CHEUNG WAN LUN v. HOP HING CONSTRUCTION & ENGINEERING (H.K.) CO AND ANOTHER

LA/ECC/16440/2007 (CB36)
DCEC 560/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 560 OF 2009

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JUDGMENT

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THE APPLICATION

1.  This is a claim for compensation brought by the Applicant under sections 9, 10 and 10A of the Employees’ Compensation Ordinance, Cap. 282 (the “ECO”) relating to an accident suffered by the Applicant on 7 June 2007.  At the hearing, the Applicant further claimed that he is entitled under section 10(5) of the ECO to seek periodical payments for a total period of 36 months.

2.  On 7 June 2007 at about 4:40 p.m., whilst working at a construction site at H200519 of the shopping arcade at the Kowloon Station (i.e. second floor level of the Kowloon Station Retail Centre of Union Square KIL 11080 - Site E, Kowloon) (“the Site”), the Applicant was instructed to install 4 I-beams at the ceiling.  In order to do so, the Applicant had to climb up a scaffold which was about 8 feet high and stood at the gap to do the installation.  At the material time, the Applicant whilst climbing up the scaffold hit his head against an aluminized corner (“天花角” in Chinese) thereby losing his balance and fell to the ground.  As a result, the Applicant suffered bodily injuries.

LIABILITY

3.  There is no dispute between the parties that the Applicant suffered the said accident while in the course of his employment with the 1^st Respondent. Further, there is no dispute that the 2^nd Respondent was the principal contractor of the Site. 

4.  Accordingly, the 1^st and 2^nd Respondents conceded their liability to pay employees’ compensation to the Applicant. 

QUANTUM

5.  There is no dispute between the parties on the following matters:-

(1)  The Applicant was born on 19 October 1950, he was 57 years old at the time of the accident;

(2)  The daily wage of the Applicant at the material time was $670;

(3)  It was the first day of work of the Applicant with the 1^st Respondent when the accident happened; and

(4)  The appropriate multiplier under section 7 of the ECO for the purpose of section 9 calculation is 48 months.

SECTION 9

6.  The dispute between the parties on the claim under section 9 of the ECO is twofold:-

(1)  The amount of monthly earnings of the Applicant; and

(2)  The percentage of loss of earning capacity suffered by the Applicant as a result of the injuries he sustained in the accident.

Monthly Earnings

7.  There is no dispute between the parties that the Applicant had only worked for the 1^st Respondent for one day when the accident happened.  Both limbs of section 11(1) of the ECO assume that the employee (the Applicant in this case) had worked for the employer (the 1^st Respondent here) for at least a month prior to the accident.  Accordingly, the parties agreed that section 11(2) is the correct section to apply in this case for the calculation of the compensation under sections 9 and 10 of the ECO.

8.  Section 11(2) of the ECO provides as follows:-

“Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district.”

The correct interpretation of sections 11(1) and 11(2) of the ECO have been decided and discussed by the Court of Appeal in Lai Cheung Kwan v Lo King Sum [2008] 3 HKLRD 643 and Or Wing Ming v Ho Bing Chi trading as Tin Kei Decoration Engineering Co., CACV 319/2007 (Judgment dated 13 June 2008).

9.  These decisions have been summarized and followed in the case of Leung Wai Pong v Tang Hon Kong trading as Kin Wah Decoration Company, DCEC 237/2007 (Judgment of H.H. Judge Lok dated 19 November 2008) as follows:-

“(1) The methods of assessing the monthly earnings under ss. 11(1)(a) and 11(1)(b) are only applicable if the injured worker worked for the same employer for the relevant periods under the said sub-sections. In other words, if the worker injured himself on the first day of his work, his income earned by working for the other employers before the accident is not directly relevant in assessing the worker’s income at the time of the accident (per Cheung, JA in Lai Cheung Kwan, paras. 6-9 and Yuen JA in Or Wing Ming, para. 24);

(2) The object of s. 11(5) is to provide a minimum protection to an employee in the case that his monthly income is less than the amount prescribed in the statute, and the court should not therefore adopt this figure as the monthly income even if there is not much evidence about the earnings of other comparable workers for assessing the employee’s income under s. 11(2) (per Yeung JA in Lai Cheung Kwan, paras. 35-37, per Yuen JA in Or Wing Ming, para. 26);

(3) If the injured worker only worked for a short period of time and there is no practical way to compute the rate of remuneration, the court has to adopt the methods prescribed in s. 11(2) to ascertain his monthly earnings, and it is the duty of the court to make such factual finding based on whatever evidence before the court (per Yeung JA in Lai Cheung Kwan, para. 37); and

(4) In order to assist the court in assessing the monthly earnings of short-term employees under s. 11(2), practitioners should ensure that there is sufficient evidence before the court for the purpose of such assessment exercise (per Yuen JA in Or Wing Ming, para 31).” (emphasis supplied)

10.  In the “Form 2” notice filed by the 2^nd Respondent with the Labour Department dated 15 June 2007, the 2^nd Respondent stated that since the Applicant had not worked for the 1^st Respondent for a month when the accident happened, the 2^nd Respondent could only adopt the wages of comparable workers as reference.  In this regard, a figure of $16,415 was stated therein as the monthly earnings of the Applicant.  This was calculated on the basis of $670/day x 24.5 days, based on the information it obtained from the 1^st Respondent on the wages of comparable workers.  At this trial, the 1^st Respondent produced copy of the wage records of 4 comparable workers employed by it for the period from June 2006 to June 2007 in support of its case, details of which are as follows:-

Name	Daily wages	Average No. of days of work/month
Ng Chi Wai	$650	20.88 days
Tse Kwok Ming	$650	15.67 days
Ng Ka Min	$650	20.16 days
Law Kam Tai	$650	24.67days

11.  The authenticity of these wage records is not disputed by the Applicant.

12.  In his evidence, the Applicant confirmed that Mr. Ng Ka Min was also an iron worker, having similar work as his, and was responsible for iron work at construction sites which the Applicant had also worked at on previous occasions.  In fact, Mr. Ng Ka Min was the ganger of the group of iron workers at the Site at the material time.

13.  One can see from the wage records produced that Mr. Ng Ka Min was paid a daily wage of $650 and he had worked on average 20.16 days per month.  Thus, to allow the Applicant to claim a sum of $16,415 as his monthly earnings actually allows him a higher pay than the ganger at the material time.

14.  In the circumstances, I would adopt the figure of $16,415 as the monthly earnings of the Applicant as stated in the Form 2 filed by the 2^nd Respondent. 

Loss of earning capacity

15.  The next issue is the percentage of loss of earning capacity suffered by the Applicant as a result of the injuries he sustained in the accident.

16.  It is common ground among the parties’ experts that the Applicant had exaggerated his symptoms and disabilities.  His various complaints relating to both his physical and mental conditions must be considered in light of the objective clinical findings made by various medical officers on different occasions.

Medical findings by various government medical officers

17.  Shortly after the accident, the Applicant attended the Accident and Emergency Department of Queen Elizabeth Hospital at about 6:30 p.m. on 7 June 2007.  He was admitted to the Observation Ward for observation and management and he was discharged on 8 June 2007.  Examination revealed the following:-

(1)  Left loin tenderness;

(2)  Right facial laceration;

(3)  Computer tomography of brain showed no intracranial injury;

(4)  X-ray of chest and head showed no fracture;

(5)  The clinic diagnosis was soft tissue injury.

18.  According to Dr. Lui Yee Chiu, Victor, medical officer of the Accident and Emergency Department, in his report dated 8 April 2008, it was unlikely that the Applicant would suffer permanent disability as a result of the injuries.

19.  Thereafter, the Applicant attended various government out- patient clinics, including the Tai Po Jockey Club Clinic and the Accident and Emergency Department of the Alice Ho Miu Ling Nethersole Hospital.  Of note is that the clinical findings on all these occasions were unremarkable.

20.  The Applicant was admitted to the Department of Orthopaedics and Traumatology of Alice Ho Miu Ling Nethersole Hospital for his complaint of persistent right upper limb weakness from 30 October 2007 to 8 November 2007. During this period, the Applicant was put on physiotherapy with various radiological examinations and tests conducted. 

21.  Thereafter, the Applicant continued to complain about right upper limb weakness and attended follow-up treatment at the out-patient section of the Department of Orthopaedics and Traumatology.

22.  The MRI scan of the Applicant’s cervical spine and brachial nerves conducted in June 2009 showed no cord compression (i.e. brachial nerves were intact) and mild cervical spondylosis (i.e. sign of degeneration) only.

23.  Meanwhile, the Applicant made new complaints: headache, dizziness, memory impairment, decreased right eye vision, decreased hearing on the right ear. 

The Experts in Orthopaedics - Dr. Arthur Chiang and Dr. Wong Kwok Shing

24.  The Applicant was jointly examined by the experts in Orthopaedics at Dr. Chiang’s clinic on 10 August 2010. 

25.  Both experts noted that the Applicant complained of relatively significant symptoms in the neck, back, and right upper and lower limbs.  The Applicant also demonstrated significantly abnormal physical signs, namely:-

(1)  Walking slowly with small steps and limping;

(2)  Showing significant and diffuse weakness in the right upper and lower limbs; and

(3)  Showing marked limitation in the neck movement and could not make a full grip and moved the right hand sluggishly.

26.  However, both experts shared the view that the objective part of the examination did not reveal much abnormal findings.  Both Dr. Chiang and Dr. Wong shared the view that the Applicant had achieved a satisfactory recovery from the injuries he sustained in the accident and the significant disability described and shown in the examination was “likely due to symptom magnification”. It is also common ground between both experts that the Applicant has a satisfactory capacity for prolonged standing and walking and in performing manual work.

27.  Dr. Chiang, who took into account the possible mild brachial plexus injury, assessed the Applicant to have suffered a 5% loss of earning capacity; while Dr. Wong (who considered that the Applicant did not suffer from any brachial plexus injury) suggested a 2 to 3% loss of earning capacity instead. Both experts agreed that the Applicant should have a satisfactory capacity in resuming his pre-accident job.

The experts in psychiatry – Dr. Law Wun Tong and Dr. Chung See Yuen

28.  The main difference between the experts in psychiatry is on the question of whether or not the Applicant suffered post-concussional disorder as a result of the injuries he sustained in the accident. 

29.  Dr. Chung was of the view that the Applicant did not suffer from post-concussional disorder for the following reasons:-

(1)  There was no mentioning of head injury, headache, impaired memory or other symptoms suggestive of post- concussional disorder in the Accident and Emergency Department of Queen Elizabeth Hospital on the date of accident;

(2)  In the medical report of Dr. Cheung Hard King of the Department of Family Medicine and General Out-patient Clinic dated 18 February 2008, no complaint of head injury, headache or other symptoms suggestive of post-concussional disorder was mentioned;

(3)  Likewise, the Applicant had not complained about headache, head injury or symptoms suggestive of post- concussional disorder in any of his visits made to the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital on 5 September, 12 September, 4 October and 8 October 2007; and

(4)  It was only on 29 October 2007, i.e. more than 4 months after the accident, that the Applicant mentioned for the first time about head injury to Dr. Wong Shun Fat of the Department of Orthopaedics of Alice Ho Miu Ling Nethersole Hospital.

30.  Dr. Chung advised also that post-concussional disorder is an acquired impairment in cognitive functioning accompanied by specific neurobehavioural symptoms that occurred as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion.  Furthermore, the symptoms of head injury or post-concussional disorder are usually at their worst just after head trauma and they usually improved in the ensuing few weeks to few months after the head trauma.  Dr. Chung was of the view that it could not be explained from a medical point of view that the symptoms of post-concussional disorder only started to develop in October 2007, four months after the head injury.  It is also difficult to perceive that the Applicant would fail to reveal the symptoms of post-concussional disorder during the initial medical consultations in the first few months after the accident had he really suffered from the same.

31.  Of note is that Dr. Law did not seek to rebut or contradict the above comments from Dr. Chung.  It appears that Dr. Law relied solely on the Mini-Mental State Examination scores recorded by the attending psychiatrist (23/30) and the occupational therapist (26/30) as indicators of the Applicant’s cognitive functions impairment.

32.  Dr. Law estimated that the Applicant suffered a loss of 3% earning capacity for his post-concussional disorder.  Dr. Chung did not think that the Applicant had suffered any loss of earning capacity for the injuries he sustained in the accident from a psychiatric point of view.  In any event, it is common ground between Dr. Law and Dr. Chung that the Applicant is mentally fit to resume his pre-accident job. 

Conclusion on loss of earning capacity

33.  Taking into account all the medical evidence as a whole and given that it is common ground among all experts that the Applicant retains satisfactory capacity to resume his pre-accident work, I would adopt 4% as the percentage of the loss of earning capacity suffered by the Applicant as a result of the injuries he sustained in the accident.  In adopting the figure of 4%, I find convincing the reasons put forward by Dr. Chung in coming to the conclusion that the Applicant has not suffered from post-concussional disorder.  I have also taken into account the view expressed by Dr. Chiang in paragraph 9 of his joint report that with the wide area of weakness described by the Applicant, the possibility of a mild injury to the brachial plexus could not be ruled out.

Compensation under section 9

34.  The compensation for the Applicant’s permanent partial incapacity pursuant to section 9 of the ECO is therefore $16,415 x 48 x 4% = $31,516.80.

SECTION 10

35.  The dispute between the parties regarding the claim under section 10 of the ECO is on the appropriate duration of sick leave period of the Applicant.

36.  At present, the Applicant is still on sick leave.  In fact, he has been granted sick leave until 4 May 2011. 

37.  The Applicant claims that he is entitled, under section 10(5) of the ECO, to seek periodical payments for a total period of 36 months.  He relies on the deeming provision of section 10(2) of the ECO. 

Section 10(2) of the ECO

38.  Section 10(2) of the ECO provides as follows:-

“For the purposes of this section a period of absence from duty certified to be necessary by a registered medical practitioner, ….. an Ordinary Assessment Board or a Special Assessment Board shall be deemed to be a period of total temporary incapacity irrespective of the outcome of the injury.”

39.  The question as to whether the deeming provision of section 10(2) of the ECO is conclusive or rebuttable has been discussed and considered by different judges on many occasions.

40.  In Siu Fu Yau v Wong Po Kee Ltd, DCEC 654/2003 (Judgment dated 5 October 2006), Deputy District Judge Anthony Chow summarized and discussed in detail the various decisions reached by different judges on the interpretation of section 10(2) of the ECO, in particular, the question as to whether the deeming provision is a rebuttable presumption.  After carefully reviewing these decisions, the learned Deputy Judge came to the view that, bearing in mind the object of the ECO which is to provide a no-fault scheme aimed at providing quick financial relief to employees with certainty, in the absence of fraud, either by the certifying doctor or the employee, the presumption under section 10(2) is irrebuttable.

41.  The decision in Siu Fu Yau was considered and followed by Deputy District Judge Frederick H.F. Chan in the case of Chu Yee Man v Chuen Kee Construction Company Ltd., DCEC 1058/2005 (Judgment dated 23 October 2008).  It was the learned Deputy Judge’s view that the Siu Fu Yau’s case did provide a workable and effective way to allow the court to guard against fraud by unscrupulous employees and bad elements of the medical profession who may be tempted to parade sick leave certificates to claim for sick leave payments.

42.  In the written closing submissions of the 1^st and 2^nd Respondents, counsel for the Respondents, Ms Julia Lau, invited the Court to make a finding that the Applicant had practised fraud in seeking sick leave certificates.  Ms Lau put the Respondents’ case in this way:

“….. did the Applicant really suffer from the kind of injuries (or was incapacitated by the injuries) for the period covered by the relevant sick leave certificates he obtained from various hospitals/medical institutes since the accident?”

43.  Ms Lau invited the Court to infer fraud on the part of the Applicant from the following:-

(1)  None of the experts engaged in this case considered the injuries sustained by the Applicant to be so serious as to warrant a prolonged period of sick leave;

(2)  The way/pattern adopted by the Applicant in seeking sick leave certificates for himself;

(3)  The “sub-optimal” effort made by the Applicant in attending physiotherapy and occupational therapy treatment; and

(4)  The surveillance conducted on the Applicant by Dynamic Investigation Consultant on 10, 12 and 16 August 2010.

44.  Perhaps not surprisingly, counsel for the Applicant, Mr. Victor Gidwani, objected to the Court making a finding of fraud in this case, complaining that fraud has not been pleaded in the Amended Answer of the Respondents filed in these proceedings or indeed foreshadowed in the cross-examination of the Applicant by Ms Lau. 

45.  Mr. Gidwani submitted that by a combination of section 21(1) of the ECO and Order 18, rule 12(1)(a) of the Rules of the District Court (the “RDC”), the Respondents ought to have pleaded particulars of the fraud on which the Respondents rely which the Respondents have failed to do.  Section 21(1) of the ECO provides as follows:-

“Save as is provided in this Ordinance and any rules made thereunder, the District Court shall, upon or in connection with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connection with civil actions in such Court in like manner as if the Court had by the District Court Ordinance (Cap. 336) been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply.” (emphasis supplied)

46.  Ms Lau countered by relying on Order 1, rule 2(2A) of the RDC which provides as follows:-

“Subject to paragraph (2B), these Rules shall not have effect in relation to –

(a) …..;

(b) …..;

(ba) …..;

(c) proceedings –

(i) for the recovery of employees’ compensation; and

(ii) in respect of which rules are made under section 50 of the Employees’ Compensation Ordinance (Cap 282).”

47.  Ms Lau pointed out that the Employees’ Compensation (Rules of Court) Rules, Cap. 282 (the “ECR”) have been made under section 50 of the ECO.  Ms Lau went on to submit that as the ECR made pursuant to section 50 of the ECO contains its own rules relating to “pleadings” in employees’ compensation cases, Order 1, rule 2(2A) of the RDC expressly disapplies the RDC to employees’ compensation claims, in particular Order 18, rule 12(1)(a) of the RDC dealing with the requirement of particulars in pleadings.

48.  It is trite law that in an ordinary civil claim, an allegation of fraud must be pleaded distinctly and with the utmost particularity, and it is not allowable to leave fraud to be inferred from the facts (see: e.g., Hong Kong Civil Procedure 2011 Vol. 1, Practice Note 18/12/16 at page 384).  Indeed, Denning LJ (as he then was) said in Lazarus Estate Ltd. v Beasley [1956] 2 QB 702, at p. 712, that:

“…..No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, …..can be allowed to stand if it has been obtained by fraud. Frauds unravel everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever …..”. (emphasis supplied)

49.  In Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co. Ltd. [1994] 2 HKC 264, at 270D, Bokhary JA (as he then was) reminded practitioners that the specially strict rules regarding the pleading of fraud have nothing to do with technicality, all of them have everything to do with “practical justice”. These specially strict rules have always been of importance.

50.  I do not agree with Ms Lau’s submissions that Order 18, rule 12(1)(a) of the RDC does not apply by reason of Order 1, rule 2(2A) of the RDC.  The interaction between section 21(1) of the ECO and Order 1, rule 2(2A) of the RDC has been considered by the Court of Appeal in Li Kwok Shing and Law Ka Fu [2003] 3 HKLRD 173.  At paragraph 26, Woo JA (as he then was) held that on a proper interpretation, a particular rule of the RDC only has no effect on employees’ compensation claims so long as it conflicts with one or more rules of the ECR made under section 50 of the ECO.  At paragraphs 51 to 55, Ma JA (as he then was) added that the intention behind section 21 of the ECO was to provide as comprehensive a procedural system for employees’ compensation claims as that governing civil claims in the District Court.  Even though the ECR contained a number of provisions that reflected the unique nature of employees’ compensation claims, much of what was applicable in the District Court in ordinary civil actions had also to apply to employees’ compensation proceedings.  Not all, but many of the orders in the RDC applied to employees’ compensation claims to fill in the gaps.

51.  I do not see any conflict between Order 18, rule 12(1)(a) of the RDC (requiring necessary particulars for any allegation of fraud) and any of the rules of the ECR.  Indeed, Rule 18(1) of the ECR permits the request for further particulars of respectively the Notice of Application and the Answer. Order 18, rule 12(1)(a) of the RDC clearly complements Rule 18(1) of the ECR by stating what particulars are required in a case where fraud is pleaded, whether as part of a claim or a defence.

52.  Ms Lau cited the case of Limbu Laxmi Prasad v Dragages (HK) Joint Venture, DCEC 1227/2006 (Judgment of H.H. Judge Lok dated 24 October 2007) as the only case which she could find where fraud on the part of the Applicant was established to rebut the presumption under section 10(2) of the ECO.  In that case, the learned Judge made a finding that the Applicant was malingering and at paragraph 31, the learned Judge had this to say:

“…It is clear that even for the cases which suggest that the deeming provision is irrebuttable, it is subject to an important proviso that there is no fraud involved. As I find that there was malingering on the part of the Applicant and that his complaint is not genuine, the court is entitled to disregard the sick leave certificates issued by Dr. Lo for the purpose of assessing the compensation for temporary incapacity under s. 10.”

53.  I note that in the Limbu case, the applicant acted in person (and the respondent was incidentally represented by Ms Lau).  Without the benefit of legal representation, I am not at all surprised that the applicant there did not take the pleading point on fraud.  In the circumstances, I can derive little assistance from the Limbu case on this issue.

54.  Furthermore, I can see real danger in this case in finding fraud against the Applicant when the allegation of fraud has not been particularized at all.

55.  For those sick leave certificates issued by the medical officers of the Department of Orthopaedics and Traumatology of the Alice Ho Miu Ling Nethersole Hospital, one can see from the medical notes that for an extensive period of time, the sick leave certificates were issued as part of the “Plan of Management” while the Applicant was waiting to be assessed by the medical assessment board.  Indeed, it was expressly stated in the medical report of Dr. Leung Siu Man of the Department of Orthopaedics and Traumatology dated 25 March 2010 that :-

“Work Capacity Evaluation was performed by the Occupational Department of our Hospital on June 6, 2008. His work capacity is not match with heavy job demand as a construction site worker. As his progress is static, no organic pathology is identified and expected to be amenable by orthopaedic intervention. He was referred to the medical assessment board. We planned to extend sick leave till the appointment of the medical assessment board. He was last seen on March 12, 2010 with static progress. However, the appointment of medical assessment board from Labour Department is still not available yet.”

56.  Thus, it seems to be a conscious decision by the doctors to extend sick leave of the Applicant until the appointment of the medical assessment board, notwithstanding that the Applicant’s progress was static, no organic pathology was identified and the doctors did not expect the Applicant’s condition to be amenable by orthopaedic intervention.  This is hardly consistent with a case of fraud on the part of the Applicant. 

57.  At the hearing on 28 March 2011, Ms Lau backtracked from the position earlier set out in her written closing submissions (namely accepting that the presumption under section 10(2) of the ECO is irrebuttable, save for fraud). Instead, Ms Lau sought to urge upon me that the presumption under section 10(2) of the ECO is rebuttable and the presumption is rebutted in the present case by the opinion of the experts, in that none of the experts considered the injuries sustained by the Applicant to have been so serious as to warrant prolonged period of sick leave beyond July 2008 (i.e. 13 months from the accident).

58.  I do not agree with these alternative submissions of Ms Lau.  I respectfully agree with the reasons put forward by Deputy District Judge Anthony Chow and Deputy District Judge Frederick H.F. Chan in respectively the Siu Fu Yau case and the Chu Yee Man case in holding that section 10(2) of the ECO provides an irrebuttable presumption, save for fraud.

59.  I also agree with and respectfully follow the decision of Her Honour Judge C.B. Chan in Ng Kwok Keung v Wing Sum Construction & Engineering Company Limited, DCEC 1367/2003 (Judgment dated 2 April 2004) which came to the same conclusion.  At paragraph 19 of the judgment, the learned Judge had this to say:-

“The words ‘irrespective of the outcome of the injury’ shows that the outcome of the injury should not affect the effect of the deemed period of total temporary incapacity certified by the Ordinary Assessment Board or a Special Assessment Board or a medical practitioner. I agree with Judge Longley in his judgment in Yu Cheung Yim and Lucky Friend Industrial Limited referred to above that:

‘The context of the Employees’ Compensation Ordinance indicates that (in the absence of proof of fraud) the legislature intended it to be a conclusive presumption. The scheme of the Employees’ Compensation Ordinance is to provide (except when circumstances do not allow) a scheme of readily ascertainable compensation which, in the case of periodical payments under section 10, is payable on the same day as wages. This object would be largely frustrated if a sick leave certificate was only to constitute prima facie evidence of the necessity for such sick leave. Furthermore it accords with social justice that an injured workman should be able to take sick leave recommended by his doctor confident in the knowledge that he will be remunerated during that period and that his employer cannot subsequently seek to demonstrate that it was unnecessary.’” (emphasis supplied)

60.   In conclusion on this issue, I hold that the Applicant is entitled to rely on the presumption in section 10(2) of the ECO.  Without the allegation being distinctly pleaded and distinctly proved, I am not prepared to find or infer fraud on the part of the Applicant.  Accordingly, the 36-month period covered by the sick leave certificates is deemed to be a period of total temporary incapacity for the purpose of section 10 of the ECO.

Compensation under section 10

61.  I would allow the periodical payments to be made beyond the initial period of 24 months after the accident pursuant to section 10(5) of the ECO. Accordingly, the compensation for the Applicant’s temporary loss of earning capacity pursuant to section 10 of the ECO is $16,415 x 36 months x 4/5 = $472,752.

SECTION 10A

62.  In the absence of any finding of fraud, I would allow the Applicant’s claim for medical expenses in the total sum of $10,542.

SUMMARY ON QUANTUM

63.  In summary:-

64.  Interest is allowed at half judgment rate on the above sum from the date of the accident (7 June 2007) until this judgment and thereafter at judgment rate until payment in full.

CONCLUSION

65.  Compensation is assessed at the sum of $208,464.80.  The Respondents are to pay such sum together with interest as aforesaid.

66.  I make a costs order nisi that the Respondents do pay to the Applicant the costs of this application (with certificate for counsel), such costs to be taxed if not agreed.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.  The Applicant’s own costs be taxed in accordance with Legal Aid Regulations.