LIU WEIGUANG v. LI KENG KO AND ANOTHER

DCEC 250/2017

[2018] HKDC 1496

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 250 OF 2017

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JUDGMENT

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A. INTRODUCTION

1.  In these employees’ compensation proceedings, there is no dispute that the applicant employee (Liu Weiguang) (“Employee”), on 15 September 2015, suffered personal injuries caused by an accident arising out of and in the course of employment with the 1strespondent (Li Keng Ko) (“Employer”), the subcontractor of the 2nd respondent (Alpha Building Construction Limited). 

2.  Relying on the provisions in ss16(1A) and (4) of the Employees’ Compensation Ordinance (“ECO”), the respondents’ only ground of opposition to the claim is that the Employee’s right to compensation was extinguished after the Employee had refused to undergo a medical examination the Employer had required the former to attend.   

3.  This is a trial by affidavit, without the attendance of the deponents for cross-examination, on a preliminary issue on liability that arises from the contention the respondents raised in their answer referred to in the preceding paragraph.

4.  The only issue for trial is whether the Employee’s right to compensation is lost after his admitted failure to undergo the medical examination that the Employer had scheduled to take place on 26 May 2016.

5.  At the trial, the Employee is represented by his legal-aid assigned counsel, Mr Clough, and the respondents by counsel, Mr Ho.

B. THE LAW

6.  The relevant provisions of s16 provides that: -

“(1A) An employer may require an employee who is in receipt of a periodical payment under section 10[1] to undergo a medical examination from time to time, without expense to the employee, and the employee shall undergo the examination.

(1B) Where an employee is required under subsection… (1A) to undergo a medical examination—

(a) if the employee is attended—

(i) by a registered medical practitioner, the examination shall be conducted by a registered medical practitioner named by the employer;

...

(2) The employee shall, when required, attend upon the registered medical practitioner ... at the time and place notified to the employee by the employer or that medical practitioner..., provided such time and place is reasonable.

(3) If the employee is, in the opinion of any registered medical practitioner ..., unable or not in a fit state to attend on the registered medical practitioner ... named by the employer—

(a) that fact shall be notified to the employer; and

(b) the medical practitioner ... so named shall—

(i) fix a reasonable time and place for a medical examination of the employee; and

(ii) notify the employee accordingly.

...

(4) If the employee fails to undergo a medical examination as required under this section, his right to compensation shall be suspended until such examination has taken place; and if such failure extends over a period of 15 days from the date when the employee was required to undergo the examination under subsection (2) or (3), as the case may be, no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure.

(5) The employee shall be entitled to have his own registered medical practitioner ... present at such examination, but at his own expense.

...

(8) Where under this section a right to compensation is suspended, no compensation shall be payable in respect of the period of suspension.” (Emphasis added)

7.  According to the provisions of sub-§ (1A), an employer is entitled to require an employee to be examined by a medical practitioner the employer names if the employer complies with s10 in paying the employee periodical payments (four-fifths of the monthly earnings).  The employee is obligated to undergo the examination.

8.  If the employee who is subject to the medical examination fails to attend, he faces the sanction under sub-§ (4), which has two limbs. The first limb is concerned with a failure not extending for over 15 days.  The admitted failure in this case has extended over 15 days. Thus, the applicable sanction should be the second-limb sanction, which is, “no compensation shall be payable unless the Court is satisfied that there was reasonable cause for such failure”.

9.  As it will be shown in the next section, there is very little factual dispute in this case. Thus, the determination of the issue of liability turns on the court’s adjudication of the following two matters, namely:

(i)  whether the sanction in s16(4) that “no compensation shall be payable” is intended to deprive the Employee of his entitlement to compensation, and if so,

(ii)  whether the Employee has provided reasonable explanation to relieve him from the statutory sanction.

C. UNDISPUTED FACTS

10.  The parties have altogether filed three affirmations as evidence for the trial.  Au Siu Yan (the handling solicitor for the respondents) filed, on behalf of the respondents, two affirmations, and the Employee himself filed one.  All the affirmations were admitted as evidence in this trial without cross-examination.

11.  The agreed evidence, according to a table of Agreed Chronology dated 14 November 2018, is, briefly stated, that whilst the Employee was receiving the s10 periodical payments (see F/N 1), the Employer, pursuant to s16(1A), requested (through the insurer’s loss adjuster, the United Adjusters (HK) Limited) the latter to attend a medical examination by Dr Lam (an orthopaedic specialist) on 26 May 2016 (“s16 Examination”).

12.  On 12 May 2016, Messrs B Mak & Co (“B Mak”) (the Employee’s solicitors) stated in their letter (“First letter”) that the Employee’s “medical condition has not yet stabilized”, and that the Employee would not attend the s16 Examination. 

13.  On 16 May 2016, the respondents’ insurer (Falcon Insurance Company (Hong Kong) Limited) wrote to B Mak, stating that the Employee was obligated to attend the s16 Examination.

14.  On 24 May 2016, B Mak wrote (“Second letter”) to the insurer that the Employee preferred “a joint medical examination” and that he would not attend the s16 Examination. The Employee did not attend the scheduled s16 Examination.

15.  As a result, the Employer, believed that that he was entitled to, pursuant to s16(4), suspend payment, stopped paying the s10 payments for 15 days. Upon the Employee’s failure to attend the s16 Examination, the Employer then stopped paying the Employee any s10 payments after 26 May 2016.

16.  Despite not being paid any periodical payments since 26 May 2016, the Employee’s refusal to be examined by the Employer’s named doctor persisted.  

17.  In the circumstances, it is admitted that the criteria provided in sub ss (1A) and (4) for the triggering of the sanction stipulated in s16(4) that “no compensation shall be payable, unless the Court is satisfied that there was reasonable cause for such failure” are satisfied, namely, (i) the Employee was “in receipt of a periodical payment under [s]10” (s16(1A)); (ii) the Employer was entitled to have scheduled the s16 Examination; (iii) the Employee had failed to undergo the s16 Examination (s16(4)); and (iv) the Employee’s failure to attend the s16 Examination had lasted for more than 15 days (s16(4)).

18.  Against these undisputed facts, I will in the next section examine the parties’ positions on the two issues I have identified in paragraph 9 above.

D. PARTIES’ STANCE

D.1 Respondents’ stance: s16(1A) and 16(4) are engaged

19.  The respondents argue that, pursuant to s16(4), the Employee’s right to any compensation (including the s10 payments) under ECO became completely lost on 11 June 2016 (when the Employee’s failure to attend s16 Examination had lasted for more 15 days).

20.  A submission is also made in relation to another letter (“Third letter”) B Mak wrote on 6 July 2017 to the respondents’ solicitors as a response to their opposition raised in the answer. By this letter, B Mak invited the respondents’ solicitors to carry out a joint orthopaedic examination. Mr Ho contends that the proposed joint orthopaedic examination should not be accepted as a reasonable cause for the Employee’s failure to attend the s16 Examination.

D.2 The Employee’s position

21.  Mr Clough, on behalf of the Employee, conceded at the hearing that the sanction stipulated in s16(4) that “no compensation is payable”, subject to the Employee showing “reasonable cause”, bites.

22.  Once it is accepted that the Employee is subject to the sanction that disentitles him to any statutory compensation, the Employee shall be required to show reasonable cause otherwise his present claim against the respondents will be dismissed.   

E. INTERPRETATION OF S16(4): IS IT INTENDED TO DEPRIVE AN EMPLOYEE OF HIS RIGHT TO CLAIM ANY COMPENSATION?

E.1 To deprive an injured employee’s right to compensation under s16(4) is too draconian to be the intended sanction: HH Mimmie Chan (as she then was)

23.  Before Mr Clough’s  concession at the trial, the Employee  had all along relied on the obiter dictum (see §25 below) of HH Mimmie Chan in Kwok Chu Lung v Kwan Poi Chi Walter[2] , and averred that the court should not interpret s16(4) in such a way so as to deprive an injured employee of his right to claim any compensation.   

24.  In Kwok Chu Lung, the employer similarly relied on s16(4) in arguing that the sanction should be applied to deprive the employee of compensation.

25.  The learned Judge decided against the employer, but not on the point of whether the sanction should be applied.  Her decision was based on her finding that  the employer did not fulfil the condition of s16(1) that gave the latter a right to require the employee to submit himself for a medical examination [3]. The learned Judge nonetheless made the following observation obiter: -

“[26] Section 16(4) ... imposes a sanction upon an employee who fails to undergo a medical examination by a medical practitioner named by the employer. Having regard to, and for the purpose of giving effect to, the object of the Ordinance and the rationale behind the arrangement of providing periodical payments to employees in respect of temporary incapacity resulting from work injury, the court should not interpret the sanction under s16(4) in such a way as to deprive an employee of his right to claim any compensation in respect of his work injury. I do not accept that the legislative intent in enacting s16(4) is to impose such a draconian sanction” (emphasis added).

E.2 Section 16(4) does not impose a draconian sanction: HH Harold Leong

26.  Before the hearing of this trial, a similar issue on the interpretation of the sanction under s16(4) came up for trial before HH Judge Leong.  In Cheung Sau Lin v Tsui Wah Efford Management Ltd[4] , HH Judge Leong held that the sanction  under s16(4) is not draconian. After having rejected the employee’s explanation for her failure to undergo a s16 examination, the learned Judge dismissed the employee’s claim after a split trial.

27.  Underpinning the learned Judge’s view that the second- limb sanction under s16(4) (“no compensation shall be payable”) is not draconian is the established statutory objective of giving “genuine” employees quick financial relief, and the statutory provisions allowing the relative ease for the employees to obtain sick leave certificates to obtain sick leave payments. The learned Judge believes that the sanction is intended to be a “balanced protection” to address potential abuse.

“[17] The objective of the ECO is to expeditiously provide financial relief to employees (genuinely) incapacitated by work injury regardless of fault on part of the employer. Thus the process needed to be simplified and straightforward: the right to claim as an employee is essentially established by providing sick leave certificates (s10(2)). As such, the legislation must necessarily provide a “balanced protection” mechanism so that, on one hand, there will be quick relief for genuine cases but, on the other hand, the compensation procedure should not be abused because of its relatively simple process.

[23] Without any “protection” mechanism, the employer is at a great disadvantage against such behavior. The employer is unlikely to be able to recover any compensation already paid out even if it is later proven at trial that the lengthy sick leave has been unreasonably prolonged by such “doctor-surfing” behavior.

[24] Thus s16(4) is there to provide the essential “protection” mechanism to allow the employer to try to identify early on, before much compensation has been paid out, the “genuine” cases from the others by an expert who should be independent and not a treating doctor.

[25] Bearing such in mind, I do not think that s16(4) imposes a “draconian” sanction. One needs to balance this sanction with the fact that a delay of 15 days for the examination essentially also means an extra “free-ride” of half a month of compensation for the “doctor-surfing” employee. Further, it must be highly suspicious if the circumstance was that the employee could attend a doctor to seek sick leave but yet could not attend another (at a reasonable time and place) for a medical examination” (emphasis added).

28.  In that case, the learned Judge found that the employee did not raise objections on the time or place of the medical examination. The reason by her solicitors that “her medical condition is currently not static for assessment” was not supported by any medical evidence that she was unfit to attend the examination. Hence, the learned Judge was not convinced by the evidence that there was any reasonable cause regarding the employee’s physical condition for her to have declined to attend the medical examination. He further considered that the employee’s invitation to conduct a joint examination of experts was irrelevant as it “was not the medical examination contemplated under Section 16(1A) because it took place well after the expiry of 15 days from [the date for the scheduled medical examination]” (§46).

E.3 Which is the correct view?

E.3.1 The Employer’s stance

29.  Mr Ho urged this court to follow Cheung Sau Lin rather than the obiter dictum in Kwok Chu Lung.  Thus, it is submitted that once the sanction in s16(4) is engaged (as it has undisputedly been in this case), it has the effect of extinguishing, subject to the court’s determination of whether reasonable cause exists, the Employee’s right to compensation under the ECO.

30.  In fortifying his submission that the reasoning in Cheung Sau Lin is correct, Mr Ho has referred to this court a number of overseas decisions on similar employees’ compensation regimes from the United Kingdom[5], Australia[6] and one case from Belize[7].

E.3.2 The Employee’s position

31.  Initially, the Employee’s stance was quite ambivalent.  In his written submission, Mr Clough, apart from making oblique contentions in the beginning of his skeleton submission that the respondents’ objection based on s16(4) is unmeritorious, did not say whether the Employee would be relying on the obiter dictum stated in Kwok Chu Lung to advance his case.  When Mr Clough later submitted that the ECO is not intended to deny genuine claimants their statutory entitlement, it seemed that such submission was more in response to HH Judge Leong’s comments about “genuine” cases in Cheung Sau Lin than a clarification of the Employee’s position.

32.  It was only at the trial that Mr Clough confirmed that he did not quarrel with the correctness of Cheung Sau Lin.  Thus, the issue concerning whether the sanction under s16(4) is intended to deprive an employee of any compensation seems to have fallen by the wayside. The only remaining issue is therefore whether the Employee is able to establish “reasonable cause” for his admitted failure to undergo the s16 Examination, failing which, Mr Clough accepts that the Employee’s claim for employees’ compensation is liable to be dismissed. 

E.3.3 My view

33.  In view of Mr Clough’s concession on the interpretation of the sanction under s16(4), it is not necessary to decide on the interpretation issue.  However, in deference to the detailed research Mr Ho has carried out, I should briefly state my view.

34.  Before Cheung Sau Lin, employers had seldom relied on the sanction under s16(4) to oppose employees’ claims probably because of the obiter comments in Kwok Chu Lung and the seemingly complete absence of any judicial interpretation of the second-limb sanction under s16(4).  The few authorities after Kwok Chu Lung were mainly obiter comments on the first-limb sanction on suspension.

35.  For example, in Kan Wai Ming v Hong Kong Airport Services Ltd[8], the Court of Appeal, when prohibiting an employer from deducting “periodical or lump sum payments paid” from compensation payable under s9 (compensation for permanent partial incapacity), only alluded to the  first limb sanction under s16(4) by stating that when an employee fails to undergo a medical examination, his “right to compensation is suspended until the examination takes place” (§17).

36.  Later in Mohammed Sayeed v Leighton Road Hotel Management Services Ltd[9], a Deputy District Judge, when dealing with an interim payment application, only referred to the first-limb sanction about the suspension of compensation under s16(4).

37.  After having analyzed the authorities, I am in respectful agreement with HH Judge Leong that the sanction is not draconian. In my view, s16 is enacted for the creation of a right (to an employer who duly observes his obligation to pay periodical payments) and the imposition of an obligation (on an employee to undergo medical examination arranged by his employer).  I am of the view that the s16 provisions are borne out from the need to balance a number of the onerous obligations (see §§38-40 below) for the payment of sick leave compensation to the employees.

38.  First, a presumption of incapacity.  Section10(2) provides a deeming provision that allows an injured employee to rely on sick leave certificates as proof of temporary incapacity.  With the certificates, an employer, under s10(5), is obliged to pay periodical payments for 24 months (which period can be further extended by the court for another 12 months).

39.  Secondly, a limitation of power to end or decrease periodical payments.  Under s20, an employer cannot (otherwise than in pursuance of a court order) end periodical payments except where the employee dies, or where he resumes work and his earnings are not less than the earnings which he was obtaining before the accident.  Neither can he diminish periodical payments except where the employee in receipt of periodical payments in respect of total incapacity has actually returned to work, or where the earnings of an employee in receipt of periodical payments in respect of partial incapacity have actually been increased.

40.  Thirdly, a prohibition against deduction of periodical payments from compensation.  Under s10(4), an employer is prohibited from deducting periodical payments from any amount of compensation payable under ss 6, 7, 8 or 9.  Even if an employee is awarded compensation under ss 6, 7, 8 or 9 that is less than the total amount of periodical payments the employer has paid, the employer is not permitted to set off the periodical payments against the award: Kan Wai Ming (supra.)

41.  Having regard to the statutory objective of the ECO regime, and the reasonably relative ease for an injured employee to rely on sick leave certificates as proof of temporary incapacity that oblige an employer to pay periodical payments, it is plain, in my view, that the s16 regime is an “attempt” to strike an appropriate balance between the rights of the employer and the rights of the injured worker.[10]

42.  Section 16 therefore provides a very useful mechanism that permits “an employer who is under an obligation to make payments of compensation to monitor the medical condition of the injured worker” [11]. By providing an employer the right to require an employee who is receiving periodical payments to undergo a medical examination, s16 provides to the employer a means to have access to independent medical evidence which he may rely upon to rebut the presumption created by s10(2) (Kan Wai Ming at §17).  The medical evidence obtained from a s16 medical examination may provide medical evidence of an employee’s change of medical condition so that the employer can rely on such evidence to support an application to court to review the periodical payments under s19.

43.  It is noted that HH Judge Leong’s view that s16 is aimed at providing a “balanced protection” to the employer against any unscrupulous “doctor-surfing” employees (see Cheung Sau Ling at §23) is evidently not much different from the observation of the learned Judge in Kwok Chu Lung (at §24).  The court there also similarly noted that s16 is intended to alleviate the unfairness the regime (the provisions “which fortify and facilitate the arrangement of making periodical payments to an injured employee” (§23)) may cause to an employer.   

44.  Thus, providing protection to an employer is the main purpose of s16. To achieve this purpose, an effective measure is required so that the protection will not be frustrated.  The sanction provided in s16(4) by depriving an employee of his compensation when he has failed to undergo a s16 medical examination, in my view, is not oppressive, for it allows an employee to have relief from the statutory sanction on the showing of reasonable cause. Hence, like HH Judge Leong, I, too, find that the sanction imposed by s16(4) in extinguishing an employee’s right to compensation (unless reasonable cause is shown) is just and equitable, and not draconian.

45.  Since it is now common ground that the Employee has failed to undergo the s16 Examination, and that his right to compensation will be lost in the event that he is unable to satisfy this court of the existence of reasonable cause, I will next determine whether reasonable cause exists.

F. WHAT WAS THE EMPLOYEE’S REASON FOR THE FAILURE?

46.  The Employee relies on the three letters B Mak wrote (First, Second and Third letters) as well as his affirmation adduced in the trial as reasons for his failure to attend the s16 Examination.

47.  There are in essence three reasons, namely (i) the Employee’s condition was not stabilized at the time of the request; (ii) a joint medical examination should be held instead of an examination by the Employer’s named doctor; and (iii) there is a parallel personal injuries action in the High Court, in which the Employer admitted liability.

F.1 Medical condition has not yet stabilized

48.  Mr Clough advanced no argument to support this reason, and did not appear to pursue it.

49.  On the other hand, Mr Ho submitted that the Employee’s obligation to undergo the s16 Examination should not be dependent on the Employee’s health being stabilized.  Were this reason to be accepted, it would render the s16 provision otiose.

50.  I agree with Mr Ho.  The s16 protection to the employer, according to the discussion in Section E above, is to provide a venue to an employer to scrutinize the genuineness of an employee’s medical condition.

51.  More importantly, the alleged unstable medical condition is no more than a bare assertion.  As the Employee did not rely on his alleged “unstable” medical condition as a reason that prevented him from attending the scheduled s16 Examination, I must reject this reason as a reasonable cause.

F.2 The proposal for a joint medical examination

52.  In his affirmation, the Employee explained that a joint medical examination would ensure fairness and save costs as the same joint orthopaedic report could be used in both the employees’ compensation and the common law proceedings.  He further averred that the Employer was unreasonable in not following the common practice in employees’ compensation proceedings in allowing the Employee to instruct his own orthopaedic expert to conduct a joint examination.

53.  The preference for a joint examination seems to be the principal excuse Mr Clough put forward on behalf of the Employee.  Referring to the court’s remark in Cheung Sau Lin about the abuse of sick leave certificates and their potential for misuse, Mr Clough attempted to convince this court that the Employee’s proposal for a joint medical report would enable the Employer “to be satisfied as to the genuine nature of the injury and the need for sick leave and at the same time be in a position to consider the common law claim that arose from the same accident” (Mr Clough’s skeleton at §18).

54.  Mr Clough repeated the legislative intent in not denying genuine claimants their entitlement, and urged me to accept the proposal for a joint medical examination as reasonable.

55.  Mr Ho contends that a preference for a joint medical examination is not reasonable.  It is suggested that the employer’s entitlement under s16 to have control over the conduct of the examination precluding a joint medical examination being reasonable.  In any event, the proposal for a joint examination was made in the Third letter, more than a year after the Employee refused to undergo the s16 Examination.  This reason, as HH Judge Leong found in Cheung Sau Lin (at §46) is totally irrelevant “as this was not the medical examination contemplated under s16(1A) because it took place after the expiry of 15 days…”.

56.  B Mak in fact alluded to a joint medical examination in all the three letters that they wrote.

57.  Evidently, the Employee’s explanation for his refusal to attend the s16 Examination should only be based on his reasons given before the scheduled date of the s16 Examination, which would have been in the First and Second letters. According to these two letters, it is obvious that the only medical examination that the Employee would be willing to attend was a joint medical examination.  In the First letter, B Mak, putting an emphasis on “joint medical examination, stated at the end of the letter that they “will be in touch in the future in order to arrange a joint medical examination if and when our client’s medical condition stabilizes”.

58.  The Employee’s preference for a joint medical examination was repeated again in the Second letter when B Mak confirmed the Employee’s refusal to attend the s16 Examination.

59.  The Third letter, written after the commencement of these proceedings, should be examined differently. This is because, unlike the First and Second letters, it was written after these proceedings were already commenced, as a response to the respondents’ ground of opposition to the claim. Thus, I think the explanation in the Third letter should not be, strictly speaking, regarded as the Employee’s explanation for his refusal to attend the s16 Examination. It is more in the context of the Employee’s reply to the respondent’s answer served in opposition to this claim.

60.  Hence, when B Mak, in the Third letter on 6 July 2017, stated that the Director of Legal Aid had approved the appointment of an orthopaedic expert for the Employee, and proposed the name of the Employee’s orthopaedic expert for the arrangement of a joint orthopaedic examination, I believe such a proposal for a joint medical examination is the type of medical expert examination envisaged for the purpose of a litigation (common law and employees’ compensation claims) which is (as will be discussed below concerning the employees’ compensation proceedings) governed by different sets of rules and practice.

61.  In my view, the Employee’s proposal (contained in B Mak’s First and Second letters) for a joint medical examination instead of the scheduled s16 Examination is plainly, as HH Judge Leong has also so held in Cheung Sau Lin, not within the ambit of s16.  In Cheung Sau Lin, the learned Judge held that the invitation by the respondent for conducting a joint expert examination was irrelevant because it took place after the expiry of 15 days (see §28 above).  I will even go further, and consider that a joint examination by experts, whether it takes place within the 15 days’ period or not, or after the commencement of a claim, is outside the scope of s16.

62.  As for the proposed joint medical examination B Mak raised in the First and the Second letters before the scheduled date for the s16 Examination, I agree with Mr Ho’s submission that the objective of s16 is to allow an employer to have control over the examination. Hence, I reject the preference for a joint medical examination as a reasonable explanation.

63.  As for the later proposed joint medical examination by experts contained in the Third letter, Mr Ho was correct in pointing out that it was made much later, after the proceedings were commenced, and as such can hardly amount to the reason for the Employee’s refusal at the time when the s16 Examination was requested.   

64.  On the whole, I find that B Mak seem to have all along held a misguided view of the s16 regime. Under this statutory regime, the type of medical examination requested by an employer is very different to an examination by a medical expert.  It is therefore not surprising that the explanation the Employee advances in his affirmation is more about litigation practice than the requirements of s16.  Thus, in the affirmation B Mak drafted for the Employee (at §10v), it is averred that it “makes sense to follow the common practice in employees’ compensation proceedings and for me to instruct my own orthopaedic expert to conduct a joint examination alongside” the respondents’ expert. B Mak’s lack of understanding is overwhelmingly evident as the Employee is clearly referring to the type of medical expert examination in contemplation of employees’ compensation and/or common law claims rather than the practice set out in Practice Directions 18.2 (PD 18.2), Part G for “the employees’ compensation list”. 

65.  Practice Direction 18.2 regulates, among other things, the practice on the protocol for commissioning expert reports (including joint examination and joint report), the form of expert report and single joint experts. Under PD 18.2, leave of the court is required before any expert evidence can be adduced at trial.

66.  More importantly, the practice and procedure for the adducing of expert evidence is governed by Order 38 (Part IV for Expert Evidence) of the Rules of the District Court.  Hence, the procedure for the adducing of the expert evidence (such as the medical expert’s overriding duty to the court), and the form of expert report (to include a verification by a Statement of Truth in compliance with O38 r37A and 41A, and a declaration of compliance with the Code of Conduct in compliance with O38 r37C), is subject to O38 rr 35 to 44.

67.  By contrast, under s16 (1B), the s16 medical examination is by a “registered medical practitioner”, a “registered Chinese medicine practitioner” or a “registered dentist” as the case may be. Hence, different to an examination by a medical expert for the purpose of preparing expert evidence, a s16 examination is conducted by a medical practitioner who does not have to be an expert within the meaning of O38.

68.  When B Mak allowed the Employee to make such suggestion (that it is common practice for a joint medical examination to take place in an examination under s16), they have evidently confused the practice concerning expert medical examination in either common law proceedings or employee’s compensation applications with that of the s16 examination, which is to allow an employer to obtain an independent medical opinion to scrutinize the employee’s condition.

69.  An employee, under s16(5), is only entitled (at the employee’s own expense) to have his own registered medical practitioner, registered Chinese medicine practitioner or registered dentist present.  Yet, the examination will still be conducted by an employer’s medical practitioner, who shall prepare a report according to s16(3A) by setting out “all findings related to the injury of the employee”.  An employee is entitled to have a copy of the report free of charge (s16(3B)).

70.  Hence, when the Employee, in §10 iv of his affirmation, takes issue with the Employer’s stance that the s16 Examination is meant to be conducted by a medical practitioner engaged by the Employer, he must have been, as Mr Clough lamented at the trial, ill-advised by B Mak’s misconceived understanding of the provisions. As I have already stated in the preceding paragraph, the provisions of s16, despite providing for “doctors from both parties” to be present, provide that the examination must only be conducted by the employer’s named doctor.

71.  Thus analyzed, even had the Employee, through B Mak, proposed a joint medical examination within the 15 days’ period, I would still have rejected it as being a reasonable explanation for his failure to attend the s16 Examination.  On the evidence, I do not find that the Employee had ever complained that the suggested time and place for the examination was unreasonable.  Nor did he suggest that that he was unable or unfit to be examined by the doctor named by the Employer. Under s16(1A), the Employee was obliged to attend the s16 Examination.  His given reason for refusing to attend the examination in order to wait for the appointment of his own orthopaedic expert is flawed, and I reject it accordingly.

72.  I note that Mr Clough in his oral submission at the trial has seemed to express some regret on the part of the Employee. Apart from stating that the Employee might have been ill-advised to have rejected the s16 Examination, Mr Clough even suggested that it would have been more sensible, in retrospect, for B Mak to have suggested in their First letter that the s16 Examination was to be attended by the Employee’s doctor.

73.  Even if the Employee might have now changed his mind, this court must assess the explanation that he gave at the time when he refused to attend the s16 Examination, which explanation is contained in the First and Second letters. I therefore consider Mr Clough’s submission a red-herring, and do not think that it assists the Employee.

F.3 Related personal injuries action

74.  In his affirmation, the Employee also referred to the related common law proceedings in the High Court.  I do not consider that the Employer has admitted liability in the common law action, and that, in the event of liability being found in favour of the Employee, the amount of damages would likely exceed the amount of compensation in these proceedings if they were allowed to proceed, and the Employee’s reference to his financial hardship is relevant. I find that the aforesaid contentions do not constitute reasonable cause for the Employee’s failure to attend the s16 Examination.

G. CONCLUSION

75.  In the circumstances, I am not satisfied that the Employee has shown any reasonable cause for his failure to attend the s16 Examination.  I do not agree with Mr Clough’s submission that it is manifestly unfair to suspend and subsequently disentitle the Employee’s right to compensation under the ECO.

76.  In accordance with the agreed preliminary issues for trial, I therefore dismiss this employees’ compensation application.

H. COSTS

77.  Costs should follow the event. I therefore make a costs order, on a nisi basis, that the Employee shall pay the costs of the respondents, including any costs reserved and certificate for counsel, to be taxed if not agreed.  The Employee’s own costs to be taxed in accordance with the Legal Aid Regulations.

78.  Lastly, I wish to acknowledge my gratitude to the able assistance of both counsel.