TAM YUEN HOI v. 陳牧成 AND OTHERS

DCEC1011/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1011 OF 2000

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J U D G M E N T

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1. This is my judgment in the District Court Employees Compensation case 1011/2000. The applicant applies for compensation under sections 9, 10, 10A of the Employees Compensation Ordinance, Chapter 282.

2. In the applicant's claim against the 2nd defendant, judgment had been entered under a consent application on 13 February 2004, and the 3rd respondent made a payment into the court in December 2003 which the applicant accepted. The 1st respondent alone denies liability at today's hearing and is contesting the claim while the 3rd respondent now asks for indemnity from the 1st respondent under third-party notice.

3. The applicant lost his claim for Common Law damages in the High Court. It was heard on 7 to 11 July 2003 before Deputy High Court Judge To who delivered judgment on 1 August 2003, dismissing the applicant's Common Law claim against each and every respondent. He made thorough findings of facts in his judgment which the applicant asks this court to adopt.

4. In my earlier ruling, I agree with both counsel for the applicant and the 3rd respondent that the parties had an understanding before the end of last year, at an early stage, that the issue of liability should be tried in the High Court and that meanwhile the ECC action in the District Court should be pending the decision of the High Court. This was as early as 2002. As a result, at that stage, all parties had agreed on the procedure so set down. There was no indication expressed then to do otherwise.

5. The first indication that the issue of liability would be opened up as matters as to facts were raised on 24 February 2004, two days before the trial when the 1st respondent filed a witness statement as to fact for the first time, followed by an application to call oral evidence at the trial.

6. I refused the 1st respondent's application earlier to call evidence for no sufficient reasons for delay had been given for the eleventh-hour application by the 1st respondent. On the aforesaid background and on the basis of the parties' agreement to adopt Deputy High Court Judge To's findings of facts on liability, on the employment of the applicant by the 1st respondent and on the nature of the accident, I adopt the findings that the applicant was an employee of the 1st respondent and the 3rd respondent was the main contractor.

7. The applicant was injured in the course of employment while moving a wooden work table in the Regal Airport Hotel where he was working. He slipped and fell and injured his back. The 1st respondent claimed he was a fellow worker of the applicant and he had acted as a 'snakehead' employed by the 2nd respondent.

8. This claim was rejected by Judge To in his judgment. The learned judge found his claim to be "utterly incredible". He was found to be the applicant's employer and a subcontractor of the 2nd respondent who in turn had subcontracted the work from the 3rd respondent. The learned judge found the accident did occur for the applicant was found by several parties afterwards to be sitting on the floor. He further found the applicant must have slipped and fell on the staircase between the first floor and the ground floor on the day of the accident on 4 December 1998 at the Regal Airport Hotel. Further, the applicant was not found to have contributed to the accident.

9. Consequently, as the applicant was found by the learned judge to have slipped and fell at the time of work, he suffered injuries by accident arising out of and in the course of accident under s.5 of the Employees Compensation Ordinance, Chapter 282. For this reason, his employer should be liable to compensate him under the ordinance. Sections 3 and 24(1) of the ordinance also make all contractors liable from the main contractor downwards.

10. It follows on the findings of the learned judge all defendants then in the High Court action, who are the respondents in this action, are liable in this action to compensate the applicant. There being no other evidence before me, the conclusion is that the 1st respondent should be liable to compensate the applicant as were the 2nd and 3rd respondents under the ordinance.

Quantum

11. Section 9, compensation for permanent partial incapacity - The Employees Compensation Ordinary Assessment Board Certificate of 21 September 2000 assessed the applicant's loss of earning capacity permanently caused by the injury to be 3 %. As there is no appeal against this certificate, I refer to the case of Ng Ming-cheung v Mass Transit Railway Corporation, [1997] HKLRD 12 31, decision by the Court of Appeal in the judgment of Le Pichon J agreeing with Hunter J, Justice of Appeal as he then was, who observed in the Chan Kit case that the legislative intent was the assessment was final unless appealed within a limited period of time and that the legislation intended a finality of the finding of the assessment board.

12. Under the circumstances, I accept the loss of earning capacity permanently caused by the injury suffered by the applicant to be 3%. Consequently, under section 9, the damages should be the $20,800 monthly earnings multiplied by 96 multiplied by 3% and it comes to $59,904.

13. Section 10: the certificate further certified sick leave to be between 4 December 1998 to 17 March 2000, a total of 470 days. Under section 10 therefore, the calculation is $(20,800 x 12 ÷ 365) x 4/5 x 470. It comes to $257,122.19.

14. Under 10A, medical expenses: a total of $5,072 is allowed.

15. Interests: Mr Chang asked that the interest should be allowed under sections 9 and 10 at half judgment rate from the day of accident to the day of judgment. As far as the interest is concerned, it depends on the circumstances and it depends on the time that these damages were incurred. Judges have allowed a variation between 2% to half judgment rate and a variation of whether it should be dated from the date of the writ, the date of judgment or the date of accident.

16. I take into account the date of the accident was in December 1998 whereas the date of writ was in June 2000. I am convinced in this case where the injury and the partial incapacity should be from the date of accident. I will therefore allow interest at the rate of 2% from the date of accident to the date of judgment and thereafter at full judgment rate until full payment.

17. Costs: costs should follow the event and the applicant should get his costs, and as far as the 3rd respondent is concerned, the 3rd respondent has been sensible and made a payment into court and therefore the 3rd respondent should not be responsible for the applicant's costs, from date of payment-in. As far as the 3rd respondent's own costs before the payment-in date and as far as the third party's proceedings are concerned, I agree that the 1st respondent should indemnify the 3rd respondent, and therefore the costs of the 3rd respondent before payment-in should be borne by the 1st respondent.

18. As far as the applicant's cost is concerned, it should be borne by the 1st respondent and to be taxed if not agreed with certificate for counsel, and I also grant to the 3rd respondent counsel's certificate. As far as the applicant's own cost is concerned, it should be taxed in accordance with legal aid regulations.

(Discussion re order in terms and interests)

19. According to the summary of quantum that Mr Chang prepared, I would allow the amount of compensation under section 9 of $59,904; under section 10, temporary incapacity $257,122.19; section 10A, medical expenses $5,072. Interest, I will leave it to Mr Chang to calculate. He informs me it is $66,323.62 but it is at 4% and my allowance is at 2%, so it would be half of that, i.e. $33,161.81. The total should be $355,260.00. After deduction of 3rd respondent's payment into court in the amount of $230,905.56, 1st respondent has to pay to applicant the balance of $124.354.44 whereas the 1st respondent has to indemnify and to pay the 3rd respondent $230,905.56.

(Discussion re order in terms)

20. Order in terms as set out in the draft order.