NIRMAL SINGH v. BRAR, BUTA SINGH t/a INDIAN PROVISION STORE & SUPERMARKET

DCEC 1819/2016

[2021] HKDC 291

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1819 OF 2016

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JUDGMENT

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1.  This is the trial of an employees’ compensation claim.

2.  It is not disputed that the applicant was employed by the respondent at the time of the accident.  The respondent disputes liability in that he disputes that the accident occurred as alleged and that, even if the accident did occur, the injuries suffered by the applicant were not caused by the accident.

3.  Regarding quantum, there is no dispute over the amount of the monthly earnings of the applicant at the time of the accident. There is an appeal by the applicant against the assessment given in the Certificate of Review of Assessment issued on 8 June 2017 (“Form 9”).

4.  The applicant used to be legally aided.  The legal aid was discharged on 8 February 2021.  He therefore acted in person at trial.  The respondent was represented by Mr Edward Cheung of counsel.

Background

5.  The respondent has been trading as Indian Provision Store & Supermarket.  It was a grocery shop situated on the Ground Floor of Chungking Arcade, 36-44 Nathan Road (“the Shop”).  Apart from selling groceries and various items in its premises, the Shop also took telephone orders from customers and made deliveries to customers.  According to the respondent, at the time of the accident and not counting his son who occupied the position of General Manager, the Shop employed 11 employees.

6.  The applicant was born in India in September 1979.  He was educated there up to the equivalent in Hong Kong of Form 4.  He said he did not receive any formal education in English.  He was married in December 2004.  He came to Hong Kong as a visitor in 2005.  His application for residence in Hong Kong as a dependent was approved in 2006 and he has been staying in Hong Kong since.

7.  It is common ground that he has been employed by the respondent to work in the Shop since 2008 (save a short period in between when the applicant worked elsewhere).  The position he occupied in the Shop and his duties at the time of the accident were matters of contention.  I will refer to them later.

The applicant’s case as to how the accident happened and how it was reported to the respondent

8.  The applicant’s case is that the accident happened at about 4 pm on 23 August 2014, which was a Saturday.  At the time, 6 carton boxes of condensed milk were stacked on a trolley and were placed against the wall of the corridor just outside the entrance of the Shop leading to the inside of the Arcade. Each carton box contained 48 cans of condensed milk and was about 22 kg in weight.  He was instructed by the respondent to move the milk inside the Shop. As on either side of the entrance were stacked with goods such that the passageway was only about half a meter wide and therefore the trolley could not be pushed into the Shop, he picked up the first carton box of the condensed milk and placed it on his shoulder to carry it into the Shop.  While doing so, the carton box fell and struck his left foot and he felt pain (“the Accident”).

9.  According to the applicant, he then informed the respondent about the Accident.  The respondent then gave him an analgesic cream to apply to his left foot.  After resting for about 15 to 20 minutes, the pain decreased.  He was then instructed to unpack and then re-pack some lentils into smaller quantities.  He did so sitting.  The respondent then arranged someone else to make the deliveries in the evening which should have been made by him.

10.  The applicant however continued to feel pain over his left foot and ankle and early the next morning at about 8 am, he attended for treatment the Accident and Emergency Department (“A&E”) of North Lantau Hospital (“NLH”) which was near Tung Chung, where he lived.  From 28 August to September 2014, he took his already planned annual leave and went back to India, but continued to receive treatment there.  After the trip, he continued to receive treatment in Hong Kong and returned to the Shop on occasions to give the sick leave certificates to the respondent and to receive his salary.  He took another trip to India from 25 November to December 2014 where, he said, he continued to receive treatment.

11.  He resigned from his job with the Shop in around late February 2015 as the respondent no longer paid him.  He submitted a Notification of Accident dated 4 March 2015 to the Labour Department (“the Notification”).

The respondent’s case

12.  As said, the respondent disputes that the accident occurred as alleged, and that, even if the accident did occur, the injuries suffered by the applicant were not caused by the accident.  The respondent’s case is that:-

a.  The applicant was promoted to the position of assistant manager in the Shop in 2013 and since then “he had ceased all the manual handling jobs”[1] .

b.  The respondent was in the Shop on the date of the Accident.  He was unaware of the Accident as he did not hear any unusual sound of a carton box falling on the floor or anything unusual at the Shop that day.  He denies the applicant ever reporting the Accident to him or that he had ever given the applicant an analgesic cream.

c.  After and despite the alleged accident, the applicant still reported to work as usual, except two long trips the applicant took to go back to India. “During October and November 2014, the Applicant was able to work as usual every week and his attendance was relatively high”[2].

d.  The applicant did not report any accident.  “Yet in February 2015, the Applicant suddenly produced a bundle of sick leave certificates and resigned from the job”.[3]

e.  “In fact, before the alleged accident, the applicant had been complaining about the spur in his foot that caused him foot pain for some time”.[4]

f.  The respondent relies heavily on what were recorded in the consultation notes of the attending nurses and/or doctors of A&E of NLH regarding the date when pain began/the date of injury and the description as to what caused the injury as purportedly given by the applicant, in that apparently, there were several versions so given by the applicant.

Evidence and discussion

13.  The applicant and the respondent were respectively the only witness for his case.  They both gave evidence in Punjabi interpreted into English.

14.  The respondent has on 16 December 2019 filed the witness statement of one Ali Hassan.  He was an employee of the respondent and co-worker of the applicant at the material time.  He was present in the Shop at the time of the Accident.  He left the employment of the respondent amicably in 2016.  In his witness statement, he corroborated the respondent’s version that the applicant was then the assistant manager who since promoted had never taken part in physically demanding job and that no accident as alleged or otherwise happened on 23 August 2014.  He therefore could have been a very material witness.  In the course of trial, however, I was informed that Ali Hassan was not in Hong Kong and would not be able to attend trial to give evidence.  There was however no explanation given as to why a subpoena was not issued by the respondent to secure the attendance of such an important witness.

15.  The applicant filed a long witness statement consisting of 53 paragraphs giving details and specifics, systematically and among others,

a.  concerning his duties in the Shop, which he said were that of a shop assistant, consisting, among others, of stacking and moving goods, packing orders for customers, assisting customers in the Shop, delivering orders within the Tsim Sha Tsui district;

b.  the number of working days per month, his working hours, the 3 occasions when his salary was increased from HK$9,000 in 2008 to HK$15,000 at the time of the Accident, and the routines of his daily work in the Shop;

c.  in paragraphs 16 to 25, of the circumstances leading to, and then the Accident itself, and how he reported it to the respondent, which I summarized in paragraphs 8 to 10 above.  The applicant also annexed to his witness statement 3 colour photographs taken on 4 November 2019 depicting the corridor in question, the location where the trolley was placed and a can of “Double Happiness” condensed milk, which was the same condensed milk contained in the carton box in question.

16.  While giving evidence, the applicant was attentive, not evasive or argumentative but direct in answering questions put to him.  His evidence was not shaken in cross-examination.  I have formed a positive impression from his demeanours.  However, I remind myself that the demeanours of a witness are but only one of the matters to be taken into account in evaluating the credibility and reliability of the evidence of a witness.

17.  The respondent filed a witness statement consisting of 21 paragraphs[5]. As mentioned, one of the bases the respondent disputes that the Accident occurred was that the applicant, according to the respondent, had ceased all the manual handling jobs since being promoted to the position of assistant manager in 2013.  This matter is a substantial part of the defence as it was spoken to in paragraphs 4 to 10 of the respondent’s witness statement.  The respondent there said that the applicant was promoted to the position of assistant supervisor on 10 January 2010, then a storekeeper in 2012 and assistant manager in around 2013.  His role then after became supervisory and clerical.  In paragraph 10, the respondent said that the applicant normally worked with him in the back office.  A sketch plan of the Shop and a photograph of the back office were then annexed.  The back office was a small room with an office desk placed in the center and two chairs, placed on either side of the desk, facing each other.

18.  The parties’ versions thus are strikingly opposed as to the applicant’s job title and duties, and particularly whether the applicant was required to perform any manual tasks.

19.  The respondent’s pleaded case, however, is this.  In paragraphs 1(b) and 2 of the Answer dated 19 April 2017[6], the respondent averred respectively that “The Applicant was employed by the Respondent as a shop assistant” and “The Applicant was the shop assistant in the store. …” (my emphasis).  The Statement of Truth in the Answer was signed by the respondent.

20.  Moreover, the respondent’s own documentary evidence did not support his own version.

21.  In the Employer’s Return of Remuneration and Pensions filed by the respondent regarding the applicant for the tax years 2011/2012, 2012/2013, 2013/2014 and 2014/2015, the respondent reported the applicant’s position as “clerk”.

22.  In the two reference letters issued by the respondent under its letter head regarding the applicant dated 18 February 2012[7] and 16 January 2014[8] respectively, the contents in which were exactly the same save the amount of the monthly salary, the respondent wrote, and I quote the letter dated 16 January 2014 (but not showing the HKID number for privacy reason):-

“ Date: January 16, 2014

To Whom It May Concern

Dear Sir,

I hereby would like to confirm that Nirmal Singh holder of Hong Kong Identity Card Number RXXXXXX(X) is working for us as a Store Keeper. He is drawing monthly salary of HKD 15,000.00. He is working for us since January 10, 2010. We found him reliable, trustworthy and honest.

Thank you.

 

Yours Truly,

[signed]

Herman Brar

(Manager)” (my emphasis)

23.  When cross-examined on why the reference letter dated 16 January 2014 stated the applicant’s position as store keeper and not assistant manager, the respondent said that he had no knowledge of the letter as it was signed by his son.  When further asked, he could not explain why his son had an understanding different than his as to the position of the applicant.  He then suggested that his son had signed the letter casually without carefully checking that the contents were correct.  I find that suggestion disingenuous and improbable. Bearing in mind that the letter was a reference letter issued to the applicant for his benefit and if his position were under-stated, I think it very unlikely that the applicant would not have noticed it at the time and asked the son to re-issue one to correctly state his position as “assistant manager”.

24.  In my view, the respondent’s said elaborate allegation that the applicant was promoted 3 times to the position of “assistant manager” is clearly an afterthought. 

25.  Moreover, in the Notification, the applicant stated that he was a shop assistant.  There was no suggestion by anyone that at that time the applicant knew that his job title and duties would be a point of hot contention.  There was thus no reason for the applicant, if he were the assistant manager, to purposefully understate in the Notification the position he occupied.

26.  Furthermore, and materially, when asked whether it was indeed his evidence that the applicant was not required to do any manual work at all around the time of the accident, the respondent did not answer directly and then started explaining that the Shop was a small shop and so on and that even he as the proprietor would occasionally need to serve customers and such.

27.  I find the respondent elusive and argumentative when giving evidence relating to this topic.  Indeed, as I will allude to later in relation to other topics, I find him generally an incredible and unreliable witness.  In my view, his allegation that the applicant was promoted to the position of assistant manager was something made up by him in a disingenuous attempt to support his allegation that the applicant “had ceased all the manual handling jobs”[9]. I have no hesitation in preferring and finding for the applicant’s version in relation to his job title and duties. 

28.  Also diverged sharply are parties’ versions as to when and how the respondent was notified of the Accident.

29.  It would be recalled that the applicant said that he told the respondent of the Accident immediately on that day and was given analgesic cream by him. He also said in oral evidence that he returned to the Shop on occasions to hand the sick leave certificates to the respondent.

30.  The respondent’s version was that he was not told about the Accident on 23 August 2014, and indeed he was never informed of it.  In oral evidence, he said he was first informed at the time he first received documents that the applicant was making a claim, but he could not recollect the date he so received them[10]. Now, the Notification was dated 4 March 2015.  The respondent therefore, and according to him, would not have been informed of the Accident earlier than March 2015.  The respondent then said, as summarized in paragraph 12(c) and (d) above, that the applicant returned to work in October and November 2014 as usual, and his attendance rate was relatively high, and that he still came to work in December 2014 and January 2015.  “Yet in February 2015, the Applicant suddenly produced a bundle of sick leave certificates and resigned from the job”[11].

31.  The respondent then said in oral evidence that in the above circumstances, the applicant was paid his full monthly salary for the months of October, November and December 2014 and January and February of 2015.

32.  The table of pay roll which the respondent produced (“the Payroll”)[12] however shows that the applicant was paid from August 2014 to February 2015 the following:-

41.	08/2014	$15,000
42.	09/2014	No pay
43.	10/2014	$15,000
44.	11/2014	$12,000
45.	12/2014	$4,354
46.	01/2015	$5,000
47.	02/2015	$5,000
48.	03/2015	Resigned (27/02/2015)

33.  In his oral evidence in chief, the respondent explained that the applicant was actually paid less than HK$15,000 a month in November 2014 to February 2015 because he deducted from the applicant’s monthly salary the money he had advanced to the applicant (“Advance Payment Allegation”) and the costs of groceries previously taken from the Shop by the applicant (“Groceries Allegation”).  However, the respondent then did not say how much was the amount he so advanced to the applicant, and when.

34.  The applicant disputed such allegations and in cross-examination showed the respondent various entries in his bank book recording the deposit of his salary for January 2014 up to August 2014 all by cheques in the full sum of HK$14,250 a month (HK$15,000 net 5% MPF contribution)[13]. There were then these questions and answers:-

“The applicant Q:		Your so called advance payment and groceries reimbursement were not true ?
A:		In the past, if he has brought some groceries back, he would pay me the price.  Later on, he stopped doing so, so I deducted his salary.
The court Q:		Only after the injury that you started deducting the groceries costs from his salary payment?
A:		Yes”

35.  According to the questions and answers quoted above, the respondent only started to deduct the groceries costs from the salary after the injury. However, the Payroll shows that he started so deduct in November 2014.  Such is contradictory to his case that the applicant worked normally until February 2015 when he suddenly produced the sick leave certificates and resigned, and also contradictory to his case that he was not informed of the Accident until much later.

36.  Moreover, when asked in cross-examination, the respondent initially could not say how much “the advanced payment” was and only said later that it was “around HK$30,000”; he also said he could not remember the amounts of the costs of groceries he deducted for each of these 4 months.  There was no explanation why this “advance payment” of such substantial sum was made in cash when it has been the long-standing pattern of the respondent to pay the applicant’s salaries in cheques.  There were no documents whatsoever produced in relation to them.

37.  The Advance Payment Allegation and the Groceries Allegation were only raised for the first time in the respondent’s oral evidence in chief around noon time on the second day of trial.  They were not raised in the respondent’s witness statement, nor mentioned in any materials now before the court.  There was no mention of them in the respondent’s written or oral opening.  This is most unsatisfactory and procedurally unfair to the applicant.  The applicant was literally ambushed with them in the middle of trial.  Worst still, these 2 Allegations and the allegation that repayments were deducted from his salaries for the 4 months from November 2014 to February 2015 were not put to the applicant during his cross-examination for him to respond.

38.  In the premises, I do not accept the Advance Payment Allegation and the Groceries Allegation and the allegation that repayments were deducted from the applicant’s salaries for those 4 months.  It seems to me that such allegations were made up in the last minute in an attempt to explain, when it was realized that the amounts of salary payments actually made by the respondent in November 2014 to February 2015 did not align with the respondent’s story that the applicant worked normally until “in February 2015, the Applicant suddenly produced a bundle of sick leave certificates and resigned from the job”.

39.  It also seems to me most improbable that if the applicant were to lie about the occurrence of an accident with a view to make a false claim of employees’ compensation, as the respondent now alleges, that he would, from the date he had in mind to claim as “the date of accident”, (a) attend A&E on numerous occasions, (b) obtain the sick leave certificates, (c) but kept them from the respondent, (d) work normally from late September 2014 (after his first India trip) until February 2015 (save the time he went to the second India trip), and (e) then suddenly produce all these sick leave certificates to the respondent in one bundle and resign on the same occasion.  I fail to see any advantage that can be so gained by the applicant.  I fail to see how this would be a good game plan insofar as trying to make a false claim was concerned.  Quite the contrary, by going to work normally from September 2014 to February 2015, the applicant would be interacting with all his co-employees in all these months who would then be in a position to testify in court that the applicant had been working normally and not injured.

40.  In this connection, I note that despite the respondent’s allegation that the applicant had worked normally in those months, he was not calling any other employee to testify, but only Ali Hassan.  However and that notwithstanding, no subpoena was issued by the respondent to secure his attendance at trial.

41.  In the premises, on balance of probabilities I do not accept the respondent’s version relating to when and how he was informed of the Accident. Particularly, I reject his evidence that he was only informed of the same only when he first received documents that the applicant was making a claim, and that the applicant returned to work normally after the Accident but only suddenly produced a bundle of sick leave certificates and resigned in February 2015.  I accept the applicant’s version as mentioned in paragraph 29 above.

42.  The respondent also contended that the evidence of the applicant was unreliable and incredible and that the Accident never occurred, relying heavily on what were recorded in the consultation notes of various treating doctors as to the date and mode of injury told to them by the applicant.  The respondent particularly referred to the following:-

Date	Clinic	What was recorded under the section “History & Clinical Findings” of the A&E Clinical Documentation Form	Trial Bundle page
24 Aug 2014	A&E NLH	Left foot dorsum pain for one week; no history of injury	p 321
7 Oct 2014	A&E NLH	Left foot pain, for 1 week; no definite history of injury	p 326
18 Dec 2014	A&E NLH	L. foot hit by heavy object on 15.12.14	p 331
24 Dec 2014	A&E NLH	Lt foot injured on 15/8/2014	p 336

43.  By a closer look of the A&E Clinical Documentation Forms mentioned in the above table and the one dated 29 December 2014, the following additional notes can be seen were recorded (which I put in bold for ease of reference):-

Date	Clinic	What was recorded under the section “History & Clinical Findings” of the A&E Clinical Documentation Form	What was recorded under the section “Triage Assessment”	Trial Bundle page
24 Aug 2014	A&E NLH	Left foot dorsum pain for one week; no history of injury		p 321
7 Oct 2014	A&E NLH	Left foot pain, for 1 week; no definite history of injury	left foot pain since 24/8/2014	p 326
18 Dec 2014	A&E NLH	L. foot hit by heavy object on 15.12.14	left foot pain for 3 months, Increase pain today	p 331
24 Dec 2014	A&E NLH	Lt foot injured on 15/8/2014		p 336
29 Dec 2014	A&E NLH	Lt foot injured since 8/2014		p 338

44.  By merely looking at the other notes recorded in the forms dated 7 October 2014 and 18 December 2014, which I set out in bold above, it can readily be seen that the nurse performing the triage assessment and the attending A&E doctor on the same occasion recorded different information.

45.  The applicant in evidence explained that he was not formally educated in the English language and his English was poor, and that these discrepancies might be due to language barrier.  He said he remembered the occasion when he attended A&E of NLH on 24 August 2014.  He took his young daughter with him to help interpret as 24 August 2014 was a Sunday and her daughter did not need to go to school.  His daughter was only 7 years old then but he thought she was quite good in spoken English.  He remembered he said that he had pain for one day, and not one week; and that he was asked whether he had history of injury and he thought he was asked whether prior to the Accident his foot was injured, so he said no.

46.  24 August 2014 was indeed a Sunday.  The applicant’s evidence that he was accompanied by his daughter who helped interpret is corroborated by the A&E Clinical Documentation Form for that occasion, which recorded that he was triaged at 8:16 am and “Informant: Self, Others: daughter”.

47.  On the other occasions mentioned in the tables above, the A&E Clinical Documentation Forms all recorded that “Informant: Self”.  The applicant’s evidence was that he told them that he was injured on 23 August 2014, but he did not know what was recorded.  As mentioned, it can be seen that at least on 2 of the above-mentioned occasions, the triage nurse and the attending doctor recorded different information.

48.  The applicant in evidence also said that later on 2 occasions in late 2014 or early 2015, the precise dates he could not remember, he actually paid for someone to accompany him to the clinic/hospital to help interpret.

49.  In the report of the Department of Family Medicine dated 16 June 2016[14], it was reported that

“He first came to North Lantau Community Health Centre on 6^th January 2015. He said that a box of milk fell onto his left foot at work on 23^rd August 2014. …”

In the report of the Department of Orthopaedics and Traumatology of Princess Margaret Hospital dated 17 June 2016^[15], it was reported that:

“The above named patient was first seen in our Specialist Out-patient Clinic on 15-4-2015 when he complained of left foot pain for 7 to 8 months after a box of milk fell onto his foot on 23-8-2014 during work …”

50.  I note that the applicant was first seen by the above 2 clinics in early 2015 which was roughly the same time the applicant said he was accompanied by a paid interpreter.  I also note that in the joint expert report dated 8 November 2019 (“the Expert Report”), it was recorded that “He came with Mr. Saggu, the interpreter”[16] when he was examined by Dr Chan Tun Kut and Dr Chun Siu Yeung on 19 September 2019.

51.  Having observed the applicant when he was giving evidence and having considered the above in the round, I accept the applicant’s evidence that he did not tell the treating doctors those dates or details as recorded and also accept his explanation that these various discrepancies were probably the result of the language barrier.  I do not accept the respondent’s contention that these discrepancies show that the applicant’s evidence was unreliable or incredible and that the Accident never occurred.

52.  Taking into account all the matters set out above, I accept the evidence of the applicant and find that the Accident occurred as he said.

Injury not caused by the Accident

53.  Mr Cheung contended that the applicant’s injury as assessed in Form 9 was not caused, entirely or partly, by the Accident.  He so contended based on what the respondent said in paragraph 19 of his witness statement and what Dr Chun said in paragraph 84 of the Expert Report.

54.  The respondent there said: “In fact, before the alleged accident, the applicant had been complaining about the spur in his foot that caused him foot pain for some time”^[17]. This allegation however was not even seriously pursued.  The respondent in evidence did not give any further details or particulars as to his such brief allegation.  The applicant was not at all cross-examined about any left foot injury or pain that he had prior to the Accident.  He was not cross-examined as to any complaint “about the spur in his foot” he allegedly made to the respondent. The various investigations and enquiries by the respondent with the Hospital Authority did not unearth even a hint that the applicant had suffered another injury to his left foot or that he had attended any treatment for any left foot ailment prior to the Accident.  As I do not find the respondent a credible and reliable witness, I reject what he alleged in paragraph 19 of his witness statement.

55.  In the Expert Report, after tallying and commenting on the consultation notes of mostly A&E of NLH in a table spanning 5 pages, Dr Chun commented in the next paragraph, which was paragraph 84, that

“The physical findings of 7/10/2014 AED attendance most probably was an acute inflammatory condition and certainly cannot be due to the alleged injury of 23/8/2014.”

56.  The physical findings of A&E NLH on 7/10/2014 in fact were only these:-

“Physical examinations: Satisfactory

                                      Alert & orientated

                                      Mild tenderness and inflammation at dorsum of left foot

                                      No joint selling across ankle

                                      ROM of ankle normal

                                      Walk unaided”[18]

57.  It was stated there that physical examination showed mild tenderness and inflammation.  Nowhere was it said that there was an acute inflammatory condition.  Therefore, I do not accept Dr Chun’s opinion given in paragraph 84 of the Expert Report.

58.  In the Expert Report, there was never mentioned in whatever manner any other injury or incident (save maybe suggested in paragraph 84, which I do not accept), nor did either expert give any opinion that the injury was not caused by the Accident.  Dr Chun in paragraph 79 merely expressed a reservation as to whether the Accident did occur as the applicant said.  In paragraph 82(v), he expressly opined that if the applicant was hit by a box containing 48 cans of milk which fell from a height, that “should make a lot of difference with respect to the injury sustained.”

59.  As I find that the Accident occurred as the applicant said, Dr Chun’s opinions based on all his reservations are no longer relevant.

60.  I hold that the respondent’s said contention is a non-starter and I reject it.

The applicant’s section 18 appeal

61.  In the Expert Report, Dr Chan agreed with the assessment in Form 9 regarding the percentage of the loss of the applicant’s earning capacity.  He also endorsed the sick leave issued by the treating doctors, which are the sick leave periods assessed in Form 9.  The applicant’s appeal therefore is dismissed.

QUANTUM

62.  As the applicant’s section 18 appeal is dismissed and there being no such appeal from the respondent, the applicant’s section 9 and 10 compensation are to be calculated by the assessment given in Form 9.  In Form 9, the loss of earning capacity caused by the injury was assessed at 3%, and the periods of absence from duty necessary as a result of the injury as therein assessed and listed totalled to 250 days.

63.  Section 9: The amount of compensation is therefore: HK$15,000 x 96 x 3% = HK$43,200.

64.  Section 10: The amount of compensation is: HK$15,000 x 250/30 days x 4/5 = HK$100,000.

65.  Section 10A: The respondent does not dispute that the applicant paid to public hospitals and clinics in respect of the injury in question fees in the total amount of HK$1,435.  The respondent disputes the amount of fees paid to a Chinese bonesetter on 3 occasions in the total sum of HK$300 x 3 = HK$900.  There were no receipts for them produced, but 3 sick leave certificates issued by the bonesetter covering the period from 25 September 2014 to 1 October 2014 (except 29 September 2014) were[19]. These certificates showed that the applicant attended the bonesetter on 3 occasions, namely on 25, 27 and 30 September 2014.  Such sick leave as given by the bonesetter was accepted and assessed in Form 9.  I accept the applicant’s evidence that he paid the bonesetter HK$300 on each occasion.  I would therefore allow the HK$900.  The total award under section 10A is therefore HK$2,335.

Disposal

66.  Mr Cheung confirmed at trial that there was no advanced or interim payment, credit for which need to be given.

67.  I therefore will enter judgment against the respondent in the sum of HK$145,535 (HK$43,200 + HK$100,000 + HK$2,335), with interest at half judgment rate calculated from the date of the Accident to the date of this judgment and at full judgment rate then after until full payment.

68.  I will make the costs order, on nisi basis, that the respondent do pay the applicant the costs of this action, including any costs reserved; and the applicant’s own costs, incurred while he was legally aided, be taxed according to the Legal Aid Regulations.  This costs order nisi will become absolute unless any party applies to vary within the next 14 days.

69.  Though the applicant’s section 18 appeal is dismissed, the respondent also relied on the Expert Report to pursue his point on causation which he failed, I therefore presently think it fair and appropriate that no separate costs provision need be made regarding the applicant’s section 18 appeal.