CHENG WAI LUN v. KONG HING WAH formerly trading as E AND C-T ENGINEERING CO AND ANOTHER

DCEC 1402/2019

[2023] HKDC 1158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1402 OF 2019

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JUDGMENT

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Introduction

1.  This is the trial for assessment of compensation.

2.  Interlocutory judgment was entered on 16 October 2020 on liability with compensation to be assessed.

3.  Pursuant to the order of Her Honour Judge Levy dated 23 July 2021, leave was granted to Employees Compensation Assistance Fund Board to join as the 2^nd respondent to contest the issue of quantum.

4.  At the beginning of the trial, I allowed the applicant to serve his supplemental witness statement.

Absence of the 1^st respondent

5.  Service of the application on the 1^st respondent was effected by substituted service pursuant to the order of His Honour Judge Andrew Li dated 25 February 2020.

6.  The 1^st respondent did not take any step in these proceedings.

7.  The applicant’s solicitors did send the order of Her Honour Judge Levy dated 12 April 2022 (fixing the dates of the present trial) on the 1^st respondent at his usual and last known address.

8.  I am satisfied that the 1^st respondent has had due notice of these proceedings and the trial for assessment of compensation.

Section 18 appeal

9.  The Employees’ Compensation (Ordinary Assessment) Board (“the Board”) issued a Certificate of Assessment dated 8 November 2019 assessing the applicant’s loss of earning capacity permanently caused by the injury at 2%. The assessment was subsequently reviewed by the Board and was adjusted to 4% by a Certificate of Review of Assessment dated 1 April 2020 (“the Form 9”).

10.  The applicant filed a Notice of Appeal on 25 May 2020 appealing against the said assessment.

11.  This court is therefore required to start afresh, relying not only on the certificate of the Board but also any other evidence, especially medical evidence, adduced before it, to assess the loss of earning capacity permanently caused by the injury suffered in an accident at work: see Chu Chin Yiau v Ray On Construction Co Ltd [1992] 1 HKC 246 applying Chan Kit v Sum Wo Industrial Manufactory [1989] 2 HKLR 230.

12.  According to the Form 9, the injury sustained by the applicant was “back injury resulting in discogenic back pain”.

13.  I think there is no dispute that the injury is non-scheduled injuries.

14.  For non-scheduled injuries, s 9(1)(b) of the Employees’ Compensation Ordinance (“ECO”) and the provisos thereof are relevant:-

“(b) in the case of an injury not specified in the First Schedule, such percentage of the compensation which would have been payable in the case of permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury in any employment which the employee was capable of undertaking at that time:

Provided that—

……

(ii) in the case of injury not specified in the First Schedule, the loss of earning capacity permanently caused by such injury shall be assessed as a percentage having regard so far as possible to the scale of percentages specified in that Schedule and to the Note thereto.”

15.  Miss Jolie Chao, counsel for the applicant, submitted that special circumstances existed and therefore the Paper Mills Formula is applicable.

16.  To apply the Paper Mills Formula, there has to be special circumstances under s 9(1A) of ECO including (i) the nature of the injury or injuries in relation to the nature of his former usual employment; and (ii) his qualification, previous training and experience: see Chu Wai Leong v Leung Sum Kee et al Framework, Pipework and Demolish Engineering Ltd [2020] 3 HKLRD 218 at p 236.

17.  The following is the employment history of the applicant after the accident:-

Period	Occupation
2/2018-28/5/2018	Van driver
10-12/2018	General labour in construction site
3-8/2019	Gondola worker
12/2019-3/2020	Construction site cleaner
7,10 & 11/2020	Gondola installation worker
12/2020-1/20212	Traffic warden
18/5/2021-16/8/2021	Cleaner of public footbridges
2/2022- at least 13/7/2022	Cleaner

18.  The applicant had also attended a course in Modular Integrated Construction Unit Installation provided by the Hong Kong Institute of Construction between 12 and 30 June 2020 to equip himself.

19.  The applicant was able to take up jobs of different nature, some of which with higher pay. He is not suffering a disadvantage in the labour market due to his injury.

20.  I am not satisfied that there are special circumstances which warrant the application of the Paper Mills Formula.

21.  Turning to the medical evidence, the applicant has appointed Dr Fu Wai Kee as his orthopaedic expert whereas Dr Lee Po Chin was appointed by the 2^nd respondent.

22.  The applicant was examined by Dr Fu and Dr Lee on 24 March 2021 and 26 August 2021 respectively. They compiled their individual medical reports on 7 May 2021 and 20 September 2021. A joint medical report was produced on 28 September 2021. After reviewing additional medical reports, psysiotherapy report, occupational therapy report, medical records, request information sheet, appointment slips and medical certificates, they prepared a supplemental joint report on 19 February 2022.

23.  It is worth noting that Dr Fu was of the opinion that the loss of earning capacity of the applicant was 4% whereas Dr Lee assessed it at 2%. Regarding the impairment of the whole person, both experts arrived at the same conclusion of 2%.

24.  As the available expert evidence does not support a higher assessment of loss of earning capacity, the applicant’s appeal against the assessment in the Form 9 is bound to fail.

25.  Miss Chao, as a last resort, submitted that the court has a wide discretion to depart from the assessment of the Board, citing Kwan Yee Chor v Hung Fau Metal Construction Co Ltd, DCEC 520/2001, 10/7/2002, unreported, in support. Although Miss Chao commented that Dr Fu’s assessment is fairer and more reasonable, she submitted that Dr Fu’s assessment was made “on the basis of an inaccurate interpretation of the medical records in relation to the 2018 Traffic Accident and the inaccurate figure of LOEC in relation to the pre-Accident injury”.

26.  With respect, I do not think Miss Chao’s comments on Dr Fu are fairly made or justified. Dr Fu was not called to give evidence. He was not afforded the opportunity to respond to the queries or adverse comments Miss Chao has on his assessment.

27.  Secondly, in Kwan Yee Chor (supra), the learned judge was dealing with a s 18 appeal. He was urged by the respondents to accept the assessment of the medical expert. The learned judge was however of the view that special circumstances under s 9(1A) of ECO existed and accordingly, allowed the appeal and applied the Paper Mills Formula. As such, the case was decided in different context and does not support Miss Chao’s proposition.

28.  I would therefore dismiss the appeal.

Section 9

29.  The applicant was born on 7 May 1975. He was 42 years of age at the time of the accident. By virtue of s 7(1)(b) of ECO, the appropriate multiplier to be adopted is 72.

30.  The applicant said prior to the accident, he was working for 6 days weekly at the daily wage of $750. Therefore, his monthly earnings would be $19,500 ($750 x 26).

31.  According to the record of unpaid salary filled in by the applicant, for the period from 19 May 2017 to the date of accident on 16 June 2017, the applicant worked every day except Sundays and public holiday.

32.  I see no reason to doubt the applicant and accept that his monthly earnings were $19,500.

33.  Mr Eric Tsoi, counsel for the 2^nd respondent, went a great length in analyzing the medical reports of the applicant, the effects of the failure to disclose medical records on the part of the applicant and ultimately the credibility of the applicant. Mr Tsoi invited this court to accept either the opinion of Dr Fu or Dr Lee with apportionment due to the injuries sustained by the applicant in a traffic accident during work on 28 May 2018.

34.  The statutory scheme of ECO was examined by the Court of Appeal in Ng Ming Cheong v Mass Transit Railway Corp [1997] HKLRD 1231. It was held that the legislature’s intent is that the assessments of the Board are to be final unless appealed within a limited period of time. Although s 16H of ECO did not state that the certificate shall constitute conclusive evidence of the matters stated therein, it did not follow that the evidence could not become conclusive through the appeal procedure not being invoked. As there was no appeal by the respondent employer, the judge ought not to have entertained any expert evidence at the trial. The only evidence before trial judge as to quantum would have been the certificate and nothing more.

35.  Here, only the applicant had given notice of appeal against the Form 9. Neither the 1^st respondent nor the 2^nd respondent after the joinder has given notice of appeal against the assessment out of time under s 18(2) of ECO.

36.  As I have dismissed the appeal of the applicant, the assessment stated in the Form 9 is not varied. It is the only evidence on quantum and nothing more. It would be wrong for me to consider the medical reports of Dr Fu or Dr Lee, not to mention the credibility of the applicant.

37.  The same approach was taken by Deputy District Judge Christopher Chain in Abdul Ghafar v Yuen Ming Transportation Construction Ltd & another [2021] HKDC 550. In that case, only the applicant appealed against the assessment of the Board but not the respondents. Whilst the learned judge allowed the applicant’s appeal, he refused to reduce the assessment attributable to the psychiatric component based on the psychiatric medical expert evidence before the court.

38.  For the above reasons, I would adopt the loss of earning capacity of 4% as stated in the Form 9.

39.  Accordingly, the compensation under s 9 is $56,160 ($19,500 x 72 x 4%).

Section 10

40.  There is no dispute that the applicant was given 711 days of sick leave.

41.  Similarly, Mr Tsoi invited this court to consider the medical experts’ evidence and to either apportion the amount of compensation or to disallow the sick leave days after 28 May 2018 due to the road traffic accident happened on that day.

42.  For reasons I have stated above, the medical expert evidence should have no place in the process of calculation. Moreover, the Form 9 certified the period of absence from duty over the period from 22 July 2017 to 2 November 2019. I see no basis to make any differentiation by reason of the traffic accident.

43.  Accordingly, the compensation under s 10 is $369,720 ($19,500 x 4/5 x 711/30).

Section 10A

44.  There is no dispute that the applicant has incurred $7,870 on medical expenses.

45.  Again, Mr Tsoi invited this court to taken into account of the medical expert opinion which I would likewise decline to do so.

46.  Accordingly, the compensation under s 10A is $7,870.

Advanced payment

47.  The applicant has received no advanced payment from the 1^st respondent.

Conclusion and order

48.  In the result, I find that the applicant is entitled to compensation in the sum of $433,750 ($56,160 + $369,720 + $7,870).

Interest

49.  The applicant is entitled to interest at half judgment rate from the date of accident (ie 16 June 2017) to the date of judgment and thereafter at judgment rate until the date of payment.

Costs

50.  At the invitation of Mr Tsoi, I make the following costs orders nisi that:-

(a)  the 1^st respondent doth pay the applicant the costs of the assessment of compensation; and

(b)  there be no order as to costs as between the applicant and the 2^nd respondent.

51.  In the absence of any application by summons for variation within 14 days from the date of this judgment, the costs orders nisi shall become absolute.

52.  The applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.