NG WING KWONG v. LEE WAI KIU t/a “好味道荼餐廳”AND ANOTHER

DCPI 1819/2020
DCEC 1593/2018
(Heard together)

[2021] HKDC 1430

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURY ACTION NO 1819 OF 2020

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1593 OF 2018

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JUDGMENT

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A. INTRODUCTION

1.  On 12 July 2017 at or about 6:33 am, whilst in the employment of Mr Lee Wai Kiu (“Mr Lee”) trading as “好味道茶餐廳”, Mr Ng Wing Kwong (“Mr Ng”) was injured as a result of a petroleum gas explosion at the restaurant at Shop C, G/F, 35 Cheung Ning Street, To Kwa Wan,Kowloon.  Mr Ng sustained severe burn injury as a result.

2.  Subsequently, Mr Ng commenced two sets of proceedings against Mr Lee.  The first one (ie DCEC 1593/2018) is an application by Mr Ng pursuant to the Employees Compensation Ordinance (Cap 282) (the “ECO”) for compensation under sections 9, 10, and 10A of the ECO.  The second one (ie DCPI 1819/2020) is a personal injuries action in relation to the same accident.

3.  Mr Lee did not take part in both sets of proceedings.  On 10 July 2020 and 23 September 2020, interlocutory judgments were entered against Mr Lee in relation to DCEC 1593/2018 and DCPI 1819/2020 respectively.

4.  Pursuant to an Order dated 10 July 2020 and an Order dated 29 March 2021, the Employees Compensation Assistance Fund Board (the “Board”) was allowed to join in DCEC 1593/2018 and DCPI 1819/2020 on the issue of quantum.

5.  Before the court is the assessment of compensation and damages in relation to both sets of proceedings.  Although there is no consolidation order of the two sets of proceedings, they are heard together because they arose out of the same accident.

6.  At the hearing, Mr Alan Ho appears on behalf of Mr Ng.  Mr Timmy Yip appears on behalf of the Board.  Both Mr Ho and Mr Yip have submitted separate submissions and hearing bundles for each set of proceedings.  For the avoidance of repetition, I will first deal with the common features of both sets of proceedings in Sections B and C below, followed by the claims in DCEC 1593/2018 and DCPI 1819/2020 more specifically dealt with in Sections D and E respectively below.  Needless to say, although I set out the awards separately, Mr Ng is not entitled to double recovery.  In DCPI 1819/2020, credit should be given by Mr Ng for the sums recovered in DCEC 1593/2018.

B. WITNESS AND EVIDENCE

7.  Mr Ng has filed one witness statement for himself.  He has no other witness to call.  The Board has no witness to call in the hearing.

8.  All hospital treatment reports are produced without calling the makers. Mr Ng and the Board have respectively engaged plastic surgery specialists, Dr Ian Nicolson and Dr Walter King, to examine Mr Ng’s injuries. Their two joint expert reports are also produced without calling the specialists. It is noted that there is no disagreement between the two specialists.

C. MR NG’S INJURIES

9.  Briefly, due to the gas explosion, Mr Ng suffered blast injury with 50%  body burn.  He underwent debridement and skin graft to deeper wounds over right groin, right hand and left thigh.  Other wounds were managed with dressing.  He was discharged on 28 August 2017.  His wounds healed up with hypertrophic scar.

10.  On review by the Assessment Board, Mr Ng’s injury was confirmed as  multiple injury resulting in scars over trunk, both lower limbs and both upper limbs.

11.  It is the common diagnosis of the two plastic surgery specialists that Mr Ng suffered from about 50% Total Body Surface Area flame second degree burns injury to his face and four limbs.

D. MR NG’S CLAIM IN DCEC 1593/2018

D1. Mr Ng’s earnings

12.  Before the accident, Mr Ng was employed by Mr Lee as a drinks bar / food & beverage worker. There was no written employment contract. He said his daily wage was HK$700 and he worked 26 days a month, that is, a monthly salary of HK$18,200.

13.  Although I note that according to the Form 2 filled out by Mr Ng, his monthly salary was HK$16,800, there is no challenge to Mr Ng’s case that his earnings were in fact HK$18,200 under s 11 of the ECO. In these circumstances, I accept Mr Ng’s evidence and adopt the sum of HK$18,200 accordingly.

D2. Section 9 Compensation

14.  At the time of the accident, Mr Ng was aged 57. According to s 7(1)(c) of ECO, compensation would be assessed with reference to 48 months’ earnings.

15.  On review by the Assessment Board, Mr Ng’s loss of earning capacity was up-lifted to 8%.

16.  The two plastic surgery experts have the common opinion / assessment that Nr Ng’s loss of earning capacity was 12%.

17.  There is no challenge to the experts’ common opinion/assessment.  Thus, I consider that the proper sum under section 9 of the ECO should be HK$18,200 x 48 x 12% = HK$104,832.

D3. Section 10 Compensation

18.  After the accident, Mr Ng was granted sick leave intermittently from 12 July 2017 to 11 October 2020 (ie 39 months).  Thereafter, he has not returned to any work.  He claimed that he is not yet recovered.

19.  The Assessment Board accepted sick leave intermittently from 12 July 2017 to 23 October 2019 (829 days).

20.  Nonetheless, the two plastic surgery specialists criticised Mr Ng of visiting different government outpatient clinics to see different doctors with complaints of minor ailments like itching and aching discomforts in the ankles, causing him to have on and off sick leave of over 3 years. They both agreed that the granted sick leave period is excessive and the reasonable sick leave should be up to 27 September 2019, that is, 26 months.

21.  The two plastic surgery specialists also agreed that Mr Ng has reached maximum medical improvement and he can engage in gainful employment with a reduced working efficiency. He is capable of returning to his pre-accident job or similar jobs as server, waiter or chef in a cafe style restaurant. However, the specialists pointed out that Mr Ng exaggerated his symptoms and lacked inertia and incentive to return to any gainful employment.

22.  In the case of Tse Tsz Chong v Law Sze Man [2015] 1 HKLRD 1120, Lam, VP  (as he then as) stated that (para 28, p 1130):-

“… In the context of employee compensation claims, the weight to be attached to sick leave certificate is governed by s 10(2) of the Employees’ Compensation Ordinance. … In a nutshell, the correct legal position is this: s 10(2) set out a rebuttable statutory presumption of temporary incapacity during the certified period in the context of an employee compensation claim. The burden is on an employer to rebut that presumption.” (emphasis added)

23.  In his opening submissions, Mr Ho accepts that the appropriate period of sick leave for Mr Ng should be 26 months.

24.  As such, the proper assessment under section 10 compensation is HK$18,200 x 26 months x 4/5 = HK$378,560.

D4. Section 10A Compensation

25.  Both Mr Ho on behalf of Mr Ng and Mr Yip on behalf of the Board agree that the amount of incurred medical expenses of Mr Ng under s 10A should be at $12,000.  I adopt this sum accordingly.

D5. Summary

26.  Following the analysis above, the amounts of compensation under sections 9, 10 and 10A of ECOare:-

Section 9	$18,200 x 48 x 12%	HK$104,832
Section 10	$18,200 x 26 months x 4/5	HK$378,560
Section 10A	$12,000	HK$12,000
	Total:	HK$495,392

27.  Mr Ng is also entitled to interest at half judgment rate from the date of the accident to the date of this judgment and thereafter at judgment rate until payment.

E. MR NG’S CLAIM IN DCPI 1819/2020

E1. PSLA

28.  In the Revised Statement of Damages, PSLA was claimed at $800,000.  It is revised to $500,000 in Mr Ho’s opening submissions.

29.  Having regard to Mr Ng’s injuries and the following cases cited by Mr Yip on behalf the Board, including Leung Hing Sum v Yau Lee Construction Co Ltd, HCPI 422/2000 (12/10/01), Lui Sheung Lok v Wah Wah Travel Services Ltd, HCPI 1188/1999 (14/9/00) and Yeung Hau Keung v Yip Wang Kit, HCPI 691/2011 (7/5/14), I agree that $500,000 is a reasonable sum for PSLA and will adopt it accordingly.

E2. Pre-trial loss of earnings

30.  As explained in Section D3 above, after the accident, Mr Ng was granted sick leave intermittently from 12 July 2017 to 11 October 2020 (ie 39 months). Thereafter, he has not returned to any work. He said he is not yet recovered.

31.  The Assessment Board accepted sick leave intermittently from 12 July 2017 to 23 October 2019 (829 days).

32.  Nonetheless, the two plastic surgery specialists criticised the plaintiff of visiting different government outpatient clinics to see different doctors with complaints of minor ailments like itching and aching discomforts in the ankles, causing him to have on and off sick leave of over 3 years.  They both agreed that the granted sick leave period is excessive and the reasonable sick leave should be up to 27 September 2019, that is, 26 months.

33.  In Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited [2008] 5 HKLRD 210, Le Pichon, JA of the Court of Appeal stated that:-

“Since the plaintiff’s pre-trial loss of earnings is ascertained by reference to the period during which the plaintiff was prevented by the injuries sustained from returning to work, what has to be ascertained and identified is the length of that period. In my view, that is an exercise that would not require evidence to suggest or imply that those who had granted sick leave to the plaintiff did so improperly. Logically, if the finding is that the plaintiff could have gone back to work after three months, that is the period that is relevant to the assessment and award of pre-trial loss of earnings and no other. Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court. As Rogers VP observed in Choy Wai Chung v Chun Wo Construction & Engineering Company Ltd, unreported, CACV 172/2004, 15 July 2005 at § 9, the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff. ”

34.  In Mr Ho’s opening submissions, the pre-trial loss of earning & MPF is claimed as HK$18,200 x 105% x 26 months = HK$496,860.  There is no challenge to that sum.  I will adopt the same accordingly.  

E3. Post-trial loss of earnings

35.  In Mr Ho’s opening submissions, there is no claim for post-trial or future loss of earnings. I therefore will not make any award under those heads.

E4. Loss of earning capacity

36.  Loss of earning capacity is claimed at 6 months’ earnings, HK$18,200 x 6, that is, HK$109,200.  There is no serious challenge to that sum and I will adopt the same accordingly.

E5. Special damages

37.  Special or incurred expenses is claimed at the total sum of $42,500. There is no challenge to that sum and I will adopt the same accordingly.

E6. Future medical expenses

38.  The plastic surgery specialists recommended the plaintiff to use skin moisturiser for 3 years. The costs are estimated at $6,000. Future medical expenses are claimed at $10,000. There is no challenge to that sum and I will adopt the same accordingly.

E7. Summary

39.  Followingtheanalysis above,thevariousheadsofawardsare as follows:-

PSLA	HK$500,000
Pre-trialloss of earnings	HK$496,860
Post-trial lossofearnings	-
Loss ofearningcapacity	HK$109,200
Special damages	HK$42,500
Futureexpenses	HK$10,000
Total:	HK$1,158,560

40.  Mr Ng is also entitled to interest as follows:-

(1)     In relation to PSLA (HK$500,000), the interest should be at 2% pa from the date of service of the Writ (15 June 2020) to the date of judgment;

(2)     In relation to Pre-trial loss of earning (HK$496,860) and special damages (HK$42,500), the interest should be at half of judgment rate from the date of the accident to the date of judgment;

(3)     There should also be interest at judgment rate on the total sum of HK$1,158,560 from the date of judgment until payment.

F. COSTS

41.  I also make a costs order nisi as follows:-

(1)     Mr Lee do pay Mr Ng the costs of DCEC 1593/2018 and DCPI 1819/2020 (including all costs reserved, if any) to be taxed if not agreed with certificate for counsel;

(2)     There will be no order of costs between Mr Ng and the Board;

(3)     Mr Ng’s own costs to be taxed in accordance with the Legal Aid Regulations.

42.  It remains for me to thank Mr Ho and Mr Yip for their assistance.