LAM CHI BIU v. MAK KEE LTD AND ANOTHER

DCEC1203/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1203 OF 2002

IN THE MATTER OF AN APPLICATION BETWEEN:

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J U D G M E N T

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1. The applicant applies for compensation under sections 9, 10 and 10A of the Employees' Compensation Ordinance, Cap.282, in these proceedings.

2. The 1st respondent is absent in court. I am informed that it is under liquidation and the liquidator does not intend to appear in these proceedings.

3. The applicant sustained multiple injuries and tissue loss in his left hand index finger and middle finger, pain to the right ankle and decreased range of movement and weakness after an attack on his person inflicted by three men on 2 November 2001. The incident took place at the applicant's workplace, a warehouse belonging to the 1st respondent in Ping Che, Fanling, in the New Territories.

4. On 2 November 2001, two men came into the applicant's office at the warehouse at 2.20 pm. One of them claimed he was looking for a job. While the applicant was interviewing this man, two other men came into his office. One went into his colleague's office and by force pressed down his colleague, while the remaining three men attacked the applicant with weapons. The applicant was admitted into hospital since he sustained serious injuries.

5. On 12 August 2002, the Employees' Compensation Ordinary Assessment Board assessed the applicant to have sustained a loss of earning capacity permanently caused by the injury to be 30 per cent. The period of absence from duty necessary as a result of the injury was certified to be from 2 November 2001 to 6 May 2002, a total of 179 days.

6. On 22 August 2002, the Commissioner for Labour issued a Certificate of Compensation Assessment under section 16A(2) of the ordinance. The loss of monthly earnings due to his absence from duty necessary as a result of the injury of 179 days at four-fifths of an income of $29,800 per month was assessed at $142,245.33 under section 9 of the ordinance. The compensation assessed under section 10 for permanent incapacity was 96 x $21,000 x 30 per cent, arriving at a figure of $604,480. The total amount of compensation assessed by the Commissioner was $747,045.33.

7. Since no appeals have been lodged against the Employees Compensation Ordinary Assessment Board's certificate of 12 August 2002, nor was the Certificate of Compensation Assessment by the Commissioner for Labour of 22 August 2002 appealed against, these two certificates remain effective under the ordinance.

8. The 2nd respondent denied that it is liable to the applicant on the basis that the incident did not arise out of nor was it in the course of the applicant's employment. It further denied the applicant's monthly earnings were $29,800, claiming that he was paid a salary of $4,800 only.

9. The applicant gave evidence in court and was cross-examined extensively on the incident. During the cross-examination it was suggested by the 2nd respondent's counsel that the applicant was assaulted not as a manager of the 1st respondent but in his own personal capacity. One of the suggestions was that he had appeared on television shortly before the assault. This was denied by the applicant as activities related to the assault.

10. The 2nd respondent adduced no further evidence and relies solely on the cross-examination of the applicant and therefore there is nothing to indicate the applicant's appearance on television would have anything to connect it with the assault. There is no connecting evidence of the two incidents.

11. In the applicant's witness statements the applicant claimed that his assailants had asked to see a Mr Lam of Mak Kee - that is the 1st respondent - and one of the men claimed he was looking for a job; that was the reason the applicant agreed to interview this man who had claimed that he was job hunting. It was during this interview that the applicant was attacked and assaulted.

12. In the applicant's own witness statement he also disclosed that the 1st respondent had a number of debtors and, in fact, had taken out law suits against certain parties. The applicant seems to suggest that any one of these parties could have been the reason why he was assaulted but, of course, there is no conclusion since there is no evidence adduced as to whether the police had successfully apprehended the assailants or there was any result as to the investigation of the applicant's assault. It is therefore impossible for the court to conclude the reason why the applicant was assaulted. In fact, under the circumstances, it could be for any reason possible that the applicant was assaulted.

13. Section 5(4)(a) of the ordinance states that:

"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."

14. Clearly, the incident whereby the applicant was assaulted and sustained serious injuries must be considered as an accident. There was no obvious reason to point to the fact that the applicant was assaulted for any personal reasons. There is therefore, under section 5(4)(a) of the ordinance, a presumption that the applicant sustained the injuries in the course of his employment and that the accident had arisen out of that employment.

15. It is for the 2nd respondent to rebut this presumption. The 2nd respondent has the burden to rebut the presumption with sufficient evidence, and since the 2nd respondent has adduced no evidence, the 2nd respondent has failed to displace the presumption under section 5(4)(a). Mere suggestion that because the applicant had appeared on a TV feature prior to the attack is not sufficient to satisfy the requirement of rebutting the presumption that the applicant had sustained injuries in the course of his employment or that the accident had arisen out of his employment. In fact, the applicant was carrying out his duties as manager of the work of the 1st respondent when he was assaulted. He was interviewing potential employees of his employer.

16. The applicant's father may have been a general manager of the 1st respondent and may have been a majority shareholder of the 1st respondent, it does not follow that the applicant was not a genuine employee of the 1st respondent, nor does it mean that he did not receive a salary for his employment of $29,800 per month. This also had not been disproved by the 2nd respondent.

17. On the basis that the presumption under section 5(4)(a) of the ordinance had not been displaced, I am satisfied that the incident was an accident and the applicant had sustained injuries in the course of his employment and it had arisen out of his employment.

Quantum

18. I accept the applicant's counsel, Mr Ramanathan's submission that the Court of Appeal case of Ng Ming Cheong v MTRC [1997] 3 HKC 413 applies in this case.

19. So far as the Certificate of Compensation is concerned, I am bound by the decision that since there had been no appeal to the Certificate of Compensation Assessment issued by the Commissioner for Labour on 22 August 2002 the assessment was final, that the only evidence regarding the quantum is the Certificate of Compensation Assessment of 22 August 2002. Consequently, I award the sum of $142,245.33 under section 9 of the ordinance. As to section 10, I award the sum of $604,800.

20. As to section 10A, no evidence on medical expenses has been adduced by the applicant in his evidence, and except for a few medical chits in the bundle, I can find no further evidence of medical expenses, and there being no assistance in the assessment of the medical expenses, in spite of the fact that the applicant had been given 179 days of sick leave, I am unable to make an assessment under section 10A and therefore I make no award under section 10A.

Interest

21. I award interest under section 9 and section 10, that is the two sums of $142,245.33 under section 9 and $604,800 under section 10, from the date of application to the date of judgment at half judgment rate and full judgment rate from the date of judgment until full payment.

Costs

22. Costs should follow the event, and since the applicant has succeeded in his application, costs to the applicant on an indemnity basis, to be taxed if not agreed, with certificate for counsel.

23. The payment out of the payment into court of $210,000 to the applicant.