LAW SIU SEE v. DE RODEO HUMAN RESOURCES LTD

DCEC989/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 989 OF 2001

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J U D G M E N T

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Introduction

1. This is an application for employees' compensation by the Applicant under sections 9, 10, 10(5) and 10A of the Employees' Compensation Ordinance Cap.282 (the "Ordinance"). The Applicant, aged 32 years in 2001, claimed that he was injured on 20th February 2001 at about 9:50 a.m. as a result of a traffic accident arising out of and in the course of his employment with the Respondent whilst riding a motorcycle on Shing Yip Street.

2. Judgment on liability has been entered by consent pursuant to the Order of His Honour Judge Muttrie on 24th January 2003. In the present trial, the Applicant applied for assessment of compensation payable to him. The Applicant also appealed against the Certificate of Assessment dated 28th February 2003 (the "Certificate") and the Certificate of Review of Assessment dated 21st November 2002 (the "Review Certificate") under section 18 of the Ordinance in respect of (a) the necessary period of absence from duty, and (b) the loss of earning capacity permanently caused by the injury.

Preliminary matters

3. At the hearing, Mr. Chung (counsel for the Applicant) and Mr. Tang (counsel for the Respondent) submitted that the documents in Part C of the trial bundle and the medical reports in items 1 to 5 of Part D of the trial bundle are agreed as to admissibility and authenticity.

4. The parties also came to agreement over the necessary period of absence from duty, that is, two years from the date of the accident. In the circumstances, the Applicant did not further pursue his claim under section 10(5) of the Ordinance.

5. The parties were also agreed that the Applicant had received periodical payments in the sum of HK$214,118.64. Out of this sum, HK$21,577.50 constituted double pay paid by the Respondent to the Applicant. Mr. Chung and Mr. Tang submitted that if the court's eventual determination as to the monthly earnings in respect of the claim under section 10 is inclusive of double pay, then the Applicant will give credit for the full sum of HK$214,118.64. If, however, the court is of the view that the monthly earnings should be exclusive of double pay, then the sum of HK$21,577.50 should be credited back in favour of the Respondent.

6. Mr. Tang did not dispute the quantum of medical expenses in the sum of HK$4,986.20 incurred by the Applicant.

The Applicant's case

7. The Applicant gave evidence and he was the only witness.

8. On 20th February 2001, the Applicant rode his own motorcycle to work at the Respondent's office in Chai Wan some time after 9:00 a.m. Then he left on his own motorcycle for outdoor work in Kwun Tong. He had an accident in the vicinity of the Respondent's office in Chai Wan and suffered personal injuries.

9. The Applicant studied up to Form 3 and then became an apprentice for three years in the field of air-conditioning maintenance. After that, he became an air-conditioning technician and has worked continuously as such for 17 years.

10. The Applicant had a driving licence for over 10 years. Apart from a motorcycle, he could drive vehicles in categories 1, 2, 3, 6 and 22 which include private car, light goods vehicle and taxi but not container or heavy truck.

11. The Applicant commenced employment with the Respondent on 3rd October 2000 as an air-conditioning technician responsible for the maintenance of air-conditioners, earning a monthly salary of HK$10,000.00. It was an express term of his employment agreement dated 3rd October 2000 inter alia that "where an employee has worked for over one year, (such employee) shall be paid an amount equal to one month's salary as double pay". The Applicant accepted that as at the date of the accident, since he has not worked for a full year then, he was not yet entitled to double pay. The Applicant's monthly basic salary was increased to HK$11,000.00 in January 2001 (see also Form 2 at pages 43-47 of Part C of the trial bundle).

12. After the Respondent employed the Applicant, the Applicant purchased his own motorcycle. He also entered into another agreement titled "Agreement for expenses incurred in using motorcycle" (the "Agreement") with De Rodeo - Kin Fu Engineering Design Co. Ltd. (referred to as "Party B" in the Agreement) (page 146 of Part C of the trial bundle). It appeared on the face of the Agreement that the Applicant signed the same on 25th November 2000 and Party B on 1st November 2000. The Applicant said that the Agreement concerned the allowance given to him for the use of his own motorcycle. The Agreement expressly provided that the Applicant "shall be responsible for expenses of cleaning, maintenance, insurance, licence fees, fines etc. and the purchase of the vehicle" (Clause (2)) and "shall receive payment of expenses in the sum of HK$1,700.00 each month" (Clause (5)). Where special expenses have been incurred, the Applicant might apply for approval from Party B (Clause (4)).

13. The Applicant confirmed that a sum of HK$1,700.00 was paid to him by the Respondent in December 2000 and January 2001 respectively. But in cross-examination, he said that the monthly sum of HK$1,700.00 was paid by Party B and that at the time of his signing of the Agreement, he was aware that Party B was De Rodeo - Kin Fu Engineering Design Co. Ltd. However, when he was further cross-examined as to Party B being an entity different from the Respondent and as to whether he could under the Agreement apply to Party B for special expenses under Clause (4), he appeared confused. But he agreed that he knew that in appropriate circumstances, he had a right to apply to Party B for special expenses. In re-examination, he said that so long as he was paid the monthly sum of HK$1,700.00 by the Respondent, he was not concerned how the Respondent obtained this sum or whether they were reimbursed by another party.

14. The Applicant said that the sum of HK$1,700.00 was an estimation of the monthly reasonable expenses of his motorcycle which covered part of the purchase price of the same. He denied that the sum of HK$1,700.00 could vary from month to month. Indeed, if the expenses for any particular month was less than HK$1,700.00, there was no need to refund any part to the Respondent. He further agreed that the periodical payments given by the Respondent did not include the monthly sum of HK$1,700.00.

15. The Applicant's work was to maintain and repair air-conditioners. His actual duties included working at the external walls of buildings, climbing scaffolds and moving machinery, such as air-conditioners and components of air-conditioners. For indoor work, he had to climb ladders, and check and repair the air-conditioners by hand.

16. For his work, the Applicant needed to use hand tools (such as pliers, screwdrivers, pliers for water pipes, etc) with both hands and the work required skilful use of the hand tools. These would not be heavy tools. Although his work would not include installation of air-conditioners, it would require him to remove certain parts of air-conditioners and reinstall them. He said that parts of an air-conditioner such as the compressor and the motor for the fans were relatively heavy.

17. The Applicant said that he could no longer perform his previous work as an air-conditioning technician. He had returned to work for the Respondent for a few days in December 2001 or January 2002 (the exact date of which he could not remember) but he stopped because of the pain. Under cross-examination, he said that he always wore safety belt and took safety precautions, so it would not be so dangerous working on scaffolds even when there was not much strength in his wrist. In re-examination, he said that he would still need to use his hands to climb up the metal platform or scaffold to reach the place of work. He cannot do that now. He disagreed that he has exaggerated his condition when giving evidence.

The Certificate and the Review Certificate

18. By the Certificate, the Employees' Compensation (Ordinary Assessment) Board (the "Board") certified that the loss of earning capacity permanently caused by the Applicant's injury was 7%. The Applicant was not satisfied with the assessment and applied to review the same (pages 57-58 of Part C of the trial bundle). On review, the Board by the Review Certificate certified and confirmed the assessment of loss of earning capacity at 7%. Since the Certificate was cancelled in accordance with section 16G(4) of the Ordinance upon the issuance of the Review Certificate, there is no further need to consider the appeal by the Applicant against the Certificate. What remained was the appeal against the Review Certificate.

Medical evidence

19. Dr. David Cheng examined the Applicant on 25th November 2002 and rendered a medical report on 4th December 2002 (pages 159-169 of part D of the trial bundle). By consent of the parties, the said report was admitted in evidence without calling Dr. Cheng to give evidence. Dr. Cheng gave a succinct summary of the injuries and treatment received by the Applicant.

20. After the Applicant was thrown off the motorcycle, there was dizziness but no loss of consciousness. He was taken to the Accident and Emergency Department (the "A&E Dept") of Pamela Youde Nethersole Eastern Hospital (the "PYNEH"). He complained of pain at his right ankle and both wrists. Physical examination showed right ankle swelling and bruise. He was treated and discharged.

21. The Applicant returned to the A&E Dept of the PYNEH five days later when X-rays were taken. It was discovered that there was a fracture of his right ankle. A plaster cast was applied and he was referred to the Orthopaedic Clinic at the PYNEH. He followed up at the Clinic and a few weeks later the plaster cast was removed. Physiotherapy was given and the ankle gradually recovered. The Applicant complained to Dr. Cheng that there was a dull ache over the left ankle during change of weather or after walking for over an hour. Dr. Cheng observed that he walked normally and could support himself on any one leg. He could squat and rise normally. Dr. Cheng's findings for and the radiological examination of the right ankle were normal. If there was a fracture, it had probably healed without a trace. Dr. Cheng opined that the ankle injury recovered well. There was no permanent physical impairment of any degree. The ankle function was full and normal.

22. However, the Applicant complained of persistent left wrist pain. He was admitted to the PYNEH on 5th September 2001 for surgery of arthroscopy and K-wire fixation of the left wrist. The arthroscopy showed that there was a grade III instability between the triquetral and lunate bones (two small carpal bones in the proximal row at the wrist). Although the doctor attempted a fusion, the Applicant said that there was little improvement after the surgery. He continued with physiotherapy. He returned to work for a short while in December 2001 but the pain became too frequent. He had to take frequent sick leave and since March 2002, he was put on continuous sick leave again. In August 2002, he had another arthroscopy which showed inflammatory changes and early degeneration or chondromalacia between the two bones. The two bones were then fused together again by a screw. There was subsequent fusion of the two bones. But the Applicant said the condition remained quite the same. He was then on follow up treatment.

23. Dr. Cheng noted the Applicant said there was no pain over the left wrist at rest but pain gradually came whenever he moved the wrist. He complained of stiffness and weakness of the left wrist. Dr. Cheng observed that there was mild swelling over the dorsum of the wrist. The wrist joint was stiffish and the range of dorsiflexion, plantaflexion, radial deviation and ulnar deviation were 20(, 20(, 10( and 20( respectively for the left wrist as compared to 70(, 70(, 20( and 50( for the right wrist. Pronation and supination were normal. The handgrip was weaker than the right side. Radiological examination showed a cannulated screw and a K-wire transfixing the triquetral bone and the lunate bone together. There was fusion between these two carpal bones.

24. Dr. Cheng opined that there was still residual stiffness, weakness and pain as a result of the severe sprain of the left wrist. There is little that can be done now. The Applicant has reached a stage of maximum medical improvement. Dr. Cheng was of the view that the best course is to continue with exercise and to return to some form of work befitting the Applicant's physical state. With such activities, there is likely to be strengthening of the muscle power and possible loosening of the stiffness. However, some impairment will probably remain permanently. Dr. Cheng assessed this impairment as 15% upper limb impairment, equivalent to 9% whole person impairment. The loss of earning capacity in accordance with the Ordinance according to Dr. Cheng is 11.25%.

25. The Applicant said in his evidence that his ankle had healed and the major complaint now is in respect of his left wrist. He said that he suffered pain and his wrist was weak and he could not move it in an agile way. The rotation of the wrist caused much pain. He had two operations for his wrist but the problems still persisted.

The Respondent's case

26. The Respondent elected to call no evidence.

Section 9

27. The Applicant claimed compensation under section 9 of the Ordinance. Several issues arise under this head of claim. Mr. Chung and Mr. Tang were agreed that the following matters are in dispute :

(a) the monthly earnings of the Applicant at the time of the accident;

(b) the average monthly income of a worker in an alternative occupation which the Applicant is capable of undertaking assessed at the date of the accident; and

(c) the loss of earning capacity permanently caused by the injury.

(1) Monthly earnings of the Applicant

28. There is no dispute between the parties as to the monthly basic salary of HK$11,000.00. The Respondent contended that the monthly pro rata sum of the double pay and the monthly sum of HK$1,700.00 should not be included in the calculation of the earnings of the Applicant.

29. In respect of the matter of the double pay, Mr. Tang submitted that as at the date of the accident, the Applicant was not entitled to double pay since he has not completed a full year of employment with the Respondent. However, but for the accident, the Applicant would have continued to work with the Respondent and be entitled to double pay. The definition of "earnings" in section 3 of the Ordinance clearly contemplated the inclusion of double pay benefit. Indeed, the Respondent has included double pay twice in their provision of periodical payments to the Applicant. I see no merit in the Respondent's argument.

30. As regards the monthly sum of HK$1,700.00, Mr. Tang submitted that the obligation to pay this sum was on Party B and not on the Respondent. Secondly, such sum covered expenses in relation to the use of the Applicant's motorcycle and the purchase price of the same. Thirdly, such sum was to the knowledge of the Applicant excluded from the periodical payments made by the Respondent to him, and he raised no prior complaint (save for the present proceedings). Mr. Chung submitted that the Applicant clearly confirmed in his evidence that prior to the accident he received the monthly sum of HK$1,700.00 from the Respondent and that such sum falls within the meaning of "earnings" in section 3 of the Ordinance. Further, even if the actual expenses in any month were less than the sum of HK$1,700.00, there was no need for the Applicant to refund the unused balance. But for the accident, the Applicant would continue to receive this monthly sum.

31. I am of the view that as a primary consideration it is necessary to consider the nature of the payment of the monthly sum of HK$1,700.00. The Applicant did not dispute that this sum was payable pursuant to the Agreement. From the title and contents of the agreement, it is evident that the monthly sum of HK$1,700.00 was a sum agreed between the parties as reimbursement of expenses incurred by the Applicant in connection with the use of his own vehicle for his employer's purposes. As the nature of the payment was for covering expenses incurred instead of being wages, such payment cannot be regarded as earnings of the Applicant under section 3 of the Ordinance. It is therefore unnecessary to consider the issue raised by counsel as to whether such sum was payable by the Respondent or Party B.

32. In the circumstances, I find that the monthly earnings of the Applicant as at the date of the accident is as follows :

HK$11,000.00 + (HK$11,000.00 ( 12) = HK$11,916.70 (rounded to HK$11,917.00)

(2) Average monthly income in alternative occupation

33. Dr. Cheng considered that the Applicant's physical impairments might cause difficulties for him to return to his pre-accident occupation as a mechanic. Although physically he might do the same work, the pain and stiffness would reduce his working efficiency. There would be no problem in handling a motorcycle but he might not be able to lift heavy air-conditioning machines or operate heavy instruments. He might also have difficulties in climbing scaffolding where he might need to balance or support himself with the left hand by holding onto such structure. "Alternative occupations are light to moderate work, such as gas station attendant, messenger, watchman, driver, etc."

34. The Applicant in his evidence agreed that when Dr. David Cheng examined him, they discussed the alternative occupations that were open to him. He knew Dr. Cheng's suggested alternative occupations. His preferred choice was a driver as he had a driving licence for a long time and could drive different vehicles. He had in mind of being a taxi-driver because he already had a taxi-driver licence 7 or 8 years ago.

35. The Applicant in his evidence initially denied that the Respondent invited him back to work at his original salary. Subsequently in his evidence he agreed that he rejected such offer and indicated that they should talk to his lawyers, but he explained that at that time he was still on sick leave.

36. Mr. Chung urged me to rely on a letter dated 14th April 2003 from the Motor Transport Workers General Union Taxi Driver Branch (page 132-A of Part C of the trial bundle) where it was stated that taxi drivers normally operate by renting taxis and on morning and evening shifts each of 8 to 9 hours' duration. The average daily earnings of a five-seater taxi (exclusive of rental fees and expenses for fuel or liquefied petroleum gas) for the periods of January to June 2002, July to November 2002 and December 2002 to the present are about HK$350.00, HK$330.00 and HK$300.00 respectively.

37. Whilst it is reasonable to assume from the long hours of each shift that a taxi-driver usually attends one shift a day, there is no information from the said letter as to (a) the number of working days in a month normally achieved by a taxi-driver and (b) the average daily income of a taxi-driver as at the date of the accident, that is, 20th February 2001. Mr. Tang took issue on these matters. Mr. Chung agreed that the said letter might not satisfy the court as to what was the monthly income of a taxi-driver at the time of the accident.

38. However, Mr. Chung asked me to infer that a taxi-driver works 26 days in a month because the Applicant in his employment as an air-conditioning technician worked 26 days a month (see Form 2 at page 44 of Part C of the trial bundle). He also asked the court to adopt the daily income of HK$300.00 as the appropriate sum for the date of the accident. Adopting the aforesaid multiplier and multiplicand, he came up with the average monthly earnings of a taxi driver as follows :

HK$300.00 x 26 days = HK$7,800.00

Therefore, when this sum was compared with the Applicant's monthly earnings as at the date of the accident as urged by Mr. Chung (that is, HK$13,617.00 which is inclusive of the pro rata double pay and the sum of HK$1,700.00), the percentage loss of earning capacity is as follows :

(HK$13,617.00 - HK$7,800.00) ( HK$13,617.00 x 100% = 42.72%

This is the percentage Mr. Chung urged me to adopt. Even on my finding of the monthly earnings of the Applicant of HK$11,917.00 as at the date of the accident, based on Mr. Chung's formula, the percentage loss of earning capacity is 34.55%.

39. I find it difficult to draw an inference on the number of working days as submitted by Mr. Chung. As a technician employed by the Respondent, the Applicant was a full time worker paid on a monthly basis inclusive of rest days. However, as a shift worker, a taxi-driver's income necessarily depends on the number of shifts he works in a month and that may be dependent on a number of factors, including the number of available taxis for hire, the number of available taxi-drivers seeking shift work and other matters. There is no common platform from which the court can draw a comparative inference based on the said letter and the Applicant's employment as a technician.

40. As regards the time of the assessment, I do not understand Mr. Chung's suggestion of the adoption of HK$300.00 as the daily income of a taxi-driver as at the date of the accident. The accident happened on 20th February 2001. Of the information provided in the said letter, the closest in time is the period from January to June 2002 which refers to a daily income of HK$350.00. There is a falling trend from January to December 2002. If this trend was consistent throughout 2001 as well, the average daily income of a taxi-driver in 2001 would logically be higher than HK$350.00. But there is in fact no evidence before the court of the earnings of a taxi-driver as at February 2001 or of any consumer price indices to enable calculation of the same to be made. The court cannot speculate on the trend and project on such speculation an amount as at the date of the accident. As seen from the information in the said letter, the daily income for a taxi-driver in 2002 has altered significantly within the year.

41. The burden of proof is on the Applicant to persuade me as to what is the average monthly earnings of a taxi-driver at the time of the accident and this I find that he has failed to do.

42. But that is not the end of the matter for Dr. Cheng referred to other alternative occupations as well. The Applicant produced the Quarterly Report of Wage and Payroll Statistics for March 2002 from the Census and Statistics Department which revealed that the average monthly salary of a male building attendant/caretaker/guard in the real estate maintenance management field was HK$7,607.00. Although Mr. Chung referred to these statistics, his primary contention was to rely on the earnings of a taxi-driver and not on these statistics. Indeed, they have not been part of his calculations on the quantum of compensation submitted to the court. This must be right because if the Applicant is capable of several alternative occupations, he cannot claim for compensation under section 9(1A) on the basis of an occupation of a lesser pay to the detriment of the Respondent.

43. The Respondent provided average monthly salaries of selected occupations downloaded from the website of the Census and Statistics Department (pages 154A-B of Part C of the trial bundle). The document showed that the average monthly salaries of miscellaneous non-production workers such as general worker, messenger/office assistant, driver and delivery man as HK$7,651.00, HK$8,163.00, HK$11,707.00 and HK$8,802.00 in December 2000 and HK$7,785.00, HK$8,086.00, HK$12,063.00 and HK$9,019.00 in March 2001 respectively. It was noted that average monthly salaries covered basic wages/salaries (including paid holidays and leave), commission and tips (tips received directly from customers are excluded), shift allowance, cost-of-living allowance, meal allowance and meal benefits, good attendance bonus, guaranteed year-end bonus, and other regular and guaranteed bonuses and allowances.

44. Mr. Tang submitted that these statistics are impartial and independent statistics which should be relied on by the court. He submitted that it is evident from these statistics that the monthly wages of a driver in March 2001 was HK$12,063.00, which is more than the Applicant's monthly earnings from the Respondent. Mr. Chung challenged the applicability of these statistics as there is no evidence as to what sort of driver these statistics covered. The Applicant cannot drive container or heavy trucks as he has no licence for the same. However, I note that the Applicant has a licence for driving light goods vehicles but has led no evidence on employment options and income in relation to this skill.

45. The Respondent also provided average daily wages of workers engaged in government building and construction projects also downloaded from the website of the Census and Statistics Department (pages 154C-E of Part C of the trial bundle). These statistics have not been referred to by either Mr. Tang or Mr. Chung in their submissions.

46. Given the unsatisfactory state of the evidence on the income in alternative occupations, I find it useful to refer to section 9(1A) of the Ordinance itself. The primary rationale of section 9(1A) of the Ordinance is to give the court a wide discretion as to what percentage of loss of earning capacity should be awarded. This discretion relates to the special circumstances of the particular employee. More specifically, it must be established that (a) permanent partial incapacity results from an injury or injuries (which is established in this case) and (b) the percentage loss of earning capacity produced by the usual section 9 calculation would be "substantially less" than such percentage loss of earning capacity as would result if the "special circumstances" of that particular employee were taken into account.

47. In the present case, although the Applicant has some impairment to his left wrist, according to Dr. Cheng, he could do the same work but at reduced efficiency. It is acknowledged that there may be some difficulty in the use of the left wrist, but the Applicant has other special skills (such as driving skills) which he can now usefully apply to move into a different field. He appears to be a positive person and has seriously considered the options of alternative occupation with Dr. Cheng. In particular, he has considered the option to be a taxi-driver which will clearly utilise his other skills. I do not find on the evidence before me that the Applicant's earning capacity would be "substantially less" than that assessed under section 9(1) of the Ordinance by reason of his "special circumstances". In light of the totality of the evidence on this issue, including the letter from the union, the information from the Census and Statistics Department, the medical evidence and the Applicant's own evidence, I do not find sufficient justification to invoke section 9(1A) of the Ordinance and to assess a higher loss of earning capacity.

(3) Loss of earning capacity

48. For the appeal against the Review Certificate under section 18(1) of the Ordinance, the court must consider the assessment afresh and has an absolute discretion to depart from or confirm the assessment by the Board (see section 18(3) of the Ordinance).

49. I have considered the Applicant's evidence, the medical reports from the treating doctors and hospitals and Dr. David Cheng's medical report. However, in coming to a view on loss of earning capacity I remind myself that the court should not rely on the assessment made by doctors (see Tang Shan Chan v Wealthy Construction Company Limited CACV No.58/2000, Rogers JA (unreported, 5th April 2000), Woo Wai-kuen v Li Siu-keung, Alex trading as Alex's Kitchen DCEC No.489/2000, Judge Lok (unreported, 7th July 2001), and Kwan Yee Chor v Hung Fau Metal Construction Company Limited and ors DCEC No.520/2001, Judge Lok (unreported, 10th July 2002)).

50. After listening to the Applicant's evidence, I find him to be an honest and reliable witness. I accept that he has problems with rotation movements of his left wrist, that he has a weaker left handgrip and that he will have some difficulty in any employment that requires skilful use of his hands/wrists and/or heavy duty work. His evidence is unshaken in cross-examination and is supported by Dr. Cheng's report. I find that his complaint is genuine. Further, there is no dispute over Dr. Cheng's opinion that he has reached maximum medical improvement. So whilst further exercise and work may assist in loosening the wrist, there is no evidence that improvement will likely to be very significant.

51. Mr. Tang submitted that I should place weight on the assessment by the Board instead of that by Dr. Cheng as the Board has examined the Applicant twice and has confirmed the assessment of loss of earning capacity at 7%. He pointed out that Dr. Cheng was retained by the Applicant and hence might not be as impartial as the Board.

52. I find on the totality of the evidence that the Applicant suffered impairment of his left wrist which will affect his working capacity. The condition is moderately serious although not sufficient to invoke section 9(1A) of the Ordinance. Rotation and fine movements of the left wrist will be affected. In the circumstances, I allow the Applicant's appeal and assess loss of earning capacity at 11%.

(4) Award under section 9

53. In the circumstances, the award under section 9 of the Ordinance is as follows :

HK$11,917.00 x 11% x 96 = HK$125,843.52

Section 10

54. The award under section 10 is as follows :

HK$11,917.00 x 4/5 x 24 = HK$228,806.40

Conclusion

55. The total amount of compensation can therefore be calculated as follows ;

(a)	Section 9 compensation	HK$125,843.52
(b)	Section 10 compensation	HK$228,806.40
(c)	Section 10A compensation	HK$4,986.20
		HK$359,636.12
	Less periodical payments received	(HK$214,118.64)
		HK$145,517.48 =========

56. In the circumstances, there will be judgment in favour of the Applicant against the Respondent in the sum of HK$145,517.48. There is no reason why costs should not follow event. Indeed, Mr. Tang did not dispute that the Respondent is liable to pay the Applicant's costs. However, Mr. Tang argued that despite the Respondent having instructed counsel, this case was not of a complexity that justified certificate for counsel. However, it is apparent that a large part of the consensus on evidence reached between the parties which simplified the trial was reached either at a late stage or at trial itself. I therefore make an order nisi that costs of the assessment on compensation and of the appeal against the Review Certificate be paid by the Respondent to the Applicant, to be taxed if not agreed, with certificate for counsel.