LAW MAN KUI BENNY v. SECURICOR HONG KONG LTD

DCEC 216/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’COMPENSATION CASE NO. 216 OF 2002

--------------------

--------------------

--------------------

Ruling

--------------------

1. The applicant claims compensation under sections 9, 10, 10A and 21(3) of the Employees' Compensation Ordinance for personal injury suffered by him in an accident on 19 May 2000. He avers that he was employed by the respondent as an ATM controller in charge of staff duties and that he suffered the injury in a road accident which happened whilst he was riding the respondent's motor cycle in the course of his employment.

2. The applicant claims to have suffered injuries to his right knee, left shoulder and abdomen. He was examined by the applicant's expert, Dr. Chun Siu Yeung, and the respondent's expert, Dr. Lee Po Chin. Dr. Chun estimates the loss of earning capacity at 7% and Dr. Lee at 3%. Both experts say that the applicant is capable of returning to his pre-accident employment.

3. By a Certificate of Assessment (Form 7) dated 2 August 2001, the Employees' Compensation (Ordinary Assessment) Board certified that a period of absence from duty from 19 May to 7 November 2000 was necessary as a result of the injury and that the applicant suffers a permanent loss of earning capacity of 3%. The applicant was dismissed by the respondent on the expiry of his sick leave in November 2000. I am told that he had no sick leave certificates after 7 November 2000.

4. The applicant now seeks specific discovery of

a. Flow charts, pamphlets, circulars and/or any other documents which show the career path of an employee such as the applicant.

b. Any documents containing particulars pertaining to the following

1. the monetary value of the "medical insurance" referred to in paragraph 6 of the "Terms and Conditions of Service" issued by [the respondent] including but not limited to the following:

a. the amount of premium paid by the respondent to its insurer for taking out this "medical insurance"

b. the extent of coverage provided in this "medical insurance";

c. quotation(s) of premiums supplied by any insurance company (including the respondent's actual insurer) to the respondent for the provision of this "medical insurance".

2. the monetary value of the "Employee Benefit Scheme" referred to in paragraph 21 of the "Terms and Conditions of Service" issued by the respondent including but not limited to the following:

a. documents showing the running costs of this "Employee Benefit Scheme" to the respondent;

b. details of benefits that this "Employee Benefit Scheme" provide to the applicant.

5. In fact paragraph 6 of the "Terms and Conditions of Service" refers, not to medical insurance, but to a free "medical service" which includes consultation and treatment, for all employees who have completed a probation period provided that they attend a company doctor appointed by the company.

6. The applicant says that that the documents relating to career path are relevant for the purpose of calculating the average rate of increase (or decrease) in earnings of other employees for the purpose of section 11(1A) and (1B) of the Ordinance. He says that the documents relating to the medical insurance and employee benefit scheme are relevant for the purpose of calculating earnings for the purpose of sections 9 and 10 of the Ordinance.

7. The respondent says that the applicant's earnings for the month immediately preceding the accident were greater than the maximum figure of $21,000.00 per month provided for by section 7(1)(a) and the Sixth Schedule, which is used for the purposes of calculating section 9 compensation, and therefore any documents relating to earnings above this figure are irrelevant to that issue. It says that since the applicant's temporary incapacity only lasted until November 2000, subsections (1A) and (1B) of section 11 do not apply. It is further argued that the medical insurance and employee benefit scheme do not come within the definition of "earnings" in section 3.

8. For the purposes of Order 24 Rule 7 of the Rules of the District Court, there must be sufficient evidence that documents exist, which the other party has not disclosed; that the documents relate to matters in issue in the action; and that there is sufficient evidence that the document is in the possession, custody or power of the other party. Once those matters are established the court may order specific discovery. But by Order 24 Rule 8 the court shall refuse to order discovery if it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

9. The primary question is whether the documents sought are relevant to matters in issue in these proceedings. It appears from correspondence and argument that the applicant's solicitors consider that they are relevant to the applicant's personal injury claim but that it not the point. I can only make the order sought if the documents are relevant to matters in issue in the employee's compensation claim.

10. Section 11(1) of the Employees' Compensation Ordinance provides that for the purposes of the Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings for the month immediately preceding it, or the monthly earnings for the previous 12 months, whichever calculation is more favourable to the employee.

11. Section 11(1A) provides:

(1A) Where an employee suffers temporary incapacity after an accident and such incapacity extends beyond 12 months after the date of the accident the monthly earnings of an employee at the time of the accident shall, in respect of temporary incapacity beyond the 12-month period after the date of the accident, be computed for the purposes of section 6, 7, 9 or 10 as being the earnings calculated-

(a) where the employer employs, in similar employment, other persons of similar earning capacity to the employee, as the earnings that, if the accident had not occurred, the employee would have received at the end of a 12-month period after the date of the accident in accordance with the average rate of increase in respect of the earnings of other persons of similar earning capacity employed by the employer in similar employment;

(b) where the employer does not employ, in similar employment, other persons of similar earning capacity to the employee, as the monthly earnings of the employee computed under subsection (1) or (2) and adjusted in accordance with the rate of increase in the Consumer Price Index at the end of a 12-month period after the date of the accident.

12. Section 11(1B) makes similar provision for the situation where the temporary incapacity extends beyond 24 month or such further period as the court may have allowed under section 10(5).

13. So far as the documents relating to career path are concerned, the applicant relies on the provisions of section 11(1A) and (1B) above. It is argued that despite the fact that the applicant was only on sick leave for about 6 months, he is still suffering from temporary incapacity. Therefore, documents tending to show the promotional prospects of comparable employees since the accident are relevant.

14. Notwithstanding the mention in these subsections of computation for the purposes of section 6, 7, 9 or 10, in fact the only section which provides for compensation for temporary incapacity is section 10. I am not clear as to how the computation could be applied to claims under sections 6, 7 or 9, but in any event the pre-accident earnings for the purpose of such claims are subject to the limits set out in the Sixth Schedule. If the earnings of comparable employees are to be used for computing these claims, they will be subject to these limits. In any event the time periods specified in the subsections will apply.

15. Section 10(1) provides for compensation for temporary incapacity, whether total or partial at the rate of four fifths of the difference between the monthly pre-accident earnings and the earnings which the employee is earning, or is capable of earning in some suitable employment or business during the temporary incapacity. Section 10(2) provides that an employee who has a sick leave certificate from a doctor, or an assessment of total incapacity by a Board, is deemed to suffer from temporary total incapacity. Section 10(5) provides for temporary incapacity to be deemed permanent after 24 months or for such further period, up to 12 months as the court may allow. The scheme of section 10 is to make provision for compensation for temporary incapacity until the employee recovers fully, or until his incapacity is found, or deemed under section 10(5) to be permanent. See Chan Siu Ling v. Tonyear Investment Ltd. [1999] 2 HKC 348.

16. In the present case the effect of the Form 7 is to certify a period of temporary total incapacity up to 7 November 2000 followed by a permanent loss of earning capacity of 3%. An appeal against this assessment is included in the Application and no doubt the basis for it is Dr. Chun's opinion that the permanent loss of earning capacity is 7%. But although the applicant applies for periodical payments for such period as the court may allow under section 10(5) there are no sick leave certificates after 7 November 2000 and, so far as I can see, no medical opinion that the applicant should have had sick leave after that date. While the applicant appears to have told Dr. Lee that he worked for a time as a bus driver and returned to work as an auxiliary police officer there seems to be no evidence on which to base a claim under section 10(1) for compensation based on four fifths of the difference between the pre-accident earnings and the earnings as a bus driver.

17. In the circumstances I cannot see how the plaintiff can have any claim under section 10 for compensation for temporary incapacity beyond 7 November 2000. Neither the 12-month period from the date of the accident for the purposes of section 11(1A) or the 24-month period for the purposes of section 11(1B) was never reached. It follows that documents relating to the career paths of comparable employees are irrelevant to the section 10 claim.

18. They are in any event irrelevant to the section 9 claim, even if the section 11(1A) computations were applicable. According to the list of earnings filed by the respondent, the gross earnings for the month preceding the date of the accident were $23,455.00. The 12 month pre-accident gross average was $19545.83. The higher calculation is more favourable to the applicant for the purpose of calculating section 9 compensation. It is already over the statutory limit. If comparable employees did earn more after 12 or 24 months, that would make no difference.

19. The next question is whether the medical service and employee benefit scheme come within the definition of "earnings" in section 3. The definition provides:

"earnings" means any wages paid in cash to the employee by the employer and any privilege or benefit which is capable of being estimated in money and includes the value of any food, fuel, or quarters supplied to the employee by the employer if as a result of the accident the employee is deprived of such food, fuel or quarters; and any overtime payments or other special remuneration for work done, whether by way of bonus, allowance or otherwise, if of constant character or for work habitually performed and including tips if the employment be of such a nature that the habitual giving and receiving thereof is open and notorious and is recognized by the employer: but shall not include remuneration for intermittent overtime, or casual payments of a non-recurrent nature, or the value of a travelling allowance, or the value of any travelling concession or a contribution paid by the employer of an employee towards any pension or provident fund, or a sum paid to an employee to cover any special expenses entailed on him by the nature of his employment.

20. It seems to me that the medical service is "privilege or benefit which is capable of being estimated in money". It is argued for the respondent that such benefits are restricted to "food, fuel, or quarters provided by the employer..." but I do not see that the definition can be read in this way.

21. It is not clear whether the medical service was provided by way of insurance, or by an in-house doctor, or a doctor paid a retainer by the respondent. However it was provided, it seems to me that the estimate of the monetary value of the benefit would depend, not on the cost of it to the respondent, but the value of it to the applicant. It would have to be calculated according to what the applicant would have to pay for an equivalent service if he were buying it in the market, probably from a medical insurance company. The extent of the service provided could therefore be relevant to the claims here. The amount of premium paid by, or quoted by insurers to the respondent, if indeed the service was provided by way of insurance, would be irrelevant.

22. The employee benefit scheme is a different matter. The "Terms and Conditions of Service" provide that all staff who have completed the probationary period may join such scheme. Full details of the scheme are said to be available from the Personnel Department but they are not specified. An employee pays contributions of 3% of salary per month. It appears from the list of earnings that the applicant paid contributions. It is not known what contributions, if any, the employer pays. However it seems to me pretty obvious that this is a provident or pension fund. Any benefit to the employee would come from contributions paid by the employer. But contributions paid by an employer towards any pension or provident fund are excluded from the definition of "earnings".

23. Although the benefit provided by the medical service can in my view be regarded as "earnings", that does not assist the applicant here, at any rate on the section 9 claim. As I have indicated, his pre-accident earnings were already over the statutory limit in the Sixth Schedule. It follows that, even if the applicant had greater earnings, by reason of the calculation of the monetary value of the medical service, they would not affect the section 9 compensation. So the documents relating to the medical service are irrelevant to the section 9 claim.

24. The monetary value of the medical service could however be included for the purpose of calculating the section 10 claim. It would have to be added on to the actual pre-accident earnings, and the periodical payments under section 10(1) calculated on the total. Assuming that the applicant received his periodical payments whilst on sick leave, the amount to be added on to the section 10 claim would be four-fifths of the value of the benefit. Once the extent of the service is known it should be easy enough to find out the cost of the equivalent to the applicant. It follows that documents showing the extent of the medical service are relevant.

25. It is reasonable to infer that such documents must exist, and are in the possession, custody or power of the respondent. Although the amount of claim represented by four-fifths of the cost to the applicant of an equivalent service for six months is quite small I cannot say that this discovery is unnecessary for disposing fairly of the matter; it is something to which the applicant is entitled. The costs involved should not be high.

26. There will accordingly be an order in terms of the first paragraph of the applicant's summons but the documents concerned will be restricted to "any documents containing particulars pertaining to the extent of coverage of the 'medical service' referred to in paragraph 6 of the 'Terms and Conditions of Service' issued by the respondent".

27. Since the applicant has succeeded only in respect of this small part of what was sought, the costs of the summons will (nisi) be costs in the cause. The applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.