WONG WING CHEUNG v. INTERLITE (ASIA) LTD AND OTHERS

DCEC893/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO.893 OF 2002

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(discontinued)

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J U D G M E N T

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1. The applicant's claim is for compensation for personal injury by accident on 13 November 1999 arising out of and in the course of his employment with the 1st or the 2nd respondent. Both of them were sub-contractors to the 3rd respondent, which is insured by the 4th respondent. The applicant avers that he suffered a back injury when he lifted a carton box 30 kg in weight, containing cast-iron electrical junction boxes.

2. The applicant's case is that he was employed by the 2nd respondent, who sent him to work for another company at the Tang Siu Kin Victoria Government Secondary School ("the School"), where he met with his accident, in the course of his employment; though he does not know who he was actually working for, when it happened.

3. The 1st respondent's case is that it was fitting out multi-media centres in schools under a contract awarded to the 3rd respondent who sub-contracted to one Southa Technical Ltd, which in turn sub-contracted to one Key On Engineering Co. Ltd, which in turn subcontracted to the 1st respondent. The 1st respondent subcontracted some of the school projects to the 2nd respondent, but not that at the School which was sub-contracted to Supremelink Engineering Company. The 2nd respondent told the 1st respondent of accident, and the 1st respondent mistakenly filled in the Form 2, showing the applicant as working for the 1st respondent; which he never was. Though the 2nd respondent's case is that he lent the applicant to the 1st respondent, the 1st respondent says that he did not; and the 2nd respondent's contemporaneous declaration that he did is false.

4. The 2nd respondent's case is that he did in fact lend the applicant to the 1st respondent; so the applicant was employed by the 1st respondent when he met with his accident.

5. It appears that the 3rd respondent, the main contractor, has an insurance policy which covers all its sub-contractors, on all its sites; therefore, if the applicant can prove that he met with the accident as he says, the 3rd respondent will be liable, and its insurer will indemnify it.

6. The 4th respondent is the insurer of the 1st respondent, but not in respect of work at the School. Also its policy would not cover a sub-sub-contractor; in other words, it would not cover the 2nd respondent if the accident happened at a place where the 2nd respondent was subcontractor to the 1st respondent. So if the applicant was employed by the 1st respondent or the 2nd respondent and met with his accident at the School the 2nd respondent is only covered by the 3rd respondent's policy. But if the accident happened when the applicant was working for the 2nd respondent somewhere else, then the 2nd respondent is effectively uninsured.

7. It will be seen from the above that there is no real dispute that the applicant met with an accident; what is in dispute is who was employing him, and that largely depends on where the accident happened.

The evidence

8. The evidence of the applicant is that about two days prior to the accident, when the applicant was working in Wu Chun House (a site on which the 2nd respondent was a sub-contractor to the 1st respondent) he, with two other workers, Chow Kwok Kuen ("Mr. Chow") and Lee Mei Wo ("Mr. Lee"), were requested by Mr Albert Wong Sang Hing, a partner in the 2nd respondent, ("Mr Wong") to transfer to the Tang Siu Kin Victoria Secondary School to work for another contractor. At first, he refused, but later agreed to be transferred but he insisted that he receive his wages direct from the 2nd respondent. He was sent to the school to find someone whose name he cannot now remember. When he arrived at the school, he was met by someone who asked him if he was from the 2nd respondent, and when he said that he was, told him to drill holes in cast iron junction boxes in the open space in the back alley of the school. This was on about 11 November. He first had to move cartons of the junction boxes to the place where he had to drill them. On 13 November, when he was moving the carton boxes, he suffered injuries to his back. He said that he did not know that he had suffered an injury until he heard someone say that it was lunchtime and tried to get up, but was unable to do so. Because he knew nobody at the site, and because everybody was departing for lunch, he telephoned, on his mobile telephone, to his fellow worker Chow Kwok Kuen. Mr Chow then came and assisted him to go to the Tang Siu Kin Hospital.

9. It appears from cross-examination that the applicant remembered being asked by Mr Wong at the site at Wu Chung House to go and work at the School.

10. It is the evidence of Mr Chow that he was also directly employed by the 2nd respondent at Wu Chung House. On the day in question he had suffered an injury and was only in the site to collect his tools. He got the call from the applicant and went to assist him to go to the hospital. He said that he did not know where the School was, and had to ask the applicant that, and the applicant told him that it was opposite the Lady Trench Centre. He said that that was indeed the place to which he went, and he recognized the school by a photograph that was in the bundle.

11. It appears that Mr Chow met with his own accident on 8 November which resulted in 11 days of leave sick. In his Certificate of Compensation Assessment the 1st respondent had been named as his employer, and he agreed that his sick leave periodical payments were paid by the 1st respondent.

12. Mr. Lee said that he also was directly employed by the 2nd respondent. A few days before the applicant's accident, Mr Wong had told him that he and the applicant and Mr Chow would all be transferred to work at the School. However, he told Mr Wong that he could not go because he was the only worker on the site at Wu Chung House with a supervisory function, so he was required to stay there and Mr Wong agreed to this.

13. Mr Wong's evidence is that he is one of the partners in the 2nd respondent. The 1st respondent was one of the major contractors which provided works to the 2nd respondent. The 1st respondent had sub-contracted a project to carrying fitting works for multi-media learning centres at more than 100 schools. Fifty-two schools out of those sub-contracted to the 1st respondent were sub-contracted by it to the 2nd respondent, but the School is not one of them. It was agreed between the 1st and 2nd respondents that the 2nd respondent was to contribute HK$16,000 for each school at which work was undertaken so as to secure insurance privilege. According to this sub-contract, the 2nd respondent was supposed to undertake electrical and mechanical works at schools in Kowloon, Tuen Mun and Yuen Long.

14. The applicant was directly employed by the 2nd respondent to do the work undertaken by the 2nd respondent.

15. On about 9 November 1999 Mr Ng of the 1st respondent told him that there was a labour shortage at the Tang Siu Kin School and he was asked to assist. He agreed to send three workers to the school but only the applicant was eventually sent, because Mr Chow was on sick leave and Mr Lee had to remain at the Wu Chun House site.

16. Mr Wong said that he drafted a declaration setting out the terms and the transfer of employment of the three workers for signature by Mr Ng of the 1st respondent. It was prepared in a rush and faxed to the 1st respondent. However, Mr Ng told him that the terms of the declaration were agreed and there was no need for it. This declaration, and a type-written version of it which Mr Wong says was prepared and kept on file in his computer at about the same time, but only printed out later at the request of solicitors, showed that the workers are to be directly employed by the 1st respondent.

17. Mr Wong said that on the afternoon of 13 November, he received the call from the applicant who told him about the accident. Some time later, he gave information to the 1st respondent, as a result of which the 1st respondent completed the Form 2. In fact, this Form 2 which is dated 23 December 1999 shows the 1st respondent as the employer of the applicant.

18. With regard to the sub-contract between the 1st and the 2nd respondents, there are in fact two letters of appointment, both dated 24 June 1999. One of them shows the location area of the works to be done as Kowloon, Tuen Mun and Yuen Long. The other shows the location area as Kowloon, Tuen Mun, Yuen Long and Hong Kong. Both of them appear to be signed by the general manager of the 1st respondent and by Mr Wong. It is the evidence of Mr Wong that the original document only refers to Kowloon, Tuen Mun and Yuen Long. The other document was signed after the accident, so that the accident could be covered by the 1st respondent's insurance.

19. The 1st and 3rd respondents, who were jointly represented, called three witnesses. The first of these was Mr Wong Wai Man. He says that he is a partner in one Supremelink Engineering Company, which is the sub-contractor of the 1st respondent in respect of the School. His evidence is that although his company was scheduled to commence work at that site on 8 November 1999, in fact it only started on 15 November. No one from his company was doing any work at the school on 13 November. However he did not know whether any other company was doing any other work there before 15 November.

20. This witness said that his company was contracted to put in electric wiring and conduits for five air-conditioning units and two ventilator fans in the multi-media learning centre within the School. This would have involved only seven cast iron junction boxes. There would have been no need for any one to lift and carry cartons containing a large number of such boxes, nor to drill holes in the junction boxes at the beginning of the work. In fact, each junction box would only be drilled as necessary when the conduit tubing was being installed. The seven junction boxes with which his company was concerned were put in at the end of the wiring conduit and from them in each case a cable went to the air-conditioning or fan unit concerned.

21. From cross-examination it appears that the room for the multi-media learning centre was handed over to this witness's company on 11 November 1999. This was actually agreed between the Electrical and Mechanical Services Department and the headmaster of the School. However at that time his company was still carrying out works at the Queensway Government Offices. They had ample time to conclude the work at the School within the scheduled period, even if they started on 14 or 15 November, and that is why in fact they did not work until 15 November.

22. The next witness was Mr Ng Chun Hung. His is a director of the 1st respondent. He confirmed that the work in the School was sub-contracted to Supremelink Engineering Company by the 1st respondent. The 1st respondent was the contractor at Wu Chun House and for that site the 2nd respondent was its sub-contractor.

23. He said that pursuant to the sub-contract, work at the School commenced about 8 November 1999. This work was sub-contracted to Supremelink Engineering Company and not to the 2nd respondent.

24. So far as the Form 2 is concerned, he said that it was completed by his company from information provided by Mr. Wong of the 2nd respondent. A receptionist or clerk, a Miss Yeung filled in the form which was signed by a senior clerk Miss Tsue. It appears in fact that this lady is the wife of Mr Ng. The information contained in the Form 2 was not verified by any of the management of the 1st respondent and the matter only came to Mr Ng's notice after he received the letter from the applicant's solicitors in November 2001.

25. Mr Ng said that there was never any discussion about borrowing staff from the 2nd respondent. He was never made aware of any handwritten draft declaration. As far as the printed declaration is concerned, he admitted that this had been received but much later.

26. Mr Ng said that in fact he did not know when Supremelink started work at the School. In cross-examination he disagreed that any one else could have been working there before 15 November, but then said that he did not know if anyone was.

27. Mr Ng was asked to explain why there are two different letters of appointment or sub-contracts in respect of the same sub-contract. He simply answered that it was because of the wording was different.

28. The construction manager of the 3rd respondent and the assistant general manager of the 1st respondent also gave evidence, and neither of them takes this matter much further. However Mr Ho, who is the assistant general manager of the 1st respondent, said that he had, after November 2001 investigated this alleged accident. He had discovered that no report had been made to the headmaster of the school though that is perhaps not surprising given the applicant's description of what happened. He also volunteered something which was not in his statement, namely that the headmaster had told him that the workers were not allowed to work in the open space at the school but were required to remain within the room which was being fitted out as a multi-media learning centre.

29. It is as well to know at this point the contents of certain agreed documents. Whilst Supremelink's employee records appear to show that their work commenced on 15 November 1999, there are other documents which appear to show that the 1st respondent was working, or had other sub-contractors working on site before that. In particular, I refer to an undated work progress report in respect of all these schools, which appears to have been completed not earlier than January 2000, and which shows the date of commencement of work at the School as being 11 November 1999. This report indicates that there were two other sub-contractors working at the School in that period.

30. There are also two sets of minutes of site meetings, convened by the Electrical and Mechanical Services Department on 15 and 30 November 1999, the attached work progress sheets of which show that work commenced at the School on 11 November 1999.

Evaluation

31. The applicant gave his evidence quite well. He seemed quite credible. It was suggested to him that he was not working at the School, and that there was also, in the vicinity, a Tang Siu Kin Sing Gung Wui Secondary School, at which he might have been working; but he was quite clear that the school at which he worked was the one opposite the Lady Trench Centre. There is certainly no evidence to suggest that he was working at a different school. It was never suggested to him that he had met with his accident at the Wu Chun House site, nor is there any evidence to suggest that he might have.

32. Various criticisms have been levelled against the applicant, for instance that he has variously mentioned the place of the accident as a "building" or a "construction site" without identifying it as a school. It is also said that he could not remember the full name of Mr Chow, and that it was the 2nd respondent, rather than himself who had found this witness and asked him to give evidence. I do not think there is any merit in this. The applicant is a workman, not a lawyer. He cannot be expected to be entirely consistent in what he calls things. Nor can he be expected to find a witness who has left his employment.

33. Much has been made of the applicant's failure to remember the name of the person whom he was sent to contact at the school and who, he says, met him at the gate. The same criticisms were directed at Mr Albert Wong. I do not find this particularly surprising. According to Mr Wong, he could not remember if it was "Ah Pak, Ah Chu or what", and if a nickname or given name was mentioned in this way it would not be particularly surprising that the applicant would not remember it. What is to be noted is that according to him, his understanding was that he was to work for "the boss of his boss", i.e. the one to whom the 2nd respondent was the sub-contractor at Wu Chun House, i.e. the 1st respondent; and when he got there, the contact person asked him if he came from Rising Sun, i.e. the 2nd respondent.

34. Mr Chow also seemed quite credible. He too was quite clear about where he had gone to find the applicant; it was the school opposite the Lady Trench Centre. It was put to him that he had not himself been asked to work at the school and he said that that was correct. But it appears that he did not have much memory of the incident or matters surrounding it; and he had not been asked for a statement until March 2003.

35. It appeared from cross-examination that, in connection with his own accident at that time at Wu Chun House, his employer had been shown on the Form 5 certificate as the 1st respondent. He had received periodical payments but he was not sure if they came from the 1st or the 2nd respondent.

36. Mr Lee did not know anything about the applicant's accident but he was in a position to say that he had been asked to go and work at the school, some days before. Mr Albert Wong had told him that he, the applicant and Mr Chow would all be transferred; but for the reasons given, he did not go. He also seemed quite a straightforward witness. I note that neither he nor Mr Chow is presently working for the 2nd respondent, and so both of them may be regarded as independent, and unlikely to be parties to any kind of conspiracy to locate the accident at a place where it did not happen.

37. Mr Albert Wong was rather more open to criticism than the others, although he seemed to me to give his evidence in a frank manner; rather more so, in fact, than Mr Ng of the 1st respondent.

38. There are discrepancies between his witness statement and his oral evidence. In particular, he put in his statement that the three workers had gone to work at the school, and had been transferred back after the accident; that was not factually correct. He agreed that he was not covered by employee's compensation insurance at the Wu Chun House site. He had been a party along with the general manager of the 1st respondent to what, to my mind, must have been some sort of deception, namely the signing of a second letter of appointment showing that the 2nd respondent was responsible for sites on Hong Kong Island as well as elsewhere; which does suggest that they were both trying to show for insurance purposes that the accident happened somewhere where the 1st respondent's insurer was providing cover. This does not, however, mean that factually it did not.

39. The evidence of the handwritten draft declaration is not incredible, or so it seems to me. Again there were some minor discrepancies about whether Mr Ng had asked Mr Albert Wong for it or not but I think this is neither here nor there. The fact of his having produced a typewritten version when asked for it later is adequately explained by his evidence of having drafted it contemporaneously and kept it in the computer. The draft does at least tally with what he and the other witnesses for the applicant say was expected to happen, even if it did not, i.e. the transfer of three workers.

40. The main plank in the defence of the 1st and 3rd respondents is the evidence of Mr Wong of Supremelink. He says that his men did not start working at the school until 15 November and further that there would never have been any need for a large number of junction boxes to be moved or drilled. So far as the date of commencement is concerned, it appears that he actually inspected the site on 8 November. Contemporaneous records appear to show that work started on 11 November. He agrees that the site was handed over for work on that date though he says that his men would not be the first to start work. He refers to his attendance records, which appear to show that his men started working there on 15 November. These records are however not contemporaneous, having been made in November 2002.

41. Mr Wong says that his men only had to put in seven cast-iron junction boxes, and those would only be put in once the conduits were being put in. So there would be no need for the drilling of a large number of boxes, or the shifting of cartons containing them, in advance. That may be so. However it appears from the overall record that there were other subcontractors concerned, and the plans of the multi-media learning centre show that there were various electrical works to be done, apart from those for the air-conditioning and fans. It may be that the applicant was not drilling boxes for Supremelink on 13 November 1999 but this does not mean that he could not have doing this work directly for the 1st respondent, or some other sub-contractor of the 1st respondent.

42. The other witnesses for the respondents were really unable to give any very good factual evidence. Even Mr Ng, the 1st respondent's director, was not very much concerned with what actually happened at the site. Mr Ho came into the picture only much later and his evidence is hearsay. The 3rd respondent's witness does not assist factually.

43. The 1st respondent did in fact file with the Labour Department a Form 2. It was signed by the 1st respondent's chief clerk, who is Mr Ng's wife. Mr Ng says that he knew nothing of this matter and that his staff acted wrongly, in filing the form, on information given by Mr Albert Wong.

44. I did not find Mr Ng a convincing witness. He was the kind of witness who will, rather than give a simple answer, launch into a rigmarole of repetition and speech-making, which an obvious form of evasion. One matter that he could not and did not explain satisfactorily was the existence of two letters of appointment, dated on the same day, between the 1st and the 2nd respondents. The only reason for that would be, as Mr Wong says, that the document which included the words "Hong Kong" was written and signed later, with the intention of having the applicant covered by insurance.

45. So far as the location of the accident is concerned, having heard the applicant and his witnesses, and for the reasons given above, I am satisfied that it is more probable than not that it happened at the School and nowhere else.

46. Where there is a conflict between Mr Ng and Mr Albert Wong I prefer the evidence of the latter. There is further no good reason for the 1st respondent to issue the Form 2 unless there was some sort of agreement between them to show that the applicant had been employed by the 1st respondent. I do not believe that the 1st respondent would have issued the Form 2 by mistake, and without knowledge on the part of its management particularly since it was signed by the chief clerk who was the wife of the director. There is certainly no reason for the two letters of appointment, unless there was an agreement as Mr Albert Wong says. Incidentally the fact that Mr Chow had been shown in a similar context as the 1st respondent's employee supports this also.

47. I am satisfied therefore on the balance of probabilities that at the time of the accident the 2nd respondent had lent the applicant's services to the 1st respondent on the basis that the 1st respondent would pay his wages though he would receive the cash directly from the 2nd respondent.

Liability

48. So far as the 1st and 3rd respondents are concerned, there seems to be no dispute that both will be liable if the accident is found to have happened while the applicant was working at the School. However, the 2nd respondent argues that in that event it is not liable. The applicant was not working on the 2nd respondent's site or under the 2nd respondent's direction. All that the 2nd respondent had to do was pay the wages on the 1st respondent's behalf. The primary indication of who is the employer is, who directs the workman. Further the applicant must prove that the accident arose out of and in the course of his employment. For it to arise in the course of the employment, the accident would have had to be in some way incidental to the work which the applicant had to do, rather than simply that it happened during the currency of the employment. See R. v. National Insurance Commissioner ex parte Michael [1977] 2 All ER 420, followed in Lam Min & Ors v. Yau On Construction Co. [1981] 1 HKLR 646. Here the evidence shows that the accident was not in any way incidental to work which the applicant was doing for the 2nd respondent, because it was not at the 2nd respondent's site, nor was the 2nd respondent directing it.

49. The applicant argues that even if he was lent to the 1st respondent on the day of the accident he was still employed by the 2nd respondent. Reliance is placed on the definition in section 3(1) of the Employees' Compensation Ordinance, Cap. 282 which provides :

"'employer' includes the Government and any body of persons corporate or unincorporate and the legal personal representative of a deceased employer, and, where the services of an employee are temporarily lent or let on hire to another person by the person with whom the employee has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Ordinance, be deemed to continue to be the employer of the employee whilst he is working for that other person; and in relation to a person engaged, employed or paid through a club or hostel, the manager or members of the managing committee of the club or hostel shall, for the purposes of this Ordinance, be deemed to be the employer."

50. The 2nd respondent argues that this deeming provision is rebutted in the light of the evidence now available. However the applicant argues that it is not rebuttable. There are no provisions for evidence which might rebut it. I think that must be right. The whole point of the provision is that the employer continues to be the employer for the purposes of the Ordinance while the employee is lent to another and there is no provision by which that employment can be displaced.

51. Section 5(4) of the Ordinance provides :

"For the purposes of this Ordinance -

... an accident arising in the course of an employee's employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment;"

52. The applicant says that there is no evidence to displace this presumption. He relied on the dicta of Scott LJ in Wilson v. Chatterton [1946] 1 KB 360 at 366 that "It is only if the accidental injury has no causal connection with the employment at all that it can be said not to arise out of it though it may occur in the course of it". It is argued that the 2nd respondent has failed to demonstrate that there is no relation of cause and effect.

53. I have not found the cases of much assistance. The common law cases deal with vicarious liability. Michael concerned a policeman who suffered injury whilst playing football for his force on an off-duty day. Clover, Clayton and Co. Ltd v. Hughes [1910] AC 242 concerned a workman who was killed by an underlying physical condition, an aneurism, when he strained himself whilst using a spanner. I do not think any of these cases assists here.

54. It seems to me that there is a simple answer to this question. An employer is liable to compensate his employee for injury in an accident which arises out of and in the course of the employment. "In the course of the employment", on the cases, means "incidental to the work". The employer remains the employer, even when he lends the employee's services to another employer; a borrower. It must follow that the employer cannot avoid his liability for accidental injury arising out of and in the course of employment with the borrower. To hold otherwise would be to render the deeming provision in section 3 a nullity; because it would mean that no accident suffered while doing the borrower's work could ever be regarded as arising out of and in the course of the employer's employment. It seems to me therefore that the effect of this provision is to produce a joint and several liability on the part of both the employer and the borrower.

55. It follows that the 1st and 2nd respondents must be jointly and severally liable to the applicant for compensation for his accidental injury. There is I think no dispute that liability of the 3rd respondent as main contractor to the 1st respondent follows on.

Quantum

56. According to the Form 7 dated 6 November 2002 the applicant was assessed by the Ordinary Assessment Board as suffering from sprain of back resulting in back pain, right lower limb numbness and weakness. The period of absence necessary as a result of the injury was given as from 13 November to 21 November 1999 and from 19 January 2000 to 8 May 2002. Permanent loss of earning capacity is 4%. The applicant has appealed against this assessment; the respondents have not.

57. The applicant says that he was earning $18,200 per month prior to the accident, and indeed this is the figure which appears in the Form 2. It is calculated on the basis of $700 per day for 26 days. However the 2nd respondent's List of Earnings shows the average figure from April 1999 to the date of the accident at about $13,953. The applicant in cross-examination admitted that at the time of the accident his average earnings were about $13,950. For the purposes of calculation therefore I must take the figure $13,950 per month as the average pre-accident earnings.

Medical evidence

58. The applicant attended the Tang Siu King Hospital on 13 November 1999, where he was found to have tenderness of the lower back region, with decreased lumber spine flexion, no lower weakness, no numbness and normal sensation, his lumber spine actually shows alignment fair and sclerosis at the 5th lumber vertebrae.

59. The applicant was examined by Dr Arthur Chiang Si Chung on 5 January 2002. Dr. Chiang said that a CT scan which had been performed on 11 September 2001 showed a developmentally narrow canal with multiple levels of disc degeneration with broad-based disc bulges at L3/4, L4/5 and L5/S1; moderate to severe spinal stenosis at L3/4 and L4/5 and mild spinal stenosis at L5/S1. He also referred to x-rays previously taken. His diagnosis was that the applicant had sustained a sprain back injury on 13 November 1999. At the date of examination the applicant still complained of relatively significant symptoms. He said that the type of symptoms and signs presented in the applicant's case after the injury were compatible with a lower lumber disc prolapse. There was spinal stenosis and it was thought that the weakness in either or both of the L3/4 and L4/5 discs, which might or might not be present before the injury were sustained in or aggravated by the accident. His findings suggested that there would be some moderate symptoms in the back at the time of examination.

60. Dr Chiang said that because the applicant still had persistent moderate to significant symptoms, he would probably require surgical treatment. Once such surgical treatment had been performed, the applicant would still not be able to return to his pre-accident employment. He should be able to perform on and off manual activities that would have to avoid the more continuous type of manual jobs, which would be helpful to avoid a late future relapse of the prolapse. He should be able to work in light repair works, or as a security guard, messenger or cleaner. He should also be able to work as a driver.

61. Dr Chiang put the percentage loss of earning capacity at about 15%.

62. In oral evidence Dr Chiang said that without surgery, the applicant would still be able to work in light manual jobs. He would have to move about frequently. He could work as a messenger if he did not have to carry much or walk for long periods. He might be able to work as a cleaner. The main criterion was that he would able to undertake light duty.

63. From cross-examination and from the report itself it appears that the applicant had a pre-existing spinal condition which was probably aggravated by the accident. Dr Chiang under cross-examination said that he did not find that the applicant had been exaggerating his symptoms. In re-examination he said that he had performed simulation test to see if the applicant had been exaggerating and he performed this reasonably well. He agreed that the applicant was not a blatant malingerer.

64. The applicant was also examined, on behalf of the respondents, by Dr Chun Siu Yeung, on 6 March 2003. After reviewing the medical records available to him, which did not include some of those seem by Dr Chiang, and Dr Chiang's report, Dr Chun noted that on examination the applicant complained of lower back pain and right lower limb pain of considerable intensity. However, there was no muscle spasm to suggest significant pain at the time of examination. There was no objective neurological deficit and no muscle wasting of the right lower limbs. The lumber lordosis was normal. He said that a patient with incapacitating pain of the right lower limb and limping and dragging after such a long period would normally show wasting of the lower muscles. A limping patient who is complaining of chronic pain in the lower limb, yet showing no muscle wasting suggests inconsistency between complaints and objective physical findings.

65. Dr Chun said that the difference between the objective findings and the symptoms complained of by the applicant suggested "abnormal pain behaviour". This means that the patient is for some reason exaggerating his disability and is attempting to convey to the examiner that something is seriously wrong with him. He continued with a lengthy dissertation on abnormal pain behaviour.

66. Dr Chun said that he believed that the injury might have aggravated the symptoms of spinal stenosis, as a result of developmental and congenital degenerative changes. Looking at the patient's body weight (the applicant's weights about 230 pounds) and other factors he said it was inevitably that the applicant would develop symptoms of spinal stenosis, even without injury, more or less at the same time as he had experienced them.

67. He said the condition was permanent but no surgery would be available or effective in dealing with his signs which were inappropriate.

68. Dr Chun assessed the applicant as having 3% impairment of the whole person related to his injury. From objective findings noted that the examination, the applicant was likely to be able to return to electrical work but should avoid carrying heavy objects of over 50 pounds.

69. The normal convalescence period for a sprain injury to the lower back causing aggravation of degenerative changes should be about six months to a year. For long sick leave form the medical point of view would not help the patient and on the contrary could be harmful. In effect, by reference to a medical journal, Dr Chun said that, as I understand him, the applicant should have been advised to go back to work, rather than encouraged to remain on sick leave. An early return to work often results in a better outcome in the long run for patients with work-related injuries.

70. In oral evidence, Dr Chun said that he had observed the applicant outside the court room. He was walking slowly with both feet rotated out, and hips and backs slightly inclined forward and the hands on the back of his left hip. Later he had seen the applicant take a drink from a vending machine in a pretty normal manner. He had observed the applicant sitting down and massaging the front of his right leg with his elbow and moving his back and hip at the same time. He had also seen the applicant massaging his knee. He had observed that the applicant had an improved walking posture as compared with that at the time of his examination. He said that both knees were flexed whereas previously, at the time of examination, the applicant had not been weight-bearing on both feet. So the picture shows some improvement.

71. Dr Chun said that the applicant was exaggerating his symptoms. Normally where there is severe back pain there is muscle spasm which holds the back straight because this takes tension of the discs. However by adopting a posture of leaning forward, as the applicant did, this would increase the load on the back muscle and the discs.

72. Cross-examined, Dr Chun agreed that the accident did have a role in the injury. He said that chronic pain syndrome was abnormal behaviour, and the excessive adoption of the sick role. This was different from malingering in that it was subconscious. He agreed that he had not seen full records which would let him decide whether the applicant was suffering from conic pain syndrome.

73. The applicant's own evidence was that he had gone back to work for a period from 27 November 1999 to 18 January 2000 or thereabouts, because he did not want to be idle. In that period, he had only done light work, and he had left because his employer did not have any light work for him to do. He could not do heavy work; if he did the pain got worse.

74. He denied exaggerating his symptoms. He said that there had been some improvements in his condition since the time when he had tried to go back to work, in that he could walk better. I asked him to demonstrate walking, and noted that he walked at a slow gingerly pace with his legs apart and some limping. He said that as far as he was concerned, he could not now work as a security guard or a messenger, as Dr Chiang had suggested; if he had been able to work as such, he would be working now.

75. The applicant said that presently he had no strength at all. Also, he had to keep changing the posture of his spine. He is mainly supported by his left leg when he is walking. He could not afford the time to look for work because he had to spend a lot of time getting medical attention. However if he was able to take up working would definitely do it. He had not been to the Labour Department to look for work.

76. As I understand the experts, Dr Chiang considers that the applicant is still suffering the effects of his accidental injury. He does not appear to be exaggerating symptoms though it appears that the doctor cannot entirely rule this out. Dr Chiang does not appear to have measured the applicant's legs for muscle wasting, but he did find some limitation in lumbar flexion. He says that the applicant should have a spinal operation. If he has it he should be able to do light work, as a messenger, security guard or cleaner. If he does not have it, he should still be able to do some light work but he will have to be more selective in his choice of work. In any event, he cannot go back to working as an electrician.

77. Dr Chun accepts that the accident was at least a contributing factor to the injury. He considers that the applicant was in March of this year exaggerating his symptoms. However, he does not appear to be saying that the applicant is malingering, but rather that he is suffering from an abnormal pain syndrome, which as I understand him has been caused to some degree by the applicant's being allowed to remain on sick leave, rather than sent back to work. In brief it appears to be that Dr Chun's view is that if the applicant pulls himself together, loses weight and stops smoking, he should be able to resume his old job.

78. Dr Chun, it appears, did not have access to all the applicant's medical records, to show treatment received, the fact that he had been unable to have a MRI scan because of a metallic fragment in the eye, or the fact that he had had a very difficult time with the CT scan. He had to rely on Dr Chiang's reference to the records. However, since he could rely on that, I am not sure that access to the records themselves would have made a significant difference to his view.

79. The applicant was in the witness box a long time. He showed obvious signs of discomfort and he had to stand up from time to time to relieve it. It was never put to him, and I do not believe it is suggested, that he is deliberately malingering. Even if, as Dr Chun says, he has an abnormal pain syndrome, in fact it still means that he is suffering pain.

80. It is accepted that the applicant had pre-existing degenerative changes in the spine which would sooner or later have become symptomatic, but on the basis of both the experts' opinions I can and do accept that the accident was a contributing factor to the present disability. That is enough for the purposes of employee's compensation.

Section 9

81. The applicant has been on sick leave for more than two years, and he is deemed to suffer from a permanent incapacity. He has been found by the Board to have a permanent loss of earning capacity of 4%. However having considered the expert evidence and the applicant's own evidence it seems to me more probable than not that the most he can do, with or without an operation, is light work as a messenger or security guard.

82. Dr Chiang suggests a figure of 15%. He says that this is suggested with reference to permanent impairment and the future job capacity. He goes on :

"If after apportionment for excluding the element of degeneration and spinal stenosis, the percentage loss in his earning capacity as relating to the residues resulting directly from this accident is suggested to be at about 15%."

83. It appears that if the applicant can only work as a messenger or security guard or do other light work, that the percentage of permanent loss of earning capacity will be substantially greater than that which would be produced by calculation under section 9(1)(b). Mr Gidwani says that I should assess permanent loss of earning capacity on the basis of a figure of $7,000 which the applicant could realistically now earn. To apply the formula in Hong Kong Paper Mills Ltd v. Chan Hin-wu [1981] HKLR 556, as modified in Lui Kwong Yan v. Shui Hing Decoration Works & anr [1993] 1 HKLR 168 I would have to use the figures of the monthly earnings of the applicant at the time of the accident, and the monthly earnings at the time of the accident of workmen in an employment of which he is now capable. There is however a problem in that there is no evidence of what a messenger or security guard would have earned. I cannot take judicial notice of it. See Mak Tin Chun v. Yeung shing Construction Co. Ltd [1991] 2 HKLR 460.

84. There is also a problem with Dr Chiang's figure, in that his figure must necessarily take into account his opinion of the kind of work the applicant can now do; but he does not say what the earnings from such work might be. However it seems obvious to me that the permanent loss must be much more than 4% and the best figure I have is Dr Chiang's 15%, so I propose to accept it.

85. On that basis the section 9 award will be $13,950 x 15% x 72 months = $150,660.

Section 10

86. On the basis that the earnings were $13,950 the periodical payments should be four-fifths of that figure or $11,160 per month. The first period of sick leave was nine days in November 1999 and the second period lasted for 27 months and 20 days. I calculate the figure at $312,108. But the applicant has been paid sick leave payments amounting in total to $314,871. So he has been effectively paid what he is due, and there will be no award under this head.

Section 10A

87. I am not clear as to how much is claimed. The applicant said that he stayed in the Mainland and was treated there, because it was cheaper but he did not say what it cost him, and no receipts have been produced. The only receipt in the bundle is a doctor's receipt for $180. So that is all I can award under this head.

Judgment

88. There will be judgment in favour of the applicant against all the respondents in the sum of $150,840 with costs, including the costs reserved on the first day of the trial, to be taxed if not agreed. The Applicant's own costs are to be taxed in accordance with the Legal Aid Regulations. Since the judgment is to be handed down the costs order is nisi.