Dai Chuncheng v. Pat Tat Transportation Ltd

DCEC 2117/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2117 OF 2014

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J U D G M E N T

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A.　INTRODUCTION

1.The applicant brought these proceedings for employees’ compensation under the Employees’ Compensation Ordinance (Cap. 282) (“Ordinance”) in respect of an accident (“Accident”) on 11 December 2013(“Accident Date”) at No. 9 Larch Street, Tai Kok Tsui, Kowloon, Hong Kong (“Accident Site”) whilst delivering wooden boards allegedly in the course of employment with the respondent.

2.There is no dispute that the applicant sustained injuries to his left foot as a result of an accident.

3.The respondent, a limited company, was represented, until shortly before the commencement of the trial, by Messrs. Tim Chan & Co (“Tim Chan”) for the substantial part of these proceedings including in a last directions hearing held on 9 August 2016 in which the court set the case down for trial.

4.On 23 November 2016, Tim Chan applied by summons for an order to cease to act for the respondent. 

5.During the adjournment of Tim Chan’s summons, the court later learnt that the respondent, by a winding-up order (HCCW 308/2016) dated 30 November 2016, was wound up by the Companies Court, and that provisional liquidators had been appointed by the Official Receiver.

6.Before the trial started, counsel for the applicant, Mr Pun submitted an order dated 8 December 2016 by which the High Court granted leave to the applicant to proceed against the respondent in this action notwithstanding the said winding-up order.

7.As for the representation of the respondent, the provisional liquidators had been given notice of the trial, and they wrote to the court stating that they would not attend the trial. 

8.Mr Leung of Tim Chan also attended the hearing before the trial began notwithstanding an order of this court on 7 December 2016 granting Tim Chan leave to cease to act for the respondent.

9.After having heard from Mr Leung, this court formally discharged Tim Chan from acting for the respondent upon being satisfied that Tim Chan had complied with the requirements of O.67 r.6(1) of the Rules of the District Court in relation to the service of the court’s order of 7 December 2016 (in relation to which Mr Leung had given his undertaking to file an affirmation).

10.In the result, the respondent became an unrepresented party and was absent from the trial.  Since I was satisfied that the respondent had been given proper notice of the hearing, I directed to proceed with the trial in its absence.

B.　ISSUES

11.When the respondent was still represented, its counsel, Ms Li, who was instructed to attend the directions hearing on 9 August 2016, together with Mr Pun (the applicant’s counsel), submitted an agreed list of issues in relation to the issues common to this action and the related common law action. 

12.As this court decided not to try both actions together, it is therefore necessary only to identify the issues of this action.

B.1　Liability

13.The parties have identified three issues on the question of liability, namely:

(1)   Whether the applicant was employed by the respondent on the Accident Date?

(2)   Whether the Accident arose out of the applicant’s employment? and

(3)   Whether the Accident arose in the course of the applicant’s employment?

14.For Issue (1), the parties further identified 5 sub-issues:

(a)   Whether the applicant worked for the applicant as an employee or a sub-contractor at all material times;

(b)   Whether there was a serious argument between the applicant and a Mr Chung (“Chung”), the sole director and shareholder of the respondent in October 2013;

(c)   Whether Chung had indicated to the applicant that the respondent would not give the applicant any more work;

(d)   Whether Chung had requested a [Fong] Chi Fai (“Fong”), the respondent’s driver, not to make delivery at the material times; and

(e)   Whether the applicant was instructed by the respondent to work at the material times.

15.Apart from sub-issue (a), the rest of the sub-issues relate mostly to factual disputes.  As a result of the respondent’s absence from trial, there is no need, for the reason to be discussed in Section C.2 below, to resolve the factual disputes stated in sub-issues (b) to (e). As for sub-issue (a), it simply serves to clarify Issue (1) by requiring the court to determine the question of whether the applicant was the respondent’s employee.  Thus, instead of treating sub-issue (a) as a separate sub-issue, I would propose to modify Issue (1) by incorporating sub-issue (a).  Thus Issue (1) as modified will read “whether the applicant was the respondent’s employee on the Accident Date?”.

16.Should the court determine issue (1) as modified in favour of the applicant, Issues (2) and (3) will next fall for determination.  Issues (2) and (3) are in fact interrelated and should be considered together, which issues require this court to determine whether the Accident was incidental to the applicant’s employment and whether the injury he suffered was connected with the employment.

B.2　Quantum

17.Apart from stating that quantum is in dispute, the parties in the agreed list of issues did not identify any issue for quantum.  As for quantum, the applicant disagreed with the review assessment made by the medical assessment board (“MAB”) of the Labour Department stated in its Form 9 review certificate. Hence, an appeal was filed by the applicant, and the court later granted the applicant leave to adduce as evidence a medical report dated 29 July 2015 of the parties’ appointed single joint expert, Dr Fu Wai Kee.  In his report, Dr Fu endorsed the Form 9 certification of the applicant’s sick leave, which is from 11 December 2013 to 4 August 2014, a total of 237 days. As for the percentage loss of the applicant’s earning capacity caused by the injury of the Accident, 2 percent was opined by Dr Fu (which percentage is slightly higher than the 1.5 percent stated in the Form 9 certificate).

18.As both counsel at the directions hearing had confirmed their agreement to the adoption of the assessment made by Dr Fu in his report, the assessment of the appropriate quantum of compensation only requires a determination of the applicant’s monthly earnings before the Accident (for ss.9 and 10 compensation) as well as his medical expenses (for s.10A compensation).

C.　THE EVIDENCE

C.1　Evidence of the applicant

19.Before the trial, the applicant filed his witness statements respectively dated 17 July 2015[1] and 2 January 2016[2]. In addition, he also adduced as evidence the witness statements of Fong, his witness, respectively dated 17 July 2015[3] and 28 January 2016[4].    

20.In their oral testimony, both the applicant and Fong adopted their witness statements and were examined by this court and their counsel. Despite not having been subject to cross-examination, the applicant and Fong impressed me as credible and reliable witnesses.  I find that both witnesses are unsophisticated and simple working people who gave evidence in a straightforward manner without any embellishment.  I accept their evidence.

C.2　Evidence of the respondent

21.The respondent, whilst it was still legally represented, filed the witness statements respectively of Chung, and Chan Fai Lung (transliteration) (“Chan”), who was the respondent’s lorry delivery worker.  Due to the respondent’s absence from trial, all of the respondent’s witness statements remained unverified on oath in the witness box.

22.In his closing submission, Mr Pun urged me to disregard the respondent’s witness statements.  Referring to O. 38 rr.1 and 2A (6) of the Rules of the High Court (the applicable rules should have been the identical O.38 of the Rules of the District Court), Mr Pun submitted that these witness statements, notwithstanding their having been included in the trial bundle, could not be accepted as evidence of the respondent’s case.

23.According to O.38 rr.1 and 2A (6) (which Mr Pun relied on), a witness is required to be orally examined in open court before any fact and evidence of this witness can be proved at the trial of an action.   Accordingly, the mere filing and exchange of the witness statement of a witness is not in itself evidence of the case.

24.It should also be mentioned that the requirement of oral examination of a witness in open court stated in O.38 r.1 is expressly stated to be subject to three classes of exceptions, one of which is the Evidence Ordinance (Cap.8), and its Part IV concerning the admission of hearsay evidence contained in civil proceedings (as expressly provided by O.38 r.20) to be the applicable provisions of the Evidence Ordinance.

25.Accordingly, in deciding whether the respondent’s unverified witness statements should be excluded as Mr Pun suggested, it is necessary to consider Part IV, relevantly, s.47 of this Part. Section 47 provides that hearsay evidence in civil proceedings shall not be excluded unless:

(a)   A party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b)   The court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.

26.In light of the applicant’s objection to the admission of the respondent’s witness statements, I should consider whether the proposed exclusion “is not prejudicial to the interests of justice”. Having regard to the contents of these statements which contain assertions and allegations adverse to the applicant’s case, I consider that it would be prejudicial to the interests of justice if the respondent’s untested and unverified witness statements were admitted as evidence, as it will be grossly unfair to the applicant.

27.In the circumstances, I accede to Mr Pun’s objection by wholly disregarding the respondent’s witness statements.

D.　WHETHER THE APPLICANT WAS THE RESPONDENT’S EMPLOYEE ON THE ACCIDENT DATE (ISSUE (1) AS MODIFIED)?

D.1　The applicant’s case

28.In his evidence, the applicant stated that before March 2013 he used to work as a casual delivery worker delivering goods for cross-border lorries (which means lorries that transport goods between Hong Kong and Mainland China) of various delivery companies, including that of the respondent as from the end of 2012 after he was employed by Chung of the respondent. There was never any written employment agreement with the respondent.  The respondent paid him wages in cash of $500 a day in respect of a delivery of goods of the respondent’s small lorry (that weighs about 13 to 14 tonnes); and $600 when delivering for a large lorry (that weighs about 16 tonnes).

29.Absent any written employment agreement, the respondent’s work arrangement in relation to the applicant was loose and informal.  The instructions for work were invariably given through mobile phones by Chung or the respondent’s employees such as its lorry drivers or other delivery workers. Once the applicant received the instructions from the respondent (through Chung or its employees) to work, the applicant would go to the specified location in Hong Kong at the pre-arranged time to be picked up in the respondent’s lorry (that was loaded with goods of the respondent’s clients) by the respondent’s lorry driver. The applicant would then be driven together with the respondent’s other delivery worker(s) to various locations in Hong Kong to do delivery with the use of the trolleys provided by the respondent.  

30.It was stated that as from March 2013, the applicant worked regularly for the respondent for an average of about 26 days a month, albeit that he occasionally worked for other delivery companies. The applicant also mostly delivered for the respondent’s small lorry, MU7061, which was driven by Fong.

31.The applicant’s said regular work pattern with the respondent continued throughout until it was interrupted by the applicant’s China visit to his hometown between 19 November 2013 and 8 December 2013. However, as soon as the applicant returned to Hong Kong, he called up Fong (the driver of MU7061) to tell him that he was available to work. Fong replied that he would let him know should he be required.  

32.At around 8 p.m. on 10 December 2013, the applicant said that Fong called and told him he was required to deliver for MU7061 together with Chan to three different places in Hong Kong.

33.The applicant and Chan were later picked up by Fong in MU7061 and they started the delivery work at about 9 p.m. At around 11:30 p.m., the applicant and Chan were doing their last round of the delivery at the Accident Site.  At around midnight (on the Accident Date), the applicant met the Accident when the respondent’s trolley loaded with wooden boards which the applicant and Chan were pushing suddenly overturned.  The applicant suffered injuries to his left foot caused by the wooden boards that fell from the trolley.

D.2　Fong’s evidence

34.Since 2009, Fong was employed by the respondent as its cross-border lorry driver, driving the respondent’s MU7061. His job duties required him to drive the respondent’s lorry to the various factories of the respondent’s clients in Mainland China to take delivery of the goods. After the lorry was loaded, Fong would then drive the lorry back to Hong Kong and go to pick up the respondent’s delivery workers (usually two) from a pre-arranged place for the goods to be delivered by them to various places in Hong Kong. Fong left the respondent in 2014.

35.Fong also stated that according to his experience in cross-border delivery, delivery workers were mostly employed on a casual basis without any written employment contract. As for the respondent’s practice in relation to the employment of casual delivery workers, it also adopted the same practice.  During his period of employment with the respondent, Fong stated that apart from driving the respondent’s MU7061, he had on many occasions been entrusted by Chung with the task of engaging casual delivery workers for the respondent whenever Chung could not find enough workers himself.   On such occasions, Fong was given a free rein in the employment of casual delivery workers in that Fong was neither required to obtain Chung’s prior approval as to which worker Fong would engage nor did Chung require him to provide the identity of the worker that he had engaged for the respondent. Fong was further entrusted with the payment of the wages in cash to the worker he had engaged for the respondent.  Afterwards, Fong would obtain reimbursement from the respondent by deducting from the payments the respondent’s Mainland clients had made for the deliveries.  It was further stated that before the Accident, Fong had on many occasions employed casual delivery workers for the respondent in this way.

36.In relation to the Accident, it was stated that on 10 December 2013 (the day before the Accident Date), Fong, as in the past, called Chung after the goods had been loaded on MU7061 in the Mainland for his instructions regarding delivery workers before he drove back to Hong Kong to unload the goods. However, Chung told Fong that he could only find one delivery worker (Chan) to do the delivery, and asked Fong whether he could manage with only one delivery worker. Fong told Chung that it was a heavy load and two delivery works would be needed.

37.Chung next suggested to Fong to defer the delivery until the next day.  As Fong was remunerated by the number of trips he drove to the Mainland, Fong would earn wages of one trip less if the delivery were deferred until the next day.  Since Fong wanted to be able to finish the delivery that evening, he suggested that he be allowed to find a second delivery worker. In reply, Chung said that “你搞掂就得啦” (its meaning in the context of this conversation can be this: “so long as you [Fong] could fix it, it would be fine with me [Chung]”). Upon hearing Fong’s reply, Fong believed that Chung had, as in the past when he could not find enough delivery worker, authorized him to engage the second casual delivery worker.

38.Upon hearing Chung’s reply, Fong thought of the applicant and telephoned him about work that evening. After having secured the applicant’s availability, Fong then made a number of phone calls making arrangement to pick up the applicant and Chan.  Fong also later called Chung to let him know that that he had engaged the applicant for the respondent to do the delivery.

39.Fong also testified that he paid the applicant $600 ($500 for the fixed daily wage plus $100 allowance for carrying goods up the stairs) as his wages when he was in hospital. Fong, as in the past, also obtained reimbursement by deducting the $600 from the payments made by the respondent’s Mainland clients.

D.3　Discussion

40.From the evidence given by the applicant and Fong, I find that there is ample evidence for the applicant to prove that he was the respondent’s employee on the Accident Date.  My reasons are as follows.

41.First, on the basis of the respondent’s prior entrustment of Fong in the employment of casual delivery workers discussed in para 35 above, I find that the words “(你搞掂就得啦)” said by Chung in response to Fong’s request to be permitted to find a second delivery worker are sufficient in clothing Fong with free rein in the employment of the second delivery worker. As Chung was the sole shareholder and director of the respondent, the authority given by Chung to Fong, as a matter of law, would bind the respondent. In the circumstances, the applicant was employed by Fong on behalf of the respondent.

42.Second, the mobile phone records[5] of Fong further strengthen Fong’s evidence as to how he had been, in my view implicitly, authorized by Chung to engage the applicant. These records, albeit not showing the contents of the phone conversations, support Fong’s evidence in relation to the various phone calls that he had made to Chung, the applicant and Chan from 8 p.m. to 9 p.m. on 10 December 2013, the evening before the Accident.  According to the phone records extracted from a table [6]of these phone records Mr Pun very helpfully prepared and set out in his closing submission (at para 33), in the evening before the Accident, within the hour between 8 p.m. and 9 p.m., Fong received two incoming calls respectively from the applicant and Chan, and six outgoing calls to the applicant, Chan and Chung. The time of the calls as well as the identities of the calling and the called parties help substantially corroborate with Fong’s account of how he came to engage the applicant on the evening before the Accident.

43.Third, the features of the working relationship when examined against the indicia of an employment relationship are consistent with that of an employer and employee relationship.  In spite of its informal nature of the engagement by Fong on behalf of the respondent, the engagement was consistent with the previous pattern of the respondent’s employment of casual workers.  Pertinently are the indicia that on the Accident Date, the applicant was driven by the respondent’s employee (Fong) in the respondent’s lorry (MU7061) delivering goods of the respondent’s clients using a trolley provided by the respondent.   

44.In conclusion, the answer to the question posed in Issue (1) as modified is in the affirmative.

E.　WHETHER THE ACCIDENT AROSE OUT AND IN THE COURSE OF THE APPLICANT’S EMPLOYMENT (ISSUES (2) AND (3))?

45.In light of my acceptance of the evidence of the applicant and Fong, and my finding to relation to Issue (1) as modified above, I have no difficulty in also finding that the Accident arose out and in the course of the applicant’s employment. The injury to the applicant’s foot was clearly caused by the Accident which happened when the applicant was delivering goods form MU7061 that belonged to the respondent using the respondent’s trolley.

F.　CONCLUSION ON LIABILITY

46.For the foregoing reasons, I am satisfied that the applicant has succeeded in establishing liability against the respondent.

47.I will next discuss the proper quantum for compensation.

48.In assessing the amount of compensation for the ss.9 and 10 compensation, I only need, in view of the parties’ agreement in adopting the opinion of Dr Fu in relation to the percentage loss of earning capacity and the number of days for the sick leave, to determine the applicant’s monthly earnings before the Accident.

G.　APPLICANT’S MONTHLY EARNINGS

g.1　the applicant’s evidence

49.The applicant asserts that his monthly earnings before the Accident were $13,000. This assertion is supported by the applicant’s evidence that as from March 2013, he mostly delivered for MU7061 on an average of 26 days a month earning $500 a day. It is therefore claimed that his monthly wages before the Accident were $13,000.

50.In addition to the daily wage, the applicant also averred that he would also get extra payments in the form of a “breakfast” allowance of $200 for extra delivery in the morning as well as an allowance of around several hundred dollars to $1,000 for each deliverypaid by the factory or company in the Mainland if the delivery required him to climb stairs. 

51.Since there was no fixed day of payment, and the applicant would only be paid in cash every 10 days or sometimes at the end of a month when he saw Chung, the applicant had the practice of keeping a record of his daily deliveries. From the record that he had made, he would also copy the same record in long hand. The original copy would be given to Chung for payment of wages, and he would retain his other copy. After he was paid, he would throw away his copy of the record.

52.The applicant, save and except for a copy of a record (“Wages Record”) that he had made in a cigarette box for the deliveries that he had done for the month of October 2013 and one day on 10 December 2013, was unable to produce any document to support his asserted earnings.  

53.In the Wages Record, the applicant had recorded the date of the delivery, the name of the lorry for which he delivered goods, as well as the number of times that he did the delivery.  For the month of October 2013, the applicant, according to the Wages Record, worked for 23 days for the respondent, earning a total of $12,200.

G.2　Discussion and finding

54.Apart from the applicant’s evidence and the Wages Record, there is no other evidence to support the applicant’s asserted earnings.  In the list of earnings the respondent filed in these proceedings, the respondent whilst disputing the assertion that the applicant was its employee, stated that the applicant was paid altogether a total sum of around $2,500 to $3,000 by the consignors in Mainland China for the 12 months before the Accident Date with the last payment made in October 2013.

55.Since the respondent’s assertion made in the list of earning was not verified on oath or supported by any documents, I consider that it should be excluded from the consideration of the applicant’s wages.

56.Before analyzing the applicant’s evidence below, I should mention s.11 that provides a statutory method of calculating earnings.  Relevantly for the instant case, subs (1), (6) and (7) of s.11, which state:

“(1) Subject to this section, for the purposes of this Ordinance the monthly earnings of an employee at the time of the accident shall be the earnings-

(a) for the month immediately preceding the date of the accident; or

(b) computed in such manner as is best calculated to give the rates per month at which the employee was being remunerated during the previous 12 months if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been employed by the same employer,

whichever calculation is more favourable to the employee.

...

(6) For the purposes of subsections (1) and (2), employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.

(7) Where the employee had entered into concurrent contracts of service with 2 or more employers under which he worked at one time for one such employer and at another time for another such employer, his monthly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident ...”

57.It is trite that s.11 is designed to provide two alternative methods[7] of calculating a claimant’s monthly earnings that are most favourable to the injured worker. In the instant case, the applicant certainly cannot rely on the method of s.11(1)(a) (for the month immediately preceding the Accident) for the reason of the applicant’s absence from work due to his Mainland China trip in November.  The calculation should therefore be guided by s.11(1)(b) (which is by calculating the rates per month at which the employee was being remunerated during the previous 12 months, if he had been employed for so long a period by the employer, failing which for any lesser period during which he had been employed by the same employer), which Mr Pun relied on.

58.In this case, the only written record of the applicant’s monthly earnings was the Wages Record showing the applicant’s earnings for the month of October 2013 (from 3 October 2013 to 29 October 2013), which are in the total amount of $12,200.  According to the Wages Record and the applicant’s testimony at court, for the entire month of October 2013, the applicant was paid by the respondent wages in the total sum of $11,500 in respect of 23 deliveries for MU7061 (which the applicant referred to as “Ching Lung” (清「隆」[8]) in the Wages Record) and an additional breakfast allowance of $200. Apart from the total amount of $11,700 the applicant earned from the respondent, he also earned another $500 for one delivery he did on 15 October 2013 for another company called “Man Tsai” (“文仔”). After 29 October 2013, he did not do any more work because he needed to prepare for his trip to Mainland China.

59.He also testified that the income he received for the month of October 2013 when compared with the other months was on the low side, because he was not assigned work on some of the days in October.  He said that in normal circumstance he would have delivered goods for 25 to 26 lorries a month.  He also testified that he would in addition receive extra payments of between several hundred dollars to about $1,000 from the clients in Mainland China when he was required to carry goods to upper floors and walk up staircases.  He confirms that for the month of October, his earnings comprised such extra payments. However, he did not enter these earnings in the Wages Record as he had already been paid and they were not concerned with the respondent.   

60.In the applicant’s testimony in court, the applicant stated that his earnings before October 2013 were higher than those reflected in the Wages Record.

61.After having considered the applicant’s evidence, which I accept, and the documents that I shall refer to in the below, I am satisfied on the balance of probabilities that the applicant’s asserted monthly earnings before the Accident was $13,000 for the following reasons.

(1)   In my judgment, the Wages Record the applicant produced, being a contemporaneous document in support of the applicant’s earnings for the substantial part of the month of October 2013, provides reliable and credible evidence that tends to prove that the applicant’s monthly earnings before the Accident were not less than $12,200.

(2)   If the applicant’s extra payments (that the applicant had not recorded in the Wages Record: see para 59) in the total amount of around several hundreds to $1,000 had been taken into account, the applicant’s gross earnings for October 2013 would be around $13,000 if not more.

(3)   The earnings of $12,200 for October 2013, according to the applicant’s evidence (paras 58 to 60) had under-represented the applicant’s normal monthly wages. According to the applicant, his earnings for the month of October 2013 were less than usual as he worked less days in October and extra payments were less than usual. The applicant’s evidence was that he usually delivered goods for 25 to 26 lorries a month on average at the rate of $500, making the total sum of $12,500 to $13,000 a month. When these wages were added to the additional allowances and payments that the applicant would usually receive, the applicant’s total monthly earnings would have likely exceeded $13,000. 

(4)   The applicant, though he had mostly worked for the respondent since March 2013, had also worked for other companies such as “Man Tsai” (for whom the applicant had worked on 15 December 2013, for example, see para 58), “Wai Ka” (transliteration) (“維嘉”). The applicant is entitled to rely on s.11 (7) to include those earnings that he received from other employers for whom he worked concurrently with the respondent.  When these earnings were taken into account, the applicant’s average earnings would have been likely be $13,000. 

62.In conclusion, I find that the applicant has proved on the balance of probabilities that his monthly earnings before the Accident were in the sum of $13,000 for the purpose of calculating the ss.9 and 10A compensation.

H.　PROPER QUANTUM FOR COMPENSATION

H.1　Section 9 Compensation

63.The applicant was 47 at the time of the Accident.  Applying 72 as the age multiplier (as fixed by s.7), and the 2 percent for the percentage loss of earning capacity Dr Fu opined and adopted by the parties, I therefore award the applicant $18,720 (i.e. $13,000 x 72 x 2%) as compensation under s.9.

H.2　Section 10 compensation

64.The period of absence from duty of 237 days was certified by the MAB and also adopted by Dr Fu. Applying the monthly earnings of $13,000; I award a sum of $81,035 (i.e. $13,000 x 12 ÷ 365 x 237 x 4/5) as compensation under s.10.

H.3　Section 10A compensation

65.The applicant, by relying on a “schedule of records of medical expenses” in the hearing bundle[9], claims a total sum of $600 as medical expenses.  Of this amount, $200 was in respect of treatments in Kwong Wah Hospital and is supported by various receipt numbers.  This amount is clearly proved, and I shall award it to the applicant.

66.As for the remaining medical expenses in the sum of $400 for the two treatments given by a Chinese bonesetter (趙勤跌打醫館), the applicant, in order to prove these expenses would need to satisfy the requirements spelt out in s.10A(3) as well as the interpretation section of s.3 that this Chinese bonesetter is a “registered Chinese medicine practitioner”.  Since the applicant has not produced any receipt or adduced any evidence to prove that this Chinese bonesetter was a registered Chinese medical practitioner, I’d be disinclined to award him compensation for these expenses.

67.Thus, I award the applicant $200 under s.10A.

H.4　Total award

68.In the circumstances, the applicant is awarded compensation in the total sum of $99,955 (i.e. $18,720 + $81,035 + $200).

I.　CONCLUSION

69.I would accordingly grant the following judgment and make the following costs order nisi against the respondent:

(1)   That judgment be entered against the respondent in favour of the applicant for the sum of compensation under the Ordinance (a) $18,720 under s.9; (b) $81,035 under s.10 and (c) $200 under s.10A;

(2)   That there shall be interest on these sums at half the judgment rate from the date of injury (11 December 2013) to the date of judgment, and thereafter at judgment rate until full payment;

(3)   There be a costs order nisi that the respondent do pay the applicant the costs of these proceedings, with certificate for counsel, to be taxed if not agreed. This costs order nisi will be made absolute 14 days from the date of the handing down of this judgment if no party applies to vary it; and

(4)   The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Chase Pun, instructed by Cheng & Wong, assigned by the Director of Legal Aid, for the applicant

The respondent was not represented and did not appear