by to have taken place between Miss Cheung, the Applicant and Mr. Chau that morning. The Applicant would have known that it is the usual responsibility for an executive producer to scout out possible locations for the Director but may not have known that Mr. Chau had not consulted with Mr. Lee beforehand as to this trip.

Did this Accident arise out of and in the course of Employment?

17. In coming to my finding in relation to this I adopt the approach laid down by Sir John Donaldson M.R. in Nancollas v Insurance Officer (1985) I All E.R. This approach is clearly and comprehensively summarised in the head note to the case report at p.833 as follows:-

" in respect of injuries sustained in a road accident the question whether the accident is one 'arising out of and in the course of ... employment' is largely an issue of fact for the adjudicating officer, or, on appeal, for the local tribunal and the commissioner. In applying the words of s50(1) those adjudicating on the issue should adopt a broad approach in weighing all factors material to a particular claim and should then consider the aggregate of such factors in the final evaluation, no one factor being so decisive as to outweigh the others. Since the incidents of employment are so varied, there is no conclusive test or proposition of law that is binding on those adjudicating on the issue, and in particular there is no test based on whether a claimant was at the material time acting in the course of his contractual obligations to his employers (see p835 b,c, p836c to fand p840 d to f, post)."

18. I turn to the assistance of the text book "Compensation For Industrial Injury" by Richard Lewis in its Chapter "Entitlement for Accidents" the section entitled "The Accident Must Arise In the Course Of Employment" at page 50. This chapter examines the relative importance attached to various factors taken into account in the Courts of England in deciding whether injury arose in the course of employment. I look to the circumstances of this particular case with reference to the factors cited therein.

1. The Place Of Work

19. The accident did not happen in the place of work but on an outing in the car. The car was a car borrowed by Miss Cheung, the Producer of the film and one of the partners of the Respondent for use in the film. The outing was at the instigation of Mr. Chau the executive producer of the film who stated he needed to look for location for the film. The Applicant was asked to drive the car to look for locations when he was in the office of his Employer. The Applicant had driven the car before at the instigation of Mr. Chau with the subsequent approval and endorsement of Miss Cheung one of the partners of the Respondent firm, his employer.

2. The Hours of Work

20. The shooting had finished for the day yet Mr. Chau was undertaking work on behalf of the Respondent in the office of the Respondent. The Applicant also had to make up his record of the filming in the office after he had taken the Japanese actor to his hotel after filming. Therefore the hours of work of the Applicant extended beyond filming time to the time at the office of making up his records. The task of driving Japanese actors to the airport was with the endorsement of Miss Cheung. The Applicant's contract of employment did not include the responsibility of taking actors to the airport by car nor driving the executive producer to look for locations. However, the indication of Miss Cheung that she did not object to the use the car for the purpose, would have affected this situation.

3. What the Applicant was Doing

21. The Applicant was driving the car which had been borrowed by Miss Cheung as property for shooting the film and according to Mr. Chau had been used also to transport the Japanese actors to their hotel. Driving the car was not within the duties of a log keeper nor assistant director, yet he had done so with the endorsement of Miss Cheung when asked by Mr. Chau to return the car to its owner and to transport the Japanese actors to their hotel. He was requested by Mr. Chau to drive the car when Mr. Chau wanted to use it to look at locations. He had not apart from this incident driven Mr. Chau to look for location. This was not his responsibility. Yet when Mr. Chau upon cross-examination stated that the Applicant drove the car out of friendship other than duty, I find that view expressed to be an opinion expressed by Mr. Chau and not the evidence of the Applicant himself. Looking objectively at what the Applicant was doing from his perspective, he would have known that driving the car to take the executive producer to look for locations is not the normal duty of a log keeper cum assistant director. However Miss Cheung had previously endorsed his driving the car to help out the Respondent for the purposes stated above. He also heard Mr. Chau request Miss Cheung's permission to use the car to be driven by him for this purpose of looking for location. He also thought Miss Cheung to give no objection after assurances from Mr. Chau. He would have had the impression that consent was given for him to drive the car to take Mr. Chau to look for location.

4. Acting with the Employer's Consent

22. The Applicant could be found to have acted with Miss Cheung's consent as she had not objected to the three going to look for location after Mr. Chau stated that they were all right and were not tired, as stated above in my finding as to the contents of the telephone conversations.

5. Acting Under Orders from a Superior

23. Mr. Chau was not the Applicant's superior, so that the Applicant could not have been said to have acted under orders from a Superior. Mr. Chau was the executive producer of the film. In a sense he was senior to him. In the past, when he had acted under orders from Mr. Chau to drive the car, the orders had been endorsed by Miss Cheung the producer. However, Mr. Chau had used his own initiative to go to look for location and unknown to the Applicant had not done so after discussion with Mr. Lee. By virtue of the withdrawal of objection by Miss Cheung to the request of Mr. Chau, the Applicant was led to believe that Mr. Chau had authority to go to look for location and permission was given to him to drive the car for that purpose.

6. Acting in the Employer's Interest

24. As far as the Applicant was concerned from the facts found aforesaid, he had reason to think that he was acting in the Employer's interest. From Mr. Chau's perspective he was acting in the Employer's interest but also combined with his own inclination. Even if he had an ancillary purpose in that he felt like going to look for location that morning as he felt like it, would not derogate from the fact that the purpose was to scout out a location ahead of schedule to bring to Mr. Lee's attention.

7. Acts Done for the Applicant's Own Purpose

25. According to Mr. Chau he was of the opinion that the Applicant drove the car to take him to look for location out of friendship to him. There is no evidence from the Applicant whether he thought this was so. The reason is the Applicant had lost his memory of events 6 months prior to and 6 months after the accident except for a few facts. Based on the facts found by me he was told that Mr. Chau had to go to Shap Sz Heung to look for location. He agreed drive Mr. Chau to do so. Under such circumstances, he thought he had driven to further his Employer's purpose.

26. Having weighed the aforesaid factors and adopting a broad approach in considering the aggregate of such factors in my final evaluation, I come to the conclusion that the accident arose out of and in the course of employment.

ASSESSMENT OF COMPENSATION

27. I accept the evidence of Dr Kan Yiu Ting who gave evidence on behalf of the Applicant and produced his reports at pages 37 to 48 of the Applicant's Bundle of Documents. He had examined and interviewed the Applicant and seen the medical reports of the Applicant. He stated that judging from the injury to Applicant's brain, he accepted his claim that the difficulties the Applicant had in resumption of his work in the film industry to be true. In his opinion, a patient with the physical and mental disabilities suffered by the Applicant can only do light manual work, such as that of a janitor, a messenger, a warehouse keeper of semi-skilled work including that of simple mechanical work. He believed his assessment is more balanced and has given due consideration to the Applicant's situation when compared with that of the assessment of the Employees' Compensation (Ordinary Assessment) Board's assessment of 22% loss of earning capacity. He gave evidence that in his opinion the Applicant has definitely suffered a significant reduction in earning capacity. As an educated guess he puts it at 50%.

28. Mr. Ng Kwok Keung a Labour Officer attached to the Selective Placement Section of the Labour Department in Tsuen Wan prepared a report on the employability assessment of Applicant. He gave evidence that in his view, the Applicant's chance of returning to his original career in the film industry is affected taking into account the medical reports which refer to impairment of his intellectual or memory capacity. He was of the view that the Applicant is considered capable of working as a clerk, a watchman or a shop assistant. According to information of vacancies received by the Selective Placement Division, the average monthly wages related to these positions for the 3rd quarter of 1988 is Clerk at $2291, watchman at $2300 and shop assistant at $2400. He stated that in his view, the Applicant could not work as a security guard which required the need to run or stand for prolonged periods.

29. As no reasons are given for the assessment of the Employees' Compensation ( Ordinary Assessment) Board's assessment which does not seem to be in line with the total available evidence, I do not accept this assessment of the Board s.9(1A) of the Ordinance is applicable to these circumstances. In assessing, quantum, I take into account all the factors which affect the Applicant's earning capacity.

30. I have found that the Applicant's job in the Respondent firm was that of an Assistant Director cum Log Keeper. Both the Applicant and Mr. Chau Kwok Keung stated that this was so. The Applicant stated that he had experience as an Assistant Director prior to this film in a film called "Infra Red". He stated that he had been trained as a Log Keeper at Shaw Studios 12 years ago when he was apprenticed under Lau Ka Leung. I have accepted the evidence of Dr. Kan that the Applicant's injuries would prevent him from resuming his employment in the film industry.

31. I found that the Applicant's salary with the Respondent for the film as Assistant Director cum Log Keeper was $18,000. Mr. Lee Ying Chiu stated that the sum of the contract with the Applicant stated that it was for 360 hours of work. There was no additional pay so long as the film was completed in 360 hours and there was no time period within which the 360 hours had to fall. Both Mr. Lee and Miss Cheung said that in the movie industry an agreement to take part in a film was not an exclusive contract and the workman was free to work for other films or other work at the same time. Both Mr. Chau and Mr. Lee stated that film shooting was done in sections quantified by Mr. Lee as a 10 hour period. In arriving at the daily rate of pay for the salary of $18000 which I found to have been the salary of the Applicant for the film, I divide $18000 by 36 sessions of 10 hours and arrive at a rate of $500 per session of 10 hours. There is no evidence before me as regards the no of days of work the Applicant would do in a month in that post. There is no evidence as regards the availability of work as an Assistant Director cum Log Keeper for the Applicant. On that basis I take a conservative estimate as regards the number of days he would work in that post. I take 18 days of work in a month for him as an Assistant Director taking into account the evidence related to his experience in that work which is not substantial. Monthly salary would be $500 x 18=$9,000.

32. In the Report of the Labour Officer Mr. Ng of the Selective Placement Division of the Labour Department at page 69 of the Applicant's Bundle of Documents, he states the salary for the 3rd quarter of 1988 of a clerk at $2291 p.m., a watchman at $2300 p.m. and a shop assistant at $2400 p.m.. He stated that he had not added to these salaries fringe benefits. Mr. Ng Counsel for the Defendant had urged me to add fringe benefit of 27.2% to the salary of a watchman whose monthly salary is at $2300. After adding fringe benefits the salary of a watchman becomes $2925.60 p.m.

Section 9 Compensation

In calculating the Applicant's compensation for permanent partial incapacity under S. 9 of the Employees' Compensation Ordinance, the correct approach is to adopt the formula laid down in Hong Kong Paper Mills Ltd. v Chan Hin-wu (1981) HKLR 556 as perfected in Lui Kwong-yan v Shui Hing Decoration Works and Another (1993) 1 HKLR 168.

          (a-b)÷a x c

Thus S. 9 compensation payable to him would be

($9,000-$2925.60)÷$9,000 x $394,000 = $265,923

Section 10 Compensation

$9,000 x 2/3 x 15 months 16 days = $94,800.

Section 10 A Compensation

33. This has been agreed at $1,746.

34. Total employee's compensation is assessed at $362,469. I award interest at half judgment rate from date of accident on the 25.8.88 to date of payment. I also make an order for costs nisi to the Applicant to be taxed if not agreed with Certificate for Counsel. The Applicant's own costs be taxed in accordance with the Legal Aid Regulations.