CHAN RICKY v. HUANG WEIHUANG formerly t/a EXTENSION TRADING CO

DCEC 1883/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1883 OF 2012

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J U D G M E N T

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A. 　Background

1.  These proceedings are instituted pursuant to the Employees’ Compensation Ordinance (Cap.282) (All references to statutory provisions in this judgment, unless expressly stated, are references to this Ordinance) in respect of an accident that took place on 31 December 2011 in the course of the applicant’s employment as a wholesales assistant with the respondent. The applicant sustained injuries when he was assigned to move heavy goods to a van.  The applicant suffered pain to his neck, left shoulder and left hand after he had finished moving the goods. 

2.  The respondent was previously represented by Messrs Damien Shea & Co.  The respondent filed on 11 November 2014 a notice to act in person, and since that day did not participate in these proceedings.   Pursuant to a notice of admission of liability filed by the respondent’s former solicitors on 18 February 2014, and the leave granted to the applicant to enter judgment on liability on 10 November 2015, the applicant obtained an interlocutory judgment on 26 February 2016 with compensation to be assessed. 

3.  This is a trial on the assessment of compensation. Having perused an affirmation of service filed on 20 September 2016, I am satisfied that the respondent was properly served with my order dated 6 June 2016 that contains the date of trial and the amended application in these proceedings by ordinary post on the respondent’s address set out in the notice to act in person and also by advertisement. The respondent was absent and I proceeded with the trial in the absence of the respondent.

4.  At the trial, the applicant was represented by Mr Ho of Messrs Huen & Partners. In his oral testimony, the applicant confirmed the contents of his witness statement filed on 10 July 2015.  I find him a truthful witness, and am inclined to accept his evidence.

B. 　The compensation claimed

5.  The applicant claims compensation under s9 (for permanent partial incapacity), s10 (for temporary incapacity or sick leave) and s10A (for payment of medical expenses).

6.  In assessing the compensation under ss 9 and 10, I find it proved that the applicant’s monthly earnings were in the sum of $8,500, which amount is supported by the same amount of wages the respondent stated in his completed Form 2, the notice of the accident.

7.  As for the duration of sick leave and the percentage for the applicant’s permanent loss of earning capacity, the Ordinary Assessment Board, on review by the applicant, by way of Form 9, respectively assessed the sick leave to be 49 days and the loss of earning capacity 6 percent.  Although the applicant has filed a notice of appeal against the Form 9 assessment, and had been granted leave to adduce a redacted joint report compiled by a Dr Chak, the applicant’s expert, and a Dr Wong, the expert nominated by a non-party, the Employees Compensation Assistance Fund Board, Mr Ho at the trial decided not to rely on the redacted joint report. This is because the opinion of the applicant’s expert on the duration of the sick leave and the percentage loss of the loss of earning capacity was the same as the Form 9 assessment.

8.  In the circumstances, in assessing the compensation under ss9 and 10, I will adopt the Form 9 assessment, namely 49 days of sick leave and 6 percent for the loss of earning capacity.

B.1 　Section 9 compensation

9.  The applicant was 47 at the date of the accident. The appropriate age multiplier (as fixed by s7) is 72.  I therefore award the applicant $36,720 (i.e. $8,500 x 72 x 6%) as compensation under s9.

B.2 　Section 10 compensation

10.  I award the applicant $11,106.67 (i.e. $8,500 x 49/30 x 4/5) as compensation under s10.

B.3 　Section 10A compensation

11.  Mr Ho has very helpfully set out in tabular form all the medical expenses, which are calculated to be in the total sum of $1,160. I am satisfied that they are proved, and I award this amount to the applicant.

C.　Order

12.  I grant the following orders:

(1) That judgment be entered against the respondent in favour of the applicant for the following sums:

(a) $36,720  under s9;

(b) $11,106.67 under s10; and

(c) $1,160 under s10A.

(2) That there shall be interest on these sums at half judgment rate from 31 December 2011 to the date of judgment, and thereafter at judgment rate until full payment.

D.　COSTS

13.  The applicant should be granted costs of these proceedings. Although these costs would normally include the reasonable costs of the appeal against the Form 9 (or Form 7 as the case may be) assessment, in the present case, Mr Ho had to concede that the applicant is to be regarded as having failed in the appeal against the assessment of the medical board for the reason that his appointed medical expert has given the same assessment as the Form 9 assessment. He has therefore agreed not to claim any costs of the appeal, including the costs of the adducing of the medical expert evidence.

14.  Mr Ho’s concession, in my view, has been correctly made.  Since the applicant has failed to better the Form 9 assessment, his appeal should be regarded as unsuccessful and he should not be awarded costs.  This case should help alert practitioners to the costs implications of an appeal against an assessment by the medical board.  They should carefully consider the merits of the appeal before filing an appeal so as to avoid an adverse costs consequence in the event of the court adopting the assessment of the medical board either as a result of an unfavourable medical expert opinion (as in this case) or the rejection by the court of the opinion of the applicant’s medical expert.

15.  In the circumstances, I further grant the following orders on costs:

(1) That there should be no order as to costs in relation to the costs of and incidental to the applicant’s appeal against the Form 9 assessment, which costs should also include the costs of the redacted medical expert report.

(2) That the respondent do pay the applicant the costs of these proceedings (except those stated in para 15 (1) above), to be taxed if not agreed.

(3) The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

16.  I further direct the applicant’s solicitors to serve on the respondent this written judgment and the final judgment by ordinary post at his Kwun Tong address as stated in my order dated 20 June 2016.