NASEEM ABBAS v. RISING AERIAL PLATFORM CO LTD AND OTHERS

DCEC 1899/2019 & DCEC 1900/2019
(Heard Together)

[2021] HKDC 387

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1899 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1900 OF 2019

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IN THE MATTER OF AN APPLICATION BETWEEN

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ASSESSMENT OF COMPENSATION

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INTRODUCTION

1.  Mr Naseem-Abbas and Mr Mahmood Ansar are the Applicants in the present two applications ie DCEC 1899/2019 and DCEC 1900/2019 (for ease of reference, they will be respectively referred to as the “1^st applicant” and the “2^nd applicant”). Both of them are claiming compensation under sections 9, 10 and 10A of the Employees’ Compensation Ordinance Cap 282 (the “ECO”) against Rising Aerial Platform Company Limited and Sunrise Construction Engineering Limited (ie respectively, the “1^st respondent” and “2^nd respondent” in both applications) in respect of injuries arising from an accident which occurred on 11 June 2019 (the “Accident”).

2.  At the material time, both applicants were scaffolders of the 1^st respondent.  The 1^st respondent was a sub-contractor of the 2^nd respondent.  On 11 June 2019, both applicants were instructed by the 1^st and/or 2^nd respondents to dismantle a scaffold at a construction site at Tsuen Kwan O Telephone Exchange Building.  The scaffold collapsed and fell down, and the applicants sustained injuries.

3.  By an order made by HH Judge Levy dated 11 September 2020, interlocutory judgment on liability was entered against the 1^st and 2^nd respondents with compensation to be assessed.

4.  Falcon Insurance Company (Hong Kong) Limited, the insurer of the 1^st respondent, was joined in the two applications as the 3^rd respondent in both applications (the “3^rd respondent”).

5.  By another order made by HH Judge Levy dated 13 November 2020, it was ordered that the two applications be tried together.  The present trial concerns the amount that the applicants are entitled to claim from the 1^st and 2^nd respondents only.

THE PARTIES’ CASE AND ISSUE(S) FOR DETERMINATION

6.  Pursuant to HH Judge Levy’s order dated 11 September 2020, the Single Joint Medical Report prepared by Dr Wong Chin Hong dated 26 August 2020 (in respect of the examination of the 1^st applicant) and 20 August 2020 (in respect of the examination of the 2^nd applicant) were adduced without the need for calling Dr Wong.

7.  According to the Single Joint Medical Report in respect of the examination of the 1^st applicant:-

(1) The 1^st applicant’s total impairment due to the Accident was assessed at 5% and his loss of earning capacity was also assessed at about 5%;

(2) Sick leave from 11 June 2019 to 15 April 2020 is justifiable and adequate.

8.  According to the Single Joint Medical Report in respect of the examination of the 2^nd applicant:-

(1) The 2^nd applicant’s total impairment due to the Accident was assessed at 5% and his loss of earning capacity was also assessed at about 5%;

(2) Sick leave from 11 June 2019 to 8 October 2020 is acceptable and adequate.

9.  On 30 September 2020, the Employees’ Compensation (Ordinary Assessment) Board issued the Form 7 Certificate of Assessment and assessed:-

(1) The 1^st applicant’s loss of earning capacity permanently caused by the injury to be 2%;

(2) The 1^st applicant’s period of absence from duty necessary as a result of the injury from 11 June 2019 to 15 April 2020.

10.  On 3 February 2021, the Employees’ Compensation (Ordinary Assessment) Board also issued the Form 7 Certificate of Assessment and assessed:-

(1) The 2^nd applicant’s loss of earning capacity permanently caused by the injury to be 1%;

(2) The 2^nd applicant’s period of absence from duty necessary as a result of the injury from 11 June 2019 to 8 October 2020.

11.  The 1^st applicant’s case is that he was first employed by the 1^st respondent on 14 February 2019 and his average earnings per month for the purpose of section 11 of the ECO was HK$27,148.20.

12.  The 2^nd applicant’s case is that he was first employed by the 1^st respondent in or around July 2017 and his earnings for the month immediately prior to the Accident was HK$37,950.

13.  The 1^st and 2^nd applicants’ solicitors, Mr Pickavant, confirmed receipt of HK$9055 and HK$7,301 (for the 1^st and 2^nd applicants respectively) from the 1^st respondent being medical expenses.  The applicants therefore do not claim any further sum under section 10A of the ECO.

14.  None of the respondents disputes the applicants’ monthly earnings and their sick leave periods.

15.  The 1^st and 3^rd respondents also do not dispute that Dr Wong’s assessments set out above should be adopted.

16.  In this regard, both the 1^st and 2^nd applicants have filed a Notice of Appeal dated 23 February 2021 against the Form 7 Certificate of Assessment dated 30 September 2020 and 3 February 2021.

17.  The 2^nd respondent however contends that the assessment of the applicants’ loss of earning capacity as assessed by the Employees’ Compensation (Ordinary Assessment) Board in the Form 7 should be adopted.

18.  The 2^nd respondent further seeks an indemnity under section 24(2) of the ECO against the 1^st respondent in respect of (1) the compensation and any costs which the 1^st and 2^nd applicants and the 3^rd respondent may recover against the 2^nd respondent; and (2) the 2^nd respondent’s own costs in defending the applications.  In this regard, the 2^nd respondent has issued a notice of indemnity dated 5 November 2020 in the present two applications and Mr Lim acting for the 1^st respondent confirmed that the 1^st respondent does not contest the same.

19.  For the purpose of assessing the amount of compensation payable, the only live issue which requires my determination is whether I should allow the 1^st and 2^nd applicants’ appeal against the percentage of their loss of earning capacity in the Form 7 and adopt the 5% loss of earning capacity assessed by Dr Wong as the basis of calculating the compensation.

THE EVIDENCE

20.  Only the 1^st and 2^nd applicants as well as Mr Chan On (ie the 2^nd respondent’s director) were called to give evidence.

21.  For the purpose of assessing the compensation payable to the applicants in these proceedings, their evidence was not challenged by way of cross-examination and I have accepted the same.

22.  The 1^st respondent filed a witness statement of Mr Wong Yuk Chi in both applications.  However as Mr Wong did not give evidence at the trial, I have disregarded the contents of his witness statement.

QUANTUM OF COMPENSATION

(1) Appeal against the certificate of assessment

23.  On behalf of the Applicants, Mr Pickavant relies on Liu Kam Chow v Wong Wah Sheung trading as Wah Kee Decoration Co[1] and submits that expert opinion on percentage of loss of earning capacity should usually be accepted by a court in employees’ compensation proceedings.  Hence, Mr Pickavant urges this court to accept Dr Wong’s opinion or assessment on the percentage of loss of earning capacity instead of the assessment made by the Employees’ Compensation (Ordinary Assessment) Board.

24.  On the other hand, Mr Chung, counsel for the 2^nd respondent relies on Kan Wai Yip v Everbest Port Services[2] and contends that the loss of earning capacity is a combination of various factors and the court should not just rely on the medical evidence in coming to the assessment of the loss of earning capacity.  He further contends that the burden is on the applicants.

25.  There is no dispute that the court is entitled to take into account of all relevant evidence including the employees’ age, education and background, his degree of difficulty in finding placement in the labour market and a comparison of the earnings that they are capable of with impairment and the earnings they would have been able to make but for his injuries.  It is for the judge hearing the case as arbiter of fact to evaluate such factual evidence as well as the medical evidence and then come to his assessment of the loss of earning capacity.

26.  Having taken into account such evidence including the applicants’ evidence that they cannot return to their pre-accident jobs at construction sites as well as the medical evidence available, I would allow both applicants’ appeal.  I accept Dr Wong’s opinion and assess each of the applicants’ loss of earning capacity at 5%. In particular:-

(1) I consider that Dr Wong had been able to devote more time and focused attention to the assessment of the applicants’ condition.  The Single Joint Medical Reports also provide the background details against which he made his assessment: Or Yam Yeung v Hung Sai Sze trading as明港工程[3].

(2) The unchallenged evidence is that due to the interruptions caused by the covid-19 pandemic, the assessment made by Employees’ Compensation (Ordinary Assessment) Board was based on paper examination only.

(3) Dr Wong was the expert jointly appointed by the applicants and the 3^rd respondents.  Leave to adduce the Single Joint Medical Reports was specifically granted by HH Judge Levy on 11 September 2020.  By then, the 1^st and 2^nd respondents had already indicated that they would not adduce any medical expert evidence.  In other words, it was always open for the 2^nd respondent to challenge the Single Joint Medical Reports but it had chosen not to do so.

27.  The period of absence of duty necessary as a result of the injury for both applicants is left undisturbed.

(2) Section 9 compensation

(i) The 1^st applicant

28.  The 1^st applicant was 41 years old at the time of the Accident.  As mentioned above, none of the respondents disputes his monthly earnings and the sick leave period. 

29.  The 1^st applicant is thus entitled to compensation under section 9 in the amount of HK$97,733.52 ie HK$27,148.20 x 72 months x 5%.

(ii) The 2^nd applicant

30.  The 2^nd applicant was 32 years old at the time of the Accident.  Again, none of the respondents disputes his monthly earnings and the sick leave period.

31.  Since his monthly earnings exceeded the specific amount of compensation stated in the Sixth Schedule at the time of the Accident (ie HK$30,530), the statutory maximum should be adopted.

32.  The 2^nd applicant is thus entitled to compensation under section 9 in the amount of HK$146,544 ie HK$30,530 x 96 months x 5%.

(3) Section 10 compensation

(i) The 1^st applicant

33.  The 1^st applicant is entitled to sick leave for 310 days but he was also paid periodical payments of HK$186,453.50.

34.  In the circumstances, he is entitled to compensation under section 10 in the amount of HK$37,971.62 ie HK$27,148.20 x 310/30 x 4/5 - HK$186,453.50.

(ii) The 2^nd applicant

35.  The 2^nd applicant is entitled to sick leave for 486 days but he was also paid periodical payments of HK$337,680.

36.  In the circumstances, he is entitled to compensation under section 10 in the amount of HK$154,152 ie HK$37,950 x 486/30 x 4/5 -HK$337,680.

(4) Summary on quantum

37.  The 1^st applicant is entitled to compensation summarised as follows:-

Section 9 Compensation:	HK$97,733.52
Section 10 Compensation:	HK$37,971.62
Section 10A Compensation:	HK$0.00
Total:	HK$135,705.14

38.  The 2^nd applicant is entitled to compensation summarised as follows:-

Section 9 Compensation:	HK$146,544.00
Section 10 Compensation:	HK$154,152.00
Section 10A Compensation:	HK$0.00
Total:	HK$300,696.00

INDEMNIFICATION

39.  Section 24(2) of the ECO provides that in the event that a principal contractor is liable to pay compensation to an injured employee, it shall be entitled to be indemnified by “any person who would have been liable to pay compensation to the employee”.  The Court of Appeal in Mak Wing Fai v Chevlier (HK) Ltd & Anor[4] establishes that a principal contractor’s entitlement to an indemnity includes not only compensation that he pays to an applicant but also his costs.

40.  As mentioned, the 1^st respondent does not contest that the 2^nd respondent as the principal contractor is entitled to such an indemnity.

41.  In the circumstances, I am satisfied that the 2^nd respondent is entitled to be indemnified by the 1^st respondent for (1) the compensation payable to both applicants and any costs which the 1^st and 2^nd applicants and the 3^rd respondent may recover against the 2^nd respondent and (2) the 2^nd respondent’s own costs in defending the applications.

CONCLUSION

42.  For the above reasons, I make the following orders:-

(1) The 1^st respondent is liable to pay compensation in respect of the injury of the 1^st applicant and the 2^nd applicant under section 5 of the ECO;

(2) The 2^nd respondent is liable to pay compensation in respect of the injury of the 1^st applicant and the 2^nd applicant under section 24 of the ECO;

(3) The 1^st and 2^nd respondents shall pay compensation to (a) the 1^st applicant in the sum of HK$135,705.14 and (b) the 2^nd applicant in the sum of HK$300,696 with interest at half the judgment rate from the date of the Accident ie 11 June 2019 to the date of judgment and thereafter at the judgment rate until full payment.

43.  There is no reason why costs should not follow the event. I make a costs order nisi that:-

(1) The 1^st and 2^nd respondents do pay the 1^st and 2^nd applicants’ costs of the two proceedings, including all costs reserved if any;

(2) There be no order as to costs as between the 1^st and 2^nd applicants and the 3^rd respondent;

(3) The 1^st and 2^nd applicants’ own costs be taxed in accordance with Legal Aid regulations.

44.  The costs order nisi shall become absolute in the absence of any application to vary the same within 14 days of the handing down of this Decision.

45.  The 2^nd respondent is entitled, pursuant to section 24(2) of the ECO, to be indemnified by the 1^st respondent for (1) the compensation payable to both applicants and any costs which the 1^st and 2^nd applicants and the 3^rd respondent may recover against the 2^nd respondent and (2) the 2^nd respondent’s own costs in defending the applications.

46.  It remains for me to thank all legal representatives for their assistance.

DCEC 1899/2019:

DCEC 1900/2019: